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Greetings and Happy New Year!
This fall, the campus was abuzz with the excitement of the U.S. elections—with two Harvard Law School graduates leading the tickets for the Democratic and Republican parties. Bridging our healthy disagreements with good spirit and cheer, we came together on campus for an election-night party—reveling anew in the magnificent new Wasserstein Hall, Caspersen Student Center, and Clinical Wing building. Harvard Law graduates competed not only for the presidency but also for Senate and Congressional seats. We salute new U.S. Senators Ted Cruz ’95 (Texas), Tim Kaine ’83 (Virginia), and our own faculty member Elizabeth Warren (Massachusetts)—and the commitment to public service that fuels them.
Over the past year, I traveled the nation and abroad and relished the chance to meet with many of you, to discuss what’s happening at HLS, and to learn what alumni and other lawyers are thinking. I heard excitement over new opportunities arising from technology and global connections. But I also heard concerns over challenges due to the repercussions of the 2008 financial crisis, changing information technology, government deficits, and mounting barriers to access to justice for the most disadvantaged.
To continue and enlarge the conversation, I’d like to share with you some perspectives from my vantage point as dean of this amazing institution—and invite you to share your thoughts with me. Here, I will focus on law firms and law schools, even as our distinguished alumni in public service underscore this school’s ongoing commitment to prepare talented individuals to lead across the worlds of business, nonprofit organizations, and government around the globe.
Since 2009, media stories and private discussions have focused on the slide in law firm hiring and salaries in the United States, even while many firms report strong years and more efficient operations. The drop in demand for law firm services since 2008 is estimated at around 5 percent, with spending on outside counsel dropping by about 11 percent.1 Suddenly, instead of a seller’s market, legal services for large corporate clients have become a buyer’s market, with clients asking for cost effectiveness and demonstrations of value, and firms responding with lay-offs and serious reconsiderations of their business models, pricing and compensation strategies, overhead expenditures, strategic alliances and mergers, and talent recruitment and management.
There have been similar—and related—stories about the value proposition of a law school education. Last summer, Lincoln Caplan wrote in theNew York Times of “An Existential Crisis for Law Schools,”2 noting that “[o]nly 55 percent of 43,735 graduates in 2011 had a law-related job nine months after graduation” and “ percent were unemployed or underemployed.” He stated that the number of law office jobs began to decline in 2004, long before the recession, even as law schools continued to add to an oversupply of graduates burdened by loans—a nationwide average of $98,500 for the class 2010. Brian Tamanaha reports in his book, Failing Law Schools, that in-state annual tuition at public law schools rose from $2,006 in 1985 to an average of $18,472 in 2009, and that tuition at private law schools increased from $7,526 during the same period to $35,743. And talented young people increasingly wonder whether it is worth it to pay for—or go into debt for—a legal education, and whether they can hope not only to get good jobs but also to engage in creative problem-solving, innovation, and analysis, rather than spend all their days reviewing discovery material and engaging in compliance reviews.
The challenges facing law schools and law firms are of course linked. And they are linked in turn to still another challenge—to the justice system writ large. There is a catastrophic drop taking place in funding for courts and legal services for the poor, putting the institutions of the legal system at risk of collapse and jeopardizing perceptions and realities of justice. I hear from judges all over the country that they are now worried about the capacity of their courts to proceed. We may be reaching a tipping point, at which cuts risk the whole. A bi-partisan task force led by Theodore Olsen and David Boies has documented shrinking funds for courts—South Carolina suffered a 20 percent cut in fiscal years 2009 and 2010 and California justices have warned that it may take up to five years to resolve a civil case.3 In Pennsylvania, Supreme Court Chief Justice Ronald Castille warns of bankruptcy, in reporting that “The judiciary projects a $47 million deficit in fiscal year (FY) 2011-12 after a current year deficit of $12 million.”4 The ABA Standing Commission on Professionalism in July 2012 issued “A Duty to Act” to address the court funding crisis and to clarify lawyers’ professional identity. It notes this warning of former ABA President William T. (Bill) Robinson III: If left unchecked, the erosion of the justice infrastructure endangers American democracy itself.5
I see these dangers through the experiences of our on-campus Harvard Legal Aid Bureau and the WilmerHale Legal Services Center in Jamaica Plain, and also through my work as the vice chair of the Legal Services Corporation and co-chair of its Pro Bono Task Force. Recently, our task force reported that nearly 20 percent of Americans now qualify for civil legal assistance, meaning their families earn less than $28,813 per year. This data comes precisely at the same moment as sharp declines in funding from all sources—federal, state, local, private and interest on lawyers’ trust accounts.6 So, organizations providing legal services with federal funds reduced their staffs by 661 employees in 2011, and the losses in 2012 are estimated at another 724.7 Even before these losses, available resources would leave 50 to 80 percent of the poor’s civil legal needs unmet.8 That means people—mothers and children, individuals with disabilities, returning veterans—face homelessness, domestic violence and other dire consequences. Members of the middle class as well as the poor are increasingly priced out of the market for legal representation.
What is at risk is confidence in the courts—and hence in the enforceability of contracts, property rights, criminal justice, child support … affecting individuals and businesses all over the country. And the very reliability of the rule of law is in jeopardy when justice is so delayed or so inaccessible as to be unavailable.
These challenges—for law firms, law schools, and the justice system itself—can be tackled more effectively if they are approached together. Efforts to revamp the business models of law firms and law schools could promote collaborations that improve access to justice. With online case management and savvy coordination efforts, partnerships connecting practicing lawyers, law students, and businesses can address community needs while enhancing training. Promising models already are emerging to unite firms, corporate counsel, law schools, courts, legal services agencies and digital enterprises, and to connect students, new lawyers, experienced and retired lawyers and members of the business community in practices to redeem the promise of professionalism.
The good news is that we are problem solvers. I’ve had the chance to ask many lawyers I admire what they learned in law school that enables them to lead great institutions, negotiate deals and build new worlds. What people tell me may differ in precise words, but converge in this message: “I learned to analyze a problem, take it apart, see it from all sides.” That is remarkably resonant with what Christopher Columbus Langdell ’1854 said: Law schools enable their graduates “[t]o have such a mastery of [principles or doctrines] as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs….”9 Can we take these abilities and apply them to the tangled challenges facing law practice, legal education and the institutions of the rule of law?
I believe that we can! My confidence is bolstered by what I see every day at Harvard Law School—by the work of its innovative students and faculty, all of them engineers and designers focused on reinvention, leadership and service.
Retooling to Make Lawyers More Effective
When I led the curricular reform here under the guidance of my predecessor, Dean Elena Kagan, I found a faculty committed to connecting research and teaching—and willing to engage in retooling not just what is taught but also how it is taught. In the past few years, faculty have pushed further in articulating measurable teaching goals, framing systematic empirical work about the effects of our teaching, and forging new tools for teaching and learning. Law schools are comparative infants when it comes to rigorous research about what we do. We can learn from medicine, engineering, policing and other fields in the development of accountability measures. I’m delighted to see the growth of rigorous empirical research in our faculty’s own work, such as Jim Greiner’s influential studies on the delivery of legal services and also the administration of elections.
In constructing the normative base against which to measure success in educating lawyers, we are learning from your comments and suggestions. How do we cultivate judgment? Imagination? Teamwork? What kind of teaching works for each of these and other goals? We can draw on rich research on how adults learn. And then we can truly commit to a process of continual re-evaluation and reform of legal education to reduce the risks of misalignment with practice and the demands society rightly places on us.
Problem-solving and Teamwork in Global Settings
As we embark on the exploration of these questions here at HLS, we are continuing to push further with the changes that we began making in the last few years. We are retooling the model of instruction predicated on litigation, a model which didn’t do enough to prepare students for negotiating and advising, working in teams to solve problems, performing tasks in specified time periods for specified prices, or being competent managers, planners, or analysts of their own businesses. Our problem-solving workshop—required now for all J.D. students—and our case studies program emphasize developing options in real-time and engaging students in teamwork. Our courses and clinics increasingly focus on preparing our students for the globalization of markets, business, litigation and arbitration—in the economy and in the provision of legal and professional services. Our graduates increasingly need to work closely with people from around the world—and to develop access to and relationships with national and regional governments across the globe. Our extraordinary students increasingly reflect deep experiences studying and working around the world, and a growing number of them come from other countries. With three-quarters of the current students arriving with prior experience in the workforce or advanced graduate studies, they bring superb focus, breadth and commitment to their efforts to address contemporary challenges, which in turn inspire the faculty and staff.
We know one thing for certain: laws, institutions and practices will change, as governments shift and multilevel governance invents new bridges between economic and political affairs. Our frequent conferences at HLS and abroad address the impact of globalization on law and the legal profession. Last month, our Program on the Legal Profession (PLP), led by the remarkable David Wilkins, co-hosted a conference in Hyderabad, India, to examine the future of Indian corporate business as part of PLP’s ongoing “Globalization, Lawyers and Emerging Economies” initiative. Last year, HLS students traveled to a global moot court competition to address an international trade problem. Through clinical work and research projects, students and faculty partnered with an organization in South Africa to improve access to quality education, advance better health care in Ghana, and address the risks of “killer robots” emerging in North Korea.
Harnessing the Potential of Digital Platforms
Marshalling the possibilities of digital realms holds additional promise for education, collaboration and problem-solving. This spring, Terry Fisher’s online copyright course will be among the very first that Harvard will offer through its new edX online collaboration with MIT and other universities—and will enhance the learning experiences of Harvard Law students in the process. In 2012, building on its two decades of leadership in mapping and guiding governance of digital realms, the Berkman Center for Internet and Society hosted the first international conference joining global centers on internet law and policy. I had the privilege of co-teaching with Jonathan Zittrain and other two university colleagues a fall course joining students from across the university to address digital power, security and possibilities. I emerged convinced that legal tools are crucial in constructing the governance of digital resources, and confident in the huge role our students will play in this enterprise.
Strengthening Ties to Practice
Our clinical programs—already the most comprehensive to be found at any law school—continued this past year to pioneer problem-solving while bridging theory and practice. In 2012, our students pursued human rights in Brazil, the Congo and Thailand, developed conflict management tools for an immigrant community in Boston, and devised a plan to reduce weapons left over from Qaddafi’s regime in Libya. They traveled on the Red Line to Boston’s underserved communities to help those afflicted by the mortgage crisis to keep their homes, and helped farmers in the Mississippi Delta navigate the law so that they can sell their crops more widely. Led by Dan Nagin, our new Disability, Veterans and Estate Planning Clinic is offering returning veterans necessary support as students help them navigate administrative, education, disability and mental health law systems. Students working in our Emmett Environmental Law & Policy Clinic recently prevailed in a multi-year battle to lift restrictions on the installation of solar power in Massachusetts. Other students worked on behalf of public pension funds and charitable organizations seeking to improve corporate governance at publicly traded companies in which they hold investments. Through the Chayes International Public Service Fellowship, students advanced disability rights in South Africa, fought climate change in Argentina, battled human trafficking in Thailand, provided legal aid to refugees in Israel, and advanced the rule of law and the criminal justice system in Morocco.
As we strengthen ties between legal training and practice through our burgeoning clinical program and a growing cohort of experts-in-residence, visiting practitioners, and professors of practice on campus, we are nurturing entrepreneurship, creativity in institutional design, and attention to the business and financial skills crucial for a next generation of leaders. We recognize and act on the arguments for both specialization and broader education, for professionalism and independence, and for tighter focus on service and compliance with client demands. To be worth paying for, legal education must equip people to design and retool institutions; to navigate complex processes in domestic and foreign settings; to work effectively in diverse teams to devise creative and often negotiated solutions; to incorporate feedback and criticism promptly; and to make nimble judgments in the face of great uncertainty or controversy.
Empowering Students to Pursue Social Justice and Entrepreneurship
Finally, we are continuing to create new programs and opportunities that reflect our students’ desire to address persistent and accumulating issues of injustice. Some students want to focus on mass disparities in wealth and health; for others, the key issues are corruption and abuse by governments and companies, burdens from global climate change and pollution, or violence within the home, within cities, across regions and between nations. Still others seek to enhance productive innovation and the kinds of economic and regulatory environments crucial to reap the possibilities of invention in biomedical, digital, energy development, and other realms. Our cyberlaw and transactional clinics support new enterprises and connect the law school with the bevy of activities at the university’s Innovation Lab.
Advancing both the spirit of entrepreneurship and the commitment to public service, we have launched our new Public Service Venture Fund, and students are currently working on proposals for the first round of competitive grants. Through on-campus workshops, we are supporting the development of students’ business plans; through connections with experienced entrepreneurs, we are helping students plan rigorously and dream at the same time. In June, our fund will begin supporting the initial group of graduates and alumni as they pursue post-graduate public service of their own design—and some will even launch new social enterprise ventures.
Connecting with YOU
As the year 2013 gets underway, Harvard Law School is strong and vibrant—and committed not only to supporting our own community of leaders but also to contributing solutions to the challenges that face legal education and the legal profession more broadly. I am convinced that with dedication to leadership, innovation and service, we can turn the “crises” of this moment into genuine opportunities. As always, your thoughts and advice are vital and I look forward to hearing about your ideas and experiences—when we have the chance to meet here at reunions and as I travel and meet with alumni. Please share any thoughts with me—always feel free to write me at firstname.lastname@example.org. You make us proud every day and I am sure that together we can generate great approaches to the challenges ahead. I look forward to hearing from you.
With best wishes for a happy, healthy and extraordinary 2013!
Morgan and Helen Chu Dean and Professor of Law
1 James R. Bailey, The Law Firm Crisis: Changing Business Models, http://business.gwu.edu/files/james-bailey-law-firm-crisis-3-11.pdf.
2 Lincoln Caplan, An Existential Crisis for Law Schools, N.Y. Times, July 14, 2012, http://www.nytimes.com/2012/07/15/opinion/sunday/an-existential-crisis-for-law-schools.html.
3 ABA Now, February 6, 2012, Task Force Finds Court Underfunding Still a Crisis, Business Partnership an Opportunity, http://www.abanow.org/2012/02/task-force-finds-court-underfunding-still-a-crisis-business-partnership-an-opportunity/.
4 Pennsylvanians for Modern courts, Pennsylvania Courts Face Funding Crisis,http://www.pmconline.org/node/428.
5 Statement of the ABA Standing Committee on Professionalism: A Duty to Act: The Court Funding Crisis and a Lawyer’s Professional Identity,http://www.americanbar.org/content/dam/aba/administrative/professional _responsibility/statement_on_courtfunding_crisis_071712.authcheckdam.pdf.
6 Legal Services Corporation, Report of the Pro Bono Task Force (Oct. 2012), p.1.
7 Id., at 2 (these are “full-time-equivalent” positions, including 241 attorneys in 2011 and 333 attorneys anticipated departures in 2012).
8 Id., pp. 1-2.
9 C.C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS v-vii (1871).
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