The Double Life of Law Schools

Abstract

The law school of 2025 will soon appear around the corner. An increasingly asked question is what will legal education look like? Will it look like the Langdellian model of the past 120 years, centered on the coverage of appellate case reports, leavened by a modest degree of experiences and some tweaks? Or will its shape transmogrify, becoming a blend of technology, Carnegie, and a redesigned marketplace? Our view is that by the year 2025, law school will indeed be dramatically different. But how different depends on who wins the war between the traditional education, tracing back to the days of Langdell in the 1870s, and the repositioned drivers influencing legal education today from inside and out. In a word, we are living in a time of struggle – struggle for control of the soul of legal education. Until recently, law schools lived a very comfortable double life that straddled two worlds – the world of academia and the world of law practice. This double life was made possible by the Langdellian revolution in the late nineteenth century; rejecting the apprenticeship system and adopting a model based on the teaching of appellate cases. The double life can be described as part grand university and part Hessian craft guild. The grand university identity takes on a similar hue as a graduate liberal arts endeavor - offering a good background for its emphasis on critical thinking, whether students practice law or not. The Hessian craft guild, by contrast, trains students to learn the details of the skilled practitioner - to welcome clients into a specific domain. This firmly rooted double life of law schools was skewed towards academia. As the oft-repeated saying goes, law schools taught people how to “think like lawyers,” but not how to actually be lawyers. In this regard, legal education appeared to be a professional training ground that at least implicitly distanced itself from the practical preparation required to succeed within specific domains. The system worked well when the profession acted as a finishing school for graduating law students – in effect, running apprenticeship programs for new lawyers. All parties benefitted from the implicit partnership. Graduates were, for the most part, far from “practice ready.” The finishing school system created greater demand for law school admissions when jobs were plentiful and provided exuberantly high starting salaries. It even benefitted many law professors working within the university confines to be able to devote more time to scholarship and service, burdened by teaching just a few classes each year. Even those students who did not have the opportunity to receive this additional professional training—and instead struck out on their own as solo practitioners—retained several advantages. Solo practitioners had access to their often better-trained former classmates working for government bodies, private firms, nonprofits, directly for business, or in other capacities. Thus, the finishing school occurred in a variety of ways. The traditional drivers of legal education were situated around a stable demand for lawyers. Those students who performed well in school could count on finding a full-time job that paid a satisfactory amount. The established model drew increasing numbers of applications to law school, with a high of over 170,000 applicants taking the LSAT in 2009. With the great recession of 2008–2010, however, cracks in the traditional double life began to appear. First, while 2009 served as a high-water mark in LSAT test-takers, a recalibration of the legal marketplace was occurring. Clients were no longer willing to pay whatever fees were set by lawyers, and online form purveyors and Internet legal education blog commentators became fixtures in the lawyering domain. Many micro-broadcasters focused on the value of a legal education—digging under the general assumption that a legal education provided a good use of one’s time and resources. These additional fixtures sent tremors through the comfortable double life. Since then, legal education has been in a state of flux. Especially in the United States, the tensions underlying this double life have been exacerbated in recent years by market forces—students are still applying in strikingly lower numbers to enter law school, clients are demanding changed fee structures, and the Internet is providing access to form purveyors and legal services across states and countries. At the same time, the old legal education pipeline, from law school to big firms, to in-house, and to other jobs, has been significantly unbalanced. Accompanying the degradation of the legal education pipeline has been the demise of the complementary “finishing school” partnership with the legal profession—that law schools teach students to think, and lawyers teach students how to actually practice law. This training agreement essentially collapsed during the great recession of 2008–2010, when lawyers and law firms could no longer devote the resources to polish students over a period of time. With fewer students applying to schools and jobs much less plentiful, demonstrating the value of a legal education became paramount. The drivers of change became reframing tools, causing law schools to commence vertical and horizontal remapping of the entire education in a way that had not occurred for decades. Critical evaluation of the Langdellian education form grew exponentially. This Article posits that for the legal education of 2025 to once again thrive, it will have to reframe itself. The drivers of change—particularly the law services marketplace and the changing nature of clients and legal work—will require faculty and administrators to reconsider outcomes, values, and objectives of the enterprise. In many ways, any resulting configuration ought to have more connections with the outside world, becoming more like that of a business or medical school than a liberal arts curriculum, and greater integration of its individual courses. For example, there should be a reinvigorated focus on connections between lawyering, clients, and legal education, including the recognition that most students who attend law school intend to practice some form of law. The education also should connect with new realities—that lawyers today reach solutions collaboratively, often in teams; that lawyers manage projects and utilize a variety of skill sets, all within a service profession requiring expertise in different but specialized knowledge domains; and that access to legal services is still an issue for many persons living in the United States. Given the utilization of these new drivers and the connections illuminated between lawyering and law school, the underlying theory-practice tensions also should shift. In essence, law schools likely will start producing more measurable outcomes—outcomes focusing on transforming novices into nimble experts with multiple skill sets. In 2025, the change in legal education might be significant, but it also needs to be significantly improved, given the volatile nature of the times.