Sunday, 16 October 2016

No one ever unbuilds their empire

One of the reasons I started this blog is because there is too much to say about law decline/reform from a management perspective for me to say it all on other people's blogs.

But other people's blogs help to identify the gaps in legal system self-analysis, and so posts from the legal world are useful as a starting point for posts here.

A recent post on the law blog Slaw had the Dean of a BC law school sharing thoughts on the burden of student loan debt:
http://www.slaw.ca/2016/10/14/student-loan-debt-a-crisis-for-law-students-young-lawyers-and-far-too-many-underserviced-communities/.

The first commenter, to her eternal credit, nails the main problem with the post in her first line: it is not inward looking. It spends hundreds of words on the issue of student debt without putting one apparent iota of thought into how the actual cost of a legal education might be reduced.

To be fair, even if all the Deans of Law put their heads together in contemplation of how to reduce the cost of law training, they would not find the obvious answer and would do little other than design bandaids; I do not believe it is within the realm of human capability to solve the problem when you more or less ARE the problem. No one ever unbuilds their empire, even when it is oppressive, corrupt, and decrepit.

Oh dear, that is not a nice thing to say. And one of the things that prevents people from saying more things like it is that, like the Dean who wrote this post, institutions that need renewal and replacement are still led by and represented by nice, well-meaning, and very intelligent people. But unfortunately, that saves no one from being a brick in the road to hell.

This is what I posted on that thread on Slaw:

If law is bad, consider the plight of graduating dentists, faced with such high debt and set-up costs that they are almost driven to fraudulent practice to make ends meet. 

All the professions are - or should be - facing the question of whether moving their training into the ambit of universities has helped or hindered the quality of practice. While I believe that the Deans of Law are well-intentioned, I would suggest that the point at which the cost of training siphons the entire benefit of having trained is the point at which the whole design of practitioner training needs to be reassessed. But this initiative cannot be expected to come from the university; it will have to come from the profession - which itself may not act unless there is public pressure. 

And that is just one reason why legal academics engaging in the public sphere, some even styling themselves "reasonable persons," is so problematic. Public pressure should reflect public, not academic, concerns.

In one of the most tightly written management books there is, author Jamshid Gharajedaghi puts it this way: "a social pathology is produced when an obstruction to development benefits those who are responsible for removing it. Unfortunately, bureaucracy represents a pathological mode of organization where an organized interest group benefits from the obstructions it has created."

I have put some further thoughts on my own blog at ctjester.blogspot.ca to avoid bogging down the conversation here.

The quote, incidentally, is from Systems Thinking, page 81 of the 3rd edition (2011).

It is my understanding that, not so long ago, lawyers learned their craft under apprenticeship to practitioners, which would mean that judicial decisions functioned as lectures in, and the repository of, legal theory. With the transfer of training to universities, the repository of theory has moved to academe, and I am not sure it is well-housed there.

In control of all lawyer training, legal academe now controls practitioner mindset. In addition, it has created a powerful new faction within law - one that, for the most part, has never practiced, and as such is prone to utopian thinking. One that, furthermore, views itself, and is viewed by judges, as authoritative within law but is outside both market forces and the regulatory paradigm. 

The transition of law instructors from active practitioners to pure theorists and activists has gone unnoticed and unanswered by legal practitioners and regulators, and unchallenged within scholarly circles themselves. Yet with the extent to which academic publishing (far too much of it being "publish or perish" quality) is influencing the common law, I would argue that legal academe poses a greater threat to judicial independence today than government does. Government, at least, is vulnerable to public review. Academe is not.

But given that legal academics are now, in force, entering the public dialogue about law, they are also shaping public perception and dampening public objection as the judiciary increasingly shapes itself in academe's image. Even if the decline in lawyer and judicial performance is noted - as it presently is, where people increasingly prefer to represent themselves rather than pay lawyers, and express clear dissatisfaction with their court experiences - no one ever makes the connection back to academe. 

And that is how easily ideology supplants the centuries of inherited pragmatic wisdom that the common law represents. It need only come from people we trust.

They are all nice, smart people. They all belong in law, without a doubt. They may be really good teachers. But their unassailable position in the ivory tower, secured by tenure and academic freedom, suggests that actions extending their reach beyond the ivory tower, into the realm of practice, are highly inappropriate. They are the only actor in law who is not liable for what they say, do, or espouse. 

Not even for the price of their service; for what they ARE supposed to be doing. Even less for their activism, which they are NOT supposed to be doing. 

Judicial restraint is a thing in law. It is time for academic restraint to become a thing too, and not only in law.

Universities have become one of the most able competitors in the public arena for both public and private resources. They have grown at a pace that any private entity would envy, and have no one to account to for the outcome of our investment in them. They retain just enough of the intellectual cachet that led us to entrust our professional training to them, mainly because they tend to attract smart people, and we are both oblivious and powerless to object as they turn from instilling standards of practice to cultivating future contributing alumni that they can milk for further institutional growth and status. As public, as professions, as students, as alumni, as politicians, or even as faculty, we have no way of curbing their hunger as institutions. 

The Deans of law are not to blame for the overall trend in universities, and it would be unnatural in the canon of human behaviour to suggest that they should identify their own jurisdictions as part of the problem. And in fairness, it is not the Deans but the profession that makes universities its only intake portal. 

And it is having just one intake portal that is the root of the problem that law students, young lawyers, and remote communities face. 

It may not be practical to go back to the days when individual practitioners took on apprentices, but one notes, peripherally, how dramatically law firms are growing. It is not beyond the scope of probability that these firms, now numbering sometimes in the thousands of lawyers, could muster a law teaching program in-house. 

There may as well be some point to all that law firm growth and amalgamation, because in the practice of law itself I don't think there is any. 

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