Reassessing Our Roles in Light of Change
(The following is the Presidential Address of Nancy Rogers before the House of Representatives at the 2007 Annual Meeting in January.)
Like all of you who serve legal education, I, too, count it a privilege to take on this role. I am grateful for the opportunity, on behalf of all of you, to express thanks to Judith Areen for her year as President. She is someone so admired in legal education that, had she only taken the title, we would have been grateful and proud to have her as our representative. But, she did a great deal more. In addition to Judy’s initiatives, which have been topics of previous speeches and newsletters, she has made key contributions behind the scenes. She persuaded some of the finest among you to take on key roles and paved the way for more input from all of you. At the end of her tenure, each part of the organization, from the annual meeting to the fiscal decisions, works better and is more transparent. The effects of Judy’s leadership will be felt for years to come.
The leadership of the AALS rests with an able and dedicated Executive Committee. Judith Areen will remain on the committee, as did Bill Hines last year. We are pleased to welcome Joe Knight and Lauren Robel to a committee that also includes President-Elect John Garvey, Robert Post, Michael Olivas, Stephanie Wilder, and Reese Hanson.
The leadership also includes the able executive leader of the Association, Carl Monk, and his outstanding colleagues, Elizabeth Patterson and Jane LaBarbera. Whenever you see a volunteer doing something well, you would be right to assume that the project stemmed from or was improved upon or implemented by these three and their colleagues.
The Executive Committee is regularly in touch with the sections and committees. As I called many of you this fall, I was heartened by the willingness of so many to take on volunteer roles on behalf of legal education as a whole.
Let me move to the topic of change and its implications for our roles as professors and law schools. We are especially good, as law professors, at examining change and proposing modifications in law to meet that change. We are quite willing, at times, to do the same thing with respect to our own roles as professors and those of our law schools. As Todd Rakoff mentioned earlier today, if we laugh at ourselves for just a moment, we would say that we think nothing of recommending a change in law that will have reverberations in a portion of the nation’s economy, but when the question is raised whether we can lap one hour off one of our courses, we see this as a serious matter. This is only to say that we are human; minor surgery is surgery that someone else is having.
But, our record of modifying our roles effectively in the face of external changes has been excellent when we take the time to do the same analytical and creative thinking about our own roles as we do regularly regarding law and its administration. An effort organized eleven years ago by Judith Wegner, then AALS President, provides an apt example. She organized a group of law faculty who would donate their time to facilitate strategic planning efforts by colleagues at other law schools. In the years since then, that group, called the Resource Corps, has assisted law schools throughout the country as they assessed changes and readjusted their plans, using the same analytical and creative abilities that have served us so well in our individual scholarly roles.
I propose that we focus even more of our joint efforts in the coming year on examining changes that affect legal education and assessing, even considering modifications in, our roles as professors and law schools in response to those changes.
A number of changes fit this category — one such change is the internationalization Carl Monk and Judith Areen spoke about on Tuesday as they described the new International Association of Law Schools.1 Another is the growing student debt and its implications for graduates’ career choices and the profession. I will mention two other changes and some of the many questions that we might raise about our roles as the result of the changes. But, these are by way of example; the inquiry should certainly be broader.
The first of these is “e-expertise” — a term that encompasses blogs and more. There may be potential through electronic media for law faculty to have more influence on the law than we now have with our expertise and scholarship. If that potential is real, are we willing to change the ways that we judge scholarship in order to encourage e-expertise?
Second, I want to discuss today the backlash to affirmative action in admissions in the face of statistics that show little recent improvement in the diversity of law schools or in the pipeline to law schools. Are law schools playing too limited a role with respect to diversity?
On the topic of e-expertise, just to get you thinking, here are a few comments by our colleagues in legal education and the legal profession:
• Professor Daniel Solove estimated last year that more than 300 law professors blog. In addition, faculty and even law reviews are creating electronic treatises, on-line journals, SSRNs, and vlogs (video logs).2
• A former judicial law clerk, Michael McClintock, reports that there is evidence to support Judge Harry T. Edwards’ charge3 that legal scholarship has become less useful to the bench. According to McClintock, the courts’ citations of law reviews declined by nearly half over a 20-year period toward the end of the last century.4
• Professor Lawrence Solum reports that the courts, including the U.S. Supreme Court and federal appellate courts, are citing blogs.5
• Professor Doug Berman maintains that he has gained more useful research and unique insights in two years from the informal feedback from judges and others to his sentencing blog than he garnered from a decade of traditional research.6
Those involved in electronic scholarship point out that hard choices lie ahead. Electronic scholarship, like all scholarship, takes time. Something will have to give.
Others point out the dangers of “counting” electronic postings as scholarship.7 (Here, we are usually referring to electronic postings by the author, as opposed to law reviews on line, for example.) The speed carries risks in terms of thoughtfulness. In some modes of e-expertise, the lack of an intermediary to select articles and to verify sources may result in difficulty assessing the postings’ value as scholarship, and it may be time-consuming to make the assessments.
As we ask whether and how to “count” e-expertise as scholarship, we ultimately also face the question of our role as legal scholars and gatekeepers to academia. How important is it, for example, that our scholarship affects the law?
The AALS and National Law Journal will together sponsor open symposia with the profession during the coming year so that people can identify the key issues presented by e-expertise and promote their discussion again at next year’s meeting.
Moving to the second issue, diversity, it is important to note that there is a split between the electorate, at least in some states, and those in legal education. The electorate in a few states seems to believe that we are providing too much help to minority applicants. Those in legal education realize that there is not enough help for minority applicants. In fact, there is only glacial progress over the last decade in diversifying our law school student bodies, even with most law schools able to use affirmative action.
Here are a few of the many facts that bear on this situation:
• The percentage of African American and Hispanic persons in the nation’s population is three times greater than the percentage among the nation’s lawyers.8
• The percentage of African-American law students in the entering class was up in 2006, after declining the previous five years, but not much higher than it was in the mid 1990s.9
• Some law schools still do not have a critical mass of under-represented minority students, even if they are permitted by law to use affirmative action in admissions.
• LSAC-sponsored research on the pipeline to law school indicates that expansions in the pipeline are not sufficient to solve the diversity issue; the problem will continue absent substantial additional intervention.10
• The University of Michigan played an important leadership role in successfully defending race-conscious admission in the U.S. Supreme Court but, ironically, Michigan public law schools have recently followed those in several other states in losing the ability to use affirmative action in admissions as the result of a ballot initiative. Most recently, the ABA Council for Legal Education has come under attack for amending its requirement that accredited law schools have a commitment to diversity.
The AALS has taken a strong position in favor of affirmative action. In fact, the Supreme Court cited the AALS amicus brief in Grutter v. Bollinger when it noted the importance of law school diversity in terms of whether the nation’s leadership is diverse.11 But, more should be done.
In the course of the next year, we will begin holding more open discussions with the bar on these issues. How is it that most of the electorate in some states think that the under-served populations get too much help to enter law school when, in truth, even when we have used affirmative action in admissions, we have not achieved diversity? What more are we as law faculty and law schools prepared to do? Is there more fundamental change than we have been willing to consider to date that will allow us to achieve the diversity that we have long supported?
The Wingspread Conferences, led by Elizabeth Rindskopf Parker and Sarah Redfield, urge law schools to intervene as early as under-served middle schools to build the pipelines to law school. Is it time to broaden the role of law schools to serve potential law students?
I have highlighted just two of many changes affecting legal education. Change is in the air. We know that — we are writing about change as it affects the law. Can we be as thoughtful and wise in changing our own roles as we are in suggesting changes in the law?
I look forward to raising this with you more in the coming year. It is truly a privilege to have this opportunity.
1 On changes in the role of legal education regarding internationalization, see the series of articles in Transnational Legal Education, 56 J. Legal Ed.159 (2006).
2 The most recent version of the “Law Professor Blogger Census” can be found at Daniel Solove, Law Professor Blogger Census (Version 5.1), October 6, 2006, available at http://www.concurringopinions.com/archives/2006/10/law_professor_b_6.html, last accessed January 17, 2007. The version referenced above can be found at http://www.concurringopinions.com/archives/2006/03/law_professor_b_4.html.
3 Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 42-57 (1992).
4 Michael D. McClintock, The Declining Use of Legal Scholarship by Courts: An Empirical Study, 51 Okla. L. Rev. 659, 684-685 (1998).
5 Lawrence B. Solum, Blogging and the Transformation of Legal Scholarship, Research Paper No. 06-08, Illinois Public Law and Theory Research Papers Series (2006).
6 Douglas A. Berman, Scholarship in Action: The Power Possibilities, and Pitfalls for Law Professor Blogs, The Ohio State University Moritz College of Law Center for Interdisciplinary Law and Policy Studies, Working Paper Series, Number 43 (2006).
7 Leigh Jones, Blogging Law Professors Assault Ivory Tower: Is It Scholarship or a Cyber Chit-Chat? The National Law Journal, February 27, 2006, available at http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1140775513856, last accessed January 17, 2007.
8 Gita Z. Wilder, The Road to Law School and Beyond: Examining Challenges to Racial and Ethnic Diversity in the Legal Profession, Law School Admission Council, Research Report 02-01, 3-4 (2003).
9 Law School Admissions Council, African American Matriculation Drops, No. 2006-2 LSAC Report 4 (July, 2006).
10 Wilder, supra note 8, at 29 (“Simply put, underrepresentation in the legal profession by blacks, Hispanics, and Native Americans persists. Relative to both the available pools of minority high school graduates and the proportions that these minorities represent in the larger U.S. population, smaller proportions of minority high school graduates are available to participate in post-secondary education. The presence of minorities is further reduced at the level of the baccalaureate degree. . . .”)
11 Grutter v. Bollinger, 539 U.S. 306, 332 (2003).