Larry Ribstein on The Future of Legal Education
What will legal education be like in the significantly deregulated world I’ve predicted in prior posts?
I gave some thought to this question in my recent paper, Practicing Theory. There I pointed out that law schools, and particularly law faculty, have benefited from the same regulation that has benefited lawyers. Although lawyers now complain that legal education is insufficiently “practical,” they have only themselves to blame for any deficiencies. The legal profession has established law school accreditation as a costly barrier to entry, and then effectively delegated control over what was taught in law schools behind the regulatory walls.
I also argued in the above paper that the debate over the content of legal education in a deregulated world is not the one that we seem to be having — that is, between “practice” and “theory.” When deregulation comes the market will control content. It’s far from clear that the market will demand that lawyers keep doing what they’ve been doing, which is what lawyers mean by “practice.” It follows that law schools should not necessarily train students to do what lawyers are doing right now. New lawyers’ roles will require new types of education.
My article outlines some future roles of lawyers, and how law school can help train for these rules.
Lawyers as collaborators: In the new world of legal services, the more menial tasks will be done by machines or non-professionals, leaving lawyers for the more sophisticated stuff. This will require collaborations across the physical and social sciences. For example, lawyers might work with psychologists to incorporate the tools of behavioral psychology into creating and applying consumer, securities, and other regulation. Legal experts also will have to learn to work with (or be) computer engineers to produce the powerful technological tools I’ve discussed in previous posts.
The lawyer as manufacturer: Lawyers will not simply be applying old cases to new fact situations to advise clients what they should do. Rather, they will be designing the products discussed in previous posts such as contracts and compliance devices. As designers they will need to delve into basic theories of contract production, deterrence and the like. While automation handles many legal tasks, designing the tools for these tasks will require experts who understand their basic architecture.
The lawyer as lawmaker: Lawyers, freed from simply applying the law, may be increasingly involved in designing it. This entails an understanding of how and why laws, constitutions and procedural systems work. The theory taught in law schools, including economics, philosophy, history and comparative law, was often not very relevant to routine law practice. When software and low-paid workers take over those tasks, the legal experts who remain will need this theory.
The lawyer as information engineer: Lawyers and scholars might be able to use data to predict the future. But to do that they will need theories from such fields as economics, psychology, sociology, decision theory, and political science to construct the models that make sense out of the raw data. This work also provides another reason why lawyers will need to learn how to collaborate with (or be) computer scientists.
The lawyer as capitalist: Lawyers can make a lot of money in the capital markets from being able to predict legal outcomes that determine asset values. The demand for this expertise could increase the demand in law schools for training in securities and finance law. It also could refocus the study of such basic areas as contract, property, and tort law from advising and litigating to handicapping the results of litigation.
Global legal education: Legal educators increasingly cater to law students from outside the United States. They therefore need to focus on the basic principles of American common law and system of government.
Private meets public law. The theories legal experts will need to learn to move from applying existing law to creating new legal structures will have to meet market demands rather than educators’ preferences. While legal experts no longer may be able to ignore such fields as constitutional and administrative law, they will have to take with them into these fields the tools and lessons of private ordering and markets.
Educating business lawyers. Many legal experts will move directly into businesses. But in-house lawyers’ tasks may change from the current model. Increasing automation of corporate contracting and compliance may help embed legal work into the basic structure of business. In-house lawyers will move from talking to business people to being business people. This suggests that legal education and business education may merge for at least a subset of legal experts.
The end of one-size-fits-all: Licensing, accreditation and bar exams have locked in a single model of three-years of law school with a fairly standardized curriculum. The developments discussed in my previous posts make this model increasingly untenable. The new legal expert must be trained for business, law making, technology design and many other tasks that cannot be encompassed by a single course of study. Moreover, this world will rapidly evolve in uncertain ways once freed of licensing’s constraints. Legal educators will have to be free to experiment with a variety of different approaches, much as business schools do today. The accreditation standards that survive as part of the new regulation of lawyers will have to provide this freedom. This argues for the “driver’s license” approach to licensing suggested in a previous post in which lawyers can use their home state license to practice anywhere. Such an approach could allow for different forms of mandatory training for different types of specialties. These requirements could evolve as states balance the need for some regulation against the clamor by local consumers for access to cheaper services.
Lessons for today’s law schools: What should law school faculty and administrators do now? The top six or so can probably keep plugging away at what they have done: teaching high end theory to top law students. These students likely will be the legal architects of the future. When the new era comes, the top six schools will have the resources and reputation to turn on a dime and embrace the future.
But for the Harvard wannabes that think they can ignore the changes shaking the profession and party like it’s 1899: you are ill-serving your students and will be fighting for your lives in a few years. The time to think about the future is right now.