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

In the first post in this series [Part I, here], I tried to suggest – briefly – the case for urgency as the foundation for a change-management inspired conversation about the future of legal education.

Based on that case, my suggestion is the following. It’s the second part of the invitation promised at the start of that post, which highlighted the time sequence of innovation in US legal institutions.

Across the discipline of legal education and across law schools, and without the blessing of appointed and delegated leaders, legal educators should act on their power to define, advance, and implement their own visions of law and legal education, in ways that make the changing conditions of the legal profession and its existing institutions relevant but not determinative. Institutional leaders and technology developers and others are legitimate and important participants in processes of developing those visions, but they don’t have – shouldn’t have — priority of place or time or interest. Those visions may well consist of a new and distinctive set of institutions and programmatic implications: Who teaches? What is taught? Who is taught, and how? Where does the teaching take place, and what outcomes are intended or anticipated? What is studied in other respects? How are these systems supported, sustainably? How do these systems fit into other systems of education, practice, and ideology, locally and globally? These are questions simultaneously about values and goals, about identity, about economics, and about institutional, social, and cultural payoffs.

Whatever legal educators do, or whatever they should do, there is little reason today to confine their efforts to internal, law faculty-specific or school-specific reform or to officially sanctioned leadership projects. Those aren’t bad things to pursue, of course. But my view is that they’re not enough, and my invitation to conversations is based on that premise. We should not simply try to diagnose the future conditions of “the legal profession,” whether those are eternal or evanescent, and then aim their efforts at reform, re-thinking, or resistance in those directions. Conversations should be inclusive, collaborative, and ground-up: Not only who are we, but who do we want to be?

To a significant degree, the 20th century legal profession looked and acted like it did because the practicing bar responded to an equivalent sort of vision, expressed in what law schools were doing.

Modern Harvard Law School came first, during the 1870s. “Harvard Law School” means both the school itself but also “Harvard Law School” as metonym, standing for the collection of curricular, pedagogical, and scholarly practices and beliefs that were adopted, negotiated, and extended by law teachers at Harvard and elsewhere. Harvard president Charles Eliot; Christopher Columbus Langdell; and Langdell’s colleagues locally – and eventually nationally — shared a vision of university-based education and legal education in that context. Rightly or wrongly, but powerfully, Harvard Law School and its curricular and pedagogical forms purposely expressed that vision and its values.

The large, elite American law firm came second, around the turn of the 20th century, as the products of the Harvard system merged with the needs of newly industrialized and financialized America. The predecessor of Cravath, Swaine & Moore predated the Langdellian law school, but the Cravath *system* emerged later. The consolidation of Harvard’s hegemony took a while, as did Cravath’s, and their respective paths were bumpy. But in broad outline, that sequence is the story of modern American law. The American legal profession and much of the American legal system spent the 20th century negotiating with the Harvard template. Law firms learned to make good use of the products of Harvard-style training. The law schools of the time responded, in alliance with the ABA and the AALS (and exercising power through the organizations), tuning their programs to serve the growing law firm market (via enrollment protocols) and later to align themselves with post-WWII public and institutional expectations regarding higher education (via building scholarly missions). The bar responded in turn, and so on.

Sociologists might call the result a case of “dual institutional structure.” The practices, forms, and ideologies of legal educators form one institutional pillar, and the practices, forms, and ideologies of the practicing bar form a second institutional pillar. The dynamics of institutional evolution operate independently in each case, and they operate independently for functional, purposeful reasons, rather than as an accident of history, even while the two institutions “speak” heavily to one another.

The initial institutional independence of law schools, as couriers of legal education and of the values of the profession, is worth emphasizing. I believe that equivalent institutional independence is possible today. Law schools, law teachers, and legal educators generally have substantial power to define themselves. That enables asking macro questions about change as follows: How should “law” (and perhaps its cousin, governance) contribute distinctively to modern society and culture; what individual and institutional forms should those contributions take, and what is the place and form of legal education in those systems?

The Langdellian curricular and disciplinary model is still so entrenched in today’s law schools and in the heads of several generations of active lawyers that Langdell is, for all practical purposes, modern law’s founding father. It is possible that we have another founding moment before us. It’s foolish today simply to assume the legitimacy and virtue of the institutional forms that he bequeathed to us and that are now largely baked in to the hierarchies of ABA accreditation, AALS membership, and bar admission: the 3-year professional (JD) degree; the effectively mandatory first-year curriculum and an overall curriculum dictated by subject matter categories; comprehensive end-of-semester or end-of-academic year examinations; analytic rather than technical training as the distinctive hallmark of legal education. These are valuable, or not, via their merits rather than via their antiquity. For example, some law schools now permit applicants to rely on the GRE rather than the LSAT. Personally, I think that’s a good thing. When those students enroll, the vast majority of them will have an educational experience that resembles The Paper Chase more than most of us would like to admit. Is that wise?

The problem with the future, of course, is that it’s difficult to predict. I don’t propose to invite anyone to a conversation that is avowedly or simplistically futuristic. Our imaginations should bold and broad, holding on to the past and past practice to the extent that doing so serves our futures (plural), but not simply because we’ve doing things that way for decades. There are bigger targets in the sights of today’s legal education reformers. I don’t need to create those targets; others with great energy and vision have been pursuing them in bits and pieces over the last 10 years – at least since 2007/2008 – and in some cases longer than that. The problem that I see is that they have been pursued largely *as* bits and pieces, independently of one another.

What if we could, in effect, convene a constitutional (small c) convention to frame a new conceptual charter for legal education that integrates these things? Who would participate, and what would they talk about?

Part III, tomorrow.