Wednesday, August 29, 2012
Following up on yesterday's post, Tamanaha: UC-Irvine's Original Sin: Chasing Prestige at the Expense of Public Service: Erwin Chemerinsky (Dean, UC-Irvine), A Response to Brian Tamanaha:
Brian Tamanaha criticizes me and UCI Law School for making the choice to create a top 20 law school. In his book, Professor Tamanaha argues that we should have created a low cost law school instead. ...
First, all of the goals that Professor Tamanaha identifies in his book – maximizing the opportunity for jobs for our students, especially jobs that will allow students to pay back any loans, best serving the profession and the community – are best achieved if we succeed in being a top 20 law school. ...
Second, had we followed Professor Tamanaha’s advice we could have achieved none of this and would have created a not very good fourth tier law school. Professor Tamanaha criticizes the salaries we paid, matching the salaries of those we hired at their prior schools. He says that we could have hired other faculty more cheaply. But we certainly could not have attracted the kind of faculty who have come to UCI without matching their salaries. ...
But even more importantly, his approach – whether for UCI or other law schools – would lead to a poor legal education. ...
Professor Tamanaha makes many important points in his book. But I am baffled as to why he singled out UCI and me for criticism for aspiring to create a top school. The irony is that had we followed his approach we would have created a not very good fourth tier school and his most powerful criticisms are directed at such schools. By seeking to create a top school, we are best serving our students, our community, and hopefully the profession as well.
Paul Horwitz (Alabama), Tamanaha vs. Chemerinsky:
I am far from persuaded by Chemerinsky's arguments.
Chemerinsky's core argument, one that is all too common in our profession and within our social class, is that it is essential for law schools to do "well" by conventional measures in order to do "good." There is some justice to that: as he writes, in a credential-obsessed environment, "public interest places can be as elitist in their hiring as firms and being a top tier law school is crucial if we are going to get our students public interest jobs." But the question, to me, is 1) whether the cost of doing "well" outweighs its putative benefits toward the goal of having a successful public service-oriented law school; and 2) whether Chemerinsky, as Tamanaha argues, sets up a false dichotomy between either having "a 'top 20' law school or a 'fourth tier' law school." This leaves out the possibility of genuinely innovating: of having a school that attempts to defy those categories altogether and focuses instead rigidly on the single goal of designing a fully public service-oriented law school. The subject matter and prestige of the professors Chemerinsky hired seems to have relatively little to do with that goal. In the way that liberal elites or elites of any kind do, it seems to me to end up accepting as a given, and benefiting from, all the conventional values of success and prestige that are part of the current system and have served its prominent faculty so well, until in the end the goal that was supposed to drive the whole enterprise becomes something closer to the cherry on top.
Perhaps if we let go of some of our endless elitism, there would have been more room for both schools to either accept -- or challenge altogether -- what it means to be a "lower-tier" school, and for Irvine in particular to present us with a genuinely different model of what legal education means.
One of the commenters asked about what innovations were possible. Five years ago at Tax Prof Blog, Paul Caron ran a series about advice for Dean Chemerinsky, and the various posters had a wide mix of suggestions, from, essentially, "here's how to chase the traditional type of prestige" to "do something quite different." Now that UCI has been up and running, it's interesting to go back and re-read that advice.