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August 27, 2014

Engineering change; change engineers

by Dan Rodriguez

Conversations about medium and large-sized change in legal education have mostly been framed around comments by deans and law professors — with an occasional foray into this debate by prominent public officials, including President Obama, Justices Alito, Ginsburg, and Scalia and other elder statespeople who are furnished ink by the barrel (old-timers will get the journalism reference here!).

So, in the main, the conversation about reform has a typically top-down quality. We in the legal academy talk about the imperative of forging change; prominent outsiders chime in with suggestions; and the professors (and perhaps especially the deans) quarrel over the content of such changes.

But we should think in earnest about the ways in which the law school reform debate should be equally a bottom-up endeavor. The folks who have unique perspectives on reform are those who in the practice (I mean “of law” but would also include anything following the “of” about which law is pertinent and important) and those entering into this practice as law students. Reform agendas should be framed in no small part around what gaps have emerged in the post-graduate skill-building of young lawyers. Bottom line: “What ought they to know and what ought they to be able to do when they join the profession as lawyers?” Every other question ought to be secondary to this one. And every other key matter of interest and concern to academicians in internal debates — including the critical and controversial matters of cost, debt, and value — should be viewed in the service of best answering this question. For this question undergirds debates over curriculum, the balance between theory and experience, who should teach law students, and even the overarching economic structure of the enterprise.

Moreover, practicing lawyers and even to some degree mid-stream law students, will have a perspective on this question that, despite all our best efforts as profs and deans, we will lack. So, my tiny point here is simply that the change engineers are, to a greater extent than we inside the tent typically appreciate, those who are engaged delay in the practice of law and the performance of legal (incl law + business) tasks and skills. “Let’s see what the lawyers think” is a convenient knock off question, when our own debates tail off or hit an impasse. But this tactic goes about the inquiry in a too truncated way. The inquiry should begin, perhaps paradoxically, from a starting point which inevitably counsels modesty about our comparative advantage in answering the key questions. Again: What should lawyers know? And how should we in law schools contribute to this knowledge? The practical architecture of major reform should reflect a more bottom-up focus, a more humble sense of what we do and do not know.

Innovation begins with engagement.

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