Academic journal article Stanford Journal of Law, Business & Finance

Answering the Call to Reinvent Legal Education: The Need to Incorporate Practical Business and Transactional Skills Training into the Curricula of America's Law Schools

Academic journal article Stanford Journal of Law, Business & Finance

Answering the Call to Reinvent Legal Education: The Need to Incorporate Practical Business and Transactional Skills Training into the Curricula of America's Law Schools

Article excerpt

I. Introduction

In his seminal article, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, Professor Ronald Gilson offers an insightful and persuasive argument that value creation has to be the central function of a business lawyer.1 He writes, "If what a business lawyer does has value, a transaction must be worth more, net of legal fees, as a result of the lawyer's participation."2 Professor Gilson goes on to note that lawyers face a danger of losing ground and position in the business realm because members of other professions are attempting to steal away this value creation function from the legal profession.3 He then faults law schools for failing to adequately train their students to be business lawyers.4 Professor Gilson writes that law schools need to do a better job teaching theory relating to business and the law, rather than training lawyers in the skills that they need in practicing business law.5 He reaches this conclusion because he believes that law firms are better suited to do this job through "some form of apprenticeship,"6 a role that many law firms expressly reject today.7

Notably, Professor Gilson begins his article with a simple question: "What do business lawyers really do?"8 Before answering this question, however, Professor Gilson quickly and implicitly shifts the focus of his article to the following: What should business lawyers really do? The move in a certain regard is unsurprising because the answer to the original question is simple for a professor who teaches at Stanford Law School and who worked at a San Francisco corporate law firm prior to beginning his academic career:9 Business lawyers who have graduated from Stanford in the vast majority of instances work at medium to large corporate law firms doing transactions for medium to large business entities.10 This Article is not a criti- cism of Professor Gilson for the question that he decides to address. He deserves a great deal of praise for understanding his audience, the career paths of his students, and the career paths of many students throughout the United States and abroad. In fact, if Professor Gilson had attempted to answer his original question in regard to his former students, his article probably would not have even merited a seventh of a page in any law review, rather than the seventy plus pages that it occupies in volume 94 of the Yale Law Journal V

Still, echoes of Professor Gilson's original question resonate today not only in the halls of ultra-elite law schools, but in all comers of the legal academy. Remarkably, Professor Gilson's original response to the question of what business lawyers really do rings as true today as it did in the early 1980s when he penned his work:

Embarrassingly enough, at a time when lawyers are criticized with increasing frequency as nonproductive actors in the economy, there seems to be no coherent answer. That is not, of course, to say that answers have not been offered; there are a number of familiar responses that we have all heard or, what is worse, that we have all offered at one time or another without really thinking very hard about them. The problem is that, for surprisingly similar reasons, none of them is very helpful.12

Professor Gilson's words take on a special relevance today because the soaring unemployment among recent law school graduates suggests that the job market arguably is indicating that many law school graduates currently do not have much to "really do" nor much value to offer in terms of the jobs for which they trained.13

This suggests that it is time to return to Professor Gilson's original question: "What do business lawyers really do?"14 In terms of planning for the future, the following question would be a better starting place: What could business lawyers really do? Once this question is answered, planning for the future of legal education becomes easier in the sense that the academy will better understand the skills it must offer its students, yet planning also becomes harder because it may require a dramatic shift in the legal academy from its almost unflinching focus on litigation and litigation-based skills. …

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