For a New Year: An Invitation Regarding Law, Legal Education, and Imagining the Future, Part III

Consider a possible constitutional (small c) convention about the future of law and the legal profession, and legal education in particular. The first two posts have described the case for such a conversation. [Part I, here] [Part II, here] This post concerns the subject matter. A later post will consider the coalition of potentially interested participants.

Five themes – targets — dominate continuing conversations about the state and future of legal education, and by extension about law and the legal profession as a whole. My primary goal in this post is to set out those themes in a thoughtful way, to suggest that they should be interwoven in future-oriented discussions, and in doing so to promote the production of actionable plans for institutional designs to support (i) prospective lawyers; (ii) law teachers, faculties, and schools; (iii) institutional leadership in higher education, the bench and bar, regulators, and organizations and institutions that consume and rely on law and legal services; (iv) developers and deployers of legal tech, legal operations, and legal services organizations; (v) the global legal community; and (vi) individuals and communities that rely on law, lawyers, and legal institutions for health, safety, security, and prosperity.

There is a purposeful sense in which legal education stands in here for higher education generally, but that series of posts will have to wait.

The five themes are:

1. Economics.

Holding all other aspects of today’s legal system constant, the economics of training for and entering the profession are terrible. The number of law students in the US as a whole still exceeds the number of entry-level positions that pay enough to permit students comfortably to service the debt currently associated with obtaining a law degree. Institutions and mechanisms that underwrite that debt are fragile; I regularly hear alerts from various sources that subsidized loans are about to dry up.

The economics of operating a law school today are terrible. With high fixed costs, smaller student bodies, and limited endowments, many law schools today fail to cover their operating costs. That’s true despite the fact that the economic premise of the Langdellian law school is enormously favorable to the school and to its university parent. Twentieth century law schools were (and most 21st century law schools today still are) in the mass production business. In the required first year course, one law professor addresses a classroom of between 50 and 100 students, with trivial amounts of one-to-one tutorial style teaching. Pedagogically, that’s a terrible model, but in the 20th century law firm world, it did the job.

Today, as the professional world gets more pluralistic, the failures of the pedagogy are exposed – and still, many law schools can’t turn an operating profit. I don’t assume that law schools should turn an operating profit; Ph.D programs in the humanities and the social sciences don’t turn an operating profit, either. Yet the university underwrites them anyway, for the most part. I’m fully aware of the traumatic changes in doctoral education and professional advancement in arts and sciences. The point is that universities traditionally offer history degrees because of the cultural importance of research and teaching in history, not because the history department is a profit center. What does more pluralistic law school curriculum and pedagogy look like, and how does that get paid for?

The economics of access to legal services and justice are notoriously bad. Far too few individuals and small businesses can afford conventional representation necessary to enable them to obtain justice (criminal cases), and/or access to government services and benefits, and/or fair and timely resolution of even modestly-sized disputes. Meanwhile, at the top of the economic pyramid, the economics of law practice have shifted decisively in ways that favor large institutional clients over their outside counsel, largely because the expense of compliance and even moderate-size civil litigation has gotten so large. Will more large law firms wobble in the next decade? Will more large firms disappear, or reorganize other than as law-only partnerships?

There is no reason in principle that these overlapping and intersecting concerns will align in a way that gets the right people in school, trains them in the first (and reasonable cost) ways, and puts them to work helping people and communities in need. Management-oriented professionals and provosts look at these problems and ask: what’s the value proposition for new lawyers? What’s the business model for law schools? Welfarists look at these problems and wonder: How should the cost of justice – a public good – be distributed across society? Are there ways productively to align those questions and answers, and other relevant ones?

2. Technology and organizations.

Macro changes in the institutions of law practice and legal services are driving micro changes to ways in which lawyers practice and in which legal services and legal information is provided to society and to clients. The sum of what follows is simply but importantly a story of institutional heterogeneity. Changes at both macro and micro levels drive economic fragility and instability (theme 1) but they also drive changes in what legal services are needed, where they are needed, and who supplies them and how (this theme 2). What’s cause and what’s effect here is a complicated story. My point here is only that the macro changes are happening, and they’re accompanied by substantial effects at micro levels.

Changes are partly (and obviously) technological, focused on the pace and scale of advances in digital networks and data collection and modeling. Larger-scaled deployments of technology across all domains of legal services mean that the productivity of a given lawyer in a large organization increases – thus decreasing the need for additional lawyers, assuming fixed or nominal rates of growth overall. Faster than we might wish, advances in computation will make complex legal information and services accessible to many people – firms and individuals – at relatively modest cost.

Changes are partly geographic. Even local business and governments are intertwined with international and global partners to a growing extent. The legal work, the people doing the work, and their professional parents (both service-side and client-side) no longer need to align geographically to the degree that was long assumed. Large organizations of all types are re-deploying employees and partners around the US and around the world in new patterns. Small organizations are rarely isolated from the behaviors of larger players. In Pittsburgh, where I live, lawyers work from home offices, telecommuting to offices in West Virginia that partner with colleagues officed in Menlo Park, supporting clients located in Wisconsin. The “local” in the local legal profession supported by the local or regional law school is eroding, slowly but steadily.

Macro changes are partly organizational. Large law firms are slowly “de-leveraging” away from the Cravath model, partly driving and partly responding to demands for greater efficiency and accountability by large corporate clients. That dynamic addresses only one facet of the profession, but spillover effects have large impacts on employment markets for new lawyers and for innovation in legal tech and legal operations, among other things. Change of all sorts is diffused through the profession and through society at uneven rates.

Let us not overlook counterpart technological, geographical, and organizational changes that are transforming higher education generally, meaning the universities in which most US law schools are housed.

Amidst all of this, in what respects (if any) should the 20th century JD program continue to be the default mode of professional training for new legal professionals?

3. Professional preparation.

For at least 25 years, dating to the MacCrate Report, the organized bar has reliably pushed law schools to do more to prepare new lawyers to enter the profession with basic training as practitioners. The contemporary version of this argument, expressed largely in the Carnegie Report of 2007 and in recent changes to ABA accreditation standards, focuses largely on how law schools should build “experiential education” into their curricula.

Law schools have accommodated these arguments in part but also have deflected them in part, balancing them against the traditional role of professional education in developing critical analytic skills. The accommodation may be expansive, introducing new lawyers to technology-deployment skills and management and business skills. The training argument may expand beyond the traditional three-year degree, asking more broadly about the character and role of professional legal education. Should legal education continue to be centered exclusively in law schools? What about technical schools of narrower sorts, or undergraduate education? Should law schools continue to be parts of universities? If not, in either case, what does a more plural institutional environment look like?

A narrower accommodation focuses on traditional legal education as preparation for the bar exam. For many law schools, and especially for public law schools, bar examination success rates offer important measures of public accountability, to public funders and others, and institutional accountability, to Provosts and boards. There is some slice of legal education that properly prepares graduates to practice law in some traditional or conventional sense. But substantial numbers of graduates today will never practice or will practice only for a nominal length of time. How should resources be allocated to prepare all graduates for the great diversity of careers – even law-related careers — that they are likely to enter and choose over time?

4. Professional identity.

The Carnegie Report also consolidated and accelerated a movement among legal educators and practitioners to cultivate a mode of legal education clustered around identity rather than professional practice. The long-standing questions that framed the legal profession and law schools — “what should (new) lawyers be able to do, and what should they know?” – are supplemented, even displaced in part, by new questions: What or how should (new) lawyers be? The Carnegie Report framed these in terms of “professional identity,” a path that often leads to ethics, professional responsibility, service, and access to (and provision of) justice and that also leads to leadership development and emotional intelligence, among other things. Each of those topics is itself the subject of diverse interpretations, approaches, and implementations. Does “leadership for lawyers” take us back to a 19th century vision of the citizen lawyer’s role in the community? Does it offer training and support for lawyers who are likely to become manager/leaders of modern legal businesses, both large and small? Does it entail skills in strategic development and visioning that are often little in evidence in modern organizations of all sorts – and even in community engagement and personal development? In the pathways to professional development and practice, and in a professional environment that is increasingly heterogeneous, where do those ideas (and ideals) belong?

5. Law itself.

Economic, organizational, and technological changes open windows onto dialogues about the nature of law, the rule of law, and the character of legal systems. That’s not (only) a comment about the character, practices, and durability of formal, long-standing legal and political institutions, that is, branches of government, the administrative state, international legal institutions, and so on. It’s also a comment about the relationships between law and governance. I sometimes casually contrast the accepted story of the American Founding Fathers of the 18th century with the emerging story of the Founding Fathers of the 21st century: Gates, Jobs, Bezos, Brin and Page, and Zuckerberg. Naming those names is a partly-serious way of capturing an obvious but critical and enduring question about the rise and power of technology generally and platforms and algorithms specifically in mediating – even directing, in some cases — an enormous swath of contemporary human experience.

Those are governance challenges, not merely legal challenges. Governance challenges in the digital networked space are only going to get larger and more complex. Scholars have begun to provoke us by synthesizing visions of lawyers and the legal profession in this newly-mediated environment with a vision of the role of law in society (should each platform get to claim the power to offer a law-ish ruleset?), and by re-drawing links between the character of law and human flourishing in its broadest sense. Much less work has been invested in the institutional payoffs of those conceptual questions. What should a trained lawyer be able to do and know in this new environment? Does it continue to make sense to frame that question in terms of “lawyers,” a word that evokes a very analog sort of problem-solving, dispute-resolving, counsel-providing humanistic modality? Should we discuss that question and its answers in descriptive as well as in normative terms? Does the 21st century need “law schools” as those were conceived in the 19th century and grew to maturity in the 20th century? Maybe it does. If so: why?

Part IV, tomorrow.