Tuesday, December 11, 2012
Law School Sustainability
Law school applicants and LSAT takers are both down by double-digit percentages this fall. Law students are taking on higher and higher levels of debt and are met with a job market that is the worst in decades. Commentators at Above the Law, Inside the Law School Scam, and the New York Times lay out the numbers and ask why anyone would ever attend law school, unless they're essentially going for free.
Law schools and the law professors who help govern them need to confront these issues. However, in conversations with colleagues at other schools, I've heard about the difficulty in bringing up these concerns with fellow faculty members. In the face of the sometimes vituperative attacks on legal education, many professors have closed ranks, and a prof who brings up these issues may seem to be casting her lot with the critics. On the other hand, speaking up in defense of legal education draws cries that one is a Pollyanna or a con artist. As a law professor, I believe that there is a lot of good in legal education, but it's tough to say that to someone who is 26, unemployed, and carrying $120,000 in debt.
Law profs need to talk about these issues in an honest but productive way. Those of us who work in the field do not have the luxury of waiting to see what others do; we are responsible for change. And many changes will likely be unpleasant ones. But at the same time, there is a real opportunity here to reform an industry that has remained largely static for over 100 years. Taking the bull by the horns will give us a better chance to not get trampled.
So instead of continuing to debate whether law schools are failing, we need to recognize the problems and deal with them constructively. It's time to focus on the future. And if we want law schools to continue to be vibrant players in higher education, the legal profession, and society, we need to focus on sustainability.
"Sustainability" is generally used in the environmental context to indicate the ongoing health of a particular practice or system. But it can also refer more generally to the continued existence and flourishing of industries, firms, and institutions. Law schools have to focus on sustainability. That means asking what schools need to do now to ensure their long-term health and prosperity. Below I sketch out a few thoughts about law school sustainability:
Make law school more affordable. As discussed a few weeks ago, the short-term incentives for all law schools point in the direction of shrinking class sizes. But tuition and debt levels remain a long-term problem. To make law schools sustainable over time, we need to focus on making the opportunity to get a legal education something that doesn't saddle the student with overwhelming debt. This is not a problem that will be solved overnight. But it needs to be addressed, both now and continuing into the future.
Cut costs. If classes shrink and tuition drops, by necessity school budgets will shrink. But how they shrink is another matter. Those who govern schools need to think hard about the ways in which the budget will be cut. And if these conversations are focused on making the school more sustainable over time, professors will be more invested in the process, even if they personally feel the brunt. A salary cut is a postive step for the health of the organization if it is explicitly tied to a tuition cut. If the money saved just goes into a general university fund, profs may feel that their personal sacrifice has not contributed to a more sustainable institution.
Protect core values. There are a lot of different ways to reform legal education. Some of those can come from the inside, such as revised curricula, more experiential learning, and smaller class sizes. But some reforms would be imposed from the outside: revised ABA or state requirements, changes to federal loan programs, and huge market shifts in demand. Law schools need to think hard about what their core values are, and make sure to protect those core values. Along with providing excellent education and preparing our students for success on the job market, I think legal scholarship must also remain a core value to be protected. Now, there are lots of ways to do this; protecting legal scholarship does not mean continuing with the status quo. But I do think that a focus on sustainability includes a focus on keeping legal scholarship alive and well even when legal education is going through dramatic change.
I welcome your thoughts, particularly those of junior or prospective law profs. What should we be focusing on when we think about the long-term future of law schools?
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The only thing that keeps law school from the extinction suffered by Kodak and Polaroid is state licensing. They'd still be inflicting their film cameras on us at great expense if folks had to be licensed in film production, maintain huge empty libraries and pay inflated costs for tenured employees in order to manufacture and sell a digital camera.
I can't imagine maintaining a system that keeps graduates unemployed and in debt, profs with sinecures, and the general public totally unhappy with the product at great taxpayer expense.
My suggestions are:
Kill state licensing; the arguments in its favor are bogus. Though I design doomsday weapons, I have never been licensed. Milton Friedman explained it to you.
Close all public law schools. Who wants schools run by a gummint that can't deliver the mail or desegregate national parks and forests and that keeps inventing programs like Affirmative Action to cover its deficiencies?
Move instruction on-line.
Permit students to choose their profs and avoid those socialist profs they disdain. I was so unhappy with several of my profs that I just skipped all their classes, a situation that Socrates' students didn't have to put up with.
Eliminate tenure. Neither Walmart nor Facebook employees have tenure. If they did, our products would still be the Pontiacs, DeSotos and Lincolns that would satisfy nobody.
The sad fact is that, since lawyers effectively run the gummint, we will probably have to wait for the Chinese to rectify our miserable legal-education situation.
Posted by: Jimbino | Dec 11, 2012 4:15:57 PM
If anything, Jimbino's post is a call for more education, not less.
Posted by: John | Dec 11, 2012 4:42:24 PM
It's hard to think about a serious discussion about the future of legal education when many of the attempts to begin a meaningful conversation are met with either ad hominem attacks or absurd arguments.
I would like to believe that these voices are actually a small number of trolls, but the fact that they pop up over and over again makes me reluctant to lend my voice and thoughts to these discussions.
Maybe it's time that we take up the conversation in an in person format? I know that Paul Horowitz has called for this to happen at forums like the AALS.
Posted by: rje | Dec 11, 2012 4:55:11 PM
It's a testament to the sites' proprietors' tolerance that they haven't banned Jimbino yet.
Unfortunately such tolerance can eventually lead to less speech, not more. (See e.g. Balkinization which due to a single persistent troll now closes most posts to comments.)
Posted by: brad | Dec 11, 2012 5:04:44 PM
I find it easier and perhaps more respectful to leave up comments like Jimbino's, but I completely understand the responses. In fact, I almost posted that Jimbino's comments were part of the noise that makes it difficult to talk constructively about this topic. But you may remember Paul Campos's response when Dan took down a comment -- outrage at a "cover-up."
I think a law prof might profitably read the comments of Jimbino and others like him this way: there are a lot of angry folks out there, with various axes to grind. We need to keep our own houses in order. If a lot of people think that legal education is not contributing much beyond a diploma and the right to take the bar, we have a problem. Now, I don't believe that, and Above the Law has a survey indicating that 55% of JDs who do not practice law still think law school was a "terrific learning experience." (See here: http://abovethelaw.com/2012/12/an-open-letter-to-law-school-deans/) But the problems are not mythical, either.
Posted by: Matt Bodie | Dec 11, 2012 5:15:39 PM
This post is well-meaning, but I fear we're reaching the point where solutions such as these are being proposed not so much because they will actually help law graduates and young lawyers, but rather to assuage / mollify the angriest voices.
1. Yes, law school is too expensive. So is undergraduate education. But programs like IBR, LRAP, etc., make the debt burden sustainable if law graduates are actually able to find jobs. The problem, of course, is that there are not enough law jobs, and few institutions can afford to both reduce class sizes and cut tuition.
If the choice is between cutting class sizes and cutting tuition, I think it would be extremely foolish for law schools to go the latter route given that law schools are currently producing 2 new lawyers for every 1 law job. A 10% tuition cut isn't going to create a new job or reallocate money to someone who is currently unable to afford legal services but needs them.
2. If by cutting costs, Matt means that law schools should eliminate redundant adminstrators and staff, closely monitor faculty-related expenses, and push underperformers out the door, I think no reasonable person could disagree. But any law school that does an across-the-board salary cut will alienate its most productive faculty members and cause at least a few to leave (mediocre performers will, of course, stay). The burden will also fall predominately on younger faculty, who bear far less responsibility for the crisis and are not paid nearly as handsomely as their senior brethren.
I appreciate that there is some public relations benefit to law school faculty members being asked to "share the pain", but I don't see how salary cuts and alike materially benefit students even making the unlikely assumption that every dollar taken from the faculty will be used to lower tuition. In fact, given that graduates' prospects are at least somewhat correlated with a law school's supposed prestige, a law school that follows the salary cut route and loses valuable faculty members in the process may actually end up hurting its students and recent graduates. Even if one disagrees with this, salary cuts are hardly a sign of a law school's vitality.
A truly sustainable model would concentrate on continuing to shrink class sizes, promoting the dissemination of truthful information about employment outcomes, debt loads, and alike, and shutting down law schools with terrible employment outcomes and loan default rates.
Posted by: Anons | Dec 11, 2012 5:36:10 PM
Boosting teaching loads can be a way to a) save a bit of money, and b) reduce the use of hideously underpaid non-tenure track instructors which is an additional black eye that the academy just doesn't need right now.
Although that will naturally reduce scholarship a bit, there is no reason a modest increase in course load needs to have a drastic effect on it.
Posted by: brad | Dec 11, 2012 5:42:23 PM
Well I too think law school was a "terrific learning experience," though I certainly wouldn't have gone to UT Law Austin if it hadn't been virtually free. Lino Graglia, excoriated by the arschlecking liberal professorship at UT Law for speaking the truth, was my favorite prof. I realize that I can't lay claim to respect where he couldn't.
In any case, I am a physicist with a JD and my comments merit respect equal to that of my classmate David Friedman, a PhD physicist and law-school prof who hasn't ever taken a single law class for credit.
You tenured troglodytes can continue heaping praises on each other and excoriating outsiders all the way to your graves. I'll just say what Jesus said, "Those who have ears to hear, let them hear." It might do you some good to listen before vanishing.
You could also drop the ad nauseam ad hominem and respond substantively to mine and Milton Friedman's condemnation of your sinecures and the perverse profession you serve.
By the way, Eugene Volokh tried banishing me for criticizing his lousy grammar. It doesn't work, of course.
Posted by: Jimbino | Dec 11, 2012 5:45:00 PM
Jimbino, Lino Graglia is a great guy. He wouldn't be teaching at UT but for tenure. Something to think about.
Posted by: frankcross | Dec 11, 2012 6:55:29 PM
As they say in a closely related endeavor, the first step is admitting you have a problem.
Some significant number of your peers are not there yet, probably because they can still expect to fill every seat at their schools with a brand-new federal student loan conduit this fall. And they may have a point. Why not wait for the crash, if the alternative is more teaching for the same money or less?
Posted by: Morse Code for J | Dec 11, 2012 8:18:11 PM
Lino Graglia always deserved better than UT Austin Law. If Einstein, Meitner, Bohr, Fermi and von Braun found a better place, why couldn't he?
May I suggest that the world offers few refuges for American law professors, even the best?
As Jesus said to the apostles, "When you travel, don't take a walking stick. Also, don't carry a bag, food, or money. Take for your trip only the clothes you are wearing. When you go into a house, stay there until it is time to leave. If the people in the town will not welcome you, go outside the town and shake their dust off of your feet. This will be a warning to them."
Posted by: Jimbino | Dec 11, 2012 8:25:39 PM
Anons -- you lay out a reasonable approach for a school that needs to trim expenses a bit but is otherwise on a sustainable path. But you suggest that some portion of schools need to close (because they are unsustainable) and the rest should essentially keep tuition the same. While I agree that increasing the demand for law school doesn't make sense now, I think that the debt levels are unsustainable in the long term. Maybe I'm wrong about that. But I don't think IBR is generous enough nor is it set in stone, so I think it's unsustainable to assume that IBR should be factored in as a de rigueur part of the financing process.
And about salaries: as I mentioned in an earlier post, there are lots of ways of cutting costs. You can cut labor costs or cut books. You can reduce salaries or just not hire anyone for a while. It's much easier to not hire someone than it is to fire or cut salaries. But that's not a sustainable choice. Cutting salaries may not be a sign of vitality, but neither is a five-year hiring freeze. Of course, there are schools that do not have to cut costs, because their applicant pool has remained constant and/or they were fiscally conservative to begin with. But for those schools that see their revenues declining, faculty should be thinking about the most sustainable ways to cut costs.
Posted by: Matt Bodie | Dec 11, 2012 9:56:21 PM
Jimbino, you have some good, important points. The world would be a better place if more law professors took them seriously. But the seething contempt in your comments makes that result less likely, not more. You're hurting the cause of fixing legal education by making it easy for professors to stick their fingers in their ears and pretend that critics of the current system are irrational rageaholics.
Then again, you appear to value the pleasure of indulging yourself in righteous, bilious tirades more than you value fixing the outrages that have you so worked up. You're hardly the first.
Posted by: James Grimmelmann | Dec 11, 2012 10:32:11 PM
Matt writes: "In conversations with colleagues at other schools, I've heard about the difficulty in bringing up these concerns with fellow faculty members. In the face of the sometimes vituperative attacks on legal education, many professors have closed ranks, and a prof who brings up these issues may seem to be casting her lot with the critics."
Matt, can you say more about that? At my school, at least, there has been no closing of ranks: We had Brian Tamanaha present his book at a faculty workshop in the fall, and the event was both very highly attended by the faculty and very positively received. I'd be interested in hearing more if other faculties are not having the same reaction to these issues.
Also, if there are profs who find it hard to bring up this topic because they fear that they may be seen as "casting lots with the critics," I hope they will press on anyway. The important thing is to try to be right, not popular. It would be ironic if professors who insist on the protections of tenure were nonetheless afraid to bring up these issues because they fear being associated with critics. (!)
Posted by: Orin Kerr | Dec 11, 2012 10:47:56 PM
Problems with legal education:
1. About 45,000 new grads each year; about 20-25,000 new jobs each year
2. Starting salaries are bimodal, law school tuition is not.
About half the grads won't get legal jobs at all. And among the ones that do, most won't make enough to pay back their loans without some kind of government aid.
These problems seem insurmountable at this point; there is no avoiding the big crash.
Posted by: john | Dec 12, 2012 12:00:41 AM
I wonder if professors are also starting to accept that JDs are not particularly useful degrees for obtaining non-legal employment. Even if the skills one acquires in law school could theoretically be applied to non-legal employment, you still need to convince somebody to hire you. Non-legal employers are not interested in JDs for reasons that I hope are becoming well known: JDs are thought to be too demanding/entitled, to be a flight risk, or simply to be failures (why aren't they lawyers?) Or, as somebody else once put it, JDs are simply thought to be assholes. These are all unfair misperceptions, on the whole, but they exist and they are just as strong a force for unemployment as our versatile "thinking like a lawyer" skills are for employment. Stronger, actually. This is generally less true for the highly elite schools, but there aren't that many highly elite schools.
The truth is that maybe half of all law school grads actually improve their employment prospects by attending law school. The half who get the full time, permanent, jobs as lawyers. Just half. Maybe less. The other half is wasting their time, their money, and digging themselves into a big dark hole. In order to stop lying and sell an honest product, the law school industry is going to have to contract literally by half.
Posted by: Steven | Dec 12, 2012 12:46:01 AM
There is a big elephant in the faculty lounge that needs addressing but most faculty are too polite to point it out.
We should cut cost by recognizing that a tenured faculty position isn't a sinecure. Tenured faculty who don't teach much or well, don't write anything (and haven't for years), and don't provide faculty service should be terminated for cause. It's that simple. Tenure was not intended to protect laziness. Typically these faculty members are senior and overcompensated through years of lockstep COLAs. Likely, you could hire two entry level profs for each senior faculty member's line. It is well past time for law school deans to get to work chopping the dead wood from the legal academic tree.
Faculty salaries are a large share of the typical law school budget. A good start is to cut lazy and unproductive faculty members. If tenured unproductive faculty are close to retirement, they should have the integrity to resign rather than wait to be terminated. Deans should document the grounds for termination and move on this issue.
The law schools already know who these faculty are. Their names get reported to the AALS for failing to have produced any scholarship. Assuming a half dozen of these dead wood faculty members earning in the high 100s (say, $170k), that is $1.02 million in salaries. Their teaching loads could be redistributed to existing faculty or entry-level teachers could be hired at far less.
Posted by: TS | Dec 12, 2012 1:10:11 AM
This may sound like deflecting blame by pointing it elsewhere but law school appears to many students as an antidote to the dumbed down nature of undergraduate education. I believe their claim that they are working much harder, thinking much more deeply in law school than they did as undergrads and, indeed, than they thought possible.
Posted by: Mike Zimmer | Dec 12, 2012 1:46:41 AM
Even worse than compounding lockstop COLAs are faculty that had a stint in as dean or similar position and, for reasons unknown to me, for the rest of their career enjoy compensation way out of line with even the rest of the senior faculty.
Before he finally took emeritus status two years ago, the 1980s dean of my alma mater was making $376,300 with a 2/1 teaching schedule and having last published in a scholarly publication in the mid 90s.
Posted by: brad | Dec 12, 2012 1:53:21 AM
I take my last law school exam tomorrow, and I attend an ABA certified school.
Here is what I have learned about law school, and the elements required to effectively run one:
1) You need 3, maybe 4 professors (my advice: try to pick three or four that don't just read off of their own power point slides).
2) you need a table, some chairs, and a room that is relatively free from distractions. A corner table at a Denny's would be fine, a checked out conference room at a library would be perfect.
3) a few (maybe 3) admin personel to collect money and deal with admissions and registrars issues.
4) That is it.
I have never seen anyone check a book out from the library, and so the ABA requirement that a school have a large one seems at best a relic from another time (and at worst absurd). Having a large physical plant, such as a faux-court room for the mock trial events that absolutely no one attends, or a campus bookstore (everything is cheaper on Amazon), or a law review (no one reads those things unless you are at maybe the top five or six reviews). Career services? Get rid of them, I have never seen them do anything, but if you are really not convinced about this, maybe hire one or two. 15 deans? I have never met any of them, although occassionaly I get annoying emails from them. Perhaps you feel that your students cannot survive without a cafe? Build/rent your school next to a Panera.
My point is simply that a lawschool is about the lectures, and that is it. If you want to make the cost of law school more reasonable (and presumably the price associated with legal services with it) pay some teachers cut out all of the nonsense, pay 5 teachers 75k a year, and charge 50 students 10k a year. I am unable to see how this system would have in anyway changed what I learned during the course of my almost concluded $120k education (during which I had classes with exactly 9 professors, 3 of whom I felt like respectably talented at their craft).
Posted by: anon | Dec 12, 2012 4:26:46 AM
Many schools have cut class size, which makes infinite sense, but then have sought to recoup the revenue in other ways that are even less desirable, such as increasing LLM programs. Most LLMs offer little market value, and the increasing trend of students trying to trade up on their JDs by attending fancier schools for an LLM can simply aggravate placement issues. But it strikes me as fundamentally irresponsible to cut back on JD programs while expanding LLMs. For schools that cannot afford to cut back their class size without cutting revenue (probably all of them), the options are pretty obvious but quickly run into entrenched interests -- it is hard to cut faculty, but there can certainly be efforts to buy out more senior faculty which can save lots of money and most University Administrations are supportive by providing funds to help with the buyouts. Many senior faculty might be offended by this but it is certainly a means of saving significant amounts of money, and it is also not so difficult to replace their courses with existing faculty by moving them out of low-enrollment courses, or allowing the senior faculty to be phased out with gradual decrease in courses over a couple of years. But it will be the rare senior faculty who is teaching something that is unique or hard to replace (if they are the only one teaching in an area chances are it is because it is an area that has faded in importance, again with some exceptions). The next most obvious place to cut is with the bloated Administrations, which most Law Deans added in the boom year presumably because some dean manual (AALS conference?) that suggested it was the best way of increasing their power or protecting themselves. At my law school, there are generally now two people doing what used to be done by one and I cannot tell any increase in quality, though there could be some, but my school has gotten smaller not bigger over time. In any event, again these are relatively easy cost savings but not so easy to do. But if schools are serious about moving forward they have to make these decisions and faculty need to be supportive. Increasing teaching loads will make a modest difference, I think, but could yield some cost savings -- one problem is that students can end up taking the same professor repeatedly, which is rarely a good thing. Schools need to operate more responsibly, which also requires faculty to act more responsibly, not always an easy thing to accomplish.
Posted by: MS | Dec 12, 2012 8:56:04 AM
Just to respond to Orin's question -- schools have a variety of different issues. Some schools have seen applications drop dramatically and are struggling to keep their incoming numbers relatively the same, which means dramatic cuts in class size. Others are relatively well off and may be looking to pick up some talented junior profs in a buyer's market; they aren't really feeling the market effects. In either situation, it can be difficult to argue: "You know, I think we need to do something about tuition." At many schools, tuition is set by the university (in consultation with graduate school administrations), and at other schools tuition is set by deans and/or boards -- not by faculty vote. So to bring it up, you have to swim against the stream. I agree -- these things need to be discussed. That's why I'm blogging about it. But I think you can see the difficulties in saying, "Let's cut our tuition further so we have to take on more students and can award fewer scholarships. It'll be nice to see our tuition cut rewarded with a precipitous drop in our U.S. News ranking."
So that is not to say faculties are not dealing with these issues. SLU asked Brian give what sounds like a similar presentation, and his talk provoked a lot of discussion and debate. But that's just the start of the discussion. I'm curious as to what happened at GWU -- you say Brian's talk was "very positively received." What does that mean?
Posted by: Matt Bodie | Dec 12, 2012 10:00:07 AM
At my school, faculty has no say in the budget. In fact, we aren't even allowed to see it, despite asking every year. Nor do we have any say in whether hiring takes place. Maybe that is unusual, I don't know.
As some above have said, I think the way forward is probably some combination of the following: 1) some weaker schools, particularly unaccredited ones will go under; 2) faculty will be asked to teach more; 3) normal attrition plus hiring freezes and retirements will shrink faculty size; and 4) class sizes will shrink slowly as faculty size shrinks.
This will principally result in fewer JDs granted every year, which is probably a good thing. I doubt it will result in any tuition decreases, although tuition may level off (i.e., stop increasing).
Anything more dramatic than that probably requires deep coordination amongst law schools, which seems unlikely to me unless imposed from the outside by the government or our accreditation bodies. For example, if the govt refused to guarantee student loans unless certain criteria were met, my impression is that almost all schools would have to change their operations to qualify for loans. Short of that, the risk to being the first mover is high enough that few schools will want to dramatically change their operations without some sort of guarantee that large numbers of others will follow suit.
Posted by: anon | Dec 12, 2012 11:40:16 AM
As a very new entrant into this profession, I feel strongly that there are a few missing dimensions in most characterizations of whether law school is a good value (including this post).
1) Are we talking about a top 5 school, a top 25 school, a top 100 school, or a TTT? The debate is hugely different in each of these. But presumably we're not talking about top 25 schools, but more like TTTs and/or schools near the bottom part of the top 100.
2) What are the alternative options, generally? Most law students are not pre-med, and so they're either looking at trying to find a (presumably white collar office) job in a weak employment market, go to business school, or go to some other form of graduate school. And in case you haven't been paying attention, job prospects aren't great right now if you're an MBA (unless you are at a top 5 school, maybe top 20 school), and they're even worse for most other post-graduate degree holders.
If we're gonna compare apples to apples, which we should, I would still argue that law school is at least a better value than the other post-graduate options, and given the job market, it's not a terrible choice overall. That is to say, if I'm looking at a 50th ranked law school, it may or may not make sense to take out the debt to do this, but OTOH, it probably makes a lot more sense than taking out the debt to go to a 50th ranked MBA program or a 50th ranked Sociology program. And it may make more sense than the likely employment options available in today's market to a candidate who can only get into the country's 50th ranked law school (and corresponding MBA/Sociology programs).
Posted by: Pre-Tenured Prawf | Dec 12, 2012 2:05:06 PM
I was inspired by this post and the comments—my favorite was the detailed account of how to do legal education on the cheap by an anonymous poster—to put up a post on my blog with a link to this one. Mine deals with the incentive problems that prevent law schools from changing in ways that would reduce the cost of legal education.
Posted by: David Friedman | Dec 12, 2012 3:07:49 PM
It is hardly a secret that I regard the pretentions of law professors with bemused contempt. In another thread on this site a prof raised the canard that law schools are competing with top law firms for professors - seriously, do many of you think the Dean really is worried that you might jump ship to Davis Polk or Cravath. Don't kid yourselves....
The elephant in the room is also illustrated by rhetorical questions like "the choice is between cutting class sizes and cutting tuition" found above. There is a choice? When there are 2 graduates for every legal job and lawyers median earnings are about 1/2 the cost of attendance for most law schools (and that is before one takes account of the bimodal salary distribution.) False premises are floated like simply cutting administrators. Yes that would cut costs, but not capacity. To lower the number of law graduates by half you have to cut the number of law school places by half - that means half as much teaching to do - and half as many professors even if teaching loads stay as they are. But the reality is teaching loads will have to go up, so that means even fewer law professors. But law professors are also overpaid - they make more than the median lawyer for a job with tenure and frankly pretty easy conditions - so realistically pay to law professors will fall in real terms too.
There are somewhere around 12,000 law schools in the United States. If half lost their jobs that would be 6,000 - not even a rounding error on the US unemployment rate, or for that matter a largish state's unemployment rate. One thing though - there is a reason that no one wants to bring up this subject among faculty - and it is not to do with throwing one's cards in with the critics. It is that many law professors know that a crash is coming- that they have installed themselves in an industry that pays them a ludicrously high paycheck for a pretty "cushy" number, but their employment prospects outside the academy are grim and their likely earnings a fraction of their present salary while the working conditions will be much much tougher and the job precarious, if they get hired. There may be a few that delude themselves - they show up on this forum, but not that many are stupid - oblivious and probably hopeless at legal practice, but not stupid.
So the problem in discussing this topic is for younger professors, those who could not take early retirement, it is simply pointing out that some time soon a river of shit is about to envelope them and for at least 1/2 there is not a lot they can do ... and who wants to talk about that...
Posted by: MacK | Dec 12, 2012 6:52:23 PM
I meant 12,000 law professors.
Posted by: MacK | Dec 12, 2012 6:53:07 PM
Pre-tenured prawf - first, run back to the profession if you still can. Second The only really objective way to look at the value of law school is what impact does it have on the potential lifetime earnings of a law graduate. I would argue for most law schools the answer today is between not much and none. To understand this issue it is necessary to recognise that even now most law schools are selective - they take for the most part college graduates who graduated in 4 years (less common than it used to be) had a fairly high class rank or GPA, a good personal history and who performed reasonably highly on an aptitude test - the LSAT. The higher ranked the law school the better the credentials of the incoming student, so while one might argue that a T14 graduate makes more money, and a T5 usually more still, their credentials on entry to law school were generally higher too.
The result is that law schools are taking as JD candidates a cohort of graduates who over their careers probably would have better than average employment prospects and over time substantially better than average career prospects and earnings. These are not for the most part median college graduates, they are substantially above the median graduates.
Thus the question becomes, will they as lawyers earn more (taking into account the cost of law school both in terms of tuition and lost earnings) than they would have made had they stayed in the workforce for the 3 years they spend in law school. So if the tuition and ancillary expenses (but not cost of living), plus 3 years earnings is more than any gain in life earnings law school had no net value - if the net earnings would be more, law school had value. So what law school should cost must be related to the net gain in lifetime earnings.
Note that this raises a problem for all law schools, even say HYS, because the high selectivity of the top schools means that their intake needs to do a lot better in terms of lifetime earnings to be ahead of where they would have been than say a student going to Cooley. I don't know what the answer is, but it would be a mistake to assume that a highly selective law school is worth more to its students than one much lower down the ladder.
My own sense of the situation is that for many graduates of law schools, and indeed most top 20 law school graduates of the last 10-15 years, they are no better off in terms of earnings than they would have been had they not gone to law school - and many are worse off.
To work this out it would be interesting to see data that correlates the criteria that form the selection factors for law school with earnings.
Posted by: MacK | Dec 12, 2012 6:55:08 PM
One of the often repeated details involving the recent downturn is the observation that (in Matt's words) "Law school applicants and LSAT takers are both down by double-digit percentages this fall." Just as a point of information, what is the most recent year, prior to 2012, in which the same number of people applied to law schools or took the LSAT? In other words, is it possible that the recent decline merely restores the number of applicants to a status quo ex ante that was itself quite sustainable? or is the decline so serious as to return us, say, to the application numbers of 20 or 30 years ago?
Posted by: Raffy | Dec 12, 2012 10:39:50 PM
I'm sorry, Matt, but I get the sense that this post, and others of yours recently on this subject, have been at least partly designed to get you publicly on the right side of commenters like "MacK," above, than to make a serious contribution to this debate. Across the board salary cuts are a terrible idea in nearly every conceivable application – save perhaps in schools that must close sooner rather than later anyway -- for the reasons Anons lists above, and others, and you know it. Schools must assess their need to adapt to smaller applicant pools and formulate solutions tailored to their specific conditions. Indeed, this is so obviously wrong as a general prescription that I -- and others, apparently -- wonder whether you're throwing it out just as a way to publicly rub gravel through your hair and insulate yourself from (further?) criticism. You're not alone -- Orin and Horwitz have turned to this kind of thing lately, too. It's particularly understandable (though still not commendable) on this blog in the light of the ridiculous practices of the lurkers from the Campos site who hang around here, wait for someone to post some well-meaning but to them offensive comment about law school/law jobs/teaching/whatever, and then verbally stone the poster to death in their cesspool of a comments section. But I worry that publicly flogging yourself -- and suggesting the public flogging of your colleagues -- is, while perhaps satisfying to the most irrationally angry people out there, ultimately counterproductive.
"Everyone should warm up to across-the-board salary cuts." I don't think you'd want to be the one who initiated this idea if a large number of schools unreflectively adopted it. It's not even a second-, third-, or fourth-best choice most places. It would crush faculty morale, crush institutional prestige, crush faculty-administration relations, and in the end crush the students. Current students would see no savings but a dramatic drop in their schools' prestige, curricular offerings, etc.; future students might realize some savings but they'll have shrunken, dispirited faculties. Cutting tuition is of course also dead wrong when we need to decrease demand for jobs. The fact that there's no real risk of anyone taking these kinds of suggestions seriously may make them costless for you to advance and thus perfect for this kind of garment-rending -- but, agian, I don't think your advancing them is costless to the larger community.
They cry "law professors are overpaid" (again, see above). And perhaps your real argument here is that there should be no adverse effects on morale, etc., because professors should all actively accept that charge and welcome a downward compensating adjustment. But we know that's vacuous; law professors are paid according to the market; there's no absolute criterion of propriety; and just because some folks are angry doesn't make their complaint a valid warrant for anything. (Consider, for example, MacK’s pseudo-economic gibberish above.) At best, they seem to be offering some kind of underdeveloped retributivist moral rationale. But of course there's been no showing of general culpability -- the few examples of intentional abuse are being dealt with, some others will probably be discovered in the near future and will be dealt with, but as for the rest of the academy that works hard to educate and guide students and make contributions to our collective understanding of law, society, and the world, there's simply no justification for punishment and certainly no reason to embrace self-flagellation.
You shouldn't be so quick to give in to the mob's demands for pelts -- it strengthens their belief that they're justified in calling for them and that they've made a sufficient case for inflicting the pain they demand. Still, no matter how many times they shout that law professors are worthless, or that they could get the equivalent education from a few online slideshows (one more time, above), they're wrong, and everyone with any sense knows it. Increasing the volume of shouted falsehoods does not make them true. But posts like this one wrongly suggest that such complaints have merit, clouding the real issues and driving other well-meaning participants away from the table on these issues. That, it seems to me, inflicts harm on everyone for very little benefit.
This debate needs serious people making serious efforts to come up with serious solutions. We’re educators—we work hard to help our students succeed, and now we’re facing conditions that call for us to work harder. If anything, faculty need more resources, not less, to succeed. The presumption should be that law professors bring unique expertise and skills to bear, and work hard for long hours, to earn their pay. Every one that I know does; that’s always been our presumption; and shouted oaths and anecdotes provide no reason to change it. To the extent that one needs a moral justification for one’s salary, that’s enough. This is not Congress – our job is to use our experience and expertise to devise real solutions that will help students and the profession—not to kowtow to the loudest of the disaffected. We need to do our best to ignore the sideshow or just give up the whole idea that we're educators, not manufacturers of widgets, and just let the students call all the shots.
Posted by: anon | Dec 13, 2012 12:22:42 PM
What if, as now seems likely, the class of 2011 (or 2012) was the nadir, with the highest debt loads and poorest employment prospects? Given the dwindling number of applicants, law schools are almost certainly going to continue to shrink class sizes while offering substantial scholarship dollars to high achievers. Obviously law schools do not deserve credit for this market correction - they are reacting to changes in the demand for law school seats caused by media coverage of the poor economic prospects of law graduates and hoping to preserve their standings in the law school hierarchy. But I find it odd that incremental change (e.g., more robust post tenure-review, less administrative waste, higher teaching loads for faculty that do not produce scholarship etc.,) has come to be viewed as somehow irresponsible, particularly when - poor employment prospects notwithstanding - most graduates are pleased with the actual quality of the education that they receive.
Posted by: Anons | Dec 13, 2012 2:32:06 PM
One serious problem with the current state of the discourse is that faculty tends to dismiss the opinions of anyone outside of the ivory tower. I agree that the "scamblog" movement has its share of crazies and ranters who are ready to jump down the throat of even their closest allies seemingly without provocation. That's to be expected, since the energy to sustain and grow any nascent movement comes from raw emotion. But to dismiss out of hand the comments of people from the Campos' blog or any other blog, when they represent the perspectives of real law students and lawyers who might have some valid contributions to the discourse, is doing a serious disservice and further isolating the academy from the profession.
I understand Anon's argument to be that a school cannot cut faculty salaries because it would decrease the prestige of the school and therefore lower job prospects. I've yet to see any evidence that employers consider the pedigree of professors, advanced curricular offerings, or number of programs in choosing which schools to hire from. Basic correlation =/= causation stuff here.
Take one of the many expensive private schools in the New York area, Touro, NYLS, Pace, Hofstra, or St. Johns. These schools charge Columbia and NYU prices but do not deliver Columbia and NYU job outcomes. These schools have diverse programs, well-credentialed, widely published, and highly paid professors, a wealth of course offerings, and are structured in the same way as the elite schools. But they do not place many of their students in biglaw, A3 clerkships, or fed gov jobs because people with Harvard or Stanford credentials do not attend They don’t attend those schools because those schools do not place well in elite jobs. Instead, if you are one of the 50% of so of students to get a full-time, long-term lawyer job, the likely salary will be about $40-60,000 per year and you will likely be practicing at certain kinds of firms or organizations. And right now it does not make much sense to take out 200K in debt to get a job paying 40-60K.
If what anon is saying is true, the distribution of entry level jobs would be correlated with price. However, the job prospects of a student at NYLS are more similar to the prospects of a student at CUNY (tuition: 12K per year) than one at Columbia or NYU.
Now if one of the above schools were to SIGNIFICANTLY slash tuition and class size, it would not change the profile of student attending because the employers hiring graduates out of those schools are not measuring law school prestige the same way faculty are. In fact, the school may attract better credentialed students because it offers a better debt to likely salary ratio than its peers- and right now students are extremely price sensitive about law school.
Posted by: BoredJD | Dec 13, 2012 2:55:24 PM
In reply to " Pre-Tenured Prawf | Dec 12, 2012 2:05:06 PM", who writes, "1) Are we talking about a top 5 school, a top 25 school, a top 100 school, or a TTT? The debate is hugely different in each of these. "
With respect, the debate is not hugely different outside of the top 9 or so.
The employment outcomes arguably not more than marginally different, and the debtloads are not very different at all.
Yes, the top 6-9 still have relatively good employment outcomes, even though these have fallen significantly (but in any event, I believe all were still greater than 85% professionally employed for the class of 2011).
But the overall average for all 201 schools was something on the order of 55% according to NALP. When you scan class of 2011 employment outcomes for schools in the top 100, they are (by and large) within spitting distance of 60% professionally employed.
Even in much of the 3rd tier, the employment outcomes are in the 50-60% range.
It's really only when you get to the really poor outcome schools like Cooley, Barry and Case* that you see the employment outcomes in the 30- and 40-percent ranges.
*Sorry-but-not-really-sorry, Dean Mitchell. Your employment outcome (46% professionally employed) does rank you with the Barry-type schools.
Posted by: Concerned_Citizen | Dec 13, 2012 6:12:41 PM
"I'm sorry, Matt, but I get the sense that this post, and others of yours recently on this subject, have been at least partly designed to get you publicly on the right side of commenters like "MacK," above, than to make a serious contribution to this debate. "
Rarely do I just stop cold and quit reading a comment, but if ever a comment deserved such treatment, it is this one.
What in God's name could the warm regard of anonymous internet posters like this Mack person (or me, for that matter) have to do with the motivations of real persons?
Posted by: Concerned_Citizen | Dec 13, 2012 6:18:22 PM
Anons... ..."What if, as now seems likely, the class of 2011 (or 2012) was the nadir, with the highest debt loads and poorest employment prospects? "
I'm willing to hope it might be the (or at least "a") nadir.
But on what do you base "as now seems likely"?
Posted by: Concerned_Citizen | Dec 13, 2012 6:22:07 PM
With respect to the pseudo mauling of my comments found at - anon | Dec 13, 2012 12:22:42 PM - one cannot help but be bemused at the level of delusional self regard that it takes for a law professor to conclude that his or her taking a cut in pay would be such a shocking event that it would "crush the students." To use a more technical legal expression - not shit! they'd weep for you...
Oddly enough I do actually thing that across the board pay cuts for faculty are a pointless idea, because under the present standard faculty tenure system, which is in most schools a binding contract between the law school and the tenured faculty it is extraordinarily hard to cut any individual professors pay - while layoffs are required to run non-tenured first, then junior (cheap) tenured up to senior (expensive) tenured. In 20+ years of pretty successful legal practice I have yet to see a situation where the highly paid senior employees, given a choice, took a pay cut before laying off the juniors. Now had the Pseud who posted above even a modicum of practice experience he could have made the easier case against faculty pay cuts - it cannot happen without the consent of senior professors who are most unlikely to agree to the sort of pay cuts that will save junior faculty jobs.
I don't particularly care to have Matt or anyone else here on my side - I am pretty confident that the facts will drive the economic outcomes. There are about twice as many law graduates as there are jobs for and the cost of law school is much too high as compared to the salaries most lawyers earn. Both capacity and cost will have to fall into line - and this means that as an industry law schools are going to undergo a painful forced restructuring. For law professors - that is going to hurt. But then there are about 12,000 full time law professors in the US - a cut of half is 6,000 job losses spread across the entire US. Frankly the job losses at issue will have less economic impact than the famous buggy whip makers of the early 1900s - except that law professors are probably a less sympathetic group.
Still, if I was to motivate any law professor to do anything, I would hope it would be that the younger profs, not ready for earlier retirement would start planning now for what is surely coming, at least to protect their families.
Posted by: MacK | Dec 13, 2012 6:57:25 PM
There have been many comments about how irate the recent graduates are. Perhapse a little understanding is needed to comprehend why. I've noticed comments about no jobs for graduates and burdenable tuition since about 2009. At that time, such comments were dismissed as whining and those making them were dismissed as entitled youth mad about not getting the 6-figure income they expected out of law school. The whole entire problem was framed as the greedy expectations of graduates instead of looking at the reality, which was a lot of people suffering from extreme unemployment in our field, while being burdened with unmanageable debt.
If the legal education profession had given these concerns the seriousness they deserved then, we would not be where we are today. Ignoring unemployment and encouraging young people to take on debt that the market indicates is unsustainable is not a healthy plan for the future of the profession. It is only because the crisis is now affecting the economic health of law professors and law schools that now the profession is starting to pay attention. How sad that it had to get to this point before people finally realized there was a problem.
The legal establishment could have seriously addressed such concerns then (in 2009) and perhaps made some needed changes, such as reducing runaway tuition, but instead, it chose to bury its head in the sand, hoping, as a commentator above seems to do, that these are just temporary bad times (ie: the "nadir" of the low salaries and unemployment) and that things will get better.
As for the comment from the poster above, who thinks that reducing salaries for professors will reduce prestige (gasp!) and be an overall bad proposition, this is an extreme example of sticking one's head in the sand. To him or her, I would simply point out that companies that are not meeting their expenses either shut down because they can no longer afford to stay in business, or they cut costs to ensure they stay in business. They have a choice. But to continue to do business as usual when operating costs have changed is deadly. To him or her, I say this: this is no longer a problem that only graduates face. Law schools will live or die depending upon how they handle this. Time to wake up and pull your head out of the stand and not keep insisting that we do business as usual, because it worked in the past. That ship has sailed. If you do not provide your graduates with a value that equals their investment, you school will not survive - presige or no prestige.
The law schools (and by extension, their professors) that win and survive this will be the ones that look for innovative ways to increase value for their grads while lowering costs. They will become the new leaders in the field and the others will be left lamenting the opportunities they lost. Whether we like it or not, law students are consumers and they will only pay for that which improves their future. As long as law school does not do this, it will continue to lose revenue from the very source its future depends upon: future students.
Posted by: M.M. | Dec 13, 2012 9:04:06 PM
As to not being able to fire senior profs without firing junior profs first, why don't the schools do what business and aerospace did? Fire ALL, make ALL reapply, and hire only those who they consider are worth the money. Overall, in aerospace a lot of skilled people were lost, but law is not rocket science.
Posted by: anon | Dec 14, 2012 1:38:27 PM
It is very difficult to lay off tenured faculty at any level (much easier to cut pay across the board), but as far as I can tell, the ironclad "tenure contract" MacK keeps talking about is mythical.
Posted by: Alice | Dec 14, 2012 3:36:01 PM
Alice - I never said it was ironclad - but very difficult. The reality is that in most instances going around the tenure rules would mean buying out a senior professors contract unless they were willing to change its terms. Since tenure is for life that is likely to be very expensive.
There is an alternative - most tenure contracts have an out for closing an academic department. This means that perversely the easiest way to cut law school costs is to close it. Info expect that some larger universities and colleges, faced with a law school that is transitioning from being a perennial "cash cow" to a perenial financial drain are likely to make a ruthless decision - this is what happened with dental schools a while back.
What I will say is that it is utterly moronic for so many supposedly legally qualified people such as the professors here to have a discussion about rationalising law school costs without reading the single most important document - the tenure agreement, contract or rules of their school. There is a reason why so many practicing lawyers regard law professors as mostly unemployable - no junior associate would get away with such a goof - almost every law prof here has just done it
Posted by: MacK | Dec 15, 2012 3:19:41 AM
MacK, I have never seen or heard of a law school "tenure contract," or heard of university rules with the terms you describe. Can you tell us where we can find these contracts?
Posted by: Orin Kerr | Dec 16, 2012 8:10:56 PM
That you say you don't know what I mean is a depressing indication of what qualifies someone to teach law. Had you a modicum of practical legal knowledge you would understand that the tenure rules of any college amount to a contractual commitment to the tenured - a "contract" however they are called which multiple courts including the US Supreme Court have held to amount to rights subject to due process protections. Tha is why in making your posting you have shown yourself to be well ....
Seriously - not only did you not score a gotcha. - you showed howling ignorance. Now go back and "think like a lawyer" ... Review a bunch of tenure policies, rules, guidelines etc. starting with the AALS and ask the basic question - how do they effect the ability of law schools to rationalise payroll costs.
As it happens I have read a few - and they present major difficulties because they require even in financial emergency - defined in various ways - that schools cut in a seniority sequence, adjunct, non-tenure, then alternative security (3-5 year terms) before tenure and even then on a LIFO basis (ask someone with practice experience what that acronym means) - a sequence that also runs from least expensive to mat expensive in practice. None that I have read offer across the board pay cuts as an alternative to job cuts. What this means in practice is that the tenure rules - the network of contracts that it represents - form the single biggest barrier to cutting law school costs. To overcome that barrier with pay cuts would require getting the most senior professors to agree that either they should take a low compensation early retirement or a substantial cut in pay - don't hold your breath while you wait for that to happen.
The practical result is that if a law department in a larger school looks like is will be a medium and long term net revenue drain the easy solution is to just close the law school. That was the choice colleges took by the way with dental schools. What this means in practice is that law schools that are less well regarded than there parent institutions must be seen as very vulnerable to closure.
That numerous law professors have posted on the issue of cutting law school costs without looking at the issue that constrains cutting salaries - the terms of tenure - is quite remarkable. It is the elephant in the room.
Posted by: MacK | Dec 17, 2012 6:15:20 PM
I'm typing this on an iPad late at night - I'm travelling. The core legal issue is that a tenured professor - and indeed a non tenured academic to a lesser degree - is not an employee at will. The tenure rules generally provide an expectation of continued lifetime employment and that has been held to be variously a property right and/or a contract. Financial exigency does permit rationalisation but case law has generally held there to be a very high bar for such exigency - near insolvency for the school. On top of tha the professor has the right to be considered for almost any reasonable alternate teaching job. The one big loophole is closing a department outright. The tenure rules of any school therefore have to be the starting point of any discussion of cutting costs.
Posted by: MacK | Dec 17, 2012 6:28:44 PM
MacK, your response is gibberish.
Posted by: Orin Kerr | Dec 17, 2012 6:32:50 PM
MacK, The UC during the budget crisis in 2008-10 was able to extract temporary (one-year) pay reductions from all faculty (tenured and junior) through a "furlough" program (except there were no reductions in job expectations and furlough days could not be taken on teaching days -- so it was in reality a pay cut). The pay cuts were made progressively higher based on salary (i.e., those who made more money had larger pay cuts). If your assessment of how tenure contracts work, how could UC get away with this without having a lawsuit filed against them by one of the thousands of faculty employed in the system?
Posted by: anonynon | Dec 17, 2012 7:36:37 PM
MacK, re your 6:28 comment, you seem to be confusing a contractual right not to be fired absent cause (which is the primary right provided by tenure) with a contractual right to never have your pay decreased (which tenure does not provide).
Posted by: Orin Kerr | Dec 17, 2012 8:25:05 PM
You may have forgot that in the UC system there were not jus lawsuits over pay cuts but senior faculty at least threatened one over lack of a pay increase.
Orin, in what way is pay not part of a contract of employment? I have had to deal professionally with pay cuts in the context of a right to continued employment ... A strong case can be made out that a substantial cut in pay amounts to termination and rehiring. Outside the US, in common law jurisdictions where such a right exists in general, it is known as "constructive dismissal"
Now you are with increasing desperation seeking to avoid seeing the elephant in the room - how do you reduce the biggest single cost in a law school, faculty compensation, in a tenure system. It is likely to prove extraordinarily difficult - for example - how do you apply post-tenure review to a professor who was not subject to such review when henornshe joined the faculty? Can you do that? Is a major cut in pay a constructive dismissal? How do you cut costs by reducing faculty when the prevailing LIFO rules mean that the most expensive senior faculty get cut last?
My reponse is something any practicing lawyer would understand - that you think it is gibberish says a lot about you ....
Posted by: MacK | Dec 18, 2012 1:29:50 AM
I think everyone is missing two key points a) any degree is subject to demand. If for whatever reason (job prospects in this case not the debt, any one would take on the debt if the jobs were there) people don't see as much value in the degree they will not be willing to buy it, and not long after you won't be able to pay your employees without make changes. b) law schools are just schools. They are not the law industry and they certainly can't create more legal jobs for their students. The schools job is to educate those who are wanting to be educated.
I like the idea of bare minimum schools though. That could be the next big thing. Just qualified professors that want to teach and students that want to learn. If most schools would stop caring about the U.S. News and just do their job of teaching to the best of their ability that would be step forward.
Posted by: Random viewer | Dec 18, 2012 1:46:00 AM
And Professor Kerr - a one minute search on the AAUP website leads to:
Karr v. Board of Trustees of Michigan State University, 119 Mich. App. 1, 325 N.W.2d 605 (Mich. Ct. App. 1982), the Michigan Court of Appeals held that a university could not furlough an assistant professor for 2 ½ days because the professor had a contract that specified his payment for the academic year, and the unpaid furlough therefore violated his contract by unilaterally reducing his salary for the year.
Salary reduction amounts to a breach of tenure.
hmmmm - profess much....
Posted by: MacK | Dec 18, 2012 1:54:49 AM
MacK's response wasnt gibberish to me. Tenure has a cost assocated with it, and it should be expected that anyone with that kind of job security should take a cut in pay for the benifit of that security.
Orin Kerr you said: "I have never seen or heard of a law school "tenure contract," or heard of university rules with the terms you describe. Can you tell us where we can find these contracts? "
Here is what Lewis and Clark Law School says about its tenured professors (You can read it yourself herehttp://www.lclark.edu/live/files/10303-faculty-handbook-section-1--5):
Tenure is the continuing right of a faculty member to hold his or her position without discriminatory reduction in salary, and not to suffer loss of such position except for the reasons and in the manner provided for in these principles.
A faculty member granted tenure has a right to be reemployed for succeeding academic years until he or she resigns, retires, is discharged for cause, or is terminated or laid off as a result of a bona fide reduction in force for formal discontinuance of a program or department of instruction, as provided in Section 3.14.4.
And here is what they can be dismissed for:
1. Seriously inadequate performance on the part of a faculty member in the discharge of his or her professional duties.
2. Physical or mental incapacity, provided the same renders the faculty member unfit to teach or to engage in scholarship; and further provided that reasonable accommodation without undue hardship to the College of Arts and Sciences, Law School, or Graduate School shall first be attempted.
3. Repeated or egregious dishonesty.
4. Repeated or egregious violation of criminal laws.
5. Repeated or egregious violation of duly adopted policies of the College or the school in which the faculty member is employed.
Posted by: obsid | Dec 18, 2012 2:25:41 AM
MacK, I like you: You call every one else utter morons while you make incoherent points, which is entertaining stuff. But, alas, the Karr case had nothing to do with tenure. It was just a standard breach of an employment contract for an untenured employee. The employer promised to pay the employee $17,839 for services for 1 year, and then decided to pay him less instead for those services. The state argued that it should be able to breach its clear written contract because it had a fiscal crisis; the court said that it had to pay the amount it had promised under general principles of contract law. That case has nothing to do with tenure -- the word doesn't even appear in the opinion. So your claim that the case shows that "salary reduction amounts to a breach of tenure" is silly.
Just to be clear, I share your concern about law school costs. I just get the sense you have no idea what you're talking about when you claim to understand the options that schools face in dealing with the issue.
Posted by: Orin Kerr | Dec 18, 2012 2:39:41 AM
(Obsid, no one disagrees that tenure rules mean that schools can't dismiss a tenured employee without cause. But MacK was claiming that tenure contracts prohibited lowering salaries, imposed LIFO rules, etc, -- which is incorrect, as far as I can tell.)
Posted by: Orin Kerr | Dec 18, 2012 3:00:19 AM
"Tenure is the continuing right of a faculty member to hold his or her position without discriminatory reduction in salary..."
They dont seem to define what discriminatory means, but an "accross the board" pay cut would probably not be discriminatory to me at least. I think its just meant to prevent someone from cutting the persons salary to 0 because they cant fire them. But still wish it was defined better.
"Before the administration issues notice to a faculty member of its intention to terminate an appointment because of financial exigency, the institution will take due account of considerations related to tenure and seniority within the constraints of programmatic need."
Now here it says it will take "due account of consiterations" not quite forcing it to do terminations in a FIFO, but definatly leaning that way.
Posted by: obsid | Dec 18, 2012 3:35:05 AM
*LIFO I mean, sorry
Posted by: obsid | Dec 18, 2012 3:36:13 AM
Thanks for the helpful comment, obsid. I agree that the word "discriminatory" in the Lewis & Clark policy is pretty vague: I googled the phrase and found some other policies with the same phrase, but none seemed to define the term. I also looked on Westlaw and found no caselaw construing it. I guess I see the language about "taking due account" as being even more vague, although at least it's in the ballpark.
Posted by: Orin Kerr | Dec 18, 2012 3:54:48 AM
Let's be clear here. It is moronic to suggest that the terms on which tenure is granted are not relevant to cutting law school costs. Orin Kerr - you seem to think that is not the case. ergo....
Whether the tenure rules of an institution are legally a contractual right or a property right is a matter of state law, but due process applies to taking tenure away.
There is ample case law that says that pay and its level is an integral part of any employment arrangement. Substantial pay cuts are therefore problematic in the context of a right to continued employment - they are difficult if not impossible to do.
Senior professors are paid more than junior professors which means that the very prevalent LIFO rules make faculty reduction tricky because it also means cutting less expensive before more expensive.
Not that many tenure agreements have any provision relating to cutting faculty pay while the meaning of a "discriminatory reduction in salary" is wide open to interpretation - such that it is not clear that an across the board pay cut can be made (and that also ignores the problem when the tenure policy is a broader whole-school policy, in which case can there be law faculty cuts without say medical?)
There is quite a bit of case law around what financial exigency means, most contradictory - except that the problem has to be very severe. There is also the whole issue of constructive dismissal - not to mention the recent issues around cutting summer research stipends.
Post-tenure review runs into a basic questions of law if the system was or is implemented after the professor subject to such review achieved tenure - you generally judge the legal rights as of the time the relationship was formed - post tenure review could be seen as a unilateral revision of the tenure contract. Similarly there would potentially be a problem with a major increase in teaching loads above that contemplates when the faculty member achieved tenure.
Last - Orin Kerr - the tenure rules of a college are not a very clear contract with the tenured faculty ... really ... are you sure? Are you allowed to teach contracts? Employment law?
So to reiterate my point - it is moronic that so many law professors - and as a special prize example Orin Kerr - can spend multiple threads and numerous posts discussing the question of how to cut law school costs, revise the economic model of law schools, increase teaching loads, cut faculty, etc., without considering the basic legal question, on a state by state and school by school basis, how does this work with the "tenure contract" - that is to say the legal rights established by the tenure system of that school in that state's laws.
So Orin Kerr - if you want to do some scholarship - how about that very topic? How much flexibility do law schools have to manage the cost of faculty especially tenured faculty as a practical matter. Because that is the first practical question that needs to be addressed whenever you talk about rationalising the 206 ABA accredited law schools and cutting costs at those schools - not what people might like to do in theory, but what they can do in reality.
Posted by: MacK | Dec 18, 2012 4:22:00 AM
Kerr - in the Karr case the professor was tenure track and the action was a furlough that amounted to a 10% salary reduction. Why do you think that the rights of a tenure track professor to claim that a substantial salary reduction amounts to a breach of their tenure terms would be different. The summary judgment decision rested on standard contract law and a similar contract could be made out based on the tenure rules of the school and a letter of appointment, letter of promotion, or any other letter specifying annual salary to a faculty member. I presume GW sent you a letter telling you what your salary would be after the last pay increase? Guess what...
By the way, I have never said it is impossible to cut faculty payroll costs - I have simply stated that it is likely to prove extraordinarily difficult. That factor, and the reality that cutting faculty pay may not be enough make a law school cash flow positive to the host institution is what may in many cases militate in favor of simply closing the law school. After all, the host school might take the law professors at their word - that law firms are panting to hire them at higher salaries than the law school - that they have taken a cut in pay to teach.
Posted by: MacK | Dec 18, 2012 4:49:20 AM
MacK. There may have been lawsuits in the UC case (though I heard about none at the time of the furloughs), but they didn't go anywhere. As for the threats by senior administrators about lawsuits over promised future retirement benefits (I assume that is what you were referring to) that was resolved by the UC President revoking those promises by changing the underlying policy. And there hasn't been a lawsuit related to that either. Just because a lawsuit is filed or threatened doesn't make it meritorious and doesn't mean that it will be a significant constraint on decisionmaking.
Posted by: anonynon | Dec 18, 2012 11:49:08 AM
But I do agree with MacK that the nature of academic contracts may lead units to close law schools rather than try to cut salaries, at least on the margins.
Posted by: anonynon | Dec 18, 2012 12:05:09 PM
MacK, I don't disagree that it is difficult for law schools to lower salaries. But I believe the main reason for that is structural rather than legal (outside of the current academic year, which will be covered by contract law). Law school deans require faculty support to keep their jobs. A Dean who lowers salary for future years when the faculty isn't convinced it is the right thing to do can face a vote of no confidence and may then be looking for a new job. As a result, the need for the Dean to retain the support of the faculty can greatly limit a Dean's options when looking for cost-cutting measures.
As for your arguments about "constructive dismissal," I assume you are trying to refer to constructive discharge as recognized in caselaw like Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) ("Under the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 838-839 (3d ed.1996). The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? See C. Weirich et al., 2002 Cumulative Supplement to Lindemann & Grossman 651-652, and n. 1 (collecting cases)").
As I understand this doctrine, the employee has to actually resign. After resigning, the employee can then argue that working conditions became so "unendurable" that a reasonable person would have felt "compelled" to resign. So if I understand you correctly, your argument is that schools can't lower salaries of tenured professor because the tenured professors will resign and then sue on the ground that their lowered salary made the job of tenured professor "unendurable," amounting to a constructive discharge in violation of the tenure rules -- and that a jury will agree. I guess I find that pretty unlikely. See, e.g., Baylor University v. Coley, 221 S.W.3d 599 (Tex. 2007).
Posted by: Orin Kerr | Dec 18, 2012 1:47:57 PM
Constructive dismissal is a different concept. Most prevalent outside the US (employment at will means in most US cases it does not apply (one of my professors described it EaW as "employment at whim" (better to fire someone on a whim than for a substantive motive)) it arises where an employee has a "right to continued employment," which is typical outside the US. In most common law jurisdictions it has been held that a negative change to a key condition of employment amounts to "constructive dismissal" which give rise to a cause of action as if the employee had been fired. Changes in pay, job title, diminuation in responsibilities, etc. have all been held to amount to constructive dismissal.
Constructive dismissal has been litigated in the the context of US university tenure. Most of the cases have been at the extreme - reducing pay to zero, not scheduling any classes, not assigning any graduate students, taking away a physical office, etc. and these actions have been held to be constructive dismissal. What has not been resolved - because the reported cases were extreme - was to what degree other than total any of these components can constitute constructive dismissal - Karr is probably the closest case to saying there is a limit to salary cuts before dismissal has essentially taken place. In constructive dismissal the employee does not have to resign, but simply show that fundamental aspects of the contract have been breached. I have read some suggestions that a more than in some states 10-15% pay cut amounts to constructive dismissal of tenured faculty - and that colleges have limited pay cuts to 10% in the past for that reason (in the UK, Ireland, etc. any pay cut other than trivial is potentially constructive dismissal.)
Law schools though are heading for a new world if and when they try to cut payroll costs. Outside of situations where the state legislature has cut payroll for state colleges (changing the law at the same time) law schools have not faced a situation before where widespread cuts in salaries have been potentially necessary, with the alternative being a cut in the number of FTEs - including tenured. I have had to deal with layoffs - where employees were split between employment at will and right-to-continued-employment. However, in most of the latter jurisdictions there are structured legal mechanisms to deal with the layoffs - these do not exist in the US. Rather you have a situation where every individual tenured professor (and some given one of the euphemistic alternative security arrangements (different schools use different names for 3-5 year contracts)) will probably be able to make out an individual employment claim based on tenure and their own dealings with the law school.
But individuals are a problem because not all will react the same way to layoffs. Some professors are employable by firms - not many, but a few. Others have grown children, reasonably flush 401Ks and IRAs and maybe could take early retirement. But most have mortgages, children in school or college, maybe alimony or child support, law school and college debt - a cut in pay could be very very tough. So you would see a lot of resistance to any pay cuts, especially across the board. The problem is that tenure provides a lot of legal weapons to resist with.
Any effort to try to rationalise a law schools costs will run into this issue - all the law professors will not dutifully say - sure cut my pay by 10-40% Some cannot deal with such a pay cut - they really cannot and pay their bills. Cost cutting by law schools is going to be very very tough.
And then there is the easy out - a college can cut costs by closing the law school. Orin - you teach at GW - a school which has been notorious for the ruthlessness with which it raided the law school for funds to support other programs - how much sympathy do you think there will be when the law school asks instead to be subsidised? What about Rutgers-Camden? Vanderbilt? Temple? How inclined do you think a parent institution will be to subsidise a law school with a lower reputation than that parent? There are 206 ABA accredited law schools with huge tuitions because many parent schools saw them as a cash cow that could be milked so hard that it now has mastitis - and like a good few dairy farmers that parent school will look at the law school and wonder, any more milk in the near future? And if the answer is none - it's hamburger time!
There is no other way to put this, start as any business lawyer would, look at the contracts - and ask, what can we do? what room is there to cut costs? Tenure is the big contract at issue - and it is a huge problem.
Posted by: MacK | Dec 18, 2012 5:24:56 PM
Posted by: anon | Dec 18, 2012 5:43:47 PM
It was the 36 highest paid, including a few law professors, who claimed that a 1999 promise grant them the right to have their pensions calculated on a salary of more than $245k once the IRS lifted the the $245,000 cap formed part of their contractual remuneration, not withstanding the dire financial straits of the UC system. Once was the dean of the UC Berkley law school.
They were pretty well shamed out of it - with a secondary threat of legislation by the state to cap the salaries subject to pension calculations - I think legislation was introduced in fact. But they did make the argument - and a good few law professors were among them, that the failure to raise the level was a breach of contract.
Posted by: MacK | Dec 18, 2012 5:46:49 PM
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Posted by: mariaschwartz | Jan 10, 2013 3:18:51 AM
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