Legal Education Reform?

Timely is the only word for the new article in Booz-Allen's Strategy + Business, which examines the history of business school education and asks if today's MBA programs are out of sync with the needs of 21st Century business.

Why timely? For two reasons.

One of the editorial goals of "Adam Smith, Esq." is to examine the entire food chain of BigLaw, from legal education through the associate experience to partnership, practice group leadership, executive committee membership, Chairman, and even through retirement provisions. I haven't been as focused on the beginning and the end of that timeline as I'd like, hence a first attempt to remedy my neglect of the first end.

The other, and primary, reason it's timely comes from a surprising consensus of remarks that spontaneously arose at the Georgetown Law symposium.   A chorus of voices, including managing partners and legal academics alike, critized the current state of legal education as antique, out of touch, and irrelevant to the practice of law today. The criticisms, let me immediately clarify, were not addressed to intellectual rigor or to admissions criteria or to "diversity" or to tuition debt burdens or other topics that seem to gain outsize measures of ink.

Rather, the criticism centered on the theme that while legal education might have prepared associates to have a fighting chance of starting off on the right foot as competent technicians 20 or 40 or 60 years ago, technical acumen is today taken for granted, and the real "action" over whether a 3L can mature into an accomplished practitioner has much more to do with qualities such as emotional intelligence, empathy, the ability to read personalities, judgment under pressure, and a knack for gaining the trust of one's peers and co-workers.

If these are the traits correlated with success, then the conventional law school curriculum has completely lost touch with what practitioners need to succeed.

Before we decide whether or not that's true, and well before the readers of "Adam Smith, Esq." decide whether to petition their various alma maters for serious curricular changes, let me suggest a far more modest proposal: Exploring how business schools may be re-examining their roles and their curricula. We might learn something.

Let's begin where the business school self-examination begins, with appropriate substitution of terms:

"Are MBA programs [JD degrees] out of sync with the needs of business [law] in the 21st century? Have they failed to keep pace with global and technological change? Are they too theoretical and removed from the day-to-day challenges faced by managers and entrepreneurs? And do they encourage the silo-ing of such functions as finance and marketing [litigation and transactional work] rather than instilling in their students a multidisciplinary view? These questions are taking on greater importance as the business environment becomes ever more globalized and competitive. “This is one of those punctuated-equilibrium moments,” says Joel Podolny, dean of Yale’s School of Management. “There’s lots of experimentation, and we have to adopt new models to meet 21st-century challenges.”

Aside from these relatively pragmatic questions, there are more existential issues in play. For example:

• Not unlike law schools' finding their roots in the case study method pioneered at Harvard around the turn of the past century by Christopher Columbus Langdell, business schools began to get professional respect with Joseph Wharton's establishment of the eponymous business school at the University of Pennsylvania in 1881.
  
  
• Enrollment in graduate business school programs grew quickly, from just over 20,000 in 1939 to 72,000 in 1950 to about 130,000 MBA graduates annually today. (JD's from ABA-accredited law schools in the US have stayed remarkably constant over the past 30 years at, give or take, 40,000/year.)
  
  
• But despite evident marketplace acceptance, business schools were already beginning to experience doubt about their fundamental mission. Here's Peter Drucker, writing in Fortune in 1950 on "The Graduate Business School:"
  
  
  • Although these schools were more popular than ever, they did not quite know “what their job is or how to accomplish it.” Most schools, he pointed out, embraced [Harvard Business School's Dean in the 1920's, Walter] Donham’s dictum that business schools have to “provide professional leadership in the modern enterprise and modern industrial society.” But there was no agreement on what the “function” — job, goals, standards — of someone in business should be, argued Drucker. Nor did many businesspeople, who were likely to see profit making as their key mission, agree with Donham’s call for business to contribute to the greater good of the economy and society. Drucker also saw three practical problems in defining the mission of business schools: (1) Business techniques could be taught to almost anyone, but the qualities needed for true leadership were difficult to convey to the typical MBA student, who at that time was a recent college graduate with little or no work experience; (2) courses on administration and policy emphasized routines — that is, bureaucracy — rather than the risk taking necessary for innovation; and (3) business schools fostered a “crown prince” mentality among their graduates, including an aversion to working one’s way up through the ranks of an organization.

Now, can't we see analogies to Drucker's shockingly prescient critique of MBA school nearly 60 years ago and the state of law schools today?

To wit:

• Are the schools themselves sure what the "job" of law schools is?
• Do they know (do we know?) what the "function" of a lawyer in society is?  And if that function is anything more ambitious than being able to overcome objections to hearsay evidence or to draft a complaint that will withstand a motion to dismiss, how relevant is what law schools teach?  (Here I'm not speaking of the wondrous advanced courses in the philosophy of jurisprudence and such that our elite law schools can offer, but of the core courses required of all 1L's that are the hard and irreducible essence of the classic curriculum.)
• While law ("business techniques") can "be taught to almost anyone," do we know how to instill true leadership potential? And perhaps most important:
• Do law schools give their graduates the remotest clue as to how the profession and the industry of law may change in the next few decades, and how they might contribute to shaping that evolution?

Lest I come across as too harsh on legal education,I will rally to its defense in at least one regard:  Whatever else legal education might accomplish, it does enable those who are willing to submit to its rigors to "think like a lawyer."  Now, this has long struck me as the most tautological and unhelpful of phrases, but as I mellow I understand that it's a somewhat spastic linguistic grasp for a genuine phenomenon and competence, the ability to utterly set aside emotion, sentiment, and even common human feeling, and to analyze a situation under the klieg lights of reason.   This has its value—provided you can turn it off at will, and make a habit of doing so.

I for one fear that the most salient failure of legal education may be the last one I listed:  Its imperviousness towards how the profession and the industry are evolving at the start of this century.

This brings us straight back to the question of what intellectual and emotional components of an individual help pave the way to success, and to the consensus from the Georgetown conference participants that conventional legal education is not optimizing those characteristics.

More from the MBA-land self-critique. How familiar does this sound?

"Even Harvard’s case method, while resisting the most abstract theoretical extremes, depends too heavily on analysis and talk, and not enough on context, experimentation, and the iterative learning that is essential for successful implementation. The cases students study, sometimes dozens of them in quick succession, are twice removed from the actual business setting. Mintzberg complains that the emphasis on data analysis without “the tacit knowledge of the situation” leads to facile decision making."

Ignoring "the tacit knowledge of the situation" sounds, to me, to be exactly what the commentators at Georgetown were focusing on when they talked about law schools' being at a remove from the actual practice.

What's to be done?

I'm in no position to pretend to suggest to law school deans what the next decade might behold, but business schools seem to be trying to reconnect with what actually seems to be working in corporate-land. And they're eschewing the previous research--however popular [read: best-seller] it was--that no longer seems borne out by reality. In this connection, In Search of Excellence and Built to Last both "lost their luster" when they were exposed as "the delusion of connecting the winning dots."

If the formula for success is not what we thought it to be, in corporate-land or in law-firm land, the answer for what environment breeds future success may lie in the only lasting source of competitive advantage known to man: Creativity and leadership. Can't bottle it? No, you can't.

But can you provide the environment where it might arise, even thrive?

The learning from business schools, emergent as it is, is that you can nurture these traits over a wide range of people; they are not innnately limited to the birth-talented few.  Harvard Business School's Working Knowledge just published "Getting down to the business of creativity," which argues that, while we:

"recognize the romantic allure of believing it's a rare quality bestowed on a chosen few, all agree that notion has been debunked long ago, and rightfully so.

"Creativity does have a reputation for being magical," says HBS professor Teresa Amabile. "One myth is that it's associated with the particular personality or genius of a person—and in fact, creativity does depend to some extent on the intelligence, expertise, talent, and experience of an individual. Of course it does. But it also depends on creative thinking as a skill that involves qualities such as the propensity to take risks and to turn a problem on its head to get a new perspective. That can be learned."

Essential to fostering creativity are an open and communicative culture, providing support rather than hindrances, and using setbacks as learning opportunities rather than occasions for rebuke.   And of course, encouraging people to drop the filters they're used to applying to the world and to think more broadly is essential. 

Could you imagine, or re-imagine, your firm as such a place?

If so, you might provide a model for law schools to rethink their curriculum, which at least at its core is all about instilling "filters" and thinking narrowly.

A few schools—I would like to believe Georgetown could be one—may be beginning to question the classic model.  But I don't imagine many will do it unbidden.  Come to think of it, you might ask your alma mater's dean how they are transforming the curriculum to align it with what 21st Century practitioners will actually need.  If you don't start agitating for change at your law school, you have only your first years to lose.