ABA Journal

The New Normal

Yale law prof falls short in challenging Obama’s 2-year JD idea

By Paul Lippe

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Paul Lippe

The Washington Post just ran an op-ed by Bruce Ackerman, Yale Law School professor, dismissing President Barack Obama’s call for cutting the third year of law school as “dead wrong.”

Let’s start by stipulating a few obvious things:

• President Obama is a pretty smart guy, and he’s likely to be more empathetic to law schools than any other president who will come along in our lifetime (more than a President Ted Cruz), so if he suggests that law schools ought to consider some change, then maybe they ought to take that seriously.

• Bruce Ackerman is also a pretty smart guy, and let’s assume one of the most brilliant law school professors of his generation. But broad exhortations are unlikely to convince anyone who doesn’t already agree with you. Rhetoric like “if law schools redeem the promise of a three-year curriculum, their graduates will have something valuable to contribute to the larger conversation” or “it would be tragic if short-term cost-cutting makes it impossible to succeed in this long-term project” doesn’t persuade or offer anything new.

• I actually agree with the things professor Ackerman says law schools should emphasize. But I saw nothing in his essay that suggested that they couldn’t be addressed in a two-year curriculum, or that debt-strapped law students should continue to cross-subsidize his scholarship to a level that compromises their long-term financial solvency, or that the Yale model should be mandatory for all schools, which would be a pretty command-and-control way of looking at what could be a market choice.

• To put forth an essay and fail to acknowledge that it is entirely self-interested (law school should be three years because everybody should study what I care about) is simply not a serious form of modern conversation and undermines the author’s credibility, as does a failure to acknowledge that other serious people such as Alan Dershowitz from Harvard, advocate the 2-year option for serious reasons.

• If you’re going to defend the status quo in the Washington Post, you might want to consider the broader context and whether what has happened at the Post is relevant to your enterprise. The Post ran out of gas under its current multigenerational family ownership and sold itself to Jeff Bezos, an avatar of the New Normal if ever there were one.

• Regardless of the logic, there’s zero possibility that law schools will voluntarily cut themselves back to two years, so the debate shouldn’t be about rebutting a straw man but figuring out how to make law schools (and law) work better.

Let me offer a few personal updates which would, if he were interested, bear on professor Ackerman’s arguments:

1. I met last week with the general counsel of a Fortune 20 company (one of the biggest clients in the world) who wants law schools to cut the third year.

2. I had breakfast today with the GC of a Fortune 100 company who is looking for ways to create externships for 3Ls to effectively pay for the third year.

3. I met last week with the head of legal operations for a top-five bank (also one of the biggest clients in the world) who is publishing updated billing guidelines that decline to pay for first- and second-year associates.

4. I talked to partners from an extremely elite law firm who had an MIT professor speak at their partners’ retreat and tell them: “You will likely be out of business in 5-10 years.”

5. I got invited to speak to another firm’s partners retreat on the basis of something I wrote years ago that the firm said was “just entering the partners’ awareness.”

6. A law school professor who dismissed me as “thoroughly off base” a few years ago when I started writing about this stuff has now invited me to speak to his new class on the future of law.

7. We are working with more than a dozen law schools to develop a scalable model of “legal rounds” to accelerate learning and, as one dean put it, “prepare 21st-century Lawyers, not prepare 20th-century lawyers a little quicker” (self-interest acknowledged).

8. I read a new book, The American Legal Profession in Crisis, from Washington & Lee professor James Moliterno, describing how the response of the organized bar (and legal academy) to every change over the last hundred years has been to resist it. The only thing that’s new is now most people in the legal academy define themselves as progressive even as they defend the status quo at every turn.

9. I’ve talked to many deans since the president’s remarks at Binghamton University, part of the State University of New York system, and all of them say they don’t agree. Well, duh, what else would they say? No law school can possibly move its model to two years as presently constructed, and there’s nothing in any dean’s experience that suggests pursuing a breakout strategy to try to offer a cheaper law school to gain market share. Does that mean a two-year school is a mistake? No more than it means it’s the right answer.

The world is changing in good and not-so-good ways, offering new possibilities and forcing rigorous choices, many of which we would prefer to avoid. No one knows the future, but those who engage with it seriously will be fine. None of us will always get those choices right, but dismissing the president of the United States when he challenges your status quo in an essay that speaks only to the converted doesn’t make much of a case for the analytical rigor or intellectual objectivity of today’s law schools.

Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.

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