August 21, 2006
Which Fields Are Essential?
Posted by Victor Fleischer

Like Christine, I was fascinated by Larry Garvin's The Strange Death of Academic Commercial Law.  Tax folks, too, sometimes wonder dark thoughts ... esp. those of us interested in corporate and partnership tax. 

Which fields are essential to the core academic enterprise?  Which may be relegated to the sidelines?  For example, is it essential for a law school to have tenured/tenure-track faculty teaching labor law?  Trusts and Estates?  Estate and Gift Tax?  Corporate Tax?  Basic Tax?   Where does one draw the line?  While most schools are willing to write off something like ERISA or trusts and estates, basic tax is still considered essential.  I think.  (The number of taxprofs at top schools seems to be in decline, but it could be an aberration.)   

So, on what grounds do schools decide which topics must be taught by tenure track faculty, and which don't? 

I don't think it's related to practical relevance.  (The ratio of human rights classes to human rights lawyers has got to be pretty high.  Just the opposite for ERISA.) 

Nor does it seem to be related to what's on the bar exam, as T&E and commercial law are frequently covered by adjuncts. 

Implicitly, then -- and especially at top schools -- there's a judgment being made that unless scholars are generating interesting scholarship in a field, it's okay to leave it to adjuncts. 

Is that so wrong?  I find this to be a tough question.  On the one hand, top schools should expect all of their tenured professors to contribute on the research front, whatever the underlying subject matter.  On the other hand, leaving vast areas like ERISA and the regulation of financial intermediaries (40 Act, bank regulation, etc.) out of the loop seems like a disservice to the profession.

I wonder if one way out of this dilemma is to challenge the atomization of subject matter.  What would happen if we stopped teaching according to doctrinal areas and started teaching according to practice areas?  While some law firms get pretty specialized, most lawyers were group themselves broadly into areas like corporate, bankruptcy, litigation, or tax.  So instead of taking a course sequence full of semester-long, 3 and 4 credit couses like

  1. Corporations
  2. Agency and Partnership
  3. Securities
  4. Secured Transactions
  5. International Business Transactions 
  6. Sales & Payments
  7. ERISA ...

you would see a range of year-long, 6-10 credit offerings like

  1. Finance   (covering the range from bank loans to private equity to public debt and equity) 
  2. M&A   (covering both public and private deals)
  3. Tax    (covering both basic and corp/part/intl tax)
  4. Bankruptcy   (incl both planning and litigation)
  5. Litigation   (from discovery & motion practice thru the basics of trial practice)

Other than inertia, what are the objections to such a move?  Would it just be too hard to coordinate?   Is it too much to expect students to commit to year-long courses? 

Why are we so committed to grouping our courses according to statutes and cases instead of clients/practice areas? 

The main benefits, I think, would be on the teaching front.  But I also think there might be some scholarly payoff in fringe fields.  I suspect scholarship in fields like ERISA or partnership tax might get more interesting to non-specialists if we were encouraged to tie them into other areas in the classroom.  I guess what I'm saying is that more intradisciplinary teaching might lead to more intradisciplinary scholarship, making it less likely for a specialized doctrinal area to get completely left off the map.

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