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Monday, July 29, 2013

Diamond Responds to Tamanaha

Following up on my previous post, Tamanaha:  Short Term Versus Long Term Perspective (July 27, 2013):  Stephen F. Diamond (Santa Clara), Brian Tamanaha to the Law School World: “Never Mind”:

Well so much for that, then. Brian Tamanaha has conceded that indeed Simkovic and McIntyre are right about the positive net present value of the lifetime earnings premium secured by holders of a JD.

He reached this conclusion only a few days after publicly proclaiming their work to be “faulty,” “misleading,” “not true,” having only “the external trappings of precision and rigor,” a “puffed up exaggeration,” a “brazen bluff,” “sloppy,” “slanted,” “ad hoc,” “compromised,” “chest-pounding,” “full of holes,” “dubious,” “hell bent on proving a law degree pays off,” “flawed,” “fudged,” “distorted,” with results that are “substantially overstated.”

But he has now suddenly proclaimed

"Their study has convinced me that I was wrong to exclusively focus on the short term–the long term return at the 25th percentile is better than I would have guessed (assuming the validity of their numbers).” And, “ignoring the long term was my error.”

Well, as Emily Litella would have put it, “Never mind.”

While Tamanaha seems to feel some regret at his unjustified and unprofessional remarks, he actually repeated the claim that the Simkovic and McIntyre paper was “sloppy” in the course of apologizing for it in comments at TaxProf. ...

Having held up a white flag, Tamanaha attempts to suggest now he really didn’t mean to call into question every law school and every law student only those at the “very bottom” who attend “risky law schools.” Well, no one in this debate has ever said the JD had positive NPV for every graduate of every law school no matter where they ended up in the class. So for Tamanaha to now say that he is in fact only concerned about a narrow “band” of law schools is more than a little disingenuous. He boldly proclaimed in his book’s very first pages that “law schools are failing abjectly in multiple ways….The economic model of law schools is broken.” His book was called “Failing Law Schools” not “Risky Law Schools” or “Very Bottom Law Schools.”

As I explained in an earlier post about the significance of the Simkovic and McIntyre paper, an institution that can produce graduates who achieve the kind of results they demonstrate is not, by any measure, a failing institution.

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I did not concede the correctness of their figures. In my last post, I "assumed" their figures for the purpose of moving the discussion in a more productive direction (see my statement in the comments). I have already apologized for the tone of my initial post, but my substantive doubts about their study remain.

Posted by: Brian Tamanaha | Jul 29, 2013 5:03:06 PM

Several questions to the economists (a suspect discipline in the best of times) and to those indicating it is not the "worst of times" for many law students, new law graduates, solo practitioners with declining real incomes and rising costs of doing business, etc., etc.

1. If the law degree provides a $1 million "premium" and that is obvious to any intelligent person, then why are application pools plummeting at many law schools?

2. What is the "distribution" of the added value to the law degree, i.e., are some law degrees worth an added $5 million and others worth a negative $500,000 but the average ending up at a generalized $1,000,000?

3. How do potential applicants and economic analysts figure out the value of the law degree in "real world" business terms projected into the future and taking into account the continuing transformational changes in the legal profession, the ways legal services are delivered, and who (other than lawyers) provide those services?

4. Is the $1,000,000 added value figure one based on historical data related to an economic context that no longer exists and if so, to what extent does it make sense to project historical economic conditions into a very uncertain future in which many of those conditions are inapplicable?

5. What is the effect on future employment opportunities (and therefore the value of a law degree) if the fact is that the "huge demographic bulge" of lawyers that have been "pumped" into the legal profession in the past 15 years can never afford to retire and therefore the "law jobs" available to new degree holders are simply not available or the pay for new law hires in non-Big Law continues to decline?

My concern is that in too many instances it seems that people are focusing on diversions and bickering rather than the actual competitive conditions and what to do about it. It is also my concern that competitive business analysis and strategy are far more critical at this point than talking about the $$ value-added worth of a law degree in a generalized sense in a diverse employment market with schools that compete in radically different contexts, "sell" their graduates in different territories, at different prices, for different functions and so forth.

Posted by: David Barnhizer | Jul 29, 2013 5:32:29 PM

I disapprove of this post. Prof. Tamanaha was indeed unscholarly in tone initially, but he pulled back and admitted he was wrong. He deserve praise for that, not scorn. The Internet is not a very scholarly place, after all, and as with email it's easy to make mistakes, so what counts is willingness to admit to them. The same goes for his persuasion that S-M might be right on various points. He had an initial reaction, thought more carefully and decided it was wrong, and revised his position in a sophisticated way.

Internet debate on scholarly papers is a very good thing,and we musn't approach it like trial argument, or even like appellate argument (which is also win-oriented, though more polite and accurate). If Prof. Tamanaha hadn't apologized for his initial tone, sanctions in the form of scorn might be appropriate after emailing him privately and suggesting he apologize, but not as things turned out.

Posted by: Eric Rasmusen | Jul 30, 2013 9:53:24 AM