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.
We have a number of significant events coming up this week at Northwestern Law.
On Thursday evening, we will be launching the public phase of our comprehensive funding campaign. We will join with over 200 alumni, faculty, students, staff, and friends to celebrate NU Law and to look ahead to our great fundraising objectives. Please check out the Law School’s campaign website for up-to-date information about our campaign. (And, of course, news about our campaign will be featured on this blog).
On Friday, we will honor a number of distinguished law alumni at our second annual awards ceremony. We are especially pleased to welcome home Justice John Paul Stevens.
That same day, we will meet with our Law Board, the alumni advisor group to the Law School. I look forward to updating this group about the progress of our strategic plan.
On Friday afternoon and through Saturday, we will host our all-alumni weekend, with several programs and panels and also a Q & A session with me about the Law School. Finally, on Saturday night, we will celebrate with many alumni their reunions. We welcome back all our alumni from Chicago and around the world.
International law and law and economics expert, and one of my colleagues here at Northwestern Law, Eugene Kontorovich has been tracking the phenomenon of “gaolbalization” for a few years now. Earlier this week he published an update on The Volokh Conspiracy that is well worth a read.
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.
Along with our entering JD and LLM students, we welcome a new group of students to Northwestern Law School: the inaugural class of our new Master of Science in Law (MSL) program. These students are scientists, engineers, and medical professionals who will study the foundations of law and regulation in a one-year program that focuses on intellectual property & patent law, regulatory analysis & strategy, and business law & entrepreneurship. The 30 members of our MSL entering class come from a diverse mix of backgrounds and interests – all share in common that they want to combine their technical expertise with legal and business skills so that they can work effectively at the interface of law, business, and technology/science.
In the days/weeks ahead, I will share more about the MSL program and the innovative curriculum we are providing to MSL students. For now, though, I wanted to give you a sense of who are the students in the MSL program – the trailblazing souls who will set the tone for the MSL program for years to come.
By the numbers:
18 full-time and 12 part-time students
15 women and 15 men
Average age: 30
50% have advanced degrees, with 4 PhDs, 1 PharmD
One-third from life sciences, one-third from engineering, last third split between medicine, chemistry, and technology.
Two-thirds have work experience after their undergraduate or advanced degrees.
Two-thirds are from US; one-third are international students, representing China, India, and Mexico.
To give you a better sense of who is in the MSL program, let me detail the backgrounds of some of our MSL students here:
- A patent agent who did her undergraduate work at the University of Pennsylvania in Bioengineering and has been working as a patent agent for the past 8 years.
- A research scientist at Northwestern who an MS in Immunology & Microbiology from Rush University.
- A recent undergraduate from USC’s Viterbi School of Engineering who studied Chemical Engineering and Nanotechnology and is interested in management consulting and private equity.
- A student who just finished his PhD in Organic Chemistry from the University of Iowa and is interested in becoming a scientific advisor or technical specialist.
- A recent undergraduate from Tongji University in Shanghai, China, who studied Software Engineering and did an internship at eBay.
- A student who graduated from the University of Illinois with a degree in integrative biology who is interested in public health and the future of health care and medicine.
- A research assistant professor at the Feinberg Cardiovascular Research Institute who has his PhD in Neurobiology.
- A student who recently earned his Master’s in Civil Engineering and a Master’s in Architecture from the University of Illinois who wants to design, engineer, and construct super insulated buildings.
- A student who earned his BS in Biomedical Engineering in Mexico and wants to start his own medical device company
- A student from India with a BS and MS is Biotechnology who wants to help researchers avoid legal obstacles surrounding their discoveries and inventions.
- A pharmacist who would like to work in the pharmaceutical industry and be involved with the process of making medications available to the public.
- A person with a BS in Electrical Engineering from the University of Illinois, and an MS in Biomedical Engineering from Texas A & M who has been working as a Safety & Regulatory Engineer.
- A student with a master’s degree in Urban Planning & Policy, who is a legal operations manager at a technology company.
- A data assistant at Northwestern University who is interested in becoming more involved with scientific research and grant administration.
- A student who started his own software company and has earned degrees in Product Design and Development and Values-Driven Leadership.
- A lab manager at the Lurie Cancer Center who has an MS in Biotechnology from Rush University.
- A Histology Technologist in the Pathology Core Facility at Northwestern.
- A Post-Approval Monitoring Coordinator in an Institutional Animal Care and Use Committee.
- A consultant with an MBA and a Master’s in Civil Engineering from the University of Illinois.
- A PhD in Neuroscience who is a compliance analyst in a University Conflict of Interest office.
- A Senior Regulatory Affairs Specialist at a construction products company with an undergraduate degree in Biology.
One thing that these students have told us is that the program really “hit the spot” for them – these are people interested in the intersection of law, business, and technology who are happy to have found a program that is specifically tailored to their exact interests. We are happy that these students found their way to our program and look forward to a productive and exciting year with them.
I wanted to share with you some of the interesting and important work that Professor Juliet Sorensen and her cross-campus colleagues are doing on the Ebola outbreak in Africa.
Today is Global Health Day at the Feinberg School of Medicine and there will be a faculty panel on the Ebola outbreak at noon. Panelists will “discuss the virology, transmission, epidemiology, and prevention of the disease, the current state of the outbreak, as well as how emergency departments and field staff collect data and prepare. [They] will also discuss the ethical considerations of the outbreak and efforts to contain it, including the selective use of the experimental and untested ZMapp drug on two American physicians infected in W. Africa.” Juliet will participate as one of the panelists.
In a few weeks, on October 1, Juliet and Dr. Shannon Galvin will give a talk here at the Law School on “Ebola, Health and Human Rights,” which will focus on the nexus between the Ebola crisis, access to health issues, and the human right to the highest attainable standard of health.” This program is sponsored by the Center for International Human Rights; the Center for Global Health; the Program of African Studies; and a new student organization, the Health Law Society.
Additionally, Northwestern University’s law and medical schools are actively partnering with the University of Bamako in Mali, on access to health issues and the Ebola outbreak. Dr. Robert Murphy, the director of the Center for Global Health, oversees a lab at the University of Bamako that is at the front lines of Ebola testing, and he and others from his team partner with the Northwestern Access to Health Project—which Juliet directs—to conduct health and human rights trainings in Douentza, Mali.
Juliet founded the Access to Health Project to leverage research and clinical expertise from across the University in an effort to develop long-term health improvement projects that evolve from interdisciplinary needs assessment in communities across the globe, and it happens that they have been working in Mali this year. This work will continue into next year as well.
This is challenging and important work. I thank Juliet and her colleagues for taking it on, and I wish them the best success.
UPDATE: Here are links to two reports on the October 10, 2014, Global Health Day panel:
Our esteemed colleague, Professor Ronald Allen, is a 2014 recipient of the China Friendship Award, the highest award the People’s Republic of China gives to honor non-Chinese nationals for “outstanding contribution[s] to China’s economic and social progress.” The award will be granted September 29 and 30, 2014, at a ceremony in Beijing.
Established in 1991 to recognize the importance of international exchange and cooperation, it is a fitting honor for Ron, who has been actively participating in China’s efforts to reform their evidentiary laws for the last fifteen years or so.
The Fall 2014 issue of the Northwestern Law Reporter—at the printer today, copies available late next week—includes a lengthy article about Ron’s work reforming evidence laws around the world. Here is an excerpt:
During the Chinese Cultural Revolution of the 1960s, many of the country’s lawyers and intellectuals were killed, and the legal system was gutted. After Communist Party leader Mao Zedong died in 1976, successor Deng Xiopeng struggled in his push for economic growth, in part, Allen said, because “The economy can’t function without a legal system. At that point, you’re just bartering.”
So in the 1980s, Chinese scholars began traveling overseas to learn law and economics, an effort that ultimately led to Chicago when members of the reformist vanguard determined that evidentiary reform was a smart starting point and that Allen could help them learn the field.
The underlying legal principles [of China’s evidence code] are Germanic in origin and they were adopted by the leaders of Republic of China after the overthrow of the Qing dynasty in 1912. The legal system was declawed but not replaced after the mid-century Communist revolution, so the same foundation remains in place. That system doesn’t feature American-style adversarial proceedings and thus doesn’t decentralize the evidentiary process. “My students are grafting an Anglo-American conception of the law of evidence onto a Germanic system, and the Germans would say you can’t do it,” Allen said. “The Chinese are saying, ‘Yes, we can.’ And so it’s kind of a fun and interesting exercise.”
Some of Allen’s students drafted a code of evidence that has been adopted by several Chinese judicial districts. Meanwhile, several other districts have adopted alternative evidentiary codes, and last year the nation’s highest court started a research program to investigate more formal legal reform. Allen is an advisor to the 30-person committee, which includes many of his former students.
This year’s Friendship Award complements an earlier honor: in 2007, Ron was designated a Yangtze River Scholar by China’s Ministry of Education. This was in recognition of his work with the China University of Political Science and Law in Beijing, to “reform the legal system of the People’s Republic of China.”
Please join me in congratulating Ron on this richly deserved honor!
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).