Paul L. Caron

Sunday, January 12, 2014

Self-Interest and Sinecure: Why Law School Can’t be “Fixed” From Within

David Barnhizer (Cleveland State), Self-Interest and Sinecure: Why Law School Can’t be “Fixed” From Within:

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.

Legal Education | Permalink


As a graduate of The Ohio State University College of Law in 1968 I would say Prof. Barhheizer has hit the nail on the head. And much of what he states could apply to the rest of the University colleges and departments. This was evident even 45+ years ago, and I suspect has become worse over the past decades. Twenty years ago I was approached about teaching a course and submitted my "lesson plan" so to speak. It was heavy on practical details based on 20+ years experience in that field rather than theory and case law. Needless to say I never heard back. The "stipend" for teaching that course was nominal.

Posted by: Jerome Schindler | Jan 13, 2014 9:57:10 AM

Dear Professor,
Respectfully sir, you are doing too much navel gazing. The issue should not be "fixing law school", but rather "fixing the legal profession".

After 25 years of this business, I have come to the inescapable conclusion that the root cause of our problems are that there are simply too many of us, and more being produced by law schools each year ... more than the market can absorb.

Simple solution (easy to say, surely impossible to implement):

1. ABA starts taking accreditation seriously, and gradually whittles down the number of law schools.

2. Law school becomes two years of theoretical/traditional courses, and one year of clinical/practical courses (I'm sure the existing stock of law profs can cover this one).

3. Take a page from the doctor's playbook: Every law graduate must go through a two year residency, working under supervision of an attorney, before becoming licensed. In my state every undertaker and appraiser has to do this, why shouldn't we?

Anyway, my 2 cents worth.

Posted by: solo practioner | Jan 13, 2014 8:29:59 AM

Sometimes less is fewer.

Posted by: DWPittelli | Jan 13, 2014 7:17:29 AM

Presumably Prof. Barnhizer is not, himself, someone who has treated his position as a "part-time job." Could he let law professors know how he has managed to be a good law professor? Is he exemplary at research? Has he documented better outcomes for his students?

Anyone with a sufficiently critical cast of mind at any office job in the world could cry out "I'm surrounded by shirkers!" (Hopefully they'd do so with less 50+ word sentences.) The real point is to improve your professional home, not impugn the motives and work ethic of those around you.

Posted by: Genuinely Curious | Jan 12, 2014 2:46:45 PM