Monthly Archives: May 2012

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A Tax Scholar’s Take on Legal Education Reform

Bradley T. Borden & Robert J. Rhee, The Law School Firm, 63 S.C. L.Rev. 1 (2011).

Students are graduating from law school with unprecedented amounts of debt and are confronting an uncertain job market. Editorials in the New York Times condemn law schools for failing to teach lawyering. The 2007 Carnegie Report calls for law schools to increase skills and professionalism training so that law school graduates can be better prepared for practice. And the ABA is considering revisions to the law school accreditation standards that would increase the emphasis on what students learn, rather than on what we teach.

By now, we are all familiar with the many criticisms of legal education. Given this backdrop, I want to highlight a tax academic’s scholarship, not on tax law, but rather on the broader topic of legal education reform. Brad Borden, a prolific scholar in the field of partnership and real estate taxation, is the co-author (together with Robert Rhee) of The Law School Firm. The article suggests an alternate model for legal education that could better connect law schools with law practice.

Borden & Rhee’s basic idea is that an interested law school “can establish a [non-profit] law firm that is separate and distinct from the law school.” The law school firm would hire experienced attorneys (paid with salary but not a share of profits) to run the firm, generate and serve clients, and train law students to do client work. The law school firm would be expected to be self-sufficient (perhaps after initial start-up funding), but the emphasis of the firm would be on training and service rather than on profits. Select students would work for the firm full-time as a “resident attorneys” for a period of years after graduation, and possibly also in lieu of the third year of law school (depending on the details of the particular program design); thereafter, the resident attorneys would be expected to leave the law school firm for other opportunities. You will notice the similarities to the medical school training model, which is one of Borden & Rhee’s sources of inspiration.

I have omitted many details, but the fundamental goal of the law school firm would be to provide the resident attorneys with meaningful training in all aspects of the profession, including not only business development and client service, but also service to the profession and community. The hope is that the law school firm model could give lawyers the comprehensive training that is in limited supply in law schools today and that junior lawyers may not get in practice today. Borden & Rhee also highlight a variety of opportunities for collaboration between the faculty of the law school and the lawyers at the law school firm.

Borden & Rhee correctly identify that there are all sorts of impediments to the implementation of their proposal, including issues of accreditation, possible opposition from the bar with whom the law school firm would compete, and economic considerations. Perhaps these obstacles can be overcome; perhaps not. But Borden & Rhee do not let these issues stop them from making their proposal for the law school firm. And I don’t think we should let these issues stop us from taking their proposal seriously.

So, how can we reform legal education to respond to the critiques and meet the challenge of better serving our students? This is a hard question, and I don’t have the answer. I do, however, think that this is one of the most pressing questions facing law schools today. This question deserves attention from the bright and creative minds in the legal academy. Legal academics have a wide variety of specialties, but we share a common interest in the future of legal education. Borden & Rhee are among the growing group of academics (from various substantive specialties) who have spent some of their scholarly energy on the future of legal education, and they should be commended for doing so. Their idea is provocative and bold, and it is just the type of creative thinking that could lead to constructive reform.

Is the law school firm the answer? I don’t know. Maybe. Maybe not. I hope that you will read the piece and decide for yourself. And, above everything else, I hope that the piece will inspire us all to join Borden & Rhee’s efforts and to spend more of our scholarly energy trying to tackle the challenges facing legal education.