Saturday, January 19, 2013
Professor William D. Henderson, a leader in legal education scholarship, has just posted a remarkable article, A Blueprint for Change, on SSRN. The article is remarkable because, not only does it view the complex problem of legal education and the legal market in a new way, it provides a viable solution for the problems in legal education using innovative and practical proposals based on how other fields, including the legal market as a whole, have dealt with similar problems. In fact, he calls his piece "a strategy memo addressed to my fellow legal educators on how to respond to a profoundly serious business problem."
Henderson writes, "I believe the most serious problem [with legal education] is inadequate quality." Accordingly, the thesis of Henderson’s article is "To justify our current price tag, a law degree needs to be a transformative educational experience that confers personal and professional benefits to students and positive external benefits to society in the form of more capable leaders and problem solvers." He writes, "My own belief is that educational quality is the next great frontier. . . . Improving quality changes the debate from "how much does my law degree cost?" to "how much is my law school degree worth?" If the worth is sufficiently high, I believe both public and private employers would be willing to subsidize it in exchange for preferred access to graduates."
Professor Henderson describes his article: "This Article discusses the financial viability of law schools in the face of massive structural changes now occurring within the legal industry. It then offers a blueprint for change – a realistic way for law schools to retool themselves in an attempt to provide our students with high quality professional employment in a rapidly changing world. Because no institution can instantaneously reinvent itself, a key element of my proposal is the ‘12% solution.’ Approximately 12% of faculty members take the lead on building a competency-based curriculum that is designed to accelerate the development of valuable skills and behaviors prized by both legal and nonlegal employers. For a variety of practical reasons, successful implementation of the blueprint requires law schools to band together in consortia. The goal of these initiatives needs to be the creation and implementation of a world-class professional education in which our graduates consistently and measurably outperform graduates from traditional J.D. programs."
While Professor Henderson’s analysis of legal education and the legal market is new and convincing, I would like to concentrate on his solutions in this post. First, he has developed a blueprint for change:
(1) Build consortia of law schools that can reliably pull together information, resources, and expertise for the purpose of large-scale collaborations focused on labor market outcomes. These consortia should be built in conjunction with alumni and employers, who are themselves looking for resources and venues that help them successfully adapt to a rapidly changing legal marketplace.
(2) Use the economies of scale and scope of a consortium to begin the process of constructing a competency-based curriculum that enables students to enter traditional law practice, the Susskind process driven world, or a third alternative identified and targeted by the law school;
(3) Implement a realistic allocation of the retooling burden—what I call the "12% solution."
Professor Henderson would produce a competency-based curriculum in five steps:
(1) In conjunction with a group of alumni and employers pulled together through a consortium of law schools, identify examples of professional excellence in both the new and old legal economies.
(2) Break these examples into discrete domains of knowledge, skills, and behaviors, identifying both the overlaps and distinctive features of specific practice areas. Industrial and organizational psychology provides the methodology, which has been applied in virtually all industries.
(3) Use the iterative process of theory and data to determine the most effective ways to sequence and teach the requisite knowledge, skills, behaviors, and competencies.
(4) Measure the post-graduate performance of students who have had the benefit of this education (a summer program that eventually evolves into a curricular program at individual law schools) against the post-graduate performance of law students who received a traditional J.D. education.
(5) Build feedback loops on the student, faculty, and employer experience, evaluate program and repeat. Yes, that’s right, repeat. Version 1.0 won’t be near good enough.
He also has three guiding principles for building a competency-based curriculum:
(1) "Practice-Ready" is Not Enough. Despite the rebukes often received from the practicing bar, for most law schools an emphasis on "practice-ready" skills will be insufficient to cope with the structural changes occurring within the legal industry. . . . practice-ready skills training will not change the total number of traditional legal jobs available to law school graduates. Moreover, one of greatest dangers of the "practice ready" solution is that we law professors will too readily conclude that we don’t need to leave the building—that is, engage with [the] profession and the industry— to find a solution. Our schools would just need to hire more clinicians. Yet, this is a very expensive solution that fails to address the longer-term systemic employment problems.
(2) Design and Build It Yourself.
(3) Alliances with Employers. Law schools have one factor working in our favor. Legal employers are facing a battle over market share, and high quality professional talent is the solution to their problem.
Finally, to deal with institutional resistence and issues of cost, Professor Henderson proposes a 12% solution: "we start with 12% of the curriculum—the equivalent of one course per year—driven by a small subset the faculty, who are willing and able to take up the challenge." He adds, "The 12% solution is a plan for law faculty to create school-specific capital. A competency-based curriculum is best executed by the faculty who created it and who continue to grow and improve it." He also adds, "Ironically, in terms of scholarship, any law school that succeeds in creating true school-specific capital would be in a position to make an enormous contribution to the literature on experiential legal education, educational assessments, adult learning, teamwork, institutional design and change management."
He also replies to those who argue that law schools should not change to meet the needs of the market: "First, the types of education that will attain the highest valuation are complex problem-solving skills that enable law school graduates to communicate and collaborate in a highly complex, globalized environment. This is not vocational training; it is the creation of a new model of professional education that better prepares our graduates for the daunting political and economic challenges ahead. . . . Second, we academics are on thin ground when we claim that we must operate apart from market influences in order to develop critical thinking among our students. . . . Whether we like it or not, we already operate within a market. . . . Simply stated, the market for traditional legal education is drying up. . . . An education that is attuned to this changing marketplace is a valuable education. . . . Finally, there is nothing in the consortium approach described above that would urge a law school not to experiment with its own non-consortium initiatives."
He also replies to those who think that a solution like his is not possible. Professor Henderson writes, "As one law professor once told me, "I can’t teach ‘smart.’" In response, Professor Henderson writes, "The above five-step process contains a critical assumption: that students’ professional potential is not substantially fixed by incoming academic credentials. Stated another way, it is possible for a student who receives three years of an outstanding competency-based education to obtain a permanent, sustainable advantage over a more academically qualified student who received a traditional—and therefore largely unstructured—legal education. If an educational program can produce a measurable value-add that another school cannot reliably produce, employers will seek out the graduates of such a program; students will seek out admission; and alumni will want to contribute time and money toward its construction and improvement."
I find Professor Henderson’s "strategy memo" to be very convincing. Many education theorists and scientific writers (Geoff Colvin Malcolm Gladwell) believe that we can do better with teaching students. Students can overcome a lack of nature’s gifts to a large extent when they are properly taught–taught to be problem solvers, metacognitive learners, and self-engaged learners. This is not only important to our graduates, but to ourselves. Law schools cannot continue to turn out graduates who are educated for the past. Those that do will go bankrupt.
My only argument with Professor Henderson is his 12% solution. Is 12% of the faculty enough to truly change legal education? It might be with some tweaks. 12% of the faculty could work full time on legal education reform, while the remainder of the faculty adopted some educational innovations. For example, I believe that all law school classes should have problem solving as part of the teaching strategy. Similarly, faculty could adopt the new textbooks, which reflect the latest in educational scholarship, without a great deal of work. In any event, Professor Henderson’s article will invoke a great deal of debate for the next few years.