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Wednesday, October 17, 2012

Morriss Reviews Tamanaha's Failing Law Schools

FailingAndrew Morriss (Alabama) reviews Brian Tamanaha (Washington U.), Failing Law Schools (University of Chicago Press, 2012), in the Library of Law and Liberty:

Tamanaha ... has written a timely, thoughtful, and provocative book about the state of legal education. ... Tamanaha also writes extraordinarily clearly and precisely, and the book is a pleasure to read. The book is ultimately disappointing, however, because, despite a bold claim that talking honestly about the economics of the legal academy will “affront” his colleagues, Tamanaha ultimately pulls his punches both in describing the problems and suggesting solutions.  ... [T]he book falls short of its ambitious goals in several ways.

First, law schools are far from unique in being captured by the professors. Faculties have captured universities and colleges generally. ... There is a considerable literature on these larger trends in academia, but Tamanaha discusses almost none of it. Are law schools different in kind or merely in the size of the economic rents their faculties are able to extract? Given how widespread the discussion is now about a “higher education bubble”, it is important to know the extent to which law schools’ failures are unique to them or merely part of an overall problem in American higher education. ...

Second, Tamanaha identifies only part of the issues surrounding the U.S. News & World Report law school rankings. He correctly identifies a number of significant impacts the rankings have had, but then falls short in his analysis. ... “The rankings made us do it” for unethical behavior is as poor an excuse by those purporting to be educating future leaders of a self-regulating profession as “all my friends are snorting coke” is for a high school student caught by his parents with a backpack full of drugs. ...

Third, Failing Law Schools fails to address the full consequences of the capture. Tamanaha does a tremendous job illustrating how law professors have come to dominate the ABA’s Section on Legal Education. In particular, he gives a clear explanation of how the accreditation process has increased law professors’ salaries and improved their working conditions. But again, Tamanaha pulls his punches. Emory law professor George Shepherd has thoroughly documented how the ABA standards are not simply a means of feathering the nests of faculties but also are responsible for creating the problem of access to justice for the poor. ...

Fourth, Tamanaha is far too circumspect on the failings of legal scholarship. Although he notes that much legal scholarship is never cited, that law schools today do not value doctrinal analysis as much as they did in the past, and that many lawyers and judges do not find legal scholarship to be particularly useful, his conclusion is merely that “We must inquire whether it is appropriate that law students are forced to pay for the production of scholarship at current levels and to the same extent at law schools across the board. Not all law schools and not all law professors must be oriented toward research.” This is a weak conclusion that avoids the hard questions. ... Tamanaha offers no metric by which deans, university boards, or the legal community can choose how much or what kinds of legal scholarship is worth the cost. This is a fundamental question for the future of the legal academy, yet all Tamanaha provides is the obvious point that some legal scholarship is not worth the cost without offering a means by which to identify that which is worthwhile and that which is not. This was a major missed opportunity to start a dialogue on a critical point.

Failing Law Schools is an important book, one that raises more questions than it answers. Its greatest virtue is the concise, clear statement of the economic problem of legal education. Its greatest flaw is its failure to probe below the surface of the problem. Prof. Tamanaha is a worthy contributor to the debate over the future of legal education; and I hope he will continue to make contributions as the debate progresses.

Other reviews of Failing Law Schools:

http://taxprof.typepad.com/taxprof_blog/2012/10/morriss-reviews.html

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Comments

I recently read Tamanaha's book, which certainly lays out a good strong case as to the problems of legal education. Unfortunately, when he comes to the solution -- what to do about this -- the strength of the book severely deflates. He proposes two tiers of laws schools -- one made up of about 15 or 20 of the top law schools today continuing to do what they do now, i.e, focusing on research/scholarship, and the remainder of which would focus on intensive preparation of their students for the practice of law. In brief, he is asking law school faculties to give up their aspirations to forge mini-Yales and to turn to a focus which most current law school faculty members are not really equipped to themselves handle, e.g., teaching the practice of law, inasmuch as most law school faculty members do not have the experience, and therefore lack the expertise, to teach practice. (According to Tamanaha, the average length of practice of Harvard faculty members is about 1 year; at other law schools it is about 3 years). In brief, Tamanaha is calling for the great majority of law school faculties to commit professional suicide, by opting for a model that would result in many of them losing their jobs (or, given their having tenure, would result in their sitting in their offices twiddling their thumbs, or, again, losing their jobs by virtue of some major administrative shift that would finesse the tenure barrier to termination). That self-sacrifice ain't going to happen.

Posted by: Howard Eglit | Oct 17, 2012 7:47:29 AM