The governance model that has led to this dysfunction in legal education must be replaced.
My last post suggested that the decline in law students was due in large part to a technological shock that has decreased demand for lawyers, at least at the price point law schools are producing them. Law schools need to respond. They must shape a curriculum that will prepare their students for the world of growing machine intelligence that was responsible for the shock. They also need to generate income from other programs to replace the law students who will not be returning.
In the coming age of law and computation lawyers will do better in fast-changing and high value areas. Machine intelligence succeeds through pattern recognition; in narrow, fast-changing areas, it has less data and thus fewer opportunities to identify promising correlations. In such areas, lawyers will have room to craft intuitively appealing arguments to regulators and courts. And when the transaction are of high value, even if machines are helpful in generating documents and precedent, human creativity will continue to add value.
Regulatory areas, particularly financial ones, are appropriate areas for more courses. Politicians are always tinkering with these laws and even when the laws themselves do not change, new administrators alter their interpretation. On the other hand, trust and estates becomes a less valuable area as machines will be more likely to dominate the production of wills and trusts for all but the superrich.
Moreover, courses that address the interface between computation and law will become more important. As a result courses in legal data analysis and statistics will become more useful. And the technological acceleration of our age will create the need for lawyers skilled in risk analysis. Judge Richard Posner has in fact called for lawyers schooled in science to help devise and implement legal frameworks to address new kinds of catastrophic risks, such as those from nanotechnology and biotechnology. Certainly, elite schools should offer courses in such areas.
And some aspects of law that are heavily dependent on emotional intelligence, like advocacy and negotiation, will remain beyond the reach of machines. Courses that develop these skills may be even more useful to the modern law student. More generally, the Socratic method, best deployed in first year courses, remains as valuable as ever because it helps refine rhetorical skills and make for a ready wit. In a world of ever more rapid change, students need to know how to talk even when they are not sure what they are talking about!
Some have suggested that in response to the downturn in applications, law professors should teach more. But the problem is that many schools have so shrunk in enrollment that there is excess teaching capacity. The emphasis should instead be on redeployment to new programs. First, there may be useful programs, like a master of science of law, for educating scientists and computer programmers about law. The legal space, as Silicon Valley calls it, will have a room for a lot of innovation and while most of the innovations will come from geniuses of computation, they will do better with some legal knowledge.
Second, law schools deans should get their idling faculty to teach undergraduates. Many law professors are perfectly qualified to offer courses in constitutional law, legal history, economics, and political science. Some colleges already offer majors or minors in legal studies, which fits nicely into a liberal arts curriculum because the story of law and legal institutions is such a large part of the story of Western Civilization. In fact, it would be in the public interest to have more citizens broadly knowledgeable about law’s structure without any professional interest in distorting it for their own benefit.