The Future of Us Part 2

Self Service Checkout“We all were sea-swallow’d, though some cast again,
And by that destiny to perform an act
Whereof what’s past is prologue, what to come
In yours and my discharge.”  ~The Tempest, Act 2, Scene 1

In the exactly three years that I have lived in Chicago, I have visited the grocery chain, Jewel-Osco, approximately four hundred and seventy-five times.  Of those four hundred and seventy-five times, I can count on one hand the number of times I have used a regular check-out line.  To me, self-checkout is the best idea since indoor plumbing.

But that’s all over now.  Jewel announced that it would eliminate self-checkout from some of its stores, and eventually all of their stores.  Many of their customers had complained about the lack of regular check-out lines, while product loss and error-ridden machines had made self-checkout less attractive for the chain.  So Jewel is going back to the past, adding more clerks and baggers and regular lanes.  They are eliminating something that seemed like such a good idea, The Future of Grocery Shopping.

We talked last week about The Future of the Law and what it means for different legal institutions, including law schools. But are we making these changes without considering the reason we had them in the past, and the impact they will have on our future?

Take tenure, for example.  Tenure is a hallmark of Law School Past that Law School Future thinks should be on the way out. That future may even include the ABA Council of the Section of Legal Education and Admissions to the Bar.  The Council is considering making proposals to reduce or remove the tenure requirement from the ABA law school accreditation standards.  Those in favor see tenure as a very expensive relic of the days when school boards and university trustees could fire teachers at whim.  That time has changed.  Eliminating the tenure requirement will reduce law school costs and ebb the ongoing reduction of administrative staff.  As Boston University School of Law Dean, Maureen O’Rourke said, “I understand the need for academic freedom …. But as an industry we have a need for flexibility that we just don’t have right now.”

Law professors are, unsurprisingly, against eliminating the tenure requirement. Tenure exists to protect academic freedom, prevent age discrimination, ensure diverse hiring and retention, and create vibrant and necessary legal scholarship.  And according to famed defense attorney and law professor Michael Tigar, eliminating tenure is “a bad idea, born of short-sighted focus on the wrong issues in the current legal education crisis.”

Yes, tenure is a relic of Law School Past.  But Law School Past created tenure for a very good reason, several very good reasons.  If the ABA eliminates it as a necessary element of law school accreditation, what happens if the professors’ dire predictions turn out to be true?

Let’s use another example – law review articles.  Law review articles have been under harsh spotlight for years. The prevalence of law blogs, from both law professors and legal commentators, have seemed to hasten law review’s inevitable obsolescence.  And a study out of Appalachian State confirmed the thoughts of many modern legal commentators.  The team surveyed 1,325 law professors, 338 student editors, 215 attorneys and 156 judges.  They were all overwhelmingly critical of law review articles.

Phasing out law review articles seems like a great idea, right?  But what happens when we eliminate law review articles and use blog posts and Internet articles as our primary source of legal knowledge?  One result is what the U.S. Supreme Court faces now, missing Internet citations.  A recent research study found that 29% of URL links that the Supreme Court used between 1995-2010 are broken.  Missing citations = missing law.  As the New York Times put it, “The modern Supreme Court opinion is increasingly built on sand.”

Listen, I don’t pretend to understand all the pressures facing academia.  But as we modernize legal education, and concurrently the legal profession, let’s take a moment to remember why certain institutions of Law School Past exist.  It’s an apt thought for us since we are a precedent-based profession.  We use case law to support our legal arguments.  We use old deal documents to draft new ones.  We seek mentors to teach us the unspoken rules of our profession.  The law profession is not a grocery store.  The changes we make have a far larger impact than an extra ten minutes in the check-out line.  “What’s past is prologue,” Shakespeare wrote.  Let’s remember that as we forge our future.

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