the future of law schools

Rahm Emanuel has said that one should never waste a crisis, and the powers that be in American law schools appear to be taking this to heart. Every day or two, there is a new comment to the effect that the "gravy train" is over for law professors, who will hereon out have to earn their keep like everyone else in an increasingly harsh society. Paul Caron, the author of TaxProf blog, talks about the need to apply "MoneyBall" principles to law professors. JoAnne Epps, dean at Temple, says they need to reduce theory and focus on practical training. Students, understandably frustrated by an awful job market, are if anything more hostile.

Since I teach at a middle- (OK, upper middle-) range law school, and make less money than anyone I went to law school with, I'm not quite sure what gravy train people are talking about. But I have a strong feeling of deja vu, together with a sneaking suspicion that--as Mr. Emanuel's remark suggests--a lot of people are using the economic crisis to push policies that they would have supported in any event. More specifically:

1. I simply don't buy, and have never bought, the "practical lawyering" argument. At least 90 percent of law school is devoted to teaching practical subjects, with pure theory relegated to a few advanced seminars. The difference is that the better law schools, like the better schools in any profession, try to emphasize difficult, cutting edge issues rather than easy or safe ones, and to hire professors who are cutting-edge thinkers rather than local practitioners looking for an easier life. This is why the more "theoretical" law schools almost invariably do a better job placing their students than the ones who supposedly specialized in the "real world" of law, and why many or most of the "practical" teachers use teaching materials prepared by people at these supposedly out-of-touch schools. The idea that law schools should be more practical is thus something like the statement that pitching is 75 percent of baseball: people say it, but on one acts like they really believe it.

2. The American university, for all its faults, remains unquestionably the world leader, precisely because of its intellectual creativity and willingness to invest resources in long-term projects. By contrast, American law firms (and much of American business) have adopted a short-term, "eat what you kill" philosophy that has come close to bankrupting the country on a financial and a moral level. For the law firms to tell the universities "Be more like us" is at best unconvincing and at work incredible chutzpah.

3. The actual policies that result from the hard-nosed, "moneyball" approach to law school--i.e., more centralized management, the increasing reliance on adjuncts and other nontenured faculty (why pay someone $150,000 a year when you can cover their classes with part-timers at one third the cost?), and eventually a full-blown assault on the tenure system and the concept of faculty independence/faculty governance altogether--are, conveniently, precisely what university managers have been trying to implement for several years before the crisis, anyway. At my own law school, we do less and less tenure-track hiring, and the university (citing the state's economic crisis) has refused to pay previously negotiated raises to faculty members. But it had money to pay $300,000 to a new dean at a sister campus, who was politically connected and had no significant scholarly background; the salary for the new "chancellor" of our campus, who is also politically connected, is sufficiently high that no one is even willing to talk about it. It goes without saying that the schools applying these tactics--witness the University of California system and several of the midwestern state universities--almost invariably decline in quality, having been overtaken by other schools who hire their best "theoretical" talent away from them.

What I think is really happening is that the crisis is re-dividing American law schools--not to say the entire country--into "have" and "have not" categories, with the "haves" continuing to operate on the research-driven, independent-faculty concept and the "have nots" facing increasing pressure to adopt a low-wage, centrally managed, essentially trade school model. The none-too-thinly-disguised message to students at these latter schools is to give up on asking difficult questions and accept their role as cogs in a soulless money-making, or at this point money-losing, machine. The economic crisis will eventually pass, but that damage resulting from this conformist and mediocre view of legal education may be more difficult to clean up.