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

This is the last in a five-post series about how to advance a large-scale, integrated conversation about the future of legal education, as a foundational project that links up with equivalent questions about law and the legal profession. [Part I, here] [Part II, here] [Part III, here] [Part IV, here]

The previous posts have raised questions about the urgency of the project, about the identities of potential participants, and about the character of the topics to include. This post concludes the series.

What About Research and Scholarship?

I’ve left this topic for the end in order to raise it myself rather than respond later.  In earlier, smaller conversations about legal education, I’ve learned that “what about scholarship?” is either a key objection to the sort of conversation I propose (as in: “the entrenched Langdellian mass production model of legal education does a nice job of reserving to me a lot of time to produce high-impact normative legal scholarship”), or a key mode of indifference (as in: “the scholarly functions of legal education are of little concern to students, practicing lawyers, or future clients”).

Research and scholarship are parts of the current environment.  To me, that fact means this is yet another complex topic with overlapping sets of functional premises and audiences and constituencies rather than an excuse to bash or dismiss interests and participants.

Law professors of the moment are professors, which means that they are expected to research and to write.  Many of them, anyway.  Law teachers often self-select into academic careers precisely because they want to research and write.  Some teachers don’t – they don’t opt in for that reason; they don’t want to research or write.  Many in the current system have mixed motivations.

Instead of criticizing (or embracing) that aspect of the current system, can it be turned into an important part of the forward-looking conversation?  How do those preferences, and the resulting scholarship, matter – if at all?  How (if at all) should a new system shape and/or reward a different set (or sets) or preferences?  What’s the scholarship good for, to whom, and who should pay for it and how?  Legal scholarship isn’t an undifferentiated domain (or it need not be); how might those questions be answered differently with respect to different sorts of work?  Should research and scholarship be produced by the same people who teach, in the traditional (by the lights of the latter 20th century) teaching/service/scholarship triad?  This isn’t a search for a business model; as with the questions posed earlier, it’s a search for a sustainable vision.

Lots of law professors produce scholarship that, like much academic writing in generally, is meant primarily to be read only by their colleagues. Lots of law professors (many of the same law professors) produce scholarship (often the same scholarship) that does what academic research and scholarship often do: It moves the knowledge and policy plates of the world mostly incrementally and tectonically.  Only rarely does it affect the environment in volcanic or seismic bursts.   The field covered over the previous four posts may be read to suggest or encourage more action than that, to expect that the action take place more regularly and more quickly, and to prioritize the interests of living, breathing people in the classroom and the courtroom and the community.  Those posts may be read at least implicitly to disparage the proverbial and sometimes meandering life of the mind.

So, I want to be sure that the topic is explicitly on the table.  Personally, I’m a big believer in the research and scholarly mission of academic lawyers.  What’s more, I tend to write with longer time scales in mind; I’m often at the more conceptual end of the scholarly spectrum. But my preferences, of both sorts, simply beg the question, or questions.  Important micro conversations about legal research and legal scholarship are in many respects microcosms of macro conversations about the purposes of law schools, law, and the profession.   What’s it for? Who should participate, who should benefit, and how, and when? How should it be supported?  Don’t miss the implied macro questions about disciplinary boundaries (what’s law? what’s history? what’s literature? what’s sociology or economics or political science or engineering, computer science, or design?) and about institutional formations (what collections of subjects belong in a “law school” and/or in some other school or department or even not in a university at all?

Law professors themselves have been asking some versions of those questions for roughly a century. There is no reason to expect them, or anyone else, to stop now. But both their antiquity and their unresolved status are, I think, important indicators of the fact that none of these questions have any fixed answers. There is no optimality here. There is only the hard work of developing the pragmatics of a system or systems best tuned for the roads ahead.

I’ll end with this:

I haven’t answered the macro questions that I described in the very first part of this series of posts. I can imagine someone having read this far and still wondering, “but what’s his vision?” It’s the typically defensive law professor reaction: “So what?,” waiting to be given the payoff rather than signing on to help with the lifting. I’ve put my own vision of the future out there on line (twice, in fact, and both versions are sitting on SSRN). I’ve written about change management in legal education from the point of view of the individual teacher rather than from the perspective of the field as a whole.  This time,, it’s different. I’m pleading my own case only in the sense that I’m floating an invitation to participate in a shared deliberation of a sort that rarely happens, and of a sort that does not seem to be happening otherwise right now.

My hope is that these posts contribute to the start of a bigger, continuing dialogue.  Hopefully, I’ve put enough on the table in terms of questions and related provocations to generate one or more sustainable follow-on conversations and perhaps more. Some, I hope, will be face to face; others will be virtual. (Anyone interested in contributing should contact me directly.)  No doubt some people – perhaps many – will disagree with some of what I’ve written. My premises are wrong, or my framing of themes and questions is incomplete, or I’ve overlooked some massively important topic. (The academic in me anticipates the objection that I haven’t cited everyone. Or anyone./*/)  That’s OK.  As I wrote at the outset:  The initial three steps are to develop the sense of urgency; to build the coalition of participants; and to develop the vision. Or visions.

You can’t predetermine the vision, then sell it to the participants.  That’s why I’m not peddling a vision here. Visions both emerge from and are worth what they look like in practice.  The visioning and change management effort that I have in mind is worth the time invested if it builds on and produces actionable outcomes. I have a few outcomes to offer on my own, in the form of what I’ve actually put into practice myself, in my little corner of this world. I am irrevocably committed to few of those.

Finally, and despite the occasionally grim tone of these posts, I’m more optimistic about the future than one might otherwise think.  I do believe that the present pathways of legal education run substantial risks of failure or worse, irrelevance, based on their lack of utility.  I also believe that our collective power to shape our own futures – and that of law and the legal system – is immense. I’ve tried to make the case that the time is right. Agree or disagree, circle back to me with comments, or run with all or any part of this on your own, with friends and colleagues. Or both.


/*/ In the interest of flow, I haven’t cited sources or references. For anyone who wants more, I’m happy to go back and supply a few pointers. I’ve learned a lot in conversation and reading over the last decade from many, many people. Some are well-known members of the legal education industry; some are well-known critics of that industry and/or of the legal profession. Some are futurists; some are theorists; some are researchers; some are practitioners; some are not trained as lawyers. Many are multi-talented superheroes. Still others are simply friends and colleagues with whom I’ve shared the occasional meal or drink off and on for decades, college friends and law school friends and family friends, with different stakes in the legal ground. What I’ve learned along the way is that the profession is full of people of enormous goodwill, despite their differences. Join us. The water is warm.