Site Meter

Author: Josh Blackman

13

Evolving Towards the Law Classroom of Tomorrow

Are the law schools of today preparing new attorneys for the legal profession of tomorrow? The Carnegie Foundation’s Educating Lawyers: Preparation for the Profession of Law provided a strong critique of legal academia, and contended that new attorneys are not taught the practical, real-world skills, that attorneys need. As the report noted, to the extent that professors can “bridge the gap between the analytical and practical knowledge,” new attorneys would be better situated to compete in the marketplace and obtain the ever-so-important first job. A 2010 study by NALP similarly found that “experiential learning opportunities,” “hands-on” or “simulated learning opportunities,” are “instrumental in preparing new associates for the demands of the practice of law.”

Putting aside any disagreements over these studies, most in the academy and in practice would probably agree that there is a gap–of some size–between what is taught in law schools today, and what students today need to work as lawyers.

What about the skills that lawyers will need in the near-future? That, is a tougher question. The legal profession has remained largely the same for some time. Attorneys, as a bunch, are generally resistant to change. Sure, new areas of law come into vogue (e.g., international law), and new tools are introduced to make research easier (e.g., WestLaw Next), but for the most part, the legal profession consists of a lawyer, or group of lawyers, providing a one-off, customized service–such as a brief, memo, will, contract, trust, etc.–to a single client. Law schools aim to prepare students for this manner of work.

The future of the legal profession may look different. Richard Susskind in The End of Lawyers? Rethinking the Nature of Legal Services, augurs an evolution–enabled by advanced technologies, outsourced labor, and weak demand for expensive associates–from a time-consuming, customized labor-intensive legal market to an on-demand, commoditized information-based legal service. Professor Larry Ribstein, co-author of Law’s Information Revolution, similarly writes “that much of law’s future isn’t in how to price one-to-one customized legal services, but in the development of legal information products.” Many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity. Think of a hybrid of LegalZoom.com, Google,and Facebook: instantly obtain legal services customized to your personal situation with the click of a mouse. To preempt many objections, don’t be so certain your practice of law will be excluded from this automation. This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.

To repeat the question I opened with, are the law schools of today preparing new attorneys for the legal profession of tomorrow? In many respects, the law student depicted in Norman Rockwell’s 1927 classic portrait (pictured above, I call him Abe) is not too different from the law student of today. Students are taught (hopefully) basic legal research skills, how to write, how to make oral arguments, how to read cases, and how to “think like a lawyer” (whatever that means). If Susskind, Ribstein, and others are right about the progression of how law is practiced, I ponder whether law students–as well as the Professoriate–will be prepared for the future legal profession. Will the gap between academia and practice grow even further?

So how do we prepare law students for the legal profession of tomorrow? The answer is well beyond the scope of this post, which I provide as food for thought. Though, for starters, banning laptops in the classroom is probably not going in the right direction. I hope to blog about this topic more in the coming month, but for now check out my liveblogged Google Doc article work-in-progress, as well as here, here, here, and generally here.

Crossposted at JoshBlackman.com.

13

What do McDonald v. Chicago, Brown v. Plata, and Ashcroft v. al-Kidd have in common?

In al-Kidd–beyond the relatively straightforward issue of qualified immunity–the primary dispute between Justice Scalia and Justice Ginsburg dealt with the pretextual 16-day detention of al-Kidd. This detention, which Justice Ginsburg labelled “harsh,” ostensibly deprived al-Kidd of his individual liberty interests protected by the Fourth Amendment, in order to secure testimony that would never be elicited, with the intent of keeping our post-9/11 society safe from terrorism.

In Plata, the Court decided that deplorable conditions in California prisons resulted in such an affront to individual liberty that 30,000+ prisoners must be released, and incidentally, society would bear the cost of the release of prisoners. Justice Alito in dissent chided Justice Kennedy for failing to give “substantial weight” to the public safety in approving the order.

In McDonald, both Justice Alito’s plurality opinion, and Justice Breyer’s dissenting opinion, agreed that the governmental interest in reducing the potential risk of danger from firearms should play some role in the constitutional calculus of the individual right to keep and bear arms. Justice Alito reassured proponents of strict gun control regimes that despite their “doomsday proclamations, incorporation [of the Second Amendment] does not imperil every law regulating fire‐ arms.”

So what is the common thread in these three cases: the Court’s recognition that liberty yields both positive and negative social costs. But what is different about these three cases: how the Court has addressed this balance of liberty and social costs differently in differing constitutional contexts. In some cases, the Court errs on the side of liberty. In other cases, the Court errs on the side of safety.

This seemingly obvious, but deeply unappreciated dynamic, conforms to a framework I identified, dubbed the Constitutionality of Social Cost (an application of Coase’s The Problem of Social Cost). I introduce this concept in an article forthcoming in the Harvard Journal of Law & Public Policy (available on SSRN). I will tease this idea further in future posts.

On that note, let me introduce myself. (In my best Troy McClure voice) Hi, I’m Josh Blackman. You may remember me from such blogging exploits as JoshBlackman.com, FantasySCOTUS, and Above The Law.

During my guest stint, I hope to blog about a number of items. In no particular order, I will delve deeper into Constitutionality of Social Cost; focus on some of the cool implications of FantasySCOTUS, and its predictive capabilities as a crowdsourced information market; and discuss some of my thoughts on the future of the legal profession and legal education, and the evolution towards the law classroom of tomorrow.

I will also chronicle my entry into the Law Prof “meat market” (For any interested Prawfs, I’m going on the market this fall, and my AALS material is available here). Plus, no June would be complete without end-of-term instant analyses of newly-released Supreme Court opinions.

I enjoy replying to comments, so feel free to push back and tell me where I’m wrong, or that I have no clue what I’m talking about. Thanks to Danielle and everyone at Concurring Opinions for letting me ply my trade at this new spot for a bit.

Crossposted at JoshBlackman.com.