11/02/2013 12:34 am ET Updated Jan 23, 2014

The Proverbial "Elephant in the Room:" Faculty Compensation

Everyone wants us to reduce faculty compensation. I am skeptical by nature, especially of those ideas that everyone else happens to like.

I am not sure that framing the issue as reducing faculty compensation is useful. By that, I do not intend to set up the matter to favor professors. Proceeding from the perspective of critics of legal education, the real issue is the cost of instruction more generally and not professorial salaries per se. Notwithstanding my doubt, I'd like to entertain the prospect that has been broached. (I have already discussed the difficulties of curtailing salaries and the countervailing demands that operate on law schools.)

Regardless of what observers might dictate, the decisions many of us law school deans have made also compel us to take apart our business model and rebuild it. We have chosen a course. Most law schools have shrunk. Reducing enrollment means reducing revenue.

Even for the handful of schools that are not tuition dependent, thanks either to a state subsidy or endowment earnings, the loss of income must be balanced by a corresponding cut to expenditures. Central administrations that are offering a temporary subvention, unless something quite strange has happened, will not maintain that indefinitely.

I am assuming that we can leave aside the arguments rooted in resentment of intellectuals, especially those reflecting prior ideological prejudices against critical inquiry. It is worth noting, however, that the bitter tonic being served us is not all medicinal; some is, intentionally, simply vitriol. (Elsewhere, I'll discuss the intrinsic value of legal scholarship and how we should respond to the demagogues who are trying to destroy the rule of law.)

At this point, we must take on this task. Law schools cannot enroll the same numbers they previously did; and law schools cannot continue to increase tuition as they have. It's simple math. Everything else being equal -- which they aren't, because of inflation -- law schools cannot spend as they would desire.

Accordingly, I would like to analyze multiple means of bringing down the cost of instruction. Payroll is the primary component here. Other factors are more readily controllable.

There are four basic possibilities: pay the same number of professors less money; employ fewer professors who continue to earn the same amount; create different categories of teachers; or change the cost-benefit calculation not by decreasing the expenditure but increasing the return.

Lest I panic my colleagues, I should preface my comments by indicating that I am not advocating a wholesale attack on their salaries. To be clear, I am a pragmatist. I like to lay out the possibilities for action in order to consider proposals that otherwise are abstract. Considering how something might be done allows us to determine whether it should be done.

First, a school could attempt to reduce the salaries of those currently on the payroll. That is the most obvious initiative. It's also likely to be the least effective.

There likely would be litigation. Even if such a plan were voluntary, there then would be significant issues of recruitment and retention, which would lead to problems with reputation and rank; these would combine in a devastating feedback loop.

Second, a school could have fewer professors on the payroll. Many schools will benefit from a break demographically. Baby boomers are headed toward retirement age.

With minimal fuss, it is likely that non-trivial numbers will depart of their own accord. The catch is that they cannot be replaced, for their absence is to be a benefit in the form of salary savings.

Third, a school could be creative about who it puts into the classroom. A diversity of titles is possible.

The trends further much more than the balancing of budgets. The possibilities could transform legal training, so it becomes more skills oriented. The multiplicity of positions matches what has happened within law firms. They have realized that a traditional associate-to-partner track with a strict up or out doesn't serve clients or the business itself.

Thus we should see the promotion of adjuncts who are practicing lawyers and sitting judges; the introduction of practitioners in residence or lecturers, who may have retired from the bar and the bench into full-time educational roles; and the welcoming of every other type of professional who contributes to the pedagogical enterprise. There are disadvantages that cannot be glossed over, though: A community that idealizes egalitarianism but tends toward elitism will be multiplying distinctions.

Fourth, a school could change expectations about what even tenured/tenure-track faculty do on a daily basis. The teaching load and the service contribution could be upped. It need not be said that the standards for scholarly productivity would have to be dropped. These are not black and white dichotomies; they run along a spectrum. An extra class here, a committee assignment there, and the number of law review articles published will be fewer but not zero -- or, perhaps, some individuals who become busy will thereby become more efficient. Greater differentiation among faculty members is a probable consequence.

Any of these tactics could be combined. They also could be leveraged with technology that enables every type of professor to be more productive.

We must confront these choices. That is why I have laid them out as explicitly as possible.

We are always asking for more state funding and pursuing private philanthropy, but it is wishful thinking to suppose that either of them or even the combination of them will make our dilemma disappear. Government officials and generous alumni who would offer support are among those who want to know we have a model of legal education that is sustainable and successful.

I am committed the proposition that law is at the heart of our democracy.