By Mark V. Tushnet

(Editor's Note: The following is the Presidential Address of Mark Tushnet before the House of Representatives at the 2003 Annual Meeting in January.)

The theme I have chosen for this year is the role of the Association as the scholarly association for law professors. Here I will sketch some aspects of the work that can be done on continuing to enhance that role, extending the work that has already been done by a series of my predecessors.

Before addressing two specific aspects of the Association's activities as a learned society, I want to frame my discussion with reference to two features of the Association that affect those activities. The first is obvious from the Association's name: Although the Association is indeed the learned society for legal academics, it is actually an association whose members are law schools, not law professors. Second, the Association is an association of professional schools. Both of these features affect the Association's scholarly agenda.

The first, and probably the more important, of the topics is the Association's activity in connection with the pending Supreme Court affirmative action case involving the University of Michigan and its law school. The Association has filed an amicus brief in the case, which draws the Court's attention to the specific benefits of affirmative action for legal education.

The Association has, of course, long supported affirmative action. As the law of affirmative action has developed, law schools have emphasized the important role affirmative action plays in our educational and scholarly endeavors. Many of us have experienced the real educational benefits from having a nontrivial number of students of color in our classes - what, in the Michigan case, is referred to as having a critical mass of students of color in class. Law faculties have benefited as well from the presence of colleagues of color, who have presented the legal academy with new perspectives on old topics and have introduced topics to the curriculum and to the academic agenda that probably would not be there without these scholars' presence on law faculties.

I would mention for myself a few topics where the presence of those students matters. In teaching the law of race discrimination in constitutional law, topics like racial profiling and the so-called "offense" of driving while black benefit from being able to draw upon the experience of students of color. Notably, these are topics where race as such matters for the educational experience, and not race as a proxy for what are assumed to be the views held by students of color.¹

The Supreme Court's affirmative action cases have forced the litigation into a posture where defenders of affirmative action must rely on the diversity in the classroom that affirmative action produces - and that cannot reliably be produced over the long run, in the range of law schools, by alternative programs. Whatever might be true of so-called race neutral programs such as Texas's 10% "solution," similar programs are simply unavailable to ensure appropriate ranges of diversity in law schools, public or private.

For me personally the relevant diversity is not between students of color and other students, but rather is within the group of students of color, which is, again, a reason for seeking the "critical mass." That is, for me a primary benefit of affirmative action is to overcome stereotypes about racial minorities. One such stereotype, which the Supreme Court itself criticized in the racial redistricting cases, is that racial minorities form a unitary group. Having a nontrivial number of students of color in our classes makes it easier to overcome that stereotype by demonstrating the diversity within the groups of minority students.

The Supreme Court's doctrine has made diversity the focus of the pending litigation. Our experience as legal educators has demonstrated to us the benefits of the diversity that affirmative action, and only affirmative action, produces. I would be remiss, however, in leaving the matter there. Many who support affirmative action do so not only, and perhaps not even primarily, because it promotes diversity in the classroom. We are convinced - and an extensive study of the graduates of Michigan's law school confirm our conviction² - that affirmative action increases the supply of lawyers to minority communities, either through direct representation of members of those communities, or through various pro bono activities by lawyers of color that focus on minority communities.

Beyond that, however, many supporters of affirmative action believe that it serves important values of rectification and social justice. Rectification, in serving as a modest and admittedly imperfect acknowledgement of racism's historical legacy. And social justice, in addressing to some modest degree the continuing effects of what the Supreme Court describes as societal discrimination. At this point, speaking again as a scholar of constitutional law, I note how the issue of affirmative action contributes to scholarly inquiries. In my field one of the most interesting topics of discussion today is what has come to be called the Constitution outside the courts, that is, the development of constitutional law by non-judicial actors. In that discussion the fact that the Supreme Court has said something about the Constitution - for example, that affirmative action cannot be justified by reference to its role in overcoming societal discrimination - is an interesting datum, but not dispositive of the constitutional question for others. Obviously, I cannot address in any detail the substantive issues raised in discussions of the Constitution outside the courts. I simply note the way in which the Association's position on affirmative action might be taken as an expression of a non-judicial actor's interpretation of the Constitution, and thereby connects to the scholarly interests of some of the faculty at the Association's member schools. I can imagine a productive and provocative class on affirmative action discussing whether, and how, the Association might be a participant in creating the Constitution outside the courts in developing its position on affirmative action.

My second topic concerns the scholarly aspects of the Association's annual meeting. I hope this year to continue the path of improvement in the annual meeting's academic content that the Association has already begun to travel. In addition, this year the Association is experimenting with what we have come to call a mid-year professional development meeting, in which two professional development programs will run concurrently, with another program of interest to those who attend either program occurring during the same week. Well-designed professional development programs may provide better forums for the presentation of substantial scholarly work than the annual meeting does. And, such programs are particularly well suited for the presentation by junior faculty members of the work they are developing.

Still, I think there remains work to be done on the annual meeting. Law professors who do interdisciplinary work have commented on the differences between the academic programs of the annual meetings of the allied disciplines in which they work, and the academic program of the Association's annual meeting. Some of the differences arise from structural features. As an Association of law schools, and of schools that are engaged in professional education, the Association has a large number of constituencies, all of which have reasonable claims on the limited time - and places - at the annual meeting. One effect is that faculty members, and other individuals in the Association's constituencies, do not have - in the jargon of modern management - a full sense of "ownership" of the Association and its activities.

Administrators, providers of student services, and others associated with the pedagogic and professional operations of law schools appropriately use the annual meeting to discuss matters of widespread interest to those constituencies. Particularly given space limitations, which arise out of faculty members' desire to avoid the impersonality of a convention center and our wish to have nearly all programs in a single venue, the only reasonable solution has been to guarantee each Section a time slot, with some chance for additional time slots for programs presented jointly by two or more sections.

I note that time and space problems are likely to increase, as the number of sections increases - and, perhaps, as faculty members find it increasingly uncomfortable to be put to the choice between two (or even more) attractive programs scheduled for the same time, or to be put to difficult choices about timing their arrival at or departure from the annual meeting in light of the program's scheduling limitations. At some point it may become necessary for the Association to make allocation decisions, perhaps by giving sections incentives to do programming only at alternate annual meetings.

No matter what, though, there is no reasonable way for even a single standard law review article, which now runs upwards of sixty pages, to be presented in full at a section meeting, much less a panel with several such papers. Time limitations make it particularly difficult for the section programs to serve as locations where new and important scholarly work is presented.

All this places substantial responsibility for the scholarly content of the annual meeting on the sections and their program committees. A number of faculty members have observed that program planning within some of the Association's sections could be more transparent. I encourage the section leadership to consider ways of opening up their planning processes, in particular by either announcing program topics and inviting submissions for the panels rather than presenting a fully developed program from the outset, or by inviting submissions and then defining a topic that incorporates the best of those submissions. Other scholarly associations have program committees, some more centralized than others, that receive submissions - including full panels, submissions for panel topics, and individual papers - and develop panels based on the submissions. Although some planning committees for our professional development conferences have used a submission/committee model, such an approach is not readily adopted for our Association's annual meeting because of our reliance on the sections to develop programs. Even so, some sections might find it helpful - to their constituencies and to the Association - to experiment with program-committee-like models for planning the section program at the annual meeting. This may entail starting the planning cycle for annual meetings somewhat earlier than has been the case, and would therefore place even more responsibility on section officers.

The longer the planning cycle, of course, the harder it is to ensure that matters of interest that crop up in the course of the year get space on the program. No one is going to run into a planning committee for the Medieval Studies Association waving a newspaper with breaking news about the fourteenth century. But, we have experienced some such events in several recent years. To accommodate this concern, the Executive Committee has discussed suggesting to the Committee on Sections and the Annual Meeting that it develop a slot for "hot topics" at each annual meeting.

Processes like these may also continue the pattern of ensuring that programs at the annual meeting contain new scholarly work, a pattern that the Association has encouraged by rewarding sections that arrange for law review publication of papers presented at the annual meeting with a budget increase - a small reward, of course, but one of the few within the Association's control. Similarly, the Executive Committee has discussed, and I will raise with section leaders, ideas for highlighting programs that have special academic content - such as noting in the program booklet with an icon or similar graphic programs that have been designed with an eye to each annual meeting's organizing topic. Such "theme" panels might also serve as vehicles for solicitation of papers, as faculty members not on a section program committee may have work in progress that fits the theme but which the section program committee might not know of.

I should note here some comments I have heard, and that have been posted on e-mail listservs, about the distribution of speaking at section programs. The concern I have heard expressed is that it is difficult for faculty members at schools outside a limited number to get a place on the program. The statistics are, as always, more ambiguous than one would like, and there actually seems to be more participation from the range of law schools than critics might think.³ Still, the very existence of the criticism suggests that greater transparency in developing programs for the annual meeting would help, by pointing out the routes by which any faculty member might bring her or his scholarly work to the attention of program planners.

Another characteristic of the annual meeting is that it is rarely the location where major scholars present new work. I doubt that much can be done about this, again for structural reasons. In other academic associations, major scholars use the annual meeting as a vehicle to showcase their recent graduate students, and serve as panel organizers and commentators. (And, related to the prior concern, their recent graduate students are spread throughout the country in colleges large and small, public and private, thereby making participation by younger scholars from a wide range of schools possible.) The law school world does not have anything similar to induce senior scholars to participate in the annual meeting.

Perhaps the best we can do is figure out ways to use the so-called plenary sessions, which now seemed to have evolved into a set of concurrent sessions, as venues for the presentation of important and new scholarly work. The "concurrent plenary" sessions at the 2004 Annual Meeting will feature presentations by major figures in allied disciplines - economics, history, philosophy, and sociology - to "model" the presentation of important work by scholars who are leaders in their fields.

I have not yet mentioned another important scholarly activity of the Association, the publication of the Journal of Legal Education. The large number of law reviews means that the Association's journal cannot be a primary vehicle for the dissemination of original research in substantive law and legal theory. Instead, the Journal has become the primary vehicle for publication of scholarly work on legal education itself. I commend the current and past editors, and specifically Kent Syverud and Don Welsh, for their careful work on the Journal.

Like all journals, the quality of its contents varies, but for myself I can say that in nearly every issue I have found provocative articles on truly important questions. I mention here only two that I think we all ought to think about. First, Kif Augustine Adams, Suzanne Hendrix, and James Rasband of Brigham Young University Law School, established - to my satisfaction at least - that, taking all other factors into account, students who type their examinations get better grades than those who hand-write them.⁴ Knowing this allows us to convey accurate consumer information to our students - although I have to say that last semester, I would have given the highest grade to a handwritten examination, except that the student disregarded the instruction to write on alternate lines and on only one side of the page!

Second, Mitu Gulati of Georgetown University Law Center, and his former colleagues at UCLA Law School Richard Sander and Robert Sockloskie, published an important article on student views of the third year in law school (among other things).⁵ Many faculties would benefit from discussing the implications of their study. For example, as I read it, the authors find that students find the third year in law school quite irrelevant to the future careers, and love it - which leads me to think that we can do anything we want in the third year (although some of my colleagues have a different take on the study).

The Association has issued a request for proposals for the next editor of the Journal, and I am sure that we will locate an editor or editors who will have the vision to continue in improving the Journal's quality. The new editor or editors might consider broadening the Journal's scope by soliciting articles on topics relevant to legal education, with that domain defined broadly.

I want to conclude with the observation that my concerns are, as I have said, to continue the development of the Association as the scholarly association for legal academics, and that, in raising some questions for the future, I do not want to underplay the substantial steps that have already been taken. Casual conversations suggest to me that long-time attenders of the annual meeting have seen a significant increase in the scholarly quality of the presentations here. As an indication of the Association's interest in interdisciplinary work, the Association has co-sponsored professional development programs with other scholarly associations, most recently with the American Political Science Association, and I believe the Professional Development Committee would be receptive to other similar proposals. And the initiatives taken over the past few years to deepen the Association's ties abroad are bearing fruition this summer in our first professional development program co-sponsored with the European association of members of law faculties, to be held in Barcelona and focusing on private international law. I encourage you to support those members of your faculties who are interested in attending this program.

The improvement of the Association's activity as the scholarly association of law faculty members is an on-going process, and hope to hear suggestions from you on how that improvement can continue.

* This article appears in the February 2003 AALS Newsletter