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The Future of Law Teaching

St Louis University

The faculty of the St. Louis University School of Law invited me to deliver the 2017 Vincent C. Immel Lecture on Teaching Law on April 20, 2017. The lecture was not and is not designed for journal publication, but I thought that some (including the audience at SLU) might be interested in what I said. Some of my themes recapitulate things that I’ve written about before, on this blog, on other blogs, and/or in papers posted to SSRN. My remarks, extended and edited and with some end notes, appear below.

I. The Preliminaries

Thanks to everyone who contributed to the invitation to be here today and who helped to organize the visit and the talk.

And greetings from Pittsburgh, head of the Ohio River, where Meriwether Lewis acquired a boat and put in, headed eventually for St. Louis and points West. Lewis & Clark were legendary explorers and discovers. In a small way, my talk today is also about a journey of exploration and discovery.

Whatever your level of seniority and experience as a law professor, you may believe that you’ve already done everything that you can and should do, via your teaching and mentorship and other contributions, absolutely to prepare yourself and your students for the years ahead — theirs and yours.

That may be due to the fact that you’ve already re-considered your entire approach to teaching, or it may be due to the fact that you see no need to change it.

For that group of people, whatever their reasons, I cannot and will not try to persuade them otherwise. But perhaps I can hold their interest.

You may believe something else: that the worlds of law, law practice, legal information, legal services, justice and social welfare promoted by the rule of law are — unsettled. Changing. Big and full of scary things but also, perhaps, full of opportunity and potential. Sort of like the Louisiana Purchase. And you may be reflecting and perhaps struggling with how to think about our changing world and what it means for your teaching and your students. This lecture is primarily for you.

Either way, I am here with provocations.

I want to be clear here that the talk isn’t just about “experiential” education. I am not talking only about “podium” faculty, and I am not excluding or exempting clinical faculty or legal writing faculty or librarians who may be faculty members, or adjunct faculty. And there is much more ground to cover than strengths and weaknesses of particular pedagogical models. Teaching challenges emanate from substantial structural constraints, from the character of the profession to the character of the economy, and maybe even to the character of law itself. There’s a lot of territory ahead of all of us.

II. Setting the Stage

Let me shift metaphors, to invoke a different sort of geography. I got interested in the future of legal education about 10 years ago, when — in the course of studying the history of Pittsburgh — I realized that I could look at law schools much as I learned to look at steel.

What that means is that I look at our world from the point of view of a veteran law professor with feet simultaneously in two places:

On the one hand, I live physically in the world of river-based industrial tradition, looking at reinvention. That’s Pittsburgh.[1]

On the other hand, I live conceptually in the world of disruption and innovation, and disregard for precedent, social fabrics, and community. That’s Silicon Valley, where I grew up,[2] went to law school, and practiced law. East and West, old and new, reinvention and disruption.

In developing and applying this metaphor, I know that this is a balancing act, at all times. I’ve learned that these are never either/or issues but instead how-to-approach-the-new-while-maintaining-appreciation-of-the-old issues. There is no “start everything from the ground up”; there is only continuity and stasis, on the one hand, and change of various sorts, on the other hand. What’s the right mix?

It’s possible, even conventional, to ask this question in institutional terms, from the top down: What should the industry do? What should the organization do? Today, I’m looking at this question and related questions from the ground up: The question for today’s legal educators is not only “what should legal education do?” or “what should law schools do?” It is also: How do we process change as individual teachers and mentors, rather than as collectives — entire faculties, entire schools, and entire profession or discipline? In our own work, how do we respect history, tradition, and core values?

In other words, I will start with broad questions but I will focus primarily on narrower responses – not to deny the significance or challenge of the broader issues, but instead to highlight opportunities for individual agency at many different levels, and of different sorts.

Last, in starting down this path, I want to honor the spirit of Vince Immel, who was demanding of himself and his students, committed to the discipline and standards of the profession, and imbued with the spirit of service and mentorship to his students, colleagues, and the community outside the school.

III. A Framework

Consider a couple of ways of thinking about what’s happening in law and legal education, and what to do about that, if anything. I continue to filter my observations through my “Pittsburgh meets Silicon Valley” metaphor.

This is inspired in part by a heuristic framework supplied in late 1990s (1997) by Professor Clayton Christensen at Harvard Business School and his widely-circulated management text, The Innovator’s Dilemma.[3]

The Innovator’s Dilemma frames a problem: a successful firm in an established industry is threatened by lower end competition to its market position. Lower cost, lower priced, lower quality competition that substitutes for existing, expensive, quality stuff. That incumbent firm responds as a rational firm in that role would respond, by innovating or refining its successful business model: we will continue to do what we have done — only better or faster, or with more complex or sophisticated versions of our products that preserve our high margins while the lower end gets eaten away by competitors. We’ll find new customers, or new revenue sources, or market harder, or build strategic partnerships. We’ll innovate upwards, but only incrementally. Christensen calls this “sustaining” innovation; in management terms, it is a “continuity” or “stay the course” approach.

The Innovator’s Dilemma collected some interesting data to support the hypothesis that the incremental, continuity-focused, “stay the course” strategy comes with a big risk over time: Retreating upmarket in incremental steps eventually squeezes out the organization’s ability to respond to larger-scale market or technology or labor challenges from competitors. Eventually competitors may get characterized (perhaps retrospectively) as “disruptive.” As lower end competition gets more and more sophisticated — cheaply-made products improve in quality, and move from the low end of the market to the middle, for example — and takes up more and more market space, that “disruptive” label becomes more menacing. The incumbent organization literally runs out of room to maneuver, because it has managed itself incrementally into a relatively small market space. It has no more incremental moves to make. It has no managerial imagination that allows it to do something truly new and different. In the worst case scenario, it expires.

Contrast this approach with a potential alternative, a “change management” approach: in response to lower-end competitive threats, the incumbent in this scenario engages in a deep re-think of the entire business, investigating more comprehensive change to products, services, sales, marketing, and revenue models. Christensen argued that this “change the model” innovation is often needed to save the enterprise.

But he also argued that the more radical managerial approach is often deterred internally in incumbent firms exposed to serious competitive threats. It’s punished (that is, internally), because it threatens the firm’s standard operating management model. Compliant, rational “continuity” managers get supported and rewarded; change-oriented managers get disciplined and eventually leave the company.

That’s the source of his dilemma: the rational thing for an “innovative” firm to do is “stay the course”; but “staying the course” may kill the firm.

One of the paradigm examples of “continuity v. change” in The Innovator’s Dilemma, and the example whose aftermath I’ve witnessed for the last 20 years, is the integrated structural steel industry in the US, headquartered in Pittsburgh.

For about 35 years, beginning in the post-WWII era, the leadership of what has been called “steel” could see that demand for structural steel was gradually declining, and that competition from new and cheaper production facilities was rising. Production by the incumbents fell, but it fell slowly and relatively smoothly, and it fell so gradually that outside of a group of industrial economists and the innermost sanctum of top management, change was essentially imperceptible. Line management and labor certainly didn’t get the message; throughout this era, new labor contracts preserved jobs and hours and wages at traditionally high levels. That is, until 1982. In 1982, the music stopped. Competitive, lower cost producers got too big and prosperous to ignore; all but one of Pittsburgh’s mills closed; and regional unemployment hit 20%. The psychic, cultural, and economic traumas were all the more dramatic because they were, for many practical purposes, unanticipated. Western Pennsylvania is still feeling the aftershocks, 35 years later. So is the rest of the world. As hundreds of thousands of steelworkers, their families, and potential future steelworkers left the region, 1982 gave the world the Pittsburgh Diaspora, which gave the world the blessing, or the curse, of Steelers Nation and the Terrible Towel.

No story has a single ending, or a simple one, and the story of steel does not stand in for all industrial evolution or change. It’s a heuristic, not a road map. To me, the heuristic value lies in the next step:

Because he is a management researcher, Christensen asked: How can an incumbent company threatened by lower-end competition avoid a cataclysmic-ly negative outcome?

His primary recommendation was and is that organizations need to find ways to promote and reward “disruptive” innovation internally, that is, to create their own new futures, primarily by de-linking substantial, change-oriented “innovation” programs from “standard operating procedures.” If regular management incentives discourage fundamental re-thinking, then it is important for management to find ways to isolate fundamental re-thinking from regular management incentives. Isolate the “disrupters” [that is, protect them] organizationally. Or isolate them [again, protect them] geographically. Or recognize, reward, and promote them and their work in ways other than “standard” organizational processes.

Both literally (in some cases) or metaphorically, this is a Skunkworks approach, after the famous Lockheed research & development program (the Skunk Works) that housed a group of engineers separately from the rest of the company beginning in the 1950s.[4] Hewlett Packard is often held up as a positive, more recent example: HP’s highly successful printer business was created not in Silicon Valley, as part of HP’s principal operation, but in a separate organization. In Oregon.

For my purposes, “Skunkworks” means, in short: organizational and institutional isolation of innovators from “primary” management structures that would otherwise deter innovation.

IV. Law?

What does this have to do with law schools and particularly with law faculty?

One, I worry: that US legal education is, in some critical ways, like the US steel industry. I want to emphasize that I am using the Innovator’s Dilemma framework as a heuristic. I do not think that legal education or the legal profession or any particular school or firm is in imminent danger of unexpected collapse. I worry in Innovator’s Dilemma terms: I worry that something akin to a “disruptive” threat to legal education can be discerned in the combination of the economics of entering students, changing demand for our graduates, and underlying shifts in the nature of law and the range of competencies that we should be supporting.

Two, I worry that continued rational “continuity” moves — slimming budgets, right-sizing class sizes, expanding revenue streams with more CLE and LLM and nonprofessional degree programs, complying with the letter of ABA rules on experiential education credits — is unlikely to provide a stable and durable and valuable solution either for a particular school or for legal education as a whole.

Here’s the worst case scenario: As the chief of police said in Jaws when he finally got a glimpse of the villainous great white shark: we’re going to need a bigger boat.[5] If you know that movie, then you know what happened to that boat and to its captain.

Here’s the best case scenario: we don’t get a bigger boat, and we don’t need one. In Jaws, the chief of police and his scientist sidekick survive, but only through a movie-miraculous combination of circumstances and resourcefulness. Thinking about and planning for a world that requires a bigger boat makes us better, cleverer, more resourceful educators when circumstances require it, and it can make our students more successful in their careers and communities.

Bear in mind that it’s likely that you (and we) don’t know whether a given move is the right one, strategically, or the wrong move, until after the fact. That was the steel industry’s problem: to most steelworkers and their families and communities, everything looked like it was under control. Then: boom.

V. Threats and More of Them

If it’s difficult to comprehend the moving pieces here at a macro or institutional level, then consider it from the standpoint of just you: micro, not macro. I teach classroom courses. My classroom model may be under threat: there is the threat of irrelevance, the threat of lack of utility, the threat of lack of meaning, the threat of lack of value. I talk to my former students – from 15 years ago, 10 years ago, 5 years ago, from last year. Gaps between their professional experiences and the models of experience that underlie my teaching are always present – sometimes expanding, sometimes narrowing. Do I continue? Do I change? I may have my own personal Innovator’s Dilemma.

What do I mean?

I like to juxtapose things that don’t obviously belong together, so I begin the story of continuity and change for the individual teacher with three recent quotations in pieces about legal education and the legal profession.

First: Professor Paul Marcus, AALS President, inaugural address at the AALS Annual Meeting, January 2017:[6]

“I begin with the notion that law schools and legal educators are called upon to do many things. Of course, we must educate our students, the vast majority of whom will be practicing lawyers for many decades to come. We offer not only an education in the law, but an education in the responsibilities of those fortunate enough to become attorneys. At a number of schools, including my own, we dub this person “the citizen-lawyer:” an individual who is, to paraphrase a well-known university president, willing to work to leave the law better than he found it.”

Second: Professor Bill Henderson, Indiana University Bloomington, in March 2017, commenting on Harvard Law School’s decision to accept GRE scores in addition to LSAT scores for entering JD students:[7]

“First, fewer law school graduates — all admitted based on their LSAT scores –are using their degrees in traditional law practice. Since peaking at nearly 65 percent in the late 1980s, the number of lawyers starting their careers in private practice has been on a steady decline; it now hovers at roughly 50 percent with flat entry level salaries for most grads. Second, between 1991 and 2013, the number of law graduates taking their first job in business and industry has increased from 1,900 to 6,900. Third, even though elite law grads from schools such as Harvard continue to have the best access to the shrinking number of highly paid law firm jobs, a disproportionate number of them appears to want something more.”

Third: Professor Ian Kerr, University of Ottawa, in a review of a recent book by Mireille Hildebrandt (VUB Brussels), speaking of technologies and algorithms that now govern so much of our daily lives as individuals as well as systems of government, justice, business, and art and culture:[8]

“What if modern law is dependent on and shares the affordances of the printing press . . . and, ultimately . . . under the next dominant information and communications infrastructure, law as we know it might be gone?”

My point in bringing these quotations together is this:

Our mental model of what we think that we’re doing as law professors, represented by the quotation from Professor Marcus, is increasingly out of step with what our students are relying on us for, documented by Professor Henderson. Many faculty think that they are training a generation of practicing lawyers. In fact, we’re supplying professional education concerning law to people entering careers in a diverse and changing professional environment, some of which concerns “classic” lawyering and law practice, but much of which does not.

Moreover, reading Professor Kerr’s framing of Professor Hildebrandt’s book, it is not too much to say that “law” as a concept is under threat, even if it is not going away. It seems to me that our conventional understandings of what law “is” and what law “does” and what people in trained in law “do” — both in terms of what jobs and roles they have, and in terms of what they do in those jobs and roles — is undergoing substantial change as well. In this added sense, there is an emerging “gap,” one that lies not between “law on the books,” on the one hand, and “law in practice,” on the other hand, but between law as visible text and enactment, available for critique, on the one hand, and algorithms, which may not be. How do we train people in law for that latter world?

* * *

What’s the size of the gap, and where are we (collectively) on the “change” curve? Is this really the kind of disruptive threat that Clayton Christensen had in mind, one that requires a different sort of innovation response? Is a new legal professional/educational/conceptual paradigm still being envisioned, or is the new paradigm sitting under our noses already, unrecognized? Are we collectively working it out on the fly – rebuilding the airframe of the plane, mid-air, to borrow a metaphor that is increasingly popular in Silicon Valley? Or are we evolving with continuity and grace?

Taking a snapshot of the moment is not as difficult, in terms of data collection and analysis, as figuring out the answer to the longer-term questions. On that longer-term question, we don’t have much good information, so everyone is going by intuition. My intuition, having watched the profession and its institutions pretty carefully for a long time, is that more is changing, and more is changing in a likely permanent way, than is remaining the same.

In other words, it is possible to read emerging practical disruption into the conceptual disconnections that the quotations frame. The story of further disruption would go something like this: the technology of legal information will get terrific, cheap, and ubiquitous; it will get better at handling complex problems; and it will overwhelm the legacy demand for individual lawyers. The trickle of large law firms going out of business will become a flood; legal information service providers will hire bright kids straight out of college rather than hiring our JD graduates.

But of course I could be wrong. Maybe legal education has a smooth path of continuity and evolution ahead of it. I hope that it does. But I want to be prepared for the possibility that it doesn’t. In other words, this becomes largely a matter of assessing error risks: if one does nothing and is wrong in predicting no larger scale changes, what harm has been done? If one adopts new ways of thinking and teaching and is wrong in predicting that larger scale changes would be confirmed, then what different harm has been done?

I weigh the latter as a much smaller risk than the former.  Even your version of the future isn’t particularly apocalyptic, if we want what we do to have meaning to society, to ourselves, and to our students, and if we want it to have value, then we need to be thinking about retooling the enterprise of educating the next generation or two of lawyers. If not from the top down, then from the bottom up.

VI. The Payoff

I want to spend the rest of my time not on abstract reasoning about those questions and instead on what we might do about this — as individual faculty members — should we choose to act in the day-to-day.

This is a point where I turn down the volume somewhat on my Pittsburgh-continuity perspective and turn up the volume on my Silicon Valley-ish change perspective.

How should we do that? Retooling by whom, and how, and to what end?

This is a change management problem.

I’m less interested today in institutional change management. Mostly, that’s because institutional change management is really, really hard, even in well-managed organizations and even in for-profit settings where it is in theory comparatively easy to identify goals, establish metrics, hire and fire the right people to get things done, “pivot” when necessary, and so on.

Institutional change management is even harder in higher education, because we have long-term commitments to organizational designs, to basic, fundamental principles and practices, to precedent and tradition (I teach as I was taught; I was taught as my father was taught, and so on), and because, well, tenure. A big part of change management at an institutional level is getting the right people on the bus, having them sit in the right seats, and getting the wrong people off the bus. In higher education, all of that is slow and complicated — at best. And we are often not at our best.

I want to focus instead on change management for individuals.

Here’s my point:

If Clayton Christensen is right, that effective “change the model” innovation requires a kind of organizational distancing to protect innovators from default, continuity-based managerial incentives, then that’s not as difficult for individual law faculty to implement as it might seem.

On a law faculty, in at least one important sense, *everyone is their own Skunkworks.* Or, in principle, everyone can be. Academic freedom means many things, but at one essential level it must mean this: everyone teaching law can be as responsive, disruptive, or innovative as they wish to be — or don’t wish to be — and as they have time and resources to invest.

That’s only a start. To move off that starting position, let me set out a series of short lessons for how this may happen.

There are all sorts of reasons why “be your own Skunkworks” does not happen. Personal training and temperament varies a lot; if (as law professors) we wanted to be entrepreneurs about our own lives, we would have gone to business school, or (like Gates or Zuckerberg) dropped out of college. Deans and Associate Deans don’t always like the idea that faculty members are going to get entrepreneurial and innovative on their own. Class schedules must be maintained; contact hour expectations must be met. Pre-tenure faculty and faculty not on the tenure track worry about security of employment if they color outside the lines. Tenured faculty members may believe that tenure entitles them not to break the mold. The innovation environment is full of structural and systemic barriers to individuals without power and privilege. Students themselves may resist; faculty members aren’t the only parts of the legal education enterprise with limited imaginations about what law school is supposed to be, and what it is supposed to be for. Bar examiners, similarly, have firm expectations. There is scholarship to think about, and family and interests other than your job. There are only so many hours in the day.

So, lesson one in the domain of “be your own Skunkworks” is: Know yourself. In context — and context matters, and contexts can be more or less welcoming — everyone engages in their own risk/reward calculus. Deans and Associate Deans can shift the balance, by offering incentives and rewards of various sorts, for example, but my point is directed more to intrinsic motivation.[9] Given the choices that you do have, and with whatever resources you can draw on, then what kinds of impact do you want to have on the world? It really is about you and your world, your time, and your students.[10]

Let’s suppose that “being your own Skunkworks” is, in fact, appealing to you. But that’s mostly format or structure. Style, not substance. It’s not content. What should you actually focus on; what should you actually do? Looking at legal education of the future from the bottom up, what does the new paradigm start to look like? Let’s suppose that you want to make some changes, to bring your engagement with your students into line with what they want, or at least with what they need (because you can’t always get what you want).[11]

There are far more ways to approach this than there are faculty members at a given school, and far too many strategies to pursue than any one person could adopt. There are changes available in pedagogy in the classroom and in the community. In materials. In subject matter. In scale. In extending or compacting the length of legal training, and of conceiving of at least some of what we’re doing as not professional education but instead as foundational education in law or as post-graduate education. Here is just a partial list of things that individual faculty members can imagine pursuing in the context of courses and programs that they’re already engaged with. These range from the most concrete to the most abstract. My message in general is: start with your goal. What is your impact going to be? Goals may change — but you should start with one.

— Collaborating with faculty in other schools on modes of “interprofessional” and/or experiential education
— Bringing genuinely collaborative education into the law school, meaning: students meaningfully collaborating with other students, law or otherwise
— Thinking in terms of designing programs to support 1-to-1 training — what I call “concierge” style education — for every student, in every course or program experience — whether that’s full-time or adjunct faculty instruction, professional mentorship and supervision, or peer-to-peer interaction

— Thinking of “legal domains” in Venn diagrams relative to other professional domains (business, public health, environmental science, engineering, social work, and so on)
— Thinking of “professional skills” development in Venn diagrams relative to other “whole person” skills and competencies development
— Training students in new and diverse modes of professional communication (beyond the legal research memo, the client letter, and the appellate and trial brief)
— Building a progressive program in emotional intelligence and leadership skills
— Shifting some curricular content out of “legal abstractions” such as property, advanced property, or intellectual property, to industry or sector or community specific domains: what law and governance problems, challenges, and opportunities do (health care professionals) or (social workers) or (environmental advocates) contend with?[12]

— Working with undergraduates, as a mode of legal education, or as some other mode (i.e., law but not professional development)
— Actively introducing modes of experiential education into non-clinical educational experiences, thus thinking of experiential learning as a spectrum or continuum of approaches and likewise thinking of experiential learning as inclusive of more than “professional skills” development

— Expanding the scope of a legal education, beyond “problem-solving” and “thinking like a lawyer” to include “design thinking”[13]
— Re-focusing on core values of the profession, such as service, in addition to the separable roles of the lawyer (advocate, counselor, and so on)

But don’t take it (i.e., this list) just from me. It is rarely wise or effective or fun to try to jump right into something that you may find attractive but know little or nothing about. In my experience as a teacher and observer, it is almost always more effective to build outward from small or pilot experiences or projects. Try before you buy, in a manner of speaking. Sample experiences may be law-related and law-teaching related, or they may get imported into your law teaching life because you have practiced them somewhere else — other professional life, or volunteering, or family or community activities. I learned a few productive things about law teaching and about encouraging collaboration and participation from years of coaching youth soccer, and a few other things from years of volunteer engagement in the world of alumni relations and fundraising for my college alma mater.

So, lesson two is this: If you’re trying to be your own Skunkworks, you may already have it in you. Take a look again at what may already have captured a part of your imagination and effort, what you are especially passionate about, and/or what seems to be particularly effective. Start there, and grow outward.

Now, let us suppose that you have the motivation and some ideas. What next?

Here’s where my intellectual property law training helps out: IP scholars know that in practice, the lone, successful inventor and the romantic, solitary creator are mostly myths. Making or building or designing something new is almost always full of friends, and partners, and collaborators, and the process is full of obstacles and trial and error. Great new things are built over time, and rarely in linear processes. Lots of things fail, or just don’t pan out. If it works, then one person or a few may get credit in the end (giving away some of that credit may be a fundamental part of the creative program – remember those award acceptance speeches as the Oscars and the Emmys and the Tonys and the Grammys; as Harry Truman allegedly said, “It is amazing what you can accomplish if you do not care who gets the credit.”

Getting and accepting help is both necessary and fun. You may find “your people” in your own school or at other schools in your university or at other law schools in your field or among your alumni or among your colleagues in other disciplines, or even among friends and family. If you see other people looking for collaborators, consider volunteering from time to time (even if the opportunity isn’t clearly part of your personal set of primary interests – sometimes the collaborators matter more than the collaboration), and see where that ride takes you and whether it’s something that appeals to you.

I’ll make an affirmative, related claim that finding these “birds of a feather” across institutions and across disciplines may be easier and more productive in many cases than trying to build collaborations internally, where there can be a tendency to default to existing processes and governance. We’ve seen a lot of this sort of cross-institutional building in legal scholarship over the last 15 years, with the development of sustained “works in progress” events that do not have permanent law school homes or law school sponsorship, but less of it on the teaching side. Wherever you find interest in engaging in the same things that engage you, pause and start to build that relationship. You never know where it may take you.[14]

So, lesson three for those who would “be your own Skunkworks” is this: Phone a friend.

Finally, you’ve got ideas, and resources, and allies. What then? I’ll borrow one idea from our clinical colleagues, and one idea from the dean’s suite.

The idea from the clinical side of the aisle is this: Be reflective about what you’re doing, and why, and whether it’s working, or not. It’s a critical part of our learning, not just a critical part of our students’ learning. Are you contributing something of value? What is it? Valuable to whom? Can you measure that? Should you? Can you improve it? How? Can you share it, and help it take root elsewhere? How?

If it’s not working, stop it! Or change it! Silicon Valley engineers and entrepreneurs have a motto that’s often helpful to us as well as to them: Fail fast! Know what you’re looking for, and know whether you’re finding it and at the appropriate scale (“fast” might mean something different in the academic setting than in the Silicon Valley setting, or it might mean different things at different scales). Don’t be afraid to fail, and don’t be afraid to understand the reasons for failure and the lessons to take away.

Unlike some entrepreneurs in Silicon Valley, don’t value innovation as a good in its own right. Don’t abandon critical reflection on whether what you’re doing is something that should be done and for whom.

And here is what good deans and other academic administrators know, and what great managers and leaders of all sorts know: The work isn’t about you. As much as you want to claim credit for doing great stuff, as much as we want to bask in the reflected glory (or “BIRG”) of “our” former students, the most sustainable modes of innovation and change are modes that don’t actually depend on you, personally. They depend on passion and ideas and commitment and values that transcend you, that emerge from the collective, and that are sustained in the lives of the people we train and that we serve.

In short, the final lesson, lesson four in my “be your own Skunkworks” argument is: institutionalize. It’s unwise to get too invested in this question too early, because it can put the cart before the horse. But do consider this in advance and as you go along: What will your legacy be? When you find something that’s working as you intend, or working perhaps *despite* your intentions, how will you know? How will it be documented? Sustained? Paid for? Paid forward? Who will carry this ball after you are done, and how will that happen? Who will celebrate, when, where, and how?

VII. A Conclusion

Let me close on two notes, returning briefly to my geographic metaphors — Pittsburgh and Silicon Valley, stability and change, and the lives of exploration and imagination that Lewis & Clark led — and the relevance and contribution of Vince Immel, in whose name and honor I am speaking today.

Here’s the Silicon Valley-ish note: Among my friends and colleagues I’m known for having a larger than usual appetite for trying new things and living comfortably with the fact that most of them don’t work out. That probably makes me an outlier among full-time faculty these days. I gave up law practice and became a law professor precisely because I wanted to be able to take more professional risks, rather than fewer. And on the whole, even before I received tenure, and long before the world of legal education approached a bunch of critical questions about its future, I realized that I’d made the right choice. I have tried a lot of things on my list of “actionable” possibilities myself, or I’m the process of trying them right now. Some things have worked, or I’m optimistic that they will work; a lot of things have not worked. I’ve learned that you have to have a thick skin, resilience in the face of obstacles and failures, and the ability to project the attitude that if you’re not failing, then you’re not trying hard enough. One of the lessons that I learned in law practice and that I still apply today and teach my students is this: If you never make the low probability arguments, then you never win the hard cases.

In other words, before giving too much weight to what I’ve said, know yourself, your risk threshold, and your personal temperament. But also know this: there’s much less assurance these days that what worked in any professional career a decade ago will continue to work as well going forward. Higher education is subject to many of the same economic and cultural forces that are reshaping the legal profession and other professions. The ground is shifting, tectonically. Will a rupture come soon?

Here’s the Pittsburgh-ish note: It’s possible to read the career of Vince Immel as representing all that I’ve tried to distinguish. His kind of rock-solid consistency and commitment is, in a way, exactly what is keeping legal education and legal educators from embracing whatever new paradigm is emerging under their feet.

And that is, I believe, an entirely wrong way to look at him and to look at the circumstances of the modern legal profession. If Pittsburgh and other former industrial cities are slowly becoming relevant again today, I think that the metaphor applies at that level as well: we need to look differently at what made them great in the first place.

I never knew Vince Immel, but I knew teachers of his generation and what I understand to be his temperament. And at their best, they embodied exactly the collection of values and the spirit of service that is integral to the continued success of any discipline, profession, or community in the face of challenge and disruption. Gruff and uncompromising when that’s appropriate; unfailingly empathetic and loyal in appropriate measure. Those are enduring values and skills, regardless of your personal taste and interest in the new. He stuck with what he knew; it worked. But you can’t “be your own Skunkworks” unless you have a bit of Vince Immel in you, too.

Thank you.

[1] This is a thin statement. I wrote a long, thicker version of Pittsburgh’s story and published it as Contrasts in Innovation: Pittsburgh Then and Now, in Innovation and Entrepreneurship in Evolving Economies: The Role of Law (Megan Carpenter, ed., Edward Elgar Publishers, 2012). The piece is available at
[2] I grew up in Menlo Park. When I was growing up, the region was not referred to as Silicon Valley. But it has a long history of nurturing otherness. See Fred Turner, From Counterculture to Cyberculture: Stewart Brand, the Whole Earth Network, and the Rise of Digital Utopianism (2008).
[3] The Innovator’s Dilemma was first published in 1997 and remains both popular and controversial. Among the best known and most pungent recent critiques is this one, from Harvard history professor Jill Lepore. The Disruption Machine: What the gospel of innovation gets wrong, The New Yorker, June 23, 2014,
[4] Lockheed’s current Skunk Works website appears at
[5] The actual line is “You’re going to need a bigger boat.” Jaws, directed by Steven Spielberg, was released in 1975.
[6] The text of Professor Marcus’s remarks is available at
[7] William D. Henderson, Underestimate Harvard’s New Admissions Strategy at Your Own Risk,, March 30, 2017,
[8] The book is Mireille Hildebrandt, Smart Technologies and the End(s) of Law (Edward Elgar Publishing, 2015). The review is Ian Kerr, The Devil Is in the Defaults, 4.1 Critical Analysis of Law (2017),
[9] To reduce this to a memorable phrase, one may substitute the words of Chevy Chase in the movie Caddyshack (released in 1980): be the ball.
[10] I have become a big fan of Frances Hesselbein, who emphasizes that leadership is not about what you do, but instead is about who you are.
[11] This is a nearly unavoidable and possibly unwise invocation of the wisdom of aged rock stars.
[12] Critiquing the idea that there might exist something called a “law of cyberspace,” Judge Frank Easterbrook wrote pejoratively of “the law of the horse.” Cyberspace and the Law of the Horse, 1996 U. Chi. L. Forum 207, Lawrence Lessig famously replied to Easterbrook in The Law of the Horse: What Cyberlaw Might Teach, 113 Harv. L. Rev. 501 (1999),
[13] Consider new programs and courses on design thinking with and for lawyers and law students at law schools at Northwestern, Chicago-Kent, the University of Southern California, and Stanford, among other places.
[14] Bill Henderson argued that identifying and organizing a small number of change agents within a law faculty would be an effective change management strategy. See William D. Henderson, A Blueprint for Change, 40 Pepp. L. Rev. 2 (2013), I am less optimistic than that.