TaxProf Blog

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

Saturday, July 15, 2017

Rodriguez:  Changing Law Schools

Daniel B. Rodriguez (Dean, Northwestern), Changing Law Schools:

Last fall, 203 ABA accredited law schools opened their doors to a new class of would-be lawyers. Next month, that number will drop to 202, as Whittier Law School in Costa Mesa, California announced in April that it would shut down, making it the first fully accredited law school to do so in three decades. Whittier’s closing was a blow to the legal academy, and of course to the esteemed alumni from this established law school. When coupled with news of decreasing law school applications across the board, declining LSAT scores, and state bar passage rates at an all-time low, it put the finishing touches on the “law school train wreck” story that reporters have been reveling in for years.

But the resulting debate — law schools are failing! No, everything’s fine! — buries the truly important question: How can law schools, the very institutions that teach a discipline reliant on precedent, tradition, and entrenched rules become dynamic and innovative change-makers? And I don’t just mean throwing “innovation” in the title of a course or an academic center. How can we convince top students that if you want to change the world — be it through social justice or disruptive technology — you need to start with a legal education?

To start, let’s talk about those “top” students: Data released in June by the Law School Admission Council found that while the number of applicants to law school for the 2017-2018 school year dropped by only 0.5 percent, the number of applicants who scored [160 or more] on the LSAT has decreased [45] percent since 2010, as Paul Caron, Dean of Pepperdine University School of Law, wrote on his TaxProf Blog. These are the students with credentials who would likely be admitted to top law schools, perhaps even with merit scholarships. ...

[I]t is clear that law schools have an image problem. And before we can even attempt to change our image, we need to change our ways. Schools must integrate technology, business and entrepreneurship into their core curricula, and we need to think about developing legal minds without insisting they have a JD. The law schools of the future will be welcoming accountants and scientists and engineers to study law while they are training for non-law careers.

http://taxprof.typepad.com/taxprof_blog/2017/07/-rodriguezchanging-law-schools.html

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Comments

The problem with innovation in law schools is that law teachers/scholars are not innovators--unless it fits their very narrow political or disciplinary interests. It is a job that others have told me they "would kill for" and it really is one of the best in the world. That leads to an insular and parochial self-satisfied perspective in which we have our egos stroked and bask in the limelight or simply get to do whatever we want, when we want and get p[aid a significant amount of cash to do it. There is no way to expect systemically creative and innovative behavior or support from law faculty because changes impinge on our fiefdoms and activities. This is not going to change, and it has become even more difficult for a variety of reasons--some financial and others the "aging" of the professoriate. See below.

Abstract

In other industries when there is a decline or severe curtailment of the demand for their product we see companies downsizing, layoffs and even bankruptcies. American law schools have to this point been able to operate largely without any required adaptation to the economic realities of demand for their product. The problem is created by the fact that law schools are part of a rigid and intractable business system in the same way that the large firms and solo practitioners are driven by their need for money. The economic downturn is not a simple cycle but a transformation. Law schools have flourished in an insulated and parochial world exempt from real financial pressures. That is changing dramatically and the conditions will only intensify. A new system is being created that will be more complex than the traditional approach that has characterized American legal education. For a substantial number of US law schools and faculty it is like the lyrics of Bruce Springsteen’s “My Home Town”—“These jobs are going boys, and they ain’t comin’ back”. The new world of legal education will be dramatically changed and quite a few law faculty members will find themselves with reduced incomes, restricted tenure options, and higher teaching workloads. In many instances tenure track and even tenured law faculty will replicate the stunning experiences of millions of white collar workers in America’s industries who thought they had well paying life time jobs only find themselves on the streets as their companies downsized or went out of business.

Publication Date
Summer 2010
Citation Information
David Barnhizer. "Redesigning the American Law School" Michigan State Law Review Vol. 2010 (2010)
Available at: http://works.bepress.com/david_barnhizer/5/

Abstract

There is no “national” or “global” law school enrollment crisis but a serious enrollment decline being experienced by a large number of law schools that requires adaptive strategies. Those strategies are not general but need to be designed and applied within a realistic understanding of the specific competitive marketplaces within which individual law schools are operating. In some cases not all obstacles can be overcome or problems fixed within a relevant timeframe. It is likely that some law schools will be forced to close their doors. And it is difficult to argue against that outcome in a number of instances. As with any set of competitive industries there are winners and losers predicated on factors such as product quality, prestige, consumer demand for the products being sold, location, cost versus benefit anticipated from the expenditure, and convenience. These factors apply to the competitive conditions of US law schools.

Simply put, there are two primary considerations in play as to the success or failure of US law schools. One is applicant perception of the law schools to which they choose to apply in terms of whether those law schools represent the a “product” they want to “buy” based on quality, cost and career benefits. The other is the employers’ perception of their benefit from hiring a producer law school’s “product” in the form of a law school graduate. In saying that there is no national law school enrollment crisis I offer data on the 2012 and 2013 enrollments at 23 nationally ranked “elite” law schools said to be in the top thirty or so of US law schools. Rather than declining we see that overall those 23 law schools experienced an increase of 79 law students. Several of the “elite” law schools experienced a limited negative enrollment while a few had substantial positive gains but it is clear that these law schools are not in trouble.

Law schools that are experiencing significant impacts in the form of declining enrollments are the ones facing substantial pressures. Part of the data presented here indicates that by far the largest part of the decline in enrollments are taking place in law schools in the lowest end of the US News & World Report rankings—those listed as “Ranking Not Published” or RNP. While there are several aberrations where higher ranked schools have experienced significant declines there is no question that the “RNPs” and other low-ranked law schools are the “losers” in the competition for a declining total applicant base. The factors affecting their competitive conditions run a diverse range. These include lack of prestige, restriction to local employment markets, saturated employment markets, geographic location, tuition levels that are seen as significantly exceeding the benefits obtained from attending the institution, and competition from more highly ranked law schools. At the end of the presentation of information twenty-seven ideas are offered for approaches that could be further defined and applied to the needs and conditions of specific law schools. I deliberately avoided adding detail to the suggestions because I believe each represents a strategy or a tactic that needs to be individualized to fit the mission, conditions, possibilities, resources and agendas of specific institutions.

Publication Date
2014
Citation Information
David Barnhizer. "Law School Enrollments and Adaptive Strategies" (2014)
Available at: http://works.bepress.com/david_barnhizer/92/

Abstract

The issue of how best to do a legal education is being approached as if it were an intellectual and pedagogical question. Of course in a conceptual sense it is. But from a political and human perspective (law faculty, deans and lawyers) it is a self-interested situation in terms of how does this affect me? The reality is that for law faculty and deans it is mainly a life style, status, economic benefit and political situation in which the various interests protected by the traditional faculty slot placeholders [as well as the non-traditional practice-oriented teachers) are being masked by self-serving language best described as “high rhetoric”. My point is that as some lawyers have told me, “people would kill to have your job.” That is disturbingly close to being accurate. And if that is true then it offers a useful insight that “people would probably do almost anything to keep that job” once they have become part of the incredibly comfortable academic system inhabited by the American law professor. If we were critiquing any system other than the one in which we work, law professors (as lawyers) would immediately evaluate that other system based on the effects of the inevitable sense of entitlement, privilege, self-interest, bias and resistance to change that affects any system.

A central dynamic operating against real change in legal education is the very high level of individualized self-interest that characterizes the amazing job of the American law professor. This individualized self-interest produces a set of inchoate “work rules” that is at least as powerful as the work rules under which many labor unions operate. The rules allow the law professor unaccountable “space” to do whatever he or she desires in teaching, research, and external activity. This allows too many members of law faculties to treat their lucrative and privileged positions as a part-time job. As I suggest in this brief essay, very few beneficiaries of such a system voluntarily seek to alter its highly favorable terms of operation or are able to fully withstand the seductions of its privileges and perquisites. Most engage in convenient rationalizations that prevent real change because that would require them to lose the privileges and impose greater accountability and responsibility.

A result of the intense self-interest in which the American law professor operates is that recommendations that law school be modified to be more “practical”, implement clinical programs and incorporate courses such as Trial and Appellate Advocacy, Dispute Resolution, Negotiation, Interviewing and Counseling, Transactional work and so forth will not be accepted as significant across-the-board educational reforms. Arguments aimed at achieving substantial improvements in legal education have been around for four or five decades. It isn’t as if the premises of those arguments were obscure and a “great cloud of unknowing” suddenly stripped away. It is amusing to see people “reinventing the wheel” and acting as if they have suddenly achieved an intellectual epiphany that allows them to understand that American law schools are in fact in the business of educating people to become effective practitioners and responsible and principled professionals. But even though there is a strong likelihood that in many instances the new attitudes being trumpeted are little more than cynical or desperate public relations devices rather than actual shifts in pedagogical mission and educational strategies, they may offer hope for significant reform. If so this will be due to the sheer desperation being experienced in many law schools as enrollments plummet, lawyers and recent graduates protest, and parent universities become unwilling to subsidize their law schools.

Publication Date
2014
Citation Information
David Barnhizer. "Self-Interest and Sinecure: Why Law School can’t be “Fixed” from within" (2014)
Available at: http://works.bepress.com/david_barnhizer/88/

Abstract

A recent (rather tasteless) article argued: “Professors approaching 70 … have an ethical obligation to step back and think seriously about quitting. If they do remain on the job, they should at least openly acknowledge they’re doing it mostly for themselves.” In “The Forever Professors: Academics Who Don’t Retire Are Greedy, Selfish, and Bad For Students”, the insensitive author added: “the number of professors 65 and older more than doubled between 2000 and 2011.” The author’s most intellectually savage comments were that: “faculty who delay retirement harm students, who in most cases would benefit from being taught by someone younger than 70, even younger than 65.” All I can say is “OMG!” how can these doddering demented cretins be so irresponsible as to do that to these innocent and needy young people? Deans and law faculties are facing a situation where they can’t “reload”. The “aging” of the law school and general university tenure track professoriates has created a situation in which some have voiced concerns about what they see as a systemic blockage. The claim is that the refusal of senior faculty to retire is preventing academic institutions from hiring new and younger faculty, thus presumably inhibiting the fully oxygenated “intellectual blood flow” essential for the highest levels of performance by the collective “brain” of the academic institution. As I suggest in this brief analysis the claim that a main problem is the number of senior professors on university and law school faculties and that those older faculty members are somehow harming students is a disingenuous posturing masking other agendas.

To understand the implications for law schools of what is occurring we need to gain a sense of what universities are experiencing overall. What is occurring in law schools relative to faculty demographics is due to four main factors. One is declining resources caused by severe enrollment slumps. Related to this is the need for fewer teachers to instruct increasingly smaller student bodies. A third consideration is that the “corporatization” of universities has created a situation in which university boards and the increasingly business-oriented administrations of universities are seeking to recreate the institution in ways that provide university managers with greater flexibility and control over faculty and core elements of the budget. This involves eliminating tenure track positions when possible, replacing those positions with less protected teaching classifications than tenure track, cancelling the expenditure in part or in toto, or shifting the resources to administrative staffing needs. A fourth factor is that law schools and universities generally are populated by increasingly older tenure track faculties because fewer tenured professors have elected to retire since the 1994 removal of mandatory retirement rules. This creates a more expensive faculty, one that tends to present an obstacle to change, and a barrier to the hiring of younger and usually more diverse “replacement” faculty.

Publication Date
Winter 2014
Citation Information
David Barnhizer. "The Aging of the American Law Professoriate" (2014)
Available at: http://works.bepress.com/david_barnhizer/93/

Posted by: David | Jul 15, 2017 9:34:27 AM

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