The confusion of legal education + post-script

While The Confusion Of Legal Education is based on US experience, it’s relevant to all developed countries.

There may be one or two individuals out there who have missed the deluge of articles about what is happening in legal education. Let me bring you up to speed. The recession wrought its fury on the robust pipeline of undergraduate students going to law school, ripping it open and allowing students in that pipeline to spill out and head towards other occupations.

The number of students enrolling in law schools plummeted (25% since 2010). The enrollment drop led to declining law school revenues, which led to cutbacks, changes in standards, and hand-wringing. Many in law school administration and especially in the professor ranks were confused. Just because the number of jobs for new graduates had declined, students seemed willing to skip spending $150K (mostly debt) for a legal education. How odd.

There it was, however, in red and white on the ledger sheet. Law school administrators did something. They reduced spending, reduced hiring, and even cut back on professor’s budgets. Many other steps you might expect them to take, they did not. Remember, law school tenured professors run the show on many of those things. You cannot compare what a prudent business executive would do to what a law firm equity partner or tenured professor will do.

“What could possibly happen next,” wondered the schools. The answer has been clear: top undergraduates, measured by high LSAT scores, are abandoning the pipeline. The number of students scoring over 160 on the LSAT dropped by 45%.

Some Of The Shortcomings Of Legal Education

It is difficult to construct a comprehensive list of what ails legal education. Don’t worry, it seems that many would like to take the time to do just that. I’m sure we will see reports years from now analyzing data from today and talking about “next steps.” This is the academic way. Study history and try to explain it. Fortunately, we can cut to the chase and identify those areas where we can make changes now and effect outcomes now. I offer some ideas below, but there are many other worthwhile solutions we could add to my meager list.

1. Demand. The need for highly paid lawyers has declined. Large law firms, which at one time hired 40% of law school graduates, have shut the door. Clients will not pay for first year lawyers. They also have stopped sending work to law firms. A recent survey showed 75% of corporate legal work is kept in-house (a decade ago, that was around 40%). At lower price points, clients are foregoing lawyers and doing the work themselves. At the individual level, the number of self-represented litigants has increased. We can alter the demand curve by introducing relevance into legal education.
2. Opportunity Cost. The cost of a legal education remains very high and most students pay with debt. When leaving law school, students may owe as much as $80K to $150K (or more) in loans (the average in 2015 was a bit over $140,000). Theyv also have given up earnings for three years (some earn small amounts during summer employment and through part-time school jobs, but the amount pales when compared to full-time job pay). We can reduce the opportunity cost by offering many degree-career paths through law school (expanding the revenue base) and adjusting law school spending (introducing more co-op possibilities and replacing some clinics).
3. Preparedness. Doctors exit school with significant experience treating patients, MBAs exit school with significant experience doing analytical work, law students exit school with significant experience reading casebooks. Clinics operate as if we still practiced in the 1960s. Technology is mostly absent and when present focuses on expensive tools most students will never see. Essential skills are not taught (most schools shun anything to do with actually delivering legal services, which happens to be the one thing most students need to learn). We could re-configure classes to combine deep skill learning with theory training (many things covered in class could be done more effectively using outside of class tools).
4. Innovation. For the 150 years or so, a lawyer could get away with practicing law one way — the old way. As in all other areas of society, technology has changed that paradigm. Modern technologies are taking over legal services tasks, changing pricing structures, and opening new questions in law. Students receive little or no training on how to innovate so their services will remain relevant on leaving law school. What a graduate does today will not be the same as what a lawyer does in five years. We could add innovation training using design thinking and lean thinking and tie that training to real-world projects.
5. Scope. Go to law school, become a lawyer or a politician. That basic equation is gone, forever. Law school graduates, by choice or by necessity, have been going into a broad range of jobs. The one-to-one relationship between a professional school and occupation is old thinking. The one-to-many relationship reflects reality. Law schools are taking themselves out of the game by defining what they do as teaching students to interpret the law. Clients want problem-solvers, which means students need training on a broad range of problem solving skills. Devoting precious time to teaching students how to navigate the Bluebook only reinforces how out-of-the-loop legal education has become. We could introduce degree and career paths for legal services delivery professionals who want something other than a law degree.
6. It’s the data, stupid. Lawyers sit in their offices and say, “in my experience.” The rest of the world says, “the data shows…” Modern legal practices combine data analytics with experience. Law schools cling to the idea that crude subjects such as statistics are best left to others. We can introduce in all courses, and add courses focusing on, data understanding and analytics.
7. Technology. I mentioned tech earlier, but it deserves its own category. Students entering law school in Fall 2017 will get their bar licenses near the end of 2020. Those students learning contracts, torts, property, etc., in September 2017 will start using the knowledge and skills they learn in January 2021 (most swearing in ceremonies will be in September through November 2020). How far will technologies such as blockchain and artificial intelligence advance during that time? Classes today are already well behind the market. (Indeed, law schools would do well to increase the tech component and attract more STEM students.) How far behind will those students be in three and a half years? We can employ technology in all courses.

What The Experts Say

Law.com asked 11 experts, “what the heck?” They put the challenge formally as “tell us how law schools can make up those recruiting losses and appeal once again to top prospects.” The answers range from realist to “wish upon a star.” They reflect why legal eduction exists in a state of confusion. Some lack any sense of urgency, others are complacent. And some get it and bring the strong message home: things need to change now.

Professors like to joke about the glacial pace of change in academia. The joke is on them. Thanks to global climate change, the glaciers now have academia beat.

All Is Not Lost

Perhaps twenty law schools (about 10% of the 2o5 accredited, non-military law schools) have made efforts to adapt, and the list increases slightly each year. A greater number of schools are experimenting with a course or two. The good news is that law schools can address all of the issues I identified and have impact in short order. They don’t take massive capital investments. Many require an acknowledgment that something needs to be done and the willingness to lead.

Law schools should be a place to try out ideas, to innovate, to challenge, to take some risks. They should be fertile grounds for developing new ways to govern in a world where post-WW II institutions are failing. They should be ensuring that our courts are constantly behind, that our laws out years out of date when enacted, and that laws and lawyers are accessible. Let’s not wait years to try to understand prospective law students made one or two years ago. Let’s start a program of continuous improvement in law schools to fix what we know is wrong.