Monday, May 14, 2012
[Update: I edited the review below to remove three paragraphs from my analysis. It was a metaphor that was not key to my review of Brian's book yet could be fairly viewed as insulting to readers I both respect and hoped to persuade. I am sorry about that. It was a substantial change, so I am acknowledging it here. wdh.]
Many legal academics are going to dismiss Brian Tamanaha's book, Failing Law Schools, without ever reading a page. A larger number may simply ignore it. That is ironic, because this is the response one would expect if Tamanaha's account of a corrupt, self-indulgence academic culture were true.
I have lived inside this culture since I joined the academy in 2002. And I can attest that very few people inside the academy believe that we are living the high life on the backs of our students. But in the year 2012, that perception does not matter very much. Rather, the perception that matters is the one from the outside looking in.
Over the last eighteen months or so, The New York Times, The Wall Street Journal, The Washington Post, The Atlantic, the legal press and countless blogs (many written by unhappy students) have relentlessly hammered away at law schools.
The lay public, including most practicing lawyers, are looking for a definitive account that can explain the legal education's maelstrom. Tamanaha's account is a veritable Brandeis Brief on what went wrong, chocked full of facts and history and persuasive analysis.
It begins with a deal between the ABA and AALS to join forces to persuade the state bars to restrict entry to ABA accredited law schools (the ABA's goal) and thereby to elevate the stature of the legal professoriate (the AALS's goal). Once this deal was struck -- in the early 20th century -- pretty much every change accrued to the benefit of the law faculties: higher salaries, lower teaching loads, the advent of administrators to lighten the burden of governance, and more freedom to pursue scholarly interests. When U.S. News & World Report ranking appear in the early 1990s, the law schools are forced to make choices. And our collective behavior suggests that vanity and prestige are all-too-likely to trump important principles like student diversity or honesty in reporting data.
For us law professors, here is our conundrum. From the outside looking in, things look bad, even corrupt. Yet we don't feel we have done anything wrong. We are certain that we lack the intent to cheat or defraud. But that, unfortunately, is error #1. As we all know, establishing intent is always a matter of circumstantial evidence. So let's review that evidence from the perspective of the neutral fact finder.
Life is objectively good for us: We have high salaries, social prestige, lots of travel, job security, and near absolute freedom to organize our time outside the three to six hours a week we teach, 30 weeks a years. Against this backdrop, there is consensus among legal employers that we are not very good at practical training including, in the eyes of many, basic legal writing. Moreover, the overproduction of lawyers creates problems for the legal profession as a whole. Similarly, our students are saddled with enormous debt and nothing we are doing curricularly seems geared to solving their burgeoning unemployment or underemployment problem. The federal government finances this "system." And through Income-Based Repayment programs, the U.S. taxpayers are backstopping our high costs.
Because law faculty seems to be getting the long end of the bargain here, our subjective feelings of honesty and rectitude are unlikely to be viewed by many students, practicing lawyers, or the broader public as credible. In fact, they may be viewed as insincere or out of touch. How did things get so badly out of kilter?
But for Tamanaha, some pesky journalists, angry students, and the ticking time-bomb of law students debt, I am confident that we law professors could coast along on our present track for another several decades. As an insider, I can honestly testify that we believe--sincerely beheve--that we care about our students, the quality of their education, their debt loads, and their future job prospects. But looking at the same set of facts, history will draw its own conclusions. And Tamanaha, akin to a lawyer building a case, offers up a very compelling narrative that the dispassionate observer is likely to find convincing.
Other bloggers and news outlets have commented on Tamanaha's book, often drawing very different conclusions. Compare Brian Leiter's Law School Updates and Orin Kerr at Volokh Conspiracy (Tamanaha's argument has merit, particularly when he suggests that lower ranked law schools should consider changing their models), with Scott Greenfield at Simple Justice (here and here) (Tamanaha describes an insular, out-of-touch professoriate from the top down that distains the input of practicing lawyers) and the Chronicle of Higher Education (subscription req'd) (describing Tamanaha's thesis, "Law schools are bloated with too many underworked, overpaid professors whose salaries are supported by tuition increases that are making law school a losing bet for many students").
What are the proper inferences to draw?
In late 2011, I reviewed a copy of Tamanaha's book as part of the peer-review process for University of Chicago Press. My primary advice to Brian, communicated directly to him as well as his editors, was "to condemn the sin, not the sinner." Legal academics may seem culpable for privileging their interests ahead of students, I said, but these are the same folks who need to be relied upon to fix the problem. (The alternative is that nearly all of U.S. legal education will collapse under the weight of high costs and fewer entry level legal jobs; and on many days, I think the latter is just as likely as the former.)
Frankly, I don't know if my "condemn the sin, not the sinner" recommendation was good advice. In order to change, the legal academy may need more pressure brought to bear from outside forces. This may happen if the legal academy is painted as more selfish, insular, elitist and out of touch than we already look now. Congress and the Department of Education hold the ultimate trump card, and Tamanaha's book provides the essential supporting evidence for radical action. If and when this happens, law faculties will be forced to pick sides.
History is now playing out right before our eyes. I believe there is a good chance that Brian Tamanaha's book will be viewed--by history at least--as a great act of courage. The implication, of course, is that the rest of us will look foolish.
Brian discusses the bleak employment prospects of law schools, but (through no fault of his own) understates the nature of the structural change that is occuring in the U.S. and global market for legal services. In Part II, I will write about some logical next steps for law schools looking to get ahead of the coming tsunami.
[posted by Bill Henderson]