Law School 4.0: Are Law Schools Relevant to the Future of Law?

[posted by Bill Henderson, crossposted to ELS Blog]

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.  [Lipshaw recently opined on Lippe as well.] 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:

• 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.

More after the jump ... 

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.