Paul L. Caron

Monday, August 20, 2012

Brian Tamanaha's Revenge

St. Louis LogoFollowing up on my recent posts (links below) on the turmoil at St. Louis over the abrupt resignation of Dean Annette Clark and the naming of local practitioner Tom Keefe as Interim Dean:  Anders Walker (Associate Dean for Research and Faculty Development, St. Louis), Tamanaha's Revenge:

[O]ur interim dean recently read Failing Law Schoolsand liked it. 

Oh shit.

Brian’s sacred cow killing polemic boasts a new convert … and soon they’ll be lunching. Now what?  For those of us scrambling to keep things afloat here, what began as an ugly dispute between the Dean and the President is now morphing into something very different, a Tamanaha-esque audit of legal education in its current state, including questions about tuition, faculty resources, and the merits of scholarship. ... The solution, argues Tamanaha, is for law schools to adopt a tiered approach, with elite institutions like Wash U continuing along the scholarly model and non-elite schools like SLU adopting a low tuition, practical skills approach.   How convenient. ...

FailingIn 187 concise pages, Tamanaha makes a convincing case that legal education is "failing society."  To his credit, few can deny that US News has distorted incentives, that tuition has grown too fast, and that the ABA has inhibited market innovation.  Yet, the question remains whether faculty scholarship per se is part of the problem.  For example, many of our best scholars at SLU are also our best teachers – as indicated by their student-generated teaching evaluation scores.  One reason for this, I suspect, is that faculty scholarship actually enhances classroom teaching, making it interesting and fresh – very different from classes where faculty continue to use casebooks from 1982.  ... Why not measure faculty productivity by linking scholarship to teaching scores?  

More problematic is Tamanaha’s point about the relationship between faculty salary and tuition.  Here, his data is hard to refute.  Currently, faculty salaries constitute the primary expense at law schools, and a direct obstacle to lowering tuition.  Further, lowering tuition is important, particularly for non-elite schools.  If SLU could lower its tuition by 5 or 10K, for example, we could ease debt burdens for students and successfully out-compete peer institutions, arguably remaining viable even in the worst of market conditions.  However, it is not clear to me that faculty scholars should be the first to go.  Rather than punishing productive faculty who are out-performing in both teaching and scholarship, it seems to me that the primary problem (and cost), are under-performing faculty who have given up on scholarship, lost interest in teaching, and taken up novel writing.  On this point, the mysterious missing topic in Tamanaha’s book is post-tenure review.  Why?  Brian alludes to his frustration with non-productive, absent faculty in his prologue, but then drops the subject.

Prior TaxProf Blog coverage:

Legal Education | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Brian Tamanaha's Revenge:


Tamahana does not suggest that there is only one way to fix the current problems with legal education. His major point is that it is way too expensive for the opportunities available and likely to continue to be available to most law school graduates for the forseeable future. None of those criticizing Tamahana dispute this point. The emphasis on scholarship, with the resulting flood of mostly shoddy and boring legal writing, is only part of the problem. You could have a law school where professors were expected to do research and publish but had to teach three (or four, as in the ancient days of 1980) classes of 90-100 students per year (rather than small specialized classes or seminars); that would lower the cost per student significantly. The point is that the current system is, to coin a phrase, non-sustainable.

Posted by: Connecticut Lawyer | Aug 20, 2012 11:20:57 AM

It would be like Paul Ryan -- who does not believe in government -- running the government.

Will the interim dean really be able to lower tuition? You really need the central university administration on board to agree that any cost savings will directly benefit a reduction in law school tuition; rather than go to other University priorities. The correspondence surrounding the last dean's departure suggests that will not be an easy sell with the President.

Posted by: Hugh | Aug 20, 2012 7:26:51 AM

This is an interesting twist on the discussion of the role of scholarship in the legal academy. If it is the case, and it makes sense because it happens in other disciplines as well, that the most engaged professors and the ones rated highly as teachers are very often--not all the time, but very often-- the most productive scholars, the implacable hostility toward scholarship is misguided. Calls to de-emphasize scholarship would seem too blunt an instrument to employ as item for law school reform.

It is likely that as the credentials of people entering the academy change, with more and more professors with JD-PhDs, attitudes about doing scholarship will change. These people come in with a scholarly focus and a demonstrated scholarly bent. Of course there are professors with PhDs in other disciplines who underperform after tenure. But the current and very public ferment in law schools,which will certainly continue, might mitigate those tendencies. In any event, it will be interesting to see how things unfold over the coming years; whether law professors who come to the job with a demonstrated passion and level of expertise in a scholarly area will stay in the arena longer than those who do not.

Posted by: JMH | Aug 20, 2012 5:33:23 AM

After the post tenure review starts, I wonder how many of the productive faculty who are also the best teachers will stick around to find out the outcome. Will it be merit based? Or a way of playing politics and getting around the institution of Tenure?

The best faculty are probably already sending out CVs to everyone they know and preparing to exit at the first opportunity.

But it should be interesting to see how this experiment in Tamanahanian law school governance works out. So generous of SLU's dean to volunteer to be the Guinea pig.

Posted by: Anon | Aug 20, 2012 4:33:58 AM