Legal Education Begins Anew

Every year since I began teaching, I’ve been nagged by a sense that I was doing some wrong things in the classroom, but for some right reasons.  That sense accelerated over the last five years, to the point that I’ve mostly thrown over my own internal framing of what and how I teach.  As a few readers of this blog know, I’ve also externalized that framing in a series of manuscripts.  I posted a new one just the other day.  I’m taking this moment to collect all of these here in a single post, in a transparent attempt to increase their circulation.

In reverse chronological order, they are:

Preparing for Service: A Template for 21st Century Legal Education (unpublished)

Abstract:

Legal educators today grapple with the changing dynamics of legal employment markets; the evolution of technologies and business models driving changes to the legal profession; and the economics of operating – and attending – a law school. Accrediting organizations and practitioners pressure law schools to prepare new lawyers both to be ready to practice and to be ready for an ever-fluid career path. From the standpoint of law schools in general and any one law school in particular, constraints and limitations surround us. Adaptation through innovation is the order of the day.

How, when, and in what direction should innovation take place? Who should lead, guide, and participate? These are questions often asked in both legal education in particular and in higher education in general. Rarely are answers accompanied by specific examples, strategies, or programs. This paper offers precisely that specificity. It documents one institution’s process and output, beginning with the concept of innovation in the face of multiple challenges and proposing one set of concrete, actionable strategies, tactics, and programs. These range from school-wide interventions to ideas for use at the level of the individual faculty member and course.

The purpose of making the paper available is to note merely that if innovation is a hill to be climbed, then it can be climbed. The process and results may be more valuable if they are shared with others, even if the particular route documented here is not the only one available and may not the best for all times and places.

Innovators, Esq.: Training the Next Generation of Lawyer Social Entrepreneurs (published at 83 UMKC L. Rev. 967 (2015))

Abstract:

Today’s law school graduates need to be entrepreneurial to succeed, but traditional legal education tends to produce lawyers who are “strange bedfellows” with entrepreneurs. This article begins by examining the innovative programs at many law schools that ameliorate this tension, including the programs offered by our Innovation Practice Institute (IPI) at the University of Pittsburgh School of Law. Although these programs train law students to represent entrepreneurs and to be entrepreneurial in law-related careers, few (if any) law schools train law students to be “business” entrepreneurs. Drawing on our own experiences and the writings of Bill Drayton, the lawyer who pioneered the field of social entrepreneurship, we discuss how some lawyers have applied their legal education to be successful “social” entrepreneurs. Finally, we outline the IPI’s three-year law school program explicitly designed to train law students to be social entrepreneurs.

Leading New Lawyers: Leadership and Legal Education (unpublished)

Abstract:

Lawyers may become leaders, but leaders also may become lawyers. The path to leadership can begin in law school. This short essay describes a leadership development course developed and implemented at a law school over the last four years.

Visions of the Future of (Legal) Education (unpublished)

Abstract:

One law professor takes a stab at imagining an ideal law school of the future and describing how to get there. The Essay spells out a specific possible vision, taking into account changes to the demand for legal services and changes to the economics and composition of the legal profession. That thought experiment leads to a series of observations about values and vision in legal education in general and about what it might take to move any vision forward.

There’s more:

Anyone interested in this topic or this material should read the stimulating exchanges in the mobblog on legal education that Deven Desai organized here in 2008.

I took some tentative further steps into deeper water in 2012, at the Faculty Lounge.

 

Two Birds One Stone: Thoughts on Theory and Law Practice

As Lawrence Cunnigham’s post explains, the patterns regarding law firms and law as a business are not new. Still, the comments have asked properly why partners don’t move away from high per partner profits and try and keep associates. The answer to that is complicated to say the least. The trend to megafirms and the evils of the AmLaw approach deserve deeper thought. I think that others have done such work. I will simply note that there are smaller firms that promote more balance in hours and still pay partners in the mid-six figure realm. I have also been told that it is difficult to maintain such a practice. I think Bill Henderson’s post addressed that point too. There are a host of questions here: Is there an underserved middle market? Do the supposedly best graduates go to the big firms always? AND can you new graduates find or start such civilized firms?

As for the legal education model and scholarship, any student who thinks that learning the simple law as it is today is the point of law school must give up that idea. The law moves fast. If one has not learned how to keep pace with those changes, one risks obsolescence. Mike’s post about law review submissions comes at this issue from another direction. Can there be pure theory pieces that make little sense to all but the initiated? Of course. Is theory important and useful for law students, lawyers, and judges? Damn straight. Anyone who thinks that judges simply follow the rules has missed the point. A host of theories, ideas, and dare I say jurisprudential views, inform and shape the law. Just look at the now familiar issue of copyright and downloading. The lawyers who had to explain to courts and/or Congress exactly why or why not the law should be one way or the other used theoretical frameworks to persuade.

Furthermore, those who think that the Paper Chase approach is out-dated miss one point. I will cede that cruelty and belittlement are not necessary. BUT I will not cede that professors ought not demand that students continually explain why whatever they say is true or ought to be. As an undergraduate, I was fortunate enough to have a class that had more than 200 students, a seating chart, and full Socratic method. It was taught by Phillipe Nonet. He would push people. They would reach a wall. They hated it. He, however, would move on when someone did not know the answer, and I do not recall him singling anyone out if they did not know the answer. If he called on someone and they were unprepared, he would move on. So yes, we had to be able to start the conversation about the facts or details of the reading. After that the idea was to see how far we could take an idea. It was exhausting and thrilling.

One time, four or five people said they were unprepared at the start of class. He left the lecture. I had heard from friends that this event was almost guaranteed to occur. The next class, Nonet began as always by asking whether we were prepared. I cracked a small grin, because I knew about the propensity to walk out. He saw my smile and asked, “Mr. Desai, are we prepared?” I was nervous but said, “I think so.” The magic words came next, “Then, let us begin.” We went at it for the entire 50 minute period. I did not drop a question and managed to counter an idea he offered. It was exhilarating. It was being in the zone. I could not have done that but for the fact that I had been pushing myself for weeks getting into what the material said and the theory. That is why I could see where the law might go.

Ladies and gentlemen, I urge you to embrace the nerd within. Demand it of yourself and your professors. Learn the basics and then go to the next level. Then the next. Never stop. And, here’s the trick. Rote learning of the supposed answer is difficult, but not that difficult. If you want to be that person who can do anything with a law degree or even just a good attorney you will have to be someone who engages with theory. Why? Because that is where the true mental training exists. Theory divorced from practical knowledge is sterile. Practical knowledge divorced from theory is also sterile. The best lawyers solve the most difficult problems because they know how to reason and link facts and with ideas. Engaging with theory is a great way to develop that ability. And you may find that it is much more interesting than regurgitation learning (be a doctor if you prefer that approach).