Paul L. Caron

Monday, August 20, 2012

Brian Tamanaha's Revenge: 'Guilty as Charged'

FailingFollowing up on this morning's post, Brian Tamanaha's Revenge:  Balkinization: I'm the Villain:

Thus far I have refrained from responding to critiques of my book, but this one is too personal to leave unanswered.

First let me make clear that I have had no contact of any kind with SLU's new dean and have no plans to "lunch" with him; nor will I meet with him if he reaches out to me. ...

Walker's second cheap shot -- "How convenient" -- also misses the mark. I have been arguing for years -- long before I moved to Wash. U. -- that non-elite law schools should not emulate the academic model set by elite law schools. ...

As for reform, I believe every law school (from Thomas Jefferson to Harvard, to SLU and Wash. U.) should carefully examine tuition, debt, and the allocation of resources, and every faculty should strive to find ways to operate in a more cost efficient fashion. If that's "Tamanaha's revenge," then I'm guilty as charged, and legal educators across the country can throw darts at me.

Update:  Anders Walker (Associate Dean for Research and Faculty Development, St. Louis), Tamanaha's Response:

Tamanaha does not seem to notice the contradiction in praising our junior faculty, most of whom have interdisciplinary degrees, meanwhile arguing that "non-elite law schools should not emulate the academic model set by elite schools." ... Why not make non-elite law schools even more dynamic sources of talent by introducing post-tenure review ...

Tamanaha has written an incendiary book that WILL be read by university presidents, trustees, and others eager to cut cost, strip faculty resources, and stick it to law professors. Even if Tamanaha doesn't want to lunch with these people, it doesn't matter. He will be the topic of conversation.

Legal Education | Permalink

TrackBack URL for this entry:

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


@ BoredJD-- Fine. Whatever you say. You have the last word. It's clearly more important for you than it is for me. I'm taking a cue from your moniker-- I'm bored.

Posted by: JMH | Aug 26, 2012 10:52:38 AM

JMH- A firm is not going to risk no-offering a candidate (thereby hurting them in recruitment the next year) who has shown an interest in a practice group during their SA because they didn't take tax, or trial practice, or M+A, or anything else. What you teach is just not particularly important to them (which is why they spend gobs of money on recruitment before a SA even sets foot in a 2L classroom!). This has held true at a varied range of firms and practice groups for which I have anecdotal information. Although an overall GPA drop might kill your chances at an offer, again, that can be compensated for by taking "fluff" classes.

Yet again, you are not reading very closely. What types of employers hire graduates right out of law school for tax law? Where the number of tax classes taken, not overall GPA/law school rank, would be a primary motivator for hiring them? Maybe the IRS and tax court clerkships- but you need stellar, biglaw type credentials for those as well.

You keep saying you are not focused on biglaw hiring, but your example is a practice area where entry-level hiring is confined almost exclusively to biglaw (or regional equivalents). Instead of looking at a market for which entry-level jobs do not exist and are not likely to exist in the near future, you should be focusing on how to grow the pool of entry-level jobs in areas that have shown a willingness to hire entry-levels, but cannot because of a steep learning curve that could be ameliorated by better content in the law school curriculum.

Posted by: BoredJD | Aug 26, 2012 8:27:46 AM

I should add that whatever the rules were in the past, we have no idea what kinds of hoops graduates will have to jump through in the coming years. What you and I know from the past will be less and less relevant. .

Posted by: JMH | Aug 25, 2012 10:01:40 AM

@BoredJD-- You are still reading into my statements things I did not say. I do not believe that any configuration of a law school class teaches people how to be lawyers, and my point is that employers do not think that either. But I do think that if it were possible for a first year student to forgo taking the courses usually required in law schools-- say, he/she only took "law and course" --that student would have difficulty in the market. If it were possible to extend that over three years, that student would have greater difficulty, too-- even if he/she made all As.

You do not understand my post. I never said that any combination of law school classes will "solve the unemployment problem". Of course not. Who thinks that? I don't. That is not the answer. But some answers are better than others. At the highest levels, because they can, employers hire on grades. I know this from my own experiences and those of multiple members of my family, friends, and colleagues who work in BigLaw. Most associates are not given permanent jobs after their first summers at a firm. They get their permanent offers after their second year summer. Even if the people you know were given permanent offers after their 1L summer to step right into V5 tax groups, I would think they were expected to take tax at some point. It's not primarily about the knowledge they would gain, it's about the demonstrated interest and the understanding of expectations that taking the class would show.

About the people you know, I take you at your word. But firms have different cultures. And people seeking jobs should be aware of this. The firms with which I am familiar would not-- unless the person was exceptional or there were exceptional circumstances-- give a permanent spot in a tax group to a person who had never taken (and was not ever going to) take a tax class over other equally appealing graduates with great grades who have shown their interest by taking tax classes. Other places may do things differently.

You are fixated on BigLaw Not all tax lawyers work in BigLaw. And I did not refer to functioning well in tax class--you keep switching around what I say to fit your pre-fab arguments. I said that I believed that I functioned better in the tax group than I would have if I had never taken a tax class in law school.

Posted by: JMH | Aug 25, 2012 9:51:40 AM

JMH- You asserted this in your prior statements.

"No one in their right mind -- least of all those hiring lawyers--thinks that taking a course teaches students how to be a lawyer in a given field or at all. It familiarizes people with the subjects and lines of argument that recur in the various subject areas."

"The first year curriculum could stay the same because students need to be able to recognize problems."

I am challenging your conception of this curriculum. You have posited a benefit of the curriculum to students. I am saying that this benefit does not do anything to ameliorate the lack of entry level jobs because it does not expand the entry-level job pool for your students.

Again, you did not seem to understand or read my post. I am saying that offering tax in law school does not ultimately make students more marketable, because it does not expand the number of tax law jobs available to students. It does not solve the unemployment problem. It merely allows your students to get in front of other students for the limited number of tax jobs available for them.

Your last few sentences are absurd. I know people at V5 tax groups. They got those jobs before they even took tax classes. Whether they functioned well in tax classes after was immaterial. They received those jobs not on the basis of their performance in tax classes, but on the basis of their performance in 1L classes. They could have not taken any tax classes and still have received offers.

Posted by: BoredJD | Aug 24, 2012 7:22:18 PM

@Bored JD-- You've come prepared with a standard fill-in-the-blank answer to respond to things that were never said. I never said a word about what the substance of these classes should be. So, you have no idea whether and how I feel about changing them. Your litany of "facts" sounds very much like "a little bit of learnin'", and we know what that leads to. To repeat, there was a post in which someone suggested that the kinds of classes that Campos, Tamanaha, and Merritt teach are worthless. I do not think that is fair. I responded by asking, then, what kinds of core courses did "Anon"-- I guess it was-- think were more "ruthlessly efficient" courses than the ones the trio offered? I opened it to others' suggestions.Then you jumped in intimating that my question implied that I had no idea about the way young lawyers are hired, which is dead wrong. Now you're back with more non sequiturs. So, the market for tax lawyers is mainly Big Law. So, what? How does pointing out that Big Law does most of the hiring of tax lawyers reveal a "flaw" in my statement that tax should count as one of the core courses in a law school. I was in the tax group at my firm, and it would have been much harder for me to function if I had never taken tax. Plus, it's worthwhile to take tax even if one is not going to practice in a tax group. Can you really not know that?

Posted by: JMH | Aug 24, 2012 1:23:08 PM

"I don't understand the reason for the low level hostility in your response to my question(actually, I guess I do) about what kinds of courses might be helpful to students in the job market. No one in their right mind -- least of all those hiring lawyers--thinks that taking a course teaches students how to be a lawyer in a given field or at all. It familiarizes people with the subjects and lines of argument that recur in the various subject areas."

The frustration with your posts stems from two issues: 1) you seem to be unwilling to change the content/substance of these courses to "grow" the pie of entry-level jobs, or make hiring an entry-level law grad viable for organizations or firms that would not do so before. The only thing your idea is doing would be giving your own students a leg up against other law schools. 2) You seem to fundamentally misunderstand why entry-level employers are not hiring law students.

1) is a serious problem. Most law schools already offer an unofficial "prosecutor" or "public defender" track. Students who want to become prosecutors or public defenders take Evidence, Crim Pro, Trial Practice, Adv. Trial Practice, etc. Yes, it helps those students who took those classes get jobs over students who did not take those classes. But it is not making AG offices like the one I interned at rethink their "2-year rule" (2 years experience at a large law firm litigation practice before being considered for a AAG position.) And IME, fewer students who wanted to become prosecutors actually found jobs as prosecutors even by taking all "prosecutorial" classes.

To go back to your example (which is flawed since the entry-level hiring market for tax lawyers is overwhelmingly biglaw which hires after 1L) if a candidate applies to a job in tax law with a slate of tax classes, he will get the job ahead of other students with no tax classes. If he applies to the same job that requires 2-3 years of experience in tax, he is not getting the job. Not very many jobs are offered outside of big firm channels in tax law because of the experience gap.

2) Talk to a small firm practitioner and ask him why he won't convert a job opening requiring 2+ years experience into one requiring 0+ years experience. He will tell you that he needs somebody who can jump in headfirst, right off the gate, because he can't afford to train someone and keep running his practice. Even if that candidate took all the small firm classes they could: Trust and Estate, Criminal Law, Crim Pro, Torts, etc etc. they just don't have the actual skills to do the day to day work.

Now, an enterprising law professor might think about ways they could change the learning experience of these classes to both teach students the basic work that will "grow the pie" of employers willing to hire them, AND teach them "the subjects and lines of argument that recur in the various subject areas."(I could write an entire post on the truth this statement itself.) It is possible.

But it won't happen because law school classes are structured the way they are to serve the professors, not the students. Any benefit to the student in terms of "thinking like a lawyer" is ancillary. Classes are structured to minimize time spent grading, preparing for class, and dealing with student concerns. "Thinking like a lawyer" is a post hoc justification for a system that allows you to maximize scholarship.

Posted by: BoredJD | Aug 24, 2012 10:03:00 AM

While I think it's wishful thinking that law students are "savvy consumers" (and I think you mean law school applicants, which is a different group than law students), I'm fine with people taking that position. The problem is that all of these issues stem from the fact from law schools are not honest sellers. The misrepresentations of law schools are not a whole other matter. Though complaints from taxpayers might be expected, law schools should be free to sell a legal "education" at any price they want, if they're honest about the fact that only half their grads find work as attorneys, and those that do earn average starting salaries of $42K.

Posted by: Anonymous | Aug 23, 2012 1:10:34 PM

I meant to say, "other courses beyond", in may last comment.

On anonymity. The Federalist Papers aside, there have, of course, been many other instances in history when people writing anonymously have made worthwhile contributions to public discussions and their identities were not known at the time and were only found out many years after the fact, if ever. Anonymity is not a bad thing in itself, automatically rendering statements or opinions without merit. The best parts of DJM's contributions to the discussion would be worthwhile even if we did not know who she is. She wants to be known. Fine. That's perfectly okay for her. Other people do not want to be known. That's fine, too. The issue is the quality of the argument.

Posted by: JMH | Aug 23, 2012 11:50:29 AM

Hi, Anon!

Long time, no see. I haven't heard from you since your wincingly embarrassing showing in The Atlantic a few months ago. So this is where you have been lurking - trying to troll 1L's on a site read by tax lawyers. Nicely done. Did you have to ask for extra time on the LSAT?

I'll keep this brief, because you really aren't worth my time, and as a member of the long-term unemployed, that's saying something. The worst-taught classes I have had in my life have ALL been at the hands of tenured law professors who have had <2 years "practicing" law before retreating to the nonchallenging confines of academia. I have no great love for my UG education, but it was 10x more rigorous than the makeshift busywork and hollow hide-the-ball pseudo-intellectual crap that law schools spew out. And my undergrad - with one of the highest list prices in the country - literally cost me one-tenth of my law school education.

"There's a history in this country of staying anonymous in writing." Yes, but what of the anti-intellectualism inherent in one attacking Profs Tamanaha, DJM, et al for poor methodology and statistical analysis while engaging in repeated, discredited statistical cherry-picking while not daring to reveal your own (ostensibly supoerior) analytical credentials?

Let's be real: the reasons you dare not reveal your identity is because a) your arguments are terrible and openly, obviously disingenuous, b) your responses to the many, many valid criticisms about legal education are evasive, petulant, and immature, c) your employer's next class is probably 30% smaller than last year's, and d) you have been devastated on other forums with your pathetic arguments (The Atlantic, the WSJ, etc). You make a decent troll, but a horrible lawyer. Anyways, authorship of the Federalist Papers was an open secret among the intelligentsia of the colonies, so your history is as poor as your logic.

Get off your own high horse. Your vocation has presented a bulwark against any change in the profession for more than a century. That time is over. So sorry. That's life. It's reality in any profession. Get off your high horses. Law professors are like any other professionals. The market has spoken.


I look forward to your response, which will no doubt consist of the supposed 1% BLS attorney unemployment rate, the fact that both presidential candidates are attorneys, and how a small plurality of F500 CEO's have law degrees.

Posted by: Unemployed Northeastern | Aug 23, 2012 10:07:57 AM

@BoredJD-- Yes, I do know how entry-level hiring works. I have been hired in Big Law, and have hired young lawyers, though not in a Big Law context. I don't understand the reason for the low level hostility in your response to my question(actually, I guess I do) about what kinds of courses might be helpful to students in the job market. No one in their right mind -- least of all those hiring lawyers--thinks that taking a course teaches students how to be a lawyer in a given field or at all. It familiarizes people with the subjects and lines of argument that recur in the various subject areas. If a student expressed an interest in being a tax lawyer, but had never taken any tax classes, that could pose a problem for people looking at his or her resume. And there is more to law practice than Big Law. I think it might help a student who wants to work in a DA's office to have taken Criminal Procedure, Evidence and other course beyond the first year Criminal Law class.

Posted by: JMH | Aug 23, 2012 7:08:35 AM

The hardest thing about wishing that the whole enterprise be burned to the ground and built anew is its effect on sweet, caring people like AnonProf.

I'm sorry, buddy. It's not your fault that the bill came due for decades of law professors being allowed to teach whatever and however you wanted, knowing that the world of practice would clean up after your failures without complaint. But hey, people have goals, they take risks, sometimes there's a big pay-off and sometimes there is a big loss. Most law professors are rich and unaccountable, and some are unlucky enough to be at schools where closure in the near term is a real possibility. Some get laid off. That's life. That's reality in any profession.

Posted by: Morse Code for J | Aug 23, 2012 6:12:03 AM

I don't see this as a fight about economics. I think that is misdirected (and yes I know I'll get attacked for saying that). Law students are savvy consumers. Quit being so paternalistic with them. They know what they are getting into and they are taking risk. If there is misrepresentation, as there were with the U of Illinois and Villanova cases, that's a whole other matter that needs to be litigated.

When a person goes for a graduate degree in classics, philosophy, biology, English, physics, etc. they know there is a huge risk they will end up with large loans, but they do it anyway. Many of the students I've taught over the years are passionate to be lawyers. Some are of course there because they don't know what else to do with their lives, but it's not my fault they're buying time in law school.

People have goals, they take risks, sometimes there's a big pay-off and sometimes there is a big loss. Most graduates get jobs and some do not. Some get laid off. That's life. It's reality in any profession. Get off your high horses. Law professionals are like any other professionals. They work, they get fired, they get hired, they invest, they lose, they win, they get high paying jobs, they get low paying jobs, they like their boss, they hate their boss, and the circle goes around and around.

Now back to my original comment of why I don't think this is about economics. This is about anti-intellectualism. Tamanaha and his crowd are part of the same anti-intellectual movement that is dismissive about the teaching of non-monitizable subjects. There has been a steady decline of liberal arts, like history, even at the elementary school level. They are part of the same crowd that gets rid of classics, philosophy, and modern language departments. For them, anything that can't earn yo ua good penny ain't worth the investment. Virtue, justice have little to do with this. Learning from scholars is irrelevant, their deep knowledge of the subject useless when all one needs is just the nuts and bolts of practice.

The best way to achieve their goals is by hiring adjuncts to teach our law course, including first year courses. That'll save students' money, but it'll create a shallow legal education. In other disciplines, especially in the liberal arts, that's just what universities have done. They exploit highly educated and talented intellectuals by throwing them a sop, making them adjuncts and giving them lame excuses about not putting them in tenure track positions.

And, hey, get off the nonsense about anonymity. There's a history in this country of staying anonymous in writing. It's totalitarian states that don't allow for that method of expression. If Publius wasn't anonymous during the Revolution, Madison, Jay, and Hamilton wouldn't have been as forthright.

Posted by: AnonProf | Aug 22, 2012 6:53:49 PM

DJM writes:

"I teach Evidence (and have coauthored a book in the field that is widely adopted by professors around the country), clinics in Prosecution and Criminal Defense, and a seminar on the Business of Law. Based on the sign-ups, waiting lists, and what employers tell me, those courses give plenty of value to students."

Which employers? The local DA or public defenders office, where lawyers earn less than paralegals in private practice?

The classes offered at Ohio state are so valuable to employers that Ohio State isn't one of the top 50 firms that feeds into the NLJ 250:

Even though according to U.S. news, Ohio State is a top 40 school.

And SSRN ranks Ohio State at 28 on total new downloads:

Ohio state is an underperformer on big firm placement relative to its other rankings. DJM is one professor among many, so I'm not going to lay the blame for this at her feet. And I'm sure being in Ohio, far away from any major big city legal market, doesn't help.

But this tell us a whole lot about where she's coming from. Her perspective is shaped by the fact that she genuinely does work at a school that does a lot less for its students than its prestige rankings suggests, and the courses she teaches, though presumably popular and entertaining, have very little value in the real world.

Perhaps a part of the problem is that some schools focus too much on what students find entertaining, and not enough on what they need to learn to succeed in the real world. You're not helping your students by pandering to them.

Give it to them straight: if you want to make a living, work hard and take some challenging, technical business law classes that require knowledge of math and accounting and finance.

If you want to take easy, fun classes in law school, you'll have no one but yourself to blame for the limited job opportunities those classes will open up to you.

Posted by: Anon | Aug 22, 2012 5:39:52 PM

Anon, Picking up from before: Your comments make clear that you know very little about the labor market for lawyers. Almost 45,000 students earned JDs in 2011. How many of them do you think will "earn millions of dollars per year" as law firm partners or "hundreds of thousands as of counsel"? Maybe 1000, i.e. about 2%? I doubt it will be more than 5% at the "hundreds of thousands to millions" level. You do realize, I hope, that law firms are narrowing the number of equity partners?

But even in the old days, very few law graduates earned the big bucks of BigLaw partners. Have you read John Heinz's classic work on lawyer employment, "Chicago Lawyers," published in 1982? That, by the way, was an empirical study done by a law professor who began teaching at Northwestern in 1965. Interdisciplinary work and empirical studies are hardly new--but they sure are easier today with computers (which are incredibly cheap compared to the secretaries and RA teams of the 60s and 70s). I suggest you read more widely on the market for legal services, both today and in earlier decades.

I don't share your dim view of the morality of law professors. Academics in other fields pay their mortgages, health care costs, kids' colleges, and everything else without either earning law school salaries or selling out their professional ethics to funders who want to dictate research results. I have dozens of friends in other fields who carry on quite happily in that manner. My brother is one: He's a full professor of mathematics who has taught for more than 20 years at a major research university in a top metropolitan area. He earns less than $100,000/year, pays his mortgage, is sending his kids to college, and does plenty of research without relying on funders who will dictate results. This is true of hundreds of thousands of academic colleagues across the country. If the current crop of law professors lacks their integrity, then the academy will be well rid of them.

The occupational unemployment statistics are so misleading that even BLS doesn't use them. I'll post more on that on the blog I coauthor. I'll also post there some further analyses of how wrong you are about scholarships saving the day, students' ability to pay off loans, etc. Since you seem to have a connection with the U of Illinois, I'll be happy to use Illinois's statistics to illustrate the points.

Posted by: Deborah J Merritt | Aug 22, 2012 5:14:24 PM

One sort of core class that you can get by without for DJM's $240K per year salary? That's not efficient.

She'd have to pick up some tax classes, or other business law classes to earn her keep. And even then, she'd probably be less capable than a real tax prof. and might need to work for less.

Posted by: Anon | Aug 22, 2012 11:26:31 AM

It's funny,

I took most of the classes Anon suggested, at a very reputable law school, and I haven't had a job interview in the legal profession in years, plural.

Also, are you the same Anon that got their ass handed to them in an Atlantic article on law schools a few months back? That was just sad.

Posted by: Ugh - | Aug 22, 2012 10:22:11 AM

JMH: Do you understand how the entry-level hiring market for your students works?

Biglaw hires after the first year. Therefore, those 2L and 3L classes you list would be all but useless to your students if the first-year curriculum was kept stable.

Newsflash: Biglaw is not hiring your students because of what you teach or how you teach it. They hire them on a sliding scale of LSAT-GPA/law school grades because they want the "smartest" students. This is why Yale, Harvard, Stanford have the best biglaw placement despite offering lots of theoretical fluff courses and not having real grades. "Silk purse into a sow's ear" is how Scalia described it.

Now, offering more courses like one ones you stated would not change the LSAT-GPA of your admitted students. What might do that indirectly is reducing tuition to a level where high GPA/LSAT students would choose to attend your school over higher ranked schools. In fact, you could reduce tuition and still teach the same theoretical courses!

If you really want to design a curriculum that might help your students succeed on the job market you would design it based on the needs of the following employer categories: state and local governments (prosecutors mostly), public defenders/legal aid, direct legal services non-profits, small and medium (2-25) firms, and solos. This will help your students compete out other students at employers who do not have the resources to train them from scratch like biglaw does. These courses would be directly related to serving small businesses and middle and lower-class folks. Unfortunately, these employers place even less value on theoretical coursework than biglaw.

Posted by: BoredJD | Aug 22, 2012 10:15:12 AM

Those are all good suggestions in the way of actual classes. DJM says she teaches Evidence. That could be a core course.

Posted by: JMH | Aug 22, 2012 10:00:45 AM

The two major tenets of the law school reform movement are as follows: there must be fewer law students and they must pay less in tuition. The discussion about scholarship exists within the movement only to the extent that the law school pedagogical model must change in order to accommodate the above two rules. If there was a way to keep the current pedagogical system while similarly decreasing tuition and enrollment, then many people would support that and we would not need to have these time-wasting discussions.

Unfortunately, the market seems to be operating under the above two assumptions. There are many fewer applicants to law schools at a time when there should be increases or stability, and they are demanding more and more scholarship money to attend schools that a few years ago they might have paid full-price for. Since the students don't seem to pay much attention to scholarship when making their decisions (I can only assume Dean Walker does not believe there has been a double digit decrease in the amount or quality of faculty scholarship over the last two years) it seems the current debate is only relevant to the extent to which the daily lives of professors are going to have to change in order to accomplish these goals.

Of course, if you believe law students should continue to make irrational decisions in order to maintain your current revenue levels, then the best debate to have will be on tactics to continue to urge them to make those decisions and to shut down people who try and get them to stop.

Posted by: BoredJD | Aug 22, 2012 9:48:22 AM

"So what are the classes we need to give students their best shot at getting jobs?"

Patents, Labor & Employment Law, Immigration Law, Civil Procedure, Energy Law, Bankruptcy, Family Law (but focused almost entirely on prenups and divorces), Food & Drug Law, Health Law, FCC regulation, Environmental Law (focused mainly on serving polluters or real estate developers), Real Estate (esp. real estate finance), M&A law, Corporations, Business Planning, Financial Regulation, Insurance law, International Tax, Nonprofits (as a tax class), Admiralty. Mass torts / class action. Construction law. A variety of niche business law specialties. It would depend on the regional economy surrounding the law school. The "Legal Profession" course would end up being a "how to hang out a shingle and run your own firm" class, with the bear minimum discussion of ethics required by the ABA and a business like emphasis on how to find clients and maximize billable hours and fees. We'd include more business school classes like finance, accounting, marketing, and management.

Nothing "Law and X" would survive. No "theory" of anything would survive. Anything relating to serving the poor would be sharply cut back, as would anything relating to serving employers who don't pay well (i.e., state & local governments; most non-profits other than hospitals and universities and right wing think tanks and advocacy organizations), unless we're relying on IBR subsidies.

I'm not advocating this. I'm simply extrapolating the result you would get if you took DJM, Campos, and Tamanaha's arguments to their logical conclusions.

All three of them would end up unemployed, or at best would need to start over as first year professors.

Posted by: Anon | Aug 22, 2012 9:20:31 AM

Anon, I will respond later to some of your further distortions of facts. I'm busy today with teaching and research, but will be back this evening.

Meanwhile, here is one distortion to give readers a sense of how desperately you will cherry pick and distort facts: I do not teach Poverty Law. I teach Evidence (and have coauthored a book in the field that is widely adopted by professors around the country), clinics in Prosecution and Criminal Defense, and a seminar on the Business of Law. Based on the sign-ups, waiting lists, and what employers tell me, those courses give plenty of value to students. It's true, of course, that these courses aren't the most valuable ones for BigLaw, but (here's a shock for you) the vast majority of law graduates don't work for BigLaw!

I taught a seminar on poverty law only once, perhaps twice, about twenty years ago. Your reference suggests that you were someone who knew me relatively well then (probably a colleague) and are willing to stretch a small piece of truth beyond recognition. We'll talk more later about how you distort other truths.

Posted by: Deborah J Merritt | Aug 22, 2012 8:43:15 AM

One point that is overlooked in the discussion here, but that Tamanaha acknowledges in his work, is the inter-generational tension among law professors with respect to compensation. Older law professors graduated from law school at a time when debt loads were much lower, and they have benefited from the substantial and well-documented increases in law faculty salaries over time. Newer law professors, on the other hand, went to law school after the tuition boom (which of course is still ongoing). That means that they are themselves saddled with debt from acquiring the legal education which is the predicate to getting a faculty position. Every junior faculty member that I know has law school debt, and many of us have a fairly staggering amount of it. As a result, we shouldn't fool ourselves by thinking that something like an across-the-board salary cut will affect everyone equally. Generation wars on faculties are nothing new, of course, but I sense that a new wave may be upon us.

Posted by: Junior Law Prof | Aug 22, 2012 8:23:52 AM

Okay. So what are the classes we need to give students their best shot at getting jobs?. The first year curriculum could stay the same because students need to be able to recognize problems. Then, what? Tax, Corporations, Sec-Reg, Commercial Transactions, Accounting, Criminal Procedure, Fed. Courts, Conflicts, Legal Profession, (because the ABA says we have to) Con Law (but only at HYS)... What else would survive in a "ruthlessly efficient" system?

Posted by: JMH | Aug 22, 2012 7:38:58 AM

"As scholars, don't we want our classes and research to be accessible to talented students--without forcing those students into 25 years of heavy debt?"

Yes. That's why we give merit scholarships and need based aid. The most talented and most needy students don't pay full price. High tuition is what makes these scholarships possible.

"Isn't 10 years of debt, as it was in our day, more than enough?"

It still is. If you look at the wage premium data, Law school generally pays for itself in 10 years or less, and those who go into public service get IBR and full forgiveness after 10 years.

"I don't know any academic who argues that law students should have forgone college."

And yet you want to turn law schools into high schools: places where badly paid, mostly not-very-bright teachers (with a small number of great and truly dedicated and self sacrificing teachers) labor long hours in the classroom while producing no research. Where teachers have no prestige, no independence, no power, and no voice.

"No. I am not a stalking horse for anyone . . . These cries about destroying scholarship are a smokescreen to distract faculty . . . "

Tell me DJM, if you and Tamanaha get your wish and faculty see their pay and research support slashed, how do you think they will respond? When they need to pay the mortgage and their kids' college tuition and healthcare bills, do you think they might seek outside funding? Do you think they might take on outside clients? Who do you think will be Johnny-on-the-spot with the money?

And when more and more faculty are dependent on wage supplements and research grants from the Olins, the Scafees, the Kochs, the Searles, the Waltons, and their many fronts, what do you think legal scholarship will look like? How objective will professors be when the facts don't fit the ideologies or business interests of their backers?

And how will academe maintain its claim to a special place in the world as a force for independent truth, unsullied by the wishes of patrons or clients, when we become completely dependent on them for our most basic needs?

How many faculty will start to look like your Ohio colleague, Richard Vedder, who spent much of the 1980s and 1990s producing junk science to defend big tobacco (and funneling money to colleagues who were willing to do the same)?

Vedder has gone on to shill for a broader conservative audience (his Center for College Affordability and Responsibility is literally Koch funded), and his arguments sound remarkably similar to yours, Tamanaha's, et. al. except he prefers taking pot shots at colleges--especially public universities--rather than law schools.

If you are really serious about making law school more "efficient", why not try to make law school more valuable rather than less expensive?

Suppose, for example, that Ohio State were to replace you with someone who can teach corporate and partnership tax. Don't you think learning tax law--an area in which practitioners are in high demand--would do more to boost students' income and employment prospects than learning poverty law? There isn't much money in poverty, is there? Presumably Wash. U. could also help its students by replacing Brian Tamanaha with a tax professor (not much money in Jurisprudence, is there?). Same goes for University of Colorado and Paul Campos (There's not much money in punishment theory, is there?).

So if we're going to ask law schools to be ruthlessly efficient, why exactly is it that you "reformers" who teach classes of dubious economic value deserve to keep your jobs, while professor who teach classes in subjects that paying clients and employers care about should accept pay cuts?

Posted by: Anon | Aug 22, 2012 3:51:54 AM

It's sad to hear law professors whine about "pain" and "collateral damage." What about the 45 percent of law students who didn't land a legal job but have over 100k in debt? At least Anon is open and direct about her concerns: more about self- preservation, less about what's in the best interest of students.

Posted by: Dave Ebert | Aug 21, 2012 8:24:22 PM

DJM asks, shouldn't a 10 year repayment period be enough? No one has to spend more than 10 years repaying their federal student loans.

Under IBR, students who work in public service get full debt forgiveness after 10 years. The federal government is willing to subsidize public service, and of course it is the responsibility of the federal government to provide public goods.

But don't feel too bad for the government. They make a profit on the student loan program, because most students don't need IBR. The successful more than pay for the unsuccessful, and the taxpayers come out ahead.

Now, will DJM please explain why future law firm partners who can expect to earn millions of dollars per year, and future of counsel who can expect to earn hundreds of thousands per year, can't pay current tuition rates?

DJM, if you really want to support public service, what you should be pushing for is tuition *hikes* and earmarking the additional revenue for more rapid loan forgiveness for students who actually work in low income public service jobs. That would effectively function as a tax on private practice and law firm partners and a subsidy to public service. Or tuition *hikes* and earmarking additional revenue for *need* based aid rather than merit based aid.

Your proposal, just cutting tuition, won't distinguish between those who can afford to pay and those who can't.

Posted by: Anon | Aug 21, 2012 8:01:57 PM

DJM is correct that there are unemployed lawyers, as I have acknowledged in previous posts. But the *unemployment rate* for lawyers and law grads is much lower than the unemployment rate for workers with only a bachelor's degree and for recent college graduates in liberal arts fields. And the median and mean income for lawyers are much higher.

Because unemployment rates for those who have attended law school are lower than unemployment rates for comparable individuals who have not, the data suggest that attending law school reduces the risk of unemployment. The argument that attending law school causes unemployment or increases the risk of unemployment is implausible.

The same debt repayment options that apply to law grads apply to other educational programs, so the default rate data should be comparable. IBR and extended repayment can't explain the low student loan default rates of law grads *relative* to those of students in other programs. If anything, the default rates for law students should be higher, because they are less likely than undergraduates to enter deferment by continuing their education.

Student loans are in fact sometimes discharged in bankruptcy under the undue hardship standard, and empirical studies of those seeking bankruptcy relief and discharge of student loans have found that those with law degrees are exceedingly rare--social workers and teachers are far more common. I suggest reading the research of Professor Rafael Pardo.

You're correct that the BLS unemployment data for lawyers refers to those who have worked as lawyers rather than to new graduates but the same is true for engineers, scientists, and every other skilled profession, and the unemployment rates for lawyers are much lower than those for almost every profession except doctors, dentists, and few others. The relative unemployment rates for experienced professionals presumably parallel the employment experiences of new entrants, although the unemployment rates for new entrants will always be higher.

Census Bureau data on unemployment rates for those with professional degrees--not just those working as professionals--shows that the unemployment rates are much lower than for bachelors degrees and labor force participation rates are higher.

The world is very different from the world of 50 or even 30 years ago. The wage premium for educated, skilled workers has dramatically increased. Education is worth more to the educated, and educated workers are more expensive to employ.

We see this in rising healthcare costs and rising compensation in the healthcare industry. We see it in rising incomes for skilled engineers and computer scientists. We see it in rising incomes for law firm partners and CEOs and corporate law associates. And we see it in rising college tuition costs.

To attract talented professors, law schools need to pay wages that are competitive with skilled workers' other options. There are simply not enough talented, ideological martyrs out there willing to work for next to nothing.

And the costs of research have increased dramatically, particularly with the proliferation of empirical research, and the need to gather and analyze large data sets. We're not arm chair philosophers. We need to actually go out and gather data. Some of us even run experiments. That takes resources and time.

And yes, when professors start calling for destroying the institution of tenure, reducing wages, and slashing research budgets, it is necessary to maintain anonymity to protect oneself. If tenure can't provide security, anonymity and simple honesty and truth will have to take its place.

Posted by: Anon | Aug 21, 2012 7:43:59 PM

I think that Anon should be forced to speak now or forever hold his peace. If he doesn't respond to DJM's points here, Taxprof should refuse to approve all of his future posts stating that LawProf, DJM, and Brian Tamanaha are manipulating data and using false statistics. Anon's own "data" is the exactly the kind of B.S. that will lead more naive young people to destroy their futures on the law school gamble.

Posted by: Anonymous | Aug 21, 2012 7:26:45 PM

Anon writes, "They're not showing up in the unemployment data." That's not correct. I believe the facts are that well over 60,000 graduates of the law school classes of 2008-12 are not currently employed as lawyers or working in jobs for which a law degree is required. They may never find employment as lawyers. The current changes in the legal market - which by most accounts are not temporary but are only just getting started - mean that probably somewhere around 20-30% of all the law schools in the US are going to close or merge in next few years. Already enrollments are down 15-20% across the board. This will result in a lot of unemployed law professors, which will be unfortunate. However, as Herbert Stein once noted, what can't continue, won't. Rather than putting your head in the sand, Prof. Anon, your time would be better spent trying to help develop a new system of legal education that better meets students' and society's needs.

We as a profession are indebted to Prof. Tamahana for his unblinking look at the unvarnished facts.

Posted by: Connecticut Lawyer | Aug 21, 2012 5:49:46 PM

The anonymous entries were well-crafted flamebait. They should be safely ignored.

Posted by: Anon but not that other anon | Aug 21, 2012 5:27:19 PM

Anon, I don't know any academic who argues that law students should have forgone college. That's a straw horse that once again tries to lower the debate to a very non-intellectual one.

You can easily find the unemployed lawyers. Look here, at the NALP figures for the class of 2011: Nine months after graduation, 3,990 of those graduates (9.6%) were completely unemployed and seeking work. Another 2.2% were working in NONprofessional jobs--babysitting, department store sales, etc. (I have seen some of the job sheets; I know what counts as nonprofessional jobs). Another 10.5% were working in part-time jobs of one type or another. I count that as 22.3% un- or underemployed. And that's before we even look at the temporary legal jobs, the JD Advantage jobs (many of which are available to grads with just a BA), and the people who simply gave up and left the workforce.

They'll find a job eventually, you say? I haven't been able to find any data to support that. The data I've collected so far points in the opposite direction. And nine months is a long time. It seems that when people pay for an expensive professional degree, they should be able to find an entry-level job in less than that period of time. Being out of the workforce is damaging in any field. If a degree can't produce a job (any job!) within nine months, I have to question its economic value.

JDs don't show up in loan default rates because they shift to 25- and 30-year repayment programs; they're smart enough to know that default will make things even worse. They don't show up in bankruptcy court because educational loans are not dischargeable in bankruptcy. And they don't show up in the unemployment figures that I suspect you are referencing because the Current Population Survey counts you as an "unemployed lawyer" only if (a) you once had a job as a lawyer, (b) you are currently unemployed, and (c) you are still looking for a job as a lawyer. If you accept a non-law job, which most people will do to pay the bills (even if they continue looking for a legal job), you're no longer unemployed.

Posted by: Deborah J Merritt | Aug 21, 2012 5:23:00 PM

Which socialist professors would those be? Please, name names if you can.

We law professors teach our students how to help make their clients wealthier while settling disputes without the use of violence. Some of us may be liberal or social democratic, but we're about as far from advocating revolutionary violence as Warren Buffett or Bill Gates.

You'd be hard pressed to find a hard core revolutionary socialist at any law school in the U.S.

And where are all of these unemployed lawyers and low paid law students who would have been so much better off if they had only stopped their educations at high school? They're not showing up in the student loan default data. They're not showing up in the unemployment data. They're not showing up in the wage data. They're not showing up in the bankruptcy courts.

All we see are a few anecdotes, plus some overactive imaginations.

Posted by: Anon | Aug 21, 2012 4:01:21 PM

Anon and AnonProf: No. I am not a stalking horse for anyone. Nor am I producing "cannon fodder" for an anti-intellectual crowd.

I am someone who cares about legal education and legal scholarship, but who also cares about the next generation. I think that, as teachers and scholars, we have duties to the generations that follow us. So I don't post anonymous comments on the internet; I speak up under my own name about what we are doing to those generations.

Scholarship, including excellent interdisciplinary scholarship, is perfectly possible on much lower budgets. I learned from wonderful scholars in the 1970s, but at a fraction of what students pay today. The same was true at a wide range of public and private schools across the country. Why were law professors in the 1950s, 60s, 70s, and 80s, able to produce excellent scholarship at so much lower cost than law professors demand today?

These cries about destroying scholarship are a smokescreen to distract faculty from the real issue: We are extracting a significant portion of our students' future income for ourselves. Previous generations of scholars didn't do that to their students, and we shouldn't either. As scholars, don't we want our classes and research to be accessible to talented students--without forcing those students into 25 years of heavy debt? Isn't 10 years of debt, as it was in our day, more than enough? If students can't afford to hear what we have to say, who will put our ideas into practice?

This isn't about scholarship: It's about charging the next generation far too much. Law schools need to step up and take responsibility for that--then find a way to fix it.

Anon: Making loose references to quislings and fascism is about the most anti-intellectual move I can imagine. Posting anonymous criticisms of another scholar is close behind. Is that how you and AnonProf publish your scholarship, anonymously?

Posted by: Deborah J Merritt | Aug 21, 2012 3:58:40 PM

"Tamanaha doesn't want to take any responsibility for the pain his ideas are about to inflict on his fellow professors."

Like the pain that said professors have inflicted on generations of law school grads (in the hundreds of thousands), financially crippled by the employment lies promoted by profiteering schools and the six-figure socialist, six-classroom hour professoriate?

Anon, with every post, you prove yourself an enemy of truth.

Posted by: cas127 | Aug 21, 2012 2:46:16 PM

Those anonymous comments are grossly unfair.

Posted by: John Steele | Aug 21, 2012 1:38:53 PM

"What I find remarkable—at a time when law graduates suffer under the burden of enormous debt and poor employment prospects"

What I find remarkable is that law graduates have lower student loan default rates than those with far less debt who have only completed a college degree, law graduates are more likely to find employment than undergrads with liberal arts degrees, and law graduates earn somewhere on the order of $30K to $50K more per year than B.A.s with liberal arts majors.

All of the data suggests that law schools are doing a great service to their students and dramatically improving their life prospects, and that law school more than pays for itself.

Yet Tamanaha keeps insisting that law faculty are abusing their students, that we should all hang our heads in shame, that we should repent by agreeing to pay-cuts, increased teaching loads, and reduced resources for scholarship.

When will Tamanaha repent and desist for his sloppy, repeated misrepresentations of the data relating to student loan defaults, employment, and earnings for those with and without law degrees?

When will he drop his holier-than-thou routine and admit that he cares more about being famous than about being right?

I may not be using my real name. But at least I am using real data.

Posted by: Anon | Aug 21, 2012 12:04:04 PM

I will not continue to publicly respond to Anders Walker’s effort to implicate me in the unfortunate events at SLU. From the outside, it appears obvious that SLU’s ongoing disaster is the creation of its President and is unique to their school. I sympathize with Walker’s struggle, but reject his suggestion that I am somehow responsible or taking “revenge.”

My book, Failing Law Schools, lays out my view of the problematic economics of legal education. If SLU’s President and Interim Dean have an agenda that is counter to the interests of the law school, they have the power to harm the school. That has nothing to do with my book. If they do not harbor animus toward the law school and are persuaded by the arguments in my book, but Walker disagrees, he can make a case to show them that I am wrong. Whether or not Walker is ultimately successful in this will be his responsibility.

Walker is right that, going forward, law schools will be scrutinized by outsiders and we will be required to justify our expenditures, including the amount we spend on faculty scholarship. What I find remarkable—at a time when law graduates suffer under the burden of enormous debt and poor employment prospects—is the suggestion that law schools should be immune from critical scrutiny over how we allocate our resources.

My book offers just one take on the situation. Legal educators have different views about these matters, of course, and I am open to critical responses. The "Anons" who voice their opposition on this blog are a good example (although I can't help wonder how law professors can justify hiding behind anonymity--Livingston gets credit for doing it right).

Brian Tamanaha

Posted by: Brian Tamanaha | Aug 21, 2012 10:23:46 AM

Anders is absolutely right. Tamanaha has given cannon fodder for the anti-intellectual crowd and administrators who clamor for vocational training rather than legal education. By his handiwork, Tamanaha will hurt careers of promising scholars in need of research funding and students who would otherwise benefit from the deep, cutting edge understanding of legal problems that only scholars can provide. One can only hope that other disciplines don't have a crusader like him.

Posted by: AnonProf | Aug 21, 2012 6:46:59 AM

Tamanaha doesn't want to take any responsibility for the pain his ideas are about to inflict on his fellow professors--many of whom are productive scholars and do far more to help their students find high paying jobs than Tamanaha ever has or ever could. (I have yet to hear of an NLJ 250 firm looking to hire someone to practice in their Legal Positivism group).

Lets not call Tamanaha a villain. The more precise word is quisling. Not because Tamanaha dared to challenge the legal establishment and make unpopular arguments, but because he manipulated the data, pulled numbers out of context, failed to do the most basic of research to consider counter-arguments, ignored collateral damage and rushed to publication to chase fame.

And of course, historically Quisling was someone who collaborated with a radical right wing movement, much as Tamanaha, DJM, and Paul Campos have become stalking horses for the right wing, anti-academic, anti-intellectual Manhattan Institute, Cato Institute, AEI, Center for College Affordability and Responsibility, and other Kochtopi who want to defund a significant barrier to their propaganda operations--unbiased academic research that contradicts them. (Schlunk used to work for Koch industries, so fabricating shoddy analysis on their behalf is presumably second nature for him).

Give 'em hell, Anders.

Posted by: Anon | Aug 21, 2012 5:10:12 AM

I wouldn't have lunch with Tamanaha either, so everyone's even.

Posted by: michael livingston | Aug 21, 2012 2:49:39 AM