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May 22, 2013

Challenges Present a Time to Reflect and Adapt

Scott-web.jpgBy Associate Dean Sean Scott

This column first appeared in the Daily Journal's "New Lawyer" supplement on May 21, 2013.

The law, whether in its study or its practice, is a social institution. As such, it influences and is influenced by other social forces such as politics, economics and social-policy movements. The force that has been the subject of commentary the past few years is the national economic recession and its impact on law practice and on legal education. Much of the commentary has been pessimistic and negative. The pessimism is not unwarranted. The job market for law graduates is weak and tuition at most law schools tops $40,000, resulting in students graduating with debt often in excess of $100,000. The poor job market makes repaying this amount of debt daunting. Rather than pointing fingers at who or what is to blame for these conditions, I encourage law schools and the profession generally to view this period as a time to reflect and then adapt. The revolution brought on by economic retrenchment, technology and globalization provides the academy with the opportunity, perhaps even the obligation, to innovate. Law schools should be open to innovations in the way they teach critical-thinking skills and provide experiential offerings.

It is the obligation of law schools to best prepare their students to adapt to the shifting landscape in which the law operates. I teach Contracts and Commercial Law. Prior to the Industrial Revolution, there was no coherent, cohesive body of commercial law. However, industrialization created a greater need for standard rules to govern commercial transactions. Legal practice and academia had to respond to this new need. Just as the growth of mechanization created a revolution, so too have technology and globalization created a revolution.

There are some skills that law schools must teach regardless of the era in which they find themselves: They must teach students analytical and critical-thinking skills. The law changes and evolves because law schools give lawyers the tools to assess the policies underlying current rules and to analyze the validity of those underlying policies and concerns. Legal educators teach students to assess with a critical eye, and to question and reveal underlying assumptions. Without these skills, and the ability to move the law forward, there is no justice.

One way in which Loyola encourages the development of these skills is by offering courses such as the Tax Policy Colloquia and the Intellectual Property Honors Colloquia. Both these upper-division electives offer students the opportunity to delve deeply into a particular subject, to read the works of experts, and engage intellectually with these experts when they come to the law school to present their papers.

Law schools should continue to train law students to be legal theorists. Theory, whether Critical Legal Studies, Critical Race Theory, or Feminist Legal Theory, is important, even if not tested by the bar. Theory, taught in courses such as Principles of Social Justice, Law and Sexual Orientation, and Law and Economics, encourages students to imagine a different world. If they cannot imagine it, they certainly cannot create it. Theory frees them to innovate.

Law schools also should strive to teach law students to be problem solvers. Experiential learning is one way in which law schools teach this crucial skill. Professors walk students through the legal and business considerations that may arise in a venture capital deal; teach them what advice they may give a veteran seeking housing and other social services; and train them to assist those with immigration challenges.

The traditional model of teaching problem solving experientially has been through live-client clinics. However, such clinics require substantial resources, both financial and human. The economic crisis provides law schools with an opportunity to rethink experiential learning. Law schools can transform traditional courses such as Remedies into project-based courses requiring students to draft documents such as injunctions. We can create opportunities for students to shadow practitioners to come to understand both the legal and business side of law practice. In Loyola's Patent Prosecution course, one of the professors joins the class from Boston via Skype to assist in the drafting of patent applications.

One of the unintended consequences of the rise of large, multi-national law firms that employ hundreds, sometimes thousands, of lawyers, is that it has created the expectation that law students do not have to be entrepreneurial and deeply involved in creating opportunities for themselves. Twenty years ago, students who were academically successful were offered positions with large law firms provided they were good students, graduated and passed the bar. Few who graduated during that time did so with the expectation that they would be sole practitioners. Someone else was going to ease the path to professional and economic success.

Changing this expectation, and providing our students with the skills to be entrepreneurs, is a challenge that all law schools face. From the first day of law school until graduation, students should be taught not only the value of networking but also how to network and how to generate business. Loyola is beginning to address this by offering a daylong workshop to students during their first year that introduces them to the concepts of professionalism and networking.

A further question that legal educators must face is whether to encourage students to be generalists or specialists. The separate designations of "barrister" and "solicitor" indicates a long-held belief that sometimes specialists are preferred. Currently, there is some indication in the market that there is an increasing preference for recent law graduates to have a field of specialization. Here, again, law schools should be flexible and try to provide students with the option to specialize and provide them with the both substantive and experiential learning opportunities in particular areas of law. Loyola offers subject-matter Concentrations to provide students with the opportunity to specialize. Each Concentration includes core courses, electives and a capstone, which can be a moot court, a sophisticated simulation or an honors colloquium.

Perhaps the most daunting challenge of all is how to adapt, educate and innovate in a cost-effective way. The current model of simply increasing tuition is not sustainable. The debt that many students carry forces them to make career choices that result in fewer services being available to those who are not wealthy. Rather than bemoaning the fate of lawyers and law schools, let's challenge ourselves to relieve students of this burden. We will be richer as a society and as a profession if we do.