Legal Education’s Waterloo

FLW

“Legal education is at a crossroads. Its model was under siege before the pandemic and  underwater now.” “Traditional legal education’s Waterloo may come as a surprise to many in academia, but not for business where pan-industry disruption of dominant provider models has become routine.”

Those are key quotes from an urgent new piece by Mark Cohen, at Forbes.com.

There’s a lot to like in it (the urgency, for starters), a lot to unpack (the vision of what comes next), and a lot to add.

I wrote a long, similar response to an earlier piece of his ([part 1] [part 2] and [part 3]), and there’s another response in the works.

A preview, in two parts:

One, the piece understates the urgency and mis-diagnoses the source of the problem. Law schools aren’t the way they are because they’re staffed and run by solipsistic academics. They are the way they are because the organized bar has, for decades, wanted them to be prestige and raw intelligence factories, and little more. That was especially true in the formative 1870-1970 era, when the pathways that define law schools today were laid down and universalized, and it’s still the dominant culture in the higher status ranks of the bar today. To the extent that the organized bar discovered that it sometimes wanted anything else, the organized bar refused to pay for it. So where did (and does) the money come from? The university. And you can’t be a part of a university without playing by the university’s rules: scholarship, tenure, inflexible governance, and a purposeful refusal to simply bend to the interests of commerce.

That solution took root in the 1970-1995 era, when the turn away from law practice as a model for teaching and writing by law professors, and the turn to modern legal scholarship, really began. It has been thoroughly internalized from the top to the bottom of almost every law faculty across the US News & World Report rankings hierarchy.

The 1995-2005 era was a kind of golden age for law schools. Tuition dollars flowed readily, and the university tended not to ask hard questions about budgets. There was ample time for faculty scholarship, and new graduates often had little trouble finding good first jobs.

We’re 15 years into a new era. The organized bar is no longer so organized (though it’s holding on for dear life); universities don’t have the cash they once did (ditto). The job market for new graduates is almost unrecognizable to those of us who’ve been lawyers for more than 20 or 25 years.

Legal education is indeed at a crossroads. Better, legal education is Wile E. Coyote, having run several steps beyond the edge of the cliff but still in mid-air, legs spinning wildly, not (yet) looking down.

But law schools are not vision factories. Deans and professors characteristically operate in a zone of comfort and challenge that spans Option A and maybe, if the planets align, Option B. The last great legal academic entrepreneur was Christopher Columbus Langdell, and he was mostly trying to impress his boss, the president of Harvard at the time, Charles Eliot. No one should expect law schools to change. Change will be thrust upon them. Some law schools already have closed. More will. Some have found friends via merger. Vision will almost certainly come from elsewhere. [Here’s a kernel of one idea, naive and unfunded.]

Two, the piece outlines a vision of what’s likely to happen — eventually — that’s probably as spot-on as one can be when one has no actual idea how this will all unfold. (The prediction that the whole system will be a lot cheaper because no one would need to worry too much about the cost of buildings is mistaken. Compensation costs, not mortgage costs, drive higher education budgets.) Legal education today teaches too few of the right things and too many of the wrong things and in too many of the wrong ways, partly because of path dependence and a lack of imagination, skill, and opportunity (“publish or perish” isn’t a real thing, but “publish” is) (thanks to the university), partly because licensure demands it (thanks to the organized bar), and partly because what’s left of the organized bar is ridiculously shy about telling law students that what matters to them, internally, isn’t pedigree but talent (thanks to a perverse sense of recruitment advantage in any given firm’s “secret” hiring sauce).

A shift from standardized training for “the licensed professional” to customized training for “the collaborative expert” is precisely what’s needed and (I think) what’s likely to emerge, in law and elsewhere.

But outside of a handful of self-identified positive deviants, most of the people who will do this work are students and new graduates, who want to get, keep, and thrive in jobs and careers and who will in time (and sooner rather than later) demand more and better in return for their tuition, whether that’s paid to a high-brand school, a high-brand teacher, or the legal education version of Master Class. But they need signals; they need to know what to ask for. They’re not getting those signals today, even if the LegalTech and ALSP sectors and CLOC think that the signals are there. Law school career services offices struggle to make sense of the market, OCI still rules the hiring system at many law schools, and NALP still promotes the distinction between praiseworthy “JD required” jobs and the pejoratively-named “JD advantage” jobs.

Law firms could change the culture of legal education tomorrow if they (collectively) said: we hire and promote based on demonstrated problem-solving skills and other service-based competencies, rather than based on law journal membership, class rank, and law school identity. That new culture wouldn’t simply affect students in pursuit of (what’s left of) BigLaw careers. It would change all of legal education, the legal profession, legal services, and legal information delivery for the better, no matter the scale, no matter the sector.

That’s just a start. More is needed, and there is more to come. [And that was more than a preview!]

Every part of what used to be the legal profession, and what’s now the legal services marketplace, should be paying attention. Thanks to Mark Cohen for keeping his eye on this ball. The stakes aren’t simply the future of law schools. How we train lawyers shapes what we expect from them later. The stakes today are the future of law.

All posts in this series:

Bonus

Reward yourself for reading this far by subscribing to The Future Law Podcast. It’s easy on the ears, and it may even be useful.