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Monday, February 10, 2014

Chemerinsky: ABA Task Force Wrongly Blames Faculty Scholarship For Legal Education's Woes

ABA Logo 2National Law Journal op-ed:  ABA Report Lacking Solutions for Law Schools, by Erwin Chemerinsky (Dean, UC-Irvine):

Task force offers plenty of criticism — especially of faculty scholarship — without practical advice.

Legal education certainly can improve, but the recommendations of the ABA's Task Force on the Future of Legal Education are not the way to do it. The task force released its report and recommendations on Jan. 24, and they are a collection of ideas that will do little to make law schools better — and some would make them much worse. ...

The task force correctly notes that the cost of legal education has increased dramatically over recent years, but it offers no proposals that would significantly decrease these costs. The report implies that lessening regulation by the ABA 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. ...

Without much explanation, the ABA task force report repeatedly criticizes law school faculties for spending time on legal scholarship. The implicit criticism is that faculty members are focused on writing rather than teaching. The task force offers no evidence for this conclusion. In fact, at every law school where I have taught, the best teachers are often the most productive and influential scholars. Of course, some professors are not adequate teachers, but the solution is for law schools to create mechanisms to deal with the problem. Lessening the emphasis on scholarship is not the answer.

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.

The task force also fails to recognize the extent to which scholarship by law faculty members benefits their teaching. Almost every time I have written an article or a book, I have learned a tremendous amount that has improved how I have then taught the material. ...

Much can be improved in law schools. We need to do much better in preparing students for the practice of law. Unfortunately, the ABA's task force offers no guidance as to how to accomplish it. The task force report is definitely not a blueprint for useful reforms.

Legal Education | Permalink


"I cannot identify any areas where the ABA standards cause us to spend more money."

Library? Tenure? C'mon, Chemerinksy - we know you are proud of UC Erwin, I mean UC Irvine, and its free COA, I mean $250,000 COA, but perhaps it is time to give up the ghost on such ridiculous assertions.

Posted by: Unemployed Northeastern | Feb 10, 2014 9:41:41 AM


How about you "offer guidance as to how to accomplish" better preparing students for the practice of law, and explain why the cost has risen so high? You just started a law school, didn't you?

Well, how do we better prepare students to practice? Oh, you weren't serious? You just wanted to criticize the ABA and try to maintain a cushy status quo? I understand.

Another thing: stating that law schools have increased in tuition because all university education has increased in price is not an explanation. Again, it is a justification. If the cost has risen not because of featherbedding and wasteful scholarship, where is the dough going? Why is the price rising? Saying that someone else (e.g. the Arts and Science faculty) has had their price rise too does not explain anything and is not a satisfactory answer. Where do the law dollars go?

Posted by: Modest Proposal | Feb 10, 2014 10:09:05 AM

Agree and disagree. Scholarship doesn't cost much. But professors who produce it certainly do. The real problem, which Prof. Chemerinsky is too classy to point out, is the hypocrisy of law students: like sports fans they complain of high salaries but relentlessly seek out the more "prestigious" institutions that pay them. It's not the ABA/US News that forces this kind of competition; rather, it's students themselves.

Posted by: michael livingston | Feb 11, 2014 6:25:37 AM

General Accounting Office? Does he mean Government Accountability Office?

Posted by: HTA | Feb 11, 2014 7:02:10 AM

“The implicit criticism is that faculty members are focused on writing rather than teaching. The task force offers no evidence for this conclusion.” Okay, Dean Cherminsky, let’s give you this one (assuming, of course that you know what “evidence” is).

But you go on to make the general assertion that “[i]n fact, at every law school where I have taught, the best teachers are often the most productive and influential scholars.” You offer no evidence for this statement.

For myself, I have yet to see a strong connection–evidence, if you will–between faculty scholarship and superior training of law students to become lawyers.

Posted by: Publius Novus | Feb 11, 2014 8:22:10 AM

MIchael Livingston has it right. Students could go to cheaper law schools if they wanted. And if Indiana University doubled its teaching load (low loads are the true cost of attracting talent and giving them time to write), its current faculty would leave, prestige would fall, and students would complain even if the tuition fell 30%. And that's not US News prestige---- the big thing for US News is student quality, so the prestige drop there would lag the true prestige drop (but would occur pretty soon anyway).

Posted by: Eric Rasmusen | Feb 11, 2014 8:26:49 AM


“Students could go to cheaper law schools if they wanted.”
Any student with a scholarship has gone to a “cheaper” school than they otherwise could have gone, hence the prevalence of merit based scholarships. Schools bid for high entrance numbers by making school “cheaper” to high scoring applicants. Are you really arguing that cost plays no role in a prospective student’s decision making process?

When a student opts for a more expensive school, it is almost always because they view that school as enhancing their chances of obtaining desirable employment opportunities at graduation. Nobody intentionally pays more to allow the “legal scholars” at their school spare time to write.

With greater transparency in employment outcomes, comes a clearer understanding of what students are paying for. As more students recognize that their student loan money is allowing Professor Bottomtooth to teach 3 classes and publish 1 naval gazing article a year, the greater difficulty law schools will continue to have attracting applicants.

Posted by: D++ | Feb 11, 2014 10:47:20 AM

Oh my goodness - we have Michael Livingstone, Cornell and Yale Law grad, and Eric Rasmusen, Yale BA, MA, and MIT PhD, deriding kids for attending expensive schools. Do as I say, not as I do. Also, can either of you state the difference in tuition today between Yale and, say, Quinnipiac?

Posted by: UnemployedNortheastern | Feb 11, 2014 11:38:14 AM

Although asking for cogency might be asking too much, Unemployed Northeastern's comment might at least approach coherence if he were to explain exactly how the ABA Standards regarding libraries and tenure increase costs to students.

As to libraries, does he think that law school's shouldn't have them? Is he among the legions who think that "everything you need is freely available online" and "you can easily find it all using Google"? If that is the level of information and intelligence we are dealing with here, then the first part of his moniker makes increasing sense.

Posted by: Rob T. | Feb 11, 2014 1:23:35 PM

Although asking for cogency might be asking too much, Rob T.'s comment is so riddled with grammatical errors that I cannot take it seriously. Anyways, the ABA standards governing libraries are freely available online, and as this is ostensibly a site for attorneys, I trust you'll have more success finding them than you seem to have with your punctuation placement.

Posted by: Unemployed Northeastern | Feb 11, 2014 5:12:49 PM

Let them all go bankrupt. They are all worthless. The "scholarship" is ideologically oriented dreck, that absolutely no one but the authors cares about. Judges don't read it, and lawyers (real ones with clients) don't read it.

Posted by: Walter Sobchak | Feb 11, 2014 9:33:10 PM