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Tuesday, January 03, 2017

The AALS Annual Meeting: A Partial Defense and Some Mild Reform Proposals--Part I: "Why Law Matters?!?"

The AALS annual meeting starts today in San Francisco. You can find a full program here. That makes it an ideal time to propose some changes or reforms to that meeting. I have several suggestions and will make them in several posts. The second suggestion, which will follow in a subsequent post today or tomorrow, is my personal favorite. But I start with both a general defense of the AALS annual meeting and a general critique of the tendency of the AALS to defend law schools, which I think moves it too close to a trade association or lobby (more on lobbies, of a different sort, in my next post) and too far away from what ought to be its role: that of a learned society.

I expand on this point at my usual painstaking and/or tedious length below. But I will summarize it here, both for tl;dr purposes and in case you're hurrying into a program meeting. The long and short of it is this: The AALS, as a learned society, should discuss and examine, but not defend or (possibly) take a position on the status quo in legal education. That job is outside its proper role. And it should certainly have avoided or rephrased its conference theme this year, "Why Law Matters." That is not really a question at all, and at best is not the right question. And it goes too far toward assuming the answer.

At the outset, to place this and the following posts in context, let me say that I am not generally hostile to the AALS and that I am generally inclined to defend it. I know that a large number of non-law-prof Internet commenters are ill-disposed to the AALS and its annual meeting. Those commenters may be unaware that a fair number of law professors are themselves hostile to the AALS, the annual meeting, or both. Other law profs are not opposed to the organization or its annual meeting but, for various reasons, make a point of skipping it every year. I am not attending this year, but it has to do with my own schedule, not with any judgment of the event itself, this year or in general.  My credentials for criticizing without scorning the AALS, and my general views on the organization and its annual meeting, are something like the following. I have attended the annual conference almost every year since I began law teaching. I have been the section head or co-head of at least two sections and served on section executives almost every year, and hope to continue doing so. I serve on an AALS Standing Committee, though I must confess, with sincere apologies and the usual pathetic nod to my various surgeries and so on, that I was a poor committee member this year. As with my involvement in individual sections, I hope to remain involved in the central organization itself. I come neither to praise the AALS nor to bury it.

Learned societies are common features of the academy and its individual disciplines, and should be. As I've written here before, I have doubts about the direction those societies are taking. Specifically, I am concerned about their increasing tendency to take explicitly political stands, justified by dubious arguments about the relationship between some academic discipline and political duty or change, or about the supposed insight that membership in some academic discipline gives one on various issues. I tend to believe that academics who share my doubts should not boycott their respective learned societies, but remain actively involved in them while opposing those tendencies. Similarly, those who question the value of a particular learned society ought to remain inside it and strive to make it better, rather than dismissing it altogether. As for the AALS annual meeting itself, I understand the arguments that the meeting is too varied and its section programs too weak, and that one is better off attending a subject-specific conference than a general gathering like this one. But I still find sufficient value in various section meetings, workshops, and so on, as well as the general value of participating in the overall affairs of legal education and its learned society, to justify attending. And I think the criticisms of the quality of the section programs, while not ungrounded, are exaggerated. In any event, if you think the programs are not good enough, you should stay involved and work to improve them. It's true that, in general, I'm not a joiner. But in this case, any criticisms or suggestions I offer here are of the "inside-the-tent" variety. I will also note respectfully that one of our perma-Prawfs, Dan Rodriguez, is a past president of the AALS. He did an excellent job of discharging his duties, and has been an effective defender of the AALS. He, better than I, can speak both to its virtues and to the challenges and tensions it faces and, perhaps, the difficulty of making some of the changes I suggest in this and subsequent posts.

Although I am happy to defend the AALS and its annual meeting in general, there are some changes I would love to see. In this first post, after the jump, I make a general point about the role of learned societies, which I apply specifically and critically to this year's questionable conference theme, "Why Law Matters."    

A) In addition to the general "purely academic vs. substantially political function" question confronted by many learned societies these days, these groups also face the question whether their job does or should involve what we might call a "trade association" role as well as that of a learned academic society. That's probably true of all learned societies. But it is especially true of the AALS, because ours is a learned society related to a regulated profession, and thus faces some distinct issues, as opposed to the questions that face, say, a learned society of historians or literature professors. Since 2008, especially, the AALS and/or individual executives seem often to be willing to talk about the state and fate of law schools, the value of going to law school relative to other professional choices prospective students might make, the value of a law degree, and so on. From my own perspective, and notwithstanding the reasonable arguments that individual speakers have made on these points, they have sometimes been too willing to cast themselves in the role of defenders of and advocates for law schools and legal education, rather than academicizing these questions and treating them as subjects for dispassionate and disinterested study.

I can understand the temptation to do so, and even how some might view it not as a temptation but as a duty. But I think it's a questionable course of action. I'm not sure it's consistent with the best traditions of a learned academic society, which ought to approach such questions academically. Whatever value there is in the study and teaching of law in general, as a learned academic society, the AALS must remain open to the conclusion that if plausible arguments can be made that a large number of schools ought to shut down, or that students could do better elsewhere and ought to be deterred from attending law school, or other conclusions that would be harmful to individual law schools or to the welfare of American legal education in general, then so be it. The job of the AALS should be to facilitate learned discussion within and about the academic profession of law, not to serve as a lobby or trade association for American law schools.

To this general point we might add that, whatever supposed expertise the AALS might bring to the kinds of issues that might occasion "trade association" work on behalf of law schools, it also faces some important institutional tensions and incentives that might influence its positions and answers. Suppose that the best answer to the general question of the future of law schools is that 30 or 40 percent of them should be shuttered, and/or that we need to focus on the survival of the best, most elite law schools and kill a great many of the lower-ranked law schools. I'm not arguing for that position here, especially the latter position. I don't tend to share it, although I think self-interest shouldn't affect our reaction to these options, and I certainly think a plausible argument can be made for reducing the number of law schools. As a matter of institutional political economy, however, it would be a difficult position for the AALS to take, even if it were the best answer produced by academic consideration of the question by the legal academic community. The AALS depends for its well-being on the membership of law schools in general, half of which are necessarily "lower-ranked" and many more than half of which are necessarily non-elite. All those schools are represented in the organization, and its leadership often includes deans and faculty from those lower-ranked schools. They are unlikely to champion such a position, and unlikely to support a learned society that does. It is certainly possible, in another discipline, to conclude from the inside (or the outside) that that discipline is over-producing members (or would-be members) and that it ought to get rid of many of its graduate programs: that, for instance, if history programs are turning out far more history Ph.D's than there are jobs for history professors, there ought to be fewer graduate programs in history. It ought to be open to our learned society to reach similar conclusions. But for reasons of institutional politics, that's a difficult or untenable position for the AALS to take.

Accordingly, in my view, if the AALS discusses such issues at all, it ought to treat those questions as subjects for truly academic discussion, and refuse to advocate for or take positions on law schools or legal education in general.    

B) That is a general criticism, but it has a more specific application to this year's AALS meeting theme: "Why Law Matters." In describing that theme, the conference program says, among other things, that "[w]e need to make the case now for why law matters and the academy’s role in advancing respect for and understanding of the rule of law." It adds that "[a] more intentional focus on why law matters can also help us to re-energize our teaching, research, and service, and inspire a new generation of students to dedicate their lives to the law." The program includes a symposium titled "Why the Decline of Law and Legal Education Matters (And What We Might Do About it?)," which includes the following description:

During the last decade law and legal institutions have confronted a loss of power and status vis a vis other social coordination mechanisms–in particular markets and technology. During this same period law schools have faced a perfect storm of underemployment for graduates, reduced tuition revenue, and declining subsidies from state governments. Has the legal academy’s focus on threats to law schools left us slow to react to the even greater challenges to the rule of law? What is being lost? Why did it happen? What can law schools do about it?

To my mind, the title of the general program theme, and some of its particulars, including that symposium description, are not ideal for a learned society. It's a little thing, perhaps, but there seems to me a big difference between asking legitimately and academically, "Does Law Matter?," without any pre-judgment of the answer to the question, and asserting positively that "Law Matters," and thus that the only remaining question to be answered is "Why" it does. There are, of course, all kinds of arguments that can be made for why law does matter, and they are arguably especially pertinent this year. But there are also relevant and plausible arguments that can be made for why law doesn't matter, why it doesn't matter much, or why it doesn't matter as much as some law professors, lawyers, or laypersons think. These should be framed as questions to be discussed openly, academically, and without concern for what those answers might mean for our own jobs.

And there are even more reasons why, even if law matters, it's far less clear that "the decline of law and legal education" "matters" for the well-being of law itself. Maybe "law" would suffer if there were fewer and better law schools--but maybe not; maybe it would benefit from the change. Law is not the sole province of lawyers. Perhaps it would benefit from having fewer (and fewer unhappy) lawyers or law students, and more civically educated and engaged engineers, small business owners, blue-collar workers, and others. We should at least be open to the possibility, instead of channeling the discussion in a direction that is likely to issue in more of the usual defenses of law, the legal profession, and especially legal education.  

"Why Law Matters," in my view, is neither the right question nor a question at all. It would have been better if the AALS, if it were going to select such a theme, had titled it differently, and organized the discussion accordingly. Something like "Why Does Law Matter?" or, even better, "Does Law Matter?" would have been a much more appropriate theme. It would also, I think, have a better chance of producing a more interesting discussion. 

Relevant, preferably non-overheated comments are welcome. More suggestions for changes or reforms to the AALS annual meeting will follow in three subsequent posts. 


Posted by Paul Horwitz on January 3, 2017 at 08:41 AM in Paul Horwitz | Permalink


Two thoughts:

(1) Does anyone know how annual themes are chosen? I have a vague impression that it's pretty much up to that year's AALS President. I note, for example, that the current AALS President has chosen the theme "Why Law Matters" as the theme of her Presidency: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2857214.

(2) It's also worth considering whether and how much annual themes matter. AALS annual themes tend to be very generic, and I'm not sure most attendees know what it is or even that the AALS has an annual theme.

Posted by: Orin Kerr | Jan 3, 2017 3:44:02 PM

I believe you're right about number 1. And I'm not unsympathetic to number 2. But it seems to me that the tendency to choose law-school-defensive themes ends up giving us more routine and less interesting themes, that a more independent and academically/intellectual approach to the choice of topic would give us better themes, and that better themes, and programs developed around them, would make them more "important."

The ideal, at least for me, would be for the AALS president, insensible to any public relations/perception considerations, to consider and ask what the most interesting question or theme he or she can come up with is, ask what the most interesting questions deriving from it might be, and plan accordingly. I don't know whether it would make the choice of annual theme more "important," but it might make it more fertile and less a matter of (or so it seems) hunting a theme that will produce the most useful headlines in the eventual law.com or National Law Journal coverage of the meeting.

I personally thought the institutional pluralism theme of John Garvey a few years back was pretty interesting, although I admit that it flatters my own scholarly interests and was not irrelevant to the concerns of the dean of a religiously affiliated law school.

Posted by: Paul Horwitz | Jan 4, 2017 8:57:02 AM

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