Contemporary Legal Education and the Transformation of Private Legal Practice

There has been tension between the legal academy and the practising profession ever since law was first taught in university law schools in the 19th century. The sense of unease arose because of uncertainty as to whether the primary role of a law school was to train lawyers for practice or to ensure that law was accepted as an independent scholarly discipline appropriate for a university, like history or philosophy. Universities feared that law schools might turn out to be mere trade schools while practitioners feared that an exclusive focus on liberal education would fail to produce skilled practitioners.

In the ensuing years, the oscillation between these two positions has been ongoing, although the tension has been exacerbated in recent years, particularly since the global financial crisis. Private practitioners have criticised law schools not only for promoting the production of faculty scholarship  at the expense of preparing ‘job-ready’ practitioners, but also for producing ‘too many lawyers’ and the exorbitant costs of tuition.

The dramatic increase in the number of both law schools and law students has arisen from the commodification of higher education, which is partly due to state disinvestment in the sector. Universities have been keen to establish new law schools in the belief that law could be taught cheaply and the profits used for other purposes, such as subsidising science-based, research-intensive faculties.

However, the reality is that the demand by law firms for traditionally trained lawyers is shrinking because of the introduction of efficiencies and cost-cutting measures, that includes ‘offshoring’ (having cheaper jurisdictions, e.g. India, undertake tasks such as discovery) or relying on companies specialising in tasks such as document review, all of which are facilitated by advances in technology. Indeed, Richard Susskind, the leading international expert on the relationship between law and technology, predicts that lawyers, as we presently know them, will be redundant within 15 years.

At the same time, the role of law schools is also changing. While still being expected to produce practice-ready graduates, they are also expected to pay much more attention to research and scholarship in order to enhance their standing in a competitive global environment. The emphasis on scholarly publications places pressure on legal academics to prioritise research over teaching in order that universities and law schools may pursue top rankings, preferably with a ‘world class’ descriptor in order to enhance their ‘brand names’ and attract the best students. Indeed, many law schools now recruit research stars for that purpose. However questionable the methodology of rankings might be as a measure of quality, they have secured a hold on the public imagination and are virtually impossible to resist.

One of the drawbacks of rankings is that they have a propensity for homogeneity rather than difference as it is easier to compare likes than unlikes. However, as traditional legal practice unravels, it would be apposite to pay greater attention to the changing nature of legal practice as well as the question of alternative careers for law graduates. At present, only about 50 per cent of law graduates embark on traditional legal practice while the other 50 per cent embark on careers in business and finance, teaching, journalism, public sector and community organisations, etc., so why focus on educating them as though they were all going to become traditional lawyers? Furthermore, even if graduates start off in private practice, they may not remain there, as the evidence suggests that Millennials (those born after 1982) are unlikely to remain on a single career trajectory.

While law schools are not legally obliged to find employment for their graduates, vocationalism is a legitimate aim of both law schools and government that cannot be ignored. In view of the volatility in the legal labour market and the changing nature of practice, the broadest possible legal education is advisable in preparing students for a variety of roles and career destinations. It is apparent that continuing to prepare law graduates only for traditional private practice can no longer be justified.

The issue of sameness is also thrown into sharp relief in the case of bar admission requirements. Admitting authorities everywhere demand standardisation in admission requirements and have long been resistant to diversity. When Alfred Reed suggested in 1921 that different bars be created, this was regarded as heretical. But a century later, with a question mark hanging over the future of the traditional lawyer, it may well be time for this idea to be revisited.

The transformation of private practice suggests that a liberal and more diverse legal education would better equip law graduates not only for the revolutionary changes predicted but also for an alternative range of alternative career destinations. Recognition of the legitimacy of a liberal legal education could also have the effect of alleviating the historic tension between law schools and the practising profession.

The preceding post comes to us from Margaret Thornton, Professor of Law in the ANU College of Law at The Australian National University in Canberra.