Friday, January 18, 2013

A Blueprint for Change

Several months ago I wrote a book review of Brian Tamanaha's important book, Failing Law Schools.  In the last paragraph, I wrote:

Brian discusses the bleak employment prospects of law schools, but (through no fault of his own) understates the nature of the structural change that is occurring in the U.S. and global market for legal services.  In Part II, I will write about some logical next steps for law schools looking to get ahead of the coming tsunami.

I tried to write Part II, but a blog post just was not up to the task.  Further, I sensed that my colleagues were in no mood for half-baked solutions. There has been enormous criticism of legal education on the blogs and in the media, but very little in the way of detailed prescriptions to improve the situation.  I felt an obligation to back off on the criticism and focus on solutions.  So, in essence, Part II of my Tamanaha review became an article.

I just posted to SSRN an article entitled "A Blueprint for Change" forthcoming in the Pepperdine Law Review.  It is both a diagnosis and a proposed solution -- a solution I am actively pursuing. Here is the abstract:

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.

I have a large backlog of shorter articles and analyses that I have not posted because I wanted my own detailed solution in the public domain.   I hope to tie all of these ideas together over the coming weeks.

Thank you, Brian Tamanaha, for writing an book that required me to think in terms of solutions.

[posted by Bill Henderson]

Current events, Data on legal education, Data on the profession, Innovations in legal education, Scholarship on legal education, Scholarship on the legal profession, Structural change | Permalink


Rearranging the deckchairs on the Titanic. The problem isn't what the Law Schools are doing, the problem is the requirement, enforced by bar admission rules in most states, that the prospective lawyer go through 7 years of post secondary education.

Of the 7, 5 years, costing anywhere from $100,000 to $300,000, are completely wasted.

This is easy to prove for the undergraduate years. Neither the law schools nor the bar examiners have ever specified that any particular content be learned during those years. The prospective lawyer is best advised to find in the easiest major on campus, and shun STEM to avoid getting Bs. He may then spend those golden years drinking and hooking up. What the hey, its only money.

As for the 5th useless year. It is the 3rd year of law school. In my day, we said that the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. I can't recall learning anything in my third year, except how to play cards. And no lawyer I have ever met has thought it was anything other than a waste. So, why do we make the kids pay for it? What did they do wrong? that they should have to stump up ~$100,000 and forgo a year of earnings. The thing to do is not to fix it. It is to abolish it.

The solution is two fold.

First, the bar examiners should drop the 7 year requirement. As I have demonstrated, 5 of them are wasted, are far to expensive and and involve too much opportunity cost. (not totally on point, but I don't see why the bar examiners require an undergraduate degree, they should limit themselves to what is required to go into a court room, the adjective law).

Second, the law schools should restructure their basic program. Only two years -- 16 semester courses -- of legal subjects* are necessary to be able to practice law. They can be taught to BAs, but they could also be combined with two years of general education for a 4 year undergraduate program. In either event the person who successfully completed the program would be given the old LL.B. (Bachelor of Laws**).

The advanced skill you want to teach should be taught in LLM programs that would not be required by the bar examiners, although they might be required by some employers. But, you don't need them to work for the county DA or to join a suburban practice that does car wrecks, DUI, and divorces.

Is this workable. Of course it is. My father z'l and my grandfather z'l, both had undergraduate LL.B.s, and practiced law with great success and much honor in the bar and the community for many years (1921 - 1966 and 1947 - 1990). So it was for hundreds of thousands of lawyers before the organized bar talked the bar examiners into the 7 year requirement. Just remember, Abraham Lincoln did not go to law school. And you, anyone who reads these words, are not a better lawyer than Abraham Lincoln. Really, you aren't.

** The J.D. is the most ridiculously overblown degree in the world. It has nowhere near the academic content of a PhD, and the comparison to an MD is absurd, not only do the MDs require 4 years, but their undergraduate education has content requirements, and they are not really fully fledged as physicians or surgeons until they have completed at least 3 years of residency and two more examinations.

* Adjective law: Civil Procedure 2 semesters, Criminal Procedure 2, Federal Jurisdiction 1, Appellate Procedure 1, Evidence 1, Ethics 1.
Substantive law: Criminal Law 2, Torts 2, Property 1, Contracts 1, Commercial 1, Associations 1.

Posted by: Walter Sobchak | Jan 22, 2013 4:30:20 PM

This seems an ideal candidate for federalism: to the extent that there become one or more well thought out vehicles of change, whether as suggested by the above comment or this post itself, is there a state that has the political will to change certification standards to give it a try?

Posted by: Ralph | Jan 27, 2013 11:53:36 AM

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