This post continues a long response to a terrific recent piece by Mark Cohen, in which he critiqued law schools for failing to respond appropriately and systematically to an emerging “skills gap” between baseline legal education and the needs of the technology-dependent legal market.

The first part of the response, from last week, agreed with the gist of the critique but introduced the idea that it opens a broader window on the relationship between legal education and market.  The end of the first part, and the beginning of this part, is this:  The law factory.

It’s become fashionable in a lot of for-profit legal worlds to stop referring generally to “the legal profession” (that’s anachronistically narrow) and to re-label its emergent parts as “the legal services industry,” or just “the legal industry,” or in tech biz shorthand, “legal.” I’ve done it myself.

What we get out of the new rhetoric is a more descriptively accurate, up-to-date name. What we also get is explicit confirmation of something that all lawyers have seen growing for at least the last 35 years: not merely that law isn’t a noble profession any longer, and not merely that law is, instead, a business. Those are old news, just like talking about the relationship between law schools and the market is, in some respects, old news.

Here’s the new news: the law factory isn’t merely a rhetorical expression of dismay over the decay of legal profession exceptionalism. Via the legal industry, the law factory has become the new metaphoric normal, a very specific type of business. Both the industry and the factory have supply, or inputs (clients, disputes, deals, lawyers); assembly lines (dispute resolution service providers, s/k/a courts and judges; legal service providers (alternative, and otherwise); legislatures; agencies, etc.); and outputs (value, money, justice).

Without too much imagination, it’s easy to see that “the legal industry” would like to sub-contract some of its supply to law schools: our output is new law graduates, inputs into the law factory.

That’s a terribly cynical and slightly unfair way to put things. But it’s not novel, and it’s not wrong. The “law factory” is a metaphor that I owe to a friend (Dean of a US law school with roughly the same time in the profession that I have) who used it to describe their experience graduating from law school and starting law firm practice in the late 1980s. JD in hand, off they went to the metaphorical coal face. It was clean, well-lit, reasonably and sometimes highly compensated , and mostly safe. But a “law factory” it was, accountability and productivity measured in six-minute increments. For that setting, and with the benefit of hindsight, the label simply makes explicit something that many young and new lawyers experienced first-hand, even then.

The “law factory” metaphor still has its place today, but “the legal industry” metaphor tells us that its meaning and scope have changed.  They’ve expanded, and they’ve come out in the open. 

Today, as before, few lawyers and their colleagues and partners in private professional service see themselves as building or operating a law factory. Lawyers in private practice see themselves as providing valuable and important expert services and earning deserved compensation in return. Of course, sometimes they earn much less than they deserve, and sometimes they earn much much more. Idealizing the model, they choose the mix of inputs that they prefer and clients need (some human, some tech) to get the results and the incomes that they want.

Legaltech entrepreneurs see this world rather differently. They busily disrupt “the legal industry” — and therefore busily validate and endorse it, for without it, there would be nothing to disrupt. They see problems and inefficiencies in the marketplace of services, and they set out to solve those problems in profit-generating and sometimes innovative ways. Some human, some tech. They’re creating products and services for the law factory; they’re building law factories of their own.  And they’re unapologetic about it, because there’s profit in it, and because (many of them say, and some of them are right) it improves outputs.  These changes in the competitive marketplace all but compel the private practice side to participate in the law factory system, now scaled up metaphorically into “the legal industry,” whether they acknowledge it explicitly or not.  It’s the marriage of market capitalism and the rule of law, disruptive in the short term but productive in the long term.

What I’m describing today, therefore, is not the law factory as a private practice exception to the legal profession rule. The law factory is no longer simply a metaphor for overbearing, hierarchically controlled work environments. In fact, the continuing diversification of legal employment over the last decade suggests that working conditions for new lawyers are, in many but far from all respects, better than they were 20 or 30 years ago. Instead, to both celebrants of current trends and to their angriest critics, the law factory is the unit of production in the legal industry. 

Metaphors both describe and prescribe.  The law factory/ legal industry metaphor now
offers insight into what is expected from whom across the board. Sometimes
slowly, and sometimes quickly: supply, meet demand.

That’s where I take exception to diagnoses of the current state of legal education as failures to meet market expectations. To borrow from a legendary movie sequence, “legal” is not Cool Hand Luke. What we have here is not legal education’s “failure to communicate.” My role as a teacher isn’t defined, and I don’t organize my teaching, per the expectation that I participate in the law factory and the legal industry.

I resist on both ideological and pragmatic
grounds. 

Ideologically: 

I want my present, former, and future students to thrive, to succeed, and to help change the lives of their clients and communities in all great ways, and I want to supply them with knowledge and skills that help them do that. In the best of all worlds, my students should have the power to define visions for their own success and to pursue those visions, individually and collectively. They shouldn’t have to sign on to the expectations of the law factory simply because practitioners of the law factory have unilaterally declared that the system is just so – though in practice, of course, I know that they often do. 

In a related sense, I — like many of my colleagues, and like many schools as enterprises — should have the power to define visions for my own success and to pursue those visions. Neither more so but also neither less so than our friends in law practice, or legaltech, or elsewhere. We shouldn’t have to sign on to the expectations of the law factory simply because practitioners of the law factory have declared that the system is just so – though in practice, of course, I know that I and my colleagues and various law schools often do.

In sum: 
All of us should have maximum opportunities and capabilities to author
our own lives and to make choices about how to do good in the world, even if in
practice there are all sorts of barriers to our actually being able to do
so. 

I’m not breaking new ground with this. Dan Kahan, at Yale, once gave a great poultry-themed commencement address to a class of Yale Law graduates that made a similar point. I don’t teach an elite law school; I don’t have the luxury of escorting large numbers of my students to clerkships in the federal judicial system. That makes the point all the more urgent: the law factory waits just outside my door.

But ideology and appeals to virtue may not
persuade, so I resist on pragmatic grounds, too.

Pragmatically:

A market doesn’t mean that sellers have to suck it up. Sellers and buyers duke it out. The market clears, or it doesn’t; the market may shift, and new markets may emerge.

Suppliers may choose simply to respond to demanders, or sellers to buyers, but they don’t have to, and sometimes sellers get to set the terms. If you know your US legal education history, you know that Christopher Columbus Langdell and Harvard University didn’t create the Harvard system of legal education in the early 1870s in response to claims that legal educators needed to fill a skills gap.

For the most part, the directional arrow points the other way. Langdell and his Harvard colleagues had a vision of what law and the legal profession should look like. (Far more than casebooks and the Socratic method of instruction, the key new elements were the expectation that entering law students already possessed an undergraduate degree, and that law faculty should be employed full-time by the university. Harvard was status-seeking.) They implemented the Harvard system, eventually persuaded much of the rest of the US educational and bar admissions systems to adopt it and endorse it, and eventually evolved it so that it was perfectly suited to the emerging interests of the practicing bar.

In sum, US legal education didn’t start out as training for the law factory. It has become part of the modern law factory to a significant degree. But there is no good reason to assume now, as the world changes in big ways now and looking ahead, that legal education today – US or otherwise – should simply remain part of the law factory. Path dependence explains a lot but isn’t itself a reason simply to stay the course.  Some good luck and some bad luck gave us the law factory. But we might well do better.

How?  Well, which skills gap should we care about? Tech literacy is one, but there are others, and some of those others may be more important – perhaps now, perhaps later. Which markets matter? When, exactly, and how often, should we take the temperature of those markets to determine their expectations? What if the markets speak this way now but in a different way five years down the line? What if the problems to be solved with or by law graduates today are changed by or dwarfed by the problems that emerge in a decade or two? Why are JD programs particularly well-suited to delivering the skills that are in need – whether as part of initial training of legal professionals, or at later points in their careers?

That’s a teaser.  Come back next week for the conclusion.