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October 09, 2014

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Former Editor

Excellent post. It often gets forgotten in the law reform discussion that there are multiple constituencies involved and that well-meaning people can be at odds as to what the right solutions are and how quickly they can or should be implemented. This piece is a good reminder to those of us interested in law school reform that many law schools are honestly "trying to do the right thing by all their constituencies" and that there are institutional barriers to large and immediate change.

Brian Tamanaha

Ray,

I do not assert that law professors are selfish or scoundrels. What I do assert is that we are not selfless people engaged in public service, as some legal educators are wont to claim. (These are well paid and comfortable jobs from which we cannot be fired.) There is a clear difference between these two assertions, though law professors who feel insulted by my argument have confused the two.

We (that includes me) are all operating within a system and responding to a set of incentives that channel our activities. My book was not about the personal character of law professors but about structural conditions we benefit from that have contributed to the high cost of legal education. Among those structural conditions are aspects of institutions that resist change, like those you point out in this post.

Brian

Anon

Excellent post, even if some of the points about free-market dynamics don't necessarily apply in the law school context.

This sentence jumped out at me: "Hiring processes are another example – the safe thing is to link yourself to the hiring of someone just like all the people that have succeeded before, even if new times may call for new kinds of skills or talents." I would add that law-school hiring decisions might be motivated not only by outdated notions of what will make for a "successful" law prof, but also by a sort of dues-paying mentality: "I did X, Y, and Z in order to become a law professor, and this applicant (whether or not s/he is likely to be "successful" in a way that matters now) didn't do any/all of those things..."

Ray Campbell

Brian - Thanks for the clarification.

W. David Ball

Thanks for this thoughtful piece--although I have to say my opinion about Christensen's work dimmed considerably after reading this thoughtful, meticulously-researched article by Jill Lepore in the New Yorker ("The Disruption Machine," June 23, 2014, found at http://www.newyorker.com/magazine/2014/06/23/the-disruption-machine). DB

anon

"While the Langdellian model of law school has always had its critics, starting sometime around the 1980s the volume of criticism seemed to rise. Law reviews began to feature a steady stream of articles identifying what was wrong with law schools."

Or, is it simply that this is when you started to pay attention?

Did this "steady stream" decry the cost of legal education and debt loads when compared with the likely earnings for attorneys; did this "steady stream" decry the drift of legal scholarship away from the law and anything of real benefit to anyone and toward obscure and pointless pursuits in disciplines other than the law (under the pretext of "intersection" study by Ph.D.s in fields other than law); did this "steady stream" of law review articles note the failure of the legal academy to keep pace with the market for legal services?

Cites, please.

Your series of lengthy posts describes facts that are not facts (e.g., the risible notion that the vast majority of attorneys and clients care at all about "predictive coding"), makes sort of specious analogies to pursuits other than law (like golf and weaving) and generally, trashes the "Langdellian method" ... but I'm wondering: what is your point?

What do you want to see in law schools? A short, cogent explanation would serve to put the reams you are writing in some sort of context. You say that a lawyer solves problems.

What has all this to do with solving anything?

Ray Campbell

Lepore's piece is worth a read, but I don't think people who run VC firms are going to start carrying around her article instead of Christensen's work (which is way, way more than his first book, which is all she really seems to engage with in other than a mocking way). I think she's right that there has been some uncritical sloganeering around disruption, and I think she's also right that it's really very hard to determine when a new technology or business model will be disruptive. That said, I think Christensen's work is solid, and that people ignore it at their peril.

I think one reason Christensen's work resonates with me is that I lived the process before really getting engaged with his work. At the start of 1997, which is the same year Christensen was to publish his first book, I made the somewhat loopy choice to leave an equity partnership at one of the best law firm partnerships on the planet to start an e-commerce retailer in what turns out to be a surprisingly conservative industry, selling musical instruments and recording gear. It's a long story, and one best told over cold beverages, but I got to see lots of innovation that seemed disruptive but ended up being sustaining for organizations who could modify their resources, processes and values. I saw other companies unable to shift enough to absorb the changes brought by the internet, and who thus went belly up, and still others who defined their value proposition in terms of things that the internet could not do well. When I finally got around to carefully reading not just Christensen's first book, which seems to be all that most people have read who throw around the term disruption, but also the later works in which he develops the theory, it seemed to explain a lot of what I had lived through.

Part of the lesson of Christensen, which gets covered up in all the talk about disruption, is that most innovation is sustaining - existing companies are able to adapt new technologies and new business models to their resources, processes and values and use them to strengthen their position. Cell phone carriers figured out how to shift out to digital from analog technology, for example, and kept right on (Motorola, on the other hand, was slow to move to digital, crippling their handset business in a way they never quite recovered form). Intel has figured out how to make sure that the next, cheaper generation of microprocessors comes from Intel, instead of from a disruptor down the street (something on which Christensen consulted). When change is afoot, it can be either disruptive or sustaining, and one of the reasons that is hard to predict is that it does not play out on a set field - companies sometimes can fit the change into the resources, processes and values and make themselves stronger.

One of the reason's Christensen's work fails at prediction has to do with the fact that everyone has read his book - the world he first observed no longer exists because smart managers now inevitably move on to a discussion of disruptive risk. I think sometimes of that scene in Patton where George W. Scott is observing what Rommel's tanks are doing, and exclaims that he's read Rommel's book and makes adjustments accordingly. Good managers (but not necessarily legal academics) are now aware of the risk of disruption and the constraints of RPV, and take it into account in planning strategy.

Here are some responses to the Lepore piece that are worth a look for those interested:
http://www.forbes.com/sites/forbesleadershipforum/2014/06/30/what-jill-lepore-gets-wrong-about-clayton-christensen-and-disruptive-innovation/
http://www.slate.com/blogs/future_tense/2014/06/23/clayton_christensen_jill_lepore_agree_disruptive_innovation_has_become_a.html
http://www.businessweek.com/articles/2014-06-20/clayton-christensen-responds-to-new-yorker-takedown-of-disruptive-innovation

Ray Campbell

Anon, I don't have time to prepare a full bibliography, but here are a couple of cites to help you get started:
The Maccrate Report from 1992 - http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_education_and_professional_development_maccrate_report).authcheckdam.pdf
The Maccrate Report drew on some of the prior work and is cited by pretty much everyone who has written on the law school curriculum since. The report identified a gap between what law school teaches and what lawyers do, and proposed some curricular changes (e.g., more experiential education, more externships) to help bridge the gap. Maccrate and its progeny have had an impact on what law schools do, but arguably not nearly enough of an impact.

Judge Harry Edwards' influential article on legal sccholarship - Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992). Judge Edwards was a distinguished law professor at Michigan before becoming a prominent judge, and his argument that legal scholarship was self serving and failed to meet the needs of judges or lawyers got a lot of attention. Again, if you follow those who have cited this article, you will get pointed toward most of what has come since.

anon

Ray

I think your response demonstrates that your point was not well taken. Of course, there has long been a tension between theory and practice, and the bar has clamored for more practical training in law school for a long time.

In fact, that tension is healthy; the pendulum has swung way too far toward useless theory; and hopefully, hiring practices and curricula will soon catch up with reality.

But, that wasn't really the point of your post. Or, my comment.

I asked:

Did the "steady stream" (of law reviews to which you referred, that you claim steeply increased in the 1980s) decry the cost of legal education and debt loads when compared with the likely earnings for attorneys; did this "steady stream" decry the drift of legal scholarship away from the law and anything of real benefit to anyone and toward obscure and pointless pursuits in disciplines other than the law (under the pretext of "intersection" study by Ph.D.s in fields other than law); did this "steady stream" of law review articles note the failure of the legal academy to keep pace with the market for legal services?

I think not. Based on your response, I would conclude that you agree that the correct answer is no.

But, far more importantly, I'm still waiting for your response to a basic question about your long posts:

Your series of lengthy posts describes facts that are not facts (e.g., the risible notion that the vast majority of attorneys and clients care at all about "predictive coding"), makes sort of specious analogies to pursuits other than law (like golf and weaving) and generally, trashes the "Langdellian method" ... but I'm wondering: what is your point?

What do you want to see in law schools? A short, cogent explanation would serve to put the reams you are writing in some sort of context.

You say that a lawyer solves problems.

What has all this to do with solving anything? What is your point?

Your posts are just drifting thru observations, some more valid than others, some completely without merit and so self referential as to be ludicrous in the main, but all disjointed and sort of lacking in any practical theme or purpose.

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