Monday, November 21, 2011
Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”
So, for decades, clients have essentially underwritten the training of new lawyers, paying as much as $300 an hour for the time of associates learning on the job. But the downturn in the economy, and long-running efforts to rethink legal fees, have prompted more and more of those clients to send a simple message to law firms: Teach new hires on your own dime....
Law schools know all about the tough conditions that await graduates, and many have added or expanded programs that provide practical training through legal clinics. But almost all the cachet in legal academia goes to professors who produce law review articles, which gobbles up huge amounts of time and tuition money. The essential how-tos of daily practice are a subject that many in the faculty know nothing about — by design. One 2010 study of hiring at top-tier law schools since 2000 found that the median amount of practical experience was one year, and that nearly half of faculty members had never practiced law for a single day. If medical schools took the same approach, they’d be filled with professors who had never set foot in a hospital. ...
[T]here are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.
There are more than 600 law reviews in the United States — Georgetown alone produces 11 — and they publish about 10,000 articles a year. Some of these articles are worthwhile and influential, and the best are cited by lawyers in arguments and by judges in court decisions. ... [But] many of these articles are not of much apparent help to anyone. A 2005 law review article found that around 40% of law review articles in the LexisNexis database had never been cited in cases or in other law review articles.
Of course, much of academia produces cryptic, narrowly cast and unread scholarship. But a pie chart of how law school tuition is actually spent would show an enormous slice for research and writing of law review articles.
How enormous? Last year, J.D., or juris doctor, students spent about $3.6 billion on tuition, according to ABA figures, accounting for discounts through merit- and need-based aid. Given that about half of a law school’s budget is spent on faculty salary and benefits, and that tenure-track faculty members consume about 80% of the faculty budget — and that such professors spend about 40% of their time producing scholarship — roughly one-sixth of that $3.6 billion subsidized faculty scholarship. That’s more than $575 million. ...
[A] law school’s reputation, and the value of its diplomas in the legal market, are almost entirely bound up in the amount and quality of the scholarship it produces. That’s been especially so since the late ’80s, when U.S. News and World Report started to rank law schools. The publisher’s annual rankings all but define a school’s standing in the legal academy’s firmament, and 40% of the U.S. News algorithm is based on a “quality assessment” survey by hundreds of lawyers, judges, deans and professors.
The problem is that with rare exceptions, all schools play the same scholarship-and-prestige game. Even professors in the lowest rungs churn out scholarship, and one of the first items of business for new schools is starting a law review. The result is a kind of arms race, with articles playing the role of nukes and students paying the bill.
In recent years, a law school’s reputation has been all but defined by the amount and quality of the law review articles produced by its faculty. The result has been an explosion of law reviews and law review articles. Though legal scholarship may be of little direct benefit to students — actually, much of it is never cited even by other academics — students pay for nearly every page of it through tuition. And the price is soaring.
- ABA Journal, The Costs of Legal Scholarship: $575M in Tuition and Grads Who Don’t Know How to Practice
- Jonathan Adler (Case Western), What Should Law Schools Teach? (What Should the NYT Learn?)
- Matt Bodie (St. Louis), A Recipe for Trashing Legal Scholarship
- Paul Campos (Colorado), The Cost of Legal Scholarship
- Jim Chen (Louisville), Everything I Needed to Practice Law, I Didn't Learn in Law School
- Rick Garnett (Notre Dame), Complaints About Law Schools as Efforts to Shift Costs to Law Schools
- Erik Gerding (Colorado), Theory and Practice in Legal Education and the NY Times News Cycle
- Michael Helfand (Pepperdine), Scholarship and Lawyering
- Jeffrey Kahn (SMU), “The First Thing We Do, Let’s [Train] All the Lawyers.”
- Orin Kerr (George Washington), Estimating the Costs of Legal Scholarship
- Orin Kerr (George Washington), What the NYT Article on Law Schools Gets Right
- Brian Leiter (Chicago), David Segal's Hatchet Job on Law Schools...
- Brian Leiter (Chicago), Today's NY Times Article on Legal Education
- Jim Levy (Nova), Institutional Resistance to Legal Skills Training Presents an Opportunity for Change for Schools Willing to Become That "Oddball Place."
- Jason Mazzone (Brooklyn), David Segal on Law Schools
- Frank Pasquale (Seton Hall), New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You’re 100)
- Larry Ribstein (Illinois), The NYT on Law Teaching