Legal Education’s Waterloo: Urgency

FLW

In Legal Education’s Waterloo, I promised a longer comment on an excellent recent provocation in Forbes.com by Mark Cohen, concerning what US law schools are doing, are not doing, and should be doing with respect to training new lawyers for impactful future careers. The longer comment comes in three parts. One has to do the urgency of change. That’s this part. Two, yet to come, will deal with a vision of what legal education likely looks like in some future, better world.  Three, also in the future, will talk about how legal education gets from where it is today to where it is likely to go, either willingly or unwillingly. 

On One and Two, I mostly agree with Mark. Change is urgent, and the future doesn’t look too much like the present. On those points, I want to add some nuance and re-characterization, because the world looks different when you’re on the inside.  If you’re trying to persuade insiders to change their ways (which may or may not be the goal of the Forbes piece), then it can be helpful to see things as they do.  The outside view is important, too, but it’s probably best to blend the two. 

Three is the most complicated, which is why it’s last.

On Urgency

As the issue is framed in Mark Cohen’s piece, US law schools are facing an existential crisis because they’ve embraced a now-outmoded “business model.” The quotation marks indicate that this is his phrase, not mine. Law schools are too expensive and deliver too little value to the marketplace of employers in terms of relevant and useful skills. They’re “under siege;” they’re “underwater.”  Again, his phrases, not mine.

Sometimes old news bears repeating, even though it’s old news. Not everyone has heard the news; not everyone has digested it. Here, part of the message is old but still newsworthy:

Just about every provost in the US, just about every law dean, just about every former law dean, just about every would-be law dean, and a growing number of “regular” law professors know that the financial jig is up. At most law schools, student tuition dollars total nowhere near the amount needed to pay the school’s operating expenses. At a few law schools, endowments and real estate portfolios help a lot. At many, parent universities cover some and even much of the budget. University piggy banks and patience may be running thin. Legal education is far from the only part of the university that struggles to pay its bills. It’s often a smallish part, and in research universities, it rarely brings in many research dollars.

But … just about all of those people also know that if a time may come when law school finances themselves drive change that makes the program better (that is, better tuned to 21st century career paths), we’re not collectively at that point yet. Right now, the real financial pressure in higher education isn’t coming from a mismatch between what schools teach and the skills that students should have when they look for jobs. The pressure today comes from a combination of declining enrollments (including changing demographics and changing labor markets in a broad sense, not only markets for lawyers) and declining support for education by federal and state governments. Money shortages are pressing law schools and universities to find ways to cut back and raise revenue in other ways, but doing that does not necessarily mean thoughtful pivoting (even slow pivoting) to better programming – i.e., curricula, staffing, and so on. I made a semi-serious joke in my earlier post about law schools as Wile E. Coyote, spinning their legs in mid-air to stay aloft. That’s urgency of a critical sort. It’s not urgency that drives forward-leaning strategy.

Here’s a different perspective, one that is both new and newsworthy. Maybe the message about urgency isn’t meant for higher education and legal education insiders. Maybe the message needs to be heard by the bar, and the bench, and legal services providers, and legal tech entrepreneurs and investors, and by current and prospective students, and by recent graduates. If that’s right, then we should think about the urgency in different terms. Not simply in terms of finance, and not simply in terms of job-relevant skills.

Collectively, practitioners and academics alike could think productively about how to frame and express urgency about legal education and the future of law. What we should be talking about is how to produce legal experts, not only lawyers, and not only members of the traditional legal profession, in sustainable, durable, and effective ways: people trained in diverse skills to do diverse things to advance what we’ve come to agree on as the values associated with the rule of law in democratic society: dignity, equality, opportunity, and capability. How to serve and help people who need access to information, access to resources, and fair treatment and fair process. How to build and re-build the institutions of a just society.

Big stuff, in other words. That’s what’s urgent, to my way of thinking. (I’m pretty sure that I’m not alone in thinking that way.) And it starts in many places, not only in today’s law schools. But law schools are the topics of the moment.

How do we identify and express that urgency in ways that motivate action?

One way to do that is to find and follow people who are already doing that work, or parts of it. These folks are positive deviants. They feel the urgency on their own; they don’t need to be educated by essays in journals and magazines or websites. They act on their own; they operate by inspiring others to collaborate with them. Positive deviants need partners and validators to grow their efforts. Often, validation doesn’t come, for bad reasons and good ones. When it does come, the positive deviance model can be powerful. I wrote about the positive deviance model of change management here, a couple of years ago.

A second way to do that is to organize social need into demand, and then encourage a variety of institutional players to build enterprises to meet that demand. Opportunity becomes urgency. If demand can be aggregated in reasonably clear and specific ways, then that demand can be priced, and the private sector is likely to invest and build companies, especially for-profit colleges and universities and other training and certification programs. Experience teaches that these things are almost always swamps of corruption and exploitation.

Demand can be aggregated and expressed in other ways, and in many respects that’s what universities and colleges do. They combine the diffuse demands of students into concrete systems, parts of which speak specifically to the diffuse demands of labor markets. Universities (and law schools) aren’t vendors of a student product; they’re educational infrastructure. Some of the resulting systems and equilibria are governed by price. Much of them are governed by other things, which means that what looks to economists like a lot of waste and inefficiency is part of the capacity needed to make infrastructure resilient and adaptable over a multiplicity of uses.

Opportunity means urgency; we need effective infrastructures to manage social life and community at both micro and macro scales. Like physical infrastructure, cultural infrastructure can wear away over time, and it can outlive its utility. Those of us who make the case for urgency in legal education are arguing, at least implicitly, that the cultural infrastructure represented by law schools is no longer fit for purpose.

The point is that demand matters, both on the student side and on the labor market side, but it matters in systemic ways that aren’t determined by finance. Corruption and exploitation aside, that’s why even with the noblest intentions, for-profit educational providers and edtech suppliers struggle. They’re trying to make money in an environment where making money isn’t the point, and therefore where pricing services is really, really difficult.

For my urgency point, two things fall out of this for practical purposes:

One, conventional legal education is nowhere near the point where training programs that compete with the JD program are stable, durable, and effective at any meaningful scale and attractive enough to inspire investments and donations. That’s true online, offline, and in blends. Even training programs in law that complement the JD program aren’t yet stable, durable, and effective at any scale. Few people or organizations with money to invest or donate are salivating right now at the prospect of getting into legal education. (Education aside, even in the market sector, LegalTech itself is far from stable and profitable unless it’s attached to incumbent service providers or unless it’s marketed as software.) That’s true both in the for-profit space and in the non-profit space. Transfer payments from universities to their law schools are covering the status quo.

Two, making institutional changes in the design of legal education means listening carefully to the sources of demand, so that what’s expressed in programmatic terms — the new infrastructure — isn’t simply an evolutionary step beyond the current system but a revolutionary improvement. Right now, changes in labor market demand are noisy, and mostly unhelpful to law schools on anything beyond the micro level. And law schools usually don’t think of the labor market as its nearest and most important stakeholder. (Practitioners may object to that, but it’s an argument for another day.) Nearer and dearer are students. That’s the demand that matters, in practical terms. Prospective students, current students, and recent graduates. They listen to signals; they watch labor markets. What do they hear and see? When they talk to the dean and talk to the faculty, what do they say that they want and need? Anyone who wants to create and act on a sense of urgency in legal education should start by working in the student space.

Right now, my read of the students generally is that they are still tuned mostly to the same labor market frequency to which students have been tuned for several generations. For good and often for ill, large numbers of law students (I’d wager that it’s a large majority of law students, in all law schools) believe that the surest and safest path to job success at graduation and career success shortly afterward is class rank and law journal membership. That is, the classic markers of what private law firms have long deemed to be the essential attributes of the successful beginning lawyer: raw intelligence and work ethic. That’s student culture. It’s deeply rooted in tradition and practice going back over 100 years. (Law schools tend to be complicit in that culture, enablers rather than resisters.) That culture can be changed, but only with a lot of effort, and not only effort by law schools themselves.

Whatever we learn in that space, we don’t need to act on it all at once. We don’t need to build only the solutions that we believe are guaranteed to succeed. Getting it right and getting it better in higher education, just as in the market, means trying things and learning.

The recent ABA Commission on the Future of Legal Education charged all lawyers with the task of re-forming the ways in which we make new lawyers and make the law. That’s calling out to the bar, and the bench, and legal services providers, and legal tech entrepreneurs and investors, and to current and prospective students, and to recent graduates. Law schools, law deans, and law professors aren’t alone in this. That’s exactly right.

That’s urgent.

Look for more in Part Two, yet to come.

All posts in this series

Bonus

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