Sunday, February 12, 2012

Neil Buchanan On The Law School Crisis and the Civility of Discourse

Professor Neil H. Buchanan has posted a defense of law schools against recent criticisms on Dorf on Law.  He writes, "Some of the complaints about law schools are clearly meritorious -- for example, it is impossible to make a case in favor of allowing law schools to lie about their employment statistics -- but many others are downright silly. My overall reaction to the public discussion is that far too many people are launching broad, baseless, ill-informed attacks on an institution that is both fundamentally well designed and essential to the maintenance of a civilized society."

He declares, "It seems plausible to imagine that the current media hype itself is ultimately driven by little more than the state of the economy."  "Potential law students are, for very good reasons, focused on the future, and they have every incentive to think about whether a law degree will be good for them. If the economy improves for lawyers, then it is hard to imagine that applications will not rise in response." 

He is concerned that these complaints "might have the effect of reducing the number of people who are potentially interested in attending law school."  He also worries that "long-term damage is being done to the notion of the legal academy as an academic institution. Even if future applicants are not being permanently put off of legal education, the public at large -- and especially political players, many of whom are generally hostile to academic inquiry and intellectual freedom -- is being inundated with claims that legal academics are fundamentally out of touch and wasting time and money."  He concludes: "In short, The New York Times and other news sources are doing serious damage to the long-term prospects of the legal academy, and ultimately to society as a whole. That damage, however goes far beyond the possibility that our future client pool is being drained on the basis of over-hyped claims. The future of intellectual inquiry is at stake, and there is good reason to fear that the damage being done now will have serious consequences well into the future."

I disagree with Professor Buchanan that for the most part there is nothing wrong with legal education.  I agree that legal education is fundamental to the maintenance of a civilized society, but I do not view our current legal educational system as fundamentally well designed for today on both the structural level and how we teach.  While the economic crisis has made things worse, there is much wrong with legal education that is not due to a bad economy.  As Professor Brian Tamanaha has warned: "Law schools are caught in the grip of two separate, reinforcing declines that portend a severe contraction in the immediate future: fewer people are taking the LSAT test, and fewer people who take the test go on to apply to law school. (It is possible that a sharp decline in the former will lead to a rise in the latter, but that has not happened so far.) A painful dose of economic discipline for law schools is just around the corner."

While I disagree with Professor Buchanan's main thesis, I think that many of the attacks on legal education have been broad, baseless, and ill-informed.  I do not worry so much, as Professor Buchanan does, that these attacks will affect the notion of the legal academy as an academic institution.  Rather, I am worried how these attacks will affect the legal education reform movement.  The hyperbole of the scam bloggers makes it easy to ignore the fact that there is some truth in what they are saying.  For example, Paul Campos has posted a reply to Professor Buchanan's post.  Campos declares that "He sounds, in short, like a parody of an arrogant, clueless law professor, talking about stuff he actually doesn't know anything about, while appealing to the self-evident truth of his assertions."  Other words he uses to describe Buchanan and his ideas include bluster, arrogant, clueless, audacious, diatribe, dysfunctional, etc.  With these kinds of attacks on legal education, is it any wonder that many in the academy aren't taking the problems in legal education seriously?

We need a reasoned discussion on the crises facing legal education, and we need to do it in a civilized manner.  A person will never be convinced by the language that the scam bloggers and their followers are employing.  People do not react well to personal attacks.  Let's tone down the rhetoric and eliminate the personal attacks, and get down to the business of identifying and solving legal education's problems.

(Scott Fruehwald)

"All a poet today can do is warn."  Wilfred Owen (English poet killed in World War I)    

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