By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
All have seen the reports that the ABA Council of the Section of the Legal Education and Admissions to the Bar embraced on August 9, 2013 two plans that would eliminate tenure as an accreditation requirement. As part of those discussions there has also been suggestion of having more flexibility on faculty/student ratios – opening the way to more students per faculty member in classes.
As a JD-MBA, the meaning of these developments on tenure AND
class size just came to me thanks to a comment Professor Larry Cata Backer at Pennsylvania State University Dickinson School of Law made to a post of the picture above I had placed on Facebook. I had seen the picture in a breakfast restaurant in a restaurant in Cheyenne, Wyoming and joked that it might be the new law school pricing model.
Professor Backer stated that a model coming may be a price differentiation model based
on which faculty teaches a class.
Think about that model.
Where I teach there is a standard hourly rate and so
cost/course for a student varies by number of credit hours for a given class. 4
credit hours of Constitutional Law costs more than say 3 credit hours of Contracts.
In a new model, 4 hour Con Law with Prof. A could be Y dollars while it could
be 1.5 Y dollars with Prof. B at the same law school. One can imagine
class size limitation as a way of raising or lowering price. Or time of day of
the class. The immediate analogy is to the price modeling done for airplane
seats or hotel rooms. By capturing the preferences of students one can shift
the mix of prices and offerings. By keeping an overall vision of the yield
across this one can get to tuition increases/decreases WITHOUT a change of basic tuition.
A student could be offered the possibility of having only Distinguished Unviersity Professors teaching sections (at super premium prices). One could pay more for smaller sections.
On the cost side, the most in demand professors receiving the premium pricing
can push to have the school share part of that delta with them. Now stars
can push a Dean for a salary increase or a named chair with more money. Under this new model, the process would be more naked if the professor is privy to the pricing being
done for his/her classes.
In this model, annual raise processes and compensation committee reviews become
a thing of the past or only a part of the process – possibly a minor part. The process becomes this contractual annual renegotiation based on new pricing models always done
to increase yield to the university.
In this model, new faculty mentoring goes the way of training at the top
law firms. Rather, top law schools that do not grant tenure to someone become
the source of cast off teachers to lower tier schools.
In this Darwinian vision, entry teaching jobs are priced low and those in these
positions are loaded with teaching which creates yield in the kind of curve of partner/associate billing that use to be the hallmark of big Law but for which corporate clients have been increasingly resistant.
Academic scholarship of a professor has a paradoxical role in this brave new world. On the one hand, scholarship plays a role in deepening the knowledge and attractiveness of a professor for premium pricing. On the other hand, other status markers may also serve as proxies for quality to allow such premium pricing. Thus, American Law Institute membership or ABA roles, stints in government, Non Governmental Organization work or court case work also might be status developers for premium pricing.
Those who thrive on the Law Review publication vision of professorship quality
with mediocre teaching will be pushed toward those who are both publication and
There is no incentive for mentoring as everyone is a free agent and no cross-subsidization. In fact, the economic interest would be to not even make hires of new professors in order to increase yield/professor and earnings/professor. The process – much like what happened over time in the banking industry at places like the former Manufacturers Hanover – is a process of reducing numbers of professors and increasing the pay of those who are allowed to remain just enough to keep the ones wanted and less than the cost of the two professors that were there before.
The only reward is money and survival – for those survivors. Forget collegiality or education as having an intrinsic meaning. They would become only lip service.
I suspect there would be also a “regression to the mean” on
scholarship to encourage safe research as defined by a Dean as opposed to the current ubiquitous faculty renewal promotion and tenure committees collegial vision of “what counts.” In fact, such a committee could be eliminated as there is no tenure track.
If the faculty member can bring in grants they change the dynamic but they of
course have to please funders – corporate or government – that have an aversion
to status quo challenging work. Private foundations might be more open but they each have their agendas. Thus, thinking and scholarship that conform to the funder’s wishes would be rewarded and dissension is not only discouraged but becomes anathema.
Not sure anyone gives a damn but the squandering of a surplus that operates in terms of academic freedom and the willingness to dare great things in intellectual inquiry even if they displease this or that powerful interest group, the building and nurturing of new faculty, the concept of true collegiality in a law school environment in which all faculty pull together, and the apprenticeship model of student learning and growth are replaced by a vision of all as atomized, individual free agents acting purely as homo economicus.
Instead, what would remain would be a narrowed law school vision in which academic freedom and the meaning of this work would be defined almost exclusively as the freedom associated with what a free market would bear and no public good generation.
This may be a utopia for some and it may be a dystopia for others. But it seems that the logic of what these changes would do could lead us in this direction thanks to the advent of the technology that makes these things possible. If Amazon can do it, the people who provide their technology I am sure are happy to sell such technology to law schools let alone to universities who would begin to look at themselves as yield producing mix masters and less as educators with a special role for the development of knowledge and culture in America and the world.
Every value that has some meaning is reduced to a question of the mighty dollar. Students with a great deal of money can purchase the premium package within a school, while students with more modest means can get a cheaper education in larger classes with less experienced professors. Diversity in the faculty would be driven by student preferences – market preferences – and the majority vision would be the answer as to what was proper diversity. To the extent one deviated from the norm, one would be sanctioned in so many ways unless one can find a protected niche that would remunerate one’s idiosyncratic approaches. Building leaders of tomorrow becomes a process of reproducing further hierarchies rather than helping to shape the river. The strong get stronger and the weak get weaker. And, like in the old song, only the strong survive.