Last Friday, SBM Blog checked out a symposium in our backyard: "Lawyers as Conservators: Justice, The Rule of Law and Sir Thomas More," at the MSU College of Law. That catchy but opaque title refers to a provocative collection of presentations that boil down to how legal education is missing the mark in today's world, and what to do about it. Readers of this blog have been fed a steady diet of posts about whether and how much the market for legal services is broken. This symposium is a veritable banquet of ideas. What follows are some on-the-spot observations, and embellishing links.
8:45 MSU College of Law Dean Joan Howarth, addressing the disconnect between the legal market of unemployed/underemployed lawyers and the rising unmet need for affordable legal representation challenges the participants to envision a "Justice App" that offers mass marketing of quality, individualized legal services through technology, and to imagine what the law student of the future capable of building and managing the "justice app" might look like. "Passivity" in core legal education is the enemy. Tuition control is a social justice issue is a business issue. But, if it does indeed take 40 years for real change to happen, Dean Howarth says, "I could publish the logarithm for the justice app in the Chronicle of HIgher Education and nothing would happen." Competition is traditionally thought to be the catalyst for innovation, but Dean Howarth worries that our system fuels competition rather than innovation, and that's a key challenge at this pivotal moment in the history of legal education.
9:05 Dean Blake Morant of Wake Forest University School of Law says that an investment in legal education is an investment in a lifetime of possibilities and that law schools must help students think deeply and holistically about their future careers. The "perfect storm" of forces that has created the current crisis makes it more imperative than ever to stress the ethics and moral values of the legal profession.
9:30 Prof. Peter Hoffman, Elon University School of Law, takes on the issue of the historical aversion to teaching skills versus theory, and maintains that this is a false distinction. The theoretical approach to teaching law has prevailed because its proponents seized the high rhetorical ground, the label of professionalism versus the label of trade school. Prof. Hoffman says this dichotomy profoundly misunderstands the nature of skills and problem-solving training; all skills that lawyers use in practice have strong theoretical scaffolding. So what's the fight all about? The criticism seems to be that non-doctrinal teaching is not teaching "law." (Note: there may be a theme of finger-pointing at Harvard and its storied Dean Langdell developing at this symposium. SBM Blog will not object.) There has been progress, but in the form of add-ons to the doctrinal foundation. "We'll teach you to think like a lawyer; somebody else has to teach you how to practice." Prof. Hoffman says law schools need to stop focusing on rankings, and focus instead on how to make better lawyers.
9:55 Prof. Avrom Sherr, University of London College of Law and a member of England's Legal Education and Training Review, presented the legal reforms currently underway in England and Wales which, he says, rest on a foundation of distrust of lawyers. The review is addressing all legal services education and training, including the academic qualification, vocational training and education, and continuing professional development for all the professionals and professional entities in their legal system. SBM Blog has alerted its readers to the developments in England through regular posts; Prof Sherr's presentation was a delightful and thorough summary, replete with Rumpolish and Monty-Pythonish wit. For example, how relevant are law professors to the preservation of the rule of law? "Law professors are 'an excrescence on the face of the law'." "Just like everything else in England, the reform is 'entirely hypocritical.'" It will be interesting to see if this engaging tone is maintained in the law review... Here's a slide show about the Legal Education and Training Review.
10:50 Prof. Russell Pearce, Fordham University School of Law. Prof. Pearce is an advocate of shifting regulation of the practice of law from individual lawyers to firms, which he believes will encourage a less self-interested culture as lawyers develop a professional conversation with each other and with regulators regarding their ethical obligations that better reflects the relational foundations (and realities) of what lawyers do. Lawyers who succeed do so because of their relationships, he says, but our rules of professional conduct are based on a view of the lawyers' role as based on autonomous self interest (a "lawyers as hired guns" model).
11:10 Prof. Benjamin Barton, University of Tennessee-Knoxville. The fact that virtually all judges are lawyers benefits the legal profession -- to the disadvantage of the public? -- in profound ways. His case is beautifully constructed and academic and is explained in his new book. He is deconstructing in a very theoretical way the world in which SBM Blog lives. I'm eager to read his book, The Lawyer-Judge Bias in the American Courts. My response to what is apparently a key theme of the book -- that lawyers enjoy a unique and powerful regulatory advantage because state supreme court justices are so sympathic to us? "If only."
Prof. Aviva Abramovsky, Syracuse School of Law. Prof. Abramovsky throws a new curve into the discussion: what do we do with the empirical evidence that judicial contributions influence judicial decisions? How can we tolerate the current system and be true to the judicial canons? Judge David McKeague challenges her about the credibility of the empirical evidence, suggesting that the decisional predilections of federal judges often can be predicted with almost pinpoint accuracy, and that there is no campaign contribution component to those patterns of predictability.
Keynote:
12:45 Prof. Thomas Morgan, George Washington University Law School lifts what could become a worrisome mood by celebrating lawyers as geniuses at "muddling through." What we do is help societies through periods of change, in diverse ways. He provided an eyes-open but upbeat message to carry into the afternoon.
2:10 Prof. Laurel Terry, Dickinson School of Law, Penn State University asks, with the changes underway in the world, isn't it essential to develop some sort of global regulatory organization for lawyers? Indeed.
2:20 Prof. Paul Paton, University of the Pacific, McGeorge School of Law, reporter of the ABA's Ethics 20/20 alternative business structures (ABS) subcommittee (but speaking for himself): the impetus for change today has embraced as a core value consumer welfare, which in turn is friendly toward alternative business structures. Has our core values rhetoric always been self-serving, or is it changing to become more self-serving in the face of today's stresses? Is the traditional law firm structure "our birthright" as lawyers (HT to Larry Fox)? What's going on? MDP, he points out, was introduced in Canada a decade ago (similar in the District of Columbia bar) and the world hasn't fallen apart.
3:05 Prof. Michael Churgin, University of Texas School of Law provides an update on regulatory developments nationwide. DOHA is in shambles, state regulation is constitutionally protected; so ...what? ABA model rule changes are on the horizon in August 2012 which are likely to liberalize rules affecting non-U.S. lawyers conducting business in the U.S. The portability of the bar exam through the acceptance of a universal bar exam, now accepted in five states, is likely a growing trend. Prof. Churgin says he is more optimistic than he has been in the past about the likelihood of real change.
4:05 Prof. John Flood, University of Westminster introduces his thoughts on the aftermath of the Legal Services Act with a discussion of solicitorsfromhell.co.uk. The Law Society has undertaken a concerted complain to shut it down. Prof. Flood notes the thousands of complaints it registers, and the need to deal with them. (Check it out. While you're at it, check out QualitySolicitors, too). After leading a lively tour through Internet Hell for Traditional Lawyers, he dangles before our eyes the design of a business court in London aimed at attracting international business disputes -- dedicated courts, dedicated lawyers. So how is the U.S. doing in the face of these international developments? "The U.S. is aiming a double-barreled shotgun at both feet if it keeps hanging on to its regulatory barriers." (Hard to take the next step if you've just shot of all your toes, I'd say.)
Jack A. Guttenberg, Capital University Law School -- another bleak description of conditions today, an impassioned indictment of outdated practices, and a call for practical and ethical reform.
Renee Newman Knake, Michigan State University College of Law. It's solution time! That is, deregulation! Prof. Knake describes a line of First Amendment cases that she predicts will lead the Roberts Court to overturn blanket bans on corporate ownership of law firms. Very stimulating; the paper should be quite interesting.
2:45 Izabela Krasnicka, University of Bialystok Faculty of Law, describes the Polish legal educational and regulatory system, which has been recently reformed, and tongue slightly in cheek, suggests that we deal with our lawyer surplus by sending some over to Poland...
4:45 David Barnhizer, Cleveland-Marshall College of Law and senior godfather of the symposium, matches Prof. Guttenberg's passion, calling for starting all over with a new code of professional ethics.
5:05 Daniel Katz, Michigan State University College of Law, ends by returning to the themes articulated by Dean Howarth, calling for using technology to solve both the crisis in unemployed grads and the unaffordable legal services problem.
