Bringing Change to the Law

Change is one of the themes of this rebooted blog.  In law, legal services, the legal profession, and legal education, what does change look like?  Why and how is change happening?  How can we accelerate the pace of needed change? 

What does change management in the law look like, if we want to produce better lawyers, more nimble and flexible law schools, improve access to justice, expand the range and impact of legaltech, and more? This is innovation and creativity and disruption; there are models and encouragement for all of these things. 

Today, I pause for stability and constancy. The questions are not:  how and why do things change? Instead, the questions are:  how and why do things stay the same? Inertia and a status quo bias are not sufficient answers.  Just as it is important to get into the details of how change happens, it is important to get into the details of how stasis happens. And in the latter case as in the former, it is important to build some models and theories, so that we might eventually be better at pushing policy and strategy levers in one direction or another.

There is a new, relevant case study to share:  the student-edited law review.  In place of “why don’t law schools adapt to produce new graduates who are well-tuned to thrive in the new era?,” one may ask the smaller but related question:  why do student-edited law reviews persist?  On this old question, there is new research.

The terms of the law review debate are familiar.  On one side, the bench and the practicing bar often regard law reviews as academic mush, useless in practical law reform efforts, useless in helping judges understand the law, and useless in helping practitioners solve client problems.  The very idea of academic scholarship in law, as it is embodied in law reviews, is unhelpful.  On a different side, faculty colleagues elsewhere in the university (and, outside the US, faculty researchers in law as well) regard US law reviews generally as academic trifles, indicting them for the absence of peer review.  On a third side, since the early days of the open Internet in the mid-1990s, amateurs and professionals alike have urged the abandonment of the archaic editing and publishing practices associated with law reviews. If journal content might simply be published online and made freely available to all, that would make everyone’s life easier and better.  Wouldn’t it? 

In short, when it comes to research and scholarship, US law professors are regarded as self-indulgent by their former students, intellectually undisciplined by their university peers, and stuck in the mid-20th century by futurists (who, they would be quick to remind us, are right here, right now).  We’re triple threats.

Despite the withering criticism, student-edited law reviews, by and large, do not change. They might become more practical and useful.  Faculty might take them over and make them peer-reviewed.  They might publish work that is less law-ish and more multi- and trans- and inter-disciplinary.  They might drop their nominally proprietary fixation and give over to fully open, free, online distribution. In bits and pieces, much of that has been happening, of course, but only in bits and pieces. On the whole, law reviews still live up (or down) to the criticism; they have not changed. Why not?

For an updated explanation, I draw your attention to a new journal article in the Law & Society Review (note: peer reviewed) by a former lawyer turned PhD sociologist named Daniel Kluttz:  The Path of the Law Review: How Interfield Ties Contribute to Institutional Emergence and Buffer against Change.  It’s online here, for free: https://onlinelibrary.wiley.com/doi/full/10.1111/lasr.12393

The paper is a work of sociological interpretation, trying to work out a more sophisticated understanding of institutional persistence by getting into the weeds of one particularly and peculiarly persistent institution. It uses a qualitative case study of the student-edited law review as its central case.  Stripped to its essence (necessarily but inevitably somewhat unfairly), the paper argues that the phenomenon of “the law review” can’t be treated in isolation; that as a set of practices (student membership, article submission, editing, publication, uptake by law professors and others), the law review occupies a key part of a self-reinforcing, path dependent “field.”  Rather than persisting for no apparent reason, the law review exists for quite understandable reasons. The forms and practices of the law review help to justify lots of other apparently unexplained features of a large, complex, enduring, and socially quite important thing:  law itself, as a domain of professional practice and knowledge that exists in related forms both inside and outside the law school and inside and outside the university.

The law review both is what it is (a century-old hierarchy and prestige reinforcing and reproducing entity within higher education and outside of it, as a foundation for the early stages of a lawyer’s professional development) and what it is not (“merely” a digest of case reports or legal news, in service to the practitioner). It is too much to argue that the law review as an institution is somewhat a fixed or necessary part of the legal profession, at least in the US, but it is not too much to conclude that the law review persists as part of a fabric of enduring educational and professional patterns both inside the law school and outside of it.

Please read the paper.  It’s relatively free of the jargon of academic sociology, and theorizing and modeling aside, it’s a highly interesting account of something that is familiar to virtually all US lawyers, whether or not they were members of law reviews themselves.

The takeaway from this is not limited to law reviews; it’s a takeaway about legal institutions and particularly about US law schools.  And the takeaway is not that change does not happen or cannot happen.  We know that it does, and that it can.  Even in law schools.  The takeaway, nonetheless, is something that we often wish were not true even while we know it, usually, to be the case. Change, particularly change to the patterns and cultures of an institution, is really, really difficult, particularly when one is trying to bring change to an institution that is part of a matrix of larger, related institutions, and all of those institutions are wired together in relationships that are long-standing, only partly functional, and heavily symbolic.

To those of us in the bring-change-to-the-law business, in short: have fortitude and patience, and play the long game.