Practicing theory: Legal education for the twenty-first century

Iowa Law Review

Volumn 96, Issue 5, 2011, Pages 1649-1676

  Ribstein, Larry E ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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[No Author keywords available]

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EID: 79960767850     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (86)

1. Bruce Antkowiak, Law Schools Must Reform: They Need To Leave the Ivory Tower and Teach Practical Lawyering, PITTSBURGH POST-GAZETTE, Jan. 4, 2011, http://www.post-gazette.com/pg/11004/1115309-109.stm;
2. see also Brent E. Newton, Preaching What They Don't Practice: Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. REV. 105, 113-26 (2010) (criticizing the impractical nature of legal scholarship).
3. JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 231 (1949).
4. For similar thoughts by another prominent commentator, see Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (arguing that professional scholarship and training is essential to legal education).
5. See generally Larry E. Ribstein, The Death of Big Law, 2010 WIS. L. REV. 749 (analyzing the economic pressures giving rise to the fundamental restructuring of the Big-Law model).
6. Bruce H. Kobayashi & Larry E. Ribstein, Law's Information Revolution, 53 ARIZ. L. REV. (forthcoming 2011).
7. See ALBERT J. HARNO, LEGAL EDUCATION IN THE UNITED STATES: A REPORT PREPARED FOR THE SURVEY OF THE LEGAL PROFESSION 28-32 (1953).
8. (quoting Letter from Joseph Story, Assoc. Justice of the Supreme Court of the U.S., to Tristam Kennedy, Principal of the Dublin Law Inst. (May 15, 1844), in Intelligence and Miscellany: Law Studies, 9 L. Rep. 140, 142 (1846)) (internal quotation mark omitted).
9. See Brainerd Currie, The Materials of Law Study, 3 J. LEGAL EDUC. 331, 359-61 (1951),
10. Proceedings of the Section of Legal Education and Admissions to the Bar, 44 ANN. REP. A.B.A. 656, 668 (1921),
11. See generally BENJAMIN H. BARTON, THE LAWYER-JUDGE BIAS IN THE AMERICAN LEGAL SYSTEM (2010) (discussing many examples of the legal system's favorable treatment of lawyers).
12. See Henry G. Manne, Comment on Peter Byrne's "Academic Freedom and Political Neutrality," 43 J. LEGAL EDUC. 340, 342-44 (1993) (noting the bar's role in constraining competition in legal education and leaving law faculties in control of legal education).
13. See Judith Areen, Accreditation Reconsidered, 96 IOWA L. REV. 1471, 1477-84 (2011) (discussing the trend toward peer academic control of accreditation).
14. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 187 (1920).
15. See Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Professional Training in the Public Interest, 52 YALE L.J. 203, 206 (1943).
16. This significant role of legal education is detailed in WALTER OLSON, SCHOOLS FOR MISRULE: LEGAL ACADEMIA AND AN OVERLAWYERED AMERICA (2011).
17. See Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 HARV. L. REV. 761 (1987) (describing this development and explaining it as the result of, among other things, declining political consensus, the rise of disciplines complementary to law, a decline in lawyers' confidence in their ability to reform the legal system, and scholars' innate desire to innovate). Economics has been particularly influential.
18. See Thomas S. Ulen, The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines, and the Future of Legal Scholarship, 79 CHI.-KENT L. REV. 403 (2004) (discussing the movement of legal scholarship from doctrine to more scientific inquiry informed primarily by law and economics).
19. For data indicating the extent to which the law professoriate is connected to elite schools, see Daniel Martin Katz et al., Reproduction of Hierarchy? A Social Network Analysis of the American Law Professoriate, 60 J. LEGAL EDUC. (forthcoming 2011), available at http://ssrn.com/abstract=1352656 (particularly Table 1);
20. Top Producers of Law Teachers at the Leading Law Schools Since 1995, BRIAN LEITER'S LAW SCHOOL RANKINGS (Jan. 31, 2011), http://leiterrankings.com/ new/2011-LawTeachers.shtml (showing that Yale, Harvard, Stanford, and Chicago dominate in producing law-school teachers).
21. See Larry E. Ribstein, Ethical Rules, Agency Costs, and Law Firm Structure, 84 VA. L. REV. 1707 (1998). (Pubitemid 128443507)
22. See MODEL RULES OF PROF'L CONDUCT R. 5.6 (2009).
23. For an analysis of the problems of enforcing effective noncompetition agreements in law firms,
24. See THOMAS D. MORGAN, THE VANISHING AMERICAN LAWYER 113 (2010) (noting that 25% of lawyers are employed in single-client situations, of which 40% are inside corporate counsel).
25. See generally Tanina Rostain, The Emergence of "Law Consultants," 75 FORDHAM L. REV. 1397 (2006) (describing the rise of legal-consulting services).
26. See ACCENTURE, http://www.accenture.com (last visited Mar. 8, 2011).
27. For descriptions of this industry, see Jayanth K. Krishnan, Outsourcing and the Globalizing Legal Profession, 48 WM. & MARY L. REV. 2189 (2007);
28. Milton C. Regan, Jr. & Palmer T. Heenan, Supply Chains and Porous Boundaries: The Disaggregation of Legal Services, 78 FORDHAM L. REV. 2137 (2010);
29. David A. Steiger, The Rise of Global Legal Sourcing: How Vendors and Clients Are Changing Legal Business Models, BUS. L. TODAY, Nov./Dec. 2009, at 39.
30. See George S. Geis, Business Outsourcing and the Agency Cost Problem, 82 NOTRE DAME L. REV. 955, 997-1002 (2007) (discussing how outsourcing is increasing with the reduction in monitoring costs).
31. For another general theoretical perspective on outsourcing, see Margaret M. Blair & Erin O'Hara, Outsourcing, Modularity and the Theory of the Firm (Vanderbilt Univ. Law Sch., Law & Econ., Working Paper No. 09-19, 2009), available at http://ssrn.com/abstract=1443357.
32. See Elie Mystal, Law Graduates: Welcome to Your 'Barely Legal' Future, ABOVE LAW (Jan. 28, 2011, 10:30 AM), http://abovethelaw.com/2011/01/law- graduates-welcome-to-your-barelylegal-future/ (discussing firms' hiring of contract attorneys for document review in U.S. facilities).
33. See LEGALZOOM, www.legalzoom.com (last visited Mar. 8, 2011).
34. Why LegalZoom?, LEGALZOOM, http://www.legalzoom.com/about-us/why- legalzoom (last visited Mar. 8, 2011).
35. See Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 MICH. L. REV. 953 (2000).
36. It is worth noting in this connection that the main prior period in U.S. history in which lawyers' political power declined was another populist era in the mid-nineteenth century.
37. See generally Ctr. for Prof'l Responsibility, Corporate Admissions Standards, AM. BAR ASS'N, http://www.americanbar.org/groups/professional- responsibility/committees-commissions/commission-on-multijurisditional-practice/ mjp-uplchart.html (last visited June 7, 2011) (tabulating state rules on practice by in-house counsel, listing about a dozen states with such rules).
38. See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 15.4.1, at 868-69 (1986).
39. See generally Herbert M. Kritzer, The Future Role of "Law Workers": Rethinking the Forms of Legal Practice and the Scope of Legal Education, 44 ARIZ. L. REV. 917 (2002).
40. See infra text accompanying note 51 (discussing rule against nonlawyer ownership of law firms).
41. See Legal Services Act, 2007, c. 29 (Gr. Brit.), available at http://www.legislation.gov.uk/ukpga/2007/29/contents.
42. See generally Bruce MacEwen et al., Conversation, Law Firms, Ethics, and Equity Capital, 21 GEO. J. LEGAL ETHICS 61 (2008) (discussing this offering and some of the relevant issues);
43. Larry E. Ribstein, Want to Own a Law Firm?, THE AMERICAN (May 30, 2007), http://www.american.com/archive/2007/may-0507/want-to-own-a-law-firm.
44. See Legal Profession Act 2004 (NSW) ss 134-64 (Austl.), available at http://www.legislation.nsw.gov.au/fragview/inforce/act+112+2004+ch.2-pt.2.6-div. 2+0+N (permitting incorporated legal practices).
45. See Laurel S. Terry, GATS' Applicability to Transnational Lawyering and Its Potential Impact on U.S. State Regulation of Lawyers, 34 VAND. J. TRANSNAT'L L. 989 (2001).
46. See James Podgers, Off the Mat: After a Beat-Down Nine Years Ago, Multidisciplinary Practice May Get Another Look from the ABA, A.B.A. J., Aug. 2009, at 65, 65 (noting the need to enable U.S. law firms "to compete with legal providers in other countries").
47. See MODEL RULES OF PROF'L CONDUCT R. 5.4 (2009).
48. See Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984).
49. For example, the University of Colorado Law School offers an Entrepreneurial Law Clinic. See Entreprenerial Law Clinic, COLORADO LAW, http://www.colorado.edu/law/clinics/entre/ (last visited June 11, 2011).
50. See Washington and Lee's New Third Year Reform: Leading the Way in Legal Education Reform, WASH. & LEE UNIV. SCH. OF LAW, http://law.wlu.edu/ thirdyear/ (last visited Apr. 3, 2011).
51. See Larry E. Ribstein & Bruce H. Kobayashi, An Economic Analysis of Uniform State Laws, 25 J. LEGAL STUD. 131 (1996) (analyzing state adoption of uniform laws and showing, among other things, that adoption correlates with whether states have part-time legislatures). (Pubitemid 126406448)
52. See Larry E. Ribstein, Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 MO. L. REV. 299 (2004).
53. See, e.g., RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (2008).
54. See, e.g., Kenworthey Bilz, Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule (Nw. Univ. Sch. of Law Pub. Law & Legal Theory Series, Paper No. 10-28, 2010), available at http://ssrn.com/abstract= 1629375 (presenting results of a psychology experiment testing the basis of the exclusionary rule).
55. See infra text accompanying note 71.
56. This helps explain such apparent anomalies as why form contracts are "sticky" even after their flaws have been revealed in litigation. See Mitu Gulati & Robert Scott, Sticky Contracts (or Why Don't Law Firms Have R&D Departments?) (Feb. 16, 2009) (unpublished manuscript) (on file with author).
57. This depends significantly on the development of formal or informal property rights necessary to motivate this work.
58. See generally ERIN A. O'HARA & LARRY E. RIBSTEIN, THE LAW MARKET (2009).
59. See Bruce H. Kobayashi & Joshua D. Wright, Intellectual Property and Standard Setting, in HANDBOOK ON THE ANTITRUST ASPECTS OF STANDARDS SETTING 95 (2d. ed. 2011).
60. See In re Court of Chancery Rules 96, 97 and 98 (Del. Ch. Jan. 5, 2010), available at http://www.delawarelitigation.com/uploads/file/int23.PDF;
61. Larry E. Ribstein, Courts as Arbitrators: The New Delaware Rules, IDEOBLOG (Feb. 1, 2010, 9:57 AM), http://busmovie.typepad.com/ideoblog/2010/02/ courts-as-arbitrators-the-new-delaware-rules.html.
62. See John H. Matheson, Why Courts Pierce: An Empirical Study of Piercing the Corporate Veil, 7 BERKELEY BUS. L.J. 1 (2010) (analyzing factors that actually influence the results of veilpiercing cases);
63. Robert B. Thompson, Piercing the Corporate Veil: An Empirical Study, 76 CORNELL L. REV. 1036 (1991) (discussing the factors that influence the results of veil-piercing cases).
64. See PUBLIC ACCESS TO COURT ELECTRONIC RECORDS, http://www.pacer.gov/ (last visited Apr. 5, 2011).
65. See, e.g., Christina L. Boyd & David A. Hoffman, Disputing Limited Liability, 104 NW. U. L. REV. 853 (2010) (analyzing factors relevant to resolving veil-piercing claims).
66. Michael J. Bommarito II et al., Distance Measures for Dynamic Citation Networks, 389 PHYSICA A 4201 (2010) (discussing construction and use of dynamic citation networks to show the development of precedent in common-law systems, focusing on U.S. Supreme Court decisions);
67. Fred S. McChesney, Tortious Interference with Contract Versus "Efficient" Breach: Theory and Empirical Evidence, 28 J. LEGAL STUD. 131 (1999) (presenting regression analysis of tortiousinterference cases to show which factors actually influence case results).
68. The recent mastery of the television quiz show Jeopardy! by an IBM computer demonstrated the potential for such applications in professional fields. See Spencer E. Ante, Computer Thumps 'Jeopardy' Minds; IBM To Unveil Pact To Develop Commercial Applications in Health-Care Sector, WALL STREET J. (Feb. 17, 2010), http://online.wsj.com/article/ SB10001424052748704171004576148974172060658.html?mod=ITP-marketplace-1.
69. Firms include Allianz ProzessFinanz, Ardec, Counsel Financial, LawFinance Group, Harbour Litigation Funding, IM Litigation Funding, and Juridica Capital Management. See Binyamin Appelbaum, Betting on Justice: Putting Money on Lawsuits, Investors Share in the Payouts, N.Y. TIMES, Nov. 15, 2010, available at http://query.nytimes.com/gst/fullpage.html?res= 9504E2D9123AF936A25752C1A9669D8B63;
70. Jonathan D. Glater, Investing in Lawsuits, for a Share of the Awards, N.Y. TIMES, June 3, 2009, http://www.nytimes.com/2009/06/03/business/03litigate. html?-r=3&src=twt&twt=nytimes (discussing Juridica);
71. Peter Lattman & Diana B. Henriques, Speculators Are Eager To Bet on Madoff Claims, N.Y. TIMES DEALBOOK (Dec. 13, 2010, 9:21 PM), available at http://dealbook.nytimes.com/2010/12/13/speculatorsare-eager-to-bet-on-madoff- claims/.
72. For general discussions of litigation financing, see JOHN BEISNER ET AL., U.S. CHAMBER INST. FOR LEGAL REFORM, SELLING LAWSUITS, BUYING TROUBLE: THIRD-PARTY LITIGATION FUNDING IN THE UNITED STATES (2009), available at http://www.instituteforlegalreform.com/images/stories/documents/pdf/research/ thirdpartylitigationfinancing.pdf;
73. Susan Lorde Martin, The Litigation Financing Industry: The Wild West of Finance Should Be Tamed Not Outlawed, 10 FORDHAM J. CORP. & FIN. L. 55 (2004).
74. For example, at least one firm specializes in analyzing the terms of loan covenants. See COVENANT REVIEW, http://www.covenantreview.com (last visited Apr. 5, 2011) (describing firm that "creatively analyzes the indentures, credit agreements, and other contracts that determine creditor rights").
75. See Carole Silver, The Variable Value of U.S. Legal Education in the Global Legal Services Market, 24 GEO. J. LEGAL ETHICS 1 (2011) (discussing the value of U.S. LLM and JD degrees in different foreign countries).
76. See N.Y. CT. APP. R. 520.6, available at http://www.nycourts.gov/ctapps/ 520rules10.htm#6 (permitting candidates to sit for the bar if they have "successfully completed a full-time or part-time program consisting of a minimum of 20 semester hours of credit, or the equivalent, in professional law subjects, which includes basic courses in American law, in an approved law school in the United States");
77. Howard A. Levine, Regulation of Foreign-Educated Lawyers in New York: The Past, Present, and Future of New York's Role in the Regulation of the International Practice of Law, 47 N.Y.L. SCH. L. REV. 631 (2003).
78. For an analysis of this focus of modern legal education,
79. As to the latter subject, see Daniel Martin Katz, The MIT School of Law?, COMPUTATIONAL LEGAL STUDIES (Apr. 5, 2010), http://computationallegalstudies. com/2010/04/05/the-mit-school-of-law/ (noting importance of alternative educational culture "devoted to the integration of law, technology, applied math, computer science as well as the social and physical sciences").
80. Lawrence B. Solum, Interdisciplinarity, Multidisciplinarity, and the Future of the Legal Academy, LEGAL THEORY BLOG (Jan. 18, 2008), http://lsolum.typepad.com/legaltheory/2008/01/interdisciplina.html (discussing the rise of interdisciplinary studies in law school and proposing a PhD in law).
81. See William H. Adams, III, The George Mason Experience, 50 CASE W. RES. L. REV. 431 (1999).
82. See Thomas D. Morgan, Admission of George Mason to Membership in the Association of American Law Schools, 50 CASE W. RES. L. REV. 445 (1999).
83. SRIKANT M. DATAR ET AL., RETHINKING THE MBA: BUSINESS EDUCATION AT A CROSSROADS 57 (2010).
84. JENNIFER MERRITT ET AL., BUSINESSWEEK GUIDE TO THE BEST BUSINESS SCHOOLS (8th ed. 2003) (showing breakdowns for each school's use of various teaching methods).
85. J. Mark Ramseyer, Law & Economics in Japan (Harvard John M. Olin Ctr. for Law, Econ. & Bus., Discussion Paper No. 686, 2010), available at http://ssrn.com/abstract=1767088 (noting how a profit constraint could motivate law schools to adopt new technologies).
86. For a critique of lawyer licensing,