Once every decade or so, the ABA’s annual meeting is set in London. It appears to be a popular decision, and why not? It allows a lawyer to fly to Europe and deduct the cost as a business expense, making the vacation that surrounds the meeting just a little bit cheaper (and in a weak dollar era, that’s not a bad thing). The ABA justifies its decision as giving American lawyers a chance to better understand the roots of the American legal system by studying the English common-law system. So, lawyers visit the Inns of Court, maybe take in a lecture or panel discussion from English lawyers and judges, and even visit the courts. But does one really learn anything applicable to the practice of law (or even the theory of law) from this event? (I put aside for now the question whether one learns anything from any ABA annual meeting.) The ABA’s justification is both true and trite. The English legal system serves as a broad-based template for the American legal system (with some exceptions that followed civil law), but large differences began to emerge by the early nineteenth century, and a distinctly American legal system was in place by no later than the end of the nineteenth century. How the country that gave us trial by jury managed to eliminate it in civil matters is interesting but dated and of little concern to nearly all American lawyers. Further, and more importantly, the English and American legal systems remain but a shadow of their former common-law selves. We live not just in an age of statutes (as Yale Law Professor and now federal appeals court Judge Guido Calabresi noted), but in an age of regulations and ordinances, of written laws unending. No, the reason to go to London is because it is a taxpayer-financed boondoggle.

Like the ABA, law schools may have initially found the lure of European travel the reason for the development of summer abroad programs. 

One of the “hot topics” at the 2010 annual meeting of the Association of American Law Schools (AALS) in New Orleans was the topic of “assessment.” The ABA has traditionally approved law schools based on inputs (LSAT/UGPA scores of enrolled students, student-faculty ratio, number of volumes in the library, etc.) rather than on outputs. This in part was a consequence of the already-existing output of the bar exam (though not for Wisconsin). Theoretically, if a school had a poor bar passage rate, it would surely end up going out of business. That hasn’t happened, anywhere. Law schools don’t go out of business; they simply shift to survival mode when necessary. The ABA several years ago added a Standard (these are the criteria used by the ABA in determining whether to approve or re-approve a law school, which permits the graduates of those law schools to take the bar exam in any state) requiring law schools to meet several criteria regarding first-time bar passage rates. However, those criteria were easily avoided. Additionally, the struggle of graduates of historically black law schools with the bar exam made the ABA leery of creating a Standard that might apply in a manner that discriminated in effect even though not in purpose. Now the ABA has a new idea: assessment of outputs other than the bar exam.

Assessment of what law graduates know and what they can do is a good thing. But if history is any judge, it likely will turn out to be bad for both law schools and law graduates. 

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.