Brian Tamanaha is properly held up as the leading voice on the issue of questioning the modern law school business model, primarily for the publication of his book Failing Law Schools (FLS). As with many, I agree with some of Tamanaha’s thoughts on the issue, and disagree (sometimes strongly) with others.
But regardless of any substantive disagreements I have, by the same standard I apply to the S/M paper Tamanaha has made an invaluable contribution to the academic literature and to the betterment of the world. The posting of S/M should provide the opportunity to make this clear. That it has led to the exact opposite by some in the legal community has proven distressing.
Let us recall what the state of the debate about the future of legal education looked like prior to the publication of FLS. Law “scam” blogs accusing law schools and law professors of exploiting students, a “cesspool” of threats and slurs, anonymous posts making scandalous and vicious personal attacks on individual law school faculty members, and public statements by law schools, faculty, and the ABA making it appear as if the entire legal community was oblivious to the crisis facing students graduating law school during that period.
In the face of this, Tamanaha chose to publish a comprehensive, detailed analysis of the issue under his name and through the rigorous review and proofreading process of a prestigious academic press. He compiled in one place real data on tuition, employment, salaries, performance and structural concerns about the accreditation and supervision of legal education. It was not an empiricist doing this, but a jurisprudential scholar, taking time from his typical scholarship to pursue the project. That FLS is not a rigorous empirical study is not a criticism but merely a statement of fact, one never disputed by the author himself. At that time, no other member of the academy rose to the challenge, let alone ones trained in quantitative methods.
Look at the state of the debate after the publication of FLS. Almost all public statements on the issue are now clearly attributed to their authors. Academics publicly publish data under their own names. I am assuming, since it is cited in the paper, that FLS in part led Simkovic and McIntyre to pursue their project in the first place. In other words, FLS has done precisely what the highest and best scholarship can and should do – it increased the amount of knowledge in the world at the time, led to a better and more informed debate, and began the process of replacing emotion and opinion with facts and analysis.
Not that this would be obvious from some of the responses to FLS in light of S/M. Some have gone so far as to retract previous positive reviews given to the book and to Tamanaha. If anything, the publication of S/M is proof that these initial positive reviews were correct. FLS added to the public debate, opened the space for S/M to be written, and thoroughly discredited the use of ad hominem attacks in blog postings. Using S/M as an excuse to return to such tactics would be the worst, and most ironic, result of the public posting of a valuable and thoughtful academic paper.
Before I joined the academy from practice the one thing I most admired and respected about academia was the nature of the scholarly debate. Scholars published ideas under their own name for public consumption. Ideas were developed over time by cumulatively building on the work of the past. Ideas would be clearly attributed to their authors. To the extent published work was correct it was cited as such. To the extent published work was incorrect, future work would build upon it to expose further truth. Being wrong was almost as valuable as being right, so long as the ideas contributed to this advancement of knowledge in the world. For the most part, my interactions in the scholarly arena have proven this correct. Despite a handful of specific encounters with certain cynical and jaded individuals in the academy who clearly no longer believe this, if they ever did, I continue to aspire to this standard in my own scholarship.
From this perspective, allow me to make some notes about FLS and S/M, not in defense or criticism of either but rather as a defense of the broader scholarly project of which I aspire to be a part.
S/M uses data to demonstrate that law schools on average provide a positive Net Present Value. Nothing, as far as I can tell, in FLS claims to the contrary. In fact, if law schools as a whole created negative NPV every law school should immediately be shut down and every law professor should immediately lose their job. Nothing in FLS makes this extreme claim.
That there is a positive NPV to law school says nothing about whether high student debt can lead to negative externalities or other social ills. FLS points to data that the schools with the highest average debt tend to have the worst initial job placement records and lowest bar passage rates. If high student debt with poor job placement creates large short-term negative externalities, such as inability to finance housing or automobile purchases, this could be troubling even with a net positive NPV. This question becomes part of the larger one of financing education and the government more generally. As S/M points out, the value of a law degree turns, in part, on federal tax rates and student debt bankruptcy law. That the federal government, meaning taxpayers, can reduce the negative externality of private debt by taking on the debt through IBR only raises the question of whether the federal government should increase its debt or taxes to invest in the training of lawyers. Whether federal debt or higher taxes raises negative externalities is to say the least, an unclear issue and one of the moment in political and academic circles. While S/M discusses the issue of IBR from a cash-flow and NPV standpoint, nothing in S/M speaks to the issue of potential externalities from debt.
That there is a positive NPV to law school says nothing about how the joint surplus should be split or whether the price of law school is at the efficient point. In a purely competitive market, efficient allocation of surplus based on supply and demand curves would occur. But FLS points out that legal education may not be a purely competitive market. For example, one point raised by FLS is that the mechanisms for accreditation and supervision of legal education, the ABA and AALS, at times seem to act more in the nature of a cartel than defenders of social good. If true, cartel pricing and not competitive pricing could dominate. S/M properly points out (footnote 102 and accompanying text) that tuition discounting is evidence of a competitive market, but discounting per se is not necessarily inconsistent with cartel behavior either.
That there is a positive NPV to law school says nothing about what the mission of legal education should be. One commentator noted that the title of Brian’s book is “Failing” Law Schools and not Risky Law Schools or Very Bottom Law Schools as a criticism. But if legal education has implicitly shifted from training advocates for the public good into surplus extraction from future professionals, a contentious claim to say the least but one sufficient for the sake of argument, “failing” would be precisely the correct word to use if one thought this was normatively troubling. FLS raises the issue of what the broader social and normative mission of law schools should be. S/M does not necessarily speak to this issue.
There are other examples, but I think these make the point. Let me make clear these are not criticisms of S/M. If anything, they demonstrate that S/M is careful in its analysis and properly limited in its claims. S/M makes a valuable contribution to the literature, a literature shaped and defined by FLS. That S/M may refute some of the claims of FLS only proves the value of FLS as scholarship, not the other way around. That S/M does not speak to all of the claims of FLS only proves the strength of our cumulative model of scholarship, not the other way around. Rather than using S/M as cudgel to attack FLS, it should be held up as proof of its ultimate success. All three authors should be lauded for contributing to the state of knowledge in the world.