Lawyers of the Future

THE OPEN MIND
Host: Richard D. Heffner
Guest: John Sexton
Title: “Lawyers of the Future”
VTR: 9-6-01

HEFFNER: I’m Richard Heffner, your host on THE OPEN MIND, and I should point out that both times my guest today has joined me I’ve introduced him as having been there, done that as far the highest precincts of the law are concerned. For with a Fordham Doctorate in the History of American Religion, he earned his Harvard degree Magna cum Laude and on to serve as law clerk to U.S. Court of Appeals judges David Basiron and Harold Leventhal, then at the Supreme Court of the United States, to Chief Justice Warren Burger. And now, after more than a dozen wonderfully achieving years as Dean of New York University’s ever more highly regarded, internationally renowned law school, my guest, John Sexton, has just been designated as the next President of NYU itself, the largest private university in the United States. So, I congratulate Dean Sexton, but for this one further OPEN MIND ask leave to stay within the jurisdiction of the law. Next time my guest will be wearing his presidential hat and we’ll talk then about his new opportunities and problems. This time, however, I want to talk about the degree to which American lawyers’ lips have now been loosened. And since Dean Sexton recently participated in conferences about legal education around the world, I want to ask him whether American lawyers sense that their respective obligations are to their clients and to the society at large is quite unique.

Dean Sexton are we different here, as you study and make recommendations about what law schools should be and what the law professor should be abroad and here in the future? Are we strangely concerned about these matters?

SEXTON: I don’t know if “concerned” is the right word. There are some that are concerned because there are some that see a threat in change, but that’s human and that’s history. You and I have been having this conversation now for over a decade, and I remember when we first began to have it, the introduction of the word “globalization” seemed quite radical. When we announced at NYU that we were going to be the first global law school, it provoked responses that I’d be introduced at Deans’ conferences as the first Dean of the Intergalactic Law School.

HEFFNER: (Laughter)

SEXTON: People thought this was a funny thing, a kind of odd thing, and no one quite understood…

HEFFNER: You like that idea, don’t you?

SEXTON: It was always a good thing to have people make fun. It keeps one humble. But in any case, the…it is now the case that no one would speak about American legal education without taking account of the tremendous forces that we were describing in those earlier conversations with that word globalization. And I think there’s been a category change both in the way lawyers view themselves and in the way legal education views itself and of course, it’s in the category change that self-perception occurs. It’s inevitable that there will be dramatic changes in both legal service delivery, and in what it means to “practice law”. And in the education that prepares people for that profession and the related activities to which perhaps the word “profession” wouldn’t appropriately apply. So I think things ARE changing. Changing dramatically.

HEFFNER: I don’t understand that point to which the word “profession” might not apply.

SEXTON: Well, let’s look at the data, and let’s start with a very narrow look at “The American Lawyer”. There is as much separating lawyers as there is separating the CEO of Bloomingdale’s from the street peddler, although the word “merchant” might apply. We sometimes forget, especially when looked at through the eye of those in “elite” law schools that there’s a vast army, a vast majority of folks to whom the word “lawyer”, “American lawyer”, “American professional lawyer”, to whom those words apply: The vast majority of folks who aren’t practicing that kind of elite public service, elite private practice, large law firm that we think of immediately from our perch. Now, you go from that to the broader compass that you and I would associate with “American lawyer” to legal services, and there are all kinds of folks out there like paralegals. In America today, now, there’s a spectrum, and my proposal to you is that one of the dramatic changes that’s going to occur when one steps back and looks at this with a global perspective and begins to speak not about American lawyers and law practice, or legal service delivery around the world, you see the spectrum gets dramatically larger. And we turn out to be just a small part of that spectrum. My proposal to you would be that one of the changes we’re going to see over the next decade is going to be a vast diversification, both in what we associate with the words “legal practice” and what we associate with the words “legal education”. Because as the practice diversifies and we begin to recognize the necessity for various reasons, not the least of which is cost of delivering in a more targeted way the services demanded by various constituencies starting with paralegal, all the way up to the most sophisticated thinking about law, both public and private. As we begin to recognize that we’re going to have to create educational programs that lead to the various elements in a much more diversified world of legal practice. The world is there before us. If you think of the European Union, now you have nation states with very different understandings of what it means to be a lawyer or a deliverer of legal services coming together. And there’s a much more, over night, a much more diversified product that’s coming out under the roof of legal services. There’s a big difference between an English trained lawyer and a German trained lawyer, an Italian trained lawyer, a Spanish trained lawyer, and so on. So I think the first thing you’re going to see, in answer to your question, in terms of both the self-perception of the profession and the educators is a diversification of role, and with that a diversification of product and program and means.

HEFFNER: You say we’re going to see that here, in this country alone. How are you going to achieve that?

SEXTON: I wouldn’t use, I wouldn’t use that, I wouldn’t say that we are going to see it here alone I would say we’re going to see it even here.

HEFFNER: Okay.

SEXTON: Okay? You look at America, the home of a very special notion of what it means to be an American lawyer, a profession. It’s a very special notion that operates here, a very special brand of legal education.

HEFFNER: An elite…

SEXTON: At one end of the spectrum, right? At one end of the spectrum there is this Jeffersonian, Toquevillian notion of the lawyer as a civil priest that comes out of our society. The rule of law that de Toqueville noticed in our society, which is a society without an official state religion, and therefore a society that in many ways substituted the law for that – and when Jefferson brought the legal education onto the university campus, the very conscious move connected to the notion of what it meant to be a lawyer in this special way. Now I’m not saying that that’s the only way American legal services are delivered. My point is that that’s only part of the spectrum. But it is a way that even in this more diversified world must be attended. Now we’ve created a form of legal education which is, when you look at the world stage, aberrational, which is a three-year graduate model of legal education. In most places this isn’t the way it’s done. It’s not in England, it’s not always done in Germany, it’s not done in the vast majority of the world. Japan, ironically, is I think moving in the direction of the American model, but it’s the only highly developed society that would be with us then saying “Okay, you go to the university, but then after that you go three years for graduate training in law before becoming a lawyer”. Now this is was connected, in my view. That this particular formal education was connected to this notion of what a lawyer was, and there’ll still be a place for it, both the lawyer and the form of education and diversification – there will also be diversification of product.

HEFFNER: You say there will still be a place for it. If I understand this address that you gave in July, “Out of the Box”, (interesting title) thinking about the training of lawyers in the next millennium, you embrace, still, this American tradition, this Toquevillian, Jeffersonian tradition. You don’t want to see it go by the boards at all, do you?

SEXTON: Embrace it…

HEFFNER: It’s yours!

SEXTON: It’s my reason for being as a law teacher. I mean it’s what makes building a special law school worth a professional life.

HEFFNER: Yes, but then what about all these others you identify as being part of legal services?

SEXTON: It’s not my calling. It’s not the calling of the kind of people that would be attracted to spend a life in this branch of legal education, but the fact that it isn’t my calling, which isn’t to say that it isn’t a perfectly good calling to do something else.

HEFFNER: Why do the words “vocational training” occur to me?

SEXTON: Well, it’s interesting, because usually when we were having this type of talk you said, you always said to me “Why does the word ‘vocation’ occur to me in concept of your being a lawyer?” And it is the case that when I use words like “calling” and “vocation” in respect to being a lawyer I’m talking about something that is quite sublime in its goals. Vocational training…

HEFFNER: …sublime about it…

SEXTON: …which adds the two letters makes a very big difference. And vocational training is going to be part of this. I think that the world of the future, with the diversification I’m going to talk about, is going to create an explosion of different kinds of education leading to different kinds of law practice. And some of them will have people who will be trained to do relatively simple legal matters, a basic will, a basic divorce, and will be authorized to do so. They’ll get a low-cost education instead of the enormously costing education…

HEFFNER: No three year…

SEXTON: Not a three-year graduate model, maybe not even requiring college as a prerequisite. And they will then serve as paraprofessionals – I don’t think it would be right to say professionals – but paraprofessionals, a client community now unserved. And they would do it at a cost that folks could afford for them, that kind of representation. And I see that as a social good. And between what I’ve described there, and the American lawyer-priest, the Jeffersonian-Toquevillian model that we’ve talked about on other occasions, there is a long line that represents various shading, and I think that we, as the American legal establishment and the American legal profession, have to both provide the programs that train people to provide the service at covers that entire spectrum. Because there’s a huge amount of unmet…

HEFFNER: Dean Sexton, what will be the impact of what you see upon not the livelihood, but the life of the priest as you refer it to?

SEXTON: What…

HEFFNER: …lawyer…

SEXTON: Well, I think that in some ways we have to enable that kind of person the freedom to define what that life will be. I mean, I think that one discharges these people into the world armed with hopefully a more profound knowledge of instrument of law. By which I mean a knowledge not only of the rules themselves as they exist at a given moment of time, but how those rules are created, how they become manifestations of different voices in the conversation. Of techniques for including other voices in the conversation about lawmaking, a knowledge about how those laws impact both deliberately and inadvertently, what the direct and collateral impacts are and how one might accentuate the positive and ameliorate the negative impacts. In other words, a much more sophisticated understanding of simply studying the rules and “passing the bar exam” and therefore being qualified to practice law. So you discharge these people armed with this more sophisticated understanding into the world with a mandate you have created now as a fiduciary for the most sacred instrument humankind has created to award human society. Go do it. And do it in whatever domain you choose to do it. Whether you do it as a legislature or as a civic leader or as a skilled advisor to a corporation or as a lawyer on behalf of those in need, you’re developing new conceptions on how to empower.

HEFFNER: Now, there’s a parallel movement, it seems to me, in medicine. In medicine I understand that there’s a function of a pressure upon the profession in terms of time, in terms of resources, and in specialization. That’s not what’s happening in your terms?

SEXTON: Well, it’s not…

HEFFNER: It’s the other way.

SEXTON: Yes, but you ask me, the predicate to your question, that just occupied me was what would I see as – I’m describing what I hope to be. I’m describing what I think, if the legal education establishment and the profession become alert to the forces that are shaping them, I think largely without their awareness, I’m saying this is what could be. And if we’re also paying attention to it this is what WILL be. And it’s the very forces you’ve described in medicine that are forcing law and medicine away from this model. Those forces that you’ve described, the pressure towards specialization, cost-consciousness, the kind of deeply-embedded societal need for immediate gratification which tends to de-emphasize the long range in favor of the short range, whether it’s in a stock price, or the evaluation of research…all of these things are very, very powerful forces. You’re right to say that they’ve wreaked havoc in my view. We’ll get to that when I come back in my other capacity to talk…

HEFFNER: (Laughter)

SEXTON: But for now, let me say…at least…think about it for a minute…medical research, even basic research, you’re saying to people “We’re looking for a cure for cancer. We’re looking for a cure for polio”. I mean, there’s an obvious payoff. Legal research is even more fragile, because to whom do you say “We’re looking for justice. We’re looking for a way to make the world more just”. You say that precisely, at least it has traction, most forcefully with the people who have no power! People who have power have a self-interest to maintain the status quo! I mean, it’s very good for them. Just in the greatest maximization of justice in the world. So…

HEFFNER: Wow!

SEXTON: You take your analogy to medicine and it tells you why I’m trying to sound eclarian here. That American lawyers, lawyers around the world who cherish the notion of what I captured…American…the American division…and American legal educators most of all because we’re here. What is the role of the American university? The role of the university is to look at society and say “Watch out!” And I’m telling you that there’s danger here. There is real danger that we’ll end up the legal equivalent of HMOs and where’s the room for the philosopher-priest lawyer that we were talking about? There is none. Where’s the room for Ronald Dworkin’s writing on jurisprudence. There is none.

HEFFNER: Sure there is. At NYU, Yale, Harvard, Chicago, Columbia. And that may be…or a few others.

SEXTON: Well, those are all places where the spirit I’m describing is alive and well today.

HEFFNER: Right.

SEXTON: I’m telling you we’ve got to work to make sure it stays alive and well.

HEFFNER: You mean elitism won’t do it by itself?

SEXTON: Listen, protectionism won’t do it, which is a technique which has been tried and true, right? And elitism won’t do it. These will not be sufficient tools to overcome the kind of global forces that you and I have been talking about and that you properly say have caused enormous changes in medicine. Not for the good.

HEFFNER: Look, we’re not going to have enough time to do what I wanted to do, started out doing today, but that’s okay. I want to ask you though, in terms of this interest in the globe, the world outside: Do others see the kind…abroad…in other parts of the world…do they see this kind of conflict, these conflicting approaches, these conflicting interests? Or are they further ahead, in a sense, because they were never as advanced as we were in the “priesthood”? Are they more practical? Have they dealt with…as you say in the speech, you talk about preparation for law training that may be so much less than is required here. Not a bachelor’s degree, but you go something closer to high school into training for legal services.

SEXTON: I don’t know whether the words “ahead” or “behind” are appropriate here. I think my observation would be that people are in their place. You look at what’s there and there’s an enormous, as I say, diversification. So in some dimensions, Germany is ahead of us. In other dimensions we’re ahead of France and France is ahead of Germany and so on. I don’t think that that’s the way to put the question, if you’ll permit me. I think the point is that the forces we’re talking about are at work everywhere and are perceived everywhere. And more and more people now…whereas…eight years ago people introduced me as the “Dean of the First Intergalactic Law School”. Now everyone embraces this conversation that we’re having and understands the importance of it. Perhaps they wouldn’t go so far as I’m going in the conversation, and would think it was wrong to go so far, but everybody is in the conversation. And by “everybody” I don’t simply mean everybody in the United States, but legal educators around the world. And what’s happening with that is a realization of people who were thinking only in the narrow part of the spectrum in which their own part of the spectrum was seen. People are using, to use an old expression, more parts of the elephant, are beginning to see that there is an elephant, not just the tail or the feet or the trunk. And then of course, with that comes…because that is an astonishing revelation, right? You come out of Plato’s cave, and there’s the sun, right there. An astonishing revelation…with that, then, people with intelligence, people with good will begin to say what does this…what does this mean? And one of the first things that happens, I think, as one begins to put oneself into the other one’s system, a humility developed.

HEFFNER: A humility?

SEXTON: A humility developed. I think this is very, very important. And it connects also to this role, the distinctly American role of the lawyer we’ve been talking about. A humility develops because one begins to realize very shortly that triumvirate is not appropriate in this context. That it’s not about who’s ahead and who’s behind. But that there is a value in what this other person is doing. What should we do to achieve that value? And suddenly there’s a broad movement towards that diversification that I’m talking about. So humility, hearing voices, listening, valuing other perspectives, seeing yourself as others see you, these are all parts of what is a developing picture that I think is quite positive. What I press is the urgency of us reflecting on these issues. And developing a conversation in which we address explicitly the reasons for each of the varieties of legal practice that we will be called to have. And then how we will link education to that.

HEFFNER: Is it fair to say that there are many levels of law schools in this country today?

SEXTON: I think that what we think of as law schools in this country today represents, from what inside the spectrum of legal education…roughly 180 accredited law schools, they would view themselves as being widely different. They would say we’re diversified. I think that’s true only if you are looking at it from inside that particular cave. And my point is that they’re really at one level. They’re all trying to do one thing. There are probably too many of them trying to do that thing. Because it would be better if we deployed some of those assets and resources to other parts of the spectrum that aren’t captured simply when you look at it in the context of the compass of those 180 schools.

HEFFNER: Do you see that happening?

SEXTON: I think it’s inevitable. I think it’s inevitable. I think it’s impossible to resist the forces that are present in the direction of diversification.

HEFFNER: Now that’s what was said about medical schools a few years ago. It’s not said so much so often now.

SEXTON: Because we change the meaning of words. I mean, you think about…you take an obvious case like what dental practice was like when we used to go to the dentist as children. And you think about dental practice today and you see that there’s better diversification along the profession of providers. That’s happening in medicine, too. And it will happen in law. And it should, because it delivers more service more appropriately to more people. Now that having been said, I don’t want to lose sight of the main core of what we’ve been talking about which is no matter how diversified that world becomes, it’s important to maintain this very special Jeffersonian-Toquevillian notion of what it means to be a lawyer for some.

HEFFNER: And that’s the point at which I see I should be saying “goodbye”. Thank you, but I’m not going to let you off this easily. You’ll have to come back as dean of the law school to talk about this further. Thank you, John Sexton, for joining me.

SEXTON: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you would like a transcript of today’s program, please send $4.00 in check or money order to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of THE OPEN MIND has been made possible by grant from: The Rosalind P. Walter Foundation; The Bluestein Family Foundation; The Thomas and Theresa Mullarkey Foundation; The Garfinkle-Minard Foundation; The Center for Educational Outreach & Innovation at Teachers College, Columbia University; The Commonwealth Fund; and from the corporate community, Mutual of America.

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