When historians of the 31st Century convene to consider this question:
How did America manage (or fail) to renew itself at the beginning of the 21st Century to continue its remarkable period of economic, political and cultural leadership?
They will consider themselves quite lucky if they have comprehensive access to the proceedings of the Association of American Law Schools annual meeting last week in Washington, D.C.
The AALS meeting, at which I had the opportunity to speak, presented in very clear terms the central question of our time:
Will smart and privileged people be able to pull together to effectively manage structural change, or will they use their skill to protect their privileges, even if it’s clearly against their long-term self interest?
The backdrop of the meeting was set by two articles:
David Segal’s piece in the New York Times on the problems of newly minted lawyers and the frustration with the cost of lawyers; and my friend Bill Henderson’s cover story in the ABA Journal on the law school financing bubble.
Neither critique requires us to throw out the (law school) baby with the bathwater. They both simply point out an unhealthy level of disconnect and a need for reform.
When an industry like law, which enjoys a protected market structure, has been aggressively boosting prices for a generation, it is legitimate to call into question the rising costs. Arguments about cost are an indication of overall problems with the health of a system, and they should lead those who care about the system to ask some searching questions about what is and isn’t working.
My talk—available at Legal OnRamp—was my usual mix of change, technology and economics, suggesting that law school (because it has to) will become more change-oriented, client-engaged, technology enabled, metrics-focused and efficient. To see more concrete suggestions, check out the work of my co-panelist and New Normal contributor Susan Hackett.
There are two models of how change happens:
1. Deliberative change, which is our default mode as lawyers, where a formal decision-making body convenes to adopt new rules according to explicit processes (think Constitutional Convention), and the change is implemented more or less at once.
2. Distributed change (also known as technology adoption life cycle or tipping point), where different actors embrace change in different ways and at different times, but in a fashion that is mutually influencing. (Here’s a cartoon showing the distributed model.)
In the distributed model, we can identify five phenotypes of change reactors, who were all very much in evidence at AALS:
•Innovators, who do new things because they like doing new things.
•Early adopters, who want competitive advantage over others.
•Pragmatists, who want to stick with the herd.
•Conservatives, who want to hold on.
•Laggards, who simply say “no way.”
So what were they all saying at AALS? Let’s take them in the opposite order.
Laggards: “don’t throw the baby out with the bathwater” (laggards love strawmen) and “why should I bother? I have tenure.”
Conservatives: “I’ve heard all this before. Nothing will change.”
Pragmatists: “I get it, tell me what to do, what is [School XYZ] doing?”
Early adopters: “Here’s the four initiatives we’ve launched. Will you come speak to our law school? What do you see that’s working?”
Innovators: “I am really depressed. No one is doing enough. My idea is the best one, everyone should adopt it.”
Beyond my general thesis, I certainly don’t predict the exact form or timing of change, although I have suggested some ideas in prior musings. But I will suggest to you that this is precisely where you’d expect a group of folks to be in the midst of a distributed change. Law professors (and lawyers generally) are clever people who can find ways to question innovations they don’t understand and conflate their self-interest with the public interest. So there will be plenty of folks questioning change at this stage. Law professors (and lawyers generally) are also capable and well-intentioned people who will respond to changing resources and incentives in a rational way. And the truly clever law professors (and lawyers) will develop powerful innovations that others will embrace.
If I can get a bit Hegelian on you, the key indicator of the correlation of forces for me was that most of the folks who approached me after my talk were early adopters, and indeed mostly deans. Because the deans have no choice but to confront (and so see fairly clearly) the mix of forces driving change. And when Rick Matasar, viewed as a leading innovator among deans, gave a luncheon keynote summarizing the state of change, the former dean of Georgetown Law, Judith Areen, who was putatively set up to provide a counterpoint to Rick’s change-ist approach, replied in essence: “Well … yeah, you’re right, but it isn’t easy.”
What you didn’t see at AALS, and you don’t see anywhere, is someone willing to stand up and comprehensively expound that “it ain’t broke, so there’s no need to fix it.” And while you can’t fault anyone for their natural tendency to fall somewhere on the spectrum of adoption, you can fault folks for their unwillingness to deal with information that challenges their preconceptions.
For the profession generally, and for each of us individually as the alum or other stakeholder of a particular school, it’s quite reasonable to ask the question of your school:
Given that many signs suggest significant change may be imminent, how “change-ready” are we? And how closely are we listening for further signs of change so that we are able to succeed if things do change fairly quickly?
As someone wrote me, “My two impressions of the meeting were: First, the amount of time spent talking about change compared to last year’s meeting was startling. Second, there are lots of ideas floating around, and there is not yet a broad consensus on what the right measures are (more adjuncts, more externships, etc.).”
Lots of folks (adhering to a deliberative mindset) come to a meeting like AALS looking for an “official decision on change” and come away frustrated. But the distributive-ists realize that every time ideas get shared and trends get reinforced, everybody moves a little further around the curve. Even when there’s no official decision, just a series of individual actors responding to different incentives, at some point—say in five to eight years—the battle will be over without a shot having ever been fired.
Paul Lippe is the CEO of the Legal OnRamp, a Silicon Valley-based initiative founded in cooperation with Cisco Systems to improve legal quality and efficiency through collaboration, automation and process re-engineering.