Disintermediation and continuity

by Paul Maharg on 20/08/2017

Last year Michele Pistone and Michael Horn published an excellent piece on law schools and disruption that’s full of interesting thinking about law school futures.  It was published in the Clayton Christensen Institute for Disruptive Innovation, and follows in the mainstream of Christensen’s thinking on disruption.  I agree with almost all of it.  I’m also aware of the arguments against disruption.  Take for instance Jill Lepore’s highly readable critique of Christensen back in 2014, in The New Yorker, which was answered by Christensen (paywall) and summarised in several blogs eg here.  I’m interested in her conclusion:

Disruptive innovation is a theory about why businesses fail. It’s not more than that. It doesn’t explain change. It’s not a law of nature. It’s an artifact of history, an idea, forged in time; it’s the manufacture of a moment of upsetting and edgy uncertainty. Transfixed by change, it’s blind to continuity. It makes a very poor prophet.

It seems to me that Lepore is thinking about the early Christensen, rather than the subsequent developments of his theory, which do explain some change well and can predict change in some markets.  While I think that Pistone & Horn are right about changes happening in many law schools, what I find fascinating is how disruption laminates with continuity.  No matter how innovative a curriculum is, it’s always going to be a fusion of change and continuity.  If their work is to be effective, innovators have to understand the many layers of historical innovation still existing in the way law schools operate, the ways we create and organise the educational resources of the discipline, use educational spaces, and array information and knowledge for our students.  And not only innovators.  As we pointed out in LETR, we need educated regulators who understand disruption and continuity, and who make democratic, educated judgments with innovators around the perplexing dilemmas of what to change and how.[1]

It was for that reason that in a recent article I chose to discuss examples of disintermediation not from recent digital innovation, but from the incunabula of the print industry over half a millennium ago.  I explored two aspects of the lamination of change and continuity in universities.  First, it’s undeniable that print technologies disintermediated not just manuscript cultures of learning, but the structures of scholarship based upon them.[2]  And yet the institutions that depended upon them, namely universities, adapted, survived and thrived.  Second, disintermediation of knowledge has been essential to the nature of knowledge itself, its creation, development, transmission and dissemination; and those processes are transformed by the digital revolution we are all living through.  To quote Jill Lepore, disintermediation of knowledge creation and transmission is an artefact of history and is so because it’s a set of historical processes.  Disintermediation helps to explain both change and continuity not just in institutions such as universities but, at a deeper level, in knowledge-creation and knowledge-dissemination.  I’d suggest that for law schools, one of the critical dilemmas is how to change deep practices of knowledge creation and dissemination within legal education – not just the forms of knowledge, but how we produce such knowledge and embody it in rhetorical forms.  If we want to see radical change in legal education, we’ll also need to think about radical change in our processes of knowledge creation, transmission and dissemination.


  1. [1]It’s never just a single dilemma, which suggests division, forking of issues.  The closer we view innovation the more complex it becomes.  Even setting out to write about the dilemma of technology innovation is a dilemma.  Ever since I started writing about technology and legal education I knew I was on the edge of scholarly respectability.  Writing about legal education was bad enough — in the early RAEs of the 1990s legal education was scarcely recognised as a scholarly field for legitimate research.  By RAE2008 legal education was accepted, but we had to lobby hard via BILETA to get recognition for the status of scholarship in technology-enhanced learning within legal education.

    It still happens.  A recent anonymous reviewer of my work noted that in an article on disintermediation the application to legal education of a concept derived from ‘commerce’ to legal education was forced.  Perhaps I was forcing the issue in the way I wrote about it, but it would be hard to deny that technology and commerce exerts pressure and direction upon education in HE, including legal education, and that that pressure has actually always been there.

  2. [2]This is also true of change and continuity within the ongoing print revolution.  As I’ve pointed out before, the innovation of the Langdellian case-book would have been impossible without the industrial processes that could produce large numbers of large texts, and which were introduced into the print industry in the later nineteenth century.

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