Failing Law Schools: What If Tamanaha Is Right?

According to the review in the Chronicle of Higher Education, the advance copy of Washington lawprof Brian Tamanaha’s new book, Failing Law Schools, was “circulated to a handful of prominent legal scholars.” And I got one too.  It’s devastating. 

While it thoroughly covers the obvious, from bloated salaries for underworked “scholars” whose glorious research and writing is subsidized by students who take on massive debt for the honor, yet leave school armed with theories without the slightest clue of how to practice law, to schools driven by profit incentive to game the U.S. News and World Reports ranking for fear of dropping a notch and being relegated to the academic junkheap, where their fellow scholars will laugh at them and their salary will shrivel like a penis in Long Island Sound in May. 

But Brian covers a wealth of historic background, the “how we got here” stuff that goes back to the days when law transitions from common apprenticeships to the “professionalized academic” style we now see as absolutely necessary and beyond the possibility of reformation.  This part of his book made me realize that the tin foil hat wearers, while still crazy, aren’t as crazy as I thought.

As the notion of normalizing a legal education across the country and schools took form, a conflict existed as to how it ought to look. The ABA, captured by the professoriat who represented the ideals of Big University, created an image of law school that served two purposes, ridding the scholars of those annoying schools capable of turning out lawyers quickly, inexpensively and effectively at the expense of grander academic ideals.  The other purpose, which comes as no surprise, was to institutionalize and mandate the protection of the scholar class, even though it bore no necessary connection to the core purpose of educating lawyers.

In other words, it was a conspiracy to preserve and protect scholars, even though it really had nothing much to do with educating lawyers.  They just needed some protecting or they, like dinosaurs, would become extinct.  As they got to write the rules, they wrote rules that perpetuated their continued existence.

Some of the big questions, such as why three years rather than two?  Why tenure? Why scholarship as a necessary component of law school academia?  Tamanaha gives answers. They’re not pretty.  Had there been a shift in relative power at the time, things would have looked very different indeed, and law school today would have looked very different.

The point of this digression into the history of law school is that most of our sacred cows today were borne of self-interest by the professoriat at the time the model was created, rather than sound educational necessity.  What we now think we can’t live without could just as easily have never existed, and we would have been no worse for it.

It’s a pretty shocking view. 

Another bit of news is that one of the most highly promoted options that have been moving about the discussion, the creation of third year clinical programs in order to teach students to practice while keeping them on board as tuition payers, isn’t all its cracked up to be.  They’re expensive to run.  They don’t do nearly as well at teaching practice as an actual apprenticeship would do. They continue to add to law school debt, even though students are working for a living. 

Add to this  Walter Olson’s beef, from Schools for Misrule, that the focus of most clinical programs reflects the political bias of academia (why should students be indoctrinated to believe that people suing large corporations are inherently more righteous and entitled to clinical love than the corporations being sued, or that “victims” of domestic violence are invariably honest and good while defendants are necessarily guilty and evil?), generally a very liberal bias, such that they’re not only teaching practice, but good and evil as well, and suddenly clinics aren’t a panacea.

Brian Tamanaha’s Failing Law Schools is meant to serve two purposes: First, to compel his fellow lawprofs to pull their collective heads out of their butts and stop denying that they’ve created an awfully damned cushy world for themselves at the expense of students.  The second is to begin the discussion of how to fix things.

From the rumbling I’ve heard in advance of the book, a great many lawprofs believe that this book is going break things wide open.  Though many won’t speak out publicly, whether because they’re a bunch of sissies, fear loss of admiration from their peers, can’t bring themselves to hurt people’s feelings or, as seems to be the predominant reason, fear that once the words leave their fingertips, there will be no going back.  They fear that a rift will develop within the academy, and they don’t want to be either pariahs (if they’re on the losing end of the debate) or lose the camaraderie of others in their insular community.  Yes, it sucks to believe in something but lack the guts to stand up for it.  Ask Paul Campos, the most hated man in academia.

What some don’t realize, but I do, is that there are a lot of lawprofs who agree with Campos. I know because they tell me, though they ask me to keep it our little secret. While I honor my promise to bite my tongue, they need to know they aren’t alone.

Then again, the view of the institutional tool remains :



Paul S. Berman, dean of law at George Washington University, says there is some truth to Mr. Tamanaha’s arguments about the economic consequences of attending law school, particularly when students attend expensive, low-ranked schools in weak job markets. But he says Mr. Tamanaha exaggerates the extent of the problem, in part by failing to adequately consider the flexibility that federal income-based loan-repayment plans offer students.

In other words, if we can just shift the loan-repayment issue off the backs of students and onto the back of, let me think, taxpayers, lawprof salaries won’t have to take a hit, and they can continue to teach 8 hours 6 hours (I’ve been corrected, that normal lawprofs teach 6 hours while elite lawprofs teach 4 hours) a week and spend the rest of their time sipping sherry and doing serious thinking. 

The final part of Brian’s book offers some solutions to the problem, and this is where it’s most exposed to attack:



Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.


As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

Notably,  Orin Kerr responds to Olivas by asking, “what’s so bad about that?”


Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

After discussing the solutions aspect with Brian, it appears that this was not so much intended as a conclusive fix, but rather the starting point of the discussion.  The first step was to establish beyond question that there exists a systemic problem that has finally collapsed under its own weight, that this isn’t just a temporary bubble problem which will right itself once the economy improves that people start throwing money at lawyers again.

There are issues with the solutions Brian offers, some of which are impractical and some of which resolve one issue at the expense of another.  From my perspective from the trenches, there remains much work to be done so that solutions address the issues that continue to foul the profession for many years afterward, and consider the impact on the people we exist to serve rather than just students and teachers.

Not everyone in the Academy is  completely against the idea of including lawyers in the discussion. though they still see it in isolation, rather than as part of the larger legal ecosystem, and consider the problem theirs to fix, with lawyers (and clients) having a say as matter of courtesy rather than right.  I suspect this is due to the assumption that since it’s their salaries and leisure time on the line, they’ve got more at stake.

They’re wrong about this. Law school is the first step in the creation of a cadre of professionals whose purpose is to serve society, not a place to generate money to pay lawprofs or provide them with an office to contain their deep thoughts.  It’s not merely the cost to students and the debt they will carry for decades, that pushes them to engage in dubious conduct and view their roles as entitling them to do whatever they must to get their heads above water.  It’s not just the ability of practicing lawyers to earn a decent living, even though it falls substantially below that of lawprofs, in order to continue the practice of law rather than switch to a higher paying position as assistant manager of Dairy Queen.

It’s about all of this, but even more about have a group of people who do something called practicing law so that our fellow human beings can have a society where they don’t have to kill each other to resolve their disputes, or get shuffled off to prison any faster than the government can make them.  This is why we have lawyers, which is why we have law schools, and those who teach them, and why the problems, and their solutions, is a duty for all of us.

One thought on “Failing Law Schools: What If Tamanaha Is Right?

  1. Anonymous

    Remaining anonymous for the sake of the school I currently attend, but this sounds about right. Honestly, it sounds like many of the complaints me and my classmates have made about the current legal education we are getting. Sure, I am learning a ton of academic information, sure have not learned a lot about the practical aspects of being a lawyer (save for a couple professors who do actually care about the future J.D.s). Thank the Lord that I was able to have an internship with the Fed. Public Defender last semester and have gotten a job for the summer.

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