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.

Of 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.