Paul L. Caron

Wednesday, May 1, 2013

Tamanaha: The Failure of Leftist Law Professors to Defend Progressive Causes

Brian Tamanaha (Washington U.), The Failure of Crits and Leftist Law Professors to Defend Progressive Causes, 24 Stan. L. & Pol'y Rev. (2013):

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation’s highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society — championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

This is offered in the spirit of critical legal studies — as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; here I charge liberal legal academia — including the Crits — with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. It may even lose me some friends. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.


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The critique of the UC Irvine boondogle is spot on. Kudos to Prof. Tamanaha (and Prof. Bainbridge of UCLA years ago) for saying what everyone knows with respect to Irvine. Irvine is a poster child of the precise self interested disconect between many law professors purported values and their actions.

Posted by: Anon | May 1, 2013 11:19:39 AM

The article lists tuitions, but later on notes that half the class gets substantial discounts and that by dropping a prestige level pretty much any student can get that discount. Any study that looks just at "list prices" for law schools is like a study that looks at list prices at car dealerships.

Posted by: Eric Rasmusen | May 1, 2013 6:41:37 PM

Only 30 percent of the population has a 4-year bachelor's degree (i.e., the bottom 70 percent are not eligible to go to law school to begin with).

Only 3 percent of the population has a doctorate or professional degree, and that includes PhD programs where *the university pays the student* (i.e., the direct cost of attending school is negative).

Trying to attribute inequality to the cost of law school is kind of like trying to blame the obesity epidemic on long hair styles.

Posted by: Anon | May 1, 2013 11:30:59 PM

For once, something I agree with Brian about, and rather courageous as well.

Posted by: michael livingston | May 2, 2013 2:32:15 AM

"Crits" - what is a crit?

Posted by: fjdietz | May 2, 2013 4:46:57 AM

Tamanaha does not go far enough. He indicates the liberal profs were merely complicit. In fact, they have been exploititive. It is mostly liberal profs that are responsible for the profileration of environmental law, international law and social justice. While the inspiration for these programs out the outset may have been noble, they have since turned into marketing vehicles for the law schools who play on the naivete of young adults. The schools never reveal to the students that they only role they play in the "cause" is to supply the money.

Posted by: JM | May 2, 2013 7:08:06 AM

As Uncle Karl the Communist often said, when we control the Licensing and Degree processes we have won completely.

Posted by: Despiser | May 2, 2013 7:55:37 AM

"Crits" are supposed scholars in so-called "critical legal studies", which is a view of the law through the usual bullshit Marxian/racialist grievance studies perspective. After the lecture the professor goes outside and gets in his Porsche to drive home. Basically, they are the most dishonest phonies on any legal faculty and the most deserving of a punch in the mouth.

Posted by: Brendon Carr | May 2, 2013 7:55:41 AM

This is why I run a blog called I Want a New Left. The difference between me and Tamanaha is that my conclusions were formed not by watching progressive law professors, but by watching progressive humanities professors and their failure to deal with the adjunct situation.

Posted by: John Pepple | May 2, 2013 7:58:19 AM

This isn't a system designed to provide legal training for the good of the public as a whole.

It's a craft guild - designed to keep fees high for the participants in the guild. And designed to keep out competition from those who cannot or will not buy their way into the guild.

The sooner you accept that, the sooner it all makes sense.

Posted by: JS | May 2, 2013 8:02:15 AM

When tuitions are raised to be able to provide a substantial discount to a certain class, it is essentially income redistribution. Financial aid is provided to those who can pay the full rate. Shameless.

Posted by: DarthChocolate | May 2, 2013 8:06:04 AM

With respect to concerns that law is a protected guild, it should be kept in mind at least with respect to California, that one does not need to go to law school much less to an ABA-accredited law school in order to take the bar and become licensed to practice law.

Posted by: Steve Diamond | May 2, 2013 11:20:58 AM

When I read articles like this, calling others out for their salaries, the first question is -- how much does the author make, is it too much, and has he volunteered to take a pay cut? I am not sure if Professor Tamanaha's salary is publicly available anywhere, but I have not seen it, and it does not seem to be in the article. It seems somewhat unfair that he can call out people because their salaries happen to be public for one reason or another but his is not.

Posted by: KJLaw | May 2, 2013 4:05:46 PM

Any solution that requires the tenured army of "six hour socialists" to spend 9 hours per week in the classroom...will be judged "intellectually untenable" by the legal professoriate.

These MOOKs are ensuring the rapid arrive of MOOCs.

It isn't too far in the future (may have already arrived) when "law professor" on a resume will be a mark of Cain.

The professoriate is already loathed by at least 50%+ of their grads (you know, any of the 1.4 million grads who aren't among the 600k actually employed as lawyers).

Posted by: cas127 | May 2, 2013 5:44:54 PM

Fine definition of a legal "crit" at 10:55 AM above, albeit incomplete. One must add that nothing published by a "crit" is even remotely readable. All that yucky deconstruction stuff . . . .

Posted by: Jake | May 2, 2013 6:35:40 PM

You read stuff published by a crit? Even when I took a Critical Legal Studies seminar 20 years ago I didn't make THAT mistake!

Posted by: Brendon Carr | May 3, 2013 2:52:59 AM