Tuesday, August 23, 2011

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).


  1. Students should be stunned by their professors' refusal to take a leadership role in this debate. Professors may consider themselves innocent bystanders, but their refusal to advocate on behalf of their students indicates their choice. This issue is coming to a head, and its time for profs to engage. If they don't, they are going to get swept by as other people try to tackle this problem.

    Seriously, a prof can spend a few going to the state capital to testify for or against a particular bill, but he can't be bothered to speak up for his students?

  2. the vast majority of faculty have been, as it were, Mafia wives:

    LOL! And then of course there is the conclusion.

  3. I view them as disinterested voters in a western democracy. They could choose to make an effort to be involved in the debate if they want to but there's no incentive to change what doesn't hurt them, so they stay on the sidelines and call themselves bystanders.

  4. Nobody is hungier for attention than Althouse. She has almost nothing at all to say about this blog (or even its author), and yet she's linked to it 3 times. She needs so badly to be at the center of things. I admit I am guilty of feeding this, her remarks about this blog led me to read hers for the first time in forever and even dive in amongst her idiot commenters. What a waste of time.

  5. Great uncensored discussion between students and professors here, btw.


  6. LMFAO...this gave me a good laugh. Pigs never want to admit that they are pigs. The main driving force behind all this? perhaps not. Innocent bystanders? Give me a f#cking break. All the retorts are so obvious I won't even bother. When will the excuses end?

  7. How much money does the University take from your law school? Do payments go to the university and have the law school's share returned to it? Who determines what the law school's tuition will be at Colorado?

  8. I do love Brian Leiter's smarmy assertions that you are essentially a bitter loser and an intellectual weakling. Really? As compared to what? Because you've ONLY published 2 books and a half-dozen articles? Wow. What a complete and utter failure.

    By that logic, somewhere around 99.9% (repeating of course) of all attorneys are losers.

    It's almost as if someone had predicted that once the shroud of anonymity had slipped the ad hominems would be unleashed.

  9. First they came for the students and I did not speak out because I was not a student.

    Then they came for the law librarians and I did not speak out because I was not a law librarian.

    Then they came for the adjuncts and I did not speak out because I was not an adjunct.

    Then they came for me and there was no one left to speak out for me.

  10. You are right Sir. Law professors have a "see no evil, speak no evil, hear no evil" approach to law school. They know full well that their students are cooked. How couldn't they? Law school is like high school. Surely they heard the gossip about all the jobless 3L's, and the hordes of 2L's who struck out at OCI. Sure, go ahead and blame the administrators, many of whom are professors themselves.

  11. I don't think most "scam bloggers" equate professors with administration and are well aware of the responsibilities of each.

    Most law professors attended T14 schools and did quite well. Most make a reasonable assumption that the life of a law professor is for them a trade off for a more academic,leisurely and poorer lifestyle than a biglaw life.

    However, if the operation is a scam then it is a scam.

    A substantial percentage of a professor's salary is ultimately paid by the crushing debt of non-practicing attorney who wishes they never darkened door of your law school.

    If you can live with that, live with it.

  12. This is a strong post. Guys, don't pretend that you're not responsible.

  13. FYI, the second and third links in the last paragraph take you to the same page.

  14. Paul/Lawprof,

    I share your view that faculty don't know about these things because they don't want to know. One of the reasons people become lawprofs is so they don't have to deal with the business side of law practice: There aren't many law professors who would then volunteer to hear more about the business side of universities. It's partly the same reason law schools struggle to find faculty members to become Deans, even though becoming a Dean means roughly doubling your income.

    Just to be clear, then, I'm not arguing that law professors are "innocent bystanders" and have no role in these issues. To the contrary, I'm arguing that we should begin engaging law professors on these issues so law professors become involved in them.

    Also, my apologies if I misstated the reason for your anonymity.

  15. @Orin Kerr:

    How does one "begin engaging law professors on these issues so law professors become involved"?

  16. "One of the reasons people become lawprofs is so they don't have to deal with the business side of law practice"

    Thank you for this honest statement Professor Kerr, which I think is completely accurate based on my conversations with professors and professors to be. There is nothing wrong with that, by the way. I think the intellectual community needs to split away from money, lest academia be captured by money'd interests like every other part of society.

    Unfortunately, money is something that pervades every facet of our existence and it was only a matter of time until some lower ranked law schools viewed law as a profit center. Then another copied them, then another and another. Once they opened that window, the cold evil breeze of money entered your world.

    Now you have podunk law schools where the professors earn the same salary that you do at GW, or the same salary that a professor earns at Harvard Law. They charge the same tuition too, but they've destroyed your noble profession through their greed.

    I think the solution to this entire mess is to limit the number of law schools. We absolutely do not need more than 100 law schools and so half of them can be closed. This would fix the supply and demand problem with jobs, restore dignity to legal academia and raise the prestige of law professors as well.

    /rant off

  17. "noble profession"...." restore dignity to legal academia"....LOLWUT?

  18. Orin,

    Thanks for the clarification. I'm glad to see a number of legal academics getting engaged with questions regarding the fundamental economic and educational structure of law schools, given the collapse of the job market for attorneys. For the last year or two people like Brian Tamanaha and Bill Henderson seemed like voices in the wilderness. If I've done some shouting on this blog, it's in part because a lot of people seem to have had their hands over their ears.

  19. Are scholarship recipients more or less likely to pass the bar on the first try? ever?

    It is a fair question.

  20. LawProf:

    You wrote:

    "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.

    "[S]houldn'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."

    YES! And thank you. Now, we're getting somewhere. Jeesh.

  21. There are no innocent bystanders in legal academia. Any professor that claims such is either a liar or a fool.

    They have all been on notice, whether it be actual or implied. There is no way anyone can justify the employment statistics that are still being used by law schools.

    No one is innocent.

  22. I grew up in the segregated south as segregation was ending, with some speaking out bravely and some taking the it's-not-my-portfolio or the these-things-take-time dodges. The response of Professor Kerr, whom I generally admire, seems to me to fall into the it's-not-my-portfolio dodge. The problem is, if the system is morally skewed and you are benefiting from it, you can't really retreat into ignorance (or, even worse, "that's not what I'm interested in") and avoid being morally tainted. If people are being hurt, and you are the beneficiary of what is causing their pain, there are no sidelines.

    In the world I grew up in, there was no one alive who had created slavery or the Jim Crow system. There were plenty who benefited from it - with cheap household help, cheap factory workers for the mills, etc. - who kept quiet about it while telling you it wasn't really their portfolio to fix it. It would be costly to them socially and perhaps financially to speak out at all, and there were state legislatures, and governors, and people in Congress, all of whom would play an obstructionist role if they tried to do something. I understand the difficult situation they were placed in, but does that make how they tacitly supported segregation the right moral choice?

    It's hard when you inherit an immoral situation that you would not have wanted to create and that will be hard to change, but that still does not justify silently benefiting from it.

  23. Althouse has an interest in keeping the status quo. She makes $158,542 according to http://www.collegiatetimes.com/databases/salaries/university-of-wisconsin-madison-2009?dept=Law.

    I would be vocal as hell. I went to Wisconsin; she has a horrible rep among the students and can't teach at all. Imagine how useless she is in the real world. She only worked two years at a law firm, and she might not have been able to hack it which is why she went back to the cozy confines of academia.

  24. 8:58 here. EDIT: I would be vocal as hell AGAINST THIS BLOG IF I WERE HER.


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