The adversary system

DJM's intriguing and detailed suggestion that law students form official student organizations that would push back against the structural dysfunctions of the contemporary law school highlights what in my view has become a central truth about legal academia:  Law schools and their students are now in what in many ways is a fundamentally adversarial relationship.

To put it another way, the interests of, on the one hand, university and law school administrators, and law school faculty, and on the other, law students, are becoming increasingly divergent.  Law students want to get a reasonable return on their investment; law schools want to maintain and extend an economic structure that makes that outcome ever-more unlikely for an ever-larger percentage of those students.

An official student organization that semi-explicitly recognizes this would be considered by law school administrators something of a subversive group -- roughly analogous to the way the management of a business considers labor organizers to be subversives.  And of course from the perspective of management, labor organizers are subversives, since their goal is to direct a larger share of the organization's revenues from capital to labor.

Similarly, what the law school reform movement is calling for are actions that, in the short term, will be bad for law schools and their universities, and good for law students.  Of course the movement is not relying solely or even primarily on a sudden outburst of altruism by the academic powers that be: in the long term, law administrators and faculty will almost universally prefer lower compensation and higher teaching loads to seeking other forms of employment. As for central administrators, they will prefer extracting a more modest income stream from a law school than getting none at all.

The difficulty is this: what are the most effective ways of raising consciousness among two groups, who, for different reasons, resist seeing that the relationship between law schools and their students has become fundamentally adversarial?  The great majority of law school administrators and faculty are, for reasons that are too obvious to elaborate, in deep and continual denial about this.  But raising law student consciousness is difficult as well, for reasons that are worth elaborating.

First, many law students still begin law school lacking much of the basic information that would lead them to conclude that the law degree they will acquire will have, at graduation, negative net present value.  The extent to which this has been or is now the fault of the students themselves may be an interesting question: the practical point for the reform movement is that raising consciousness on this matter remains crucial.

Second, even as consciousness is raised on the economics of legal education and the legal profession, law students are prone to their own versions of the denial that envelops law school administrators and faculty. On one level this is a defensive psychological mechanism that has adaptive advantages: people who maintain a positive attitude, all things being equal, do better than those who don't. Of course "all things being equal" is a crucial caveat: if a negative attitude leads a student paying median tuition and getting median grades after the first year at a median law school to drop out, that ex-student is likely to do better in the long run than similarly situated students who maintain a positive attitude in the face of grim statistics.

Third, law students understandably believe that currying favor with law school administrators and faculty is important to their professional prospects.  This belief tends to be seriously over-stated: the fact is that most faculty most of the time can do very little for the professional prospects of their students.  But they can sometimes do something, and students, again understandably, don't want to surrender on their dreams of professional success any sooner than necessary.

A key goal for the reform movement is to push the moment at which law students realize their relationship to the law schools they attend is adversarial to an earlier and earlier point in their legal careers.  Until recently, this realization often didn't come until a couple of years after graduation. Now at many schools it has been pushed well into the third and even second-year classes.  (My experience and correspondence suggest the first year bubble is still fairly intact at many schools).

Just how to go about doing that is a complex question, whose eventual answers will be a product of trial and error.  This blog and others like it are part of that effort, as is the immensely important and remarkably successful work of Law School Transparency.  Attempting to organize official student organizations dedicated to law school reform may turn out to be an effective strategy, as might efforts toward creating more informal types of student solidarity.

But the message is slowly and surely getting out, and every day various stakeholders in the battle over reform come a little closer to understanding the nature of the situation.