A Perfect Storm for Legal Education: Privatization, Polarization, and Pedagogy

Authors

Rachel F. Moran, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

12-2023

Journal Title

University of Pittsburgh Law Review

ISSN

0041-9915

DOI

10.5195/lawreview.2023.1003

Abstract

Today, the legal profession faces new challenges to its integrity and legitimacy due to technological change, rising political polarization, and a stratified bar. In this Article, I first explore how technological innovations are undermining lawyers’ claims to a unique monopoly based on expert professionalism. These technologies are designed to transform routinized law practice in ways that improve efficiency. With little focus on attorneys’ obligations to serve the greater good, technology entrepreneurs emphasize practical advantages over traditional forms of representation. These proponents promise reduced costs and superior results through a single-minded commitment to market dynamics. Those promises in turn depend on displacing conventional lawyers and the expense they entail.

I then turn to the challenges that an increasingly polarized populace poses for any ambitious notion of social trustee professionalism, that is lawyering in the service of the greater good. As it becomes increasingly difficult to find common ground, one form of public-spiritedness that may generate broad consensus is safeguarding the administration of justice. This commitment can be cast as a purely procedural one that does not choose among competing substantive claims about the good life and the American way. Yet that narrow framing leaves the profession ill-prepared to resolve intensifying differences: proceduralism alone will not appease those who are results-oriented and distrustful of others who hold opposing views. Unlike technological advances, debates over polarization cannot plausibly be resolved through market solutions. Because seemingly irreconcilable values are at stake, lawyers as social trustees must demonstrate how the law sets boundaries for civil discourse and creates conditions for compromise.

Finally, I examine how the combined forces of technology and polarization are likely to affect legal education and the legal profession. As technology displaces various forms of routinized practice, lawyers who perform these services will be less in demand. Their share of the legal sector will shrink, and less prestigious law schools that train graduates for solo or small-firm practice will see enrollments drop. As these schools contract significantly, legal education will become increasingly identified with elite law schools that train graduates who serve privileged clients. At the same time, ordinary people will come to view their contact with the legal system as more akin to an online transaction. As a result, the basic understanding of law that arises through ordinary interactions with practicing attorneys will become increasingly rare. The general population will perceive law and the legal profession as a province of elites, and there will be growing distrust of legal institutions as a result. When lawyers have to resolve deeply polarized disputes—that is, the hard cases that make bad law—there will be few reserves of popular goodwill to support their efforts.

First Page

331

Last Page

358

Num Pages

28

Volume Number

85

Issue Number

2

Publisher

University of Pittsburgh School of Law

Rights

CC BY-NC-ND This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.

Recommended Citation

Rachel F. Moran, A Perfect Storm for Legal Education: Privatization, Polarization, and Pedagogy, 85 U. Pitt. L. Rev. 331 (2023).
Available at: https://scholarship.law.tamu.edu/facscholar/2114

File Type

PDF