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Tuesday, January 10, 2017

The AALS is a Trade Association. There, I said it.

Paul Horwitz has a series of very thoughtful posts, each raising some important issues about the AALS and constructive suggestions for reforming the annual meeting.  There are some great ideas in here and as someone who has been (1) very involved in the work of the ass'n over many years, and (2) styles himself as a reformer of sorts (if only a "moderate" one), I find these criticisms and recommendations highly valuable, and some spot on.  Let's make the annual meeting great (again? once and for all?)

But let me tackle here an issue that undergirds at least a couple of these posts, as well as other AALS conversations in the past, and that is what exactly the association is.

It is an association of law schools, not an association of law professors.  Always has been.  Perhaps there is an important place in the academy for an organization of law professors (other academic professions have such associations), but that is not the mandate, the purpose, or the function of the AALS.  (No need to take my word for it; you can get the skinny from the charter up on the AALS website).  Prof. Mark Tushnet got us nicely riled up many years ago when he set out as the theme of his presidency, the idea of the AALS as a learned society.  Whatever power this had as a normative prescription, and as an exhortation to improve the academic programming of the annual meeting and other AALS conferences, it created a trap to which Paul and other distinguished law profs have fallen into, which is seeing the AALS as an entity whose primary purpose is providing professional development opportunities and good intellectual content for a hungry professoriat.  Worthy endeavors indeed (hence the great suggestions for improving the meeting), but AALS functions principally, and by design, to reflect and represent the interests of member law schools.  To be sure, it needs to be ever careful about ensuring that it effectively represents the interests of a very diverse group and, moreover, that its governance structures and institutions provide for adequate input so as to make it more likely that this trade association is advocating for causes and issues that are in the collective interest (as democratically determined) of its member law schools.  That all said, it ought not to shy away from its fundamental mission of advancing the interests of its member law schools.  (Where, of course, there are collective interests to be advanced and where the AALS has a comparative advantage in responsibly advancing them).

While the AALS surely ought to focus a good part of its attention and resources on providing meaningful opportunities for law professors to engage, to exchange scholarly and pedagogical ideas, and to develop mechanisms for improving the welfare of faculty members -- and in that sense Tushnet, Horwitz, et al, are quite right to push it hard to improve the meetings and meeting content -- we do our member law schools a disservice to evade and avoid squarely acknowledging its function as a trade association and an interest group.  The real question to me is how to develop a strategy so that, in its functioning on behalf of law schools, it is rigorously professional, data-driven, articulate, and not manifestly self-serving.  Therein lies the challenge; and a challenge built into the very purpose of the association.

Posted by Dan Rodriguez on January 10, 2017 at 01:02 PM in Life of Law Schools | Permalink

Comments

Dan, this is a very helpful post.

I wonder, though: If the AALS is a trade association for the schools, what is the purpose of the annual meeting? Why does the AALS have subject-matter sections that hold conferences and paper competitions, and are run by individual professors (not schools)? To bring up your last comment, if the AALS is a trade association for the law schools, why should it not be "manifestly self-serving"?

Posted by: Orin Kerr | Jan 10, 2017 2:36:50 PM

Orin, thanks and thanks for the good question. I think that AALS has its annual meeting as a service to law professors and, with it, as a service to member law schools. Law schools pay a significant fee to be part of the association -- noting that it is entirely voluntary, as the AALS has zero regulatory role with regard to professional access, etc. Bottom line is that this fee is warranted, if at all, insofar as AALS provides reasonably valuable services. To begin where I started my past, its role as a trade ass'n advocating for issues of collective value to our member schools is one such service (and, as I have urged the exec committee and have proclaimed publicly, I think AALS should be much more ambitious and active on that front). But there are other services. The faculty recruitment conference is one big service. Another is the annual meeting. And there are other prof development conferences throughout the year.

Is the AALS a monopoly with regard to these services? Certainly not. We know from the impressive work of SEALS that there can be competitors. Perhaps in the long run SEALS will essentially replace AALS and the annual meeting will wither away. (I don't see that as an immediate risk, having monitored attendance closely, but who knows what the future will bring). Or perhaps another competitor will emerge. Call it "The Learned Society of Law Professors." That society might learn from AALS's errors and develop a very different model and structure. I ask my friends who have the most serious concerns about the ass'n, either because it is insufficiently substantive, too lefty, too expensive, in the wrong cities, etc., etc., why this hasn't happened already and, further, whether there are efforts afoot to come up with a good competitor. I'd love to hear the schemes underway. (Not snarky, I seriously would. Perhaps an annual meeting 2.0 would be just what the doctor ordered).

Similarly, there could emerge a competitor faculty recruitment conference. I am frankly surprised that this hasn't happened already.

My own diagnosis? Law profs criticize the AALS annual meeting, and many of these criticisms are valid. I believe that many of these criticisms have been heeded and that the meeting has been substantively improved in recent years. Some of my friends certainly disagree. But what is more surprising to me is that the AALS has maintained such strong attendance and loyalty, warts and all, where there is clearly no monopoly power and a rather obvious opportunity for real experimentation (see, e.g., SEALS) by law profs who would and could create a learned society that meets the valuable measures sketched by Paul (and Rick Garnett and Stephen Bainbridge, and many other extremely thoughtful law profs) in their critiques of the current model.

Posted by: dan rodriguez | Jan 10, 2017 3:29:22 PM

Whoops, upon reflection I see that I didn't truly answer Orin's specific question. Let me have another bite at that 'ol apple. The democratic structure of content (sections, assembling panels, reviewing paper, etc) is, I would propose, a prudential choice by the association. What's the alternative? Well, either having the AALS bureaucracy (led, I should say explicitly, by the incredibly talented, accomplished, and hard-working director, Judy Areen) manage all the content or letting those who generally speak in a corporate sense for the law schools -- THE DEANS -- do it. Neither of these options seems desirable, either by way of optics or by way of creating an interesting program that law profs would find value in attending.

To be sure, there are important voices who criticize the organic body that makes up the content planning structure of AALS (speaking specifically here of sections) as being woefully deficient in ideological diversity and being, in any event, clubby and narrow. As PrawfsBlawg readers presumably know, I am quite sympathetic to these concerns. And I have tried to nudge the association in a more ecumenical direction. But I will say just this: If one supposes that the ideological slant of the association is the product of some Supreme Power in Washington DC that restricts diversity and restrains innovation in programming, I think that misses the mark. Section leadership, and, with it, the meeting programming bubbles up among our colleagues. Conspiracies underfoot, such as they are, emerge from choices made by individuals and clusters of faculty members not by a powerful executive body.
(I should note in this too-long post that I am speaking here only of the annual meeting. Other important issues about governance and position-taking within the executive committee and officers are beyond the scope of this).

Posted by: dan rodriguez | Jan 10, 2017 3:41:35 PM

Thanks very much, Dan, for both answers. Let me push back, though. I presently serve on the Executive Committee of the Criminal Justice Section of the AALS. I volunteer my time for that because I have always understood the AALS to be an organization of law professors. Serving on the Executive Committee is a service to the law professors' learned society, I have been told (and have believed). That is how the AALS presents itself to law professors, and that is what law professors, in my experience, think the AALS is. In the minds of law professors, at least, that is the role that justifies the role of the AALS and the very significant dues that law schools pay to the AALS.

Your very interesting post says that all of this is just a misunderstanding. The AALS is not an organization of law professors; it is actually just a trade association for law schools. But to be honest, this is the first I have ever heard anyone say that. Maybe I am just really dense, and I should have realized, after 16 years in legal academia, what the AALS's true role is. Alternatively, perhaps the AALS is not being direct with professors about what it is really is. Perhaps the AALS is trying to have it both ways: Perhaps it is trying to justify itself to professors as a learned society, while instead (or in addition) serving as a trade association for law schools.

I raise that possibility in part because I suspect most law professors see an important role for a learned society but aren't sure why law schools need (or even should have) a trade association. If the AALS is really a trade association, not a learned society, then I think the AALS has some work do to in explaining why law schools need it.

Posted by: Orin Kerr | Jan 10, 2017 8:29:24 PM

How hard is it to check the aals's website? On its "about" page it says that it is both a learned society and dedicated to "uphold and advance excellence in legal education" (i.e., a trade group).

Posted by: biff | Jan 10, 2017 10:54:26 PM

Well, yes, Orin, a misunderstanding. After all, it is in the title: Ass'n of American Law SCHOOLS. Can't be much more straightforward than that. And the bylaws make that point as well. So, not sure anyone can credibly quarrel with the idea that the AALS is an organization of law schools, not professors. That's, as we say in the biz, a point of fact, not opinion. Maybe also viewed as a learned society; not inconsistent with the central function.

In any event, your last point is certainly valid, that is, AALS must constantly engage the legal academy generally on the question of whether and to what extent its function as an interest group and advocacy organization is worthy and warranted. If it cannot do that, then there is absolutely nothing which warrants the payment of dues by law schools (note here again that the dues are paid by the law school, not by law profs). This is a larger issue and I would rather address it by a post rather than here in the comment section. I will do my best to get around to that soon.

Posted by: dan rodriguez | Jan 11, 2017 1:09:16 AM

Dan, it's not clear to me how the title of the AALS establishes as a *fact* that it is a trade association and not a learned society of law professors. But in any event, your comment that the AALS "maybe also viewed as a learned society" is the key, I think. Paul's original criticism was based on the belief that a trade association and a learned society would produce two very different events. If the AALS actually sees itself as fulfilling both roles at the same time, then there may be more of a tension between the two roles than first appears.

Posted by: Orin Kerr | Jan 11, 2017 1:46:34 AM

I look forward to Dan's post and thought I would just add a couple of thoughts to the mix. There is a trade association (actually I think several) for colleges, the Assoc. of American Colleges and Universities is one, and I don't think anyone would expect them to put on a broad scholarly conference. For colleges and universities, the conferences are typically discipline-specific (Amer Econ Assoc., MLA, etc.). We have some of those in law and I think it is less clear why we need the Annual General meeting, as there really aren't that many general topics of interest to all law professors these days. And then you have the problem of substance and quality. I know Dan and others (Mark Tushnet made a particular push) have sought to make the conference more scholarly but the bulk of panels remain a selection of friends talking about some topic related to a section without any expectation of preparation of a paper, or eventual publication of the paper. At something like the American Econ Assoc., you would still have some quality issues to be sure, but you would also find far more substance, including completed papers rather than "what I thought about on the plane coming out here" presentations. Then again, if you look at much of the legal scholarship that is published . . . well, one might conclude that much of it is of a similar nature.

Posted by: Mike Selmi (MLS) | Jan 11, 2017 8:15:01 AM

Isn't a trade association of employees almost necessarily adverse to the interests of the employees of those entities?

Consider the relationship between the United Auto Workers and the Automotive Industry Action Group. Yes, there are certain issues where they are aligned (mostly having to do with joint rent seeking) but you'd hardly expect to see rank and file auto workers volunteering their time to help run the latter organization.

I suppose one response would be that tenured law professors are better viewed as equity partners of their institutions than employees. But I don't think the AAUP, for example, takes anything like that position.

Posted by: brad | Jan 11, 2017 1:08:39 PM

Mike: Great question. Ultimately, of course, the annual meeting must meet a market test. Thus far, and to a remarkable degree in light of its many critics, the annual meeting attracts a very large number of law profs. Attendance has slipped in recent years, certainly in no small part due to the economic predicaments of law schools in this new normal, but I find its resilience striking all things considered. Yet, if it withers away as a result of growing doubt that an omnibus conference meets the needs and wants of law profs, then that's that. The AALS will still have, I think, an important role, that as an organization representing, and advocating for, the collective interests of U.S. law schools.
Brad: Forgive me, but I am not following the logic. Some trade groups find themselves, on a retail or wholesale basis, at odds with their "employees." The AAUP, of course, represents the interests of faculty members, and is a trade group on their behalf. By contrast, the Ass'n of American Universities, a trade group which represents 60 or so research universities in the U.S., www.aau.edu, certainly sees its role as advocating on behalf of its member universities and, therefore, ultimately for the welfare of students and faculty. Surely the AALS views its role likewise. Indeed, pushing law schools interests where they are systematically at odds with the interests of faculty (and, for that matter, students) is a recipe for disaster. So, I don't see the incongruity at all.

Posted by: dan rodriguez | Jan 12, 2017 12:24:15 AM

Returning to Orin's last comment above, I don't see the tension. The annual meeting is indeed designed to bring together faculty members in the common enterprise of presenting ideas, vetting new scholarship, pedagogical approaches, etc. And Paul shrewdly notes the critical role of networking. (Leave aside for now whether the annual meeting does a good or bad job at that task). The advocacy/organization mission of AALS, what Mark Tushnet, I, and others have fashioned as a (proud) mission as a trade ass'n, doesn't really bear on the content and structure of the annual meeting. Or else what am I missing?
The only plausible tension, I suppose, is the matter of the distribution of institutional resources. Can AALS plausibly put together, with its budget and in light of current challenges, (1) a good annual meeting, (2) a good recruitment conference, and (3) a well-constructed strategy for law school support and advocacy? That's a practical question, but there is no inherent tension among these three functions and objectives. My armchair observation is that for some reason I cannot easily fathom the insistence that the AALS is acting as a trade ass'n on behalf of law schools is touching some nerve among law profs who don't like the smell of this and want to insist and to believe that the organization is best viewed as a bureaucracy that more or less supports their efforts to get together to network and to present ideas -- that is, is a convenor of conferences. Law profs don't need the AALS for that! And, frankly, law profs seldom (ever?) pay for this opportunity out of their own pockets (hence Paul's very intriguing proposal in his post today about taking attendance and giving the dean a chance to evaluate whether the subsidy is worth it).

Posted by: dan rodriguez | Jan 12, 2017 12:33:41 AM

@dan rodriguez
Since we are all lawyers here, let me put it this way:
Could one attorney represent AAUP and AAU without getting a conflict waiver from both?

Posted by: brad | Jan 12, 2017 11:14:08 AM

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