Innovation, Lawyers, and Legal Education

David Segal’s most recent NYTimes foray into the pathologies of legal education — “The Price to Play Its Way,” about the history, operation, and influence of the ABA/law school faculty accreditation process on the structure of law schools — is, on the whole, a pretty good account of the macro problems facing American law schools, law students (present and future), the legal profession, and the people that the profession is supposed to serve.

Some links and comments, below the fold.

As I often am when I read pieces like this, I was struck by its juxtaposition with other pieces in the same paper. In this case, take a look at the Corner Office column, which interviewed Geoffrey Canada of the Harlem Children’s Zone. The Corner Office is often one of my favorite parts of the Sunday Times. From a micro perspective, Geoffrey Canada hits the nail on the head when it comes to why organizational change is so difficult.

Of course, organizations and institutions that don’t change voluntarily may have change thrust upon them. When it comes to law schools and professional education, we’ve talked here at madisonian.net about both voluntary and involuntary change to legal education. Readers may want to look at, or just recall, these posts:

Deven Desai organized this extensive mobblog on legal education, way back in 2008. Many of the themes that Segal sounds in the Times today were sounded back then, by one or more of the great roster of mobblog participants.

I have from time to time characterized the challenges facing legal education as innovation challenges, explicitly evoking the complacency of a somewhat similarly dominant incumbent American institution: the steel industry. See the posts here, and again here. The American steel industry, premised on integrated mills, was in slow decline for decades — and both internal and external scholars of industrial history knew that, for many years — yet up through the late 1970s and early 1980s management and labor unions collaborated on a series of collective bargaining agreements that perpetuated some of the highest wages in American industry. The workers, their families, and their communities enjoyed extraordinarily high standards of living up through the early 1980s. Then the industry went over a cliff. The bulk of global steel production exited the United States. American steel-making communities have just started to come back, 30 years later (in Pittsburgh’s case), or, in many cases, are permanently scarred.  But the human cost — hundreds of thousands of lost jobs, family dislocation, community collapse — has been staggering.

Clay Christensen used that history as one of the central illustrations of his original, Schumpeterian Innovator’s Dilemma. Christensen directed attention to the challenges of disruptive technology and to the claim that managers in successful industries needed to find structural ways to accommodate disruption, lest disruption wreak catastrophe on their businesses.   In the case of steel, that disruption was the mini-mill.   For law schools, the accreditation structures that Segal describes in his piece have largely suppressed the emergence of the kind of disruptive technology that would feed an innovator’s dilemma for law schools.  But as Segal observes, the cliff may be approaching nonetheless: demand for legal education, at the high cost levels now seen across most of the business, may not be sustainable.  A similar history can be pulled out of the steel analogy.  Economic historians argue that in some respects, at least, Christensen is wrong; demand for the high-priced products of integrated mills had been falling steadily since the beginning of the 20th century.  Steel’s collapse could have been avoided had management and labor collaborated well before the emergence of mini-mills in building a more flexible industrial structure that supported cheaper cost structures.  Is similar flexibility available to legal educators?  Is it desirable?

Quite a while back, I wrote a post noting with interest the development of a new MBA curriculum at Yale.  Business schools aren’t constrained by accreditation requirements akin to those that dictate much of law and medical education, so Yale was free to choose a non-Harvard, non-Stanford path, which it has done. ( I have the general sense that the faculty and students at Yale are happy with the change, and that the model has been adopted at some other schools.)  What impressed me in part was the sense of curricular integration, and relationship to real-world behavior by managers, that informs the Yale model.   Yale did not simply make itself “glitzier” or “pricier” or “cheaper” or “faster.”  (Of course, I may be taken by Yale’s marketing of the thing.  Folks in business education might tell me that Yale’s approach is more rather than less similar to peer programs.)  What impressed me more than anything else was the speed with which the faculty adopted the new program, a speed that was informed by the school’s sense of competitive need.  Yale isn’t a top-tier business school and very badly wants to be.  To attract the best students and the best faculty, Yale decided that a strategy of product differentiation was in order.  And lo, though not without controversy – the dean who led the process left shortly afterward, and now runs some provocative management training at Apple – the school pivoted, and it pivoted remarkably quickly.

David Segal’s piece highlights pivots being undertaken by at least one new law school, pivots, like Yale’s prompted by a sense of competitive need.  But the pivot in question and elsewhere seems largely to consist of  “make legal education the same, but much cheaper.” It’s the Harvard curricular model — appellate cases, casebooks, classes organized by Langdellian disciplines — on a  shoestring budget.  Perhaps in his next piece, Segal will look at that curricular model itself, not in order to critique the Socratic method straw man, but to explore how the conceptual structure of legal education, inherited from Harvard more than a century ago, not only remains essentially unchanged (despite supplementing it with law clinics and “skills” instruction) but contributes to — even justifies — the cost structure that places like the Duncan School of Law perpetuate, even while they resist it.  And then Segal can borrow some of those Corner Office lessons, to illustrate why and how law faculties rarely, if ever, feel the need for competitive speed.

With apologies (for that last line) to fans and critics of Top Gun.

3 thoughts on “Innovation, Lawyers, and Legal Education

  1. I apoligize in advance if this hijacks Our Gracious Host’s blog for my own agenda; however, I think it a relevant consideration normal to the underlying argument.

    May I respectfully suggest that the problem — and there is at least a problem, if not more than one! — is much more closely related to the educational system’s response to the methods of regulation (ill-) chosen by the various state bars than it is to anything else?

    (1) The bar exam. When even the California Supreme Court explains, in a published opinion, that failing to understand the Rule Against Perpetuities is not malpractices because nobody understands it; and when one actually looks at the substance and pleadings in the birther litigation, and recalls that it has almost entirely been filed by licensed attorneys (even when proceeding pro se); and when one realizes that the structure of the first-year curriculum is a direct response to, and determined by, the structure of the bar exam (and recalls that, with the exception of anything relating to taxation, there is nothing on the bar exam outside of those traditional Six Pillars of Wisdom); and when one gets to the end of this multiple-independent-clause run-on sentence that is exactly parallel to the structure of 17 U.S.C. § 101’s definition of works eligible for treatment as works made for hire, without the explicit cross-reference to § 201(b) —
    How much choice does the ABA really have in how legal education is structured? Under prevailing theories of education, the way to reinforce those precepts purportedly learned in first-year courses is to spiral in to greater and greater detailed exceptions to the “general rules” presented in second- and third-year courses, so that bar review courses are really review by the time that they’re taken.

    (2) Refusal to acknowledge attorney specialization. With the exception of those of us in the patent bar (and, to a lesser extent and varying by state, the capital-punishment-defense bar and the bankruptcy bar), all lawyers are equal. Some may well be more equal than others, but it is not presumptively malpractice for an attorney with no experience in family law matters to take on a family law case without consulting a specialist in the area, so long as he/she makes an effort to self-educate that passes the laugh test. Similarly, transactional folks can handle criminal plea agreements… and litigators can stick their noses into complex international tax negotiations.

    I’m not arguing for certification or not; I’m merely pointing out that legal education necessarily reflects this reality, and that the uncertainty of what one will eventually get a job doing as a newly minted lawyer also impacts student choice of courses. As an example, we don’t offer a “certificate of initial practice base” or anything similar to that in “representation of tax clients” that requires Evidence, at least three tax courses, Business Associations, and Securities Regulation… let alone do anything similar for those in practice!

    And the less said about “barrister” v. “solicitor” the better. That is one distinction that I am not sure is an appropriate one… at least not in a regulatory mode. It is, however, an educational distinction that the various state bar associations overtly refuse to accept.

    (3) The chaos of state regulation of the bar in a national economy. Consider, for example, the “readiness to practice” of someone whose law-school education emphasizes understanding what is a majority rule, usually founded on {Federal + New York + Delaware + California + one other state depending on area} (as is common to all of the non-Federal casebooks out there); who then has to take a state-oriented bar exam over two days, the first day of which concerns the majority-oriented multiple-choice Multistate and the second the state-oriented essays; and who then has to deal with judges in practice with unpredictable whims of their own…

    Then there’s the problem of state bars sticking their noses into federal court litigation. California’s “three strikes” rule is, perhaps, the most notorious example. One cannot appear in a California federal court, even arguing purely federal causes of action on matters perhaps transferred from another court by the Panel on Multidistrict Litigation, for a third time in any five-year period pro hac vice without obtaining a California law license. This rule (which is part of the Local Rules in all four districts) is imposed by the California State Bar on federal courts. This rule also makes absolutely no sense whatsoever, particularly in light of the Supremacy Clause.

    (4) The “easy target” problem. The ABA is an easy — and, in many respects, deserving — target of complaints. It is, after all, composed of lawyers! On another appendage, it is also an agency-captured organization (it is dominated by rather-well-off lawyers, the majority of whom are defense-side when they have litigation backgrounds and securities-issuer-side when they don’t). On a third appendage, it has a long history of not tolerating dissent in the ranks and of not tolerating dissent among its committees; consider that its recommendations for judicial posts are never signed by a responsible committee member, whether favorable or not, whether unanimous or not… let alone any dissents from a majority recommendation.

    It’s a lot easier to blame an unaccountable body for one’s ills than it is a (theoretically) accountable one, like the state bar regulators that (at least hypothetically) will be influenced/directed by state Supreme Courts or other proxies. The ABA’s only membership qualification is a license to practice law somewhere, thereby giving one the imprimatur to pontificate authoritatively on all aspects of law everywhere. One could say the same about state bars when it comes to exclusively federal causes of action like copyright and patent law, but that would constitute revealing one of the dirty little secrets of law…

    * * *

    In short, the problem Mr Segal’s series has is that it has chosen an easy target that can’t effectively defend itself instead of the hard, more-responsible target that not only can, but will, vigorously defend itself.

  2. The structure of bar regulation in each state is a topic for many additional posts, which may or may not ever appear.

    One thought, though, regarding “the” bar exam. Whatever the origins of its structure — and I suspect that the first bar exams, at least the first exams that resemble today’s, were as much responsive to the core law school curriculum as drivers of it — today, the curriculum justifies the exam as much as the exam justifies the curriculum. Both of the following arguments are heard, explicitly, within faculties and between faculties and bar examiners: A school must teach Contracts, etc. and teach the subject in a certain way, because the subject is on the bar and is examined in a certain way. And vice versa.

    It takes relatively little imagination to figure out that the subject matter now covered in Contracts (including, in many schools, Article 2 of the UCC) could be taught and taught effectively in many *other* ways (other than through appellate cases, other than through a traditional casebook, other than in the first year, and other than with an end-of-course examination as all or even part of an assessment) — and that any of these alternative methods could prepared students as well as they are prepared today, or better, for the bar exam as we now find it. I don’t use final exams for any of my courses. Yet my former students have reported to me that my writing assignments prepare them extremely well for the structured, time-limited essays on bar exams.

    In other words, bar examiners may be as old-fashioned and beholden to tradition and self-preservation as any interest in the legal profession. But we have met the enemy, Pogo, and he is us.

  3. Acknowledged… but it also indicates that I wasn’t clear enough with my comment on bar exams.

    Bar exams do not act to keep the “unworthy” out of the bar. And I’m not just referring to the ethically challenged, either; there are a lot of “lawyers” out there who have not assimilated the difference between “rule of law” and “ideal rule,” nor the concept that “procedure (not just Civ Pro) matters in law.” By pretending that each bar exam question concerns a single “subject” — especially, but not only, on the multistate portions — the bar exam does a disservice to all.

    Bar exams do act to keep some “worthy” would-be counsel who have difficulties with certain forms of test-taking out of the bar. I can name three Order of the Coif members who failed bar exams… including Professor Sullivan, among others.

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