December 31, 2008 5:00 AM
Innovation Agenda (Part Three): What’s Wrong with Law School?
Posted by Susan Beck
The following is the third and last article arising from discussions at the Leading Legal Innovation conference in December sponsored by the Southern California Innovation Project at the University of Southern California’s Gould School of Law. [Click here for Part I and here for Part II.]
Law firms may not be known for innovation, but they look positively cutting edge next to law schools. That was the consensus at the two-day Leading Legal Innovation conference, which drew 30 law firm leaders, professors, and entrepreneurs.
Among the topics on the table: Law schools are great at teaching students how to read a court decision, but they don’t teach many of the skills needed to be a successful lawyer. They also don’t screen applicants for the qualities that make for good lawyers. High grades and test scores alone are not good predictors for success.
"People assume smart people are the most successful. You have to be smart, but there are a lot of other factors required," says Thomas Sharbaugh, managing partner for operations at Morgan, Lewis & Bockius. "When someone fails as a lawyer at our firm, it usually has to do with interpersonal skills. Before I would include more accounting classes at law schools, I would do more with emotional intelligence."
William Henderson, an associate professor at Indiana University's Maurer School of Law, suggests that a school like his, which doesn’t top many law firms’ recruiting lists, could indeed differentiate itself by teaching and screening for interpersonal skills.
"If you can build a curriculum that teaches competencies like empathy, networking, and teamwork, a school could really change and be innovative,” says Henderson. Some additional adjunct faculty might be needed for those courses; however, Henderson admits that most law professors don’t have the skills to teach courses like this. (Henderson says his school is planning changes to address these gaps, but the school isn't ready to "share its playbook" at this point.)
Northwestern University School of Law is already aiming to differentiate itself by screening for more mature, experienced students.
"This entering class had only three percent who came straight from college," says dean David Van Zandt. "More than 82 percent have two years experience, and I'm thinking more and more we need to increase that. I think it takes a while to learn the ability to work with others in teams and communicate effectively."
The school has also embarked on an ambitious project to rethink legal education. After two years of study and research--which included 17 focus groups with 39 law firm managing partners and nine general counsel--Northwestern released a report this December with specific recommendations for how to make law education more effective and relevant. Those recommendations include adding six new "foundational competencies" that cover such skills as teamwork, improved communications skills, and strategic decision making. And, significantly, the school will this summer begin the first accelerated two-year JD program at any top law school.
Under a traditional law curriculum, conference attendees said, graduates leave law school largely clueless about how to practice as a lawyer. As a result, firms in the U.K. hire companies like the Practical Law Group to provide online materials to teach new lawyers how to draft contracts, merger agreements, and other documents in 16 practice areas.
"You can think of it as outsourcing knowledge management," said PLG vice-president Ian Nelson. Although they face the same knowledge problem, U.S. firms so far have been cool to the idea. Nelson says it’s been "an uphill battle" to convince U.S. firms to try PLG's product, even though the 18-year-old company does business with most of London’s major firms.
Several professors complained that the American Bar Association--and its outdated accreditation standards--is the main bulwark against innovation.
“The ABA is stifling law schools and preventing needed change,” says Northwestern dean Van Zandt. “Their regulation forces most of us to build an Acura instead of a Corolla, and that’s a real harm to society.” Van Zandt cited ABA rules requiring that a high percentage of a school’s faculty be full-time and tenured, rules limiting online courses, and burdensome and expensive requirements for law school libraries. “If you want to start a law school, you probably need 50-60,000 books in your library."
Benjamin Barton, an associate professor at the University of Tennessee College of Law, contrasted law schools with business schools.
"Business schools are massively more innovative because no one has to go to business school," he says. "They're more interested in showing that they're giving you something of value." In addition, he says, business school professors are much more attuned to the real world. "At a business school, corporate executives pay $10,000 a week to talk to a professor. Law firm leaders would never go to a law school for advice."
Fred Bartlit, the founder of litigation boutique Bartlit Beck Herman Palenchar & Scott, argues that it should be much easier and cheaper to become a lawyer.
"Law is not a hard thing to learn," he insists, while proposing that electronic law schools could serve the purpose. Their graduates might not get hired by Cravath, Swaine & Moore, but they would fill a need for reasonably priced lawyers who can serve people and businesses that don’t have lots of money. Says Bartlit: “There are too few lawyers for the lower end of market.”
Harvard Law School professor John Coates suggested that economic forces may wind up pushing law schools to change.
"This is a unique moment to pressure law schools to open up," he says. "The market is bad and schools are worried about placement rates."
The most radical proposal of the conference came from George Sheppard, a professor at the Emory University School of Law.
"I think we should eliminate the bar exam and the requirement that lawyers graduate from accredited law schools," he says. Before the Great Depression, there were no bar exams and lawyers didn’t need a law degree, he notes. (One reason the ABA began accrediting law schools, and states began requiring a degree from these schools, was to try to slow the influx of mostly Jewish lawyers who were attending newly formed night law schools, Sheppard says.)
"I think the system before the Depression was better," he says. The current regulatory regime imposes an expensive artificial barrier to enter the profession that makes legal services too expensive for most people. "In California, you don’t have to go to an accredited law school, and tuition at unaccredited schools is about half," he notes.
Economist Preston McAfee, from the California Institute of Technology, questioned the purpose of these barriers to entering the profession. "Who are we protecting?," he asks. "The little guy can’t afford legal services. We should get rid of the bar and just require people to post bond."
Gillian Hadfield, a professor at the University of Southern California who organized the conference, has argued that the tight regulation of the profession by bar associations and courts has long impeded innovation. In an article published last April in the Stanford Law Review, Hadfield made the case that the legal system would be greatly improved by opening it up to more competition, including from nonlawyers who have ideas for improving the delivery of legal services. Increasing the "genetic diversity" of the minds solving legal problems would spark innovation, as well as bring more affordable legal services to the vast majority of Americans who can’t afford a lawyer. (Her article can be found here.)
When the conference in San Diego concluded after two days of discussions, the blueprint for change throughout the legal profession was fuzzy. But rarely is innovation accompanied by a clear map. British lawyer Sheila Spicer, a director of the Law Society of England and Wales, who has overseen a recent overhaul of the regulation of the legal profession there, noted that change often requires a leap of faith.
"Just because you can't know everything about what will happen, that doesn't mean you shouldn't do anything."Make a comment