Legal Ed's Futures: No. 9

Let a Thousand (or at least a Hundred or More) Flowers Bloom!

This virtual symposium – and a great deal of writing about legal education – offers readers a lot of really good ideas about innovations in legal education, or extensions of nascent programs already in place somewhere. Indeed, maybe too many in one quite specific sense: It is unimaginable that any single law school will – or would be able to – adopt all or even more than a handful of the ideas.

That’s not a counsel of despair, though. Rather, it’s an argument in favor of institutional pluralism in legal education – an argument that conveniently dovetails with the observation that institutional pluralism exists and isn’t going to go away.

Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (“the provost”) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni “politics” – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss “legal education” tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.

An optimistic social Darwinist or free-marketeer would say (hope?) that all will work out fine in the end. The ideas that turn out to work well will spread and those that don’t work will drop out of the competition. I’m not in either of those camps, in part because I think that the “environmental” conditions for legal education change too rapidly for evolutionary adaptation – a not terribly nimble process – to work well. Rather, we’re going to see repeated episodes of innovation, change, success and failure – not even cycles but simply episodes.

And, again, that’s either all to the good or a matter of indifference. All to the good because there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).[1] Or a matter of indifference because in an institutionally pluralist world, lots of people (law students, faculty members, those in the general society) will be able to get a lot of what they value from legal education even if no one gets everything she wants from any specific law school.

Mark Tushnet (Harvard)

[1] In an attempt to preempt some kinds of criticism (of the Association of American Law Schools among others), I note that the words “all” and “indistinguishable” carry a lot of weight in my formulation.