Paul L. Caron

Thursday, September 24, 2020

Madison: Legal Education's Waterloo — Urgency, The Fire Swamp, And The End Game

Following up on my previous post, Legal Education Faces Its Waterloo As Wile E. Coyote:

Mike Madison (Pittsburgh), Legal Education’s Waterloo: Urgency:

Just about every provost in the US, just about every law dean, just about every former law dean, just about every would-be law dean, and a growing number of “regular” law professors know that the financial jig is up. At most law schools, student tuition dollars total nowhere near the amount needed to pay the school’s operating expenses. At a few law schools, endowments and real estate portfolios help a lot. At many, parent universities cover some and even much of the budget. University piggy banks and patience may be running thin. Legal education is far from the only part of the university that struggles to pay its bills. It’s often a smallish part, and in research universities, it rarely brings in many research dollars. ...

Mike Madison (Pittsburgh), Legal Education’s Waterloo: The Fire Swamp:

TL/DR [Too Long/Didn't Read] version: Strap in. Change is going to be messy, maybe ugly, and no one has a game plan for it or for you – practitioners, judges, academics, students and new graduates, entrepreneurs. Least of all me. It’s like the fire swamp, from The Princess Bride. Survive it? You’re only skeptical because no one ever has. ...

The challenge now is that there are at least three stories competing for the future of law. Pick the right story, and you may do better. Pick the wrong story, and you may do worse. Which is which? Welcome to the awkward, messy, and ugly middle space.

Mike Madison (Pittsburgh), Legal Education’s Waterloo: Still in the Fire Swamp:

Story One: Evolutionary (or adaptive) professionalism. ...  You don’t need to do much except carry on, ride out the tough times and celebrate the good times.  There is little need to lead. Be as distinctive as you must to maintain your competitive position. But in the spirit of E.M. Forster, only respond.

Story Two: Disruptive change. Story two is more complicated.  We might call this Christensen change, because the idea of disruption has gotten closely aligned with the work of the late HBS professor Clayton Christensen. ... [Y]our story of legal education may be a story of innovative fits and starts, some of them unexpectedly dramatic, rather than a story of adaptation and improvement. To thrive, you need to identify the incumbent(s), and the upstart competitor(s), and you need to map their respective market shares and strategic moves. Which role or hand are you playing? What cards have you been dealt? Where are you on the change curve? Is some kind of Skunk Works appropriate? Feasible? For whom? By whom? What would it do?

Story Three: Interplanetary re-alignment. At their core, stories one and two are both about maintaining legal services, the legal profession, and legal education in some versions of their present selves. Maybe change will be incremental; maybe change will be sudden. But the essential identity of the universe will be preserved. Charles Darwin (gradualism) and Stephen Jay Gould (punctuated equilibrium) offered different stories of evolution. They were both evolutionary biologists.

Story three is told by a quantum physicist. What if the universe that’s coming is an entirely different universe? ...

Mike Madison (Pittsburgh), Legal Education’s Waterloo: The Last of the Fire Swamp:

Despite the many flaws of law schools today, and despite naivete, ignorance, and obstinacy on the parts of schools, faculty, law firms, and practicing lawyers, I’m optimistic about the future.  Why?  Because I look at the large number of things in flux today, even looking only and specifically at law practice and legal education, and my story-oriented interpretation is that somethings (plural) are starting to shake loose. The scriptwriters, as they say, have given us a lot of plot points to chew on. There is evidence of instability, in small and maybe large respects, and the instability is resonating more powerfully than it has in the past. My optimism is intuitive: I’m optimistic that we may be able to decipher the instability, decode its sources and anticipate its payoffs, and plan and respond to it in ways that eventually produce great results. Like Westley and Buttercup in The Princess Bride, we may get through the Fire Swamp.

I may be entirely wrong.

But the following things are worth watching. ...

Mike Madison (Pittsburgh), Legal Education’s Waterloo: The End Game:

Legal education of the future will almost certainly be more pluralistic, institutionally speaking, than it is today.  Right now, there is one path to recognized legal expertise in the US, and that (with only narrow exceptions) is licensure as a lawyer after earning a JD from a law school accredited by the American Bar Association. Look at careers in law as they are experienced in many other jurisdictions; look at other professions in the US.  Multiplicity of functions almost always means multiplicity of education and training pathways. Some lead to some form of licensure, and some do not.

Education and certification programs other than the JD are likely to consist of blends of different subject matter (“people” skills; competencies in addition to analytic training and substantive legal knowledge; and role- and function-specific knowledge) and different delivery modes (in-person, online/remote, self-directed, customized or customizable on a per student basis, artisanal, mass-delivery, and/or scalable).  Much of the fluidity and flexibility to be found in these new pathways likely will influence the design and delivery of JD programs.  The arrow goes both ways. Much of the innovation that will lead to those things is being tested today, in small ways, in today’s law schools.

Will any of that diversity be up and running any time soon?  I doubt it, but who knows.  Within 5 years?  Maybe.  Within 10 years?  That strikes me as much more likely.

To understand why the pace of change is likely to be so slow, consider two things:  where relevant and provocative innovations may come from, and some of the conflicts in the premise that have to be worked out. ...

I’ve agreed in broad outline that the future of law and legal education look substantially different, eventually, than the landscape that we inhabit today.  But the nuances are different, or might be. The future might be better; it might be worse; it might be both. (My money is on both.)  The nuances matter.  But the nuances bring messiness, and it’s going to be difficult to sort through the messiness to maximize the chances of good outcomes and minimize the chances of bad ones.

Legal Ed Scholarship, Legal Education | Permalink


I am enjoying the turnabout. When I was in law school, it was notoriously known that LS tuition payments subsidized the undergraduate school. My Dad, also an alum of the same school, said "Twas ever thus."

Posted by: SgtDad | Sep 24, 2020 6:30:09 PM

Your obligatory reminder that the GOP is continuing to advance updates to the Higher Education Act that will repeal GradPLUS Loans and make income-based repayment plans less generous. It's staggering how many law profs can elide this issue, which will put EVERY school in immediate existential crisis. Law school tuition doesn't cover operational expenses? Well, imagine a future where grad students can only borrow $28,500 per year in federal student loans. That's less than half the sticker tuition at many private law schools today, to say nothing of living expenses (assuming COVID is ever brought to heel). And I do not think law students will be in such a rush to borrow $30k, $50k, or $70k per year in private student loans if they remain nondischargeable and non-income-based repayment-eligible. In a world where the median starting salary for law school grads is barely over $50,000 per the tax return-sourced information at the Department of Education's College Scorecard, the prospect of having a four-figure student loan payment after taxes is just not going to be tenable.

Posted by: Unemployed Northeastern | Sep 24, 2020 10:25:10 AM