Observation on the labor economics of legal academia

Without considering the validity or lack thereof of the arguments of those, like Brian Tamanaha, who think law school should be radically restructured, a footnote to the debate.

I’ve noticed that many critics of law schools, especially on the right, want law professors to teach and write more commercial law subjects.

Many of the same people also want faculty salaries to go down.

And many of the same people want more teaching by those with substantial experience in law practice.

Unfortunately, it seems to me that those goals are inconsistent. Law faculty salaries are higher than those in cognate disciplines in (large?) part because law schools must compete with law firms for personnel. Because of the high paper qualifications required to enter the law professorate, all or almost all of those eligible for the job could make rather a lot more money in some corporate law practice. And while the much nicer working conditions and tasks of academia compensate those who are into it for the huge decrease in salary between something like partnership/the partnership track at a New York law firm and law professoring, a decrease in salary to, say, what english professors make would almost certainly radically reduce the number of people willing to take that job over practice.

Which might be fine… I’m consciously staying out of that argument.

But it’s particularly private law people and people with lots of practice experience who can command truly staggering salaries on the practice market, and hence whom reformers won’t be able to hire at lower salaries. A corporate tax attorney with ten years of experience will demand rather more money to teach than will a former public defender or phd in anthropology. (Such people will also, of course, demand more fringe benefits like lowered teaching loads.)

So critics of legal academia must choose: lower salaries or more people with commercial law practice experience. Can’t have both. (At least, not without doing things like offering different salaries for different disciplines. Memo to my dean: if you think about doing that, please let me know in advance so I can churn out a few more tax articles!)

Addendum: since writing this post, I’ve seen some objections to this line of argument in various places, all hinging on the notion that it’s unrealistic for many faculty to believe they could just go off and become a partner at Cravath or something. I don’t deny that (highly doubt Cravath would ever hire me, for example). But many law faculty are initially recruited from those settings, or from the paths (highly desirable clerkships, top schools w/ law review, etc.) that lead to them. And to find more people with commercial law practice experience this would happen more. It’s at this initial stage that law schools compete with biglaw salaries.


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