Rediscover the Future of Law
William Sullivan, lead author of the Carnegie Foundation’s influential 2007 report Educating Lawyers: Preparation for the Future of Law talks to Andrew Benedict-Nelson of Insight Labs about where the industry is headed.
Andrew Benedict-Nelson: The Educating Lawyers report is interesting in itself, but it’s also had an interesting afterlife. Could you tell me about where you fit into the story of the document and its past, present, and future?
William Sullivan: My relationship to it arose because between 1999 and 2010 I was co-director of a project at the Carnegie Foundation called the Preparation for the Professions Program. It was designed to look at five different professions — medicine, law, engineering, nursing, and the clergy. One of the premises of the study, which turned out to be true, is that while there have been lots of studies of professional education (all the way back to the Flexner Report on medical education that Carnegie put out in 1910) they all tended to be about just one field or another. Fields like medical education or legal education weren’t thinking of themselves as some larger thing called “the preparation of professionals.” So we were consciously trying to go beyond that, using insights drawn from one field to illuminate the others. The other major premise was that there was a great deal in what people have called the “cognitive revolution” in learning that would be useful in all of these fields. …
I ended up as the lead author of the Educating Lawyers book. It was mainly based on field work done at 16 different law schools in 1999, 2000, and 2001. Then the study had to be put on hold for several years, but it finally appeared at the beginning of 2007. My assumption at the time was that the field of legal education wouldn’t pay a lot of attention to it — it’s a field that has a long history of ignoring various critiques and proposals for reform. It seemed that virtue was its own reward and we should just focus on saying something of substance.
So we were actually amazed at the amount of resonance the study got, which we began to find out about piecemeal in 2007 and 2008. By that time, it became clear that there was a much bigger wave for change building in the legal academy that was consistent with what we were proposing.
The final part of the story is that in 2009, I was approached by Rebecca Kourlis, who is head of a group at the University of Denver called the Institute for the Advancement of the American Legal System. They had concluded that judicial reform would not succeed in the long term unless they could also improve the training of lawyers. So they began an effort to build on the work of the report. … That became Educating Tomorrow’s Lawyers, which has now grown into a network of 30 law schools and several national conferences. Their main concern right now is building bridges between academic law and the legal profession.
Andrew Benedict-Nelson: The report included several recommendations for the reform of legal education. Could you give me a kind of scorecard of how law schools have done on those since 2007?
William Sullivan: Well, I should say something about this particular context of reforming legal education.
We talked about how in 1910 the Carnegie Foundation released the Flexner Report, which completely changed medical education. About a decade later, the foundation tried to do something like that for law. The author of the report, Alfred Reed, concluded at the time that there was no single “bar” or legal profession in reality. He broke it down into a “corporate bar” based in New York, Boston, Philadelphia, etc., and what he referred to as the “immigrant bar,” which was more focused on the needs of average citizens. In response to this, he proposed a system not unlike the British system of solicitors and barristers, along with two different kinds of educational preparation.
Well, all of that went down very badly at the American Bar Association, as you might imagine. The president of the ABA at that time was Elihu Root, who had been Secretary of State and so forth. He was outraged. He urged the ABA’s House of Delegates to reject the report, which they did. Then he urged them to write their own report, which is really quite stunning. It says things like the “immigrant bar” was a threat because only Anglo-Saxons could understand the genius of Anglo-Saxon law. It really touched a nerve and revealed how political law was.
So the point is that these efforts at reform in the 20th century never worked. What ended up happening was that the model for law schools remained the one that Harvard developed in the 19th century. Some scholars have argued that it is the model for many other meritocracies that followed. The founder, a charismatic figure named Christopher Columbus Langdell, actually conceded the notion that legal training should have nothing to do with legal practice — he was very explicit about it. He said that in order for it become a real science and have the prestige of other sciences in the new academy, it was important that law distance itself from practice and be understood as a primarily intellectual exercise. He felt that people who excelled at that would be the natural, rightful leaders of the society that was coming into being.
It took a long time, but by World War II, that model drove out all of the earlier models that Reed had noticed. For example at the beginning of the 20th century one of the major sources of legal training in the “immigrant bar” was the YMCA, which opened night schools in various cities. Children of immigrants could go to those schools and then serve in those communities. The Harvard model was also hugely attacked in the 20s and 30s by the so-called “legal realists,” who attacked it on the grounds that it didn’t give students any understanding of what the law actually was and how it worked. But none of that had any long-term effect.
The post-World War II period, then, is a period of ascendancy for this single model of the law school that ultimately came from Harvard in the 19th century.
Andrew Benedict-Nelson: I think a telling contemporary symbol of that is the Supreme Court. In some ways, we have the most diverse Supreme Court we’ve ever had — you’ve got men and women, multiple races, Christians and Jews. But every single one of them went to law school at either Harvard or Yale.
William Sullivan: That’s right. Sociologically, this is a case of the constitution of a field where the early adopters achieve a kind of legitimacy that replicates itself. Increasingly across the 20th century, to have a “real law school” meant to have a law school like Harvard Law. Also, over time the field of academic law has grown increasingly detached from the practice of law and emulated the standards of other fields in the academy. That’s why there are endless complaints about today’s legal scholarship from the judiciary — they don’t tell them anything about the law. That was not true 40 or 50 years ago. …
Andrew Benedict-Nelson: I keep waiting for the other shoe to drop here. I keep waiting for you to say, “…and that’s why all these big law firms are so screwed up.”
William Sullivan: Well, yes. These law schools — what are sometimes called the “medallion schools” or the top 20 or the top 30, depending on who’s counting — really became the gateway to what Reed called the “corporate bar.” As long as that system was growing — which it continued to do through nearly all of the postwar period — there was very little reason to do anything to change it. Their most important customers were quite satisfied. And there has never been the kind of insistence as there is in the medical profession that the best educators also be some of the best practitioners. It has become less and less true.
So the way it used to work was that big firms assumed that they were getting the best of a meritocratic system — the brightest folks, the best of the best. Then you expected to spend two or three or four years training them to actually practice the law. That was perfectly reasonable as long as the system could fund that. But the crisis of the last five years — though it may have been building for the last ten years or more — is that law has become more competitive. There is less room for that in the system. Clients are demanding itemized bills and don’t want to pay for the training of associated on their dime. This has made it much harder for firms to work in the traditional way.
Andrew Benedict-Nelson: I’d like to introduce a kind of funny metaphor that may help us use some of this history to develop solutions for the present. There is a movement now to create seed banks for various kinds of crops. The idea is that we have become so dedicated to monoculture, to using the same genetic material in field after field after field, that we may need some kind of backup in case of disaster. Well, I wonder if you could think about the previous, more diverse world of legal education as a kind of seed bank, and the present system as a monoculture in crisis. What are some of the elements from the “seed bank” you might use to make the ecosystem healthy again?
William Sullivan: It’s a nice analogy, because legal education — not legal practice or culture, just legal education — really is a monoculture, and has been on that track for a long time. Very early in the work for the Carnegie report, we discovered that there was very little variation in law schools. Where there was variation, it was usually because a school had been started with a mission or purpose beyond just educating lawyers generically for the national market.
The most striking example at the time was the CUNY law school in New York. They deliberately recruited people who would not be able to get into most law schools and have continued to do that, focusing on students of color, immigrants, etc. To enable those students to pass the bar exam or to practice, they decided that they couldn’t follow the Harvard model, so they integrated practice and doctrine much more than the other schools. When we did the research for the report, there were only four schools like that nationally. But around the time we released the report, there were five, six, seven schools experimenting with models like that on their own.
Andrew Benedict-Nelson: Of the models that have emerged since Educating Lawyers, which one interests you the most?
William Sullivan: The most interesting one by far is the one started at the University of New Hampshire. This began as an initiative of several members of the Supreme Court of New Hampshire. They were reacting to something you hear about from almost all levels of the judiciary, which is the real incompetence of some of the practitioners who come before them. They found their champion in what would become the state school. They have a program run by a fellow named John Garvey, who is a brilliant guy, an entrepreneur. It’s called the Daniel Webster Honors Program. Students who are accepted spend their second and third years of law school almost entirely in a practice-oriented curriculum.
It has the added feature that the bar exam is integrated into the program. Bar examiners meet with students after each of their semesters and students produce rather extensive portfolios of their work with comments by faculty. The bar examiners evaluate them on this basis and effectively coach them until the end, when they agree or disagree that this person can practice law on their own.
This is a model that’s quite different from the existing one. Statistically, it’s quite remarkable. The students coming out are vastly outperforming their peers, but the students going in don’t have any practical or experience advantages over their peers — it is clearly the program itself. In that sense, I think it represents a gold standard. If you want students not only to understand the role of the law, but the role of the lawyer, we now know how to do it. … It’s not to say that there might not be some other way, but they have done it by strongly emphasizing entry into the law through doing.
Andrew Benedict-Nelson: It seems fortunate that they’re doing it in a way that must also be really appealing to the firms that will eventually employ these folks.
William Sullivan: That’s right. The big question is what aspects of this can be taken to scale. The California bar has also been interested in encouraging real preparation for practice. There is also going to be a big confab in New York in January on whether they could promote this kind of experiment in New York schools. That’s important because New York and California are, in many ways, the two leading state bars.
So I’m cautiously optimistic that this could go somewhere. … But I don’t think it will be Harvard or Yale or Stanford that will pick up these ideas most effectively. It may be middle-tier schools who find a new niche. One feature of the legal market is that while the top 30 schools train for a national market, most other schools train for regional markets. On that level, it is very feasible to work out ways where state bars and regional employers can cooperate in this kind of process.
Andrew Benedict-Nelson: And, ironically, would create lawyers who are more competent for national and international practice.
William Sullivan: It’s possible. And there’s nothing to say that a maverick or two at the upper levels could emerge. In a way, NYU has been that for a while now. They did a remarkable thing in the first decade of this century by leap-frogging up the rankings of the top schools — that’s historically been a very difficult thing to do once you’re already in the top 10. They did that in large part by developing a more interdisciplinary faculty and including a more serious emphasis on legal practice.
Andrew Benedict-Nelson: In Educating Lawyers, you devote a lot of attention to the way in which analysis develops as a style of thinking in law schools. We’ve been thinking a lot about that too. Here’s why — our very first session considered the role that technology will play in the future of the legal profession. We wanted to move beyond the observation that one day you’ll be able to have all of Westlaw in your pocket — that seemed too obvious.
What we discovered by considering other industries is that advances in technology would likely peel off the lowest levels of factual analysis from the legal profession. So it used to be that you would get bills from lawyers for sending faxes — now we assume that that technology or its equivalent is just built in to every bill. Well, we think that in the future the same thing that happened to faxes will happen to facts. If it’s a fact that could be looked up in a routine way, the price will be reduced to nothing, whether that’s through artificial intelligence or crowdsourcing or some other data technology. Lawyers will still need the capacity to do it, but it will seem ridiculous to bill for it.
So what do you make of that hypothesis? How does it square with the huge emphasis on analytical thought that currently happens in legal education?
William Sullivan: Well, I think it’s quite plausible. The most interesting thing about all of these technologies is that anything that can be routinized can be removed from human activity. So yes, a lot of older functions will go that way — it could either be done by technology or offshored in some way. So I think the most important question is always how to use these abilities in ways that ultimately augment human capacities or abilities. That’s how I would describe the problem here as well. How can we bring things like the data-mining capacity of artificial intelligence into the realm of human decision-making?
The New York Times Book Review recently had a whole collection of articles on the latest artificial intelligence stuff. One of them described how after Garry Kasparov was defeated by the supercomputer Deep Blue, he did something that got much less attention. He assembled a group of chess masters, then went to work to think about how they could use Big Blue to improve their game. They did a bunch of test matches, and it turned out that a really good player working with Big Blue could outperform both the machine itself and the typical master chess player. So it turns out that the synergy of the two kinds of intelligence was best.
Andrew Benedict-Nelson: I believe there are also competitions where human players are allowed to use algorithms — it becomes its own, new kind of game.
William Sullivan: Right. That is probably where we need to think about going. What can humans and machines do together? It’s becoming pretty clear that the embodied, intuitive ways that human intelligence functions are pretty different from the ways that rule-based machine intelligence functions. These were problems we had already in the non-electronic realm, all of the problems we’ve always had with rule-based systems. That’s the area called “equity.” How do you remedy the rigidity of the rules? That’s what a lot of case law is about. And it’s what the most skillful lawyers really argue about. It seems to me that that ought to be improvable in just this sort of way.
Andrew Benedict-Nelson: Great. So all we need to do is figure out how to get lawyers to think outside the rules.
William Sullivan: Ha, well, to think about what the applications of the rules really means. That’s what jurisprudence is supposed to be. But it’s very different from a mechanical application of the rules. If you’re talking about the technical part of the law, determining which precedent is closer and that sort of thing, I’m assuming that technology will be used in that area in a more and more effective way. In the right hands, computers could be used not just to build up a barrage of references, but to discern which reference is really the most telling or relevant. That would ultimately make the law better.
Andrew Benedict-Nelson: We came at this from a slightly different angle. It seemed likely to us that a lot of this kind of work will be done by non-lawyers. You could imagine more and more legal transactions being automated in the way TurboTax automates an individual tax filing. But I think we’re after the same thing, since one of the big questions we’ve been trying to answer is what exactly lawyers provide if so many of these analytical tasks are turned over to machines. We’ve tried concepts like “wisdom” and “creativity” and “insight” … what do you think it might be? And how might we design legal education to cultivate it?
William Sullivan: I think that the way law professors would refer to what you’re talking about would be “judgment.”
My early training was in philosophy, and there’s a very rich philosophical strand thinking about this question of judgment. I think Immanuel Kant made the crucial distinction, which is between determinant judgment and reflective judgment. Determinant judgment is what all science really is. It’s what a great deal of legal reasoning is. But then there are situations where you have to figure out not how to apply a rule, but which rule is the best one to apply.
So you could see determinant judgment as a kind of digital thinking. Does this fit in this category or not? Does this number reach this value or not? But reflective thinking is analog and holistic. It’s much more fundamental in human intelligence than determinant judgment. That sets you on an entirely different course, because your main question is how to conceive of an entire situation. You can see that in jurisprudence as well as legal practice. It’s the quality that is probably most relevant to these kinds of issues.
Right now, lawyers are heavily pushed in law school to develop various forms of logic and to think logically about cases — and for good reason. That’s usually determinant judgment. But when you are dealing with clients or trying to understand a situation, they have to learn to think rhetorically (to use a much older distinction from Aristotle, not Kant). Instead of just asking, “Is it true that X leads to Y?” they have to ask, “Who is saying that? Why are they saying that? What is the context? What is the matter being discussed?” That’s a different kind of intelligence, but it’s a real kind of intelligence that can be measured and evaluated. It can incorporate logic, but it can also obfuscate logic. But that’s one of the features of good lawyering, which is actually cutting through the bad analogies and the false logic to achieve the best result.
So I think what you would ultimately need is this kind of wider understanding of what legal skills are. It would be a deeper understanding, one that encompasses an understanding of the role of the lawyer as communicator, or to use Louis Brandeis’s old phrase, “the lawyer for the situation.” To be the lawyer for the situation, you have to understand what situations are and how they’re framed. That’s not something that is typically taught in the current system. But I suspect that if a lot of the routine things were automated, that is where lawyers could add value. That’s what actually makes a good lawyer a good lawyer.
Andrew Benedict-Nelson: From mucking about in this field for the past year or so, I could tell you that the term that is often used to indicate this sort of thing is “emotional intelligence.” But I think that doesn’t quite capture everything you’re talking about, since it’s not always emotions that frame the situation.
William Sullivan: There have been plenty of people in legal scholarship who have tried to capture this, who have looked at the role of narrative in cases and that sort of thing. But it has been on the margins. It has not been the focus of legal training, even though it distinguishes people who practice law really well.
Andrew Benedict-Nelson: In the Educating Lawyers report, you consider the role that the search for justice plays in legal training… or doesn’t play, more accurately. We’ve been interested in this too, and here’s why. Our group has been considering whether firms need more concerted efforts to “clean the lake” of law, to maintain it as an ecosystem where they can actually practice and thrive. Because no firm will make money if the legal system itself isn’t seen as a legitimate, reliable way to settle disputes. So where does that square with your inquiry into the way that law students think about the pursuit of justice?
William Sullivan: It’s a huge issue. It’s bigger and harder than the technology issue. The issue is really the reliability of modern society.
The reason the way the discussion of justice appears in Educating Lawyers was the discovery early on — for me it was something of a shock — that just in the way that some physicians become detached from questions of whether you can keep the population healthy, many lawyers are becoming detached from those questions as well.
The number of people who become “citizens of the profession” has always been fairly small. But because of the way law has evolved in the last 50 years, it is even more of a problem now. There is a great deal of cynicism about whether the law can or does deliver justice. The fallback is to say that it delivers an acceptable level of social order, that it keeps things from getting out of control.
The person who has done the most to understand this is Deborah Rhode at Stanford Law School. She has been very concerned that the tendency is for lawyers to think of the law as a purely technical matter and to only think of themselves as advocates. If they identify an ethical issue or a controversy in the negotiation of a deal — if they identify it at all — the question becomes, “Why should we pay any attention to this, other than the risk of being penalized?”
We discovered that that is not helped by most law schools. Mandatory courses in social responsibility are taught essentially as “the law of lawyering,” because that’s what the bar exam tests for. It takes the same analytical technique applied to appellate cases to ethical matters. So it starts to sound like a hockey game — ”what do you have to do to avoid being put in the penalty box?” That can’t be a responsible way to shape people who will be officers of the court, who will be responsible for the outcomes of the law in a broader sense. Those ideas are part of the legal tradition and are actually there in statute form, but don’t receive a lot of attention in legal education.
Andrew Benedict-Nelson: To me, the only situation where that kind of mentality positively serves justice is in the criminal system. What I mean is that I think a positive social function is served by a lawyer advocating for someone on death row who says, “What is every legal option I can give this human being?” But most of the time you need a different way of functioning as an ethical person.
William Sullivan: Yes, criminal law is a special situation, a distinct thing.
Andrew Benedict-Nelson: But I think that even if we step away from ethics, most business clients are actually annoyed by this narrow approach. The business usually wants to find the path to growth, not the path to whatever they can get away with.
William Sullivan: I think this is the most worrisome feature of contemporary legal practice.
There is a lot of complaint from business people that lawyers are problematic because they are so “conservative,” by which they mean they are so worried about staying within lines and avoiding unethical or illegal activity. That is perceived by many business people as a kind of drag on the whole operation. Now, because of economic pressures, there is even greater pressure on lawyers to just give business what it wants and not to exercise a role where they say, “You may think you want that, but it will get you into trouble in the long run.”
I think we really will need a redefinition of the lawyer’s role, where the lawyer is seen as helpful and on the client’s side, but is also more than just the tool of the client. It’s an old problem, but I think it really is more severe now, particularly in the context of these efforts to get in-house counsel “on the team” in rapidly changing industries.
Andrew Benedict-Nelson: One of the issues we’ve been exploring over the course of this year is how shifting gender dynamics will change the legal industry. That led to a discussion of the “rainmaker” — traditionally an alpha-male kind of role — and a particular kind of critique. The critique is that a lot of firms have actually been built for the care and feeding of rainmakers rather than serving clients or maximizing returns. It’s seen as the only path to success. It requires basically an unhealthy way of living for a number of years that is more amenable to men than to women. And in the end, it’s not all that good for the firm or the profession.
So one idea we’re working with is how we could redefine the rainmaker in a way that is more healthy for women, for men, for everybody. We’ve considered whether you could have a sort of rainmaker of cost-effectiveness rather than outright revenue. You’d be playing “Moneyball” to find these sort of hidden rainmakers who actually make firms sustainable and profitable.
So do you see any potential for initiating this sort of solution in law schools? Could we somehow modify the type of person who becomes a lawyer or their model for success?
William Sullivan: These are really fundamental questions for the law and the professions. Instead of trying to give a half-baked answer, I would refer to you to a book called Professional Identity Crisis by Carrie Yang Costello. It’s a very readable sociological study that was initially a PhD dissertation at UC Berkeley. It’s based on an intelligent use of Pierre Bourdieu’s idea of the “habitus,” the idea that professions create these templates for identity that are really stubborn and persist through time.
The genius of the study was using that idea to compare the social work school at Berkeley and the law school. You could hardly find two more different professional groups. One of the questions the author was trying to answer was why women and minorities seem to have more trouble in law school than white men do. That’s a complex topic, but what’s relevant here is the argument that while women make up about half of law school classes, it hasn’t seemed to have much effect on the field. It’s a testimony to the fact that the “habitus” of the successful lawyer is very well-established, and women who succeed tend to mold themselves into it. This study showed that for the boys, law school just feels like going to school, but for women and to some extent minorities, law school often makes them ask, “What is this identity I’m supposed to be acquiring?” It includes everything from how you comport yourself to how you dress to how you answer questions to how long you let people talk before you interrupt them.
So I think it’s worth considering that law firms also have a well-established culture in that regard, and that law schools just perpetuate it rather than opening it up to question. And even when it is opened up to questioning at places like CUNY in New York, students end up getting socialized into it by their peers.
The rainmaker is a part of that. Mary Douglas in her analysis of primitive societies calls one type of culture “the Big Man society.” I think that’s a perfect description of a lot of law firm culture. The whole point is to accumulate prestige through clients, through money, through getting in the paper, and that’s how the whole system works.
Andrew Benedict-Nelson: Actually, in the discussion in our group, we talked about the rainmaker role as being similar to the role of the knight in feudal society, so that’s more on point than you know. Someone in the group said, “Well, now we basically have female knights.” The fact that women can succeed at the role doesn’t mean that it was designed for them in any meaningful way.
William Sullivan: I think that is close to what has happened. I don’t think there are a lot of people questioning this in law schools, except perhaps for people who are questioning the route from law schools to the big firms. The usual reason given for so many students wanting to go to the big firms — Carnegie’s After the JD study calls it “the power track” — is that they have to pay off their loans. The economic reality of that is unimpeachable. But it probably also cloaks a well-understood but not well-articulated idea of what it means to be a successful lawyer. If you were talking about changing the profession, you would need some serious models to compete with that idea.
Andrew Benedict-Nelson: Another idea we’ve been developing is that the big law firms of the future would have a “research and development” department, just like a company like Apple or GE does now. Based on your sociological observations of the legal profession, what do you think would be the key characteristics of that kind of department?
William Sullivan: I think that it would be a lot like the R&D departments in a company like Apple or GE in that it would be focused on competition in very specific ways. You could imagine using big data, or at least moderately big data, to answer the question, “Why do we win?” or “Which of our clients are ahead of their markets?” The firm could have a much better command of the information on their clients and the world in which they operate. Right now, most lawyers don’t have time for that. They’re focused on the deal they’re working on… if they’re intuitive, they might learn something from it. But the R&D department could help the organization learn from everything it does.
Andrew Benedict-Nelson: I think you’re right to place that emphasis on learning. You can see that in the big tech firms. For example, what is the purpose of Google Plus? Inquiring minds would like to know. But even if you hate Google Plus, you have to concede that Google is probably learning a lot about the social space that is currently dominated by its competitor Facebook. You could point to similar initiatives at Apple and Microsoft, where the whole point of an activity may be keeping the firm “in the game” in some area or another.
I think you’re also right that another key aspect of R&D at tech firms is the focus on the big win, the killer app. These folks aren’t just messing around — they’re looking for future products that could help the firm completely dominate a market the way Apple did with the iPod. It’s the one chance in a 100 that will pay off thousands of times over.
William Sullivan: Yes, that would be a natural way for them to think. But you could also see it as the home for all the efforts to make the law firm a learning environment, which at present they’re really not. You would have not just R&D for products, but for people, a place that could own the entire firm’s reflective capacity.
Andrew Benedict-Nelson: That’s not without precedent in organizations. I think about the fact that cops have to document every shot fired. It doesn’t matter if it was the SWAT team shot that took out the assassin or a stupid accident where no one was hurt — you document it. Police departments have built learning into the idea of carrying a deadly weapon to enforce the law. You could imagine firms doing the same thing with attorneys and the exercise of the law.
William Sullivan: Exactly. It might have been prohibitively expensive in the past because of all of the information and data you’d have to track. But as we’ve established, a lot of that could be routinized today, though you might have a substantial up-front investment. But you’d have the data for people are skilled in that sort of thing to understand the environment, improve investments, etc.
Andrew Benedict-Nelson: As we design our firm of the future, are there any other major issues that you hope we address?
William Sullivan: The biggest question is one that we’ve already addressed some in this conversation, which is the role of law in modern society. On the one hand, we live in a society that is increasingly regulated by law. Most of the discussions about the Internet are really legal discussions. There is a tremendous amount of day-to-day regulation of activity that is going on. That is all part of law’s role as an integrating, stabilizing force that makes a complex society possible.
The other side, the more visible and glamorous and exciting side, is where law is tied to various forms of social conflict, whether it’s business competition or struggles between different social groups. It’s clear that American society is in something of a crisis in that social conflicts of various sorts, such as the growing inequality between classes, may not be resolved by law in a way that creates an acceptable level of growth, development, equity, and so on. This is what law is really important for — not just because most politicians are lawyers, but because of the kind of thinking that law promotes. How do you connect us? How do you bind us? How do you create rules that work for everyone? That’s a pragmatic necessity for any kind of grand ideal to be achieved.
So it’s hard for me to see who is really paying sustained attention to that. It was apparent during the Carnegie study that unlike medicine and engineering and other professions, law does not have many outside, above-the-fray, sympathetic champions that can really think about it as a whole and persuade the players to think about what they’re doing. It’s something like the R&D capacity we talked about, but for the entire profession.
Andrew Benedict-Nelson: Who plays that role in other professions?
William Sullivan: It’s not so much a person as an institution. The National Science Foundation is a good example — without them, we’d be decades behind in terms of what has happened with science, technology, medicine. Medicine also has a variety of foundations that for decades have pushed for access, better insurance systems, and other solutions. But there’s nothing like that in law. It would be a huge step forward if philanthropists could see why that would be valuable to fund and to build. Otherwise, it starts to feel like in the law, there’s no one running the show.
Andrew Benedict-Nelson: Or even what show it’s supposed to be.
William Sullivan: Yes.