“If you don’t like what’s being said, change the conversation.”

deathanddeclineAt high holiday services in my conservative Jewish synagogue, I reflected on the omnipresence of narratives of decline in my professional and religious life. Apparently, the approved sermon topic at many conservative pulpits this year was how to rescue the shrinking conservative movement.  The Pew Report’s stark figures on that decline, illustrated to the right, suggested the theme of the sermon (at least in my congregation): reaching out to new revenue sources applicants potential converts congregants.  As the rabbi stated, unless we find more congregants (and soon!) by opening the doors & working to engage new audiences, we will wither on the vine.

This sermon was explicitly delivered as a recruiting pitch, and I found it familiar.  Doesn’t the claim — “we’ve learned our lesson, we’re now going to innovate” — sound exactly like a thousand Law Dean speeches?   Here’s a summary of one, by an especially skillful and media-savvy Dean:

“[UC Hastings Dean] Wu is the first to acknowledge that he cannot change the market. But with a little ingenuity, he can change the law school model, making it more interdisciplinary and more pragmatically job-oriented, even if that means slashing enrollment or acknowledging that some students might have to reinvent themselves as small-businesspeople. Lawyering might be an old, feudal business, but law schools won’t survive if they don’t adapt to the new economy, Wu says. That’s the only way to keep Hastings, or any of its peers, afloat.”

Change or die.  A cliche difficult to gainsay, at least in the abstract. So law schools (and congregations) seek to evolve without losing some core component of their identity. For synagogues, the question boils down to how – and how much – to welcome non-jews to the pews. Law Schools, similarly, now ask “who do we want to teach.”

Some – like Penn State – increasingly make foreign LLMs a key constituency, rather than a tolerated budgetary crutch. Other schools compete in the increasing crowded online education/certification market for domestic lawyers, or paralegals.  And all over the country, law professors teach increasing numbers of undergrads. I’m guessing here, but I’d bet that while 10 years ago, 95% of law professor instruction time was spent on JDs, it’s more like 75% today, and could be 50% in 10 years.  You do have to wonder about the trend.  Just as conservative synagogues built on the rejection of Reform Judaism’s open-door orientation may be unable to effectively recruit and service different members, it’s fair to ask if law schools are or could be generally good at teaching non-JD students.

And let’s say that law schools actually are good at teaching their new students — or at least better than the alternatives, which is highly probable. There’s still something faintly defensive and catastrophic about the enterprise. If law schools say: “we have to teach new skills to new people,” they in effect admit “the old skills are no longer particularly valuable.” But that position is profoundly stupid, not to mention self-defeating. It reinforces a prevailing narrative about law schools – they are broke, and need fixing. The reason that law schools are in trouble today is that every single person going to law school is being told by everyone who loves them not to go. That’s not entirely a reflection of the projected future employability of members of the bar in 2025 (when the robots take over). It’s also a current gestalt cultural judgment: legal education doesn’t deliver the value it ought to.  Whose at fault for that? In part, law schools, which, everywhere you look, remind you with new, practice-ready/real-world/constantly innovating slogans,that they are slightly ashamed of what they’ve always done.

But, as the great ad man put it, if you don’t like what’s being said, change the conversation. Law Schools (and synagogues) should spend less time justifying and perseverating on their decline, and more time trumpeting what they do well – much better than any alternative out there.  What’s that? As one of my colleagues keeps on hammering at me, we’re really good at three things.  Maybe they are the only things we’re good at – everything else is just a loss-leader, including legal scholarship.

1.  Teaching students how to read cases with the requisite degree of care.

2.  We prepare students for a very hard, demanding, job which rewards sitzfleisch more than any other personality trait.

3. We teach judgment in the only way it can be taught: by watching error.

These three are skills which will continue to matter in the new economy, and they matter in practice today. Law schools have fallen into a trap of being embarrassed by their own strengths — they are about to roll over on learning outcomes, which will drive the value of traits like judgment-recognition out the window; they are embracing “practice-ready skills” like interviewing and drafting, while downplaying or ignoring the value of old-fashioned appellate case briefing; and no one, ever, wants to simply come out and say that law school is hard work because lawyering is harder.

We ought to be advertising what we’re good at, instead of apologizing for it.

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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