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Innovation, Lawyers, and Legal Education

David Segal’s most recent NYTimes foray into the pathologies of legal education — “The Price to Play Its Way,” about the history, operation, and influence of the ABA/law school faculty accreditation process on the structure of law schools — is, on the whole, a pretty good account of the macro problems facing American law schools, law students (present and future), the legal profession, and the people that the profession is supposed to serve.

Some links and comments, below the fold.

As I often am when I read pieces like this, I was struck by its juxtaposition with other pieces in the same paper. In this case, take a look at the Corner Office column, which interviewed Geoffrey Canada of the Harlem Children’s Zone. The Corner Office is often one of my favorite parts of the Sunday Times. From a micro perspective, Geoffrey Canada hits the nail on the head when it comes to why organizational change is so difficult.

Of course, organizations and institutions that don’t change voluntarily may have change thrust upon them. When it comes to law schools and professional education, we’ve talked here at about both voluntary and involuntary change to legal education. Readers may want to look at, or just recall, these posts:

Deven Desai organized this extensive mobblog on legal education, way back in 2008. Many of the themes that Segal sounds in the Times today were sounded back then, by one or more of the great roster of mobblog participants.

I have from time to time characterized the challenges facing legal education as innovation challenges, explicitly evoking the complacency of a somewhat similarly dominant incumbent American institution: the steel industry. See the posts here, and again here. The American steel industry, premised on integrated mills, was in slow decline for decades — and both internal and external scholars of industrial history knew that, for many years — yet up through the late 1970s and early 1980s management and labor unions collaborated on a series of collective bargaining agreements that perpetuated some of the highest wages in American industry. The workers, their families, and their communities enjoyed extraordinarily high standards of living up through the early 1980s. Then the industry went over a cliff. The bulk of global steel production exited the United States. American steel-making communities have just started to come back, 30 years later (in Pittsburgh’s case), or, in many cases, are permanently scarred.  But the human cost — hundreds of thousands of lost jobs, family dislocation, community collapse — has been staggering.

Clay Christensen used that history as one of the central illustrations of his original, Schumpeterian Innovator’s Dilemma. Christensen directed attention to the challenges of disruptive technology and to the claim that managers in successful industries needed to find structural ways to accommodate disruption, lest disruption wreak catastrophe on their businesses.   In the case of steel, that disruption was the mini-mill.   For law schools, the accreditation structures that Segal describes in his piece have largely suppressed the emergence of the kind of disruptive technology that would feed an innovator’s dilemma for law schools.  But as Segal observes, the cliff may be approaching nonetheless: demand for legal education, at the high cost levels now seen across most of the business, may not be sustainable.  A similar history can be pulled out of the steel analogy.  Economic historians argue that in some respects, at least, Christensen is wrong; demand for the high-priced products of integrated mills had been falling steadily since the beginning of the 20th century.  Steel’s collapse could have been avoided had management and labor collaborated well before the emergence of mini-mills in building a more flexible industrial structure that supported cheaper cost structures.  Is similar flexibility available to legal educators? Is it desirable?

Quite a while back, I wrote a post noting with interest the development of a new MBA curriculum at Yale.  Business schools aren’t constrained by accreditation requirements akin to those that dictate much of law and medical education, so Yale was free to choose a non-Harvard, non-Stanford path, which it has done. ( I have the general sense that the faculty and students at Yale are happy with the change, and that the model has been adopted at some other schools.)  What impressed me in part was the sense of curricular integration, and relationship to real-world behavior by managers, that informs the Yale model.   Yale did not simply make itself “glitzier” or “pricier” or “cheaper” or “faster.”  (Of course, I may be taken by Yale’s marketing of the thing. Folks in business education might tell me that Yale’s approach is more rather than less similar to peer programs.)  What impressed me more than anything else was the speed with which the faculty adopted the new program, a speed that was informed by the school’s sense of competitive need.  Yale isn’t a top-tier business school and very badly wants to be.  To attract the best students and the best faculty, Yale decided that a strategy of product differentiation was in order.  And lo, though not without controversy — the dean who led the process left shortly afterward, and now runs some provocative management training at Apple — the school pivoted, and it pivoted remarkably quickly.

David Segal’s piece highlights pivots being undertaken by at least one new law school, pivots, like Yale’s, prompted by a sense of competitive need.  But the pivot in question and elsewhere seems largely to consist of  “make legal education the same, but much cheaper.” It’s the Harvard curricular model — appellate cases, casebooks, classes organized by Langdellian disciplines — on a shoestring budget.  Perhaps in his next piece, Segal will look at that curricular model itself, not in order to critique the Socratic method straw man, but to explore how the conceptual structure of legal education, inherited from Harvard more than a century ago, not only remains essentially unchanged (despite supplementing it with law clinics and “skills” instruction) but contributes to — even justifies — the cost structure that places like the Duncan School of Law perpetuate, even while they resist it.  And then Segal can borrow some of those Corner Office lessons, to illustrate why and how law faculties rarely, if ever, feel the need for competitive speed.

With apologies (for that last line) to fans and critics of Top Gun.