Reflections on ABA Task Force Report, II: Governance
Meaningful change in legal education will be more or less a bottom up process. That is, it will come from systematic attention to key problems and diligent reform within the law schools themselves, not from edicts of the ABA or other key institutions in this debate. This is not a statement of defiance; after all, there are other stakeholders in play, certainly including the ABA, state bar authorities, state legislatures, and the U.S. Congress. Instead, this is a prediction. The Task Force will disband after their reporting mission is concluded; and interested folks will look to the law schools (and, to a lesser extent, professional organizations such as the ABA Section on Legal Education and the AALS) to see what will happen.
So, this is a long way to get to an observation I want to make about a tension in the Report. It concerns governance. What are the internal sources of the deep problems the Report usefully describes? Does the fault lie principally with the deans? With the faculty? With the universities of which (most of) the law schools are a part? And, correlatively, what is the process by which fruitful reform will happen?
The Report  stresses the “lack of orientation toward the market” and sees this as an impediment to progress. More specifically, they see the universities as ostriches, to wit: “Universities are requiring law schools to become financially self-sustaining, and competition for students and tuition revenue has come to resemble competition in the non-education economy.” Peculiar statement. Surely universities with these expectations are making the plausible (market-based?) assumption that it makes little sense for, say, undergraduates and graduate students in the humanities and social sciences to be cross-subsidizing law schools and thereby removing the incentive to charge a rate of tuition that will support the law school’s endeavors. This may be sensible or senseless, but it doesn’t strike me as revealing a “lack of orientation toward the market.” The Task Force is saying, basically, “universities, you should look out for the well-being of your law students” and make critical economic choices in their favor.
Even more peculiar is the section on p.15 entitled “Lack of Integration of Business and Academic Aspects of Law Schools.” The Report asserts that in law schools “educational services and business considerations are widely seen as in conflict, even in irresolvable conflict.” How so? The business model of law schools rests on judgments about what kind of a program will attract students; the “business” of law schools will, of course, fonder otherwise. If there is a profound mismatch between “educational services” and the cost of attending, consumer students will vote with their feet. Or, to put the point a different way, if there are mismatches between “educational services” and employment outcomes, then prospective students will flee as well. This is fairly straightforward logic, although it is important to note that this “logic” does not in any way justify or defend the practices law schools follow in carrying out their “business and academic aspects.”
But the juxtaposition is what is peculiar here. The ABA Report sketches a model of, on the one hand, faculty members who are running the show, and doing so based upon embedded self-interest and (as they say throughout the Report) a culture of conservatism and obsession with status and, on the other hand, deans and provosts focused relentlessly on economics and business considerations.
So, where is the main source of the problem? Faculty governance in law schools and elsewhere in the academy rests on a view of self-governing community of teacher-scholars responsible for the content, and indeed the vision, of the enterprise. For a variety of sound reasons, this view has come under critique. Decanal governance rests on a somewhat different view, one of responsibility to significant business considerations and, moreover, a view that full-time administrators at the dean’s level and above have not only responsibility, but also expertise. It is this specialization of function that undergirds the model of shared governance. What is unclear to me is whether and to what extent the Task Force Report sees this shared governance model as a principal source of the problems plaguing law schools. Is the answer to ask of faculty a better integration of “business and academic aspects?” If so, what expectations are realistic of a faculty whose fundamental contributions to the enterprise are their teaching, their research, and their service? And are the expectations of university leaders, deans, provosts, presidents and such, to be sensitive to “academic” considerations, thereby checking their impulses and incentives to look only or principally at economic considerations.
The central assumptions underlying the Report’s view are revealed rather sharply in the section on p. 16 titled, provocatively, “Resistance to Change.” Here they say:
“People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools . . . where a substantial part of the organization consists of people who have sought out their positions because of a desire to avoid a market-and change-driven environment.”
What is called for, say the authors, is “a reorientation of attitudes toward change by persons within the law school.”
Perhaps so, but what is the right strategy of governance? Who shall be the agents of change within these resistant institutions? It is telling, at least to me, that the principal preoccupation of the Task Force members is with law school “culture,” or, more specifically, with the “culture” of the modern law professiorate. But real change, meaningful change, will necessitate more than the somewhat pollyannish call for a “reorientation of attitudes,” especially given what the Report admits is a general provision of risk aversion. Change will require decisions imposed from the top of the organization and decisions which emerge, often organically, from throughout the organization.
All this brings us back to the puzzle of governance. Who will decide on change? What will be the exact mechanisms for reform? Is the model of shared governance anachronistic in a world in which adjustments, some truly major, must be made rather soon in order to improve the well-being of our profession and of our students? The Report rightly focuses on WHY change. Yet, some imaginative attention to HOW change will become essential in moving the ball forward.