Law School Innovation

Four provocative suggestions for law school reform from Brian Leiter

I am not sure what prompted this new post at Brian Leiter's Law School Reports, titled "Four Changes to the Status Quo in Legal Education That Might Be Worth Something," but I think it is a post that is surely worth reading.  Here are highlights of Leiter's proposals:

1.  Higher education in America includes research universities and teaching colleges (the latter placing less emphasis on research); law schools need the same division of labor, so that we have some law schools that are Harvard and Chicago, and some law schools that are Oberlin and Reed.  How to bring it about is the really hard part, but changes to ABA accreditation rules could surely help....

2.  Judge Posner suggested some time ago that law school be shortened to two years, with a third year optional depending on a student's career goals. Those who want to be tax lawyers could do what is, in effect, the LLM in tax in the third year; those who want to be legal scholars could devote the third year either to cultivating scholarly skills or teaching skills, depending on their academic goals (per #1); those who haven't secured permanent employment after two years could use the third (at some appropriately reduced cost) in externships designed to enhance marketability, with some supervision from academic or clinical faculty; and so on....

3.  Cut the number of law reviews by 75%, and turn the remaining ones over to faculty supervision, with students still working on them, but no longer vested with editorial control....

4.  Finally, and no doubt most controversially, law schools need real tenure standards and real post-tenure review. Real tenure standards means law schools should deny tenure two or three times as often as they presently do, and on the basis of a genuine qualitative review of scholarship.  Post-tenure review -- say, once every ten years -- should operate within the current tenure framework, which means termination only for good cause....

Thoughts on this list?  Other suggestions or modifications of justified law school reforms?

Posted by DAB

"The New Realities of the Legal Academy"

The title of this post is the title of this intriguing new paper by Larry Solum available via SSRN.  Here is the abstract:

This short paper is the Foreword to Brannon P. Denning, Marcia L. McCormick, and Jeffrey M. Lipshaw, Becoming a Law Professor: A Candidate's Guide, American Bar Association, Forthcoming.

One of the great virtues of Denning, McCormick and Lipshaw’s guide is that it reflects the changing nature and new realities of the legal academy.  Not so many years ago, entry into the elite legal academy was mostly a function of two things -- credentials and connections. The ideal candidate graduated near the top of the class at a top-five law school, held an important editorial position on law review, clerked for a Supreme Court Justice, and practiced for a few years at an elite firm or government agency in New York or Washington.  Credentials like these almost guaranteed a job at a very respectable law school, but the very best jobs went to those with connections -- the few who were held in high esteem by the elite network of very successful legal academics and their friends in the bar and on the bench. The not-so-elite legal academy operated by a similar set of rules.  Regional law schools were populated by a mix of graduates from elite schools and the top graduates of local schools, clerks of respected local judges, and alumni of elite law firms in the neighborhood.  In what we now call the "bad old days," it was very difficult indeed for someone to become a law professor without glowing credentials and the right connections.

But times have changed.  When the Association of American Law Schools created the annual Faculty Recruitment Conference (or FRC) and the associated Faculty Appointments Register (or FAR), the landscape of the legal academy was forever changed.  The change was slow in coming.  For many years, candidates were selected for interviews at the FRC on the basis of the same old credentials and connections, but at some point (many would say the early 1980s), the rules of the game began to change.  In baseball, a similar change is associated with Billy Beane, the manager of the Oakland Athletics, who defied conventional wisdom and built winning teams despite severe financial constraints by relying on statistically reliable predictors of success.  The corresponding insight in the legal academy (developed by hiring committees at several law schools) was that the best predictor of success as a legal scholar was a record of publication.  It turns out that law school grades, law review offices, and clerkships are at best very rough indicators of scholarly success.  But those who successfully publish high quality legal scholarship are likely to continue to do so.

This foreword explores the implications of the new realities of the legal academy for candidates seeking to become law professors.

Posted by DAB

Platoon teaching

The first casualty of law school teaching is cooperation.

Well, it only seems that way, and perhaps only on aggressively uncollegial law faculties.  At MoneyLaw, I've posted an item on the willingness of senior professors to share plum teaching assignments with their junior colleagues within a platoon system.  I believe that platooning affects law school innovation in two ways:

First, platooning rotates different faculty members into high-visibility portions of the law school curriculum.  Fresh blood, one would hope, means fresh ideas.  At a minimum, platooning defeats the ability of an entrenched veteran to rely on the same class notes year in and year out, without even the pretense of updating.

Second, the willingness of a senior faculty member to yield a teaching assignment in favor of a junior colleague who needs to develop her or his research agenda and teaching repertoire speaks volumes of the senior faculty member's collegial propensities.   If uncollegial behavior becomes ossified as the faculty norm, the law school in question is highly unlikely to innovate.

Let me make this point explicitly: Entry-level and untenured lateral faculty candidates, you are hereby put on notice.  In assessing whether to accept a tenure-track offer, ask the other untenured faculty members whether they've encountered difficulty in getting access to certain subjects.

Platooning is a very real indicator of collegiality.  It has the additional virtue of being virtually impossible to fake.  It's one thing to represent how collegial your law school is.  Actually being collegial, especially if collegiality demands yielding preferred teaching assignments, takes much more work.  As I said in my original <em>MoneyLaw</em> post: "If you want to create a culture of collegiality, start by hiring -- and being -- a faculty of platoon players."

-- Jim Chen

Tenure Process v. Innovation

As I hope I have made clear, I'm all for innovation in law teaching, whether it be restructuring the process or introducing new ideas into individual classes.  However, I fear that our tenure system often works against innovation.  I received tenure last year, and have talked to professors at other schools at the same point in their careers who have shared my observations.  What I say below does not necessarily relate to my own experience; it is a general observation of the process.

Usually, innovation comes from younger people and those new to a given organization of any type.  The reasons for this would include the facts that those people most recently were exposed to ideas from outside the system, and have not settled into efficient routines which mitigate against change.  In law schools, those new people tend to be untenured.  This is a very general statement, of course — many great new ideas come from us old-timers, too.

One of the keys to receiving tenure, however, is not making any enemies.  Sadly, senior faculty sometimes feel threatened by innovation, and resent change even if it does not affect them — sometimes because it is an implicit challenge to the way they do things.  Untenured faculty understand this and, not wanting to make enemies, avoid innovation.   In the process they develop those comfortable efficiencies which in turn hinder innovation once they earn more freedom.

Tenure-track profs often receive the advice to "not make waves" during the period before tenure, and properly understand this to mean that they should avoid things that might alienate older colleagues — and many of those "things" would qualify as innovations.

Probably one way to address this would be to treat innovation as a distinct factor to be evaluated in the course of the tenure process.  We should encourage those best able to create positive change by counting that as a plus factor at tenure time.  That would (at least in part) address a problem we would probably rather not talk about — the protection of the status quo by senior faculty.

-- Mark Osler