what's wrong with the law schools?

The ongoing recession has provided the impetus for a new round of handwringing regarding the future of American law schools. Many have suggested that the prevailing model, under which tenured faculty are paid substantial sums to teach a relatively small number of courses and write increasingly esoteric books and articles, is no longer sustainable. A recent article by Pierre Schlag suggested that this would be no great loss, as most contemporary scholarship was, in his view, not very good, anyway.

Being something of a curmudgeon, I have learned to be wary of arguments of this type, which use a real or purported crisis to argue for something the author probably wanted to do, anyway. Yet it is hard to deny that there is a problem. At my law school, tenured full professors are paid an average of $150,000-plus to teach three or four courses a year, a figure which is further reduced (the courses, not the money) by frequent leaves, sabbaticals, and so forth. To support this largesse, the school has resorted to a bewildering array of adjuncts, visiting professors, and similar arrangements while considerably slowing down the pace of tenure-track hiring: essentially the law school equivalent of a law firm making fewer partners and leveraging its associates more aggressively. While many of these additional people make very fine teachers and colleagues, most of them don't contribute to the school's scholarly profile, so that, in the longer run, there is a tendency toward stagnation or even decline in intellectual levels. People who work at the Dean's sufferance are also less likely to raise unpleasant questions, so that faculty governance inevitably suffers as well. In short, the whole model of an independent, tenured faculty is slowly withering away, a process which the economic downturn--whether as genuine cause or convenient excuse--is likely to accelerate further.

My law school has, at least, maintained a commitment to serious scholarship, both rhetorically and in terms of financial support. I am less certain of this in the broader law school world. Reading the TaxProf and other blogs, I am continually depressed to see how much time is being spent by legal scholars on marginal or entirely nonscholarly activities. For example a significant number of professors appear to be occupied in the business of ranking each others' productivity, either by purportedly "objective" methods like SSRN downloads--the moral equivalent of reviewing books without reading them--or simply by informal gossip, a staple of several of the more popular blogs. There likewise appears to be a widening gap between the scholarship produced at "name" schools, which is increasingly theoretical/interdisciplinary in nature and often far removed from practical consequences, and that at other law schools, which (at least in the tax field) looks pretty much the same as it always has. None of this is necessarily fatal: but it's difficult to see universities, especially those that are taxpayer-funded, agree to pay ever-increasing sums to subsidize a field so unsure of its methodology that it relies on popularity contests to determine its pecking order, or (what may be worse) relies on other disciplines to provide it with intellectual ballast. Here again, there is a sense of a model that is beginning to exhaust itself, but with no clear indication of what its successor will be.

What might replace the existing system is anybody's guess. One possibility would be to continue requiring that professors add some value beyond their teaching, but to be more flexible as to what that something could be. For example, some professors might continue to do traditional, law review scholarship, while others would be required to do clinical work, law reform projects, or simply teach more (or more original courses) instead. In effect, this is happening now, but by the ruse of "off the books" hiring rather than as a matter of deliberate strategy. It is doubtful that there is really a need for more than (say) a hundred new tax articles per year: why then do we keep producing them?

Another strategy--not mutually exclusive with the above--is to start getting more serious about the qualifications for a scholarly career. A colleague of mine recently suggested that one reason law schools hire so many economics, philosophy, and other Ph. D's is that so few Americans do the J.S.D. or other advanced law degrees: hiring committees thus face the choice of someone with a nonlaw training or no scholarly background, at all. In Europe advanced law degrees are effectively required for a legal teaching career. Whatever their other failings, they ensure that law professors--like those in other academic fields--have thought about their subject matter and methodology before they begin teaching. Foreign law schools have learned much from the U.S.: might we learn something from them?