Morgan, T D --- "The changing face of legal education: its impact on what it means to be a lawyer" [2013] LegEdDig 8; (2013) 21(1) Legal Education Digest 28

• The changing face of legal education: its impact on what it means to be a lawyer

---

The changing face of legal education: its impact on what it means to be a lawyer

T D Morgan

Akron Law Review, Vol 45, 2011-2012, pp 811-842

I have written a book called The Vanishing American Lawyer. My premise is not that too few people have a legal education. I say, instead, that what people now do with legal training is changing rapidly and likely will continue to become more diverse.

Yet people still talk about lawyers, and the question of what it means to be a lawyer is especially timely in light of current American Bar Association (ABA) efforts to revise the standards by which American law schools are accredited. That ABA project, in turn, must necessarily begin – at least implicitly – with the question of what kind of people law schools are charged with producing.

The traditional working definition of a lawyer has been someone licensed to engage in the ‘practice of law.’ That definition might seem broad enough to let the idea of being a lawyer remain constant. But changes from globalisation, to the way clients get information, to the skills needed to perform many legal tasks foreshadow significant changes in what lawyers will actually do over the next 20 years and beyond.

First, over the last 40 years, the American bar has grown more rapidly and changed more profoundly than in any comparable-length period in history.

The largest source of the increase in lawyers came from the new interest in law school among women and members of minority groups both of which had been greatly under-represented among lawyers. Their new presence has enriched the bar, and since the 1970s, student interest in becoming lawyers has remained strong, but the legal profession has roughly quadrupled-from about 300,000 in 1970 to about 1.2 million lawyers today, of whom about 1 million are estimated to be in practice.

Demand for lawyers has increased over the same period, but not proportionately. Demand for legal services correlates most closely with growth in gross domestic product (‘GDP’), the level of economic activity in the country generally.

The nation’s GDP in constant dollars has grown at about the same rate as the number of lawyers in times of prosperity, but ABA-accredited law schools regularly graduate over 40,000 new lawyers each year in good times or bad. As long as US GDP grew at about a four per cent annual rate (as it did for most of the 1990s), new graduates could find jobs at good salaries. During the recent recession and the slow economic growth that has followed, however, production of lawyers has greatly exceeded the rate of GDP growth and at least three graduating classes of potential lawyers have struggled to get law-related jobs.

Second, the increasingly global character of many clients’ work means that the day has come and gone when national borders – and a fortiori state borders – likely have any real significance in deciding how a transaction should be structured or a matter litigated. A lawyer who continues to focus only locally will neither serve her clients well, nor retain her clients long.

It would be a mistake, of course, to assume that globalisation will occur equally rapidly in every line of commerce. High-touch personal services are likely to continue to be delivered locally. Part of the challenge in considering the impact of globalisation on lawyers, then, will lie in distinguishing which lawyer roles are more like the making of machine parts, and which require a local touch.

Third, even as economic growth improves, the legal market is unlikely ever again to absorb traditional lawyers at its previous rate. The use of new technology means that legal services once thought of as unique to each client are likely to become like commodities produced by persons that each plays only a modest part. The increasing importance of information technology to law practice also promises to transform tasks that used to be seen as complex, unique, and worthy of substantial fees into simple, repetitive operations provided to clients by the lowest bidder.

Yet another technology-based reality that will transform lawyers’ practices is the world of free information that lawyers have traditionally sold, but that is now available on the Internet.

Rather than retaining a lawyer to take a matter from beginning to end, clients are likely to buy only parts of a traditional representation.

In addition, corporations now use non-lawyers to help deliver a total package of services that they need done. Negotiating contracts, troubleshooting discrimination claims, even writing court documents can all be done by non-lawyers within an organisation receiving a level of lawyer supervision and training to which unauthorised practice rules cannot effectively speak.

Non-lawyers can help lower costs, but more important, they can help the client get its whole problem solved, not just the legal elements.

America’s colleges and graduate programs are accredited by organisations recognised by the US Department of Education as ‘reliable authorit[ies] as to the quality of the education or training offered.’ Accreditation helps students find schools that meet established standards, helps schools as a group improve standards, identifies schools whose credits should be recognised by other schools, and helps both government and borrowers identify which schools have programs that should be eligible for students to use federal financial aid.

To the extent law graduates want to practice, bar admission authorities can have a controlling influence on what law schools offer to, and expect from, their students. A graduate of an unaccredited business school may start a business, but only a licensed lawyer may openly practice law; and only a graduate of a law school accredited by the Council of the ABA Section of Legal Education and Admission to the Bar may take all states’ bar examinations.

When first adopted in 1923, ABA standards initially required schools to demand two years pre-legal study and three years of law school work. By 1951, 124 were approved, and of those, 107 were also members of the Association of American Law Schools (‘AALS’).

For at least 50 years, accreditation standards established by the ABA have driven law schools toward homogeneity. Now, partly as a result of pressure from the US Department of Education, the Council of ABA Section of Legal Education and Admissions to the Bar is proposing to decrease or eliminate many of the standards to which it subjects the now almost 200 American law schools. The ABA is taking up its proposed changes through the work of subcommittees that seem to have little sense of how they relate to each other, so but the following eight changes give a sense of what is proposed.

First, if the proposed changes are adopted, an accredited law school could have an almost wholly-elective curriculum. The only specific ABA requirements would be (a) one two-credit course in professional responsibility, (b) two rigorous writing experiences (one in the student’s first year and one thereafter), and (c) one rigorous three-credit simulation, live client, or field placement course that integrates legal doctrine and theory with ethics and professional skills.

Second, an accredited law school could abolish grades and substitute ‘a variety of formative and summative assessment methods across the curriculum to provide meaningful feedback to students’.

Third, while just over half of a student’s education would have to come from traditional forms of classroom teaching, almost 20 per cent of a student’s academic credits could be earned over the Internet or in other forms of education in which the teacher is separated ‘in time or place or both’ from the students.

Fourth, tuition revenue paid by law students would no longer be required to support the program of legal education, unless the school could not otherwise meet basic accreditation standards.

Fifth, there would no longer be a maximum student-faculty ratio.

Sixth, law school faculty would be required to have academic freedom, but academic tenure as a guarantee of that freedom would no longer be required.

Seventh, by contrast to seemingly deregulating the educational program, the ABA would retain the three-year length of a legal education.

Last, the fundamental measure of a law school’s continued right to accreditation would be the proportion of its students who pass a bar exam. Each ABA-accredited law school would be required to show for at least three of the last five years that either (a) at least 75 per cent of the school’s graduates passed some bar exam somewhere, or (b) its graduates’ first-time pass rate in the jurisdictions reported by the school was no more than 15 points below the average first-time bar pass rate for graduates of ABA-accredited law schools taking the bar exam in those jurisdictions.

It is certainly true that excessive regulation can make problems worse instead of better. But I believe that abandoning the ABA’s decades-long effort to sustain educational quality would be tragic.

The ultimate question for regulators should be what kind of trained person law schools are expected to produce. Outcome measures – measuring what a student actually learns and retains from a legal education – would be the gold standard for evaluating law schools, but no one has yet come up with reliable measures, even as of the time of graduation.

The ABA proposal to make bar passage the ultimate measure of what students learn trivialises measurement of lawyer quality. A bar examination largely measures the ability to take a multiple choice exam that tests a limited number of current legal rules.

There has been no shortage of proposals for changes in legal education. Both the ABA’s MacCrate Task Force in 1992 and a Carnegie Foundation report in 2007 have urged law schools to move in new directions. Originally set up to study the ‘gap’ between law school and practice, the MacCrate Task Force report evolved into a study of an ‘educational continuum’ seen as running over the course of a professional career. Noting that law schools had traditionally seen their role as developing a student’s analytic skills while other needed skills were to be learned in practice, the Task Force said law schools were capable of doing – and should do – more practical training before a student graduated.

Pressure to move education in a direction that mimics traditional practice increased with publication of the most recent Carnegie Foundation report on law teaching in 2007.

In the view of this most recent Carnegie report, a legal education should consist of some courses in legal analysis, but they should be heavily supplemented with increased clinical training and work in public service jobs.

An education that might have prepared students adequately for work during most of the 20^th century may not ready students to enter the world in which we have suggested they will actually work. If I am correct that yesterday’s practice and ways firms operate are changing rapidly and in fundamental ways, increasing a student’s exposure to mentors from the old regime is likely to divert time and money from different and better uses.

I suggest that the key to thinking about training future lawyers is a ‘Core-Plus-More’ approach. To be a school accredited to train people who may call themselves lawyers, a law school should be required to provide education in a ‘core’ curriculum that I estimate would require up to three semesters of work. Then, to produce people who can successfully deliver legal services in part of the evolving legal market, a law school should provide ‘more’; it should go beyond core training to invite students to tailor their education to their individual skills and aspirations.

In my view, what lawyers need to know – and what people who go to law school but never expect to practice law should learn – can be expressed in three broad categories: (1) how to ‘think like a lawyer’ about legal issues; (2) how to think about fundamental questions that are raised by work in a legal system; and (3) how to apply practical skills to improve a client’s outcomes.

The first of the categories, learning to ‘think like a lawyer,’ is what most law students find life-changing. First, it involves learning how to read carefully.

Second, thinking like a lawyer involves learning to reason from a specific case to a general principle. It is the ability to reason inductively – and by analogy between one set of facts and another – in turn, that allows lawyers to predict how a new case is likely to be decided.

Third, thinking like a lawyer involves seeing legal issues in a larger context of morality and social policy.

Fourth, lawyers develop the ability to narrow the focus of their analysis on facts that are most immediately relevant to the matter at issue.

Next, I believe that part of any accreditation evaluation should be how well a school helps students address issues fundamental to any legal system.

The Power to Make Law would be a combination of jurisprudence and constitutional law that would focus on government organisation. The course would include both state and federal systems and the law-making authority of both administrative agencies and municipal entities.

Sources of Legal Rights would consider individual rights against government and against other people. It would deal with the Bill of Rights, but also introduce civil rights legislation and property rights including intellectual property rights – and their regulation.

Enforcement of Agreements would be most closely related to the present contracts course. This course would ask when and why the force of law may be used to enforce private agreements. It would consider statutory as well as common law responses to these issues and introduce students to issues surrounding selection and enforcement of remedies.

Redress of Wrongs would integrate issues now seen in both torts and criminal law.

Resolution of Disputes would expand the current course in civil procedure and introduce issues of evidence, arbitration, negotiation, and criminal procedure in an effort to understand the breadth of available alternatives. The course would also focus on the more general problem of finding facts, as opposed to applying the law to assumed facts.

Internationalisation of Law would be informed by both comparative and international law and would have students see the implications of the internationalisation of commerce, human migration, and human rights.

Legal Analysis and Expression would be similar to the present course in legal research and writing and would concentrate on a student’s ability to synthesise legal materials and to express his or her analysis and findings both clearly and persuasively.

Professional Roles and Values would go beyond the content of lawyer regulatory standards to examine what it has meant to be a professional lawyer, alternative ways to use a legal education, and the evolving roles of lawyers in society.

These subjects I have described, as properly at the heart of every accredited law school’s program, are considerably more theoretical than either the MacCrate or the Carnegie reports proposed. In my view, however, they represent the kinds of understanding that should differentiate someone called a lawyer from others who perform more limited roles in the delivery of legal services.

Lawyers need to know how to investigate legal issues they have not studied before, and how to keep abreast of changes in the law over the years.

A client’s objective is typically to change a real-life situation for the better. Developing the practical art of getting things done also takes several forms.

First, it requires knowing what institutions, if any, are available from which to obtain an authoritative statement of a client’s rights. Lawyers call these legal principles jurisdiction, civil procedure, and evidence.

Second, good lawyers think in terms of legal process more broadly. A trial is often neither the only, nor the best alternative. Some routes are simply possible, while some are legally required before later steps can be pursued. But getting results for a client without going to court is part of the thought process of any successful lawyer.

Third, lawyers get things done by dealing with another person or lawyer to seek common ground and to accommodate differences. Too often, we think of lawyers primarily as combatants, but in reality, it is by finding common ground that lawyers often make their biggest contributions. We may think of some people as natural negotiators, but negotiation is a skill that can be taught, and law schools are among the best places to teach it.

Fourth, lawyers get things done through their ability to organise facts in ways that tell a persuasive story. Lawyers must develop sufficient skills to discern what the relevant facts are and what remains to be determined.

The three elements of core instruction just described presumably would occupy up to two academic years of a student’s legal education. I believe that, as the 1971 Carnegie report proposed, that core should be sufficient to permit a student to call himself or herself a lawyer. Given the job realities law graduates face, however, and the likely difficulty of changing bar admission standards, during the third year of law school, students should be encouraged to make themselves special to potential employers and clients, while law schools should be held accountable for making that possible.

Accreditation of this aspect of a law school’s program should encourage experimentation and diversity.

Or, law schools might move beyond teaching law, to recognising that learning about non-legal substantive issues will be at least as important as more law courses in the work of many litigators and advisors.

Most law schools do not make development of that kind of non-legal understanding a part of their curriculum; for a law school to do so within its own walls would require replicating much of the rest of the university. The closest law schools typically come is when they allow students to receive credit for courses taken in other parts of the university. Courses in economics, psychology, and communications courses in accounting, computer science, and public administration each often seen as ‘interdisciplinary’ and therefore collateral to a legal education – may over the next 20 years be understood as central to a lawyer’s ability to function in the world he or she will face.

The cost of a year’s study at several American law schools now exceeds $50,000. Total educational debt for many law graduates can be $100,000 or more. Those figures may have seemed tolerable to graduates who expected to start their legal career making over $160,000 per year, but such salaries are now available only to a very few.

One way to reduce the cost of law study may be distance learning.

Another important way to cut the cost of legal education would be to reduce the three years required to complete the Juris Doctor (JD) program.

New law schools continue to open every year. That may change as legal education responds to the need to reduce costs, admit a greater number of students who may need financial support, and otherwise address needs the future will present. But, however the overall prospects for lawyers develop, law school curricula should look to the kind of world students are likely to experience, rather than to the world their professors faced. In the world around the corner, the current homogeneity of law schools is likely to end as schools differentiate themselves in the education marketplace.

Change of any kind will not be easy. Many schools will not want to be first with what might look like a revolutionary program, but when the moves begin at a few top schools, the rush will be on and those who are ready to respond will have an enviable advantage. It is not too early for law schools to begin to plan for the changes that likely are ahead. And in writing its accreditation standards, the ABA Section on Legal Education and Admissions to the Bar should be in the forefront of building responsible, high-quality programs at American law schools.