ABA Journal

The New Normal

New Normal for Law Schools?

By Paul Lippe

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It was intriguing to see the New York Times masthead editorial calling for reform after a news piece on the perils of law school education.

I am speaking at the American Association of Law Schools Annual Meeting (PDF) in D.C. on Jan. 5 on the topic of the Future of the Legal Profession and Legal Education – Changes in Law, and I have written about this topic here and here.

Some of the responses from the academy point to the importance of scholarship, the costs of delivering clinical programs, or the underappreciated change that has already been implemented.

But I see the issue differently. It is not that law school is incomplete in training lawyers—which by any definition it must be—but that it lacks engagement. (We can leave aside for today the fact that it costs too much, a sentiment now echoed by Education Secretary Arne Duncan, or why it’s OK that students have to take out loans to cross-subsidize faculty scholarship.)

Just this month I’ve seen four noteworthy reports:

• The General Counsel Roundtable report of five trends affecting legal departments.

• Altman Weil with its Chief Legal Officer Survey.

• Nabarro report and survey entitled “General counsel: vague about value?” (PDF)

• An interview with Richard Susskind.

Each describes essentially the same phenomenon: Law is growing more complex, clients aren’t sure what to do about it, but they know they can’t afford it.

By contrast to these reports “from industry,” what one rarely sees—with the exception of folks like Mitt Regan at Georgetown and David Wilkins at Harvard—is research from the legal academy that flows from engagement.

I spend a lot of time around Harvard Business School and see a steady stream of businesspeople visiting (usually to present their cases) keenly interested faculty. I’ve never seen anything comparable at a law school. Near as I can tell, the trend to disengagement has never been explicitly made part of the “social contract” between law schools and society. In a field that prizes transparency above all else, the legal academy has not been especially transparent (at least outside its own walls) about its move away from an engaged professional school to a scholarly endeavor.

This disengagement seems both unnecessary and ironic, because the world of law faces very engaging challenges—precisely the chance to solve problems which motivated most people to go to law school or become professors in the first place. (The further irony is that because they have no choice but to deal with these challenges, in-house lawyers are probably the most progressive force in law today. That’s not a proposition many professors would intuitively recognize.)

If law is taught primarily as a system of reasoning, where every situation presents unique or near-unique legal problems for which lawyers consider and devise their own solutions, then it simply can’t scale. Yet for the thousands of things organizations do every day that have a legal component to them—hire, manage and fire people, make stuff, manage data, interact with customers, enter into contracts, buy or sell assets or securities—law operates as a horizontal system of management, not a school of philosophy.

In a networked, connected and largely transparent world, the challenge is not to constantly reinvent the wheel, but to best understand all the dimensions of the problem and then find the most similar solution that’s already been successfully applied, and refine it as required by any unique facts. Indeed, almost all legal discussions among clients, after first attempting to argue from first principles, end up simply referencing a previous approach the parties are familiar with.

Is this a different style of problem-solving than lawyers are taught in law school? I don’t know, but it is the only style they’ll be able to get paid for in the New Normal. More importantly, it’s the only way that organizations will be able to manage complexity in a global and highly regulated world.

While law school imagines that most organizations are managed in a unitary, top-down, hierarchical way, this is rarely true today in a world of globalized and matrixed organizations. Instead, decision-making is highly distributed, and management occurs through a combination of top-down goal setting (tied to financial targets and variable compensation plans) and horizontal “law of the organization.”

Many fields (medicine, software development, networks, process engineering) now deal with far greater complexity than law, and they do so by a combination of

• Abstracting (managing information at higher levels).

• Unpacking (breaking information up into manageable bits).

• Aligning (making sure that compensation and feedback systems reward desired behaviors so it’s not necessary to address every piece of complexity).

The General Counsel Roundtable report describes process innovation and technology as the drivers of change in law, but where in the legal academy is there work on process innovation and technology?

So come on, law schools: Give us a little less arguing about abstractions that can never be proven wrong, and a little more engagement with the world we all live in.

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.

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