As previously reported, I spoke last week at the Iowa Law Review Symposium on The Future of Legal Education. The CHR discussed some of the festivities. Here’s some tidbits from that article (which didn’t report on my panel or talk):
- Law schools are not moving with changing times. Richard A. Matasar, dean of New York Law School said “we’re all old dogs trying to learn some new tricks, and all of us old dogs have got tenure and we’re not going any place.” Erwin Chemerinsky, the inaugural dean of the University of California at Irvine School of Law, described law schools as “remarkably resistant to change.”
- Law schools are too expensive, particularly when they try to offer something new. Chemerinsky bragged about offering “hands-on, interdisciplinary study,” but then said this cost $40,000 for California residents and $50,000 for out-of-state students.
- They’re too interdisciplinary and removed from practical reality. Law schools are, according to Chemerinsky, “bringing in faculty members from fields like economics and psychology,” but this means increasing “the number of faculty members who are far removed from the day-to-day realities of practice. If our primary mission is training lawyers, how successful can we be if a large proportion of our faculty have never practiced law?” Certainly nobody else will train students for practice. [ATL reports the now-disintegrating Howrey has canceled its famous summer Howrey Bootcamp, which the firm described as offering “an entirely unique approach to associate recruitment and training.”]
- Law schools should get back to basics. Althouse commented on the Chron article (HT Law Blog) that she would love a new school that “wasn’t bound by decades of tradition” (Chemerinsky’s description of his school) make “a deliberate decision to embrace tradition. Let’s get a bunch of tough Socratic lawprofs in front of a classroom of students.”
So what’s a law school to do? Here’s a suggestion: let the market decide. As I said last week:
If the market were freed from the constraints of licensing and mandatory accreditation, it could better produce the sort of law society needs at a price it can pay.
Indeed, this is already happening. As discussed in my Death of Big Law and in Kobayashi and my Law’s Information Revolution, market forces breaking down the legal profession’s regulatory walls, including the profession’s lock on law school accreditation.
What might a free market for legal education say? The answer, I think, is none of the above. The critiques of and suggestions for legal education all assume that law practice will continue much as it has for generations or centuries. This assumption is totally unrealistic given the fundamental changes in every other area of modern life. What lawyers (or as I call then, “legal experts”) will do is likely to fundamentally change, and with it legal education.
What might this mean? My current thinking is in my paper for the Iowa symposium, Practicing Theory: Legal Education for the Twenty-First Century. Here’s the abstract:
Law practice and legal education are facing fundamental changes. Many assume that these changes will force law schools to give up on theory and focus more on training students for the practice of law. However, this essay shows that the future may be more uncertain and complex. The only thing that is certain is that law schools may face, for the first time, the need to provide the type of education the market demands rather than serving lawyers’ and law professors’ preferences. Legal educators must respond to these demands by serving not just the existing U.S. market for legal services but also a global market for legal information. This may call for training in some, but not all, of the theories and disciplines that have been developing in law schools.
The article’s central and most surprising claim is that theory is quite relevant to what legally trained people will be doing and therefore how they should be trained. That is because of the “information revolution” Kobayashi & I describe in our article linked above. The market is chipping away at the traditional “bespoke” model of one-to-one legal advice, complex systems designed by and for lawyers, and the separation between US lawyers and other professionals and other countries. Replacing them is a “legal information market” in which law is global, multi-disciplinary, manipulated by computers, and sold as products to consumers and as information capital markets.
The lawyer of the future will have to be trained not just as an adviser to individual clients and litigator, but as a collaborator, manufacturer, lawmaker, information engineer, capitalist and participants in a global community. As I say in the paper:
The key implication of these developments for legal education is that although law students formerly practiced law made primarily by a relatively narrow group of policymakers, future lawyers may be more directly involved in creating laws and other basic legal materials. * * *
In contrast to lawyers’ traditional roles, legal experts competing in the new legal markets . . . may be more like designers creating legal materials than mechanics using them. Thus, the lessons of the ivory tower might become more useful than has previously been supposed in training law students. . . . [T]omorrow’s practitioners may be earning money from academic subjects imported into the law-school curriculum such as philosophy, jurisprudence, psychology, history, linguistics, computer science, and empirical analysis. . . . [L]aw schools should not assume that lawyers will continue to do only what they have been doing for the last century.
My crystal ball is cloudy, but it at least suggests that lawyers and legal educators should abandon their comfortable assumptions about what law practice and legal education will and should entail. This will be for markets to decide, and markets are often surprising.