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Gated communitarians

[ 50 ] October 25, 2012 |

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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  1. Dirk Gently says:

    Since we’re talking about “gated communitarianism” and how it extends beyond law schools, and since you mentioned CU specifically (but in a way that makes it clear that the logic is by no means unique to that institution), I wanted to just add a couple of things about the “value” of higher education that underscores your point:

    1. I believe strongly in the mission of a liberal arts education, and it’s still true that in the long run even getting a B.A. in English or Philosophy is better than having a high school diploma. But the extent to which the professoriate clings to the “value” of a liberal arts education–without making the least effort to connect it to anything else that a student is likely to do other than vote and win arguments in coffee shops (i.e. “be a citizen”)–strikes me as just as self-serving as what your law faculty is doing.

    2. I got a call the other day from the CU alumni association begging me for money because, I am told, this “public” university is now down to about 5% state funding. Just as I was considering making a donation, however, the cheerful young lady at the other end of the line started waxing poetic about the “state of the art” and “innovative” freshman cafeteria, and mentioned approval for the new rec center with a Ralphie-shaped swimming pool.

    And I’m wondering why I should feel sorry for the students (and their parents) who have helped create these perverse market forces and skyrocketing tuition rates because they aren’t actually looking for an education, they are looking to receive a diploma at the end of their extended stay at the finest resort they could get in to. (And having taught more than a few of them, that of course really is the mindset of many.)

    I’m beginning to think that “fighting the good fight” in combatting the influx of administrative overhead, exploitative recruitment practices, and general drift away from liberal education and toward glorified trade schools, even if those battles are won, will not be nearly enough to save higher ed.

    • rea says:

      I believe strongly in the mission of a liberal arts education, and it’s still true that in the long run even getting a B.A. in English or Philosophy is better than having a high school diploma. But the extent to which the professoriate clings to the “value” of a liberal arts education–without making the least effort to connect it to anything else that a student is likely to do other than vote and win arguments in coffee shops (i.e. “be a citizen”)–strikes me as just as self-serving as what your law faculty is doing.

      I’d strongly argue that education–particularly liberal arts education and even legal education–is a good thing regardless of economics. A world with free college and a guaranteed minimum income would be a great place, and in that world, I would encourage people to get as much education as they can handle. Unfortunately, we don’t live in that world–darn few people are in a position to live their lives “regardless of economics.” As vocational training, liaberal arts and law school right now don’t justify their expense to the student.

      • Brandon C. says:

        I couldn’t agree with you more Dirk. I was disgusted with the attitudes of the majority of my fellow students while I was in school (I graduted a year ago) and yet at the same time would have done it all over again if given the chance. In just four years I learned more, travelled more, and grew more than the previous 18 of my life. It was painful to see the Classics and the rest of the liberal arts slowly dying at my school while they built new dorms and a brand new belltower.

        • Dirk Gently says:

          Indeed, the related point: “We can’t afford Classics” while they sign checks for gold leaf covered “tech” buildings and multi-million dollar salaries for football coaches.

    • Linnaeus says:

      But the extent to which the professoriate clings to the “value” of a liberal arts education–without making the least effort to connect it to anything else that a student is likely to do other than vote and win arguments in coffee shops (i.e. “be a citizen”)–strikes me as just as self-serving as what your law faculty is doing.

      A fair point, but how do you change that? Or can that not be changed?

      • Dan Nexon says:

        What’s wrong with winning arguments in coffee shops?

      • Dirk Gently says:

        Just one example: CU just shut down their journalism school and is transitioning to a “School of Information”. Done the “right” way, this can be a place where theory and practice, and critical/ethical analysis and vocational education can co-exist. Hell, REQUIRE the students doing PR to take some critical/cultural classes, and REQUIRE anyone with an English degree to learn about the political economy of PR, publishing, etc.

        As it is, students in these seemingly disparate majors can completely compartmentalize, whereby the “business” students go out and try to be the next Galtian overlords, and the humanities students try to become professors–both of which are unsustainable in different ways.

  2. Alan Tomlinson says:

    Professor Campos, you are an affirmative argument for tenure. Thank you for looking out for others.

    SIncerely,

    Alan Tomlinson

  3. mpowell says:

    To be honest, it is my impression that law school is pretty unique in this regard. Yes, certainly though out academia the tenure track faculty are looking out for themselves. But the big difference, in my opinion, is the pay scale. Tenure track faculty in most fields probably average something around 80K-130K in salary. Looking at average salaries at some tier 1 programs, it seems that law professors might make 2 or 3 times as much.

    If you consider the increase in cost of law school over the past 20-30 years, a substantial portion of that increase has gone to the faculty. In the rest of academia, real incomes have been more or less flat. The increased costs have gone to administrator salaries, hiring more administrators and student amenities. In that context, I am pretty unwilling to criticize faculty for the increased costs of higher education. But in the legal field, faculty have directly benefited. So they are to blame, especially when schools are used dishonest and potentially illegal promotional techniques.

    • saucyturtles says:

      Tenure track faculty in most fields probably average something around 80K-130K in salary.

      Not at most institutions, I don’t think. I’m at a SLAC and we’d average quite a lot less than that.

      • wjts says:

        For new-hire tenure track appointments or for actually tenured faculty members? 80-130k sounds about right for tenured associate/full professors, but my (anecdotal) impression is that salaries for newly-hired tenure track faculty are usually closer to 45-60K.

      • mpowell says:

        These numbers, of course, vary depending on what you are talking about. But I’m not really thinking new hires, I’m thinking about the people who could have benefited most from tuition expansion which would likely be senior faculty who could demand pay raises if they were there to be had. But, of course, they haven’t been.

        Contrast that with law school where I have heard some quite impressive numbers thrown around for tier one programs.

    • anonymous says:

      I want to back saucyturtle up here. In the humanities, the 80K – 130K range is probably right for top-tier research-one schools, some exceptional programs at middle-of-the-road research-one schools, and maybe the richest SLACs. (I know it’s right–or was a few years ago–for my graduate institution.) But salaries at bottom-rung research-ones (a previous employer), regional comprehensives (other job offers), and less-rich SLACs (current employer, and the basket of schools they pegged my salary to when negotiating) are lower–sometimes much lower. At my current school, beginning Assistant Professors enter around 50K, and Full Professors towards the end of their careers top out in the 80K – 85K range.

      • Brandon C. says:

        This. When I left in 2011 these were the salaries of my department. The newest prof made 45k, and everyone else that was full made around 80k. Only one prof made above that (150k) but he practically invented his portion of the field, and actually brought in money to the school, which is pretty rare for the Classics.

        They still wouldn’t let him be head of the department though…

  4. Lawprof says:

    Even assuming that the LLM program’s only merit is that it brings in $1m to the law school, it isn’t obvious that this is driven by self-interested law professors.

    The primary beneficiary of $1m in new income, actually, is alumni of the JD program, who will see the ranking of their degree enhanced by whatever USNWR points $1m can buy. Secondarily, the higher ranking will help current and future students get jobs and will help the law school hire faculty with opportunities elsewhere. This will help the faculty — it is more fun to teach brighter and more committed students, not to mention students who have a better chance of getting jobs, and it is more fun to work with colleagues who are more part of the national conversation.

    But not in the crudely materialistic way that you imply: it is highly unlikely that the extra $1m will end up as pay increases for existing faculty.

    Much more likely, in fact, that it will be used for additional merit scholarships (i.e., reductions in the actual charge to students for attending), additional administrative services for students, or even increasing the faculty size, with the choice driven by whatever is most likely to affect CU’s ranking in the USNWR list.

    But the assumption is just wrong. The LLM is likely to help its recipients get jobs by increasing their credentials. Is it obvious that if people want this credential the school has an obligation to stop the arms race? Moreover, traditional 3 year law degrees are predicated on the assumption that law grads can get additional on-the-job training from their employers. That assumption is increasingly false. Is it only faculty self-interest that drives students, and institutions, to attempt to create new training to replace the vanishing old system?

    • MikeJake says:

      Is it only faculty self-interest that drives students, and institutions, to attempt to create new training to replace the vanishing old system?

      New training? Training for what?

    • Paul Campos says:

      The primary beneficiary of $1m in new income, actually, is alumni of the JD program, who will see the ranking of their degree enhanced by whatever USNWR points $1m can buy. Secondarily, the higher ranking will help current and future students get jobs and will help the law school hire faculty with opportunities elsewhere. This will help the faculty — it is more fun to teach brighter and more committed students, not to mention students who have a better chance of getting jobs, and it is more fun to work with colleagues who are more part of the national conversation.

      This is nonsense. Law school rankings make no difference to employment outcomes except between very wide bands. And rankings are extremely inelastic between those bands. It’s basically impossible for CU to improve its ranking to a point that would make any difference in regard to employment outcomes for graduates. CU law school has tripled its budget over the past dozen years, and our ranking hasn’t improved.

      Chasing rankings is a negative sum game that screws over students and alums while throwing lots of goodies to faculty in the form of higher compensation and lower teaching loads.

      But not in the crudely materialistic way that you imply: it is highly unlikely that the extra $1m will end up as pay increases for existing faculty.

      Much more likely, in fact, that it will be used for additional merit scholarships (i.e., reductions in the actual charge to students for attending), additional administrative services for students, or even increasing the faculty size, with the choice driven by whatever is most likely to affect CU’s ranking in the USNWR list.

      This “crudely materialistic” account happens to be a literal description of what has already happened in regard to the use of the money.

      “Merit scholarships” consist of tuition cross-subsidization that ends up guaranteeing that the students with the worst employment prospects subsidize the students with the best. By a startling coincidence SES ends up being a fairly good predictor of relative employment prospects for law graduates, meaning that “merit scholarships” steal from the poor to give to the rich.

      The LLM is likely to help its recipients get jobs by increasing their credentials

      .

      Citation missing.

      Is it obvious that if people want this credential the school has an obligation to stop the arms race?

      Yes.

      • RhZ says:

        The LLM is likely to help its recipients get jobs by increasing their credentials.

        This is patently incorrect for the vast majority of (JD-holding) students.

        Now if they were practitioners and were taking a tax LL.M., that would be ok. But fresh JD grads with limited employment prospects, not from top 14 schools? They would probably be better off getting a ph.d in something or other. The LL.M. won’t do anything to help them.

  5. John says:

    Does an LLM have any use anywhere in any context?

    • Paul Campos says:

      This can’t be answered empirically, since the ABA and NALP don’t require law schools to report employment outcomes for LLM students, and the data don’t exist as far as I know.

      The conventional wisdom regarding LLMs for American law school grads is captured by this flowchart:

      The situation is a bit more complicated for foreign lawyers, in that getting an LLM allows a foreign lawyer to take the bar in California, New York, and a couple of other places (not in Colorado however). But our program would be aimed at domestic lawyers, as we can’t compete with CA and NY schools for international LLM students.

      • RhZ says:

        LL.M. is very useful for foreign lawyers, as it allows them to take the NY or Cali bar, get their US license, and improve their employment prospects back home, or allow them at least the chance to latch on with a firm in the States.

        Wait, Paul, what’s this?

        …getting an LLM allows a foreign lawyer to take the bar in California, New York, and a couple of other places

        Couple other places? AFAIK, its only NY and Cali…do you know something I don’t (he asks, rhetorically)?

        LL.M. for a JD holder, especially one with little to no practical experience, is all but worthless for 90% of such people.

        • Paul Campos says:

          Alabama, New Hampshire, Virginia, and the independent republic of Palau.

        • timb says:

          I have a JD, obtained within the last 3 years, and, although I was a “non-traditional student,” I still don’t know what the hell an LLM is or what it would be good for. As far as the foreign students in my classes, their only benefit seemed to get to spend an entire year in Indiana on borrowed money (truly a glass is half empty sort of proposition).

          Although I personally received value from an LLM student from Georgia, who sat next to me in Election Law. At one point he asked me why African-Americans voted for Democrats. Not being Manju, I pointed out the Democratic party’s history of championing racial minorities from the Depression onward and noted it received the lion share of the credit for the various CRA’a and VRA’s.

          I then mentioned my explanation had a partisan bias to it and in our class we had my State Senator, a conservative’s conservative. I directed him to Mr. Young, who proceeded to tell him that African-Americans vote for Democrats because AA are on welfare and Democrats support welfare.

          So, as far as I could tell, all the LLM program ever did was expose my State Senator as a cartoon racist villain….and, since I already knew he was those things, I received no value.

      • Mrs Tilton says:

        LLMs can make a lot of sense for non-US lawyers. In the country I live in, biglaw firms expect certain (high) minimum marks on both one’s bar exams; getting a (domestic) doctorate or a (US) LLM increases one’s chances of a sought-after job if the exams on their own are a little too low. And high-flyers will often go for one, sometimes both, add-ons even if they’ve done well on the exams. In recent years some domestic universities have even added “LLM programs”, though the degree and indeed the very idea are entirely, well, foreign to the traditional structure of legal education here. (All else being equal, BTW, earning the LLM, whether in its US or domestic variant, probably involves more work than the doctorate.) A minority, but not a vanishing one, will obtain bar admission in the US. It’s seen as prestigious here, but I don’t have the impression it helps anybody get a better job. And very, very few of them will hold themselves out as practicing US law once they’ve returned home. (I can think of only three, and two of those don’t count as they in fact did the entire JD program in the US. And one of those spent most of his long career in New York anyway.)

        From my time in the US I would say that an LLM makes sense only in a limited number of circumstances:

        1. See above; non-US lawyers who wish to make themselves a more attractive employment prospect back home (and possibly even, as an afterthought, learn a bit about US law, or at least about US law school).

        2. US law school graduates going into a complex and technical field in which some add-on academic work really might confer some benefit; tax is the example that springs to my mind, too.

        3. Anecdata, but I know of a couple of cases of graduates from solid-but-not-top-drawer law schools who wanted academic careers and sought to upgrade themselves by getting an LLM from a more prestigious law school. It worked, at least in the cases I’m aware of, as both are tenured law school faculty (one at a quite decent law school).

        If you’re not a foreigner or a tax lawyer and you want to go into practice rather than academia, dropping massive coin for an LLM seems madness to me — and if it’s a brand-new LLM program with no history, no reputation, no network of alums, no nothing: stark raving madness.

    • Fighting Words says:

      My personal story is that I have a law degree from Australia. I needed to get a LLM degree in order to meet the educational requirements to sit for the California State Bar Exam. I am currently working as a lawyer in California, so I guess it was worth something for me.

      As to your general question, it depends (and I can only speak about foreign lawyers who got LLMs to practice in the U.S., and not US lawyers who get LLMs in things like Tax Law or International Law or something). At least in my experience, there are some foreign lawyers who never intend to practice in the US and who get LLM’s because it is prestigious back in their home country. But of my fellow LLMs from my school who chose to practice in the U.S., some were successful in passing the bar and finding jobs and some were not. I know that is not the most helpful analysis.

      Another thing I should mention is that having a lot of LLMs is not really good for all of the LLMs – especially at the back end. Six is a good number of LLM students. Having 26 LLM students is just screaming “we are desperate to get more money in any way possible.”

  6. Julian says:

    All of your incentive arguments make sense, but I can think of other reasons that might also be at work (not that they matter as much as incentives).

    Namely, academic culture (i.e. publishing papers that don’t matter, which no one reads) is inclined to think that knowledge itself is awesome – especially when they are the ones imparting it. The LLM program is self-evidently great because a) more learning is great even if you’re getting absolutely no employment value-added from it, and b) hell, WE’RE teaching the LLMS, and we know we’re fantastic.

  7. RhZ says:

    …extracted some predictably awkward revelations regarding exactly where the LLM tuition money was actually going

    Care to elaborate?

  8. Jerry Vinokurov says:

    This situation is hardly unique to law schools; law schools are just the most extreme manifestation. There are many graduate departments that accept and recruit graduate students despite knowing that a) the employment prospects for the vast number of graduate students in academia are virtually nil, and b) those graduate students are giving up some of the most productive years of their lives, years and income which they will likely never get back, in order to chase a wildly unrealistic dream. True, they do pay their students a pitiful stipend, but this hardly makes up for the huge opportunity costs these students incur (and that is to say nothing of less reputable programs that actually require their students to pay tuition).

  9. BigHank53 says:

    I’ll drop in a link to this from Dissent, about the decline of California’s higher ed system.

    Honestly, why shouldn’t your fellow faculty members try to steal everything that isn’t screwed down? If they don’t, somebody else at the University of Phoenix or Citibank or Simpson-Bowles will.

  10. Rick Santorum's Leaky Faucet says:

    Re the law professor salary being higher at Tier 1 schools than most tenure track academics, maybe that explains why there are professors at my school who hold PhDs and previously were tenured non-law professors who got their JD mid-career. Now I see.

  11. Lurker says:

    This is where a good state-funded university system works well. In Finland, the university requires a permission from the Ministry of Employment to start offering a new degree program or a new major. As the state is also the payer for the program, the permissions don’t come easy.

    A centralised planning of higher education would prevent madness like this from occurring.

  12. Rick Santorum's Leaky Faucet says:

    Professor Campos-my Tax professor recenty said that an NYU or Georgetown Tax LLM will “pay for itself.” If I didn’t follow your blogging, I’d be much less skeptical. Do you think there’s any truth to this?

    • Paul Campos says:

      From what I’ve been able to discover, the tax LLM programs at NYU and Georgetown may be beneficial for graduates of those programs considered as a group, although there will still be (many?)individual graduates for whom they will be a bad deal. (I’ve heard some bad things recently about how a lot of NYU tax LLMs aren’t finding anything).

      Then there are the 300+ other LLMs currently offered by American law schools . . .

  13. wengler says:

    You know when this bubble bursts, that the same people that pushed for it will either be comfortably in retirement or in control of who among the large amounts of faculty will be fired.

    In some very limited cases the entire school will be closed, but under my understanding of ‘market forces’ such quick return short-term moves are highly incentivized especially when you think the scam won’t last much longer.

  14. Tracy Lightcap says:

    I’m not sure this can be put directly on the faculties in graduate schools. It’s more the result of the adoption of neo-liberal models of post-secondary education in the US and elsewhere. Putting new programs together that impose an unneeded cost on students at a high social cost? Hmmmm. Where have we seen this before, I wonder?

    Well, that would be in health care delivery, of course, that is plagued with exactly the same market problems that post-secondary education has (asymmetric information, especially). And, of course, post-secondary education – especially at the graduate level – has brought into (or been forced into) the same adoption of neo-liberal models that we continue to see touted in health care. It isn’t so much the faculties that did that as the state, but after awhile they have gotten caught up in the program.

    How do we get out of this trap? A public option, of course. We get the feds to start regional universities with no big time sports, pared down administrative structures, a relentless concentration on admissions subsidies based on need, and academic excellence based on research tested educational methods. Sounds silly, doesn’t it? But that’s what it will come to: such universities would drive down the cost of tuition and the use of non-academic competition everywhere.

    Sooooo … as the immortal Bluto said, “Was it over when the Germans bombed Pearl Harbor? Well, it ain’t over now! Who’s with me? Yeahhhhh …”

  15. RJB says:

    This is more process than substance, and I’m B-school faculty, not Law School, but…a faculty meeting seems like the wrong place to bring this up. Too late. It’s not like the final vote in the US Senate is the time to debate substance…that time has long past. Were there discussion about this issue earlier? Could there have been?

  16. Wido Incognitus says:

    I used to read Inside the Law School Scam, but I have drifted away from it. Mostly because I got tired of the commenters taking the fact that law school is probably a bad idea for law students unless they are mostly interested in enriching law educators (I am willing to cut educators with phDs more slack than I am for law educator, but maybe that doesn’t make a lot of sense), and then making these massive inferences that (1) other people should be directly responsible for their own bad decisions and bad fortune to a greater extent than somebody who is poor for other reasons, (2) that American education is a foolish “scam,” (3) that law school GPA etc are a foolish way of employers choosing employees (although I am not naive about meritocracy and I really do think that “school rankings” are obviously inane), (4) and various other ideas about how every organization or person associated with the “bar” is part of a mass that is responsible for the failed law student’s plight.

    Anyway, my point is that Campos’ rants about legal education themselves can still be interesting (but I am really not sure they deserve their own blog).

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