Paul L. Caron

Friday, October 31, 2014

The Coming 'Civil War' Between Doctrinal Faculty and Experiential Faculty as Law Schools Downsize

David Barnhizer (Cleveland State), ‘Drumbeats of Doom’ and the Downsizing of Law Faculties:

The “drumbeats of doom” are everywhere for law schools. Let’s review just a few. Thomas Jefferson School of Law is bankrupt. Cooley law school closed its Ann Arbor campus. Ave Maria was launched in Ann Arbor and ended up moving to Naples, Florida. Of course no one besides those directly involved in those institutions and alumni could care in the slightest if they disappeared overnight but their problems are just the “tip of the iceberg”. There have been significant cuts of tenured law faculty at the Albany law school, its dean, Penny Andrews, just quit and the faculty voted to form an AAUP union to protect their employment interests. Catholic University imposed a 20 percent all-university budget cut due to declining enrollment at its law school, indicating a stunning example of the law school subsidizing the overall university. [The dean of Catholic's law school challenges this widely disseminated claim about the scale of CUA's budget cuts and the cause. His explanation is offered at the bottom of this note. What appears clear is that the 20% cuts may or may not have been proposed at some point but apparently have not been imposed on such a dire scale. I am taking the dean at his word in adding this clarification. I find it difficult to believe that in relation to the original reports included in my comment below that there was no "fire" underlying the April 2013 reports or that they simply "made it up" whole cloth but unless someone comes up with a memo from the CUA Provost to that effect there is no clear internal evidence.]

Maine slashed three positions in its law library. The New England law school announced plans to cut 14 full time faculty positions in 2014, indicating that faculty who are offered that option but reject it could have their teaching loads doubled. UNLV faces a $3 million deficit. Twelve positions were cut at Vermont Law School due to declining enrollment.

Beyond these and other well-publicized downsizing and closure events at US law schools, quite a few other law schools have made “stealth” cuts in faculty and staff. ... [J]ust as there is an oversupply of lawyers and new law graduates there is an oversupply of full-time law teachers of various sorts and ranks in relation to the changed conditions under which many law schools must operate. That surplus of law faculty will only get worse.

It will not be surprising if in another six to ten years we will find something like 5,000 full-time law faculty (traditional tenure track, clinical and legal writing) employed in the law schools rather than 8,000. It is also the case that in many law schools the faculty that do remain will find their teaching loads heavier. ...

[E]ven though the regular production of quality scholarship is a general duty of law faculty the fact is that a large proportion of faculty are not productive in terms of published works after receiving the “gift” of lifetime tenure. There has never been even a half serious effort to terminate a law professor for lack of scholarly productivity. Nor in law schools is it generally even thought appropriate to ask a faculty member who falls short on the scholarly productivity index to compensate for that failure by teaching added classes. ... As faculty jobs increasingly come under pressure we can expect that the relations between law deans and their faculty will in many instances become tinged with suspicion, resentment and conspiracy theories. ...

Although it is more difficult to eliminate traditional tenure track faculty relative to the “administrative” faculty represented by many Legal Writing and Clinical professor slots and nearly impossible to cut tenured faculty, quite a few faculty positions of all kinds can be expected to disappear through a variety of stratagems. We are also at an intriguing moment when there is an aggressive push to create “skills-based” educational systems [actually we already have this to a greater extent than is apparently understood] and this means that faculty who offer courses in these areas have been increasingly empowered as a matter of political leverage and in many instances feel that “their day” has finally come. Whatever the legalities of downsizing faculty this means that a law school that seeks to reduce Legal Writing, Clinical and technical skills faculty risks a public relations disaster that can further drive away potential applicants. ...

[A] substantial number of traditional tenure-track law faculty and faculty with long-term “tenure equivalent” employment contracts “have to go”. This “downsizing” of legal education may be achieved through attrition, retirement, early buy-outs or layoffs but it needs to occur and for many current faculty members it will be wrenching financially and emotionally. Being a law professor is to have a job that is well-paid, low stress, subsidized with “perks”, stable and prestigious even if you are only working in a lower ranked school. Given what is occurring in the legal employment markets the tragedy is that most members of law faculties are no longer likely to find satisfactory employment at any undertaking even close in kind, security and pay relative to the positions they now hold. This fact, admitted or not, underlies any discussion of potentially effective strategies to alter the nature of the system of legal education in ways that deal with the changed conditions. It also should mean that from a standpoint of basic humanity the changes need to take the effects on people who trusted in the future of the institution, a future that is being dramatically altered. Unfortunately, this situation has been confronted by millions of employees in other industries over the past twenty-five or so years.

We can expect that many law schools will be entering a period of “civil war” between traditional tenure track and tenured faculty and Legal Writing and Clinical faculty as well as people hired for an expanded set of administrative tasks that have consumed increasing amounts of law school budgets previously allocated to those hired on the tenure track. ...

[A]s resources shrink and demands on faculty increase, including the expansion of teaching loads for tenure track faculty and the marginalization of scholarship, there will be nasty battles between the “classes” of law faculty of a kind rarely seen before. One of the most difficult and unpalatable tasks of a law dean will be to mediate the struggles and endure the challenges involved in making choices that decide someone’s future in a system offering considerably fewer opportunities. ...

[T]here is an increasing likelihood that in a surprising number of instances the decisions will be taken out of the hands of law schools and that universities will decide to close quite a few of those institutions as a matter of cost savings, unwillingness to subsidize mediocre law schools when there is a plummeting market for their graduates, and avoidance of endless and expensive litigation relating to discharge of individual law faculty.

Update:  I received this note today from Catholic Law School Dean Daniel F. Attridge:

Yesterday, Professor David Barnhizer published, and today you republished, an article stating:  “Catholic University imposed a 20 percent all-university budget cut due to declining enrollment at its law school, indicating a stunning example of the law school subsidizing the overall university.”  This statement is false.

The real facts are these:

  • The belt-tightening measures that have been implemented throughout Catholic University were occasioned by a number of factors, of which the law school enrollment dip is but one. So it’s inaccurate to attribute budget reductions solely to the law school.
  • Even more significantly, the budget reductions made at Catholic University are not 20 percent or anywhere close to that. They constituted approximately 2 percent of the total University budget.

We urge you to retract this false statement immediately.

Professor Barnhizer responds in the comments.

Update:  Jeff Baker (Pepperdine), Leashing the Dogs of War: Conflict, Creativity and Integration in Legal Education

Legal Education | Permalink


I suppose this discussion is over but, just in case, Daniel is correct. It is very rare that a judicial opinion, or even a law review article, for that matter, is influenced by legal scholarship. Counting cites does not fully capture this but reading the actual works does, In fact, cite counts probably overstate the influence of legal scholarship.

Posted by: Jeff Harrison | Nov 10, 2014 1:14:25 PM

I love commenters that start out with personal attacks, and then move to supporting their argument with additional failure. My reading of McDonald showed the court generally cited scholarly work to move the narrative along, but relied on case law to decide the case. You are also still failing to actually bolster your original argument. It was said that courts rarely use such scholarship. You then point out a narrow band of cases. So, for all the volumes of work being pumped out by law professors and others, you have a very select sample actually getting used in another smaller band of cases. For you to actually prove your original point, you will need to show that scholarly work does more than what you have posted. Show us where courts hung their hat on the scholarly work to decide a case. And then, show us how this occurs more than rarely. What percentage of cases do you think the list you provided make up of all the cases tried since 2010? And, please let us know what percentage you believe constitutes more than rarely.

I would have attacked the idea that scholarly work has little value by saying that maybe courts do not rely on the scholarly work that much , but, many base level decisions by attorneys can be influenced by the work. For my job, I routinely download and digest tax work that gets posted here and elsewhere. I find a great deal of value in many works over the CLE's offered by the bar for tax practitioners. I then use the works to springboard into further research to see if I can apply it to the company I work for.

Posted by: Daniel | Nov 6, 2014 8:34:35 AM

My experience is that people who are for firing law professors tend to believe two things:
1. Tenure is bad because people won't produce scholarship after they have tenure.
2. Scholarship is useless.
I don't see how both these propositions can be true.

Posted by: Bol | Nov 6, 2014 8:04:53 AM

Do you understand the meaning of "e.g.," Daniel?

Let's be more blunt, since some folks seem to be failing to understand.

A list of major Supreme Court cases since 2010:

Hobby Lobby, Schuette, McCutcheon, Windsor, Shelby County, Fisher, Arizona v. US, Sebelius (Obamacare), Dukes, Brown v. EMA

A list of Supreme Court cases since 2011 which cite to legal scholarship:

Hobby Lobby, Schuette, McCutcheon, Windsor, Shelby County, Fisher, Arizona v. US, Sebelius (Obamacare), Dukes, Brown v. EMA

Your ball.

Posted by: K | Nov 5, 2014 11:13:38 PM

I think to defeat the premise of "rarely," one must use more than one example out of the hundreds of thousands of cases adjudicated.

Posted by: Daniel | Nov 5, 2014 8:59:18 AM

"Rarely do the courts rely on "scholarship""

You may want to examine, e.g., _McDonald v. Chicago_.

Posted by: K | Nov 4, 2014 4:49:25 PM

I played college football (granted, NCAA Division III and I mostly sat on the bench). Also, I no longer teach at a law school; I moved to a business school. Lyman Johnson at Washington & Lee Law played college basketball. Joan Heminway at Tennessee Law played college field hockey. I am sure there are others. It is probably not a mistake that Joan and Lyman and two of my very favorite people in the legal academy - playing sports can teach you a great deal.

Posted by: Haskell Murray | Nov 3, 2014 5:06:07 AM


Now that I thinks about it, I can't think of a single prof at NUSL that was more than about 145 pounds soaking wet. Not determinative evidence of a pool of non athletes, but none of them seemed particularly coordinated, either.

Posted by: Unemployed Northeasteen | Nov 2, 2014 12:24:34 PM

.I've practiced law for 30 years and can count on one or two hands the times a law review article had an important effect on a case or situation.I was dealing with. Rarely do the courts rely on "scholarship", because its not precedent. Teaching from a case book and giving one exam at the end of the semester is not hard labor.

In addition, law professors have it pretty easy compared to the rest of academe. Go over cases in a case b

Posted by: Lee | Nov 2, 2014 2:55:43 AM

David writes: "I shared a thought with another person today that said part of the problem is that almost no law school faculty members were ever members of athletic teams where they learned to subordinate themselves to the development of the team itself. Sure, I have no actual data but having been around the venue for decades I feel it is reasonable to make the assertion. "

Only if you stayed at a Holiday Inn Express last night.

Posted by: Orin Kerr | Nov 1, 2014 11:48:49 AM

I wasn't going to post, but I had to laugh at law professors who claim they won't be able to produce scholarship with a 12-credit a year teaching load. They do realize that's the teaching load for humanities professors at research universities, don't they?

Posted by: anonprof | Nov 1, 2014 9:05:01 AM

I did want to provide the basis of the 20% cuts at Catholic lest anyone think I just "plucked it out of the air". I certainly hope the CUA dean brought this to the attention of the relevant people prior to now. The report:

Wednesday, April 17, 2013
Catholic University Imposes 20% Budget Cut Due to Declining Law School Enrollment

By Paul Caron

IndexThe Tower: Law School Enrollment Dropoff Causes Departmental Budget Cuts:

Catholic University will cut operational expenditures by 20% under a proposal by the Provost, a move that is the result of a decline in revenue from law school enrollment.

Earlier this year, the Provost asked deans from the University to trim down their operational expenditures for the next fiscal year by 20%. This decision has come following a decline in revenue from decreasing law school enrollment – a challenge that is being experienced by universities nationwide.

Lawyers, Guns & Money: Catholic University of America to Slash Overall Budget by 20%; Plunging Law Schools Apps to Blame:

"The law school accounts for about 10% of the university’s overall enrollment, so the mind reels at the extent to which the rest of the university has been depending for its solvency on encouraging the law school to produce massively indebted graduates who are unable to get any sort of legal job in what is at present the worst place in the country to try to get a job as a lawyer (Washington DC).

This naturally raises the question of how many other universities depend on their law school’s graduates to cross-subsidize the rest of the campus to a similar extent. A friend who is in a position to know tells me that quite a few law schools are now actually running operating deficits, although university budgets are so byzantine in regard to cross-subsidization via the charging of “indirect expenses” and the like that it’s often very difficult to untangle the actual financial situation. We law faculty are of course encouraged by our administrative overlords not to worry our pretty little heads about these matters, not that most of us require much encouragement of that sort anyway."

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I asked Daniel Attridge to provide any information dating back to the original publication of this report indicating that he had challenged its accuracy but have not yet received any response. I would expect that given its widespread dissemination a year-and-a-half ago that if he had problems with the accuracy a clear record would have been made. Nonetheless, as indicated in a separate comment a proposal to reduce a budget 20% in a single year seems questionable and certainly, as Attridge indicates, such a reduction did not occur.

Posted by: David | Oct 31, 2014 6:58:09 PM

Jeff, I shared a thought with another person today that said part of the problem is that almost no law school faculty members were ever members of athletic teams where they learned to subordinate themselves to the development of the team itself. Sure, I have no actual data but having been around the venue for decades I feel it is reasonable to make the assertion. Not too many athletes out there. And I don't really care about the athlete part and am using it to suggest the importance of a type of experience in which the individual is not the center of the universe. To the extent there is any validity in this then it means that law professors actually do not know how to collaborate "for the greater good" because their only real "greater good" is their own agenda and work. I have often heard the right "buzzwords" mouthed but seldom seen the kinds of cooperative "greater mission" behavior that anyone on a real team would understand immediately. Most academics of the law simply do not understand that it really "isn't all about them". Just IMHO.


Posted by: David | Oct 31, 2014 4:14:44 PM

Insightful post. Thanks. I am not sure where the war will break out exactly but at my school a strategic plan calls for the faculty to consider giving up some of their 9 hour teaching loads and go to 12 hours. The generally reaction is "what about MY scholarship." Yes the emphasis is no MY because everyone seems to assume that whatever he or she is saying is important. Thus, the war, if it is to be fought about the actual problem will be about the importance of the 300-400 million dollar investment law schools make in scholarship. In a macro sense it is an easy decision. Many many works are irrelevant. On a micro level it is a different story since each person feels it is someone else's work that is expendable.

Posted by: Jeff Harrison | Oct 31, 2014 3:45:13 PM

By the way, I have spent part of the afternoon going back and forth with the Catholic University law dean, Daniel Attridge, regarding what he considers an inaccurate (false) statement about the 20 % cut figure the CUA Provost was supposed to have mandated for all university departments. His figure was more like 2 %. I also sought to "go behind" the data sources on which I relied that explicitly stated the Provost mandated a 20 % cut across the board and after doing so I admit that they appear to be sketchy at best. The dean states that they were false claims to begin with even though picked up by numerous commentators and that they are false no matter how many times they are repeated. I guess this is the nature of how "urban legends" gain eternal life. At this point I am going to simply say that although Catholic law school and many, many others are experiencing significant enrollment declines and university budget pressures it is sufficiently difficult at this point to validate the 20% figure. I have been in situations in universities in which deans have been told to plan for a 10% cut but a 20% one-year slashing does not appear realistic. On the other hand I am also not willing to say that in the odd world of university administrators that a senior budgetary official would not have issued an order to departmental deans that included a range of contingencies for planning, including an improbable level of cuts and then used that data to hammer deans and faculties into submission on lower reductions. Forty years into the system has taught me not to trust university officials.

Posted by: David | Oct 31, 2014 2:23:58 PM

The challenge I will try to address after next week's blog on what many universities are likely to do about their law schools, is to begin to be honest about solutions that can work in the evolving conditions. Some of them will require very painful adjustments. Others will demand cultural changes within law schools that will never take place if left to existing law faculty. But at some point the discussion has to move from crisis to recognition of opportunities and a reordering of scale of operation, missions, fixed costs and the like. I also do not think that curriculum "reform" that operates within the existing structure of law schools is any real answer. I have taught all kinds of law courses, including clinical and many sophisticated and effective "skills" courses. One thing that isn't a real part of the argument about skills is that the problem with skills deficiencies on the part of lawyers is very often not one of not having the requisite skills--it is one of not using the skills effectively due to time and financial constraints, lack of professional commitment, or trying to deal with opposing lawyers who are themselves unprepared and unprofessional. I discussed much of this in an article in Michigan State's Law Review in 2012, "Abandoning an "Unethical" System of Legal Ethics".


Posted by: David | Oct 31, 2014 9:17:40 AM

The author’s point is correct, but it is too narrow. There will be all sorts of divisions within law schools. Some possibilities:

Faculty v. Administration

Old Faculty v. Young Faculty

Traditional Subject Faculty v. Niche Faculty

Clinical Faculty v. Doctrinal Faculty

Business Law Faculty v. Public Interest Faculty

The possibilities are endless, really. What I have learned about schools is that they are not like private law firms, where at least once a year everyone is accountable to everyone else in terms of what they contribute. They are really loose affilitations of people doing quite different things. It all used to work because the student money was flowing in, but now that money is scarce, everyone needs to be accountable.

I have noticed that the sort of idealistic public-interest dreamer sect has obtained a fair amount of power in law schools, either through tenure or administrative positions. However, prospective students are probably more likely going to be interested in private practice corporate type jobs that can help them pay their debt. So the powerful sect can’t cut the business/corporate faculty because they need them, and they are unwilling to cut public interest faculty. This results in no cuts, which results in high tuition, which results in fewer students, which results in gradual (actually, more like rapid) institutional decline.

Posted by: JM | Oct 31, 2014 9:08:39 AM

The author isn't all that clear on what he means by a "civil war", or why or how it will materialize, but he is surely correct to note that tensions between clinicians and tenure-track faculty will rise and probably have risen and many schools, as budget cuts force deans to make strategic choices about how to distribute those cuts. Non-strategic distribution of the pain is certainly possible (if cowardly), by, for example, cutting clinician and tenure-track budgets by an equal percent. But I agree with the author that in this climate, many deans will face implicit pressure to distribute a heavier share of cuts on the tenure-track side (this despite the risk that clinical education may be significantly more expensive to provide). And so, we might expect to see significant declines in the ratio of tenture-track faculty to clinical and LRW-type faculty (if , for example, the dean fails to replace retiring and otherwise departed TT faculty in order to meet budget cuts and/or to prevent cuts in clinical lines). Depending on how clinicians and LRW faculty are integrated into the school's scheme of faculty governance, we might expect to see a shifting balance of power on law school committees and the like, that can have a potentially serious impact on how the law school defines and acts upon its priorities going forward. Depending on where you sit on this debate, this might be a good thing or a bad thing. For law schools embedded in major research universities, having clinicians increasingly "running the show" poses some problems that may not be shared by stand-alone law schools or law schools that are part of universities without strong research traditions.

Posted by: Jason Yackee | Oct 31, 2014 9:07:32 AM

The employment prospects for students at law schools outside of the top 50 ranked law schools suggest that students at these institutions will not receive a return commensurate with what they are being asked to pay in tuition and related expenses.

If law schools insist on maintaining the same exorbitant cost structure, then they
need to drastically improve the employment prospects of their graduates. The only surefire way to do that is to reduce enrollment (unless someone knows a shaman who can increase demand for newly-minted lawyers). Since everyone wants to keep their current pay and perks, this is path most law schools have defaulted to. I can’t express any sympathy for any faculty at these schools that get thrown out on their

However, if bottom ranked law schools are willing to accept that a majority of their graduates are going face dismal employment prospects for the foreseeable future, they can at least the increase return students receive on investment by reducing tuition. The lowest hanging fruit is the massive subsidy for legal scholarship borne by law students. Since no one in the real world deems legal scholarship worth subsidizing, it begs the question why students are forced to pick up the tab. Are we really going to insist that faculty at bottom ranked law school are making some invaluable contribution to society by way of legal scholarship? Would anyone really notice if faculty at schools outside the top 100 law schools stopped producing legal scholarship? Let’s be honest here. If your scholarship is worth something, maybe it is time to do what your colleagues in the social sciences and hard sciences do – find people/foundations/governments to pay for their research. Asking faculty who can’t find sponsors for their work to teach more seems like the least harmful way (to students) to reduce tuition.

Posted by: Nathan A. | Oct 31, 2014 9:04:10 AM

"Law schools are doing what failing businesses always do: doing essentially the same thing they always have and trying to do it better."


Posted by: JM | Oct 31, 2014 8:54:53 AM

The flaw here is that, in today's markets, it should be quite possible for law schools to insist on faculty who have clinical skills and also produce quality scholarship. The problem isn't that they can't; rather, they don't want to. Law schools are doing what failing businesses always do: doing essentially the same thing they always have and trying to do it better. Sometimes, that works. More often, not.

Posted by: mike livingston | Oct 31, 2014 4:58:02 AM