If there's one thing that's clear, it's that lots of colleges and universities covet a law school. The reasons vary. For research universities, a law school serves to complete a portfolio. For smaller schools, it can place them on the map. And finally, there are a few schools that are simply built to make money. At the moment an institution decides to start down the law school path, it has to face a crucial choice: start-up or merger. For-profits and smaller non-profit schools usually have little choice but to start fresh; few existing law school see a benefit from linking up with these smaller fish. I want to focus a bit on bigger institutions: private research universities and state universities. They can choose to build or merge.
Consider four schools in this category which have recently made the big move. Drexel and UC Irvine decided to start new schools; UMass and UNH have started down the path of merger (with Southern New England and Franklin Pierce, respectively.) What are the pros of each path?
The biggest advantage to a start-up is faculty quality. You can build a great law school when you start from scratch in this market (particularly when you're located in an attractive place). UCI has gone with a senior, and highly productive, startup crew. The reputational payoff has been immediate: based on their prior work, Brian Leiter slates their faculty number 9 in his recent scholarly impact ranking. Drexel has tilted strongly toward junior faculty - but (in all immodesty) it's a superb group in terms of both paper credentials and intellectual and scholarly chops. (While I'm clearly biased, I encourage readers to test my claim.) It would have been near impossible for either UCI or Drexel to have acquired an existing faculty of comparable quality.
Another big plus for a start-up is the ability to create both an agenda and a culture. Consistent with current critiques of legal education, both Drexel and UCI have strongly emphasized the value of skills training. At the same time, both are deeply interdisciplinary in approach and dog-on-the-bone about producing high-end scholarship.
Why might a school choose to merge? The first obvious answer is lower front-end transaction costs. You already have an administration. Starting a new law school is incredibly time consuming for both faculty and administrators, and inevitably involves driving through a lot of potholes. You also already have a faculty, which means you don't need to spend five years in endless job talks. And a merger might even obviate the need for costly real estate development...although UMass and UNH have presunably planned for some significant building costs.
You also acquire an alumni base which could potentially help with both fundraising and job placement. You carry forward your existing reputation with employers. (This could be a plus or minus, of course, depending on the school.) If you merge with an ABA accredited school you may score an additional benefit: avoiding any period where you lack the ABA imprimatur. Even if you have a one year accreditation gap, students are likely to be less anxious knowing that the school once was, and thus likely will be, accredited.
Mergers make sense for schools that want to add a fully grown law school quickly. Start-ups make sense for universities who want greater control over the nature and quality of their law school.
To be sure, there are many, many more considerations. For example, as in the case of UMass Dartmouth, a merger was the only realistic way in which that campus would gain a law school. If UMass were to have considered a start-up, it almost certainly would have been placed at either the Boston or Amherst campus. New Hampshire has a limited capacity to absorb another law school. If UNH had chosen a start-up, it would have been forced into a (costly) battle with Pierce for the best students - which could have produced two losers.
-- Dan Filler (cross-posted at The Faculty Lounge)