Disruption will not stop at the law school door
Law schools are in crisis. A key driver of the crisis is a shrinking job market, which stems in large part from disruption of the legal services sector. Most law schools remain unable or unwilling to address the resulting problem in more than a marginal way. Their hope is that the market will eventually even out and return to the pre-crisis status quo. By doing so, law schools run the risk of overlooking the longer-term impact that disruption of traditional legal services businesses will have on the provision of legal services and, in turn, on law schools themselves. At the same time, higher education is experiencing a disruption of itself. In industry after industry, disruptive innovations have changed sectors in ways that do not allow for a return to the status quo.
In a new white paper, “Disrupting law school,” Michael Horn and I explore various aspects of the disruption with an eye toward how law schools can respond proactively. As we state in the whitepaper, it is clear to us that law schools need to change. Having worked in law schools for two decades, then, I can report that the single biggest obstacle to change is the belief that law schools are ultimately protected from disruptive forces by the regulatory scheme that grants lawyers a monopoly on the provision of legal services and effectively limits access to the bar to persons who graduate from law schools accredited by the American Bar Association (ABA). In our view, reliance on this regulatory scheme for protection will prove misguided. Here is why.
Heavily regulated industries can be disrupted. Uber’s assault on the taxi industry illustrates one strategy. Uber’s novel business model, which intentionally by-passed the regulators, has been embraced by customers, investors, and drivers. As we have seen in other industries, once innovations like this accumulate sufficient market support, the regulations will ultimately be loosened to accommodate them.
It is no surprise, then, to see changes in the regulations affecting both lawyers and law schools. Michael and I identify at least three cracks in the foundation.
First, to an unprecedented extent, advances in technology are altering the traditional legal services value network. An industry that for decades has provided expensive customized solutions for each individual client is now seeing technological innovations bring more standardized, systematized, and, in some instances, commoditized offerings to the market. The rise of LegalZoom is an example of this kind of disruption. LegalZoom has been challenged on regulatory grounds; the claims were that it was engaged in the unauthorized practice of law. LegalZoom won or settled the court challenges. Those successes have motivated it to expand upmarket, as is typical of disruptors.
Second, technological developments are breaking down the traditional rationale—the protection of the public—for granting lawyers a monopoly on the practice of law. If a non-lawyer aided by software can provide the same service as a lawyer, then it is not the public but the lawyers who are being protected by the legal profession’s monopoly on the provision of legal advice. State regulators of bar licensure are taking note. States are beginning to experiment with providing non-JDs limited licenses to provide legal services that until now only JDs could provide. The State of Washington is the first U.S. state to license legal technicians—non-JDs who are specially trained to advise clients in a limited practice area, in this case family law. Akin to a nurse practitioner, under new regulations, a limited license legal technician (LLLT) can perform many of the functions that JDs traditionally performed, including consulting and advising, completing and filing necessary legal documentation, and helping clients understand and navigate a complicated family law court system. Only two years old, this new model is already gaining traction outside of Washington; the bars in California, Colorado, Massachusetts, New York, Oregon, and Utah are each considering similar limited licensing options to authorize non-lawyer practitioners to practice in limited capacities in their states.
Finally, on top of the changes coming about through technological innovations and new licensing models, higher education itself is also seeing a variety of potential disruptors emerge, all powered at least in part through online learning. From coding bootcamps that blend online and face-to-face learning, to online course providers, and from providers of modules of online content, to online, competency-based programs, there is no shortage of organizations disrupting traditional higher education. These startups have the potential to transform higher education by offering programs that are more flexible, more convenient and, often, more affordable than programs offered in the traditional higher education model. And because they are able to take advantage of a variety of new technologies, business models, and teaching pedagogies, these players are positioning themselves to change the status quo in higher education. Here again, law schools may feel protected from the disruption that is coming toward the universities in which they sit because of strict ABA accreditation standards that limit online competition. But here, too, we warn against becoming too complacent when relying on existing regulatory protections. The ABA recently granted a variance to Mitchell Hamline Law School to offer a blended online, in-person JD program. This acceptance of online learning within the JD, coupled with the ABA’s push for the adoption of learning outcomes and formative assessment, suggest that efforts to innovate using online technologies will find support by accreditors. And students may find online programs attractive as well. Judging from its first class, there is pent-up demand for such an offering; the students who enrolled in Mitchell Hamline’s blended program had higher predictors of success (LSAT and undergraduate GPA) than the class of students enrolled in the traditional face-to-face JD program. The program’s former dean, Eric Janus, told me that students in the blended program even expressed gratitude to the school for offering them an opportunity to learn the law. That’s because before this offering became available, the alternative was nothing at all.
Once online learning becomes more available, schools may find students who would otherwise default to in-person programs flocking to online alternatives. For example, the convenience and flexibility that online education offers may become attractive even to traditional students, as more students seek out experiential learning and practical training opportunities that require them to be off campus during traditional class times.
Ultimately, law schools need to realize that they will be exposed to the same form of competition that has lead to the devastation of entire industries. To deny this truth is to ensure its application to the law schools of today.