ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Wednesday, December 12, 2012

Thoughts on Curricular Reform IV: The Place of Scholarship in the 21st Century Legal Academy

TamanahabI am going to invoke a name that heightens the blood pressure of many legal academics.

Brian Tamanaha (pictured).  

I admit that I have not read Professor Tamanaha's book cover-to-cover, but I've read a number of his blog posts and a lot of commentary about his book, so I think I have a fairly good handle on his main points and without endorsing the book in its entirety, I think that much of what he says in Failing Law Schools is relevant to on-going discussions on curricular reform.  That is, I agree with Tamanaha's argument (as I understand it) to the extent that he faults law schools for modeling themsevles on research universities in which faculty members are rewarded for high-profile, cutting-edge research with reduced administrative responsibilities and lighter teaching loads.

But, as I argued in a previous post, the solution is not to turn the clock back to a pre-Langdellian era in which law schools were simply glorified apprenticeships, and instructors were practitioners who taught part-time.  Instead, some law schools should models themselves not on great research universities but on great liberal arts colleges.  The professors at great liberal arts colleges engage in scholarly research, often at a very high level, but their primary allegience is to their own community.  

When I was a doctoral student, I was befriended by an emeritus professor who had taught at that institution for nearly seventy years.  He was a historian of international reknown in his field.  He had also chaired the department, been actively engaged in university administration and was the first chair of the Ivy League athletic eligibility committee. In addition, he had served for thirty-two years as the Mayor of the small town abutting the university.  

When I came to know him, he was at work on a history of the university.  He told me that the most important change that he had experienced during his career, which spanned most of the 20th century, was that the department had changed from one in which what mattered most was the esteem in which one was held by one's colleagues and students to one in which what mattered most was the esteem in which one was held by professors at other universities.  The change saddened him.  It diminished the place's sense of itself as a community defined by a spirit of collegiality and common purpose. 

I would like to see some law schools abandon the hope of being imitatio Harvards in favor of becoming imitatio Haverfords (or Oberlins or Grinnells, etc.).  Moreover, such a change is what our students need.  Increasingly, our students come to us without the benefit of a traditional liberal arts education that prepares them for the challenges of legal practice.  Legal education needs to provide that grounding in basic reasoning, professional development, and writing skills before we throw them into the world of practice.

Unfortunately, it is not what our students want, or at least I don't think it is what they want.  Like a lot of law professors, I introduce a lot of theoretical and interdisciplinary perspectives into my courses.  This time of year, when students finally avail themselves of my office hours, they often ask whether "any of that theory that we talked about in class" will be covered on the exam.  They clearly hope that the answer will be no, and when the answer is yes, I can almost see them doing the mental calculation to try to deremine how well they will have to do on the rest of the exam to make up for their complete inability or unwillingness to wrestle with what seems terribly impractical to them.  They shouldn't worry, since I grade on a curve and they are mostly in the same boat.  

Many law students come from unsatisfying experiences in the world of work.  It is completely understandable if their attitude is, "Look, I got a college degree, and it didn't qualify me to have a career.  I came to law school to learn practical skills, not to waste more tuition dollars on 'academics.'"

It is understandable that they think that, but in many cases, students were not able to find satisfying work before law school because they lack the cognitive abilities, reasoning and writing skills that they would need to succeed.  And they won't succeed after law school without those abiliites skills either.

And so, I still believe that law professors need to be teacher/scholars, actively engaged in scholarship and in the lives of their communities and in their students' intellectual development.  As for scholarship itself, Brian Leiter was here a few weeks ago to deliver our annual Seegers Lecture on Jurisprudence.  In response to a question about the value of scholarship, he said something very close to my view.  Most of what gets published is a dead end.  But a certain percentage of it is very valuable, and there is no way of telling ex ante which scholarship is going to move the ball in a meaningful way.  That's why we need lots of people doing their best to move the ball and why we need to continue to support faculty scholarship. 

In addition, as I have noted in a different context, I think our students need to be part of the academic enterprise.  The very best training I received in my law school happened at my journal, when I first engaged in meaningful research, not of my own choosing, with something (albeit just the sources for claims made in law review articles) at stake.


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Thanks for a thoughtful commentary, Jeremy and I completely agree. I think law school has started to stand for something other than what it is (or should be) - a legal education, that provides as you wrote "grounding in basic reasoning, professional development, and writing skills" (I include analytical skills in basic reasoning, as I think you do). Scholarship is (and should be) an essential part of any educational institution's mission. Furthermore, memorizing (and teaching) rules without theoretical context leads to their misapplication...

Posted by: Nancy | Dec 13, 2012 8:31:34 AM

I liked the post, but did want to bear down on one aspect of it.

I have often heard the claim, "yes lots of scholarship is a dead end but some if it is valuable."I agree with it. But that statement doesn't tell us anything about how much of that scholarship we should have, how much is should it cost students and tax payers, or who should pay for those costs, does it?

That is, to move from that statement to "therefore we should do tomorrow the same amount of scholarship as we do today" would be a non sequitur, right?

Posted by: John Steele | Dec 18, 2012 7:30:59 AM


It would indeed be a non-sequitur if my argument were that we should support scholarship in the future as much as we do today. I did not in the post suggest that we need either more or less support for faculty scholarship, and I think each institution is going to have to develop its own approach to the question.

I don't know how much taxpayers enter into it, and support for legal scholarship (at least at institutions like mine) actually doesn't cost anybody very much. I think it is very hard to put a price tag on the value of the sort of innovation and law reform that scholarship fosters. It is also hard to put a price tag on the ways in which students benefit directly from faculty scholarship. That is, they serve as our research assistants, which gives them valuable training in legal research and an opportunity to become expert in an area of the law, and they edit law journals, which again is a great opportunity for students to improve their practical research, and editorial skills. I think students also benefit (indirectly) from learning from law professors who are engaged in scholarship, but I know that some question the connection between teaching and scholarship.

So, I don't know what the right balance is between a focus on scholarship and a focus on pedagogy in the law schools, and my point was simply that we should not view this as a zero sum game.


Posted by: Jeremy Telman | Dec 18, 2012 8:43:56 AM

I care deeply about the legal profession generally, and legal education in particular. I have read most of the books on the subject, and follow most of the blog discussions. But nothing that I've read (or said) captures so much of the problem and (crystallizes so much of the solution) as the insight that you attribute to this emeritus professor of yours. "The most important change that he had experienced during his career, which spanned most of the 20th century, was that the department had changed from one in which what mattered most was the esteem in which one was held by one's colleagues and students to one in which what mattered most was the esteem in which one was held by professors at other universities." Reading this rendered me essentially speechless. Wow! Love it!

Posted by: T | Dec 19, 2012 12:21:53 PM