Legal education in America: A new paradigm
American law school education does not meet the needs of business in America or serve the American people.
What is needed is an entirely new curriculum structure and paradigm for legal education in America: a common core JD (juris doctor) followed by a Masters degree in either Business Law (MBL) or Dispute Resolution (MDR).
The JD Program
The basic JD degree simply qualifies a student to take a national examination in the fundamentals of Law as a profession and the basic elements common to all aspects of legal practice throughout the United States.
- Jurisprudence and comparative law
- The history of law America; Constitutional Law
- Legal procedure
- The elements of business organizations
- The elements of not-for-profit organizations
- The elements of Government and municipal law
- Global Business and International Law
- Law as a profession: ethics and public service
- Career paths in the law
If the students enter the law school program properly prepared with a broad general traditional “liberal arts” education such as the colleges and universities offered prior to World War II, the JD program should take six conventional semesters spanning 24 calendar months.
The MBL and MDR programs
The Masters degree in business law (MBL) should be equivalent to an MBA from a respected Graduate School of Business Administration. The education should qualify a graduate to provide meaningful legal services within a corporate legal department and advise entrepreneurs and small businesses owners and operators as the legal member of their legal/accounting professional support team.
The Masters degree in Dispute Resolution (MDR) has no counterpart in modern education other than perhaps the clinical education program in a traditional medical school culminating in a supervised hospital residency program or the training of a barrister in the English common law legal system.
Ideally there should be a national examination at the conclusion of each of these programs to determine fitness to practice law independently. However, in the alternative, the licensing states should offer the opportunity to take conventional State bar examinations at the conclusion of each program with licensing depending upon passage of the examination and the traditional determination of character and fitness for the independent professional practice of law.
The goal of each of these graduate programs in the Law is to eventually establish a barrister/solicitor tradition in America similar to that in the English common law countries.
The MBL program
The conceptual model for operations of the office of General Counsel and Legal/Law Department in a large business enterprise and the functional organization charts for all such organizations have a number of common elements: business transactions; corporate management and regulatory compliance; real property management and transactions; intellectual property protection; legal issues associated with advertising, promotion, and marketing; insurance and risk management issues; general liability issues including litigation; products liability issues including litigation which might involve class actions; and the general need to monitor legislation, administrative agency regulation, and litigation which might affect the present or future operations of the company.
These are, of necessity, the elements of the MBL program. In terms of courses that means
- Drafting contracts and other agreements
- Business organizations including corporations, limited liability companies, partnerships, joint ventures, and all the other operating and financing entities which the exigencies of modern business operations call for
- The legal issues which are associated with the management of any business organization, enterprise, or entrepreneurial venture
- Business finance and banking
- Legal aspects of international trade and finance
- Compliance with the myriad laws and regulations affecting business today in the United States and, where international trade and finances involved, throughout the world
- Real property transactions
- The legal issues associated with management of real property and other capital assets including the criteria for obtaining the assistance of local counsel for site-specific legal issues
- Protection of intellectual property including evaluation and selection of outside counsel specially qualified for obtaining and protecting intellectual property
- Management of intellectual property portfolios
- The legal issues associated with advertising, promotion, and marketing
- Risk management and the management of risk
- Insurance: property and casualty and all of the many specialty coverages now available
- Cyber law issues
- The basics of securities law and the issues associated with raising capital from the established markets, private sources, and venture capitalists
- Analysis and monitoring of legislation and administrative regulations
- Litigation management from the decision to take direct legal action on a matter through settlement or verdict and appeal including the critical criteria for selecting an effective barrister and properly instructing your barrister about the business position of the company engaged in the litigation.
Building on the education obtained during the JD program, the MBL program should take six conventional semesters over 24 calendar months.
Upon successful completion of the MBL program, the graduate should be able to enter the Law Department of any active American corporation with a well-defined career path toward the position of General Counsel. The graduate of the MBL program will also be qualified to advise small business owners and entrepreneurs seeking to build a business.
The MDR/American Barrister program
The MDR program is devoted to dispute resolution in the context of the Anglo-American system of adversary jurisprudence. The graduates will go forth as advocates, trial lawyers, and litigators — American Barristers. They can expect to be employed on a case-by-case, matter by matter, issue by issue, or for longer periods as “of counsel” to the General Counsel or Law Department of a business organization, a not for profit organization, or government.
Of necessity, the MDR program must be intensely clinical and based upon the legal equivalent of Grand Rounds, internship, and residency in the health care professions.
Other than the introductory general academic work in Evidence, Procedure, and case specific research, the classroom is the courtroom and the teachers are essentially mentors, guides, and senior/managing partners. The pedagogic model is a modified version of the Oxbridge tutorial system.
There is no way to teach the skills of a barrister other than in the context of active litigation. There are no alternatives to trying cases.
Sitting “second chair” at the trial as part of a “team” of “litigators” from the litigation department of a large time billing full-service law firm can not provide sufficient experience. Litigation departments and teams of litigators do not win cases in the courtroom or even before an administrative tribunal; individual barristers do.
The heart of the MDR program is active public interest litigation involving substantial issues of public concern. In the first instance, such litigation will be local and focused on issues of concern within the geopolitical area of the Law School including pro bono litigation support for local municipal subdivisions.
The formal component of the MDR program lasts three calendar years.
The first year of training consists of classroom study, case specific research, case preparation and analysis, and general observation as active support for a litigation team engaged in a specific public interest lawsuit. At the conclusion of this first year, the student will take one of the state bar examinations and upon passage and admission to practice in that state become admitted to the local United States District Court.
During the second year the training accelerates as the newly licensed attorneys lead discovery teams of first year barristers in specific public interest lawsuits and participate in the management of existing litigation.
With only limited supervision from faculty and mentors, third-year barristers initiate and manage public interest litigation taking on the role of lead Counsel during the litigation. During their third and final year of training, the third-year barristers fill positions similar to that of chief or senior residents in the medical training program.
Following completion of the MDR program, the newly certified barrister can begin to work independently representing clients in the courts and before other adjudicatory bodies. Their employment opportunities include entrance level trial positions in the offices of district attorneys, public defenders, and government, and representing indigents as assigned counsel in the lower courts. From that point on, the career of the American Barrister depends upon their commitment to the courtroom and their success in the courtroom.
Limiting access to the courtroom and the conduct of litigation
The ultimate goal of the MDR program is to eliminate the excessive cost and counterproductive nature of adversary jurisprudence in America today by restricting the conduct of litigation to independent American Barristers.
Even though the barriers between barristers and solicitors in England and other common law countries have been lowered, litigation conducted by barristers is still more efficient and cost-effective than it is in the United States.
Once the education path towards becoming an American barrister is well-established, it will be in the obvious self-interest of American business to entrust their litigation to barristers serving “of counsel” to the General Counsel of the Company rather than continue to support the bloated litigation departments of large time billing full-service law firms to whom the litigation which may determine the economic fate of a company is nothing more than a way to leverage associates and improve the earnings per partner of the law firm.