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Saturday, February 23, 2013

The Costs of Legal Scholarship

Over at the Faculty Lounge, Tamara Piety has some wonderful posts on the value of legal scholarship, here and here.  I won’t try to improve on what she has said.  But she has generated a lot of blowback in the comment section, some by other law profs and some by disgruntled law students and recent law grads.  Aside from questioning whether legal scholarship is as valuable as Tamara says, the main theme of the comments seems to focus not on the value of legal scholarship but on its costs.  Tamara has not yet endeavored to address that issue– which, of course, has not prevented some from attacking her for failing to address an issue she expressly said she wasn’t addressing! – so I thought I would broach the issue.

Many of the students and recent law grads who show hostility toward legal scholarship, both in the comments to Tamara’s posts and otherwise, have focused on the terrible job market for lawyers and the terrible debts that many now must bear.  I sympathize with those who were duped into investing heavily in a legal education for very little payoff.  I’m just not certain what that has to do with legal scholarship.  Their main quarrel is with those schools that have inflated their placement numbers to make law school seem like a better investment than it really is.  Indeed, it is that aspect of the quarrel that has blossomed into litigation.  But faculty have little or nothing to do with putting out placement statistics.  No matter how seriously a school takes faculty governance, such things are an administrative function, not a faculty function.

To the extent that the hostility is directed at the costs of legal education, I do not understand the argument that, at least below the more elite law schools, legal scholarship is a driver of costs.  Perhaps at more elite schools that have to attract high-quality scholars as lateral hires by bumping up salaries, the emphasis on scholarship is reflected in faculty pay and is therefore passed onto the student in the form of higher tuition.  (Perhaps not: what is the difference in tuition between an elite private school and a non-elite private school, or an elite state school and a non-elite state school?  I’m curious to know.)

But, then, putting to one side the elite schools – whose students still tend to come out okay on the job market – where is the evidence that legal scholarship drives up tuition?  I suppose one can point to the ABA requirements that law library collections be substantial enough to support faculty scholarship.  But has anyone actually looked at the numbers and concluded that those requirements – and, not, say, wasteful administrative practices largely hidden from view – are driving up costs?  My sense is that costs associated with faculty salaries and maintaining an adequate library are easy targets because they are visible.  As has been true across the university, administrative waste and abuse are likely far more responsible for spikes in law school tuition but are invisible to all but those who benefit from said waste and abuse – who, by the way, are also those responsible for putting out the placement numbers.

Finally, I try to imagine a world in which I didn’t produce any scholarship.  That would free up a lot of my time.  But what would I do with that time?  Would I use it to somehow help students get jobs?  No.  To the extent that I can help in that department, I am already doing all I can.  More jobs aren’t going to just materialize because I stop producing scholarship.  Would I interact with students more?  No.  I already work in my office with my door open for several hours on the days I teach and very few students come to see me as it is.  Would I give my students more graded assignments to provide more formative assessments?  YES!  And that is something we as a profession need to do more of in any event because I think it will improve the quality of legal education.  But how would that help students get jobs?  Again the jobs won’t just materialize because of changes we make to the curriculum and I doubt that anyone considering hiring a freshly minted lawyer cares much that the B+ she earned in my class came after multiple assessments or just a final exam.

Would I be required to take on more teaching, so that my faculty can become smaller and leaner, and tuition can go down?  Perhaps, and I think this is where the foes of scholarship have their best argument.  But the extent to which that is practicable is very limited.  At most non-elite schools, the teaching load is already 2-2.  My school has a very "bare bones" curriculum -- a lot of required and core courses, not too many electives and seminars, and the students tend to stick mainly with bar courses.  I'd hazard that most non-elite schools are similar.  I already teach three required courses, in the areas where I have expertise and can impart value to the students.  To stick me in front of a class where my expertise is limited to the fact that I took that same class 20 years ago (or not!), or had a case in practice that involved some discrete issues in that vast subject area, does not really add value to the students’ experience.  We’ve all had professors who didn’t know or care much about the subject matter.  Was that a good experience or a bad experience?

In addition, most of the professors I know at non-elite institutions are like me:  we went into academia because (1) we love teaching the few areas in which we have a real expertise and interest and (2) we love writing about them.  If I didn’t do scholarship and were weighted down teaching classes in which I have no interest, academia starts to look a lot like practice:  a 60-80 hour work week doing something I don’t particularly enjoy.  But there’s one big difference:  in practice, I can do things I don’t particularly enjoy for a lot more money.  Most law professors at non-elite schools make far below their market value.  The trade-off is that we do what we enjoy, set our own research agenda, and have flexible hours.  Take that away and being in academia is not worth it.  So, at least as far as the non-elite schools are concerned, faculty who can leave academia and get better pay will do so; those who can’t will put in as little effort as possible; and, perhaps most importantly, those schools will stop attracting faculty who go into academia as a choice and attract only those who do so because they can’t make it in practice.  As mediocrity of the faculty increases, of course, the salaries they demand should go down, which should lower tuition.  But that’s like saying that it’s cheaper to eat at McDonalds than at the Corner Bistro.

So those who are understandably upset that they heavily invested in legal education in a down market are swinging in a blind rage against faculty scholarship without really showing that it has anything to do with their upset.  From where I sit, their rage is better directed against law school administrators, those responsible for the lack of forthrightness regarding the job placement numbers.  And let's make them show us where the tuition dollars have gone.

Posted by Michael J.Z. Mannheimer on February 23, 2013 at 10:23 PM | Permalink


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That should be "And those that WOULD be turned away probably aren't the type..."

Posted by: Anonity | Feb 27, 2013 9:00:48 AM


1) As evidenced by the VAP thread, we really do not have the capacity for any more law professors right now. A hiring drawback or freeze would seem to be in the works for the foreseeable future. So no, I'm not too worried that we won't get qualified people since we don't need any.

2) I do believe that qualified candidates would still flock to the academy. They may be marginally less qualified that the current crop of legal eagles, but again, it's all about cost to the student. Nobody is talking about getting rid of tenure.

Perhaps law schools need a new method of evaluating candidates, instead of playing the same hiring game that the big law firms and the federal government and federal judges play. Perhaps there is a way to select people who will be good teachers or scholars and not demand high salaries, low teaching loads, and lots of perks in order to come away from private practice. You owe to it your students to investigate that possibility and not rest on the same justification that corporate CEOs use for their bloated compensation packages "well I'm just following the market".

3) We've tried what you've suggested. Giving professors higher salaries that the rest of the academy and low teaching loads does not seem to have resulted in much of a professional benefit to law students given the astronomical amount of debt they incur. As the person charging them tens or hundreds of thousands in debt, I think it's incumbent upon you to justify this with real data, and not simply assumptions that federal clerkship + good law firm is necessary to be an effective teacher.

Posted by: BoredJD | Feb 27, 2013 8:56:36 AM

A 4/4 load for $70K is a strawman. No one is seriously proposing that. The question is whether it makes sense to move from a 2-2 to a 3-2 or 3-3 for roughly the same salary. Alternatively, maybe some schools consider maintaining a 2-2 or 1-2 load, but reduce the starting salary scale to around $100K.

Either of those options would still attract a surplus of quality candidates in my view. And those that wouldn't be turned away probably aren't the type that should be applying for what should ultimately first and foremost be a teaching job.

Posted by: Anonity | Feb 27, 2013 8:50:11 AM


The point of my comment was that being a law professor is a desirable job right now, but if the job description changes dramatically, that may no longer be the case. Do you think those VAPs would still be on the market if the best they could hope for was a job with no security of employment, teaching 4/4, $70K, no resources for scholarship, etc? Or would they, as anon points out, look for a different job, such as at a public high school or working for Google?

Posted by: Nancy | Feb 27, 2013 1:31:18 AM

Those on that VAP thread should consider being an urban public high school teacher or teaching at an elite prep school - they would get paid more, get better benefits, and have no publication requirements for tenure. And, better yet, they wouldn't be a part of the pox on humanity that law schools apparently are.

(Tangent: Assume that law schools were completely honest re: employment statistics, tuition costs, etc. Would you consider unhappy students/alums to be at fault for their post-graduation employment problems? If not, explain why law schools should be charged with paternal duties beyond those of other societal entities.)

Posted by: anon | Feb 27, 2013 1:17:40 AM

Judging from the stories on the Faculty Lounge VAP Trap thread, it would appear that there is no shortage of well-qualified candidates who would jump at the chance to teach a heavy courseload for $70,000 a year.

Posted by: James Grimmelmann | Feb 27, 2013 1:04:11 AM


I won't get into personal details but I was lucky to have worked during a good period in the economy in Silicon Valley, both at firms and at companies.

Do you really think those former Order of the Coif students who leave practice will want to teach - if teaching becomes the grind that is being proposed on these comments? Big law firms are not the only option and I think the ones who are more entrepreneurial or who have more initiative will find something better to do than teach 4/4 at 70K, etc.

Posted by: Nancy | Feb 27, 2013 12:45:43 AM

I appreciate that legal scholarship has real value. But I don't believe that that scholarship justifies the immiseration of so many law students. And that, really and truly, is what is at stake. I don't expect a response here, but I'll put the question to you all the same: what have done to engage the problem? Something more than writing a strong recommendation. Have you urged the school to draw down its enrollment? Have you in some way protested the costly tuition? Have you spoken honestly and frankly with prospective students? Have you challenged questionable marketing tactics on the part of your school? I don't think you guys (and girls) are villains, and I won't hurl invective at you. But I do think it's a shame that you haven't felt driven to do more, because people are really struggling (but then again, people are always struggling, and what can I do?...)

Posted by: Somebody | Feb 27, 2013 12:40:03 AM

Has teaching at a law school been a pretty great gig in the modern era? Definitely.

Would it still be considered a great gig if the terms advocated by the "burn them at the stake" crowd were adopted (70k/year, 4/4 course loads, administrative burdens, etc.)? Not particularly.

(And, yes, the hyperbole is entirely intended)

Posted by: anon | Feb 26, 2013 10:47:45 PM

Nancy, I don't see a world where teaching jobs are filled by people with poor grades or poor interview skills, which happen to be criteria prized by both law firms and the academy. There are plenty of lawyers with great grades and great interview skills who will leave firms because they can't manage teams effectively, don't want to travel or have their schedule set by the whims of judges and inside counsel, find a lack of personal meaning in devoting their waking hours to problems they don't find interesting, or cannot market themselves effectively to clients and senior lawyers. None of those failings or choices, which are pretty important in the context of private practice, really bear on ultimate personal worth or whether the individual will make an effective teacher or scholar. I could go on, but the point is that the qualities that make for a successful practicing lawyer are different from those that make good teachers, and not unimportantly are different from what many professors think make for successful practicing lawyers. There are plenty of Order of the Coif graduates from T14 schools who leave AmLaw 250 practices every year, and many of those would be happy and productive teachers.

Posted by: Idealist | Feb 26, 2013 10:37:39 PM

Could you list, Nancy, some of those pretty wonderful jobs you allude to?

Posted by: David | Feb 26, 2013 10:12:54 PM

I agree with Mike's post. If the trade off is a job that starts to look a lot like practice but with less money and in many ways, more hassle (i.e. committee work and strange academic politics), then I do think you will see a different composition on the faculty. Unfortunately, I think the ones who leave will be the very ones that law schools in this market need to stay - i.e. the ones who could get jobs elsewhere and have skills, knowledge and experience to share with students. Scholarship makes this job interesting - and attracts to this job those who are intellectually curious and energetic (and aren't those qualities we want in our teachers?). I am highly suspicious of those who argue that scholarship detracts from teaching - in my experience, the best teachers have always been the most productive scholars. There are a range of legal jobs out there for which law professors are qualified - it's not just working in a law firm prison. Being a professor is a wonderful job - but that doesn't mean it's wonderful no matter what. There are some pretty wonderful legal jobs out there (and yes, I've had a couple). Competition for a law school teaching position is fierce and the candidates for these jobs are pretty amazing. As the nature of the job shifts, many who might pursue teaching will likely pursue other careers in the law or in other fields. Without tenure or the ability to produce scholarship, why would potential candidates invest prime working years in the academy, knowing that the longer they teach, the more unmarketable they become out there? At most schools then, faculties will be filled with those who can't find other jobs because they had poor grades or interview skills, or they are at the end of their working careers. I don't think that will benefit students or the legal profession....

Posted by: Nancy | Feb 26, 2013 9:38:29 PM

I think Prof. Kerr gets it just right on this thread: scholarship is absolutely necessary for courts to get it right, because practicing lawyers (so busy deriding scholarship, and unable/unwilling to keep up with it -- perhaps because doing so isn't billable?) are often too narrow in their outlooks and approaches to make or understand the best arguments. So clerks and judges have to step into the breach, and scholarship is useful for that purpose. But there is even more to it. Poets, Shelley wrote, are the "unacknowledged legislators of the world." The same sentiment, albeit to a lesser extent, applies to scholarship. By taking a broad view, and addressing problems that don't necessarily come up in day to day practice, or by synthesizing, or by offering critique, or by making philosophical or economic or historical interventions, scholarship tells us where were are, where we've been, and where we're headed. This seeps into people's heads and changes the playing field, however haltingly. It's great to be a person of action, I suppose, but it's smug to think that something not immediately useful is of no worth.

Posted by: Vladimir | Feb 26, 2013 12:05:46 PM


It's that attitude that is infuriating to so many students. Maybe you should try talking to some of them. Students take out hundreds of thousands of dollars in debt in order to support your salary and lifestyle and then have to listen to you heap disdain on one of the few career paths that can actually allow them to pay back that debt (and a career path that at all but the elite schools is out of reach except for the top students). Every time some blowhard at my law school took a crack at "big evil corporate law firms" I wanted to scream, considering we were in all likelihood sitting in a room with the name of some WASP founding partner on the door.

This is why people don't like law professors. They want to have it both ways. They're a non-profit city on a hill up until they raise tuition by 5% in a crappy economy and tell students "well, just drop out if you don't like it." And we've all heard the justification for paying high salaries "well, we have to attract quality talent in the marketplace."

The transparency lawsuits have made this very clear. Law schools are businesses and they want your money.

Posted by: BoredJD | Feb 26, 2013 9:38:41 AM


I don't think anyone expects an increase in teaching loads to lead to an immediate, significant decrease in faculty size. However, over the course of 5-10 years, schools would be able to forgo replacing many retiring or otherwise departing professors, eventually resulting in at a smaller faculty. Some schools could also opt to buy out willing senior faculty.

Posted by: Anonity | Feb 26, 2013 7:31:22 AM

"more villainous than corporate lawyers "

As teachers, we are obliged to distill our knowledge and a sense of professionalism to all of our students, even those who (gasp) will go on to become "corporate lawyers." That this commenter, an apparent law professor, holds his corporate-oriented students and graduates in such disdain is a sad indictment of our profession, and an unfortunate vindication of the anti-academic crowd.

There are many legitimate complaints about the growing disjunction between academics and practice. But many complaints, including some on this thread, are far overblown. (Mr. Mannheimer's unquestioned contribution to the development of the law provides a nice rebuttal.) However, comments slamming our own graduates and wide swaths of legal profession do nothing to serve the academics' cause.

It would serve the academy well if we respected lawyers' work, whether our graduates go on to serve poor clients, rich clients, small clients, big clients, government clients, or private clients. I'm ashamed to be a member of a group that calls the persons we graduate "villains," with apparently no other justification other than the fact that our students go on to represent an entity rather than an individual.

This type of nonsense lends truth to the critics' argument that we are interested in training only future law professors, not people who might actually have to represent clients and therefore become "corporate lawyer villains" in our eyes. No wonder the efforts to help our students find jobs are allegedly lacking.

Posted by: andy | Feb 26, 2013 3:27:52 AM

Isn't the notion that law schools can save money by adopting higher teaching loads is premised upon the separate notion that schools can lay off professors without great cost? Tenure makes that difficult, if not impossible (and didn't Brian say tenure had economic value that does not, itself, increase tuition?). Yes, that leaves untenured faculty for laying off, but they cost a fraction of what tenured faculty do and tend to teach the largest and most popular classes. Any cost savings from higher teaching loads is, therefore, dubious. Besides, if all of this is being done in the name of moral responsibility, it seems like going after faculty members who were not, themselves, around for the tuition spike would fail to reach the high ground.

That law professors are now thought of as more villainous than corporate lawyers would be laughable if it weren't so terrifying to me, my wife, and my children.

Posted by: \Prof | Feb 25, 2013 11:29:50 PM


You wrote: "This is particularly true at the federal appellate level, I think. Appellate clerks quickly learn that the lawyers often are surprisingly unable to find the best cases for their side and to make the arguments for their clients effectively."

It's actually even more so at the district court level. It's bad enough at the Third Circuit, that's true, but I found the lawyering worse in the SDNY -- which is supposed to be a high quality district -- at least regarding the briefing of motions. I imagine the U.S. Attorney's office does a good job, but we had so few criminal cases that I rarely saw their work. The big firms also did a good job, as one would imagine, but, again, they represented a very small proportion of the work. The quality typically ranged from the adequate (mid-sized firms and Corporation Counsel, the folks who represent NYC) to the less-than-adequate (NY AG) to the abyssmal (most small firms and solos). And we saw many of the same legal issues on MTDs and SJs that make it up to the appeals court. So, yeah, reading some scholarship was essential just to figure out what the hell the lawyers were trying to say. But we often didn't cite it.

Posted by: Michael J.Z. Mannheimer | Feb 25, 2013 8:42:44 PM

VAP Wannabe-

I believe that rankings and faculty costs drive real tuition amounts but that faculty members are likely to overestimate how much naked pursuit of the rankings drives costs.

Very few law schools are worth even 32K per year. That's still over 150K of debt when you factor in a conservative COL estimate of $15K per year, fees, accrued interest, and tuition increases. Remember that starting salaries are likely to be in the 40-50K range for those students with jobs, with a significant portion of the class unemployed or working part-time for very low wages. A "real" tuition of 32K is an increase over inflation (HLS tuition in 1981 in 2011 dollars was 15K and I'm sure it was much lower at a non-elite school). That increase must come from somewhere, and there have been many good suggestions already in the comments.

Remember that schools were also giving out scholarships back in the 70s and 80s. Did they give as much money as a percentage of tuition as today? Was it more egalitarian or need-based? I don't know, but the amount was certainly >0.

A few schools seemed to have already stopped trying to game the rankings (see http://i.imgur.com/j0kWE.png). While applicants fell last year, a few schools maintained or increased class size and took the drop in their entering credentials. What those schools have not done, however, is decreased tuition. If what you're saying is correct, the tuition decreases should follow because throwing off USNWR would allow schools to lower price and compete for cost-conscious applicants. However, if looked at as the need to maintain revenues in order to keep faculty and administrators happy, bowing out of the USNWR game but not decreasing tuition makes sense, because then all you need to do is find bodies to sign on the dotted line and fill the seats.

So my question still stands: could you design a law school with a reasonable number of students (let's say 200 per class) that charges 12.5K per year, and still allows the faculty time for scholarship (assuming the ABA Accreditation standards were no impediment)? I use that figure because that is the price point at which I would recommend a student attend most American law schools outside of the top 14.

Posted by: BoredJD | Feb 25, 2013 11:00:57 AM

BoredJD - I understand that the biggest driver of the published cost of law school is playing the rankings game, not scholarship.

Where I teach, we have a published rate (approx. $50k/yr) and a discount rate (approx. 32%) so that we yield, on average, much closer to $32k/yr/student. However, very few people pay $32k/yr. Instead, some students pay almost nothing and other students pay full freight.

Why? Because some students are willing to pay $50k/year to go to a school that is ~30 spots higher on the US News rankings than a school that would offer them a discount. These students subsidize the students paying very little that have better LSAT/GPA numbers.

In short, if we ALL collectively could agree to stop gaming the rankings, most students attending my law school might be able to pay $32k per year and we'd end up with similar LSAT/GPA numbers for the incoming classes. Students with our target numbers that are currently accepting scholarships at lower ranked schools might come to my school instead. But we'd also lose students with numbers above our target to schools higher up the food chain than us.

Posted by: VAP wannabe | Feb 25, 2013 9:52:30 AM

"Rich and comfy" eh? Well dybbuk I am rich compared to most people in America I guess (but I don't make anywhere near $200 M). And I would say pretty "comfy" although I live in a 1 bedroom rental and drive an 11 year old car and have still not paid off my student loans and won't until I am 70 I think. But perhaps I am not typical. But you sure do live up to your name --"malicious spirit" indeed. I have this sneaking suspicion that "dybbuk" is a sock puppet for a law professor somewhere. But save your vitriol. I do care about my students and if you want to test that you could ask the various students over the years for whom I've written letters of recommendation, counseled, worked with. Am I universally loved? Doubt it. Did I go into this with the thought that it was at least as honorable a use of my law degree as practicing law? Yes.

Posted by: Tamara Piety | Feb 25, 2013 8:25:40 AM

Leave the guy alone. He's a smart guy with good credentials, and he's got ample experience in briefing and arguing criminal appeals. I will say that I don't know of any criminal appeals specialists at big firms or making significant money on their own, but that doesn't mean there's not money to be made there.

Posted by: Anono | Feb 25, 2013 7:41:58 AM

As one of the commentors I assume you're referring to in FL thread, I'll throw in my two cents.

Faculty salaries are obviously not the only scholarship related costs. Prof. Tamahana has mentioned many. Administrative bloat is a related factor too, as it allows professors to push career counseling, admissions, alumni relations, and school governance off to administrators, leaving more time for scholarships. Not to mention the pecuniary and psychological benefits of the tenure system.

I'll repeat, as I did in the FL thread, that I've read and used scholarship at work without citing it. I also happen to work an extremely atypical legal job where my employer does not care about research costs. That is an important distinction. Nobody denies that scholarship has some value. The question of whether it is worth the amount of debt students are going into to subsidize it is another matter. Of course it is difficult to make such a straightforward analysis because the students are not paying for the scholarship, they are subsidizing it in order to get something else. A diner owner who asks whether they should pay for recliners in place of counter stools does not consider the "benefit" to the furniture store.

If you have access to your school's budget (or can get access), go through it and ask yourself how the school could run on $10K or 15K per year in tuition (assume all ABA standards were met). And really ask yourself if student employment outcomes would change, or you would be unable to attract students- students who are increasingly cost-conscious even at elite schools.

If law school cost 10K or 15K per year and the professors did nothing but write articles all day, I personally would not care. But I think you would, because a law school with that revenue structure would look dramatically different from the law schools today. So maybe I'm not the one misapprehending the issues. Maybe what you're arguing for is not the value of scholarship, but for the value of a law school model that allows you to produce scholarship of a certain amount and "quality".

Posted by: BoredJD | Feb 25, 2013 1:14:17 AM


Your comment brings up another related issue: How much is the work of practicing lawyers helpful to the development of the law? Lawyers identify and brief issues, of course, and some judges largely work off of the briefs. But the better judges don't, as it's relatively rare, at least outside the U.S. Supreme Court, for practicing lawyers to identify all of the best cases for their side. A good judge (or law clerk) has to use the parties' briefs as a starting point for research into the issue but not assume that the parties found the best sources to support their positions. In part, that's where scholarship comes in. Law clerks and judges need to do the research on their own, and academic articles can be helpful to them in understanding the issues that the lawyers failed to articulate well or the major cases that the practicing lawyers failed to find. This is particularly true at the federal appellate level, I think. Appellate clerks quickly learn that the lawyers often are surprisingly unable to find the best cases for their side and to make the arguments for their clients effectively.

Posted by: Orin Kerr | Feb 25, 2013 12:46:24 AM

dybbuk, I like a lot of what you write, but you should know that Douglas Richmond has written dozens of law review articles that have been collectively cited by dozens of courts, has first chaired many dozens of trials and appeals, and is regularly relied upon in his field by hundreds of lawyers nationwide. He was elected to ABOTA, FDCC, and other organizations that honor only the best of practicing lawyers. He may possibly be the single most widely known "lawyer's lawyer" in the country.

Posted by: anon | Feb 25, 2013 12:34:37 AM

Scott - The link you provided to the discussion of Richard Neumann's estimate that it costs $100,000 to produce an article really doesn't really support the assertion that this is a reliable figure. The author simply assumes it for purposes of argument. I am not sure anyone has proven (at least to my satisfaction) that this is a valud number. As another commentor here noted, the basic load was 2/2 10 years before tuitions exploded and well before the economy crashed in 2008 taking legal jobs with it. With all due respect to , who I admire, that calculation sounds a little like a back of an envelope calculation, not necessarily a real number. And with due respect to Brian, an average load of 11 credit hours does not = a 2/1 load as a norm. Three 3 credit courses = 9 + a 2 credit seminar = 11. That is 4 courses. Just in the last couple of weeks this question circulated on the Associate Deans list serve and the overwhelming response was 2/2. Now that wasn't necessarily a random or representative sample, but it is suggestive. We would need to know the standard deviation here and want to see where these lower loads are distributed. In any event, the idea that a large portion of the tuition burden is represented by law professors producing scholarship just seems to me to be difficult to prove...at best and at worst risible. Indeed, as far as I can tell, the main way in which a portion of law professors post tenure can be said to be falling down in their responsibilities as set out in their job descriptions is by failing to publish. If one of the things you are expected to do in your job is publish and you don't do it, there seems to be good grounds for saying you are not fulfilling all of your responsibilities to your colleagues and your students. But the casual assumption that a lowering of costs or reduction in faculty will result in lowered tuition is I think also unfounded, at least in the near term. I have taught an overload for years because I also teach as an adjunct at OSU's program in forensic science administration. And I include interim graded assessments and written assignments and I have been a litigator doing a fair range of cases. And I have published. The bottom line here is that law professors are easy targets because so much of what they do (even when they are doing it well) is fairly hidden from view and has no immediate market value; plus, they are relatively powerless to influence almost any part of the system which is currently the source of so much pain. Does law school cost too much relative to the current job opportunites? Yes. Did the faculty create this state of affairs, mostly no. Are there some things they can do better as a group ? Surely, yes. Will most of those things have the effect of lowering tuition or creating jobs? No. This is a problem that exists to some degree or anothet across almost every sector of higher ed. I will never be able to convince anyone otherwise who is determined to see most professors as acting in bad faith that they are not, that they care deeply about teaching and their students. And I fail to see how law teaching is more morally compromising than a host of other jobs in the legal profession - doing mortgage foreclosures? Representing BP? But I do think that those professors who do believe they are scamming their students, that they have nothing of value to offer, that they are committing a fraud -- well perhaps they should quit. At least scienter is established.

Posted by: Tamara Piety | Feb 25, 2013 12:28:47 AM

Prof. Kerr,

I definitely agree with you about citation without influence, though I did not want to be so ungracious as to say so. In writing a brief, an appellate lawyer will often throw in a cite in a chain citation to a law review article if the article seems to support some point he or she is making in the argument. Doesn't mean that the article has helped us formulate the argument, nor does it mean that we have read more than two sentences out of the heavily footnoted 100 page masterpiece. And these cites to law review articles may find their way into the court's order or opinion.

I appreciate that you accept that citations are at least a modestly accurate proxy for influence. Maybe not perfect, but if a law professor wants to assert that his or her article has influenced the development of the law, though it has never been cited, I think that the burden of proof is on him or her.

Posted by: dybbuk | Feb 25, 2013 12:27:36 AM

dybbuk: " I appreciate that you do not assert, as Richmond does, that citation counts do not matter on the imaginary grounds that uncited (in fact, unread) articles are influencing the development of law. He should talk to a few practicing lawyers or appellate clerks and be instructed otherwise."

I disagree. In my experience, citation is only a modestly accurate proxy for influence. First, there is often influence without citation. I've been an appellate clerk at both the federal circuit and Supreme Court level, and I can think of several examples of academic articles that were influential but not cited. I'm also familiar with judges telling professors that their work was helpful in deciding a past case even though the opinion did not happen to cite the professor's work. The flip side is true, too: Often there is citation without influence. A lot of opinions are written by law clerks, and law clerks are often former law review editors and may have academic aspirations themselves. As a result, some law clerks have a tendency to add in citations to professors whose work they like or professors they had in law school even though the article had no actual influence on their decision.

As for the Chief Justice's practices, he has been known to cite a law review article or two. See, e.g., Miller v. Alabama, -- U.S. -- (2012) (Roberts, C.J.) (citing Alschuler, The Changing Purposes of Criminal Punishment, 70 U. Chi. L. Rev. 1, 1–13 (2003)); Filarsky v. Delia, 132 S. Ct. 1657, 1663 (2012) (Roberts, C.J.) (citing Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 Duke L.J. 561, 598–599, n. 121, 619.); Beard v. Kindler, 130 S. Ct. 612, 618 (2009) (Roberts, C.J.) (citing Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L.Rev. 1128, 1140 (1986)); Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009) (Roberts, C.J.) (citing Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L.Rev. 1710 (2004)); Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 62 (2009) (Roberts, C.J.) (citing Garrett, Claiming Innocence, 92 Minn. L. Rev 1629, 1719 (2008)); Sanchez-Llamas v. Oregon, 548 U.S. 331, 344 (2006) (Roberts, C.J.) (citing Bradley, Mapp Goes Abroad, 52 Case W. Res. L.Rev. 375, 399–400 (2001)).

Posted by: Orin Kerr | Feb 24, 2013 11:49:43 PM

"What I do not accept, at least not without some further persuasion, is that increasing the teaching load will not have a detrimental effect on the educational experience that offsets the reduction in cost."

One of the virtues of the market approach is that it doesn't matter what any one of us is persuaded by. That's why I'd recommend that the critics bypass the ABA and the law schools and instead educate the market with accurate statistics. Don't get sidetracked. If and when the market demands something different from legal education, we'll get that.

Posted by: John Steele | Feb 24, 2013 10:55:59 PM

There is an assumption in the analysis that the current system, with its level of cost that leaves students in a bad place, does not also drive away potential good professors. Call me naive and idealistic, but I bet there are some people who have decided in recent years not to seek employment in US law schools because it would trouble them to take home six figures from an economic model that leaves many consumers of the product damaged for life. There was a time when teaching and writing about issues of import as opposed to, say, zealously serving criminals or polluters, represented the moral high ground, and that was an attraction for some. You would have to be catatonic to fail to see that today there are troubling moral issues arising from choosing to participate in a system that leaves many of its consumers much worse off than when they started. Some good candidates with other options might decide that while someone might need to staff the professoriate, it doesn't need to be them. That doesn't make all people who choose to teach bad people, because they aren't, just as many criminal defense lawyers are wonderful human beings, but it is meant to suggest that you might not want to assume that perpetuating light loads and high costs is the clear path to attracting the best people.

Posted by: Idealist | Feb 24, 2013 10:27:42 PM


Two exceptions to your "rule" in the same thread, and just for me! Either I should feel very special, or your "rule" is exceedingly leaky.

I congratulate you on your handful of cites--without irony even, it is evidence of an impact on the profession. Law review articles are notable for how rarely they are cited by courts or read by practitioners. I appreciate that you do not assert, as Richmond does, that citation counts do not matter on the imaginary grounds that uncited (in fact, unread) articles are influencing the development of law. He should talk to a few practicing lawyers or appellate clerks and be instructed otherwise. Why, he can even talk to the Chief Justice of the U.S. Supreme Court.

Of course, neither your occasional cite nor your, uh, teaching does much good to the students whose misplaced trust and future misery has made you so rich and comfy. It doesn't matter whether you teach two classes or three per semester. A school with a 35% bar-required job placement rate ought not exist.

Posted by: dybbuk | Feb 24, 2013 10:27:41 PM


I'll need to again make an exception to my general rule to thank you for bringing to my attention the 2013 cite, which I had not seen. Perhaps you made a strategic mistake in using me as an example of someone whose contribution to the profession has been negligible when a state court of last resort relied upon my work -- not just cited it, but relied upon it -- FIVE DAYS AGO.

And I've been cited more than twice. Keep looking.

Posted by: Michael J.Z. Mannheimer | Feb 24, 2013 9:55:46 PM


I'll grant you that we are generally a happy bunch (law professors, not lawyers). I'll also grant you that a 2-3 or 3-3 teaching load is doable, and that our forebears did have such teaching loads.

What I do not accept, at least not without some further persuasion, is that increasing the teaching load will not have a detrimental effect on the educational experience that offsets the reduction in cost. After all, lowering the cost for any product typically also lowers its quality. I know that a couple of generations ago, law professors, at least at the non-elite schools, taught more. The question is whether they taught WELL. I'm skeptical. My sense, from talking with more senior colleagues at my school, is that the teaching at that time was of the broad-but-shallow variety. Somewhere along the way, the school picked up on the notion that narrow-but-deep was better: better to get your students to think deep thoughts about the law, dig out those easy-to-overlook and hard-to-resolve issues from the crevices of the law than to give students an encyclopedic and oversimplified overview. Hence the reduction in teaching loads went hand-in-hand with the emphasis on scholarship, since both gave the faculty member the ability to develop that narrow-but-deep expertise. Put to one side whether scholarship generally improves that narrow-but-deep kind of teaching -- I know it does from personal experience but my post isn't about the value of scholarship but its cost. The concern I expressed in my post is that an increase in teaching loads to reduce costs would result in a return to a broad-but-shallow approach to legal pedagogy, at least where faculty are required to teach beyond their areas of expertise. So, yes, costs will go down, but so will quality. Or do you think that legal education was better, or even as good, at non-elite schools fifty years ago before teaching loads were reduced? My presumption is typically that the world gets wiser as it gets older. So I would need some persuading before I can conclude that the non-elite schools of the 1950s and 60s had the formula right.

Posted by: Michael J.Z. Mannheimer | Feb 24, 2013 9:43:14 PM

Having struck out on the market from a Tier 2 VAP, I have been applying to a lot of other jobs, including jobs at business schools. I was asked if I'd be willing to teach 4/4 for $50k. It makes 3/3 at a law prof salary look quite appealing.

Posted by: VAP wannabe | Feb 24, 2013 9:12:26 PM

The latest survey I found pegged the average load a bit above 11 credit hours for law schools outside the top 30--so Anon is correct that at many schools the load is 2-1.

Any current law professors who think that increasing our teaching load will produce a flight back to practice (or a decline in the quality of teaching applicants) should take a few moments to read this thread from Faculty Lounge, with many sobering (indeed sad) comments from VAPs who struck out on the market:


This is a much needed reality check for law profs who have forgotten how fortunate we are and fail to realize how many talented and well qualified people there are who would happily switch places with us in an instant (undoubtedly even with a 3-3 teaching load).

Posted by: Brian Tamanaha | Feb 24, 2013 4:44:58 PM

The underlying assumption expressed by Brian and others that faculty at non-elite law schools currently generally teach a 2-2 load is not correct.

Even if we define "elite" broadly as the top 40 or so best-resourced, most prestigious, and/or most expensive law schools, many schools below the top 40 have moved to a 2-1 load in the past 5-10 years. Not as many schools as faculty members fighting to keep the 2-1 load would like to believe, but still: at many non-elite schools, the current load isn't even 2-2, it's 2-1. This basically comes down to money: The most prestigious and/or most expensive schools have the greatest financial resources, and their greater financial resources enable them to have larger faculties. Having larger faculties allows them to offer the same curriculum with lower teaching loads per faculty member. At less well-resourced schools, significantly reducing costs requires smaller faculties, which requires the existing faculty to teach more. Accordingly, in the current environment, I'd expect that many of these schools will go back to 2-2.

The point is: we're still along way off from 3-3, even if that were desirable. I'm not expressing an opinion on that, merely correcting the assumption that the current load at non-elite schools is invariably 2-2. Unless we're talking about schools outside the top 100 or so: then I would agree that the current load is generally 2-2.

Posted by: anon | Feb 24, 2013 3:53:05 PM

I could be wrong, but I think comparing law professor class loads/numbers to other disciplines may be disingenuous to the extent that most of us must teach without a teaching assistant, meaning without someone to help us with larger classes and grading all of those wonderful assignments in addition to exams. As an undergrad TA, I know that I did a significant amount of grading. I think it would be easier to teach larger classes or more classes if there were TAs to help. Maybe not dispositive to the debate, but an important point.

Posted by: Jasmine Abdel-khalik | Feb 24, 2013 3:25:03 PM

The argument is not that "legal scholarship is a driver of costs" or "drives up tuition." The argument is that it is a major cost factor, and if the goal is to bring costs down, then the amount of resources allocated to scholarship must be reduced. This also applies, of course, to administrative costs, which must also come down. It's not either/or--faculty or administration or library--but all must come down if the price of legal education is to be reduced.

A 3-3 load (compared to a 2-2 load) would substantially reduce faculty costs by reducing the number of professors. There is no question about this. A generation or two ago (up through the 1960s), it was common for professors to teach 15-16 credits and a range of subjects across the curriculum.

There are additional scholarship related expenditures common today that were non-existent or limited before: summer research grants (previously uncommon), paid research leaves (most schools did not provide this), funding for research assistants, book budgets, sponsoring conferences and faculty workshops, faculty travel to conferences, funding for multiple journals, and a few other items. This all adds up to a tidy sum (ask your dean).

I'm not saying we should eliminate all this (lest I once again be accused of being an "anti-scholarship"), but merely itemizing this to show that far more money goes into scholarship than your post appreciates. Another way to see the expenditure on scholarship is to look at output: the multiplication of journals at individual law schools (and in the aggregate), and the sheer volume of articles published, compared to past generations.

Your suggestion that we would be unhappy teaching drones if we all went back up to 3-3 loads--and that many law professors would prefer legal practice to this--strikes me as implausible for several reasons, not the least of which is that many law professors I know have zero desire to practice law.

Teaching 8 hours a week, while not easy, would still leave lots of time for writing (I once did a tenure review for an undergrad philosophy professor who had a 4-4 teaching load yet still managed to write a book and far more articles than many law professors at that stage).

What beats practice hands down, furthermore, is our freedom to manage our time as we please (outside the 6 or more hours per week that we must be in the classroom), with no boss and no client and no billing requirement.

Sure, a corporate lawyer makes more, and in some cases a lot more, but I doubt many law professors would trade our working circumstances for 2,000 plus annual billable hours merely because we were made to teach one more class a semester. Corporate practice is tough work, which does not let up for partners. Every year many corporate lawyers sign up for the AALS recruiting conference, and I find it hard to imagine that this would stop if teaching candidates were told that they must teach 3 classes a semester.

Positions outside of corporate law do not pay as well, of course, and most law professors earn more than most lawyers outside of corporate law (full professors earn in the upper quartile of salaried lawyers according to the latest BLS numbers). So your assertion that lots of professors would leave if made to teach one more course because they could make more money is not supported by the salary data for lawyers.

And I haven't even mentioned tenure, which has substantial economic value to us, not to mention piece of mind.

Any way you look at it, it seems to me, being a law professor is a dream job (indeed privileged), and would still be enviable if we taught 3 classes a semester instead of 2 and if there was a reduction in resources allocated to scholarship.

Of course you are correct that these changes would lead some people to turn away from a career as a law professor. But so what? That is an acceptable trade-off for lowering costs. And surely enough talented and committed people will remain to fill law faculties.

Posted by: Brian Tamanaha | Feb 24, 2013 3:19:35 PM

Scholarship does not necessarily have to be cited by a court to be valuable from a practical standpoint. For example, courts may be influenced by articles that they never cite, and some scholarship advances ideas that ultimately influence courts even if the original articles themselves are not credited. So, whether Prof. Mannheimer has been cited once, twice, or never says nothing about the value of his scholarship either now or somewhere in the future. At the same time, it seems obvious from looking at other disciplines that law professors could teach heavier loads than they do now and still have time for scholarship. In theory, smaller faculties should lead to lower tuition costs. And it is no answer to say that taking that approach would be undesirable because it would force professors to teach outside their specialties or might drive some back into practice. First, all sorts of faculty members teach first year courses based on generalized legal knowledge rather than practice-based expertise and so so quite well. Second, if some faculty members return to practice because teaching five or six classes a year rather then three or four, there should be no doubt that there are scores of willing, capable replacements waiting in the wings. The belief that faculty members who return to practice will be replaced by only failed or failing practitioners is as silly as it is arrogant.

Posted by: Doug Richmond | Feb 24, 2013 2:30:08 PM

dybbuk illustrates my point.

Posted by: Bruce Boyden | Feb 24, 2013 12:23:54 PM

Apologies, forgot to click all States & Fed. You've been cited twice, once in 2007, once in 2013. I am not so sure that that mammoth contribution to the profession justifies enriching yourself off the misplaced trust and future misery of your students, but I am glad you think otherwise.

Nobody with a six figure salary and tenure ought to accuse others of lacking "guts."

Posted by: dybbuk | Feb 24, 2013 12:15:33 PM


I don't typically respond to commenters who don't have the guts to post under their real names but I need to make an exception here. If you did a Westlaw search for my scholarship and concluded it has never been cited by a court then, well, I hope to God you are not an attorney because your research skills are wanting.

Posted by: Michael J.Z. Mannheimer | Feb 24, 2013 12:00:14 PM

I'm curious what "exercises" TJ and others tried that students resisted (in his case) or didn't. This is not the first time I've heard this, I'm not sure how big the problem is, but it is an important problem to the extent it is true. Other grad schools - architecture, for example - are incredibly demanding during the course of the semester. Yet the students don't seem to push back. If we are trying to encourage our colleagues - particularly junior colleagues who might be more open to change - we need to be able to say with a straight face that "innovative" teaching (anything other than soft socratic) won't be met with disdain from students.
And that still doesn't join the issue - would professors with less scholarly demands really not have the time to teach another course or to add significant feedback exercises to their courses? Prepping a course the first time is very, very demanding - just ask any junior colleague who has to do it several times in their first few years. But is teaching, even "good" teaching, really so time demanding once the basic course is prepped?
If payroll is the biggest portion of a law school's budget, how can teaching load NOT be on the table? That's not dissing all professors - it's merely dealing with reality.

Posted by: proff | Feb 24, 2013 11:56:59 AM

Does your scholarship (or your teaching for that matter) help your students--even help them indirectly by bolstering the reputation of your school? No professor at a law school with a mere 35%(!) nine-month-out full-time bar-required job placement score can seriously make that assertion.

Does your scholarship contribute to the profession? A quick Westlaw Next search can establish whether any of your articles has ever been cited by a reviewing court, and can also search for citations through vast amounts of "administrative decisions and guidance" and trial court orders. A professor whose citation score in these areas is ZERO (such as the OP) should, at least, ask the question.

Mr. Manneimer states that "[I]n practice, I can do things I don’t particularly enjoy for a lot more money." I am sorry, genuinely sorry, that Mr. Mannheimer did not enjoy his honorable five year stint as an appellate public defender, but I can't imagine that it paid "a lot more money" than his current gig, enriching himself off the misplaced trust and future misery his students.

Posted by: dybbuk | Feb 24, 2013 11:44:48 AM

There are interesting questions about how much legal scholarship actually costs and whether it's worth what law professors are effectively paid to do it, and how much the answers to those questions might differ from scholarship more generally. But those sort of questions I think miss the point of a large proportion of the comments in this area, which are not really interested in engaging on those issues, but just in ostentatiously expressing disdain for all law professors. Basically they are just dressed-up versions of "So's yer old man!"

Posted by: Bruce Boyden | Feb 24, 2013 11:05:19 AM

Mannheimer is certainly right that writing less will not increase the demand for legal services. But, I think he assumes as given the inefficiently small scale of law schools. He's right that teaching more outside of our expertise won't be fun and probably won't help the students. But, professors could teach 3-3 in their field if law schools were larger or classes were smaller.

Even before the last couple years, many law schools were shrinking. For Example, Cleveland State is half the size it was in 1970.

Posted by: anon | Feb 24, 2013 11:05:11 AM

Most of the current critics of law schools can and should make their case without attacking the content or cost of scholarship. Those critics should continue to focus on law school transparency, too-easy credit, the irrational exuberance of applicants, and the way that law school accreditation has been captured by the schools themselves.

Getting suckered into debates about scholarship too easily backfires. It’s not just that they’ll be called know-nothings, anti-intellectuals, members of an ideological conspiracy, propagators of propaganda, subverters of the rule of law itself, enemies of academic freedom, and supporters of the 1% who are working to unfairly shift the costs of training from law firms to law schools—if not closet racists and anti-women. (If you think I exaggerate, each of those accusations has appeared in law blogs.) Even worse, it could give some professors a psychological reason to hunker down and fight change. Since I started working in law firms in 1974 (as a messenger and copy boy), I've seen lots of economic disruptions and have come to realize how easy it is to personalize our reactions to deep market forces. Once we personalize it, we stop thinking rationally. So I’d like to see a lot less j’accuse in the discussions of scholarship vs. training.

The far better approach for critics is to relentlessly educate the undergraduates of the world about the economics of the law degree and to demand honest, non-gamed stats from the law schools. Presumably the market will let us know what it wants and we can then let the schools decide the scholarship issues intramurally or on a scholar-by-scholar basis. I could even envision a law school that vastly improves its value-add to students while continuing to displease Chief Justice Roberts.

At the same time, though, I assume we all agree that law schools spend money on scholarship and that the schools themselves see some sort of tradeoff between scholarship and practicality. One way to see that is to look at who gets hired. The higher ranked schools spend more of their money on scholarship and the lower ranked schools spend more of their money on practical skills. Brent Newton looked at law school hiring and noted that, “For instance, for the schools in tier one, the median [amount of practical experience for new hires] was only 1 year and the mean was 1.79 years; 45.6% of the entry-level tenure-track professors hired by these schools since 2000 had no prior practical experience. Conversely, for the schools in tier four, the median years of prior practical experience was 6 years and the mean was 7 years; nearly 86% of those professors had some amount of prior practical experience.”

So even if the critics avoid attacking the scholarship, if they hear anyone doubt that schools spend money on scholarship, they can point to the hard stats about schools’ revealed preferences. Every time a school hires a recent grad of a top law school with no practical experience, the school could have spent those resources in a different way toward a different end. But my advice is to let the scholars debate their scholarship. Focus on honest stats.

Posted by: John Steele | Feb 24, 2013 10:57:47 AM

Most law professors at non-elite schools earn far below their market value? Really? Try going back into practice and let's see if anyone hires you.

Posted by: Doug Richmond | Feb 24, 2013 10:21:53 AM


As I wrote in a prior post, the idea that law profs haven't practiced is largely a canard, especially at the less elite schools. Of course the overwhelming majority of us know how to practice, and be quite good at it. We just chose to do something else. Again, if I wanted to practice, I'd practice, and make much more money than I currently do.

Posted by: Michael J.Z. Mannheimer | Feb 24, 2013 10:21:45 AM

My understanding is that a 3-3 teaching load was the norm as recently as 20-30 years ago at many (most?) schools. The subsequent reduction to a 2-2 load was primarily intended to facilitiate the production of legal scholarship. The causal connection there is, I believe, quite clear.

If schools returned to the prior norm, they could theoretically reduce their faculty size by 33%. Given that faculty salaries are (as I understand it) the single largest budgetary line item at most law schools, that would theoretically enable schools to reduce tuition by a non-insignificant amount.

To be sure, there are a number of factors contributing to the rise in tuition beyond just the reduction in teaching loads. Indeed, I believe the 2-2 load was already well established 10-12 years ago, before the recent explosion in tuition rates. Nevertheless, the critics' argument regarding the relationship between increased production of scholarship and increased tuition is pretty straightforward. I'm surprised that a 1000+ word post would largely ignore the real basis of the claim, while focusing on strawmen like library holdings.

Posted by: Anonity | Feb 24, 2013 10:09:22 AM

"Finally, I try to imagine a world in which I didn’t produce any scholarship. That would free up a lot of my time. But what would I do with that time? "

Maybe professors could actually practice law, so that they have some idea how to do the job they are supposedly teaching their students how to do.

Posted by: Marc J. Randazza | Feb 24, 2013 10:08:22 AM

Scott, I tried those problem solving exercises. The students loathed it. It is for that reason--not time--that I stopped.

Posted by: TJ | Feb 24, 2013 1:40:33 AM

A bit of question begging that higher teaching loads would yield worse teachers. The status quo offers an attractive career to those who enjoy producing scholarship. A position with no scholarship expectation and a full time teaching load, may not sound attractive to you but may well to someone with a passion for teaching.

Posted by: Brad | Feb 24, 2013 1:06:35 AM


I appreciate that. Given the choice, I would much prefer a smaller class with formative assessments and problem-solving exercises (something I already do) than an increased course load. In the past, when I have had a class of fewer than around 30, I have given a short paper assignment in addition to the final. But it doesn't happen that often.

I don't doubt your figure on "the cost of producing a law review article at a top law school." But notice that I confined the discussion to the non-elite law schools. I think too much of the discussion on both the costs and benefits of legal scholarship ignores the very real differences between elite and non-elite schools.

Posted by: Michael J.Z. Mannheimer | Feb 24, 2013 1:06:04 AM

A couple of years ago, Richard Neumann estimated that the cost of producing a law review article at a top law school was about $100,000. Who pays this cost? Mostly, the students. You can see a discussion of this issue at http://www.volokh.com/2011/04/22/the-cost-of-a-law-review-article/.

I strongly believe in the importance of scholarship, but too much time at law schools is devoted to scholarship and not enough to teaching. How about having the same course load, but having smaller classes in which the professors can assign papers, give formative assessments, and do problem solving exercises?

Posted by: Scott Fruehwald | Feb 23, 2013 11:55:44 PM

Paul - One correction to the correction. At a lot of schools the faculty do NOT select the dean. What they do is much like the advice and consent re judicial appoinments. They can send a slate of candidates. But the Central Administration chooses the dean, indeed sometimes imposes the dean on an unwilling faculty. And my understanding is that at Harvard the faculty has no say at all in the choice of dean. (Please let me know if that is not correct.) Maybe there are some faculties somewhere who have total control over the choice of dean but I have not been associated with any or aware of that aspect. Similarly deans can be fired or pushed out by University presidents. And I have heard of situations where a dean was voted "no confidence" but retained because adminstration wanted him. In my experience faculties have little or no say in the day to day running of the school except in hiring and rentention or faculty, curriculm (and even there some stuff gets imposed on faculty), some influence on who is admitted but little on the marketing strategies employed to attract them, NO say on tuition, little involvement in placement. Moreover, even as to the choosing of a dean, let's assume for sake of argument that many schools have complete say so on hiring; but after hiring those daily adminstrative and marketing functions are largely hidden from view of professors and not within their job descriptions or competencies. So all manner of bad things could happen after the fact with a dean who when he was hired seemed fine. So I am a little skeptical of the notion that the buck stops at faculty for much of the above. Anyway, thanks Michael for the shout out. I don't think I am going to try to come up with that cost numbet because I just don't know a good way to do it. But I will have a couple more posts on the topic. Thanks!

Posted by: Tamara Piety | Feb 23, 2013 11:39:50 PM


Point well taken. Thanks.

Posted by: Michael J.Z. Mannheimer | Feb 23, 2013 11:04:36 PM

Michael, let me object to your last paragraph before someone else does, in less genteel language. Law faculties govern law schools. The faculty are also responsible for the choice of a particular dean, even if they don't manage the law school from day to day. If law school administrators are being less than forthright, the faculty are ultimately responsible for it. Of course there will often be gaps between what administrators do and what faculty do or know, but one way or another the final responsibility lies with the faculty. If that's not the case, then I don't know what faculty governance means.

Posted by: Paul Horwitz | Feb 23, 2013 10:53:26 PM

Let's put aside the value of scholarship, a different topic for another time and place. Can it seriously be argued that, if professors weren't required to publish, they couldn't teach a 3-3 load? How is it that our colleagues in political science and other undergrad departments manage to do so? Of course we would not be "experts" in every course we teach. Does teaching a first year course require that someone be an "expert"? At small law schools now, don't professors get stretched into areas beyond their core area of expertise to cover the curriculum?
Are all those small school professors, or for that matter all those political science professors, doing only what they want to do? No, but the good outweighs the bad, and those undergrad professors are even willing to work for less than we do. Even taking into account our higher opportunity cost - because we could be practicing law - I'm pretty certain there would be enough people who want to teach rather than practice, even with the more "onerous" load.
I am not saying this is what schools should do. And I am not suggesting that the educational experience would be exactly the same. But to suggest that law professors couldn't handle a 3-3 load is to accept what we are familiar with; it is not a self-evident truth.

Posted by: proff | Feb 23, 2013 10:52:35 PM

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