Thursday, January 16, 2014

Helpful Legal Scholarship, Part Two: Why Law School can’t be “Fixed” from within

A few months ago I did a post on a potential series I would be writing, where I would read legal scholarship that appears to be useful to legal education reform and post my conclusions on that particular work.  Now it is time for Part Two, as an interesting piece from Professor David Barnhizer, which is entitled "Self-Interest and Sinecure: Why Law School Can't Be 'Fixed' from Within," has been making the rounds.  Professor Barnhizer is from the Cleveland-Marshall College of Law, and his faculty profile can be found at the top of this page.

This is a surprising piece for a number of reasons.  First, is that Professor Barnhizer is something of an unknown in the legal education reform movement, and he has come out swinging.  Second, is the degree to which Barnhizer's tone and reasoning mirrors LawProf's.  Finally is the scope, as Barnhizer not only looks at the entrenched interests, but lists many ways in which legal education could be improved.  The bar task forces would do well to read Barnhizer's suggestions that make up the last 3 pages of the 19 page document.


Beginning

It only takes a few sentences for Barnhizer to detail why meaningful legal reform is so hard.

Some lawyers have told me, “people would kill to have your job.” That is disturbingly close to being accurate. And if that is true then it offers a useful insight that “people would probably do almost anything to keep that job” once they have become part of the incredibly comfortable academic system inhabited by the American law professor.
Barnhizer also nails the typical faculty and administration response to the shrinking applicant pool by calling them out for using "high rhetoric" as a way to protect their own interests.  For instance, if making law graduates"practice ready" was a sincere goal, it would have been seriously pursued decades ago, rather than as a marketing ploy coinciding with the drop in applications.  Barnhizer concedes that the move is "better-late-than-never," but calls them out as being "cynical" or "desperate."  Barnhizer explains how in many ways the "practice ready" ploy is even more cynical than at first glance, as he describes how easy it is to "repackage" existing courses to become seemingly more experiential.  Barnhizer concludes this train of thought by pointing out the cost-prohibitive nature of doing experiential education "right" (due to the high volume of well-trained instructors that this would require), as well as bringing up Lagndell's contributions in removing the experienced practitioner from the classroom so many years ago.

Friction

The "central dynamic" and "generator" of the friction between legal education reform and law schools administration and faculties is

the very high level of individualized self-interest that characterizes the amazing job of the American law professor.
Keep in mind, this is all written by an American law professor, who, by the way, has been involved with legal education since the early 1970's.

Now, it's true that what Barnhizer has been writing isn't necessarily new or a revelation to most of our long-time blog readers.  However, by adding his thumb to the scale, he is contributing to the "death by 1000 cuts" that is hurting the legal education complex even as macro changes are hammering them.  It all adds up: David Segal's New York Times pieces, Third Tier Reality, Inside the Law School Scam, Top-law-schools, Tamanaha's "Wake up" post on Balkinization, and Law School Transparency, to name a few. 

Much like Tamanaha critiqued "progressive" law professors in their failures to challenge the ingrained status quo in law schools that has contributed to the current mess, Barnhizer calls out law professors in general for their failure to analyze their own positions as they would other systems that they regularly criticize:

It seems entirely obvious that if we were critiquing any system other than the one in which we work, law professors (as lawyers) would immediately evaluate that other system based on the effects of the almost inevitable sense of entitlement, privilege, self-interest, bias and resistance to change that affects any system.
There are dozens of examples of professors and deans putting forth such obvious spin pieces that are so at odds with reality that it is embarrassing for not only them but their students and the schools associated with them.  The piece that I linked to, "Law School is Worth the Money," was an op-ed that the Dean of Case Western Reserve University School of Law, Laurence Mitchell, wrote in November of 2012 for the New York Times.  Dean Mitchell was the "Harlan Fiske Stone Scholar" at Columbia law school in the early 1980's, when law school was "worth the money" (Case Western law's total Cost of Attendance for the most recent year: $59,700).

Could an accomplished scholar and product of one of America's finest law schools have written such an obviously biased, self-interested, and unconvincing argument had he not been part of the establishment that he was seeking to defend?  The "high rhetoric" that Dean Mitchell utilized, and Barnhizer has repeatedly criticized, falls short of anything that Dean Mitchell would require of students of his law school.

On second thought, maybe Dean Mitchell is a poor example for one who used "high rhetoric" in the defense of the legal education status quo:

What else will these thousands of students who have been discouraged from attending law school do? Where will they find a more fulfilling career? They’re not all going to be doctors or investment bankers, nor should they.
 or consider more "low rhetoric":

Debt, too, is a problem. The average student at a private law school graduates with $125,000 in debt. But the average lawyer’s annual salary exceeds that number. You’d consider a home mortgage at that ratio to be pretty sweet.
It's tempting to paint all law deans and professors with a broad stroke and consider them to be too self-interested to objectively analyze the problems with modern law school.  However, Barnhizer, Tamanaha, Campos, Henderson, Chen, Merritt, and many others have shown that it's possible, and when it comes down to it, it's not that hard.

If Dean Mitchell was truly "thinking like a lawyer" for five minutes with regards to the law school scam, he would be able to produce an essay, for the New York Times, no less, that would be worth more than 1,000 generic "Law School is Worth the Money" op-eds.

Best Job

Next, Barnhizer puts down some ballpark data on how much the people with the "best job" are paid. 
The traditional law teacher, Barnhizer writes, enjoys a job which has an

average $150,000 salary plus subsidized health benefits, substantial retirement program, paid trips to interesting places, lack of oversight or accountability, several months per year on break, relatively minimal teaching responsibilities, (and) consultancies.
Deans, such as Laurence Mitchell, will make a salary

averaging in (the) $250,000 range plus expensive benefits, travel, conferences, one month break per year, limited to no scholarly production expectation, (and) limited to no teaching required.
Seductive Sinecure

With the previous ballpark ranges in mind, Barnhizer finally reveals the man behind the curtain:

The fact is that the job of the law professor is an incredibly sublime enterprise in which egos are stroked, significance is bestowed by the role, pay is substantial, collateral benefits are diverse and significant, and one can do whatever you want including basically “blowing off” the job once life tenure has been granted. What most people don’t understand is that being a law professor in America is pretty close to being able to live the lifestyle normally associated with being rich.
Barnhizer compares this with a family member teaching philosophy at a university as an adjunct who is paid "roughly 25% of a law professor's salary for carrying a teaching load that is two to three times heavier."  He also notes that adjuncts make up over half of all course offerings in normal universities or colleges, and that it is likely that such a model will transfer over to many law schools as admissions dip even lower.

Connecting the "diminished employability for law teachers" in the current economy with the perks associated with the job which have been previously listed, Barnhizer has, in my opinion, laid out the two primary reasons that legal educators, who should be the strongest advocates for their students and graduates, are resisting the very changes that would benefit the students and graduates.

What if?

Two interesting question that Barnhizer posits are obvious but powerful:
What are the best ways to educate lawyers in the US?
and

(Are) the same methods [] best suited to all individuals who are seeking to become practicing lawyers and whether it makes sense to force all prospective lawyers in all contexts to undergo the exact same preparation . . . ?
Despite all the negativity that we heap on the legal profession, it is still an interesting and diverse work field.  People in the legal field are corporate lawyers, prosecutors, public defenders, personal injury lawyers, judges, and patent lawyers, just to name a few.  Despite that,

law schools in America operate essentially in lockstep.  Curricula are nearly identical . . . faculty backgrounds are very similar . . . texts and other materials are from the same limited group of publishing companies . . .
While Barnhizer does not himself offer any ideas of what a law school system focused on the best way to prepare people to become lawyers, it is an interesting exercise:

What would law school look like at the end of that planning process?
Clearly, it wouldn't involve over two hundred near-identical institutions, charging absurd amounts of tuition, selling tickets for the right to sit for any state's bar.

Competitive Options

Barnhizer doesn't have a traditional conclusion at the end of his paper.  Rather, he lists twenty-three bullet point "competitive options" which law schools outside the "national" and "quasi national or regionally dominant" (AKA the T14) could consider in order to remain competitive.  Note that Barnhizer doesn't leave the elite schools off the hook.  Because of the reduced number of Big Law positions,

A large law school such as Harvard will need to reduce enrollment.
Here are a few of the suggestions that Barnhizer has listed, which schools outside the "Top 14," and perhaps T14 schools as well, would do well to apply.

-Designing local and regional consortia among law schools aimed at reducing costs, combining resources, and focusing on specific needs in that area.
I think Barnhizer has in mind here a state with too many law schools, such as Ohio, merging a few law schools in order to decrease enrollment and offer differing concentrations, rather than having 7 or 8 law schools all doing the same thing.

-Altering Institutional Scale by downsizing student enrollment to reflect the ability to maintain a student enrollment base of substantial quality while recognizing the reality of the saturated lawyer market in the regions most relevant to employment of a specific law school's graduates.
A local law school with an average graduating class of 150, which consistently places 100 students government, small and mid-sized firms, and legal services groups, would decrease 1L enrollment from 175 to 130.  The students who do not transfer or drop out would almost all be able to be placed, if the law school's employment numbers held steady.  This would require considerable restraint by the law school to forgo increasing acceptance rates,.
-Eliminating Esoteric Courses as a means of focusing educational attention more on what lawyers actually do as opposed to what current faculty members want to teach.
Less "Law and" classes, and more law business management and courtroom-oriented classes.
-Reducing Tuition . . .
It speaks for itself.

 Epilogue

At twenty pages and a limited number of footnotes, Barnhizer's piece is very readable.  Like other law school insider critics like LawProf and Tamanaha, he is able to shed even more light on the inner workings and motivations of those he describes as having "the best job in the world."

It's true that Barnhizer did not address the ultimate enabler of the law schools, the federal government, which currently allows anyone to borrow the full cost of attendance for any accredited law school, without regard to their ability to repay or odds of using that education in a professional setting.  However, that isn't necessarily a bad thing, as this has been exhaustively detailed elsewhere, and the aim of the piece is to describe why law schools can't be fixed from within, rather than the best fixes that will come from without.

The strongest aspect of Barnhizer's article is that it can synergize with any other piece on legal education, and I used one example by comparing Dean Mitchell's New York Times op-ed to highlight the absurdities characterized by "high" and "low" rhetoric employed by defenders of the system.  The last three pages, which list over twenty ways that most law schools can remain competitive, can be used as a standard to ferret out the people who are putting forth serious solutions for reducing tuition and improving job prospects of law graduates, and those who are trying to wring out a few more classes worth of federal student loans.

If you found this examination of such "helpful legal scholarship" useful or entertaining, please let me know in the comments, and I will make more of an effort to unearth some gems.  Also, if you know of any legal scholarship that we should be aware of, please note that in the comments.

I want to conclude with a quote that I found powerful from the author, in which he described yet another perk of being a law professor:

Some students even look up to you for your perceived wisdom and intellect although given the breakdown in cultural behaviors and rise of cynicism in our society this admiration seems to be on the wane in a culture without heroes.

27 comments:

  1. Download the paper here:

    http://works.bepress.com/david_barnhizer/88/

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  2. I'll start following this guy. Thanks for the entry. We know that "law professors" would rather die than perform actual work, which is why we see so many lame-ass op-eds filled with outright lies about the job market from academic thieves.

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  3. Antiro, great OP. It would be helpful if you could link to Professor Barnhizer's article or at least give us the citation.

    Here is my 2 cents as to desirable reforms:

    1. States should allow anyone to take the bar after 45 credits of law school. As most of the second and third years of law school do not have required courses, they are superfluous with respect to the bar exam.

    2. Increase program flexibility so that there are sufficient courses at night and on the weekends. It is difficult to think of a more inefficient system than the status quo which requires the law student to remove themselves from the full time employment market for three of their most productive career-building years. Older professionals simply don't have the energy and capacity for productivity that people have in the 20's and early 30's.

    3. Increase the course loads for law professors in order to reduce tuition to a manageable level.

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    1. I kicked ass in law school in my mid-forties. A lack of energy or capacity for productivity wasn't the problem. Finding a fucking job is the problem.

      Delete
  4. Move the JD to the undergraduate level. A JD is graduate education in name only. But you can only take the bar exam after 3-5 years working for a law firm.

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  5. My apologies, I have been working on this over several days and I thought I had it linked.

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  6. Oh, for heaven's sake. Reforming the law school curriculum and slashing sticker prices were appropriate measures ten years ago. No one said boo.

    Today and for the foreseeable future, law school's curriculum and cost are utterly irrelevant. The market is chocking on the glut of lawyers already in the system.

    Reform is coming from without. That is, schools going without students. Law is in for a very rough ride and law schools must close along with firms.

    Anyone now exploring law school should be disqualified from any kind of responsible job on grounds of being delusional.

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  7. Excellent post.

    "His Judgment Cometh Quickly, and that Right Soon."

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  8. I wonder how many law professors actually realize how good they have it. I think a lot of them are so isolated from the real world that they don't realize they are rich.

    I had a professor complain that he had to stop paying his bar licensing fees because of his low pay. I looked up his salary: $145k/yr!!! He had no idea how crazy he sounded complaining about that salary to a bunch of 3Ls with no job prospects.

    I'm sure he thought his pay was low because other profs at my school were making north of $200k. Only in the most insular of professions would someone complain about making $145k to teach a couple classes a week.

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    1. You know what is more shocking: that "a professor complain[ed] that he had to stop paying his bar licensing fees."

      In every company where I have been a GC, every organisation that employed lawyers, the employer paid the bar dues. It says a lot that law schools expected the professor to pay his own bar dues. What it says it that being a lawyer was not part of the job description for being a law professor.

      That is the real disgrace.

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    2. A professor at my school reportedly bitched in class about finding it hard to afford to have a hot tub installed in his bathroom. Cry me a fucking river! Both he and his wife are tenured profe$$ors at that law school. Just yesterday I rewrote my résumé (all three degrees removed, all experience recast as low-level clerical and menial work) in an attempt to get an interview for one or another job paying the minimum wage or not much better. I can't find much sympathy when this fucker has the gall to bitch about some goddamn hot tub.

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    3. Would love to hear a follow up post to this 6:03 AM. How did removing all your degrees pan out for you? I ask because I did kind of the same thing, and now I'm actually sitting pretty well. Got some junky sales job, but have grown it into a real money making engine for me. Cream rises? Hopefully.

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    4. I haven't found a job yet. Glad that things have worked out for you.

      Delete
  9. Thanks for highlighting this article. Sounds like it's worth more than a cursory glance.

    IMHO, the only way for someone to become practice-ready is to practice (preferably with a helpful supervisor). Law schools will never be capable of providing an apprenticeship system that's worth a damn. Better to make law school 2 years.

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    1. Make law school zero years for those of us who can learn perfectly well on our own.

      Delete
  10. "Debt, too, is a problem. The average student at a private law school graduates with $125,000 in debt. But the average lawyer’s annual salary exceeds that number. You’d consider a home mortgage at that ratio to be pretty sweet."

    THIS IS A LIE. THE AVERAGE LAWYER DOES NOT MAKE MORE THAN $125,000 ANNUALLY. A relatively small percentage of lawyers make more than this amount of money. A very significant percentage of lawyers make $0. Further, if you factor in the increasingly common periods of unemployment over a lawyer's career, it significantly drags down the actual annual salary of the good employed years. It is a deceptive and malicious lie to focus on the reported salaries of the high earners and ignore the non-reported low earners and the unemployed. Once again, if we could get some data that resembles reality, the lawyering schools would be largely empty as the truth that the emperor has no clothes would finally be obvious.

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    1. That's so utterly nonsensical I'm sure even other lawdeans cringed in embarrassment when they read it. Since even Mitchell must have known it was nonsense when he wrote it, he was outright lying.

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    2. The average may well be in excess of $125k. Bear in mind that the monstrous salaries at the top skew the average upward. In a group with one person making a million a year and nine people making nothing, the average salary is $100k.

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    3. Technically the quote MAY BE accurate if we define "lawyer" as someone who currently is employed in a job requiring a law license (which is probably where this $125k income for lawyers comes from).

      But there is some very fine print missing, namely that:
      # of law school grads >>>> # of lawyers

      Another way of putting this is that:
      JD-holder income != Lawyer Income
      since may JD-holders NEVER become lawyers in any meaningful sense!

      The assumption and implication of that quote is that everyone who graduates with a JD can become a lawyer if they want. Of course this is not true. But for those that don't get a job as lawyers, well their income isn't counted as lawyer income but as bartender/waitress/sales associate income, etc.

      The full and accurate quote would be:
      "Debt, too, is a problem. The average student at a private law school graduates with $125,000 in debt. For a small percentage that obtain full-time jobs as lawyers, the average lawyer’s annual salary exceeds that number. However most JD holders will not become lawyers and will make much less than that."

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  11. Who the hell thinks law school is broken?? For decades, students have flocked to it and the schools have cranked out thousands and thousands of lawyers. By all accounts, there are a lot of lawyers in America. Some people think far too many. No one apparently thinks we need more lawyers. Not even the law schools say this. (they just conveniently say they could better prepare lawyers for future PRACTICE).

    Law school succeeded. It produced a lot of lawyers. I've done this 20 yrs. believe me, there's plenty of seasoned competition.

    Apparently the price wasn't an issue.

    Law school succeeded beyond all expectations. Stop beating on it. Start reducing its emissions.

    It wouldn't voluntarily go on a diet. Nature is taking its toll. Law school is receiving precisely the reform it needed.

    But it's still to slow. The blogs are still criticizing newly opened law schools. Not celebrating recently closed ones.

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  12. The emeritus prof who wrote the article covers some of the ground.

    But one wonders why he didn't advocate for constructive changes decades ago when they might have borne fruit. He was then one of the privileged tenured ivory tower creatures upon whom he now casts scorn.

    I don't see much of any of his proposals being implemented in any sort of logical fashion. Some might be after the coming implosion of many law schools altogether and the wrenching realities hit even the T14. There are just too damn many lawyers chasing too few jobs that pay anything approaching reasonable levels of money with which to service way too many six-figure non-bankruptcy dischargeable student loan debts.

    The scam has hit the fan and the entrails are flying faster than anyone in academia and the ABA seems to even want to try to comprehend.

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    Replies
    1. Oh I think he pretty well openly admits why he did not loudly advocate - it was a job to kill for.

      Give him credit for honestly now

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  13. Thank you for your work. I find this type of information beneficial and uplifting. Thanks again.

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  14. Here's reform.

    Keep HYS. Then have a limit of 1 school per state. Allow NY, Cal, and Texas to have 2 (because of their large populations and sizes). Place limits on enrollment and have the state bars regulate the number of entering attorneys through bar passage levels.

    Do that and then we can about experiential learning, clinics, field trips to nearby courts, dumping readings about fee tail and ways of making Mrs Palsgraf into a smoking hot, must-do, temptress.

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    Replies
    1. Also impose meaningful criteria for admissions. It's absurd that the ABA requires the LSAT but not any particular LSAT score. Someone with a 120 is admissible to ABA-accredited law schools. Why? Because the ABA is a big driver of the law-school scam. It wants to maximize enrollment in order to create lots of cushy sinecures for profe$$ors and admini$trators and other assorted hangers-on.

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  15. The bullshit course that I took was International Human Rights. I knew it was bullshit when I signed up for it, and took "useful" courses like Tax, Business Law, and Real Estate. Looking back, whether I took the class or not I was still paying the tenured bastard teaching it. If you get rid of all of the useless BS and can the profs, think about all the savings. If you can the 3rd year and turn year 2 into large lecture courses on real-world law, you could get tuition down to about 10,000 a year. Relatively reasonable.

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  16. http://taxprof.typepad.com/taxprof_blog/2014/01/menkel-meadow.html

    The next article I will be doing. Sometime next week.

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