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Wednesday, March 07, 2018

Legal Ed's Futures: No. 7

A Fine Mess

With all the necessary thanks to the editors of Prawfsblawg and to Dan R and Mike M for organizing this symposium on the future of legal education, let me begin by making two obvious observations:

  1. The way that law schools are structured is a path-dependent accident; and
  2. The future of the legal services market doesn’t look like the past of the legal profession.

These two aspects are self-evident, and my colleagues in this virtual symposium will, no doubt, pull these ideas apart better than me. But I wanted to state them at the beginning of my posts in this symposium, because they are the twin suns by which I am going to navigate —my North and South Stars, if you will. Indeed, they are the two fixed points that have defined my current job.

I’m the foundation dean of a new law school, on the other side of the world. In a period when US law schools are closing, it might seem that I don’t have much to say about the future of US legal education. But the structural problems that the US system “enjoys” are the same ones that we enjoy here in Australia. (And I spent thirteen years working in the States, at Wharton and New York Law School, so I know the US system really well.) And I am more aware of these problems than most: When I agreed to start a new law school four years ago, there were already seven other law schools in Melbourne and there was a huge oversupply of law graduates. According to some commentators, as many law students graduate each year in Australia as there are practising lawyers. So, when I took on the job of foundation dean, literally no-one said “ah, just what we need, another law school.”

But this is a blessing, and not a curse. It’s great being a late entrant to a market (the runt of the litter, as I sometimes describe us): You have to work harder to get enough to eat, and literally no-one will cut you a break. This concentrates the mind wonderfully.

My background is computer science and artificial intelligence, and my university is one that has “Of Technology” in its formal title. (We’re like MIT and Caltech, just without any of the money or prestige or Nobel laureates.) Thus, the plan when we started the law school was to have technology and intellectual property in the core of our degree. I started with the idea that every one of my students would want to be like me, moving back-and-forth across the boundary between technology and law, for the course of their careers.  Surely, this is what a new, vibrant, technology-focused law school really needs to provide to its students?

Well, no.

The thing of it is that students come to law school for a range of reasons—and exactly none of them is because they were fantastic at math or computers at school or college, and so decided that the perfect use of their STEMM talents was to become a lawyer. I quickly discovered that most of my students didn’t want to study technology, few of them had much of an idea about legal practice management systems or predictive coding, and none of them saw themselves as primarily technologists.

At the same time, I was spending a lot of time talking to the legal profession and the judiciary and various other players in the law-space, in an effort to introduce them to my new school, and also to get an idea of how various legal actors saw technology, and what knowledge, skills and dispositions they wanted my graduates to have. I discovered that tech doesn’t have much of a foothold in the profession, and the real motivating force is change. Or, more specifically, fear of change. They see a range of “innovations” on the horizon, and they have no way of responding meaningfully to these changes. The legal profession doesn’t actually innovate, not the way that Silicon Valley and Shenzen and Tel Aviv do. There we see endless streams of 26 year olds, backed by VC or PE money, anxious to move fast and break things—things like the legal system. In law, we don’t see this so much. I often show two slides in my presentations about legal innovation. The first slide shows a depiction of a 17th C hospital, contrasted with a 21st C hospital. They are unrecognizably different. The next slide shows a picture of a 17th C court and a 21st C court. The main difference here is that the 21st C court doesn’t feature as many horsehair wigs.

Everyone I spoke with in the initial few years agreed that the legal profession is going to change. The most foresighted commentators recognized that the provision of legal services in the future will not be confined to lawyers from an anachronistic legal profession—instead, practising law will include new approaches and new entities, from technology companies delivering document generation systems and artificially-intelligent legal support systems, to multi-disciplinary practices providing a combination of professional services that defy 19th century conventions. Offshoring firms will be widespread, delivering technologically-mediated legal solutions across the globe, using the cheapest-and-best legal operators. Large companies will adopt a managed-service approach for their legal needs, an approach that doesn’t necessarily involve the law firm, or even lawyers.

Against this reality, law schools still look like something out of the early-20th century. They teach an old-fashioned curriculum in an old-fashioned way. They are extremely conservative, focusing on the transmission of legal content modelled on established law schools from the 19th or early 20th centuries, in order to appear “rigorous” and “professional.” Apart from some worthy experiments undertaken by motivated individual academics, the most significant innovations within law schools in the last twenty years are: (1) a greater commitment to skills; and (2) some limited use of online teaching. (Although, of course, US schools are waaaaaaaay behind on this front. Thanks, ABA.) As for involving technology in the curriculum, schools rarely commit resources to this arena, preferring instead to engage in a kind of innovation cabaret, creating media-friendly events like two day “legal hackathons,” or offering vendor-sponsored coding electives that provide no long-term value to law students.

So, this is the reality we face, or specifically what I face as the dean of a new school. This reality will form the background to what I want to talk about in subsequent posts. I want to focus on the obvious challenges that confront legal education globally, and discuss how we have approached these challenges/opportunities at my law school. I’ll focus on the two observations I opened this post with, and will chat about three main challenges to the legal profession and the law schools that serve it:

  1. The development of legal technology (and, in time, artificial intelligence systems) that supplant the special skills of legal graduates;
  2. The likelihood of systemic casualization of the legal profession, along with the increased cost of delivery of legal education; and
  3. The rise of transnational lawyering, where low-cost providers of legal services will be able to market directly into traditionally-protected high-cost and high-value jurisdictions.

Along the way, I plan on discussing how artificial intelligence actually works (and, as a result, which parts of the profession are going to die), why “programming for lawyers” electives aren’t a good answer to the question “what is to be done?”, and I’ll make some modest proposals about how US law schools can reduce the cost of delivery of legal educations. Maybe to zero…

Thanks for having me along for the ride.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 7, 2018 at 09:51 AM | Permalink


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