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October 22, 2013

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MacK

I need to sit down and read this article, assuming a quiet patch - so my comments may be unfair or off-point. I will note though that I certainly am concerned (and my 20-ish incarnation would be surprised at this concern) at the impact of market forces and extreme-competition on the "public-serv[ice]" and "professional culture" of the legal profession. That is to say, perhaps harumphing pompously, that competition "red in tooth and claw" has caused a large proportion of the legal profession to forgo the old idea that lawyers are "officers of the court," that they serve justice and fairness and that there are lines that a lawyer should not cross for a client (and I am thinking about a current scandal that has a large chunk of the technology bar talking.) And that critique of the profession is one that worries me a lot more than what levels law schools will sink to when recruiting students.

Brian Clarke

Barry has a perhaps unique (although I am not sure of this) career track from which to view the current debate. As I recall, he has been [in rough chronological order] a public servant (SG's office), adjunct professor, BigLaw (Jenner & Block) partner, Dean at Washington & Lee Law, BigLaw (J&B) partner again, and now Professor. Having worn so many hats over the years - very successfully - makes Barry uniquely qualified to comment on the current problems in both legal education and legal practice (which are varied as MacK notes). I will be reading this with interest.

Andrew

Well here's the problem: law deans and law professors (either explicitly or by their silence) have over the past 15 years followed a policy of commoditizing legal education. They do not have the moral authority to now rail against the negative impacts of that comoodification (pushback from students, lawyers, and policymakers, diminution of the civic virtues, etc.) while insisting they be able to continue to benefit from that commodification. It's the deans who talk about "consumers," who launch massive marketing schemes, who when sued admit puffery for the goal of securing tuition dollars.

I found this portion particularly objectionable: "Before we can begin to reform the infrastructures of legal education, we need to identify the function of the legal profession in a democratic society and the role that a legal education might play in preparing men and women for service in a profession so conceived. In that sense, cost is not an independent variable, and any judgment about the cost-effectiveness of legal education necessarily depends on a decision concerning the purposes to be served by a legal education."

It's a self-serving statement. It also makes a simple question unnecessarily complex, and time-consuming (frankly, it sounds like that's the goal): if the "role of a legal education" is anything other than maximizing the revenue-generating ability of law graduates, then costs have to go down, and they have to go down by increasing class size, halting unnecessary capital expenditures, and (ideally) decreasing the well-above-market-rate compensation for full-time law professors. And it's incredibly convenient that stopping increases and reducing completely unreasonable tuition should wait until these questions are slowly worked out.

The dialogue about the purpose of law school has shifted to economic cost-benefit analysis because the law schools have shifted it that way. There were no great cultural shifts towards a focus on purely economic benefits; frankly, in the 80's there was a much stronger focus on personal enrichment than during the 90's. Personally, I suspect a lot of the profit-seeking in the legal academy was the result of the boomers coming into power in the 90's and displacing the more civic-minded generation that came before them, but ultimately why it happened is not so important as to stop it, and to stop listening to the people who have caused the problem.

Jeff Redding

I look forward to reading this article. The above comments by Andrew are largely paranoid and ahistorical; the commoditization of higher education has been a concern for decades now. Martha Nussbaum's book on this subject, "Cultivating Humanity" (http://www.amazon.com/Cultivating-Humanity-Classical-Defense-Education/dp/0674179498), dates from 1998. And, as great as that book is, it might be considered to have come to the game a bit late. Law schools might have taken the commoditization of education to lengths that even commoditized liberal arts schools would find shocking, but law schools were hardly unique in traversing that path. For that reason, and others, we can consider the problem a 'cultural' one.

BoredJD

They spend 84 pages whining about how the reformers wrongly buy into the idea that people are subject to the whims of "market forces" and then in the same article throw their hands up and say that "market forces" forced the law schools to hire professors from the bestest of law firms and federal clerkships and pay them gobs of money (including the types of incentive payments and bonuses you might find in the private sector). The support for this appears to be that one law dean in 1964 wrote an article saying that there might be more faculty members someday (he also predicted in that same article that Harvard would not switch to the JD for quite some time) and that a 3L was once quoted as saying that he thought career services should find him a job.

Does this mean they agree with the supposedly misguided reformers that there is no god but the market and all men must serve? Or should only law professors get to benefit from the invisible hand? It's never quite explained whether law professors have any duty to hold their own costs down on the basic principle of "try not to screw your students out of a middle class life."

I would have expected such an uncritical defense of the legal academy back in 2010. In 2013 it's just killing trees.

Andrew

Jeff, I'm not arguing the problem is unique to legal education, but as you apparently admit yourself it's in the legal academy where the problem is significantly worse than anywhere else. I am responding to a defense of the legal academy here, not a defense of the academy in general. And the problem with "cultural" explanations for skyrocketing tuition costs is that it absolves concrete, actual people of immoral acts.

Anyway, you're pretty much ignoring my central point: not that law schools should be about preparing their graduates to make money (they shouldn't), but rather that they shouldn't get to have their cake and eat it too. You cannot commoditize something then complain about the impacts of commoditization. You can't argue that your students should be happy with a lifetime of debt as long as they cultivate moral and intellectual virtues, then angrily insist that you are entitled to a high salary for teaching them that drives that debt load. You can't urge your students to spend a significant portion of their career doing pro bono, but let your own bar membership lapse as soon as possible to avoid that. Nussbaum is a defender (like me) of universities' original mission, not of skyrocketing tuition; indeed, she has explicitly criticized professorial economic privilege, for example in her essay The Professor of Parody.

If legal academia was consistent one way or the other -- law school should be on the free market or that it should be separate from the free market -- that would be an improvement. What we get instead is a constantly shifting value system where tuition and salaries are allegedly driven by "the market" because that's advantageous to the academy, but performance shouldn't be measured by "the market" because that's disadvantageous.

What the law schools have done is insist that everyone else -- students, the legal profession, taxpayers -- subsidize unreasonable lifestyles for themselves. I never realized how morally bankrupt the law school industry was until after getting my JD I went for a PhD and saw how real scholars operated, and without the immense legal academic's sense of undeserved entitlement. What law professors want is the prestige of academia (despite the JD being inferior to a true research doctorate) and the pay of private practice (despite the small workload and lack of experience), and the rest of us are just not going to let them continue to do that. That is something you're just going to have to deal with.

MacK

Andrew:

My late father used to comment that one should not count henhouses before one's eggs had hatched - and that trying to get agreement as to who committed the first sin and whom (in reference to most civil wars) was a pretty hopeless exercise. I am, it is fair to say, a pretty harsh critic of the trends and conduct of the legal academy. However, it is fair to say that much of the misconduct of the academy had been driven by the conduct of the profession - that it is hard to criticize law schools for revenue and profit maximizing behaviors when law firms were, pretty egregiously, doing the same thing. (I can criticize law professors for thinking they would be BigLaw partners in a period when the pyramidal structure of law firms was becoming ever more acutely extreme (i.e., their odds were as poor as most other BigLaw hires, about 1/20.))

That said, the legal profession did fall into many of the same traps that the law schools followed it into - and the legal profession often got there first. So if you were to ask which had a more pernicious effect on the legal profession and indeed law schools - the US News & World Report rankings - or the American Lawyer law firm rankings, I would give it to AmLaw every time. Indeed, when I read the infamous Skaddenomics article - my first reaction after a little shock at how far Skadden had gone (I later found out that it missed a point, Floriada Power and Light told me that they did not even get to eat the infamous danishes, the Skadden lawyers did), was that that ***** Steven Brill had just written an article denouncing practices he had been promoting only a few months earlier (I remember on Brill piece that explained that as technically a laser printer was mostly a photocopier, firms should charge 25¢ a page for laser printed docs.)

On some level it is fundamentally unreasonable to condemn law schools for engaging in the same conduct that the elites of the legal profession also so enthusiastically engaged in. If you want to jump on law schools, you have to be willing to tear into the law firms too.

Jeff Redding

Andrew,

First, to cite Nussbaum's essay "Professor of Parody" for your points here is ridiculous and intellectually suspect.

Second, I characterize your discussion as paranoid because it paints a pluralistic set of actors as acting with a common interest (against you, the 'real academic,' in particular). I don't expect you to pay attention to this blog, or my posts on it for the past six months, but do an archive search and you'll find that I'm hardly drinking the law-skool kool-aid (if there is one). Moreover, beyond me, there are a pretty diverse set of actors making & resisting decisions in their respective law schools. Those diverse actors come from different political orientations, different behavioral dispositions, different financial positions (e.g. junior faculty still struggling to pay off their own sizable law-school debt versus senior & junior trust-fund beneficiaries), etc.

So, in other words, before you pull out your disciplinary whip in order to herd cats, do a bit more digging.

Andrew

Jeff, try to read a bit closer, I cited Nussbaum's essay in passing for a single point that you still fail to address -- that Nussbaum has criticized professorial economic privilege. It's on point. And I find it somewhat surreal that you're accusing me about being intellectually suspect by raising that point; YOU'RE the one who cited Nussbaum's book, and you did it to refute a point that as I demonstrate above, I never made. I think law school should be a scholarly endeavor, not a vocational one. Unfortunately, it does neither right now.

And outside Tamahana and Campos there has been no real public pushback from faculty on the cost of law school. If you are going to argue that there has been private pushback, then maybe you can explain why it apparently never works, because tuition continues to rise every year.

MacK, I agree completely with the lack of integrity in the legal profession and how that has helped perpetuate the moral flaws currently seen in legal academia, though I don't think it's a primary driver. I find the tenured law professor and the biglaw partner equally reprehensible, with the biglaw partner's one saving grace is he or she generally doesn't spend that much effort trying to convince me that he or she is serving humanity.

MacK

Andrew: To use an extraordinarily crude comment - between law schools and the leaders of the BigLaw element of the legal - it has been a "circle jerk." Each have contributed a lot to where we are now - I would argue though that the practitioners had somewhat more independent agency than the professors (who nonetheless had choices to make, and many of whom vociferously deny those choices (I could name a few.) Do BigLaw partners "spend that much effort trying to convince me that he or she is serving humanity" - well, and this is not sarcastic - I remember a BigLaw partner in an international arbitration he and and very big firm were screwing up by the numbers invoking that (1500-2000+ timekeeper) firm's representation of a death penalty case, pro bono, when seeking a delay of a hearing in a case they were losing ... never found that partners name on any amicus briefs - and I checked.

Jeff Redding

Andrew: The problem with your original comment is that, as you just admit, it did *not* acknowledge a number of obvious points/realities. My pointing to the Nussbaum book was to suggest that a number of people within legal academia (and Nussbaum is presently within legal academia, and also a number of other disciplines) have been making the anti-commodification argument for a long time. The argument has been largely unsuccessful, however, because of overwhelming cultural forces that insist on speaking of "inputs" and "outputs" and (naive conceptions of ) "costs," rather than more humanistic priorities and understandings of all of the above. In other words, please don't blame the victim.

Moreover, what you're hearing/experiencing as inconsistent messages from legal academy is certainly hypocrisy amongst some, but it's also different voices making different arguments in the same time-space… as I hope you know, no academia speaks with one voice. But if you want to anthropomorphize it all, then it does start to look like one big monster speaking out of both sides of its multiple mouths.

Finally, Nussbaum's controversial take-down of Judith Butler in Nussbaum's essay "The Professor of Parody" can only through a very odd set of moves be mobilized for your purposes here. Whatever you think of my original invocation of Nussbaum, please do not do with this essay what you are trying to do. It's not pretty.

Andrew

Jeff, it's a little worrying how much you're missing my points about credibility in the commoditization argument, but I'm pretty much giving up on trying to honestly engage with you. I thought you were intentionally being obtuse but sadly, you really might not understand the nuances of this argument.

The "overwhelming cultural forces" is a strawman used to evade moral responsibility; the simple fact is that rather than fight against commodization, law schools in particular embraced it when it benefited them. Law schools have become more expensive because administrators and professors insist on higher pay and lower workloads/smaller class sizes. That's it.

I do understand your confusion about the Nussbaum essay you cited, though your "controversial" nonsequitur is a trifle bizarre. It's a nuanced point, and I thought I had explained it simply enough but to try one last time I would suggest that you read it (or reread it) and try to look at it in the context of my original argument, that of academics (of any stripe) setting themselves up as arbiters of the moral virtues without either taking active, real-world steps to promote those virtues, or examining their own privileged economic positions. Don't just focus on bullet points of things she says. Try and understand it holistically.

In the end, the simple fact is, the legal professions (including legal academia) self-select for a group of people who are statistically likely to be smart but self-entitled and somewhat selfish. Not everyone, mind you, but enough to skew the behavior of the institutions these people make up.

Anyway I am out of this argument, and frankly off this website. It depresses me. Law schools like yours have a precarious existence, the still-existing schools will not be able to handle the excess professors out of a job when they close, and other academic departments (with very, very few exceptions) are going to find most law professors unqualified to teach for them. Good luck.

anon

Andrew: You're blaming the faculty for macro-issues over which they have no control. But really what difference does it make at this point. Who's to blame? I'd say administrators, owners of for-profit schools. Doesn't matter now. The issue is what's the way out of this mess of too many lawyers, too much cost, too few jobs. People have been predicting for months (years?) that lots of faculty will lose their jobs. When is this going to happen? When will law schools begin to shut down? Didn't Henderson predict massive layoffs this fall?

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