Balkinization  

Wednesday, March 30, 2011

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.

Comments:

This comment has been removed by the author.
 

It is hard enough with tenure to do controversial (to some) work that one thinks is important for reasons that appear to escape the rest of society. I fail to see how that burden will be made less significant or risk-taking be encouraged without tenure. My school is already a great value and we do invest a great deal of time in student contact. This message is on my son's account.
Best,
Ben Davis
 

Good for your school, Ben. It is indeed more reasonably priced than most. But that does not respond to my general point: most law school have become prohibitively expensive, and we must find ways to solve this problem.

As for protecting our ability to express controversial views, it seems to me that contractual protections against content-based termination can effectively preserve academic freedom.

Brian
 

While Brian concedes that he as a law professor is not selfless, with this post and his prior posts on this subject he has been selfless. I am aware of many changes in legal education since I completed my studies in 1954, especially tuition charges. The most I paid for law school tuition was $400 for my third year. (At that time, Harvard Law School's tuition was $500/year.) By working summers, I could save enough for tuition and books (which were not that expensive back then) while living with my parents and commuting to law school. Back then, there were not mega law firms, especially in the Boston area where the two major law firms - Ropes & Gray and Hale & Dorr - each had a dozen or less partners, with only a few associates. Legal practice was growing to the point we're at now that Brian describes. I find it difficult imagining whether I would have been able to finance a legal education today, with $200,000 of student loans. Of course, until recently, top graduates from top law schools could command starting salaries at mega law firms of $160,000; but what about those graduates not at the top?

I have been working on a research project for too many years in my current semi-retirement that has led me to the history of training lawyers-to-be going back to colonial days that eventually led to the establishment of law schools, which have proliferated since WW II as the need - demand - for legal services services expanded to what we currently have.

I enjoyed law school, I enjoyed the private practice of law, I learned a lot of law AFTER law school, and I liked - for the most part - my clients. I wonder if recent law school graduates with extensive student loans to pay off can say the same?

Brian does not, admittedly, have the answers to solve the current situation. But surely the status quo no longer works well.
 

By the time they start working as an intern as a 2L or begin preparing for the bar exam as a 3L, most folks discover that their law school curriculum has little to do with the actual practice of law.

Our 1L property courses were a particularly egregious example of this problem. Of the three professors teaching the subject, one Harvard product asked one question on the final: Who owns the moon? A Yale product with political agenda spent half of the year teaching the property rights of slave owners. The 1Ls were assigned their professors and 2/3 could not escape this teaching malpractice. I won this lotto.

Given that you learn liberal arts critical thinking skills in undergraduate work, this should not be the purpose of law school. Rather, law schools should be teaching us how to practice law and providing us with a basic survey of the law.

Professors should be recruited from the pool of successful attorneys rather than being the first job for a graduate of an elite law school. Only two of our entire faculty had ever actually practiced law apart from occasionally drafting briefs for interest groups.

Finally, you do not require 7 years of university at two different schools and the enormous costs to learn to be a competent attorney. We are not that special. Germany has the right idea. Their students simply add another year onto their standard undergraduate work.

:::sigh:::

Brian, thanks for allowing me to vent.

The chances of such reforms occurring are less than that for pigs flying.

Lawyers will continue learn their profession after and often in spite of their law school education.
 

Thank you for being the only blogging law professor to honestly and forthrightly address the moral implications of being part of a system that at times is quite exploitative.
 

I don't agree with all of Bart's specifics, but his general point-- that law school needs to be remade to be far more like a trade school-- is correct.

I think one thing that the AALS might consider is requiring that law schools institute bar preparation as part of their curriculum and that schools that fail to ensure their students pass the bar get de-accredited.

Law schools would hate this for a couple of reasons-- not only do they not think of themselves as trade schools, but they also make a ton of money in sponsorships from the big bar review companies. They are essentially taking bribe money in exchange for abdicating their educational responsibility for their students. (I actually think these bribes should be illegal and the bar preparation requirement legally mandated, but at the very least it could become part of accreditation.)
 

I think ample remuneration, and the tenuring structures are features, not bugs. I see in the re-look at these institutional safeguards a thinly disguised pernicious and invidious attempt to begin a vitiation of the dignity and excellence of leadership in US law as a mainstay of our system of government.

For a view different from my own, the reader may examine the hilarious social libertarian invective of DLithwick 2002, whose critiques often are subtle barbs at credulity, and frequently mean precisely the opposite of what she appears to be saying.

I agree with Lithwick that law school is an early stage in the development of a whole human being.

However, I doubt prof Tamanaha's assertion that if this initiative succeeds academic freedom will survive. This is a key moment in skirmishes that seek to limit freedom of speech. Let tenure at law schools survive. It is important for a wide range of human research way beyond mere law.
 

Professor Tamanaha- good post. I agree with Shag, Bart and Dilan. That's a sentence you don't see everyday.
 

John,

Tenure will undoubtedly survive this proposal because most schools will continue to offer it when competing for professors.

What this proposal does is merely give law schools more flexibility on the issue.

Brian
 

I don't disagree with the general sentiment that law schools should be more concerned with training students how to practice law, but I'm surprised that no one has objected to Bart's comment, "Given that you learn liberal arts critical thinking skills in undergraduate work, this should not be the purpose of law school." Do all of you believe that learning to think like a lawyer is a myth, and that your thinking skills were not strengthened by undergoing the Socratic method in law school? Isn't there room to teach both practical skills and thinking like a lawyer?
 

Henry said...

I don't disagree with the general sentiment that law schools should be more concerned with training students how to practice law, but I'm surprised that no one has objected to Bart's comment, "Given that you learn liberal arts critical thinking skills in undergraduate work, this should not be the purpose of law school." Do all of you believe that learning to think like a lawyer is a myth, and that your thinking skills were not strengthened by undergoing the Socratic method in law school?

I am curious. How many of you actually underwent the socratic method at law school? All of my profs with one exception simply lectured. Not having my own Professor Kingsfield was a deep disappointment. I was looking forward to the challenge.

I agree with Henry that law school does force you to use your critical thinking skills in a different way to "think like a lawyer" rather than say a creative writer or philosopher. What I disagreed with was Mr. Hansen's argument that law school is necessary to instill critical thinking (or as he terms it "mature judgment') in the first instance.
 

I had only one hardcore Kingsfield, but the time that he had me on my feet questioning me and I kept up with him was the most exhilarating experience I underwent during my three years. Other professors may have used the Socratic method to lesser degrees. I graduated in 1975 and have not been inside a law school since, in case that is relevant.
 

Here's a link:

http://balkin.blogspot.com/2010/08/thoughts-on-legal-education.html

on this subject including comments (from the usual suspects, including moi) that might be relevant to Brian's post.

I might add that I spent 7 years of my prime in the practice of law teaching a tax course at a local law school on its adjunct faculty in a Master of Laws program (Taxes) with no tenure, with a top remuneration of $2500 for the course semester, that took away from my billable hours much greater than the time I spent on the course, but I loved it, especially the give and take with the students who taught me quite a bit (including humility). This was not strictly a public service, since it kept me up to speed on areas of my practice, but the attraction was not financial. I had some practicing attorneys teaching in law school that I assume had the same motivation as I had years later. I did not need to rely upon the stipend as my private practice was financially rewarding. If truth be know, I might have done it gratis. Knowledge and experience is to be shared, even in the adversarial practice of law.
 

The likely consequence of the proposed changes is that law schools will become more differentiated in a way that better serves prospective students.

1. already happening

Today, all non-profit law schools must follow the same (expensive) model.

2. Nope see range of tuitions noted.

But consider undergraduate education, which consists of research universities as well as local teaching colleges.

3. Nonsequitur - diversity of programs and tenure possible at these.

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.

4. Already there.

This would not be a race to the bottom.

5. Of course it would be.

Schools that choose to serve local legal markets can opt out of the U.S. News rat race, which perverts incentives for law schools;

6. Deans would do this at their peril. Or they can do that now but clearly face the reality that the market place looks at this dubious standard.

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.

7. I am not aware of these expenditures being more than marginal.

Conclusion: pipe dream analysis and speculation. The logical result of removing tenure etc will be greater profits for schools, due to lesser pay for faculty without lesser tuition. Great!

As to the main point, those schools that are expensive appear to follow a price/quality strategy with substantial scholarships from what I have seen. People associate quality with high price. Or the schools are in expensive places like San Francisco that require obscene amounts of money to have to be paid for modest middle class living or else very long commutes for staff and faculty.

I worked for 17 years in a non-at-will environment in France and it was wonderfully sane. Too bad more workers in America do not have that experience.

Precarity is no blessing and if we go there and we see the upheavals that result it will be too late to say "my bad."

Best,
Ben
 

Ben's "point-by-point" response to Brian's post seemed pointedly weak to me and perhaps Brian may respond, although I don't think it necessary. But Ben's comment included this:

"I worked for 17 years in a non-at-will environment in France and it was wonderfully sane. Too bad more workers in America do not have that experience."

I wish Ben would provide more details. Did it involve one 17 year term or 17 one year terms or some variation over 17 years? Perhaps it was the wine that made it "wonderfully sane" or the cuisine.

By the Bybee (*^&%^$%#@), I could not locate "precarity in my dictionary and noted in Wikipedia some confusion as to its original and current meanings. Which results in more "precarity," "non-at-will" or "at-will" employment as compared to tenure. With 50+ years in private practice, I knew well that a client could dump me very easily; but very few did (and the few that did I was mostly pleased they did). But for me private practice was a "blessing" despite the client's ability to dump me. Apparently academia differs from the private practice of law, making it no blessing for some teachers of law.
 

Ben,

Is your argument that the situation is fine so change is unnecessary? Or is your argument that change is hopeless? Or that change will make things worse? I cannot quite tell which position you take because you seem to switch from one to the next.

My position is simple: law school costs too much for too many students, and we must do something about it.

We law professors may resist change all we want, but we will find change imposed on us by economic reality. Fewer students will attend law school. The quality of students at many schools will decline. Revenues will decline...

Brian
 

The only place I have ever seen a lawyer be selfless is on TV.
 

I am not a lawyer but a professor at a State Research University. I assume that it may be similar to what is happening at law schools but as salaries have increased to 6 figure levels the amount of student contact has decreased. Faculty tend to be people who want to do research and avoid teaching. In fact many courses are taught by PhD students who do not want to teach because they are loaded with an absolute ton of work, the need to publish and the need to work on the committee chairs research. Actually most research is done by the students nominally under the direction of their chair. Increasing the cost also is large salaries in administration off times almost to obscene levels.
look up higher ed bubble for more on this
 

Since law profs are indoctrinating students into a racket - lawyers make the law, judge the law, prosecute the law, and represent us before the law - in which they will create nothing, produce nothing, and provide no service that a man can't live perfectly well without - all the while bearing false witness for a living - I don't see how there could possibly be anything ennobling about the endeavor. lol.

As far as the problem of tenure, well, freedoms can be perfectly well laid out in a contract. Right now, tenure is just the best way for leftards to retain their death grip on higher education, so I'm for abolishing it.
 

Very good post, Professor Tamanaha, but you seem to imply that eliminating tenure will lower the cost of providing a legal education. How? If schools do not offer the sort of job security that tenure can bring, won't they have to pay faculty even more to attract and retain them? Or, are you assuming that, without tenure, schools will change what they expect faculty to do? For instance, schools might expect less scholarship and less public service, but more classroom teaching (though I'd note that many law professors perform little or no public service as things currently stand, anyway). But, it seems that schools could reduce these expectations, and thus reduce costs without eliminating tenure.
 

I have read the comments but regret I cannot respond more. I am amazed that we are at a point when people think it is a good idea to refight the tenure battles. As was said to me when I received tenure, even with tenure, they can still mess with you.
So those who like the fear model, rest assured. And those who like the positive reinforcement model, rest assured.
Best,
Ben

Precaity comes from the French "precarite" and sorry if i anglicized a French word. It happens after 17 years. And the French word captures the idea perfectly - unlike the similar English words.
 

"Teneure" - quelle fromage!
 

I’m a bit torn, here. I admire Prof. T’s sincerity and concern for the students [current and prospective].
On the other hand, I do think tenure serves an important set of purposes that contract appointments will not. Sure, the contract may say that one cannot be terminated for content reasons, but once the contract period is over there is no protection. (My experience with Deans, Provosts, and – especially – Presidents, is that they have long memories and frequently harbor grudges.) Further, who will determine the standard contractual protections? The Faculty? No; not if there is no permanent Faculty. Finally, I admit to being uncomfortable about plans for other people to not have the opportunity for tenure. The already-tenured could lead the way by resigning and taking contract positions, I suppose.
The salary scale may be out of whack, but it would be difficult to get the current faculty members to reduce their pay. So, the cost cutting would be borne by new folks; perhaps that is ok, but I wonder if it would suffice.
I do think asking faculty members at some institutions to do more teaching is reasonable and could help (no silver bullets). Naturally, that must be balanced by lower demands for scholarship and the garnering of Big Name status.
Also, I have a question about some of the costs that have driven up undergraduate prices. We have seen a real building boom with fancier dorms, fancy gyms, gorgeous ‘restaurants’ (no more ‘cafeterias for us!), and such. Do law schools have similar costs? Again, reductions there would not be a silver bullet, but they might help make a dent.
 

On the content issue:

I doubt that most undergraduates have become profiicent critical thinkers, unless they majored in philosophy (oh, yeah!).

Beyond that, couldn't law schools mix the curriculum a bit: some more 'training' and a bit less theory?
 

CTS says:

"I’m a bit torn, here. I admire Prof. T’s sincerity and concern for the students [current and prospective]. "

Perhaps Prof. T can speak for himself, but I think his sincerity extends to those who will be represented by such students when they become attorneys and not merely them as students. Surely clients are impacted, financially and otherwise, by their attorneys who have large student loans to pay off most likely from the fees they charge. (Consider the real value of the hourly rates charged by the mega law firms for their new attorneys who require extensive supervision, re-education and basic education in the law, as such firms seek to recoup the large salaries used to lure top graduates from top law schools, as compared to a new attorney venturing into private practice in setting his/her fees.)

Resolving tenure may not resolve the problems Prof. T is concerned with. But the problems are real and require serious dialogue. Prof. T is one voice from legal academia. Surely there are more in legal academia who look at the situation beyond their personal security with tenure; but will they speak up?
 

As much as I enjoyed taking Professor Tamanaha's classes in Torts and Jurisprudence, I have often wished that I had gone to law school at CUNY or Wayne State here in Michigan. I would be a richer man for it...financially. As technology is eroding parts of the profession and giving pause to would-be law students, what are law schools doing? Raising tuition. Market forces are already coming down hard on the whole of the profession and law schools had better be ready to adjust and adapt...just like any other BUSINESS.
By the way, Professor, no way is that photo of you on the SJULaw website a recent one.
 

This comment has been removed by the author.
 

Legal aid lawyers and public defenders are doing public service, perhaps also prosecutors and judges....

Perhaps I have not seen your prior analyses of this thesis, but standing alone, i see no justification for it other than a preference for very specific political outcomes, which prosecutors and judges do not share, in your view.
 

You can easily find Buy WOW Gold EU when you Google safest gold buying site or buy Tera Gold without banned. So buy Cheap WOW Gold Eu from the safest website will never be out of your choice.
 

The anti-law school blogging movement has grown into a forceful genre, with recent grads and tenured lawprofs making a strong case against law school.

Doreen Boxer - Boxer Law Group
 

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