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Changing the law school climate

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Over the past few months I’ve found that, when it comes to the crisis facing law students and graduates — and therefore, eventually, law schools — law faculty and administrators tend to fall into four categories, which can be analogized to the categories people fall into regarding their reactions to climate change. (I’m not making any assertions about the merits of various climate change arguments in this post, as it’s a subject I know nothing about beyond what I read in the papers. What I’m interested in is the usefulness of the analogy).

First, you have your flat-out Deniers. These are people who simply deny there’s any crisis. For example, you have people who deny altogether that the earth’s climate is warming. The law school analogy is the professor (there is, I am reliably informed by one of his colleagues, at least one such law professor, who interestingly is middle-aged and doesn’t seem to be suffering from senile dementia) who denies that the cost of law school has risen relative to inflation.

Most Deniers are not quite this extreme: they’ll acknowledge the earth is warming, but they’ll claim this is a natural cyclical process, rather than a product of human activity. The law school analogy are faculty and administrators who acknowledge costs have gone up and the employment situation is bad at the moment, but who treat all this as a natural, cyclical, and most of all temporary situation, that has essentially nothing to do with what law schools have done or not done, and which will simply go away without any action on our part.

I know quite a few people in this category: They cite the (needless to say imaginary) employment stats from a few years ago, when “96%” of our graduates were “employed,” and say there’s every reason to believe we’ll be back in that situation as soon as the economy picks up again. As for the costs of legal education, they dismiss this part of the crisis with various hand-waving gestures, usually based on some vague belief that legal education is far better now than it was a generation ago, and that a better product is inherently more expensive. The bottom line for them is that the extent to which there’s any crisis at all is exaggerated, and in any case it’s all cyclical, while the skyrocketing cost of law school isn’t a product of what in the climate change literature is referred to as anthropogenic forcing, but rather of Newton’s fifth law of thermodynamics, which holds that, all other things being equal, education is priceless and can therefore not become too expensive even in theory.

Then you have your Fatalists. The Fatalists acknowledge there’s a crisis, admit it’s to a significant extent human-caused and likely to get a lot worse, but argue that at this point there’s little or nothing we can do about it. In the climate change world, these are the people who argue that even cutting carbon emissions by quite a bit won’t do much to forestall the future effects of our existing social arrangements, given what we’ve already put into the system, and who in addition point out that it’s pretty much useless for, say, the U.S. to cut back significantly on emissions if China and India don’t.

The law school analogy are people who admit the employment situation is terrible, that it’s going to get worse, and that it’s been made worse by the collective behavior of law schools, but who argue that there’s not that much law schools can do to improve it, short of the climate change equivalent of radical de-industrialization (i..e, closing half of the law schools currently out there). In particular, Fatalists emphasize there’s literally nothing individual schools can do by themselves, since this is a classic collective action problem.

The third category is made up of the Inconvenient Truthers. The ITs take the same basic view as the Fatalists, with the crucial difference that they believe that, with a combination of enough consciousness-raising and concerted political action, the collective action problems can be overcome, and many of the worst effects of human-caused climate change can be headed off, or at least ameliorated at an acceptable cost. The law school analogy consists of the people inside the system who believe that radical reform is both necessary and possible.

At this point, the ITs in both the climate change and law school world are largely dedicating themselves to trying to overcome ignorance, social inertia, and most of all the the considerable power of those vested economic interests who have the most to lose from any serious attempt at reform, and who are therefore doing everything they can to keep people in either the first category or the fourth.

The fourth group consists of the Sleepers — the people who just aren’t paying much attention to this issue one way or another. In the world of climate change, the Sleepers are people who have a vague sense that there’s a fierce argument out there about how global warming is either a potential environmental catastrophe of unprecedented proportions, or an insidious myth fabricated by tree-hugging wackos, or possibly something in between. But since the consequences of what is or isn’t happening are still somewhere off in the medium to distant future, the Sleepers basically ignore the controversy altogether as they continue to live their lives in the same fashion they did before anyone started trying to raise the alarm about rising global temperature.

Although in terms of behavior Sleepers are indistinguishable from Deniers, they’re not, unlike the latter group, ideologically committed to the idea that Everything Is Fine: rather, they’re just not paying attention yet. This makes them (perhaps) more promising prospects for the efforts of the ITs, although it’s important not to underestimate the extent to which inattention can sometimes be even more difficult to overcome than conscious denial.

In the law school world, I would guess the vast majority of faculty, and even a surprising percentage of administrators, are at this point Sleepers. There are probably about equal numbers of Deniers and Fatalists, who are being harassed by a still-tiny cadre of Inconvenient Truthers. But whatever the proportions may be, any serious reform effort requires finding a way to move as many people as possible out of the fourth category and into the third.

c/p at ITLSS

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