Saturday, July 25, 2009

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.


At 11:43 PM, Anonymous Omri said...

The unfortunate results of this "centrally managed, essentially trade school model" with its political footing are just starting to show in the Israeli academia (see the link attached to my name).
I find it extremely disturbing when academics are given "a list of things that [needs] to be done" by political/business figures.

At 10:15 AM, Blogger Victoria Szymczak said...

I am increasingly concerned with the lack of creativity on both sides of this argument. Practical lawyering skills and theory do not have to be mutually exclusive unless the people operating in each of those worlds disrespect each other. Doctrinal profs need to remember that the majority of their students must be prepared to earn their keep when they leave school. Lawyering skills people need to remember that the reason why lawyers are thinkers is because they pursue discoarse on a wide range of subjects during law school. I find it disturbing that so many legal educators cannot find a common ground to work on with each other.

At 2:09 PM, Anonymous Anonymous said...

As a practicing tax lawyer that works in excess of 60 hrs a week while trying to maintain a family and some semblance of sanity, allow me to elaborate on what I perceive to be the law school gravy train (aka deadwood):

Professors that teach at low ranked law schools that charge exorbitant tuition for little in return in terms of job prospects for students. These professors mindlessly teach out of canned case book guides year after year and recycle exams. They don't publish, and they make six figure salaries. They are tenured, so they sit back and rest on their elite degree laurels, and offer little of value to anyone or anything.

These professors teach 10 units a year. Thus, they are free to frolic about as world travelers during the summer.

Indeed, one criminal law professor I had in law school has done nothing but write non-law related novels in the past decade. Must be nice...

Meanwhile, I toil away, praying that the layoff train doesn't pass through....

At 6:20 PM, Anonymous Anonymous said...

To anonymous - the evidence for your complaint seems to shift in mid-argument. I don't know many "mindless" souls teaching at "low ranked law schools" who write novels in their spare time and you even say that the people you have in mind "don't publish." Did you go to a low ranked school and resent it, have you heard that's the way it is there, or what? (Shifting ground with you, could you also explain why it's a problem that the novels are about non-law related topics. You might benefit from getting out more yourself.) But really, what precisely are you upset about and why do you believe it's a concern?

At 10:45 PM, Anonymous Anonymous said...

To "anonymous said"

Hi professor!

I'm so stupid. I'm sorry. The riders of the gravy train I described must not exist, because you don't know them!!!, totally. And, indeed, a novel is a publication, oh my what was I thinking!?! I'm so sorry....

"Did you go to a low ranked school and resent it" Clearly.

"But what precisely are you upset about and why do you think it's a concern?"

It's a concern because law schools do not provide transparent information upon which prospective students can make informed decisions.

Let's nip this in the bud...please don't bother responding... I accept every slight coming to me.

I mean you no disrespect. You totally dealt with me. And your wit is the stuff of legend. Readers, please disregard my prior post, I've been upended. Ouch, it hurts so good.

At 1:03 AM, Anonymous Anonymous said...

I think the good professor is forgetting about the "practical" revolution in business school which may provide context for what now may be happening in law.

At the B-schools, the practical revolution started about 30 years ago with Northwestern's Kellogg School of management. By focusing on applied issues they rose from a 15-20 ranked MBA program in the 1970s to #1 for a few years in the 1990s. They have remained in the top five ever since. The other B-schools were caught flatfooted and spent the next ten years trying to catch-up and reorganize along more practical lines. For B-schools wedded to the theoretical model, like Chicago, the change took longer and they even fell out of the top ten for s brief period. Will the same happen to law schools?

At 10:33 PM, Anonymous Anonymous said...

if you need "practical" you could work several years as a paralegal.or,better of,buy a practical book published by the Bar.but the law school role should be more than that,isn't it?

At 8:30 PM, Blogger Stephen said...

I am increasingly concerned with the lack of creativity on both sides of this argument. Most of the "practical" training at law schools is not.

Most graduates from law school have no connection between whatever practical training they get and the jobs they are able to find, so they benefit more by general mental training that helps them adapt and adjust better.

As to Professors that teach at low ranked law schools that charge exorbitant tuition for little in return in terms of job prospects for students ... I admit that I'm bothered that in Texas, where I live, you can go to UT or xxx (a bottom 10% law school or two) for about the same cost every year.

Why should SMU and TW or Texas Southern cost the same? On the other hand, I don't think that the profs at Texas Wesleyan are pulling in six figure paychecks, though the university president made it clear, when he canceled the sale of the law school to TCU, he sees the law school as a source of revenue for the general university.

Seriously, one of the very practical things about law school is the broad range of thinking and topics that gets covered.

Would some focused skills courses be nice? A trial practice seminar where you did written and video every week? Yes. I had one of those at BYU, team taught by two professors and a collection of TAs. But I don't see a steady diet of that thing as a good replacement for general education and I think what I got stands me in better stead in what I do now.

At 4:52 PM, Blogger Jamie said...

ahahahaha-you don't think $150k is a gravy train? look around you, my friend. the world is quite wider (and poorer) than your friends at the elite law school you went to.
also, you realize that somewhere between 70-80% of your students want to work for those law firms. (your description of them as bankrupting america morally/financially is both thoughtful, nuanced and avoids any risk of essentialization)
so if the law firms think there need to be changes...maybe you should consider their perspective? wild, i know, that a business (which is what any school that charges the tuition that law school does is, don't kid yourself) thinks about what its customers want.

At 11:49 AM, Anonymous Anonymous said...

Where else are you going to get a job where e'ment is guaranteed and consists largely (at least for 9-10 mts. a year) of teaching a few classes a week and occasionally working on an arcane article that will disappear and be forgotten shortly after it's written?

The current law school model does very little for students. It's nice for professors, however.

I have yet to see a law prof. break a sweat at work, unless, of course, he or she wasn't getting exactly what he or she wanted. 150K for a partial years work (and it's EASY work) is a gravy train and then some.


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