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Archive for the ‘Legal Education & Pedagogy’ Category

Dave Farrow and Allen Mendenhall on the High Costs of Legal Services

In American History, higher education, Law, Law School, Legal Education & Pedagogy on June 26, 2019 at 6:45 am
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The Moral Imagination and the Common Law

In Arts & Letters, Conservatism, History, Humanities, Law, Legal Education & Pedagogy, Philosophy on June 12, 2019 at 6:45 am

I thought I knew a lot until I had kids. One hot Sunday summer afternoon in Alabama, when I was driving my family home from church, my son, Noah, then five, asked about the origin of roads. From a father’s perspective, this curiosity was a sweet, welcome alternative to questions about where babies come from. I explained with resolute immodesty how road construction operated, under what timelines and conditions, and using which tools and implements. I smiled, thinking the matter settled, and turned up the radio.

Then my son, in his little-boy manner and vocabulary, objected that his inquiry was, in effect, less about the technicalities of engineering or labor and more taxonomical or definitional in concern. Why wasn’t the trail near our home, trodden beneath innumerable feet, a road?  Why weren’t the sidewalks in downtown Auburn roads? What made a road a road? How did construction workers know where to build roads? From whom did they take orders and derive their authority? Could he, Noah, build a road if he wanted to? How could anyone build a road from here to there if the property along the way belonged to someone else, even multiple owners?

I turned down the radio.

This perplexing interrogation led Noah—who, again, possessed merely the lexicon and sophistication of a child—to more grating appeals for clarity and qualification. What, he wondered, empowered governments to authorize the creation and maintenance of roads? Were there roads beyond government control? What was the difference between public and private? What was government? Where did it come from? Why did we have it?

The moment I caught myself trying to explain social contract theory to a five-year-old, I realized I had been not only humbled and humiliated but overmatched, not by Noah necessarily but by the impressive sum of human ignorance about everyday experience and activity.

Though not impulsively so, I’m reflectively Hayekian and thus managed to articulate to Noah my abiding belief in the limitations of human knowledge, the selectivity of human memory, and the fallibility of human intuition, and to emphasize the importance of subjecting our most cherished principles to continued testing so they may be corrected or refined as we mature in our understanding. Roads could not be the inevitable product of one man’s awesome imagination working in isolation; rather they were the concrete product of aggregated, uncountable ideas, applied variously depending on local circumstances. This fancy way of saying “I don’t know” seemed to satisfy Noah, who grew quiet about his objections and marvels and turned his attention elsewhere.

I, however, couldn’t quiet my restless urge for the kind of comforting certitude that ultimately cannot be achieved. It wasn’t roads but knowledge itself and its embodiment or expression in the law—in particular in our Anglo-American common-law tradition—that suddenly bothered and intrigued me. Noah’s inquisitiveness had reminded me of the opening lines to a learned book on the common law:

Legal history is a story which cannot be begun at the beginning. However remote the date at which we start, it will always be necessary to admit that much of the still remoter past that lies behind it will have to be considered as directly bearing upon the later history. […] [T]he further back we push our investigations, the scantier become our sources, and the more controversial and doubtful their interpretation.[1]

The common law is not just an historical and governmental system for resolving disputes through courts and case precedents, traceable to eleventh-century England and adopted by the United States and nearly half of the countries on earth, but also a mode of preserving and transmitting knowledge about the human condition that develops out of ascertainable facts rather than abstract speculation. It’s bottom-up, reflecting the embedded norms and values of the community as against executive command or legislative fiat.

To continue reading about the common law and the moral imagination, please download the remaining essay here at SSRN.

 

[1] Theodore F. T. Plucknett, A Concise History of the Common Law 3 (1956) (Indianapolis: Liberty Fund, 2010).

Prospective Law Students Should Consider These Questions

In Law, Law School, Legal Education & Pedagogy, Teaching on June 5, 2019 at 6:45 am

An earlier version of this post appeared here at Faulkner University’s blog.

When you’re visiting law schools, remember to ask questions about the faculty and class size. Law school is more than just classrooms and libraries: It’s your home for three years, and you’ll be connected to your law school throughout your professional life.

To make sure you’re choosing the institution that’s right for you, be sure to ask these less common but crucial questions during your visit.

Does the law school offer scholarships after the first year?

Most law schools consider all new students for merit-based scholarships based on their LSAT scores, undergraduate GPAs, and other criteria such as demonstrated leadership and service. During your visit to a law school, admissions professionals will probably tell you about their merit-based scholarships and the amount you might expect to receive as an incoming student. But in most cases, those awards are guaranteed only for the first year of law school—so it’s important to ask whether similar scholarships are also available for the second and third year. At Faulkner Law, for instance, we review each student’s record at the end of the academic year to determine scholarship eligibility for the following year.

How does the law school help students secure internships or employment?

Getting into law school is an important achievement, but most people expect it to be just one more step on the path to securing the job they want. Having a J.D. after your name, however, doesn’t automatically open doors to employment; most law students secure internships while in school and rely on their law school’s career services to help them network and find employment.

At Faulkner Law, we place more than 200 students in internships every year. Our post-graduate employment rate is close to 90 percent and trending upward, and our employment rate for JD-required positions is 70 percent.

What’s it like to live here?

Most law students hope to enjoy cultural attractions, a vibrant restaurant scene, and a safe and friendly environment outside of school. Find out about the culture and community near the law school you’re considering. Consider what forms of entertainment will be available to you during the next three years when you’re not attending class or studying.

At Faulkner Law, we want our students to succeed, not just professionally but also personally and spiritually. The River Region is vibrant, and the revitalized downtown in Montgomery features several restaurants, minor-league baseball, parks, concerts, museums, historic landmarks, and tourist attractions. Many students relocate here to attend law school and then choose to make Montgomery their permanent home.

What is the law school’s vision for the future?

Law school is a choice for life, not just for three years. Faulkner Law equips students to become competent, reliable attorneys with a passion for learning and service. Our graduates dedicate their careers to solving problems, representing clients with vigor and diligence, improving lives and institutions, and cultivating an ethic of candor, civility, integrity, and professionalism.

A (Mostly) Misbegotten Attempt to Take Scalia’s Measure

In Academia, Arts & Letters, Books, Conservatism, Essays, Humanities, Judicial Activism, Judicial Restraint, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Politics, Scholarship on May 15, 2019 at 6:45 am

This review originally appeared here at Law & Liberty.

On Wednesday [editorial note: this review was published on February 11, 2019] it will be exactly three years since Justice Antonin Scalia passed away, yet his towering presence is still felt. Given the extent of his influence on legal education and his popularization of both originalism and textualism, it is no surprise to see a growing number of books and conferences addressing the importance of his legacy. One such book is The Conservative Revolution of Antonin Scalia, a collection of disparate essays edited by the political scientists David A. Schultz of Hamline University and Howard Schweber of the University of Wisconsin-Madison and published by Lexington Books.

No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. Nor are the essays  universally admiring. On the contrary, most of them are critical. “Was Antonin Scalia a sissy when it came to administrative law?” Schultz asks—unprofessionally, in my view. Mary Welek Atwell of Radford University scrutinizes Scalia’s opinions in cases about race and gender, highlighting his apparent “comfort” with the “patriarchal, hierarchical” elements of the Roman Catholic Church, and grandly declaring that Scalia “sympathized more with those who were trying to hold on to their privilege by excluding others than with those who sought to be included.”

Is that so? And is it so that Scalia, in the words of contributor Henry L. Chambers, Jr., of the University of Richmond School of Law, “read statutory text relatively simply”? What a relatively simple claim! Scalia’s Reading Law (2012), coauthored with Bryan Garner, outlines principles or canons for interpreting statutes and legal instruments; it has become a landmark in the field, having been cited in hundreds of cases and over a thousand law review articles in the seven years since its release. While it aims to simplify hermeneutics, providing sound methodological guidance to interpreters of legal texts, it is by no measure simple.

Scalia “might be our most Machiavellian Supreme Court justice,” the University of Wyoming law professor Stephen M. Feldman submits. “Scalia sneered, as was his wont,” he writes in an aside. Less ad hominem but equally breezy assertions by Feldman: that originalism “is most often applied in practice as a subterfuge for conservative conclusions,” and that, in any case, “Scalia’s implementation of originalism failed on multiple grounds.”

Most of the critiques in this book, in contrast to those just cited, are responsibly researched and tonally reserved. No reasonable person expects scholarly assessments of a controversial jurist’s legacy to be an exercise in hagiography. On the other hand, such assessments should avoid coming off like intemperate outbursts.

The 18 contributors come from a range of disciplines. Only three are law professors; two are professors of criminal justice; two are doctoral candidates; and one clerks for a federal judge. Equally diverse are the essays’ methodological approaches. The most distinctive belongs to Timothy R. Johnson, Ryan C. Black, and Ryan J. Owens, who in a coauthored chapter attempt to examine empirically—with graphs and figures—Scalia’s influence on the behavior of his Court colleagues during oral argument. Whether they succeed is a determination better left to experts in quantitative research.

Scalia the Liberal?

Coauthors Christopher E. Smith of Michigan State University and Charles F. Jacobs of St. Norbert College consider Scalia’s conservatism in the context of the criminal law. They do not define what they mean by “conservatism.” Before long one gathers that their understanding of it is woefully limited. They conclude, with apparent surprise, that “in nearly 1 in 6 decisions, Scalia cast his vote in support of criminal rights.” If Scalia’s method involved choosing results and then supplying reasoning to justify them, then perhaps some of his opinions regarding the Fourth Amendment might seem uncharacteristically “liberal.” Of course, Scalia’s originalism and textualism do not presuppose conclusions; they demand, instead, a rigorous process of determining the meaning and semantic context of written laws. This process may lead to “liberal” or “conservative” outcomes that do not align with a judge’s political preferences but that the words of the law necessarily require.

The process is conservative even when it yields “liberal” results.

“One might expect,” the editors say of the Smith-Jacobs chapter, “that as a political conservative Justice Scalia would have authored opinions that gave the greatest possible latitude to agents of government.” Such an obtuse claim is enough to cast doubt on Schultz and Schweber’s understanding of conservatism and, hence, of their ability to critique the claims about conservatism that one comes across throughout the book.

By contrast, the essay by Jesse Merriam of Loyola University Maryland, “Justice Scalia and the Legal Conservative Movement: An Exploration of Nino’s Neoconservatism,” stands out as historically informed on matters of conservatism—including the relationship between Scalia’s jurisprudence and the so-called conservative movement as represented by think tanks, politicos, journalists, and academics.

James Staab of the University of Central Missouri asks in the final chapter whether Antonin Scalia was a great Supreme Court justice. Staab answers no, basing his finding on seven factors:

  1. “length of service, including the production of a large body of respected judicial work”;
  2. “judicial craftsmanship, or the ability to communicate clearly and memorably in writing”;
  3. “influence, or whether the judge left an indelible mark on the law”;
  4. “judicial temperament, or the qualities of being dispassionate and even-tempered”;
  5. “impartiality, or the qualities of disinterestedness and maintaining a strict detachment from partisan activities”;
  6. “vision of the judicial function, or the proper role of judges in a constitutional democracy”; and
  7. “game changers, or whether the judge foreshadowed the future direction of the law and was on the right side of history.”

This factoring raises the expectation of a quantitative methodology, yet the chapter lacks any mathematical analysis. Regarding the first criterion, Staab simply offers several paragraphs about Scalia’s years of service and many opinions, discusses the jurist’s extrajudicial writings, and then declares: “In sum, the body of judicial work produced by Scalia is truly impressive. It is safe to say that he easily satisfies the first criteria [sic] of what constitutes a great judge.”

Regarding the second criterion, Staab mentions Scalia’s oft-celebrated writing skills and then lists some of the many memorable Scalia opinions, deducing from this evidence that “Scalia again receives the highest of remarks.” He adds that the quality of Scalia’s opinions “has sometimes been compared to those of Holmes, Cardozo, and Robert Jackson—a comparison I would agree with.” Why should Staab’s agreement or disagreement have any bearing? Where are the statistical and computational values that back up his personal judgments? Staab sounds like someone unconvincingly pretending to do quantitative research. Are his factors the best measure of greatness?

The Vagaries of Balancing Tests

What of Staab’s negative verdicts? He questions Scalia’s temperament and collegiality, pointing to his “strident dissenting opinions” and “no-holds-barred opinions.” These opinions, says Staab, “struck a partisan tone,” and the jurist’s association with the Federalist Society (gasp!) “compromised his impartiality.” Staab suggests that Scalia should have recused himself in Hamdan v. Rumsfeld (2006) and Cheney v. United States District Court (2004). He qualifies as “unprincipled” Scalia’s opinions in the areas of the veto power, state sovereign immunity, the incorporation doctrine, regulatory takings, and affirmative action. He alleges that a “major problem for Justice Scalia’s legacy is that his originalist jurisprudence was on the wrong side of history” in the sense that several of his views did not win out. Scalia was forced to dissent in controversial cases with sweeping results for the country.

Staab’s checklist reminds me of the Scalia line about the utility of balancing tests, or the lack thereof. “The scale analogy is not really appropriate,” he wrote in Bendix Autolite Corporation v. Midwesco Enterprises(1988), “since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.”

Whatever criteria you use to evaluate greatness, this edition is unlikely to qualify.

Taxis and Cosmos: A Clarifying Table

In Arts & Letters, Austrian Economics, Books, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Libertarianism, Pedagogy, Philosophy, Western Philosophy on April 3, 2019 at 6:45 am

This table is meant to clarify the distinction between taxis (“made order”) and cosmos (“grown order”), two forms of order as described by F. A. Hayek in Law, Legislation and Liberty: Volume One, Rules and Order (The University of Chicago Press, 1973). According to Hayek, “Classical Greek was more fortunate in possessing distinct single words for the two kinds of order, namely taxis for a made order, such as, for example, an order of battle, and kosmos for a grown order, meaning originally ‘a right order in a state or a community.’”[9]

Taxis Cosmos
Made Order[1] Grown Order[2]
Constructionist[3] Evolutionary[4]
Exogenous[5] Endogenous[6]
Planned / Designed Spontaneous
Simple Complex
Concrete Abstract
Purposeful Purposeless[7]
Centralized power Dispersed / weakened power

 

[1] “The first answer to which our anthropomorphic habits of thought almost inevitably lead us is that it must be due to the design of some thinking mind. And because order has been generally interpreted as such a deliberate arrangement by somebody, the concept has become unpopular among most friends of liberty and has been favored by authoritarians. According to this interpretation of order in society must rest on a relation of command and obedience, or a hierarchical structure of the whole of society in which the will of superiors, and ultimately of some single supreme authority, determines what each individual must do.” Hayek, Law, Legislation and Liberty at p. 37.

[2] “The grown order … is in English most conveniently described as a spontaneous order.” Hayek, Law, Legislation and Liberty at p. 37. “Since a spontaneous order results from the individual elements adapting themselves to circumstances which directly affect only some of them, and which in their totality need not be known to anyone, it may extend to circumstances so complex that no mind can comprehend them all. … Since we can know at most the rules observed by the elements of various kinds of which the structures are made up, but not all the individual elements and never all the particular circumstances in which each of them is placed, our knowledge will be restricted to the general character of the order which will form itself. And even where, as is true of a society of human beings, we may be in a position to alter at least some of the rules of conduct which the elements obey, we shall thereby be able to influence only the general character and not the detail of the resulting order.” Hayek, Law, Legislation and Liberty at p. 41.

[3] “[This] view holds that human institutions will serve human society only if they have been deliberately designed for these purposes, often also that the fact that an institution exists is evidence of its having been created for a purpose, and always that we should so re-design society and its institutions that all our actions will be wholly guided by known purposes.” Hayek, Law, Legislation and Liberty at p. 8-9.

[4] “[This] view, which has slowly and gradually advanced since antiquity but for a time was almost entirely overwhelmed by the more glamorous constructivist view, was that that orderliness of society which greatly increased the effectiveness of individual action was not due solely to institutions and practices which had been invented or designed for that purpose, but was largely due to a process described at first as ‘growth’ and later as ‘evolution,’ a process in which practices which had first been adopted for other reasons, or even purely accidentally, were preserved because they enabled the group in which they had arisen to prevail over others.” Hayek, Law, Legislation and Liberty at p. 9.

[5] “[The] authoritarian connotation of the concept of order derives … entirely from the belief that order can be created only by forces outside the system (or ‘exogenously’).” Hayek, Law, Legislation and Liberty at p. 36.

[6] “[The authoritarian connotation of the concept of order] does not apply to an equilibrium set up from within (or ‘endogenously’) such as that which the general theory of the market endeavors to explain.” Hayek, Law, Legislation and Liberty at p. 36.

[7] “Most important … is the relation of a spontaneous order to the conception of purpose. Since such an order has not been created by an outside agency, the order as such also can have no purpose, although its existence may be very serviceable to the individuals which move within such order. But in a different sense it may well be said that the order rests on purposive action of its elements, when ‘purpose’ would, of course, mean nothing more than that their actions tend to secure the preservation and restoration of that order. The ‘purposive’ in this sense as a sort of ‘teleological’ shorthand’, as it as been called by biologists, is unobjectionable so long as we do not imply an awareness of purpose of the part of the elements, but mean merely that the elements have acquired regularities of conduct conducive to the maintenance of the order—presumably because those who did act in certain ways had within the resulting order a better chance of survival than those who did not. In general, however, it is preferable to avoid in this connection the term ‘purpose’ and to speak instead of ‘function’.” Hayek, Law, Legislation and Liberty at p. 39.

[8] All citations in this post are to this version of the book.

[9] Hayek, Law, Legislation and Liberty at p. 37.

Interview with the James G. Martin Center regarding English Departments, Higher Education, Marxism, and Legal Education

In Arts & Letters, Economics, higher education, History, Humane Economy, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Scholarship, Western Philosophy on March 13, 2019 at 6:45 am

Focus on Reining in the American Bar Association

In Academia, higher education, Law, Law School, Legal Education & Pedagogy, Politics, university on December 3, 2018 at 9:25 am

This post originally appeared here at the blog of the National Association of Scholars.

What the 2018 Election Means for Higher Education

When the 116th Congress is seated in January, political control will be divided, with Democrats holding a majority in the House and Republicans in the Senate. What does this mean for higher education? We asked a few NAS members to weigh in.

What does the 2018 election portend for higher education?  The question might be reframed this way: having lost their majority in the House of Representatives, what can Republican lawmakers expect to accomplish in the field of higher education between 2018 and 2020? The answer, in short, is “not much.”  So long, for now, to the PROSPER Act and the reauthorization of the Higher Education Act. Perhaps with some experience in Congress, however, Alexandria Ocasio-Cortez will learn what makes up our three branches of government—a minor gain for education in this country, but a gain nonetheless.

One promising development involves the Department of Education’s proposed Title IX guidelines that would amend rules regarding sexual-assault adjudications on college campuses to restore certain due-process rights of the accused. These guidelines have now entered a 60-day period of public comment; if they are adopted, they will go into effect in 2020.

Will Betsy DeVos remain the Secretary of the Department of Education through 2020?  Given the number of dismissals and resignations among President Donald Trump’s political appointees, the question is worth asking.  And if DeVos is out, who is in?  President Trump reportedly offered the job to Jerry Falwell Jr., the president of Liberty University, before approaching DeVos.  Larry Arnn, the president of Hillsdale College, was allegedly in the running as well.  But would leaders of this stature and reputation give up the success they enjoy at their present institutions to take a position they might hold for no more than a year?  Not likely.

If I had one suggestion for the Department of Education going forward, it would be to strip the American Bar Association of its accreditation authority over law schools, leaving state supreme courts and state bar associations to determine whether graduates of any given law school may sit for the bar examination in their state. This move would require pressure from law schools, state legislators, and state supreme courts. It could unite conservatives and progressives in common cause. As I have stated elsewhere, “In this period of political rancor, reining in the ABA should appeal to both the Left and the Right, the former on grounds of racial diversity and fundamental fairness and the latter on grounds of decentralization and economic freedom.” There’s much more to say about this issue (see, e.g., here). My hope is that it becomes part of the national conversation.

Carnegie Classifications—What’s All the Fuss?

In Academia, America, Humanities, Law, Law School, Legal Education & Pedagogy, liberal arts, Pedagogy, Scholarship on June 27, 2018 at 6:45 am

This article originally appeared here at the James G. Martin Center for Academic Renewal.

Dartmouth falls out of an exclusive group,” declared a 2016 headlinein The Washington Post just days after the Carnegie Classification of Institutions of Higher Education released its 2015 classifications that moved Dartmouth College from the R-1 (that is, Research 1) to the R-2 (Research 2) category. “A Key Survey Indicates that Dartmouth May Be Losing Its Elite Status,” reads another headline.

A school like Dartmouth hardly risks dropping out of “the elite,” but why would anyone say that?

Dartmouth’s response to the perceived downgrade was muted. “We don’t know what new algorithm they are using to classify institutions,” wrote Diana Lawrence, a university spokeswoman, “so we can’t replicate the data.” Lowered morale since the 2015 classification allegedly has resulted in the closing of Dartmouth’s Gender Research Institute.

Indiana University, which now runs the Carnegie Classifications, recently began reclassifying schools every three rather than every five years. The next round will appear later this year. University leaders have been silent about this development, but according to Doug Lederman, “the foundation’s sorting…sends some institutions into fits of anger or excitement over perceived insult or approval for how they are classified compared to their peers.”

As anxious university administrators await this release, it is worth asking what these classifications mean and why is the R-1 designation so coveted?

Carnegie classifies institutions by type: doctoral universities, master’s colleges and universities, baccalaureate colleges, baccalaureate/associate colleges, associate’s colleges, special focus institutions, and tribal colleges. The research designations everyone talks about (R-1, R-2, R-3) apply only to universities classified as doctoral universities. R-1 indicates “highest research activity,” R-2 “higher research activity,” and R-3 “moderate research activity.”

To be classified as a doctoral university, an institution must award at least 20 research-based doctoral degrees per year. Professional doctorates like a law degree do not count. Among the schools that meet this classification, research productivity is measured by two indices: the number of research doctorates awarded plus research staff, and the amount of research expenditures, scaled to the number of faculty.

Carnegie measures research and development expenditures in science and engineering (S&E), humanities, social science, STEM, business, education, public policy, and social work. These classifications are categorical rather than ordinal: they fit universities within certain descriptive categories but not in order of best to worst. The point of the classifications is not to grade but to group universities according to their program offerings and research expenditures.

Thus, administrators should not treat moves from R-1 to R-2 as demotions or devaluations. After all, quality of education and quality of research cannot be reduced to raw figures by totaling the number of faculty, the number of doctoral programs offered and doctoral degrees awarded, and the amount of money invested in research. These figures account principally for funding and size, not the amount of published material (in peer-reviewed journals or otherwise) and certainly not the excellence of scholarly research. Nor do they account for teacher quality or educational outcomes for students.

Nevertheless, schools moving from R-2 to R-1 celebrated the 2015 Carnegie classifications in press releases. For example, “It is no secret that Ole Miss is one of the top research schools in the south,” read a statement by the University of Mississippi, “but being recognized on a prestigious national level is a true achievement.”

Given the focus of the Carnegie classifications, one wonders why they command such attention. Could not universities game the system, so to speak, by hiring more faculty, throwing money at programs, and graduating more doctoral students in certain disciplines? The answer, of course, is yes—but that does not diminish the standing the Carnegie classifications enjoy.

The reason they are valued is because the Department of Education and U.S. News and World Report, among others, rely on them. (U.S. News explains its methodological reliance on the Carnegie Classifications here). Indirectly, then, the Carnegie classifications are used for rankings and grant eligibility.

Rather than coming up with its own categories, U.S. News relies on Carnegie classifications for its list of national universities, national liberal arts colleges, or regional universities. If, say, Furman University wanted to be ranked alongside Princeton, Harvard, Yale, and MIT, it must increase the number of research doctoral-degree programs it offers to account for Carnegie’s metrics.

 

The Problem with the Carnegie Classifications

The main problem with the Carnegie classifications is that they create the incentive for educational malinvestment on a grand scale. When a university’s administration seeks to move from R-3 to R-2 or R-2 to R-1, they churn out more doctorates and hire more faculty than the market demands.

That is most notable in the humanities. The number of humanities doctorates awarded has reached record highs while the job market for humanities professors has shrunk. Young people pursuing these doctorates often assume substantial debt only to find themselves with no university employment after graduation. Carnegie in effect rewards universities for conferring an excessive number of research doctorates, thereby contributing to the systemic problem of graduate-student debt and the dearth in faculty hiring, and possibly to the diminishing quality of humanities research.

The Carnegie classifications also fail to account for the quality of scholarly research, or for true faculty productivity. They measure aggregate numbers of people and investment but not the number of peer-reviewed papers published by members of a department or the value or effectiveness of those papers.

Therefore, the Carnegie classifications should really be considered funding categorizations, not research categorizations. Yet too many people treat them as indicators of the productivity of a university faculty or the worth and excellence of research content.

The Carnegie classifications are not per se bad or unhelpful. It is just that they are being misinterpreted and misused to the economic detriment of higher education writ large. Donors, administrators, journalists, university rankers and evaluators, and other stakeholders at universities should monitor the Carnegie classifications and use them as needed to shape the goals and identities of institutions. But these classifications should no longer be considered proxies for the measure of research quality.

Moreover, Carnegie should drop the phrases “highest research activity,” “higher research activity,” and “moderate research activity” that accompany the R-1, R-2, and R-3 label because they are misleading: the Carnegie rankings do not measure research activity but research expenditure. It could be that a university spends money on research without actually yielding research. That would be a poor investment that Carnegie seems, strangely, to value or reward.

 

The Role of Law Schools in the Classifications

My fellow law-school administrators can do little if anything to help their home institutions that are ranked as doctoral universities move from R-2 to R-1 or R-3 to R-2. (I work at Thomas Goode Jones School of Law, whose home institution, Faulkner University, is classified as a master’s college or university according to Carnegie.) J.D. degrees are not research degrees, although a few law schools (Yale or Berkeley among them) offer Ph.Ds in law, which do contribute to the sum of research degrees offered. No matter how productive a law faculty is, its research output will not affect the home institution’s Carnegie classification.

By and large, deans at law schools have not spent much time thinking about the Carnegie classifications. The future, however, may present different challenges and opportunities for law-school deans. “[W]e are planning a change that will reshape membership of the Doctoral Universities and Master’s Colleges and Universities categories,” Carnegie states on its website. “We are doing so to accommodate Doctor’s degree—professional practice within our methodology. These degrees . . . have previously not been considered as part of the Basic Classification Methodology.”

Therefore, by adopting Ph.D. or J.S.D. and S.J.D.  programs (which are research-based and require dissertations for completion), law schools can nudge their universities in the direction of a higher Carnegie research classification. That might seem an attractive inducement, but one that would be economically unsound for most schools. Law deans should resist going the way of the humanities.

Want to Go From R-2 to R-1? Don’t Look to Law Schools to Help

In Academia, Law School, Legal Education & Pedagogy on March 28, 2018 at 6:45 am

Say you’re an administrator at a university classified as a “doctoral university” by the Carnegie Classification of Institutions on Higher Education. You’re currently ranked in the R-2 category, meaning your school has a higher degree of research activity, but not enough to get you into that coveted R-1 spot for highest research activity. Your president and board of trustees have pushed you and other administrators to elevate your school’s ranking to R-1.  What should you do?  How can you accomplish a jump in rankings?

Here are four steps to get you started. However, there is one thing, historically, you should not do to move from R-2 to R-1: rely on your law school for a boost.

Professional degrees like a law degree (J.D.) do not count toward a school’s total number of research doctorates awarded according to the metrics used by Carnegie to classify universities. Law schools, at least in theory, teach legal doctrines and equip students with the professional skills necessary to practice law (whether law schools have succeeded in this mission is another matter). Yet law schools by and large do not train students to become scholars or to conduct scholarly research—hence the Carnegie “post-baccalaureate” designation.

Carnegie (which is now run out of Indiana University, not the Carnegie Foundation) treats law degrees as post-baccalaureate credentials, or professional-practice doctorates, but not as research degrees. For this reason, among others, Carnegie generally does not measure research and development expenditures in law schools. The fields Carnegie considers for these benchmarks are science and engineering (S&E), humanities, social science, STEM, business, education, public policy, and social work.

Universities report to the federal government the classification of their degrees (e.g., research or professional) by academic program. Data for this reporting are publicly available through the Integrated Postsecondary Education Data System (IPEDS). Law schools like the one at Berkeley, which offers a Ph.D. in jurisprudence and social policy, report degree credentials besides just the professional-practice doctorate (J.D.). The most recent available data come from the 2015-16 academic year, when Berkeley reported 332 professional-practice law degrees and 13 research-scholarship degrees. Thus, the law school at Berkeley probably contributed to that school’s R-1 status as a doctoral university with highest research activity.

University investment in law schools that do not offer research Ph.Ds. (or their equivalent, such as an S.J.D. or J.S.D.) is a reallocation of resources away from programs and departments that could help your school move from R-2 to R-1.

Before year’s end, Carnegie will have updated its classifications. The last time it updated its classifications was 2015. Carnegie has begun updating its classifications on a 5-year cycle rather than a 3-year cycle to, in its words, “better reflect the rapidly changing higher education landscape.”

The latest updates will change not only rankings but also how J.D.s are assessed. Law degrees “have previously not been considered as part of the Basic Classification methodology,” Carnegie states. But the revised methodology allegedly will account for law degrees in new ways. “We will soon release a proposal for this change and solicit feedback regarding our plans from the higher education community,” Carnegie submits.

The Carnegie rankings remain a point of pride and competition between universities. They are high priorities for university presidents and administrators because the United States Department of Education relies on them, they contribute to a university’s prestige, and they can affect a university’s eligibility for grant money.

Depending on the methodological revisions Carnegie adopts for its classifications, having a productive law school might, in the future, push a university from R-2 to R-1. Funding law faculty research potentially could yield significant returns in terms of Carnegie rankings—but probably not in 2018.

Much remains unknown about the future of the Carnegie rankings. It’s unlikely the J.D. will be reclassified as a research doctorate any time soon, if ever. And it’s thus unlikely research and development expenditures on law schools will help universities looking to move from R-2 to R-1. (To be classified as an R-1 doctoral university with highest research activity, your university must offer 20 research-based or scholarship-based degrees.)

In short, you should tell your university president and board of trustees to hold off on investing additional, substantial sums in law schools—at least for the purposes of moving from R-2 to R-1. It’s better to wait and see how the Carnegie changes play out and then to respond accordingly. Fortunately, the wait won’t be long. We’ll know more in the coming months.

 

The American Bar Association: An Economic Perspective

In Academia, America, American History, Economics, History, Humane Economy, Law, Law School, Legal Education & Pedagogy, Libertarianism on October 18, 2017 at 6:45 am
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