Non-Legal Aspects
The Carnegie report makes another important observation about legal education. In the case-dialogue method, important elements that fall outside the strictly legal domain often do not receive proper attention:
Students discover that to “think like a lawyer” means redefining messy situations of actual or potential conflict as opportunities for advancing a client's cause through legal argument before a judge or through negotiation.
By contrast, the task of connecting these conclusions with the rich complexity of actual situations that involve full-dimensional people, let alone the job of thinking through the social consequences or ethical aspects of the conclusions, remains outside the case-dialogue method. Issues such as the social needs or matters of justice involved in cases do get attention in some case-dialogue classrooms, but these issues are almost always treated as addenda. (Sullivan et al. 2012, p. 6)For the purpose of this book, we can substitute “social needs or matters of justice” for “the role that law and lawyers play within organizations” or “legal management”. Although there are some relevant differences between different countries and legal traditions,[185] as well as some interesting exceptions and initiatives,[186] legal management normally plays no or just a negligible role in the curriculum of law schools. Even most of the students who specifically want to pursue a career as in-house counsel will therefore leave law school without in-depth knowledge of legal management. It is noteworthy that legal education has changed relatively little over the past decades, while legal practice has seen some important changes. For the purposes of this book, the most important change is the power shift from law firms to in-house counsel that some call the most important change in the legal profession in the last decades.[187]
Attention for legal management is scarce not only in legal education, but also in legal research.
The majority of legal scholars conducts research on substantive legal matters. Although the number of studies and publications on legal management and related subjects is growing, it is still relatively low. The upsurge in interest in empirical legal studies[188] is a promising development in this respect. Outside the academic arena, consultancy firms and law firms are doing some empirical work on legal management. However, this type of research is less objective than academic research, and the resources are usually limited. A substantial increase in independent academic research is therefore desirable, especially now that technology can be expected to change legal practice in important ways. Independent research would provide practitioners with valuable and reliable insights and would also strengthen research into substantive legal matters. As any in-house counsel knows, there can be great differences between the intended goals of legislation and regulation and the way these work out in practice. Research into “corporate legal management” will contribute to identifying important discrepancies between theory and practice. To conduct research in the field of legal management, the abundance of General Counsel networks around the globe is a good starting point. One could say that these networks, often very active, underline the desire that professionals have for knowledge on “evidence-based legal management”.The above is not intended as “law school bashing”. Traditional legal education and substantive legal research are valuable and essential to the legal profession. Change is hard in any organization, and law schools filled with strong-headed academics who cultivate valuable traditions are probably among the toughest environments. As the Carnegie report puts it:
Law school curriculum reform is a tedious and often frustrating task and seems to work best when modest changes are made at the margin by adding one or two additional courses.
Still, no matter how difficult, it would be wise to make some more fundamental changes in law school curricula.
Training students to be critical legal thinkers will always be the basis of any law school curriculum, but this curriculum should be supplemented, more than in the current situation, with elements that are not “strictly legal”, such as ethics, societal impact of the law and legal management. It goes without saying that law schools can only provide a basis for work in legal practice. Every knowledge-intensive profession requires ample “learning on the job”, but law schools should strive to provide students with a strong and all-round foundation, as the influence of education on professional culture is profound. It is possible, and in some respects: plausible, that the side effects of “typical legal education” account for part of the standard criticism of legal professionals: too reactive, case- oriented, sometimes too risk-averse and with too little attention for managerial aspects. In-house counsel now have to acquire the knowledge and skills needed for a proactive, integrative and business-wise approach to legal management after they leave law school.7