Monday, April 1, 2013
I continue to be grateful to the National Jurist for giving me an opportunity to write a column targeted directly to law students. As an educator, I have found these assignments very useful toward developing a better understanding of my own students at Indiana Law. In the process, I hope I am providing some useful, realistic guidance to the next generation of lawyers
In my 2013 column, I urge law students to ask us law professors tougher questions about the current state of legal education, albeit with respect. If they ask tough questions, we will all be better off. It is republished below. [Original PDF]
Question Authority: Law students have an important role to play in the future of legal education, National Jurist (Jan. 2013)
by William D. Henderson
I recently gave a keynote address in which I admonished a large group of law students to “question authority.” It certainly sounds cliché – after all, it was the rallying cry of countercultural icon Timothy Leary during the 1960s. A decade later, it was mainstream bumper sticker. But the admonition has a much more distinguished pedigree. Benjamin Franklin is reported to have said that “the first responsibility of every citizen to question authority.”
I wish I had known the source of the quote when I gave the speech. But regardless, it fit the context. Today’s law students are embarking upon an uncertain future. Although I can understand the impulse to trust your elders, there are times of extreme upheaval when they cannot be counted upon to deliver wise counsel.
Reluctantly, through the passage of time, I have become an elder. And for the legal profession and legal education, we are entering one of those periods of great tumult. To come out the other side, better and stronger, we need two things from the up-and-coming generation of law students.
First, we need your skepticism to question our methods and our motives. The legal marketplace is undergoing significant changes. We did not adequately anticipate these disruptions. In addition, we do not fully understand their breadth and depth. Because we are human, we are reluctant to admit our confusion. Even worse, we may even deny there is a problem. After all, the confluence of high student debt and a soft legal market happened on our watch.
Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals. All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings. As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others. Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals. This is a goal worthy of your time and talent.
If you are going to be effective at questioning authority (and unless you are going to be effective, why do it all?), you need to practice. Well, I am 50-year old tenured law professor. I create the syllabus, I decide how you will be evaluated, and I assign student grades. Much to my chagrin, I have accumulated some authority. So feel free to practice your questioning on me.
Here is the world as I see it. I could be wrong. But even worse, I may be partially right.
The entry-level job market for law graduates is tough right now. But if you had not enrolled in law school, your employment prospects would be no less murky. As noted by the popular author, Daniel Pink (himself a law school graduate), in his book, A Whole New Mind, we are living in time where every young person must compete against three formidable forces: Asia, Automation, and Abundance.
The Asian continent is formidable because nations such as India and China are leapfrogging into world economy with enormous quantities of ambitious, technically competent young people.
Automation is formidable because so much of human activity, including law, is reducible to patterns. This means solutions can be standardized, thereby displacing a significant amount of mental analysis that lawyers now perform for clients on a matter-by-matter basis. (See also my September 2012 column, “Why are we Afraid of the Future of Law?”)
Abundance is formidable because the flipside of the consumer society that has given us so many cheap, high quality choices is a producer economy in which expensive university educations provide us with skills that becoming more and more fungible.
To my mind, today’s university educators are not responsible for the challenges created by Asia, Automation, and Abundance. These are massive structural and economic forces that are hard to forecast and impossible to control. Yet, as university educators who benefit from your tuition dollars, we are responsible for formulating effective responses. Although we might prefer to focus on a different set of challenges, this one should take top priority because its weight falls disproportionately not on us, but on you.
So you need to ask us, “How well is this education helping us adapt to the challenges of Asia, Automation and Abundance?” Some of us might reply that the threat is overstated. Well, are you convinced? What evidence supports this assessment?
Alternatively, others of us might reply that the challenges are very real, but fortunately, the core elements of traditional legal education are an excellent preparation. Well, are you convinced? Further, is it possible that our inability or reluctance to retool may cloud our judgment and influence our reply? The iconoclastic author and economist John Kenneth Galbraith once observed, “Faced with the choice between changing one's mind and proving that there is no need to do so, almost everyone gets busy on the proof.”
A third response may be, “I don’t know. These are a hard set of issues. And they need to be solved.” When a professor responses in this way, it is hard to question their motives. Further, you may have found someone with authority who is willing to take up your cause.
At the beginning of this essay, I failed to mention one key proviso to my “question authority” admonition. I told the law students that when they question authority, they should do it respectfully. Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect. Your elders did not create the challenges that lie ahead. We are not your enemy. Our limitation is that we are human, and therefore imperfect; and so are you.
Yet, if you question authority persistently but respectfully, you will be doing yourself, legal education, and the legal profession an enormous service.
If you think my ideas and analysis are wrong, you are free to question my authority.