Like any established and successful institution, the legal academy resists substantive change to the status quo. Law schools have enjoyed a remarkably profitable and high profile route to the pinnacle of professional academic achievement over the last several decades. Enrollment rosters soared, tuition skyrocketed and graduates enjoyed immediate and lucrative employment opportunities. The best and brightest undergraduates chose the law school professional education route over others. They did so because the rewards on the other side vastly outweighed the costs and the risks of undertaking the rigorous academic rituals of legal education. Law students incurred astronomical debt burdens because the payoff came almost automatically upon graduation.
How times have changed! Law schools like law firms and corporate legal departments now confront a radically different reality. As the Great Recession changed commerce, it also changed the legal service delivery model. As a direct result, the legal academy no longer enjoys the prospects of supernumerary status as the professional route of choice for the nation’s (and the world’s) brightest students. Maintaining high level candidate pools for incoming One L’s has become more challenging as the employment opportunities upon graduation and entry level compensation continue to shrink.
Moreover, the legal academy has been bruised and battered by the market it serves for failing to produce “practice ready” lawyers. Unlike medical schools and every other professional academy, law schools have maintained a high order disdain for practical education. As a result, many of the sophisticated purchasers of legal services (the 200 companies that purchase 80% of the global legal services) refuse to “pay for the education” of first and second year associates. Law firms, governmental and corporate legal departments are left to complete the legal education of “newbie lawyers” by providing on the job training without the capacity to charge billable hour rates to these savvy clients. (Far more erudite commentators than I have dissected these developments in numerous well stated commentaries. See: Bill Henderson, Harvard Law, Steven Harper, Richard Susskind, Lawrence Krieger, Larry Richard, Kennon Sheldon)
Nonetheless, the vicious cycle continues. Law schools retrench and resist change. Legal service providers and consumers decry the lack of relevant education provided to law students. Finger pointing and “it’s not my fault” rejoinders echo down the halls of law firms, law schools and corporate legal departments. Some suggest that as Rome burns, the leaders of law school reform are fiddling the future away.
It does not have to end this way.
First, it should come as no surprise that innovation from within any established (and highly successful) institution rarely happens. Telling the “millionaires” in a law firm or law school that their business model is broken has a snowball’s chance of surviving the intense fires of skeptical opposition these critics of innovation are sure to unleash. No one invested in the status quo can know what they don’t know. They should not be expected to know.
As Clayton Christiansen has developed so compellingly in The Innovator’s Dilemma, even incremental change (“sustainable change”) in an established institution can only proceed at a pace supported by the vested interests of the institution. The glacial pace of change required to maintain the trust of those whose livelihoods depend on staying the course cannot be quick, easy or anything other than limited by the habitual (precedent focused) minds of those in charge of the institution’s direction.
To the surprise of many, law school deans are not in charge of this process. Even the most innovative thinking law school dean cannot change course more rapidly than the faculty permits. Most law school faculties have final say over the direction, content and innovation of curriculum design. Substantive changes must be approved by the faculty. The deans of most law schools can only seek to influence the views of the faculty.
The problem with sustainable innovation is that more disruptive innovation driven by outside market forces can quickly overtake the speed with which the institution is able to change indigenously. Unable to withstand the overwhelming power of disruptive change, these institutions cease to have relevance and succumb to the new reality surrounding them.
For radical change (“disruptive innovation”) to occur in an institution which has enjoyed decades of success, the change typically takes place through the creation of “skunk works”. The term is derived from the Lockheed Martin Advanced Development Programs operations which created numerous innovative aircraft like the U2, the F-117, the Raptor and the F-35 (currently under development). The defining trait of the skunk works is “a group within an organization given a high degree of autonomy and unhampered by bureaucracy, tasked with working on advanced or secret projects.” (Wikipedia)
As Christiansen points out, change initiatives in long term successful institutions require independence of thought and experience that the institution does not possess. IBM has successfully reinvented itself several times by strategically creating independent operating units staffed with divergent professionals from outside the company. These “new thought” enterprises can experiment with new technologies and methods about which the established order is unaware or simply distrusts. Successful disruptive change can be initiated and its value demonstrated in relatively short order allowing the institution to learn what it does not know based on its experiential knowledge.
Surprisingly, the totality of law school curriculum and service offerings are not set in stone by American Bar Association mandates. The U.S. Department of Education has approved the Council and the Accreditation Committee of the ABA Section of Legal Education and Admissions to the Bar as the accreditation body for U.S. law schools. Law schools have fairly broad discretion to create alternative curricula offerings from what has been a traditional collection of largely required courses taught didactically by academic subject matter experts.
Basically just over one third of a law school curriculum’s course work is ABA Council mandated. The remaining two thirds of law school course offerings can be creatively designed to produce “practice ready” lawyers if the law school so desires and insure the critical theoretical bases of law are covered as well.
Resistance to practice ready academic training does not come from the law students, the client community or the law firms. Instead, the true law school stakeholders are all crying for more practical training of law students. To determine how to best meet the market demands of today, law schools can create experimental offerings to develop a more robustly practical legal training model without jettisoning the traditional canon of legal studies. Law school “skunk works” can provide sound pedagogical modeling of new ways of educating lawyers without either being constrained by or limited in experimentation to the prevailing view.
Flipped classrooms, hybrid course offerings, experiential learning, off campus clinics are all proving to be more effective tools for training students than didactic “talking head” lectures. Likewise, far more instructive methods of learning law and its practical skills exist than Prof. Kingsfield-style Socratic destruction and reconstruction of the student.
Law schools which choose to lead in the future education of Tomorrow’s Lawyers will be those that incorporate these and many additional techniques of learning into their curriculum. These are the law schools which the “best and the brightest” will choose and which will be financially supported by their alumni and the corporate client community. As some law schools retrench and stay the course, others will respond to this disruptive moment and generate appealing options for students who wish to pursue a legal career.
Many law schools are creating and nurturing legal academy skunk works. ReinventLaw at Michigan State University College of Law, Law without Walls at Miami Law, Suffolk Law School’s Institute on Law Practice Technology & Innovation are some of many examples of legal education innovation. Out of these initiatives are coming great students, great legal education and the New Normal of legal training. The new era of legal education will be increasingly multi-disciplinary, skills based and relevant to the practice of law. However, “traditional legal education” will be no less critical as a diverse faculty brings together the best in academic rigor and practical relevance. “Both/And” in legal education. What a concept.
Sustainable legal education is achievable. Bring on the skunk works!