In Our Hands:
The Future of Law

FLW

The following was first published on Friday, May 9, 2020 in the “AALS News,” the newsletter of the Association of American Law Schools, under the section heading, “Faculty Perspectives: The ABA Commission on the Future of Legal Education.”

Faculty Perspectives is an ongoing series in which AALS presents authored opinion articles from law faculty on a variety of issues important to legal education and the legal profession. Opinions expressed here are not necessarily the opinions of the Association of American Law Schools. If you would like to contribute to Faculty Perspectives or would like to offer a response to the opinion published here, contact AALS.

The ABA Commission on the Future of Legal Education: Changes and Plans

By Michael Madison, Professor of Law and John E. Murray Faculty Scholar, University of Pittsburgh School of Law.

To paraphrase something often attributed to Dwight Eisenhower: Plans are useless; planning is indispensable. Legal education specifically and higher education generally have survived and even thrived over the last century largely via path dependence and opportunism. We are confronted now by a crisis that likely will change everything about those worlds and more, for a long time to come and well beyond the impacts of immediate traumas. The time has come for planning, instead.

I received the email inviting me to write this column in mid-March, as all of us—schools, students, and communities—were in the early days of crisis adaptation. I’m writing in mid-April, as our initial sense of panic has receded slightly and as we start to confront the full contours of the challenges to come. Change at both large and small scales, already a necessity for legal systems and legal institutions, has taken on new salience and new urgency. Paraphrasing Malvolio in Twelfth Night, we are not born to change. We have not achieved change. We have change thrust upon us. We have been reacting. We now face a critical opportunity to plan.

Right now, many law faculty, like many throughout society, don’t have that opportunity. Instead, they are learning important but mostly improvised lessons about how we and our students can do what we do differently, and maybe even better. Right now, many of us are struggling. Our paths are bumpy at best. But in time, we can and should build on newfound flexibilities.

If we imagine choosing change rather than only responding to change, then we face broad, difficult, compelling questions: change what, change how, and change why? These questions are not new. The moment to start answering them is unexpectedly upon us. We may start with the better impacts of our new technology-enabled and distance-enforced practices, but we shouldn’t stop there. Improvisation reveals opportunity and exposes inadequacy. What do we want better and best to look like for law and legal education, and how do we get there from here?

Enter the ABA Commission

Among my other emails that day in mid-March was an announcement of the release of the Report of the American Bar Association Commission on the Future of Legal Education, titled “Principles for Legal Education and Licensure in the 21st Century.” The timing couldn’t have been worse, in the sense that almost everyone with an immediate interest in the contents of the report was focused on COVID-related matters instead. But the timing may also be unexpectedly apt. As we look ahead to coming out of the pandemic and look toward a radically changed world, the report offers some critical guidance to those who want to plan for the future.

Long-awaited (the commission was appointed in mid-2017), the report represents a distinct break in form and tone compared to its most recent antecedent, the 2014 report of the ABA Task Force on the Future of Legal Education. The 2014 Task Force report was deliberative, sober, and long (more than 40 single-spaced memorandum pages). It was a model of care, restraint, and professional caution. By contrast, the 2020 Commission Report is energetic, urgent, and brief (a dozen pages, formatted as a plan rather than as a memo). The earlier report asked: Is now the time to act? The present report says: It’s time, and here’s how.

A Brief Overview of the Commission Report

Any reader of the 2020 Commission Report should take away one message above all others. Contrary to warnings about winter in a certain recent television epic, and even setting concerns about pandemic impacts to the side, change is not coming. Change is here. Change in technology, change in global economic patterns, change in labor and employment markets, change in expectations and practices associated with professions writ large—not just law.

Lawyers and other legal professionals are not exempt. Judges and courts are not exempt. Law professors are not exempt. Law students are not exempt. Attitudes that I sometimes heard from colleagues in both academia and practice as recently as 5 or 10 years ago—that the legal profession was somehow immune to disruption from technological and economic shifts, that the world always needs lawyers, that the fundamentals of 20th century legal training would serve 21st century lawyers well, and that existing budgets and organizational logics could handle any ups and downs—simply are no longer tenable.

The situation is captured by an apt quotation from leadership guru John Kotter: “Our iceberg is melting.” That quotation is the title of a book about change management that is well worth reading. It’s a parable about a group of penguins who confront an existential threat and who individually and collectively navigate their way, with no small amount of difficulty, to a solution.

Kotter’s point is that change management begins with a collective sense of urgency. The Commission Report hammers precisely on that point. The report doesn’t explore all relevant nooks and crannies, but it makes the key points that the challenges are institutional, not only personal, and systemic, not merely idiosyncratic or marginal.

What’s Next?

Law professors may not be accustomed to taking their cues from picture books featuring cartoon penguins. But Kotter’s book and the Commission Report are equally blunt: doing nothing is not a credible option. Yet barriers and challenges to action abound. What should we do, individually and collectively?

The report steers a course that respects but does not embrace any of three stereotyped approaches that have surfaced in recent years: that legal education should follow paths laid down by nimble cross-functional upstarts that are “disrupting” traditional legal institutions; that legal education should abandon a core commitment to traditional legal analysis in light of the dis-aggregation of professional services and “the end of lawyers”; and that legal education should hew to 20th century tradition, because in changing times, that core still matters.

The report’s novel course is not linear. The report offers a layer cake, a three-level template for vision and, yes, planning. The report avoids the flaws of some earlier reform documents by not investing too much detail in the specifics of one feature or another of an educational program—experiential learning, for example, or professional identity. The report offers structure and integrity, but by design, it allows—really, it encourages—open, flexible, and imaginative planning practice. The commission is exhorting the legal community to move beyond incrementalism and to embrace both the opportunity and the need for systemic change.

Level One is a set of Foundational Principles, macro guides to all action that might follow. These are basic, fundamental, shared values that bind the members of the legal community: stewardship, inquiry, access, service, inclusivity, and adaptability. Level Two is a set of Operational Principles, more specific levers for designing and measuring change strategies: focusing on value; avoiding “one size fits all” approaches; highlighting problem solving; building 21st century competencies; leveraging technologies; emphasizing validity, mobility, and well-being. The report describes Levels One and Two as “Inspiring the Movement.”

Level Three, where the report gets most specific—but not too specific—is recommendations for action, labelled “Defining the Movement,” covering education models, accreditation, licensure, the bar exam, and access to justice.

It’s tempting to skip over Levels One and Two, which are quite broad, and to dive into the specific recommendations. What should be done about US News rankings? About student debt loads? About competency-based education? About re-regulation? Yet the recommendations rarely do more than open conceptual doors to big re-thinks. The recommendations include commentary about just about all of the bases of recent debates about the future of law. But aside from emphasizing over and over that the status quo is letting everyone down, the report has relatively little to say, in terms of specific action items.

What’s Great?

For several years, I have taught a short informal course on leadership competencies. I want my students to lose their lawyerly reserve for a time and work through problems and opportunities thoughtfully and imaginatively using the full breadth of their humanity. It’s a way of learning to break down resistance and closure regarding novelty and possibility, without giving up analytic care and deserved skepticism.

Looking at Levels One and Two of the report in that spirit, there’s a lot to celebrate. Not in how the report emphasizes almost timeless values like stewardship and scholarship, but in how the report combines those values into a platform for planning that emphasizes asking fundamental questions about institutional design and outcomes. The report highlights open and imaginative planning grounded in a design and systems perspective, where the system is grounded in basic values rather than in immediate needs.

Here are particularly noteworthy items, which the commission clearly gets right:

  • Systems approaches: The report leads by setting up questions of systems analysis and design thinking. “Design thinking” has acquired a negative connotation in some quarters, because it has gotten associated with “solve it with an app” hackathons and “Post-It” sprints. The right and best way to think about “design” strategies, which the report emphasizes, is to approach solving problems in terms of principles, opportunities, barriers, and resources over the long term, and to think of interdependencies and feedback loops.
  • In with the new: The report chooses its terms carefully, with an eye to broadening the conversation. The report characterizes its purpose and audience as a “movement”, not as “reform.” The phrase “legal professionals” appears 12 times in the report, almost exclusively when the report addresses future interests and needs. The phrase “lawyer” appears only 4 times, almost exclusively when the report addresses present or past practices. The phrase “legal services ecosystem” or its equivalent (but not “industry”) appears three times. The phrase “legal profession” appears twice, both times in contexts where the profession is identified by contrast with the broader context that the report addresses.
  • Out with the old: Do all law graduates need an undergraduate degree? Perhaps. But do they all need an undergraduate degree and a law degree? The report says: “Legal educators and the profession must embrace the reality that preparation for law practice does not always require seven years of post-secondary education. Shorter, more focused educational tracks are appropriate for some of the varied roles in the legal service delivery ecosystem.”
  • “Thinking like a lawyer” isn’t enough: The report is blunt on the inadequacies of law schools’ legacy pedagogy: “Law schools use a relatively invariant model that remains wedded to 20th century curriculum and pedagogy, while shortchanging development of the competencies needed today and in the future.”
  • Just try it: The report takes rankings and accreditation processes to task for discouraging legal educators (in tandem with regulators and the profession) from “taking bold collective risks to meet the challenge of a transforming world.” Law schools in particular divert “their focus from anticipating the effects of technology, globalization, and mobility; experimenting with new educational models; and adapting to changing professional requirements.”
  • Accountability: Law professors know that traditional assessment practices – comprehensive end of semester exams, followed by the bar exam – generate little meaningful information about our graduates’ competence. The report knows it, too: “Legal educators, licensing authorities, testing organizations, and employers should develop fair, valid, and reliable measures to assess progression and competence.”

What’s Next?

I played soccer in high school for a marvel of a coach, and one of my teaching models even today, whose motto has always been “figure it out.” He was and is a relentlessly upbeat human being. He was an athlete and a high school trombone player; he was a star college football player. He was a linebacker, celebrated in part for having a talent for intercepting the ball. He was born without hands. From an early age, he never used prosthetics. He jokes that he was once penalized for illegal use of the hands. At my school, he drove the team van to games. Today, Mark Speckman is a senior member of the coaching staff for the UC Davis football team.

“Figure it out” doesn’t mean that you’re on your own. It means that when you’re confronted with hard problems, they’re often solvable—even in the face of substantial obstacles—with combinations and collaborations that involve both wit and persistence. Don’t wait for others to solve complex problems. Solve them, or work on solving them, yourselves—plural.

That can-do spirit doesn’t always work, in life or in law, but it’s worth keeping front-of-mind, despite the failure and frustration that often accompany it.

I read the commission’s report as a call to action, but also as a purposeful refusal to assign responsibility for action to one group of people or to any other. The problems and challenges that the report identifies are collective, which I take to be a way of focusing responsibility rather than abdicating it. Individual law professors have opportunities to step up. The report suggests that they have duties to do just that. Figure it out.

That’s a tough lift, in today’s management jargon. I’ve heard innovative and energetic law professors bemoan deans, schools, and colleagues who don’t support or reinforce individual efforts to innovate and change by offering resources (time, money, staff, and space).

From Dwight Eisenhower to John Kotter to Mark Speckman, we arrive at Pogo: We have met the enemy. Is he us?

Conclusion

I’m an optimist, and I’m encouraged—even inspired—by the Commission Report. Law needs a giant kick in the pants, and the commission has given us not just one, but several. We may be the problem, but we may be the solution, too.

Eisenhower’s point, which he acknowledged was not original to him, was that plans get wrecked. The future rarely unfolds as expected. But planning is indispensable, because planning builds resilience. It provides ways and means to build collaborations and competencies that will be essential to dealing with what the future might bring, essential to improvising effectively and thoughtfully, and essential to building durable institutions out of the improvisation. Planning can take place in lots of places and over different time frames. Everyone can plan, if they choose to, but not everyone can always be at the same planning table, at the same time.

How do we move forward? Here are four strategies to for anyone in law to consider, alone and/or with others:

  • Share the report: Be an ambassador for the idea that the report needs an airing. Love it, like it, or hate it, talk about it with your graduates and your peers and colleagues. Talk within bar associations and courts; talk with legal tech innovators and law practice leaders. Educate the profession about its own future(s). Educate your students about theirs.
  • Reflect on your own capabilities and opportunities: Where are you in the change process? Possible responses likely cover a broad spectrum, from “I need help” to “I want to help” to “I can’t help” to other things. Your interest and need may have to do with teaching, or research, or student outcomes, or the workings of the justice system, and/or other things.
  • Find your people: Wherever you are on that spectrum of reflection, odds are that you’re not alone. There is security and opportunity in numbers. To realize both, you may need to identify yourself to others. Reach out, gather, and talk, however that may best be accomplished, and share what you know and what you hope for.
  • Build and re-build infrastructures for collaboration: Like many professions, law is intensely siloed, both inside and outside of law schools and universities. At its best, planning means building information and trust mechanisms across faculty silos within law schools, across law schools, across schools with the university, across academia, the bench, and bar, and even across borders and oceans.

I want to take this opportunity to thank to Dean Trish White (University of Miami Law), who chaired the commission; to Andrea Sinner, who served as its executive director; and to the team of all-stars who served on it.

You can find the Commission Report and related information at https://www.americanbar.org/groups/leadership/office_of_the_president/futureoflegaleducation/