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Monday, April 17, 2017

Horwitz:  Why Full-Time Law Profs Should Support The ABA's Proposal To Permit Adjunct Profs To Teach More Courses

ABA Section On Legal Education (2016)Following up on my previous posts:

Paul Horwitz (Alabama), The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII:

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations: ...

2)  This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening — or that might need to happen if law schools are to remain afloat while cutting to the bone. ...

3)  On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools [What Ails the Law Schools?, 111 Mich. L. Rev. 955 (2013)], I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model."

Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection — I would call it a description, really, instead of an objection — that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. ...  This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4)  Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. ...

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and —although slowed recently and to my own profound guilt by illness — I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.

Overlawyered, Relaxing the ABA’s Rules on Law School Faculty Structure

Legal Education | Permalink


I suspect ego is a significant factor in pushback against this proposal. Can't be easy for the Double Ivy prawf brigade, who once spent an entire year at a large law firm reviewing documents, to rub shoulders with fourth-tier adjuncts who actually, you know, have practiced law for decades and stuff. They don't know the Rule of Shelley's Case but they can actually write a contract and figure out when and how to appear at the correct courthouse. Not to worry, though! The LAW OF JD WAGE PREMIUM clearly shows that any laid-off law professors with essentially no practice experience will immediately be tossed equity partnerships at Vault 5 firms so it's all good.

Posted by: Unemployed Northeastern | Apr 17, 2017 10:41:05 AM

Few are forced to learn from law professors under the current model. There are plenty of California Accredited, non-ABA approved law schools staffed almost exclusively with adjuncts and online classes. Only about 1 in 3 of their students graduates and only about 1 out of 5 of those passes the California bar exam, but you get what you pay for.

In Massachusetts, there's the illustrious Massachusetts school of law at Andover (praised by Tamanaha), staffed almost entirely with adjuncts. Bar passage rates are atrocious, as are student loan default rates.

Adjuncts are cheap for a reason. Because they're low quality.

Any school that uses them heavily is like a restaurant buying cheap ingredients to boost margins at the cost of its long term reputation for quality--penny wise and pound foolish.

Posted by: Learning from lawyers | Apr 17, 2017 6:43:42 PM

It's never ceases to amaze me how easy it is to goad learning/data/math/etc. in these threads. I seem to have complete Pavlovian mastery over the poor thing.

Anyhow the *rationale* of non-ABA accredited law schools mean adjuncts are low-quality because unproven correlation is very amusing. Can you really not do any better than that? I mean, Richard Posner's Senior Lecturer status at Chicago is tantamount to being an adjunct, since he is neither tenured nor tenure-track. Is he low-quality? I seem to recall that he is the most-cited living jurist, and the author of some 40-odd books on law.

Posted by: Unemployed Northeastern | Apr 17, 2017 10:33:03 PM

Absolutely insane argument, learning. Those schools vastly differ in many other factors like the fact their students probably are 3 to 4 standard deviations away from the lsat mean of a t1 or t2 admissions class.

Yet you sit here and pretend like it's a natural experiment. Did you learn the difference between correlation and casuation at some point? You are either disingenuous or educationally subnormal.

Posted by: Bobby | Apr 18, 2017 6:52:29 AM

At any U.S. medical school, the professors teaching the clinical courses also actively see patients and carry out research. The exception are the PhDs teaching the basic physiology, histology, pharmacology, and biochemistry. Many of the MDs hired to teach are not even Ivy League grads. Rather than valuing credentials, the medical schools value intelligence, hard work, and expertise. I can attest personally, that the experienced pulmonologist teaching how to handle a COPD case, or the oncologist teaching hematology with 30 years of experience, were far better teachers than the Harvard Law grad with 2 years of experience teaching property or contracts.

Despite the fact that medical schools have not followed the law school model of hiring elite grads with little experience to teach a few classes a year, over 90% of U.S. medical students managed to pass their board exams. How many law schools last year had a 90% bar passage rate? The current model of law school education is broken.

If I told the Dean of a medical school, I want to be paid a six figure salary to teach a few courses, occasionally do research, and never see a patient, they would tell me to take a hike. Allowing law schools to hire more adjuncts would be a great way to improve legal education.

Posted by: anon JD/MD | Apr 18, 2017 6:07:16 PM