Relative to other professional schools, law schools are extremely disengaged from professional practice-- they seek neither to understand nor to influence it. As I have said previously in this space, law has lagged behind the world of global competition--and technology-driven clients--over the last 15 years. It's now entered a whiplash period where it must catch up. If clients have to change 20 percent, then law firms must change 30 to 40 percent (see Jordan Furlong’s great post on how U.K. changes will migrate to the U.S.), and the "supply chain" to law firms (e.g., law schools and certain companies and service providers) will experience the most dramatic change.
Over the past six months, I have participated in a number of symposia at law schools and have visited with eight deans, including David Van Zandt at Northwestern and Rick Matasar at New York Law School. How did we get here? In the simplest terms, we can identify three phases of legal education.
Phase I was the apprenticeship system, where folks "read" law under more senior lawyers. Some refer to this model as "Lincoln's way" because it produced great thinkers and advocates like Abraham Lincoln, Thomas Jefferson, James Madison, Justice John Marshall, and most of the signers of the Constitution. This 1-1 apprenticeship model gradually evolved into a trade school model, where practicing lawyers would supplement their meager income by lecturing on law at the local YMCA night law school.
Phase II, pioneered by Dean Christopher Columbus Langdell at Harvard, created the professional school, and centered the curriculum around the case method and classroom discussion, which is the template for every law school in the country. The American Bar Association and later the Association of American Law Schools worked to eradicate the trade school model, ratcheting up admissions standards and driving the emergence of the faculty as a distinct profession.
Phase III reflects the last generation or so, where law schools have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say literature or history), as opposed to a professional pursuit, like, say medicine or business.
-Students graduate from law school with a lot of debt but without client-marketable skills, so their primary option is to serve long apprenticeships in law firms, beginning with very rote work which is less intellectually engaging than law school or judicial clerkships. While law students who get the higher paying law firm jobs achieve good salaries much faster than medical students, their time to professional independence is longer. This is not because law is more complex or riskier than medicine, but because legal training is inferior.
-It's no surprise that law graduates don't acquire client-marketable skills, since so many law faculty don't care much about the practice of law. Even in 1981 when I went to law school, the faculty generally held law firms in low regard, and clients were presumed unethical without the constant guidance of lawyers (in speaking to a law school dean the other day, she immediately equated client with "Enron"). It's nuts for law school to be primarily about understanding appellate decision-making and not at all about understanding clients.
-Law school is weak on empiricism--unlike, for example, medical school, which is moving in the direction of being ever more evidence-based. Almost every argument in law school is a hypothetical grounded in abstraction and unproved in experience.
If law schools aren't figuring out the future, who is? Or is the future of law practice not important? If law schools don't imagine a future any different from the present, is it any wonder many lawyers embrace the fallacy of an unchanging and unchangeable profession?
As I have suggested previously, general counsel are pushing for big discounts for junior associate time, and law firms are deleveraging, which means straight-from-law-school-hiring is going to drop for at least three years and probably forever (tell me again why we're flying to Duke Law School to interview so we'll have an inexperienced lawyer for a project in 2013 and who, if everyone is really lucky, may become eligible for partnership in 2022?). Law schools will have to produce fully-functioning lawyers who can quickly become economically viable--not just proto appellate clerks.
Let me suggest some likely elements of change (some of which already are in play at Northwestern and elsewhere):
-An accelerated curriculum, with no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school.
-More practice orientation in teaching, with far more adjunct faculty who are active practitioners (a random e-mail I received yesterday said "one of the reasons I chose Northwestern for law school is I believe in the type of changes that Dean Van Zandt is trying to make. My favorite instructors were not academics but adjuncts who were successful practicing attorneys.")
-Better use of technology (both connectivity, like video or web conferencing, and Web 2.0 social networks) to connect schools and practitioners and clients. Faculty (rightly) hate the notion of students tweeting each other in the classroom, but they can easily rely on professional networking services to connect to actual practitioners who are dealing with the issues discussed in class. In a networked world, the ability to get someone who knows the answer to help you is a far more valuable skill than the ability to hypothesize your own answer.
-A much more empirical approach to practice, forcing much deeper inquiry, rather than just trotting out hypotheticals and issue-spotting--e.g., if choosing AAA arbitration is the right dispute resolution clause, do we know that a higher percentage of deals with no arbitration clause ended in a contentious dispute?
-A move back to mission-centered management. In a recent meeting with law school deans, I asked "if you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?" The answer: "nothing." When my wife's grandfather was a law school dean, it was understood that the law school was there to serve society, the profession and students--not vice versa.
-A lifetime (or at least ten years) of orientation for skills development for students/alums. While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source (although realistically, today, not the most fully competent source) of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms' appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.