Is The Legal Function Fiddling While The Rule Of Law Is Burning? The Case For An Integrated Response
A categorical imperative would be one which represented an action as objectively necessary in itself, without reference to any other purpose. —Immanuel Kant
At a time of profound change, upheaval, and uncertainty, individuals and society seek stability, accessibility, and wisdom from their institutions. How is the legal industry responding? Spoiler alert: neither adequately nor holistically.
The legal industry has not coalesced to address the erosion of public trust in lawyers and legal institutions, lack of access to legal services for most individuals and small/mid-sized businesses, and other systemic deficiencies. That undermines law’s efficacy and erodes its societal impact at a time when both are badly needed.
Nor has the industry collectively explored why its demographic makeup, socio-economic homogeneity—even its vocabulary— bear little resemblance to society-at-large. Examining why law has become so detached from the public is the first step towards rectification. The short answer to the why question is culture; the industry has failed to adapt to the ever-widening scope and accelerating pace of individual, business, and social change. It has largely ignored its role to protect and advance the rule of law and common good. Instead, most in the legal industry are focused on preserving the internal status quo
The legal establishment has also sidestepped other internal challenges—its law schools’ antiquated, doctrinally-steeped pedagogy and “one-size-fits-all” approach; failure to recruit a diverse cohort with a learning-for-life mindset and invest in their upskilling that includes affordable self-help tools and experiential learning opportunities; lack of diversity, inequality, gender pay gap, “usual suspect” talent pool and emphasis on pedigree; and lack of collaboration/ team building. The legal industry devalues “soft skills”—empathy, resilience, inquisitiveness, and passion, among others. These are core attributes that not only contribute to professional success but also to human fulfillment.
An Industry That Has Lost Its Purpose
The legal industry lacks a central purpose. It is a fragmented, insular industry in search of meaning. Law’s key internal stakeholders— education, service providers, regulators, and the judiciary— operate as guilds. Each has its own norms, pace, metrics, and structures. There is little collaboration, cohesion, or urgency among them to synchronize and advance collective objectives. Law has become a rudderless ship.
An asynchronous insular, siloed, precedent-bound, risk-averse, self-regulated, homogeneous, data-deficient industry lacking a reason for being cannot produce the bold, outcome-oriented, purpose-driven approach required to solve wicked problems. A full-throated, all-hands-on-deck defense of the rule of law is tops among them.
What is the purpose of the legal system and what role should each of its component parts play to achieve it? These are existential questions the legal industry must address, coalesce behind, and act upon.
A good place to start is the preamble of the American Bar Association Model Rules of Legal Ethics. It provides: “ A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” The legal profession has a special relationship with its customers (clients) as well as a strong social compact to set a high moral standard for the rest of society. If the legal profession serves only a small segment of those in need of its services, how can it act as steward of the quality of justice?
Ralph S. Tyler Jr., a Harvard constitutional law professor, considered the state of the legal profession in a recent New York Times Op Ed. His assessment is stark and unsettling: “Something has gone badly wrong: It is unclear, in America in 2022, what the point of law is, what higher ends it should strive to attain. We have forgotten what law is for.”
Tyler contends law’s lack of purpose and pursuit of “the common good” pervades the profession/industry and imperils the rule of law. In his view, law’s lost purpose extends all the way to the Supreme Court. He concludes that, “The great promise of our legal system…that law can create a framework to reconcile plural interests in a diverse society has manifestly failed.” In his view law’s abdication of the collective good and breach of its social compact indicate it has been infected by the same cancer that has metastasized in the body politic.
The witching hour for the legal industry to take concerted, meaningful action is fast approaching.
For Law, It’s The Same Old Same Old
Key legal stakeholders continue to plod along, seemingly impervious to the convergent, convulsive changes transforming our lives, business, society, geopolitics, and environment. That t dilutes the legal function’s societal impact, erodes public trust in the rule of law, and weakens an already “flawed democracy.” Worse still, there is no apparent urgency to take concerted action.
Students enroll in law schools, and 95% take out loans while the average grad is saddled with a $165,000 debt, not including interest. They lack practice-ready skills upon entry into the marketplace. Law schools continue to “teach students how to ‘think like a lawyer’” even as the legal role is being reconfigured not by lawyers but by business. Most full-time law school faculty have little or no practice or industry experience, understanding of the marketplace, or awareness of new career paths open to agile, inquisitive, team-oriented, and passionate grads.
Large corporate law firms continue to prosper even as their associate turnover rates and partner defections continue to rise. Meanwhile, their corporate (in-house) counterparts confront decreasing budgets, cost-takeout quotas, expanding portfolios, new risks, and an expectation that they not only defend the enterprise but also generate enterprise value and help enhance customer experience. Something’s got to give….
Courts are backlogged, opaque, and widely regarded as for the wealthy. Their laggard pace is out-of-synch with the speed of a digital world. The court of public opinion is increasingly challenging the hegemony of judicial resolution. Things do not have to be this way. As my good friend Richard Susskind has thoughtfully observed, courts can become a process, not a place. What’s lacking is the willingness of the judiciary—and the broader industry—to challenge the status quo and to utilize available tools, resources, data, and new delivery models. These resources—and a result-oriented approach to their utilization—would improve access, efficiency, predictability, affordability, user-experience and scalability of dispute resolution, commercial transactions, regulatory compliance, and other functions.
Regulators routinely reject or nibble around the edges of legal modernization efforts. The remarkable rise of pro se litigants and default judgments in U.S. courts is the smoking gun in the case for re-regulation. Notwithstanding remarkable advances in technology, there is a dearth of self-help tools and affordable representation available to those that cannot afford a lawyer. As well, in many instances a licensed attorney is neither required nor the best equipped to respond to the challenge. Worse still, it is the legal profession that routinely opposes regulatory reform intended to better serve the public.
The legal profession is unhealthy—literally and figuratively. It suffers from high rates of suicide, chemical and alcohol dependency, divorce, and depression. A recent Atlantic article asserts that the legal profession has also become rife with partisanship, cancel culture, and ideological orthodoxy. “The Constitution once united a diverse country under a banner of ideas. But partisanship has turned Americans against one another—and against the principles enshrined in our founding document.” Many lawyers have morphed from officers of the court to acolytes of orthodox ideologies.
“The Takeover of America’s Legal System”, another provocative indictment of the legal industry, contends law is infected by the same social forces that are fueling intolerance, doubt, and violence across society. The piece provides several examples of cancel culture and tribalism at U.S. law schools. It quotes a well-respected law professor who laments that: “the imperatives of race, gender, and identity are more important to more and more students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law.” Censorship—in the form of shutting down and/or ostracizing unpopular views or voices—has become common at law schools and is increasingly evident at law firms and in the judiciary.
What To Do About It?
There are no quick or easy solutions to the aforementioned issues, but stasis is not a viable option. Here are some recommendations.
1. The legal industry, via leaders of its key stakeholder groups, must convene to establish its purpose.
2. Each stakeholder group plays a role in advancing the industry purpose. Collaboration, team-building, and integration between/among stakeholder groups is essential. It must become part of law’s cultural fabric.
3. The legal industry must see itself as a function; it is part of a larger societal whole. Its purpose is not to serve lawyers but to serve justice and act as its steward.
4. The legal system should promote:
· Problem solving
· Data mining, analytics, cross-functional sharing, and security
· Data-backed recommendations
· Multi-disciplinary collaboration
· Industry benchmarks
· Standardized terms
· Self-help tools/solutions
· Simple language
· Business knowledge
· Client-centricity (those that engage it and society-at-large)
· Career-long learning centers
· Up-skilling investment
· Cultural awareness
· Social responsibility
· Diversity, equity, and inclusiveness
· Synergy (internal and with other industries and society)
· Cost-effective solutions
· Data-backed performance metrics available to the pubic
· Competition (re-regulation)
· Allied legal professionals (multidisciplinary workforce)
· Diversified legal education programs tailored to different career paths
· Impact on business and society
· Global approach/collaboration to improve legal delivery
5. The legal industry should have fewer:
· Unrepresented/under-represented individuals and businesses
· Disputes that result in court proceedings
· Lengthy contracts
· Buzzwords and tech-hype
· Innovation awards, self-proclaimed “visionaries” and “disruptors,” (and more thoughtful experimentation)
· Law schools
· Industry wide collaboration
· Barriers to competition
· Lawyers handling administrative matters and tasks that do not require legal licensure and/or can be done by machines
· Examples of lawyers impeding commerce, not facilitating
The legal system’s must serve the needs not only of clients that engage it but also society-at-large. Failure to do both is kryptonite to the rule of law and democracy. At a time when, for many, the rule of law is synonymous with political, ideological, and economic identification, the legal industry must adhere to a higher standard. It cannot look the other way—much less participate— in partisan conduct that violates its duty as an officer of the court and surrogate of the rule of law.
This is law’s biggest case, and the stakes could not be higher.