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Sunday, May 5, 2013

Self-Congratulation and Faculty Scholarship

Paul Campos (Colorado), Self-Congratulation and Scholarship, 60 UCLA L. Rev. Disc. 214 (2013):

Brian Tamanaha’s Failing Law Schools argues that American law schools now cost far too much to attend, given long-term trends in the employment market for people with law degrees. ... Professor Jay Sterling Silver criticizes Tamanaha’s proposals. [The Case Against Tamanaha’s Motel 6 Model of Legal Education, 60 UCLA L. Rev. Disc. 52 (2012).] Silver believes the proposals will lead to a stratified hierarchy of law schools, with only a few elite institutions continuing to provide the high-quality pedagogical experience that Silver assumes everyone now enjoys by attending law schools accredited by the ABA. Silver argues that Tamanaha’s reforms would force the vast majority of law schools to provide their students a “cut-rate education,” much to the detriment of the students’ future clients.

Professor Silver’s response contains a number of unsubstantiated assertions. This Essay addresses three of them: the current cost of legal education is an accurate reflection of the real cost of producing adequately trained lawyers, the scholarship produced by tenured law faculty has enormously beneficial effects on the operation of the legal system, and Tamanaha’s reform proposals would stratify legal education. These claims illustrate how, in my view, the crisis of the American law school is in large part a product of the tendency of law school faculty to indulge in platitudinous self-congratulation.

1. Market Failures. ... Silver does not dispute Tamanaha’s diagnosis. Instead he recommends the budgetary equivalent of a couple of aspirin and some bed rest: Law schools must “tighten their belts, reduc[e] the size of incoming classes, cut[] administrative costs, and forgo[] hiring for a while,” rather than the more aggressive treatments Failing Law Schools advocates.

2. Tenured Faculty and Legal Scholarship. ... Silver argues that tenure and low teaching loads are necessary for the production of valuable legal scholarship. ... This argument makes several assumptions: (1) That the production of valuable critiques of the legal system is a common outcome of the current publication requirements for tenure-track faculty at American law schools; (2) That seriously suboptimal amounts of these valuable critiques of the legal system would be generated by law schools if Tamanaha’s reforms were adopted; and (3) That these valuable critiques of the legal system constitute an important practical counterweight to the invidious effect self-interested actors have on the legal system. These three assumptions strike me as, respectively, implausible, incredible, and utterly fantastic. ...

3. Two Tiers of Legal Education and the Socratic Method. Silver then turns from the more general, societal benefits of law review article publication to what he calls “the needs of students and clients.” Tamanaha’s suggested reforms would result, Silver says, in a stratified system of legal education with Ritz-Carlton law schools for a favored few and a Motel 6 education for their less privileged peers. ... [I]n the 1970s teaching loads for law faculty were much higher, salaries were much lower, law reviews were publishing approximately one-sixth as many articles as they do now, and not coincidentally tuition at private law schools was a quarter of what it is today in constant dollars, while resident tuition at almost all public law schools was essentially nominal. If Silver is to be believed, this state of affairs should have produced a generation of Motel 6–quality attorneys, while allowing the wielders of power to operate without facing the various trenchant critiques that otherwise would have been appearing in the nation’s law reviews. Again, does Silver or anyone else have any evidence that either the quality of legal education or the social value of legal scholarship are substantially higher than they were a generation ago?

Conclusion. I have gone to the trouble of critiquing Silver’s attempt to reply to Tama­naha’s criticisms of contemporary legal education because Silver’s essay displays the same characteristic weakness as American legal academic culture: a tendency to make bold assertions about the value of legal scholarship and the effectiveness of law school pedagogy, while at the same time providing no support for these assertions beyond a willingness to repeat self-congratulatory platitudes about who we are and what we do. Self-congratulatory platitudes, however, do not become true merely through constant repetition.

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The main constraint on what law schools charge seems to be largely the embarrassment of being too far ahead of peer schools, leaving it to the expensive-real-estate urban law schools (e.g. Columbia, Northwestern) to generally push the envelope in this regard. But it appears that the demand is relatively inelastic. Harvard could probably charge a half million tuition, without COL, and still fill a class of five to six hundred. I'm not sure why these schools should cut back given there's probably lots of surplus demand from law students who just want the social prestige they perceive in a law degree.

Posted by: NL7 | May 5, 2013 3:00:19 PM

I agree that when a legal journal publishes a rebuttal to a rebuttal like this, just reiterating the main points in someone else's prior article, then there are just too many legal journals out there

Posted by: JayJ | May 5, 2013 3:42:15 PM

Redundant or not, Campos is spot on. Do we really need yet another article on Marxist critiques of contract law, or more hyphenated identity-based perspectives on the law? What percentage of papers are actually read outside of their own tiny echo chamber/bubble?

Here's a few very simple proposals to significantly drop tuition (in addition to the usual ones like dropping the 3rd year):

1) Increase teaching loads 50% - it's laughable that professors cannot teach 3 classes per semester.

2) Freeze faculty salaries, and drop them at least 25% for all new hires. Look at the competition for faculty spots - supply obviously outpaces demand due to the fact that it's a wonderfully cushy lifestyle and a great career. So why pay more than you need to? Harvard and Yale can fight it out for the next egomaniac like Chemerinsky, 90% of schools can and should pay less.

3) Cut useless courses (and reduce the faculty accordingly). Do we really need another Law and XYZ class with 10-15 students in it, and a professor teaching it while producing junk scholarship? Courses in niche subjects are worthwhile despite not having huge attendance because they actually cover an area of the law that people may decide to practice in. Law and XYZ courses on the other hand, are nothing but political navel-gazing, and utterly useless in the real world.

4) Drop administrative staff and expenses by at least 33%. If you gave the faculty/Deans no option but to cut, I am sure they could get rid of a lot of redundant administrators and useless people (like the junior assistant second vice provost for diversity and inclusion - because we all know law schools are such hostile places for minorities...)

Posted by: Todd | May 5, 2013 6:45:03 PM

In thinking about the value of legal scholarship, one must break it down by field. Antitrust law scholarship has been very valuable, overall (in any field, we must expect 90% to not help, but we don't know which 90% in advance). Constitutional law--- dubious. Criminal law--dubious. What about tax law? I don't think there is any problem of too much scholarship being produced, though maybe too little is of the kind to be useful for judges and policymakers.

Posted by: Eric Rasmusen | May 5, 2013 8:10:26 PM

This "debate" is the intellectual equivalent of rearranging deck chairs on the Titanic. Houston, there is a problem. The first step in fixing a problem is acknowledging the problem. Until that happens, you're taking on water and may at some point take on too much water to reverse the inevitable end. You guys will be hoarse arguing as you drown.

Posted by: Jay | May 5, 2013 9:27:41 PM

As an adult who went back to law school and recently had professor Silver, I can say people like him ARE the reason law schools are in trouble. As a businessman, I immediately, realized at a third or forth tier law school it was ridiculous for those professors to do "scholarship". The most "at need" students are at these schools, its common sense they need more interaction with professors to succeed, than perhaps the "smarter" students at the top schools. Any parent will tell you spend more time with your child that is not as bright as the sibling. There is an honor in a trade school the professor Silvers of the world do not understand. He actually negatively impacted me, when it came time to the bar. Torts was my weakest area, because he almost never was in his office. Whereas another professor who did virtually no publishing was always available and helped his students to achieve much success. The current system rewards silly publishing of drivel over actual teaching of students. Further, professor Silver, cannot even bring himself to teach orthodoxly in the classroom. He makes the students keep regular notes in their notebooks, and asks, (I am NOT making this up)the students also to keep an "invisible" book to write how things "really are" verses the bar exam. All I know is it is confusing to be told, "purpose equals desire for the bar exam, however in my classroom they do not." We were supposed to have THAT in the invisible book. I would consider that malpractice. To make matters worse, student attendance was always rigidly enforced, unfortunately, the power of tenure allowed professor Silver to be late or extremely late to the many of his classes. Had he spent more time in the classroom, perhaps his students would gain more education.
I do not say this to criticize professor Silver personally. He is a nice man. But he is a perfect example of the problem of this silly research at all costs over student education. St Thomas this year has dropped its admitted LSATs well down into the low 140's it is rumored. Now is the time to get out of the office and help those kids, instead of simply taking their tuition to support the University. Watch the bar passage rate there in three years, and lets see how professor Silver's side does.

Posted by: DB | May 5, 2013 10:55:15 PM

Why is the idea of an English style legal education so awkward to consider in the U.S.?
-- LL.B.s at the undergrad level without conference of a professional license, consider it a pre-law or a pre-MBA degree
-- Either an LL.M. to practice or a Canadian style year of articling to provide practical polish and training
-- Real Ph.D. programs that provide research and academic training for those interested in research.

Such a program would extend the base of students to support the cost structure of law colleges, it would enable students to learn younger about law, and it would separate but support both professional and research-driven law career training.

This is usually exactly the model performed next door at the Business Schools. Why is this so hard for fellow law profs to find favorable?

Posted by: Homo Rechtsanwalt | May 6, 2013 2:20:07 AM

Maybe if you lawyers could get government-enforced constantly increasing barriers to entry and a locked down cartel the way we doctors have done things, you could keep internal competition down and the public in the thrall of a slave mentality toward your profession. Resurrect Abraham Flexner and make up a bunch of reasons to put half the law schools in the country out of business and destroy all diversity of thought in your profession. You'll be way ahead.

Posted by: teapartydoc | May 6, 2013 9:22:10 AM


If younger people would re-orient themselves to (be willing to) grapple with the most technically difficult areas of the law (requiring, heaven forfend, some actual MATH SKILLS) they would see the great jobs that are constantly unfilled due to lack of qualified applicants.

THERE IS A NEED. And it is for TAX PRACTITIONERS. As in, you will prepare and review tax returns, project future tax cash flows, plan for tax mitigation, handle the GRC side, etc.

Posted by: CPA Reader | May 6, 2013 11:31:41 AM

"As an adult who went back to law school and recently had professor Silver, I can say people like him ARE the reason law schools are in trouble."


It takes ignorant, arrogant *ssholery of a rare order to label the alternative to today's sociopathic law school business practices as the "Motel 6 Model".

We really should get all like minded law profs together for a live staging of "The Masque of the Red Death".

Posted by: cas127 | May 6, 2013 6:17:25 PM