For a New Year: An Invitation Regarding Law, Legal Education, and Imagining the Future, Part I

Modern law schools were invented before modern law practice emerged.

I mean that statement as the first part of an invitation, rather than as the first part of an argument. The invitation, below and in several posts to follow, is to participate in conversations about the future of legal education in ways that integrate rather than distinguish several threads of concern and revision that have emerged over the last decade.

Conversations about the future of legal education necessarily include conversations about the future of law practice, legal services, and law itself. Some of those start with the somewhat stale questions:  What are US law professors doing, what should they be doing, and why? Those questions are still relevant and important, but they are no longer the only relevant questions, and they are not the only places to start. What about other legal educators, meaning those who teach and train in legal services worlds but who don’t teach the professional practice of law or the delivery of traditional legal services? What about those who are involved deeply in the production and distribution of law, legal services, and legal information but who are not, themselves, lawyers? Why start with current teachers; why not start with current or future students, or current or future clients, or current or future institutions, or current or future sets of values? Expand the communities of interest and identities of potential participants not only beyond elite US law schools, and not only beyond the private law firms that constitute BigLaw, but also beyond the US and beyond North America.

The invitation goes out, in short, to a much broader audience than US law professors, and it is framed in broad but pragmatic terms. By design, it is an invitation to action, rather than an invitation to more scholarly or research-oriented dialogue.  I am sending it out on my own in the hope that there are other people out there who, like me, have been chipping away at legal education innovation in small parts for a long time, anticipating – or just speculating – that small contributions might scale or build toward a more substantial new form and vision of law and legal education.  That hasn’t happened.  Yet.  My hope is that a group of people with similar tendencies to speculate might self-organize around shared interests.

This post consists largely of setting out some premises and background. Four posts to come advance the agenda. The theme is change, and how to move beyond local reforms to the possibility of larger-scale rethinking. Is it possible to reconceptualize an entirely new system of legal education, or set of systems, and then to set about enacting it? Why would one do that? What would the results look like? What would the process consist of?

Change management experts routinely talk about a standard set of steps associated with diagnosing the need for institutional change and building plans to guide transitions. Those begin with cultivating a sense of urgency; identifying the participants in developing a vision of the future (the coalition, in change management lingo); and shaping and documenting that vision. Communication and implementation follow.

I’ll follow that template, though not always precisely in the standard sequence. For obvious reasons, none of this is easy. There is no reason to suppose that it is more complex in the context of legal education than it is in any other higher education context, not-for-profit context, or business context. But change management for legal education has its own distinctive challenges. First among those likely is this: The most salient feature of modern US legal education is its antiquity rather than its complexity. US law schools remain anchored in a conceptual framework that is close to 150 years old. Modern memory literally runs not to the contrary.

Start with urgency. This is a brief overview, mostly just to set the stage. A lot of lawyers and law professors and other participants in legal systems are already well-versed in these challenges and what they seem to add up to. A lot of lawyers and law professors have done the math differently or are persuaded that current challenges are less problematic. I doubt that I’ll persuade them otherwise, and I’m not going to go to any lengths to defend every proposition that follows.  This is neither a journal article nor a brief. But narrative flow suggests that I make the basic case.  This post will put the matter generally.  Later posts will get more specific.

Here’s the general point. For several different, intersecting reasons – the economics of law practice, the economics of higher education, developments in information technology, international influences, changes to government institutions and practices, changes in the public sphere, changes in social structure (and/or revealed attributes of social structures), changes in the design of professional practice – many quarters of the legal profession shared a deep sense that something critical is upon us, that something critical is upon us particularly as law schools and law teachers, and that something critical is emerging at scale, not just in local classrooms. What’s the point of going to law school? What’s the point of practicing law? What are we trying to teach?

Today, none of those questions has a universal, self-evident, comprehensive answer, at least no answer that’s concrete and practical enough that helps us understand whether our educational and training systems are set up well. The idea of a “new mission” or a “new vision” for law schools is plausibly in the air; lots of new things are happening, or at least lots of them appear to be happening. But the character and trajectory of reform is disputed and divided, and little of it is systemized either conceptually or operationally. Some parts of the legal profession are changing dramatically and quickly. Others are changing little or not at all.

US law schools, for example, aren’t changing themselves much.  There is a fair amount of institutional innovation at the level of the individual school and/or the individual teacher. Few of those innovations spill over to other schools; few of them spill over in ways that change the institution in essential ways. For example, clinical legal education in the US is now decades old, but clinical law faculty at many law schools and across US legal education as a whole are still marginalized culturally and organizationally. The history of legal education teaches that institutional change is slow and incremental at best. Innovation and experimentation are the exception rather than the norm.

Perhaps productive incrementalism is OK; perhaps it’s enough. Looking forward, law school applications and enrollments may go up a bit or down a bit; employment patterns for new graduates may continue to diversify (best outcome) or stagnate (somewhat worse). The long-term value of a current law degree can be modeled in a way to make the out-of-pocket and opportunity cost of attendance reasonable relative to the expected benefits, at least using historical data. University administrations may become steadily more accepting of the need to underwrite the cost of law schools, or modestly less so. Overbuilt and truly marginal law schools will struggle and possibly close – some have already. But on the whole, law schools are “prestige” units to US universities in ways that are unlikely to change. Individual faculty members have long and mostly successful histories of adapting tried-and-true teaching and training strategies to organizational, technological, and cultural change.

I’ll call that pattern “riding it out suboptimally,” and that’s probably the most optimistic forward-looking view of the matter.

Here’s a less optimistic one. To borrow part of a line from Twelfth Night, even if law schools aren’t changing themselves, law schools may have change thrust upon them. Many law schools operate today in a delicate post-2008 equilibrium, eking out an existence supported by a lull in enrollment declines that mollifies a patient provost but that doesn’t account for continuing uncertainty and possible coming traumas in the private law firm market. Over the next decade, enrollments may take another large hit; the structures of private law practice are liable to undergo substantial revision.  Technology may overtake labor markets (as well as other things) dramatically, compromising placement and career development options in other ways. Even absent such a revenue catastrophe, provosts and boards may lose their patience with imbalanced law school budgets. Systems that supply student finance may change or even disappear. Despite the prestige of law schools, to university administrators law schools are small and administratively burdensome; their graduates are often mismatched with relevant labor markets; and their alumni don’t give much back. As securities lawyers learn to say, there can be no assurance that the past persistence of law schools will guarantee their future thriving, or the thriving of their graduates.

Urgency is suggested not only by these “external” pressures but also by “internal” ones; there are problems of substance but also problems of process. What if the incrementalist institutions of the profession are the problem, rather than the solution? The fact that people of good faith and good will are doing their jobs, in role, may lead precisely to the barriers that need to be evaluated critically. Ordinary law faculty governance is often consumed by rent-seeking, turf-protecting, tenure and promotion goals, and a culture of regulatory compliance that consists largely of “make the minimal changes to needed to satisfy the accreditors.” The exercise of deans’ authority, such as it may be, is always subject to short-term demands, such as budgets, bar passage, and placement rates. ABA and AALS reviews of legal education are intended, almost by design, to avoid re-thinking the foundations of the current. Committed participants outside the current educational system – legal services providers and consumers, law firms, tech developers – often express “disruptive” dispositions in the interest of client service, but that attitude risks promoting educational innovation based on faddishness, trendiness, and capture of educational processes by rent-seekers. We face the Scylla of “Legal education rests on enduring, unchanging intellectual, analytical, and organizational foundations, which evolve and adapt organically via standard institutional practices” and the Charybdis of “Legal education needs to catch up with radically changing, technologically-determined (or globally-determined, or etc.) patterns of law practice and legal services.”

Part II, tomorrow.