The Responsive Law School

US law schools today are subjected to a lot of criticism, much of it deserved. One big chunk that is not always deserved is this: Law schools aren’t sufficiently in tune with the needs of the market. That’s the topic of this post and others to come: What, when, how, and why should law schools care about the market?

For the moment, I set aside other common critiques of legal education, many of which are deserved. That it’s too expensive. That it crushes the souls of aspiring lawyers. That it produces too many lawyers, or too few. That law schools are staffed by underqualified teachers and undertrained scholars. That law schools are staffed by undercompensated adjunct faculty and overqualified PhDs. That some schools focus too much on theory and not enough on the necessaries of practice, while others focus too much on bar exam-readiness and not enough on law on the ground.

I want to focus instead on the problem of what law graduates today are trained to handle and what they’re not trained to handle. I’ll use that beginning to edge into discussion about the future of higher education generally. Narrow start, big finish.

My initial narrowing of the topic is inspired by this excellent recent essay from the knowledgeable and thoughtful lawyer/consultant Mark Cohen. With damning specificity, he writes of an emerging “skills gap” that lies between what is increasingly expected by technology-dependent legal employers (basic tech literacy) and what is generally supplied by the baseline education delivered by US law schools (at best, highly variable tech literacy). Here is his exemplary illustration:

Legal tech courses are proliferating, for example, but few provide a technological use-case , competitive market analysis, design planning, cost/time to develop, etc. Legal entrepreneur courses, another hot offering, are often taught by professors with no entrepreneurial experience and little knowledge of the marketplace. Sexy as these courses might be for students, why not focus on building block courses like business, data analytics, and digital transformation basics for lawyers? These are foundational elements for all lawyers and legal professionals and are marketable.

He is cutting in his estimate of the likelihood that current law schools will get their collective acts together and address this challenge in meaningful terms. He prescribes a vision of law schools as lifetime learning centers, supporting legal professionals in flexible ways throughout their evolving careers. Is that going to happen? His answer: It’s unlikely. Non-US institutions, the private sector, and even governments are apt to do better.

In the back of my mind, I can hear friends and colleagues at any number of US law schools, many of them Deans and directors of law clinics and “labs,” saying to themselves (and perhaps out loud) that Mark Cohen hasn’t heard of my law school. My law school is innovating like crazy and turning out new technology-literate graduates by the bucketload. So let me punctuate this introduction by saying that I think that Mark Cohen is basically right in diagnosing an emerging “skills gap.” I see it in my own students and in graduates of my own law school. And I doubt that my school is unique.

Still, as I read his case and in defense of my innovative colleagues, he’s not talking about this law school or that law school. He’s talking about the system of legal education that we operate today – the Langdellian paradigm that dominates all but a handful of US law schools (and more than a few non-US law schools), with clinical and legal writing bells-and-whistles bolted on. He’s also basically right in diagnosing (if underselling) the fact that it’s a skills gap at the global level. This isn’t a flaw only in US law schools or only in the Langdellian paradigm. It’s a flaw in legal education around the world. Much as Americans like to paint Langdell as the bad guy who haunts us still (and he does), Langdell’s legacy is an American symptom of a bigger problem.

If he’s basically right, then why the long post, partly in response? Because where I think the critique goes wrong – where it colors outside the lines, when I believe that a more dramatically different painting style would better suit – is its implicit argument about markets and schools. For all that ails legal education around the world, and the ailment is far larger and runs far deeper than a skills gap, a point that I explain in much greater detail in this earlier essay, the cure is not implementing a management principle aimed at reengineering the institution to supply graduates that the market needs. That is not the problem that we – as law professors, law schools, and legal professionals — are facing.

To be clear: I do want my students to graduate with skills and ambitions that help them start contemporary careers, start those careers productively, and continue on productive pathways long after landing that first job. And it is clearly part of my obligation as a teacher and part of my school’s obligation as an institution to teach each of our students an appropriate matrix of skills and to adapt our strategies and update that matrix as it appears (because it always appears) that the existing matrix is out of date in one respect or another.

So what’s the problem?

The problem is: The law factory.

The discussion continues, in a week. Please check back or watch @profmadison on Twitter.