The Future of Law School: The Tamanaha Fix
[Note: This isn't going to be a funny or salacious post. The first half is pretty boring, and I beg you to get through it. The subject is important, maybe even critical, to our profession. At least I think so. I don't ask much of readers, but do me the courtesy of reading through to the end.]
The rumblings have been going on for a while, that Brian Tamanaha has a book coming out that will change everything about American legal education. The Washington University Lawprof has written Failing Law Schools, which I hear is both condemnation and solution to the crisis we've been watching over the past few years. In its pre-publication marketing, the book is described:
For those unaware, Tamanaha isn't new to his view. Almost two years ago at Balkanization, he sought to shake some sense into his fellow academics as to the systemic problems in law school. He was one of the few lawprofs to take seriously the views of scambloggers, who were largely ignored.On the surface, law schools today are thriving. Enrollments are on the rise, and their resources are often the envy of every other university department. Law professors are among the highest paid and play key roles as public intellectuals, advisers, and government officials. Yet behind the flourishing facade, law schools are failing abjectly. Recent front-page stories have detailed widespread dubious practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession.Addressing all these problems and more in a ringing critique is renowned legal scholar Brian Z. Tamanaha. Piece by piece, Tamanaha lays out the how and why of the crisis and the likely consequences if the current trend continues. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The average law school graduate’s debt is around $100,000—the highest it has ever been—while the legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Tamanaha argues, are the economic demands and competitive pressures on law schools—driven by competition over U.S. News and World Report ranking. When paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing, the result is a system that is fundamentally unsustainable.
Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.
Following David Segal's series in the New York Times, and despite many lawprof's dismissal of the problem and denial of responsibility, the message has begun to get through to the scholars that something is amiss. The reason it's been so hard becomes readily apparent from Orin Kerr's description of Tamanaha's book:
In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.
It's a sweet gig any way you cut it. With only the occasional interruption for the unpleasant work of teaching, a life of scholarly pursuits at an extremely comfortable salary, with the added benefits of being treated with respect if not adoration for being so intellectually superior.
The reason I've made you endure this post up to now (assuming you're still reading as I've begged you to do) is that this book has the potential to cause a paradigm shift within the legal academy, and there is one monumentally huge, gaping hole: Practicing lawyers have no voice in the discussion.
For a bit, I've been talking to a lawprof who shall remain nameless for now (as he has yet to come out with his position or that he deigns to talk to the likes of me, so I leave it to him to admit to our discussions), about the broad array of problems we're facing. We agree on much. We disagree on much as well.
One of the fundamental disagreements is that he's of the view that the problems with legal education are internal, and therefore must be cured by the legal academy. In other words, I shouldn't worry my pretty head about such things. He flatters my interest, but assures me that they need to clean up their own act.
The failures of law school (and I use the plural deliberately) do not exist in a vacuum. They are part of the failures that pervade the profession as a whole, from our inability to fulfill our obligation to society to our inability to produce new lawyers who care more about law than themselves. One of the gravest dilemmas is the overproduction of lawyers carrying enormous debt and the underproduction of professionals capable of helping the public at a cost they can afford.
Add to this the government's never-ending use of law as a tool to control/regulate/manipulate/improve/fix society, and thus further increase the need for the public to either use lawyers or suffer the mishaps that come of ill-conceived self-help in their everyday lives, and we're left with a toxic mix.
This goes way beyond law school. This can't be cured by lawprofs alone, or changes in legal education. Tweak one side of the equation and it impacts on the others, with unintended consequences. And don't think for a moment that lawprofs, who are living a grand life off the current system even if they realize they've gotten too fat and greedy enjoying the fruits of law school tuition, aren't concerned that letting practicing lawyers stick their nose under the tent won't ruin their good thing.
But this is our profession. We are stakeholders in the future of lawyers, and it is not only outrageous, but unacceptable, that this discussion occur without our knowledge or involvement. You need to know this is happening. They need to know you care and have something to say about it. And if you turn your back and leave it to the lawprofs to fix, you deserve whatever they come up with.
Once the "fix" is in, there won't be a mulligan, where lawyers can then add their two cents and go for a second round of how to cure the problems of our profession. Now is the time to get involved in the discussion, whether the lawprofs want us to or not. I realize this isn't fun and, for many, rather boring and disconnected from the daily grind. But this is our future. Don't leave it to someone else to fix.