Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Thursday, March 15, 2012

Four Changes to the Status Quo in Legal Education That Might Be Worth Something

Some changes are obvious and we've been remarking on them for years (e.g., better oversight of employment reporting by schools), and some are beyond the power of law schools to affect (e.g., federally guaranteed student loans, which insure a market for even non-marketable law degrees).  But here are ones law schools could affect, and are at least worth considering, though there are serious obstacles (and objections) to each:

1.  Higher education in America includes research universities and teaching colleges (the latter placing less emphasis on research); law schools need the same division of labor, so that we have some law schools that are Harvard and Chicago, and some law schools that are Oberlin and Reed.   How to bring it about is the really hard part, but changes to ABA accreditation rules could surely help.  Tightening up the availability of student loans for legal education might also create some market pressure in that direction.

2. Judge Posner suggested some time ago that law school be shortened to two years, with a third year optional depending on a student's career goals.   Those who want to be tax lawyers could do what is, in effect, the LLM in tax in the third year; those who want to be legal scholars could devote the third year either to cultivating scholarly skills or teaching skills, depending on their academic goals (per #1); those who haven't secured permanent employment after two years could use the third (at some appropriately reduced cost) in externships designed to enhance marketability, with some supervision from academic or clinical faculty; and so on.  Of course, this dramatic change would only work if many legal employers would be prepared to hire students for "summer jobs" after the first year, so that they'd have the kind of 'hard' evidence they most value about suitability for the job (as well as collegiality, which is often more important).  And, of course, in the short-term, shortening law school would have the perverse  effect of increasing the supply of new lawyers in an already depressed legal job market.

3.  Cut the number of law reviews by 75%, and turn the remaining ones over to faculty supervision, with students still working on them, but no longer vested with editorial control.  This would immediately eliminate a huge amount of worthless scholarship--worthless qua contribution to knowledge, not worthless qua its purported immediate practical utility, which is (and should continue to be) an irrelevant criterion for scholarship--and also raise the bar for publishing anything at all (and so help with #4).  The AALS would have to take the lead on this, in order to get schools across the boards to start closing down niche journals, and faculty would have to increase their involvement in editorial oversight of the journals (many of the Canadian law school journals operate this way already).

4. Finally, and no doubt most controversially, law schools need real tenure standards and real post-tenure review.  Real tenure standards means law schools should deny tenure two or three times as often as they presently do, and on the basis of a genuine qualitative review of scholarship.   Post-tenure review--say, once every ten years--should operate within the current tenure framework, which means termination only for good cause.  But far too many faculty appear to satisfy the "good cause" standard, but get a free pass because law schools, and universities generally, are too reluctant, or too lazy, to follow the proper procedures for establishing "good cause".  Surely one rather good reason for student anger about the high cost of law school is that it is obvious to them that some faculty don't actually do their jobs.  A colleague elsewhere sent this striking comment from the Campos blog

[D]ebt is the prime motivator for many disgruntled law grads. It prevents us from moving on with our lives. Every month I get a bill that requires me to pay $500 towards my private loan debt. That's money that would have gone to a car or other necessities, but which has to go to Citibank because I am trying to avoid a default. The rest of my loans (over $200,000) are on IBR where they rapidly grow with interest and effectively foreclose my ability get any credit in the future. "You make what, and you owe how much? Ummm, no you're not getting that car loan, mortgage, whatever . . ."

Plus, I have to work 60-70 hours a week (if you include things like commuting) to make the meager wage that allows me not to be on the street. Also, being poor, I have no life.

Then I see someone like Ann Althouse, and her blog, where she lives such a cush and frivolous life. Her day consists of getting up in whatever town she is travelling to at that moment, going to whatever eating establishment she chooses and, if she likes it, taking pictures of the cupcake or whatever and posting about it on her blog. Her life is the life of most law professors. They work 15 hours a week, make obscene amounts of money (well in the top 5% of society) and many of them effectively have no boss of any kind because they have tenure. It's the most stress free way to make a living that one could imagine. The most difficult part of their life is writing a paper, which is something I would do for free if I had the time.

(No doubt it will only add insult to injury to note that Althouse's blogging career has coincided with a collapse of her scholarly writing career, as a quick persual of her CV reveals.)  To be sure, it is obviously silly to say "her life is the life of most law professors," but it is the life of some of them, and post-tenure review would at least weed out the really extreme cases.  Unsurprisingly, alleged "legal education reformers" like (Paul) Campos the Scammer never discuss the need for law schools to review, sanction and possibly fire tenured faculty who don't do their job, and for obvious reasons.  But if law faculty are hired to teach and write, and if some don't teach well and don't write, there should be consequences.  Tenure was never meant to protect dereliction of duties, and it endangers the institution of tenure, and the integrity of academic institutions, when it does.   It also, of course, raises the costs of running a law school if some portion of your faculty don't really do the job (and especially when they are the more senior and expensive faculty, as typically happens).

http://leiterlawschool.typepad.com/leiter/2012/03/four-changes-to-the-status-quo-in-legal-education-that-might-be-worth-something.html

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