What's the Use?
What do you do when you know which way the wind is blowing?
“Everything in Between” is about the systems, institutions, and practices that people build, “things” of a sort that sit in between us, between groups of us, between “us” and “them,” and between us and other systems and institutions that seem terribly far away: “the market,” “the state,” the universe, and so on. Once a week, usually on a Monday, I’ll have something new.
The phrase “so what?” is the characteristic response of academics with attitude, a technique for sharply and quickly one-upping colleagues who explain complex social phenomena with elegant analysis. How is this relevant, even useful? Law professors are especially notorious for this sort of thing, perhaps sensitive to the delicate status of law in the modern academy. Law is not history or sociology or economics or information science; faculty are not expected to be credentialed with terminal degrees (PhDs or the equivalent). And on campus, outside of the law building, law professors are often regarded simply as technicians of the code, lawyers without the clients. “So what?” makes the claim that “proper” legal scholarship should be prescriptive, even normative. That’s what makes law different and special. To one another, law professors channel Stantz, speaking to Venkman. They expect results.
Last week, I wrapped up my essay on the past, present, and future of law schools. Here is the big picture summary. Like all institutions, “the US law school” has a history. The law school of the imagination arrived, and then began its slide into an economic chasm. The parent university entered the picture; law schools, like all of the schools, colleges, centers, and departments that make up the university, do not exist in an economic, organizational, or cultural vacuum.
So what?
Consider seven uses of the material.
Explanation.
In my experience, few professors care much or even know much about the business of the institutions that employ them and that they serve; they care about their own work, their own students, and their own careers. They care about their ability to “make a dent in the universe,” to borrow a quotation from Steve Jobs. Their focus makes a lot of sense, especially in law. US law schools have been around in essentially unchanged form for nearly 150 years, and “the university” an institution has been around for centuries - even if the form of the university, and especially the US research university, has a much shorter lineage. And “law” as a social construct is, to certain ways of thinking, a fundamental attribute of social order; without it, Hobbes wins. (No, not that Hobbes.) Why would anyone think that law schools generally might change their forms or functions? Why would anyone think that any particular law school might do more than evolve in the ordinary course?
Add to that summary the perception, especially among law professors, that law is a “prestige” discipline; a university that would touch its law school in more than modest ways is a university that is willing to trade status for cash. And, goes the thinking, no university would do that.
Would it?
Prediction.
If few professors care much about the business of the institutions they serve, even fewer likely spend time wondering about institutional futures. “What comes next?” is a question to be asked about their research, their graduate students, and their peers and colleagues.
The people charged with making predictions, and the people most attuned to explanations, are leaders. In the academic world, that means deans. Present deans, prospective deans, and perhaps former deans. Deans of all disciplines and schools, not only deans of law schools, and provosts - especially provosts. Most deans report to provosts. Deans, unlike professors, have sorts of accountability that more or less resemble what one sees in the private sector. Deans are appointed partly to keep the ship of state sailing serenely onward and partly to advance a “vision,” whatever that really means. They are asked to look forward, most of the time, rather than to look back. But provosts really do expect results. Deans often do not benefit from the sorts of managerial discretion that one usually associates with CEOs, at least not with respect to the faculty. That means that being a dean can mean having the worst of both worlds: accountability without context, and without power.
That’s obviously an overstatement.
Is it?
Recommendation.
“What’s next?” is a question that can and should be asked both inside and outside of law schools, and not only by academics and academic leaders. US law schools are parts and parcels of a complex matrix of “rule of law” institutions, including everything from state and federal court systems to bar associations to the American Law Institute to the descendants of the West Publishing Company. There’s more: law school accreditors, lawyer licensing authorities, law practice regulators, elite private law firms, and corporate law departments. The modern US law school is, really, a product of all of these things, interacting tightly over the last 150 years. It’s easy for professors to blame Harvard for creating a legal education model that all of society has been forced essentially to live with, and to blame professors for failing to train lawyers who meet critical social and economic needs, but the truth is, as Pogo said, that we’re all in this together.
It is possible, in other words, there is nothing to be done other than to ride the ups and downs of economic and cultural waves. No single point of possible institutional intervention offers enough leverage to ensure that change ripples through the system as a whole. Make lawyer licensing less dependent on 20th century educational practice? Make law practice regulation less dependent on lawyer licensing? Mandate greater “experiential” training for new graduates? Reward law schools that hire fewer (or more?) “scholarly” faculty? Maybe institutional inter-dependencies are so tight and so enduring that all of this analysis adds up to precisely nothing.
Does it?
Adaptation.
Despite what I wrote above, law school deans and professors are far from powerless. They can create new courses, new specializations, and new research centers. They can add new forms of experiential learning; they can collaborate with colleagues across the campus in building new opportunities for students and new funding streams for joint research. They can partner with community organizations of all sorts to create learning opportunities and pathways to careers and to nudge those communities forward. They can double down on preparing students not only to take and pass a bar exam but also to survive and thrive in a world dominated - for better and for worse - by automated systems that we’re now calling “AI.” They can build scholarly communication enterprises that amplify the research and scholarship of the faculty, which sometimes really does put a dent in the universe.
At the same website where I posted my “bleak future of legal education” essay, I also posted a couple of resources (a list of faculty, a list of curricular themes) that might inspire some of “the who” and “the how” of adaptive, evolutionary change.
As any leader or manager knows, even in a thriving enterprise resources are often scarce, and judgments need to be made. Priorities matter. How should conflicts over time, money, and attention be resolved? The appearance of abundance can be a trap; it’s not possible to be all things - and to offer all things - to all people.
Is it?
Innovation.
In my Leadership class last week, one of my wise students wondered whether it’s even possible to chart a path for US legal education that departs from the line set down by Harvard. She’s not wrong to ask, and she may well be right about the answer. At my own school, when I’ve sat in on conversations about possible future program directions, I’ve sometimes been asked: is Harvard doing this? What has Yale done? Path dependence and status hierarchies for the win, I guess.
But if we collectively want to change the system of legal education in more than incremental ways, that means “innovation” of various sorts. And there are other innovation routes worth imagining, even if they present hills to climb that are almost unbelievably steep, or if the price of success might be so high that we’d say “was the game worth the candle?” (“Rule of law” values, for example, are key. Can and should they be preserved and extended in ways other than the ways we’ve got now?) The worlds of management and of social movements are full of stories of (and strategies for) institutional change. Read Collins, “Good to Great,” and Christensen, “The Innovator’s Dilemma,” for well-known introductions. (I’m well aware of their limitations and of the importance of ensuring that the authors’ feet touch the ground. I met Clay Christensen in person only once, around the time that his book was published, and I will never forget the image. The context was an after-school meeting of Cub Scouts and parents, and as one of the leaders, he was wearing a Boy Scout uniform.)
Ten years ago, I spent some time and thousands of words on precisely this exercise. Give me $200 million, I suggested, and here is the law school of the future that I’d build. My cost estimate was a little low; today, the number would be closer to $350 million to $400 million. If I wrote out a spec today for that law school, I’d probably make some different choices. But the general observation remains the same. We don’t need contemporary and future law schools to do all of the things that they do today, and we need some training systems other than law schools to do things that law schools are not doing today. We don’t need all law schools to all do the same things, with the same outcomes for all of the new lawyers in the world. Institutional pluralism can be a source of strength.
Right?
Investment.
The money has to come from somewhere, even if we assume simply that the current system will carry on sub-optimally. What’s the source? What will motivate a provost to maintain internal budgets at their current levels? What will motivate law school alumni with the critical “capacity to give” to pony up meaningful dollars to maintain a given law school’s glorious legacy or - better - to help it build a new one? What will motivate fancy law firms to put their names again and again on new classrooms, libraries, law school buildings, and - most important of all, to faculty - endowed professorships?
I wrote earlier that fundraising depends above all on vision: “Donors want to invest in a bright future, and the brighter the better.” The flip side, which I omitted, is equally true: Donors cannot abide institutions and leaders who lack awareness. A dean who isn’t aware of the critical state of legal education - and of the legal profession as a whole - and who isn’t aware of the fact that there are key choices to be made, programmatically and economically - won’t be persuasive.
Any given school, and the system of legal education, training, and practice may look just fine right now, but why should anyone give money to an organization that doesn’t know that there is rough weather ahead?
Ahead?
Recruitment.
It comes down to people. “The rule of law” is people; the institutions that build and sustain the rule of law are people; the purpose of all of this is people. People today, people yesterday, people tomorrow. I have two quotations in my head as I type. One is generous - Dustin Hoffman, in “Tootsie”: “That’s what Southwest General is made of: people.” And the other is critical, or worse - Charleton Heston in “Soylent Green”: “Soylent Green is people.”
But I also remember a conversation that I had with a good friend about 15 years ago, when I explained that I had stopped assessing my students using the stereotypical end of semester “issue spotting” law school exam. I concluded early on in my teaching career, and I still believe, that the concept of that exam has long outlived whatever usefulness it might have had.
(The exam is justified by its defenders even today, implicitly at least, by an early 20th century educational philosophy that judges it fair to expect that law students will, for all practical purposes, learn the analytic content of the law by teaching it to themselves in the course of preparing for a comprehensive exam. That philosophy makes heroic assumptions about pre-law school educational training and post-law school opportunity for professional training that are validated, in practice, much more in the breach than in the observance. The best thing that can be said about the assessment strategy and the burden it imposes on students is that they bear a faint resemblance to things that lawyers in practice sometimes have to use.)
I explained that I ground my different assessments in a style of practical problem-giving that is familiar to me from my own practice experience and that I validate periodically by talking through my assessment techniques with former students, with senior practitioners, and with clients (that is, people in organizations that pay for legal services, both inside and outside their organizations). I give my students short open-ended assignments during the semester; I do not structure them around “issue spotting”; and I mark them (to use the non-US term) aggressively, evaluating writing and rhetorical attributes as well as “legal” discipline.
My friend, a veteran and highly-regarded legal scholar, said: “I can’t do that.” Meaning, I believe: that’s not part of the law professor’s job description and not part of the law professor’s skill set.
As I look at the talent pool of prospective law professors, as I look at how they are being mentored and trained, I see a conceptual doubling-down on that response. I see a lot of energetic, ambitious, and really smart people aspire to academic careers in law yet who have, so far as I can tell, absolutely no idea that they are leaning in to a system that may be eroding beneath them. Some of them even have different sorts of excellent law practice or other “real world” experience, and they are often advised to borrow the analytic core of that experience to use in developing their academic careers - and to jettison much of the rest.
I’m not here to make a case for prioritizing teaching over research in academia, including legal academia, and I’m not here to plead for prioritizing clinical education. Instead, my point is that law schools are the sum of the talent that they recruit as well as of the reputations that they inherit, and their ability to weather the storms ahead (ahead?) will depend not only on their financial resilience, and not only on the tactical and visionary attributes of their leaders, but on the collective imaginative capabilities of the faculty. Those come from many sources, including outstanding researchers as well as outstanding teachers, and from so-called “classroom” or “podium” faculty as well as from the other silos of the contemporary law school - legal writing faculty and clinical faculty. Recruiting new faculty might prioritize imaginative capabilities over following the established pathways of field-specific scholarship or 20th century teaching modes.
Or so I imagine.
Next week: to the university, and beyond.