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Monday, June 19, 2017

ABA accreditation regs: proposed adjunct rule rollback

The Council on Legal Education has out for public comment a significant proposed change to its regulation on the amount of teaching non-full-time faculty a law school can do.  Under current rules, there is a significant cap -- no more than one-third of all student contact hours (credits) -- on teaching by adjuncts.  This rule has been a longstanding thorn in the side of law schools which might otherwise increase the number of lawyers, judges, and other qualified professionals teaching their law students.

This regulatory rollback is an idea whose time has come.  The rollback would be a meaningful improvement in legal education.  This is so in three ways:

First, this revision is another step in what has been a salutary, and frankly rather unexpected, shift in focus on the part of the Council from input measures to a focus on outcomes.  The empirical basis for the idea that student learning is improved by a heavy-handed cap on the number of courses taught by part-time teachers is thin -- indeed, I am not aware of any law school-specific study that tests the claim that full-time residential faculty are superior to adjuncts upon criteria that matter to student learning and professional training.  By looking at outcomes (as does the other proposal before the Council this round, that dealing with bar passage), the ABA is looking at the right question -- what is the connection between teaching staff and educational outcomes?  To be sure, a career as a full-time residential faculty on the tenure track has given me confidence (perhaps, candidly, a bias) that students benefit from close quarters mentoring by legal educators who have made a professional investment in learning and improving our craft.  Moreover, I would expect that many, if not most, law schools would continue after this revision to staff their faculty with residential faculty (whether or not on the tenure-track) in order to create a learning community and to engage in serious legal scholarship with individuals who have the skills, inclination, incentives, and time to do exactly that.  However, law schools who look to the bench and bar to provide valuable courses, especially but not limited to experiential learning/skills-based education should be given that latitude. This is what a growing number of students say they want; this is what the profession is demanding.

Second, the issue of law school cost looms large.  Creating the space in which law schools can make economically sensible choices by allocating teaching credits to adjuncts whose professional circumstances allow them to teach for very little is a move in the direction of reducing the fixed costs of law schools and thereby passing the benefit onto students.  Notice that this rollback does not implicate the separate and difficult question of whether and to what extent law schools should hive off tenure-line faculty, replacing them with full-time residential faculty who come cheaper.  The capacious definition of full time residential faculty in 403 makes this issue orthogonal to the question of adjunct teaching; in other words, you can satisfy the existing 403 with tenure-track or non-tenure-track faculty.  But what an expansion of the adjunct curricular space does is to give law schools room to make an economic decision which is significant and potentially beneficial to students whose financial predicament is severe.  Once again, the shift from inputs to outputs portends a meaningful shift in the direction of law school efficiency.  Whether and to what extent this efficiency is purchased at the price of sound pedagogy is ultimately a question for the marketplace, that is, for the law schools who consider carefully this tradeoff.  

Finally, there are good reasons to believe that removing the mechanical shackles on adjunct teaching will encourage innovation.  In a world in which traditional lawyering bumps up against the dynamic shift toward more synergistic, de-siloid professional training, and in which lawyers will need and want to work at the intersection of law, business, and technology, it could make sense for an innovative law school to decide that professionals deeply embedded in this brave new world might have much to offer for their law students.  We should note the fine print in the 403 rollback:  The foundational first-year courses remain subject to the rule that full-time faculty provide the bulk of the instruction, this acknowledging (sensibly, in my view) that the curricular core should be taught by faculty members who are immersed in the serious study of law as a coherent discipline and will invest themselves in students' foundational learning.  What relaxing the adjunct rule does is to create potentially exciting opportunities for law schools to benefit in the second and (especially) the third year.  New courses in, say, law & technology, business planning, entrepreneurship, law firm organization, applied legal ethics, judicial decisionamking, etc.,  would likely profit from an experienced cadre of practicing lawyers, judges, and even folks outside the law altogether.  At the very least, wouldn't we want to see this as a natural experiment?

The ABA Council has heeded the call toward more innovation and, likewise, for revisiting command-and-control regulation.  This call should be applauded, here in the context of 403's adjunct rule rollback.

Posted by Dan Rodriguez on June 19, 2017 at 10:18 AM in Daniel Rodriguez, Life of Law Schools | Permalink

Comments

Dan, I am sympathetic to some of the aspirations here but this does not seem well thought through.

Is the main issue cost, or is it that the curriculum and the faculty are not sufficiently practice-oriented? This touches on both but doesn't seem to me that it will really address either.

On cost, let's be realistic: this would not appreciably improve affordability. (1) Even the schools most ambitious about change will take a decade or more to implement a substantial adjunct faculty, because of existing tenure commitments. (2) Across the university, in other departments, adjuncts, instructors, TA's, and other contingent faculty are common, yet tuition remains elevated. Why are law schools immune to whatever pressures are driving costs there?

Similarly, the notion that adding more practitioner-teachers beyond what is currently allowed would magically make students more practice-ready is simply untenable. (1) Doctrinal and clinical courses and externships already abound in law schools, in many fields. I took several when I was a law student (before the trend towards practice orientation), and many more were available. Same is true of where I am now. (2) Why do we assume practitioners as teachers are better at training practitioners? There's no evidence of that, and it runs against my experience: sometimes they were, sometimes they were not. What would help most is clinics, where students actually get hands-on experience, and those would not be addressed by this reform (and are expensive).

What is the goal here? What problem does this (actually) address? The proposal seems like a reflexive reaction, notwithstanding what I am sure was a laborious process to produce it. Meanwhile, if implemented, it would give a cudgel to central universities and state legislatures to harass faculties they dislike and reduce their numbers. See North Carolina.

Posted by: anon junior faculty | Jun 19, 2017 11:51:34 AM

Correction: Doctrinal and clinical courses and externships *taught by adjuncts and practitioners* already abound in law schools, in many fields.

Posted by: anon junior faculty | Jun 19, 2017 11:54:48 AM

Correction: Doctrinal and clinical courses and externships *taught by adjuncts and practitioners* already abound in law schools, in many fields.

Posted by: anon junior faculty | Jun 19, 2017 11:54:53 AM

All reasonable points, even if I reach different conclusions based upon my experience. Note that in the absence of any serious studies of full-time versus part-time instructors, all of us are basing our observations on anecdote and experience. Yet the ABA has had a longstanding mandate, thus limiting innovation and experimentation. Deregulation, to the extent it yields such experimentation, will provide a natural experiment. Let's see the results. Wouldn't you want to see how schools adapt when given the option to experiment?

As to your "cudgel" point, you need to look more closely at existing regs. They do not require any number of tenured faculty. The abuse you note (and I agree 100% that it is abuse)is as likely to hit at law schools who hire large #s of untenured contract faculty as those who hire many adjuncts, no? Moreover, law schools who make efforts, and are given the latitude to do so, to connect the academic enterprise with the practicing bench and bar would seem to be more protected against noxious external influences. Again, this would be a testable proposition in a world in which a mechanical mandate doesn't stand squarely in the way.

Posted by: dan rodriguez | Jun 19, 2017 12:02:19 PM

I don't think it's quite accurate to say that in the absence of studies of this question as applied to law schools, it's all mere conjecture. The responsible thing to do is look at relevant examples. Why has the availability and increasing prevalence of adjuncts and other contingent faculty at the undergraduate level not been accompanied by a reduction in tuition? Are we comfortable just saying "well, it would be even higher still if they didn't use them"? That seems lazy. More likely tuition is set by a market which includes things like loan limits and reductions in state allocations, and if undergraduate institutions had to use more tenure-stream faculty perhaps they would cut elsewhere rather than raise tuition above its already-high level. We don't really know, but we need an account for why it's so much higher there than it was a generation ago *despite* the explosion of contract faculty. After all, how else can we expect improvement in affordability at law schools to result from the growth of a contingent faculty when that change hasn't brought about affordability at the undergraduate level?

As I understand it, existing rules effectively limit the number of courses or students taught by contingent faculty rather than tenure-stream faculty. Indeed, relaxing this constraint seems to be the primary objective of the reform you're touting here. So I'm sincerely unsure I understand the point you're making at the top of the second paragraph of your comment. What am I missing?

I think the experimentation you desire - more practitioner-teachers - has been and is being tested and fits fine within the current system. Why not let a thousand flowers bloom is not, in itself, a compelling argument for policy change. There must be a goal and a reasonable path for the policy change to get us there. I can see we'll likely have to agree to disagree on the effect of this proposed change. As someone who practiced for several years pre-academia, I'm totally open to it. But I am not persuaded.

Posted by: anon junior faculty | Jun 19, 2017 3:58:03 PM

This proposed change is welcome and long overdue. The law school I attended was on a college campus. It benefited from adjuncts who dropped by to teach on football Saturday mornings. The law school where I've taught for the past 30 years is located in a major metropolitan area. A principal advantage of choosing to attend law school in such an environment is the exposure to adjunct faculty with recent and invaluable first-hand experience with the subject matter, for which there is no good substitute. Our students appreciate this opportunity.

Posted by: Alan Weinberger | Jun 19, 2017 8:34:43 PM

This proposed change is welcome and long overdue. The law school I attended was on a college campus. It benefited from adjuncts who dropped by to teach on football Saturday mornings. The law school where I've taught for the past 30 years is located in a major metropolitan area. A principal advantage of choosing to attend law school in such an environment is the exposure to adjunct faculty with recent and invaluable first-hand experience with the subject matter, for which there is no good substitute. Our students appreciate this opportunity.

Posted by: Alan Weinberger | Jun 19, 2017 8:34:48 PM

I wonder if it would be possible to craft a rule that would distinguish between the two types of adjuncts. On the one side we have the semi-retired career practitioner who teaches one class a year and enhances the school both in terms of adding a practical perspective as well as giving it a subject matter expertise its other professors don't have.

But then there's the other end which we see in undergraduate institutions (and the position I occupy), which are the people who are primarily teachers, but who are simply excluded from full-time and tenure-track work. You take the people who would have been junior tenure-track faculty, and then cut their pay by 70%, don't offer any benefits, gut any sort of professional development, and offer them practically nothing in terms of job security. Viola, more money for administrators (the savings definitely aren't passed on to the students).

A rule which allowed for the first type of adjunct while aggressively restricting or prohibiting the second type would be great.

Posted by: Derek Tokaz | Jun 20, 2017 10:28:43 AM


I am not sure one can craft a rule that distinguishes between these two settings, as it would be nearly impossible to assess school-by-school the measure of true governance & reasonable treatment (noting, also, that the ABA is forbidden, under its consent degree, to ask questions about compensation). In fact, I am quite confident you could not, and should not, draft such a rule. This is not what accreditation rules should be about, digging into the managerial decisions of law schools in order to advance the interests of groups of faculty members. (AALS and AAUP might serve that function, but that is a separate conversation.

Yet, your observation raises an interesting and important point, which is: How ought law schools treat categories of faculty members? I can tell you that at the two law schools where I have served as deans, I haven't looked to adjuncts to undertake full-time or nearly full-time teaching responsibilities at ridiculously low pay in order to hire and pay faculty members. Full-time teaching-intensive faculty make appropriate salaries + benefits, usually having continuing appointments, have opportunities & money for professional development, etc. They participate actively in the life of the law school, including governance, albeit with different roles, responsibilities, & rights as tenure-line faculty. By contrast, adjuncts are practicing lawyers or judges who work nearly for free and have neither the expectations or the desire to trade off their important full-time professional positions for more engagement in faculty governance, more money, and more responsibility.

So, are my experiences unusual or even unique? Honestly, I don't know, but I doubt that this is the case Your experience certainly suggests that there are universities (and presumably also law schools) which take the low road. But you and I would agree 100% with the notion that law schools serve their students and the profession well when they invest in their full-time residential faculty, whatever their exact status. While I don't share your enthusiasm for a regulation that would ensure this result (for all sorts of reasons), I share your view that incentive structures and external pressures should push law schools toward more reasonable accommodations and sensible faculty policies.

Posted by: dan rodriguez | Jun 20, 2017 10:54:37 AM


I am not sure one can craft a rule that distinguishes between these two settings, as it would be nearly impossible to assess school-by-school the measure of true governance & reasonable treatment (noting, also, that the ABA is forbidden, under its consent degree, to ask questions about compensation). In fact, I am quite confident you could not, and should not, draft such a rule. This is not what accreditation rules should be about, digging into the managerial decisions of law schools in order to advance the interests of groups of faculty members. (AALS and AAUP might serve that function, but that is a separate conversation.

Yet, your observation raises an interesting and important point, which is: How ought law schools treat categories of faculty members? I can tell you that at the two law schools where I have served as deans, I haven't looked to adjuncts to undertake full-time or nearly full-time teaching responsibilities at ridiculously low pay in order to hire and pay faculty members. Full-time teaching-intensive faculty make appropriate salaries + benefits, usually having continuing appointments, have opportunities & money for professional development, etc. They participate actively in the life of the law school, including governance, albeit with different roles, responsibilities, & rights as tenure-line faculty. By contrast, adjuncts are practicing lawyers or judges who work nearly for free and have neither the expectations or the desire to trade off their important full-time professional positions for more engagement in faculty governance, more money, and more responsibility.

So, are my experiences unusual or even unique? Honestly, I don't know, but I doubt that this is the case Your experience certainly suggests that there are universities (and presumably also law schools) which take the low road. But you and I would agree 100% with the notion that law schools serve their students and the profession well when they invest in their full-time residential faculty, whatever their exact status. While I don't share your enthusiasm for a regulation that would ensure this result (for all sorts of reasons), I share your view that incentive structures and external pressures should push law schools toward more reasonable accommodations and sensible faculty policies.

Posted by: dan rodriguez | Jun 20, 2017 10:54:41 AM

Dan,

I don't think your experiences are unusual, at least not for Tier 1 law schools. I'm not sure if the Tier 4 schools have started to engage in the kind of adjunct abuse undergraduate universities use. But, I'd suspect that it will eventually happen if the rules are lightened and economic pressure stays up.

The regulation I've supported at the university level is rather simple, and not even really university specific. It's that instead of having a minimum threshold hours before employers have to offer benefits, benefits would just be prorated for part-time employees (with perhaps a carve out for people already receiving full benefits at another job). This would remove a lot of the economic incentive to hire part-timers since two half-time employees would get the same benefits as a single full-time employee. It's an especially perverse problem for undergrad universities since those adjuncts are regularly adjuncts at multiple schools, so they're teaching full time, just not full time at any one place (and really, it's common to teach much more than full time to make up for the low pay and lack of benefits).

That's a very indirect approach though. I think something more direct could work, and it would be along the lines of Interpretations 402-1 and 402-2 which talk about how to define full-time faculty. The "AAA Adjunct" could be defined as someone who is working full-time (at a single other job) or who is retired from full-time work (and insert some definition for semi-retired after a full-time career). I think this would include all the adjuncts we want more of, while cutting out the recent grad working 3 part-time jobs just to pay the bills.

That of course doesn't get to your question of what accreditation rules ought to be about in the first place. I don't think they should be micromanaging law school administrations and definitely should open up more possibilities for experimentation. At the same time though, I think it's proper for the standards to try to guarantee some minimum educational quality, and I think 'professor bandwidth allocation' is maybe an acceptable proxy, and it's at least what the ABA seems to already be using.

Posted by: Derek Tokaz | Jun 20, 2017 11:36:41 AM

I concur with Derek in full. Alan, you say: "The law school I attended was on a college campus. It benefited from adjuncts who dropped by to teach on football Saturday mornings. The law school where I've taught for the past 30 years is located in a major metropolitan area. A principal advantage of choosing to attend law school in such an environment is the exposure to adjunct faculty with recent and invaluable first-hand experience with the subject matter, for which there is no good substitute. Our students appreciate this opportunity."

This makes complete sense to me as well. But it sounds like what you want is already common! Certainly that has been my experience - I took several classes with practitioners and learned a lot from them, and we have several in my current institution. It's not difficult to arrange under the current model. And I agree it should be encouraged.

What problem does this proposed reform solve? (and Dan and all, thank you for engaging!)

Posted by: anon junior faculty | Jun 20, 2017 11:52:40 AM

How much further than 1/3 do you see anyone taking this? The proverbial judges and hot lawyers are probably not appropriate for 1L classes or the handful of further required classes (depending on the school). Do you envision a school having virtually every other class taught by them?

Posted by: john | Jun 20, 2017 3:35:59 PM

John,
I don't envision such a result, nor do I think this result would be advisable. There is enormous value to a diversity of faculty members and, for reasons discussed here and elsewhere, value to having a stable group of full-time residential faculty doing much of the teaching and institutional service. However, under the ABA's proposed rollback, this would be a decision reached independently by any law school. I predict many schools would have adjuncts teaching more than 1/3 in the upper division, but now much more is hard to predict.

Posted by: dan rodriguez | Jun 20, 2017 7:22:21 PM

I wonder that if a law school were heavily run on adjuncts under the proposed ABA rule, whether you'll see what is happening now at the college level--with adjuncts and contingent faculty (understandably) fighting for more pay, more rights, and unionization, which really closes the gap between them and the full-time faculty in terms of cost and flexibility.

Posted by: Margaret Ryznar | Jun 20, 2017 8:36:59 PM

I wonder that if a law school were heavily run on adjuncts under the proposed ABA rule, whether you'll see what is happening now at the college level--with adjuncts and contingent faculty (understandably) fighting for more pay, more rights, and unionization, which really closes the gap between them and the full-time faculty in terms of cost and flexibility.

Posted by: Margaret Ryznar | Jun 20, 2017 8:37:02 PM

I wonder that if a law school were heavily run on adjuncts under the proposed ABA rule, whether you'll see what is happening now at the college level--with adjuncts and contingent faculty (understandably) fighting for more pay, more rights, and unionization, which really closes the gap between them and the full-time faculty in terms of cost and flexibility.

Posted by: Margaret Ryznar | Jun 20, 2017 8:37:04 PM

Margaret, have you really seen unionization efforts by adjuncts and contingent faculty closing the gap with the full time faculty? In my limited observations the best they are hoping for and accomplishing are a few more crumbs thrown their way.

Posted by: PaulB | Jun 20, 2017 9:33:23 PM

The adjunct unions -- or at least my adjunct union -- is a joke. And it's not even a funny joke. Per course we probably cost about half that of our full time counterparts.

Posted by: Derek Tokaz | Jun 20, 2017 11:39:55 PM

I had seen the NLRB active on adjuncts in recent years, and some adjunct strikes at nearby Illinois, and then I had run across this article recently:
https://www.universitybusiness.com/article/0916-adjunct

But, no, I don't think that the gap will ever fully close in terms of cost between adjuncts and full-time faculty. However, the size of the gap (and the prospect that it will decrease in the future at the continuing insistence of a large adjunct faculty) really makes me think twice about whether it makes sense to hire, on a large scale, people as adjuncts instead of full-time faculty in our future educational system.

Let's say the difference is now 50% of cost, as Derek points out. But, from the full-time faculty, you rightfully also expect service, research, and full-time commitment in addition to teaching. So, this price difference (and the likelihood of its decrease over future years) just doesn't seem big enough to justify moving toward a heavy-adjunct model, especially because the savings are not passed onto the students.

As a side note, I'm not sure why my posts are posting in triplicate!

Posted by: Margaret Ryznar | Jun 21, 2017 12:42:40 AM

@Dan
" I predict many schools would have adjuncts teaching more than 1/3 in the upper division, but now much more is hard to predict."

If we agree that adjuncts are generally inappropriate for 1L classes, doesn't the current rule already allow for 1/2 of upper level courses to be taught by adjuncts? How is such a generous limit a longstanding thorn in the side of law schools?

Posted by: john | Jun 21, 2017 7:44:19 AM

Margaret,

I have to doubt your assumption that the pay gap will close in any meaningful way. Our CBAs last for 2 years and our most recent got us a 4.3% increase. If that keeps up, we're more or less matching inflation, not bargaining for a better wage. And you have to take into account non-salary costs. We receive basically zero benefits. We also take up less office space as the norm is to have adjuncts time share their desk with a few others.

However, your second point raises a much more important question. Is the cheaper price justified considering the reduced return? I'm not sure what "service" ordinary professors are performing that's of meaningful value to the university, but maybe another commenter can fill us in.

As for research, it's true that we tend to do less but not entirely none (after all, most of us want to get out of adjunct purgatory and know that publishing is necessary); but, how much is the university harmed by producing fewer papers in middling journals which no one ever reads? I suspect the US News rankings won't take a hit from it. In fact, the better strategy for boosting a school's reputation may be to concentrate more resources in the superstar professors -- reduce their teaching burden, provide more sabbaticals and research stipends.

The loss in service and research certainly hasn't deterred undergraduate universities from hiring legions of adjuncts. I'm not sure law schools will behave much differently over the long run.

Posted by: Derek Tokaz | Jun 21, 2017 9:00:31 AM

We need to rely less on adjuncts not more, full time faculty do a much better job of educating students.

Posted by: LawProf | Jun 21, 2017 9:54:48 AM

Many good points above. I hate to harp on this, but:

What problem does this proposed reform solve?

It will not improve affordability. It is not needed to enable additional instruction by contingent faculty, who are already commonly engaged by law schools for the very reasons promoted here. What is the very best case scenario that comes out of this, even if it's unlikely? A few law schools cut tuition by 3% while increasing their offerings by experienced adjuncts?

Posted by: anon junior faculty | Jun 21, 2017 11:50:38 AM

Does anyone have a sense of whether this will go through? Am I right to assume it would tank the entry-level market in pretty rapid fashion? (And outside the selfish response, maybe it should be worrying to have an unbalanced faculty of the long-tenured plus adjuncts with few early-career scholars, assuming this is the likely result.)

Posted by: prof aspirant | Jun 21, 2017 3:47:53 PM

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