Sunday, November 2, 2014

Leashing the Dogs of War: Conflict, Creativity and Integration in Legal Education

Prof. David Barnhizer recently posted the ominous “‘Drumbeats of Doom’ and the Downsizing of Law Faculties” at LawNext.  He projects the potential for a “civil war” among classes of law faculty during this disruptive moment in the market for legal education.   Prof. Barnhizer is wise and has a good will, and he may be right.  He has many useful observations in the piece. 

I write in response because he and others borrow trouble by pitching the conversation into a distilled narrative of internecine camps bent on defending their own frontiers. 

He sets forth the familiar parade of horribles in legal education and the well documented forces at work in vulnerable law schools:  plunging applications, decreasing enrollments, falling metrics, depressing post-grad job prospects, university budgetary obligations and increasing demands for more productivity with fewer resources.   He also observes the “aggressive push” for law schools to increase experiential education, but almost as if that pressure is unrelated to the root crises besetting legal education.

I respond here to build on his observations, first, to suggest that a “civil war” is not inevitable, but that speaking in bellicose and binary terms is more likely to generate it; second, to observe that the existence of “classes” in the first place disposes our landscape to be a battlefield; and third, to offer some hope that epistemic humility, creativity and collaboration can deliver us from destructive power struggles.    

With imagination, we’ll get there.

Civil War

Prof Barnhizer writes:

We can expect that many law schools will be entering a period of ‘civil war’ between traditional tenure track and tenured faculty and Legal Writing and Clinical faculty as well as people hired for an expanded set of administrative tasks that have consumed  increasing amounts of law school budgets previously allocated to those hired on the tenure track. . . .

. . . [A]s resources shrink and demands on faculty increase, including the expansion of teaching loads for tenure track faculty and the marginalization of scholarship, there will be nasty battles between the “classes” of law faculty of a kind rarely seen before.

He may be right, and such conflict may occur in certain schools. 

(Indeed, many clinical law professors would say that they have been thus engaged for a very long time and that the inconstant terms of security and status prove it.)

A civil war is not necessary, though.  First, to essentialize “traditional tenure track and tenured faculty” and “Legal Writing and Clinical faculty” is not useful or accurate and is needlessly provocative.   There are no such essentialized populations except as they exist in individual institutions, so to suggest that these camps exist in any kind of cohesive way across the academy is not useful.  (Clinicians are probably the best organized as a discipline, but we don’t vote in blocs and are usually vastly outnumbered on faculties.)  Also, Legal Writing and Clinical faculty have different functions, roles and modes of teaching.   We ought not impose a hierarchy on our respective roles, but these professors do not necessarily share the same positions and preferences.  

If a faculty interprets itself in essentialist terms, then probably it will go to war.

If a faculty can reinterpret itself to see itself as a collaboration of variously talented professionals with common cause in an uncertain environment, then they are less likely to fight and more likely to solve their common, strategic problems.   

If the faculty can recognize that they sink or swim together in a competitive, disruptive season, then they are more likely to innovate, adjust and grow.  If some segments of a faculty insist on defending a dying status quo against seismic forces of change, to resist the emergence of new partners, then they might all go down in their burning ship.  

If tenured, “doctrinal” faculty think that clinicians are mounting a mutinous revolution, then they likely will respond with all the force their privileged governance affords them.   If clinicians actually are mounting a mutinous revolution (or act like it), then they likely are ensuring a conflict they cannot win.    In the meantime, as Prof. Barnhizer quotes Dylan, they both will “sink like a stone, For the times they are a-changin.”

The assumption that the production of scholarship for the sake of scholarship is the heart of legal education is a foundational problem.  Likewise, to think that scholarship is extraneous to good, practical teaching is to neglect the great virtue of our role in society. 

Teaching law students is the heart of our enterprise.  Scholarship, good, elite, provocative, critical, creative, theoretical and normative scholarship, makes us better teachers and serves our students.   Scholarship serves the purposes of lawyers to improve the law, to educate the nation, to seek just law reform, to explore the dark corners of democracy and potential for the Rule of Law.  This is the work of lawyers, some who are scholars and exercise their vocation in scholarship, but the work of scholarship in law schools should be in principal service of pedagogy, increasing our expertise, expanding knowledge for our students, modeling critical and theoretical prowess in practice, contributing to our fund of ideas and insight.     

Scholarship by itself, however, is only sufficient to teach other scholars and theorists.   We are in the business of educating lawyers, not professors.  As scholarship informs good teaching, so practice informs good learning.  Our students are not paying for law review articles, and they are not paying for technical training.  

The Carnegie Report is onto something good with its description of three apprenticeships in professional education: the cognitive apprenticeship, the apprenticeship of skills and practice, and the apprenticeship of professional identify and values.   A good legal education requires all three.  

In theory, “traditional” professors teaching podium classes provide the cognitive work.   LRW professors provide the skills and practice training.  Clinicians teach and model professional identities and values.  In reality, we all should be teaching all three at the same time, in varying degrees and weights of emphasis.  None of us can afford to do them all well on our own, but none of us are dispensable to the enterprise done well.   For one part of this body to go to war with another only leads to self-destruction.  

For the sake of our school and our students, I should want my doctrinal colleagues to be utter and undeniable stars in their fields.   For the sake of our school and our students, my doctrinal colleagues should want our clinics to thrive with excellent, creative and dedicated lawyer-teachers.   (For the record, mine actually do.)  If there are actually faculties at war in these camps, then perhaps those schools indeed will succumb to the drumbeats of doom, because they are not serving their students well. 

To pit “scholars” versus “clinicians” is unnecessary and shortsighted.   If we share common goals of teaching students well, of seeking justice and the improvement of the law, then perhaps we can recalibrate the conflict to address those who do their jobs well and those who do not.    


Regarding the classes of the legal academy, Prof. Barnhizer does well to identify the pressures on law schools created by tenure, but he comes close to ratifying the implicit position that those privileged with tenure are the most oppressed and distressed by the emerging new order.   Tenure exists for two historically essential reasons, to protect the intellectual freedom of scholars from political pressure and retribution and to entrust governance of the school with those whose work is at the heart of the enterprise.   It is not a gift; it is an obligation.     

The work of law professors is and ought to be of such quality and import that it speaks uncomfortable truth to power.   We are lawyers first, public citizens obligated to seek improvement in the law, who necessarily challenge and criticize prevailing structures.   If a scholar needs protection for the political voice of a law review article, how much more does a clinician need similar protection when the clinic files a suit, takes a client, organizes for reform and advocates zealously for justice.  

If tenured faculty are not producing work of such quality that it demands protection from political pressure, or if tenured faculty have not governed their institutions sustainably, then perhaps their tenure is the very problem binding law schools.  

On the other hand, if more kinds of teachers with diverse gifts and talents had tenure, perhaps the governance would be more nimble, wiser and more apt to adapt. 

If law schools tremble before the “aggressive push” for experiential learning, from the bar, bench, students, employers, alumni and the market, then perhaps empowering more types of professors is the wise move of those already at the helm.   If tenure is to ensure the sustainable mission to teach and learn, and if schools are faltering in a changing market after a century of inertia, then including more professors with the “gift” of tenure could stabilize the uncertainty.  

Further, the existence of classes promotes and perpetuates the binary angst of those with the privilege of tenure and the frustration and anxiety of those without it.   The class system of legal education generates a zero-sum bloodletting in the classic contest of those privileged with more power against scrappier, highly motivated activists with less of it.  It also promotes a false dichotomy between scholars and “other” professors, instead of contemplating a more cohesive idea of diverse teachers in common cause. 

To defend one’s privileged place at the head of the table will ensure conflict.   To welcome more people to the table with knowledge, wisdom and talent can only strengthen the institution and culture of a school.       


Of course, there will be conflict in our demanding new market.  Faculties, deans and universities will disagree on resources, priorities and investment.  We will struggle over the weight and investment in the three apprenticeships.  Crises beget reactive entrenchment and forlorn charges.  Some will be defensive; others will be brazen.  The question is whether these decisions mean civil war or whether they mean constructive deliberation. 

In alternative dispute resolution, we mediators talk about the difference between distributive bargaining and integrative bargaining.   In distributive bargaining, the parties attempt to negotiate who gets the most of a limited resource.   It is often positional and confrontational, an argument over who deserves a greater portion of a scarce, finite commodity.   It is arguing over who gets a bigger piece of pie, and why they deserve it by their greater worth and more righteous position. 

In integrative bargaining, the parties look for ways to make the pie bigger.   Constructive, integrative bargaining does not pit the parties against one another and gives less regard to the relative worth of their competing positions.  Rather it honors competing interests, seeks common grounds and goals, then sets forth to imagine new paths where everyone is satisfied and everyone gets richer. 

Distributive bargaining works best when the parties do not care whether their relationships will continue but only care whether they get the best deal possible, without regard to the cost imposed on the other side.  

Integrative bargaining is better when the parties must exist in relationship together or will depend on each other to ensure that their respective interests thrive.  

If a tenured scholar believes that clinicians are chipping away at her lucrative piece of a dwindling pie, then she may be willing to go war to deny them resources or an advance in their work.   If a clinician believes that he has to agitate, shame, threaten or moan about a subjugated and neglected place on the faculty, then he may be willing to go to war in confrontational advocacy, if he has any kind of status and security of position.  

Alternatively, if the professors, from their various roles in the academy, can agree that their interests are integrated and that their goals are consistent, then the possibility exists for everyone to have more pie.  Everybody likes more pie.

If teachers who are primarily scholars can recognize the value and contributions of the teachers who are primarily practitioners and the lessons they teach, without imposing a tired hierarchy, then there is hope that they can create something cohesive and valuable for the students they teach together.   If they can see themselves as fellow teachers in common cause, dependent on each other for success, then perhaps they can imagine better ways to teach students.

Perhaps by teaching students better, applications will increase, and enrollment will stabilize.

Perhaps by teaching students better, graduates will get more jobs and be more competitive. 

Perhaps by teaching students better, alumni will consider their investments in our enterprise to be money well spent.     

This requires a cohesive vision of the school’s mission and the intersecting roles of teachers, but the hard work is worth the effort to avoid civil war. 

To survive and thrive in the present trouble, each faculty has a choice.  War is not inevitable.   Creativity and innovation are possible.   Success depends on whether each teacher and each faculty will approach their work and colleagues humbly, intentionally and creatively, with a willingness to adapt for the sake of their common interests. 

For those who refuse to change, to share, to work harder, to shed old canards, to reconsider the shape and work of the school, their noses will suffer for the spite of their own faces.

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This is a good post and the referenced article is a good article as well. I think there is accuracy to this article and, unfortunately, accuracy to the referenced piece. It is just human nature to protect oneself. In addition, the "civil war" he speaks of need not be overt either; it is likely covert. Or more accurately, it might be waged through different means not by direct action but seeking a direction that will bring about a desired result without saying anything divisive at all. Just might thoughts. Quite a useful post.

Posted by: brian | Nov 3, 2014 4:51:57 AM

"my thoughts"

Posted by: brian | Nov 3, 2014 5:00:19 AM

I don't foresee a civil war as much as I do a strategic retreat in which tenured podium faculty fail to protect practicing faculty against retrenchment by law school and university administrators. When a university or law school needs to balance a budget, non-tenured faculty with low student:teacher ratios are the low hanging fruit.

Posted by: Jeff Renz | Nov 3, 2014 8:08:12 AM

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