BURN DOWN THE LAW! Problem-Focused Harvard
How Problem-Focused Law Became Dominant (and WDYM, Cyrus?)
Pedagogy matters.
Wooden lawyers are cracking under the weight of AI. Talk about problems.
For their own good is it time to burn it down in an AI fire? Will it burn down anyhow? Can you smell smoke? LFG
Are you a "problem-focused" attorney?
'Well, hell, I'm an attorney, ain't I?"
There could be an even better way for lawyers.
The problem-focused approach in law began to develop in the late 19th and early 20th centuries, with a couple key developments contributing to the emergence of this "thought modality" by lawyers.
In the 1870s, a man named Christopher Columbus Langdell (really!), Dean of Harvard Law School launched what became know as the "Langdell Revolution."
What was it?
A new instruction (a new modality, way) for law students to learn.
Law students would read very hard cases and ornate difficult-inaccessible vocabulary to learn to "interpret" discern the precedents (rules of law) within.
This was the mandate of Dean Langdell.
Harvard Law, the third-oldest law school in America 1817, and longest continuously operating law school in history, was the first to welcome students from across the nation and formed was (is?) the place to prepare the “national elite” for the bench, bar, and public service.
The “case method” of law school training was new, and the vision of the Dean.
Harvard had a lot of sway and still mostly does. So most every other law school followed this template up to the present. It was and IS the dominant pedagogy for training lawyers.
There are all kinds of ways to teach things, educators will tell you. Yet this is the one.
The Langdell Revolution of case reading and discerning made the Law and truth about it hidden, difficult, and nebulous in many respects. Even imprecise sometimes.
My own law school training at the end of the last millenium paralleled this. Heady dusty old British common law jurisprudence. We were “to be taught to think like lawyers.”
Society evolves. You can open the page and see on LinkedIn today any number of law school graduates stating, “law school taught me nothing. they don’t teach fundamentals.”
Well society aside, there remains the reality of “framing” of thought.
The case study method, among other things, from the very beginnings of lawyer formation, was built an ever increasing escalator of expected/presumed complexity in the legal thinking Mind. “The. Way. Lawyers. Think.”
Simple was dumb, to put it bluntly. Lawyers could/should think in complex ways. A premium was placed on complexity. One could say “embedded” in the core operating software of all lawyers.
The way Law was taught laid the groundwork for a dominant problem-focused (or "find problem") style of lawyering which is predictably and likewise dominent and endemic. Problem-focused law is the dominant modality of the Law.
Isn't that good?
Some thought so.
There was a brief competitor.
By 1917, the "realist approach" to law began to emerge in practice.
This approach was more focused on the concrete factual practical issues encountered by lawyers in their day-to-day work in their offices.
This "thought model" (modality) made lawyers more adaptable to circumstances and event as they relied more upon what they knew to be true and how, instead of the more theoretical. Also, this style tended to abbreviate solutions, as it had less “process baggage’ to sift through to make movement. And it was related, but different, from the emphasis on looking at fact patterns and discerning ALL the complex problems inside of them in the hypothetical — a call back to early lawyer formation.
It didn’t last.
The giant and global events of the Great Depression, WWII, and Roosevelt's "New Deal" aparked massive (complex) federal lawmaking into the granular everyday lives of Americans (down to their bread).
The paucity of clients compared to previous years' Depression-era business meant lawyers were also acclimated to maximize return from EACH client. And a problem-focused modality fit that bill well.
And Americans at the time had plenty of problems.
Soon elite bars figured out that the bigger the problem, the bigger the fee, problem-focused Law grew massively, as law firms grew; and as a natural outgrowth so did specialization in various sub-fields of Law also so firms could offer more than one attorney to client.
[Note: this phenomenon is comparable to late 20th century medicine — where one goes to a doctor and we know the doctor is trained to find a problem or as many as possible. Templates predominant, unrelated to the uniqueness of each patient. Too few doctors actually see to the GROWTH of our health, as a contrast. They look for problems to fix because these make money and “that’s my job.”]
Ok, but why burn it all down?
Why is problem-focused bad?
Because it does not focus on solutions. (BAM)
But even better than focusing on solutions, which also focused on problems, what is the new way?
The traditional approach to Law - Problem-focused involves:
a. Finding issues by comparing previous experiences and similar cases.
b. Focusing chiefly on risks and obstacles.
c. Applying formulaic predetermined "precentential" solutions inflexibly (like wood) to categorized problems.
d. Emphasis on abstract legal principles applied to all/any facts.
e. Scant consideration to "unbillable" broader business or personal causes, implications, or solutions for clients.
f. Risk-aversion bias. Prioritizes risk minimization (known) over exploring a variety of creative (unknown) solutions.
The set-up has several effects on the client and Law which are negative.
a. It usually leads to overly cautious advice (for the "comfort of the known") but which limits client action and alternatives.
b. Assumptions. Lawyers often make assumptions about the problem without extensive consultation with clients or other stakeholders
c. Frustration. Clients and other stakeholders (and representations themselves) may chafe and break down due to the delta between fact circumstance and problem precedent templates.
d. Solutions are favored which are known by experience, instead of those which may be more specific to the client.
e. Compartmentalization. Legal issues (i.e. real life problems) are often treated in isolation or hypothetical, not considering how these interact and impact with other aspects of a client's concrete circumstances (or wishes).
f. Legal controversies may be addressed, and underlying problems of client unresolved.
Always splinters.
What is the solution?
Lawyers must think, and if necessary re-design the thinking, and the processes of Law.
No more wooden lawyers. Burn it down.
LAWYERS ARE IN LUCK, HOWEVER. AS THE PERFECT OMNITOOL TO REORDER THINKING, DATA, AND PROCESS HAS ARRIVED RIGHT ON TIME.
New directionals in the way Law is encountered by people and clients, and how they are served.
Because AI is nothing other than a readier accessing and rearranging of the "data" of law, cases, statutes, rules...and also fact patterns, scenarios, and concrete first principles applied to various....and also clients circumstances which are increasingly ever-changing as society and technology change...
AI is the opportunity Law has been waiting for. Law’s New World and new Christopher Columbus time.
Have called it “thoughtware masquerading as software” and It is in fact an “operating software for thought.” Patches bug fixes and updates can be made and new versions installed, or whole new sw. Adds, edits, deletes.
It's multi-perspective, maxi-data, instant-retrieval ontology means it can provide a better modality than the dominant, fixed, costly, wooden, problem-focused Law model of the past.
Yes, a good deal much to be thought, written, and done ok.
Burn down the law.
