Balkinization: Rubin: Should Law Schools Support Faculty Research?

Rubin: Should Law Schools Support Faculty Research?

Mary L. Dudziak

Should Law Schools Support Faculty Research? is a provocative new article by Dean Edward L. Rubin, Vanderbilt University School of Law. It appears in the Journal of Contemporary Legal Issues (2008). Hat tip to Lawrence Solum. Here's the abstract:

Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit students, but rather support faculty research. Moreover, faculty research increasingly tends to be remote from law schools' pedagogic role. Thus that great bete noir of economists the cross-subsidy seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. This would appear to correspond to most people's notion of unfairness.

This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.

What does this mean for interdisciplinary scholars? Rubin's curricular reform ideas might, at first glance, seem in tension with scholarship that doesn't have an immediate, practical pay-off. But this is not the case.

For Rubin, in spite of 20th century innovations in legal thought,

the Langdellian curriculum has staggered on...despite ongoing criticism, like a figure, whether hero or villain, from an action movie who keeps fighting on after absorbing an inconceivable number of apparently mortal injuries. As a result, scholarship and teaching have increasingly diverged.

The solution is not to steer researchers toward traditional common law subjects, but instead to "change in the curriculum so that it corresponds more closely to the up-to-date, intellectually stimulating research that faculty members are pursuing." While much curricular reform focuses on the first year, Rubin would instead focus on the third year, recommending an innovation that I think many legal historians and other JD/Ph.D. scholars would find compelling. He reimagines the third year, when many students have become bored with law school, as legal education's

pinnacle or capstone, the peak experience toward which the first two years of the program are directed. In the case of law school, this means that the third year at a research oriented institution should engage the students in research. Each student should be enrolled in a course that is organized around, or at least inspired by, the research program of the faculty member who is teaching the course. They should carry out their own research program as part of their participation in this course. To begin with, this would bring students into contact with some contemporary developments in law and legal practice. While such courses would necessarily be limited to a relatively narrow subject, the student would at least be given a sense of current developments in the field. Second, and probably more important, courses of this sort would provide students with active learning opportunities. Rather than sitting in large lecture halls, or even around a seminar table, for one more year, students would be conceiving, organizing, and carrying out a sustained project under the supervision of the faculty member and within the ambit of the faculty member’s
own research agenda.

This may sound self-indulgent for faculty, but Rubin argues that it would provide students with a more "engaged, interactive educational experience" than traditional large courses. Further,

there is a vast range of other skills that a good lawyer must possess and that cannot be taught in a lecture format. Lawyers need to be able to gather facts, to organize large bodies of material, and to analyze this material in accordance with some theme or purpose. They need to be able to present the material, and their analysis of it, to their colleagues in an effective manner. They need to be able to critique a colleague’s work in a searching, rigorous manner, while remaining on good terms with that colleague. These are all skills that can be taught in a seminar format where students do a serious research project and present it in the class.

This is a reform agenda that legal historians and other interdisciplinary scholars need not be afraid of. Instead, Rubin aims to bring to legal education just the intensive sort of educational experience we enjoyed in our Ph.D. programs.

More details are in the article, which can be downloaded here.

Cross-posted from the Legal History Blog.

Posted 3:17 PM by Mary L. Dudziak [link]

Comments:

First of all, the cross-subsidy probably isn't that bad, in that a lot of the "funding" actually comes from the government in the form of grants and subsidized loans, and government subsidizing of cutting edge legal research doesn't seem to me to be as objectionable.

On the other hand, however, while there are certainly terrible problems with law school curricula, I don't really buy the argument that the solution is to bring in more of the cutting edge research. To the contrary, the fundamental problem with law schools is that they are trade schools for lawyers and don't want to admit it. So, most students end up having to pay for a separate class to study for the bar exam, which should have been provided for them by the law school! Meanwhile, they take a bunch of classes that might be of great use to future scholars but are of little use to future lawyers.

To the extent students and not the government are paying the bills, they should be getting a top-notch vocational study program. People who want to go into legal scholarship should have a separate degree program that is more theoretical.

# posted by

Dilan : 3:55 PM

I basically agree with Dilan. If there's to be a third year at all -- and I'm sympathetic to those calling for an end to it -- research is possibly the last thing I'd consider as a focus. Now, research in conjunction with a practical course in practicing law would work. But more scholarship? Not unless we want to encourage scholasticism at its worst.

# posted by

Mark Field : 4:15 PM

Sounds like this.

# posted by

Unknown : 4:39 PM

Geez, my research helps my teaching. Am I doing something wrong?
Best,
Ben

# posted by

Benjamin Davis : 9:35 PM

Not all economists believe that cross-subsidization is an evil corresponding to injustice. But even those who do admit that the allocation of joint costs among outputs is essentially arbitrary, making proof of cross-subsidization well nigh impossible. The cost of putting a top-notch professor in front of students includes at least some the cost of putting him in front of a computer doing research to keep him top-notch, and vice versa. Or, as B. Davis puts it, "my research helps my teaching." (Many economists also oppose barriers to entry, which the state bars rigidly maintain.)

As for third-year curriculum, is the purpose of law school to turn out lawyers or law professors? The law has plenty of specialty areas which can be taught in third year, as well as clinical courses. Research opportunities for students can be handled through extra-curricular activities, somewhat like law review. In this modren world of internet publishing, there is no reason not to have moderated blogs of student research.

# posted by

Anonymous : 7:39 AM

I like r.friedman's idea of using the internet to make student research accessible. A great example of this is Barbara Babcock's Women's Legal Biography Project, which archives excellent student papers on the lives of women lawyers in history. The papers tend to draw upon original archival research, but would have trouble finding their way into print publications, in spite of their quality. http://womenslegalhistory.stanford.edu/

r.friedman and other commenters suggest that Rubin is only recommending the sort of upper level offerings already available at many law schools. But this misses his point. I like the idea of the third year as a "capstone," rather than a time for law students to tune out. His specific curricular suggestion is one approach to accomplishing that. As he explains in the article, law students would need to receive substantial credit in order to be able to fully engage themselves in serious research (15 credits over a year, rather than the 2-4 most law schools give for a seminar). While there are certainly questions to raise about the proposal, his goal is not to turn all law students into academics. Rather, he argues that the skills required for this sort of intensive collaborative research are skills that lawyers need and that tend not to be taught in the standard law school courses.

Regardless on one's views on the cross-subsidy argument (about which I'm agnostic), this strikes me as a proposal that is well matched with the sort of faculty resources most schools have. Perhaps an ideal approach would be to pair this sort of "capstone" with intensive clinical experiences, giving students different third year choices.

# posted by

Mary L. Dudziak : 8:52 AM

# posted by

Mark Field : 11:00 AM

Northwestern Law already has a senior research program that looks very much like what Dean Rubin has in mind. See http://www.law.northwestern.edu/academics/senior_research/. It certainly isn't for every student, which is why it makes sense to have it as an elective, but it's quite valuable for those who do it, and it reliably prevents the third year from being boring.

# posted by

Andrew Koppelman : 11:43 AM

The link in that comment got truncated by the computer program. Evidently I need to break it up to make it fit. It is:

http://www.law.northwestern.edu/
academics/senior_research/

# posted by

Andrew Koppelman : 11:44 AM

Am I the only person baffled by Dean Rubin's argument? To cure the gap between the legal academy and practice, the academy should stick to cutting edge interdisciplinary research and require students to spend their third year supporting professors' research programs?

Isn't that a complete non sequitur? Isn't it a moral hazard as well? And especially in the second-fourth tier schools where the economics of the JD degree are looking worse and worse each year, isn't forced conscription an egregious waste of the students' time and money? If some of the professors might view it as a capstone, here's betting that precious few students, practitioners, and judges will.

My apologies if my reading of his argument isn't charitable, but I can't conjure up any charitable reading.

If you want to give the students a capstone, let them pick it for themselves. Some might pick externing for a local law & motion judge. Others might do clinical work. Some of my trial advocacy students worked directly in prosecutors offices and tried real cases. Yes, some might choose to support a professor's research program, but they can do that already. Many of them, especially those in the bottom half of their class, would be well advised to take some courses that will be covered on the bar.

John Steele

# posted by

JohnSteele : 1:35 PM

It appears from Dean Rubin's bio that he practiced law for at most 2 years, and that was 26 years ago as an entertainment lawyer. I don't want to sound dismissive in saying this, but I think he has no clue what most practicing lawyers do or how the extensive research he proposes would be even remotely relevant to their careers.

Exactly. There's no reason the curriculum for future legal scholars and lawyers should be remotely similar, except that most law professors are more interested in specialized areas of legal scholarship than they are in providing vocational education for lawyers and training to pass the bar exam. So, they offer one program, rather than two, and force the future lawyers to take mostly unhelpful classes and to obtain some of their vocational education from private bar review courses (taught by law professors who make a ton of extra money). And the accreditation and bar exam requirements function as economic protectionism to ensure that nobody is forced to change their curriculum to something that is more useful for future lawyers.

The entire thing is a racket, and the fact that law professors are generally not interested in having THIS discussion tells us a lot.

# posted by

Dilan : 1:43 PM

It's not just you, John. I had the same reaction.

# posted by

Mark Field : 3:12 PM

I thought the purpose of the legal community as a whole was to protect our law and when possible, develop better law through a variety of institutional practices and roles, and that the point of law school was to train incoming members of the profession to become as full members into the community of inquiry that defends, supports, and strengthens legal practice in our country as possible. If that's not the point, why would we pay you as lawyers on the other side of law school anyway? If you were bad at upholding a reasonable form of justice, we non-lawyers should probably make good on some of those classic lawyer jokes.

I'm sympathetic to the institutional and financial pressures that law students and young lawyers face, but I have to respectfully disagree that apprenticing on scholarly legal research either a). would not enhance your skills as a practicing attorney or b). isn't beneficial to the legal community (and in turn the community of people who rely upon good law to secure their rights and liberties through good and improving legal practice) as a whole. The provocation of Dean Rubin's proposal is that it forces us to think carefully about what law school should be about - and I cannot believe that at its best it is simply a glorified trade school. The legal profession makes up the practicing of a major part of our political lives and activity as citizens, and that makes learning it and being charged with a small part of its universe as an attorney well beyond a "trade" in my opinion.

Finally, the mention of Dean Rubin's legal career so glibly is completely unnecessary. Whatever Dean Rubin's experience as a lawyer, he has left a positive mark on Vanderbilt Law School in his three years thus far. Under his leadership, they enjoy their highest ever ranking AND his students are penetrating in larger numbers with each passing year into the major large-market firms. There is no empirical indication whatsoever that he is clueless about how to lead his students into the world of being a practicing attorney, and the implication to the contrary, especially the way it was raised, is utterly regrettable.

# posted by

Steven Maloney : 9:44 PM

Steven:

I have published 2 papers, with a 3rd on the way, and am a practicing lawyer.

I love legal scholarship. It also has absolutely nothing to do with the practice of law.

Meanwhile, not only did law school NOT prepare me for the bar exam (I did that myself), but it also didn't teach me anything about civil procedure as actually practiced (Pennoyer v. Neff does not count), negotiating contracts, settling cases, conducting ADR, writing a memorandum of points and authorities or a factual declaration, preparing a witness, or taking a deposition.

Maybe when law school does all these things you can come back to me about scholarly research programs. Face it, this ends up in the curriculum because it's what the FACULTY is interested in, and faculties are concerned with their own egos, not with what the students need for their vocational training.

# posted by

Dilan : 12:37 AM