Thursday, January 17, 2008

Why Non-Elite Law Schools Should Not Invest in Interdisciplinary Scholarship

Brian Tamanaha (St. John's) comments:

In the elite law school universe--with huge endowments and ample resources, with large faculties, with graduates who become corporate lawyers and donate more money, with graduates who become academically-oriented law school professors--the interdisciplinary movement can be justified.

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers)....

Annual tuition at elite law schools will likely hit $50,000 within five years. This hefty price tag (gulp!) is still a good investment for graduates of elite law schools, who are in line for lucrative (albeit life-draining) corporate law jobs. The same cannot be said for graduates of non-elite law schools. Non-elite law schools must find ways to keep their tuition down.

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

As usual, non-anonymous comments will be very strongly preferred.  Post only once; comments may take awhile to appear.

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Does it necessarily "cost[] a lot of money to go interdisciplinary"? Replacing one's faculty with forced retirements and new hires, or offering huge new sabbaticals, yeah. Buying software for quantitative research or permitting a little more travel, not so much. Ambitious schools can't afford a big shift in direction, but they also can't afford to abstain 100% from whatever fad is ascendant.

Posted by: Anita Bernstein | Jan 17, 2008 7:19:08 AM

It's always a good idea for law schools to look at cost and benefits when thinking about faculty hiring.

I think students benefit from training in quantitative methods, which seems to be one of the most common courses law schools are adding these days. That seems to be a pretty direct result of the increase in empirically oriented faculty. Whether JD/PHDs are better or worse teachers on average than non-PHDs is hard to say; I suspect teaching quality varies dramatically within both the PHD and non-PHD groups.

Why, though, does it cost a lot of money for a school to "go interdisciplinary"? (I understand why it costs applicants for faculty positions a lot of money--they may need years of extra training, but I'm not sure why it costs law schools a lot.)

Posted by: Alfred | Jan 17, 2008 7:20:40 AM

If this argument has merit, then there should be no half-measures. If the goal is to sever legal instruction from any intellectual foundations and wider disciplinary context, then law schools should be removed from the university setting and, like other trade schools for plumbing, hair styling, and such, become free-standing commercial enterprises. But you can't have it both ways: bask in the uplifting aura of scholarly association, while banning such wide-ranging curiosity at the door.

Posted by: James | Jan 17, 2008 7:59:29 AM

The impression I had as to why a move to interdisciplinary scholarship might be more expensive is that it likely requires having a larger faculty- if all the traditional courses are offered and some people also teach specialized courses in their subject area then there will likely have to be more professors over all. I don't know if that's what Tamanaha had in mind or not but it's what I took him to mean. That said, I think his position is over-stated. To take a case close to my heart, I think that most students, even at "non-elite" schools would benefit from taking a jurisprudence class and I also think that it's very hard (though not impossible) to teach a first-rate jurisprudence class without advanced training in philosophy. Similarly, I've met several people who are good trade lawyers in the sense that they know the law quite well and are generally smart but who are not as good as they could be because they don't really understand the economics that's behind trade law and policy. This is the sort of thing that can (I know first hand) be worked into a trade law class in a well-integrated way if the professors understands both the law and the economics very well. It's not _necessary_ to have a JD/PhD teach such a course but it certainly makes success more probable. I don't see why this wouldn't be so for students at non-elite schools, too. This seems to be the case for many areas of law. Given this, Tamanaha's position seems too strongly stated to me.

Posted by: Matt Lister | Jan 17, 2008 11:54:39 AM

I don't think I accept any of Tamanaha's three reasons for warning off non-elite law schools from going interdisciplinary. (Full disclosure: I do interdisciplinary work at a non-elite law school.) Its a bit hard to know what to say about Tamanaha's first reason, having to do with making students better lawyers, because I don't know what the baseline for comparison is. Its certainly open to doubt that the case method, for example, which isolates individual legal issues for analysis, prepares students to practice, as no client's legal problems come neatly packaged to highlight a single legal issue. Indeed, its something close to a (perhaps lamentable) commonplace that students really have to wait to get into practice to learn to practice. Why should interdisciplinary scholarship get singled out, then, for being too remote from the lives of practicing lawyers? I might just add, on the question of teaching, that interdisciplinary scholars with PhDs will bring sometimes extensive teaching experience to their first year of law teaching, as one usually has to teach while pursuing a PhD, and that suggests that new interdisciplinary scholars won't make at least some of the rookie mistakes that others who lack any previous teaching experience are likely to make.

Second, I can't figure out how Tamanaha can substantiate his claim that "it costs a lot of money to go interdisciplinary." In my own little corner of the "law and" universe, law and philosophy, this seems to get it backwards. Most legal philosophers don't teach legal philosophy courses exclusively, rather, most teach legal philosophy courses in addition to some doctrinal course or courses. And they don't simply teach those doctrinal courses as a service, they teach them because the doctrine provides the grist for their philosophical mills -- hence, common areas of scholarship in law and philosophy include constitutional theory, tort theory, and criminal law theory. (Not all law and philosophy courses are in this mold, to be sure, but then I'd doubt if there's any law professor in the US who teaches only, say, general jurisprudence.) In this respect, by hiring an interdisciplinary scholar, a law schools get a "twofer" -- someone who can teach in the standard curriculum, but also someone who can teach in the interdisciplinary areas that are coming more and more to dominate legal scholarship. If anything, then, its more economical to hire someone who does interdisciplinary work.

Finally, Tamanaha's third stated reason, about the practical experience of interdisciplinary scholars, implies that those who join the academy to teach purely doctrinal courses have the requisite practical experience. I practiced for just two years at a large firm before going into teaching, but I would venture that that is more experience than a huge proportion of new purely doctrinal hires can claim to have, and that's because at the end of the day, law schools are looking to hire academics and not practitioners. If anything, its my impression, for this reason practicing for a long time typically hurts one's chances of getting hired to teach at a law school regardless of one's area of scholarship.

Posted by: John Oberdiek | Jan 17, 2008 12:04:47 PM

Thanks, everyone, for the thoughtful reasons to my post. I would like to clear up just two points.

My work draws heavily from the social sciences and theory, and I would never suggest that we "ban" such "wide ranging curiosity" at the door. Nothing about my post was in the least bit anti-intellectual.

The main thrust of my argument is that the "interdisciplinary studies" initiative requires resources (though a few commentators suggest otherwise), and therefore we must take a hard look at whether this trend in law schools delivers real benefits to the students footing the bill. Students at non-elite law schools face a serious financial crunch owing to sky-high tuition, relatively low pay, and huge debts.

If it doesn't cost anything, then I'm for it.

More generally speaking, this is one in a series of posts (all linked in the original) I have written in the past two years raising various worrisome implications of the current financial situation of non-elite law schools and their students. We often talk about social justice, but a situation with serious justice implications is developing around us.

I like my pay and perks as much as anyone else, and I will happily continue to engage in my own brand of interdisciplinary studies, but I think we should continually evaluate the costs of what we do and the burdens it imposes on students.



Posted by: Brian Tamanaha | Jan 17, 2008 2:58:39 PM

There's one other aspect to the "costs a lot of money" claim. With the possible exception of economists and faculty in business schools, most lawprofs cost far more -- in terms of salary and other support -- than do faculty in arts & sciences. Starting law professor salaries rival full prof compensation in most other departments (compare Tables 1 and 8 at for just one example). In fact, interdisciplinary scholars -- particularly those without JDs -- are true bargains compared to traditional law faculty.

Posted by: C. Zorn | Jan 17, 2008 3:11:26 PM

Perhaps I am a bit too teleologically oriented, but I think the question really being raised is 'what is the purpose of law school.' Is to train practicing attorneys, and if so, in what field of law? Is it to teach students "to think like a lawyer"? It seems that differnt law schools have different missions, so perhaps they should also have different types of faculty as well, which will be shown by the credentials of those faculty members.

Posted by: Steve Wadsworth | Jan 18, 2008 8:24:06 AM

C. Zorn: But of course if you're hiring interdisciplinary scholars in a law school, you're paying them a law school salary! So I don't think it's cheaper.

Brian T. is right, I think, that there are costs to making a real commitment to interdisciplinarity (though perhaps less so in law and philosophy than in other interdisciplinary fields). Some of those costs can be offset by grant fundraising -- an area of fundraising that law schools have generally let pass them by. And precisely because there are so many external funders of really good interdisciplinary work in many fields, it makes some sense *in those fields* to use a scholar's ability to bring in grants as an indication of that scholar's quality (as A&S departments do).

As a pretty doctrinal person at a tuition-driven school who is constantly pushing for more interdiscipinary hiring and programs, I have to say that I doubt that "doctrinal" professors have an advantage in teaching over "interdisciplinary" professors. J. Oberdiek's concerns about the case method are part of it. Another concern is that many "doctrinal" professors haven't been in a courtroom arguing a case or a boardroom closing a deal in years and years, if they ever were. So the notion of law that students get is more formalist -- and less fluid, contingent, and context dependent -- than is law as understood by a practitioner. A lot of what new lawyers have to unlearn is not the fancy theory they get in law school -- they don't get much of that. It's the notion of law that they get from "doctrinal" professors. (Which is not to say all "doctrinal" professors are this way, just that enough of them are that we shouldn't reflexively think that "doctrinal" teaching is a great way of preparing people for practice.)

On the other side of the ledger, "interdisciplinary" people can bring a lot to the training of lawyers. You don't have to work for Cravath to be better off if you can understand how to use statistics in litigation or decision analysis in dealmaking or economic analysis in a consumer case. The concepts of voluntariness and coercion come up a lot in the law, and students are a lot better off *as lawyers* if they understand the philosophical debates that surround those concepts. Lots of "interdisciplinary" teaching is very helpful to the training of lawyers.

Wholly aside from the research function of law schools (and, while I have some agreements with Brian T. on these matters, I think even "non-elite" law schools -- however one defines them -- have a substantial research function), interdisciplinarity is essential to training good lawyers. It is best, I think, if students get a mix of pedagogical approaches, including some "doctrine is all" professors and some "another discipline is all" professors." But I think that most professors should be able to teach in a way that is doctrinally sophisticated (in a way that not all "doctrinal" teaching is) and informed by more than a surface understanding of the insights and empirical studies from other disciplines. If we're going to give the students effective training that's worth the high tuition we charge, we need to offer substantial interdisciplinarity.

Posted by: Sam Bagenstos | Jan 18, 2008 9:53:56 AM

I agree that in a doctrinal context, interdisciplinary learning is a challenge. However, in the clinical setting, interdisciplinary learning is achieved working alongside other professionals. In practice, law is necessarily interdisciplinary. In clinical education we have the opportunity to use our field work as a basis for empirical research done by other disciplines. In terms of the cost to students, most clinics are funded by soft money and do not benefit from tuition dollars. The government and private foundations generally do all the heavy lifting when it comes to supporting clinical legal education.

Posted by: Daniel Friedson | Jan 18, 2008 10:57:20 AM

I am not sufficiently into jurisprudence as to detect if the following reasoning is correct, but it seems to me that:

As long as legal interpretation is a key factor in the practice of Law (at any level), and some level of interdisciplinary knowledge is necessary for or conductive to better interpretation, interdisciplinary education cannot be considered a mere plus of the elite lawschools.

I guess that it is arguable that as more lawyers become aware of issues on the cognate disciplines, the quality of legal decision-making in general should rise.

Posted by: Gustavo | Jan 18, 2008 3:15:50 PM

Breyer's dissent today ( ) suggests that attention to the distinction between universal and restricted quantification can pay off!

"The word 'any' is of no help because all speakers (including writers and legislators) who use general words such as 'all,' 'any,' 'never,' and 'none' normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work. And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator. That is to say, it is context, not a dictionary, that sets the boundaries of time, place, and circumstance within which words such as 'any' will apply."

Posted by: Chris Green | Jan 22, 2008 11:39:15 AM

I am an English academic lawyer. It seems to me, from my outsiders perspective, that the disaster which has taken place in the United States, and I don't think that is hyperbole,is the loss of faith in law qua law as an acadmic discipline. Pick up a copy of The Harvard Law Review from 70 years ago and it looks much the same as a modern English, German, Australian or French law journal. Law was discussed in a way of relevance to those in practice. Recent doctrinal develoments were highlighted. Casenotes even. Academic work was primarily of relevance to those engaged in the subject matter of the discipline.

Now the position in the US is quite different. Faith in law as a subject worthy of study in and of itself has been destroyed. One sympton of this is the march towards interdisciplinary scholarship ("law and ..."). This emphatically does not mean that such work is without value, much of it is wonderful. But law as an acadmic discipline in its own right seems to me to have been downgraded in the US. What is the reason for American exceptionalism? The legal realist catastrophe which didn't take hold anywhere save in the US? The fact that law is a graduate subject? The lack of a unitary court system? The use of juries?

Whatever it may be, the vessel of legal scholarship seems to me to have been broken, leading to the pouring in of floods of economics, anthropology, evoloutionary pschology etc etc in a vain attempt to fill the void. The non-elite schools are not the problem.

Posted by: Rob Stevens | Jan 22, 2008 1:25:28 PM

"the current financial situation of non-elite law schools and their students. We often talk about social justice, but a situation with serious justice implications is developing around us."

I think that social justice problem is a significant issue, overshadowed by the immediate focus. I've worked in two different firms that used law graduates as paralegals, one the editor in chief of the law review of a bottom ranked school who could not find other employment. She was bright, competent and eventually hired as an associate, but was unable to get in the door for some time. There are real issues that are being missed by most.

I should also note that it takes four to six years from graduation for most graduates to quit thinking like a law student and to start thinking like a lawyer. Something completely missing from most of these discussions is that law school does not teach anyone to think like a lawyer, instead it teaches them to think like a law student. While it appears that being taught to think like a law student qualifies one to teach law seamlessly without significant transition time, it is different from thinking like a lawyer.

Posted by: Stephen M (Ethesis) | Jan 24, 2008 6:03:14 AM

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