In a surprisingly risky move, ‘Bama lawprof Paul Horwitz offered a draft of his law review article, “What Ails the Law Schools?” for comment at PrawfsBlawg.  To his credit, Horwitz goes well down the road taken by  Brian Tamanaha and Bill Henderson, and even goes so far as admitting to reading Paul Campos’  Inside the Law School Scam blog, though only those parts written by lawprofs.

This is a bold move on Paul Horwitz’s part, particularly when viewed through the prism of the Rick Hills Test (things the old guard would never be caught dead doing, like wearing black socks with shorts). And indeed, the content, aside from the irony that it’s in the form of a law review article (thus guaranteeing that no one outside of the Academy and a handful of us curmudgeons will read it), is supportive of needed change. 

That said, it has two glaring flaws.  The first is that Horwitz incorporates Walter Olson’s Schools for Misrule largely to use it as a foil for Tamanaha’s more scholarly approach, which is just rude.  The second is that Horwitz completely ignores any thought that doesn’t derive from the mouths of babes academics. 

This is what I’ve been complaining about.  The faction of the legal academy that seeks to lead the charge for change is gaining some momentum, but it remains bent on isolating itself from practicing lawyers.  They may be willing to have a discussion amongst themselves, but they will be damned if they let the barbarians through the gates.

Guess what, guys?  You were left in charge of the academy for the last generation and screwed it all up.  How did that tuition increase work out?  What about preparing students to practice law?  And your emphasis on publishing scholarly works about  critical issues in the law in exchange for tenure?  Who’s got a unibrow now, huh?

One of the more risqué moves that Horwitz  subsequently brought to the party was to question the compulsion of law schools to seek elite status and, relatedly, to embrace the use of adjunct professors, meaning lawyers who actually practice law teaching law students who hope to practice law.  Horwitz sets it up with a quote:

Chemerinsky writes:

Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha’s assumption is that relying on practitioners rather than professors to teach more classes won’t compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices. 

Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students. 

In the comments, an anonymous dean agrees, but for different reasons:

As an academic dean, it’s part of my job to hire adjuncts, orient and train them, observe their classes (or review observation reports of full-time colleagues who do so), read their evaluations, and intervene when problems arise. We have well over 100 adjunct faculty. Here’s what I find. We have a very small number of “star” adjuncts who teach core classes year after year. They were hired on the hunch that they would be natural teachers, and that has largely turned out to be true – some of them are as highly rated by students – and as good (not always the same thing) – as our best full-time faculty. However, the teaching of most of our adjunct faculty is inferior to that of full-timers. Many of their classes resemble extended CLE courses. Often they don’t really “teach” in the sense of engaging the students, diagnosing their problems, and working flexibly to respond to what they see before them. No doubt this is partly because they are too busy, partly because they lack the same professional incentives as full-timers, and partly because some of them just aren’t very talented as teachers, whatever their skills as practitioners. My experience has made me a big believer in the value of full-time, professional teachers.

Horwitz, however, proudly strokes his tweedy unibrow:

I also support the more vigorous use of adjuncts. More to the point, I think we already do it at many or most law schools but haven’t fully acknowledged it, and the more we do the more likely we are to fully integrate adjuncts into our community and erect quality controls. But I would like to know the sense of readers, whether professors or students, out there. Is Chemerinsky right that full-time faculty are better teachers than adjuncts, or that adjuncts are far less available to students than full-time faculty? What are your own impressions of adjunct versus full-time faculty, both the positives and the negatives? And how, apart from evaluations, can we get the most and highest use out of adjuncts? 

A fascinating discussion, but for one thing. Where the heck are the practicing lawyer.  You know, the guys who might actually be the adjuncts?  The lawyers who might be in a position to teach law students how to get their sorry butts into court and, you know, win something?  The practitioners who could explain why the Supreme Court’s understanding of how police encounters on the streets don’t always happen in such a sanitary or professional manner?

Who are these stars Chemerinsky talks about?  Are these former solicitor generals, because it’s highly likely that every student in his n00b law school is heading straight for the Supreme Court within a week or two of graduation.  And remind me again of how many lawprofs, after fulfilling their commitment at the Department of Justice or getting a boil on their butt from sitting on a Bank of England chair in the library of Biglaw, gets their teacher training at Trenton State?  When did they become experts at pedagogy?  More practiced, perhaps, but trained? Who are you kidding?

That said, I suspect most practicing lawyers won’t fit smoothly into the academic mold.  We tend not to be very good at tummy-rubbing, which adversely impacts student evaluations.  We don’t readily hand out red balloons for stupid answers.  We lecture, like we open and close to a jury, as a matter of pragmatics.  Some even tell war stories, the bane of CLEs.

But what’s lacking is any imaginative change, such as the hybrid approach of academics coupled with adjuncts to provide both theory and practice in tandem, or maybe in contrast.  There is a world of possibilities once one is opened to the need for improvement, and yet the discussion remains amongst those whose vision is limited to the handful of folks within their circled wagons.

When will the legal academy come to the understanding that it exists to produce lawyers, as a feeder to a profession of people who do the things they only talk about?  Lawyers may be a dumb bunch of neanderthals to you scholars, but those are our replacements you’re training.  And without our input, you’re just going to screw it all up again. 

As painful as it may be to have to engage in a discussion with low brow lawyers, vulgar and banal as we are, we are the future of your students.  There is no plan for the future of law school that doesn’t involve us.