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Thursday, July 19, 2012

"What Ails the Law Schools?": A Discussion Draft

There are "risks" in putting up an early draft of a paper on SSRN, but sometimes one generally wants to invite discussion and feedback. This is one of those occasions. I hope those who are interested in legal education, which I assume includes most of the readers of this blog, will take a look at this draft paper titled "What Ails the Law Schools?" and feel free to send me any comments. The paper, which focuses on Brian Tamanaha's Failing Law Schools and Walter Olson's recent book Schools for Misrule, is a long way from its publication date, and although the editing process will be over quite some time before that, I still have ample time to incorporate any feedback. I'm glad there has been increased public discussion of these issues in our community over the last year or two and this paper is intended more to present those issues clearly than anything else, although of course I offer some views of my own. Comments are welcome. Here's the abstract:

Everyone engaged in legal education and not utterly asleep agrees that there is a "law school crisis." Building on recent works by Brian Tamanaha and Walter Olson, this paper discusses its causes and potential solutions, using a typical dichotomy in recent populist movements--the "one percent" versus "99 percent" meme--as a lens. It examines arguments that the problem is economic and that it is primarily cultural; although I conclude the problem is economic and structural far more than cultural, I also argue that one of Tamanaha's primary recommendations for reform--that law schools ought to display more experimentation and institutional pluralism, and that ABA accreditation requirements ought to make this more possible--goes some way toward addressing both diagnoses. The paper is more descriptive than prescriptive, although I offer some thoughts on solutions. I emphasize three things: 1) law schools would be better off focusing on regional than national markets, although the US News rankings make regionally oriented approaches more difficult; 2) a serious increase in meaningful faculty governance and involvement is needed; and 3) the role and needs of the client have been surprisingly marginal in recent discussions of law school reform. The client needs to be a prominent part of reform discussions, which suggests, contrary to some extant views, that curricular reform ought to continue to be part of the discussion along with economic and structural reform. 

This is an early and imperfect draft intended for discussion and feedback, given both the importance of the issue and the need for increased public discussion. Comments are welcome.

 

Posted by Paul Horwitz on July 19, 2012 at 09:46 AM in Paul Horwitz | Permalink

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Comments

I got a good laugh out of Footnote 29!

Posted by: Brian | Jul 19, 2012 12:29:27 PM

Dear Professor Horwitz,

I applaud you for reminding readers of the role of clients—really, society outside the profession—in the legal education reform discussion. In highlighting their importance, you implicitly recognize that the biggest problem with American legal education is the American legal system. Decades ago then Chief Justice Burger told the ABA: “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people.” American legal education serves a dysfunctional legal system.

But how can American law schools put clients first? They can’t do it all, or even all that much to improve the lot of clients. That the United States cannot afford to extend a right to civil legal aid similar to that provided in most modern countries, has little to do with the costs of American law school and everything to do with the costs and their allocation in civil justice generally. Consider the limits of law school reform: one common proposal is more practical clinical education (the latest Carnegie Report from 2007). The law schools—on the backs of student tuition—cannot possibly fund clinical legal education to the extent that foreign bars and governments fund their own budding lawyers. That American bars and state governments do not contribute to practical legal education as bars and state governments do in most modern countries do, will change only when bars and state governments change. Law schools cannot make them change.

What law professors can do, is show that Americans do not have to accept the dysfunctional system that we have. Law professors can demonstrate ways proven to work elsewhere, even if that wins them no accolades from colleagues who eschew learning from foreign systems. Of course, learning from foreign examples is no solution to the immediate situation, but at least it would remind the academy and the public that the goal of legal education is a better society, and would provide them with ideas on how to get there.

The first Carnegie Law School Report of 1914 concluded with a call for U.S. law schools to do just that: “to apply the resources of European legal science with its development of nearly two thousand years, to the establishment at last of a scientific system of the common law, thereby opening the way for a most fruitful development of national law and procedure and raising and invigorating the principle of social and economic justice in the life of the American people.” The law schools of the day ignored the plea.

In 2010 the medical schools celebrated the 100th anniversary of the first Carnegie Medical School Report, a/k/a the Flexner Report. It changed the face of medical education. Does anyone foresee a like celebration of the first Law School Report, a/k/a, the Redlich Report, in 2014? Surprisingly little has changed in legal education since then. Today, we reprise many of the same arguments as then. See Maxeiner, Educating Lawyers Now and Then, Two Carnegie Critiques of the Common Law and the Case Method, available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1082&context=ijli and in book form with a copy of the 1914 Report at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1082&context=ijli

Our archaic legal practices were quaint in 1914; their continuance today is inexcusable.

In considering the current conditions, you should also consult Richard W. Bourne, The Coming Crash in Legal Education: How We Got Here, and Where We Go Now (2012). Creighton Law Review, Vol. 45, No. 4, 2012; University of Baltimore School of Law Legal Studies Research Paper No. 2012-4. Available at SSRN: http://ssrn.com/abstract=1989114

Regards,

James Maxeiner

Posted by: James Maxeiner | Jul 19, 2012 12:50:08 PM

Paul:

I have enjoyed all that you have written on these issues; you are one of the very few wise (and moderate) voices in what has been an often unreasoned debate (on both sides). I too applaud your focus on clients. My one suggestion is that when your draft addresses issues relating to faculty, I think more attention should be paid to the issue whether the academy is hiring faculty members who are qualified to impart the skills that students need to succeed in practice. I think our students pay a price when we hire too many faculty members with primarily academic experience and theoretical concerns, and I see significant problems in trying to compartmentalize legal education by confining the development of professional skills and judgments to clinical and other skills courses. My own view can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1630574

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 19, 2012 1:45:16 PM

Probably the one thing that deserves an article unto itself is your paragraph on page 13 regarding "locally oriented curricula."

In all of this talk about what we need to do with legal education, one never sees what might be obvious to other disciplines: reaching out to people actually working in the field and trying to develop a comprehensive picture of what worked, what didn't work and what could have worked better. Some law graduates thrive in the current environment and probably see little need for change. However, I assure you that there is at least a substantial minority of graduates who feel that they have succeeded to whatever extent as attorneys in spite of their education, rather than because of it. Not just the bitter and underemployed, either - the multimillionaire founder of the tort firm for which I worked in my last two years happily told everyone that he was a C student and got almost nothing out of the classroom in three years that he didn't learn better and faster on his own. Clients whose firms employ Harvard and Yale graduates still don't want those Harvard and Yale graduates billing hours until they have a dim idea of how to practice law. Et cetera.

Just because Harvard, Yale and Stanford produce NLJ 250 partners and Supreme Court justices with their teaching model doesn't mean that their model was good or even minimally helpful.

Posted by: Morse Code for J | Jul 19, 2012 6:38:05 PM

"Just because Harvard, Yale and Stanford produce NLJ 250 partners and Supreme Court justices with their teaching model doesn't mean that their model was good or even minimally helpful."

Absolutely. I have no quarrels with HLS, and view it as having been a good value for my money, because it has opened every door for me that I wanted open in the legal profession - clerkships, other public sector positions, and private sector positions. I also feel that as advertised (e.g., in the Paper Chase ;), it did teach me how to "think like a lawyer." I graduated feeling deep respect for most of my professors and most of my classmates. But, despite multiple clinicals, HLS certainly did not teach me how to BE a lawyer. While it would not have been possible for the law school to transform me completely into a competent attorney in three years, it could have done much more than it did. I'd like to see my alma mater head up the dialogue with its alums that Morse Code for J describes, reaching out to practitioners to develop ways to make the curriculum still more practice-oriented. (I can't say for sure whether HLS has improved on this significantly since I graduated a few years ago; perhaps some of this has already occurred.)

Posted by: HLS | Jul 19, 2012 7:33:35 PM

"Just because Harvard, Yale and Stanford produce NLJ 250 partners and Supreme Court justices with their teaching model doesn't mean that their model was good or even minimally helpful."

Absolutely. I have no quarrels with HLS, and view it as having been a good value for my money, because it has opened every door for me that I wanted open in the legal profession - clerkships, other public sector positions, and private sector positions. I also feel that as advertised (e.g., in the Paper Chase ;), it did teach me how to "think like a lawyer." I graduated feeling deep respect for most of my professors and most of my classmates. But, despite multiple clinicals, HLS certainly did not teach me how to BE a lawyer. While it would not have been possible for the law school to transform me completely into a competent attorney in three years, it could have done much more than it did. I'd like to see my alma mater head up the dialogue with its alums that Morse Code for J describes, reaching out to practitioners to develop ways to make the curriculum still more practice-oriented. (I can't say for sure whether HLS has improved on this significantly since I graduated a few years ago; perhaps some of this has already occurred.)

Posted by: HLS | Jul 19, 2012 7:33:40 PM

HLS has added a new problem solving course that is required for all 1Ls. It is taught by professors in conjunction with partners from Boston law firms. I think some NY firms have become involved too.

http://www.law.harvard.edu/news/bulletin/2010/summer/classroom.php

There are other attempts to forge ties. Milbank has partnered with HLS to send some of its associates to HLS.
http://www.law.harvard.edu/news/2011/02/09_milbank-at-harvard.html

But the problem solving class offers the greatest potential for doing the kind of thing you suggest, HLS.

Posted by: Anon | Jul 19, 2012 8:36:44 PM

I find your analysis that:

For the utopians, the answer is simple. All we need to do is close half the law schools, deregulate the legal profession, force professors to give up half their salaries and stop doing abstract scholarship, institute a global political and economic revolution, and other items on the List of Things That Are Unlikely to Happen Any Time Soon.

itself quite shallow, or indeed one might suggest a somewhat utopian critique from the law faculty. The hard reality is that a lot of law schools are going to close, and once the first college or university “crosses the Rubicon” of closing a law-school that has become a net long term cash drain, many schools will follow. To understand why major colleges and universities will close their law schools you need look to further than your own tenure contract.

For most law schools faculty compensation forms the vast bulk of their costs. However, the typical tenure agreement makes it extremely hard to lower faculty salaries and benefits while also imposing a last-in-first-out layoff system, which means that the most junior and least expensive faculty must be cut first. The only way in which widespread layoffs can be imposed is if the entire department is closed. This creates a situation where the only way to align revenue with costs for a law department, a law school, is to simply close it.

It is pretty easy even now to identify in every state some two out of five law schools that are highly likely to close – and for a few that closing date is probably at the end of the coming academic year. Indeed, law schools have been engaged in an increasingly desperate auction of 1L seats over the last few weeks, leading to the ludicrous situation that has now been disclosed at Brandeis School of Law at the University of Louisville – which budgeted $550,000 in aid for 2011 1Ls, but instead made offers that totaled more than $1.3 million – offers that will cost it at least $2.4 million over 3 years. Rest assured, Brandeis is not the only law school that is going to find that it has over-offered in the recent recruitment frenzy. Of course, too many bargains on tuition means that budgetary issues will become tighter.

Every careful analysis of the legal market suggests that it can absorb at most 20-22,000 graduates a year and even then it cannot offer most of those graduates medium run incomes over $100,000 (see for example BLS projections.) Law schools are graduating 47,000 graduates a year – and some lawyers who have temporarily exited the legal market (usually for parenthood) return. Sooner or later law schools will need to align capacity with demand – and costs with lawyers’ likely incomes. Your paper avoids that harsh reality with a blithe reference to “utopianism.”

Efforts to improve the legal skills of new law graduates really does not address the supply-demand misalignment. At most it will allow a school to do a better job of placing that schools contribution to the annual horde of law graduates in employment as compared to its competitors. Perhaps the only solution that might help is for law schools to try to convert the standard shibboleth that a law degree is a versatile qualification attractive to many employers into a reality – right now many law graduates will tell you that a JD is more of a “mark of Cain” than an advantage in the non-legal job market (or even in the paralegal market.) Doing that would require an emphasis on more portable skills, i.e., skills usable in other businesses than law. This is potentially at odds with the new emphasis on better practical legal skills.

Realistically, you are echoing the argument that the solution is to “let a [one hundred and ninety seven] flowers bloom” while the reality may be is that what is needed is to grub up a hundred or more of the flowers, and direct those flower-beds toward plants that the market wants.

Posted by: MacK | Jul 20, 2012 6:03:23 AM

Just a quick note to say thanks for the comments and emails, most certainly including the critical ones. I may not respond point by point, but I'm taking notes.

Posted by: Paul Horwitz | Jul 20, 2012 7:15:16 AM

Given the choice between having a lifetime job at a reduced salary and no job at all, it's safe to assume that most people would choose to keep the job. The point about faculty compensation assumes that there could only be one response to a crisis that threatened to sink the school: stick to the contract/anchor and go down with the ship. That is not a likely prospect unless some other equally remunerative option is available. That is not likely in this economy. So, while schools may close, a lot of adjustments will be made internally before the final gasp, adjustments that outsiders will not even see.

And there is nothing wrong with planning for the future. When and if law schools close, there will still be a need to think about the structure of law school education for the schools that remain. We should be able to keep more than one thought in our heads at a time; address more than one important task.

Posted by: CHS | Jul 20, 2012 9:04:12 AM

CHS -

I think you are making a very big assumption - that all the senior faculty will happily accept a pay cut to save the junior faculty. The difficulty is that while the tenure agreements may be written in the context of the faculty as a body - contractually they are between each faculty member and the school. Lowering costs means two things - making very underworked faculty work harder (a point the Horowitz draft does to be fair address) and lowering faulty remuneration. The first item, working faculty harder PLUS the addition of more adjunct faculty has as a necessary result the reduction of the ranks of full time faculty. Are you convinced that senior faculty, who will have the effective choice of a larger personal pay cut (a breach of their contract), or a cut in junior faculty (provided for in the contract), will opt for a personal pay cut, or will they stand on their contractual rights.

I think those of us who are more familiar with these situations, that is to say private practice lawyers can tell you what will happened - solidarity will be damned, the junior professors will go.

Posted by: MacK | Jul 20, 2012 9:14:30 AM

MacK--Have you been a member of a law school faculty? If so, how many? The situations of faculty members and law partners are not exactly the same. I was addressing the situation you posed about a school facing closure.There could be situations where junior faculty go would not be enough to save the school from closing. If the next step- reworking whatever deals had been made--WOULD save the school, and thus jobs, senior faculty would have to do it. If that did not work, the school would close.

"I think those of us who are more familiar with these situations"... Geez.

Posted by: CHS | Jul 20, 2012 10:02:03 AM

I meant to say "letting junior faculty go". Also, I was just addressing your presentation in which there was only one way for things to proceed for a school in crisis. I don't agree. But that does not matter.

The need to address the question "Whither law schools" remains.

Posted by: CHS | Jul 20, 2012 10:45:35 AM

CHS -

Please illustrate your comment with some practical experience - you could for a start describe what a law school recently did when faced with the need to cut costs severely. I have dealt with severe payroll costs cutting as it happens - several times in my career. Have you? If not, I venture to suggest that you have not go a clue about what you are talking about - senior faculty will, throw junior faculty under the bus in the first round of costs cuts before they take any significant cut in pay - and that you think any different shows a touching naïveté that is probably inappropriate for someone trying to teach aspiring lawyers.

Oh and I think given the snotty "Geez" at the end of your posting - no answer will show that you are about as well informed as someone who prances around telling their students to "think like a lawyer." I think I expect silence in response to this posting, because to be blunt, I doubt there is anything you can say that has any merit

Posted by: MacK | Jul 20, 2012 11:08:33 AM

Ha ha ha, MacK -- You never disappoint. Well, perhaps.... But unlike you, I know when to stop talking. I have work to do, and you do not. Anyway, aren't you needed back at the home office about now...

Posted by: CHS | Jul 20, 2012 11:42:31 AM

A non-answer CHS ... off you go now and "think like a lawyer" I can on the other hand say that you just proved my point - a no-real experience law professor trying to comment on things he has no experience of.

You may of course shortly be in a position to comment from experience - the wishful thinking in your e-mail suggests more a panic reaction and a hope that senior faculty will accept a pay cut.

I'll be waiting, in my rather nice offices

Posted by: MacK | Jul 20, 2012 11:48:22 AM

MacK writes: "Are you convinced that senior faculty, who will have the effective choice of a larger personal pay cut (a breach of their contract), or a cut in junior faculty (provided for in the contract), will opt for a personal pay cut, or will they stand on their contractual rights."

I should know this, but I don't: Do tenure contracts provide a guarantee against salary cuts? I don't recall seeing or hearing about any such guarantee.

Posted by: Orin Kerr | Jul 20, 2012 1:42:54 PM

@Orin: During the recent UVA debacle, I wondered something similar but distinct -- namely, what tenure guarantees in the way of employment (rather than stable salary). I would think that if, as I understand the case to be, financial exigency usually permits an institution to terminate tenured faculty, then the same logic would encompass the lesser insult of a salary cut. (If nothing else, an institution might be able to terminate and then offer to rehire tenured faculty at lower salaries, accomplishing the same thing in two steps instead of one.) But I wasn't looking at that specific issue, and I'm not an employment law person. So, with that caveat and FWIW, here's what I found:

What tenure actually means in terms of job (and salary) security depends on state law, institutional bylaws and policies, and individual employment contracts, including any union membership. Some states/commonwealths, e.g., Virginia, don't have a tenure statute, as do many states. Instead, VA law gives very broad authority to the BoV to appoint and remove not only the president but "any professor," with 2/3 vote. That power, of course, is limited by UVA's employment contracts w/its employees and the tenure policies incorporated therein. Although those contracts will of course vary, almost all tenure policies, whether codified in state statute, institutional bylaws, collective bargaining agreements or employment contracts, permit tenured faculty to be let go not only for cause but also due to "financial exigency" (FE). Even the AAUP has long acknowledged the legitimacy of this exception. (Like the Constitution, tenure isn't a suicide pact.) In some cases, terminating some tenured faculty may be the only (or the "best," however defined) way of avoiding the institutional extinction that would render tenure meaningless for all faculty there.

One rub is determining when FE obtains. AAUP, not surprisingly, sets a very high bar, both for defining FE (e.g., the institution as a whole must be in immediate peril, not just parts of it), for including faculty in the determination that FE obtains and requires termination of tenured faculty, and for due process for those faculty selected for termination.

The other rub is that AAUP's policy does permit elimination of programs, including the tenured faculty within them, so long as these are educational decisions made with faculty input rather than a substitute for declaring FE, and so long as efforts are made to relocate tenured faculty within the institution. To wit, recently, plenty of universities have terminated tenured faculty even without declaring FE, much less meeting the AAUP's high bar of what FE entails, and have in fact terminated tenured faculty in some programs while hiring TT faculty in others.

Most importantly, AAUP's recommended regulations have to be adopted or incorporated by an institution in its employment contracts for that policy to be legally binding. Nothing prevents institutions from adopting different policies on tenure in their faculty handbooks, bylaws and regulations. The AAUP can and does "investigate" dismissals of tenured faculty, and judges them according to its own view of best practices. But any resulting "censure" -- absent incorporation of AAUP tenure policies into the institution's employment contracts -- is merely bad PR and an impediment to recruiting new faculty.

Posted by: Michelle Meyer | Jul 20, 2012 3:04:24 PM

It really depends on state law and the tenure rules. Most tenure rules provide that a reduction in tenured faculty must be an absolute last resort - after non-tenured staff and faculty (e.g., administrators, librarians, even janitors and certainly adjunct professors) have been considered first, and then the layoffs have to follow strict order of seniority. In most instances an ongoing employment contract presumes that the pay under the contract, including salary increases and stated benefits are a term of the contract - thus a substantial reduction in pay could be considered a breach of contract (in other common law countries it would be described as constructive dismissal.) Since implicit in a tenure contract is lifetime employment, a major breach of that contract would give rise to a cause of action, with damages postulated as the capital value of the cut in pay during the remainder of the professors tenure, plus any pension impact, etc. You will doubtless recall that a large number of the highest paid professors in the UC system, including law school deans threatened a lawsuit of the mere failure to implement the pay increase they expected.

For all sorts of reasons employers find senior staff salary cuts very hard to implement - partly selfishness, but also because those staff have adapted their lives to a certain income expectation, including mortgages, school fees, alimony, etc. Inevitably, if the senior staff are faced with a choice of, well "screwing" the junior or taking any substantial pay reduction (and explaining it at home), they make the difficult decision, perhaps exhibiting the expression my father used to describe as "like a fox eating shit off a barbed wire fence" (he was a very senior diplomat.) Any junior professor who is delusional enough to think that the senior faculty will not throw the junior under the next bus should consider the well flattened bodies of recent students lying in the road outside, their loan statement jutting from their pockets. If senior faculty were willing to support the tuition increases forced through from 2008 onwards, why do junior faculty think that there will be a sudden attack of scruples when it comes to them?

In addition, CHS evidently does not know many people in college and university governance (he does not know much actually.) Many law schools have been treated as a pure "cash cow." A law school that is not in the top tier really does nothing for universities prestige, especially in situations like say Pepperdine or Rutgers where the law school has a reputation lower than the rest of the academy. If that law school ceases to be a net contributor to the university or colleges "bottom line" and the employment situation of its graduates comes to be an embarrassment, that host college or university will pretty calmly decide to cut its losses - a decision that will come faster if the law school facilities can readily be repurposed to other departments. That by the way is why the current crop of ex-student lawsuit are so dangerous, because they are turning the targeted law schools into an embarrassment, while highlighting conduct which is and was at least ethically reprehensible, if not actually illegal and actionable (and Judge Schweitzer's decision was pretty poor.)

Tenure is a big factor in looking at such a closure strategy, because it creates a situation where closing the law school is easier than trying to cut costs to the point that the school is no longer losing money. But a bigger factor is that it would not be the law school dean or the senior faculty of the law school making the decision, it would be the college or university as a whole.

On some level I think this is the one thing that say CHS realises, hence his tone. For a new law professor in a low ranked school the future looks very dangerous, especially because unemployed faculty are unlikely to be warmly welcomed back into the practice of law.

Posted by: MacK | Jul 20, 2012 3:42:53 PM

MacK,

You nailed it. I think your bearish outlook for Rutgers-Camden and Pepperdine is spot on and well founded. I would add Syracuse Law to this list too. Their Law school is such a mediocrity and academic outlier compared with other grad programs on campus (e.g. Maxwell and Newhouse). If they start becoming a money loser, I can see SU Central pulling the plug (VP Biden's alumnus status notwithstanding).

The independents are really in uncharted waters. Projecting out the trend lines, I really don't see how long Albany or New York Law can continue to hold out in these headwinds. New York Law is heavily leveraged right now and if they can't continue to get enough suckers to enroll at sticker, it's game over.

Posted by: Voodoo94 | Jul 20, 2012 8:12:30 PM

The most interesting thing to come out of Tamanaha's work is the suggestion that there should be more flexibility in accreditation standards to allow for greater diversity in types of law school. Not every school has to be, or can be, HYS. But even those schools recognize the value of exposing students to practice as much as can be done in the law school setting; note the new problem solving course at HLS done with professors and practitioners mentioned above. Could there be schools that put this even more at the heart of what they do? It will be interesting to see whether the current crisis forces the kinds of changes Tamanaha wants to see.

Posted by: CHS | Jul 20, 2012 11:01:34 PM

Thanks, MacK. Do you have any links to sources on this? It would be interesting to see the exact language used.

For what it's worth, I have a different sense of how senior faculty likely will treat junior colleagues if/when these circumstance come to pass. In my experience, the culture of most law schools seems to be that senior faculty members generally treat juniors like family. You can see an example of this in the fact that most law schools can't turn town anyone internal for tenure. Also, Deans set the tone of how to deal with events more than senior faculty members. As a result, I tend to have a different view of how the dynamics would play out if/when these circumstances arrive. But if they arrive, we'll see. Anyway, thanks for the response.

Posted by: Orin Kerr | Jul 21, 2012 2:19:17 AM

Orin Kerr:

In response to your comments:

1. In my experience, the culture of most law schools seems to be that senior faculty members generally treat juniors like family.

In my experience that sense that seniors treat juniors like family is prevalent in a lot of workplaces. That is usually why the "children" experience such a shock when layoffs happen. If you have sat in corporate boardrooms - as say a GC (and I have) or had clients cutting jobs (and I have) or watched law firms cut lawyers, including partners - or for that matter partners fighting over their draw - you would have seen that "family" ideal go "straight out the window," typically without bothering to open it, or consider the height of the fall. You are therefore suggesting that law schools are special.

My point, inter alia, about law schools ramming through tuition increases from 2008-12 illustrating a certain lack of scruples when it comes to senior faculty and administration's personal self interest may have sounded facetious, but it should be regarded as illustrative. The number of law schools whose deans do not, from time to time, refer to the law school as a community or family in a way that encompasses the law students is vanishingly small. Yet most law schools raised tuition at rates higher than the rate of inflation in the employment environment prevailing over the last 4 years?!

In that regard, UC-Hastings must be seen as being in a particularly ludicrous position. It has decided, in order to raise its rankings, to reduce class sizes by some 20%, with the explanation that:

"Frank Wu doesn’t mince words. “The critics of legal education are right,” said Wu, the chancellor and dean of the University of California Hastings College of the Law. “There are too many law schools and there are too many law students and we need to do something about that.”

Fewer students will cost Hastings $2.1 million in tuition revenue, and so in March it eliminated the equivalent of 23 full-time positions, some through layoffs. The law school's budget office and library staff saw the biggest employee cuts."

Not very loudly mentioned is the decision, in the face of the criticism to raise the law school tuition by 15% so that in-state tuition goes from $40,653 to $46,57 and non-resident tuition 7% from $49,153 to $52,575. This makes the cost of attendance at the 44th ranked law school in the country some $75,000+ or over $200,000 for 3 years. All I know is that Wu would need to be a miracle worker to make Hastings worth more than any of the T14 - almost all of which will cost less.

What these facts do say though is that Wu is desperate - he has not been able to cut faculty, in fact he is currently planning to add faculty to make his clinical and practice orientated changes, but he still cannot cut faculty payroll or lose the more useless of his professors. Only desperation can explain the choice to raise tuition, right now, at a school that is already expensive if it were a private law school, but it is in fact state.

2 You can see an example of this in the fact that most law schools can't turn [d]own anyone internal for tenure.

Most companies promote internally too. I would note that many law schools, Georgetown for example, are (or at least were) notorious for not hiring their own graduates (under Areen GULC had this Yale fetish.) That someone already employed by an organisation has a much better chance of securing a promotion from a VAP to Professor is not unusual. I have seen "total boneheads" promoted in in-house situations when the smart move for the company would have been to go outside.

3. How the dynamics would play out if/when these circumstances arrive.

The likely dynamics are already playing out, at UC-Hastings, Rutgers-Camden and indeed Cooley. The first part is to deny there is a problem - a good few law professors are still at that point - you can peruse the postings on this forum to find numerous examples.

The next part is to admit that there are issues, but that they are temporary, as in "it's the bad economy." The view that the situation is temporary leads to the conclusion that temporary expedients will solve the problem, for example, cutting junior faculty - because senior faculty think that the ship is not sinking, and even if it is, they believe that they can find somewhere else to go - or maybe the ship will float until they retire.

3. Do you have any links to sources on this? It would be interesting to see the exact language used.

I have researched them in the past and found a few - they are pretty easy to locate. Inter alia, have you read your own? Your alma maters? Most professors, except at a few state schools, are not in collective bargaining agreements (even when they may apply to non-academic employees), or if there is such an agreement it is broadly for the whole institution. Instead, their employment contracts are personal, with the tenure rules of the school either incorporated by reference, or forming an implied part of the employment contract. Tenure means though that a professor is not an employee at will. Having looked at this in other contexts (and there is state variation), pay - which is usually considered as including increments from the time of hiring, forms part of the employees contract of employment and a reduction in pay without agreement is a breach of contract. So you have a situation where;

A. The employment contracts are lifetime contracts, but individual as between each employee (professor) and his/her employer

B. Pay is hard to cut without consent (and if one senior professor refuses, why would the others agree.)

C. The tenure rules, which are either incorporated by reference or form part of a strongly implied contract require layoffs on a last in first out basis and a seniority basis.

If this were a classroom exercise what would you expect your students to say is the most likely outcome.

As for when these events will take place. I think that in around January/February 2013 a few stand-alone law schools will start to run out of money, while their credit ratings will fall rapidly, cutting their lines of credit - will they limp to their 2013 commencement - most of that group will somehow make it to May 2013. Between November 2012 and February 2013 a number of college/university affiliated law schools will have a "cash crunch" and will go to their parent college or university looking for funds to tide them over until "the recovery." The response will be interesting, but I suspect a few will get the answer that either we will fund the school through:

(a) commencement 2013;

(b) commencement 2014;

or (c) commencement 2015.

A number though will announce that they are either closing quickly, with a transfer of existing students starting in the fall of 2013 - and a few will announce that there will be no classes of 2016 and no new 1Ls in 2013.

My best guess is that this will apply to a handful of law schools in the next 12 month cycle - but an increasing number per year for 3-7 years, as they burn through their endowments. Many though will resort to faculty layoffs before that ... junior faculty first.

Posted by: MacK | Jul 21, 2012 7:14:57 AM

MacK,

That was an epic post and right on target. I agree that UC-Hastings is an illustrative example. Dean Wu's back is against the wall and his unconscionable decision to raise IN STATE tuition to $46K a year shows it. The callous disregard for his debt loaded students and his cold-blooded evisceration of Hastings' non-faculty staff show all we need to know about how sincere the "family" environment is at most schools. To do what Hastings did in this economy reveals both moral indifference and financial desperation.

We know the trouble Hastings is in because we've been able to see "under the hood" through some public documents. Hastings is not alone. I would love to see what the Brooklyn Law, Cardozo/Yeshiva, and Seton Hall internal numbers look like this year. I bet they aren't pretty.

I am baffled that Professor Kerr can't see that senior faculty will throw juniors under the bus in tough times. Such behavior transcends occupation and class. We've seen this in blue collar industries (e.g. the new two tier UAW contract); we're seeing it now within the Army as discussions turn to which NCOs and officers will be let go in a deeper drawdown; and we are seeing this play out among the former Dewey Leboeuf partners. The same will happen in the professoriate. They may think they comprise a special altruistic priesthood, but in the end they are just like everyone else. The young will be made to suffer to support the lifestyles of the tenured leisure class.

Posted by: Voodoo94 | Jul 21, 2012 10:13:38 AM

With all respect Voodoo, I do not think it is fair to call Wu callous - though his recent op-eds show a certain selective vision when it comes to his sense of empathy, far away from his own students. Moreover, to characterise Wu as callous is to miss the core issue - short of closing the school, there was nothing else he could do. He could not cut faculty pay, he could not even cut faculty to replace them with more practice experienced professors - so he is forced to hire and keep the current crew. That leaves but one ludicrous option, raising the already high tuition to levels higher than schools that are substantially more highly regarded than Hastings.

That Wu was left with no option but raising tuition, in the current climate, and by such a large amount 15%! is illustrative of the crippling trap that Hastings is in ... and you can be sure than some other schools are in worse shape.

Posted by: MacK | Jul 21, 2012 12:08:51 PM

To bring the comment thread back to Paul's excellent paper for a moment:

I think perhaps your greatest contribution here is to refocus the discussion on the client. In my ethics classes, I'm always disturbed by those students who seem to find it impossible to accept that their function is to serve the client. As I've heard other ethics profs comment in various places, the pressure for jobs seems to be impacting students who just can't get their heads around the idea that a conflict might require them to turn down a paying client.

One small criticism, though, relates to your treatment of scholarship in law schools. On page 9 you note that "law schools are heavily and increasingly focused on scholarship over teaching or service," and then observe that "the ones who do nothing but teach (and only three courses, at that) are paid almost as well as their productive colleagues." In other words, too much emphasis is placed on scholarship, much of which is poor, and law profs who don't publish are paid almost as much as those who do. Scholarship, while overvalued, is still the primary if not sole measure of the worth of a law professor. I don't see much of a difference between this sort of cognitive dissonance and "Olson's insistence that the legal academy's ideas are both silly and profoundly influential."

Posted by: Jim Milles | Jul 21, 2012 2:06:13 PM

MacK,

Thanks for the response. It seems that a lot of your argument is based on your experience. You often make a point of emphasizing your experience in boardrooms, as a top practitioner, author of books and articles, etc. Just so I understand where you are coming from, have you ever worked at a law school?

Posted by: Orin Kerr | Jul 21, 2012 2:09:30 PM

Oh, and just to be clear, MacK, I'm not saying that you need to have worked in a law school to have insights into how law schools might react. It's just that you repeatedly advance your experience as an argument for why we should defer to your understanding. In your words, you are one of "those of us who are more familiar with these situations," and thus you "can tell [us] what will happen." I just want to make sure I understand what you see as your experience that we should be deferring to, and in particular whether it is based on your experience only in the business/private practice area or whether it is also based on your working in academia. Maybe the two work in the same basic way, but maybe they don't, and I just want to make sure I understand your experience. Thanks for understanding.

Oh, and as for whether I have looked at my own tenure contract, I don't recall doing so. (Insert joke about clueless academics here.) That's why I was asking you, as you expressed confidence that such terms were in tenure contracts.

Posted by: Orin Kerr | Jul 21, 2012 2:34:00 PM

Orin Kerr,

No, I have not worked in law schools - though I have had dealings with academia. I have however encountered the same issues on three continents and in a range of businesses and industries - and I have encountered the "but we are different" mindset before. The answer, sadly, is no, organisations tends to behave in broadly similar ways, the variation being local law.

I have looked at a good few tenure agreements/rules/doohickeys (they have a range of names) and they are pretty similar - anything but tenured faculty goes first, then FIFO and in order of seniority. The agreements make sense in a broadly strong market where funding sources are robust and growing - they start to be very painful in any sort of contraction.

I do think that it is interesting that so many law professors (in light of the law and economics approach) have failed to actually look at the tenure arrangements in their own institution and ask the hard question - what does this mean if the law-school has to cut costs. By saying it is interesting I am not making a judgment, I just find it oddly consistent with my experience that a group faced with an arrangement that they see is unalterable, tend not to read it (cf partnership agreements.)

I have put together a sort of death list of what I think are the most vulnerable law schools - I started alphabetically state by state, skipping California (there are so many teetering on the edge it is hard to pick). I stopped because, even though it was a quick and dirty assessment, I really did not have the time (clients to bill). My rough list A-I (with factors) - ranking the schools in the order in each state that I think they will close.

Alabama
1. Miles School of law (unaccredited, has the lowest bar pass rate conceivable (sometimes 0%)
2. Birmingham School of Law (unaccredited, low bar passage rate)
3. Cumberland School of Law (low ranking, poor employment performance, parent college decision)

Arizona
Pheonix School of Law (commercial operation, will close when it loses money, new Obama administration policies on use of revenue large factor, huge student debt, poor reputation)

Washington DC
1. UDC (poor reputation, bad law passage rate), possible it will consolidate with Howard.
2. American University (a steadily declining reputation and high cost and student debt puts it ahead of Catholic U – decision lies with a parent college);
3. Catholic University, Columbus law school (despite a good local reputation for its graduates, better than American in fact, it will struggle if GW and Georgetown start making big offers to secure students, but it has wealthy donors)
4. Howard – as a historically black college it has struggled as segregation has vanished in DC law schools.

Florida
1. Florida Coastal (commercial, investors will kill it when it loses money, new Obama admin regs on student loan expenditures will hurt)
2. Ave Maria (what is there to say, small, terrible bar passage rate, broke, expensive)
3. NOVA Southeastern - Shepard Broad (you went where? Low rank, no reputation for good or ill, larger school makes the decision)
4. Florida International College of Law (parent calls the shot, no reputation, low rank, money losing or soon will be)
5. Barry School of Law (oh dear, what good things can you say)
6. Stetson (poor reputation, low rank, parent college decision)
7. Florida A&M (it is a state school, but weakly performing, new and in a state with two other state law schools.

Georgia
1. John Marshall School of Law (private, for profit, will close when it is a long run money pit)
2. Mercer (Walter F. George) (low rank, decision lies with a larger institution Mercer University, and if Georgia needs to close schools Mercer is the most vulnerable)

Indiana
Valparaiso (bottom of the rankings, in a recent sign of desperation it has decided that “sports law” is the wave of the future)

Iowa
Drake (low rank, private, where??)

Posted by: MacK | Jul 21, 2012 4:47:21 PM

Jim Myers:

I do agree that the focus should be on Paul's paper - and my criticism of certain aspects of the paper seems to have ended up in the alley of what law schools will close.

I think the paper could be improved by recognising that there is a demand/cost/capacity misalignment, i.e., law schools are too expensive, too numerous and too large in terms of the broad economy and the demand for lawyers, and that the inevitable correction must occur (as in say the property market) though the impetus is not clear. Another issue (but one that would require Paul to be provocative and put him in Campos/Tamahama territory) would be the desperate measures that law school administrations have found themselves forced to in order to maintain demand, revenue and status in the saturated market.) That was my original criticism, that the idea that to "close half the law schools ... force professors to give up half their salaries and stop doing abstract scholarship" is either utopian or unlikely is itself utopianism from the perspective of faculty. Actually, it pretty well describes what is likely to happen and Paul would be better acknowledging that likelihood and asking, how will this impact law schools?

In examining the overall issue, Paul might want to ask why scholarship is so highly regarded, given that the broad response from lawyers is a yawn. Circulation numbers deride the idea that law reviews contain anything of value (indeed the valuable law reviews I have read from a practice perspective are may 3-8, in 20 odd years. Circulation shows the growing irrelevancy of the law review:

"no major law review had more than 2,000 paying subscribers. The Harvard Law Review remains the top journal, but its paid circulation has declined from more than 10,000 during much of the 1960s and ’70s to about 5,000 in the 1990s to 1,896 last year."
Ross E. Davies George Mason University School of Law; Journal of Law, Vol. 2, No. 1, pp. 179-188, 2012; Journal of Legal Metrics, Vol. 1, 2012 George Mason Law & Economics Research Paper No. 12-15

1,900 subscribers is pitiful. And that is the highest circulation of any law school law review. I wrote a part of a world report where the head of a university economics department had the galley borrowed over lunch and copied 10 times, for a smallish school - but it was heavily orientated towards practice. I know commercial journals with higher circulation (admittedly my copies mostly sit, glaring balefully at me unread.)

The last point I raised is that excluding the capacity problem - and Tamahama is a better target for the "let [197] flowers bloom" pun than Paul Horowitz, there is a tension between the idea that law schools should teach better law-practice-orientated skills and the idea that a JD should be a versatile degree, or even that you reduce law school to 2 years from 3 (assuming that one put substantive content into year 3 instead of the notorious "law and [knitting/semiotics/gender identity/whatever" courses.) In my personal experience the idea that that practice can give a lawyer a thorough legal knowledge is utopian. In practice one learns by doing, and unless practice gives a lawyer a chance to do, he or she learns little about the odd alleys of the law. Law schools role in many respects is to ensure that a putative lawyer has a thorough grounding in all the aspects of say torts to civil procedure. Unfortunately, law professors have found giving that thorough grounding tedious and not prestigious and have raced up "blind alleys" to the detriment of actually covering the law thoroughly and teaching it comprehensively.

Anyway, I am sure that vast majority of prawfs on this site disagree with me ... but if you asked the legal profession...

Posted by: MacK | Jul 21, 2012 5:51:27 PM

Thanks for the context of your comments, MacK. That's helpful to know.

I think your view of the readership of law reviews is a good example of where you might have a misunderstanding. Circulation of the paper copies of the law reviews has gone way down, sure. But that's because readership has gone almost entirely online. Everyone gets articles from online sources like SSRN, Westlaw, Lexis, and the journals' own websites. Actually looking at a paper version of a monthly law review issue is like listening to an LP; a nice experience, but a rarity. It's not the way that people get their content anymore, so you shouldn't think that lower circulation numbers of the physical journals says anything about whether articles are being read.

Posted by: Orin Kerr | Jul 21, 2012 7:23:42 PM

Orin,

You may want to think that circulation is down because of electronic access, but realistically readership of academic law journals is tiny and shrinking - outside law professors themselves. Thus the suggestion that "[e]veryone gets articles from online sources like SSRN, Westlaw, Lexis, and the journals' own websites" suffers from the view that "everyone" includes many people beyond academia - judges, practitioners, drafters of laws...

Journals that do get read by the profession include a string of journals from BNA and others from Thompson Sweet & Maxwell, plus various journals from organisations that you get monthly. There are a limited number of academic journal articles that I have found useful - though most suffer from the tendency to speculate about the irrelevant as the core of the "scholarship" in the paper, rather than getting into the meat of the substantive law. One of the more useful papers was Kimberley Ann Moore, Xenophobia in American Courts. I will observe that I had done some research for clients on this issue before, albeit one directed at trying to decide what courts a foreign party was less likely to face discrimination.

If I was to contrast Law School Journals with academic-journals in other disciplines, medicine, physics, chemistry, microbiology, engineering, electronics, etc. law is pretty well distinguished by the huge number of academic-journals that actual practitioners of law do regard as relevant or even worth reading - as a practicing lawyer I have actually read more journals in these fields (plus economics) than I have read academic law journals. That is why I consistently describe the journals as "pretentions to scholarship." If I was trying to change a law school, the first thing I would do is get a practitioners board for each journal and put the focus on issues that lawyers, judges and law-makers want to know about - not just articles aimed at citation swapping between professors. I could fling out ten issues right now where a journal article would be devoured by practitioners.

Posted by: MacK | Jul 22, 2012 7:04:54 AM

Orin, correcting some typos that changed the meaning of my post

You may want to think that circulation is down because of electronic access, but realistically readership of academic law journals is tiny and shrinking - outside law professors themselves. Thus the suggestion that "[e]veryone gets articles from online sources like SSRN, Westlaw, Lexis, and the journals' own websites" suffers from the view that "everyone" includes many people beyond academia - judges, practitioners, drafters of laws...

Journals that do get read by the profession include a string of journals from BNA and others from Thompson Sweet & Maxwell, plus various journals from organisations that you get monthly. There are a limited number of academic journal articles that I have found useful - though most suffer from the tendency to speculate about the irrelevant as the core of the "scholarship" in the paper, rather than getting into the meat of the substantive law. One of the more useful papers was Kimberley Ann Moore, Xenophobia in American Courts. I will observe that I had done some research for clients on this issue before, albeit one directed at trying to decide what courts a foreign party was less likely to face discrimination in.

If I was to contrast Law School Journals with academic-journals in other disciplines, medicine, physics, chemistry, microbiology, engineering, electronics, etc. law is pretty well distinguished by the huge number of academic-journals that actual practitioners of law do not regard as relevant or even worth reading - as a practicing lawyer I have actually read more journals in these other fields (plus economics) than I have read academic law journals. That is why I consistently describe the journals as "pretentions to scholarship." If I was trying to change a law school, the first thing I would do is get a practitioners board for each journal and put the focus on issues that lawyers, judges and law-makers want to know about - not just articles aimed at citation swapping between professors. I could fling out ten issues right now where a journal article would be devoured by practitioners.

Posted by: MacK | Jul 22, 2012 7:07:19 AM

Here are ten articles I'd read:


1. Antitrust and leniency programs – what measures should antitrust agencies take in the event of failure to fully disclose or intentional manipulation of leniency programs. Do agencies have any obligation to prevent manipulation of filial-agency programs?

2. International law firms - what are counsel obligations when a single firm is representing parties in multiple judicial and quasi-judicial fora. Does a US firm have any obligations to avoid representations in foreign fora which are contrary to facts that are available to that counsel through discovery in the US

3. In the international online commercial environment the possibility exists that an act might infringe copyright in multiple jurisdictions and indeed infringe neighboring rights – copyright, trademark, design-rights. This gives rise to the possibility that parallel litigation could be filed in multiple jurisdictions seeking recovery for essentially the same acts and injuries. Should this type of litigation be precluded? If it is precluded does it give rise to the risk of “Italian Torpedoes” for online infringement?

4. Is aggressive enforcement by large intellectual property holders creating a risk of oligopoly/oligopsony in the technology industry?

5. The patent troll problem and nuisance value extortion. Do the tools to remedy the problem already lie in the hands of the Federal Courts?

6. Anti-dumping cases can have the perverse effect of rewarding importers – this is because an importer who is subject to a small dumping margin – as opposed to the bulk of importers with a large dumping margin can effective arbitrage the difference into a substantial added profit margin. Is there anyway within the existing law and treaties to prevent such arbitrage? What regulatory changes might be feasible and adviseable?

7. The recent Wikileaks included a number of messages from US antitrust authorities along the following lines – our hands are tied by the Supreme Court – could DG Competition please act quickly on this issue before the Chinese act – because we do not want China to become a key arbitror in international antitrust decisions. Illustrate this with the recent approval with undertakings of the Google acquisition of Motorola Mobility – a sign of things to come?

8. Transnational counsel and protective orders – what is the situation of a lawyer who is counsel in cases in multiple jurisdictions?

9. Abduction in international custody disputes, conflict of laws and comity – usable laws and effective strategies.

10. The coming antibiotics crisis and the role of FDA law and intellectual property rights – with some potential solutions.

Posted by: MacK | Jul 22, 2012 7:42:43 AM

  

Prof. Horwitz, your article is very interesting.  I do wonder where students are in all of this, as well as law firms, and the government.  You may not want to open things up this way, but I think the piece might benefit from a bit more about the broader context in which the current crisis is unfolding; the collapse of the AB as a degree that provides entree to a good job, unless one goes to a stellar college or picks the right STEM degree. I say "right" because ,as a recent Washington  Post article discussed, not just any STEM degree will do. Even with the drop in applications, lots more people than there should be are applying to law schools for all the reasons people have sought to join the bar for centuries and, now, because the American economy is not providing as many opportunities for young people. So, they are grasping at whatever they can. What about the disinvestment in public education that has required shifting the cost of education onto individual families? And what about the role and responsibilities of law firms? It has long been known the model problematic.

This is a lot, but these are issues that have to be confronted. Resolving the argument over doctrinal versus theory-oriented scholarship will not get at the core of the problem. There are all kinds of adjustments and accommodations that could be made with that, and the malaise would not be alleviated. The tenure argument is the same as it is with unions-- we need to be able to fire people at will in order to drive down salaries. The "job creators" and administrators need to have flexibility to do what they feel is best.  That's the American way, I know.  

I do think Tamanaha's call for diversity in law schools may provide an answer to some of the problems. HYS can remain as they are, to the extent that they want to, and other models can arise. We could then see if the experiments end up proving solutions.

Posted by: CHS | Jul 22, 2012 10:10:26 AM

"providing solutions" -- terrible typing this morning.

Posted by: CHS | Jul 22, 2012 11:06:23 AM

Here is an article topic that is close to the issues raised in Paul Horowitz's paper:

The agency problem in student lending - addressing the inherent conflict in the financial aid office (as in, should colleges be acting as agents for student loans - are they proper underwriting agents given their inherent conflict of interest?)

That would take real guts for any law professor to write.

Posted by: MacK | Jul 22, 2012 11:08:55 AM

CHS

A good point. It could be expanded on by looking at the negative impact on the legal profession of so many entrants for whom the choice to pursue law is a défaut de mieux rather than as the result of a real vocation.

Posted by: MacK | Jul 22, 2012 1:15:48 PM

Again, back to Paul's paper.

I agree that it is unlikely and perhaps utopian to expect that "lots" of schools will close. It does seem likely, though, that *some* law schools will close, and not necessarily just the ones at the bottom of the fourth tier. As MacK suggests, not all law schools are cash cows for their universities. How many years ago was it that the University of Puget Sound sold their law school to Seattle University?

I've heard anecdotally that some schools are actually increasing their incoming admissions next year by lowering standards for their foreign LLM programs. I wonder how many others might be doing that?

Posted by: Jim Milles | Jul 23, 2012 9:27:09 AM

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