1. Get tenure at a law school.
2. Start an anonymous blog taking law schools to the mats.
Okay, so that's not quite the plan of action for the newest law school critic on the scene, but the anonymous "LawProf" is causing quite a stir. He is a mid-career professor at a tier 1 (but not top 10) law school with tenure, and he is airing the law schools' dirty laundry. His blog, Inside the Law School Scam, has much of the same message as the scam bloggers, but his intelligent writing, lack of rambling diatribes, and the weight of his professorial status makes me not want to call him a scam blogger, lest he be too quickly written off as a sweaty toothed madman. I get more of a "I am Saruman. Or rather, Saruman as he should have been," vibe from him. We've had Gandalf the Grey, and Rhadagast the Brown (you know who you are), and now, finally, Gandalf the White.
I sat down with him for an interview discussing his critics and how he sees the future of law school reform. And by "sat down with" I mean we sat in completely different locations, and probably entirely different states (I'll speculate on his university at the end). By "sat down with," I also mean e-mail. I presume he was seated. Not really important though. Here is that conversation:
BL1Y: Michael Olivas, President of the Association of American Law Schools, has criticized you for writing anonymously, saying that your critique of the law school business and culture is "hearsay that doesn't even round up to gossip." We'll sidestep Olivas's troublesome understanding of hearsay (or that the admission of party-opponent exception would apply to the few things that are hearsay).
Why the decision to be anonymous? For many bloggers in the legal community, anonymity makes sense. Some of the writers for Con Daily would have thier jobs on the line if they wrote under their real names; Philadelphia Lawyer could face disbarment, and Dr. Rob Dobrenski, who writes under his real name, has been fired over his blogging. But, you're a tenured professor, you have the holy grail of job security. Do you really need anonymity to protect your career, or is there some other reason for it?
LP: Over the course of my career I've published a great deal of work in a very wide variety of venues, much of it extremely critical of various authority figures, and this is the first time I've resorted to anonymity. My decision to do so was based on a couple of things. First, I've found that anonymity is in this context liberating in a useful way. This after all is my profession, and I'm saying some very harsh things about it. Not having to worry (for the moment at least) about what my colleagues will think about me for saying such things allows for more pure candor, which in my view is what this whole subject desperately needs. Of course this sort of freedom can be abused, but there advantages and disadvantages to any approach that involves whistle-blowing and muckraking. So it's a question of whether the advantages outweigh the disadvantages, at least for now (it's a balancing test, as a judge, or a law professor imitating a judge, might say). Second, it's my hope that being anonymous will enable at least some people to focus on the message rather than the messenger, since what tends to happen in these situations is that people immediately start focusing on the latter to the detriment of the former.
As for tenure, I in fact received some fairly severe blowback at my school when I raised some of these questions in a purely internal (and much more polite) fashion. I'm not going to go into details, but the experience left me feeling rather jaded about the commitment of law school administrators to academic freedom, at least when that freedom might be exercised in some way that interferes with their institutional ambitions.
BL1Y: Do you think Olivas's criticism is sincere? Inside High Ed has confirmed your credentials as a tenured professor at a first tier law school. Do you think the conversation is significantly hampered by your anonymity, or do you think attacking your anonymity is a means to discredit you without addressing the substance of your claims?
LP: I have no idea if Olivas is sincere. It's the same question I have about a lot of judges when they make contradictory arguments in the space of a couple of paragraphs in the same opinion. I don't know what it's like to be a judge, and I don't know what it's like to be the kind of person that would want to be president of the AALS. If I were, I'd probably have a better idea if Olivas really means what he says. Obviously attacking my anonymity is a strategy for avoiding direct engagement with my claims. Whether it's a conscious one or not is again something that I don't know.
BL1Y: Olivas has also said that your claims about how few hours professors spend on teaching (including prep time, about 252 hours per year, and often quite less) has a "small grain of truth to it," but generally that you're wrong, and most professors work far longer hours. I've heard from Ken Chestek, President of the Legal Writing Institute, who says he works longer hours teaching than he ever did in his 21 years in practice, and claims that long hours are the norm for writing instructors.
There are likely professors all over the spectrum when it comes to hours put into the classroom, and on your blog you agree that some professors do work long hours. The real issue seems to be how much time the typical professor puts in. Can you give some estimation of how many professors are dedicating 252 hours or less per year to their classes? Obviously not a scientific study and highly anecdotal, but from your own experience, is this the norm, or are the slackers a small minority?
LP: Legal writing professors are generally non-tenure track low-paid faculty members, who have much heavier workloads in regard to actual teaching obligations (mainly because they have to do so much grading) than tenure-track faculty. I don't doubt that they put in a lot more hours on teaching than the tenure track faculty, although the idea that the average legal writing instructor position is more time consuming than the average private practice job strikes me as extremely implausible, from what I've seen of the work habits of legal writing professor.
The hour per day amortized over a full work year estimate is a rough estimate, but it is based on close observation of tenured law professors in their native habitat over many years and in many contexts. It's also based on personal experience (of course), and on candid conversations with several colleagues. Beyond that it's based on a certain level of common sense: when you're teaching the same material for the fifth or seventh or tenth time, there simply isn't that much useful extra preparation you can do, even if you're particularly diligent (which again in my experience many if not most tenured law professors aren't.) The bottom line is that people go into law teaching because they don't want to work as hard as they would at the typical alternative career track for them, which is practicing law at a big firm. This isn't true 100% of the time, but it is a huge motivation for the vast majority of people who go into law teaching, and anyone who tells you otherwise is either a liar or a fool.
[BL1Y note: Even if you triple the number of hours a professor spends preparing for class from LP's estimation, and add on an additional two hours per week for office hours during the school year (including exam weeks), you're only up to 534 hours a year. I know people who have billed that many hours in 2 months. For first time teachers, the prep time is likely rather intense. But, after that, it doesn't take long to tell your research assistant to see if there's any major changes to the RAP or the rule from Li v. Yellow Cab Co. of California. (There aren't.) Having taught test prep for Kaplan, I can somewhat relate to the teaching learning curve. After going through the entire course twice, prep time was no more than 15 minutes for a 150 minute lecture. Once you know the material, you just need a quick reminder of what you're teaching that day.
As for writing teachers (not all are professors), there is a very wide variance. Some schools give them huge work loads and they spend a lot of time in 1-on-1 conferences with students. I don't doubt that Chestek puts in long hours, but if they're longer than private practice, then he had a pretty sweet gig, and not a typical BigLaw job requiring 2500-3500 hours a year. Others, such as the writing instructors at NYU, teach just the one class, and do so with the assistance of two TAs. They also have bench memos to guide them through the materials, essentially a 'teacher's edition' of the memos and briefs students are writing. They are teaching research and writing on questions on which they themselves have done no research. To make matters worse, the bench memos are largely, if not entirely, written by students. I know, I did major revisions to one. It was on a criminal law matter and the previous draft completely ignored the mens rea element.]
BL1Y: Done talking about Olivas now. Do you think there's a real chance that either the deans of law schools or the ABA will work to provide a significant (and positive) reform of law schools? If not, if we're not going to see reform at an institutional level, are there concrete steps individuals can take to help improve law schools? And, I mean both professors and students. Has your opinion on the value of law school caused you to change the structure of your classes so that you students get a greater benefit? Is there anything students can do while in school to make the experience more worthwhile and graduate better prepared to practice?
LP: I do think there will be some reform at the structural-institutional level, if only because when you have an unsustainable business model you have to change or die. A lot of law schools simply will not be able to afford to continue to operate as they have been operating, and those schools will make significant changes. The ABA is already under a lot of pressure, in part because it serves a variety of constituencies, which have to some extent conflicting interests. Law schools want to keep their cartel protections, but the big firm bar is growing tired of the economic pressure on it generated by having to hire people with enormous debt loads, etc.
Over the past few years I have made major changes in the way I teach my classes and evaluate my students, as a consequence of reflecting on how law schools operate both in economic and pedagogic terms. Students can make their experience more worthwhile by neither accepting the standard representations of law schools regarding what going to law school is about, nor on the other hand giving in to complete cynicism. There are valuable aspects, intellectually and practically speaking, to almost any law school experience. They are sometimes difficult to find, and they require a lot of initiative to find on the part of students, but there are both genuine lawyers and genuine academics on law faculties. (I plan to blog on how to spot them).
BL1Y: You've talked about legal scholarship on your blog, and Chief Justice Roberts's comment that law review articles are largely useless to practitioners and judges has stirred up a lot of discussion on this topic. Our back of the envelope calculation tells us there are about 10,000 articles published in law reviews and other law school journals every year (200 schools, assuming 5 journals per school, 10 articles per journal per year). That's more than 500,000 pages and 2 million footnotes. Professor Richard Neumann (Hoffstra) has said only 43% of law articles are ever cited. With a citation/article ratio of 200:1, having 43% of articles go without ever being cited by another professor doesn't seem like much of a vote of confidence.
Are these journals even particularly useful to other professors? How many have you read in the last year, and are any of them articles you would recommend to other professors? Anything you'd recommend to a non-academic?
LP: In the last year I've read quite a few law review articles on the structure and future of legal education, because I'm researching the topic. Roberts' comments reveal (although not in the sense he intends) what's wrong with the vast majority of legal academic publishing. The idea that what legal academics ought to be doing in their writing is "helping" practitioners and judges is fairly absurd, even though it's the axiomatic basis of the standard law review article. Why in the world would these people need literally thousands of assistants in the form of tenured university professors sifting through legal doctrine for practical decision making purposes? That's what clerks and junior associates are for! (Or they could even do the work themselves). Do sociologists spend their time trying to be "helpful" to the architects of society? Do political scientists publish their work in order to "help" politicians? This whole model of law professors as servants of the servants of the law is fundamentally anti-intellectual, and goes a long way toward explaining why so much legal academic writing is both practically and intellectually worthless. Academics should do academic work and lawyers should practice law. The two activities have almost no overlap.
BL1Y: When you say academics should do academic work, I think a natural response is to ask why academic work is even a thing to do. In areas such as math, the sciences, and possibly a bit of economics, even though academics aren't necessarily working with a specific target in mind they want to help, their work, even at the most academic level, can still produce tangible benefits.
But, in law, as with much of the humanities, you have to ask "What's the point?" If your work isn't going to be useful to judges, practitioners, or politicians, if it's only going to be read by a handful of other professors working in the same niche, is it really a worthwhile endeavor?
LP: "Useful" is a tricky term. When people like Roberts say they want academic work to be useful to judges and practitioners, they mean they want it to be useful in the same way that a brief might be useful to a judge, or a research memo might be useful to a partner. Academic work that has a legal focus is useful in other ways, at least can be. Why is historical research useful? Why is anthropology useful? Etc. These things are useful in the sense that it's useful to be knowledgeable rather than ignorant, even if they are not generally useful in the sense that they give practical solutions to immediate problems (in that latter sense very little research in even the natural sciences is useful). The real question, in my mind, is whether doing academic work on legal subjects inside law schools has any unique value. After all an enormous amount of scholarship on law is done in the rest of the university. Now it's true that legal academics are (technically) lawyers, while, say, a political scientist who studies the Supreme Court as an institution usually isn't, but given how little practice experience legal academics usually have, that's a dubious justification.
BL1Y: Prorating a professor's salary for time spent on research and writing versus teaching, a single article could cost $100,000. You'd be hard pressed to find 500 professors (which I assume is a fairly large audience for an article not in a very top journal or by a big name professor) each willing to pay $200 to read an article. If the average is $50,000 per article, and the figure of 10,000 articles per year is right, then we're looking at an industry we spend $500 million on every year, funded through loans taken out by students. By comparison, the Cato Institute only gets $24 million a year. The Brookings Institution has a budget of $80 million. The Congressional Budget Office's budget is $46.8 million.
Is there a good argument to be made in defense of professors spending a great deal of time (or rather, a large percentage of their working hours) on academic research and writing? And if so, do you have any thoughts on how to bring the expense of legal academia down to a reasonable level? Do you think many professors would be willing to take a five or six figure pay cut if it meant having no pressure to write and their only obligation was a handful of hours a week spent teaching?
LP: There is absolutely no justification for students paying large amounts of money to subsidize the writing of traditional legal scholarship. As I argue on ITLSS, most legal scholarship has neither academic nor practical value, since most legal academics are neither lawyers nor scholars. Of course the present generation of legal academics would not be willing to take a big pay cut to just teach, because many of them do that already (a large proportion of tenured faculty do little or no writing).
BL1Y: There have been other articles and blog posts made by professors critical of the system, but you can count their numbers on one hand. Do you have any sense of how many other professors are share your criticism of law schools?
LP: It would be an exaggeration to say I'm merely saying what everyone else is already thinking, but hardly a gross one.
That's the end of our discussion, and I want to turn now to a post made by Paul Horwitz (Alabama) on the Prawfs Blawg in response to Inside the Law School Scam. It's a rather lengthy post, so I won't address it in full, but two comments stood out to me.
"To state the obvious truth -- one so obvious that I know no law professors who don't acknowledge it, despite the usual official defenses -- there are plenty of good grounds for criticizing legal education."
There are critics, and then there are Critics. It's easy to find professors, as Horwitz says, who can point to problems with legal education, but many of them are soft critics. Their criticism comes in two forms. The first is a critique of a very large problem that they have absolutely no power to fix, did not purposefully contribute to, and shows no sign of being dealt with, so basically a problem they feel no guilt over not working to do anything about. "Oh yes, law school, quite expensive. Someone should consider doing something about it, except of course that there's really nothing to be done. Now excuse me while I return to teaching Law and Culture of Hypothetical Intergalactic Federations and the Prime Directive."
The other type of soft critique is in the areas that are safe for law professors to speak up. You can say that a few hours of clinic work should be mandatory, or that maybe a different class should be rotated into the first year curriculum, or that student run journals could be replaced with peer reviewed journals. And of course the rankings, those are fair game. But, this type of criticism is like Fox News and MSNBC going back and forth about each other's biases. It's the game they've agreed to play because it's safe for them, it doesn't upset the status quo, and no one's job is on the line. None of them like when Jon Stewart says that they're both the problem and the whole news media needs to be bulldozed from left to right (well, Stewart would go right to left).
Same goes for law professors. You can debate within the designated safe zones, but you rarely see people truly calling for the whole damn thing to be torn down so we can rebuild from scratch. None of the reforms would significantly alter the lives of the people calling for them. You're allowed to debate over whether treatment should be in-patient or out-patient, but the problem is a 6 pound tumor that needs to be cut out, and few professors are willing to pick up a scalpel.
"For all the talk about how we are so badly off right now that the legal profession and the legal academy must either change or cease to exist, my suspicion is that even a slight economic uptick will lead us back to being comfortable with roughly where we are right now. That's a downside of revolutionary rhetoric: it subsides easily, and is just as likely to lead to nothing in particular as to something concrete."
To be clear, I believe Horwitz is saying "It's bad that this will probably just blow over," and not the far worse idea of "Don't worry, we can just wait out critics out." But, Horwitz is right. As soon as legal hiring picks up again, once New York bumps salaries to $190,000, talk of reform will probably be gone, and quite likely before anything has actually changed. Not that a recovery is that imminent, but that reform is that slow.
In law there is a serious graveyard problem. It's easy for law professors to look at their graduates who have gone on to do great things, or to see the wonderful opportunities their current students have, and to think everything is just fine and dandy. They tend not to keep up with the people who never found legal work, or who are stuck in a permanent cycle of temporary document review jobs that only qualify as 'legal' on a time sheet, and are as intellectually stimulating as working in a restaurant dish pit (with only slightly better pay).
When the economy picks up again, law firms won't be hiring those of the lost generation, they'll go back to fresh law school graduates. There will be a library wing named for the next big benefactor, but no memorial to the tens of thousands of young lawyers laid off in the recession and unable to bounce back, or the tens of thousands more whose law careers were ended before they even started. They will however get calls from the alumni office asking them to 'give back' to their schools, and letters from the dean bragging about hundred million dollar fundraising goals being reached. Schools will raise funds for their new sponsored chair, or Law and center. They won't have a fundraising campaign to provide debt relief to students who are in fierce competition just to take unpaid jobs.
Most professors probably think that they're doing their job of developing relationships with their students, finding some to mentor, and keeping up with them later in life, and to a degree, they're probably right. I think it'd be hard to find a professor who doesn't have a few favorite students. But, a lot of students just get ignored by the academy. If your school has a faculty-student ratio of 1:10 (as Alabama does), then inside the school right now, to pick up your share, you need to have a sincere interest in 10 current students. If you've been teaching for, say 21 years, you should be keeping up with 10 students currently in the school, plus another 70 alumni. It's 2011, do you know where your graduates are?
Keeping tabs on lawyers is tough. They're miserable, over worked, and stuck in depressing, thankless jobs. Talking to them about it isn't pleasant, for anyone. But, if you are serious about reforming law school, that's who you need to talk to. If the only students you talk to are the ones for whom law school worked, you're not going to see the pressing need for reform. You have to maintain relationships with the students for whom law school didn't work. It's a shitty job, but you know what? Most of your graduates have shitty jobs.
So, enough with the Negative Nancy bit. As promised, a bit of speculation on what school LawProf teaches at. The clues we have are that it is tier 1 (presuming this means top 50), but outside of the top 10. It is also regarded as the top school in its state, so we can rule out any school that shares a state with a top 10 institution, so no one from Connecticut, Massachusetts, California, New York, Illinois, Michigan, Pennsylvania, or Virginia.
That gives us this list of schools:
Washington St. Louis
Florida - Levin
It may be possible to rule out Indiana, Arizona State, BYU and Florida. Each is the top ranked school in its state, but there is a close second place, Notre Dame, University of Arizona, University of Utah, and Florida State. However, there's no real way to tell how "top" is being interpreted. An arguable tie for top in the state might mean you're not the top school, in the strictest since, but no reason to think that level of linguistic accuracy is at play. Notre Dame, U. Arizona, and U. Utah could each actually be added to the list as the "arguable top school." FSU falls outside of the top 50.
There's a better clue though. Top 10 is an odd cutoff. Top 14 (now 15 with Texas) is what most lawyers and law students refer to. Maybe law professors refer to the Top 10, but I suspect the Top 10 was chosen because he is a professor at either Georgetown or Texas, both the top schools in their state (well, Georgetown is in DC, but again, no need for semantics), and both are tied at #14. Or, the T-10/T-14 thing is just a red herring, meant to make us think it was one of these two schools. Assuming even odds at a red herring, Georgetown and Texas both have a 25% chance of being his school, while everyone else on the list comes in at just under 3%. We'll stick with GULC and UT as our guess.
In the end though, I agree with his assessment that being anonymous helps to keep the discussion from being about him, and focuses it on the academy at large.
[Correction: I accidentally overlooked Duke. It was hiding too close to the top 10, I guess. This means that, using the above calculus, there is a 33% chance he is at Georgetown, Texas, or Duke.]