Today’s “Legal Education Existentialism” series started with some reflections on Dean Bobby Chesney’s recent memo about AI at Texas Law and continued by expanding its reach to question the basic purposes and structures of contemporary legal education as a whole. Is legal education entering an existential moment?

In this last post today I pull back the lens even further by linking to a recent essay by Jordan Furlong, the Canada-based consultant and journalist and one of the most thoughtful people I know among observers of the “law industry.” The essay is titled, “The unbundling of lawyer institutions: AI will strip law firms and law schools of their commodity features. Their future depends on whether they can rebuild around their highest-value functions and their trust-bearing core.”

My notes, below the jump.

He builds in part on Professor Paxton’s critique of legal education, highlighted in my second “Existentialism” post today, and also on a recent piece by Nicola (Nikki) Shaver, a highly-regarded legal profession consultant based in the UK, titled, “Law Firms Want to Change; They Just Can’t.”

Furlong writes:

Legal intelligence — the capacity to apply legal knowledge to analyze legal issues, create legal instruments, and solve legal problems — is valuable not only because of its utility, but also because of its scarcity. Back in first-year law school, when our professors promised they’d teach us to “think like a lawyer,” they were also saying we’d become members of the exclusive class of people equipped and authorized to exercise that capacity — and therefore, one of the few reliable conduits through which legal assistance could flow. That rare ability would command a premium price.

Equally valuable, therefore, was any institution that could organize scarce legal knowledge and transmit scarce legal intelligence to novice learners at scale — which is where law schools have traditionally derived much of their economic value and their ability to charge what they do. And so was any institution that could organize the work of credentialed lawyers to solve legal problems and deliver legal outcomes to clients at scale, which is where law firms derive much of their economic value and their ability to charge eye-watering fees.

But scarcity was the key. In current parlance, the average person’s inability to organize and command legal intelligence to solve their problems enabled the “moat” that protected law schools and law firms. Accordingly, if legal intelligence were to become widely accessible — if, say, a machine could help learners acquire legal intelligence, or could mimic it to provide legal information, documentation, and direction to legal solution seekers — then both law firms and law schools would have a problem. And here we are.

From “scarce” resources – talent, expertise, intelligence – to “abundance” is a little overdetermined, as academics might say, and Furlong recognizes that. Let us say that those resources are being produced and allocated in all sorts of new ways. If “unbundling” the functions of legal services organizations (including law firms) and law schools is one institutional response to new production and allocation systems (and a response that has popped up from time to time across all professions, professional sectors, and all of higher education) then what remains for the system of existing institutions?

That is Furlong’s version of Legal Education Existentialism.

His response:

In both law firms and law schools, therefore, the scarcest and most valuable assets are great people and great reputations. In a real sense, each of these assets enables and reinforces the other. And what both these assets share in common is one thing: They engender trust. And now we come to the heart of the matter.

A functioning society needs reliable repositories of trust. We don’t all know each other and we don’t necessarily all like each other, so we need recognized institutions in which we can collectively deposit enough trust to enable our daily transactions. We need repositories whose foundations and standards and safeguards are so strong that they justify our confidence; we can count on them and on what they provide. Houses need load-bearing walls; societies need trust-bearing institutions.

Law schools and law firms have always been the legal profession’s trust-bearing institutions. AI is going to unbundle each of their individual functions and deliverables, stripping the value from any whose commodity status AI has revealed or enabled. That might sound like a pretty dire forecast.

There’s more at work here than the economics of efficiency, however. The human need for trusted legal institutions is real, and it will survive the impact of AI. But these institutions have to recognize and accept the surgery they’re about to undergo — the removal of their commodity elements — and make plans for how they will recover, adapt, and flourish afterwards.

Here is my note:

I am not sold. I buy the idea of institutional repositories of trust, which covers both functional and reputational dimensions. But as a society, over centuries and especially over the last decades we have learned to trust machines and technologies and to build regulatory systems and forms of community engagement to mitigate risks and constrain spillovers when “trust” seems to extend too far. I am not a critic of “trust,” but I do not think that legal education existentialism can be managed using a “trust” toolkit.

Where I would begin, instead, is with a suite of values and value that Michael Paxton highlighted (but briefly) as part of his letter to a dean: “There will, I suspect, always be a place for human judgment, human contact, human relationships, and human accountability.” Law schools for a century have been organized around scarcity (as Jordan Furlong writes) and around a very specific cluster of forms of expertise. To be a lawyer was to be a member of a club, certified by a diploma (usually) and credentialled by admission to (or being called to) the bar. “Oh, the humanity!” one might cry, as a kind of cruel joke; law schools are notoriously inhumane. But I am not speaking of making the experience of legal training more humane (although that would clearly be a good thing); I am speaking instead of centering human experience and human capacities in the design of systems of legal training, both in law schools and elsewhere.

I recognize that the likelihood that this will happen is remote, on my terms or on Furlong’s, for many reasons, the first of which is undoubtedly collective skepticism as to my “existentialism” premise.

But I live in Pittsburgh, where during the 1970s and during the heyday of the Steelers’ run of four Super Bowl championships, it was essentially inconceivable that the good times would end. There were abundant good jobs, lots of good money, stable union contracts, and no threats from competitors or different technologies. I was not in Pittsburgh in 1982 and 1983, but more than 40 years later, the region is still deeply scarred by the consequences of complacency.

I once met Jack Schlegel at the University at Buffalo, as part of giving a job talk at that law school. I had no idea then of who he was or what he had written. I have come to be a big admirer of a piece that he published in the Vanderbilt Law Review in 2007, titled “A Damn Hard Thing to Do.” That title, if not the specifics of his motivation and vision, has always stayed with me. Large scale institutional change of any sort is always difficult, especially if one imagines trying to direct it rather than riding waves of evolution and disruption from various sources. As Nicola Shaver reminded the practitioner side of law in her essay – it may be nearly impossible. Her payoff for law firms seems (to me) to apply equally to law schools:

Firms are, in effect, attempting to compete in a fundamentally different market while operating within structures designed for a previous one. As long as that remains the case, progress will be uneven and  limited. 

Change is possible, but it’s not frictionless. The next few years will require firms to make explicit choices about what they are willing to adapt, and, in some cases, what they are willing to let go. So the better question is no longer whether firms want to change. It’s which ones are prepared to.