Legal Education: Refining and Extending the Vision

Last week’s post on the future of legal education – “One Vision of the Future” – in many ways didn’t go far enough. So here is a refinement and extension. I like “things,” and here I am designing a “thing.” Version 2.0, if you will.

As with Version 1.0, the point of this exercise is not only to engage in some science fiction regarding what we do.  It’s to see if the science fiction leads to recognizing some things that we might do today that would help our students and the profession.

The original vision framed a small, integrated 3-year law school program that made some substantial changes to the way things are done today. The JD degree would be a two-year program, but sitting for the bar would require a JD plus substantial “experiential” training, perhaps in a law school, perhaps elsewhere. The two-year program would be restructured. The first year would focus in part on “content,” though in interdisciplinary blends rather than in Langdellian silos, and in part on tracks focused on personal/professional development, on technology and design, and on business, organizations, and management. Layered throughout would be heavy emphasis on communications skills, particularly writing. The second year would consist of a series of elective courses organized thematically — international issues, criminal justice issues, innovation and entrepreneurship issues, law and power issues, urban policy issues, etc. etc. Each “course” would be an experiential/classroom blend, with extensive use of simulations and role-playing and live-party interactions and a continuation of the focus on writing and communications skills. A post-JD year — required for bar admission — would feature clinics, labs, incubators, internships, practicums, and so on. The post-JD year would also include modules or tracks devoted to scholarship and training future faculty, leading to whatever extra degree or certification were required for admission to the professoriate.  For them, a post-JD year might run into more than one year.

I’d hire only faculty who would both teach and write “across the curriculum.” There would be no faculty devoted only to legal writing or to clinics or to so-called “doctrinal” or “classroom” instruction. All scholars would teach; all teachers would write. (Not specified in the original post: Practitioners, judges, and others, as part-time adjunct faculty, would co-teach in partnership with full-time faculty.)

It’s a high-cost “boutique” model that would have to be subsidized to a substantial degree by an endowment.*

Here is version 2.0: We could unbundle legal education. Why do all of the functions of a law school, even a law school of the future, need to be provided in a single institution, by a single group of faculty?

What follows is much less prescriptive than version 1.0.  Version 1.0 was (is) a first draft of what I would like legal education to be.  Version 2.0 is closer to what I think is, in fact, coming.

The JD degree is essentially a certification by some body — today, the integrated law school — that students have completed a certain number of credits in a certain knowledge domain. The content of some of those credits are mandatory (legal ethics or professional responsibility, for example); the content of most of them are optional. Let’s imagine for now that the certification function remains applicable and relevant, but that students could obtain certification from the appropriate institution by virtue of having completed the course credits — or other activities — as they wish, in whatever time frame that might be specified (two years sequentially. Or within a three- to five-year window, perhaps?), and in whatever venue or venues they preferred. That institution might be a university. It might be a stand-alone school. It might be a state bar association or the Supreme Court of a state. It might be located online, or outside the US, or both. It might be something else entirely.

Some or all of the propositional knowledge could be obtained online. MOOCs, better organized than they are today, might serve, but MOOCs are only one way of organizing online information delivery. Writing and communications education could be obtained in writing academies (for example) that would serve not only future lawyers but also future engineers and managers and schoolteachers, offering both general writing instruction and specialized versions for different professional disciplines. Leadership and personal and professional development training could be supplied by extensions of existing dedicated programs that provide exactly that, or by business schools, or by colleges, or by some combination of these things or by new ones. Experiential training, the sort of thing provided by today’s clinics, could be supplied by apprenticeships. “Elective” modules in different disciplinary domains could be provided by specialized providers within each domain; overlaps among domains and creation of new domains would be expected.

Designing pathways through this stuff so that the resulting certification looked more like an educational program and less like shopping for legal education at Costco, with lots of disconnected chunks of things dumped in your educational cart, would take some time and care. A “law school” dean, for example, would be a curator or brand manager much more than an educational leader, strategist, and visionary.  A given “law school faculty” could be far less than a group of actual classroom teachers and a “company of scholars.”  The very word “faculty” implies a group of people bound to an institution.  But the institution would be little more than a brand and a certifying agency.  Individual teachers/scholars would certainly exist, but they would be free agents supplying individualized teaching and learning services, certified as “acceptable” (or better) by some other authority. (Readers familiar with the history of higher education will note the “back to the future” character of this.  It reads very much like Bologna in the 12th century – and something like Clark Kerr’s semi-serious description of a university as “a series of individual faculty entrepreneurs held together by a common grievance over parking.”)  Providers and consumers of educational resources would create and share pools of knowledge and expertise across geography and time (teachers in one venue, perhaps live and perhaps recorded, could work with students in different venues and perhaps at different times) rather than meeting in a single place at single time under the umbrella of a single school.  The idea of cohorts of students moving in sync through an institution, as a “student body,” would fade away.

Undoubtedly there would be a lot of trial and error. Certification authorities might end up competing with each other. Bar admission, if it remained a necessity, could specify certification at some level. Clients and consumers might demand higher levels of certification, whether for prestige purposes or quality purposes or both.  Prestige hierarchies would not go away, but they and their constituents might move around a bit.

My guess right now this: If my Version 1.0 of the future of legal education is a high-priced fantasy — my own upscale, romanticized version of how I would spend a lot of money — then my Version 2.0 is closer to the low-priced version of what I think will actually emerge, over some unknown period of years.**

Thoughts?
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* I didn’t include citations the first time around, but Version 1.0 owed debts to Sam Estreicher and Dan Rodriguez, to Yale’s School of Management and to its undergraduate Directed Studies program, and to Jack Schlegel.

** After I wrote this but before I posted it, I came across this post about a recent talk on the future of universities.

[This is part of a five-post series. In all, the posts are:

2 thoughts on “Legal Education: Refining and Extending the Vision

  1. I really appreciate the thought you’ve put into both these visions. I just want to add some cautionary notes about the application of market principles here:

    1) The quest for “efficient decomposition” of institutional functions has often come to health care, with mixed results. In the case of ambulatory surgical centers spun off from hospitals, it seems relatively innocuous. But it can be an excuse for clever profit-maximizers to cherrypick the well-compensated services (or well-insured patients) and dump the money-losers (which are often quite socially valuable) on non-profits or state institutions. For example, single-specialty hospitals often used the whole-hospital exception in the Stark Act to set up cardiac & orthopedic centers that took in privately insured and Medicare patients, while shunning Medicaid patients and the uninsured. Few are compensated or motivated to get podiatric care to diabetic invalids, but many can be well-paid for the amputations that all too often ensue from lack of primary care.

    2) The application to law schools might be: certain schools simply drop scholarship, career services, libraries, and community service, like the specialty hospitals dropped unprofitable “service lines.” The lean, mean schools do only what they are paid for: teaching. Whatever “price point” they come to will be the benchmark for the rest of the schools, which are pressured to drop scholarship, career services, libraries, and community service.

    3) Some will say it is unfair for students to pay for services they rarely use, or don’t directly benefit from. On the other hand, if you combine the arguments of Simkovic/McIntyre and Philip Schrag on income-based repayment, it seems as if a) those who are financially able are effectively paying some portion of the degree’s earnings premium toward scholarship, career services, libraries, and community service, and b) those who are not able to do so can use income-based repayment. Simkovic estimates the latter group in the range of 15 to 25%–and that includes graduates of many schools at the very bottom which I think nearly everyone believes should have much, much lower enrollments. I would be willing to wager if you constrained enrollments at very bottom tier institutions (or IBR eligibility based on bar pass rates), you’d have an even better set of outcomes.

    4) IBR is an indirect government subsidy to education, but a well-deserved one, particularly since some estimate that the government is making a good deal of money from student loans given their high interest rates. Moreover, much legal scholarship amounts to objective, impartial advice and problem solving that is desperately needed in many fields, and simply will not be provided otherwise. The more one relies on an “eat what you kill” model of scholarship, the more you will see dynamics like these: http://billmoyers.com/2013/10/27/the-scholars-who-shill-for-wall-street/

    5) You suggest that “Certification authorities might end up competing with each other.” Are there examples of this type of competition working well? The one that comes to my mind is the rating agencies in the US “racing to the bottom” to rubber stamp AAAs on MBSs in the mid-2000s. I think Jeff Manns (among other scholars) has shown how difficult it is to reform that system.

    6) The competing certifying bodies’ tendency toward a “lowest common denominator” also mirrors the temptations of the “faculties” you describe. Why would someone want a JD from a place that required a paper, or clinical training, when they could get the degree from somewhere with a stripped down model?

    7) I suppose you may have some confidence that “the market” will reward those who go to rigorous schools. I don’t share that confidence. As Peter Capelli of Wharton has observed, the degree of “training and experience” needed by an entry level worker is a topic of much contestation. It is always in the firm’s leaders’ interest to characterize “law students these days” as unqualified, in need of ever more training, not worth a penny of compensation. They’ll take that line on nearly anyone, whatever their real level of training. And larger economic dynamics have given them the power to do so.

    8) That pressure is all the more intense as law firms compete on “profits per partner” to lure rainmakers away from each other. If a firm’s partners expect to make $600,000 a year, they may have a budget that lets the firm absorb some particularized “training costs” (i.e., parts of the job that large corporations are now refusing to pay for).* If they want to be in the $1 million+ range, they’ll be enamored of the model pushed by the 2-year law school crowd: convert the third year of law school into free labor for and some training by the employer. (And I’m not just critiquing partners here: the real drivers are the CEOs at clients, who average millions in compensation.)

    9) On the one hand, that “third year of free labor” model may be better at the time for any given student working in it (particularly those bored by the third year of law school), and obviously are a cash cow for the employer(‘s top lawyers) and its clients(‘ top managers). The question, though, is: where would the labor have been done without such a model? Are we simply cannibalizing, say, 2nd and 3rd year associate work into the “free year?” I have not seen good answers to that question. It might feel great as the “1st Year Trainee” to get a “break” and do challenging work; it’s probably not so great 1 or 2 years later, when another “free” group comes in and starts cannibalizing the one-time trainee’s workload.

    10) My sense is that worthwhile health, education, and legal systems resist a purely market logic. Good doctors cannot be entirely motivated by profit. Good lawyers must have some sense of public purpose and community duties. And all those points apply a fortiori to educational institutions. They may be troublingly inefficient now, but the current constrained market logic now prevalent in “buying a class” for USNWR ranking purposes is applying cost-discipline across the board. I very much fear what less restrained market logic would bring here. Just as I know that in health care it would be devastating for a large portion of the patient population, I think it would have many unintended consequences that benefit few outside the top 1%.

    *The recent “doffing and donning” controversy at SCOTUS shows just how passionate firms are about defining away parts of jobs. http://www.reuters.com/article/2013/11/04/usa-employment-donning-idUSL2N0IP19X20131104

  2. I found both of these visions to be appealing for different reasons – and, admittedly, I find the Vision 1.0, as unlikely as it might be to come to fruition, particularly appealing. If you think we are headed more in the direction of Thing 2.0, (and from the discussions we are having at A&M, I would be inclined to agree with you in large part), I’m wondering if there might be ways to incorporate certain aspects of Vision 1.0 therein, perhaps creating a certain Thing 1.5. For example, in the culling together of various aspects of a legal program, could the content be culled together in strong interdisciplinary blends that are focused, as in 1.0, on personal/professional development, technology and design, and business, organizations, and management? And(or), might there be a way to use expanded and unbundled 2.0 programs to finance a smaller, core program that has elements of 1.0? In sum, I am wondering whether it is possible to pull some of the qualities of 1.0 into the more realistic 2.0.

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