Lawprof Bill Henderson was part of the ABA Task Force on the Future of Legal Education, charged with coming up with tough measures to deal with what anyone more thoughtful than a dirt pile now concedes is a royal disaster. He writes about it at The Legal Whiteboard.
The issues are well known, too many warm bodies, too expensive, too impractical an education to allow students to put it to use without a second education in how to actually practice law. Yet, putting anybody in a room with the ABA seal of approval is almost the kiss of death of solutions, no less tough measures.
Contrary to what outsiders may believe, the ABA types don’t reflect boots-on-the-ground lawyering, where trench lawyer-types make hard choices every day, and put solving problems ahead of the niceties of cooperation, consensus and civility. It’s not that we’re not civil or try to be cooperative, but that the primary goal is fixing a mess, and we never forget it.
Bill was, how shall we say, unconvinced that “deliberative bodies” such as the Task Force had the wherewithal to deal with problems of the ABA’s own making, such as its accreditation requirements, but offers a twist.
These programs are laudable and, from an institutional perspective, necessary. But will an ABA taskforce, or AALS, LSAC, or some other industry group taskforce produce substantial change? History suggests that the answer is no and that, instead, meaningful change will come from the bottom up rather than the top down. Change will occur at the bottom from either the desire to survive or the opportunity to do something great. Other similarly situated institutions that feel less urgency or inspiration will eventually perish. It is just that simple
The accreditation system we have created is an anachronism. But if we think the ABA Standards are holding back the forces of innovation in legal education, we are kidding ourselves. Any law school or law professor who wants a better way can have one — we are all like Dorothy and her red slippers in the Wizard of Oz: we have had the power all along.
It’s certainly true that no one really needs the ABA’s permission. Indeed, being somewhat Malthusian, I suspect nature will provide a harsh but effective solution to thin the herd regardless, though I doubt it will suit any of the stakeholders. But if the stodgy ABA types can’t manage to get off the dime, Bill suggests that Dorothy can do it without them.
From an analogy of his own experience, pre lawprof, as president of his firefighter local union, Bill explains how they joined together in their mutual self-interest to push through a highly beneficial law which allowed his union members to submit the inevitable impasse to binding arbitration. Naturally, it meant that they got a raise no matter what, as public sector arbitrators are invariably inclined to do. Bill had told me of his sordid past, so this came as no surprise to me.
His suggestion is that Dorothy is a lawprof, and if the prawfs could organize themselves and click their heels, they could force the change that the ABA can’t or won’t. They can rip the accreditation process from this dinosaur’s claws. This leaves the future of law school to the sensibilities of lawprofs. The problem is that the present state is a product of the best ideas of lawprofs, who held that wing of the ABA captive at the time and created rules that favored them at the time.
One alternative is that the law students and young lawyers, for whom the disaster has had the greatest impact and who, like the lawprofs, are sufficiently interested that they can, and have, organized into “unions” to force change. But having had the misfortune of spending a bit of time the other day watching a particularly vocal segment of them interact, this holds little promise.
A blog called Outside the Law School Scam, purportedly to start from the point where Paul Campos’ Inside the Law School Scam left off, offered a vapid critique of a post by Keith Lee urging young lawyers to get off their butts, stop whining, and make their life happen. Brian Tannebaum jumped in to back up Lee’s view, which generated one of the most absurd attacks ever launched from behind the jungle gym.
That it was snarky, vicious, infantile, even anti-semitic, didn’t bother me greatly. Even children can be amusing, and tone should never get in the way of substance. Though I might have preferred they spend their time worry about whether to pay down their debt or save for their future, they instead found it more important to “burn” Tannebaum. “Burn,” apparently, is a term of art among digital natives, meaning that they “won” the battle for playground hegemony, even if only in their own unformed minds.
But it was a modern day example of what in my youth would amount to screaming “your mother wears army boots.” Painful as that may be to a third grader, adults aren’t particularly persuaded by such cries. We live in reality, not juvenile fantasy, and we know our mother doesn’t wear army boots. What saddened me deeply with the monumentally poor grasp these young lawyers had on what constituted valid reasoning and their tenuous grasp of reality. As amusing as their snark may have been, their critical thinking skills were largely nonexistent. Without them, they cannot be Dorothy.
So if Dorothy shouldn’t be lawprofs, and can’t be law students or young lawyers, the only stakeholders left are more mature and experienced lawyers. And from what I’ve seen, we aren’t sufficiently interested in the fiasco happening in law school to take time away from trying to serve our clients or make a living.
Malthus for the legal profession is beginning to seem the most likely default, and it is highly unlikely that it will please any of us or make our profession any better. But unless something gives, it will happen whether we want it to or not. We can wait for Swift to make a modest proposal to shake us out of our lethargy and self-absorption, or we can spare a few moments that we might otherwise spend learning how to use twitter to build a successful law practice and serve as the counterpoint to the lawprofs’ self-interest and the law students’ terminal immaturity.
