What should legal education become?
Back in August, my preview of coming activities for the year included this sketch of my role as chair of a University of Pittsburgh School of Law task force on innovation in legal education. Figure out the future. That’s our charge.
Our little band has done a lot of reading and reviewing and listening and talking, and one of the things that we tasked ourselves with was independently coming up with our own respective visions of the future. If we were to remove a variety of real-world limitations, such as compliance with accreditation requirements, the need to get changes approved by our faculty colleagues, and the cost of putting things in place, what could, would, and should law school look like?
Since this is a blog that talks in part about innovation and innovation processes, I thought that readers might be interested in what I and I alone am responsible for so far as my vision of innovation in legal education. Call what follows “My Law School,” or “MadisonLaw,” version 1.0, meaning that I have undoubtedly missed things, mischaracterized others, and added in unnecessary stuff. Much of what follows owes its inspiration to colleagues near and far, both in space and in some cases in time; I will not cite to them or otherwise annotate this sketch, even though the provenance of many of these ideas will be reasonably clear to many. As a last preliminary note, it will quickly become clear that this is almost entirely infeasible as an actual working model of any existing law school. It is what I would build and what I would do, if I had all the time and the resources in the world. Give me $200 million (substantially less than all the resources in the world, but still a lot of money), and (as Jackie Gleason once said) away we go.
First, some premises:
1. The idea of law school still makes sense. That is, there is a discipline called “law” that can and should be both taught and studied in a post-graduate, university-based institution.
2. A law school program should be grounded in the body of knowledge that defines the discipline and in corresponding disciplinary habits or faculties of mind. Practices/praxis and the ethos of the discipline are likewise important, but knowledge, practice, and ethos are three interwoven parts of a single fabric. Call them “knowing,” “doing,” and “being.” None of them should be prioritized over the other two.
3. A law school should be guided by a sense of what the products of law school should be.
a. Scholarship is one essential product. I list it first so that it’s not forgotten in a discussion of academic programming for students. It is certainly possible to organize a law school that does not identify scholarship as a key product, but such a law school does not belong in a university. Law was one of the handful of disciplines that has been taught continuously in universities since those institutions were invented more than 800 years ago. I see no good reason to abandon that tradition.
b. “Graduates” are essential products, but it’s important to differentiate them. The proportion of law school graduates who start careers as practicing lawyers has been falling and, in my view, will continue to fall. A law school should be preparing students not only for service as practicing lawyers but also for careers in adjacent fields — including business, government service, and not-for-profit service. And a law school should be preparing students to direct their own careers, as much as possible, rather than respond to the winds of change that blow through employment markets.
Putting the same case somewhat differently, the communities and people that a law school’s graduates serve are a law school’s products of sort, perhaps indirectly and perhaps directly. Recognizing changing employment markets for new graduates means recognizing changes in the demand for what have been called “legal services.” People (and firms, and governments) still need legal services and likely always will, but increasingly they do not need lawyers to provide them — at least not in the numbers that they once did, and/or not at the prices that they were once willing to pay. Any particular law school therefore has choices: The school could focus on supplying the market for lawyers (which, increasingly, is flat), or on supplying the market for legal services (which, increasingly, is booming), or on supplying some combination of the two. I vote for some combination, for reasons that I’ll omit here.
Last (within this subheading), I’m fully aware that market metaphors here fail to grasp some essential elements of law, law practice, the legal profession, and their places in broader communities. Law and lawyers embody a set of shared values and ideals, and in meaningful respects law schools should be accountable for ensuring that those things are taught and learned effectively. But we prioritize conversations about values and ideals at the risk of ignoring the brute facts of markets and money. Any vision of legal education has to respect both narratives simultaneously.
4. Legal education should both emphasize the distinct value of studying law but also embrace its inherently interdisciplinary and heterogeneous character. Legal education should borrow effectively from management education, information science education, and liberal arts education — among other fields, and it shouldn’t be afraid both to undertake dramatic renovation and to experiment with new strategies that may or may not succeed. In part this represents service to our students; see 3(b) above. In part it also represents competitive necessity: Law schools cannot justify themselves competitively on the ground that law is in any respect “special” or otherwise immune from broader market trends.
5. The quality of a law school’s program depends in large part on its underlying human capital — its students and its faculty. Before going into courses and curriculum, I’ll briefly describe who I think belongs at the school.
a. Students. The total number of students per entering class should be no more than 100. That’s an arbitrary number; it could be 120 or it could be 80. The point is that the class should be small enough that every student can be acquainted with every other student. The smaller cohort also keys into a portion of the teaching program (below) regarding course size.
No student should be admitted to the school until that student has completed at least two years of non-academic post-collegiate activity of some sort. Grad school would not count; any kind of sustained work or volunteer experience would count. Anecdotal observation strongly suggests that students with some life experience make better students, make better lawyers, and do extremely well in the job market. Some higher quality data from law schools that have moved toward this model (notably Northwestern) suggest that it has some empirical foundation. Also, no student would be admitted without completing an interview conducted by at least two faculty members (this borrows from medical education). I’d apply this requirement even with respect to students who aspire to careers in scholarship.
b. Faculty. Every faculty member should be prepared to and willing to conduct substantive scholarship and to teach in any aspect of the curriculum. There would be no dedicated faculty corps for legal writing or clinical education or for any other dimension of the program devoted in principal part to “skills” or “competencies.” I wouldn’t necessarily put a premium on faculty members who had practiced law or worked professionally; in many cases that kind of experience can be deadening both in the classroom and in scholarship. And I wouldn’t necessarily put a premium on faculty members with formal interdisciplinary or multidisciplinary training (JD/PhD, JD/MD, JD/MBA). I would put a premium on faculty members who are genuinely and thoroughly committed to integrating the practice of scholarship and teaching, and who in their teaching are genuinely and thoroughly committed to the whole preparation of each student, through substantive knowledge, practice, and ethos. (These people would likely command a premium in terms of compensation. My vision is very explicitly a “money is no object” vision — although if I were to price this out, I would want to cap total student costs per year at 20k or less. That’s an arbitrary number; it could be a little more or a lot less. Yale’s School of Music received an endowment that permits the School to offer master’s degrees to every admitted student for free. Making my vision of law school work would require a substantial endowment — likely well over $150mm — because there is no way that student fees would pay for it.)
The program itself:
1. Length. I’d grant the JD degree after 2 years but not permit students to sit for a bar exam until the end of year 3 — or even year 4. Students who obtain the JD after 2 years would have an open-ended option to re-enroll at the same law school — or any law school using the same format — to complete the supplemental pre-bar exam training. And the pre-bar exam training might be situated within law school (via clinics, or externships, practicums, and the like) or outside, in certified, supervised live-practice settings where students are paid if they are working.
2. Format. The academic year would be structured around quarters (10 week segments), offered year-round (i.e., Fall, Winter, Spring, Summer). If the administrative structure of the university made that system infeasible, or if it proved to be a barrier to productive student engagement with schools and departments outside the law school, then a semester structure would be OK, but one or more “short session” (2- or 3-week terms) should be built in to the program, between the main semesters and/or as mid-semester breaks.
3. Content.
a. Year One: This would be mostly classroom-based work, but formatted so that simulation/role-playing, live experience interaction, and plain old field work would be a regular part of teaching. No classroom group would be more than 20 students. (Some kinds of online/digital/recorded content delivery would be OK, but the core of the model would be closer to a tutorial / seminar format.)
There would be courses on governance (interdisciplinary blends of what is now constitutional law, civil procedure, and introductory administrative state, plus material on institutional design and political theory), on resource creation and allocation (replacing contracts, property, IP in part, and some of torts, and including foundational work in law and economics and cultural theory), and on civil and criminal justice (including theories of retribution and restoration). In total, those would provide three year-long substantive “tracks,” which would be designed to interweave with one another rather than to constitute three separate and independent silos.
There would a year-long track on institutional design and organizational behavior, to introduce students to business, government (administrative state), and non-profit basics.
There would be a year-long track on leadership and personal and professional development, some but not all of which would be directed to ethical / identity formation issues. (This is an area that law school systematically ignored for decades, because law firms preferred to take “unformed” graduates and “form” them in their own image. Law firms no longer do that, and if law schools do not fill this gap, then we are literally dumping unformed graduates on a world that is all too happy to exploit them.)
There would be a year-long track on intersections between law and technology (both computer technology and life sciences technology), teaching partly issues of substantive law and policy as those are now heavily influenced by technology, but also issues of theory and economics (the logic of networks and codes) and topics of law and design (how law is in part a designer’s discipline and how technology is an important tool in the designer’s kit).
There would be a heavy, even intensive emphasis on cultivating interpersonal skills, particularly those that relate to service (serving and counseling clients, serving communities, serving the public good) and leadership (not so much “project management” and execution skills, but developing and using one’s own voice), and on communication skills, particularly writing skills. Every student would produce one 3-5 page written work product every week throughout the year. The curriculum would be coordinated so that these assignments and projects were distributed across the different domains.
There might be periodic examinations, and there might be year-end comprehensive examinations.
b. Year Two:
This would be grounded heavily in practicums and live experience-based teaching, blends of classroom reflection and analysis, supervised by full-time faculty, and in-situ performance and guidance, likely under the direction of well-trained practitioner/partners (these might or might not be practicing lawyers and judges). These experiences could be organized around substantive themes: Wealth and power (an introduction to major portions of the regulatory state — health law, elder law, and tax law, for example); justice and dispute resolution (both public and private); international and global markets (again, both public and private effects and practice); law/business/finance, etc.; innovation processes and practice. That is a *non* exclusive list, and even these clusters are just tentative, preliminary thoughts. In effect, though, it would be a series (or a collection) of inter- and multi-disciplinary electives. Teachers would be encouraged to include content from disciplines outside of the law school.
Students would have to complete some number of “rotations” through a menu of these clusters. The lessons of year 1 with respect to leadership and personal development in organizational/institutional context would be explicitly woven into the pedagogy of each “rotation.”
The intensive writing experience would continue — one short paper per week.
Students would take three quarters of academic programming per academic year; the summer between year 1 and year 2 would be, as it is today, intended to provide students with some kind of so-called “real world” work experience.
At the end of year two, students would have to pass a set of comprehensive oral and written exams.
And then they would receive their JDs.
c. Year Three (and perhaps Year Four):
The law school would be one of any number of possible vendors of “clinical” or practical / experiential education, some number of hours or weeks or types of which would be required before a JD recipient would be eligible to sit for the bar exam. Not every student would have to participate in a law clinic (or two or three), but clinics would be included in the design. “Incubators” and “labs” and “model law firms” for law students (with live client or live business partner or technology developer etc. etc. interaction, and with appropriate supervision) would also qualify. Experiences supplied by accredited and regulated non-law school vendors would qualify; a student who worked at a law firm as an unlicensed, supervised, junior practitioner would satisfy the requirement. Some of the inspiration for this comes from the Canadian “articling” model and some from the medical school MD model. The keys to making it successful, however, would be ensuring that the experience is pedagogically meaningful (making it superior to what I understand to be flaws in the articling model) and not economically burdensome to the student (making it superior to flaws in the medical education model). Students could opt to satisfy the requirement by working professionally — and getting paid. Or they could satisfy it within the law school setting — and pay tuition.
Students who receive the JD degree would not have to complete these “experiential” years directly after completing the degree.
The law school would offer supplemental substantive post-JD programs in addition to the above. Some might target continuing education needs of the profession. In addition, after receiving the JD, students who aspire to scholarly careers could continue through “scholarly rotations” offered by the faculty, with supplemental writing and examination requirements leading to a JSD or possibly (in conjunction with other university departments) to a Ph.D. Students enrolled in the post-JD scholarly track might apprentice as teachers in the JD program, partnering with full-time faculty (rather than handling classes on their own).
That’s enough for now, I think. To be clear, this is not a model of how all law schools should be organized. It is only a model of one law school. Some of its proposed parts may be more attractive than others; some may not be attractive at all. I’ve thought long and hard about the number of students, for example, and whether there would be a way or a reason to scale this so that more people could be accommodated. Right now, I’m not persuaded that there is. What I’m trying to do by putting this out on the blog is, frankly, to crowdsource a bit of my task force’s work. Walt Kelly said, “We have met the enemy, and he is us,” and some people suspect that he was referring to law professors. I’m hoping that he was wrong.
Thoughts?
[This is part of a five-post series. In all, the posts are: