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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, December 8, 2016

Anderson On The California Bar Exam Carnage: Law Schools Need To 'Cull The Herd Of Bloated Tenured Faculties'

TenureFollowing up on yesterday's post, Who Is To Blame For UC-Hastings 'Horrific' 51% Bar Pass Rate?: Robert Anderson (Pepperdine), The California Bar Exam Saga Continues:

The State Bar of California recently announced that the pass rate for the July 2016 California bar exam was 43%. This is a multi-decade low, and has affected virtually every law school in California. Even among ABA-accredited law schools' first time takers, the passage rate was only 62%. Particularly hard hit was UC Hastings, which apparently had a 51% passage rate.

Hastings Dean David Faigman reportedly took to email and wrote a letter to the UC Hastings Community in which he laid the blame on the State Bar. He expressed "incredulity" at the "shameful" and "unconscionable" conduct of the Bar. ... 

The primary reason that bar passage rates are declining is not because of the conduct of the State Bar, but because of the conduct of law schools. Law schools are admitting less and less qualified students in an effort to bolster their bottom lines. And why do their bottom lines need to be bolstered? Because they have too many faculty relative to student demand for the schools, and are either reluctant or unable to reduce the size of the faculty to "right size" the law school relative to present demand for the JD.

The blame for the current crisis lies squarely on the bloated tenured faculties of American law schools. In every institution, ineffective faculty members continue to collect a paycheck for decades after their "sell by" date has come and gone. Many faculty members at many institutions should have never been hired to teach law in the first place. But the instinctive response of most affinity groups is to circle the wagons when danger appears, and that is exactly what has happened in law schools.

Deans and University Presidents need to take decisive action to cull the herd of law professors, allowing them to decrease the size of law schools and increase the quality of students admitted and the education those students receive. Once that is done, we can (and should) have a conversation about the cartel mentality that the State Bar of California (and many others) have. I, for one, would strongly support taking action to prevent state bars from acting in protectionist ways that are designed to limit competition. But law schools need to deal with their own cartel system--the perverted way in which tenure works—before laying blame on others.

http://taxprof.typepad.com/taxprof_blog/2016/12/anderson-on-the-california-bar-exam-carnage-law-schools-need-to-cull-the-herd-of-bloated-tenured-fac.html

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Comments

U.C. Hastings reduced the class size from over 400 to about 320-340 students. This criticism seems...imprecise.

Posted by: JEROME PANDELL | Dec 8, 2016 10:20:29 AM

. . . And that's why I've proposed a very fair and sensible approach to slimming down faculties that can replace tenure. We'll go in reverse alphabetical order, with those whose last names start with "Z" fired first, and those whose names start with "A" fired only as a last resort.

So long, Professors Weston, Wendel and Uhl.

Posted by: alphabetical | Dec 8, 2016 10:58:19 AM

When a third or so of law graduates don't end up practicing law over the long run, and other employers are happy to snatch them up for compliance or business roles, why should the ABA have control over the number of students graduating from law school?

Posted by: ABA regulation | Dec 8, 2016 11:09:41 AM

Many law schools have effectively cut tenured and tenured track faculty for financial reasons. The problem with this approach is that it destroys their ability to recruit and retain qualified faculty for the next decade or two, and at some point the market will turn.

No one with a modicum of talent will be stupid enough to give up a $300,000 - $500,000 a year job at a law firm or in house for a $100,000 - $200,000 a year job at a law school without job protections like tenure, research support, and a working environment that is much more pleasant and less stressful than what is available in law firms and large corporations.

Posted by: Tenure | Dec 8, 2016 11:15:28 AM

Prof. Anderson, I assume that you do not include yourself as one of the "herd of law professors" that need to be fired or given a buy-out. That is a surprise since you apparently learned nothing in your PHD program about researching an issue before you speak. In the latest study on law faculty, Which Law Schools Are Shedding Full-Time Faculty?, the data shows that schools have drastically cut faculty size for several consecutive years. For instance, in CA alone, Mc George is down 29, Berkeley 22, Santa Clara 20, Golden Gate 17, San Diego 13, Hastings 12, etc. It appears that Pepperdine is the problem since it has the same number of faculty that it had in 2010. Which Pepperdine faculty do you recommend be cut and what criteria would you use? Further, please define "right size the faculty". What is the optimum student size of substantive, writing, and experiential courses to provide the best "bar exam" education? Also, please define "ineffective faculty" so that we can better understand your context.

Posted by: URwrong | Dec 8, 2016 11:25:59 AM

It would be interesting to see some comparative, over-time data on sizes of tenure-track faculty. Has anyone collected that sort of thing? I suspect a lot of schools have quietly downsized through attrition. My own school has seen its faculty decrease significantly over the past decade (from about 46 to about 25 or so). I can't imagine we are alone in that regard.

Posted by: Jason Yackee | Dec 8, 2016 11:49:07 AM

A question for Professor Anderson.

Pepperdine is currently ranked 65. Would you or your colleagues accept an untenured job--without any possibility of real tenure--at a significantly higher ranked law school in the same state, like say Hastings (50), Davis (30) or Irvine (28), over a tenured position at Pepperdine?

If not, you have your answer as to why law schools are reluctant to hollow out tenure protections.

Posted by: Tenure | Dec 8, 2016 11:58:44 AM

There’s no single cause. Because there are fourth (4th) quartile students at lower-ranked schools passing the CA bar (while some Harvard, Stanford, and Yale JDs fail), part of the blame has to go to the podium and consistently poor curricular decisions made by an interested faculty. Students whose entering LSATs and GPAs might lead one to think that they have little in the way of legal aptitude can reveal the pitfalls of prejudice. And any theory laying the blame on student quality must thoroughly and effectively explain why Harvard and Yale JDs fail the CA bar every year while students at unranked law schools pass. Good curricular choices and effective teaching can make the difference for some students. The key is not to assume that it’s always student quality and to ignore the fact that even a trimmed-down faculty may end up teaching less of what needs to be taught, and they may do a poor job even then. And just because one trims the size of the faculty does not mean that one will trim the size of the entering class. Aren’t law schools supposed to subsidize the rest of the university?

Posted by: Lux | Dec 8, 2016 12:46:43 PM

Where's UNE, ready to gloat with another ill-informed rant against all who have wronged him......again? If I got here first, you're losing a step.

Posted by: Anon | Dec 8, 2016 1:21:12 PM

"No one with a modicum of talent will be stupid enough to give up a $300,000 - $500,000 a year job at a law firm or in house for a $100,000 - $200,000 a year job at a law school without job protections like tenure, research support, and a working environment that is much more pleasant and less stressful than what is available in law firms and large corporations."

Hey boys and girls, see if you can spot the flaw in this hypothetical!

"Any theory laying the blame on student quality must thoroughly and effectively explain why Harvard and Yale JDs fail the CA bar every year while students at unranked law schools pass."

Oh my God. Compare: "Any theory that seeks to ascribe responsibility to individuals for investment decisions must thoroughly explain why some people go broke buying stocks while others become millionaires by buying lottery tickets."

Posted by: Anon | Dec 8, 2016 2:25:39 PM

@Anon,

I don't live in California and don't particularly care about this story of obvious deflection and blame-passing on the part of UC Hastings. But thanks for thinking of me. And of course virtually everything I've said about law schools over the years has been proven correct.

Posted by: Unemployed Northeastern | Dec 8, 2016 3:19:55 PM

I didn't write this post to be Mr. Popular at the AALS cocktail reception. I wrote this post because the dean of a law school blamed the school's bar performance on "shameful" and "unconscionable" conduct on the part of the State Bar. That seemed odd to me as the State Bar didn't engage in any "conduct," shameful or otherwise. It just administered the same bar exam as always, and got a multi-decade low passing score. Assuming we can be serious for a moment and admit it's not the State Bar's fault, whose fault is it?

"Jerome," if you'd bothered to read the post I think you would agree that Hastings didn't cut deep enough if they can only manage to get half the students to pass the bar. This is not a problem that is limited to Hastings; most likely they just happened to have bad luck this year and will do much better next year, even if they change nothing (reversion to the mean). This is a problem across the entire law school industry. Virtually all law schools (other than elite ones) have cut their class but not far enough. The reason that all law schools don't cut enough is because they treat faculty salaries as fixed costs, rather than variable costs.

"alphabetical," I'm sure if you thought really, really hard you might come up with a better method than reverse alphabetical (although I appreciate the attempt at humor). Seriously though, how about starting with people who haven't published anything in two decades?

"ABA regulation," I am not in favor of the ABA ratcheting up its role. I am asking private institutions to do the right thing themselves.

"Tenure 11:15," some people actually join law faculties because they are curious about ideas and enjoy contributing to scholarly discourse and teaching students, not because they want an easy job with no accountability. Indeed, when appointments committees function well, they view distinguishing between the two categories as their primary role. People who join law faculties for the right reasons continue to work hard at their jobs after tenure and have nothing to fear from my perspective.

"URwrong," I do include myself in the herd. I happen to think my institution is getting its money's worth from me but reasonable minds could differ about that. As for my own institution's faculty size, I'm not sure how that's relevant to my argument as I'm not in charge of my institution. However, if I were, we would have a much smaller faculty and student body.

"Tenured 11:58," I am not recommending abolishing tenure. I think a tenure protection against discharge based on the message conveyed in bona fide scholarly work of high quality is essential to the academy. I would agree to reduce my own tenure protection to this level even without moving to a higher-ranked institution, provided that everyone did so.

"Lux," you're absolutely right that it's not solely about student quality, and that occasionally someone from an elite law school fails the California bar. But the problem isn't that one or two people are failing the bar, perhaps for reasons of personal hardship. It's that HALF the students failed the bar at a distinguished law school. This would not happen if they held the line on the qualifications of incoming students. It's just that you can't hold that line and feed so many mouths at the same time without grotesque subsidies.

Posted by: Robert Anderson | Dec 8, 2016 8:08:04 PM

It doesn't take a rocket scientist to figure out what happened at Hastings. Their median LSAT dropped from 162 in the Fall of 2012 to 159 in the Fall of 2013 (the class that graduated in 2016), and the bottom quartile from 157 to 155, while increasing the size of the class from 317 to 333. They also saw 39 students transfer out in 2014, up from 21 in 2013. They also accepted 24 transfers students in 2014 with a median 1L GPA of 3.39 from places like San Francisco (4 transfers), Golden Gate (5 transfers), and Thomas Jefferson (3 transfers). Each of these small decisions made the graduating class a little worse off. I'm sure decisions were justified by necessity--we need to keep the class size the same, we need transfers in to offset the losses. But each little short-term decision pushes things toward a very big long-term downfall years later--maybe not all of it, but certainly some of it.

Posted by: anon | Dec 8, 2016 8:37:50 PM

Ummm sorry to burst your bubble, but publishing articles has no correlation with being an effective teacher who knows how to communicate the essential information for a student to pass the bar.

Posted by: ProfsRTheProb | Dec 8, 2016 10:35:04 PM

It sounds like they should cull the students, instead.

Posted by: mike livingston | Dec 9, 2016 4:05:53 AM

@ Mike Livingston - you can't get rid of the food without getting rid of some mouths to feed.

@ Robert Anderson - Bravo for taking a courageous and principled stance. I have long believed that smaller class sizes (which necessitates smaller faculties) is the only long-term solution to law school viability. My only caveat is your focus on research productivity as the measure of who stays and who goes. I would just make a rule that tenure ends at age 60. Older faculty probably make the highest salaries anyway, so more bang for the buck.

Posted by: JM | Dec 9, 2016 6:30:58 AM

Perhaps UC Hastings should bow to reality, stop lowering standards to maintain class size, cut the entering class size, and reinstall the former standards. Then cut the frilly faculty to close the gap left by missing tuition payments. They can start with the "Stupid and Pretentious Name Professor of Law" teaching "Critical Race Studies," and other non core legal courses.

Posted by: Lawyer | Dec 9, 2016 6:22:07 PM

We really need to have better prep on college so kids entering law school ate better prepared to think critically about issues.

Probably just jettison the western culture curriculums, more classes on gender studies, micro aggressions, through in easier grading and safe spaces will do the trick.

Posted by: Mavo United | Dec 9, 2016 7:23:35 PM

The fact that the "bloated tenured faculties" have caused the same problem throughout the education system. This is proved by international testing and the fact that so many graduate with worthless degrees and are not prepared for the jobs they apply for.

Posted by: Bevo Francis | Dec 10, 2016 4:05:42 AM

@Bevo Francis,

Here in reality, about 70% of professors are neither tenured nor tenure-track, and most of that group is comprised of adjuncts who generally earn shamefully low wages without benefits.

Posted by: Unemployed Northeastern | Dec 10, 2016 9:22:13 AM

Lux writes: "And any theory laying the blame on student quality must thoroughly and effectively explain why Harvard and Yale JDs fail the CA bar every year while students at unranked law schools pass."

Well, I know of Harvard and Yale JDs who failed the California bar because they decided they didn't want or need to study for it.

Posted by: Orin Kerr | Dec 10, 2016 6:22:07 PM

Hey Prof Kerr - just heard you on the "#741: Amy and Steve vs. Facebook" Planet Money podcast...

Posted by: yippee | Dec 11, 2016 1:53:23 AM