12 April 2011

Law School Tenure

Once upon a time the way that someone became a lawyer was to "read" law. Basically it was an apprenticeship in which a aspirant lawyer worked at an established attorney's office for a period of years and upon completion the aspirant became a full fledged lawyer. It was a good system for providing street level attorneys. Then came the law schools.

I picture the advent of law schools as an attempt to make things more scholarly and professional. Keep in mind that law has always been one of the four professions - medicine, law, priesthood, & teaching. As such, it was within the province of the upper class and sending young Master Smythe off to study at Harvard Law was a sort of finishing school which gave him a greater view of the legal word before he went into running the family business, or politics, or some such noble endeavor. Then came the ABA.

In the late 19th century, the ABA pushed for the elimination of reading law in favor of law schools. They have been eminently successful at this. In fact, they have managed to exterminate it in all but 4 states: California, Vermont, Virginia, & Washington. This was probably an attempt to limit entry to the profession and ensure the quality of legal training. The side effect has been the alienation of large portions of those who actually practice law and perceive law school as nothing more than a barrier between them and practice. Many practitioners bemoan the fact that law school did not prepare them for the realities on the ground in Pitcairn County and the steep learning curve they are exposed to immediately after passing the Bar and actually beginning the practice of law.

In fact, there has been a steady drumbeat in favor of making law schools more practical. Because of this schools have started programs and clinics for students to shadow prosecutors, work with public defenders, do legal aid work which otherwise would not be available, etc. On the other hand, there has been serious pushback from the law schools which do not want to extend these limited programs to general practicums required for all students. The usual rubric given is that law school is a school of post-graduate education, not a trade school.

Still, whichever side of this debate one falls on, I don't understand how taking tenure away from law professors is supposed to fix it. It has become increasingly popular to think that the removal of tenure will fix everything at any school. Yes, the lack of tenure will allow a school's administration to remove a professor who is off track and spending an unusual amount of time praising Sharia law in his Evidence class ( a personal memory of law school) . On the other hand, it also gives the administration a free hand to remove those professors with whom the Dean or President disagree.  The professor who keeps insisting on pushing racial inequality issues in admissions (and making the school look bad) - gone. The professor who upsets the other faculty members because he is a card carrying member of CATO and publishes an in-your-face blog about law and libertarianism - gone. And, if you think the publish or perish atmosphere at law schools is bad now, just imagine the pressure to publish if everyone is on a 5 year contract, renewable at will of the Dean and recommendation of a faculty committee. The lack of tenure strikes me as a great way to increase political maneuvering amongst the faculty and administration, silence those who have points of view not congruent with the administration's position and goals, and cause professors to concentrate on publishing to the detriment of students.

How does any of that move in the direction of the ABA's stated goal of making law schools more flexible and cost efficient? A law school administration doesn't need to remove tenure in order to make practicums part of the curriculum for all students. If the ABA really wanted to make things more cost efficient, perhaps it should develop an approved reading law curriculum and push States to re-adopt that model.


CJ said...

I am pretty sure Virginia has abolished reading the law. A quick check of the Virginia Board of Bar Examiner's site, http://www.vbbe.state.va.us/faq/faqexall.html, indicates that one must graduate from an approved law school in order to sit for the examination.

Ken Lammers said...

Hmmm . . . thought I had posted this already.

We have at least three people reading law in the county I'm in and one started very recently. One person joined the Bar last year after reading.

Bill Poser said...

Here in Canada there is a sort of hybrid system. After completing law school, a student must spend a year "articling" with a law firm. Only at the end of the articling year does the student take the bar exam.