A kerfuffle has erupted in the normally staid blogosphere of legal academics. Stephen Diamond of Santa Clara Law, a defender of law professor prerogatives, wrote a post blasting the decision to close troubled Whittier Law School and praising the professors' lawsuit. Daniel Rodriguez, Dean of Northwestern Law, responded with an entreaty not to rush to judgment about the merits of the decision, as the Whittier administration may well have facts that bloggers don't. Diamond then returned with a riposte, questioning Rodriguez's motives and speculating that Rodriguez might be out to get Whittier.
The Diamond perspective is illustrative of the larger problem within legal education. The reason law schools are in a crisis is because they failed to shrink to meet the new demand after the 2010 bubble burst. The reason they failed to shrink to meet the new demand is because that would require reducing the size of faculties or reducing salaries. The reason that didn't happen is because law professors have been unwilling to make financial sacrifices to alleviate the large financial burdens of the students that pay their salaries with student debt. The most intransigent group of those professors is often the most senior ones, who are also the highest paid and have a disproportionate number of unproductive members. If professors who had already milked institutions for literally millions of dollars had been willing to make some room as the crisis developed, disasters like that at Whittier could have been averted.
Stephen Diamond and his confreres seem to think that's too much to ask of law professors. They cite the protections of tenure and the self-congratulatory pronouncements of the AAUP and disgraceful lobbying groups like Society of American Law Teachers (SALT). Tenure absolutists like Diamond appear to believe that law professors should never be terminated except after lengthy, deliberative processes, even when a school is spiraling downward as is Whittier. But how long should an institution continue taking tuition money from students at a place like Whittier who have little prospect of earning gainful employment as an attorney or even passing the bar? Although Diamond's view of "law professor exceptionalism" is understandable, none of us is immune to market imperatives, even if it takes a long time.
Let's be clear. The reason Whittier is closing is because of intransigent, highly paid, unproductive law professors hang around for decades even when they haven't published anything or updated their courses since they were doing the Macarena. And the culprits are not even at Whittier specifically. As I wrote before, the insatiable appetite for tuition of vulture professors up the food chain from Whittier is what scavenged Whittier's applicants and picked its bones clean. Those law schools can't do anything about it because tenure absolutists like Diamond seem to believe tenure is the right to an indefinite idle aristocratic existence as a professor. Try to trash an obsolete tenured professor and you will have a lawsuit on your hands, even if he or she has all the contemporary relevance of a VCR. Thus the schools have to take it out on tenure track faculty or law school staff no matter how talented they are and for no other reason than because they don't have tenure.
The plight of Whittier and its students is not the result of any Machiavellian scheme of Dean Rodriguez to thwart a law school on the other side of the country and in a different competitive universe from his own. It is the fault of the rest of us in California law schools who have not responded responsibly to the decline in law school applications, decreased employment prospects for our students, and increased debt.
UPDATE: Brian Leiter is unhappy with what I've written. Unfortunately he misunderstood the point of the argument, as I detail here.
" . . . the contemporary relevence of a VCR."
Well put. Is that an original turn of phrase?
Doesn't matter, I'm stealing it anyway. Sue me.
Posted by: Shirley | 04/26/2017 at 04:00 PM
I came here after reading Leiter's diatribe. I can't comment there, so I will comment here.
I think Leiter is entirely correct in identifying that people need money and that they like their jobs, and that we should be sensitive to that. He is also obviously correct that data is missing.
Other than that, I find his post protectionist and actively harmful.
First, you can't blame someone who is your colleague for lack of collegiality by calling them a blowhard.
Second, politeness aside, the point still stands that it was necessary to downsize the school and in the choice between shutting down the school entirely and showing the door to some well-to-do professors, it is legitimate to consider both options. Yes, this should be done with sensitivity, but one must also consider the terrible loss to hundreds of students and staff members.
As professors I'd like to think we have greater obligation than seeing our next paycheck. We are part of a community that has been very generous to us, and I would like to think that we have some corresponding duties.
Thirdly, "we don't know everything" is not, and never should be, a barrier to discussion (which ideally recognizes its epistemic limitations). This seems trivially correct, but in case it isn't, consider what it would mean for our ability to discuss things like the attack in Syria, NAFTA, Obamacare, and any other social policy.
Posted by: Sdolovosky | 04/27/2017 at 07:27 AM
I don't want to weigh in here anymore than I already have on the intemperate nature of some of the interventions on this issue, but I do want to quarrel politely with Robert's characterization of me as a "tenure absolutist."
True, I do have tenure, I do defend tenure, I do belong to the AAUP and I support their advocacy of shared governance, academic freedom and tenure. I do think Whittier has (arguably as we don't know everything) breached the AAUP Statement on how one is obligated to deal with potential shutdown of an academic unit.
Having said that, California is a state that is unlike most other states - we allow non-law students to try to enter the bar (via mentoring) and we allow non-ABA accredited law schools to train future lawyers. In other words, we do not have a tenure-mandate for entry into the profession. I think that is a good thing and I have said that many times in the great law school debate. I think this open system with multiple access points to the bar is a fact that is (politely?) ignored by many critics of legal education.
Can you succeed in California if you do not go to an ABA accredited school? It is hard but it is possible (I have only anecdotal evidence but it is persuasive.) It turns out that most aspiring lawyers prefer to go to an ABA- accredited law school. Thus, it is unfortunate if we are going to lose such a school. Ironically it probably helps my personal situation but I take no comfort from that fact.
We need to be moving in the other direction with greater affordable access to law school for our very diverse and large California population. I am concerned that a kind of cartel-like pressure may have been the thumb on the scales here where an arbitrary bar passage level combined with political (DOE, ABA, AALS?) intervention led to this troubling outcome.
Posted by: Steve Diamond | 04/27/2017 at 10:31 AM