Two Great Tastes That Taste Great Together: Student Loan Debt and the Debate Over the Value of Scholarship

So many possible captions for this image. I will allow you to choose your own.

Everyone knows that the level of debt imposed on law school graduates is unconscionable.  (They might not use that exact term, but I will.)  Everyone also knows that there has been considerable, sustained debate over the value of the scholarship produced by law faculties.   (See related post at https://susannahpollvogt.wordpress.com/2010/09/08/law-schools-law-professors-scholarship-andversus-teaching/.)

 

Bring these two issues together, and you have what could politely be referred to as a firestorm.

Recently, Prof. Richard Neumann at Hofstra University did just this.  It’s not exactly what he intended to do—indeed, he was addressing a related but distinct topic at the time—but it was what many took away from his statements.  (See  http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202490888822&src=EMC-Email&et=editorial&bu=National%20Law%20Journal&pt=NLJ.com-%20Daily%20Headlines&cn=20110421nlj&kw=Legal%20scholarship%20carries%20a%20high%20price%20tag&slreturn=1&hbxlogin=1.)

In short, what many people heard Prof. Neumann saying was this:  that law students, who incur crushing amounts of student loan debt in pursuit of their J.D., are not even putting this money directly toward their education, but are instead unwittingly subsidizing expensive frolics in faculty scholarship—scholarship that has little if any value to students themselves.

What Prof. Neumann was actually saying was much more complex and much less intentionally provocative (and the above summary is meant to be provocative).  What he was actually saying was this:

NOTE: The quotations in the following passages are taken from an e-mail that Prof. Neumann shared with the Legal Writing Institute Discussion List following the uproar over his comments.

(1)  All full-time teachers at law schools should have job security.  The point of tenure and other forms of job security is to protect and nurture innovation, which leads to better teaching.  Thus, according to Neumann, “[a] school is . . . better off it ALL full-time teachers have job security or are eligible for it.”

(Accordingly, Prof. Neumann was not part of the small chorus calling for the abolition of tenure at American law schools.  This has been a topic of much attention and debate recently, in particular in connection with a proposal to the ABA that the availability of tenure not be a consideration in law school accreditation.  See http://taxprof.typepad.com/taxprof_blog/2011/03/the-coming.html)

(2) “[T]he most important thing we do is teach.”  It is in connection with this contention that Prof. Neumann shared some statistics that got people talking.   He shared data indicating that (1) producing a law review article is very costly (largely in terms of the faculty member’s salary) and (2) in law school as opposed to medical schools, this cost is largely supported by student tuition.  (In the medical school model, research is funded by government and industry grants, for which faculty have to compete on a presumably meritocratic basis.)

J.D.

Prof. Neumann did not contest that legal scholarship has value, but rather questioned whether legal scholarship should be required to demonstrate its value to students since it was being written on their backs, so to speak.

And indeed, because we are a profession based on standards, it seems odd not to have a consensus standard for assessing the value of scholarship, thereby encouraging the production of better scholarship, and discouraging the production of poor scholarship.

(3) “[T]he culture of legal education makes it very difficult to change the way faculty resources are allocated.  Every school is chasing the same model, and students are being short-changed because of an oppressive conformism among faculties.”

***

This last point is very interesting to me, because one would think with the security of tenure, law professors would be innovative and challenging rather than subscribing to “oppressive conformism.”  In fact, this is one of the foundational assumptions of Prof. Neumann’s advocacy of extending security of employment to all full-time faculty members.

But there are other forces at work to shape and perhaps constrain the conversations among law faculty.  For one, law school faculties are extremely hierarchical, as any one of the many, many full-time law professors who do not enjoy security of employment can tell you.  Speech likely does not flow freely in a community where only some members enjoy protection in the expression of their ideas.

I will also venture that it has to do with the close relationship between the legal profession and social elitism.  Elitism functions by conserving of standards, not by challenging them.  Whether we admit it or not, many if not most of us attend law school to attain elite status, and are structurally bound by the mandate of self-preservation.

Finally, this essential social conservatism is paralleled in the intellectual structure of law, which begins and ends with reference to precedent.

And that really should be the rallying cry coming out of Prof. Neumann’s observations—that we should be more critical and questioning of the structure and incentives of legal education.  We should demonstrate how our scholarship adds value to the intellectual life of our institutions, not just claim it as an unassailable truth.  We should carefully consider exactly what we are providing students in a law school education.

There is some movement afoot in each of these areas, but we must be careful to recognize the crushing momentum of conformity and tradition, and be certain to create an environment in which innovation can grab hold.

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4 responses to “Two Great Tastes That Taste Great Together: Student Loan Debt and the Debate Over the Value of Scholarship

  1. This post is brilliant on multiple levels, particularly on the point of conformism and why it’s such an entrenched tradition in law. I’d also never made the connection between the high cost of attending law school and what it’s paying for — faculty scholarship that is of little use to most of us (and I don’t mean just students — it’s useless to practitioners as well).

    Which isn’t to suggest that legal scholarship doesn’t have something of value to contribute; but it is also a reality that for most of us, a legal education is training in monkey work — the practical day-to-day application of law to situational realities — and very few of us get to do the kind of “innovative” legal work that is on the avant-garde of developing areas of the law.

    This was brought home to me starkly recently when one of my professors assigned a very open-ended exam that required me to actually think in an innovative way about undefined issues in the law. I was stumped, and yet, I’ve done very well in conventional law school courses.

    There is an irony here — our legal training runs directly contrary to what we’re supposedly supporting: professorial scholarship. It is also contrary to what the conceit of lawyers would lead them to believe, that their profession is somehow “intellectual.”

    I’m going to be a good practitioner of the law. I am not going to be a great scholar of the law. And frankly, I’m not sorry. The law is not the path for innovative social change anyway, and most legal scholarship is dross – not useful to those operating outside the legal world, and rarely of much significance to those inside it. We rely on precedent for more than the reasons you listed. Our livelihood depends on conservative choices. Losing, and therefore risk-taking, is expensive. Even if some law professor somewhere dreams up an innovative legal strategy, I might not want to stake my client’s money on it.

    I think legal scholarship is mostly either simply a carrying on of (not very historic) tradition, and/or a salve for the egos of those who inhabit the upper echelons of the legal world — more the latter, because the legal profession used not to be so prestigious not very long ago. It used to admit to being what it is — monkey work of varying degrees of skill. In reality, though, higher skill levels have very little relevance in practice. Those who are at the top of their classes AND those who merely graduate, are quite competent, and most flashes of brilliance are irrelevant in the bigger scheme of things.

    • susannahpollvogt

      Thanks so much for your comment. I had not really thought about conformity/confromism as such in legal academia until reading Prof. Neumann’s comments. It is obviously there, and obviously a very different culture than that found in other disciplines in which I have studied, but I did not attach that particular term to the phenomenon. I think the term is accurate and I think the phenomenon bears further investigation.

      Two thoughts on your comment. First, it is very interesting to me that the issue of the value of scholarship is so divisive and volatile. Generally, when this issue comes up among law professors (and it does with some regularity), a certain segment angrily decries the waste of resources and “uselessness” of legal scholarship. Another segment then accuses the detractors of being anti-intellectual. And often the discussion does not advance a great deal beyond these polarized positions—and this is the point in which I am interested. Why is the debate over scholarship so volatile; can we look at the function of scholarship more dispassionately and in a more principled manner? How would we structure a more productive dialogue on the issue?

      Second, I don’t think the opposite of intellectual work is “monkey work.” 🙂 I might not be 100% clear on what you mean by that term. But I will say that I often found the practice of law—with certain people, under certain circumstances, in certain settings—to be rewarding on many levels, including intellectually. Not “intellectually” in terms of unfettered academic musing, but in terms of bringing my intellect to bear to solve an intricate problem.

      It is likely true, however, that the majority of legal work is not “important” socially or politically—much of civil practice greases the wheels of commerce—but one sure route to important work is to take on pro bono causes. If I were to advise my students on this, I would probably tell them that the further you get away from the money, the closer you will get to a meaningful career.

      I suppose the note I want to leave this on is that you may find that actually practicing as a lawyer—again, depending on the setting—may give you a much more satisfying experience of the law than studying it.

  2. True, and good points. Part of the polarization, as far as at least I am concerned, comes from one fact about me personally — when I’m not being nuanced and analytical, I can be very black and white in my thinking.

    Doubtless, your more measured approach is closer to the truth.

    Monkey work — I think the smarter you get, the more mechanical the practice of law can be, and with more experience, you simply learn more tricks, and that can give the illusion of intellectual inspiration. I have found my legal work (as a paralegal and as a summer associate) to be intellectually stimulating in the sense that I AM required to use my brain, but I have a vague sense that where I find it challenging, it’s because I’m simply not practiced enough or smart enough, and over time, as I get better at it and adapt my intellect to it, it’ll get boring.

    Maybe not, though. I hope not.

    And you are absolutely correct about getting away from the money to find rewarding work. I’m still struggling with that particular issue in my choice of work, as you know.

    I’m eagerly following your thoughts on this, so I’m hoping more will be forthcoming. What legal education / legal practice means in the larger scheme of things and its meaningfulness as a vocation (not just a career choice) are topics near and dear to my heart.

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