As If Law School Wasn’t Enough of a Problem Now

Between the law students who  feel betrayed by  the lies told to induce them to sign up for an extremely cool and invariably profitable future in the law, and the anonymous lawprof who has undertaken to reveal the inside of the law school scam, some in the Academy are beginning to get the sense that maybe, just maybe, they aren’t doing as great as they believe they are.

Adding to the mess, Bruce MacEwen has rubbed salt in the wound in his response at Adam Smith, Esq.:

But the real moral I take away is truly sad.  Exposed as never before to sincerely felt discourse (factually misguided, inconveniently timed, or otherwise–let that debate begin!) in the open air of the online community, the Academy has chosen denial, distraction, and blaming the messenger.

Oh, snap.  One lawprof whose shtick is rational markets, Larry Ribstein, has been pushed too far by the criticism and lashes out.  He addresses the three issues in play.

In a nutshell, MacEwen endorses what he says are LawProf’s three primary points:  that the rising cost of legal education is out of sync with its expected value; that law professors are overpaid (based on LawProf’s findings that a law review article costs $100,000), and the “inarguable” “irrelevance of what law schools teach to what it takes to actually practice law.”

With regard to the first two, Ribstein resorts to his rational market approach, meaning that law schools can’t get away with such nonsense if the market didn’t allow and support it.  Of course, if one doesn’t believe that everyone makes rational choices, as any rational person knows, then the argument falls apart.

What is most revealing for the rest of us, and perhaps the scariest insight I’ve ever seen coming from the depths of the Academy, is Ribstein’s vision of the future of law school.

Assuming legal education should be changed, what should law schools do now, or be allowed to do in a deregulated regime?  MacEwen and LawProf are both absolutely sure about the irrelevance of modern legal education to the job market.  Presumably they would want law schools to be more practice-oriented.

But MacEwen/LawProf are stunningly over-confident about their ability to see where legal education should go in a world in which the market for law-related jobs is rapidly and fundamentally changing. . . In brief, for reasons discussed in Death of Big Law, the high-end jobs in conventional practice are disappearing and not just experiencing a cyclical decline.  Meanwhile, the lower-end jobs are being replaced by technology, a phenomenon that will accelerate rapidly with the inevitable onslaught of better technology and deregulation.

So the good jobs are going to disappear.  And the lousy jobs are going to disappear. While leaves (recalculating) no jobs?

If I’m right, many traditional lawyer jobs will be obsolete.  I predict that law-trained people will be able to prosper in this future only by becoming legal architects and engineers who create new devices and solutions rather than the mechanics who apply the devices of the past that many are today. This means that if law students are trained only for today’s version of law practice they will not be adequately trained for the future in which they will be competing. Which in turn means that the MacEwen/LawProf ideas about what law schools should do, about which they are supremely confident, would lead legal education into its economic grave.

Let’s see if I understand this: So law school today fails to prepare law students for the practice of law. Ribstein predicts that in the future, there will no longer be a practice of law as it has existed in the past and still exists for the time being, to be replaced by robots and computers, so to catch up from the past failure by teaching them what they should have been taught would be inadequate training for a future of law that no longer involves practice.

Ribstein’s vision of the future of law school is to train “legal architects and engineers” instead of “mechanics.”  What the heck does that mean?  Who wouldn’t prefer to be the architect rather than the grease monkey of the law?  But is Ribstein already shilling for the Overlords?

Amazingly, the argument appears to be an adoption of the futurist view that law will be reduced to binary application, more of the fill-in the-blanks forms and paint-by-numbers that is being heavily promoted by the nice folks who create the forms and want the public to buy them.  Even though law schools fail to teach students how to practice now, Ribstein’s argues, “so what?” and wants to leap over law as it exists in favor of law as he predicts it might be. 

Remember the 20th Century predictions of life in the future, where we dressed like Buster Crabbe and flew around like the Jetson’s? 

And Ribstein is willing to stake the future of the law on his fantasy?  We’ll just leap over the preparation of students to practice law because there will be no jobs (note, not that there will merely not be enough jobs to subsume the excessive number of students being churned out) and start producing legal programmers to run the Supreme Court of Computers and Pre-printed Forms?

The expectation that things will change is hardly far-fetched, but change happens organically, despite all the forces trying desperately to sell us on their cutting edge shiny stuff that will absolutely, definitely be the future of the law.  And while the kids and fools rush around in circles adoring each new toy, the vast majority of lawyers will use what adds to the practice and laugh off what doesn’t. 

But trying cases, with or without an iPad, will still require lawyers who get the rules of evidence and the ability to cross-examine a witness.  Understanding a client’s needs will still require a lawyer to appreciate the varying issues and means of addressing them, not to mention the ability to ascertain a client’s purposes and hold the occasional hand. None of this will be replaced by computers or forms.  It will change over time, just as we’ve loosened our grip on fountain pens, but we still use pens.

As lawprofs may finally be coming to grips with their massive failure to teach students how to practice law, whether because they have no clue themselves or their love of theory and inter-disciplinarianism blinds them to such nasty pursuits, the answer isn’t to rush blindly to the next cutting edge theory propounded by legal futurists.

How about we just focus on giving students a little value for the money by teaching them the tools they need to become practicing lawyers?  We’ll deal with the future when it comes.