My springboard today is a post about the AALS (Am. Assn of Law Schools) asking whether law schools really need the AALS and perhaps that law schools can cut from their budget their annual fee to it. My accounting supports this view.
First, my own use of the AALS, then an accounting if its pursuits. The central themes in the AALS annual meetings are never about anything relevant to my scholarship, bankruptcy and securities, and they are at an inconvenient time of the year for me, so I miss most annual conferences. As a new teacher, however, I recall obtaining some value from going to one of the AALS new teacher conferences.
From my glance at the central themes of the 15 meetings at the AALS website (appended below) I restate their focus as dealing with a changing world and producing desirable legal change with a constant underscoring of the centrality of diversity.
Deal with change, produce desirable change, and maintain pluralism? If those were truly the central themes of the conferences, I should be elated. It sounds exactly right, no? Why are we all so jaded about the AALS?
Well, first, from my perspective, the pluralism/diversity that the AALS espouses is very oldfashioned. It includes gender, race, and sexual orientation. It acknowledges religious diversity. It does not seem to notice other types of differences that probably get in the way of how people live their lives, maybe such as body type, national origin, dialect, or libido.
Second, the legal change in my specialties, bankruptcy and securities, has not been great. In securities law the major changes over the last 15 years have been Sarbanes-Oxley, Dodd-Frank, and the JOBS Act. Let me cynically recharacterize those as more internal controls, more bank regulation, and find a way to let the masses invest in startups. The first I consider as having been wildly excessive (especially initially), the second a pro-large-bank failure (increased compliance cost favors those who can spread them wider, i.e., the larger; more importantly, money market mutual funds are still exposed to the risk of runs), and the third is antithetical to protecting investors. In bankruptcy law the only major change has been a significant reduction of the capacity for fresh start that bankruptcy provided to individuals. It is quite sad to turn back and see your discipline’s path being flat or downward.
Why does the AALS celebrate or even think that law can produce desirable social change? Because of the civil rights era, which experiences a resurgence now with same sex marriage. Otherwise, we seem to have failed society. Where is the desirable legal change in patent law, housing, antitrust, or election law? (I picked those by thinking about the specialties of the holders of my neighboring offices.) The verdict seems to be that patent law inhibits innovation in the high-tech field; in housing I see no progress against the preclusive effect that zoning has on the creation of affordable (and environmental) housing; in antitrust law I am frustrated that I pay cable bills that are probably more than twice what I would be paying in England where cable companies are forced to compete; in election law the changes seem highly contested.
I feel that it is even possible that our celebration of the civil rights victories may have contributed to our failure. We dance around one or two fabulous trees, while blight eats our forest. (This is turning out much more pessimistic than when I started this accounting.) If this is right, it is possible that giving more power to the AALS, could lead to more dancing and, therefore, even more blight.
Can I look internationally for a better paradigm? Certainly not in continental Europe, where the professoriate is mostly strictly technocratic. Canada and Australia seem to have avoided significant aspects of the financial crisis. England has some shining examples in cable bills and criminal law. Nothing systematic, however.
But I skipped the third item that the AALS pursues, dealing with change. Uh-oh.
Have we dealt with change well? As our world turned electronic we have done a middling job of keeping up but we have not made some obvious radical changes. We still require law schools to have enormous libraries and library budgets. We vastly underutilize our collective organization for electronic learning, CALI (on the editorial board of which I proudly serve). To the extent that we have embraced technology in the classroom, instead of embracing electronic increase in the exchange of new ideas, I see many of us having adopted PowerPoint lectures, which I consider antithetical with the free roaming in the world of ideas that we were expected to pursue.
In sum, on the three points that I see AALS trying to move forward, I think we cannot be proud of ourselves. Although our pluralism can be proud of the move in favor of same sex marriage, our diversity is framed in fifty-year-old language and practice. We have failed to produce desirable legal change. Our ability to deal with change has been at best marginal and at worse regressive. Ugh!
Would anything have been worse if we had not had the AALS? Nothing springs to mind.
Appendix: Themes of AALS annual meetings:
- 2015: Legal Education at the Crossroads (I needed an explanation too: “Are we going to continue on the path which, while suitable to the previous world in which we pursued glory and economic progress and our graduates took their rightful place in the generally remunerative legal economy, now has significant pitfalls and predicaments. Or are we going to take the path toward a more promising, albeit risky and uncertain, destination for our students, our faculty, our profession?”)
- 2014: Looking Forward: Legal Education in the 21st Century
- 2013: Global Engagement and the Legal Academy
- 2012: Academic Freedom and Academic Duty
- 2011: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times (“The core values emphasize excellent class room teaching across a rigorous academic curriculum. They focus on the importance of faculty scholarship, academic freedom, and diversity of viewpoints. The core values also establish an expectation that member schools will value faculty governance and instill in our students commitments to justice and to public service in the legal community. All of these objectives are to be supported in an environment free of discrimination and rich in diversity among faculty, staff, and student body.”)
- 2010: Transformative Law (“Contrast today’s portrayals to those of fifty years ago, when the word “lawyer” might conjure up images of crusaders in the civil rights movement. Or, compare these images to those of an even earlier era, when attorneys entered public life as architects of the New Deal. When citizen-lawyers embarked on these campaigns for change, the result was transformative law.”)
- 2009: Institutional Pluralism (“Member schools are expected to adhere to our core values of teaching, scholarship, academic freedom, and diversity. But within the wide space bounded by those values our members are very different kinds of institutions. There are 72 state schools that play special roles in the legal communities of their sponsoring states. There are 49 religiously affiliated law schools whose missions are defined or influenced by particular faiths. There are law schools at historically black colleges and universities that have their own special commitments; and schools whose intellectual efforts are governed by a particular point of view (like law and economics) or directed at a particular subject matter (environmental law, or intellectual property). This year’s theme focuses on the value of our institutional differences.”)
- 2008: Reassessing our Roles as Scholars and Educators in Light of Change (Very open-ended, including internationalization, student debt, e-expertise, but returning to stress the increased need for diversity in view of the “’world-shrinking’ changes of internationalization, electronic communication, [and increased] pluralism”.)
- 2007: Expanding Knowledge and Serving Our Communities: Academic, Civil[,] and International
- 2006: Empirical Scholarship
- 2005: Engaged Scholarship (essentially the tension between reformist scholarly agendas and advocacy scholarship, empirical scholarship, and critical evaluation of scholarship)
- 2004: The Association as a Learned Society
- 2003: Legal Education Engages the World
- 2002: Recommitting to Teaching and Scholarship
- 2001: Teaching, Scholarship[,] and Service in Pursuit of Equal Justice