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Law, Legal Education, and Imagining the Future: The Project Continues, Part 3


“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. The second batch is here.

Ten additional posts:

“If legal education does not act to get a meaningful grip on high debt and poor employment outcomes for so many law graduates, it is more likely that a draconian solution such as a federal lending cap will be imposed on us. What can we do to solve these challenges before a potentially disastrous solution is imposed from outside? In the spirit of previous posts, here are a few ideas — I’ll call them less-than-modest proposals:

“Law schools should stop participating in the rankings. The pernicious impact that they have on almost every aspect of the law school program, from admissions and financial aid decisions to the phenomenon of law school funded graduate employment, is almost universally acknowledged. They have rewarded schools that increase per-student expenditures, fueling increases in tuition; and brought about the demise of need-based financial aid, restricting access to the profession by lower-income and minority students. While we may have started down the rankings road innocently enough, the world we have created makes continued collaboration with US News ethically dubious at best. A rankings boycott is not a new idea, and the conventional wisdom is that the prisoner’s dilemma cannot be solved, but perhaps we are finally at the breaking point.

“Do not increase enrollments along with the increase in applicants this year. It is very good news that both the number of applicants and their scores on the LSAT are up this year. But it would be a grave mistake for schools to increase enrollments where there is no evidence that the number of entry-level law jobs will increase in the foreseeable future. Another prisoner’s dilemma.

“Work to change the culture around student borrowing within schools. At Michigan State, a well-conceived and carefully-implemented plan brought average student borrowing down significantly over several years without increased tuition discounting.” (Scott Norberg, Florida International University)

“From an institutional perspective, my experience in countries with LLBs is that the number of students in such programs exceeds by several factors the number of students in traditional J.D. or J.D.-equivalent programs. Many if not most LLB students do not intend to take the bar exam, but see the LLB as preparation for a job in civil service, middle management, or public advocacy. For universities with or without existing law schools, the LLB market is a huge potential untapped revenue stream. For universities with a law school, the LLB is an ideal feeder program — and it provides advantages of scale because JD and LLB students can sometimes be enrolled in the same course.” (Rick Bales, Ohio Northern University)

“This experience enriched an important question I had been thinking about and building structures around as a new Dean: should the “futures” of legal education include an expanded focus on legal education for individuals who are not — and will likely never become — US lawyers? In some circumstances, this move may have the potential to help law schools financially. But for this post, let’s put that aside — assume that such a change would be at least revenue-neutral, to focus the real discussion on whether it’s a good idea.

“The range of potential students of law, beyond the familiar “law students,” is enormous. Foreign trained attorneys (although many are interested in taking the bar, usually either in California or New York). Undergraduate students with an interest in law. Executives who are not lawyers but interact with lawyers and want to be more sophisticated consumers of legal products and services. Professionals who are looking to get closer to the legal department without joining it. Journalists who cover legal issues. Citizens with an ambition to become lawmakers, or those tasked with administering the law. Those who are just curious about law. And so on. Existing LLM and MLS degrees serve some of these individuals, but certainly not all.” (Michael Waterstone, Loyola (Los Angeles))

“Similarly, posts have highlighted individual innovative initiatives at particular institutions without much focus on those ways those institutions currently do, or should in the future, collaborate. Although I agree with Mark Tushnet that institutional pluralism is needed, I worry that we often reinvent wheels separately without learning from one another.

This post makes the case for moving forward together. It argues that multiple forms of effective collaboration are needed to help create legal education for a changing society. Although I acknowledge that barriers to change are real and that collaboration can be difficult, we will make more progress through prioritizing interconnection. The post highlights four areas in which I think fostering collaboration is crucial.” (Hari Osofsky, Penn State – University Park)

“The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.” (Brian Farkas, Cardozo)

“With the exception of maybe one or two schools, no-one seems to be focused on the possibility that its grads might want to practise law in multiple jurisdictions.[2] And yet this is the reality of many smart grads from a range of places, who leave their home jurisdictions to work in the world’s commercial and financial centers, typically taking years to retrain when they get there. These grads have to work out how to do this for themselves, because no school sets out a pathway for them to practise in multiple jurisdictions from the jump. This proposal does that. And at the same time, it presents a way for US law students to get themselves qualified two years faster than currently possible…

“Modest proposal #2:

“The dean of a US law school should work with me to design a combined LLB/JD, that satisfies the admission requirements of both US and Australian practice, and avoids the need of students to do a pointless undergrad degree.” (Dan Hunter, Swinburne (Australia))

“I hope I can add a different perspective, one that challenges an explicit or implicit assumption in almost every post — that ABA accreditation is a necessary part of the future of legal education. It’s not. Indeed, in some states graduating from an ABA- accredited law school is not necessary to obtain a license to practice law. If we are willing to look beyond an exclusive ABA model and work with state bars, we may discover that we can address some of the issues raised and engage in the innovation necessary to respond to a changing legal market.

“I come to this conversation with some experience. Almost two years ago I left a tenured faculty position at an ABA-accredited law school to become the dean of a small California Accredited Law School (CALS). California is one of a handful of states to allow aspiring lawyers to take the bar exam without going to an ABA- accredited law school. My school, the Santa Barbara and Ventura Colleges of Law (COL), is accredited by the state bar as well as the Western Association of Schools and Colleges.

“Although some colleagues questioned my decision, I had no hesitation. I wanted to be part of an institution that lived its mission to provide an affordable, accessible, and quality legal education. I wanted to be part of an institution where the sole focus was on opening the doors to the legal profession and improving student outcomes, untethered to a ranking system. I also wanted to be a part of an institution that embraced innovation.” (Jackie Gardina, Santa Barbara & Ventura Colleges of Law)

“If we are truly committed to institutional pluralism, and to values in the legal academy beyond pecuniary dimensions of training, we need to cultivate a healthy skepticism of managerialism. We can start with some crucial points of caution about metrics from Christopher Newfield and Heather Steffen: indicators help create the inequality they measure, while assuring their consumers that the inequality is a natural, preexisting fact. They do this by ignoring distinctive qualities that cannot be quantified and compared.

“I hope that in the future, the legal education reform discourse is more sensitive to the ways in which managerialism tends to impose “double binds.” We can’t say that we are committed to institutional pluralism, diversity, and freedom of thought if our main ways of evaluating our success are economistic metrics in which such values are merely an afterthought. We should be proud of our civic role — indeed, as Danielle Allen argues, that is what education is for. On that foundation, we can build a clearer case for the type of financing that will support the many public goods now provided by the graduates, faculty, and staff of law schools.” (Frank Pasquale, University of Maryland)

“Achieving a substantial curriculum change in six months is a notable accomplishment; I have been reminded more than once that is rare in higher education. But our experience at Elon demonstrates that it is possible. But, alas if it were all THAT easy. The revisions to the curriculum required alterations to calendar, course sequencing, credits, teaching assignments, budgeting, space, and many other aspects of our operation. We also needed to publicize the changes and recruit students while continuing to educate current students under the preexisting curriculum. Approval of the University board of trustees also needed to be accomplished. Alumni were notably interested in what was going on and many town hall meetings, virtual and otherwise, occurred. There was no rest for the weary.” (Luke Bierman, Elon University)

“We should keep in mind the substantial changes most law schools have made in the last generation. It is hardly an exaggeration to say that experiential training has exploded in that time, and it has flowered in many ways. Legal writing, skills and advocacy programs are no longer niche programs at a few non-elite schools. They are standard fare at almost every law school and, just as important, schools take them seriously. Clinical students no longer focus solely on criminal law, government benefits and housing work for low-income clients, but have opportunities to immerse themselves in appellate work, legislative work, entrepreneurial law, small business advising, and family law. In many of these clinics, students learn not only how the practice of law works, but how the business of law works because an increasing number of law school clinicians are now fee generators. Schools have invested heavily in externships and in simulations – we are familiar with the Washington and Lee experiment to offer (almost) exclusively experiential courses during the third year. Pragmatic courses at the intersection of law and technology, like data analytics and block chain, are now offered, often instead of the law and humanities or law and social science classes that used to populate so much of the non-core curriculum. Moreover, a number of schools such as ours offer courses in project management and problem solving. Perhaps uniquely, we offer a certificate program called Praxis based on the idea that law students can and should gain expertise in the soft skills that many sociologists have concluded contribute so substantially to successful lawyering.

“So, while I agree that, in the long run, legal education will change dramatically in the future, we should remind ourselves of the significant changes that been wrought in the last generation. These changes in law schools reflect shifts in both the legal marketplace and in the student body. We are producing a far more diverse group of graduates than ever before. Some of these students want traditional legal careers, many do not. All of them want a solid education that equips them better to become the professionals they want to be. What the market wants and what our students want evolves, although we may not have been as quick to change as some would like, we have adapted in important ways. There is every reason to believe we can continue to do so, without fearing the future, and without losing sight of the beneficial changes we have made in the recent past.”(Harold Krent, Chicago Kent)

[To be continued]

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