Adam Kolber (Brooklyn) makes several good points, which I hope readers who do not already observe them will take to heart. I've been in law teaching for 18 years now, and I've seen some improvement during this time. When I visited Yale Law School in 1998-99, one of the few faculty members who knew how to ask a question was Alan Schwartz; too many "questions" were really mini-lectures that concluded (as Jules Coleman memorably put it once) with the question, "Why aren't you more like me?" Yale was extreme, but rather too typical of what passed for intellectual engagement at law school workshops. In the intervening years, I've noticed more careful reading by workshop participants (though there are still people who ask questions despite having not done the reading), and more questions that are actually questions and that clearly identify an analytic or argumentative issue.
In January, the ABA's Section on Legal Education Standards Review Committee Subcommittee on Academic Freedom and Status of Position issued a new draft of accreditation standards as they relate to security of position. In particular, the subcommittee proposes eliminating the (at times ambiguous) current requirement that law schools provide tenure or comparable job security to deans, clinicians, and library directors - and indeed, all law faculty (except, of course, the lowly legal writing teacher.) Interestingly, the subcommittee concludes that elminating the mandate won't have any effect - because the AALS bylaw 6-6(d) requires that schools comply with AAUP requirements of tenure.
On its face, everyone loses equally in this regime. But a betting man would conclude that the real victims are likely to be library directors and clinicians who have successfully leveraged ABA job security language into improved status within law schools. (Legal writing faculty have been notably less successful in this quest.)
Nonetheless, on paper at least, these changes put everyone's tenure at risk. And this ubiquity has consequences: it helps unify opposition to the new provisions.
On Tuesday, the Georgetown Law faculty pushed back against those in the ABA seeking to water down faculty job security. As part of its resolution, the faculty unanimously approved the following language:
The Georgetown University Law Center faculty vigorously opposes these proposed changes, on the grounds that they would: (1) Undermine the quality of legal education; (2) Undermine academic freedom in the legal academy; (3) Undermine faculty governance in the legal academy; and (4) Undermine the movement, long endorsed by Georgetown, to bring clinical law professors, legal writing professors, and library directors into full membership in the academy....The faculty endorses and adopts the official comments filed in opposition to the proposed changes by AALS, AAUP, SALT, CLEA (Clinical Legal Education Association), and an informal group of past AALS presidents. The faculty urges the dean to take all possible steps to resist the proposed changes and to urge other law schools to do so as well.
In my view, the most notable aspect was #4 - the explicit nod to skills faculty. It appears that the Georgetown faculty is taking a leadership position on this issue consistent with the institution's overall commitment to clinical education.
Download the whole resolution hereand look for a similar resolution at a faculty meeting near you.
Update: Paul Caron has extensive coverage of these issues here.
In The National Law Journal(subscription-access only), though Professor Bainbridge has choice excerpts, including his own rather wicked comments! His objections go a bit further than my own concerns. Good empirical work has been invaluable for many areas of legal scholarship for decades and decades; the unfortunate development has been the trendy, bandwagon character of the current "explosion" of work, with the resulting influx onto the market of hordes of "empiricists" many of whom are doing work of dubious merit or relevance. The NLJ article gives the mistaken impression that the dispute is between "empiricists" and doctrinalists, but that's not quite right (though there is certainly that aspect of the divide): it's also between empiricists and other interdisciplinary scholars. The common intellectual currency of what we do in law school, after all, is argument and analysis, and the discursive and conceptual skills required to do that at a high level are not necessarily what PhD empiricists learn, though it marks common for other scholarly disciplines, such as economics and philosophy. My own inclination is (within reasonable limits) to see "a thousand flowers bloom" in the academy--though the notorious intellectual narrowness and parochialness of at least some empiricists is, I am told, an obstacle to that at some schools. But most law schools with a strong "empiricist" contingent--for example, Berkeley, Cornell, Chicago, and Columbia--seem to have managed a pluralistic approach quite well.
Over at the WSJ Law Blog, Ashby Jones notes two competing visions for the modern law school. Erwin Chemerinsky talked about creating a law school that stresses hands-on, interdisciplinary work - at high prices. Ann Althouse talked about creating a lower priced law school in the Kingsfield model: using a Socratic teaching approach with (presumably) high student-faculty ratios.
We know that there is a push to incorporate more experiential education into the law school curriculum - and Irvine was hardly the first interdisciplinary-oriented school to address that concern. I chose to attend NYU in 1987 (before many of our 1L's were born) explicitly because of the school's clinical program. But these programs do cost a lot of money, and it seems legitimate to ask whether some number of students might rather sit in large classes and enjoy a 1950's style legal education for three years - saving themselves thirty or forty thousand dollars. Can we really say that such a choice is per se inadequate? (ABA rules on skills education do seem to suggest as much.)
It's one thing to debate whether a fully online law school can deliver an adequate legal education - that's an untested model. But I'm hard pressed to defend the position that Harvard's 1955 law program shouldn't be accreditable. I don't know how it would sell to prospective students - or their prospective employers - who understandably would like more tangible skills at graduation. And I support transparency in marketing. But can we really say that Ruth Bader Ginsburg and Antonin Scalia didn't get an adequate legal education?
The opinions are here, the decision 8-1 in favor of the free speech rights of the Westboro Baptist Church crazies. Only Justice Alito dissents, and if he were right on the facts (which I take it he is not), there would be much to be said for his position. Justice Breyer's concurrence is especially notable for going out of its way to say the decision says nothing about First Amendment protection for intentional infliction of emotional distress on the Internet. (Cyber-sociopaths take note!) I am not a First Amendment scholar, though my impression is the decision is sound as a matter of the existing doctrine. It is striking that, given how heinous the Westboro crazies are, and given that not a single one of the Justices can possibly have any sympathy for them, that the Court so resoundingly upheld their First Amendment protections. Sometimes precedent works.
Wendy Collins Perdue, an associate dean and law professor at Georgetown University Law Center, was selected the new dean of the University of Richmond Law School. Perdue graduated from Duke Law and joined Georgetown in 1982. She writes in the areas of health law and civil procedure.