Can a Law School Get Too Small?

One of the advantages of the ongoing law school crisis is that student body sizes have decreased at many if not most U.S. law schools.  This is advantageous for students’ job prospects (as difficult as they continue to be) and, in some respects, for their legal education as well.  When I first started teaching back in 2008, it was not entirely unusual (or usual) for my colleagues at SLU and elsewhere to be teaching lecture classes of 100+ students.  There are cost efficiencies to such classes, but I don’t imagine there are many people who would enthusiastically return to those days.

Yet, I wonder if we are starting to see the problems of ‘too smallness’ at U.S. law schools.  I’m not talking about seminars and other writing intensive courses, where smallness is almost always a virtue for everyone involved (putting aside bean-counting administrators), but other aspects of the law school experience—including the faculty experience.  As I see it, the following three pedagogical and cultural issues can arise in a law school that is ‘too small’—both with respects to student body numbers and law faculty numbers.

1)  Diversity in the curriculum.  There are many ways to approach a body of law, and students benefit from diverse perspectives.  As a student, you wouldn’t want to learn all of your international law from one perspective, or all of your employment law or intellectual property either.  Yet, with law schools cutting back on faculty size, it’s entirely possible that a previously robust curriculum in an area of law not only starts to get whittled away, but also that there are fewer faculty to teach whatever remains.

2)  Diversity in the student body.  When I went to law school, my school had—at that time—a small student body (about 180 students/class).  I was one of a few LGBTQ folk in the school.  At that time, gay marriage wasn’t really discussed, and I can only imagine how difficult it can be these days to be ‘the only gay in the village’ when same-sex marriage comes up in constitutional law, and then family law, and then tax law, etc., etc.  Is one expected to speak up for the clan in every class?  Similar issues arise for students who belong to racial, religious, and other minorities, as well as students with visible disabilities.

3)  Faculty governance.  There are many signs that the law school crisis is creating governance problems in U.S. law schools.  The Charleston School of Law implosion is rich in this respect, but so is the rise of the Quasi-Permanent Interim Dean, or the number of dean searches which result in an internal dean candidate being ‘selected.’  With faculty sizes decreasing, one can only wonder whether existing fault lines in faculties will get exacerbated as law schools become ‘less institutional’ and ‘more personal.’  In short, when votes on law school policy routinely become tests of friendship (or clan loyalty), something in the governance experience has changed.

Comments

[anon]

These observations are all valid. Al recently suggested, however, a vision of tiny law schools. We can therefore infer some disagreement, if not necessarily personally between this post and his suggestions, but at least in the broad community.

What merits might there be to smaller law schools, especially those that cater to the low achieving student, as do "opportunity" schools in the current environment?

Along those lines, are tiny law schools far more likely to cater to low achieving students who, unable to obtain financial assistance at more established law schools, are more likely to pay full sticker? Could a tiny law school exist if not charging most students full sticker?

What are the chances that a tiny law school will be a center of excellence?

Finally, what is the point of debating these questions if the ABA has no enforceable standards on any issue affecting the operation of a law school once accredited?

[Orin Kerr]

I think there are pros and cons to any particular law school size. Bigger generally means more class offerings, more choice of professors, and a wider range of perspectives. Smaller generally means more individualized attention and more opportunity for any one person to be heard. Hard to say one is better than the other in the abstract.

[Orin Kerr]

I think there are pros and cons to different law school sizes. Bigger generally means more class offerings, more choice of professors, and a wider range of perspectives. Smaller generally means more individualized attention and more opportunity for any one person to be heard. Hard to say one is better than the other in the abstract.

[anon]

Did anyone see the last episode of Veep?

If so, does anything stated above remind you of one of the President's advisors?

[Ray Campbell]

I think there is a financial issue that may bear on this. There are certain fixed costs that come with opening a law school, even if it has only a small student body - a library, an admissions function, a placement function, an alumni function, etc. Staffing can be reduced, but on a blended, averaged basis the cost per FTE is likely to be higher on a small staff than a larger staff with more entry level and low level hires. This makes the overhead bite of running the school proportionately greater, and aggravates the issues you've identified.

As a practical matter, tiny law schools are likely to be niched schools, because small schools are not going to be able to cover a broad waterfront competently. Most micro schools will, most likely, be preparing students in a limited geographic catchment area for practice in that area. The course offerings and administrative structure will be tailored to that. If not that, they are likely to pick a subject matter specialty - say, environmental law - and try to excel in that niche. For students, this raises the issue of whether they can successfully identify the niche they want to practice in before doing one day of law school. For faculty at schools that are in the process of shrinking down to smaller, niched schools, the issue is whether there really is a place that fits their research and teaching interests as the scope of the school contracts.

[terry malloy]

little Britain; so awesome.

on tiny law schools:

Marty: The last time Tap toured America, they where, uh, booked into 10,000 seat arenas, and 15,000 seat venues, and it seems that now, on their current tour they're being booked into 1,200 seat arenas, 1,500 seat arenas, and uh I was just wondering, does this mean uh...the popularity of the group is waning?
Ian: Oh, no, no, no, no, no, no...no, no, not at all. I, I, I just think that the.. uh.. their appeal is becoming more selective.

We don't need little red schoolhouses of the law, especially if they will charge Harvard prices.

[Derek Tokaz]

"There are many ways to approach a body of law, and students benefit from diverse perspectives. As a student, you wouldn’t want to learn all of your international law from one perspective, or all of your employment law or intellectual property either."

But this is exactly what happens at large law schools now. You get all your torts from one perspective, all your property from one perspective, all your con law from one perspective, and so on. The majority of subjects are ones where you only take one class, and unless professors are trading off in the middle of the semester, you're only going to get that one perspective no matter how many other professors are at the school teaching the same material.

Of course, most students will have some area of law that they take several classes in, and for that one area perhaps it's useful to have some diversity among professors. However, it seems like even small schools such as SLU (515 new 1Ls over the last 3 years) still have a good bit of diversity. You can take American Legal History from one and Anthropology of the Law from another professor, and Law and Philosophy from a third. Copyright and Anatomy of a Patent are taught by different professors. Health Care Law, Health Care Regulation, Health Care Compliance, and Health Care Financing are each taught by a different professor.

Even as a school gets smaller, say down to 100 students per incoming class, you still wouldn't need to have entire fields taught by only 1 or even 2 professors. Instead, you would trim the number of fields. Maybe you keep a robust family law faculty, but don't offer Law and Literature or Sports Law or The Trial of Jesus. There's nothing wrong with institutional diversity, and not every school should be trying to offer a path in every discipline.

[nigel]

Terry - Isn't this what it is all about.

http://m.youtube.com/watch?v=WZ0AOY4iTU8

[Deborah Merritt]

Like Orin, I see both pluses and minuses to smaller schools. Many of the minuses, however, can be overcome by greater interaction with the rest of the university--law schools are remarkably insular in their enrollment of students from other departments and their willingness to let their own students take courses from their other departments.

Technology can also overcome some of the deficits of smallness. OSU has an arrangement with Iowa: our students enroll virtually in Herbert Hovenkamp's antitrust class while their students do the same for Dan Tokaji's election law class. Both are national experts in their respective fields, an opportunity that neither school could offer in both areas. (Under our deal with Iowa, the particular courses may change from year to year, these were the two last year.)

The students at the distance school take the course in real-time, participating from a classroom specially fitted for that purpose. They can see and be seen, hear and be heard. It cost some money to add the electronics to a classroom, but much less than the cost of a faculty member.

Would you want to do this for every class? No. But it works quite well for a course or two in each student's schedule. In fact, there are side benefits because grads almost certainly will take part in meetings, court hearings, and other important interactions in this type of online manner.

It's possible, finally, that smaller size could aggravate faculty cliques. But I've also seen a tendency for large faculties to lead to bureaucratization of the school. It wouldn't be a bad thing for faculty to get more involved in actually running the school.

Finally, I can't resist adding my usual plug: we could maintain larger faculties if we combined an undergrad program in law with the graduate one. That's what most other departments in the university do. Even medical schools are participating in more undergraduate majors like neuroscience. We should start thinking beyond our conventional "houses."

[charleston]

The lack of faculty governance is increasingly a problem, but I think it is more tied to the options of the faculty (can the faculty members credibly threaten to leave for another school or are there very few "rock stars" who are marketable elsewhere).if the administration knows that none of the faculty will leave, or doesn't care if they do, then faculty governance will likely be limited.

[anon]

"Faculty governance" has gutted the reputation of legal academia and at least twenty five percent of ABA accredited law schools.

Law faculties are barely able to teach effectively, and by and large, perform legal scholarship exceedingly poorly. These are the core functions of a law faculty.

Any say in any other matters of law school governance leads to the disaster that is upon us. I would suggest that faculties should not even be involved in hiring, as they do this (with some notable exceptions) based, in whole or at minimum in part, on whim and caprice, bigotry, prejudice, rumor and other unethical (if not illegal) bases. Faculties should also be scrupulously excluded from decisions about tenure, about admissions, about teaching loads, sabbaticals, travel budgets, the creation of vanity "centers," travel to conferences, foreign "study" programs, summer "stipends" paid to perform pre existing duties, etc.

Remove these items from law faculty mismanagement and watch the immediate improvements in the reputation and quality of legal academia.

And, for those who believe that law schools can cut and cut and cut without affecting quality, these are the items that cry out for pruning, but items that likely will be preserved at all other costs, given law faculty feather bedding - which is rampant and quite disgusting really.

[twbb]

Honestly, the cost of most electives in law school dramatically outweighs their utility. Keep the first year classes, institute a required set of courses for second year (tax law, T&E, evidence, substantive criminal law, con law II, civ pro II, family law, commercial law), and make third year litigation skills/interships, and you're set.

[anon]

twbb

Can't agree that curriculum is the problem, or that changing it would be the solution to anything.

[twbb]

Anon, the problem is not the curriculum directly, but rather the incredible costs inherent in offering so many courses. By cutting down on extra classes you can significantly reduce your faculty costs because you just don't need so many.

[anon]

Again, can't agree.

The electives taught be adjuncts are usually cited by students, post grad, as the most useful courses. That it, this is true beyond the low achieving, under prepared, under qualified cohort, i.e., those most likely to attend "tiny" law schools and to need a three year bar prep course called "law school." (Even having finished this course, stunning percentages of these students fail to pass the bar, justifying the closure of such diploma mills, designed to generate profits and cushy jobs using young people as conduits to the federal largesse).

[Jeff Redding]

Deborah: Thanks for your comments. Curious about your undergrad prescription: Would you want to see political science, public policy, and similar disciplines folded into a "Law and Public Policy" kind of college, where the J.D. is just one option? Many schools don't have a pre-Law undergrad track, so I'm just trying to figure out who the undergrads would be in your model. You've probably written about this elsewhere, so please feel to just redirect me with a cite or the like.

anon@3:02p.m.: I will delete future comments of yours (and others) which are not on point. This post and the discussion is not a dumping ground for your parenthetical remarks. No further warning.

[[M][@][c][K]]

I'm typing this on an iPad so there will be typos.

There are two extant ways to become a lawyer (and in many jurisdictions a hybrid of the two), law office training and formal "law school." The criticism of the former, a fair one, is that learning by doing depends on doing - legal practice is inherently episodic and, while a wide array of areas may intrude into a single matter, it lacks comprehensiveness. Law school is intended to address those shortcomings by having detailed courses that are a 'tour d'horizon' of legal subjects and the law as a whole.

The problem with the latter is the by now stereotypical law professor - often dilettantish - interested in little that has to do with the law, desperate to find a "hook" to their real area of interest, philosophy, knitting...the infamous [insert topic] and [as little law as I can get away with courses.

Realistically, there is a point at which a law school cannot credibly offer basic courses in subjects like say antitrust, family law, etc. The problem though seems to be that many law professors long ago lost interest in teaching them anyway. And therein lies the problem, to argue that law schools need scale, they need to first be using that scale for a purpose that forwards legal training, not the hobbies of those who never wanted to be lawyers or really even LAW teachers in the first place.

[Deborah Merritt]

Hi, Jeff. I would literally move the first-year of law school into the undergrad curriculum. I wouldn't dilute it in any way. And I would pair it with other courses only to the extent that undergrad is inherently interdisciplinary. I.e., law majors would be likely to take economics, political science, psychology and other courses at the same time as their law courses. If we stretched the 1L year over sophomore through senior years, there would be a nice interplay with other courses.

I have written a bit about this idea on my blog (lawschoolcafe) and hope to prepare a longer paper over the summer. Meanwhile, you can search "undergraduate" in the blog if you're interested. I would insert URLs, but that seems to upset the spam filter here.

I originally proposed moving 1-1/2 years of law school to the undergrad curriculum, but I think a single year is better. Happy to talk more about the idea!

[Jeff Redding]

Mack: And, yet, this post was not only about curriculum. To turn the concerns over size simply into curriculum and the tired cliche that teaching and research are not intricately related, and the other cliche that law is a discipline that--whether in a university setting or elsewhere--can be delinked from other disciplines, is to ignore my other observations. Please pity the hobby horse that you are marching into the desert ravine.

[Derek Tokaz]

anon,

Electives aren't taught exclusively by adjuncts. Tightening the curriculum ought to allow a school to reduce its full time faculty headcount.

DJM,

I completely agree about the undergrad law program. One benefit is that it would allow law school to actually just be a trade school for people interesting in doing legal work. The undergrad degree would fill the role of the broader liberal arts education. Want to go further in that? Maybe have a non-practitioner masters. ...In fact, why isn't that already a thing? A 1 year program for people who whose careers would be benefited by some legal education, but who don't need 3 years and all the debt that comes from law school? If there really is this huge market of JD Preferred jobs, it'd make a lot of sense to have a graduate degree aimed at them.