Lessons from MIT

October 1st, 2013 / By Deborah J. Merritt

Challenges in legal education, as others have noted, are part of deeper trends in higher education and the economy. My current work on a university-wide committee has taken me away from this blog, but it has increased my knowledge of other parts of higher education. Colleagues in many fields are struggling with “Robin Hood” tuition/scholarship practices; the growing gap between well-paid professors and low-paid teaching staff; and a new interface between the academy and workplace. Solutions are elusive, but these issues are provoking serious study.

In 2010, MIT President Susan Hockfield established MIT’s Production in the Innovation Economy (PIE) research group. Hockfield asked the group to study the decline of U.S. manufacturing, and to identify factors that might restore a more vibrant economy. The group conducted extensive research in the United States and abroad, produced a preview report, just released one book, and has a second book due in January.

What does any of this have to do with legal education or law practice? I’m struck by two points made in the preview report.

Products, Services, and Bundles

We used to divide the economy into products and services. Citing Harvard economist Richard Freeman, the MIT report notes that products are things we can drop on our feet. Services are less likely to hurt your feet, although they may mess with your mind.

Today, however, “the traditional line between ‘manufacturing’ and ‘services’ has become so blurred that it no longer serves to distinguish separable and distinct activities or end products.” (P. 10) Our economy still produces plenty of goods and services, but the economic “activities that create most value, that is, the ones that are most difficult for others to replicate, are bundles [of goods and services].” (Id.) Apple doesn’t just manufacture iPods; it sells a suite of goods and services that have changed the ways we listen to music, exercise, and learn.

Lawyers think of themselves as service providers, but many of our traditional services are quite product-like. You can, in fact, drop a contract, take-over agreement, or divorce decree on your foot. A box of documents, produced in response to a discovery request, could definitely stub your toe. These “products” result from intellectual work, but that’s true of any engineered item.

During the last decade, lawyers have been dismayed to see their services mutate more clearly into products. Want the paperwork for a simple divorce? You can buy it online or in a bookstore. Want to incorporate your small business? Those forms are available as well. E-discovery lawyers, working away at their basement computers, look more like assembly-line workers than professional service providers.

While lamenting this shift, legal educators and bar leaders have missed a key point: The most successful legal service providers have recognized that law is a bundle of products and services. We won’t get anywhere protesting the commodification of law practice. We have always produced commodities; form leases and form pleadings existed decades ago, and lawyers tweaked them for individual clients. Law has always included products.

Instead, we need to focus on the services that we can provide to accompany the products. “Service” doesn’t mean charging a lot of money to tweak the form pleading; it means providing the additional advice that clients actually want from their lawyers. To provide those services, the ones that will sustain lawyers during the next generation, we need to know much more about what today’s clients want. We also need to educate students in ways that focus on interacting with clients, determining what those clients need, and providing those services. Too much of today’s legal education still focuses on our products.

The concept of bundled goods and services can guide our way in legal education. Take a hard look at our curriculum. Which classes focus on products (the legal content we deliver to clients)? Which ones help students master services (listening to clients, responding to their needs, providing assistance that reaches beyond the legal product)? “Legal reasoning” and “thinking like a lawyer” don’t count as services in this rubric: those are necessary skills, but they are ones that lawyers use to design their product.

In the new economy, clients won’t pay much for legal products–they can purchase those at ever-declining cost. Instead, how do we educate students to provide the bundled service? Do we in legal education even know what those bundled services are?

Innovation and Production

The MIT report also stresses the feedback loops between innovation and production. Those forces have always depended on one another: R&D departments communicated with their production departments to refine concepts and perfect them for the market. “That’s because,” the MIT research group observes, “much learning takes place as companies move their ideas beyond prototypes and demonstration and through the stages of commercialization. Learning takes place as engineers and technicians on the factory floor come back with their problems to the design engineers and struggle with them to find better resolutions; learning takes place as users come back with problems.”

Over the last two decades, however, companies have separated these two functions. They have closed R&D departments, relying upon universities to provide innovation. At the same time, they have outsourced production to workers in other countries, placing research and production on separate continents. This trend toward separation, the MIT researchers contend, is one cause of America’s troubled economy. Companies in countries like Germany and China are moving ahead of us–in innovation as well as production–because they maintain close links between those functions.

Again, there is a lesson here for lawyers and legal educators. We have also increasingly separated innovation and production. I know some scholars who regularly test their ideas with practicing lawyers and clients, but I know many more who rely exclusively on academic workshops and conferences. Practicing lawyers contribute their share to this gap: many are too busy, or too focused on the short term, to spend time reflecting on new ideas.

Closing this gap could provide new energy for legal scholarship, as well as new products and services for lawyers to sell. Connecting research and practice doesn’t mean that all research will become client-specific, applied work. Other industries support plenty of basic scientific research because they know that basic research powers innovation. In law, we need to build the same infrastructure that other U.S. industries once had, and that MIT urges them to rebuild: collaborations that allow innovators and producers to learn from one another.

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