In one of his most celebrated dissents, Justice Louis D. Brandeis addressed an issue not likely to come before the U.S. Supreme Court again: whether the state of Oklahoma could regulate distributors of ice as a public utility. Although the legal question in the 1932 case of New State Ice v. Liebmann1 was a product of its time, a passage from the Brandeis dissent, in which he disagreed with the majority decision finding the regulation unconstitutional, has continued vitality today. Brandeis wrote:

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.2

In making his argument for the restrained exercise of the Supreme Court’s authority to strike down legislation, Brandeis likened states to laboratories of experimentation. It is a powerful metaphor, ringing so true that it remains a fundamental precept of our national heritage and identity.

The wisdom of Brandeis’ metaphor can be equally well applied to another context: the significant change occurring today within our legal education system. Of course, our nation’s law schools historically have not been recognized as places of great experimentation, and rightly so. My grandfather graduated from law school in 1922, 10 years before the Supreme Court’s decision in New State Ice. Sixty years later in 1982, I graduated from law school. Today we are 30 years removed from my graduation, and 90 years removed from my grandfather’s. And yet, at most institutions, in all of that time, the experience of the law student has remained fundamentally unchanged, focused on large classes with Socratic questioning and a smattering of clinics thrown in.3 Once a century is time enough for transformational thought.

Indeed, the status quo so long in effect has begun to change. Forces both within and without the legal academy are pressuring law schools to rethink their missions and their curriculum. While painful for some in the interim, ultimately this reexamination will benefit our law schools, law students, and the profession as a whole. If the best results of this period of self-analysis are realized, we will be left with a diversified landscape of law schools, differentiated in their approaches to best serve the educational needs of their students, and the professional needs of our society generally and legal practitioners specifically.

To put it in terms of his metaphor, law schools can and should become laboratories of experimentation in legal pedagogy, just as Brandeis envisioned the states as sources of experimentation in government policy. Furthermore, law schools can and should be afforded the flexibility to experiment in their approaches to legal education. Just as Brandeis advised a restrained approach to exercise of the Supreme Court’s authority to prohibit experimentation, so too should the American Bar Association, as the accrediting body for our law schools, adopt standards that do not restrict the valuable experimentation and innovation being pursued at those institutions.

Source of Experimentation

In order to understand the pressures the legal education system currently faces, and how to respond to them, it is necessary to remember how we got here. We must go back at least to 1870, when Christopher Columbus Langdell was appointed as dean of Harvard Law School. Langdell saw the law as a science, a belief that encouraged pedagogical departures from two then-popular means of educating lawyers: apprenticeships and lectures. Langdell’s view of the law as a science had a number of important implications, one being the embrace of schools over apprenticeships (which were more appropriate to “handicrafts,” as Langdell put it somewhat derisively in his preface to Cases on Contracts). Also, Langdell’s view of the law as a science paved the way for instruction on legal topics through the analysis of individual cases, curated by professors to reveal the foundational principles underlying the area.

As Michael Ariens has noted, Langdell’s approach permitted large class sizes, and in so doing made law schools profitable endeavors.4 The number of law schools doubled from 1870 to 1890, and doubled again by 1910. By that time, Langdell’s model had largely displaced the apprenticeship and lecture models for legal education.

Uniformity in legal education received another boost in the following decade, when the American Bar Association and its first section, the Section on Legal Education and Admissions to the Bar, commissioned a report on the subject. The Root Report, issued in 1921 and known for the chair of the committee that produced it, Elihu Root, favored a more standardized approach, and its largely accepted conclusions served as the impetus for the American Bar Association to begin accrediting law schools.

Since that time, the ABA accrediting standards have succeeded in creating conformity within the nation’s law schools, but critics argue that they also stifle even minor changes. Meanwhile, a growing body of voices within the legal education system is calling for just that: change. The 2007 Carnegie Report, for instance, offered a call for greater practice-based instruction, stating that “law schools need to do a better job integrating the teaching of legal doctrine with a much stronger focus on helping students develop practical ‘lawyering’ skills and understandings of ethical and moral considerations.” In the five years since the Carnegie Report, an unprecedented amount of conversation has arisen regarding appropriate structures for legal education, with the Clinical Legal Education Association’s influential report on “Best Practices for Legal Education” and the establishment of the FutureEd conference being just two of many efforts to investigate the subject.

All of this thought has been fueled by societal events that have transformed the future of legal education from an academic exercise to a near crisis. The perceived gap between modern legal education and practice, as documented in Brian Tamanaha’s Failing Law Schools (University of Chicago Press 2012) and other works, has only been heightened by voluminous reports of the lack of employment for recent law school graduates. Coupled with the scrutiny given to the sometimes-rosier post-graduate employment figures law schools have put forth, a modern narrative is building in which law schools are playing the out-of-touch villain.

The employment challenges confronting today’s graduates have risen from a number of combined forces, only one of which has been the recent recession. Indeed, the changes to the professional landscape are more profound than a market cycle and include the uncertain future of the current law firm business model (where hiring has been flat among the largest firms since 2004). Technology, too, plays a role. Just as the introduction of the telephone and typewriter played a role in marginalizing the apprentice system,5 technology has facilitated the commoditization and outsourcing of legal functions. Greater availability to information through technology also has enabled more informed and proactive clients.

While the above forces are out of law schools’ collective control, we must adapt to them. In its extreme is the admonition of Dean Frank H. Wu of the University of California Hastings College of the Law, who told The New York Times: “This is Detroit in the 1970s. Change or die.”

There will be no single path through which law schools escape the dim future that Wu foretells for those that do not change. And whether Wu’s dire prognostication comes to pass, current challenges make clear that the time is ripe for experimentation. Indeed, the most promising path forward, for both individual legal institutions and the academy as a whole, lies in differentiation. The law school that seeks to flourish today must distinguish itself in some way that appeals to its existing and prospective students. The particular form of that distinguishing characteristic is up to its leadership. It could include, for instance, a focus on a specific practice area (as with the University of New Hampshire School of Law’s focus on intellectual property law), a focus on particular skill sets (as with the University of Arkansas School of Law’s required instruction on trial advocacy), or an innovative pedagogical approach (as with the University of Utah S.J. Quinney College of Law’s adoption of a teaching-hospital-like approach to legal education).

Such differentiation, effectively executed, offers any number of benefits. First, it offers an opportunity for a school to establish itself as a leader in its chosen area. In the eyes of law school applicants as well as employers, a school that focuses on a particular subject matter can go from being just another member of Tier 3 in the U.S. News & World Report rankings to an institution highly desired for its excellence in, for instance, real estate law. Second, when properly done, differentiation leads to excellence. The law is an extremely wide field, with many subjects and many disciplines. Narrowing the focus of an institution allows it to deepen its expertise in its chosen area, and to excel at training students in it. Third, carving out an area of differentiation will attract students interested in that area and thus allow the institution to provide them with a more gratifying education.

These and other benefits will come to individual institutions that differentiate themselves, insulating them from forces affecting their fellow institutions. Just as important, however, is the collective picture. A landscape of differentiated law schools creates choice among institutions for students, applicants, and employers alike.

I write of the benefits of differentiation from experience. Since 1968, my own law school, the Northeastern University School of Law, has distinguished itself as a place to gain meaningful exposure to real-world legal practice through a program of cooperative legal education that places students in four full-time legal positions prior to graduation. Our integrated, immersive, and iterative approach to experiential legal education has received much attention of late but it has also driven the success of our institution for over four decades.

Northeastern is not the only institution that has succeeded through differentiation. In addition to the other examples mentioned above, Penn State University has introduced a program that integrates its Dickinson School of Law with its School of International Affairs; the University of the District of Columbia David A. Clarke School of Law has embraced a curriculum focused on public service; Washington & Lee University School of Law has adopted a new, practice-based approach to its students’ third year. There are more examples of beneficial differentiation occurring within law schools, but the more important matter is ensuring that institutions have the flexibility they need to experiment with differentiating programs of their choice.

Northeastern University has convened an alliance of legal educators from almost 70 law schools that are investigating curricular reforms, and will host a symposium on its Boston campus from Oct. 26-28. That effort, like the FutureEd conference and others, is an important one, but solving the problems facing law schools today requires institutions to put theory into practice. Institutions must differentiate themselves, and doing so requires the necessary flexibility to execute their ideas.

As noted, a number of law schools are developing new programs, but ABA accrediting standards remain a constraint that limits the extent to which institutions can innovate. Those standards, for instance, place an impediment on schools that would like to develop a greater focus on practical education, as advised in the 2007 Carnegie Report. The ABA requires certain student-to-faculty ratios, but for purposes of computing that ratio a practitioner-instructor counts less than a tenure-track professor, and practitioner-instructors can only account for 20 percent of a school’s total faculty. Obviously, this system limits the extent to which a law school that wishes to retain its ABA accreditation can employ practitioners to instruct classes on negotiation, trial advocacy, and other skills in which they would be best suited to serve as faculty.

Further, schools seeking to take advantage of technological advancements see their investment in electronic resources limited by ABA standards 601 and 606-5, which require a library and outline specific requirements for their holdings, respectively.

Other standards, which cover approved ratios of time spent in school and out of school (limiting externship and other placement programs) and fail to recognize self-directed learning and immersion courses, among other innovations, place barriers to valuable new programs that might otherwise be adopted.

None of the above is a call for relaxing the standards of rigor or excellence in legal education. The fact is, excellence knows no bounds, and it is increasingly clear that if our legal education system is to adapt and improve, we must test our own boundaries. Brandeis advised his fellow justices, who were more fearful of unique government policies than he was, to “let our minds be bold.” Now is the time for legal educators to be bold, and now is the time for the ABA to give us flexibility with rigor and excellence to do just that.

Luke Bierman is associate dean for Experiential Education and Distinguished Professor of Practice of Law at Northeastern University School of Law.

Endnotes:

1. 285 U.S. 262 (1932).

2. Id. at 311 (Brandeis, J., dissenting).

3. See Todd D. Rakoff & Martha Minow, “A Case for Another Case Method,” 60 Vand L. Rev. 597, 597 (2007) (“The plain fact is that American legal education…remains remarkably similar to the curriculum invented at the Harvard Law School by Christopher Columbus Langdell over a century and a quarter ago”).

4. Michael Ariens, “Modern Legal Times: Making a Professional Legal Culture,” 15 Journal of American Culture 25 (1992).

5. Wayne K. Hobson, The American Legal Profession and the Organizational Society, 1890-1930 (Garland 1986) (cited in Ariens, “Modern Legal Times,” supra note 4).