The ABA Starts to Get Serious About Technology Education — Sort Of

Thursday, October 5, 2017

One of the first actions by new ABA President Hilarie Bass was to create the ABA Commission on the Future of Legal Education. With legal education redesign as one of her key priorities, Bass said in an August 16th press release announcing the commission’s creation that “The ABA is in a unique position to work with the various stakeholders, such as bar examiners, legal academics and bar leaders, interested in training future lawyers. Through the Commission on the Future of Legal Education, we will enhance our leadership role in anticipating, articulating and influencing dramatic changes in the legal profession and their effect on legal education.”

The release also included comments from Maureen O’Rourke, the dean of Boston University School of Law, who chairs the council of the ABA’s Section of Legal Education and Admissions to the Bar. O’Rourke said that they “look forward to working together to ensure that legal education in this country provides the best possible preparation for the nation’s future lawyers.”

All well and good, but what exactly do they plan to do to improve a situation that hasn’t changed much since 2014? As I mentioned then in an interview in eDiscovery Daily, “…it’s not just a legal issue, it’s a social issue.  Society has changed how it manufactures, creates and stores information, data, and documents. Other professional areas have caught onto that and legal education has really lagged behind. The fact is that lawyers get educated in law schools and if you really want to solve this, you make it as part of the curriculum at law schools.”

But one member of the new commission had an interesting take on the situation. In a piece she wrote on Sept 20th for Quartz website owned by Atlantic Media, Gillian Hadfield, who is also a professor of law and economics at the University of Southern California, wrote that “Law schools are letting down their students.”

Her rationale? “Law schools in the U.S. today have become depressingly single-purpose: training members of a closed profession and failing to equip them to tackle the full breadth of problems facing economies and societies that are undergoing extensive transformations.”

Furthermore, “Conventional legal education, modeled on a system invented at Harvard in 1870, teaches students how to ‘think like a lawyer’, and how to spot potential legal issues. Practical training happens on the job.” Why? Because a system that worked well enough “during the heyday of the industrial nation-state economy…” is now dependent on “…an effective monopoly on law school accreditation and professional regulation. This has put a stranglehold on the ability of law to adapt to a vastly transformed world.”  Case in point, I have written many times that technology innovation (since 1870, mind you) has fundamentally changed the way law is (or should be) practiced today; yet, technology education is all but missing in law school curriculum.

Lest you think Professor Hadfield is all doom and gloom, she offers some solutions. Three in fact.

  1. The first is to move away from what she calls the “top-down” approach to law school admissions, teaching and testing. She proposes reducing ABA influence on that process and use other legal services providers to redefine exactly what a law school is and how it trains.
  2. The second step follows the first in a natural progression by calling for a shift in license requirements towards practical not academic skills.
  3. And third, eliminate the one-size-fits-all law school education model and adapt a more European approach, such as that in the United Kingdom, which trains not just barristers and solicitors but also other jobs that that don’t even require a law degree.

In a follow-up interview with the ABA Journal, Hadfield made sure to point out that she was not speaking for the Commission and is not even sure they would recommend her three suggested points of change. What she did know was that “…90% of Americans dealing with legal matters do so without legal help.”

There’s an old saying in the business world, “If it ain’t broke, don’t fix it.” But we should always be looking for ways to improve – even if you think it’s still working.


Guest Author: Tom O’Connor, Director, Gulf Coast Legal Tech Center

Tom O’Connor is nationally known as a consultant, speaker, and writer. In his consulting work, Tom specializes in working with law firms and their corporate clients to manage their electronic discovery needs. Tom’s consulting experience is primarily in complex litigation matters where he has worked on several major cases, most recently the BP litigation. He has also been appointed as a technical consultant by various federal and state courts on cases dealing with large amounts of electronic evidence and specializes in negotiating ESI exchange protocols.  Tom speaks at major legal conferences and writes for both the Advanced Discovery blog and national legal publications.

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