Steven R. Smith, Dean Emeritus, California Western School of Law, was Dean of the Cleveland-Marshall College of Law from 1988-1996. A nationally regarded authority on legal education, Dean Smith here offers advice on how law school faculties can contend with the revolutionary changes in the content and delivery of legal services now affecting the profession of law.
Dean Smith….your witness
Being a law faculty member is a wonderful job. It is working with the next generation of our profession, has the greatest freedom of research and inquiry (not even limited by the need to seek grants), and invites consideration of some of the challenging issues facing the world. And, it has tenure and pays well.
It is also a demanding job. Done right, it takes long hours of effort to prepare properly for classes, to meet generously with students seeking assistance, to complete articles that will add to the scholarly consideration of interesting legal issues, and to grade midterms, papers, and final exams. And then there are faculty meetings.
Faculty meetings are an important part of the work of faculty: the shared governance that is a core part of law schools. When it works well, it can be an amazing system of decision-making. When it does not work well, it can be a glimpse of the worst kind of politics, giving meaning to Kissinger’s (and others’) claim that faculty politics are so vicious because there is so little at stake. When turf protection, petty disagreements, or personal attacks arise, it is often because there is a lack of clarity about the duty of faculty in making policy judgments for the law school.
It is not our winning personalities, political power, or popular election that is the basis for law faculties having such governance authority. It is their expertise and informed judgment. The faculty knows more than anyone else about what works and does not work with students, how various parts of the curriculum fit together, how to assess other faculty, and what is worthy of research. One risk is that faculty members may misuse the governance authority, not to improve the benefits that society and students receive from law schools, but rather to improve the lot of the faculty (or part of the faculty) even at the expense of the public or students.
The faculty of every educational institution has a strong obligation to its students who have entrusted their education to them. Beyond students (or even before them), the governance legitimacy of the law faculty is also based on the obligation to act on behalf of the public. There are several bases for this duty to the public. For example, the law school is entangled in lawyer licensing in many ways, and the purpose of that licensing is the protection of the public. Furthermore, the trustees of universities and law schools have often delegated the authority of academic decisions to the faculty—the curriculum, determining who has met the requirements for graduation, admissions decisions, and most academic policies and disciplines. With that delegation must go the board’s obligation to operate in the interest of the public, which the faculty must accept with the power delegated to them.
Often, the faculty collectively acts consistent with the obligations to the public and students. However, the public and students seem to take a distant second place when some decisions are made. A notable example is curricular matters, especially required courses. It is often more a matter of whose ox is going to be gored more than sound consideration of what the public will need, and what students must learn to serve the public.
The ability to act as fiduciaries on behalf of students and ultimately the public is going to be especially important in the coming years. There is currently a flood of technology, globalization, innovation-entrepreneurship, and artificial intelligence that will change what graduates will need for the next forty years of their practice. These changes are collectively so profound that some refer to them as a “Fourth Industrial Revolution” (4IR). Much of current legal education will remain useful, but new competencies must be added to prepare for the practice of law and needs of society. To serve its students and the public, each law school must consider what competencies its graduates will need and then ensure that those competencies are conveyed and assessed. To succeed in this without extending law school to four years, they will have to use every part of the curriculum more efficiently.
The reform process requires that the faculty must put the interests of the public and law students first. While the interests of law schools, lawyers, and faculty are important, they are tertiary to the public and students. To succeed in this without extending law school to four years, they will have to consider how to develop every part of the curriculum.
The fact is that the curriculum in most law schools will require modification for students to achieve the competencies necessary to serve the public over the next forty years. Current competencies need to be supplemented by additional competencies for students to have the tools necessary for their careers. Core courses will have to perform “triple duty” and schools must make full use of the “hidden curriculum” to cover the new competencies. (The “hidden curriculum” includes law student work, pro bono, co- and extracurricular activities, and the examples set by faculty and administrators.) Some current faculty have already started to develop expertise in these areas and future faculty appointments in the new competencies will be important.
To offer the new competencies successfully, there must be faculty with expertise in substantially new areas, involving technology, entrepreneurship, globalism, and a variety of soft-law skills. Because faculty positions turn over slowly, there is urgency in considering the new competencies with every open faculty position, even at the cost of reduction in some traditional areas. Some excellent law schools are already making this kind of change—all schools should be.
In the short run, to cover new competencies, law schools may turn to adjunct faculty to cover curricular areas, invite a series of temporary faculty, focus on visiting assistant professors/fellowships, have visiting distinguished practitioners in the new competencies, arrange interdisciplinary connections, and take full advantage of members of the staff with specialized expertise. Of course, in the long run, attracting permanent full-time faculty is critical, and that cannot happen if the faculty does not determine that faculty with expertise in the new competencies is a priority.
Considering the new competencies that students will need to serve the public over their careers, and then ensuring that they learn the basics of all those competencies is a major challenge. For almost all faculty, some personal favorites in the curriculum will have to change. For our students and society, a great deal is riding on the reforms that permit high-quality, complex legal services in the 4IR. The fiduciary obligation of faculty calls on all of us to undertake these reforms with a focus on the public interest. Managed badly, 4IR changes could easily result in economic and social disruption and dysfunction. On the other hand, handled well, the changes can lead to a golden era including an improved justice system, efficient dispute avoidance and resolution, enhanced innovation and productivity, and nearly universal access (online or in-person) to needed legal services.