Like Cassandra Burke Robertson, I had another life before becoming a law professor full-time. Working as a law librarian for 25 years at three different law schools gave me a different perspective, within the system of legal education while not fully part of it. This post reflects that personal perspective, and expresses my sense of changes in the legal profession as filtered through my experience of the changing profession of librarianship.
The legal profession is, among other things, an information profession. Lawyers, as members of one of the three paradigmatic “learned professions” (the others being medicine and divinity), base their claim to professional status on the possession of “advanced, or complex, or esoteric, or arcane knowledge” or “formally rational abstract utilitarian knowledge.” The legal profession is facing increasing competition from other professions and semi-professions (from accountants and business consultants to paralegals and e-discovery vendors), the growing reluctance of clients to pay exorbitant legal fees and increased scrutiny of fees by corporate counsel, and the ready availability of legal information and services online.
Like other information professions such as librarianship and journalism, law is under siege because of the increasing opportunities for disintermediation, and is engaged in a fight over turf. Law libraries are a good example of this struggle. Almost 15 years ago Richard Danner wrote in “Redefining a Profession” about the pressures faced by law librarianship as a profession, competing for resources with IT (information technology) professionals over the authority to mediate and control access to information in law schools. The competition has only become fiercer in recent years, as most law libraries have faced massive budget cuts and the transfer of former library space to faculty office, administrative, and classroom space. The pressures arising from the current tuition and student debt crisis are intensifying the demands to cut, and even eliminate, law libraries.
To be sure, librarians and their supporters like to proclaim that “they will always need libraries and librarians.” But librarians struggle to articulate what it is that they provide that remains essential in a world of Google Books, Google Scholar, and instantaneous access to an enormous wealth of high quality online information, especially when the economics of practice lead lawyers to change from legal information maximizers to satisficers.
As for journalism, we are all familiar with the decline of newspapers: from one perspective, see the blog Newspaper Death Watch; from another, see the Public Editor of The New York Times asking “for reader input on whether and when New York Times news reporters should challenge ‘facts’ that are asserted by newsmakers they write about.”
One of the key insights in Richard Susskind’s book The End of Lawyers is that the current form of the practice of law is not eternal.
In The End of Lawyers?, Richard sets a new challenge for all lawyers. He urges them to ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working. He argues that the market is unlikely to tolerate expensive lawyers for tasks that can be better discharged with support of modern systems and techniques. He claims that the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditisation of legal services, and by the pervasive development and uptake of new and disruptive legal technologies. The threat here for lawyers is clear - their jobs may well be eroded or even displaced. At the same time, for entrepreneurial lawyers, Susskind foresees quite different law jobs emerging which may be highly rewarding, even if very different from those of today.
The late Larry Ribstein was one of the few legal academics to take these challenges seriously in articles like The Death of Big Law and Law’s Information Revolution. Most law schools refuse to face the implications of a radically restructured and smaller legal profession, preferring to tinker at the edges with minor curricular “reforms”: adding a couple of credits of international law to the first year here, a program or institute there. These reforms always seem to require adding more tenure-track faculty and more perks to retain them.
From the faculty perspective, “In America, we have absolutely the best system of legal education anywhere in the world,” so why fix what isn’t broken? Faculty and deans complain about the intrusiveness of the ABA accreditation process and the degree to which the process is captured by the practicing bar. Most of the practicing bar, conversely, is convinced that the process is controlled by self-interested faculty and deans. Meanwhile, Senators Boxer, Coburn, and Grassley are taking an interest in the apparent failure of law schools and the ABA to self-regulate, and some predict hearings and greater oversight by the federal government.
Self-interested members of the legal education profession would be wise to take the crisis seriously and consider what radical changes might be needed, before they are imposed on us from outside.
I don't understand why these discussions always carry such a heavy dose of recrimination, as if the person writing is the only one-- or one of a handful of brave souls-- who is thinking about these issues. The "faculty perspective" is represented here by one comment from a person who cannot be said to represent legal academia. I don't think William Robinson is a professor. The link does not work, but I'm assuming you were referencing the comments of the current ABA president, comments that drew lots of criticism from within the academy and without.
One of the key insights of the late Prof. Ribstein was that we do not know at this point exactly where the profession is headed, and we should consider things very carefully before we rush headlong into "radical changes" without understanding what is needed. For example, there is much talk about making legal education an undergraduate enterprise, citing Europe as a model. This is taking place even as reformers in Europe are suggesting a move away from that toward an American model. And law schools like Harvard are moving to constitute classes of people who are older and have done other things before they entered law school. In other words, they want older, not younger law students. Because someone on the outside may impose ill-considered changes upon legal education is no reason for legal academics to try to beat them to the punch by imposing our own ill-considered plans.
Posted by: BH | February 08, 2012 at 10:11 PM
I'm not sure about "recrimination," but from my conversations with some of the authors on this forum and in other contexts, I think many of those who write about these topics find they are, in fact, the only one who is thinking about these issues at their law school. Your dismissal of Robinson's comments because he is not a law professor, however, is quite typical, and coming from our faculty colleagues is another source of frustration for many of us.
I agree completely with you that we ought not to rush headlong into radical changes. I don't agree, though, that the proper academic response is to bury our heads in the sand and not contemplate any changes. One response might be to undertake scenario planning as opposed to strategic planning: try to envision a number of possible futures, and prepare to be flexible enough to respond in a variety of ways as the way forward becomes clearer. In my experience, though, most faculty seem to assume that the changes in the legal market are temporary and at any rate need not affect the privileged lifestyle we have as law faculty.
Posted by: Jim Milles | February 09, 2012 at 10:05 AM
You have misunderstood the nature of my complaint about Robinson's comments. It was your use of his statement as the "faculty perspective". I was expecting to see a quote from a member of a faculty when you began the sentence with, "From the faculty perspective ..." and then proceeded to quote a person who is not on a faculty. Am I wrong to see a problem with doing that? Get a quote from some faculty member who has said something like that. That would be fine.
That has not been my experience with faculty members, that many of them do not see that the legal profession is changing. There have been differing levels of responses to it, the things you characterize as meaningless "tinkering". But the forces we are talking about are going to hit no matter what. Radically restructuring law schools will not create more jobs. Lots of law schools could close, in the manner that dental schools closed, with the result being that we now have a shortage of dentists, and new schools are opening. If people are not living up to your personal standards of innovation, it may be because they have not found the answer. That is not the same thing as burying your head in the sand.
Posted by: BH | February 09, 2012 at 06:32 PM
Thanks for the clarification, BH. You're right, my statement was unclear. Actually we're not that far apart. Let me try again.
From the perspective of many faculty, why change anything? Life is pretty comfortable here in our tenured positions, with relatively light teaching loads and lots of time to pursue our scholarship. What goes on with the practicing bar is of little concern to us, so why waste our time thinking about it? What's most important is continuing to hire new faculty.
You're absolutely right that changing curricula, adding required courses on international law or clinical skills, or reconfiguring the third year, will do nothing to create more jobs (although dramatically cutting the cost of legal education will at least widen the range of jobs that graduates could take while still paying off their loan debt). That's not what I mean by "radical restructuring." What I mean is recognizing the extreme likelihood that applications to law school will continue to contract, so that law schools will be forced either to sharply shrink class sizes or lower admissions standards. Shrinking class sizes makes the annual faculty hiring binges look problematic; lowering admissions standards means saying goodbye to our aspirations to move into the top 50 or top 25. These are the prospects that I don't see faculty considering.
Posted by: James Milles | February 10, 2012 at 07:20 AM
That is also why I think that proposals to change law school to an undergraduate degree are non-starters. Institutional inertia is powerful, and I can't imagine most faculty I know being willing to give up the reduced teaching loads, support for faculty scholarship, and high salaries that come with law school's statuts as a graduate/professional program. I'm not sure that the current bar would savor the decreased status that would come from such a reform that lead to either.
Posted by: James Milles | February 10, 2012 at 07:25 AM
I hope this does not post twice. I posted earlier and it did not show up
There are plenty of reasons why changing law to an undergraduate program is not a good idea. Some of the countries that have that system are thinking of moving out of that model, Australia is one. There is talk of it in the UK and on the Continent, too. I recently discussed this with a professor (non-American) who has taught here and overseas in an undergraduate law program. He is also a practioner in his native country. He expressed dissatisfaction with some of the graduates who come to him, "They are too young." he said. Well, you could say, "They have been managing this far..." But just because they have been doing things a particular way for a long time does not mean it is the best way. And as the profession changes, and work at firms may become more complicated,(with low level document review work farmed out or computerized)you may want older people handling this work.
Science has shown that the area of the brain involving judgment is not fully developed in most people until they are about 25. And we probably did not need brain imaging to tell us this. In any event, why would we want to push back training for a field that requires judgment--handling people's lives-- so that people well below 25 will be coming into the profession?
You cannot think of law as an undergraduate degree without thinking of the quality of education K through 12. Over 80% of barristers in England are Oxbridge graduates. Over 50% of solicitors are Oxbridge graduates. Those schools draw their students heavily from what we would call private schools. It was a big deal this year when 58% of Oxford's offers went to kids from state schools. It is very likely that all of these kids are the best of the best, and are well prepared to take on the undergraduate courses they choose. Do we think the average American undergraduate is as well prepared to do that as students entering Oxbridge? Maybe they are. But we should consider the totality of the educational experiences of countries that have law as undergraduate program before we adopt that as a model.
France, where there is also talk of adopting law as a graduate program, is notoriously elitist and hardcore on educational matters. It was a while back, but when I was in school there I had a professor who used to hand exams back from the best to the worst, so everyone always knew how everyone else had done. Think of how long it took for them to even consider what they call "positive discrimination" to increase the diversity of their classes.
And, in the US, some schools are deliberately trying to put together classes comprised of older people who have been out in the world and done things. It makes the classes better, and they have heard from employers that they want more mature and well-rounded graduates.
I am sorry for going on so long. But I have given some reasons why we might want to pause over this proposed reform that have nothing to do with a desire to keep an easy life or any other of the charges leveled at law professors. That is what I meant by a tone of recrimination, and attributing bad motivations to a large swath of people whom you cannot possibly know. If fewer people go to law schools, law schools will adjust to that. They will hire fewer people, or do replacement hiring as is done in other disciplines. They will cut programs. Some schools may close. Should they be preparing for this? Yes. Are you privy to the discussions taking place in the 200 law schools in the country. Probably not. So, you can tell law schools that they should be having this discussion, and point out all the very good reasons WHY they should have it. You should not go the extra step and write as if you know for a fact that those discussions are not taking place, and say they are not because law professors are greedy, lazy, or whatever.
Posted by: BH | February 10, 2012 at 11:26 AM
Okay. You are, of course, free to do what you want to do. But I was suggesting that this is not really responsive to the problem, and is more likely to make yourself a less effective messenger to the people who need to hear it.
Posted by: BH | February 10, 2012 at 12:11 PM
Once again, I don't think we really disagree that much. I think you're right about the questions of age and preparedness for undergraduates to practice law, and I'm aware that many foreign jurisdiction are moving away from the undergraduate model of legal education. Let me state clearly: I don't think moving to an undergrad model is a good idea. I've never argued for that. I merely wanted to point out the insitutional reasons that it's probably not going to happen anyway. If I don't think the cause of undergraduate legal education is going to go anywhere, I don't feel a need to argue why it's a bad idea.
I also don't mean to ascribe bad motives to law professors. In my legal ethics teaching and research I am very much influenced by cognitive dissonance and biases and heuristics theory. I am certain that law professors who defend the status quo do so with the very best of intentions. But in some ways, motives are irrelevant. Confirmation bias is sufficient to shape law professors' views of their profession and its perks and benefits.
Posted by: James Milles | February 10, 2012 at 01:48 PM
That is fair enough. Certainly recognizing that inertia, cognitive dissonance, laziness, and other human tendencies, will likely play a role in how reform plays out is worthwhile. I just saw you as doing more than that, speaking about your colleagues as if you know their hearts and minds when this conversation is really only beginning. That is the fashion of the moment, and it is a curious one. We are all familiar with the concept of "the zeal of the convert", when people who come to a faith become intolerant or hyper-critical of those whom they think have yet to see the light. Their "newness" makes them insecure, and they seek to shore up their new attachments by extravagant and/or public displays to establish their bona fides. I apologize if I have wrongly attributed these tactics to you.
Posted by: BH | February 10, 2012 at 02:34 PM
And on the point about the institutional reasons we may not go to an undergraduate legal education, there are many ways this could play out other than the one you suggest, one that you predict will inevitably result in a drastic change in the status of law profs. The program would most likely have to be a least a year longer. Two years in an undergraduate general program and then into the law specialization. Why couldn't that program be carved out from the general, with students paying more because they are in professional school?
You are assuming that law profs are going to be just like Anthropology professors, and that there will be no move to charge anything more for students who are getting a professional degree over those who are not. We are not talking a pre-law program, we are talking about a full-fledged law school program. Would it be fair to charge a student who will graduate with an AB in English the same as the person who will graduate with a degree that allows them to sit for the bar and become a professional? My point is that there is no one way this could turn out.
Another point, universities pay for some depts with contributions from law schools. Do you think law professor inertia is a bigger issue than that? Many law students had majors that benefitted from the funds provided by law schools. So, we cannot pronounce this a presumptively unfair transfer.
Finally, the better colleges are not going to give up their law schools to put in a school that they will likely find offensive to their liberal arts orientation. Of the Ivies, only UPenn Has even a business major. Again, maybe other law professors are thinking this through, and believe such a proposal is problematic, and should not be a front burner issue.
Posted by: BH | February 10, 2012 at 03:22 PM