Indignation

I don't want to make this blog a narcissistic exercise (what the world world needs now is another law professor's self-absorbed musings like I need a hole in my head), but I want to preface this post with a couple of personal observations. Writing this blog has been very gratifying, but it's also been difficult in some ways.

Addressing the questions I'm dealing with in the way I'm dealing with them is, from a professional standpoint, a somewhat alienating experience.  Believe me, I'd much rather write about what a great job we're all doing in the legal academy, and what wonderful educational benefits we're conferring on our students, and how our scholarship is improving the legal system and the world as a whole one insightful law review article at a time, and how prosperity is just around the corner.  I don't actually like being that guy: the rabble-rouser who refuses to criticize the flaws of our business in the modulated and polite and constructive way which will supposedly help convince fence-sitters to consider possible reforms instead of continuing to defend the status quo tooth and nail.  Being that guy leads, shall we say, to a certain degree of social awkwardness that can at times become genuinely uncomfortable.

It's rather sad that choosing to subject oneself to a certain degree of social awkwardness is what passes for "courage" in university life in these decadent days, as we bask in the sunset light at the end of a golden age of higher education that has paid off handsomely for so many academics and administrators. Still it would be pointless to deny that very few law professors are willing to consider even doing that much. All of which is to say there are evenings when I half-wish I had left well enough alone, and had never started looking into any of this stuff in the first place (Again, I'm ashamed to admit that just two years ago I was still allowing myself to remain blind to the economics of legal education, the job situation for our graduates, the gaming of the placement stats, the gathering student loan catastrophe . . . In the end, living is easy with eyes closed, which is the biggest reason so many people never open theirs.)

But then I read something like this (h/t to a commentator in the thread to yesterday's post):

What law schools accomplish: Keeping the faith

More than twenty-five years ago a furious little academic kerfuffle broke out when Paul Carrington, who at the time was dean of the Duke law school, suggested in the pages of the Journal of Legal Education that certain law professors had "a substantial ethical problem as teachers of professional law students." That ethical dilemma arose, in Carrington's view, because these professors were "nihilists," who supposedly disbelieved in even the possibility of principled legal decision making, because they thought "law is a mere deception by which the powerful weaken the resistance of the powerless."

What law schools accomplish: You are your LSAT score

Americans like to believe that people get what they deserve.  The whole premise of the American Dream is that, as Bill Clinton once put it, "if you work hard and play by the rules, you ought to have a decent life and a chance for your children to have a better one."  (This belief may also help explain why nearly half of Americans think the sentence "From each according to ability; to each according to his needs" appears in either the Declaration of Independence or the Bill of Rights.)

What law schools accomplish: We're talking about practice

For the last 20 years (and well before that for all I know which I don't) every high profile reformist commission/panel/whathaveyou that has looked at legal education has come to pretty much the same conclusion: law schools don't teach people much if anything about practicing law, and they should do something about that.  Of course lawyers have been saying the same thing for even longer, although in the typical fashion of this business, the fancier law firms, who in theory could use their hiring policies to make the fancier law schools behave differently, have never done anything to put any real pressure on such schools to engage in more vocational education.

What law schools accomplish: Part I -- Edification

Law schools perform four primary tasks, two of which they recognize, and two of which remain for the most part repressed or denied.  The two recognized tasks are edification and vocational training. The  two repressed functions of law school are social sorting and ideological legitimation.

What's the matter with OLs?

People immersed in, or even somewhat familiar with, the criticisms of law schools that can be found on dozens of scam blogs and even in a few impeccably mainstream venues are understandably somewhat puzzled about why the law  school bubble has yet to burst.  Not that there aren't signs of trouble -- as of March law school applications were down more than 11% from the same time last year -- but as commentators on yesterday's post noted, if you look at sites like this one, there's very little indication that anything has changed.

Who should go to law school now?

I got an email from an accountant in his late 20s a few days ago, who is considering going to law school a couple of years from now.  Being an accountant, he had  tried to break the question down in straightforward financial terms, which is a big improvement over the typical nonchalance exhibited by most prospective law students.  He graduated with a BA and MA in accounting from a good business school a couple of years ago, and he's about to become a CPA.  He's making about 60K and anticipates that will be 70K by the time he would be ready to go to law school.  His goal is to get into the very good (solidly into the top half of the first tier) public law school in his state of residence, which is currently charging resident tuition in the neighborhood of 33K a year.  The school's promotional materials claim that the average salary of its 2010 grads was $104K and change, and, given that the opportunity costs he would incur by going to law school would be quite high, he of course wanted to know how realistic of an estimate this was of what he was likely to make when he graduated.  Using it, he had calculated that ten years after graduation he would be a total of 175K ahead financially of where he would be if he stayed in accounting, after taking into account attendance and opportunity costs.

I steered him towards some LST materials so that he could better understand that this salary figure is both quite inaccurate as a statistical matter, and that furthermore even if the data used to compile it were accurate, it's a mean salary, so it's "average" in the same sense that a man who has one foot in a bucket of ice water and another on hot coals is on average experiencing a comfortable temperature. (Of course almost none of the school's 2010 graduates are making 104K or anything close to it. Some are making 50% more and a lot are making way less.)

Naturally other considerations besides return on investment are in play: he told me that after a couple of years he has realized that accounting is not something he wants to do for his long-term career, and that he loved the business law classes he took in business school.  Basically, he gave me the sense he's bored with his work, and that it doesn't seem meaningful to him.  I asked him to consider, when calculating the potential ROI of going to law school, to take into account not just the relative possible salary difference, but the actual hourly compensation rate for his work (he described his current work schedule as "lax.").  In this vein, I also suggested he try to develop contacts with people who were now practicing the kind of law he envisioned himself practicing, and who had similar educational and experiential backgrounds to his own, so that he could at least get some sort of glimpse into what their work lives were actually like.

All this is fairly obvious advice and of only marginal help to someone in his position.  Not only do I have no idea what it's like to be an accountant, I'm almost as clueless regarding the work life of a Biglaw business lawyer today. When it comes to the latter I, like the vast majority of law professors, am no more than an amateur armchair anthropologist, who a couple of decades ago lived for a short while on the edges of the tribe I'm now being asked to evaluate.  All I can really tell someone like my correspondent is that he would be taking what seems like a very big risk: leaving behind, at least for the time being, a solid career, to invest 300K (attendance + opportunity cost) in buying something which at present has an extremely uncertain ROI (all this analysis, for what little it's worth, is based on the assumption that he gets into this T-20 school that costs about 20% less than comparable private schools).  And course he has no real idea if he would find being a business lawyer more or less satisfying, all things considered, than accounting as a career, even assuming he gets the kind of job he thinks he wants now and manages to keep it. (This is the "psychic income" part of the equation, which is the hardest thing for prospective law students to calculate, and the aspect of the question that most law faculty are of the least use in helping answer).  At least, I suppose, he would have something solid to fall back on if the law thing doesn't work out, but even that assumption is grounded in my ignorance of how relatively easy or hard it would be for him to return to his present career path after a several-year legal detour.

At a more general level, who should be going to law school now?  Here are some nominations for good candidates:

(1) People who get full scholarships to good schools.  There are still real risks involved for such people -- opportunity costs, wasted time, potential brain damage, golden handcuffs -- but needless to say there are no risk-free career options, and going to a top law school for (relatively) free very likely makes sense for people who -- enormous caveat here, which I'm going to shout in block letters --  TRULY BELIEVE THEY WANT TO PRACTICE LAW AND HAVE SOME RATIONAL BASIS FOR THAT BELIEF. (Keep in mind you can get the equivalent of a full scholarship to a top school if you're genuinely confident you want to do public interest work, and take advantage of the school's LRAP program. This assumes however that you can end up getting a public interest job you would actually want to do, in a place you're willing to live, which isn't a minor consideration. Good public interest jobs are a lot harder to get than Biglaw slots).

After that things get trickier. 

Other possible candidates:

(2) People who really want to practice law who have full scholarships to middling schools.  For most people right now, it makes much more sense to take a full ride to a middling school than to pay full boat at a top school.  Keep in mind that somewhere in the neighborhood of 20% to 30% of this year's 3Ls at places like Michigan and Duke don't have jobs and are getting exactly zero OCI interviews -- as in "none."  (BTW, if you're in this particular boat you might want to read this and then organize a protest or something).

(3) (a) People who really want to be practice law, and who come from family circumstances -- rich indulgent parents etc. -- that dictate that someone other than yourself will be paying. (Crucial caveat: make sure these are people who won't subsequently hate you forever if it turns out they essentially bought you a high end luxury car which which you immediately drove uninsured and proceeded to total, as a prelude to doing the same thing again in each of the following two years.  Even more crucial sub-caveat: Spouses are unlikely to meet this criterion).

(3) (b) People who really want to practice law, and who come from family circumstances that dictate somebody can probably get you a good legal job by making a couple of phone calls, or even better by just hiring you straight out.

(4) Trust fund slackers (we call them trustifarians in our beautiful little town) who just want to fool around in "school" for another three years before becoming consultants on Green Development Projects in third world nations with fascinating indigenous cuisines just now being discovered by white people.  Seriously, if you're one of these people, we need you to come to law school, now more than ever.

Did I miss anybody?

The Road to Serfdom -- Part II

How much law school educational debt are law students acquiring?  The following information is courtesy of Matt Leichter, who runs the invaluable site The Law School Tuition Bubble.

Law school politics and the English language

One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman's discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds.  Another thing that has annoyed them is that everything I'm saying is either old hat and already perfectly well understood, or obviously false. The former category includes assertions regarding the rampant dishonesty of placement statistics, the disastrous job market for graduates, the skyrocketing cost of legal education, and the enormous debt load for our students those costs engender, as well as the apparently unsustainable nature of the current business model under which many schools are operating.

The Road to Serfdom

Government-guaranteed non-dischargeable student loans have become the crack cocaine of higher education in general, and law school education in particular.  Over the past decade, total outstanding student debt in the United States has risen from $180 billion to nearly one trillion dollars.

They write lettters, Part II

This comment was posted a few days ago in a thread on Prawfsblawg. The thread was closed to further comments immediately afterwards. It does a very nice job of summing up in a concise way how dire things are for what we can safely say are tens of thousands of recent law school graduates.  (Despite my use earlier today of the same Mafia wife metaphor employed by the writer, I didn't see this comment until it was forwarded to me by a reader this afternoon). Courtesy of  "Jack White," this is the crisis in a nutshell:

I'm not sure why this you profs aren't getting it. I'm not trying to get personal, so I'm just going to explain to you how non-T14 law schools (and even some T14 nowadays) look from the outside.
1. Naive early 20's kids with liberal arts degrees and little concept of the real world go to law school. They are lured in by borderline fraudulent employment statistics.
2. Having been told all their lives that "education is priceless" and having almost no financial experience they borrow six figure sums for school (which has risen in cost faster than inflation for decades).
3. They work themselves to the bone, giving up a good part of their youth for the prospect to join the profession which they have been told is necessary, noble, and valued.
4. A lucky few get into BigLaw and are able to pay their debts. (Albeit while working in miserable conditions and usually being discarded after a few years.)
5. The rest scramble to get a job with a starting salary that is a small fraction of what they owe.
6. They don't pay their debts on time and so penalty fees and interest pile up. Their credit is ruined forever as these debts (unlike virtually all others) cannot be discharged in bankruptcy. They can't buy houses, cars, rent a decent apartment, or ever have a family. They are basically lifelong failures at the age of 26. (There are a few ways out, but they are pretty drastic).
7. Their loans, being guaranteed by the government, are paid for by the taxpayers, who have just paid gobs of money for basically nothing. (This even happens with IBR.)
8. Law Professors live an upper middle class lifestyles built on the misery of their former students and the fleecing of the American taxpayer. (Some people in Administration live just as well, so I guess you guys aren't the only ones). Their work in the meantime is neither practically useful nor theoretically groundbreaking (according to LawProf).

If something else is going on here you'd better speak up with something better than this posting's attempt to muddy the waters. It just looks like evasion. At best you look like the Mafia Wives of Academia, looking the other way while the administration hurts people for your money. You are far along in the process of creating a generation that is incredibly cynical and will try to smash your ivory tower if they get the chance. 

Since you seem to very much be interested in the circumstances of those who criticize you I'll give you a picture. Basically I went a top 50 LS and realized I didn't want to be a lawyer. I dropped out after 1L. It was the best decision I ever made. When I see some of my former classmates I get something like survivor's guilt as I have an okay job and a manageable debt load. One of my former classmates told me that his life was just a miserable wait to die. I'm not sure you truly grasp the desperation of some of your former students.

They write letters

I've been getting a lot of things like this  (redacted and posted with permission from the author):

I am a 2007 graduate of a T2/3 law school (I worked for 3 years between my BA and starting my JD coursework). Though a good undergraduate student, I did horribly on the LSAT. I went to law school to promote social justice, not to earn the big bucks. I believed that being a lawyer and having a law degree would provide a very stable career. Eventually, I decided to pursue tax law. Tax is great because I can serve low-income taxpayers, while still working with a segment of the law that is constantly changing and the policy for which I find incredibly interesting. Of course, coming from a T2/3, I had to get an LLM to get a job in tax. So off to the top tax school I went, to study tax for 9 months for an exorbitant fee.

I generally did well in law school--I was one of the students who "got it." I graduated with honors, honor society, journal etc. I managed to land an associate position at a large regional firm in the same city. Though I had fully intended to work for a non-profit or a legal services-type organization, my debt prevented it, and I felt I HAD to take a job at a firm. I hated it. I worked for just over a year and was laid off in late 2009. After losing my job, I did some soul-searching. I decided I hated private practice, and wanted to go back closer to my roots: I decided to pursue jobs in progressive tax policy. I moved to DC, where policy/law jobs are plentiful, but so are un- and under-employed lawyers. I have to say that I briefly considered getting into the Academy--even signing up for the AALS "meat market." I got a couple calls from small law schools in Iowa and Ohio, but decided that I no longer believed in the law school model and could not stomach becoming part of it.

Since losing my job it has been a downward spiral. After moving to DC, I took odd jobs with solo practitioners, legal writing companies, and an unpaid "fellowship" on the Hill, and I lived in a depressing basement. In the weeks I wasn't working, I claimed my meager $400 a week in unemployment. There were days I was quite hungry. My family (all of whom live on the West Coast) were incredibly supportive, but could only send me so much money (there might have been a little pride involved, too :)). Finally, after a stint in doc review (which my friend and I have affectionately dubbed "lawyer sweatshop"), I landed a long-term temporary position at a prominent legal publishing firm. Our contract ends December 31, 2011, at which point I will be unemployed. Again.

Though I am incredibly grateful for what I have, I cannot help but wish for more: I have a JD with honors, an LLM from the top tax school in the country, and meaningful work experience. Yet, I cannot land a full-time, permanent job. I am lucky to have health insurance, but I have no time off. No sick time. My work situation is flexible (I can come in late/leave early for an appointment, etc.), but I only get paid for the hours I work. I am very grateful that it is unlikely I will default on my loans--thus far, I have been able to manage my nearly $250,000 debt with IBR and unemployment forbearance.

I know that I am better off than a lot of these younger lawyers. That I qualified for unemployment is huge. I get job interviews. I can afford the apartment I share with my friend. I have a great resume. I am an excellent researcher and writer. I rarely go to bed hungry anymore. I just have to be patient.  As soon as the economy picks up I'll get a permanent job. Right...?

Should I have been "kept out" of law school because my LSAT was too low? I'm not sure. Should I have been dissuaded at the time I made the decision by the debt and lack of job prospects from going to law school? I don't think so--though I didn't fully understand how much debt I would have, in the early 2000's folks from my law school didn't have much trouble finding jobs in the surrounding area. While I don't feel scammed, I simply wish I'd never gone to law school.

I am discouraged. I'm humiliated and demoralized. Worse yet, I am not challenged on a daily basis. I've resigned myself to the fact that I will never have a career. I won't have retirement savings. I will be living paycheck-to-paycheck for the next few years. I will continue to be immune to the rejection letters I receive in response to the litany of resumes and cover letters I send out daily (if I even receive indication that my resume was received). I will be just another number in this generation of lawyers who will fall by the wayside . . .

It's true here is a certain amount of responsibility on the part of the students who sign the loan papers, and who decide to go to law school simply because they think they'll get rich (and who are now whining because they aren't). But, in the end, the bulk of the responsibility lies with the schools, and their administration, faculty, and staff.

My law school is one of the most expensive in the country, and had to give so much of our tuition to the university (I always joked--a bit tongue-in-cheek--to pay for the basketball team, a huge money maker for this Big East school). Minority students almost always failed out. Our Dean was never at the law school--always gallivanting around the country to raise money. Our bar passage rate flailed. I will say that I chose to take classes from professors who were incredibly engaged with their students. Though their scholarship may be esoteric, I always felt cared for, and welcome in office hours. 

P. S. One thing that you haven't touched on (and maybe you will, though it doesn't have much to do with the law schools' failings) is licensing. I am now licensed in 3 states. I took 2 bar exams (2 summers in a row, 2 summers of bar loans) and waived into my 3rd. On meager earnings, I now have to pay nearly $1,000 a year to keep up these licenses (because who knows where I might land a permanent job?!), in addition to paying for CLE courses (some bar associations have been great about allowing me to pay a reduced fee--or no fee--when I explain my situation).

 How many stories like this are out there at this moment -- stories of talented, dedicated, public-spirited people, who are being ground down by a system that doesn't even bother to collect accurate statistics about its, as the economists say, "outputs? " These are the stories behind the statistics, and the law school world needs to listen.

To what extent are law faculty innocent bystanders?

Orin Kerr suggests that for the most part, we are:

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.

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.

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.

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).

Legal academia and the problem of bad faith

The godfather of critical legal studies, Duncan Kennedy, once described the problem of bad faith in judging as the half-conscious denial of its ideological element:   "The ideological element is a kind of secret, like a family secret . . . that affects all the generations as something that is both known and denied." The cls project was (is?) an attempt -- one that seems to have been largely unsuccessful -- to get legal academics to acknowledge consciously that the possibility of politically neutral judging was an illusion. 

But bad faith -- the half-conscious rejection of something that is at the same time both known and not known -- is endemic to legal academia in another way: one that is crucial to the law school's legitimation of the legal system.  Legal academics are professors of law because they don't want to be lawyers. Of course this has always been true to greater and lesser extents, but it's now become true in a particularly stark and disturbing way.  This is an unusual position for people teaching at research universities to find themselves in. 
Most academics at research universities engage in two kinds of teaching: the general edification of undergraduates, and the professional training of graduate students who, in theory at least, are being prepared to replace their professors.  Law school professors aren’t doing either of these things. Instead, they’re preparing (sort of) people to do something they wouldn’t do if you paid them a whole lot more than what they’re getting paid now. The reasons for this stark disjunction between the professional identity of legal academics (which is structured around fleeing the practice of law) and their functional role (which at least in theory involves preparing people to spend the rest of their lives practicing law) are not very mysterious.

There's a mountain of evidence that the contemporary practice of law has become, for most attorneys, somewhere between very unpleasant and deeply excruciating.  As a commentator at Lawyers, Guns, and Money put it recently:

Academics tend to miss the sheer drudgery and asswork involved in being a lawyer; the only reason people do it is because they believed at one point they’d be millionaires. If you are reasonably likely to make as much money being a nurse, no one will go to law school. I don’t know why so many reformers think there’s a bunch of potential lawyers in Los Angeles waiting in the wings to get yelled at by judges for $60k a year – their entire career.

 Even the academics that practiced for a long time tended to have surprisingly, uh, delicate careers; I don’t think many of them were hired to handle appearances day after day. Being an attorney is pure ass, and the only reason people do it is the idea of riches. A lot of attorneys don’t get to riches, but if you’re 45, w/ 20 years in on your job, you don’t have a lot of choice.

Like most law professors today, I barely practiced law (The average time spent in practice by tenure-track law faculty these days is around three years, with the "practice" in question usually consisting of junior associate drone work at a mega-firm.  It's not much of an exaggeration to say that the sum total of what such people learned about the practice of law is that they wanted to escape it as soon as possible. And of course, as the commentator notes, these people had what are usually considered the "good" legal jobs).

Law school hiring committees are bombarded with resumes from partners at big firms who would love to be considered for a tenure track slot.  On the other hand, how often does a tenured law professor quit to join a law firm? About as often as federal judges do. Here's Richard Posner's amusing analysis of Chief Justice Roberts' claim that there's a crisis of under-compensation among federal judges (The original blog post link doesn't appear to work, so this quote is taken from Volokh's site):

The most serious omission in Chief Justice Roberts's report is the other compensation that judges receive besides their salaries. Most judges who want to can teach a course or a seminar at a law school and receive another $25,000 in pay ....The federal judicial pension is extremely generous--a judge can retire at age 65 with only 15 years of judicial service (or at 70 with 10 years), and receive his full salary for life.... The health benefits are also good. Above all, a judgeship confers very substantial nonpecuniary benefits. The job is less taxing than practicing law, more interesting (though this is partly a matter of taste), and highly prestigious. Judges exercise considerable power, not only over the litigants in the cases before them but also in shaping the law for the future, and power is a highly valued form of compensation for many people. Judges are public figures, even if only locally, to a degree that few even very successful lawyers are. And judges are not at the beck and call of impatient and demanding clients, as even the most successful lawyers are.

Law professors lack the power of federal judges, but some of them enjoy salaries that have now become twice as large as those of the federal judiciary,* and their other conditions of employment are even more pleasant than those which, as Posner points out in his relentlessly empirical way, ensure that federal judges almost never quit the bench to return to the practice of law.  (Note that almost all federal judges and tenured law professors apparently find the best -- in the sense of the highest-paying and most prestigious -- jobs in private practice less preferable than their current positions.  Let's not even discuss the jobs that the vast majority of attorneys actually do).

For most attorneys, law practice features mass quantities of two elements that in most jobs tend to exclude each other.  Boring jobs are usually not particularly stressful, and stressful jobs tend not to be boring, but the contemporary practice of law often somehow manages to combine large amounts of stress and boredom at the same time.  It's no wonder that lawyers seem to suffer from much higher than average rates of substance abuse, depression, suicide, and other symptoms of deep personal unhappiness.  (And these are the people who have jobs! As the old vaudeville punch line has it, second prize is two weeks in Philadelphia).

On top of all this, the subset of lawyers who appear by comparison to like their careers -- so-called "cause" lawyers doing public interest work -- are now competing for jobs that are for that very reason even harder to get than big firm associate positions, and which pay salaries that aren't close to sufficient to service $150,000 law school debt loads while also paying the rent and buying groceries.

Meanwhile, being a law professor is a cushier gig than ever before, even, or I should say especially, for legal academics who are "working hard."  After all, as an extremely distinguished professor at an elite law school put it to me a few days ago, "I think the idea of calling what I do a job, or work, is a misnomer. First of all because I love it. I am doing exactly what I would be doing if I were independently wealthy, except for grading papers and faculty meetings." Precisely. How many practicing lawyers could say anything even remotely similar about their jobs? 

Law professors are getting paid (and very well) to send people off to do jobs that they themselves wouldn't exchange for their present jobs for almost any amount of money.  Except of course, increasingly, their students are suffering a much worse fate -- massive debt, no job, and a resume tainted by a JD degree that, to many non-legal employers, might as well be a volunteer summer internship with Al Qaeda.  The legitimation function of legal education requires orthodox legal educators to celebrate the practice of law as a noble enterprise -- yet it is an enterprise that law professors, on the whole, want nothing to do with, especially in any of the forms in which it will be experienced (endured) by the vast majority of their students. 

That is a recipe for another version of the bad faith -- the half-conscious denial of a truth too painful to confront -- that Kennedy places at the heart of the legal system.


*Elsewhere Posner notes that for many years the salaries of senior Harvard Law faculty were designed to mirror those of federal judges. Needless to say those days are long gone.

Cross-posted at LGM.

WSJ Q & A

Here are parts of an interview I did with the Wall Street Journal earlier today.

To what extent is more transparency the answer to what's wrong with legal education?

The answer, of course, is that we don't really know, because we still have a very inadequate level of transparency regarding a number of important things, most notably job and salary information for recent graduates.  My guess is that the kind of information which would be readily available if the recommendations made by the folks at the Law School Transparency project were adopted would constitute an important first step in reforming legal education, but no more than that.  Those recommendations or substantially similar ones should be forced onto ABA-accredited law schools immediately if not sooner by the ABA, especially given that law schools continue to publish placement statistics that bear little relation to actual employment outcomes.

An apology

In the two weeks since I started this blog, I've gotten many emails from practicing and former attorneys, unemployed law school graduates, current law students, and even several law professors, praising the project the blog is pursuing. I've found this response very encouraging, although of course not every correspondent has agreed with all my substantive arguments, or with what it would be fair to describe as the blog's less than deeply respectful tone towards the current state of the legal academic enterprise.

And it's good to see that in just the last day a couple of law professors whose work regarding problems in contemporary legal education I was already familiar with, and admire, have engaged substantively with issues I'm discussing (I will have more to say about the relationship between student loans and law school tuition shortly).  The whole point of this blog is to help continue a conversation that should have started much sooner than it did about the financial viability, educational and professional value, and ethical status of contemporary legal education.  This is a conversation that requires contributions from all parts of the legal profession in general, and the legal academy in particular, and again, it is heartening to note that, despite the substantive disagreements which exist on these subjects -- which are of course considerable -- and whatever reservations people may have about matters of tone and professional etiquette, that conversation is starting to take place in a sustained and serious way.  (I chose initial anonymity in an effort to keep the argument focused on the substance of the debate, rather than on the hierarchical status and personal qualities of those participating in it.)

It is thus with a certain sadness that I note one of the leading lights of contemporary legal academia,

Markets and failure: A response to Larry Ribstein

Larry Ribstein has posted a useful if somewhat querulous response to both this blog and Bruce MacEwen of Adam Smith, Esq.   Ribstein clearly doesn't like the tone of my criticisms, which is fine, but in regard to substance we mostly agree To the extent we don't this seems to be a product of our different levels of confidence regarding the general efficacy of markets, plus some over-interpretation on Ribstein's part of what I've actually said.

Anonymity, the critical perspective, and taking things personally

I've received a couple of furious emails from an outraged colleague who claims that this blog is attacking him personally by "broad-brush insulting all law profs, and more specifically those at your school."  He's angry enough that he decided to try to "out" me because, he said, "I'm not going to let this remain a one-sided fight whereby I'm attacked publicly and you get to hide from attacks."  It's clear this blog isn't going to remain anonymous for much longer, so I'm going to say a couple words about why I started blogging anonymously in the first place.

The student scholarship game

The following email is from a recent graduate of a Tier II school:

Getting law school costs under control

Any discussion of the explosion of the cost of legal education has to grapple with the fact that law schools face various regulatory barriers to change, as well as serious collective action problems. The latter are mostly products of the invidious effect of the law school rankings.  Perhaps the most absurd feature of the U.S. News & World Report rankings is that expenditure per student is used as a proxy for educational quality. This of course is a powerful incentive for law schools to go on unrestrained spending sprees, which they have proceeded to do.

Law school deans routinely shake tuition hikes out of their universities' central administrations by arguing that, given the way the rankings are structured, not raising tuition will make it difficult to spend as much money as the school's competitors, which will then hurt the school's ranking. When you think about it this makes about as much sense as not raising a car's price because failing to do so will hurt sales.  (In economics a commodity that behaves in this way is known as a Veblen good, and apparently some luxury goods that confer status precisely because they are high-priced do produce this kind of at least partially inverted demand curve).

A realistic discussion of what any particular law school should do to get costs under control must recognize the collective action problem the current perverse incentive structure creates.  It also must recognize that the present  ABA accreditation standards limit what ABA-accredited schools can do (For example the standards strongly encourage a student to full-time faculty member ratio of no more than 20 to 1, and forbid a ratio of higher than 30 to 1. For the purposes of this calculation non-tenured full time faculty count as .7 of a faculty member, and adjuncts count as .2.  This of course severely limits the number of adjuncts law schools can use).

Discussions of reform can therefore be divided usefully into short-term and long-term proposals. Short-term proposals are based on what's permitted and encouraged under the existing ABA rules and USNWR rankings.  Long-term proposals can look to changing those rules and de-emphasizing or, ideally, eliminating the rankings.

What can law schools do under the present circumstances to stop costs from continuing to spiral out of control?  This may seem too basic to even mention, but having sat through well north of 100 law school faculty meetings over the years, I can assure you it needs to be said, over and over again:  It makes no sense to talk about the benefits of doing something without talking about the costs of doing it as well.  Incredibly enough, in my experience, fundamental issues as "should we increase the size of the tenure-track faculty?" are discussed in such meetings with literally no consideration for the costs of doing so.  Faculty will have tremendous battles over which person to hire for this or that tenure-track "slot," but even raising the question of whether that slot should be filled at all is considered close to incomprehensible (believe me, I've tried). The attitude is, what do you mean should we fill this slot? We have a slot! We've been authorized to spend this money! Don't you understand that if we don't spend this money the university will just take away our slot? And we desperately desperately need a tenured person to teach a class in [fill in your favorite arcane sub-field]!   Do you realize that class has been taught by an adjunct for three years now?  (Another thing that will get you identified as an obviously crazy person is if at this point you ask if the adjunct is doing a good job).

All of this is a function of the fact that law school faculty often know little or nothing about their school's budgetary process.  At my school, we recently had a meeting to discuss budgetary matters in general and rising tuition in particular (the first such meeting that had ever taken place during my tenure there), and it could not have been clearer that several senior members of the faculty were completely unaware of what our tuition was. (You could tell because of the shock they exhibited when this highly classified piece of information was revealed to them).  Another thing that was clear was that no one on the faculty (other than the dean, and a couple of non-faculty administrators) had the slightest clue what the school's ratio of revenue to expenditures was, let alone where the money was coming from and where it was going.

This not what you would call an atmosphere that lends itself to rational cost-benefit calculations.  For many law school faculties, step one in regard to getting costs under control could not be more basic.  Faculties need to educate themselves regarding how much all these fancy new toys they want to buy cost, and then have a serious discussion about whether they're worth buying under the present circumstances.

I wish I had a dollar for every time I've heard the word "quality" invoked to short-circuit any potential discussion of these matters.  It's as if arguing that spending X will improve the quality of legal education at Our Great School is sufficient justification for anything: for building a $100 million new building, for increasing the size of the tenure track faculty by a third, for opening up three new clinics, for lighter teaching loads, more research leaves, more people in the placement office to help students not get jobs -- indeed for everything in the world you could possibly imagine.

If I were the king of the forest, I would require any faculty decision involving the potential for significant expenditure to consider explicitly the per student cost of that expenditure.  Is it worth charging every student $700 more per year in perpetuity to do X? Why? What are they going to get out of it that makes it a good idea to force them to reach into their pockets to pay for (or more realistically to debt finance) this? Because it will improve the quality of their legal education? Wrong answer! Please be specific and cite examples.

We wouldn't let our students get away with answer like that. Would we?

First Steps Toward Reform

Why does law school cost so much?  Imagine a world in which law schools were run in such an efficient and rational manner that they cost students just a few hundred dollars per month in tuition, while delivering the same quality of education (such as it is) as they do today.  Employing what some might consider almost mystical powers of perception, I have peered into the distant utopian future and seen the outlines of such a world.  It is called "the 1980s."  (Note: All monetary figures in this post are expressed in current, inflation-adjusted 2011 dollars).

25 years ago, i.e., roughly around the time that most of the people running law schools today were law students, median resident tuition at public law schools was $3,582 per year (Again, hard as it may be to believe, that figure is inflation-adjusted. The nominal figure was less than half that).  But LawProf, you say -- wasn't that during the socialist regime of President Ronald Reagan, when tax subsidies for public education in America were at positively Scandinavian levels of munificence? (I well remember Reagan's 1980 presidential campaign slogan, "The Struggle of the Proletariat is a Political Struggle").

True enough, young Jedi. I see you have learned to think like a lawyer, and to distinguish otherwise similar fact patterns. But learn you now this: Median private law school tuition was $14,762, in present dollars. That's right: 25 years ago, completely unsubsidized legal education at ABA-accredited law schools was slightly more than one third of what it is at such schools today, and 25% less than resident tuition at public law schools today.  (Median tuition for private law schools is now nearly $40,000 per year, and median resident tuition is about $18,500).  And note these are medians, which means of course that half of all law schools had lower tuition than these figures represent.

In other words, unless you assume that the law school graduates of a couple of decades ago were drastically less well-prepared to practice law -- and to teach it! -- it seems that figuring out a way to provide a perfectly adequate legal education at a small fraction of today's cost should not be the equivalent of discovering a cure for cancer, or leading the Detroit Lions to a Super Bowl victory.  No miracles are necessary. Instead, law schools could just stop doing the things they've been doing with increasing intensity over the past 25 years that have put the cost of legal education through the roof.

The main drivers of law school expenses are: faculty and staff compensation, physical plant expenditures, library operating costs, financial aid for students, and cross-subsidization of other university programs.  With the possible exception of the last item, the cost of all the other things on this list has skyrocketed at the typical law school over the course of the last generation.

The first step toward stopping this pattern is to recognize it for what it is: that is, a series of discrete decisions on the part of law schools (or more accurately the law school cartel -- for as we shall see what we have here is a classic collective action problem) that were not mandated by external economic or political pressures, but have been produced by a combination of the regulatory structure of contemporary legal education, and the ideological structure of contemporary American society, with the technical academic description of the latter being "I've got mine Jack."

Over the next few weeks, law school faculties will be getting together for the first meeting of the academic year, at which it's traditional to discuss long-range goals and strategy and the like.  Here's what I recommend as one possible agenda item for such discussions: How can we stop spending like drunken sailors, given that we're passing on the tab to people who, increasingly, can't really afford to pay it?  This is not, needless to say, merely an ethical question. It's very much a pragmatic question, given that the laws of economics predict that, if present trends continue, we're going to get cut off rather abruptly.  From the perspective of sheer self-interest, it would be better to sober up gradually.  And the first step is to recognize the problem for what it really is.

Other barriers to communication

The following comment from a law student isn't posting for some reason.  I thought it was particularly perceptive:

Understanding the rage of recent law school graduates

The comment thread following this post throws a useful light on both the anger of many recent law grads, and the defensive reaction this anger tends to elicit even among that subset of legal academics, such as HDL, who are not simply burying their heads in the sand in regard to how bad the situation has become.  That's unfortunate, because the comments of posters such as Morse Code for J, Shark Sandwich, and Dumpy are the kinds of things law professors and law school administrators need to hear.

Another perspective

This message was sent to me by a very successful (and in my view very distinguished, which needless to say isn't the same thing) mid-career law professor at a top ten school. I'm posting it with his permission.

[The current employment situation] is definitely not good.  It is not an exaggeration to say that just a few years ago any [school name redacted] law student who wanted legal employment would get it, so this is a significant change.  We are all hoping, obviously, that it is a short-term change.  For those who choose (and are able) to work in public service (including things like US attorneys offices), our loan forgiveness program is now sufficiently robust that it can eventually pay off all of a student's loans.  Another change [in the statistics] is that in the past we were asked to report only students who were actively seeking employment and thus not folks who were pursuing graduate studies, went to law school on a lark but never wanted to practice, etc.  Now, however, we are required to report these folks in the unemployed column, so the data is complicated.

In terms of your other posts, here is my situation and I believe it is similar to many "successful" legal academics out there:  I love my job and it is certainly less stressful than being a partner at, say, [elite law firm] (where my best friend from law school earns about 1 million per year).  But I work well over 40 hours per week during the school year.  I've actually kept track of my hours at times just to see.  Where does the time go?  Preparing for and actually teaching is not the biggest component, as you rightly point out.  Probably about 15 hours per week total.  (I always re-read the cases, often look at recent articles on the topic to try to keep things fresh, sometimes even switch casebooks, etc.)  I spend a number of hours each week on administrative work -- hiring committee meetings, etc.  I also meet with students about their research projects and after class, help them with student groups and activities, etc.  I also read and comment on drafts of my colleagues' work, as well as the work of faculty at other schools.  I further read workshop papers and attend workshops at my law school (at least one per week, sometimes more, particularly when recruitment candidates are coming through).  I also participate in a lot of conferences and external workshops.  The rest of the time is spent on my scholarship.  Even after [many] years of teaching I often work on the weekends, to my [spouse's] dismay.  This weekend I am working on a new article; last weekend I was editing a new edition of my casebook; when vacationing in [  ] the week before I was also reading a book manuscript for a colleague and giving him detailed feedback at night.  When I was teaching [a new type of] seminar last spring (a particularly demanding but rewarding class), I was working at least 60 hours a week.  Of course not everyone is diligent, but as far as I can tell many of my colleagues are diligent because they've always been that way in their lives and they don't suddenly become new persons when they get tenure.  I say all of this recognizing that we have great jobs, with amazing flexibility, both in terms of time and in terms of intellectual freedom. 

This is a useful corrective to the mis-impression the previous posts on this blog might create in some readers that I'm claiming all law professors work much shorter hours than they would in practice, or that there aren't people who are both hardworking and talented on legal faculties.  Obviously there are, and it should also be obvious that one is more likely to find such people the higher one goes in the legal academic hierarchy (as my friend points out, genuinely driven people don't usually lose their drive just because they've been granted tenure).

One also tends to find such people, naturally, among those in legal academia who engage regularly in print and on the internet with legal, academic, and other public issues, since these people are likely to be considerably more engaged with their professional lives than the average law professor.  This may lead to some natural over-estimation on their part when such people try to generalize from their own work experiences to the work habits of legal academics in general.

His comments also suggest another topic worth exploring, which is how desirable it is (or isn't) for all of legal academia to be imitating the economic, intellectual, and pedagogic structure of the elite national law schools.  One consequence of the ratings game is that schools feel impelled to do so, even though it should be obvious that, say, the Stanford Law School and a fourth-tier law school are both legal academic institutions in roughly the same sense that Japan and Sierra Leone are both sovereign nation-states.

What does it mean to call law school a scam?

Not surprisingly, some law professors aren't too happy about some of the assertions I've made -- or supposedly made: contra Prof. Horwitz I never said "virtually no professors prepare for class" -- during the six days of this blog's existence (like a more distinguished predecessor, I plan to rest from these creative labors tomorrow).

Law and?

This is the last (for now) of a series of posts about scholarship and legal academia.  As I describe below, until fairly recently law professors on average produced little published writing in comparison to other faculty at research universities, and what they published tended to be "practical," rather than academic in a sense that would be recognized by the rest of the university. The typical law review article was a kind of glorified legal brief, and was published without the benefit of peer review, by authors who had no formal academic training beyond whatever they got as undergraduate and law students. Some aspects of this system began to change in the 1970s, with advent of so-called interdisciplinary scholarship.

Interdisciplinary scholarship became a significant factor in legal academia for a number of reasons, but the one I want to focus on here was the gradual loss of faith in law as what Richard Posner has called an "autonomous discipline."  The idea that it made sense to study law as a genuinely independent academic subject was, naturally, closely related to a belief in some at least moderately formal conception of law -- that law could not be reduced to politics by other means, and/or a series of economic transactions, and/or a sociologically interesting set of practices, and/or a secular substitute for religion, or what have you.  In other words, the belief that there really was such a thing as "the law," that couldn't be reduced to some combination of the social phenomena studied in other parts of the university, was critical to the academic (as opposed to merely practical) legitimation of the traditional doctrinal project to which the vast majority of legal academics who published anything at all were dedicated.

Of course this belief had been under attack almost since the founding of the modern American law school -- see for example Oliver Wendell Holmes' famous 1898 essay The Path of the Law -- but despite intermittent assaults by advocates of sociological jurisprudence and legal realism, it had proved remarkably durable.  That the belief served as an obvious justification for maintaining schools of law within research universities no doubt had something to do with the successful repulsion of intellectual attacks on it (As Upton Sinclair remarked, it is difficult to get a man to understand something when his salary depends on his not understanding it).

The 1970s saw a fresh wave of attacks on this faith in The Law, from across the political spectrum. On the right, Law and Economics aimed to undermine legal formalism, while from the left the Critical Legal Studies movement launched, polemically speaking at least, an all-out assault on it.  This intellectual bombardment softened up the beachheads of hiring committees, and all sorts of peculiar characters -- people who ten years earlier might have gone on to become English professors or economists or sociologists or anthropologists, or political scientists -- started infiltrating law school faculties.

The results for legal academia have been mixed.  On the one hand, as I noted below, it's clearly the case that law school faculties have more people of a genuine academic disposition on them than they did 40 years ago. On the other, the traditional doctrinal project -- the idea that law professors should be concerned mainly with determining what the law on any particular question "really is," so that they may then inform judges and other legal decision makers of their discoveries -- has continued to prove remarkably durable, and indeed remains the dominant conception of what legal scholarship should be about.

Everything else, which for convenience's sake can be referred to as "Law and," is still seen as, relatively speaking, ultimately somewhat marginal to the legal academic enterprise, and indeed interdisciplinary work tends to be welcomed only to the extent that it conforms itself to the prescriptive and utilitarian structure of the traditional doctrinal project (In other words it's OK to do legal sociology or legal philosophy or law and economics or law and literature, as long as you're still telling judges what to do).

This marginalizing of interdisciplinary work that doesn't conform to the prescriptive formalism which remains the dominant jurisprudential vision of law in American law schools has had bad effects.  For one thing, it makes it difficult for people who want to do serious academic work that makes no pretense of being helpful to judges to do it without having to justify their work in the face of the kind of anti-intellectual nonsense illustrated by John Roberts' recent comments on legal scholarship.  Yet it's perfectly understandable why law school faculties cling so fiercely to the doctrinal project.  After all, the doctrinal project -- the business of attempting to determine what the law "really is," so as to cleanse it of political, economic, and other social impurities and distortions -- is in the end the best, and indeed perhaps the only good, justification for universities to maintain schools of law as independent academic departments.

In other words, if law is ultimately nothing other than "law and" -- if law is not an autonomous entity, that cannot be explained fully as a subset of more general social, economic, and political practices -- then what is the justification for schools of law as freestanding academic departments within research universities? If studying law must in the end mean studying the economics of law and the sociology of law and the philosophy of law and law as literature and the politics of law, then doesn't it make more sense to have those inquiries conducted by economists and sociologists and political scientists and professors of philosophy and literature, rather than by pseudo-academics who got their jobs primarily by doing exceptionally well on issue spotting exams at elite law schools?

That uncomfortable question raises yet further questions about why law schools should be postgraduate university-based institutions at all -- questions which I'll explore in the context of discussing the future of legal education.

Interview with Constitutional Daily

I did an interview yesterday about ITLSS with Constitutional Daily.  The interviewer follows up with some perceptive thoughts of his own regarding what will happen when and if the current crisis in legal education subsides:

In law there is a serious graveyard problem. It's easy for law professors to look at their graduates who have gone on to do great things, or to see the wonderful opportunities their current students have, and to think everything is just fine and dandy. They tend not to keep up with the people who never found legal work, or who are stuck in a permanent cycle of temporary document review jobs that only qualify as 'legal' on a time sheet, and are as intellectually stimulating as working in a restaurant dish pit (with only slightly better pay).

When the economy picks up again, law firms won't be hiring those of the lost generation, they'll go back to fresh law school graduates. There will be a library wing named for the next big benefactor, but no memorial to the tens of thousands of young lawyers laid off in the recession and unable to bounce back, or the tens of thousands more whose law careers were ended before they even started. They will however get calls from the alumni office asking them to 'give back' to their schools, and letters from the dean bragging about hundred million dollar fundraising goals being reached. Schools will raise funds for their new sponsored chair, or Law and center. They won't have a fundraising campaign to provide debt relief to students who are in fierce competition just to take unpaid jobs.

Keeping tabs on lawyers is tough. They're miserable, over worked, and stuck in depressing, thankless jobs. Talking to them about it isn't pleasant, for anyone. But, if you are serious about reforming law school, that's who you need to talk to. If the only students you talk to are the ones for whom law school worked, you're not going to see the pressing need for reform. You have to maintain relationships with the students for whom law school didn't work. It's a shitty job, but you know what? Most of your graduates have shitty jobs.

 

Would you pay $100,000 for a law review article?

That's what Richard Neumann of the Hofstra University School of Law estimates to be the typical cost to the professor's institution of a law review article written by a senior professor at a fancy law school.  He puts a price tag of $25,000 to $42,000 on articles written by junior professors at lower-tier schools.

Naturally this raises the question of why law students should be paying between half and three-quarters of this cost (those fractions represent the portion of a law school's operating budget that is covered by tuition at most law schools, with the fractional share tending to increase as one moves down the law school hierarchy).

Chief Justice John Roberts seems skeptical about whether students (or anyone else) are getting their money's worth:

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

On one level I'm annoyed by Roberts' faux-populist anti-intellectual carping, in which the former Covington & Burling Hogan & Hartson partner with a couple of Ivy League degrees in his pocket implies he's just a plain-spoken country lawyer, who doesn't cotton much to fancy book larnin.'  What's more annoying still is the reaction this elicited from some law professors, who rushed to assure Roberts that if he just took time out from his summer vacation to look at some recent law review issues, he would find them filled with all sorts of practically useful advice for judges and lawyers.

This little spat raises the question of what sort of legal scholarship, if any, school faculties should be producing, given the very high price tag their publications command.  People like Justice Roberts and Judge Edwards have an answer to that: law professors should be writing things that help judges and lawyers do their job -- what Edwards, in a somewhat infamous law review article published nearly 20 years ago, called "practical scholarship."  (Roberts' claim that he doesn't care if legal academics busy themselves publishing obscurantist arcana, as long as they don't expect their work to be of any use to judges and lawyers, seems like a purely rhetorical gesture).  The defensive responses of law professors, who protest they are in fact producing "muscular critiques of contemporary legal doctrine," rather than Kantian meditations on 18th-century Bulgarian civil procedure, indicate that many legal academics -- I would venture to guess the overwhelming majority -- agree.  From their perspective, "legal scholarship" means, essentially, writing things that will be of practical use to judges and lawyers.

Indeed, there is something very strange about complaints such as Edwards' and Roberts.'  The claim that we are suffering from a shortage of "practical" scholarship -- meaning, in Edwards' and Roberts' terms, traditional doctrinal scholarship aimed primarily at the bench and the bar -- is about as plausible as claiming America is currently suffering from a shortage of reality TV shows.  Vastly more traditional legal scholarship is being published now than when Judge Edwards was an articles editor of the Michigan Law Review in the 1960s.  This is because while the percentage of what Edwards' calls "impractical" (non-doctrinal, and/or non-normative, and/or interdisciplinary) scholarship has increased significantly, the large majority of what law professors publish still falls squarely within the traditional model, while at the same time, because of the increase in the size of the law faculties and the raising of publication requirements by law schools, the total amount of legal academic publishing has grown by several orders of magnitude.

Since Roberts' joined the SCOTUS, legal academics have published literally hundreds of perfectly traditional doctrinal articles, not merely about the Supreme Court, but focused on the current Supreme Court's work product. I would venture to guess that the number of these articles that have been read by any member of the Court could be counted on the fingers of Mordecai Brown's pitching hand, with a couple of digits to spare.  Which raises an awkward fact about legal scholarship aimed at judges and other legal decision makers: The evidence is overwhelming that the putative audience for this writing ignores it almost completely. In this regard judges are no different than anyone else.  The typical law review article is read by perhaps five people: the author, one or two of the author's more diligent colleagues, and a couple of law review editors. 

Edwards and Roberts claim they want legal academics to write "helpful" things, but judges already have plenty of reading material to help them decide cases, in the form of briefs and bench memos, which deal directly with the cases actually before them at any particular time.  The claim that they wish to enrich their professional literary experiences with a wider selection of doctrinal legal scholarship than is available to them currently is, to put it far more politely than this claim deserves, highly disingenuous.

Given the void into which almost all it immediately tumbles, is traditional doctrinal legal scholarship good for anything?  I would not go so far as to claim it has no value: even under current technological conditions, which allow a lawyer or clerk to find judicial opinions and summaries of their content much more quickly than in the pre-online era, there is some value added to the system by having a certain number of diligent judicial factotums organize, categorize, and critique the current structure of legal doctrine.  But the key modifier here is "a certain number."  That number, in my view, is surely much lower than the number of legal academics (several thousand) who dedicate their intellectual energies to this particular endeavor.

Well then what about the non-traditional scholarship that Chief Justice Roberts and Judge Edwards disparage?  That is a subject for another post.

Legal Scholarship: Part II

As I outlined previously, in the 1980s and 1990s law schools began self-consciously hiring faculty who would produce more scholarship, and in particular the new interdisciplinary scholarship ("law and").  And they increased their tenure standards in regard of publication requirements, at least in terms of sheer quantity. As law schools throughout the hierarchy became more academically ambitious (although of course like everything else in the law school world the strength of these trends varied enormously depending on a school's hierarchical position), this had strong economic effects on the structure of legal academia.  The most important were these:

ITLSS Hits the Media

Inside Higher Ed has a story this morning on this nascent blog project.  A quick comment:

Michael Olivas, the current president of the American Association of Law Schools (basically the trade association for ABA-accredited schools), makes a really bad argument when he suggests I return half my salary if I'm so guilt-ridden.  This reminds me of the argument that people who have an AGI of over $250K and who support the repeal of the Bush tax cuts for those in their income category should simply write a bigger check to the government, instead of trying to get the cuts repealed in general.  (If you need an explanation as to why this is a ridiculous argument you probably shouldn't be reading this blog, although apparently you're qualified to be president of the AALS).

BTW Michael Olivas's base salary from the University of Houston Law Center last year was $169,646.

I will have much more to say about law professor salaries soon . . .

Legal Scholarship: Part I

If tenured law professors are averaging about an hour a day over the course of a 250-day work year on preparing for and teaching their classes, what else are they doing with their time? Most ABA-accredited law schools are units within research universities, and research universities usually have formal rules that count teaching and "research and creative work" equally in the tenure and evaluation process. In fact at the most elite universities, and to a lesser extent at the law schools within such universities, these formal rules are routinely ignored.  As I once heard a famous law school dean put it: "At Yale, teaching is like hitting a home run at the faculty softball picnic. Your career here will be based on what we think of your scholarship. And if you hit a home run at the faculty softball picnic, well that's nice too."  I say "to a lesser extent," because when it comes to academic standards, law schools sit uneasily within the American university system.

This is in large part a function of history.  Until relatively recently, even at the most prestigious universities, law schools were treated as essentially (a) trade schools; and (b) cash cows, by the rest of the university in general, and by central administration in particular.  In short, even the most intellectually ambitious institutions didn't take their law schools seriously as academic units. And on the whole, with rare exceptions, the law schools were happy enough not to be taken seriously.  Even at top schools professors were expected to produce not much more than a "tenure piece" -- an extended piece of writing that would confirm the modest academic bona fides required of a law faculty member. If they published little or nothing subsequently, this was hardly looked down on. Law professors were expected to focus on teaching, bar work, law reform, etc., rather than engaging in the sort of sustained academic inquiry found in other units of the same universities.

I'm generalizing of course. There were occasional outbursts of sustained academic ambition at a few schools, such as Yale and Columbia in the 1920s and 1930s, and Chicago after World War II. But these were very much the exception, even at elite universities. As for law schools at less prestigious institutions, even these  modest scholarly ambitions would have seemed, until quite recently, extreme. At the vast majority of law schools, writing scholarship at all, after publishing whatever pro forma work was necessary to clear the university's tenure bar (which at such schools was placed helpfully on the ground) was considered something of a quirk at best, if not an act of subversion in regard to institutional morale. My own school has a typical history in this regard: located within a good regional university with some nationally recognized departments, the law school's scholarly ambitions were, until the 1980s, completely non-existent. People who wanted to do serious academic work invariably left if they could.

Part of the reason almost no one, either inside or outside legal academia, took legal scholarship seriously was the legal academic publication system.  In a unique twist for what was purportedly a scholarly discipline in  the American university system, legal academia has never developed any kind of general peer review publication process. Even today almost all legal academic journals are run by law students, who select and edit the work published in them.  This system, which naturally fills other academics with shock and awe, actually made a certain degree of sense under the old law school dispensation. Until about 40 years ago, practically all scholarship published by American legal academics was strictly and narrowly doctrinal.  There were very occasional exceptions, but aside from these, the typical law review article was essentially a more sophisticated version of the student "notes" published in the same journals.  For all practical purposes legal scholarship meant doctrinal legal scholarship, and its intellectual ambitions were, as Richard Posner (one of the leaders of the first wave of "law and" scholars who rebelled against this model) has often pointed out, quite modest. The articles law professors wrote were almost always extensions of the same sort of doctrinal vision of "the law" that dominated the classes they taught. Under such circumstances, it was not completely absurd for law students to be the gate keepers to legal academic publication.

In short, the typical law review article was a kind of first cousin to the brief or bench memo. It was an artifact of a system in which law professors saw their main scholarly task, to the extent they had one, as helping judges to decide cases correctly.  This made sense given that law schools self-identified strongly as sites for professional training rather than places for ambitious academic inquiry of a more general sort. It also made sense given that very few law faculty had any academic training beyond their undergraduate and law degrees -- and again their legal education had almost always been "practical" rather than academic (Actually it had been, as it remains today, almost completely impractical in terms of teaching law students anything about practicing law, but in this context "practical" has always meant "doctrinal.").

All this began to change in the 1970s.  For complex social, economic, and political reasons, the more prestigious law schools suddenly began to find their faculties filled with young people interested in, or more precisely, interested in creating, such sub-fields and law and economics, critical legal studies, feminist jurisprudence, law and literature, and eventually quite a few other varieties of what came to be known as "law and."   Because law in general, and legal academia in particular, is such a strongly hierarchical set of institutions, this development had an inevitable ripple effect throughout the legal academy. By the mid to late 1980s even quite middling law schools that had never had anything resembling true academic ambitions for their faculty began to act as if it were important that those faculties be staffed by people who could, as they say in academia, make "an original contribution the literature."

This led to changes in hiring practices -- changes that were more pronounced at elite schools, but could be seen to lesser extents well down the legal academic Great Chain of Being.  It began to become common to hire entry level faculty with advanced degrees other than a JD, and to pay less attention than ever (not that much had been paid in the past) to whether entry level hires had practiced much law.  More attention was paid to whether candidates had published something, and to whether they supposedly had "scholarly potential."  At many schools the tenure process, which had been largely pro forma up till then, began to include actual publication demands that went beyond "the tenure piece." Again, all this was much more pronounced the higher one went in the hierarchy, but, in a development that has had enormous economic consequences for the latest generations of law students, a very large number of law schools decided that, if the Harvard Law School was going to start acting more like the Harvard history department, then the Pretty Good Law School in Flyover Country was going to start acting more like the Harvard Law School.

What those consequences have been, and what law students are getting from this relatively recent commitment (or supposed commitment) to academic seriousness on the part of law schools, will be the subject of another post.

Law School Teaching, Part II

In my previous post, I discussed some of the reasons why so much legal education is both a practical and intellectual waste of time.  I didn't touch on some related issues, such as the fact that most law faculty have had literally no classroom teaching experience before they become "law professors," that they get no training or real guidance in regard to what they're doing in the classroom at any point in their careers, and that many of the traditional methods of law school teaching, in particular cold-calling students in order to require them to participate in a pseudo-Socratic dialogue, are simply idiotic (if research into education methods has established anything, it has proven that fear is a powerful impediment to learning).

All these things combine to make the typical law school classroom experience a fantastically inefficient misuse of social resources.  Beyond this, many outside observers would be shocked to discover how little time and effort law professors, and most especially the traditional tenure-track faculty, devote to teaching.  Given that, in theory, the whole reason law schools exist is to teach people how to be lawyers, this is a fairly remarkable fact.  How much do law professors teach, and how much effort do they put into their teaching?  The answer to the first question varies quite a bit across schools, with lower teaching loads correlating with higher institutional status.  But the situation at my school is not at all unusual at dozens and dozens of schools (at a few top schools teaching loads are significantly lower).  Tenure-track faculty at my school typically teach three classes each academic year. This results in a median teaching load of nine credit hours over two semesters.  The mean load, however, is less than eight, because of sabbaticals, research leaves, parental leaves, and administrative relief.  Over a several-year period, then, the tenure track faculty will teach an average of approximately 2.5 classes per year.

This number has dropped quite a bit over the course of the last couple of decades. 20 years ago the average load at my school was four classes, not three, and research leaves and parental leaves didn't exist. Thus the teaching load was about 30% higher.  This is a typical pattern for law schools all across the hierarchical spectrum: salaries have shot up, and teaching loads have declined, while all sorts of perks that didn't exist a generation ago are now considered standard parts of the tenure track faculty's privileges.

Now, how much work does teaching a long-term average of less than three classes per year actually represent?  Compared to other forms of teaching, law school teaching is not exactly time-intensive.  For one thing, the traditional law school class features very little in the way of evaluative responsibilities for the professor.  Students are given one test at the end of the semester, and the professor need not bother with any other formal evaluation of their performance.  For another, with the exception of grading (and law school is structured to produce the minimum amount of grading possible), large classes are much easier to teach than small ones.  Teaching a 12-person seminar in which all the students are expected to participate with the professor in a genuine dialogue about the material is difficult. Teaching a 100-person class, in which the professor can either drone on while students check their email and Facebook accounts, or can harass individual students while everyone else checks out even more completely, is relatively easy.

Indeed almost everything about traditional law teaching is easy: legal doctrine is easy to reduce to "outline" form, and since most law students are given the mis-impression that "learning the law" means learning legal doctrine, they are happy enough to be fed a slightly glorified version of a commercial study guide, with occasional bits of intellectually farcical "policy analysis" thrown in.  In fact it's so easy that, once a professor has taught a class once or twice, preparing for class requires no more time than teaching the class itself.  This may well be a generous estimate: on the basis of many years of observation at four different law schools, I would say that most law professors dedicate at most an hour of preparation for an hour of classroom teaching.  Many spend much less (I have had more than one colleague admit to me that, in courses he has taught many times before, he will sometimes teach a class "cold," that is, with no preparation at all).

But let us be liberal, and assign an hour of preparation for each hour spent in the classroom.  Now let's do a little math.  Most law schools have 15-week semesters, but it's common to count the exam period as part of the semester, thus resulting in 14 weeks of classroom teaching.  Thus, at schools with nine-hour annual teaching loads, the average professor will spend about nine hours a week (half in the classroom and half preparing) on teaching, for 28 weeks out of the year.  This produces a grand total of 252 hours of time dedicated to teaching per year, or about one hour per each putative working day.  This ignores sabbaticals, research leaves, and paternal leaves, which push the real average even lower. (It does omit grading as part of teaching time. More about that shortly).

Of course some law professors will swear they dedicate far more time to teaching than this. Some of them are even telling the truth (How much this benefits their students is another question, given that ever-more exquisite elaborations of doctrinal niceties soon reach a pedagogical point of sharply diminishing returns).  But others are "dedicating" a good deal less.  Some professors who have taught exactly the same classes for a decade or two do essentially no preparation any more.  They are like the most burnt out teachers at your high school, if you went, as I did, to a middling-quality public school. But with this difference: the most burnt-out teachers at your high school still had to stick around at work for seven or eight hours a day. Also, they didn't get paid $200,000 (or even quite a bit more) per year. And needless to say you didn't have pay $50,000 a year for the privilege of being exposed to their talents.

Fake it Till You Make It: Law School Teaching, Part I

Here is a passage from William Ian Miller’s book Faking It:

It happened again today: I was bluffing my way through some material in my Property class, about which I knew no more than the teaching manual told me, it being the extent of my researches on the topic. On such occasions I present the material in the pompous style in which professional banalities are often uttered, meaning thereby to prevent student questions by elevating myself to the regions of the unquestionable. God forbid one of them should start thinking deeply about the stuff and expose the limits of my knowledge.

Miller, who has been a professor at an elite law school for nearly 20 years, is one of a handful of people in this business we’ve chosen who is both willing and able to write candidly about it.

Welcome to My Nightmare

A few years ago, in a town in Ohio whose name I have no wish to recall, I lay in bed in one of those mid-level chain hotels that are the typical venues for academic conferences in flyover country.  I was contemplating, not for the first time, the disastrous marriage in which I had allowed myself to become enmeshed, and how I might deal with my misery without actually ending it (that is a long boring story, otherwise irrelevant to this blog, except possibly as a metaphor for another condition, which I and perhaps you now share).  Anyway, it occurred to me that I could start a blog at which people could post stories about miserable relationships from which they could not escape. I had a good title too: Welcome to My Nightmare (yes I attended, sporadically, an American high school in in the 1970s). Of course nothing came of it, but one day soon after, miraculously enough -- or so it seemed at the time -- I escaped that horrible situation, and all that was left of my stillborn blog idea was a wistful memory.

Until today.  I am a law professor.  I have been one for many years, and hope to remain one for many more.  I have had, by the conventional terms in which such things are measured, a successful career in legal academia.  I am on the faculty of a tier one law school, and have taught at several others. I must confess -- and for reasons that will become clear it does feel like a confession -- that I love almost everything about my job.  I like teaching, I love writing, and most of all I love the freedom to do pretty much whatever I want 95% of the time while being paid a ridiculously high salary to do so.

Here's what I don't like about my job: Grading, faculty meetings and committee work. But since two of these three activities can be to a significant extent avoided by a sufficiently brazen senior faculty member, they are very minor inconveniences. Yet, over the past few years, a dark cloud, wispy at first, yet slowly and inexorably growing, has appeared in the azure skies of my professional life.  Now, a couple of weeks before the beginning of another school year, it has grown to thundercloudish proportions.

It is this: I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. And who or what is doing the scamming? On the most general level, the American economy in the second decade of the 21st century. On a more specific level, the legal profession as a whole. But on what, for legal academics at least, ought to be the most particular, most important, and most morally and practically compelling level, the scammers are the 200 ABA-accredited law schools.  Yet there is no such thing as a "law school" that scams its students -- law schools are abstract social institutions, not concrete moral agents. When people say "law school is a scam," what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

We don't mean to, of course. Like my learned colleagues, I'm just a soul whose intentions are good! And anyway it's mostly the dean's fault -- it's not like I was ever consulted about raising tuition 130% etc. etc. Yes there are so many excuses -- I hear them every day (or would if I ever saw my co-workers in the office in the summer. Oh yes they're "working at home." More on that soon . . .).

Remember the definition of an intentional tort? In tort law (not my subject btw so feel free to correct me) an action is "intentional" if the person who commits it knows or reasonably should know that it will have a particular effect, even if that person has no intention of producing that effect. Thus a corporation is intentionally polluting if those running the corporation's factories know they will emit pollution, even if the corporation's management, in the lay sense, doesn't intend to pollute anything.

In the end, the fact that law professors don't intend to scam their students is irrelevant. We are scamming them, or many of them, and we know we are -- or we would know if we paid any attention at all to the current relationship between legal academia, legal practice, and the socio-economic system in general, which naturally is why so many of us avoid doing so at all costs.

Over the past few months, I have become a regular reader of the scam blogs.  I have learned much from them. This blog will try to lend an inside perspective to the ongoing conversation these blogs are conducting.  It (I) will reveal some of the dirty little secrets about the law school scam.  Actually they are not really secrets -- that law professors are paid absurdly large salaries for doing almost no real work is not, in the world of the scam blogs, what one would call a highly classified piece of information.  But still, I believe it will help the conversation, and the reform it is just beginning to engender, if someone on the inside confirms, elaborates, and enlarges on the insights of the scam bloggers.  For things are even worse than you know . . .

So welcome to my nightmare. It is the nightmare of a man who woke from the pleasant dream that all was right with his wonderful little career, into a world of pain, regret, and anger -- that is, the world of so many of my students.

My next post will begin a series of specific accounts of what, exactly, law professors do (or in many cases don't do) for the money law students pay us.