Monday, January 21, 2008

Interdisciplinary legal education: the overt costs

Brian Tamanaha's Balkinization post, Why the Interdisciplinary Movement in Legal Academia Might Be a Bad Idea (For Most Law Schools), is an instant classic. I sincerely wish I had written it. Since I didn't, I'll be content (if only for the moment) to join the chorus of commentators who have chimed in. (I also think it's worth an aside to express my view that Larry Solum's response is the most thoughtful and thorough of the bunch.)

Among those who have expressed an opinion about the desirability of interdisciplinary legal education, at least at so-called nonelite schools, Brian and I share something that most of the other writers do not. We have both been law school deans. Deans know what it costs to build a faculty. Not in political capital, not in hours spent on recruiting. In hard, cold cash. Deans, at any rate, should know these things, at least better than rank-and-file faculty members throughout the legal academy. And to the extent that much of the criticism of Brian Tamanaha's position assumes that interdisciplinary legal education doesn't "cost that much," I suppose that the task of explaining this economic model was bound to fall on a dean. Especially one who has gone to the trouble of establishing an "Interdisciplinary Circle" at his school.

One more caveat: Deans do not advance their career prospects — at their current institutions or in the academy at large — by revealing too much information about law school finances or, for that matter, their mastery of a subject most law professors are all too happy to treat as mysterious. Even though I'm undermining my own self-interest by addressing this subject at all, I still have every incentive to obfuscate. You are forewarned.

Very well, then. Recall the crucial passage in Brian Tamanaha's critique:
In the non-elite law school universe — with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors — the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons . . . . First and foremost . . . there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience . . . .
I hasten to add my previously stated (and frequently repeated) point that the set of "nonelite" law schools may be the entire AALS roster, minus fifteen schools. If your law school has to argue whether it's at least as good as Vanderbilt or Southern California, you need to listen.

The single costliest component of any law school budget is skilled labor. Translation: professors cost money. Once you give them tenure, you can't (readily) fire them, and you are equally crippled in motivating them to do more work. So spend wisely, and be prepared if you make the wrong choice to endure another three or four decades of overpaid mediocrity (or, worse still, overpaid and socially insufferable mediocrity). This is crassly stated, but not falsely so.

FacultyOf course, the vast majority of professors represent money very well spent. Without them, you don't have a law school. You need good professors to cover a law school curriculum. I'll illustrate the point with a thought experiment.

Let's say you'd like to start a very small law school. You have only ten faculty slots to fill. Yours is a financially shabby shop — your host university is chartered by a historically poor state that doesn't value education, and there is no naming opportunity that would harness a private donor's generosity. How do you propose to hire your first and — for all you know — only colleagues?

Given the constraints on your budget, I strongly recommend that you start by hiring people who can cover the standard first year curriculum, plus the professional responsibility course that every bar examiner considers a prerequisite. Don't overlook the highest-enrollment upper level "electives." They are electives to you, but de facto requirements for students who genuinely fret about their ability to pass the bar. (Don't forget — you aren't running a law school that resembles the one you attended.) Here are some of those "electives": constitutional law, administrative law, evidence, corporations, tax, family law, the entire battery of UCC courses. Hmmm. How about remedies and labor and employment? Oh, before I forget, you might consider spending a tenure-track position on a writing and skills specialist, since nothing else you teach in law school will be visited on your head as miserably — if you teach it badly — as writing and skills.

Let's count the number of essential faculty members and see whether you have space left for anyone else:
  1. A utility infielder specializing in all areas of commercial law.
  2. A corporate and securities law specialist. That's right — though many public law and "law and" professors don't know this, business organizations and commercial law are rarely taught by the same people.
  3. A tax specialist.
  4. A proceduralist — good for everything from civil procedure to federal courts to conflict of laws.
  5. Public law from the "rights" side, probably including a smattering of federal employment and labor law.
  6. Public law from the "structure" side. Want to economize with a single public law specialist who covers rights and structure with equal skill and enthusiasm? Happy hunting!
  7. A criminal justice specialist.
  8. Someone who can absorb all sections of professional responsibility, because no one else can or will do this.
Wow. I've gotten to eight really fast, and that leaves me just enough room for a real estate guru (my best hope for covering property) and a family law specialist. Maybe I can persuade my rights-oriented public law specialist to cover family law. Why? Because I still haven't managed to cover torts or remedies or . . . . And that nasty question of hiring a writing and skills specialist persists.

You'll notice that I haven't had an opportunity to cover some areas that law schools like to cover, even in the absence of pressure to teach law on an interdisciplinary basis. These are little things like international law (in whatever flavor), intellectual property, environmental law, and some of the areas of advanced business law on which I've spent most of my scholarly energy. Insurance, media law, banking, public utilities, antitrust, labor law, trial practice? A clinic? Ha. You should live so long.

Here's the bottom line. Not every law school is this constrained, and my hypothetical is admittedly extreme. But every faculty position committed to a professor whose primarily intellectual allegiance lies far afield from the core law school curriculum, who is unwilling or unable to absorb large numbers of mostly frightened, uninterested, and/or unprepared students — that faculty salary represents precious financial resources that all but fifteen law schools in the United States must consider very, very carefully before committing.

And with that, and a vague promise that I will eventually address the "revenue" side of this question, at least as expressed in the impact of interdisciplinary legal education on alumni relations and law school fundraising, perhaps we law school bloggers can train our attention on the real threat looming in last week's hot topics: Kirsten Wolf's campaign to dissuade people from going to law school in the first place.


Anonymous Matt said...

This is a very useful comment. This is what I was trying to get at (in shorter and less clear way) in my comment on Leiter's first post on the subject. I wonder, though, if you put emphasis on trying to hire people who will be productive scholars if this doesn't tell (at least other things equal) to hiring JD/PhDs since they have significantly more "scholarly" training and have, assumedly, already produced at least one long, substantial piece of scholarly work in their dissertations- usually significantly more than a straight JD student will have. Obviously this is only one factor but I'd guess that if you're looking for scholarly potential that's a good place to look.

1/21/2008 1:47 PM  
Blogger bikemig said...

Jim, the post on interdisciplinary studies and the economics of law schools conflates two issues that overlap but are not the same. Law schools have gotten too expensive. The solution may involve increasing teaching loads (highly unpopular with professors but perhaps necessary). But it is quite possible to engage in interdisciplinary scholarship and teach the mainstream stuff of the law. I do and I am not exceptional in that regard. Miguel

1/21/2008 2:40 PM  
Anonymous Brett McDonnell said...

There's an important assumption here: that interdisciplinary scholars can't or won't teach any of the big courses that Jim absolutely correctly insists are central to the curriculum. That assumption is sometimes right, but often wrong. Most (though certainly not all) good corporate or commercial law scholars today have some serious economics training. Many good constitutional law scholars today have training in philosophy or political science. Many legal historians can bring some great perspective to property, or criminal law. And so on. The key to effective interdisciplinary hiring at a reasonable cost is finding those interdisciplinary scholars who can and will teach the basic courses. That is not always easy, but I think it's doable.

1/21/2008 4:03 PM  
Anonymous Curious said...

Jim, you write of the interdisciplinarian who is not willing to do the hard work of teaching doctrine to law students. But my sense is that such a figure is a rare breed: most interdisciplinary types also cover core courses. So what about a philosopher who also serves as your criminal justice person? An economist who covers the corporate and securities law offerings? A political scientist who teaches the public law offerings. Granted, these may not be subjects our hypothetical interdisciplinarians write in. But if they can keep up in the relevant literature adequately and cover the courses, why would they be any more expensive to hire, or any less desirable, than doctrinalist? Or am i missing something?

1/21/2008 5:34 PM  
Anonymous Anonymous said...

Jim Chen addresses one side of the issue by pointing out the (obvious?) fact that law schools may have less coverage of core subjects if they devote substantial portions of money to interdisciplinary professors. The hidden (but probably correct) assumption behind this is that interdisciplinary scholars will want their teaching to reflect their interdisciplinary interests. Even if you get your legal historian to teach some core doctrinal classes, she's going to resist teaching all core doctrinal classes.

Now for the demand side of the equation. What everyone seems to be forgetting is that law schools seek to satisfy demand for legal education to two audiences: students, and donors. (State schools have a third audience -- the state.)

These audiences interact in complicated ways. As you move farther and farther outside of the top 15, students probably would prefer that their law schools did more blackletter doctrine (and perhaps clinics) and less interdisciplinary work. Hence, you would expect students to gravitate towards schools that emphasize that over either scholarship or interdisciplinarity.

But overriding that is the student interest in going to the highest ranked school, as measured by various measures (U.S. News; local reputation; etc.). Except where schools are closely ranked, geographically disparate, or offer vastly different tuition/aid packages, students will almost always choose the higher-ranked school. (In other words, students might equivocate between Harvard and Chicago, but very few have trouble deciding between Harvard and BU, let alone Suffolk.) The one exception may be religious schools -- Notre Dame, Georgetown, and Yeshiva might steal a few students from Harvard and Columbia each year. Here's the thing: rankings are apt to reflect excellence in scholarship more than excellence in teaching. Each lawyer has seen very few law schools' teachers in action, so can't really judge. (And we have a hard time extrapolating from the graduates we've seen.) But lots of us have read articles by Kathleen Sullivan -- or at least seen her on tv. So students will go to scholarship-centric schools in their pursuit of rankings -- not because of their educational experience preferences.

Donors, too, follow rankings. They are more inclined (perversely, if you think about marginal educational return) to give to higher ranked schools. And they are more likely to give money to scholarship-focused schools than to teaching schools. (It's more prestigious to have a Harvard center named after you than a lower-ranked center. And it's more prestigious for your name to grace a chair held by Cass Sunstein than one held by South Carolina's best loved teacher.) Since donor support enables schools to improve their hiring, etc., donations reinforce the preexisting rankings. And since donations determine rankings, they also help determine student demand for a particular school.

Now for the last step: Student demand reinforces rankings. That's because, the more students you have willing to choose your school over others, the more selective you can be in your admissions -- which helps determine both formal rankings (US News scores) and informal rankings (since law school graduates' success is taken on a reflection of their educational experience, even though much of it may have been predetermined before law school.)

So what's a school to compete on, given these factors? Clearly scholarship. Scholarship improves rankings, which improves student selection and donations -- which then improve rankings!

It may not serve the profession well, but it is the most likely outcome of independently acting competitive schools.

1/21/2008 6:08 PM  
Blogger Stephen said...

Someone who can absorb all sections of professional responsibility, because no one else can or will do this

I'm surprised. The subject is nuanced and fascinating at times. I'd think it would be one of core interest for people to teach.

1/22/2008 10:56 PM  
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