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Gated communitarians

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One thing that has been driven home to me with extreme prejudice in the course of examining the current economic structure of legal education is that law schools are run primarily for the benefit of their tenure-track faculties. This observation, which will strike almost all law students outside the 1L bubble — let us not even speak of our graduates — as blindingly obvious, will, from my experience, be treated as a horrible heresy by large portions of those very faculties, for reasons that are equally obvious. (I will not comment here on the extent to which these observations are applicable to higher education in general, other than to note that law schools are hardly unique in this respect).

Yet — again in my inevitably limited experience — whenever law school faculties discuss anything that involves their interests, it would be an understatement to say those interests trump all other possible considerations, and most particularly considerations of whether what we’re proposing to do is actually in the interest of our students and graduates.

Last week the CU faculty met to vote on whether to reauthorize and greatly expand our LLM program, which was started three years ago on an explicitly experimental basis. In a cursory memo, the administration laid out its justification for expanding the program from its current average of six students per year to a projected 26 per year by 2014. The memo featured no data regarding whether our program or similar programs are likely to be worth it for people who enroll. Instead it would be fair to say that its argument consisted of pointing out that, at least with appropriately aggressive promotion on the part of the school, there will be a “market” for enrolling 26 LLM students per year, who will collectively generate nearly a million dollars in annual revenue for the school.

When the motion was presented for discussion, I laid out a series of concerns regarding the potential this expanded program would have to exploit the desperation of current law students and recent graduates — the groups which the memo revealed would be primary targets for our greatly enhanced marketing efforts — given the dismal employment market for new law graduates in general.

Naturally I didn’t think there was any real possibility of blocking the expansion, let alone the re-authorization, of the program, given the overwhelming short-term economic incentives at work. What I did expect, in retrospect naively, is that there would be some discussion of the merits of the proposal. At a minimum, I expected something in the form of an argument from the supporters of the proposal, as to why we ought to aggressively market $36,000 LLMs to current law students, in effect representing to them that it would be, under present circumstances, a good idea for them to extend law school from three years to four, and to spend another $55,000 or so on their legal educations.

What happened was that, after I had voiced my concerns and extracted some predictably awkward revelations regarding exactly where the LLM tuition money was actually going, nobody said anything. There was literally no discussion of the proposal, and after about thirty seconds of even more awkward silence, the motion passed by a vote of approximately 30 to 1.

In retrospect, it’s easy enough to see why no one was willing to speak in favor of (let alone to oppose) the proposal. After all the most plausible, and indeed perhaps the only, justification for the decision would, I suppose, have to be an appeal to the crudest form of economic self interest, i.e., “if people are willing to give us a million dollars per year for quite possibly useless LLM degrees who are we to say no?” In addition, if we actually engaged in some sort of discussion regarding the potential justification of the LLM program from the perspective of the interests of our students who knows where such a discussion might lead?

Given that law school faculties are full of gated communitarians, who are to put it mildly not interested in exploring whether their institutional behavior can be reconciled in any way with their putative political commitments, it shouldn’t have surprised me that no discussion at all took place.

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