Sunday, May 5, 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.