Law schools are predominantly financed by student tuition payments, yet a significant proportion of their expenditures do not directly benefit students, but rather support faculty research. Moreover, faculty research increasingly tends to be remote from law schools' pedagogic role. Thus that great bete noir of economists the cross-subsidy seems to be operating in force - students are paying for something that does not benefit them, and they are being compelled to do so by means of an intra-institutional transfer that they cannot control. This would appear to correspond to most people's notion of unfairness. This article has two purposes. The first is to identify the nature of the cross-subsidy with more precision, and the second is to explore the question of its possible justification or correction. It turns out that the cross-subsidy is a good deal more complex than it initially appears, and, as a result, a good deal less unfair. There is nonetheless a residual unfairness toward students that should be remedied. The remedy, however, does not involve reducing research costs or altering research to relate more closely to the curriculum, but rather lies in altering the curriculum to correspond more closely to existing faculty research.
What does this mean for legal historians? Rubin's curricular reform ideas might, at first glance, seem in tension with scholarship that doesn't have an immediate, practical pay-off. But this is not the case.
For Rubin, in spite of 20th century innovations in legal thought,
the Langdellian curriculum has staggered on...despite ongoing criticism, like a figure, whether hero or villain, from an action movie who keeps fighting on after absorbing an inconceivable number of apparently mortal injuries. As a result, scholarship and teaching have increasingly diverged.
The solution is not to steer researchers toward traditional common law subjects, but instead to "change in the curriculum so that it corresponds more closely to the up-to-date, intellectually stimulating research that faculty members are pursuing." While much curricular reform focuses on the first year, Rubin would instead focus on the third year, recommending an innovation that I think many legal historians would find compelling. He reimagines the third year, when many students have become bored with law school, as legal education's
pinnacle or capstone, the peak experience toward which the first two years of the program are directed. In the case of law school, this means that the third year at a research oriented institution should engage the students in research. Each student should be enrolled in a course that is organized around, or at least inspired by, the research program of the faculty member who is teaching the course. They should carry out their own research program as part of their participation in this course. To begin with, this would bring students into contact with some contemporary developments in law and legal practice. While such courses would necessarily be limited to a relatively narrow subject, the student would at least be given a sense of current developments in the field. Second, and probably more important, courses of this sort would provide students with active learning opportunities. Rather than sitting in large lecture halls, or even around a seminar table, for one more year, students would be conceiving, organizing, and carrying out a sustained project under the supervision of the faculty member and within the ambit of the faculty member’s own research agenda.
This may sound self-indulgent for faculty, but Rubin argues that it would provide students with a more "engaged, interactive educational experience" than traditional large courses. Further,
there is a vast range of other skills that a good lawyer must possess and that cannot be taught in a lecture format. Lawyers need to be able to gather facts, to organize large bodies of material, and to analyze this material in accordance with some theme or purpose. They need to be able to present the material, and their analysis of it, to their colleagues in an effective manner. They need to be able to critique a colleague’s work in a searching, rigorous manner, while remaining on good terms with that colleague. These are all skills that can be taught in a seminar format where students do a serious research project and present it in the class.
This is a reform agenda that legal historians and other interdisciplinary scholars need not be afraid of. Instead, Rubin aims to bring to legal education just the intensive sort of educational experience we enjoyed in our Ph.D. programs.
More details are in the article, which can be downloaded here.