Innovation in Law School Education
posted by Dave Hoffman
A number of law faculties have sent out resolutions that attack the proposed new ABA Accreditation standards. The basic claim is was articulated by the AALS: the proposed standards would decouple accreditation and tenure, thereby making it possible to run an accredited law school without a tenured faculty. (Tamanaha memorably fisked the AALS here.) Last week, Temple’s faculty joined the chorus against the changes in the rules. In light of my priors on this issue, I voted against the majority’s resolution, and I am happy to report that eleven of my colleagues joined me in supporting the ABA’s proposed new standards. [Yes, friends, I'm proud of losing 2 to 1. I thought the vote would be different.] For me (and I guess for the other dissenters), it would be better to live in a world where schools could offer different kinds of legal education – presumably at different prices – so long as they produced students qualified to be lawyers. The majority may have been motivated, by contrast, by a fear of a “race to the bottom.” Once a single law school offers cheap legal education without tenure (and without incumbent-protecting rules such as those that prohibit law students’ outside employment), we’ll all circle the drain and become diploma mills. I think that argument depends on an odd view of applicant behavior. Prospective applicants assess multiple variables when deciding which law schools to attend. If they picked price alone, the admissions market would look quite different. (Just as an example, more students would pick Temple over Penn. Now, I happen to think that for many students, that choice would be value maximizing. But it’s not the path that many applicants take.)
It’s easy enough to believe that this is precisely the kind of symbolic display that isn’t worth engaging in, let alone repeating on a blog. I am strongly tempted by that view. After all: what difference does it make if one faculty (or ten, or one hundred) votes against the ABA’s standards? The relevant decision makers aren’t the subject of regulation (law schools) but rather members of the ABA’s general assembly. Why not similarly announce the faculty’s opposition to global warming? Or dislike of the generic Republican ballot entrant? Or move in favor of kittens and sunbeams? Or, heck, against grading exams?
That all said, if you are on a faculty that is considering one of these resolutions, or if you are a student at a school that hasn’t yet passed one, I urge you to argue for the ABA’s proposed rules. The package of changes proposed would move the ABA moderately away from its current regulatory mode – which tends to tell a law school how it must organize its program of education, physical plant, and employment relations. The changes would instead (mildly) emphasize outcomes and (mildly) back away from mandated employment rules. This is a better way for an accreditor to act, and, not incidentally, it would bring the ABA more in line with the way that every other regulator of American higher education behaves. I think that on balance the proposed changes would reduce the cost of legal education and thus make it more likely that graduating students can choose their own paths, rather than the one dictated by their debt service obligations. The proposals on net promote innovation, and reduce the monocultural model of American law schools.
In the end, faculties, who benefit from the current system at the expense of their students, and therefore at the expense of consumers of legal services, shouldn’t be given a free pass to lobby for their own job protections.
April 9, 2011 at 5:06 pm
Posted in: Law School
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Responses (8)
TS - April 9, 2011 at 8:24 pm
I agree with the ABA proposal in gross because I think tenure is too often abused when lawprofs treat jobs like a sinecure and fail to continue to produce scholarship, or at least make up for their failure to write with proportionality greater service and teaching obligations.
What I wonder about is what effect abolition of tenure would have on faculty compensation. I am not sure that the effect would be to decrease operating costs through lower salaries. Of course, lots of highly paid senior deadwood could be fired — i.e. the faculty members who law schools have to report to the ABA at each re-accreditation visit for failure to produce scholarship.
But on the other hand, job security is compensation — a benefit of the job that substitutes for lower salaries. That security should carry quite a premium as much in law teaching depends on stability and sunk costs, e.g. the economies of scale that come from teaching the same classes year in and out without having to invest significant amounts of new prep time, just refresh prep. IOW, wouldn’t law schools have to offer more pay or other compensation to attract the same faculties in a world with an at-will professoriate?
TS - April 10, 2011 at 12:19 am
My post should have said: “benefit of the job that substitutes for HIGHER salaries.”
Joseph Slater - April 10, 2011 at 10:08 am
I disagree with the ABA’s proposal most broadly because I’m one of those folks who thinks that the default rule for (at least most) employees of *all* kinds should require just cause for discharge — as is true in pretty much every other democracy in the world. But that’s a bigger issue.
As to tenure specifically, I’m curious about your at least strong implication that other regulators of education don’t require tenure. Is that true? I ask that not to be snarky, but rather because I always simply assumed it was true without knowing. If it’s not true, then why do you think we haven’t seen more universities getting rid of tenure for their undergrad and/or other professional school profs?
Finally, a personal story. I have been quite grateful for tenure in the past several months. I teach at a state school in Ohio, which is having quite a political controversy over amendments to its public sector labor law. That’s an an area in which I specialize, and in articles and a number of media interviews, I have taken a position on this issue which is different than the position of (i) my University President and (ii) the governor of the state. And I imagine that readers of this blog know that in Wisconsin and Michigan, folks like me have been subject to FOIA requests of their e-mails.
I would like to think that I would still be doing what I’m doing even if I didn’t have tenure. But I will stress that having tenure certainly makes it easier for me to do it.
Dave Hoffman - April 10, 2011 at 11:44 am
Hi Joseph,
1. It is true that other regulators require (as the ABA’s new standards would require) “merely” protections for academic freedom, not tenure. At many universities, the consequences is not to get rid of tenure but rather to have some courses taught by NTT faculty, and then to compete for other faculty using tenure-track slots. This is precisely how med schools work, fwiw.
2. It’s a useful story — would you need tenure to speak freely though? Maybe a standard that said you can’t be fired for speaking on a matter of public concern? Or contract that was for-cause but term limited (i.e., 10 years)?
3. The FOIA stuff seems unrelated, however unfortunate.
The question for me is this: why are law school faculties treated so differently from every other institution of higher learning?
TS: It’s an interesting point. I imagine that law schools would sometimes choose to keep tenure – just as undergraduate and other professional schools do – to avoid having to pay lots more money. (It’s possible they could move toward med school pay scales, which as you note compensate NTT faculty dramatically for their lack of security). But it seems really hard to imagine that on net, the ability to innovate in forms of job contracts wouldn’t produce a cost savings.
Joseph Slater - April 10, 2011 at 1:35 pm
Dave:
As to (1), thanks for the clarification. I always took the increase in NTT faculty as part of a wider trend in the economy of employers looking to pay employees (not at the very top) less and give them fewer rights. So I personally wasn’t so keen on that.
More broadly, though, my question is this. Suppose the ABA took your position — would we really get the “let 1,000 flowers bloom” result you think would be good? Isn’t the concept of tenure pretty well-entrenched in academia generally, even if the use of NTT has undermined it somewhat? [Note: I can see that this argument could cut both ways].
I’m probably being thick, but just to clarify: when you say, “why are law school faculties treated so differently from every other institution of higher learning?” the difference you are referring to is the current explict rule requiring tenure, as opposed to the well-established practice of it in the rest of academia?
As to (2), my personal story, I can guess at how brave I would be without tenure (I would be fearless, because that’s how I roll!) But I think the more general point is, at the margins, wouldn’t we expect some people in some similar position to be intimidated and not be as staunchly principled as I can imagine myself to be?
You mention not being fired for speaking on a matter of public concern. That’s part of the limited First Amendment protection public employees like me have, but obviously it would have to be extended to private sector folks.
But finally, rather than do that or do limited-term just cause contracts, I would prefer to make tenure more like just cause as it exists elsewhere. As I said earlier, I’m a fan of just cause discharge rules for most employees, but under those rules as I’ve known them in other contexts, people really can and do get fired for just cause. In higher education, it sometimes seems that at least some folks think a tenured prof. has to commit a violent felony before he can be fired.
My 2 cents on reform, then, is that I’m more amenable to a concept of tenure for higher ed folks in which it was clear that, e.g., Not Publishing Anything For 15 Years, or Being an Objectively Horrible Teacher is, in fact, just cause for discipline and even discharge.
Dave Hoffman - April 10, 2011 at 1:59 pm
JS: I agree that given norms, it is unlikely that many schools will choose to forgo tenure altogether. And you are right that the “differently” language is about the requirement that schools have tenure (or something like it) for everyone, when no other accrediting body takes this position. I could live with a system where tenure meant “just cause”, and “just cause” was a bar that people could fail to hit. But that seems pretty unrealistic, no? I guess the question remains on the table: why treat law schools differently from the rest of the University, and from other professional schools.
Joseph Slater - April 10, 2011 at 3:50 pm
Fair enough. Thanks for the exchange.
Darren Hutchinson - April 10, 2011 at 10:41 pm
There are many important issues other than a “race to the bottom” that motivate faculties to condemn the proposals. Most of the proclamations have focused on academic freedom. At American University, our statement focuses not only on academic freedom but also on the potentially negative impact on racial diversity in the academy.
To the extent that racial discrimination remains pervasive (and I believe that it does), tenure protects professors of color from arbitrary treatment by university presidents and deans. Furthermore, the general concept of academic freedom has been a critical component in the development of scholarship that challenges orthodox legal practices that operate to the detriment of subordinate classes.
Our role as law professors involves more than producing lawyers with specific skill sets. Instead, lawyers and law faculties are also defenders of justice and critics of injustice. Academic freedom allows scholars with critical insight to do their work without fear of discharge or other unfair treatment. Thus, academic freedom has allowed persons from disadvantaged backgrounds to enrich legal scholarship and to challenge inequality. These are critical issues; they are too valuable to discard.
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