Sunday, December 29, 2013

Dispruption in Legal Education

"Disruption" has been a key word in our current stagnant economy. Gradual evolution in industry and institutions has been replaced by disruptive innovation.

The conditions exist for disruption in legal education. The legal economy still has not recovered from the recession, and many are predicting permanent changes for lawyers and law firms. Law schools face significantly declining enrollments, and their graduates face a tough job market and high debt. Moreover, the American legal system is not serving the legal needs of the middle and lower classes. Finally, delivery of instruction in law schools is based on a nineteenth-century model that fails to prepare graduates for the 21st century. The question is not if or when disruption will occur in legal education, but who will bring it about.

David Thomson and I discussed disruption at the Educating Tomorrow’s Lawyers Conference in Denver in October. He pointed out to me that law schools must make the changes or others will do it for us, and we probably will not like the changes made by others. During his presentation at the conference, he made the radical proposal that "A possible answer to this conundrum is to reduce law school to two years, but do it by removing the first year. Or rather, significantly reengineering it, by putting most of it online." (Read his full proposal here) The second and third years would be in the building and consist of additional core courses and experiential courses.

Similarly, in a recent article on the legal market, Jordan Furlong declared, "And yet I still see people in this industry asking, "Where’s the revolution? When is the change going to come?" Folks, the change is here. We’re living it. . . . Most importantly, the pace of that change is accelerating. More new things happened in this market in 2013 than in 2012. More happened in 2012 than in 2011, in 2011 than in 2010, and so on." (here)

He continued: "So what’s the problem? Why am I suddenly also concerned about whether all this change will, in fact, be a good thing? Because while I hope and trust that the traditional legal market will fall away and that a better one will replace it, I’m increasingly alive to another possibility — that the traditional legal market may fall away, and nothing will replace it."

He remarked that "George Friedman has observed, accurately, that the people who start revolutions are often not the people who finish them, and that revolutions do not always end up where their instigators hoped they would. I think it’s fair to say that we’re at the start of a revolution in the legal services market. That should be, and is, exhilarating. But it should also summon us to the barricades to make sure that, if the incumbent regime falls, looting and chaos are not the immediate outcome and the lasting legacy."

He also talked about law schools: "If you want an example, take a look at law schools. You’re probably aware that applications to US law schools have been dropping like a stone and that enrolment is now down to its lowest level since 1977. As Bruce MacEwen notes (and as I’ve been saying for some time now), this story has only one ending: many American law schools will close or will become so small as to turn into veritable cottage businesses. There’s no question that there are too many law schools providing too little value to their students and to the clients they’ll someday struggle to serve, and that a major correction is overdue here. There’s also a lot of schadenfreude throughout the profession right now as these schools wriggle on the hook."

He warned, "Or what if the failed law schools are followed by profiteering private law degree factories that replace the passive academic lecture with cookie-cutter ‘practical training’ packages bereft of jurisprudence and professionalism?"

He concluded, "this is a call for the legal profession to recognize that change is really happening — and that we now need to throw our efforts into trying to manage, to the extent possible, the enormously strong forces coming into play. . . . Revolutions are powerful, frightening, and unpredictable things. Once they’re really underway, they can’t be controlled or directed."

I share Thomson’s and Furlong’s concerns. If law schools and law professors do not institute the changes, who will?

I believe that part of the disruption in legal education will come from state bars and maybe the ABA. As I have noted previously, the California Bar enacted a provision that requires "15 units of practice-based, experiential course work or an apprenticeship equivalent during law school, 50 hours of legal services devoted to pro bono or modest means clients prior to admission or in the first two years of practice and 10 additional MCLE hours focused on law practice competency training." Similarly, The ABA Council on Legal Education and Admissions to the Bar has sent out for notice and comment a proposal to require 15 hours of clinics, simulations, or externships.

We should welcome these changes from the state bars and the ABA.

However, all the changes may not be as positive as those proposed by the state bars and the ABA. There are many who will seek to profit from the law school crisis. Particularly, there will be entities who will seek to profit by offering online legal education without considering the value received by students–the quality of instruction. (here)  If law schools, law professors, and other parties interested in the quality of legal education and what legal education provides to society don’t act before the entrepreneurs do, legal education and society will suffer dearly.

As Wilfred Owen proclaimed, "All a poet can do today is warn."

(Scott Fruehwald)

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