Monday, March 20, 2017
The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII
Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:
1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.
2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.)
3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education.
I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.
4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same.
5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.
This new proposal similarly recapitulates the larger changes that have been written about and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.
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I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.
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