Unbundling, turf battles, and the decline of law as an information profession

This is cross-posted from the Legal Ethics Forum Symposium on Legal Education’s Response to the Economic Realities Facing the Profession.

Like Cassandra Burke Robertson, I had another life before becoming a law professor full-time. Working as a law librarian for 25 years at three different law schools gave me a different perspective, within the system of legal education while not fully part of it. This post reflects that personal perspective, and expresses my sense of changes in the legal profession as filtered through my experience of the changing profession of librarianship.

The legal profession is, among other things, an information profession. Lawyers, as members of one of the three paradigmatic “learned professions” (the others being medicine and divinity), base their claim to professional status on the possession of “advancedor complexor esotericor arcane knowledge” or “formally rational abstract utilitarian knowledge.” The legal profession is facing increasing competition from other professions and semi-professions (from accountants and business consultants toparalegals and e-discovery vendors), the growing reluctance of clients to pay exorbitant legal fees and increased scrutiny of fees by corporate counsel, and the ready availability of legal information and services online.

Like other information professions such as librarianship and journalism, law is under siege because of the increasing opportunities for disintermediation, and is engaged in a fight over turf. Law libraries are a good example of this struggle. Almost 15 years ago Richard Danner wrote in “Redefining a Profession” about the pressures faced by law librarianship as a profession, competing for resources with IT (information technology) professionals over the authority to mediate and control access to information in law schools. The competition has only become fiercer in recent  years, as most law libraries have faced massive budget cuts and the transfer of former library space to faculty office, administrative, and classroom space. The pressures arising from the current tuition and student debt crisis are intensifying the demands to cut, and even eliminate, law libraries.

To be sure, librarians and their supporters like to proclaim that “they will always needlibraries and librarians.” But librarians struggle to articulate what it is that they provide that remains essential in a world of Google Books, Google Scholar, and instantaneous access to an enormous wealth of high quality online information, especially when the economics of practice lead lawyers to change from legal information maximizers tosatisficers.

As for journalism, we are all familiar with the decline of newspapers: from one perspective, see the blog Newspaper Death Watch; from another, see the Public Editor of The New York Times asking “for reader input on whether and when New York Timesnews reporters should challenge ‘facts’ that are asserted by newsmakers they writeabout.”

One of the key insights in Richard Susskind’s book The End of Lawyers is that the current form of the practice of law is not eternal.

In The End of Lawyers?, Richard sets a new challenge for all lawyers. He urges them to ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working. He argues that the market is unlikely to tolerate expensive lawyers for tasks that can be better discharged with support of modern systems and techniques. He claims that the legal profession will be driven by two forces in the coming decade: by a market pull towards the commoditisation of legal services, and by the pervasive development and uptake of new and disruptive legal technologies. The threat here for lawyers is clear – their jobs may well be eroded or even displaced. At the same time, for entrepreneurial lawyers, Susskind foresees quite different law jobs emerging which may be highly rewarding, even if very different from those of today.

The late Larry Ribstein was one of the few legal academics to take these challenges seriously in articles like The Death of Big Law and Laws Information Revolution. Most law schools refuse to face the implications of a radically restructured and smaller legal profession, preferring to tinker at the edges with minor curricular “reforms”: adding a couple of credits of international law to the first year here, a program or institute there. These reforms always seem to require adding more tenure-track faculty and more perks to retain them.

From the faculty perspective, “In Americawe have absolutely the best system of legaleducation anywhere in the world,” so why fix what isn’t broken? Faculty and deans complain about the intrusiveness of the ABA accreditation process and the degree to which the process is captured by the practicing bar. Most of the practicing bar, conversely, is convinced that the process is controlled by self-interested faculty and deans. Meanwhile, Senators BoxerCoburnand Grassley are taking an interest in the apparent failure of law schools and the ABA to self-regulate, and some predict hearings and greater oversight by the federal government.

Self-interested members of the legal education profession would be wise to take the crisis seriously and consider what radical changes might be needed, before they are imposed on us from outside.

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