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.)
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.