Saturday, January 11, 2014
A few days ago, I had a post on the problem of inertia in law schools, and how inertia affects law school reform. Here is a new article on the same subject:
Self-Interest and Sinecure: Why Law School can’t be “Fixed” from within by David Barnhizer.
The issue of how best to do a legal education is being approached as if it were an intellectual and pedagogical question. Of course in a conceptual sense it is. But from a political and human perspective (law faculty, deans and lawyers) it is a self-interested situation in terms of how does this affect me? The reality is that for law faculty and deans it is mainly a life style, status, economic benefit and political situation in which the various interests protected by the traditional faculty slot placeholders [as well as the non-traditional practice-oriented teachers) are being masked by self-serving language best described as “high rhetoric”. My point is that as some lawyers have told me, “people would kill to have your job.” That is disturbingly close to being accurate. And if that is true then it offers a useful insight that “people would probably do almost anything to keep that job” once they have become part of the incredibly comfortable academic system inhabited by the American law professor.
If we were critiquing any system other than the one in which we work, law professors (as lawyers) would immediately evaluate that other system based on the effects of the inevitable sense of entitlement, privilege, self-interest, bias and resistance to change that affects any system. A central dynamic operating against real change in legal education is the very high level of individualized self-interest that characterizes the amazing job of the American law professor. This individualized self-interest produces a set of inchoate “work rules” that is at least as powerful as the work rules under which many labor unions operate. The rules allow the law professor unaccountable “space” to do whatever he or she desires in teaching, research, and external activity. This allows too many members of law faculties to treat their lucrative and privileged positions as a part-time job. As I suggest in this brief essay, very few beneficiaries of such a system voluntarily seek to alter its highly favorable terms of operation or are able to fully withstand the seductions of its privileges and perquisites. Most engage in convenient rationalizations that prevent real change because that would require them to lose the privileges and impose greater accountability and responsibility.
A result of the intense self-interest in which the American law professor operates is that recommendations that law school be modified to be more “practical”, implement clinical programs and incorporate courses such as Trial and Appellate Advocacy, Dispute Resolution, Negotiation, Interviewing and Counseling, Transactional work and so forth will not be accepted as significant across-the-board educational reforms. Arguments aimed at achieving substantial improvements in legal education have been around for four or five decades. It isn’t as if the premises of those arguments were obscure and a “great cloud of unknowing” suddenly stripped away. It is amusing to see people “reinventing the wheel” and acting as if they have suddenly achieved an intellectual epiphany that allows them to understand that American law schools are in fact in the business of educating people to become effective practitioners and responsible and principled professionals. But even though there is a strong likelihood that in many instances the new attitudes being trumpeted are little more than cynical or desperate public relations devices rather than actual shifts in pedagogical mission and educational strategies, they may offer hope for significant reform. If so this will be due to the sheer desperation being experienced in many law schools as enrollments plummet, lawyers and recent graduates protest, and parent universities become unwilling to subsidize their law schools.