Here is one quotation which frames the basic argument:
“[L]aw practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.
Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.”
The “quandary,” Campbell notes, is how law schools ought to best train these students who will encounter a highly specialized practice. I have some thoughts on that (as he and others certainly do). More on that in a future post. But, for now, note the important implication he draws from these observations about the trends toward specialization and commodification of legal services:
“As legal practice becomes more and more specialized, the possibilities for non-lawyer specialists to take on roles that used to belong to lawyers become ever greater. If a lawyer does not actually need broad based legal training to proved the specialized service, competitors who are not lawyers can enter the market unless the market is protected. On the corporate side, where regulatory barriers are largely papered over by having general counsel in between the law workers and the non-lawyer clients, we can already see a number of these – e-discovery specialists, document review specialists, litigation consultants, merger and acquisitions consultants, and on and on. Other countries, including the UK, have opened the doors to such providers, and some states have relaxed or are looking at relaxing barriers on the consumer side of the market. I think the range of non-lawyer specialists that compete for law work will only become more extensive and more elite over time.”
This is an enormous issue, of course, and one that is best framed around both positive and normative analyses. I might quibble with the description as regulatory barriers being “largely papered over” — claims regarding the unauthorized practice of law don’t always fail, and there has been controversy stirred up by individuals and entities entering the so-called traditional lawyer space with various services (litigation involving Legal Zoom, for example, continues in various state courts). But the general point, that specialization in legal practice has and can drive legal generalists out of key parts of the market, seems surely right as a descriptive matter. The normative implications, to say, the obvious are controversial and fascinating.
Is the focus of these two recent articles, one from WSJ law blog and the other from ABA journal. The basic takeaway is that corporations are decreasing meaningfully their spend on outside law firm work and are handling much more of it internally.
Interesting quantitative analyses raise further questions: Is this driven solely by economic considerations and, if so, what will outside law firms do to respond to these choices? Are there kinds of matters which corporations are looking afresh at in-sourcing? In other words, are there non-economic considerations underlying these strategies? And will these developments impact the hiring of new law graduates, as law firms face the challenge of providing added value through assignment to freshly-minted associates? Further, will they impact law school curriculum (perhaps by encouraging law schools to focus more squarely on training for in-house law careers)?
These are hard questions, and not new ones. But the brute facts of legal in-sourcing bring these complex matters into ever-sharper relief.
The bold title of the commission assembled by the ABA is “The Future of Legal Services.” I am chairing one of the working groups, that on “Blue Sky Thinking on Innovations.” (One committee member wryly noted that the abbreviation could be “BS Thinking”!).
Such blue sky thinking allows us to consider, through a wide lens, present and future innovations in the contours of legal services. One threshold issue, I think critical, is the definition of “legal services.” Are we going through an era in which the configuration of what is “legal” and what is, say, “managerial” is changing? As I and others have written about elsewhere, the imperative of thinking about problems of risk and performance as issues at the interface of law, business, and technology is critical. Managers often want their lawyers to help them think through risk and reward and to do by evaluating not only the legal dimensions of the problem (will I be sued? what is my potential exposure? what can I do to ameliorate my legal risk?), but also the business performance dimensions (how ought my legal risks be assessed in light of potential opportunities? how do these risks map onto the strategic objectives of my company?). Traditionally, these latter issues were handed back to managers once the legal issues were properly ventilated. And, to be sure, these C-suite level decisions must be framed around considerations that are often above the competencies, and indeed the “pay grade” of these able in-house lawyers. Yet, the twin elements missing in this standard depiction is this: The manager making the business decision should have adequate insight about the structure and basis of the legal advice to properly incorporate that advice into the business decision — to be clear, it is the context, not the content, that is critical here; we still want the lawyer to be the lawyer. And we want the lawyer to have enough of the context of the business strategy decision to understand the nexus between what light “the law” sheds on this matter and what are the issues pertinent to the manager’s choices.
So, we are back to the puzzle of what are “legal services” in a setting which legal advice is embedded in business strategy and in which business strategy incorporates not only elements of substantive law, but also of legal reasoning — the process, as well as the content. Lawyers, often acting through the accreditation authorities and within the structure of a profound culture of “law” and “lawyering” will see themselves as the sole stakeholders for what is or is not a “legal service.” But in the world in which the silos between pure lawyering and pure business performance are dissolving — or at least the purity of these concepts are interrogated — the hegemony of lawyers in defining this phrase is controversial.
Historically, only Wisconsin permitted law students who attended law school within the state (at U. Wisconsin or Marquette) to automatically waive into the state bar upon graduation. In recent months, a number of other states, including Iowa and New Hampshire have proposed the same rule. Rumor has it that New York (and perhaps some other states) are considering this option as well.
A very prominent constitutional law scholar wrote me earlier to note that this arrangement may well violate the Constitution’s dormant commerce clause. He makes a convincing case, at least, that there is a plausible constitutional argument against these rules. The logic is basically this:
What the state is doing is providing an economic good — a license to practice law within the state — to folks who have purchased services in the state, and denying this same good to individuals who have purchased services elsewhere. Note that they are not discriminating in favor of their state residents, which is arguably permissible under existing doctrine. A New Jersey resident attends law school in Iowa and gets waived in by virtue of their attendance (and tuition paid) in Iowa. An Iowa resident gets the same benefit. However, the Iowa resident who attends law school in Illinois gets no such benefit. In short, there is discrimination based not upon the residency of the law student, but upon where they “purchase” this economic good. Moreover, the intent certainly is to benefit the in-state law schools — not state law schools, but in-state law schools, since this rule applies to private as well as public schools.
An interesting constitutional claim, not obviously compelling, but strong nonetheless.
What do you think? Happy to post comments (attributed and on-topic, please).
Matt Leichter weighs in thoughtfully on the “JD advantage jobs = lousy jobs” narrative. This is part of the swimming upstream various bloggers — usually, but not always, disaffected, anonymous posters — have been doing as part of a strategy of criticizing law schools for not enabling their students to pursue interesting, remunerative careers.
The wave of change impacting the legal profession and also the business sector has opened up opportunities for new law graduates. The business sector — especially, but not limited to, the technology sector — sees the utility of law-trained professionals in a world in which the intersection among law, business, and technology is increasingly useful. Indeed, the traditional silos between “legal services” and “business services” is dissolving in important ways. And while professional associations of lawyers, and perhaps state bars and the ABA, may be resistant to these changes, disruptive innovation is coming fast and furiously.
So why do Matt Leichter and others want to pound once again on the JD advantage drum?
First, he wants to draw the connection between unemployment rates and JD advantage positions, making the true, but banal, claim that when unemployment rises, “the proportion of graduates finding themselves in JD advantage positions is likely to increase.” Huh? No one is insisting that a law graduate will always or even mostly prefer a JD advantage to a JD required job. It surely depends upon the job. And everyone agrees (right?) that employment in a JD advantage position is preferable to unemployment. So what is so fuzzy about the proposition that, in this difficult job market, law graduates are pursuing eclectic professional opportunities. And why is it just labeled, derisively, “scrounging for work?”
Let’s look at the matter the other way ’round, that is, from the vantage point of employers. Presumably indebted law grads will have higher salary needs than, say, grads with a BA or even a post-graduate master’s degree. Why would non-traditional business sector employers then prefer law grads at this higher salary level if the JD degree was not truly an advantage? Is it the position of these critics that employers, too, are being scammed?
Here is the essential point: It is not NALP and not the law schools who are foisting law grads on unsuspecting employers by insisting that the JD degree is an advantage. It is the employers — and here, to be sure, I am focusing in particular on the business sector — who are seeing this educational path as providing value added. In the data described by Leichter, twenty percent are in “other business settings.” Would more precision in describing these jobs help? Well, surely yes. But the main point is that businesses are in fact hiring these grads and presumably across salary ranges. Different schools, different outcomes. Yes indeed. But I can report that Northwestern Law grads entering the consulting and business/technology fields are seeing salary outcomes that are quite remunerative indeed. And these fall squarely into this so-called “fuzzy” category.
Leichter insists that NALP should reshape the category to include only positions which offer “the graduate opportunities for exercising professional judgment while using their legal skills and knowledge.” Even making the heroic assumption that some smart cookies could come up with a useful measure of this, there remains very good reasons to suppose that employers are making this assessment in the real world by pursuing with alacrity law graduates. Yes, not all of these positions are lucrative and Leichter’s point that the salary at the 25th percentile of JD advantage jobs is not very large (still, the question is compared to what??). But trotting out the trope that the lion’s share of JD advantage jobs in the business sector are in fact positions which do not demand professional judgment or legal knowledge and thus we know that JD grads are “scrounging” and settling for these jobs (having been duped by NALP and deans) is not only tired, but is belied by the market.
Educated, data-driven debate by careful thinkers — and, to be clear, I certainly view Mr. Leichter as in this category, as someone with a valuable perspective and useful things to say on this subject — is necessary in this fuzzy climate. But let’s have this discussion in the context of a larger debate about the changing nature of legal services, the increasingly innovative work that law schools are doing, multidisciplinarity in the law-business-technology space, and economic judgments made by rational college graduates. More data and analysis in this realm would be a welcome relief to the scambloggers’ cranky refrain.
Here is a letter sent to me today, and presumably to every other law dean in the U.S., from the CEO of ExamSoft, followed by my response:
Dear Dean Rodriguez,
As you may have already heard, on Tuesday evening last week, there were delays in uploading answer files following the day’s exam sessions. Please accept my sincere apologies to you, your students, your faculty and staff. We take our obligation seriously, and after many years of supporting bar exams across the nation, Tuesday night’s delay was very disappointing to say the least.
Since that night, our core priority has been to assist and support each student and ensure solid technical performance for any remaining bar-related activities. If you would like, in the near future, we would be happy to send you a more robust account of what happened on Tuesday night, including details about the root cause of the delays, what changes have been made to improve performance, and how we can ensure this doesn’t happen again.
With that said, I’d like to take this opportunity to share some general information, which you may have already seen, in the hopes that it is helpful to you:
• Tuesday’s post-exam delay did not impact exam day functionality in SofTest, nor did it impact the integrity of exam takers’ answer file content.
• Based on the accounts we’ve received from site engineers, it seems that the exam sessions themselves went well.
• On Tuesday evening, around 6pm ET, as east coast students were uploading their exams, our internal system began processing files at a slower-than-usual pace for a period of approximately six hours.
• Naturally, this led many exam takers to wonder about the status of their uploads and, in some cases, whether they would be able to upload by their deadlines. Therefore, we worked diligently to communicate with applicants via our call lines, Facebook, Twitter, and our website throughout the evening. The state bar examiners were great partners and extended upload deadlines as needed to accommodate the delay, and we communicated such extensions throughout the night.
• On Wednesday, we made several network configuration changes, and Thursday’s exam upload process went smoothly. We are continuing our diligence and will be making further enhancements in short order.
• This week’s overall exam volume was almost the same as last year’s and lower than other weekly periods for final exams, so the volume itself was not the challenge.
Our performance this past week was inconsistent with the standard we’ve set over the years, and we are committed to doing better. Again, more information will be forthcoming as we complete our internal analysis, and please let me know if you would like to talk with me or a member of my executive team.
ExamSoft Worldwide, Inc.
Thank you for your note. I assume that this exact note is being sent to every dean of every ABA-accredited law school in the U.S. Nonetheless, it is worthwhile to have a comprehensive accounting of this situation from the perspective of ExamSoft. I believe, and very much hope, that there have been no specific negative consequences on the ability of any graduates of our law schools to process their exam files.
At the same time, there was unquestionably a serious toll taken on the students in their wholly understandable anxiety and worry, perhaps even panic –clearly consequences of the technological problems resulting from your internal systems, just as you note below.
For that reason, it is striking to me that in your boilerplate note, there is no indication that you are making any refunds to any bartaker. Nor is there any indication that you are planning to make financial recompense that would be a tangible, important acknowledgment of what, at the very least, was a serious problem that resulted from technological problems within the scope of control of ExamSoft.
Such a gesture, whether or not legally compelled, would be the right thing to do, in my opinion. While I by no means speak for anyone other than myself, I would respectfully suggest that you consider, if you have not already, some tangible steps that meet this clear moral obligation to make amends. I call upon you to reflect further upon this unfortunate episode and do the right thing.