Are we using innovation in legal ed to drive our existing mission, or disrupt it? There’s a place for both strategies.

My own contributions to legal innovation have mostly been through my work as dean – over the course of thirteen years, at two law schools.  The experience gained through these two leadership endeavors has given me a reasonably optimistic take on the matter of innovation possibilities in the space of modern legal education.  Bill has graciously given me the opportunity to share some reflections on Legal Evolution. I hope that these perspectives from a long-serving, and now former, dean will fuel thought and action, especially from those in, or at least nearby, legal education.

To kick things off, I offer a model of innovation of legal education, one that describes two very different species of law school innovations, each drawing upon fundamentally different assumptions and strategies, and each with their own unique perils and promise.  The first involves innovations which are principally fashioned to advance the standard goals of the law school’s educational enterprise.  The second involves innovations which aim toward disrupting in more meaningful, and even profound, ways the law school’s basic educational mission.

Having undertaken both kinds of innovations, I suggest that the differences in approach, and measures of progress, are quite distinct and leaders in legal education should approach such innovations as such.

Type I: Mission-driven innovation

Many innovations, big, medium-sized, and small, are designed to help facilitate the ambitions and objectives of the law school as traditionally configured.  These ambitions can be quite ambitious in conception and quite controversial in execution, but they share in common the basic characteristic that they aim in the end to advance the core mission of the law school.

A good example of such innovation is the creation of curriculum and programming that seeks to bridge the divide between what we might call book learning and learning-by-doing.  Law schools have long been committed to a mix of foundational and experiential learning.  Doctrine and practical skills captures the categories reasonably well.  (Theory and practice captures this less well, as doctrinal courses can be more or less theoretical and experiential education can contain important theoretical elements.) Internally, law schools struggle to get the balance right; and there are challenges born of myriad factors, some concerning reasonable and informed disagreements about how best to allocate the curricular and pedagogical time over the three years of law school, and others more logistical or even political.

That these issues play out in rather separate conversations among two hundred law schools is peculiarly inefficient.  Yet we can say, on a more optimistic note, that there have been fruitful conversations about these issues within the professoriate, in books and articles, in conferences, and in the blogosphere.  There are certainly constructive templates for developing a balanced educational program that accomplishes the twin goals of providing important, cumulative foundational knowledge and, as well, giving students exposure to the real world of legal practice, whether through clinics, simulations, externships or the combination of all three.

Deborah Rhode

Many innovations in the space of legal education have been oriented around this foundational/experiential balance.  The integration of ethical considerations into the core curriculum through what Deborah Rhode memorably called “the pervasive method,” see 42 J. Leg. Educ. 31 (1992), has helped efface the rigid distinction between doctrine and practice in legal ethics matters – although we should be candid in acknowledging that this integration has been slow and episodic.

Likewise, the growing expectation that most, or even all, law students should have a clinical experience before they graduate reflects innovations that are mission-driven, that is, they are intended to advance the objective of assuring that graduates will be able to draw upon both doctrinal and experiential training as they embark on their careers.

In a similar vein, the emergence over the past half century of economics and history as disciplines key to the legal curriculum – in some cases moving out of the boutique part of the curriculum and into the core – represents a major innovation.  Yet, it’s driven by the need and want to advance the mission of legal education as giving students the knowledge base to be sophisticated, reflective practitioners.

We continue to quarrel about which non-legal disciplines are essential (psychology? sociology? political science?).  But once the innovations in law school curriculum have taken hold with respect to what we used to call the “Law and . . .” movement, the strategies were fairly conventional, entailing debates about the “What” and the “How” and efforts to forge a consensus about the scope and dimensions of what follows the “and” in this enterprise.

Mission-driven innovation involves, at its core, self-reflection about the law school’s mission and careful consideration of whether a change – typically a supplement, not a replacement – facilitates this mission.  Such innovations imagine that we have broad agreement about the contents of this mission and, further, that the essential educational structure subserves this mission.  Innovations are designed to sustain, not destabilize, this mission.  This is not to say that such innovation is easy, but just that it is not especially disruptive.  Moreover, the measure of success can and will be tied to criteria emerging from agreed-upon definition of the law school’s overarching mission.

Type II: Mission-disruptive innovation

The dynamic nature of the contemporary legal marketplace, a key theme of Legal Evolution, has generated new thinking about innovations which are calculated to disrupt the existing educational model of law schools.  These are, as you can imagine, rarer and quite controversial.  They build upon concern, or even skepticism, about the alignment between the law school’s educational objectives and the imperatives of the marketplace and of the ideals of the profession.

An innovation which illustrates the special challenge of mission-disruptive innovation in the context of law schools is the development of degree programs which are designed to educate non-lawyers and to likewise provide them with professional opportunities to succeed in a marketplace in which the line between legal services provided by credentialed lawyers and others is eroding.

We have one version of such a strategy at Northwestern Law with our Master of Science of Law (MSL)  program for STEM professionals.  This and other programs which focus on students who do not aim for the JD and the pathways this provides to credentialing as a lawyer is an illustration of an innovation which risks disrupting the mission of the law school.  After all, law schools thrive on their ability to attract students who come to law school in order to take advantage of a three-year program, with its attendant (high) costs, and the promise at the end to receive the degree which enables the graduate to sit for a bar exam.

The evolution of these degree programs aimed at non-JD students is an interesting example of an innovation that can disrupt the existing mission of the law school.  In that, this strategy offers a distinct opportunity for law schools to reflect anew on their missions and to consider whether – and perhaps ultimately how – to reorient their mission in a different direction and with different purposes.

What new purposes do these innovations point to?  Fundamentally, they look at law schools as something more than training grounds for the next generation of lawyers.  They see their goal as creating distinct programs with a menu of tailored courses and extra-curricular opportunities with the aim of training clusters of professionals who will occupy different, though necessarily interlocking, roles as deliverers of legal services.  The slogan shifts from “law schools are about training lawyers” to “law schools are about training professionals to provide legal services and, too, to discover and implement new strategies for service delivery.”

In a more ambitious – and, yes, disruptive sense – these programs also create opportunities for professionals who will go forth to potentially compete with lawyers, as institutions and individuals look for graduates trained to bring together law, business, and technology in a toolkit which responds to new sets of problems, problems which do not require the expensive (and perhaps more narrow) work of a traditional lawyer.  One can see down the road that these programs can, if successful, be destabilizing in its creation of a cohort of competitors, of new types of professionals.

Another mission-disruptive innovation, similar in some ways to this larger ambition, but nested in the basic idea that the principal objective of law schools is to educate future lawyers, is the methodical integration of multidisciplinary knowledge into the core and advanced part of the law curriculum.  In a sense, this is a species of the “Law and . . .” endeavor, that is, bringing to bear new knowledge from non-legal disciplines on the educating of future lawyers.

However, the most ambitious and sophisticated of these strategies – and certainly in the sense in which we worked on these strategies at Northwestern before and during my deanship – entail breaking down the silos between the study of law and the study of these other disciplines.  True multidisciplinary strategies build on the notion that law is neither an autonomous discipline nor can it provide for any well-educated new lawyer all of the contents of knowledge that he or she needs to understand how legal institutions operate and how law is deployed to solve problems, to facilitate entrepreneurial behavior and enterprise, and to provide the guardrails to ensure that the rule of law is maintained and protected.

This conception of multidisciplinarity goes beyond the so-called “law and” movement of the last half century. This is not principally a marriage of two different disciplinary bedfellows.  Multidisciplinary legal education points to a more integrated, synthetic idea of what it means to understand and apply law, business, and technology to matters that necessarily entail all three dimensions of knowledge and of practice.

Going deeper

In future posts, I will drill down deeper into how innovation can be fomented along of these dimensions, what I am calling here mission-driven and mission-disruptive.

As I suggested above, the tactics required in implementing these very different types of innovations are different. And the perils faced by advocates of mission-disruptive innovations are especially acute, and interesting.  Because law schools must constantly interrogate their missions, the matter of mission-disruptive innovation will recur, even with law schools which are cautious and more reticent to change.

It is the task of ambitious deans, working with key stakeholders, to frame their innovation strategies around these two rather different goals – that is, facilitating or disrupting the schools’ existing objectives – and, further, to be agile leaders in this era of dynamic change.