Paul L. Caron

Tuesday, December 6, 2011

Ackerman, Tamanaha Respond to NY Times Editorial on Law Schools

New York Times letter to the editor, The Law School Experience, by Bruce Ackerman (Yale):

In urging that law schools become more practice-oriented, you assert that “law is now regarded as a means rather than an end, a tool for solving problems.” To the contrary, law also helps define our fundamental problems: What is the meaning of free speech or equal protection? Does antitrust law make sense? What is the best form of environmental regulation?

Many law students will become our future leaders. If they don’t take such questions seriously, who should?

From this perspective, you have misdiagnosed the real deficiency of most law school courses. They are too concerned with hot topics, not basic themes.

In disdaining the work of appellate judges, your editorial is going down a blind alley. The real task is to take the teachings of Oliver Wendell Holmes and Benjamin N. Cardozo seriously, and enrich the judicial tradition with the insights of social science and philosophy to define the legal challenges of the 21st century.

Balkinization, The Lost Lawyer, by Bruce Ackerman (Yale):

Balkinization has been the site of three responses to the New York Times’ harsh critique of modern legal education – all largely apologetic [David Levi (Duke), Sandy Levinson (Texas), Jason Mazzone (Brooklyn)]

This collective apologia represents a striking confirmation of Tony Kronman’s brilliant Lost Lawyer, and its diagnosis of the decline and fall of the lawyer-statesman ideal in America. My Kronmanian dissent, published as a letter in today’s Times, serves as a counterpoint. The truth is that, even in elite schools, it is astonishingly easy for law students to lose themselves in clinical work and avoid the sustained, and multi-disciplinary, course-work that should be required for the leaders of the next generation. We are adapting all-too-well to the temper of the Times – generating increasing numbers of anti-intellectual lawyers to express the growing anti-intellectualism of American politics.

Balkinization, The Indebted Lawyer, by Brian Tamanaha (Washington U.):

A tragic aspect of the present debate is that it has been going on for over a century in exactly the same terms, with elite law schools asserting that lawyers should be trained as the future leaders of society, and opponents arguing that law schools should be allowed to provide basic lawyer training at a reasonable cost. ...

Today annual tuition at private law schools is between $30,000 and $50,000. The total cost of a legal education (including expenses) for many students exceeds $150,000. Average law school debt is approaching $100,000. The median salary for 2010 graduates who landed lawyer jobs was $63,000, which is not enough to manage the monthly payments on $100,000 debt. Many graduates are not getting legal jobs. Middle class and poor people are foregoing law school in increasing numbers because it costs too much. ... The enormous economic barrier to a legal career that now exists is a disaster for society as well as for the profession. ...

Legal academics have responded to recent criticisms defensively or apologetically or defiantly. That is all beside the point. We should instead acknowledge that there is a serious problem with the economic structure of legal education and look for ways to solve it.

Update:  Inside the Law School Scam, Crisis and Denial, by Paul Campos (Colorado):

  1. American law schools are graduating around twice as many prospective lawyers per year than there are jobs for new lawyers, and this ratio is unlikley to improve in the foreseeable future.
  2. For many years now the ever-increasing cost of legal education has ensured that an ever-increasing percentage of those graduates who do manage to get law jobs will be unable to earn enough to justify the cost of their legal education.

If both of these assertions are even roughly correct – and I have yet to see any plausible argument for a claim that they’re not – it would seem to follow that American law schools should be graduating far fewer people than they do at present, and that they should charge, on average, far less than they currently charge for the privilege of acquiring a law degree.

Again, it’s not surprising that the people who run the Association of American Law Schools don’t really want to talk about any of this if it can possibly be avoided.  If I were them, I wouldn’t want to talk about it either, since a candid analysis of the state of American legal education tends to lead to the conclusion that perhaps half of the AALS’s member institutions should go out of business, while those in the other half need to start providing the services they provide at a much lower cost.

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Elitism and Elitists, Intiletualism and Intulectualists always argue from the lofty cliffs of the Ivory tower. Only such a person could use the term "anti-intellectualism" to justify charging students $50k a year so that person could teach 10 (maybe 15) hours a week (except during the summer), write a paper every year or two (which are totally meaningless to anyone outside academia and to many inside too), do research on stuff you like, and speak at intellectual gatherings worthy of someone of your stature.

Who here and now can recite the rule against perpetuities AND explain it? If you just went to the google box, too late. Remember, this is really important stuff that you learned in law school -- first year, the basics. So why don't you tell me the name of that Cardozo tort case that I can't of the name of? Palzgraff?

If I can't remember the name of the cases, let alone why they were important, someone must have done a great job of "help[ing me] define our fundamental problems" and prepared me to "become [a] future leader" which has yet to happen after all these years, but there still is some time left on the clock. At least I got that much going for me.

Posted by: tax guy | Dec 6, 2011 6:37:17 PM

OK, I get it now. Having fun with someone's name, like we used to do in the school yard.

Posted by: Bob | Dec 6, 2011 2:27:08 PM

I always spelled it Balkanization. Is this some sort of insider joke?

Posted by: Bob | Dec 6, 2011 8:43:05 AM

Professor Ackerman, you need to reorient yourself. You teach at Yale LAW School, not Yale LEADERSHIP School. The purported purpose of the former is to train lawyers. Interdisciplinary courses belong in the graduate schools, not the professional schools.

Posted by: Publius Novus | Dec 6, 2011 8:12:27 AM