Future Law Works

In this series of posts about the law school casebook [first post here] [second post here], I’ve suggested that the casebook is both emblem and instrument of how the legal profession perpetuates itself as a field. 

The obvious subtext is that I believe (along with others) that the profession is overdue for some substantial re-thinking and re-implementing, and that change begins at home. [Since this series began, the chorus of similar calls has gotten louder and louder.  See, for example, this post from Dan Rodriguez, “Toward evidence-based legal education reform: First, let’s experiment,” and this announcement of an interesting new venture at the University of Pennsylvania.] Lots of time, attention, and money are flowing into re-regulation of law practice, legaltech solutions, and other things.  Some good time and attention is being directed to modifying the edges of legal education, particularly via new forms of experiential education.  Almost no time or money is going into re-thinking the intellectual backbone of law’s entire system of systems.  That’s my interest in the casebook.

My occasional series about the law school casebook continues. [First post here.] This is about the future of law, law practice, the legal profession, and legal (and higher) education, filtered through the lens of contemporary law’s most essential artifact, the teaching tool that unites every professor, every lawyer, every judge, and every student, regardless of field, in a shared experience.  The casebook.

Law professors love to write things like “I use this as a lens for that,” because it makes them feel and sound like their academic colleagues in other parts of the university.  “We’re researchers, too!,” we like to think, even if we rarely say so out loud. 

That micro bit of casual academic sociology is the key to this installment, which is in other respects an effort briefly to explain where casebooks come from and why, despite generations of legal professionals complaining about them, neither their fundamental forms (including prices) nor their contents seem to change much.

By design, casebooks are set up rarely to give readers the contents of legal doctrines, but instead to provide students with an annotated set of primary source materials from which students are expected to discern the rules. As teaching texts, as a rule casebooks are guides for the soon-to-be-initiated rather than actual summaries of law.  They are devices for migrating generations of students out of “student” mode, in which they are presumed to enter law school, and into “practicing professional” mode, in which they exit it.

This is about books.  It’s about legal education casebooks.  A lot of what follows comes out of my experience as a law professor and speaks to law schools and law students and the legal profession.  A lot of it dovetails with closely related questions about books and teaching and education in colleges and universities generally.

But I’m not writing principally for the benefit of my faculty colleagues.  I’m writing principally for the benefit of practicing professionals, who often know little of the inner workings of their own educational systems, and also for the benefit of present and future students, who often know even less.

This post concludes a long response to a terrific recent piece by Mark Cohen, in which he critiqued law schools for failing to respond appropriately and systematically to an emerging “skills gap” between baseline legal education and the needs of the technology-dependent legal market.

The first part of the response, from two weeks ago, agreed with the gist of the critique but introduced the idea that the critique opens a broader window on the relationship between legal education and the market for lawyers. The second part of the response, from last week, explored the meanings of the “law factory” metaphor and linked it to the uses and limitations of “the legal industry” as an expanded metaphor.

That second part concluded with a series of mostly rhetorical questions about what the market might want and what the market might need. How are we to know, and when, and who are we to ask the questions, anyway?

Here’s the third part, the payoff.

This post continues a long response to a terrific recent piece by Mark Cohen, in which he critiqued law schools for failing to respond appropriately and systematically to an emerging “skills gap” between baseline legal education and the needs of the technology-dependent legal market.

The first part of the response, from last week, agreed with the gist of the critique but introduced the idea that it opens a broader window on the relationship between legal education and market.  The end of the first part, and the beginning of this part, is this:  The law factory.

It’s become fashionable in a lot of for-profit legal worlds to stop referring generally to “the legal profession” (that’s anachronistically narrow) and to re-label its emergent parts as “the legal services industry,” or just “the legal industry,” or in tech biz shorthand, “legal.” I’ve done it myself.