Paul L. Caron

Thursday, August 20, 2020

Legal Education Faces Its Waterloo As Wile E. Coyote

Mark A. Cohen (CEO, Legal Mosaic), Post-Pandemic Legal Education:

Higher education is confronting an existential crisis, and law schools are its poster child. Even before Covid-19, the law school business model, pedagogy, culture, faculty composition, marketplace detachment,  poor student outcomes, and ever-escalating cost/massive student debt have drawn withering criticism. The pandemic has elevated law schools’ challenges and accelerated their reckoning.

Law schools have staunchly resisted online learning until Covid-19 rendered it a necessity. The tech-enabled, crisis-created shift from classroom to online learning occurred with astonishing speed, pervasiveness, and seamlessness. The transition exposed technology’s latent potential to support new models for delivering and consuming legal education and training. Distance learning is just the start.

What will post-pandemic legal education look like?

The Art Of The Possible: Legal Education Reimagined
The tools, resources, and market appetite exist to reimagine legal education and to create models that better serve students, customers, and society. In the new paradigm, legal education will morph from a place to a process; appointed time to on-time and in real-time learning; and an artisanal delivery model to a tech-enabled, scalable one. Legal education will be more affordable, data-enhanced, results-driven, and accountable. ...

Traditional legal education’s Waterloo may come as a surprise to many in academia, but not for business where pan-industry disruption of dominant provider models has become routine. ...

A Focus On Output, Not Input
Law schools have focused on input—faculty pedigrees, publications, citations, library volumes, ranking, physical plants, and a steady build-up of administration and staff. Their objective is “to train students to think like a lawyer” and teach doctrinal law. “Thinking like a lawyer” is not a static concept, nor is it limited to critical thinking or legal basics. Digital lawyers must also be guided by data, not gut; assess risk holistically, not through a narrow legal lens; and satisfy the objectives of the client, not produce the best possible legal product regardless of its relevance or client value. Thinking like a lawyer is not as important as learning how to drive impactful, timely, responsive, cost-effective, data-backed, holistic risk-assessed, actionable counsel to clients. ...

No More Pencils, No More Books ... And Classrooms Optional
Covid-19 is a Black Swan opportunity to reimagine legal education. Liberating its center of gravity from the physical classroom provides a wide range of pedagogical methods that include: flipped classrooms, micro-credentialing, personalized adaptive learning, utilizing interactive digital platforms—"Zoom on steroids”—to enhance and obviate the need for costly physical structures and maintenance costs; scalable, online “master classes” taught by leading scholars, thought leaders, and practitioners to replace deadwood faculty, and fewer tenured faculty appointments. ...

More Choice And Lower Cost For Students
For students, the transformation of legal education means more affordable, outcome-oriented education options; greater flexibility to work part-time and to gain valuable market experience; an ability to “learn from the best” and not be saddled with mediocre professors; a better-rounded, more customized education; a greater emphasis on competency-based, just-in-time learning, and an ability to network beyond traditional law school physical boundaries. ...

Legal education is at a crossroads. Its model was under siege before the pandemic and  underwater now. Well-endowed, elite law schools will weather the storm, but even they have begun to embrace change in response to a rapidly changing business climate that is transforming the legal function. Other law schools must engage in more uncertain, rapid, fundamental transformation or confront shuttering. New educational providers will step in to fill the market void—just as new model legal providers have have filled the “business of law” void created by practice-centric law firms.

It’s a new dawn for legal education, one that portends a brighter day for students, legal professionals, customers, those in need of legal services, and society. Law schools have little time to improve their poor grades.

Mike Madison (Pittsburgh), Legal Education’s Waterloo:

One, the piece understates the urgency and mis-diagnoses the source of the problem. Law schools aren’t the way they are because they’re staffed and run by solipsistic academics. They are the way they are because the organized bar has, for decades, wanted them to be prestige and raw intelligence factories, and little more. ... [W]here did (and does) the money come from? The university. And you can’t be a part of a university without playing by the university’s rules: scholarship, tenure, inflexible governance, and a purposeful refusal to simply bend to the interests of commerce. That solution took root in the 1970-1995 era, when the turn away from law practice as a model for teaching and writing by law professors, and the turn to modern legal scholarship, really began. It has been thoroughly internalized from the top to the bottom of almost every law faculty across the US News & World Report rankings hierarchy.

The 1995-2005 era was a kind of golden age for law schools. Tuition dollars flowed readily, and the university tended not to ask hard questions about budgets. There was ample time for faculty scholarship, and new graduates often had little trouble finding good first jobs.

We’re 15 years into a new era. The organized bar is no longer so organized (though it’s holding on for dear life); universities don’t have the cash they once did (ditto). The job market for new graduates is almost unrecognizable to those of us who’ve been lawyers for more than 20 or 25 years.

Legal education is indeed at a crossroads. Better, legal education is Wile E. Coyote, having run several steps beyond the edge of the cliff but still in mid-air, legs spinning wildly, not (yet) looking down. But law schools are not vision factories. ... No one should expect law schools to change. Change will be thrust upon them. Some law schools already have closed. More will. Some have found friends via merger. Vision will almost certainly come from elsewhere. ...

Two, the piece outlines a vision of what’s likely to happen — eventually — that’s probably as spot-on as one can be when one has no actual idea how this will all unfold. ... Thanks to Mark Cohen for keeping his eye on this ball. The stakes aren’t simply the future of law schools. How we train lawyers shapes what we expect from them later. The stakes today are the future of law.

More by Mark Cohen:

Coronavirus, Legal Ed News, Legal Education | Permalink


"It makes little sense that hundreds if not thousands of individual professors of Torts - each costing the students and their universities six figures - will each enter classrooms this fall to try to educate law students about Palsgraf. My law school alone has five.

Similarly, why have so many different law professors - each costing the students and their universities six figures - teaching separate individual classes in Civ Pro with each trying to explain their intricacies of long arm jurisdiction. My law school has no fewer than a dozen such classes."

I don't necessarily disagree with this, but it would require very extensive rewrites of Chapters 3, 4, and 5 of the ABA Accreditation Standards. Good luck with that...

Posted by: Unemployed Northeastern | Aug 22, 2020 2:34:54 PM

I totally agree with Mike Madison. The threshold question should be "why does a law school exist?" If the answer is to educate new lawyers, then it is difficult not to focus on outputs in terms of good jobs for graduates. Virtually no law students went to law school to become more well-rounded. Although the rising tide in recent years lifted all employment-statistic boats, the dirty little secret is that many of the jobs included in these percentage increases are at rates of compensation that are insufficient to pay the high loan balances with which most students graduate. The Department of Education database with salary and loan information makes it impossible to declare victory and move on.

Posted by: Tom Sharbaugh | Aug 21, 2020 5:44:10 AM

Conversely, we could just pretend that the claimed outcomes for the law school class of 1996 will hold forever, amirite?

Posted by: Unemployed Northeastern | Aug 20, 2020 12:05:23 PM

Yes, the current pandemic, and massive switch to on-line teaching and learning for law schools, provides a great opportunity and incentive to do what law schools probably should have begun doing years ago: give our students the ability to “learn from the best and not be saddled with mediocre professors.”

It makes little sense that hundreds if not thousands of individual professors of Torts - each costing the students and their universities six figures - will each enter classrooms this fall to try to educate law students about Palsgraf. My law school alone has five.

Similarly, why have so many different law professors - each costing the students and their universities six figures - teaching separate individual classes in Civ Pro with each trying to explain their intricacies of long arm jurisdiction. My law school has no fewer than a dozen such classes.

Once the Internet made it possible, law schools should have considered having one of the several very best and finest professors of Torts, Civ Pro, Contracts, Con Law, etc. make their presentations on each subject (in the form of lectures and/or Socratic dialogues or otherwise) to hundreds of other law schools at far lower cost.

As necessary, each school could still have one professor of each subject available in house to answer student questions, hold office hours, counsel, etc. rather than have four or even twelve teaching the same subject matter in the same law school.

The result would be that students would learn each subject from the very best and most effective professors - not those who are “mediocre” or even just far below the top 5 or 10.

In most cases, law school could save lots of money in salaries, office space and support staff, etc. by employing fewer professors. If a school currently has only one professor teaching a course such a Civ Pro, using a top professor from another law school to do much of the teaching would free him up to teach other and additional courses.

On the other hand, if an individual law school believed that research by law professors - which has been estimated to cost law students about $100,000 for each law review article - was sufficiently valuable, using top law professors from other law schools to provide much of the teaching would free up that law school’s professors who would otherwise be teaching the courses to do even more research and to write even more law review articles.

Posted by: LawProf John Banzhaf | Aug 20, 2020 6:09:06 AM