What Should Be Done With Legal Education? (Part III)

This post focuses solely on how some restructuring of law faculty may assist in improving legal education.  (Earlier posts in this series are here and here.)

Unlike many undergraduate institutions, law schools have not lessened their faculty costs by moving in the direction of increasing non-tenure-track faculty. While law schools have always hired judges and practitioners to teach classes in the law school curriculum (My law school, St. Mary’s, is lucky to have a current federal district judge teach Federal Courts to its evening division students, and employs a retired federal circuit court judge to teach several courses each year), law schools remain heavily dependent on full-time faculty to teach most of the curriculum. In the main, this division of labor has benefitted law students. It has forced law schools to take seriously the mission of teaching law. Law professors are not only expected to teach large introductory classes without teaching assistants to share the load, many positively relish the challenge. Students can take much from a faculty member who demonstrates both a mastery of the material and an ability to communicate that material, as well as an affinity for legal scholarship. A passion for both the theory and practice of law can infect students, though an ability to explain how students should learn to enjoy the drudgery of law may be even more important. One or more faculty members of the “Mr. Chips” type (ancient popular culture reference) are useful for any school, but schools do well with some lopsided faculty (that is, faculty who are strong teachers and weak scholars or vice-versa). 

The problem with law faculties today is one of stasis, resulting from a combination of early tenure, modest lateral movement, the end of mandatory retirement, and the pay structure, exacerbated by the Great Recession of 2008. 

Law faculty usually receive tenure quicker than undergraduate faculty, usually as a result of the publication (or promised publication) of a modest number (2-4?) of law review articles and decent teaching evaluations. Because peer evaluations of teaching are often idiosyncratic and not systematic, and because student evaluations may tell the reviewer more about the teacher’s popularity than his/her effectiveness, it is always easier to decide whether to vote favorably on a tenure application based on an evaluation of the applicant’s scholarship. People respond fairly quickly to incentives, and tenure-track law faculty are people, too (!). Consequently, they learn fairly early that as long as their teaching is not execrable, they can focus the bulk of their time on scholarship. The type of scholarship done by a faculty member often changes greatly over time, but the relatively quick tenuring model provides little evidence of how a faculty member’s scholarship will develop over the next decade (or thirty years). The relatively high rates of law school tenure makes even more unlikely the school actually knows what it is getting when it tenures faculty members.

Second, the relatively modest lateral movement of law faculty creates disincentives to continue to improve one’s teaching and scholarship. Why law faculty appear to move less often than undergraduate faculty is unclear to me. It may be that the differences in salary among law schools (despite the antitrust decree against the ABA forbidding it to mandate certain salary levels), especially given large differences in the cost of living across the country, lessen the felt need to move. It may be that school snobbery (a form of prestige?) is less prevalent among faculty. Whatever the reason, lots of schools have relatively little faculty turnover among established and senior faculty.

Third, the end of mandatory retirement, joined by the peculiarity of the pay structure in law schools, intensifies the stasis problem. The more senior you are at nearly all law schools, the more you are paid. The traditional law firm model — whether it still exists among most large firms is unlikely — in which partner pay peaked at some point when the lawyer was in his or her 50s, and then slowly declined to retirement at 65 or 70, is a model law schools should consider developing. The idea that a faculty member’s pay simply increases at three percent or so annually until he or she retires, given the absence of any mandatory retirement, creates a massive disincentive for faculty to retire. This disincentive is enhanced by the “Bear Bryant/Joe Paterno” (college football coaches) syndrome — the unwillingness of people who identify with their jobs to retire because they simply have no idea what they would do with their lives if they retired (Bryant in fact died about a month after he retired as the football coach at the University of Alabama).

Finally, the Great Recession of 2008 allowed many faculty the opportunity to use financial distress as the reason why retirement was simply not possible.

The fecklessness of periodic post-tenure review reinforces the stasis problem. It is unlikely that a post-tenure review system (often a review of the faculty member’s scholarship and teaching over a previous five-year period) with teeth would meet with court approval if a tenured faculty member were fired for failing such a review, especially if that review was implemented after the faculty member was tenured. The result is toothless post-tenure review in which some tenured faculty evaluate other tenured faculty.  The committee pretends to review the faculty member, who pretends to show fealty to the post-tenure process, much like in the former Soviet Union, in which “workers pretended to work, and the state pretended to pay them.” It is not a healthy process. I suppose some Dean might be able to blow up this process, though that seems quite doubtful. Even if a Dean were institutionally permitted to do so, the percentage of Deans who would be willing to do so is quite small.

A faculty member at a different law school recently told me that teaching twelve credit hours a year was too heavy a load. At many elite and some state law schools, faculty teach nine hours annually, in order to enhance scholarly productivity. The reduction in teaching loads over the past fifteen years is an example of the “surplus value” that has been accumulated by faculty. The limited competitiveness in the legal education business continues to insulate faculty from the creative destruction altering media, business, and even law firms. It is possible that a faculty might look introspectively and decide that this surplus value has for too long benefitted it rather than students or the public. A law school might create efficiencies by giving very different responsibilities to different faculty members.

But the most important tool would be an end to permanent tenure. Having been in a Dean’s doghouse, I understand the superficial appeal of tenure. But at the time I knew my position within the law school was better protected by my work than by having tenure. A system of renewable but not permanent tenure might energize (or frighten, which is not always a bad thing) faculty, and might end stasis.

I doubt any of this will take place soon. It will require a crisis from without to change the problem of the top-heavy tenured law faculty structure, and the only way to generate such a crisis is to cut off the system of loans that makes law school possible for most students. Instead of threatening such an approach, the federal government continues to go out of its way to subsidize the increases in law school (and undergraduate and graduate) tuition by allowing ever greater loan amounts. It then bars such loans from being wiped out in bankruptcy!

The next post suggests how the new focus on assessment may affect legal education.

This Post Has One Comment

  1. Gordon Hylton

    I continue to be impressed by Prof. Ariens analysis of the current state of American legal education, and I find myself generally in agreement.

    However, I do disagree with his suggestion that law faculty members move from university to university less frequently than “undergraduate” faculty. I have taught in History Departments at Marquette and the University of Virginia, and it is my strong impression that law professors move around much more frequently than their historian counterparts. That is also reinforced by the experiences of my graduate school classmates who entered the Arts & Sciences teaching market in the 1980’s. Most have spent their academic careers at the first institution where they landed a tenure track position.

    Take Marquette as an example. In the last fifteen years at least fourteen professors have left tenure or tenure track faculty positions at other law schools to join the Marquette faculty. The list includes Patricia Cervenka (St. Louis U.), Gordon Hylton (IIT Chicago-Kent), Janie Kim (Southwestern), Julian Kossow (Stetson), Vada Lindsey (Univ. of Dist. of Columbia), Matt Mitten (South Texas), Kali Murray (Mississippi), Chad Oldfather (Okla. City), David Papke (Indiana-Indianapolis), Matt Parlow (Chapman), Peter Schanck (Kansas), Paul Secunda (Mississippi), Keith Sharfman (Rutgers-Newark), and Shirley Wiegand (Oklahoma).

    During the same period, eight Marquette faculty left tenure or tenure track positions to join the faculty of other law schools: Steve Barkan (Wisconsin), Jason Czarnezki (Vermont), Eric Goldman (Santa Clara), Christine Hurt (Illinois), Jeff Kinsler (Appalachian), Scott Moss (Colorado), Craig Nard (Case Western), and Ken Port (William Mitchell).

    To me, that sounds like a lot of lateral movement. Certainly, nothing like this has happened in the Marquette History Department in the past 15 years, nor, I suspect, in many college history departments.

    A list of recent lateral movements within legal academia generally can be found at http://www.thefacultylounge.org/2009/01/law-faculty-lateral-moves-list-2009.html

    To me this data also suggests substantial lateral movement.

    Admittedly, this is only a minor point of disagreement. I do not think that the relatively high rate of lateral movement among law professors has had any measureable impact on the form or quality of American legal education for precisely the other reasons that Prof. Ariens mentions above.

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