Friday, April 22, 2005

Hard and Soft Institutions

I just read a very interesting article by Prof. Robert M. Lloyd, "Hard Law Firms and Soft Law Schools, 83 North Carolina Law Review 667 (March 2005). Professor Lloyd applies concepts from Michael Barone's book, Hard America, Soft America: Competition vs. Coddling and the Battle for the Nation's Future, to an environment with which I am quite familiar: legal education and legal practice.

Barone has observed that "hard" institutions subject individuals to an environment in which competition and accountability are important, whereas "soft" institutions make accommodations for everyone. We want some soft institutions. When I am very old (which I hope to become someday, a long time from now) or back when I was very young, competition and accountability for results are not attractive. I am simply not equipped to handle them very effectively at those stages of life, and I expect to be protected from them.

Of course, I hope to take steps to protect myself in old age, but my children may also be involved. I am grateful that my parents exercised that protection on my behalf when I was young, and I hope to do the same for them as they are old. Families are very important institutions to achieve soft functions, as when to be soft is often a matter of discretion. As Prof. Lloyd explains, "when softness begins to permeat all types of institutions, it threatens our society."

I certainly want those running companies I invest in to be thoroughly "hard" institutions when it comes to management. I want competition and accountability for results. I want the same things from the athletic teams I follow, and I especially want this in our military.

The extent to which our institutions are "hard" or "soft" presents some interesting empirical questions, . On the law school front, Prof. Lloyd points out many aspects of the legal profession -- in which many of our students will soon find themselves -- have become more "hard". The profession has become more competitive, and we face challenges from many different fronts, including technology that makes communication quick and relatively frictionless. That communication technology makes it possible for work to move around the world at lightning speed.

At the same time, however, many aspects of legal education have become softer. Among other things, Lloyd points out that "law and ..." courses have grown, when emphasize politics and culture, rather than hard legal analysis. (For the record, I teach courses in Tax and Business Associations, which my students will tell you don't fall into these categories.) He also observes that preparation for classes, which was essential when I was a pup, is now often optional. Undergraduate preparation for law school is also subject to softening effects, so that the analytical skills needed to succeed are often weaker from the start. This has the potential to further weaken the educational effectiveness of an academic program.

Many students believe that their class ranks open opportunities for them, and they make decisions about course selections based on what they think the market will reward (i.e., high grades and class ranks), rather than real thinking abilities and substantive knowledge. However, the longer term results from such choices are likely to be less than optimal. Those choices may ultimately be exposed for what they failed to deliver -- thus weakening the future potential of the individual. In the long run, as Lloyd suggests, it may even affect the perception of the thinking skills that lawyers have. (I have frequently encountered business people who valued their legal training, or respect those who have been through law school, because of the problem-solving skill set that is developed.

In my law school, we have recently moved against some of these trends by adding more required courses to the curriculum. Students are now forced to take a larger number of hard analytical courses, which are designed to prepare them for the competitive world in which they will be entering. It prevents students from being seduced away from learning some of the tough courses that may well not play to their strong suits, and thus may not reward them with high grades. But we all know that sometimes the best thing for us to do is to recognize our weaknesses and seek to strengthen them, rather than avoiding them altogether. That is a process left for middle age, not for young folks in law school.

I haven't read Barone's book, though I intend to. And I highly recommend Prof. Lloyd's article, which is brief and highly readable (not qualities often found in law reviews, including some I've wrote!). The "hard" and "soft" debate undoubtedly has effects on economic trends, including our global competitive position. Though I don't necessarily want to live in Sparta, we can't ignore the fact that we may need to train ourselves and our children to be more competitive if we are to enjoy success in the future.


1 comment:

Raneta Mack said...


Of course I agree with the required curriculum and the rationale supporting it. I have had many conversations with students who are delighted to have manipulated the system (and their GPA's) by taking "softer" courses. I always come away from the conversations perplexed by the degree of self-delusion that has to take place in these students' decision making processes. It seems to me the logic has to be: "I have learned from my first year courses that I am poor in certain skills that are required for law school; I do not want my inadequacies to be further exposed nor do I want to learn how to get better at these skills; therefore I will take courses that will mask my inadequacies and make it appear as though I am successful in law school."

What they don't realize from this flawed logic is that not only are they masking their inadequacies, but they are doing themselves an even greater disservice by possibly decreasing whatever analytical abilities they may possess. Because the softer courses often require very little in the way of independent thinking and analytical ability, they lose that "edge" required to think and reason on their feet (which they should, in fact, be trying to sharpen in preparation for the bar exam and the practice of law).

Yet, because poor students come away from these "soft" courses with CALI awards, they begin to delude themselves into thinking that they actually have the skills to compete in law school, all the while forgetting the entire reason they are taking the soft courses in the first place -- because they don't have the skills to compete.

In the end, I don't think we can necessarily fault students for taking advantage of what the market provides. Instead, we can and have changed the nature of the marketplace.