The role of law school dean offers one a rare overview of the legal system and its role in society, encompassing legal education, the practice of law, and the search for justice. Here former Hamline Law School Dean Jon Garon offers reflections on what he learned as dean and what challenges and opportunities he sees ahead for legal education and the legal profession.
Legal education changes slowly. The appellate case method developed by Christopher Columbus Langdell for Harvard to professionalize legal education began not too many years after Minnesota achieved statehood. While there have been changes to the curriculum, including the development of clinical education and the expansion of mandatory professional responsibility education added in the wake of the Watergate scandal, Landell’s casebook method and the core, first-year subjects have remained much the same throughout time and throughout the country.
During this time, the law has exploded with new subjects and specialties. Most law schools continue to emphasize Torts, Contracts, Civil Procedure, Property, and Criminal Law in the first year of law school. Legal Writing was the last pervasive addition to the first year. Now schools are adding courses on professionalism, dispute resolution skills, or elective topics to reduce the number of students in each class and diversify the experience for students in their first year. In a world as resistant to change as legal education, these changes must be viewed as significant, but measured against the legal and economic backdrop, the changes are modest indeed.
But profound change looms ahead. As I reflect upon my five years as dean of Hamline University School of Law and 20 years of law practice, I see legal education on the cusp of a significant transformation while facing challenges unprecedented since the end of World War II. Globalization, communications technology, demographic shifts, law school competition, and economic trends will transform the practice of law, so law schools are struggling to plan for this future.
Some of these changes are fueled by competition among law schools. ABA-approved law schools have increased to 199, with 11 more schools in the wings. Law schools have publicly resisted the influence of U.S News and World Report rankings while extracting all available benefits from any positive press. Only in recent years have law school deans begun to admit that reliable quantitative data and legitimate measures to differentiate law schools could benefit legal education and the practice of law. As legal practice continues to expand and diversify, law schools have the potential to emphasize differences in our preparation of students in the same way that liberal arts colleges and business schools have done for decades. This need not create tiers of lawyers, but it would allow students to select law schools based on their content focus, training regimen, or other criteria. Schools could then be more fairly judged based on their ability to deliver what they promise rather than the rather arbitrary criteria that U.S. News has adopted.
Moreover, for the first time in history, universities in Australia and China are planning American-style law schools which they hope to have accredited by the ABA. Thousands of lawyers from around the world have earned LL.M. degrees in the U.S. to improve their practice in an economic environment dominated by international trade and cooperation. An American legal education, together with admission to the bar in New York or other U.S. jurisdictions, continues to carry significant clout in the world-wide practice of law. Its prominence also reflects the next step in the global commoditization of legal services: the emergence of foreign ABA-approved law schools will fuel the movement of legal services to these markets, increasing the ability to move legal costs “off-shore” to less expensive venues.
The pressure to reduce legal costs by moving them off-shore merely reflects a broader economic trend faced by our clients and our practices. The personal law practice—drafting wills, arranging home purchases, and litigating personal injuries—will continue, but the economic viability of this practice has been eroded by tax-calculating and will-generating software. At the same time, even the smallest of family businesses is today likely to face complex issues involving employment and immigration law, international trade issues, and sophisticated tax and health law regulations. In response, the range of law school topics has grown exponentially to reflect today’s practice of law. Intellectual Property, Law and Economics, and Dispute Resolution have been joined by Health Law, International Business Transactions, Biotechnology, and Military Justice as regularly taught courses.
Even these changes may pale in comparison to the global economic changes wrought by the transformation in Asia. With India and China growing their consumer class, the role of these nations in international trade and the consumption of energy and agricultural products has already triggered a worldwide increase in food and energy prices. Over the next few years, these two rising economies will require a worldwide shift in economic resources. The changes are fueling conflict in Africa and contribute to the centuries-old conflicts in the Middle East. These threats, in turn, have helped fuse the European Union together despite tremendous internal tensions.
But how and why do these global transformations influence a relatively small law school in Minnesota or a four-person practice in St. Louis Park? My thoughts on this question are shaped not only by my experience running a growing law school but also from the hundreds of conversations I’ve been fortunate to have with lawyers and legal employers across a spectrum of disciplines, interests and perspectives. Perhaps the most challenging aspect of serving as dean is the constant demand to attend “outside” events—CLEs, presentations, firm lunches, fundraising dinners and the like. But these serve as the “town-hall meetings” to learn about the profession from the men and women involved in every aspect of the practice. Tiring as this sometimes has been, this has been an incredible opportunity and a learning experience I could never duplicate.
Changes in Practice. The global changes to the economy will influence both the legal issues facing our clients and the nature of our practice. Technology and intellectual property have become essential parts of every business. The cultural make-up of the U.S. and of the Midwest is changing. Hamline has worked with organizations in the Latino, Liberian, Somali, and Hmong communities on domestic and international legal issues. This work provides important resources for our residents, but more importantly, provides critical training and exposure to law students learning to understand how these national and international political and cultural influences directly impact the clients they will one day serve. Visits to Norway and Sweden no longer constitute a tour of the “old country” for most Minnesotans.
Law firms must also reorganize to respond to the changing social and economic climate in which they now find themselves. At the broadest level, legal services are becoming international commodities, subject to international free trade obligations. Protectionist national and regional rules are slowly eroding as multinational practices continue to expand. Law firms struggle to build brands around what is largely a commodity service through specialization, trade-association relationships, geographic reach, and client relationships.
At the same time, law firm politics is local. Many firms have found that operating satellite offices is time-consuming, disruptive, and inherently inconsistent with building cohesive management. On top of this, more senior lawyers are generally unhappy with the demands of junior hires for improved work-life balance while those associates feel harassed by the 24/7 demand for always-on, Blackberry-addicted legal practice.
Law firms will either restructure their management, supervision and compensation systems or risk facing extermination by those that do. Proper lawyering requires reflection and thorough research before critical advice is offered. Firms must develop realistic billing and availability demands for their associates, and the firms must inform their prospective hires of what will be expected. While it may seem odd to stress this need in a weak economy, proper planning to reduce attorney attrition and increase satisfaction will pay significant dividends for firm profits. We have long been aware of the high stress levels faced by attorneys and concerns regarding alcohol and substance abuse.
Some steps can be taken to reduce daily stress, but much more can be done to balance the stressful aspects of the practice with opportunities to mitigate the stress and improve the professional environment. For example, lawyers typically know how long various tasks “should” take and “write down” their time accordingly. For most firms, the time not reported for billing is perceived as a cost borne by the attorney, rather than any kind of professional development tool. Even counting a small percentage of time written off toward a junior associate’s goals will encourage attorneys to learn new fields. Similarly, counting some amount of the time spent at professional networking opportunities, giving credit for writing for trade magazines or the firm’s website (or better yet, a client’s website), or otherwise recognizing that the time invested in nonbillable activities still benefits the firm will align the attorney’s goals and those of the firm rather than creating inconsistent demands.
Those firms that incorporate rewards for nonbillable time, pro bono representation, professional sabbaticals, law-student-mentoring programs, and flex-time opportunities will maintain a more productive legal workforce that will increase client development and better weather the difficult times. Law schools, in turn, should be teaching the next generation of lawyers these and other techniques for running their law practices as professional businesses—something we have yet to undertake.
Firms must also continue to prioritize diversity within the profession to meet the demands of our clients, to better serve the unmet legal need, and reflect society within the profession. While I am very proud of the efforts made by Minnesota law firms and law schools, the reality remains that there are tremendous socioeconomic barriers to attending law school and considerable competition for the limited number of graduates. Programs in the law schools are necessary but insufficient. Programs providing funding, mentoring and encouragement for promising students should be focused on high schools and feeder colleges if we hope to increase access to legal services for those currently under-served throughout Minnesota. For example, partnerships between law firms and law school clinics could be employing college students and even high school students during summers to introduce them to the practice of law and encourage their eventual matriculation. Opening the door to the potential for a legal career should start in middle school and culminate in college.
Law school costs remain one of the significant barriers to attending law schools. Students often graduate from law school with $75,000 to $100,000 of law school debt in addition to the debt they accrued in their undergraduate education. This amount of debt is intimidating to any potential applicant and presents a particularly daunting barrier to first-generation college graduates or those socioeconomically disadvantaged. While new hires at national law firms may earn enough to keep up with their rising expenses and debt, those pursuing most legal careers are struggling to keep pace. Graduates with tremendous personal debt are hard- pressed to make a living representing clients of limited economic means.
Changes in Legal Education. The experience within law school must also evolve to keep up with the explosive expansion of information we now face and the increasing demands for our students’ time and attention. Simply put, three years of law school can no longer provide students with enough information to practice law. The legal issues with which our graduates will grapple are likely to be outside the subjects studied while in law school. Rather than chasing the receding goal of comprehensive legal education in an unlimited range of legal issues, we have begun to realize that we are preparing our students for a lifetime of growing their own competence: learning to identify an issue and frame a solution which is both legally appropriate and consistent with the client’s goals. Memorizing core principles of common law doctrine remains a necessary building block for such a process, but is only a small part of that preparation.
To help students develop their skills as reflective, self-directed lawyers also takes intentional training which has not historically been part of law school curricula. This change requires faculty to evaluate students on these skills in new ways. We are only beginning to explore how best to assess these skills, but it has become clear that legal education must build this competency and we are seeing those changes occur. At Hamline, for example, the law school has adopted a set of learning outcomes that specify the skills and abilities we expect our graduates to master.
In addition to knowledge of the law, we stress writing ability, analytical skills, cultural competency, professional ethics, and practice skills we believe are minimum competencies critical for new lawyers. Only a few of these abilities are tested by the bar, but all are essential for the lawyers’ success. This suggests that the bar examination must also change to keep up with these changes to education, but reform of the bar exam is not necessarily required. The bar examination serves as a limitation on the discretion of law schools to determine preparedness to practice law. Wisconsin’s diploma privilege, for example, reflects that the Wisconsin bar believes that determining preparedness can be delegated to its law schools. Provided the law schools are effective at teaching and evaluating students on this broader list of competencies, there is no need for a second layer of high-stakes, pass-fail examinations to second guess the results.
Eventually, the broad range of knowledge, skills, and values needed for successful law practice will make the choice of subject-matter knowledge tested by the bar examination seem arbitrary. Once the broader set of expectations for new lawyer competency have become generally accepted, the leadership of the bar will likely move to incorporate those expectations. The bar examination will therefore be the final issue addressed in this transformation of legal education from Langdell’s appellate case method to the professional skill-set assessment model we are only beginning to develop.
Having reflected on all these demands for change in legal education and the practice of law, I must also recognize the demands of tradition, the inherent conservatism of our profession, and the significant costs such change will require. There will, of course, be early adopters, but most change will come slowly. Only a few of these changes will occur within the next five years and not all are likely to be accomplished during the next 20.
Looking to the Future
As a personal matter, I am committed to exploring these forces affecting our profession first-hand. A beneficiary of employee-retention policies that encourage sabbaticals, I will travel next year to lecture, study, and write in both Asia and the Middle East, spending time in China and Israel. My previous experience teaching in India has profoundly influenced my views on globalization, economic development, and demographic reform. I expect no less next year.
As I travel and teach, I expect to challenge the assumptions this article suggests. My visit to India taught me very quickly that the cost of U.S. legal education may be 50 times greater than the tuition for a local legal program, creating significant economic barriers to international exchange. It reinforced the critical importance of timely access to courts as a practical precondition for an operating judicial system. And it reinforced my deep respect for our colleagues around the globe who demonstrate such high standards of professionalism and dedication despite tremendous obstacles.
The economics of a global legal practice remain in sharp opposition with the competing demands inherent in a typical multi-office practice. Will new professional models for law firms develop or will the segmentation of multinational firms and local practices remain for another two centuries? Only time will tell.
Even within legal education, movements for reform have failed in the past. As a profession, we may recognize that the world is a strikingly different place than the one which existed when we first applied to law school, but this does not mean that there is broad-based consensus that change is needed or what shape it should take. I am hopeful that the efforts to improve the learning of our students, better develop their professional skills, and broaden their domestic and international cultural horizons will take place, but the effort will be demanding and small steps are likely to be hailed as triumphs. Only time will tell.
The goal of Langdell’s innovations was to professionalize legal education and thereby improve the practice of law. The goal remains unchanged. The paths, however, have twisted and grown.
As I look to the horizon I see great opportunity and promise. When I direct my gaze only a fraction lower, I cannot ignore the obstacles across the way. Still, I look forward to navigating that road, knowing I am in good company. The law firms and law schools of Minnesota have blazed many trails these past 150 years, and I have benefited from this great enthusiasm and expertise during the past five years as dean at Hamline.
So sorry I cannot travel the many paths, yet knowing how way leads on to way, I leave my deanship behind to test the next hypothesis—that doing so will have made all the difference. Only the future will tell.
JON M. GARON joined Hamline University Law School as dean in 2003 and completed his deanship June 30, 2008, returning to the full-time faculty. He is a nationally recognized authority on intellectual property, particularly copyright law, entertainment and media law. A Minnesota native, he received his bachelor’s degree from the University of Minnesota in 1985 and his juris doctor degree from Columbia University School of Law in 1988. While serving as dean of the Law School he also served as interim dean of the Graduate School of Management in 2005-06.