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July 09, 2013

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Steven Lubet

It seems pretty clear that Fleischer is interested only in protecting tenure-line faculty, as he proposes "closing clinics" as an alternative to laying off untenured assistant professors.

Of course, this contradicts his main line of argument -- which is that employment security is necessary to allow faculty to take positions on "polarizing political issues" that might antagonize donors or other important people.

Clinical faculty, however, are the most likely to antagonize the powers that be. In fact, political attacks on clinics are well documented, and they dwarf the sort of nasty comments that Fleischer complains about.

It would be good to hear Fleischer explain why he deems academic freedom crucial for junior tenure-line professors, but completely expendable for clinicians. Or is the answer obvious?

Vic

Steven - you draw a lot of inferences from the four words "Clinics can be closed."

Academic freedom also protects clinicians and legal writing faculty and librarians.

But, unlike with research faculty, I would not extend tenure as a wholesale matter to all teaching staff. My view, and it is a minority view I suppose, is that legal education would be better off, and more easily scaled for non-elite schools, with practical training through simulations and team-teaching with adjunct faculty, not full-time clinicians.

For those institutions where there is an implicit contract with permanent, nontenured faculty, the implicit contract should be honored. But I think it is neither unreasonable nor a violation of academic freedom to close a 6 student clinic and ask those instructors to teach 75 student podium classes instead.

Reasonable minds can differ, and for many law schools having tenured clinicians and legal writing faculty might make sense. But tenured faculty of any sort is expensive, and I think the future for law schools in the age of austerity is with smaller tenured faculties and larger adjunct, part-time faculty.

Vic

Hi Mike - thoughtful post. If it is really that bad -- i.e., it would be financial suicide not to fire some tenure-stream faculty along with other cuts -- then the school should declare financial exigency, which puts everyone's job on the line, tenured or not.

Or they could admit a few more students with lower LSATs.

I doubt it is really that bad at Seton Hall. There are probably some schools down in the fourth tier where it is that bad.

MacK

I am sure there are people who will not like this critique of Vic Fleischer's paper but, when he says:

In a seminal 1974 case in New Jersey, for example, when Bloomfield College was facing severe liquidity problems, the court required it to consider selling off a golf course before firing faculty. Seton Hall’s law school may be in a tough spot, but there is no reason to think that its problems threaten the survival of the university as a whole. The university may need to subsidize the law school until, over time, the full-time faculty of about 75 professors shrinks by attrition.

He misses a key detail. He is correct in saying that it can be very tough to fire tenured faculty - and the same thing applies to enforced across the board salary cuts. There is a "get out" for Universities though - the closing of the entire academic department. It is the extraordinary difficulty in cutting academic costs that leads me to conclude that in some instances parent Universities may simply take the easy option and close the law school.

Michael

Vic -- You're somehow forgetting that law schools exist within a larger university context. "Declaring financial exigency" results in a front-page story in the Chronicle. Placing tenured faculty in fear of their jobs does the same.

Your other option, admitting lower-than-last-year-LSATs, results in your Dean getting called to the Chancellor's office, asking why you're taking a hit in the rankings.

The pressure to maintain LSATs (and GPAs) is STRONGER in the middle tiers (where Seton Hall resides) than it is in the lower tiers, because US News actually *ranks* in the middle tiers. A fourth-tier law school that decides to lower its standards from 145 to 140 is under no pressure in the rankings. A Seton Hall that decides to drop its LSAT criteria five points is committing rankings suicide.

MacK

Mike Spivey's blog post - linked above - hits the key issue. For most law schools the current situation is not one of simply "hunkering down" until the recession is over - this is about their existence. It is also not going to be solved by trimming some administration costs, which has taken on the totemic status of eliminating "waste, fraud and abuse" in fixing government budgets - or for that matter foreign aid.

Similarly, criticism of law school teaching is something that will be eternal - no matter what reforms law schools adopt, new law graduates will always be unprepared for practice - and it is that way the world over. I for one cannot see what law schools can do that will make the typical newly minted JD ever actually worth $160k per annum, when experienced lawyers are averaging around $100k.

There are two hard facts that govern the situation - the cost of becoming a qualified lawyer in the US must fall to about half its current level, without a reduction in the quality of the training law schools provide, and the legal profession can only absorb about half the number of graduates that law schools have the capacity to train. This adjustment will happen - it may go slow, it may go fast. I suspect it will happen faster than anyone thinks.

Recently I was commenting to a very pissed off Republican apparatchik that the alacrity with which his colleagues in North Carolina had acted following the Shelby County decision to initiate legislation attacking minority voting was in bad taste and would also not impress the broader public - born out by an ABC/Washington Post poll which shows the vast majority of voters disagree with Shelby County (I think my response to "what's wrong with asking for IDs" of "will you stop making me shake your urine out of my trouser cuffs on a sunny day" probably was a little incendiary, or maybe too complex.) In any event, the same analysis could apply to the speed with which law schools latched onto IBR as a panacea for the huge debt law students may take on - before long the Federal Government will complain about law deans claims that the situation of law graduates is just a little rain that will pass over soon.

Mike Spivey

Vic, I think perhaps it may be worse for some schools than we think, because I have at the very least heard anecdotal talk that central universities are keeping a good number of law schools solvent. Seton Hall seems to be on risk management step 3 or 4 but granted I have no idea how bad or not bad it is there. I just wanted to get a Public Enemy reference in a blog article. Thanks for reading! -Mike

anon

MacK is right that there is relatively little that schools can do in terms of efficiency, cutting non-teaching staff, etc. The truth is there just aren't that many staff at the schools that really need to shed expenses. But there is more that schools can do to get more from their faculty. Vic mentioned the elimination of centers. That's going to happen at a lot of schools. Centers are a big expense and a luxury most schools cannot afford. Look for those to close very soon and for those faculty to start teaching more.

Anon

I don't understand the idea that "teaching more" saves money for a law school. Teaching more means fewer adjuncts, who often teach as much as a third of law school courses. In essence, adjuncts are free (well, maybe as little as 5K per course). Another chunk of teaching is done by local area visitors (someone from Hofstra guest teaching at Rutgers). That's cheap, too.

So cut all that out and add courses taught by existing faculty but you won't save much money. What you will do is reduce research, damage faculty morale, discourage recruiting of new faculty and, perhaps most important presumably to the reformers' cause, have more of the kind of faculty teaching whom the reformers say are not good teachers because they are too "intellectual" and not practice or, to use the current buzz word, "experiential" enough.

MacK

Anon:

If salaried tenured professors teach "more" as part of the mix of their paid activities the cost to the school falls as their teaching productivity rises. Thus the school can for example reduce its use of adjuncts at say 5K per course. Right now law schools are pricing courses at $1200-1700 per credit hour per student (which would be pretty astronomical rates in even a Wall Street firm (15-80 students, 12-13 hours of face time (per hour), another maybe 24-36 of preparation, exams and grading.)

Yes, teaching more will be at the expense of "research" (have you read many of the journal articles that produces) - and as for recruiting new faculty - somehow I think the number of new faculty recruited will be small and their recruitment a tiny priority in a cost cutting environment.

It is correct to say that cost-cutting will, at many law schools, have "negative" impacts. The internal politics will be very painful. To take some possibilities, many deserving non-tenured teachers will be cut, while other better positioned and some politically adroit faculty members will survive untouched, despite their utter lack of merit as teachers; that will sow resentment. Pay cuts will be proposed across the board, but some special pleaders will avoid a cut. Some early movers will take generous buyouts, while later forced out faculty will get much less generous deals. I have seen downsizing, "right-sizing" and cost cutting in my career several times in multiple countries - but I have never seen a situation as bad as that of the typical US law school right now - a situation where the cost cuts needed are so high, the demand shortfall so precipitous, the repurposing of employees so difficult.

By the way there is one thing I did not mention that I should have when discussing cost cutting - because for a number of law schools it may be a big opportunity - and that is "cutting the dividend," i.e., the rakeoff that the parent college or university takes. I have known a few law school deans (surprise) and one issue that they quietly complain about is the amount of tuition that parent institutions "milk" out of the law school "cash cow." ABA rules limit in principle the amount that the parent school can take to 20%, while USNWR per student spending also has an impact - but parent institutions have circumvented those limits by massive over-charging for shared-services, facilities and overhead. It was this in part that led the late Dick Gordon and Paul Dean to move Georgetown law school to a separate campus - allowing for better segregation of finances. How big the rakeoff is seems to vary from school to school - but in at least some cases rumour has it as reaching into the high 30s in percentage terms, maybe even 40% This is a very large potential area for effective cost cutting. A sense of how much money is being taken can be found in the recent story about Catholic University's non-law school cost cuts driven by falling revenue at the Law School:

http://www.lawyersgunsmoneyblog.com/2013/04/catholic-university-of-america-to-slash-overall-budget-by-20-plunging-law-schools-apps-to-blame

Kiws

MacK -- I am having a hard time following your math that an adjunct paid $1200-$1700 per credit hour (which you describe as 36-49 hours of work per credit hour) would be "pretty astronimical rates, even for a Wall Street firm." Don't Wall Street firms charge in the neighborhood or $400 per hour, and thus can make that much money in 3-4 hours of work?

Tin Man

@Anon, 2:14 -- adjuncts aren't fungible with full time faculty. Think you'll get a decent first year contracts course that meets 4 times a week during regular business hours, has 80 students, and involves at least some drafting exercises? Maybe, but not likely. Full time faculty will have to bear more of the teaching burden and as they do, that will reduce the need to hire more full time faculty. Adjuncts can only do so much, though reliance on them will increase, too, probably.

Returning to Fleischer's article. It's terrible that Seton Hall is laying off the most vulnerable and lowest paid faculty. Look at their tenured faculty and see who has not published anything since Obama came to office. (Even if you think scholarship is worthless, it's a marker of who's retired but is still drawing a salary.) 4+ years and no writing. Those faculty should be fired first.

MacK

Let’s take for example Georgetown law. It has a price per credit hour of $1,730 – so that is per concurrent-classroom-semester hour per student. A semester is 12-13 weeks so a semester is 13 weeks. Allow say 3 or 4 hours per class contact hour for preparation – is another say 48 hours of prep-time (and an hour or two per credit hour for grading. Thus over a semester a credit hour involves for the professor some 60 hours or so (a 2-credit class would be say 120 hours, 3 credit 180 hours.)

But if there are say 30 students in the class, the total revenue per credit hour is $51,900 and the actual revenue per hour worked by the professor comes to $865 per hour – that is a pretty high price per hour, even for BigLaw (I’m not saying a professor gets paid this.) The bigger the class and/or the lower the total prep-time, the higher the revenue per hour. This does lead to the little detail that where some of the law school revenue goes is quite mysterious.

AnonLawProf

MacK - Professors who care spend much more time than that - including meeting with students (my school requires 8 office hours per week and many frequently meet with students outside of those hours). We also advise various student organizations and serve on many committees that make the school run. We also write many recs, and I spend a fair amount of time calling my contacts to get students jobs. Sure, there are professors who have mailed it in and do not work much, but there are also many professors who devote their lives to their school and students for relatively little money.

Anon

MacK,

I gather you have never been a faculty member so you are really just guessing about what it really takes for faculty to do their jobs and for law schools as institutions to survive and prosper.

One important question is why would you do that? Do you think it fair for law professors who have never practiced law to do that to your profession? Presumably you would dismiss those interventions as irrelevant and likely they would be, largely, irrelevant. Perhaps you are a trustee or major donor to your former law school and so have spent time trying to figure out how academia works. I feel fairly confident though based on my own experience with both worlds that you have not since your (constant harping stream of) interventions come out of left field.

The bottom line is that serious productive faculty work the same hours as practicing lawyers, although those can be somewhat more flexibly structured and there is the ability to take weekends off now and again. In return for that apparent flexibility - more mythical than it seems (e.g., I took off one week for vacation this year) - we get salaries that pale in comparison to what we could get or, in many cases including my own, left behind in the private sector. At larger schools there are significant administrative responsibilities as well as inter-departmental work such as supervising graduate students. Anyone engaged in serious research has publishing, conferences, seminars, co-authors, research assistants, grant writing and a myriad of activities to manage. The actual amount of "down time" is limited and when it occurs, it is time to come up with new ideas for teaching and research.

As someone who spends a fair amount of time interacting still with the outside world I hear frequently the teasing dismissals of the life of a professor. But these are stereotypes that build up somewhat akin to lawyer jokes and they bear as little resemblance to my life as those jokes did when I was a full time lawyer.

if you are serious about these issues, then get involved directly with a law school as a donor or advisory board member and see if you can learn a thing or two. In other words, take on some actual responsibility for these issues. Come back and report to use in five years.

Professor T. Roll

If you assume that all practicing attorneys in the US work as partners in AmLaw 100 firms and therefore have a mean wage of 1.47 million, which I believe to be the average PPP, then you will quickly see that members of law faculty are grossly underpaid. In these uncertain times, law schools should be increasing faculty compensation, because stagnant wages will serve to push faculty members into much more lucrative fields available in private practice. I'm assuming that any number of AmLaw 100 firms would be quite eager to bring in a faculty member as a lateral hire to co-chair the firm's law & European social thought in fin de siecle Vienna practice group.

Anon

T. Roll: Out of your naive hostility to law schools you jest, but this is exactly what ambitious major law schools have been doing. If you look at the CV's of top tier high salaried new faculty they clearly have skill sets that could land them in appellate practices in D.C. or hedge funds in Greenwich. Law schools have realized that the Stanford model makes sense - you recruit people whose skills will generate long term cash flow for the school through their IP and tenure and time off from teaching will more than pay for themselves. It's all about positive NPV. These "law and....." candidates tend to be in law and finance or economics but other can fit the model, too. Smaller and lower ranked schools should do more of this (some did, like USD and Alabama, and it appears to have paid off) and we would all be better off because law schools would be generating more valuable contributions to society.

Stan

Anon has to be a certain Santa Clara professor. He is the only one who is still has the stones to claim that law prof's are underpaid in this economy.

As a 2011 grad, I would love nothing more than to see these "underpaid" profs enter the jungle called private practice.

As the ivory tower is starting to realize, it's been a cold winter for a long time for law students. At least professors have the advantage of not having massive loans around their neck.

MikeSpivey

If the issue were simply a matter of hours put in equates seamlessly to pay and job security, I would be all for categorical faculty job security and pay increases. At the three law schools I have been lucky enough to work at, the overwhelming majority of faculty put in long hours, not just towards research but on behalf on students and even in support of my administrative efforts. From my vantage point this is no different than the hours BigLaw partners dedicate toward their jobs.

But that isn't the issue. During the Great Recession law firms were laying off partners and associates at a blinding pace, for the simple reason that they were not bringing in new clients. Similarly, for almost all law schools, faculty pay is a function of tuition-driven income. Put another way, very few law school (unlike some of their the central university counterparts) have the security of sizable endowments. That income base is drying up rapidly (and seems to be down yet again for a 4th year in a row)so the point that some seem to be entirely missing is "who is going to foot the salary?" This is going to sound harsher than I mean it to, as again I respect the world out almost all of the faculty I have worked with, but to this notion that there might not be a surreal bubble of security any longer I would simply say "welcome to the real world -- we've missed your presence"

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