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A left wing professor is something to be

[ 26 ] October 11, 2011 |

Any critique of the set of powerful social institutions that work together to create contemporary American legal education must be as it were political all the way down. (Few things annoy me as much as the conceit trafficked in by “reasonable” centrist types that there are obvious non-ideological solutions to serious social problems, which invariably involve adopting the reasonable centrist’s obviously reasonable views. You can find this conceit in pretty much any Tom Friedman NYT column, and in many a law school classroom, textbook, and law review article that discusses “policy,” so-called).

It’s true that at present legal education in America is so screwed up that it’s possible and indeed necessary to critique it from literally any coherent ideological position. Libertarians should despise the market distortions produced by its cartel structure and its phony employment stats, cultural conservatives ought to be appalled by the nihilistic tendencies of its standard jurisprudence, i.e., law somehow creates moral obligations although nobody can say why, mild Obama-style liberals should be discomfited by how terribly expensive the whole thing has gotten, and actual leftists, assuming such people even exist any more within the American legal academy in practice rather than in “theory,” ought to hate just about everything about the entire enterprise, given that at present it’s a practically perfect machine for replicating and reinforcing class privilege in its most invidious forms.

I started looking into this business in a systematic way about a year ago, and over that span I’ve developed sympathy for all these critiques: or perhaps more accurately potential critiques, since in many ways the most striking feature of the legal academy at present is the absence of genuine critical perspectives of any kind. My sense — and I sincerely hope I’m mistaken — is that the whole thing has gotten so comfortably numb that it’s almost impossible to get people to pay any attention to the extent to which in legal academia is in a state that’s summarized with a certain piquant cogency by this gentleman’s observation.

Indeed.

Anyway, I find this lack of engagement most aggravating in regard to those of my colleagues who consider themselves in any way liberal or even left. (I have a lot more respect for the Ayn Rand types: at least they don’t pretend to care). If the continuing indifference of law school administrations and faculties to the increasingly scandalous disjunction between the cost and value of legal education demonstrates anything, I suppose, its that class interest trumps putative ideological commitment just about every time. This isn’t exactly something that qualifies as an original or interesting observation, but for some reason I still find the fact itself annoying as heck.

I suppose I’d like some sort of acknowledgement on the part of these sorts of people — people who “care” about social injustice — that every time we vote to buy ourselves more goodies we’re voting to raise tuition on that ever-growing proportion of our students who can’t really afford to pay what we’re charging them for what we’re selling them. Maybe, just maybe, we should stop doing that — or at least we should, under present circumstances, figure out a way to buy ourselves fun new toys (usually described as “improving the quality of what is already the best legal education available anywhere in the world”) without charging more than we already charge for our unspeakably valuable services.

Really, why shouldn’t every law school in the country at a minimum freeze tuition right now? (Actually law school tuition should be cut drastically but I’m trying to be realistic here). Can we at least discuss that option before hiring six more people and opening two new centers, and building a new this and that chock full of environmentally conscious “green” design features? And before you get to that, yes I realize law school faculties, and even law school deans, don’t set tuition themselves in some direct non-problematic fashion. There are a bunch of central administrators to deal with as well. And a serious collective action problem. And the extent to which the cost of education is a Veblen good. And lots of other problems too. Guess what — politics is hard! And in the end this is all about politics, not about the centrist’s complacent vision of “reasonable people pursuing reasonable purposes reasonably.”

c/p at ITLSS

Comments (26)

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  1. Malaclypse says:

    Really, why shouldn’t every law school in the country at a minimum freeze tuition right now? (Actually law school tuition should be cut drastically but I’m trying to be realistic here).

    How is this different from, say, Jonah Goldberg asking why we can’t just, at a minimum, freeze federal spending right now?

    • Amanda in the South Bay says:

      I have no idea what you’re getting at with respect to Goldberg, so how is it a bad thing? Its too early for my snark detector to be working.

      • Amanda in the South Bay says:

        I mean, how exactly is it bad that law school tuitions be drastially reduced? Law school profs aren’t exactly the people I’m most worried about in this economic climate.

    • ajay says:

      It’s different because
      a) federal spending has to rise, secularly, just to keep up with the growth of population
      b) federal spending has to rise in nominal terms just to keep up with the rate of inflation
      c) federal spending has to rise during a downturn because more people are unemployed and/or poor and needing to draw benefits

      So if you argue for a freeze in spending, you aren’t arguing “things are good enough now, they don’t urgently need improving”; you are arguing “things are too good now, they need cutting”.

      There is no obvious reason for the fees at a law school to rise because the population has grown. If a larger student body requires more spending, well, it will also be producing more fees. There is no obvious reason for fees to rise during a downturn. And inflation is pretty low.

    • Paul Campos says:

      Mal:

      Well for starters because the two situations have nothing in common with each other besides the fact that both involve budgeting.

      • firefall says:

        Isn’t Mal asking, how is this any more reasonable or actionable than Goldberg’s demented bleat, rather than suggesting a direct connection?

        • BradP says:

          Why it is more reasonable:

          1. Goldberg is suggesting a forced economy-wide policy, while Campos seems to be suggesting that universities come together of their own volition to correct a problem inherent to their market/field. Briefly, Paul’s prescription would be free and contained to stakeholders.

          2. There seems to me to be very little controversy surrounding the question: are prices finding a legitimate clearing level. It would be both good business and good ethics to make sure that the service or training you provide is not dramatically overpriced.

        • Malaclypse says:

          Isn’t Mal asking, how is this any more reasonable or actionable than Goldberg’s demented bleat, rather than suggesting a direct connection?

          That is what I was asking, yes.

    • Ben says:

      Because that spending is used to buy shit for a population that’s growing every year. More people needs we need more shit means we spend more money. Freezing spending = less shit per person.

      Whereas, from glancing over tuition figures collected here, it seems that it’s typical of the last few years for a law school that has any decent shot at placing a majority of its graduates in non-mediocre legal careers to increase its tuition over the rate of inflation. By at least double-digit percentages. Every year.

      The University of Alabama Law School doubled their tuition from ’05 to ’10. It did not double the quality of its education, I do not think. Whereas doubling appropriations for food stamps or FBI field agents or whathaveyou will actually have an effect on the delivery of a service.

  2. Hogan says:

    As many of us have long said, if you think universities are left-wing institutions, try starting a union at one.

  3. Anonymous says:

    Thar case you make against law education can probably be made against higher education as a whole. Law education is just a more extreme example

    • Paul Campos says:

      Yes it can. And by some very mysterious process this fact is transformed by many legal academics into a justification for the status quo.

      • Anonymous says:

        It is very difficult to stomach such justifications from those that should know better. This is very much like the frustration with the anti obesity crusaders that I feel you rightly castigate. You expect a conservative or a libertarian to fall into the “weight is a matter of personal responsibility” camp. You tear your hair out when those from the left and liberals buy into such an argument (and all the questionable science that “supports” said argument).
        Okay, sorry for taking this off topic.

  4. RhZ says:

    Paul:

    From what I read in the NYT earlier this year, applications were down something like 10-15% in the 2010-2011 recruitment season.

    Doesn’t this create some pressure on schools in regards to tuition and related costs? Are admissions departments finding they are chasing a shrinking pool of suitable applicants?

    • Paul Campos says:

      It’s true that applicants were down about 10% last year over the (near record high) totals of the year before. This is causing a little pressure on the lowest-ranked schools, a few of which have shrunk their incoming class sizes by around 10% to avoid cutting their admission standards (admission standards are part of a school’s ranking, so cutting them has some immediate direct costs to schools).

      It will be interesting to see what effect the current critique going on in high profile places like the NYT (which has written three stories on this topic this year) as well as in the blogosphehre will have on the applicant pool. Last year’s downturn in applicants took place mostly before the critique had gone as mainstream as it has.

      • RhZ says:

        Ok, interesting, thanks for the info. I suspect that the record high was a short-term result of the financial crisis. Froomkin noted some interesting data a couple years ago that seemed to me to be a bunch of people, suddenly realizing the job market for undergrads had dried up, running for safety.

        Whereas now I think everyone is just broke, and perceptions have changed a lot about this downturn. Therefore I suspect this shrinkage in applications may persist or even worsen somewhat.

  5. norbizness says:

    At UT, I paid a very reasonable tuition in the mid-to-late 90s. Then we began “tuition deregulation,” i.e. the state share of financing higher education went in the toilet. My friend, currently a 3L there, is paying rates I would have associated with a private school (or an out-of-state attendee). If they had told me I would be going $100-150K in debt instead of $25K in debt ($40K, inflation-adjusted) when I had no interest in private practice, I might have passed.

      • norbizness says:

        Texas, although maybe it’s happened at Tennessee as well. Whatever our re-lily-whitening faults, at least we (1) denied Dubya admission and (2) don’t employ Glenn Reynolds.

        Our reactionary cranks (like Lino Graglia) are actually old enough to have lived through the turmoil of Lochner v. New York, and instead of blogging send angry letters to the Prussian consulate in Siam by aeromail.

  6. superking says:

    Here are a couple other real problems with the legal education set up:

    1. The average salary of an law professor is much higher than the average salary of any other discipline. For example, google average salary for law prof., and you get $147,000. For a civil engineering prof? $110,000. That’s one year of tuition for a law student at a private school.

    Further, I have heard that all together, law professors make about three times what non-law professors make.

    How about we start reducing salaries for law professors? I am sure there are arguments on the other side, but as long as law students aren’t really getting anything for their money anyway . . .

    2. Legal scholarship is a fucking joke and anyone who says otherwise is dirty liar. Law is the only “academic discipline” where peer review is unheard of, statistics are shunned, and empiricism is despised.

    This is, of course, a result of actual legal practice, which, in relying on scholasticism and arguments from authority, is medieval at best.

    Whatever, I don’t see any reason to think legal education is going to change and there is certainly no reason to expect the legal system to improve.

    • Anonymous says:

      Peer review and empiricism aren’t any cure all when funding sources dictate what research is being performed.

      • superking says:

        I think that is pretty irrelevant when there is no such thing as actual “research” in legal scholarship. It’s not like research would suddenly pop up if these shadowy funders suddenly disappeared. Legal scholarship more than anything is about the whims and opinions of the individual professor. You can, within the accepted limits of legal scholarship, argue for literally anything. All you need is a cite to back you up, no matter how untrue, discredited, or fantastical the cite. If you can drop a footnote, you’re good.

    • L2P says:

      “Legal scholarship is a fucking joke and anyone who says otherwise is dirty liar. Law is the only “academic discipline” where peer review is unheard of, statistics are shunned, and empiricism is despised. ”

      I’m not going to defend law schools, or the high salaries law profs get, but this is a little unfair.

      Legal scholarship is largely empirical, but the research is done on the law. That’s the realm of relevant facts for legal research. If you saw a law review article that DIDN’T cite to the law or some secondary sources, it wouldn’t get published.

      There’s significant peer review. I’ve done it. Outside of the Ivy League toadyism that you get in LITERALLY EVERY discipline, it’s not much different.

      And statistics? Maybe not as common as other disciplines, but there’s plenty of statistical studies in legal research. PLENTY. What do you think voting rights cases are made of? Or most employment law?

      IMO, it’s a fair critique that law schools overcharge and produce unfair expectations of riches and awesomeness in potential students, and probably on the whole produce too many lawyers. But the professors are certainly skilled, smart, and do good work (although a little free from the restraints of reality, IMHO). IMO it’s wrong to suggest otherwise.

  7. Sebastian Dangerfield says:

    There is some left critique of the legal academy, Duncan Kennedy’s Law School As Training For Hierarchy comes to mind, although IIRC, it’s not as heavy on the economics of law school as it is on the quasi-Foucauldian analysis of how it shapes its consumers to the authoritarian way of thinking.

    The Realists, I think, did some good hatchet work as well, but that was long ago and far away.

  8. BradP says:

    So if you argue for a freeze in spending, you aren’t arguing “things are good enough now, they don’t urgently need improving”; you are arguing “things are too good now, they need cutting”.

    Not sure that’s how the argument usually goes.

  9. ajay says:

    No, you’re right that that’s not how it’s normally expressed, but it is in effect what the argument implies.

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