When I joined the legal academy more than 20 years ago, American law schools were the cash cows of higher education. Revenue flowed from law schools to central administrations, and campuses were happy to let law schools oversee themselves. New programs sprang up by the dozens. Lots of new hires each year became the norm, and expensive symposia the order of the day. It never occurred to us that the party would end.
Then it did. In just the last few years we’ve become the Classics Department — too many faculty and too few students. The sharp downturn in law school applications and enrollments — down almost one-third since 2010 — has resulted in a corresponding decrease in the tuition revenues that make up the bulk of law school budgets. Law schools that are part of larger universities have been forced to go hat in hand to the central campus, asking to be relieved of their obligation to contribute financially to university operations.
Law faculties, accustomed to the long-cherished autonomy that came with being a revenue-positive unit of the university, chafe at the new oversight that’s come with asking to be subsidized instead. They cling to an administrative and programmatic infrastructure that is simply no longer financially viable at a time when Moody’s Investor Service characterizes the financial outlook for legal education as “negative.” So why should our universities keep us?
Early law schools were viewed more as trade schools and less as places that existed for the purpose of generating knowledge. When universities began to add law schools in the early 20th century, one famous economist declared, “The law school belongs in the modern university no more than a school of fencing or dancing.” As legal scholar Bill Henderson noted in a recent article, one of the primary reasons universities embraced law schools was that they were obvious profit centers, with large lectures and no expensive laboratories.
And, indeed, modern law schools are hybrids — professional schools whose mission includes professional identity formation and analytical skill-building. But they are also intellectual centers where faculty are tasked with generating knowledge through legal scholarship. Thus, we are neither fish nor fowl to many of our colleagues in other schools on campus. That wasn’t much of a problem when our surpluses represented subsidies to those other schools, but now the power balance has shifted. We’ve got to respond to the new normal by leaving our silos in larger numbers to forge relationships with scholars and administrators outside the law school. To demonstrate our value and to prove that we fit into the core mission of the university, we need to move toward them in ways that we have historically resisted.
First, we need to embrace more rigor in legal scholarship. Most legal scholarship is published in student-run law reviews. Our colleagues in other disciplines scratch their heads when we try to explain this. They are understandably puzzled by the lack of peer review that is the norm in other disciplines. The current system produces lots of ideas but not a tremendous amount of valuable knowledge.
Second, we should rethink the training of legal academics. The vast majority of the legal professoriate has the same training and degree as the practicing bar. Nothing more than a JD is required to teach at an American law school. That three-year curriculum doesn’t include any training in traditional academic research skills like empirical methods. While a full-blown PhD may not be necessary, some additional training in standard research tools like statistical analysis would add intellectual rigor.
Finally, we need to assume the burden borne by our colleagues in other fields and support our own research through outside sources. Law faculty haven’t traditionally had to seek funding from government agencies or private foundations. Part of the value that other schools such as medical schools, bring to the university is the research dollars they represent. If we up the level of rigor in legal scholarship, we can more readily find outside support for our work.
Law school applications are not likely to trend upward in the near future. Demographics are not on our side. The US Department of Education predicts that the largest pool of potential applicants —
But with crisis comes opportunity. The jury is still out as to whether law schools will be able rise to this challenge, but to survive and thrive we’ll undoubtedly need the financial assistance of our broader universities. It’s time to show that we add value — other than cash — to those institutions, too.