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.