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

This series of posts concerns the future of law, the legal profession, and legal education. [Part I, here] [Part II, here] [Part III, here] It emphasizes the relevance and significance of independent conversations on the topic among legal educators; the need comprehensively to integrate several siloed conversations; and the role of individual law faculty and others in this project, in addition to the usual list of deans and other professional leaders.

The intuition driving the posts is this. If done well, imaginatively and carefully, then extending, distilling, and combining conversations in each of those five domains described in the last post should lead not only to conceptual frameworks for action but also to actionable guidance itself, drawn from multiple perspectives and looking to multiple audiences. A new constitution for legal education should be more than values and aspirations. It should be something closer to a strategic plan for future strategic planning at the local level. What do institutions and strategies and practices – plural, not singular — actually look like, and to whom?

This post concerns the possible coalition of actors. Who should participate in mapping this out, and what concerns, opportunities, and barriers are theirs to explore?

1. Future lawyers.

What do law students / prospective law students / recent law graduates think? The target and participant audience here also consist largely of pre-law advisors, admissions and financial aid professionals, and career services professionals. What should they be thinking (and what questions should they be asking) that they aren’t? Just about every law professor today hears some version of “should I go to law school?” from family, friends, and more than a few undergraduates. That’s an important and meaningful question, but it’s flawed in this naked form, and so the answers are inevitably incomplete.

The question is usually asked with reference to the modified Langdellian law school of today, and/or with reference to the legal employment market that’s visible right now. The question is usually not asked with reference to what the career of a new law graduate is likely to look like over the next 50 years. What can we say now about the future of law and law school that distinguishes law from other professional and career options? I doubt that law is any less uncertain, but are there ways in which the uncertainty associated with a legal career differs from the uncertainty associated with other careers? Is that information something that we, as teachers and professionals, can use productively?

2. Law faculty and other law teachers.

The question here is not what individual teachers should do but rather what those who want to can do, and how. Law professors should do what is right and best for their students and, by extension, for the profession and society, whether they are full-time classroom, clinical, or legal writing faculty. (The siloed character of contemporary US legal education, which often leads to rent-seeking both inside and outside individual law schools, is an important problem in itself.) Does that mean adapt and evolve, or stay true to time-honored teaching practices?

Accepting that law deans often have limited power to effect change, and looking to faculties, it is obvious that faculty preferences for change, willingness to change, and the skill set associated with change are distributed unevenly on a given faculty. Acting as a faculty at a law school is rife with collective action problems. For those with a “change” mindset and skill set, bureaucracy, delay, legacy institutional and political commitments, ideological and personality conflicts all pose barriers to action. Acting individually or in small groups, many change-oriented faculty believe that they lack the tools or the agency to adapt teaching and curricula meaningfully to new professional worlds, or, if they have agency within their own spheres, lack the tools or the agency to scale their work effectively by sharing it with others.

Yet there are ways to move forward. Should one move silently and cautiously, or publicly and provocatively? Should one ally with internal fellow-travelers or build support and reinforcement with colleagues elsewhere? What part or parts of the change equation should one engage with, and what part or parts of the stay-the-course approach are worth investing in? What does the law faculty of the future even look like, in terms of training, expertise, status, and contribution?

And what about the contributions of law teachers who are not associated with US law schools, or who are not associated with law schools of any sort? My instinct is that they are in the tent, so to speak.

3. Professional leadership.

Including students and faculty is a more or less “bottom up” strategy. More conventional and traditional change management in the legal profession is to look for change developed and promulgated via for “top down” interest-based or “stakeholder-based” leadership. That includes the American Bar Association; regulators in state bars; law school deans; managing partners of law firms; leaders of the bench; corporate chief legal officers and general counsel; insurance carriers; executive directors, presidents, and board chairs of leading nonprofits and NGOs. They and the entities that they work for and represent may have direct purchasing power and/or regulatory authority that can move markets in various ways, especially over longer time frames. They have invested a lot of time and effort in “legal education reform” efforts, particularly MacCrate and Carnegie.

The concern is that experience over the last three decades, and especially over the last 15 years, suggests that much of their influence has been exercised, for better or worse, to moderate or stifle adaptation and change rather than promote it. So as not to re-commit the sins of the past, the “top-down” perspective to include here should include not only traditional players but also individuals and organizations who have not been part of the traditional leadership-driven conversation. The point is that law and legal education are parts of larger systems; re-thinking law and legal education means thinking inclusively about those systems.

Consider, for example, university provosts and their equivalents (in universities without an office of the provost, the officer to whom the law dean reports). In a small number of cases, former law professors and former law deans serve as provosts or as presidents/chancellors. In those cases, it is reasonable to assume that they possess a useful working knowledge of legal education and how it is like and unlike other academic disciplines and professional schools. (That doesn’t mean that they will necessarily go out of their way to help out the law school; law deans-turned-provost or president may be motivated to treat their former colleagues with extra equal treatment.) In many cases, the provost comes from a different part of the university and has no way to understand the strengths and weaknesses of the law school – except in conversation with the local law dean.

4. The legal tech (and law-business) community.

Legal tech, legal operations, and legal services providers appear to be the only parts of the legal profession writ large that have upward, growth-oriented trajectories in terms of revenue and hiring. Executives, managers, developers, and investors in these communities are critical parts of this broad conversation. That’s not because they’re experts in visions of the future of law; rather, it’s because they often are not and can thrive as economic engines because they have little need to pay deep attention to plural values. They often appear to have little to no understanding regarding how their planning interacts with the legacy professional structures that they are (nominally) trying to “disrupt.” “Disrupting” a profession and a related system of professional education and norms is not like “disrupting” a market that produces and distributes widgets.

It’s worth emphasizing that despite the practical importance of this community, its growth exposes nnot only mismatches between the needs of that community and the teaching and training norms of legal education, but also conflicts regarding values and goals. Traditionally-minded law schools need not and should not automatically defer to the interests of legal tech or legal ops. How to negotiate those intersections will take patience and care. The profession and its related structures have cultural and institutional inertia built up over centuries. Earlier in this series, I emphasized the relevance of the past, not because of the value of history as such but because the persistence of past practice may – at times – suggest present and future value(s). Human practices matter; human values matter, too. That inertia will not simply melt away in the face of cheaper, nimbler competition, even if that inertia means that current professional institutions – including those critical values – may need to be recalibrated somehow in light of modern needs.

Recall the five themes from Part II. Transitions will happen in institutions and practices oriented to each of those themes. Will they happen herky-jerk, or smoothly? Indifference in the legal tech/legal ops world (at worse) or naivete (at best) with respect to how their innovation impacts the people on the ground – clients and communities as well as lawyers — bodes ill for the long-term health of the justice system, including legal professionals as well as communities, clients, and citizens. It may also bode ill for the long-term sustainability of either legal tech, or law itself. Or perhaps both. If an “artificially intelligent” service can write a better brief (and that functionality is getting better), and an “artificially intelligent” service can adjudicate a dispute (those services are already operating, in places), then why have lawyers at all? That’s not a rhetorical question.

5. The demand / user / client side.

Categories 1 through 4 above each offer a flavor of the “supply side”: Lawyers, service providers, and the institutions that produce, house, and sustain them should look critically at the design of their own institutions. A newly integrated, constitutional vision of law, legal education, and the legal profession should spend at least an equivalent amount of time considering the interests, goals, and needs of the individuals, communities, and institutions that use law and legal services – that need access to them, that depend on them, that assume their existence in order to achieve their own aims. This is a broad and pluralistic perspective of its own, and in practice it should be broken down into more focused, more clearly defined targets. Lots of people and lots of institutions and organizations need law and need lawyers. Society as a whole needs lawyers who examine it critically, not only lawyers who advance their clients’ causes.

But not everyone who needs legal services needs a lawyer. Not every mode of legal services delivery must involve “law” or person-to-person counseling in a classic or humanistic sense. (At the same time, the alienating character of modern digital platforms puts a tremendous premium on the non-analytic services offered by human lawyers. This is why emotional intelligence is such a hot topic in the bar, and among some law professors.) It has long been true that adjudication and dispute resolution are often the tails that wag the legal services and legal education dogs. As much as people (individuals, small companies, large companies, non-profits, governments) need access to courts, a huge number also need access to effective, reliable, and trustworthy planning techniques. In writing about economic development issues, I’ve used a baking metaphor sometimes to distinguish between the “divide the pie” function of lawyers and the “grow the pie” function of lawyers. The legal profession should train, support, and reward both types of legal bakers.

6. Global interests

Last but by no means least is the global legal community itself. The jurisdictional barriers that have divided the community of legal professionals in one US state from all of the others, replicated on a country by country scale, have been falling away in practice as matters of substance if not necessarily matters of form. In some countries, barriers limiting business collaborations between licensed lawyers and other professions have been eliminated or nearly so. Even in jurisdictions that retain traditional lines between law practice and business practice, the largest employers and providers of legal services are often not traditional law firms, but organizations within larger consulting practices. Even in US states, a growing number of “legal” functions have been removed from exclusive control by the licensed bar.

In short, the economic and organizational changes facing the US legal profession are neither unique to the US nor caused by pressures and interests that are organic only to the US. And yet: the long-standing, 20th century American project of exporting the model of the US justice system and related systems of professional training and practice to other countries — essentially, exporting the Langdellian model as a tool of democratization and law reform – still has a lot of supporters. It’s been effective. An integrated conversation about the future of the law and lawyers should include teachers and practitioners and leaders and regulators from outside the US as well as within it, subdivided, as the client/demand side audience should be, in appropriately narrow and concrete ways.

Part V concludes, tomorrow.