The law school scam blogs often overlook the important difference between a law school’s administration and its teaching faculty, and their arguments sometimes miss the mark because of it. In my view, the blogs have some legitimate complaints about the lack of transparency at some law schools; of the way scholarships are structured; and the way tuition is set. Those are important issues. We should talk more about them. But for the most part, decisions about those issues are made by the law school administration instead of the teaching faculty.This is, as far as it goes, a fair point. But how far does it really go? That comes down to the answer to the question of the extent to which this arrangement -- in which law school deans make, in conjunction with university central administration, most of the big decisions about the cost structure of legal education, while in effect telling the faculty not to worry our pretty little heads about such things -- is something that's imposed on faculty, as opposed to chosen by them, if only by passivity and inertia.
Students may not be fully aware of the difference between the administration and teaching faculty, but it’s a pretty important one. If you’ll let me paint with a very broad brush, the Dean and Associate Deans run the law school and determine the school’s policies while the professors teach their classes, grade their exams, and write their articles. The kinds of law school policies attacked by the scam blogs are mostly in the realm of law school administration. The professors who make up the teaching faculty usually learn about these things when they read them in the New York Times or Above the Law just like everybody else. That doesn’t mean the professors should escape criticism. But there’s a big difference between the guilt of creating a bad policy and the guilt of not learning that the policy exists where you work.
The answer to that question is of course very institution-specific, so I can only speak from my experience. (I would be curious to know to what it extent it overlaps with that of Kerr and others). In my experience, faculty self-governance plays a minor to non-existent role in regard to the kinds of policies Kerr references in large part because the faculty doesn't want to deal with those things. I want to emphasize that in this regard I was for almost all of my legal academic career as guilty as the typical faculty member. I knew nothing about law school budgets, or about the process by which tuition was set, or about how policy was made on issues such as changes in the average teaching load for the tenure track faculty, or about how a school went from having two legal clinics to six in a matter of a few years, etc. etc.
When it comes to what has happened in legal academia over the past couple of decades, the vast majority of faculty have been, as it were, Mafia wives: we've managed to maintain a marked lack of curiosity about what Tony was doing down at the waste management company, as long as he kept bringing us nice presents and let us redecorate the living room every other year.
As I've said before, I admire Kerr's work on a number of topics, and I'm glad to see that he's not sticking his head in the sand in regard to the law school cost/employment crisis, as so many law professors continue to do. Still, it's a bit much for law professors to defend themselves by pointing out they didn't realize there was any serious problem with the combination of skyrocketing law school budgets and disastrous employment outcomes for graduates until we read about it in the New York Times. I mean David Segal is a really good reporter and all, but shouldn't we have had a better idea of what was going on at our places of employment than he did? If we didn't know, it's because we didn't want to know.
Part of what needs to change about law school culture is the idea that the regular faculty have no real role to play in things like the budget and tuition process. Under the circumstances, that's no longer an acceptable arrangement -- not just from an ethical perspective, but from one of sheer self-preservation.
(A couple of side notes: Kerr's assertion that I claimed I began to blog anonymously because I was concerned about institutional repercussions is incorrect. In fact I am concerned about potential repercussions -- and it would be quite naive of Kerr to dismiss such possibilities -- but as I said here and here and here, I chose initial anonymity for other reasons. Also, I'm a bit bemused by the claims of a couple of other legal academic bloggers that I'm just a publicity whore, given that, by comparison to their own hunger for public attention, Kim Kardashian look like J.D. Salinger).