For most of this blog’s existence, I and my co-authors wrote primarily for our fellow law professors. This re-boot is directed instead, primarily, to the legal profession – or rather, to what is now often referred to as the “legal services industry.”
With my change in focus, from time to time I’ll write here about what’s changing and what’s staying largely the same in legal education. My conversations with practicing lawyers and judges tell me that US law schools are still largely “black boxes” to the bar and bench. Even though hiring markets for new law graduates have changed in some dramatic ways over the last decade, those who hire our graduates seem largely to assume that what happens in legal education today still substantially resembles what was happening in legal education 10 years ago … 20 years ago … 30 years ago … even 40 years ago.
In some respects, that’s true! And in other respects, it’s not.
In this post, I want to hit a couple of brief, introductory highlights, to set the stage for some detailed explanations to come.
First, many full-time practicing lawyers aren’t aware of just how much smaller the world of legal education has become over the last decade, in terms of the total number of students enrolled. In very round numbers, the total number of JD students in US law schools has fallen, from about 40,000 in total a decade ago to about 25,000 in total today. Entering enrollments at many US law schools have fallen, too, in many cases by at least a third.
The basic reason is a simple one: there are fewer entry-level jobs for new law graduates. Supply and demand are approaching a new equilibrium. In this excellent and detailed examination, Bernie Burk explores the dynamics of the US labor market for new lawyers.
Second, despite current enthusiasm and excitement around “law/tech” and in-roads that artificial intelligence, machine learning, robotics, etc. etc. are making on law practice and the delivery of legal services and legal information, precious little of that enthusiasm is being reflected substantially in the faculty hiring practices, student admissions practices, or the curricula of many law schools. In some law schools, yes, large changes are under way, but at the institutional level, incremental change is more typical. Likewise, the habits and advocacy of some law deans and some individual law professors have changed considerably, but many, perhaps most, have adapted only at the margins, or not at all.
It’s probably too soon to tell whether large scale change or small scale adaptation is the “right” or “best” approach from the education side. My own view is that the “one size fits all” model of US legal education, borrowed heavily from Harvard’s experience in the early 20th century, is out of date. More institutional diversity is coming, and it should.
Yet that hundred-year-old model still dominates almost all US law school programs today. Equally important, it dominates the mental image that the bench and bar hold of US law schools even where actual education practices diverge from it.
Whenever and however more institutional pluralism takes root at the law school level, it’s unlikely to arise organically from innovative thinking in higher education. On the whole, universities are wired for stability, not change.
Instead, change at any scale will respond to market needs and signals. What does seem clear today is that the uses of the law degree are diversifying, even if employment settings for new law graduates are not changing much. Law firms and law offices are still hiring new lawyers, if in smaller numbers than before. But what new lawyers do today, and are expected to learn today, is not what it was even five or ten years ago. Whether labeled “AI” or “data analytics” or something else, modern technologies are being insinuated into all corners of law, law practice, legal services, and legal information just as they are being insinuated into just about all aspects of everything else, with corresponding impacts both good and bad, and with corresponding needs for critical engagement with them.
As tech scales “out there,” then one might expect that legal education could and perhaps would start to produce new law graduates who are primed to be effective in tech-related spaces, markets, and communities. One possible way to put this point is this: “Law school” could be an exploration of “technologies of justice,” because participate in “technologies of justice” may be a better approximation of what lawyers do today than “practice law.” Could be, but isn’t, at least not today. Or not yet.
That creates some interesting and important gaps between what current law students are getting and what current labor markets seem to need and want. That’s a common ailment. There was a time, within recent memory, when “experiential” learning was the label for the cure. The American Bar Association, some state bars, and many law deans and some faculty have pushed hard to promote “experiential” education for law students, just as in an earlier era they pushed for more “practical lawyering skills” and earlier still, in a different configuration of advocates, pushed for law clinics. But as with any regulator’s art, addressing one challenge may make others more difficult to deal with. Is “experience” enough? I’ll have more in later posts.