Sunday, August 19, 2012

The Survey: Why?

Since Annette Clark’s abrupt resignation the week before last, things have been frenetic here at SLU.  Within 24 hours, the university appointed an interim dean, Tom Keefe, who brought three new variables to the equation (in addition to those leading up to the resignation), namely: 1) the perspective of a successful, practicing alumnus, 2) the perspective of a longtime donor, 3) Brian Tamanaha’s new book. 

Barring some already uncanny connections (Tamanaha also shocked faculty when he was unilaterally appointed interim dean by the President of St. Johns in 1998; Tamanaha’s predecessor at St. Johns, Rudy Hasl, had previously been Dean at SLU), our interim dean recently read Failing Law Schools … and liked it. 

Oh shit.

Brian’s sacred cow killing polemic boasts a new convert … and soon they’ll be lunching.  Now what?  For those of us scrambling to keep things afloat here, what began as an ugly dispute between the Dean and the President is now morphing into something very different, a Tamanaha-esque audit of legal education in its current state, including questions about tuition, faculty resources, and the merits of scholarship.  For anyone who hasn’t read the book, Tamanaha’s argument is basically that law school faculties at non-elite schools, together with the ABA and US News, have distorted the market for law school, pushing everyone to endorse a scholarship model that results in high salaries for inexperienced professors along with excessively high tuition for students, and a de-emphasis on practical skills training.  The solution, argues Tamanaha, is for law schools to adopt a tiered approach, with elite institutions like Wash U continuing along the scholarly model and non-elite schools like SLU adopting a low tuition, practical skills approach.

How convenient.

For me, the implications are profound.  If SLU is to focus simply on doctrinal courses and clinical work, why offer a legal history survey?  I asked Tamanaha about such inter-disciplinary fluff last year and he seemed ambivalent.  What was then an academic question is now, ironically, practical.  To that end, I have decided to do what I can to save legal history at SLU … and to engage Keefe on the merits of Brian’s claims.  It hasn’t been easy.   In 187 concise pages, Tamanaha makes a convincing case that legal education is "failing society."  To his credit, few can deny that US News has distorted incentives, that tuition has grown too fast, and that the ABA has inhibited market innovation.  Yet, the question remains whether faculty scholarship per se is part of the problem.  For example, many of our best scholars at SLU are also our best teachers – as indicated by their student-generated teaching evaluation scores.  One reason for this, I suspect, is that faculty scholarship actually enhances classroom teaching, making it interesting and fresh – very different from classes where faculty continue to use casebooks from 1982.  Finally, our most successful program here at SLU is the Health Law Center, a heavily inter-disciplinary program that has been built, in large part, on scholarship.  Why not encourage non-elite schools to pursue similar niche topics?  Why not measure faculty productivity by linking scholarship to teaching scores?

More problematic is Tamanaha’s point about the relationship between faculty salary and tuition.  Here, his data is hard to refute.  Currently, faculty salaries constitute the primary expense at law schools, and a direct obstacle to lowering tuition.  Further, lowering tuition is important, particularly for non-elite schools.  If SLU could lower its tuition by 5 or 10K, for example, we could ease debt burdens for students and successfully out-compete peer institutions, arguably remaining viable even in the worst of market conditions.  However, it is not clear to me that faculty scholars should be the first to go.  Rather than punishing productive faculty who are out-performing in both teaching and scholarship, it seems to me that the primary problem (and cost), are under-performing faculty who have given up on scholarship, lost interest in teaching, and taken up novel writing.  On this point, the mysterious missing topic in Tamanaha’s book is post-tenure review.  Why?  Brian alludes to his frustration with non-productive, absent faculty in his prologue, but then drops the subject.