Just before I went to law school, I asked a few legal scholars and practitioners what books would best prepare me for the study of law. I read Charles Dickens' Bleak House and Catherine Drinker Bowen's The Lion and the Throne: The Life and Times of Sir Edward Coke: 1552-1634, both thoughtful, involved British accounts of the formation and evolution of our common law. While still relevant to the history of law and society, these books might not do much to prepare the next generation of lawyers to understand civil society and to represent the next generation of entrepreneurs. To today's entering law students, I would recommend following tech, policy, and entrepreneurial thought-leaders through their real-time tweets and blog posts, maybe a couple books on entrepreneurship and startup culture, and some "what if scenario" speculative fiction.
What it takes to be a successful entrepreneur or a successful lawyer has changed over the past several decades and will probably change even more rapidly over the next several years. To date, Europe has generally lagged behind America in two seemingly unrelated categories: (1) experiential legal education; and (2) fostering and sustaining new entrepreneurial ventures. What is less well recognized is that these two concepts are interconnected, and the gap between the United States and Europe in each is narrowing quickly.
America has had a 40-year head start over Europe in experiential legal education, beginning with the social and economic justice clinics pioneered in the 60s and 70s to offer pro bono legal support for clients without the resources for private counsel. (To come clean, I am the progeny of Frank Askin, one of these pioneers, who founded the Rutgers Constitutional Litigation Clinic in 1970.) These pioneers recognized the mutually virtuous value of providing legal support for underrepresented, vulnerable constituencies, while simultaneously training the next generation of lawyers through real-world practice.
Relative to Europe, America has also had clearer business laws and processes, designed to ensure that ventures have the legal structures in place to promote sustainability and growth. With the explosion in startup entrepreneurship, however, it has become increasingly more difficult for would-be entrepreneurs to obtain the legal support needed to turn ideas into viable businesses. Like the indigent clients of the economic and social justice law clinics, startups often do not have the resources to navigate legal obstacles or to battle the more established, deep-pocketed enterprises they hope to disrupt.
To fill the gaps in legal services, American law schools have recently responded by extending the concept of clinical legal education to the representation of unfunded, or "bootstrapping," ventures. The Brooklyn Law Incubator & Policy (BLIP) Clinic, which I launched in 2008, is one such response to support New York's exploding startup community while simultaneously training the next generation of lawyers to better understand and service new ventures. BLIP has become the de facto default counsel to many incubators, co-working spaces, and school entrepreneurship programs, whose startups do not yet have the resources to hire private counsel.
BLIP and the other American startup law clinics, however, are largely working in isolation. We lack the power and the value of a network and shared experience. We should learn from the startup entrepreneurs with whom we work. The modern startup community has blossomed through a culture of collaboration. This is why most successful startups emerge from multicultural, dynamic urban centers, where people live and learn in close proximity and collaborative environments. This is the power and value of the incubators and co-working spaces cropping up in our burgeoning tech centers. This is where great ideas come from and where great ventures are born.
America has paved the way for experiential legal training, but American individualism still underpins much of our legal system and culture. American law schools have typically rewarded the dogged individualist, the non-collaborator. We train law students to beat their adversaries, even to defeat their classmates. We rarely teach collaboration except in our clinics, where student and client success often rests upon effective collaboration. To best represent startup ventures, this collaborative spirit should become the ethos of the startup lawyer ... and of the law schools that breed them.
A key founding principle of BLIP was not to be just a clinic in isolation, but to be part of a dynamic network of clinics from cooperating law schools in different regions, drawing together a synthetic proximity of ideas and resources. While serving its immediate surroundings, BLIP still stands relatively alone in the American legal education system.
BLIP, however, has become an advisor and landing strip for European startup law clinics, as the concept of clinic-based support for new business ventures has resonated in Europe. On the heels of austerity, European law schools have recognized the value of government support and the exponential power of networks. Through a grant from the European Commission, I, with a consortium of four core European law schools and 12 additional European law schools, am helping to launch a European network of startup law clinics with shared knowledge and resources. This system would be equally powerful in America, but has yet to find such collective support. As a consortium, the European law schools are fostering the development of a network of focused support systems for startup ventures, while this concept lags in America.
No dynamic system can survive without a strong framework, and Europe is embracing this idea full-force, from education to practice. Europe is adopting the collaborative ethos of the American startup entrepreneur. European lawyers are learning how to think like startups and to represent them better. Within a few years, Europe will have built the legal training network and support structure for its own startup communities.
In the 19th Century, European creators, most notably Charles Dickens in the late 1850s, lamented that Americans were appropriating their work without adequate compensation. Through the 20th Century, America was often the world's pioneer and ideas leader, and we often lamented that the world was stealing our ideas. As we move into the 21st Century, Europe may leapfrog America in both its ability to nurture startups and its ability to train its startup lawyers. At that point, we had best turn our attention back to Europe to learn from, and collaborate with, the new generation of European legal and entrepreneurial thought-leaders and pioneers. ... Or Americans will still be learning our law from Bleak House and other literarily timeless, but legally and pedagogically archaic, European classics.
This article, originally entitled "European Law Schools Gaining the Advantage" was published in the January 13, 2014 issue of The National Law Journal. Reprinted with permission © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
***Postscript: I would like to highlight that, although President Obama in the State of the Union professed a commitment to support entrepreneurship and startups in cooperation with universities, the US Government has not yet stepped up in its support of law school startup law clinics and entrepreneurship. There, however, are valuable private sector and non-profit resources in America designed to support American law schools and their efforts to promote entrepreneurship, most notably the Ewing Marion Kauffman Foundation's EshipLaw website and related listserv, which, among other things, offer resources and information sharing platforms for the large number of entrepreneur-oriented law school clinics in operation across the U.S., including many involved in an annual conference of transactional clinics now entering its 13th year.