Wednesday, August 10, 2011

Legal Scholarship: Part II

As I outlined previously, in the 1980s and 1990s law schools began self-consciously hiring faculty who would produce more scholarship, and in particular the new interdisciplinary scholarship ("law and").  And they increased their tenure standards in regard of publication requirements, at least in terms of sheer quantity. As law schools throughout the hierarchy became more academically ambitious (although of course like everything else in the law school world the strength of these trends varied enormously depending on a school's hierarchical position), this had strong economic effects on the structure of legal academia.  The most important were these:

(1) The increased emphasis on publishing gave deans an excuse to push their central administrations to approve lighter teaching loads, sabbaticals, summer research stipends, research and development funds, travel money paid leaves, and anything else that would enable and encourage their faculties to publish more scholarship.  Schools at which four and five class annual teaching loads had been normal moved to a three-class load, at least for more "productive" faculty. Schools at which six-class loads had been standard moved toward a four-class per year model.

(2)  The moves toward more demanding publishing standards and toward the hiring of interdisciplinary types produced a backlash among more traditionally-minded faculty, which was often expressed in battles over the relative importance of teaching versus scholarship.  One collateral effect of these battles, which ended up having great significance for the current economic structure of legal academia, was that schools started operating many more legal clinics, and creating free-standing legal writing programs.  The "logic" of this development, although rarely articulated straightforwardly, was something like this: Since we're hiring all these fancy-pants academic types who don't know anything about the actual practice of law and who don't care about teaching the way that we (the traditional non-publishing, doctrinally-obsessed, jurisprudentially reactionary faculty) do, we need to make sure our students get a real legal education.  The creation and expansion of legal clinics and legal writing programs was to a certain extent a consequence of this reaction, although a fraught and somewhat unintended one, since the traditional doctrinal faculty weren't exactly crazy about clinics or legal writing programs either, given that they tended to dismiss these initiatives as too vocational and not academically serious (According to this world view, which remains extraordinarily common among law professors, what's "serious" is using appellate court cases to teach legal doctrine, usually via some version of the so-called Socratic method. Everything else is considered either effete dabbling in non-law, or Vo-Tech).

In any case, by the end of the century law schools featured far lighter teaching loads for tenure track faculty, much more spending on research support (especially in the form of summer research stipends, which became standard at all schools that had even modest academic pretentions), and many more clinical and legal writing programs.  All these things naturally cost a lot of money, and over the past 30 years the per-student operating costs of law schools have skyrocketed.

What has been the upshot of all this for law students?  Some of the effects of these changes have been, from a student's perspective, positive.  Law schools are better institutions, in terms of academic quality, than they were a generation ago.  Faculties feature more real scholars, and consequently there's a higher chance (how much higher is a separate and crucial question) that a law school class will now have some genuine academic value than was the case a generation ago.  Clinics and legal writing programs have value as well, although again how much is a key question, which I will be touching on in future posts. In these terms (as we are about to see, this is a crucial qualification) there's no doubt that legal education in 2011 is markedly better than it was in 1971.  But at what cost?

For one thing, this discussion has been based on the implicit premise that improving the quality of law schools as academic institutions -- that is, as contributors to the overall mission of the research universities in which they are usually located --  should be an almost axiomatic goal of legal academia.  But this is far from self-evident.  The assertion that law schools have improved quite a bit over the past generation relative to graduate school programs, in regard to graduate school values, doesn't engage with the question of whether such improvement should be what law schools are seeking.  After all, the vast majority of law students have no interest in pursuing a graduate education, in the way that students in university doctoral programs do.  They are aiming to become lawyers, not academics.  That the academic gap between law school professors and professors in other parts of the university has narrowed somewhat over the past few decades may be of little interest or value to most law students (and this is before even considering the quite literal cost to students at which this improvement has come).

For another, the transformation of law schools from quasi-academic professional schools to serious academic institutions has been, to put it mildly, incomplete. To a significant extent, that transformation has been quite partial and even illusory.  Despite the advent and growth of interdisciplinary scholarship (much of which of course is quite bad -- this is a subject for another post), the vast majority of the work legal academics publish remains narrowly doctrinal.  Most law review articles published today would be perfectly comprehensible to the legal academics of 50 years ago (this is not intended as a compliment).  Even more problematically, despite all the changes in legal academic life over the past few decades, the law school world  has done next to nothing to create a system of peer review publication.  99.37% of legal academic work is still published in student-run law journals, of which, because of the increased emphasis on publishing, there are now several hundred.  The system, in other words, is hardly designed to reward and encourage genuine academic rigor.

In more than one way, American law students are currently getting the worst of all worlds.  Law schools have become somewhat more academically serious places, but quite incompletely (as always all these observations apply to greatly different degrees across the hierarchical spectrum of schools), and in any case most law students are not interested in paying $200,000 for an academic experience.  Meanwhile, law schools remain as uninterested as ever in anything resembling actual vocational training.  They remain largely dominated by a doctrinal model of teaching and scholarship that is neither academically serious nor of much practical vocational value. In short, students at the contemporary law school end up paying enormous amounts of money for something that they aren't getting, and in many cases wouldn't want even if it were being provided to them.


  1. "After all, the vast majority of law students have no interest in pursuing a graduate education, in the way that students in university doctoral programs do. They are aiming to become lawyers, not academics."

    This is exactly the point! I read the comments on yesterday's Inside Higher Ed piece. Some intellectually dishonest "academic" argued the following: "I also find specious the idea that education is a scam if every graduate doesn't find a job in that field."

    Perhaps, this person should look at ADA-approved dental schools and AMA-accredited medical schools. A true professional school should be primarily concerned with protecting the investment - in time, energy, and money - of its future practitioners. The ABA certainly does not give a damn that MANY thousands of JDs - each year - will never practice law. It has shown that it will accredit more law schools, despite the fact that the lawyer job market is shrinking.

  2. Hey, great blog here. While at a T1 school 15 years ago I more or less deduced that the life of law profs was much as you have written here.

    In fact I even had the two coolest members of the faculty more or less tell me this much.

    Keep up the good work, lawprof. If I had to suggest anything for future topics I would highly recommend hitting quite hard at the so-called "Socratic Method" and all of the ways that it is utter and complete idiocy.

    As I like to say, they don't teach medicine the same way they did in the 19th century. But why is law taught this way? (Other than as a modus operandi for spending 100 minutes of class time conveying information that can be otherwise taught in maybe one tenth of the time.)

    Oh, also, please go more into the issue of testing. And how people like me could game the system by literally never showing up for class, studying not at all until the penultimate week, and then slamming the Emanuel Law Outlines for a few days prior to the finals. And ending up in the top 5th of the class, I might add.

  3. Thirty four years after law school the opinion I formed of the teaching techniques at the time remains the same: it is the only school system still proudly using medieval teaching techniques.

  4. "After all, the vast majority of law students have no interest in pursuing a graduate education, in the way that students in university doctoral programs do. They are aiming to become lawyers, not academics."

    I think part of the problem here on the student end is, though, that there are too many people who go to law school as some sort of post-grad "liberal arts" degree, because they don't know what else to do with their lives, rather than because they actually want to be lawyers. People don't decide to go to medical school because they've got nothing better to do.

    And then once the reality of the crushing debt load hits them, they figure they can get a job in BIGLAW for a few years, pay off their debt and then go do something else. But the entire time, they couldn't care less about what they're actually doing, and (in this economy) are sucking up at least some of the jobs that would be better served by people who actually want to be lawyers.


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