Paul L. Caron

Tuesday, May 15, 2012

Bill Henderson Reviews Brian Tamanaha's Failing Law Schools

FailingOn The Legal Whiteboard: a review by Bill Henderson (Indiana) of the new book by Brian Z. Tamanaha (Washington U.), Failing Law Schools (University of Chicago Press, 2012):

Many legal academics are going to dismiss Brian Tamanaha's book, Failing Law Schools, without ever reading a page.  A larger number may simply ignore it.  That is ironic, because this is the response one would expect if Tamanaha's account of a corrupt, self-indulgence academic culture were true. ...

For us law professors, here is our conundrum. From the outside looking in, things look bad, even corrupt.  Yet we don't feel we have done anything wrong.  We are certain that we lack the intent to cheat or defraud.  But that, unfortunately, is error #1.  As we all know, proving intent is always a matter of circumstantial evidence.  So let's review that evidence from the perspective of the neutral fact finder.

Life is objectively good for us:  We have high salaries, social prestige, lots of travel, job security, and near absolute freedom to organize our time outside the three to six hours a week we teach, 30 weeks a years.  Against this backdrop, there is consensus among legal employers that we are not very good at practical training including, in the eyes of many, basic legal writing.  Moreover, the overproduction of lawyers creates problems for the legal profession as a whole.  Similarly, our students  are saddled with enormous debt and nothing we are doing curricularly seems geared to solving their burgeoning unemployment  or underemployment problem.  The federal government finances this "system."  And through Income-Based Repayment programs, the U.S. taxpayers are backstopping our high costs.

Because law faculty seems to be getting the long end of the bargain here, our subjective feelings of honesty and rectitude are unlikely to be viewed by many students, practicing lawyers, or the broader public as credible.  In fact, they may be viewed as insincere or out of touch.  How did things get so badly out of kilter? ...

But for Tamanaha, some pesky journalists, angry students, and the ticking time-bomb of law students debt, I am confident that we law professors could coast along on our present track for another several decades.  As an insider, I can honestly testify that we believe--sincerely beheve--that we care about our students, the quality of their education, their debt loads, and their future job prospects.  But  looking at the same set of facts, history will draw its own conclusions. And Tamanaha, akin to a prosecutor arraying the evidence to prove intent, offers up a very compelling narrative that the dispassionate observer is likely to find convincing. ...

History is now playing out right before our eyes.  I believe there is a good chance that Brian Tamanaha's book will be viewed--by history at least--as a great act of courage.  The implication, of course, is that the rest of us will look foolish.

Other reviews of Failing Law Schools:

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Mr. Rustbelt, I obtained a J.D. from a T14 school in the late 70s. I never read or critiqued a contract in Contracts. I never read a deposition transcript, saw an interrogatory, or read a complaint or wrote one in Civil Procedure. I took courses in Criminal Law and Criminal Procedure, but saw my first indictment when I went to work at the Department of Justice. I never set foot in a courtroom of any kind at any point in or as part of any law school class. Basically, the DOJ taught me to practice law and how to try and case.

"[T]here is consensus among legal employers that [law schools] are not very good at practical training?" That would be something of an understatement.

Posted by: Publius Novus | May 15, 2012 7:56:27 AM

When I took some law courses years ago (not to become a lawyer, to beef up my consulting work) the research and writing course (the worst course of my life) was taught by a recent grad who couldn't get a job or who was thinking about being a real teacher later.

I took a course in criminal law and only read an indictment because I went to the courthouse.

I took a course in contracts and never read or critiqued a contract.

I took two courses in real estate and never looked at a deed or mortgage.

It was the poorest excuse for education I had ever encountered (my business school business law profs were far superior).

The model has been broken for decades. The economics are now catching up.

Posted by: save_the_rustbelt | May 15, 2012 5:57:38 AM


Posted by: Todd | May 15, 2012 5:04:29 AM