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Law, Legal Education, and Imagining the Future: The Project Continues, Part 2


“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 have collected highlights from all of the posts, approximately 10 posts at a time. The first batch appears here.

Ten additional posts:

“It is a deep irony that while law schools have been isolated from higher education generally either de jure or de facto, law is inherently interdisciplinary. There are legal issues, consequences, and problems, associated with every area of study. Yet, a student earning a 4-year university degree may be required to take classes in language, writing, sciences, and math, but may never have any exposure to the legal frameworks and principles within which she lives her life every day. It is time that law schools recognize that legal education for the people does not threaten the JD — rather, it places it front and center of a series of concentric circles emanating outward. As leaders in legal education, we must recognize the widespread need for that education. We must work to offer it to markets both broad and deep. Legal education is critical for the functioning of civil society, and we must embrace that, or we all lose.” (Megan Carpenter, University of New Hampshire)

“My students don’t have to be the platonic ideal of the graduates for the legal future. They just need to be better than grads from my competitors.” (Dan Hunter, Swinburne, Australia)

“First, as my talk of a golden age for legal education suggests, I am deeply optimistic about our future. There is much work to be done, and no assurance of success. And only those prepared to innovate — sometimes in big ways — are likely to succeed. For those that are prepared to do so, though, the fundamentals are not merely sound, but very promising.” (Robert Ahdieh, Emory University)

“I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.” (Dan Hunter, Swinburne, Australia)

“If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

Let me explore this point in the context of criminal justice, a field I know relatively well. Better funding for public defenders certainly would improve access to justice. But there is much that law schools could do without that funding.” (Deborah Merritt, Ohio State University)

“So, my arrival at Elon Law at the depths of the legal education bust offered an opportunity to reinvigorate the institution by developing these principles, which were entirely consistent with the approach Elon University championed and had infused into its Law School’s mission. I quickly appointed a faculty committee to explore curriculum changes that might provide some of the advantages of co-op education while pushing those advantages and perhaps concomitantly addressing the cost and time issues as well.

“This committee was small to facilitate accomplishment but reflected diverse aspects of the curriculum, including 1L, upper level, writing and skills components. This group met regularly for about 6 months, working quickly due to the urgency of the situation but consulting with others about issues like admissions and budget. Four issues were identified as core to the work, including curriculum, calendar, competencies and communication, which gave rise to the moniker “the 4C Committee.” This group worked from the proposition that was embedded in the Law School’s strategic plan to establish and fulfill an overall curricular goal ‘to create a bridge from legal theory and doctrine to the practice of law.’ Approaching this mission from an outcomes oriented perspective, the 4C committee essentially worked backward by identifying the skills, knowledge and professional identity that students should acquire by graduation and then building a logical progression of learning to reach those goals.

“Over the course of several faculty meetings, the advantages and disadvantages were discussed as were alternative proposals. In the end the 4C committee’s proposal was adopted by a two-thirds majority of the faculty. Recognition that the law school with a difference should be even more different than it already was provided some support for the proposal but the real underlying theme around adoption was a palpable desire to create a more guided and pointed experiential curriculum that led students to capability for practice. And so with the curriculum adopted, implementation became our focus.” (Luke Bierman, Elon University)

“There are many features of the traditional law school curriculum that serve law students quite well in a rapidly changing world. Legal analysis, a close reading of texts, clear writing and thinking, and an ability to discern good arguments from bad are all valuable skills and will continue to be so. Law schools (particularly through experiential education) also help students to develop essential law practice skills in the areas of fact investigation, negotiation, oral and written advocacy, problem solving, document drafting, and client counseling.

These skills are important and necessary, but they are no longer sufficient. If you think the Susskinds’ predictions are accurate, students should also be able to identify how technology and other innovative methods can be used to deliver legal services better, faster, and cheaper. Put simply, students will still need to “think like a lawyer,” but they will need to “think like 21st century lawyers.”

“A more important reason to offer this kind of education in law school is that students will not necessarily develop the skills in practice. Although the industry is rapidly evolving, many law school graduates will join practices where few people have these new skills. Put another way, the knowledge that I have described is less likely to be learned on the job than traditional practice skills and doctrinal subjects, because the knowledge is so new and most lawyers are not expert in these areas. In this sense, junior lawyers will not be learning these new concepts on the job; rather, they may be educating their superiors.” (Andrew Perlman, Suffolk University)

“New technology can have some positive impacts upon law. But technology firms need legal guidance and intervention as much, and perhaps more than, lawyers need new technology. Moreover, pathologies found in search engines, social networks, and beyond, threaten to infect the legal sector, if we unreflectively embrace big data, predictive analytics, machine learning, or whatever the latest flavor of the month is. Understanding those problems is just as much a part of our “duty of technological competence,” as any imperative to adopt new software or machine learning methods.” (Frank Pasquale, University of Maryland)

“The combination of AI and platforms will have a huge effect on the training of lawyers and the transmission of legal culture. It was once the case that grads would emerge from law school like toddlers, unformed and blinking, and be taken into law firms to grow up slowly, to learn not only how to practice law but also how to be a functioning member of the legal community, alive to the vital role that lawyers have in our society. This process has been undermined over the last few years, especially since the GFC, as clients have resisted paying to train junior attorneys, and firms have reduced their grad recruitment numbers. As AI technology reduces the amount of introductory-level work available to young lawyers, and as platform technology hollows out the firm, we will see a ‘valley of death’ emerge between law school graduation and the point when the attorney is capable of effectively handling client matters and making a living. There is no part of this which will be a good thing for anyone, except maybe the technology providers and the owners of co-working spaces.

“All of these changes need to be recognized by those who purport to train the next generation of lawyers. Law school professors and deans can’t just assume that the future will look like the past, because it won’t. And these problems won’t just take care of themselves.

“What then is to be done?

“Concretely, I believe that we have an ethical obligation to change our curricula to give our students the tools to be able to navigate this new world. This symposium is a good start in discussing the challenges and responses; but obviously there is a lot more that needs to be said. It saddens me that most law professors and many law deans don’t really want to engage in this discussion. There are many reasons for this, of course, but the main ones seem to be a lack of understanding about the pace of change, a disconnect between the classroom and the reality of the legal service market, and a (vain) hope that maybe, just maybe, the status quo will hold. This doesn’t help our students much, it seems to me.

“Further, I believe that we need to start a conversation with the profession, the regulators, and disruptive legaltech players about how legal knowledge and culture can be transmitted in a world that is about to suffer a big disconnect between how law was done before, and how it is about to be done. Law schools need to start thinking about the role that we play in training lawyers all the way through their lives, and what law in society should be. I don’t know what this conversation will look like. I do know that it’s not happening at the moment.” (Dan Hunter, Swinburne, Australia)

“We are in an interdisciplinary moment, and not just the Law & Econ or Berkeley Jurisprudence and Social Policy sense. So many of the concerns we feel for the future of legal education — and for the future of practice writ large — are directly related to the work our colleagues are doing down the street, in computer sciences, math, engineering, and other departments. If the old interdisciplinary tool was often critique — how should we understand law in light of economics, political science or sociology — the new one has great potential to be actionable collaboration. I’d love to see my colleagues working with those computer scientists producing analytical tools that search web comments for common linguistic strands — the better to identify individuals who present genuine threats to society. I’d like to see them working with the folks in engineering as they develop cybersecurity interventions that intercept data at an early point before it can do its damage. I’d like to see my law faculty colleagues working with the AI experts, the driverless car folks, the pharma researchers creating digital pills that send an “I’m here” signal to a smartphone app when they hit the digestive track. Of course I know that a few legal scholars have made this move — but truly, very few.

“There is so much to be gained by growing this part of our research capacity. Our faculty quite literally could work on the cutting edge of the law. They’ll have the potential of making a real difference in how we think about, and regulate, the immersion of new tech into society. They’ll be more relevant for their students. And that’s only the beginning.” (Dan Filler, Drexel University)

[To be continued]

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