The Portent of Failing Law Schools

Inside Higher Ed's article on Failing Law Schools suggests a book that sums up many current discontents regarding legal education in the United States.  Curiously, the main criticism against the education would appear to be the price; little is said here, or elsewhere, about the substance: examination, criticism and argumentation that a good legal education imparts to its students. That missing aspect is no mere coincidence. I would argue (see what a good legal education gets you?) that it was and remains the key component of "why law school," and that it is an aspect virtually ignored in this current debate is symbolic of the portent of the larger crisis itself.  Read on … technology and the market matter in this matrix.

To appreciate what is being lost going forward in time requires us to take a step back and look at a legal education in a historical perspective.  Law is the central organizing principle of western democracy, the modern world in fact.  Lawyers played seminal roles in transforming feudal economics into free markets as is evidence by the principal role that contract played in negotiated new trade and even free labor itself.  Lawyers played key roles in modern revolutions, whether we think of the Civil Wars in 17th Century England, the American or French revolutions, not to mention all those spin offs around the globe that take these historical moments as their adopted trademarks.  In most of U.S. history, to become a lawyer was to think of one's self as acting out citizenship writ large, even if the actual work resembled more the "ambulance chase" stereotype.  Think John Adams, Abraham Lincoln and even Bill Clinton and you get the sense of the relationship.  If we were a theocracy, we might read the Bible or the Book of Mormon; as a democratic republic, we read the law.  Supreme Court opinions, for example, now hold us all enthralled as if the oracle has spoken, and we comb the text for clues to the next event.  But as many have commented on the imperfections in our system, just as one might think about a disability or illness, it is better than the alternative(s).  With Aristotle as the first political "scientist" (not Machiavelli, as I was originally taught), among democracy, aristocracy and monarchy -- even with their shadow sides of mob rule, oligarchy and tyranny -- I will still draw my lot with the first.

We are on the precipice of transition so profound for the most part we don't even see it coming.  Let's be frank: corporations hold more power than governments.  Global in nature, motivated not by citizenship but profit, a corporation moves nimbly to wherever it can satisfy shareholders best.  So that if it means a U.S. corporation purchases a small Irish company in order to incorporate to that state to avoid paying U.S. tax, corporate leaders (irrespective of nationality) do it, because your fiduciary responsibility to share holders is greater than some elusive concept to protect county first.  "Outsourcing" is the least of our worries; whole sale pulling up of corporate stakes is the real fear that keeps tax reform at bay (simple greed, of course, play more than a significant part).  In the meantime, take note: back at home we are moving toward an oligarchical state given the deterioration of the middle class and the gross accumulation of wealth at the top.  All of this chat by way of background to my point.

A legal education as employment is bound to suffer in a world where the software programmer/engineer is the harbinger of the future.  Lawyers were good for the transaction of commodities; real or physical property is the thing of a contract, as well as the selling of labor power for a price to reduce the cost of production for the capitalist.  (Whatever else was utopian or just plain wrong with Marxist thought, this one hit the mark.)  The manufacturing of the industrial age has already become a political economy of secondary value in deference to an information economy.  To be sure, there is an upsurge in the need for lawyers who know something about "intellectual" property, a rose by any other name than those who know do patent, copyright and trademarks.  But it is not even that: if you want to make a living as an attorney now, you better really do your licensing homework, because that is what this new economy is at.

We are licensed to death.  While we may spend a chunk of change on new patio furniture that we can call our own, when I look at my credit card bills what I increasingly see are the monthly costs of a licenses: for services, information technology work tools, entertainment, even my CSA for heaven's sake!  My relationship to the powers that be in this world are as a licensee.  So long as I can continue to make my monthly payments, I am a valued customer of the licensor.  When I think of what I stand for in this world without those licenses, it is small indeed.  What software would I use to write this blog?  How would I send it to my editor at IHE?  How would I obtain the raw material from which I think and write, for example the New York Times or the New Republic, iTunes or Netflix?  Almost everything I touch is somehow connected to a license, and if not that, then advertising (Google).  Those are the powers that be, not my little town council, my 29th Congressional District or even my country or state.

What does the failing of law schools portend?  The failing of democracy as the true life blood of civic engagement.  The meaning that the rule of law qua law as the central organizing force of our society.  The very notion of a nation state.  Indeed, nation states are more like client states in this global corporate context.  They are the police force.  They nip around the edges of justice and fairness.  But be fooled not.  Apart from when they pull out the big guns in desperate crisis -- think 9/11 -- they do not carry the biggest stick.  Go look at your credit card statement.  It will tell you all you need to know about who you are in this new world space.