Two Questions for Law Schools About the Future Boundaries of the Legal Profession

Abstract

This essay identifies two fundamental strategic issues confronting law schools and suggests how critical theory and research might contribute to institutional change. The first issue is the increasing segmentation of the profession – not just between corporate and personal legal services, but also between commodity and “bespoke” or “high-margin” work in both sectors. Law schools have three options for responding to segmentation: to ignore it, as most schools have done for decades (and continue to do, despite evidence that segmentation will only increase); to exploit it, as most top-tier law schools attempt to do, for instance by forming preferred-provider relationships with large law firms and other corporate-sector employers; or to combat it, as arguably it is in most law schools’ interest to do, for instance by repurposing law schools to provide training that applies across sectors, and promoting a collective commitment to access to justice. Access to justice initiatives, however, lead directly to the second issue, which is the pressure for deregulation. Why should anyone pay monopoly rates for services that non-lawyers (such as information technologists) can competently and more efficiently provide? And what should be the role of law schools in training people and designing systems for the delivery of “law-related” (that is, unregulated) services? Deregulation presents a particular challenge for law school reformers, because it threatens the professional identity and status of legal academics. Moreover, the regulation of law schools is highly centralized and beyond any one school’s control. Yet the pressure to rethink the boundaries of monopoly regulation will only grow stronger in light of access to justice initiatives and deregulation in other markets, such as the U.K. Law schools either can be proactive and start a collective conversation about the future of the profession – or simply continue to react competitively to external shocks. This essay aims to contribute to a collective conversation by proposing a direction and framework for institutional innovation. It argues, specifically, for shrinking the boundaries of the unified J.D. degree, to focus primarily on legal doctrine, method, and professional ethics; while expanding the development of specialized pre- and post-J.D. training. In other words, rather than further segmenting law schools according to the characteristics of employers, the essay argues for rethinking the sequencing of U.S. legal education, to create more flexible entry and exit points at various stages of specialization. Part I examines the sources of segmentation in the legal profession and criticizes calls for further segmentation of law schools according to the size and wealth of law firms and other traditional employers. Part II examines the increasing pressure for the deregulation of law practice and the challenges it poses for the existing (costly, three-year) J.D. degree. Part III examines the strategic and regulatory implications for law schools and explains how critical theory and research can contribute to institutional innovation.