Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law. Here is Paul's opening graph:
If I need some insight into the future of
medicine, I might head over to Stanford Medical School. If I
wanted to learn about likely directions in finance and hedge funds, I
might visit Penn's Wharton. If I were looking to make investments in
computing, I might arrange a tour of a lab at MIT. If I decided to
learn something about where legal practice, law firms, and legal
departments will be in 2014, where would I go? Not to law school.
According to Paul, it is not that we are working on irrelevant stuff. It is worse than that: we are enjoying a comfortable living while loading our students up with debt and having a low opinion of practicing lawyers and the clients they service. Paul recounts a recent meeting with law school deans in which he "asked the question, 'If you decided the purpose of law school was to maximize the comfort and income of the faculty, what would you do differently?' The answer: 'Nothing.'"
Some people might be tempted to lump Lippe together with Judge Harry T. Edwards, who wrote several withering critiques of legal education during the early and mid-1990s. See, e.g., Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich L. Rev. 34 (1992); Harry T. Edwards, A Postscript, 91 Mich. L. Rev. 2191 (1993). Such lumping together is a mistake. Edwards' criticisms were largely centered on the present--that professors where disengaging with doctrine and increasingly irrelevant to judges and practicing lawyers.
In contrast, the gravamen of Lippe's remarks are about thought leadership and the ability to identify future solutions to macro-level problems. Consider the following trend-lines, which are representative of the types of issues that Lippe often discusses in his LOR and Am Law Daily columns:
Under Lippe's thought-leader ideal, members of the legal academy would be re-conceptualizing the assumptions underneath lawyer regulation and proposing an institutionally coherent strategy for altering the regulatory landscape in a way that simultaneously helps ordinary citizens, business, and the democratic process. In theory, we've got the time, resources, and brain power. Where is the leadership?
It is tempting to write Lippe off as an arrogant Silicon Valley GC. But before we do, it is worth noting that Fred Krebs, president of the Association of Corporate Counsel (ACC), wrote in a comment to Lippe's essay that Paul was "Right on point. Should be required reading for law school faculty." We can be dismissive of Krebs as well, but the legal spend of his constituents (in-house legal departments) is the very thing that supports the high cost structure of legal education. If legal educators are uninterested in problems of people who buy the majority of legal services, we should not be surprised when in-house lawyers work very hard to reduce their reliance on U.S.-trained lawyers. Entrepreneurs in Europe, India, and Latin America are salivating at the prospect of easier access to the U.S. corporate legal market. There is just no way that a state disciplinary commission is going to use the unauthorized-practice-of-law hammer to challenge how GE or DuPont allocates its legal spend--there is zero consumer protection basis for stopping the mass migration of this type of legal work.
Frankly, amidst the meltdown of the entry-level lawyer job market, I am surprised by the lack of significant interest or attention by legal academics, at least as judged by blogosphere traffic. It is all-too-easy to assume that the market will rebound next year, or 2011 at the latest. To this I might ask, "What is the basis for the optimism?" The salad days of 2004 to 2008 were driven by a Wall Street juggernaut that destroyed the U.S. investment banking industry, which was the historical client basis for the industry's most prestigious law firms. And here is a more pointed follow-up question, "How much does the legal economy need to recover so that our students can to support their debt load?" See, e.g., Jonathan Glater, Finding Debt a Bigger Hurdle than the Bar Exam, NY Times, July 1, 2009. Obviously, the answer to this question requires some careful study and some math. Vague appeals to the business cycle just won't cut it.
It is one thing to acknowledge that we lack good answers--that part is forgivable. But it is quite another to ignore or minimize the problem because, quite frankly, it really does not affect us personally. All of this reminds me of my youth in Cleveland, Ohio during the 1970s and 80s. Lots of my friends' parents worked for General Motors, which offered high pay, amazing benefits, predictable hours, and long vacations. No one else seemed to have it so good. I remember thinking at the time that GM was both complacent and invincible. It turned out that I was only half right. So I worry about my own industry. Do I have the mindset of a GM employee circa 1979? God, I hope not.
Recently, the editors of Above-the Law surveyed the changes within the legal job market and asked two good questions: (1) if the Howrey/Drinker Biddle/Frost Brown Todd apprenticeship model gains traction, is it appropriate to shorten law school to two years? And (2) if law school salaries are going down, should law schools be expected to "share in the pain" by figuring out ways to reduce tuition? Unless the job market significantly improves during the next 12 months, it is going to get much more difficult for us to ignore these issues. For a realistic cost analysis of the current system, see Edward Rubin, Should Law Schools Support Faculty Research, 17 J. Comtemp. Leg. Issues 139 (2008).
I don't want this post to be a screed. I am looking for next steps that will produce concrete and sustainable forward progress. But I have read enough history on the growth and evolution of U.S. legal education to have a realistic view on institutional change. Here are my two primary rules:
Rule #1: Great ideas are not enough. As a result, bold initiatives by professional organizations like the AALS or the ABA rarely have staying power. Law professors are intellectuals; hence, we fall in love with our own ideas. But all-to0-often, we fail to do a coherent institutional analysis that explains why others will adopt our ideas. Skipping this step is one of the privileges (and hazards) of the ivory tower. For a more elaborate discussion of this point, see Why I Worry About the Carnegie Report: Four Data Points (Dec. 7, 2007).
Rule #2: Sustainable ideas within any industry are always accompanied by institutional self-interest--legal education is no exception. In other words, the people who execute on the idea have to be made better off, e.g., through financial gains, professional reputation, leisure, economic security, or (at the individual level) self-actualization. This was secret sauce behind the Langdell case model: It was more effective than self-study yet it facilitated large enough class sizes to generate a perennial economic surplus. In turn, lawyers-turned-law-professors were freed from the commercial pressures of practice and could advance their careers as experts. The university, professors, and students were all made better off. As a second order effect, so was the legal profession. Of course, this revolution occurred 100 years ago. It is time for a new legal education formula that fits the 21st century.
Lippe understands this calculus. Indeed, he ends his essay with a "glass is half-full" perspective that is bound to be overlooked:
While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source ... of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms' appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.
In other words, innovation starts at home with a law school business model that pays the freight by delivering financial and reputational benefits to stakeholders. And if our metric is 20 slots in US News, we are setting the bar too low. This type of innovation creates an entirely new system of merit. To my mind, Lippe's Law School 4.0 is a worthwhile and achievable goal. The only downside is that we have to fully engage in the problems of the modern legal profession and be willing to fall flat on our faces. Sounds interesting. Sign me up.
In contrast, the gravamen of Lippe's remarks are about thought leadership and the ability to identify future solutions to macro-level problems. Consider the following trend-lines, which are representative of the types of issues that Lippe often discusses in his LOR and Am Law Daily columns:
- Nature and Cost of Civil litigation. With the proliferation of electronic documents, civil litigation is becoming more time-consuming and expensive. Thus, disposition of cases is increasingly influenced by the financial wherewithal to wage prolonged campaigns in court rather than the merits of underlying disputes. A thought leader would be proposing (a) how to re-engineer the civil justice in a way that reduces costs and improves access, or (b) how to anticipate and avoid legal disputes through systems that keep clients out of a broken civil justice system.
Mediation and arbitration are just the beginning, not the end. For example, the credit card industry has eliminated virtually lawyers from consumer-vendor disputes. See Morriss & Korosec, Private Dispute Resolution in the Card Context (working paper, June 2005). Some would argue that this is a good thing for business and consumers. Further, the lawyers who innovate through designing such a system will always get a prime seat at the table. In contrast, lawyers wedded to established ways may find fewer buyers of their services.
- Shifting Nature of Clients. Because of the shifting economics of the profession, an ever large proportion of law graduates earn their living as "thing" lawyers rather than "people" lawyer. Believe it or not, in the 1930s, the dean of Yale Law School was preoccupied with the oversupply of lawyers. Why? Because the majority of Yale grads became general practitioners--i.e., people lawyers--within the local New England economy. See Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An AALS Survey, 47 Yale L. J. 1272 (1938). That world no longer exists. The overwhelming majority of law school graduates will serve as "thing" lawyers, either for government, private industry, or a public interest cause. Yet, hearkening back to the time of Dean Clark, our entire regulatory framework is premised on the idea of a client who is a single, natural person.
We lawyers claim to be responsive to economic and social forces and readily profess our commitment to the public interest. See Preamble, MPRC para. 6 ("As a public citizen, a lawyer should
seek improvement of the law, access to the legal system, the administration of justice and
the quality of service rendered by the legal profession. ... A lawyer
should aid the legal profession in pursuing these objectives and should help the bar
regulate itself in the public interest."). Yet, for nearly a century, the pace of regulatory reform for lawyers has been either glacial or non-existent. And all-too-often, the changes that have occurred are driven by "parochial or self-interested" motives. Id at para. 12.
Under Lippe's thought-leader ideal, members of the legal academy would be re-conceptualizing the assumptions underneath lawyer regulation and proposing an institutionally coherent strategy for altering the regulatory landscape in a way that simultaneously helps ordinary citizens, business, and the democratic process. In theory, we've got the time, resources, and brain power. Where is the leadership?
- Cost and Quality of Legal Education. Over the last 30 years, the cost of a legal education has increased approximately three times faster than the average household incomes. Yet, it is difficult to identify a corresponding innovation within legal education that justifies the higher cost. A thought leader conceives of ways to reduce the cost of legal education or equip graduates with a larger skill set that is likely to provide a substantial return on investment. Here, I am not talking MacCrate-type skills, as important as they might be. Rather, I am thinking legal-process engineering and the ability to standardize and commoditize legal products in a way that increases predictability and drives down cost. See, e.g., Richard Susskind's collected works.
If lawyers solve problems, perhaps traditional legal disputes and transactions are a mere subset of the services we might provide. What skills are especially relevant to the 21st century global economy. Once again, because of our time, resources, and brain power, Lippe is surprised we are not leading the conversation. Maybe he has a point.
It is tempting to write Lippe off as an arrogant Silicon Valley GC. But before we do, it is worth noting that Fred Krebs, president of the Association of Corporate Counsel (ACC), wrote in a comment to Lippe's essay that Paul was "Right on point. Should be required reading for law school faculty." We can be dismissive of Krebs as well, but the legal spend of his constituents (in-house legal departments) is the very thing that supports the high cost structure of legal education. If legal educators are uninterested in problems of people who buy the majority of legal services, we should not be surprised when in-house lawyers work very hard to reduce their reliance on U.S.-trained lawyers. Entrepreneurs in Europe, India, and Latin America are salivating at the prospect of easier access to the U.S. corporate legal market. There is just no way that a state disciplinary commission is going to use the unauthorized-practice-of-law hammer to challenge how GE or DuPont allocates its legal spend--there is zero consumer protection basis for stopping the mass migration of this type of legal work.
Frankly, amidst the meltdown of the entry-level lawyer job market, I am surprised by the lack of significant interest or attention by legal academics, at least as judged by blogosphere traffic. It is all-too-easy to assume that the market will rebound next year, or 2011 at the latest. To this I might ask, "What is the basis for the optimism?" The salad days of 2004 to 2008 were driven by a Wall Street juggernaut that destroyed the U.S. investment banking industry, which was the historical client basis for the industry's most prestigious law firms. And here is a more pointed follow-up question, "How much does the legal economy need to recover so that our students can to support their debt load?" See, e.g., Jonathan Glater, Finding Debt a Bigger Hurdle than the Bar Exam, NY Times, July 1, 2009. Obviously, the answer to this question requires some careful study and some math. Vague appeals to the business cycle just won't cut it.
It is one thing to acknowledge that we lack good answers--that part is forgivable. But it is quite another to ignore or minimize the problem because, quite frankly, it really does not affect us personally. All of this reminds me of my youth in Cleveland, Ohio during the 1970s and 80s. Lots of my friends' parents worked for General Motors, which offered high pay, amazing benefits, predictable hours, and long vacations. No one else seemed to have it so good. I remember thinking at the time that GM was both complacent and invincible. It turned out that I was only half right. So I worry about my own industry. Do I have the mindset of a GM employee circa 1979? God, I hope not.
Recently, the editors of Above-the Law surveyed the changes within the legal job market and asked two good questions: (1) if the Howrey/Drinker Biddle/Frost Brown Todd apprenticeship model gains traction, is it appropriate to shorten law school to two years? And (2) if law school salaries are going down, should law schools be expected to "share in the pain" by figuring out ways to reduce tuition? Unless the job market significantly improves during the next 12 months, it is going to get much more difficult for us to ignore these issues. For a realistic cost analysis of the current system, see Edward Rubin, Should Law Schools Support Faculty Research, 17 J. Comtemp. Leg. Issues 139 (2008).
I don't want this post to be a screed. I am looking for next steps that will produce concrete and sustainable forward progress. But I have read enough history on the growth and evolution of U.S. legal education to have a realistic view on institutional change. Here are my two primary rules:
Rule #1: Great ideas are not enough. As a result, bold initiatives by professional organizations like the AALS or the ABA rarely have staying power. Law professors are intellectuals; hence, we fall in love with our own ideas. But all-to0-often, we fail to do a coherent institutional analysis that explains why others will adopt our ideas. Skipping this step is one of the privileges (and hazards) of the ivory tower. For a more elaborate discussion of this point, see Why I Worry About the Carnegie Report: Four Data Points (Dec. 7, 2007).
Rule #2: Sustainable ideas within any industry are always accompanied by institutional self-interest--legal education is no exception. In other words, the people who execute on the idea have to be made better off, e.g., through financial gains, professional reputation, leisure, economic security, or (at the individual level) self-actualization. This was secret sauce behind the Langdell case model: It was more effective than self-study yet it facilitated large enough class sizes to generate a perennial economic surplus. In turn, lawyers-turned-law-professors were freed from the commercial pressures of practice and could advance their careers as experts. The university, professors, and students were all made better off. As a second order effect, so was the legal profession. Of course, this revolution occurred 100 years ago. It is time for a new legal education formula that fits the 21st century.
Lippe understands this calculus. Indeed, he ends his essay with a "glass is half-full" perspective that is bound to be overlooked:
While law schools need to figure out how to get graduates out the door faster and for less money, they also are the logical source ... of skills (as well as reputation and network) development for lawyers to become fully functional, especially as firms' appetite for subsidizing training will decline. Medical schools and business schools make a ton of money at continuing/executive education, so this is a great opportunity to enrich the faculty and student experience, generate an income stream, and engender more alumni loyalty.
Although you're spot-on correct, there's a variable you haven't mentioned, which is the bar examination. I would argue that the bar exam tests skills which are almost irrelevant to the practice of law, and since many or most law schools "teach to the exam," law school curricula are a reflection of the bar exam's irrelevance.
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Posted by: Medical Schools Sacramento | 17 November 2009 at 03:38 AM
I'm interested in knowing what Ken Dau-Schmidt means when he refers in his last paragraph to "the talented but unexceptional students of modest means." I would have thought that a "talented" student is an "exceptional" one, but clearly Ken is getting at something else entirely by using the two terms separately.
Posted by: A GC | 20 July 2009 at 09:18 PM
I recently had a similar discussion with my son who just started law school and is contemplating the required debt load.
Law faculty salaries went up over the last two decades not because of any teaching innovation, but because the value of what we produce (lawyers) also increased dramatically over those years. Its just the market at work, spurred on by bloated endowments enjoyed by the large private schools.
Debt load has increased in part because the value and price of a law degree has gone up, but also because we are in the process of privatizing education in the US. Since at least the 1980's state support for higher education has significantly declined leaving students to pay for this good on their own.
Will these trends continue? I think that at least the upward pressure on legal salaries an law faculty salaries has already changed with the recent recession. Law faculty salaries across the country are frozen (Indiana), or even in decline (California). The privatization of higher education continues however, so the debt load will continue to increase. The limit will be that students will not borrow more than the value of a legal education over their next best alternative. There is a limit and we cannot exceed it, but we probably aren't there yet.
The people who have been lost in all of this are the talented but unexceptional students of modest means who can't secure the resources to go to law school even though it would pay for them to do so. Schools have incentives to commit scholarship resources to high test score and grades students who help them in the rankings and minority and female students who help achieve goals of diversity. There is no incentive to help students who simply need a little financial aid to make law school work.
Posted by: Ken Dau-Schmidt | 12 July 2009 at 06:08 PM
"Is any of this new? Since at least the 1980’s, law schools have been chided for doing a poor job at training future lawyers."
From a financial perspective, graduating from law school now is nothing like graduating from law school in the eighties.
From 1970 to 2007, according to the ABA, lawyers per capita in the United States went from 1 in 700 to 1 in 263. (I don't know how that's measured, or how reliable that measure is.) From 1985 to 2008, the average cost of tuition at a public law school went from $2,006 to $16,836. (http://www.abanet.org/legaled/statistics/charts/stats%20-%205.pdf)
Law school imposes a frightening, often crushing debt load, and it opens access to a job market that may already have a long-term over supply of lawyers. I'm delighted that law professors are thinking about whether the numbers are sustainable.
Posted by: Jack | 10 July 2009 at 09:09 AM
One thing that law school doesn't teach for transactional lawyers, but should (I had one class with supplemental materials that did this), is to teach what the customary deals are first, and the motivations that drive those deals second, and the doctrine that applies to them third.
Unless you have worked in the relevant lines of business, learning this material in another order is like getting perfectly accurate directions to your destination, in Chinese.
Posted by: ohwilleke | 08 July 2009 at 03:30 PM
Is any of this new? Since at least the 1980’s, law schools have been chided for doing a poor job at training future lawyers. This criticism has been accompanied by pressure to increase their emphasis on skills training. The pressure increased with the publication of the McCrate Report in 1992, and then again with the publication of the Carnegie Report in 2007. In my remarks given last month at the 2009 mid-year meeting of the AALS Conference on Business Associations ("What Law Schools Should Teach Future Transactional Lawyers: Perspectives from Practice") I respond to the questions "Are law schools teaching students adequate transactional skills?" and "From the standpoint of preparing students for a transactional practice, what would you like to see law schools change?" I just posted an edited version of these remarks here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430087.
Posted by: MAW | 08 July 2009 at 03:15 PM
I think that Ohwilleke's comments are probably the most sensible and telling insights that I have heard on this issue and related issues regarding what law school can and can't reasonably do. It's especially compelling that it comes from someone who hung out their own shingle right after law school - dispelling the notion that marketable skills aren't made available. I had a number of classmates who did this as well. My recollection of law school was that there were plenty of opportunities for students to learn practical skills - pretrial litigation; trial practice; appellate advocacy; drafting; corporate governance; multiple clinics, etc. - I assume that these opportunities still exist.
Posted by: Jeff Yates | 07 July 2009 at 12:29 PM
Ohwilleke, David, Richard, you raise some good points. Thanks for your comments. bh.
Posted by: Bill Henderson | 06 July 2009 at 11:14 PM
Relevance may be an issue, but while law schools may not live up to their own ideals, they are also still high on the graduate degree relevance scale.
It is possible to go out and solo practice immediately after graduating. I did it. I've worked at a firm where the founding partner did it. It wasn't an ideal way to make a living, but the notion that lawyers are not teaching things that they are well suited to teach isn't entirely true. Much of what you need to learn to do the job either cannot be taught at all in a traditional academic setting (e.g., "people skills" and "cultural capital"), or is easily learned ("finding your way to the courthouse").
It will be a long time before a J.D. has worse job prospects than someone with an M.A., M.S. or PhD in the humanities or social sciences (apart from psychology and economics). The idea that 100% of law school graduates can get jobs that fully pay off their student loans and make them a good living to boot was probably always unrealistic and new student loan payment plans are probably a good way to address that problem.
Also, while there is an oversupply of lawyers handling Wall Street transactions, other fields like family law, are suffering a lawyer shortage (50% of parties go pro se), and the solution may be to find better ways to fund legal services where there is a shortage.
Similarly, part of the problem is that we have institutions, like 2000-2200 billable hour a year expectations for associates that made sense in a severe lawyer shortage situation that may no longer make sense. Why not start associates at 1200-1500 billable hours a year, pay them half as much, and assume that student loans may take 15-25 years to pay off? Small firms must do what their clients need done on their schedules, because they have little room to buffer what needs to be done against their resources. Big firms benefit from the law of averages to smooth their work loads to some extent, and are better able to handle surges of client demand if they don't have all of their lawyers operating at 110% all of the time.
In a completely different context, public defenders are routinely operating at insane case loads and prosecutors are preparing jury trials at a rate an order of magnitude greater than so called "trial lawyers." Again, these are institutions that have their roots in lawyer shortages. If we are going to have economic stimulus, why not increase the number of lawyers on the payroll in these positions?
While Jerry McGuire may have had it wrong in "fewer clients, less money," that doesn't mean that there aren't places where it wouldn't make sense to have more lawyers handling the existing demand.
Posted by: ohwilleke | 06 July 2009 at 06:54 PM
Thanks for this! I'd suggest that one pressure point may be in the area of law-student (and lawyer) well-being. The huge jump in depression, anxiety, drinking as a coping behavior, etc., during the first six months of law school is tough for those leading law schools to shrug off (though some do). The good news is that positive psychology research suggests that, by focusing on improving well-being, schools are also likely to produce lawyers that are "fully functional." See, http://daveshearon.typepad.com/daveshearon/2007/02/dear_ann_althou.html
Posted by: Dave Shearon | 06 July 2009 at 08:49 AM
Bill,
A very interesting post (as usual). Much to agree with. In the UK, we are beginning to wonder how and increasingly marketised higher education system will adapt to please both students and the profession whilst retaining liberal education credentials.
Interestingly, given your comments on costs and e-disclosure, there is a major piece of work, led by a Court of Appeal judge, Lord Justice Jackson, on redesiging the costs system behind civil litigation. For those interested in costs and lawyers quite a few, sometimes radical, ideas are floated and there is a collection of interesting data and the Jackson LJ was also quick to look at empirical research (much of if from the US). An academic economistis amongst his panel of assessors. There's an extended section on e-disclosure.
Anyone interested in the report can download it here:
http://www.judiciary.gov.uk/about_judiciary/cost-review/preliminary-report.htm
It's enormous, but worth the read I think. I have summarised and commented on it here if anyone is interested:
http://civiljustice.wordpress.com/jackson-talk/
Posted by: Richard Moorhead, Cardiff University | 03 July 2009 at 02:27 AM