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Alternative Publishing Models For Cost-Conscious Professors

July 13th, 2016 / By

Casebooks are shockingly expensive. The latest edition of Stone, Seidman, Sunstein, Tushnet, and Karlan’s Constitutional Law has a list price of $242. It’s even more shocking when you consider where the money goes. Not to pay for the cases and other primary materials that make up most of a casebook’s contents: they’re public domain and free to all. Mostly not to cover printing costs: the paperback edition of The Power Broker (to pick a book with the same word count and heft as a casebook) has a list price of $26, and you can buy it on Amazon for $18. Mostly not to authors: royalty rates are typically 10% to 20%. No, most of that money ends up in the pockets of the casebook publishers and other middlemen in the casebook chain. This is a tax on legal education, sucking money from law students and from the taxpayers underwriting their student loans. (more…)

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A Conversation with Dave Hoffman

June 27th, 2016 / By

Dave Hoffman has posted a thoughtful piece about the future of legal education, in which he wonders whether legal educators, law graduates, potential students, and others can have a conversation about legal education rather than a rancorous debate. I think many conversations are already occurring offline, but I’d like to create such a discussion here by exploring a few of Dave’s thoughts in what I hope is a conversational manner.

Accreditation

Dave suggests radically decreasing the regulations that law schools face through the accreditation process, with the hope that this would “enable students to cheaply access the right to take the bar.” I’m with him on some of his principles, which I hope will make our conversation productive, but disagree with his conclusion.

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Scholarship Advice

April 5th, 2016 / By

My talented colleague Chris Walker is blogging this month at PrawfsBlawg with a series of posts about how junior scholars can maximize the impact of their scholarship. As Chris explains in his initial post, he hopes to crowdsource answers to questions that junior scholars frequently ask.

I hope Chris’s discussion will attract both junior scholars and more senior ones. A lot has changed in the world of legal scholarship over the last thirty-five years:

  • Junior professors begin their tenure-track work with more substantial scholarly experience.
  • Technology and reduced teaching loads allow tenure-track faculty to produce more scholarship–which, in turn, raises expectations for that production.
  • Law reviews, conferences, and online forums have multiplied, making scholarship more interactive.
  • Interdisciplinary work has increased and become more sophisticated.
  • Concerns about insularity have revived interest (at least among some faculty) in scholarship that directly addresses student or practitioner needs.

Given these changes, how do we choose to use the time given us for scholarship? The opportunity to engage in unfettered scholarship is a great privilege–one that we should execute in the public interest. That doesn’t mean that the public should dictate our scholarship; great discoveries sometimes come from meandering, seemingly “irrelevant” explorations. But we, the scholars, should regularly reflect on the ways we use our privilege.

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“Little Staff Attorneys”

January 21st, 2016 / By

At the AALS meeting, a friend of mine (and tenured professor) stood chatting with a few tenured colleagues from other schools. Conversation turned to work that another professor had done in a clinic. “Yeah,” said one of the professors, impressed, “and they didn’t even have a little staff attorney to do all the work.” My friend protested this derogatory reference to staff attorneys, and the professor apologized, but the remark was telling.

This is how all too many tenured professors think of clinical work, clinical professors, and staff attorneys; the same attitude applies to legal writing professors. This work, we assume, is simplistic and doesn’t merit our full attention. It can be done by “little” people. (more…)

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Needing Law Schools

March 22nd, 2015 / By

I agree entirely with Noah Feldman that society needs law schools. He couldn’t have said it better. This, however, is exactly why law schools need to fix their financial model. Most schools lack the big endowments of Harvard and other elite schools. Students, meanwhile, are increasingly unwilling to pay so much more tuition than Feldman did in the 1990’s or I did in the 1970’s. We need to keep asking: Why does it cost so much more today to learn what the law “can be”?

I learned a lot about what the law can be from Ruth Bader Ginsburg, my constitutional law professor at Columbia in 1979. I also learned from Herbert Wechsler, author of the much-cited article on “neutral principles” in constitutional law; William Carey, one of the New Deal architects and an early chair of the SEC; E. Allan Farnsworth, Reporter for the Restatement (Second) of Contracts; Maurice Rosenberg, one of the earliest legal scholars to apply social science research to legal problems; and many others. Why were all of these luminaries able to teach me and my classmates for so much less tuition than Columbia and other schools demand today?

In part, they earned less. I know that, because I am the daughter of yet another Columbia professor from that era: William K. (“Ken”) Jones. Our family did just fine financially, but we didn’t have the affluence that law professors enjoy today. Another explanation rests on the enormous number of staff members that law schools now need to operate. Communications staff, admissions staff, development staff, student services staff . . . . Each seems indispensable in the modern law school, but how many contribute to our mission of teaching students and others what the law can be?

I doubt that it’s possible to unwind the contemporary law school, to dismiss all of the staff, and go back to an earlier, simple world. Although it’s a charming notion, isn’t it? We could simply post our lower tuition, admit students who apply (without spending time marketing to them), teach them, and send them into the world knowing something about both what the law is and what it can be. Meanwhile, we would publish and engage in law reform efforts–as Ginsburg, Wechsler, Carey, and the others did–while teaching four courses a year.

I know that’s unlikely to happen, so we’ve got to find other ways to fix the financial model. Shifting the first year of law school to the undergraduate curriculum makes sense to me. Let’s teach more people about both the power of law and what it can be. Meanwhile, let’s lower tuition for those who will actually practice law. We, as professors, can teach people what the law can be–but our graduates are essential to make those changes happen.

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Symposium on the University Presidency

August 25th, 2013 / By

I haven’t had much time to post during the last two months, because my university asked me to take a leadership role on our presidential search committee. Our search, however, is connected to an upcoming event that may interest some of you: this Symposium on the University Presidency.

Ohio State’s Board of Trustees had the innovative idea of framing the university’s search by convening a panel of current and former presidents to discuss the presidential role in a modern university. If you’ll be in Columbus, Ohio, this Friday afternoon, you’re welcome to stop by. If you’ll be anywhere else in the world, you can follow the proceedings by live webcast; web information will appear soon on the page linked above.

The symposium includes Teresa Sullivan, the President of the University of Virginia who clashed famously with her university’s Board of Visitors. Scott Cowen, the Tulane University President who helped his campus survive Hurricane Katrina, will also speak–along with three other articulate and knowledgeable presidents.

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Berkman Center Webcast on “Creating a Law School e-Curriculum”

June 27th, 2013 / By

The Berkman Center for Internet and Society at Harvard Law has a live webcast on July 9th at 12:30 pm eastern called “Creating a Law School e-Curriculum.” The speaker will be Oliver R. Goodenough, a fellow at The Berkman Center and a Professor of Law at the Vermont Law School.

Here’s the description:

Legal practice and legal education both face disruptive change. Much of how and what we do as lawyers and how and what we have taught as legal educators is under scrutiny. Legal technology is an important factor in driving these challenges. Law schools reform their curriculums law and technology is an area that is ripe for expansion in our teaching. It also provides ample room for scholarly examination. Creating opportunities for learning how technology is shaping legal practice should be a priority for any school looking to provide a useful education for the lawyers of the present, let alone the future.

To watch the webcast, simply visit this page at 12:30 pm eastern on July 9th. If you’re in Boston, the same page provides a form for you to RSVP to the luncheon.

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Too Soon to Tell

June 21st, 2013 / By

At Washington & Lee, as at most schools right now, we would prefer that our students were more successful in obtaining employment. But the 2012 employment figures, unfortunate as they are, say nothing about our our curricular reform. It is simply too early, . . . much too early.

The 2012 numbers refer to the first full class to pass through the reformed third year curriculum. Ours is a slow-to-change profession. Employers as a group do not change their settled practices on a dime. Nothing in the employment numbers that we see for the next 3 to five years should be seen as reflecting on the reception given to the curriculum reform. No curricular reform I know of, including Langdell’s, changed settled practices of others overnight. (more…)

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What’s driving change in legal education and why you should care

May 30th, 2013 / By

This piece was originally published by the ABA Journal.

Change is coming to a law school near you. Economics will drive the change, but the exact configuration will depend on choices made by law schools, state supreme courts, the ABA, and Congress over the next few years.

Without intervention, market forces are likely to segment law schools. Are schools and the profession content with that outcome? The question warrants serious debate.

Law schools have entered crisis mode as word spreads about their costs and job outcomes. In recent years, tens of thousands of graduates have struggled to enter the legal marketplace and find professional jobs with salaries that permit them to service student loan debt. As a result of a steep drop in applications and enrollment, schools face a budgetary crisis—one certain to change the face of legal education. We can bend the future, but only if reform happens through the lens of fixing law school economics.

The drivers of this change are on course to stratify legal education for lawyers into two layers.

One group of law schools—perhaps a few dozen “elite” schools—will continue using the traditional model. Research faculties will teach high-achieving students from around the country and world. Graduates from these schools will continue to obtain the most competitive jobs after achieving traditional market signals like high GPA and law review membership.

These schools will be cheaper by today’s standards, yet expensive by any reasonable measure. Classes will follow a curriculum designed using core lawyering competencies and will involve more simulations and more writing.

Overall, elite schools won’t look much different than today’s law school—a professional and graduate school hybrid that tries to simultaneously serve both the legal profession and the pursuit of knowledge. Nevertheless, they will feel different because the educational product will be more skills-oriented.

The second group of law schools—perhaps a few hundred “local” schools, including new ones—will use a model centered on teaching faculty. These schools will have similar educational approaches to the elite schools, but look much different. The faculty will be hired for their experience as lawyers, judges, regulators and policy wonks. Scholarship may not be part of the job description, but will endure because the desire to analyze the world around you is human nature. The schools may teach undergraduates, paralegals, and other professionals in addition to lawyers. Ultimately, local leaders and lawyers will shape an education that is less graduate studies and more professional development.

Affordability will be a feature, but local schools will be defined by the ownership the local legal community takes in educating future members. The result will be a faculty that fluidly moves between practicing and teaching.

A transient faculty will provide opportunities, but also a set of challenges for these schools, particularly how to ensure a high-quality, consistent product that’s capable of teaching each student what they need to succeed. To overcome some challenges, schools will share faculty—sometimes across town, sometimes across time zones—and course materials because it’s more efficient than trying to hire for every need and having part-time teachers reinvent the wheel each term.

Although it’s the broken economics of law school accelerating reform discussions, demands for change concern just about every aspect of law school and come from diverse perspectives. Many stakeholders view the crisis as an opportunity to shape the future. Not everything needs to or will change, but widespread dissatisfaction has put everything on the table.

There are three main drivers of change, each tied to the future I’m predicting:

First, the cost of becoming a lawyer is too high. Tuition skyrocketed because law schools operated in a completely dysfunctional market. Law students (and therefore law schools) had unfettered access to student loans with little downward pressure on the borrowing. Attitudes about student debt were unsophisticated and schools enjoyed an information asymmetry about post-graduation employment outcomes. While the loan system still provides blank checks, applicants now have credible employment information and are becoming increasingly price-sensitive.

As the applicant market becomes more functional, at-risk schools will cut their budgets to meet demand. Surviving schools will be those that accept the need to reinvent rather than rely on minor changes. Budgets are largely personnel-driven, so most schools will need to figure out how to more leanly deliver education. This will all but necessitate involvement from the local bench and bar.

This brings us to the second driver: the bench and bar. Practicing lawyers and judges are fed up with the quality of education. The steady drumbeat for more practical skills training isn’t new—in fact it’s a century old. But the opportunity for reshaping law schools is new because of the information about and coverage of their broken economics. The trouble: Creating a law school experience that the profession wants requires a redefinition of the law school mission. It must become more professional school than graduate school.

The opportunity stems partly from the third driver: the legal profession’s structural transformation. The media began paying attention to law graduate struggles when it became apparent that even graduates of the country’s most elite schools struggled in “the new normal.” This accelerated the decline in the JD’s perceived value and invited a multitude of skeptical voices to shout their discontent.

Yet the structural change has been more gradual. Over many decades, practice has grown more complex and specialized. Technology, globalization and the unbundling of legal services have accelerated the change. The legal profession of the future looks different; so too will the education system that produces its members.

Upholding the broad and often elusive principles of the American legal system—such as equality, opportunity, and justice—requires a legal education system that’s not merely subservient to market forces. Successfully addressing the drivers of change without flattening essential principles depends on whether the solutions explored and adopted provide more than lip service to the broken economics of the modern law school.

If we lose sight of what’s causing the change, we may lose the opportunity to bend the course for the better.

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Tenure

May 15th, 2013 / By

In my comments to the ABA Task Force, I endorse an accreditation standard that embraces academic freedom but does not require tenure. Brian Tamanaha made the same proposal in his book Failing Law Schools, but most academics vigorously defend an accreditation standard requiring tenure. Why do I favor the looser standard? Here are my top five reasons:

1. Tenure is not the same as academic freedom.

Tenure is an excellent way to assure academic freedom; in fact, it may be the best method of attaining that end. But tenure is a means to an end, rather than an end in itself. Tenure is like the absolute immunity that prosecutors enjoy when acting in their role as advocates. Just as absolute immunity promotes prosecutorial independence, tenure promotes academic freedom.

The distinction between means and ends is important, because means carry costs as well as benefits. Absolute immunity is a great way to protect prosecutorial independence, but a number of scholars and judges have questioned the wisdom of that immunity. Given the costs of absolute immunity (which include dishonest, retaliatory prosectuors), and the availability of other means to protect honest prosecutors (such as qualified immunity and insurance schemes), is absolute immunity the only acceptable means for protecting prosecutorial independence?

We need to ask the same question about tenure. Accreditation standards set a floor. Tenure is an excellent way of securing academic freedom, but is it the only acceptable means to achieve that end?

The answer to that question, I think, is clearly “no.” Long-term contracts, review processes, and other mechanisms can shield academic freedom. Those means may not be as effective as tenure, but they also lack the costs of tenure. An accreditation standard should require adoption of policies and procedures to protect academic freedom, but we need not mandate a single means to that end.

2. Lawyers take unpopular positions, without benefit of tenure.

In law school, we tell students that some of them will represent unpopular clients. The client may have murdered a child, contaminated seas with spilled oil, or distributed Nazi propaganda. All of these clients, we declare, have a right to legal counsel. We urge our students to represent those clients, regardless of the economic or social costs to themselves.

We also teach students that lawyers have ethical obligations to the court, the law, and third parties; those duties often require them to give clients advice that the clients don’t want to hear. Again, the lawyer must adhere to those ethical obligations, even at the risk of losing a valuable client.

For practicing lawyers, these costs are real. Suppose an associate agrees to pro bono representation of a human trafficking victim who is attempting to expunge a series of prostitution convictions and start a new life. If a paying business client objects to the former prostitute’s presence in the firm’s reception area, should the associate drop the case? What if a conservative partner suggests that the associate would be “prudent” to refer the prostitute to a “less business oriented firm”?

Or suppose that a junior partner attracts a promising start-up company as a client. The new company’s legal work poses no conflict with existing clients, but an existing client perceives the start-up as a business competitor. If the managing partner asks the junior partner to send the start-up to another firm, should the junior partner comply?

Finally, consider the lawyer defending her firm’s major client in high-stakes civil litigation. The client’s CEO tells the lawyer he “has things under control” because a vice president will lie about a key point at trial. Does the lawyer tell the client that, contrary to what he may have seen on television, lawyers are not allowed to call perjuring witnesses to the stand? Clients can, and do, fire their lawyers for this type of advice.

Many practicing lawyers, in other words, face challenging situations in which they must weigh truth, ethics, or client interest against their own economic and social interests. Given the hardiness that our profession demands from practitioners, why should our academics receive extraordinary levels of protection for their freedom of expression? Or, to phrase the question from the perspective of accreditation standards, why should we require law schools to provide that extraordinary protection as the only possible means of securing academic freedom? We call on other lawyers to speak the truth to their clients, partners, and supervisors, at considerable risk to their own livelihood.

3. Tenure confers unwarranted economic value on professors.

Universities adopt tenure as a way of promoting academic freedom, but the protection also gives professors economic security beyond that enjoyed by their peers in other occupations. Decades ago, when businesses showed more loyalty to their workers, and when law firms rarely dismissed partners, tenured professors held an economic position analogous to that of senior corporate managers or law firm partners. Short of gross malfeasance or the organization’s bankruptcy, all of those workers could count on secure employment until retirement.

Today the picture is quite different. Very few organizations offer their workers the type of economic security that tenured professors enjoy. Some of my peers at law firms or corporations lost their jobs after the Great Recession. They were at least as talented as me, brought great value to their organizations, and demonstrated integrity in their dealings with clients and others. But when times got tough, they were laid off. Professors are protected unless their schools close; even then, the university may have to find them a roost in another department.

As other industries have become more volatile, the economic value of tenure has grown–completely apart from its connection to academic freedom. I value my tenure, not only because it grants extraordinary protection for my academic freedom, but because it gives me a virtually impenetrable shield against economic downturns. Universities don’t grant tenure for the latter reason; the end is academic freedom rather than job security during bad economic times. But I get the latter along with the former.

Some tenure defenders claim that tenure purposely confers this economic benefit. They argue that professors are underpaid compared to other professionals, and that universities use tenure to make up that economic difference. Under this argument, it is cheaper for universities to grant tenure than to pay professors the amounts they would demand absent tenure.

I doubt that this argument is true, at least for law professors. Law faculty salaries have climbed over the last generation, at the same time that the economic value of tenure has increased. These increases don’t seem related to a diminishing supply of potential law professors; if anything, the supply has grown significantly. The lifestyle attractions of law teaching have also grown compared to high-stakes law practice, making the academy even more attractive. Law professors have used their gatekeeping power to raise salaries at the same time that other benefits have risen, producing a financial windfall.

For the purpose of setting accreditation standards, however, we don’t need to know whether tenure substitutes for higher salaries; we should simply leave that choice to law schools. If law schools find it cheaper to grant tenure than to pay higher salaries, they may follow that path. If they find it cheaper to grant higher salaries in place of tenure, or find that high compensation is not necessary, they should have that choice. The point here is that tenure confers a substantial economic advantage that is not part of its avowed purpose. Law schools should have the choice whether to grant that advantage, along with the premium protection that tenure provides for academic freedom, or to provide other forms of economic benefit along with alternative protections for academic freedom.

4. Tenure discourages organizational innovation.

Observers frequently note the academy’s resistance to change. Why are professors, who try to push the boundaries of knowledge, so reluctant to alter the ways they teach, admit students, or perform other institutional functions? I think tenure plays a significant role. Professors run little risk of losing their jobs, whatever students, the public, or others think of their institutional norms. The lack of usual market pressures reduces incentives to change.

Consider how law schools might have responded to changes in the legal market if professors lacked tenure. When Bill Henderson and other scholars started noting structural changes in the legal job market, untenured faculties might have taken more notice. “Gee,” they might have thought, “if our graduates can’t get as many jobs, we may not get as many applicants. If that happens, the school might downsize and I could lose my job. Maybe we better look into this and do something about the situation!” Instead, tenured law faculties largely ignored the trends until this year, when the effects became too glaring to overlook.

The same is true of rising tuition and mounting student loans. In any other industry, insiders would have realized years ago that their economic model was broken and that a crash was inevitable. Worried about losing their own jobs, they would have moderated tuition or found other ways to avoid disaster. Tenured professors have little incentive to worry about these challenges. Even an industry tsunami–like the current plunge in law school applicants–will result in relatively few tenured professors losing their jobs. A few schools may close, with those professors losing their tenured positions, but most schools will lay off staff, trim other expenses, and hold off replacing retired professors. Tenure means that relatively few professors place their own livelihood at risk by ignoring market forces.

Tenure shields professors from market effects, but students and graduates aren’t as lucky. While professors pooh-poohed talk of structural changes in law practice, and ignored cracks in our economic model, law schools kept admitting students and raising tuition. If we’d faced facts earlier, would we really have raised tuition in 2009, 2010, 2011, and 2012? Would we have reduced class sizes earlier? Would we have moved more aggressively to find better ways to prepare students for available jobs? Quicker, market-based reaction could have helped our students and graduates.

5. We’ve lost the pension-plan hedge.

Until recently, pension plans gave universities a hedge against some of tenure’s worst financial effects. Many pension plans provided defined benefits that lured professors into retirement at age 65. If a university faced rocky economic times, it could sweeten the deal to tempt even earlier retirements. Some of these deals were literally too good to refuse. If working more years won’t increase your pension, and if the promised pension is close to your current salary, it makes economic sense to retire. At public universities, these deals shifted costs to state pension plans–with the calamitous effects some state plans now face. But that’s a different story. From the law school’s perspective, defined-benefit plans provided a way to move senior (and highly paid) professors off the payroll.

At the turn of the century, defined-contribution plans became popular and more professors opted for them. These plans offer very little incentive to retire. On the contrary, as long as a professor can satisfy the minimum job demands, defined-contribution plans encourage senior professors to stay in the workplace. As a University of California website explains, traditional defined-benefit plans “can be designed to encourage early retirement” and “may financially penalize workers for working additional years beyond the normal retirement age.” Defined-contribution plans, in contrast, “cannot be designed to encourage early retirement but instead rewards employees for working additional years.”

I’m part of the rising wave of potential retirees with defined-contribution plans. As I look ahead to age sixty-five, I see no reason why I would retire. By that time, I will have been a law professor for more than thirty-five years. Even if I’m burned out, fatigued by age, or suffer a partial disability, I’ll probably be able to handle a few hours of teaching a week, plus a few committee meetings and office hours. After decades of experience, those things come pretty easily to me. And with tenure protecting me against pressure to publish or volunteer for extra duties, I could spend the rest of the week gardening, playing poker, or resting up for my campus appearances. Teaching is a nine-month gig, so I could also forego the summer research grants and spend my summers traveling the world in flat-out retirement mode. I may even persuade myself that my elder wisdom compensates for any other shortcomings in teaching or research. Surely the students and younger faculty will want to know what law practice was like in 1980!

With the benefits of modern medicine, tenure, and the supportive academic lifestyle, many of us will be able to follow that game plan well into our eighties–twenty years or more after the traditional retirement age. We’ll keep earning our senior professorial salaries, most likely with at least annual inflation increases, while socking more money into our retirement accounts. Best of all, we can even use the money in those retirement accounts without actually retiring! Conversely, if bad investments or a poor market shrink those accounts, we’ll have even more reason to keep working.

Some of these senior professors, of course, will continue making valuable contributions to both teaching and research. Sixty-five, seventy, and eighty are still young for many people. The professors doing that today, however, often are drawing their pay from pension plans rather than the law school’s budget. The big switch, which will start over the next few years at many schools, is that these highly regarded, highly paid professors will continue drawing their salaries from school budgets long after age sixty-five. Whether they contribute mightily or meekly to the school’s mission, they will be very, very expensive.

Universities have started talking internally about the financial threat of defined-contribution retirement accounts, but I haven’t heard of solutions. The costs of tenured faculty are going to rise significantly–beyond what schools have been accustomed to paying–just at a time when tuition revenue will start falling. Tenure combined with defined-contribution retirement plans will create an unprecedented financial crisis in the academy–and that’s saying something given the extent of the current crisis.

Once again, there’s no reason for accreditation standards to force this crisis on law schools. If a law school believes that the benefits of tenure outweigh this financial threat, it is welcome to grant tenure. But if a school wants to protect academic freedom in less financially ominous ways, it should have the power to do so.

Conclusion

Tenure has other costs, which I’ve omitted here. It protects lazy professors, incompetent ones, and even the truly malicious. In theory, a university can de-tenure professors in the last two categories, but the process is difficult. Other means of protecting academic freedom would give universities greater latitude to weed out professors who harm the academic mission. The absence of tenure probably would deter some of that harmful behavior from occurring.

The absence of tenure, on the other hand, might well expose some professors to job loss for expressing unpopular views. Tenure is the premium plan for academic freedom; other plans won’t work quite as well. But other plans also cost less. Law schools–and their students–deserve the opportunity to balance these costs and benefits, choosing the plan they prefer to for protection of academic freedom. Potential professors will also be free to choose whether the proposed benefits suit their needs.

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