Dean Erwin Chemerinsky Reacts to the Task Force Report on the Future of Law Schools

Erwin Chemerinsky has published an editorial on the Report by ABA Task Force on the Future of Legal Education (registration required) in the National Law Journal.  There are things he likes and things he doesn’t.  He likes the ideas that schools should expand financial aid beyond merit awards.  He further likes the concept of skills training for students as a way to better prepare graduates for the practice of law.  Other than that, he doesn’t think the ideas in the Task Force report will do much to reduce costs.  He states, for example:

The report implies that lessening regulation by the American Bar Association would reduce the costs, but there is no evidence to support the idea. In fact, a report by the General Accounting Office in 2009 concluded that ABA accreditation standards do not increase the cost of legal education.

My own experience as a law school dean confirms this. I cannot identify any areas where the ABA standards cause us to spend more money. The reality is that the increased cost of law schools is reflective of the overall increase in the costs of colleges and universities.

I can think of one ABA regulation that increases the costs associated with law school:  tenure.  I say this in the context of reports of law schools reducing costs by buying out faculty contracts including some of those with tenure.  Florida Coastal comes to mind when the separation of faculty from the law school gets a bit ugly.  The ABA Section of Legal Education and Admissions to the Bar has proposed revising the Standard covering job security and academic freedom to remove tenure as a required option.  Job security is still mandated by the revised standard though that can come in many forms.

Chemerinsky notes that faculty salaries are by far the largest part of a law school’s budget:

The only way to significantly decrease the cost of legal education would be for law schools to dramatically reduce their full-time faculty and rely largely on adjuncts to teach students. At my law school, and I think this is typical, about three-fourths of the budget goes to faculty and staff salaries and benefits, with about half of that budget spent on the faculty. Although adjunct faculty are important in supplementing the curriculum, they cannot substitute for full-time faculty in their availability to students or their expertise as teachers.

I’ll say first of all that the argument of cutting faculty in favor of adjuncts is somewhat of a straw man.  A reduction in faculty in light of significantly lower enrollment would seem logical.  Tenure gets in the way of this where other forms of job security may give an administration more flexibility in downsizing (and upsizing, for that matter) the faculty.  I agree that it’s not in any law school’s interest to favor adjuncts over full-time faculty.  Nonetheless, schools are shrinking and their faculty rosters are shrinking with them.

Chemerinsky disagrees further with the Task Force approach to scholarship:

The task force fails to recognize the value of legal scholarship in the development of ideas, including to benefit judges and lawyers. Of course, plenty of articles and books are written by law professors that do not have practical benefits. But as with basic research in science, these often inform thinking about the law in a way that has long-term positive significance.

Obviously, law faculty produce both good and bad scholarship, as in every field of study. But the task force is seriously misguided in urging that faculties abandon scholarship. This approach likely would not, and should not, be tolerated by universities.

I don’t believe the Task Force rejected scholarship by the faculty.  Rather, it called upon law schools to use other forms of evaluating faculty in a changing a situation.  The Report called law schools “risk averse” and said there should be other models in addition to scholarship as incentives for promotion:

A common and often effective tool for promoting a desired outcome is incentives. For example, law schools typically promote faculty scholarship through a tenure system and financial incentives. If a law school wished to promote, for example, pedagogical innovation, it could use these same types of incentives (or others) to promote that goal. If another organization wished to promote pedagogical innovation in law schools, it could do so, e.g., through offering financial awards or prominent honors to encourage the desired behavior or outcomes.

I believe the Task Force is stressing flexibility in evaluating a faculty member for promotion.  Some of those evaluations may de-emphasize scholarship or include other work as a factor.  I can understand that this threatens the current law school model, or more likely, how law schools are ranked.  The Report has one recommendation in that regard:

U.S. News & World Report Should Cease Using Law School Expenditures as a Component of Its System for Ranking Law Schools and, in General, Should Ensure that Its Ranking Methodology Does Not Promote Conduct Damaging to the Interests of Law Students and the System of Legal Education.

No matter what happens with the Report or the changes in standards considered by the Section, the old world order of law schools will not prevail by the sheer force of economics.  – Mark

1 Comment

  1. I am surprised that law schools have not responded by enlarging the core, required curriculum. There are a lot of course that could easily be required that frequently are not. Examples include Business Associations, Taxation, Estates & Trusts, Criminal Procedure, Remedies, and Choice of Law. Having more required courses could reduce faculty requirements without having to resort to using adjuncts.

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