Monday, December 31, 2012
According to Deborah Jones Merritt (here), the answer is "groupness," which is being "too cloistered to keep up with changing times."
"Smart, talented, and conscientious people are particularly prone to groupness. That's because, according to Gonzales: 'If a group invests a lot of effort in a goal and succeeds, its boundaries become stronger, and it tends to become even more hostile to outside influences. . . .' Smart, talented, and conscientious people are exactly the type to invest a lot of effort in their projects. When they do, and when the projects succeed, they face the danger of unconsciously adopting group resistance to any change."
"The dangers deepen the longer a group has shared success. Members of new groups (rebels and innovators) continue communicating with people outside their immediate circle. More established organizations lose their communication with others; they become insular and dysfunctional."
She uses the Columbia disaster as an example:
"The final report on Columbia's crash noted that '[e]xternal criticism and doubt' only 'reinforced the will to ‘impose the party line vision on the environment, not to reconsider it.' NASA's executives, in other words, responded with perfect groupness: Bonded by their past success, they rejected any criticisms with hostility."
"Legal education, unfortunately, shows all of the signs of groupness. How many times have you heard a law professor say: 'We've been using the case method for more than a century. You can't argue with a hundred years of success!' How often have you heard administrators and faculty revel in the excellence of their schools and programs? How often does your law school, as described internally, sound like the 'perfect place?' How often do you hear faculty attacking the 'naive' suggestions of practitioners, students, alumni, and other outsiders?"
I think Professor Merritt is on to something. Law schools today are using a modified version of a model (the "Langdellian Bargain") developed in the "Gilded Age." That might be fine if conditions had not changed, but the world, including the legal world, is much different than it was in the nineteenth century. Lawyers have to practice in the modern world with international commerce and instant communication. Clients have much different needs than they did 100 years ago. Finally, our student population is extremely diverse. The modified Langdellian model just won't cut it any more--not economically and not in its teaching methods.
Imagine if hospitals operated like a law school. They would reject the latest technology because the old methods of diagnosis and treatment had already worked. They would reject heart surgery because that just wasn't done in the nineteenth century. They would even reject penicillin.
Law schools can no longer be resistant to change. They must operate on a business model that allows their diverse student population to graduate without crushing debt. They must adopt teaching methods that prepare them to be practicing attorneys, rather than legal philosophers. As Merritt declared, "After a hundred years, times change."