Law, Legal Education, and Imagining the Future: The Project Continues

“The Futures of Legal Education: A Virtual Symposium” is the title of the program convened by Dean Dan Rodriguez at Prawfsblawg for the month of March 2018, eliciting critiques of and extensions of the ideas organized in the provocations posted in December 2017 as “An Invitation Regarding Law, Legal Education, and Imagining the Future.” [Part I, here] [Part II, here] [Part III, here] [Part IV, here] [Part V, here] [And the piece in full, as a single document, from SSRN]

The symposium is organized under the “2018 Symposium: Future of Legal Ed” tag. I will collect highlights from all of the posts here and in later posts.

So far:

“I’d propose that we think more about the real barriers to access to justice. To be sure, many law schools could do more clinical work to help the poor in their community—but let’s always remember what happened to Tulane when they offended Louisiana polyvinyl chloride barons. Legal scholars can do more to identify structural injustice—but let’s also remember the BigLaw fixers who stand at the ready to deflect even minimalist reforms.

We can’t formulate solutions together if we don’t grasp a common set of problems. We can’t imagine a better future without an honest accounting of the present. But once we do, I think we can develop some visions for better legal practice ….” (Frank Pasquale, University of Maryland)

“For lawyers to have distinctive value in an artificial intelligence world, it will no longer be sufficient for law schools to produce graduates adept at “thinking like a lawyer.” This will be necessary, but not sufficient. Legal education will increasingly have to help produce graduates who are capable at ‘being a lawyer’ – providing great client service in the interstitial spaces where they help clients explore among a range of legal options.” (Jerry Organ, University of St. Thomas (Minnesota))

“As law schools look to the future, we need to ask these very basic questions: Who does the legal profession serve? Who should it serve? How can we design educational paths that graduate professionals capable of offering those services? Is it time to abandon our cherished belief in a general law degree, rather than one that allows focus and specialization? Is it time to recognize that individuals with an appropriate college degree may be capable of offering a wide range of basic legal services to individuals—just as they currently offer law-related services to businesses in their compliance, contract management, and HR roles? What other educational paths would help fill the gap in legal services?

As the price of legal education continues to climb, the percentage of graduates employed in lucrative jobs stagnates, and enthusiasm for law school wanes, I fear that our profession will lapse into ever-greater service to elite clients. We will continue to feel good about high-profile pro bono efforts, but pro se litigants will continue to flood the courthouses while other individuals fail even to seek justice. How can we turn this tide?” (Deborah Merritt, Ohio State University)

“The 1L year looks pretty much like it did when I started law school almost 40 years ago, let alone when my dad started law school almost 70 years ago or my grandfather almost 100 years ago. Torts, Contracts, Civil Procedure and the rest taught in large sections with some legal writing thrown in remain the constant. 2L offers some opportunity for practical experiences with a few credits for clinical classes or moot court and 3L continues as an amalgam of electives while looking for a job.

This aversion to serious action addressing the critiques of contemporary legal education that are bandied about is understandable if not lamentable. For example, the dreaded bar exam, our profession’s barrier to membership, is stuck in the past with testing by and grading of antiquated essays and multiple choice questions rather than modern testing devices assessing capability to serve clients. And isn’t that ultimately the rub? Are we preparing lawyers capable of serving clients or are we educating for something else?” (Luke Bierman, Elon University)

“To address wide justice gaps, keep up with technological innovations, and account for an increasingly global marketplace for all products and services, including law, changes will indeed need to be more constitutional in nature. That does not mean that there are not strong aspects of our current system that should be retained. But while we may all agree that we don’t want to toss the proverbial baby with the bathwater, we may not agree on which is which. Complexity can be, well, frustratingly complex.” (Kellye Testy, LSAC and the University of Washington)

“In my view, law schools are unlikely to be up to the challenge of effecting necessary change absent a deliberate choice to hire people who provide some strong indication that they both disagree with major aspects of law school culture and appear willing to do something about it. As they say in Washington, D.C. ‘personnel is policy.'” (Michele Pistone, Villanova University)

“Against this reality, law schools still look like something out of the early-20th century. They teach an old-fashioned curriculum in an old-fashioned way. They are extremely conservative, focusing on the transmission of legal content modelled on established law schools from the 19th or early 20th centuries, in order to appear ‘rigorous’ and ‘professional.’ Apart from some worthy experiments undertaken by motivated individual academics, the most significant innovations within law schools in the last twenty years are: (1) a greater commitment to skills; and (2) some limited use of online teaching. (Although, of course, US schools are waaaaaaaay behind on this front. Thanks, ABA.) As for involving technology in the curriculum, schools rarely commit resources to this arena, preferring instead to engage in a kind of innovation cabaret, creating media-friendly events like two day ‘legal hackathons,’ or offering vendor-sponsored coding electives that provide no long-term value to law students.” (Dan Hunter, Swinburne, Australia)

“I also want to reinforce that leadership matters and that we need talented innovators to lean in and lead. I was a reluctant dean candidate not simply because I needed to be convinced that I could contribute as much in this role—I also had decided I was not qualified.

I worry that many potential leaders, particularly women and people of color, opt themselves out for this reason. I have been going around the country sharing my story and encouraging people who are interested in leadership, but worry they are unqualified, to talk confidentially with me. I have been simultaneously heartened and concerned by the strength of the response—excited to talk with these potential new leaders and worried about how many talented leaders we lose.” (Hari Osofsky, Penn State University)

“Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (‘the provost’) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni ‘politics’ – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss ‘legal education’ tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.” (Mark Tushnet, Harvard University)

“An important first step is taking stock of our core values. American legal education has excelled by teaching a mode of analysis and dispute resolution that works in the world, and I do not see that core mission becoming irrelevant in my professional lifetime. Law schools deliver some tools and skills that are and will remain essential in any future still bound by law and legal norms, and it is dangerous to neglect that core. But we ignore the trends above, and others other participants have framed, at our peril. And although innovation will be non-linear and responses will be varied, I want to suggest a unifying theme:

We must enlarge the scope of what we do to become relevant to a broader universe of people in a complex world and changing profession.” (Michael Waterstone, Loyola University (Los Angeles))

[To be continued]

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