What kind of faculty would I want in the ideal law school?

I’ve had the experience of serving on four different law school faculties, although my experience at Nebraska and Houston was skewed a bit, because being the dean of a school is quite different from being a typical faculty member.  People treat you differently when you’re the dean, and you’re privy both to more information (from the administration and from behind-closed-doors meetings) and less information (from your faculty colleagues and from those staff members who don’t report directly to you) than typical faculty members get.  I’m firmly convinced that being a former dean is a great training ground for being a good faculty member, because you’ve seen an institution from a bird’s-eye view.

What makes a good law faculty, IMHO?  First and foremost, I think that the best law faculty is one that honestly applauds each member’s hard work and contributions to the community–one that understands that each person’s individual achievement inures to the overall reputation of the school.  Some people think that “way to go” emails are sappy or stupid.  I don’t.  I think that honest praise for someone else’s achievements is a sign of a healthy community that doesn’t view achievement as a zero-sum game. 

A good law faculty is an engagedfaculty.  Not everyone is equally good at all three parts of a faculty member’s job (teaching, research, and service), but the pretenured folks are working hard at all three, and those who have earned their tenure should not be doing less than their pretenured colleagues.  (I’ve often thought that post-tenure review should really boil down to the question of whether someone is doing the same quality and quantity of work post-tenure that it took to earn tenure in the first place.)  In fact, the tenured colleagues should be setting the pace:  researching more (and more complex) work, coming up with new ways of conveying material to their students, serving on more time-consuming committees or doing more high-profile bar work.  In other words, their time commitment to their job shouldn’t go down after tenure.  At the very least, it should remain constant, and (with a nod to the fact that personal life will affect a constant workload, especially when one factors in family responsibilities) over time, it should go up.  I don’t buy the argument that someone who is a great teacher should get a bye on scholarship (or vice-versa), although I’d be willing to see that scholarship change to a type that engages the issues that the “great teacher” is encountering in his ever-evolving courses. 

A good law faculty addresses conflict head-on and not in a passive-aggressive (or aggressive) manner.  It deals with conflict openly but respectfully, recognizing that smart people can see the world very differently.  It doesn’t cut deals behind closed doors, it doesn’t bully the weak or defenseless, and it doesn’t allow bullies to continue without confrontation.  I’ve seen bullies in action, and I can recognize the temptation to let them have their way:  it’s easier, and when someone is truly swamped at work, it takes time and effort to confront a bully.  But bullying, unchecked, poisons a community, and over time, bullying chases good people away.  The people most capable of dealing with bullies are full professors–after all, there is nothing that a faculty bully can do to a colleague who is a full professor.  NOTHING.  The people least capable of dealing with a faculty bully are the pretenured, the staff members, and the administration (anyone want to buy a lawsuit for chilling free speech?).  Dealing with bullies has to be a peer-to-peer confrontation, and it takes courage.

A good law faculty neither coddles students nor ignores them.  It sets high standards for its students, provides them with support to enable them to meet those standards, and holds them to those standards.  (Yes, that means flunking out some of them.)  It makes sacrifices for students, considering curricular needs (e.g., what the students in that particular school should be taking to give them a well-rounded legal education and prepare them for the likely careers that they will encounter) and deciding to teach some courses for the good of the students, even though those courses don’t necessarily match up with the faculty’s particular research interests every time.  The ideal law faculty takes on the community obligation of meeting with students, during (kept) office hours and outside office hours, and supporting student extracurricular activities.  Most of all, the ideal law faculty models professional behavior:  everything from taking on some pro bono cases to behaving professionally inside and outside class.

A good law faculty expects some of its members to be outstanding scholars, some others to be outstanding teachers, and some of its members to be actively engaged with the bar, and it values all of these activities.  It also (and here is a huge bias of mine) values those who tend to be at the bottom of the law school caste system:  those who teach in the clinic and those who teach legal research and writing.  (In my fantasy world, these colleagues would be tenured or tenure-track.)  Both of these groups do more to turn our students into lawyers than do podium teachers, in part because of the substance of what they teach and in part because of the hands-on nature of how they teach.  And they are being Rodney Dangerfielded at too many schools.

Finally, a good law faculty actually has fun doing what it’s doing.  It has a sense of mission and a sense of enjoyment.  It has people who appreciate the fact that they have the type of job that my husband calls “the loophole in life”–a job that lets them write what they want, teach (mostly) what they want (and usually at the times that they want), and do service mostly in the areas that interest them.  There’s a sense of happiness in the hallways.  I don’t mean a Disneyesque, bluebirds-singing-while-Bambi-and-Thumper-frolic unreal happiness, but a genuine sense of well-being.  There’s a sense that life is good there.

OK, do law faculties like this exist?  Maybe not in the truly ideal sense, but in a jazz riff off of the ideal sense, sure.  I’ve taught at one and am teaching at one right now.  I’ve given talks at others, where I’ve heard from colleagues that the atmosphere is good. So it’s possible. But it takes hard work to create such a community and to keep it thriving. Being in a place that chooses to be good is a lot like choosing to be in a good relationship–in part because it is a relationship, albeit of another kind.

What Kind of Institution Do We Want a Law School To Be?

Erwin Chemerinsky and Mike Madison have already gotten the ball rolling with two very thoughtful posts (here and here, respectively).  I want to add my own two cents by questioning the assumption that every law school should change in the same way.  Part of the problem with the condition of law schools today is the level of conformity in legal education.  We have countless schools aspiring to look like the ones at the very top of the pecking order, even though we really don’t need any more clones of those schools.  Why aren’t there more breakaway schools, willing to experiment with different models of legal education?

Some of the answer lies in how closely we’re tied into our accreditation standards, which seem to press us toward a conservative model of legal education.  The more we stick with the tried-and-true, the less problem we’re likely to have with our sabbatical visits.

And yet, change isn’t impossible.  Washington & Lee has decided to try an entirely different type of third year, “entirely reinventing the third year to make it a year of professional development through simulated and actual practice experiences.”  (See here.)  W&L’s announcement of this change has met with mixed reviews, but I find it a promising development, because it gives law school applicants more of a real choice in deciding what type of law school to consider.  Imagine how much more real choice applicants would have if other law schools decided to alter their curriculum in other dramatic fashions? (And, in my more snide moments, imagine how much more difficult it would be to rank law schools ordinally if the schools truly were different in kind from each other?)

 

Personally, my ideal law school would actually require certain courses pre-matriculation, in order to give its students a leg up on understanding law as a social science.  I’d like to see applicants have to provide transcripts with courses in U.S. history, psychology, economics, sociology or anthropology, philosophy, and accounting, so that they could come to the study of law with a greater appreciation of the context in which law is shaped.  I’d like to see transcripts with more intensive writing experiences, because many students come to us woefully unprepared to communicate their thoughts in writing.  If medical schools can require applicants to take certain courses before matriculation, why can’t law schools do the same?

 

In some of my other writing, I’ve suggested that the third year of law school (at least at some schools) could be a year that teaches students that law is just one way of problem-solving and that other tools besides law (economics, psychology, sociology, etc.) can solve some of those problems at least as well as, if not better than, law can.  Perhaps W&L’s “practice year” would be one way of demonstrating this idea.  Perhaps Northwestern Law’s third-year mix of law students and MBA students is another way of teaching the same thing.  (That mix also teaches law students that the risk tolerance of law students is significantly different from the risk tolerance of most clients—an important lesson in the post-Enron world.)  These two very good schools are demonstrating that there are other ways of conceiving of legal education besides the traditional model.  Those of us who care about legal education are creative people, but we also tend to be risk-averse as a group.  We need to fight against that tendency if we’re going to have legal education move forward.  The way that I think about legal education is a bit like the way that Woody Allen’s character, Alvy Singer, thought about relationships in Annie Hall:  A relationship, I think, is like a shark.  You know?  It has to constantly move forward or it dies.  And I think what we got on our hands is a dead shark.”  (For the Annie Hall quote, see here.)

In a future post, I’ll describe some characteristics of the faculty of my ideal law school.