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