Alert readers know that I am worried about the future of DR in US law schools. There is a large cohort of senior law school faculty who are aging toward retirement with limited prospects of replacement with new faculty.
It would be nice if, in the next 10-20 years, we could expect that law schools would hire a substantial cohort of new faculty who focus on DR and bring our insights and skills into legal education and practice.
That seems unlikely. The legal education system is contracting and so law schools are likely to make relatively few new hires. Many positions that are vacated may not be filled. Law schools face intense competitive pressure to attract students and, for many schools, hiring DR faculty may not seem like a good strategy to fill their classes. Law schools may consider DR courses to be “merely practice courses” that can be taught much cheaper by adjunct faculty. Scholarship and service by regular faculty specializing in DR may not be valued as much as in the past. As many people have observed, there is ADR fatigue – we’re just not the bright shiny object we used to be.
The current generation of senior US law faculty will retire in the next 10-20 years and will be succeeded by the current generation of mid-career faculty. Who will follow after that? If my assumptions are generally accurate, maybe not many people.
What Can We Do?
Ideally, faculty would look for law students and graduates who might get regular faculty jobs, encourage and coach them how to be desirable candidates, and support them in the recruitment process. Organizations like the Law and Society Association and Federalist Society have held regular programs to build a pipeline of students into their ranks after they graduate. Even without such an organized effort, we should look for students who might be interested in an academic career though, if my assumptions are reasonably accurate, there may not be many positions or interested candidates.
Another option would be to engage current faculty who don’t currently identify with our field. Some of this happens naturally. Many schools with DR programs list colleagues who identify with the programs even though DR is not the main focus of their teaching or scholarship.
I suggest that we take the initiative to engage colleagues to incorporate DR in their teaching and scholarship. For example, if faculty are interested in contracts, civil procedure, or virtually any traditional subject, we might encourage them to focus on DR issues within those subjects. Pepperdine invites faculty to attend annual summer programs and they might develop programs specifically for faculty who haven’t previously focused on DR and would like to incorporate it in their teaching or scholarship.
Michael Moffitt wrote a great article, Islands, Vitamins, Salt, Germs: Four Visions of the Future of ADR in Law Schools (and a Data-Driven Snapshot of the Field Today), describing four metaphorical approaches to ADR in law schools. In schools with ADR “islands,” ADR is touted as an important, robust part of their programs. In “vitamin” schools, every student is required to “take at least the recommended dosage of ADR.” “Salt” schools consider ADR as a “vital seasoning for many different offerings, but never consumed on its own.” In some schools, individual faculty members “intentionally, but quietly, incorporate ADR as germs into their courses.”
The island, vitamin, and salt strategies involve law school policies that may not be adopted much in the future. It may be up to us to take individual initiative using the germ strategy to “infect” colleagues who we think might be open to getting the bug.
Steady, Continuous LEAPS Forward
Almost ten years ago, many of us were involved in the LEAPS Project – the Legal Education, ADR, and Practical Problem-Solving Project of the ABA Section of Dispute Resolution – which was based on a germ theory. We developed some fantastic ideas and materials to propagate our “DNA” to colleagues and overcome barriers to having it “take.”
For example, you could offer to be a guest lecturer in a colleague’s course or ask colleagues to be guest lecturers in your courses. You could also collaborate in scholarship with colleagues about the application of DR principles and processes in particular types of cases.
Ideally, you would particularly focus on mid-career colleagues who already have tenure. These collaborations would be less risky for their careers and could have long-lasting effects.
I suspect that the LEAPS Project didn’t have much impact. After a lot of effort to develop the materials, we ran out of steam and we turned to the millions of other things on our agendas.
To be effective, we would need to pursue this effort over an extended period. If we engaged even a few colleagues around the country (and the world) every year for 10-15 years, that could have a significant impact. Presumably, most new recruits would not shift their primary identification to specialize in DR, but this strategy could help perpetuate our ideas and make subtle differences in law school teaching, scholarship, and policy-making.
Since we have already developed the ideas and materials, this mostly involves regular reminders to look for recruitment opportunities. The ABA SDR Legal Education Committee could regularly send reminders, including at every year’s Legal Educators’ Colloquium and Resource Share. Organizers of the annual Works-in-Progress conference and SEALS conference sessions could make announcements reminding people to recruit suitable colleagues. And there’s Indisputably and the DRLE listserv. Hopefully, over time, we will internalize this mindset without periodic reminders and routinely look for colleagues interested in our ideas.
Obviously, there are limits to the possible effects of this strategy, so we should use it in combination with other strategies. For example, if law schools are going to rely increasingly on adjunct faculty in place of regular faculty, there is greater need to integrate adjunct faculty in our field as Ava Abramowitz described, summarizing a session at the Past-and-Future conference.
