As we commit to bold action to reform legal education, we also should lay out the parameters within which we operate.
Perhaps the most challenging aspect of my job as a law school dean is determining how to balance contradictory demands. Communities have multiple members who wish for different outcomes. Economist Kenneth Arrow won the Nobel Prize for showing it is logically impossible for a democracy to aggregate preferences in situations displaying any complexity. Even individuals desire particular outcomes without realizing all of the costs or the consequences. It turns out that it is not uncommon to believe we want something we couldn’t actually live with.
Take faculty compensation as an example. There are few professions of which I am aware that face vehement attacks on pay as law professors are encountering. While we’re at it, let’s add faculty productivity to the mix. Law professors also are criticized from all sides for the social utility of the undertaking that is the primary means by which they size up their own worth: writing books and articles.
Another framing stipulation. One of the important responsibilities of a law professor as a teacher is ensuring students understand the distinction between descriptive statements and normative arguments. The former are assertions about what is, the latter assertions about what should be. In some instances, classroom discussion — much like legal advice — concerns the black letter doctrine as it currently exists. In other instances, classroom discussion — also like legal advocacy — addresses potential reforms that could be implemented.
I would like to explain why people, especially students, likely don’t desire schools to reduce faculty compensation or cease being academic in orientation. Or at least they would not want any single school, the one with which they happen to be associated, to do so and suffer as a result. I would not mind being proven wrong in the descriptive, not normative, line of reasoning set forth below. For purposes of this analysis, I am looking at matters from the perspective of student self-interest…
I will bracket any issues about the intrinsic value of what law professors do as scholars and teachers. Elsewhere, I’ll discuss means of reducing expenditures including by cutting faculty compensation. In addition, I’ll ignore the potential legal problems that would arise with unilateral reductions in contractual arrangements with employees, though I’ll note it almost certainly would be an antitrust violation if deans colluded to set salaries (maximum or minimum).
With that preface done, here is the ratcheting mechanism that I believe is at work. It may not be explicitly set forth as I’ve laid out below, but social scientists assure us that people need not be aware of what is motivating them to behave in a certain manner.
Here is the premise from which all else proceeds. Everyone wants their school to be ranked highly. Most want their school to be ranked higher.
Yes, a few people disclaim any interest in the matter of rankings. However, I’ve seen too many individuals who say that, and whose ideological commitments would be inclined against crass competition in a social hierarchy, nonetheless respond to rankings.
Even with exceptions, the overwhelming sentiment renders the rankings all-important. For example, every study (none all that scientific) I’ve seen shows that students consider rankings the greatest factor in decisions about where to matriculate.
Allow me to emphasize again: I am being descriptive, not normative. I’m accepting the facts as they are, not advancing them as the ideal. That is akin to what law students are instructed to do as they confront final exam hypotheticals.
Next, the single most heavily weighted factor in the rankings is academic reputation. I don’t quarrel with that for our purposes at this juncture.
Academic reputation, it is usually said, is based on scholarly output. There are proponents of rankings systems that, they argue, are better measurements of quality, which rely even more on assessing professorial publications.
There are approximately 800 voters for academic reputation. They include the dean, associate dean, appointments committee chair, and most junior tenured faculty member, at each of the 200 or so ABA accredited schools.
After the ballots have been sent out, each of these opinion makers is inundated with glossy brochures and equally snazzy digital newsletters touting the professional achievements of their peers. I’d estimate, without having done a precise survey, that 90% of the content of these missives details scholarship rather than teaching. Professors care about their rivals’ citation counts (how often they are referenced in footnotes), not their student evaluations.
On that account, a dean who wants to succeed according to rankings is encouraged to hire the most renowned faculty members. Whether she is considering entry-level professors or lateral candidates, she wants those with the most impressive credentials. Then she needs to nurture them, so they not only continue to generate ideas but also stay at the school. If she cannot retain them, there will be rumors.
In this respect, law professors are no different than human beings in general. They want to be recognized. That means in a capitalistic society by the material reward of compensation. Pay serves as an incentive and a signal. (I’m skeptical of the former use, but be that as it may.)
To be fair, law professors probably are less avaricious than their former peers in practice. Those who were in private practice could command salaries up to an order of magnitude greater. Those who came from the government or public interest backgrounds, who receive a raise as a professor, have shown by their prior career that their primary life goal is not amassing wealth. A newly tenured law professor at many schools earns less money than a newly hired associate at a major firm.
Put this together and here is what you have. Students want their school to be ranked highly. Rank is determined in significant part by academic reputation. Academic reputation is based on scholarship. The conventional means of obtaining the better result of more scholarship is to seek out the individuals who are best at performing that activity and then supporting them in doing it.
This chain is not inviolable. Any of the links could be broken. Students could care less about rank, rank could be calculated with alternate means, or academic reputation might rest on the ability to turn out trial lawyers, etc. However we reinvent legal education, it will depend on talented teachers in the classroom.
For now, however, the above constitutes my effort at a neutral statement of how the status quo works. I would be most pleased to be mistaken.