Crisis in legal education or business cycle?

Bill Henderson vs. Orin Kerr (in comments, with reply by Henderson). HT Leiter.

Henderson:

U.S. Legal Education is in the midst of a large, structural transformation. This structural shift is driven by a confluence of factors, which includes three significant trends:

1. The decline, or plateau, of the traditional time and materials legal services model
2. The politics of law school finance
3. A new generation of legal entrepenuers that are turning some aspects of law into process-driven products and services. * * *

My post raises two questions for law faculty that need to be answer in order:

1. Is the evidence of structural change sufficiently compellling that we need to retool in order to survive? This is a business decision. It must be based on facts and probabilities. And it has to be answered first so the appropriate urgency and perspective is present to answer question #2.
2. If the answer to #1 is yes, how should our law school retool its curriculum and appointments process? Law professors are prone to focus on the difficulty/impossibility of the retooling process because–let’s face it–we are worried about how the changes will affect us. Question #2 is the wrong place to start.

Kerr

When I have asked a few peers who are in the business of practicing law if they think we are undergoing a major change in the legal market, or if we are just experiencing the usual cyclical pains of a recession, they generally respond that they think we are seeing the latter rather than the former. So that means that you as an academic are saying one thing about what is happening in the legal market, and the group I have spoken with who are actually in the legal market generally are saying another.

Henderson reply:

Lawyers generally don’t consult industry level data. When I talk to groups of practicing lawyers–and I do so regularly–and I show them trendlines and comparisons with other industries that have undergone structural change, very few continue to advance the deep recession argument because such an analysis just does not fit the industry level trendlines.

I’m with Henderson.  Here’s my take on the future of legal education in light of the developments he describes.  It seems clear that conventional law jobs are rapidly being replaced by technology, there is significant political and competitive pressure on the existing regulatory model, and that changes in the profession will accelerate with deregulation. These shifts are occurring apart from problems in the economy.  Indeed, these changes will increase as the economy, and therefore environment for innovation, improves. In other words, a significant portion of the legal profession may be left behind by the recession’s end.

Think what even a 30% decline in the demand for legal education (or more if tuition continues to increase) would mean for legal education.  The law schools outside the first tier in places with poor legal job markets will be left stranded.  All law schools outside the very top will have to scramble for position by changing their products.

Exactly what law schools should be doing is unclear.  This is not a time to set in place a complete revamp that could get the market’s direction wrong. But law schools are foolhardy if they think they can continue to bury their collective heads in the sand because of the soothing noises they’re hearing from their (currently) successful alumni.