Future Law Works is intended to be both conversation and activism. The challenges that it takes up are far from new. What distinguishes this effort is the focus on scale and scope — beyond “reform” of the existing three-year JD degree, the focus on examining problems and opportunities in broad, systematic ways, and the focus on moving from analysis to action.
Law, legal education, and law’s institutions in society are critical issues both for themselves and also for their relevance to the future of higher education generally. Few of the economic, technological, or cultural challenges that confront today’s law schools differ significantly from equivalent challenges facing contemporary universities and colleges.
The following extension of those premises is adapted from Michael J. Madison, An Invitation Regarding Law and Legal Education, and Imagining the Future, distributed online in December 2017 and included in the invitation to participate in the September 2018 “Law’s Futures” roundtable:
Consider a possible constitutional (small c) convention about the future of law and the legal profession, and legal education in particular.
Five themes – targets — dominate continuing conversations about the state and future of legal education, and by extension about law and the legal profession as a whole. They should be interwoven in future-oriented discussions, and in doing so should promote the production of actionable plans for institutional designs to support (i) prospective lawyers; (ii) law teachers, faculties, and schools; (iii) institutional leadership in higher education, the bench and bar, regulators, and organizations and institutions that consume and rely on law and legal services; (iv) developers and deployers of legal tech, legal operations, and legal services organizations; (v) the global legal community; and (vi) individuals and communities that rely on law, lawyers, and legal institutions for health, safety, security, and prosperity.
There is a purposeful sense in which legal education stands in here for higher education generally.
The five themes are:
Holding all other aspects of today’s legal system constant, the economics of training for and entering the profession are terrible. The economics of operating a law school today are terrible. The economics of access to legal services and justice are notoriously bad. There is no reason in principle that these overlapping and intersecting concerns will align in a way that gets the right people in school, trains them in the first (and reasonable cost) ways, and puts them to work helping people and communities in need. Management-oriented professionals and provosts look at these problems and ask: what’s the value proposition for new lawyers? What’s the business model for law schools? Welfarists look at these problems and wonder: How should the cost of justice – a public good – be distributed across society? Are there ways productively to align those questions and answers, and other relevant ones?
2. Technology and organizations.
Macro changes in the institutions of law practice and legal services are driving micro changes to ways in which lawyers practice and in which legal services and legal information are provided to society and to clients. The sum is simply but importantly a story of institutional heterogeneity, with technological dimensions, geographical dimensions, organizational dimensions, Changes at both macro and micro levels drive economic fragility and instability but they also drive changes in what legal services are needed, where they are needed, and who supplies them and how. What’s cause and what’s effect is a complicated story. It is enough for now to observe that the macro changes are happening, and they’re accompanied by substantial effects at micro levels.
3. Professional preparation.
For at least 25 years, dating to the MacCrate Report, the organized bar has reliably pushed law schools to do more to prepare new lawyers to enter the profession with basic training as practitioners. The contemporary version of this argument, expressed largely in the Carnegie Report of 2007 and in recent changes to ABA accreditation standards, focuses largely on how law schools should build “experiential education” into their curricula. In what respects should the argument expand beyond the traditional three-year degree, asking more broadly about the character and role of professional legal education. Should legal education continue to be centered exclusively in law schools? What about technical schools of narrower sorts, or undergraduate education? Should law schools continue to be parts of universities? If not, in either case, what does a more plural institutional environment look like, including not only training but licensure?
4. Professional identity.
The Carnegie Report consolidated and accelerated a movement among legal educators and practitioners to cultivate a mode of legal education clustered around professional identity rather than professional practice. The long-standing questions that framed the legal profession and law schools — “what should (new) lawyers be able to do, and what should they know?” – are supplemented, even displaced in part, by new questions: What or how should lawyers be? The Carnegie Report framed these in terms of “professional identity,” a path that often leads to ethics, professional responsibility, service, and access to and provision of justice and that also leads to leadership development and emotional intelligence, among other things. Each of those topics is itself the subject of diverse interpretations, approaches, and implementations. Does “leadership for lawyers” take us back to a 19th century vision of the citizen lawyer’s role in the community? Does it offer training and support for lawyers who are likely to become manager/leaders of modern legal businesses, both large and small? Does it entail skills in strategic development and visioning that are often little in evidence in modern organizations of all sorts – and even in community engagement and personal development? In the pathways to professional development and practice, and in a professional environment that is increasingly heterogeneous, where do those ideas and ideals belong?
5. Law itself.
Economic, organizational, and technological changes open windows onto dialogues about the nature of law, the rule of law, and the character of legal systems. That’s not only a comment about the character, practices, and durability of formal, long-standing legal and political institutions, that is, branches of government, the administrative state, international legal institutions, and so on. It’s also a comment about the relationships between law and governance. One might contrast the accepted story of the American Founding Fathers of the 18th century with the emerging story of the Founding Fathers of the 21st century: Gates, Jobs, Bezos, Brin and Page, and Zuckerberg. Naming those names is a partly-serious way of capturing an obvious but critical and enduring question about the rise and power of technology generally and platforms and algorithms specifically in mediating – even directing, in some cases — an enormous swath of contemporary human experience.
The challenges posed and reflected by 21st century technology are governance challenges, not merely legal challenges. Governance challenges in the digital networked space are only going to get larger and more complex. Scholars have begun to provoke us by synthesizing visions of lawyers and the legal profession in this newly-mediated environment with a vision of the role of law in society (should each platform get to claim the power to offer a law-ish ruleset?), and by re-drawing links between the character of law and human flourishing in its broadest sense. Much less work has been invested in the institutional payoffs of those conceptual questions. What should a trained lawyer be able to do and know in this new environment? Does it continue to make sense to frame that question in terms of “lawyers,” a word that evokes a very analog sort of problem-solving, dispute-resolving, counsel-providing humanistic modality? Should we discuss that question and its answers in descriptive as well as in normative terms? Does the 21st century need “law schools” as those were conceived in the 19th century and grew to maturity in the 20th century? Maybe it does. If so: why? If not: what should take their places?