September 16, 2020 Feature

Legal Education: A Call to Action

Megan M. Carpenter

©2020. Published in Landslide, Vol. 13, No. 1, September/October 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Legal education must evolve, and not just as a result of changes wrought by the global pandemic in 2020. The traditional model of legal education has been in a process of disruption for some time. Significant and fundamental changes to the legal services industry demand an evolution in education and training. This demand is especially prominent in the field of intellectual property (IP), where we have an opportunity to develop programs of legal education that reflect a changing reality for both the legal services industry and the modern economy.

Our IP system is fraught with uncertainty and yet is at the center of some of the most important global challenges we face. As the legal framework surrounding human creativity, IP is relevant across industries and provides the foundation for innovation and invention. IP transactions are the system of movement for innovation around the world. The current global pandemic makes apparent the vital role that lawyers play in civil society, particularly in times of chaos and disruption—and IP is squarely at the center of the grand challenges we face. Solutions to problems from climate change to international peace and security are based in innovation. Whether supporting vaccine development, working on the frontlines at the World Health Organization, developing online learning technologies, helping to make health-care policy, or reconfiguring manufacturing facilities to produce necessary equipment, IP is at the center of a path through the current crisis.

Where there are constraints, there is leverage. And right now we have an opportunity—and an imperative—for change.

IP as a Vanguard

Disruption in the legal services industry has led to a demand for a new—and expanded—approach to legal education. And the IP field can be a vanguard in this space.

If we were in private industry looking for signs of disruption, we would look for market signals. How did Kodak miss the advent of digital photography? How did Blockbuster fail to move beyond the VCR? How did Sony miss the transition to digital music? How did IBM miss out on personal computing? We see these signals in legal education as well. In an article published in the MIT Sloan Management Review, the authors discuss three signs that an industry is about to be disrupted: regulatory burdens, difficulties with cost management, and failure to optimize for modern customer expectations.1 These market signals have been prevalent in legal education for some time.

During the great recession, law school graduates had a harder time finding jobs and were saddled with debt; the cost of law school was disproportionate to job opportunities upon graduation. Hiring of entry-level associates by law firms plummeted by 40 percent in 2009.2 Entry-level legal jobs declined by more than 23 percent from 2007 to 2018.3 Law schools got a bad rap in the public eye, from the media to prospective applicants to university prelaw advisors. Law school applications decreased by 40 percent, and declines in enrollment and revenue hurt law schools at a time when public support for higher education also waned. Accreditation standards not only failed to embrace innovation but often created barriers to such efforts.

Attorneys and accreditors, in addition to law schools, have kept the practice of law precious. By keeping legal education for the few and failing to adapt to new roles over time, the haves and have-nots of legal knowledge have been defined in a way that is not sustainable and is ripe for disruption. Legal education is not one-size-fits-all, and not all legal professionals should be lawyers. While the market has changed over time, there is a pervasive need for education about legal frameworks across industries. While law schools and the legal profession have both experienced a decline, the number of people who would benefit from knowledge about law and its operation has not. A relevant distinction can be made between the legal and medical professions: Under “Healthcare Occupations,” the Bureau of Labor Statistics (BLS) Occupational Outlook Handbook lists 46 professions, from doctors and nurses to physician assistants, physician extenders, technologists, and technicians.4 Yet, under “Legal Occupations,” the BLS handbook lists only five positions.5 By failing to adapt as the medical industry has to a variety of roles for different types of legal professionals, we have become stuck in a model that has set itself up for disruption.

IP is not an area of the law that suffers from stasis; there is a robust need for nondegree training in IP and technology topics for IP professionals throughout the lifespan of their careers. Non-JD legal professionals have always been an essential part of the IP ecosystem, through the training of patent agents and trademark administrators. In the U.S., the single biggest growth area for legal jobs is for jobs that do not require a JD. Contract managers are illustrative: A contract manager drafts, negotiates, and interprets contracts but does not typically require a JD. And job opportunities for contract managers are thriving.6 A search on the LinkedIn job database for “contract manager” leads to over 15,000 job postings. Providing skills training for lawyers and nonlawyers alike is legal education in the classic sense, and law schools should embrace this as part of their mission.

While enrollment declines and market disconnect are two of the signals we see in legal education, the advent of technology in the legal services industry is a third. The incorporation of technology into law practice has created efficiencies that change the way in which lawyers work. In some cases, they have also reduced demand for attorneys. Legal tech has enabled lawyers to become much more efficient at what they do, including legal research, review of documents, and drafting. The practice of law has evolved alongside developments in technology for many decades. We have now come a long way from the efficiencies of the mid-1990s, when individual documents were uploaded to a proprietary common server within firms so they could be shared and adapted by other attorneys at the firm. There is now a wealth of documents and drafting help searchable on the internet, and not just for articles of incorporation and wills. Some companies provide templates and deal checklists as a business model; Thomson Reuters’s Practical Law7 is one example.

In addition, many of the tasks that were once the purview of junior associates, such as due diligence and document review, can now be completed without significant attorney involvement through the use of technologies such as predictive coding.8 Smart legal research technologies are growing exponentially; companies like ROSS,9 Ravel,10 and Judicata11 provide research assistance, including pattern recognition software, to conduct legal research. These tools not only make attorneys more efficient but also, importantly, require them to develop a different skill set than was once needed. Those of us in legal education must be aware that as legal tech becomes more sophisticated, attorneys will need to be skilled not only in legal analysis and advocacy but also in their ability to interact effectively with this technology. The training needed to be a successful lawyer is evolving. Students will also need to have higher-level attorney skills to hit the ground running; firms are no longer as interested in training students for the first few years, with the knowledge that an associate will not begin to add value until year three or four. Law schools must consider how to get students those higher-level skills by the time they graduate—or, put another way, to help instill in them the wisdom of their 40s without going through their 20s.

Developments in legal tech not only make attorneys more efficient—they also reduce the need for attorneys at all.12 Technology has called into question the monopoly that lawyers have over legal work. Computers can help nonlawyers accomplish what they once needed a lawyer to do, creating a sort of DIY approach to legal services. Online companies like LegalZoom,13 Nolo,14 and Lawtrades15 have grown exponentially, and many of these companies are starting to hire top talent. One of my top IP research assistants in recent years decided to work for LegalZoom after graduation rather than joining a law firm because of the business model, a flexible work environment, and the ability to spend the majority of time counseling trademark clients from day one.

When legal services are perceived as inaccessible, potential clients will find other ways to resolve their legal issues outside of an attorney-client relationship. From incorporation of business entities to living wills to simple contracts, technological advances have made legal services more affordable and accessible by leaving out the “middleman”—who, apparently, often turns out to be the lawyer. This is no less true in the IP field. A few years ago, I taught a class called Complex Intellectual Property Problems. Throughout the semester, I brought in a visual artist, an author, the owner of a film production studio, an entrepreneur, and an inventor, all to talk with students about particular IP problems they confronted in their work. Despite their differences in background and focus, each of the class visitors had one surprising thing in common: none of them had consulted a lawyer to help navigate these legal issues. The norm that emerged in discussion was a perception of lawyers as too expensive and too difficult to work with. These class visitors used technology to avoid hiring a lawyer and expressed a general preference for legal uncertainty over engaging an attorney. They said things like, “Who can afford a lawyer?” and “Lawyers are the ‘no’ people.”

Legal education in IP is more important than ever, both inside and outside the JD, and we should work to make it accessible. Forty years ago, IP comprised 20 percent of business assets; today that estimate is 80 percent.16 Employment forecasts in positions related to IP are projected by the U.S. Department of Commerce to increase as fast or significantly faster than average job growth.17 IP and technology is the primary driver of over one-quarter of all industries nationwide, and IP-intensive industries are 38 percent of U.S. GDP.18

While some have said (over and over again) that legal education is in crisis, there is enormous opportunity. For 150 years, law schools and the legal services industry have combined to make legal education a precious commodity, bundled in a very specific way. Like the cable industry or print news media of yore, the education that qualifies people for the U.S. legal profession has been one-size-fits-all, without regard to particular practice areas or specializations and without responding to the diversification of the legal services market. It is time that we consider ways to diversify legal education and make it accessible to new populations.

It is time that we consider ways to diversify legal education and make it accessible to new populations.

Calls to Action

Unbundle Legal Education

Like the news and entertainment industries, legal education is ripe for unbundling. In a global information economy so heavily enmeshed in IP where people are both consumers and creators of content on a daily basis, an understanding of legal principles and frameworks is more important than ever. Like other industries that have been disrupted, we have packaged legal education in a particular bundle that simply no longer fits the needs of many consumers. Democratizing legal education for a modern market is critical for the functioning of civil society, and we must embrace that—or we will all lose.

Law schools should not resist the expanding market for alternative legal service providers and legal tech; rather, they should lead the charge to provide legal education to people who need it, even if in a different form than such education has taken in the past. There should be more undergraduate and community college programs that provide appropriate legal training. The University of Arizona College of Law launched the first undergraduate bachelor’s degree in law in the U.S. in collaboration with the broader university, which has been the university’s fastest-growing major,19 and other schools should do the same.

Increase Opportunities for Specialization and Take an Interdisciplinary Approach

Education within the JD needs to change as well. Years ago, law firms spent the first few years training—and losing money on—new associates. Changing financial realities for the legal services industry means that law firms now need to hire associates who are prepared to hit the ground running.

Law schools should respond to this demand by graduating students who have specialized, experiential training that prepares students not just to think like lawyers but to be lawyers. Allowing for specialization within law degrees is one way to do this—and IP law is an ideal field for this to start. In the U.S., the American Bar Association (ABA) has historically eschewed specialized legal education and has relegated it to a “certificate” or “concentration” within a more generalized law degree. The University of New Hampshire (UNH) Franklin Pierce School of Law hybrid JD in intellectual property, technology, and information law,20 however, is the first ABA-approved specialized hybrid law degree, designed for working professionals in the IP and tech space. The first class students take in the program is intellectual property, and while they get all of the bar-tested courses, like property and contracts, the entire degree is designed to prepare attorneys to be the IP leaders of tomorrow.

UNH Franklin Pierce launched the program in August 2019, and the first class was comprised of patent examiners, patent supervisors, IP managers, licensing specialists, entrepreneurs, and doctors. Students learn from full-time faculty as well as leaders in the IP field. A class on IP strategies taught by alum and Microsoft’s chief patent counsel Micky Minhas in January 2020, for example, featured instruction from IP leads at Apple, Samsung, Uber, Intel, Dolby, Fox, Google, and the U.S. Patent and Trademark Office.

Education around IP cannot be merely national; a global and comparative legal education in IP around the world would help both lawyers and nonlawyers better understand these issues and enable them to address critical challenges. Interdisciplinary studies are critical. In meetings with tech companies Xiaomi and Baidu in China, Samsung and LG in Korea, and Apple and Intel in Silicon Valley, attorneys emphasized the importance of interdisciplinary studies to succeed in the IP field. In many of these meetings, when asked what kind of training or legal education would be helpful to prepare students for modern IP practice, senior attorneys suggested that law schools incorporate more “case studies” into legal education. Case studies, they believe, would help provide more than an education on legal issues and legal analysis—they would give an overall context that shows the intersection of business models, strategy, and the multidisciplinary nature of real-world legal issues.

IP is no longer divided into particular “food groups” of patents, copyrights, trademarks, and trade secrets. Rather, our IP system is increasingly multidisciplinary and is foundational to some of the most important questions facing the global economy. From the most recent data protection bill in India to the General Data Protection Regulation in Europe,21 from patent proliferation and enforcement in China to patentable subject matter and validity in the U.S., IP is foundational to modern economic challenges, including development and access to medicines, global trade, innovation and entrepreneurship, artificial intelligence, and data ownership and privacy.

For example, students and faculty at UNH Franklin Pierce have been working in partnership with the Commercial Law Development Program at the U.S. Department of Commerce22 to help emerging economies transition from industrial to innovation-based economies. Students are involved in researching legal issues, interfacing with delegations from abroad, and helping to strategize innovation plans and the development of technology transfer ecosystems.23 Through the International Technology Transfer Institute24 at the school, students also do patent landscaping of vaccine technologies for infectious diseases in developing countries.

Developing a program of legal education in a specific area of law, like IP, enables law schools to train graduates who understand the complexities of IP frameworks and their interaction with new technologies and human creativity—the kind of graduates who will add value to a law firm from day one.

Use Technology to Increase Access to Legal Education

While technology is transforming the legal services industry, it also has the potential to transform our educational delivery and methods. This impacts how we define legal education—both what we teach and how we structure the educational experience for our students.

Technology is not just a new delivery system. Hybrid online education has the ability to add transformative pedagogical tools and promote access to justice by expanding access to a legal education. Limited residential periods make a legal education available to diverse communities of working professionals for whom a legal education would otherwise be inaccessible; this is true for both JD programs and non-JD programs. UNH Franklin Pierce’s hybrid JD program has higher numbers of people of color and women than its residential program. Technology can be used with intent to incorporate increasingly diverse perspectives inside the classroom.

Interest in online pedagogy was increasing across the country even before the current global pandemic. At the most recent annual American Association of Law Schools meeting in January 2020, there was a discussion group focused on online legal education.25 Rather than the 8, 12, or 20 attendees who would ordinarily attend such a discussion group, 55 people came. Attendees had to bring in chairs from other rooms. Questions from participants lingered long after the session was officially over. Only a few months later, all law schools across the U.S. moved their operations online—not just classrooms, but also events, moot courts, and conferences. Despite the nature of emergency remote operations, administrators, faculty, and students are discovering a newfound ability to reach audiences across the country and around the world. At UNH Franklin Pierce, an April 2020 event on sports law that might have attracted 30 participants in New Hampshire found itself with 180 registrants.26 Swearing-in ceremonies and virtual graduations are suddenly accessible in real-time to families and friends wherever they are.

Taking the Lead

Despite a movement toward innovation over the last few years, challenges remain—for faculty, for university and law school administration, and for our accreditors. The teaching of the future does not look like the teaching of the past and requires new skill development and new ways of doing things. For universities and law school administration, the staffing of the future does not look like the staffing of the past and requires investment in growth. Universities must also embrace law schools as an integral part of a broad liberal arts education, something that can be difficult in traditional academic silos. Law schools should take the lead in helping university administration understand the importance of legal education across the university campus, and play a role in overcoming institutional barriers to interdisciplinarity. Law school leadership can—and should—be on the frontlines of redefining what legal education looks like in contemporary higher education, and of crafting and executing that vision. And our accreditors must move beyond a one-size-fits-all design for legal education—not just to accommodate innovation, but to incentivize it.

Endnotes

1. Megan Beck & Barry Libert, Three Signals Your Industry Is About to Be Disrupted, MIT Sloan Mgmt. Rev. (June 11, 2018), https://sloanreview.mit.edu/article/three-signals-your-industry-is-about-to-be-disrupted.

2. Karen Sloan, How the Recession Forced Law Schools to Reimagine Their Role in Students’ Careers, Am. Law. (June 24, 2019), https://www.law.com/americanlawyer/2019/06/24/how-the-recession-forced-law-schools-to-reimagine-their-role-in-students-careers.

3. Id.

4. Occupational Outlook Handbook: Healthcare Occupations, Bureau Lab. Stat., https://www.bls.gov/ooh/healthcare/home.htm (last modified Apr. 10, 2020).

5. Occupational Outlook Handbook: Legal Occupations, Bureau Lab. Stat., https://www.bls.gov/ooh/legal/home.htm (last modified Apr. 10, 2020). Legal occupations include: (1) arbitrators, mediators, and conciliators; (2) court reporters; (3) judges and hearing officers; (4) lawyers; and (5) paralegals and legal assistants.

6. See Michael J. Sofield Jr., The Attorney/Contract Manager: The Intersection of Two Professions, J. Cont. Mgmt., Summer 2009, at 41.

7. Practical Law, Thomson Reuters, https://legal.thomsonreuters.com/en/products/practical-law (last visited Aug. 21, 2020).

8. Aaron Goodman, Predictive Coding: A Better Way to Deal with Electronically Stored Information, Litigation, Fall 2016, at 1, 1.

9. About Us, ROSS, https://rossintelligence.com/about-us (last visited Aug. 21, 2020).

10. About Us, Ravel, https://home.ravellaw.com/who-we-are (last visited Aug. 21, 2020).

11. About, Judicata, https://www.judicata.com/about (last visited Aug. 21, 2020).

12. For a broad discussion of disruption in the legal services industry, see Michael B. Horn & Michele R. Pistone, Disrupting Law School: How Disruptive Innovation Will Revolutionize the Legal World, Christensen Inst. (Mar. 15, 2016), https://www.christenseninstitute.org/publications/disrupting-law-school.

13. See Amit Chowdhry, How LegalZoom Provides Businesses with Affordable Legal Assistance, Forbes (Oct. 9, 2017), https://www.forbes.com/sites/amitchowdhry/2017/10/09/how-legalzoom-provides-businesses-with-affordable-legal-assistance (noting that LegalZoom is the largest former of small businesses and filer of trademarks and can provide legal advice in all 50 states).

14. Nolo, https://www.nolo.com (last visited Aug. 21, 2020).

15. Lawtrades, https://www.lawtrades.com (last visited Aug. 21, 2020).

16. Leon Steinberg, 10 Most Significant Changes in Intellectual Property over the Last 25 Years, Dennemeyer IP Blog (June 21, 2019), https://blog.dennemeyer.com/10-most-significant-changes-in-intellectual-property-over-the-last-25-years.

17. See U.S. Dep’t of Commerce, Intellectual Property and the U.S. Economy: 2016 Update (2016), https://www.uspto.gov/sites/default/files/documents/IPandtheUSEconomySept2016.pdf.

18. See id.

19. Marc Miller, Dean, Univ. of Ariz. Coll. of Law, Comments at the Association of American Law Schools Deans’ Meeting (Jan. 2018).

20. See generally Hybrid Juris Doctor (J.D.), Univ. N.H. Franklin Pierce Sch. L., https://law.unh.edu/hybridjd (last visited Aug. 21, 2020).

21. Diana Lee et al., Comparison: Indian Personal Data Bill 2019 vs. GDPR, Int’l Ass’n Privacy Profs. (Mar. 2020), https://iapp.org/resources/article/comparison-indian-personal-data-protection-bill-2019-vs-gdpr.

22. Com. L. Dev. Program, https://cldp.doc.gov (last visited Aug. 21, 2020).

23. See Tech Transfer for Sri Lanka, Podbean (June 27, 2019), https://unhlaw.podbean.com/e/tech-transfer-for-sri-lanka; see also Law Clinics in the US: Learning by Doing!, TalentRocket (Aug. 19, 2019), https://www.talentrocket.de/karrieremagazin/details/law-clinics-usa-ip-law-university-of-new-hampshire.

24. International Technology Transfer Institute, Univ. N.H. Franklin Pierce Sch. L., https://law.unh.edu/academics/experiential-education/clinics/international-technology-transfer-institute (last visited Aug. 21, 2020).

25. AALS Discussion Grp., Online & Hybrid Learning Pedagogy Best Practices and Standards Development at the American Association of Law Schools Annual Meeting (Jan. 2, 2020).

26. Sports & Entm’t Law Soc’y & Sports & Entm’t Law Inst., Sports Betting Summit at the University of New Hampshire Franklin Pierce School of Law (Apr. 3, 2020).

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Megan M. Carpenter is dean of the University of New Hampshire School of Law. A thought-leader in legal education, she has led the creation of innovative programs, including the hybrid JD in intellectual property, technology, and information law.