(Originally Published in AmLaw Daily August 11, 2009)
When I wrote Law School 4.0 in June about the likely direction of change for law schools, I wasn’t purporting to be an expert on legal education or lay out the definitive work on curricular reform.
I was simply trying to place law schools in the context of my change thesis, apply some lessons from other professional schools, and provide some suggestions for improvement rather than just criticize (one should never criticize without offering an affirmative road map).
Between comments here (23), e-mails direct to me (10), posts on Legal OnRamp (25), and posts in the law professors’ blogosphere (8), see e.g., Henderson, Volokh, ABA Journal, Ruhl, Greenfield, Smith, TaxProf, and YoungLawyers, we got 50-plus responses--most of which were quite favorable, including from law school deans and faculty; a few were snarky and dismissive.
The snarky comments all came from law professors, boiling down to “Who are you?” “Nothing new,” “Not enough footnotes to be a law review article,” and, most terrifyingly, “Go away, we have a committee that will be meeting on this in the fall.”
The emotional level of the snarky reaction was well beyond that of the initial project (think Captain Kirk's "Get A Life" on SNL), but nowhere near that of the recent law school grads with huge debt and no jobs, see e.g. JZ's comment of 7.22.
I was tempted to echo the esteemed captain and urge the snarky professors to “get a life.” Instead, let me try to be a good Web 2.0 citizen and use the criticism to become analytically sharper and hopefully more constructive.
Law school is built financially on three legs of a stool--public or alumni support, endowment distributions, and tuition. (Relative to other professional schools, law schools generate little income via clinical work, research, or continuing education.)
Over the last generation, law school tuition, cocooned by the booming legal market, has increased at twice the rate of inflation. But public and alumni support will be down for at least the length of the recession, now forecast to run through 2010. Endowment payouts will be down longer because of the ”fly-wheel” formula. And law firms, pressured by clients, are cutting way back on compensation for young lawyers, which will limit their ability to pay tuition.
Like Medicare, this is a structural, not a cyclical, problem. So do I think a law school dean is being loyal to the institution by declining to discomfit the faculty by telling them their model is unsustainable? Law schools should be urgently thinking about how to reduce the costs and shorten the time it takes a young lawyer to reach some level of economic viability.
The changes I would advocate in curriculum are not primarily about skills training versus classroom training--I don’t have a dog in that fight. My criticism of the case method (which I’m sure is expressed better elsewhere) is that it is disproportionately about reasoning (how I think through issues and persuade others) and intent (am I intending to be prudent or helpful?) and presumes that lawyers operate in a lawyer-centric world, not a client-centric world.
The modern client world is about information--what’s the best way to address this problem that someone I trust has already applied? And it's about systems--how is this likely to actually affect things I care about, especially when applied in high volume? In the thousands of conversations I’ve had with clients over 20-plus years, they are invariably interested in information and systems, not reasoning or intent.
That’s not to say that reasoning and intent are unworthy subjects of study (although, to be honest, most people either get “thinking like a lawyer” pretty quickly or they don’t), but that maybe they should be 30 percent of the curriculum instead of 80 percent.
Reasoning and intent prepare you to be an appellate clerk, a law professor, or perhaps a judge; but they don’t prepare you to operate in the world of clients. "Now they get it" is the most common refrain of in-house lawyers about someone newly in-house.
Among other things, that comment reflects that law school is not just incomplete (as any system of education inevitably is), but actually directionally wrong in important ways. In contrast, medical school, centered on clinical immersion in residency, is designed to force students (and faculty) to situate their thinking around the patient’s experience and the consequences of their actions, not just their own reasoning processes.
With all this in mind, I was delighted by Fred Bartlit’s recent post: "Take even the most fundamental of assumptions one has about a process, and turn it upside down and shake it…. It turns out that ‘turning a legal process upside down' is often exactly the right thing to do to improve efficiency.”
Could we turn law school upside down as a first step in improving the economic viability of young lawyers?
So again, in the spirit of being concrete, not simply critical, and recognizing that none of these are new ideas, let me identify some of the best innovations out there:
- • I have found the business school case method, based on actual facts and problem solving by practitioners, to be a much richer learning experience than law school cases. A number of law faculty have been trying to develop practitioner-centric cases for law, and I would hope that half of instruction will shift to this approach over the next five years.
- • Like business school students, law students should generally not go straight from college. For far too many students, law school is simply the path of least resistance, a continuation of school as the most familiar and comfortable environment. Again, most business school students work before business school, which gives them a much more practical grounding.
- • Law schools should engage more adjunct faculty, which would reduce costs and give students a more pragmatic grounding in practice. It is unimaginable that someone would teach medical school without a deep legacy and ongoing practice of seeing patients. I can’t imagine that anyone would seriously argue that law school training is on par with modern medical training.
- I’m sure these ideas represent no more than 5 percent of what’s possible, so let’s try a simple experiment in “can-do” lawyering:
- • All suggestions as to how to improve, refine, and operationalize these ideas are eagerly sought.
- • Anyone in a law school faculty or administration, in law firm recruiting, or a client or law student who is willing to take action in some way: Just post here and explain what you are willing to do (or more likely, already doing) to make this work.
- • Anyone who wants to explain why I’m wrong and the status quo shouldn’t change is strongly encouraged to do so.
- • If, as Fred suggests, you are passionate about “turning a legal process upside down,” but just not this one, please identify what process you’d like to change and suggest some steps to improve it.
Could you try this at home? Is Fred right? Can Am Law be a platform to help us all improve the world of lawyers by using our skills to reinvent some processes that we all know make no sense?
Please check back in a few months to find out. Or maybe you’d rather work on scheduling that committee meeting.