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December 27, 2011

19

Northwestern Nostradamus?

by dan rodriguez

Predictions about legal education in 2012?  I’ll open “comments” for this purpose.  Civil, constructive, and non-anonymous, pretty please.

OK, I’ll start (although these are more hopes than predictions):

(1) From enrage to engage:  We will see professional educators and lawyers working more thoughtfully to respond to the drumbeat of criticism about the structure of American legal education and its challenges.  The truth, after all, lies between “it’s rotten all the way down” and “it’s the best of all possible worlds.”  Engagement among stakeholders, the press, political officials, and the public is the logical next step.

(2) Constructive transparency:  Many law schools, including ours, have responded to the reasonable pleas to communicate more detailed, useful information about placement.  The focus will turn from what the law schools don’t do, to what they can and should do to inform prospective and current students in useful ways.

(3) Law schools as public service incubators:  The demands of the public, and especially the poor, for legal services is ever growing.  Law schools, public and private, big and small, national and regional, must and will develop mechanisms to serve the disadvantaged and to provide access to both basic and complex legal work.

(4) Costs, funding, and progress:  The expense of providing first-class legal training can be expected to grow; tuition cannot continue to grow with it.  Law schools need to seek alternative sources of funding.  Without doubt, private philanthropy is required to sustain the initiatives befitting ambitious law schools in a modern economy.

(5) Give peace a chance:  Understandably anxious, and occasionally antagonistic, current and ex-law students (along with an occasional law professor) have reached for the moral high ground by attacking law schools root-and-branch.  But, there is a common interest in supporting the model of legal education that remains the envy of the world, while also engaging in constructive criticism.  Maybe, just maybe, 2012 will see the replacement of scambloggers with rational, albeit hard-hitting, dialogue among the myriad stakeholders.  All we are saying . . .

19 Comments Post a comment
  1. Matthew Spitzer
    Dec 27 2011

    Much of the current disenchantment stems from the enormous economic downturn and attendant layoffs and failure-to-hires of recent law school graduates. This produces a demand for both better information about placement (and, perhaps, bar passage), as well as heartfelt but unfocused requests for training that will enable graduates to function as lawyers. If and when the economy improves, these feelings will not disappear, but will become less intense. To the extent that we take the latter request seriously, it will not lead, by and large, to doing a lot more public interest work. Although that work may produce some generalized skills training (e.g. how to draft a complaint), there is precious little paid work in public interest. Rather, taking the demand for skill seriously leads down a path to law schools having a law firm (just as medical schools have hospitals) where students start to learn how to practice under lawyer-professors, who both provide training and who charge clients for their services. We would need to work hard to make the position of lawyer-professor prestigious, so that we could attract the best and the brightest. Law school might become 4 years instead of 3. And there will be negotiations between the lawyer-professors and the Deans of law schools about how to split fees. Deans of law schools will need new sets of skills, akin to managing partner at a large law firm.

    Reply
    • dan rodriguez
      Dec 29 2011

      Truly, law schools will need to develop strategies and structures to adapt to the reconfiguration of the legal marketplace. New models for legal services provision is a worthwhile direction for sure. (Although one surely wonders how law schools will navigate the political waters given the concerns likely to be raised by small law firms and solo practitioners with which the law school law firms will compete.

      Separately, this venture doesn’t, and indeed doesn’t purport to, deal with matters concerning the provision of legal services to individuals who cannot afford to pay fees. Law school clinics have long been organized, and I believe rightly so, around the notion that law students should be engaged in public service — this regardless of the paucity of post-graduation paying jobs in the public interest sector.

      Reply
      • Matthew Spitzer
        Jan 1 2012

        I agree entirely that my suggestion does not address the issue of service to those who cannot afford lawyers and the legal system. There are two reasons for this. First, the development and orientation of legal clinics (in law schools) is already aimed right at this issue. Clinics almost always represent those who are underserved. In fact, NU Law is already a leader at this. But almost all other top law schools are oriented the same way. Second, IMO, the solution to this problem (and I should put “solution” in scare quotes) rests in constructing new institutional designs for dispute resolution, for getting help with creating a corporation, and so forth. (To some extent the private market is already doing this. See legalzoom.com, etc.) This cannot be done just by changing the classes we give to law students. Law profs, working with economists, political scientists, members of the bar, judges, etc., will need to produce these new structures. Implementation of more efficient structures for solving legal problems of those with few resources will be politically difficult. But that’s why I regard this issue as one which is poorly framed as one facing “law schools,” as opposed to one facing society, and one which law profs — more than their schools — will likely have a hand in ameliorating.

        This are just my views, and are for comparison purposes, only. Your views may differ . . . .

    • Unworthy Conversant
      Jan 4 2012

      Prof. Spitzer,

      I wonder how much institutional resistance one might face in implementing such a revolutionary program. When I was the Student Representative to my law school’s Curriculum Committee, I made a similar suggestion, but I was laughed out of the room. The few who did comment on my idea made oblique reference to ABA requirements, but no one substantively engaged the point I attempted to make, leaving me with the impression that the faculty thinks no reforms need be implemented.

      I cannot imagine my alma mater is unique in that regard.

      Reply
      • Matthew Spitzer
        Jan 8 2012

        I think there will be a lot of institutional resistance, at first. But there is a lot to be gained, particularly for students. It will take a law dean and faculty who have courage and vision to make this happen.

  2. Dec 29 2011

    Dan–Very thoughtful principles. I think there is much to be done to move the model of legal education towards a more engaged approach, in which we teach and think about how to be an effective problem-solving agent in law, and how to produce more effective legal systems. I agree with you that the call is for serious thinking about how to accomplish this and a dialogue that moves beyond the polar extremes of ‘do away with law schools’ and ‘keep law schools exactly as they are.’

    Reply
  3. Michael Altmann
    Jan 4 2012

    “The expense of providing first-class legal training can be expected to grow.”

    No, it will not. Herb Stein’s law: “If something cannot go on forever, it will stop.” Tuition cannot keep growing faster than inflation, indefinitely. Good luck getting students to pay for it, graduates are broke. Good luck getting the gov’t to pay for it with an increase in the deficit under an eventual Republican administration. Good luck getting donations from corporations and the private sector, they abhor lawyers.

    Reply
  4. GU
    Jan 4 2012

    Another thing the medical profession does is restrict the number of physicians that graduate every year, much more so than the legal profession reduces the number of lawyers minted annually. Besides artificially improving the job market in favor of the profession (what is the cartel for, if not this?), it also increases the average quality of physicians in America. It is very hard to get into medical school, and earning an MD typically endows a person with the respect of the general public. This is partly because doctors are very often hard-working and intelligent folk who are worthy of our respect.

    Earning a J.D. can also gain one the respect of the public, but only from an elite law school (no comment on which schools are “elite”). Saying “I’m a lawyer” does not impress in today’s America, and a large reason for this is that the legal profession is barely a cartel–any half-intelligent dope can get a J.D. The libertarians are correct that licensing requirements for lawyers keep individuals out of the profession, but they neglect to mention that those shut out are the dimwits and hucksters (and some of these still slip through the cracks). The legal profession already lets too many people in, and the profession is thus now a mediocore one. Lacking any honor or dignity from their jobs, the private practice lawyers have decided to become businessmen instead of independent professionals (“If I can’t get respect or satisfaction, I’ll at least be rich”!)

    If the legal profession really wants to get its groove back, it should pare back entering law school classes to med school levels. This will make it easier for new lawyers to find a job (less competition) and will almost automatically raise the skill of the average lawyer. This in turn will put law back on the road to its rightful and dignified place as a noble profession whose practicioners are widely-respected. This might raise the price of legal services, but don’t forget about the societal costs associated with mediocore lawyers and lawyer-businesspersons–lawyers still have a drastic impact on society.

    Reply
  5. Lionheart
    Jan 4 2012

    Law schools already have clinics, but they don’t typically charge their clients. The cost is largely covered by general operating funds, which in turn consist largely of tuition payments. It’s hard to disagree with the notion that the clinical piece of legal education is vital. But it’s also expensive. With respect to the medical profession, my understanding is that Medicare in effect funds a huge proportion of the Residency costs for teaching hospitals. I very much doubt that taxpayers would be willing to similarly subsidize the training costs for would-be lawyers. That means that clients of the proposed law school/law firm would need to be willing to underwrite these costs themselves. Clients have balked at paying to train young lawyers in private practice; I wonder what will make them change their minds when it comes to funding the training of student/lawyers in the proposed law school/law firm model.

    Reply
    • Kristen
      Jan 5 2012

      I think this has to be right. If our goal is truly to train legal professionals – then almost undoubtedly the medical school model (or something close) would be preferable to law school as it exists. But the truth is that we can’t afford the medical school model, for the reasons you state. Law school remains largely unchanged for lots and lots of reasons, but one is cost (yes tuition is rising rapidly, but that money has mostly gone places other than curricular change). I don’t say this to throw up my hands. But rather to acknowledge that the current crisis in legal ed (and yes, I’d say that it’s a crisis) won’t be easily (or one dimensionally) solved.

      Reply
  6. Jan 4 2012

    Matt and Dan,

    Rather than look at the medical school as the model, perhaps we should note that among professional schools medical schools are unique in the the extent to which the training provided looks almost like an apprenticeship model. Like good law schools, other professional schools such as engineering and business — at least the good ones — recognize that their areas consist of taking results from other substantive areas (the physical sciences for engineering, social sciences for business) and applying them to a well defined set of problems dealing with the use of science, or the business enterprise. This is closer to what a good legal education does. Now, there are complaints about business education that sound a bit like the complaints about legal education, but they don’t get nearly as much play. We might, in legal education, choose to emulate the B-school model (as I am told NU has started to do) as being more relevant than the medical school model.

    Reply
  7. I predict that legal education in general and law schools in particular will continue to be under the microscope in 2012. Some of the criticism is appropriate, and Educating Tomorrow’s Lawyers is one of the efforts designed to address that legitimate criticism. Some of it, however, is both projection and scape-goating. We live in a society in which institutions are on the decline in the eyes of the public. Many commentators regularly disparage lawyers and judges, and affix no small amount of blame to us for the current state of affairs. Law schools incubate lawyers, and are thus prime targets for that negative energy. The challenge for legal educators in 2012 is to stand up for the importance of what law schools do, and the importance of lawyers in our world – while simultaneously becoming more innovative and more student-centered in the classrooms: in order to graduate knowledgeable students with practical skills and a keen sense of professional identity. So, the microscope will continue to magnify the problems in 2012; our challenge is to make sure that the attention is ultimately productive.

    Reply
  8. Jan 5 2012

    “Good luck getting donations from corporations and the private sector, they abhor lawyers.”

    Let’s assume that’s accurate as a perception, whether or not it’s accurate in fact (i.e., the private sectors uses lots of lawyers whether or not it abhors them). We ought to do something that is a regular practice in the corporate world (at least where you see enlightened focus on solving problems) which is to get to the root cause of the perception.

    It takes more than a comment on a blog post to do that kind of root cause thinking, but my hypothesis is that what people abhor about lawyers is the perception (and the common reality) that they are not problem-solvers, but game players in a particularly guild-controlled and non-intuitive game that purports to solve problems. There is always going to be a core of dispute resolution that reverts to the archetype of zealous adversarial advocacy to adjudicative bodies, but all dispute resolution need not fit that model, and more importantly, all problem-solving is not merely dispute resolution.

    The cutting edge is finding a way to nudge legal education (and the profession) away from its overwhelming focus on the adversarial advocacy model and toward a problem-solving model in an increasingly interdisciplinary or post-disciplinary world (which, by the way, blurs the long-standing dichotomy between litigation and transactional work). Our human resources people never abhorred lawyers who rolled up their sleeves and solved problems, nor did our environmental groups, nor our marketing or purchasing executives, but being such a lawyer takes a certain state of mind, namely, the willingness to operate in what I’ve referred to as the Venn diagram overlap of legal and non-legal decision-making.

    I think there’s a place in the world for legally-trained problem solvers. I don’t know if that place supports (a) the number of lawyers we are currently producing, (b) at the cost it takes to produce them, (c) using the pedagogical and curricular techniques we use to train them. But “nudge” is the right word because we have to deal with the institutional structure that exists now (whether or not it’s envy of the world) as the base line, and don’t have the luxury of writing on a blank slate. Nevertheless, I’d love to see more discussion about way we’d re-create the institution if we could start from scratch, and then think about how to nudge from here towards there.

    Reply
  9. Jan 5 2012

    Dan R. – good stuff – I think that it is important that folks be aware of what is really happening — we have a deep, deep skills mismatch – the training that is being offered is deeply out of touch with labor market demand – maybe this will be the year when folks in our business really get get on board with the manner in which science/LegalTech/Startupculture, etc. can help us reinvent our industry.

    Okay – here is the hard truth – the future is going to have fewer lawyers and they are going to look different (much more technology centric).

    Great news is that schools that are hip to the new game can Moneyball the others — it is an age of peril and possibility —

    Now … a few related thoughts:

    (a) “Tuition cannot keep growing faster than inflation, indefinitely” — iron rule of leverage – he/she who deleverages first has to deleverage least – who will be the first to seriously do so before they are staring a major budget deficit in the face?

    (b) The Rise of the Polytechnic Law School — or — What I have Called the “MIT School of Law”

    http://tinyurl.com/5vdlx7a

    Note: Northwestern took very positive steps under your predecessor — but I believe there was ultimately a revolt ?

    (c) Alternative sources of funding – this is related to the Polytechnic Law School — social science is not really the answer for real $$ – the real money is in the physical and computer science areas (where law is an important example application)
    (Look at NSF – Computer Science = Social Science x 50 ) only a slight exaggeration Another source of $$ = Legal R&D – legal information engineering and legal research parks (to be fair this was Larry Ribstein’s idea but I totally agree this where we are headed)
    BTW – Here is the work of my team: http://computationallegalstudies.com/

    (d) A Broader Notion of what “Legal Theory” Actually Means – Just ask Sociologists what happened when the physicists showed up and started doing network science (short story: lights out for sociology). Expect contributions from AI, High End Data Science (no not Econometrics but Machine Learning, Natural Language Processing, etc. ) (and those contributions will be directly meaningful to the legal education and the future practice of law)

    (e) Legal Supply Chain Mgmt: Classic B-School stuff but it is uber relevant to the GC’s and they will hire folks who can help them manage the legal supply chain and look for value proposition in legal procurement

    (f) Alternative Business Structures – UK goes live with the ABS – Tesco Law coming soon – how long until WalMart Law / Target Law (BTW beyond the regulatory piece – this is legal supply chain + software problem) My students (perhaps your students as well) are going to be in the middle of it starting this summer – http://21stcenturylawpractice.com/

    Look there is lots more I could say but I would rather just develop things and have the rest of you try to react or catch up —

    :)

    Cheers,
    Dan

    Reply
    • dan rodriguez
      Jan 6 2012

      Very interesting, Dan, as usual.
      Just a small riposte:
      No “revolt” at Northwestern. Yes, indeed, we have been doing some novel things, some variations on the general themes of your “polycentric” themes. Healthy debate among stakeholders continues and, like all experiments on the cutting edge of legal education, some will survive and prosper, others won’t. Suffice it to say that Northwestern’s efforts were the product of multiple constituencies looking outside the box and the support for various initiatives was broad, if far from universal.
      DBR

      Reply
  10. Jan 6 2012

    I think Jeff Lipshaw’s problem-solver comment gets at the essence of what I think legal education has been about for a very long time. The differences between the fundamental nature of legal education and that of medical training make the medical school model a very poor fit for law schools. We train people in a way of problem solving that can be used in future scenarios unimaginable at the time. I went to law school before recombinant DNA technology existed and have written a book on biotech law. While the range of human diseases is certainly not a hermetically sealed universe, medical training is primarily focused on differential diagnosis to be followed by treatments chosen from the existing armamentarium. Medical school training is not training medical researchers, but practitioners who may adopt new treatments when the researchers make them available and, in many cases, train the practitioners in their application. I sure hope my students will be able to invent new approaches to tomorrow’s new challenges. Clinical training is a very inefficient way to do that.

    Reply
  11. Mar 20 2012

    Prof. Spitzer,
    I wonder how much institutional resistance one might face in implementing such a revolutionary program. When I was the Student Representative to my law school’s Curriculum Committee, I made a similar suggestion, but I was laughed out of the room. The few who did comment on my idea made oblique reference to ABA requirements, but no one substantively engaged the point I attempted to make, leaving me with the impression that the faculty thinks no reforms need be implemented.
    I cannot imagine my alma mater is unique in that regard.

    Reply
  12. Mar 20 2012

    “The expense of providing first-class legal training can be expected to grow.”
    Good luck getting students to get pay for it, graduates are broke. Good luck getting the government to pay for it with an increase in the deficit under an eventual Republican administration. Good luck getting donations from corporations and the private sector, they abhor lawyers. I’ll stay tuned for more

    Reply

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