Michael Madison (Pittsburgh; Google Scholar), What's the Use? What Do You Do When You Know Which Way the Wind Is Blowing?:

Ray Stantz (Dan Aykroyd) in “Ghostbusters”: “Personally, I liked the university. They gave us money and facilities; we didn’t have produce anything. You’ve never been out of college. You don’t know what it’s like out there. I’ve worked in the private sector. They expect results.”

The phrase “so what?” is the characteristic response of academics with attitude, a technique for sharply and quickly one-upping colleagues who explain complex social phenomena with elegant analysis. How is this relevant, even useful? Law professors are especially notorious for this sort of thing, perhaps sensitive to the delicate status of law in the modern academy. Law is not history or sociology or economics or information science; faculty are not expected to be credentialed with terminal degrees (PhDs or the equivalent). And on campus, outside of the law building, law professors are often regarded simply as technicians of the code, lawyers without the clients. So “proper” legal scholarship should be prescriptive, even normative. That’s what makes law different and special. To one another, law professors channel Stantz, speaking to Venkman. They expect results.

Last week, I wrapped up my essay on the past, present, and future of law schools. Here is the big picture summary. Like all institutions, “the US law school” has a history. The law school of the imagination arrived, and then began its slide into an economic chasm. The parent university entered the picture; law schools, like all of the schools, colleges, centers, and departments that make up the university, do not exist in an economic, organizational, or cultural vacuum.

So what? …

Is the cavalry going to come to the rescue [of law schools], whether on horses or in tanks?

My own law school happens to be in the middle of a dean search right now – law deans typically serve for three or four years, so Pitt is right on schedule, in practical terms – so I am more acutely aware than ever that both academic administrators, wannabe academic administrators, and “regular” faculty imagine that salvation from austerity is only a phone-call-to-generous-alums away. That’s the fantasy, anyway. What’s the reality? …

It comes down to people. “The rule of law” is people; the institutions that build and sustain the rule of law are people; the purpose of all of this is people. People today, people yesterday, people tomorrow. I have two quotations in my head as I type. One is generous – Dustin Hoffman, in “Tootsie”: “That’s what Southwest General is made of: people.” And the other is critical, or worse – Charleton Heston in “Soylent Green”: “Soylent Green is people.”

But I also remember a conversation that I had with a good friend about 15 years ago, when I explained that I had stopped assessing my students using the stereotypical end of semester “issue spotting” law school exam. I concluded early on in my teaching career, and I still believe, that the concept of that exam has long outlived whatever usefulness it might have had.

(The exam is justified by its defenders even today, implicitly at least, by an early 20th century educational philosophy that judges it fair to expect that law students will, for all practical purposes, learn the analytic content of the law by teaching it to themselves in the course of preparing for a comprehensive exam. That philosophy makes heroic assumptions about pre-law school educational training and post-law school opportunity for professional training that are validated, in practice, much more in the breach than in the observance. The best thing that can be said about the assessment strategy and the burden it imposes on students is that they bear a faint resemblance to things that lawyers in practice sometimes have to use.)

I explained that I ground my different assessments in a style of practical problem-giving that is familiar to me from my own practice experience and that I validate periodically by talking through my assessment techniques with former students, with senior practitioners, and with clients (that is, people in organizations that pay for legal services, both inside and outside their organizations). I give my students short open-ended assignments during the semester; I do not structure them around “issue spotting”; and I mark them (to use the non-US term) aggressively, evaluating writing and rhetorical attributes as well as “legal” discipline.

My friend, a veteran and highly-regarded legal scholar, said: “I can’t do that.” Meaning, I believe: that’s not part of the law professor’s job description and not part of the law professor’s skill set.

As I look at the talent pool of prospective law professors, as I look at how they are being mentored and trained, I see a conceptual doubling-down on that response. I see a lot of energetic, ambitious, and really smart people aspire to academic careers in law yet who have, so far as I can tell, absolutely no idea that they are leaning in to a system that may be eroding beneath them. Some of them even have different sorts of excellent law practice or other “real world” experience, and they are often advised to borrow the analytic core of that experience to use in developing their academic careers – and to jettison much of the rest.

I’m not here to make a case for prioritizing teaching over research in academia, including legal academia, and I’m not here to plead for prioritizing clinical education. Instead, my point is that law schools are the sum of the talent that they recruit as well as of the reputations that they inherit, and their ability to weather the storms ahead (ahead?) will depend not only on their financial resilience, and not only on the tactical and visionary attributes of their leaders, but on the collective imaginative capabilities of the faculty. Those come from many sources, including outstanding researchers as well as outstanding teachers, and from so-called “classroom” or “podium” faculty as well as from the other silos of the contemporary law school — legal writing faculty and clinical faculty. Recruiting new faculty might prioritize imaginative capabilities over following the established pathways of field-specific scholarship or 20th century teaching modes.

Or so I imagine.

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