Law Schools Are Changing, But How and Why?

The drumbeat of the impending doom of law schools seems to have quieted, what with the shuttering of Paul Campos’ Inside the Law School Scam, the ongoing sort-of-recovery in the economy, and, perhaps most likely, the media finding more compelling law stories to tell. But just because you’re not seeing law school stories in the New York Times lately doesn’t mean anything has really changed.

Evil (for profit) law school!

One fascinating story last week was about two “tenured” professors at the for-profit corporate-owned Phoenix Law School who were fired after they opposed plans to prevent students from transferring to other schools. The professors opposed the dean’s plan that directed faculty to refuse to write letters of recommendation, changed first-year curriculum to not match up with other schools, and other tricks to prevent transfers. The dean called the plan, tellingly, “building a better mousetrap.” The two professors, who are married, also claim they were fired after they objected to a “systematic program to undermine and, in some cases ignore, the role of faculty in the governance of the Phoenix School of Law, including an attempt to reduce or eliminate the ability to attain tenure, and to reduce or eliminate the faculty’s role in setting admission standards.”

At this point in the article I found myself angry at both the school’s administration for treating the students so poorly (who could blame a Phoenix Law School student with good 1L grades for wanting to transfer to a higher-rated school?) and at the investors that put up the money to open the school. It’s easy to imagine the sales pitch to prospective faculty: oh, absolutely this is a traditional law school, with the faculty running the show, please sign here, thank you, only to cut them off at the knees when the bottom line called for it (what’s that? you’re arguing with our hand-picked lackey dean? Don’t let the door hit you in the ass on the way out).

Wait, evil law professors!

But I kept reading, and learned that the couple claim that InfiLaw (which owns the school) CEO Rick Inatome said at a meeting “that law schools’ faculty were the primary cause of problems with law school.”

And that made all my anger at the school disappear (but not for the reasons Infilaw would want).

Because, as I’ve noted again and again, it’s faculty that have ruined law schools’ once-sterling reputation and made them the object of well-deserved derision. Their seemingly unquenchable thirst for reduced teaching requirements has been virulently combined with their lust for fatter and fatter salaries—all on the backs of their students.

So the corporate lackey’s dean’s complaint rings true. But of course not for any of the reasons he’s thinking of.

A pox on all your houses!

The dean’s complaint is true not because his school’s faculty make it hard for him to deliver profits to the school’s investors. It’s true because of the unfettered greed of the faculty of traditional non-profit law schools, combined with the fact that none of them provide their students with lawyering skills. No, the faculty focus their energies (and therefore their students’ borrowed money) on “scholarship,” meaning the faculty’s production of law review articles (that are selected and edited by law students—someone please explain this to me) that almost nobody reads.

The for-profit law schools’ marketing is all about selling prospective students on how they teach “practical skills” (translation: how to do stuff lawyers actually do). Their prospective students can’t get into top tier schools, but are savvy enough to know all about the non-profit schools’ misrepresentation of how many of their graduates get law jobs. And the prospective students know the traditional schools don’t focus on preparing students to pass the bar exam, which of course is required for a license and a job.

So who’s worse?

All of which raises the question of whether students and (one might add, if one were really, really crazy) the under-served public (which is a lot of people) might be better served by the increasing for-profit privatization of law education.

Let’s look at tenure first. Tenure is a wonderful tradition that protects scholars (once they have proven their academic chops are up to par) and allows them to pursue scholarship (or political activity) without fear of reprisal from their schools. Without tenure, for example, we might never have heard from two of the greatest law school whistle-blowers, Paul Campos and Brian Tamanaha, each of whom, had they not had the protection of tenure, would not have been able to provide irrefutable accounts of what really went on inside their law schools.

On the other hand, tenure, which according to Tamanaha is rarely denied in law schools, can also enable professors to lose their ambition and simply “mail it in” for decades, knowing they are untouchable. I distinctly recall my torturous journey trying to get one of my law school professors to simply read and grade my independent study paper—when he finally did, it was patently obvious he had spent about five minutes reading it before slapping a brief and entirely unhelpful comment on it next to my grade.

It’s typical for liberal-leaning law students and graduates to love tenure, as they think it protects their political allies in the schools. And conservative lawyers love to bash the law schools as liberal incubators. But consider this: If laws are written by those who win the wars (whether political or involving bullets and bombs), is it crazy to suggest that law schools are inherently conservative institutions? Even if they appear to be “liberal” compared to a wide-angle snapshot of a particular moment, doesn’t their precedent-based instruction make them first and foremost part of “the establishment?”

So what’s really changed at the “gatekeepers of the profession?” The answer is: not nearly enough, at least not yet.

(image: picture of woman with no entry sign from Shutterstock)

1 Comment

  1. Avatar Dru Stevenson says:

    Your sweeping generalizations about law professors are about as accurate as the sweeping generalizations people make about lawyers (practitioners). So now the guys who have a longstanding reputation for being blood-sucking elitists, notorious for generating mostly unnecessary work and rarely returning their clients’ calls, are criticizing their former professors for being blood-sucking elitists who generate mostly unnecessary work and rarely respond to their students. Regarding the fact that few people read law review articles, the same is true for the academic literature in every field or discipline. Do you think high school math teachers or engineers keep up with the academic journals about number theory? Should we abolish all theoretical publications in every field on the grounds that most have a tiny readership? That is really just an anti-intellectual argument: “I don’t use the writings of theoreticians in my field to do my day-to-day gruntwork around the office, so it must have no value for anybody.” That’s silly.

    You asked for someone to “please explain” why law student editors select articles for publication. Probably you meant this rhetorically, but in case you actually care, here’s an answer: 1) the student editors making publication decisions are 3Ls on law review (top of their class). There is only a marginal difference between their knowledge and that of the junior faculty member whose manuscript they’re reading (who is, in a sense, a 5L or 6L), and a top-of-the-class 3L at Havard or Yale. The latter may actually be more well read and erudite than a new legal writing prof at a 4th tier school. The editor at a top journal reads hundreds of manuscripts (articles) each semester, perhaps 3x as many, and on a broader range of topics, as any individual author has read in the last few years. Granted, the year or two of practice (prior to entering academia) that separates the authors from the editors is a time when much is learned, but it’s mostly the mundane mechanics of law practice – which forms to use on which occasion, where and when to file things – the stuff paralegals already know without going to law school. In terms of awareness about the cutting-edge, big-picture issues facing the legal system, a 2nd-year associate doing real estate closings does not have much edge over the 3L who is currently taking courses on jurisprudence and international human rights. 2) Going to your point that “nobody reads” law review articles, having the brightest 3Ls as an audience when writing a manuscript is actually a good proxy for the broader audience one might hope to reach — judges, appellate court clerks, political advisers, and even appellate lawyers. An article written so that the best 3Ls can understand it and see its value will probably be accessible to a reasonably broad audience in the legal system, at least the ones who read the journals looking for ideas. Have you read many peer-review articles from other fields? They tend to be unintelligible to anyone except, well, their peers, a handful of fellow professors who are researching the same thing. 3) You may not know this, but the law reviews at Harvard, Yale, and Stanford all incorporate faculty review of manuscripts as part of their publication decisions – so if you want peer review, all you have to do is publish in Harvard, Yale, or Stanford. Can’t get accepted by those prestigious journals? Then maybe you deserve to have 3Ls at other prestigious schools evaluating your work, or maybe you could try submitting to one of the dozen or more peer-review law journals now available – the Journal of Legal Theory, J. of Law & Economics, and so on. If you don’t like the student-edited journals, you have plenty of alternatives.

    If you’re just bitter about how much law school costs, I think the tuition inflation is due more to the inflationary effects of government subsidies (federal student loans) than to law professors “demanding” higher salaries. And maybe you should complain to your family physicians about and and see what they say about their medical school loans.

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