The proliferation of compliance programs in US law schools over the last several years responds to a fundamental shift in the market for law graduates. The last two decades have seen a dramatic increase in the number of jobs for in-house lawyers, far outpacing the growth in government or law firm positions over the same period. The expanding compliance demands on businesses have been a major contributor to that increase. Although today some argue that the growth may have peaked, there is no denying that law schools have needed to respond to the new reality.
The bottom-line is that a significant portion of today’s law school graduates will find themselves employed in compliance rather than in lawyer roles per se. And even if many graduates will still work as legal counsel in a more traditional sense (whether in-house or externally), their practices will almost certainly include, in important respects, involvement in compliance matters. What might these developments mean for legal education more generally?
In my experience – teaching compliance for the last three years, designing a new certificate program, and also extensively discussing developments with professionals in the field – there are at least three impacts that are worth highlighting. Taken together, they hold out the prospect for a potentially transformative impact on legal education as we know it today.
First, as a threshold matter, compliance offers an opportunity to break down the boundary between “training lawyers” – the traditional law school function – and “teaching law” more broadly, whether to future members of the bar or otherwise. While law school graduates make up a significant portion of compliance officers, they hardly have a monopoly on that function. Compliance encompasses a whole range of related professions – accounting, audit, engineering, HR, IT, as well as graduates of business programs. In this sense, compliance blurs the line between “law” and “management” in all its dimensions, and a well-constructed compliance curriculum needs to reflect that fact.
For this reason, many of the new compliance programs around the country target not only lawyers but also members of this broader professional community. The compliance program in which I teach, for example, is organized jointly with our business school and is open to MBA candidates as well as external post-baccalaureate applicants who are interested in shifting into compliance. In an era of declining-to-flat law school enrollments, this move away from “training lawyers” to “teaching law” more broadly presents a strategic opportunity to expand the student pool. But the real aim is pedagogical: a good compliance program should strive to have students from multiple professional backgrounds learning side-by-side, taking courses from both law and business faculty.
The second impact is perhaps more internal to law schools but still crucial: Compliance blurs the dividing line not merely between law and management but also between numerous sub-specialties within law. The three most important to compliance, as evidenced by the coverage in the leading casebook in the field, are of course corporate, administrative, and criminal law. While compliance is often a “significant driver of corporate behavior,” most compliance activities are “responses to the actions of administrative agencies.” But perhaps more importantly, agency enforcement has become much more aggressive by following, in effect, the model of “prosecutors in the boardroom.” By this we mean how the prospect of actual or threatened enforcement (particularly via deferred or non-prosecution agreements) has become one of the strongest levers to incentivize the development of more robust compliance programs over the last several decades.
The blurring of doctrinal boundaries, however, extends well beyond corporate, administrative, and criminal law. A well-constructed compliance program should also explore the connections among other legal domains, such as evidence (particularly as to privileges and their impact on internal investigations) and legal ethics (particularly as to the professional obligations of lawyers vis-à-vis organizational clients, as well as the distinctions between “compliance officer” and “counsel”). Moreover, a robust compliance program should draw important lessons from sector-specific regulatory courses, such as environmental law, health law, data privacy and information governance, securities and financial services regulation, banking and insurance, international trade, employment discrimination, and tax law, just to name a few. Finally, compliance also necessarily touches on “orphan” topics – the most important being legal protections and incentives for whistleblowers – that might not otherwise find their way into the law school curriculum.
The third and final impact of compliance relates to professionalization, or the aspiration to train “practice-ready” graduates to the greatest extent possible. This has been a much debated topic over the last decade, and law schools have responded through a range of practice-based offerings, such as clinics and externships. This is a positive development to be sure, but compliance has the potential both to accelerate it while also taking it in new directions.
A well-constructed compliance program should introduce students to some of the disruptive changes taking place in so-called “legal operations” in large-scale organizations. If the Corporate Legal Operations Consortium (an industry-based group) is any guide, our graduates will need to develop a range of skills that include data governance and analytics, strategic management of budgets and vendors, as well as team building and communications (both internal and external). In addition, just as automation eliminates many repetitive manufacturing jobs, it will also eventually eliminate routine legal tasks as AI systems become more adept. Law graduates of the future should aspire to be the designers and managers of those systems. That will happen most quickly in compliance, because that function is frequently found in major organizations that have powerful incentives to systematize their operations.
Compliance, in short, holds out the promise of a deeper transformation of the law school curriculum than just adding another doctrinal course. It should serve as a “capstone” program, integrating insights and skills derived from multiple domains both within and beyond the law strictly speaking (for example, the psychological dimensions of so-called “behavioral compliance”). It should supplement the traditional tools of the law-school classroom – close analysis of statutes, regulations, and administrative and judicial decisions – with the use of business-school case studies and the like. In this way, more than any other course or program, compliance offers a means of bridging the gap between the traditional law school experience and the rapidly changing and varied professional environment into which our students will graduate.
Peter L. Lindseth is the Olimpiad S. Ioffe Professor of International and Comparative Law, and the Director of International Programs at the University of Connecticut School of Law. He also co-directs UConn’s Professional Certificate Program in Corporate and Regulatory Compliance.
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