Are Law Professors "Selfless" Teachers and Scholars Engaged in "Public Service"? The Fight Against Change in Law Schools

Brian Tamanaha

The Standards Review Committee of the ABA will conduct a hearing this weekend on proposed changes to law school accreditation standards. The proposed changes have been sharply criticized--especially by the Association of American Law Schools (AALS)--for posing a serious threat to the quality of legal education in the United States. The proposal that provokes the most opposition would allow law schools to choose (if they so desire) to hire full-time faculty in non-tenure positions.

The purpose of the proposed changes is to allow law schools greater flexibility in finding cost efficient ways to train lawyers. According to the AALS, that's an erroneous view of what law schools are about. "Lawyers are not 'produced' or even 'trained' by law schools," declared former AALS President Reese Hansen in opposition to the changes (critics who excoriate law schools for doing a poor job of training lawyers would heartily agree, though Hansen undoubtedly did not mean to imply that). "What lawyers must ultimately deliver is judgment....That kind of mature judgment is primarily created by personal interaction between individual faculty and individual students in countless educational settings." The argument of the AALS appears to boil down to the assertion that law students can obtain sound lawyerly judgment only if law schools are staffed by full time law professors with tenure.

Current AALS President Michael Olivas repeated this argument in his recent lengthy criticism of the proposed changes. We impart something more valuable and subtle than knowledge of legal doctrine and practice skills, Olivas insists:

The high quality and distinctiveness of American legal education are based largely on the work of career, full-time faculty [protected by tenure] who engage fully in the law school's teaching, scholarship, and service missions....Given that law is fundamentally a public profession, law school faculty should perform public service that both models for law students the selflessness encouraged for all lawyers, and helps fulfill the role of law schools in contributing to the improvement of law, lawyers, the legal system, and the system of justice. The scholarship and public service of career, full-time faculty [protected by tenure] do not merely supplement their teaching role. Both scholarship and public service underlie teaching and give it an authority that teachers who merely pass on received understanding or transmit skills cannot match.

Frankly, these claims about what we do as law professors are embarrassing. I'm not selfless. Exceedingly few of the many law professors I know strike me as selfless. This is a fantastic job, for which we are generously compensated. Law school deans--many of whom earn between $200,000 and $400,000--are definitely not selfless. We don't model selflessness for our students. And the truth, contrary to Hansen's above assertion, is that many law professors engage in scant interaction with law students, so we do very little modeling of any kind outside of the classroom. (I should add that lawyers today are anything but selfless, which further belies the assertion that we influence our students in this fashion.)

I also don't see how "public service underlie[s] teaching." Teaching in a law school is not a public service. A few law professors on every faculty work on bar committees and such, but not the majority of us. Legal aid lawyers and public defenders are doing public service, perhaps also prosecutors and judges, but not law professors. We teach, we write, we serve on law school committees, and we engage in consulting of various sorts. This standard package of law professor activities does not constitute "public service."



Since we are not modeling selflessness to students and not engaging in public service (our claims of moral rectitude ring especially dubious when an ABA Committee recently concluded that law schools misleadingly report employment data), then, notwithstanding our claims to be imparting "mature judgment," it's not evident that we are doing anything more than teaching students legal doctrine and legal skills. If that is correct, it makes sense to allow law schools to explore ways to deliver legal training at lower cost.

Unfortunately, Olivas gives short-shrift to the issue of cost. Tuition for law school is spiraling ever higher. A half dozen law schools now charge $50,000 per year for tuition alone, with more schools poised to follow. As this sobering chart shows, tuition at many public law schools has doubled in the past 7 years, and tuition at many private law schools has increased by $10,000 or more in the same period.

After acknowledging concerns about cost, Olivas responds, "We can all agree that a low-cost legal education that does not produce a good lawyer, capable of complex work, will be money foolishly spent." Sure. But remember that a few excellent law schools now set tuition at or below $15,000 (Hawaii, New Mexico), while others are at $50,000 (Columbia, Hastings). It is implausible to suggest that high-cost (in contrast to low-cost) is necessary to train capable lawyers.

Although faculty compensation and expenses typically comprise half or more of the annual budget, Olivas points the finger at other factors: "As the recent GAO Report suggested, it may be that current accreditation standards have not been the primary drivers of costs. Institutional advertising, scholarships aimed at raising a law school's U.S. News ranking, and a variety of student services, may prove to be even more significant drivers of cost." Olivas is right that these factors also fuel the rise in tuition; still, the faculty portion of the budget must be controlled because it is a large percentage of the total.

In closing, Olivas suggests that the proposed changes may "lead to a 'race to the bottom,' as schools find that they can reduce their offerings and services while still remaining accredited." That's a stretch.

The likely consequence of the proposed changes is that law schools will become more differentiated in a way that better serves prospective students. Today, all non-profit law schools must follow the same (expensive) model. But consider undergraduate education, which consists of research universities as well as local teaching colleges. With the changes, law schools will likely shake out along similar lines: there will be research oriented law schools and law schools that focus on training capable lawyers at a lower cost. This would not be a race to the bottom. Schools that choose to serve local legal markets can opt out of the U.S. News rat race, which perverts incentives for law schools; these schools can then reduce their expenditures on advertising and scholarships (and fund less faculty scholarship by maintaining higher teaching loads), while setting a more affordable tuition for students, the bulk of whom are likely to earn $40,000 to $60,000 upon graduation.

Many difficult and uncertain issues are involved (the threat of a backlash against law school clinics for controversial cases is real), and I don't pretend to know the answers. But it seems clear--given the rising cost and uncertain returns of a law degree--that law schools must change their economic model. Law professors constantly mention justice (as Olivas does in his letter), yet we have given little attention to the negative social consequences of erecting a huge economic barrier to entry to the legal profession. How many young people from the poor and middle classes will be willing or able to take on $200,000 in debt to attend law school?

What's most disappointing about the opposition of the AALS is that, above all else, it sounds like we law professors are doggedly determined to hang on to the status quo. That's the impression left by weak claims about our selfless behavior and public service activities.
Posted 7:00 PM by Brian Tamanaha [link]