Two Cheers for Failing Law Schools

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In Failing Law Schools, Brian Tamanaha, a law professor and legal theorist at Washington University at St. Louis School of Law, has written a timely, thoughtful, and provocative book about the state of legal education. Given the central importance of the rule of law to preservation of a society of free and responsible individuals, the future of legal education ought to be of interest to more than law professors, law students, and prospective law students. Tamanaha also writes extraordinarily clearly and precisely, and the book is a pleasure to read. The book is ultimately disappointing, however, because, despite a bold claim that talking honestly about the economics of the legal academy will “affront” his colleagues, Tamanaha ultimately pulls his punches both in describing the problems and suggesting solutions.

Failing Law Schools provides considerable insight into the operation of the legal academy, built around the central point that “law schools are run for law professors.” Tamanaha illustrates this point with the story of his brief tenure as interim dean at St. John’s law school in New York, following the ouster of an unpopular dean. A key point in his story is that the St. John’s faculty were not working hard enough. After adding up all the demands on a professor’s time, he concludes that there are 10-15 hours in the work week free for scholarship, “yet virtually every faculty (except at brand-new law schools) has professors who don’t write much.” Deans cannot do much about this problem because they have only “small sticks for prodding – twigs, really” and thus are forced to “resort to passing out goodies to get more out of people.”

This anecdote illustrates the strengths and weaknesses of Failing Law Schools. Tamanaha has identified an important issue – the institutional problems that go along with faculty dominance of the academy. He brings considerable insight to diagnosing the problem, from his own experience and from a wide range of sources. Unfortunately he also misses much of the forest by focusing relentlessly on a few trees, some of which turn out to be unimportant bushes.

Let’s begin with the book’s strengths. A central theme of the book is the need for students to make an economic decision about attending law school. Tamanaha devotes significant time in this comparatively brief book to giving clear examples of the costs and benefits of legal education and he provides a framework for prospective law students to use to assess whether or not attending law school in general and any law school in particular is economically wise. He also does a terrific job explaining why law schools are headed off a fiscal cliff. Any one considering going to law school and every current or prospective law faculty member ought to read this book carefully.

The book’s most important contribution is its identification of the unsustainability of the current model of financing legal education. We have reached the end of the road for the model which has students borrow $30,000 and more per year to pay rapidly rising tuition, hoping to get a $160,000/year job after graduation so that they can repay their loans. Tamanaha’s discussion of the level of debt that a student can afford based on future salary is something every prospective law student should read. As an industry, law schools have passed the point at which one might debate the financial problems they face. Over the next few years, multiple law schools are going to close because the finances don’t add up, and Tamanaha explains why that is going to happen. A key audience for this book ought to be university presidents and boards of trustees, who are going to face the wrenching question of whether or not to pull the plug on their law schools. For at least some, the financially responsible answer is going to be “yes,” and Failing Law Schools will help them decide if their law school’s finances are sustainable or not. For this alone, Tamanaha deserves – but is not likely to receive – praise from across the legal academy.

Nonetheless, the book falls short of its ambitious goals in several ways. First, law schools are far from unique in being captured by the professors. Faculties have captured universities and colleges generally. The dynamics of law schools are not that different from business schools, Spanish departments, or history departments. Law faculties have reaped greater rewards from their capture of their departments than English professors have from theirs, but even the tenured English faculty have done well. They have outsourced the boring bits of teaching grammar and composition to an army of contingent workers, just as law schools have shifted teaching writing off the shoulders of the tenure track “substantive” faculty and onto specialized, lower paid “legal writing” faculties. Courses offered in English departments follow faculty interests, just as law faculties have shifted teaching packages away from “bar” courses to focus on professors’ research interests. There is a considerable literature on these larger trends in academia, but Tamanaha discusses almost none of it. Are law schools different in kind or merely in the size of the economic rents their faculties are able to extract? Given how widespread the discussion is now about a “higher education bubble”, it is important to know the extent to which law schools’ failures are unique to them or merely part of an overall problem in American higher education. (Ryan Amacher and Roger E. Meiners’ Faulty Towers: Tenure and the Structure of Higher Education (Independent Institute 2004) provides an excellent survey of the overall problem of university structure and Glenn Reynolds’ The Higher Education Bubble (Encounter Broadside No. 29) (Encounter Books 2012) explains the sustainability problems of the broader university).

Second, Tamanaha identifies only part of the issues surrounding the U.S. News & World Report law school rankings. He correctly identifies a number of significant impacts the rankings have had, but then falls short in his analysis. For example, he states that “The rankings have law schools by the throat. No question.” Not so. Law schools differ from the rest of academia in that there is but one ranking; in virtually every other part of the academic world there are multiple rankings using different criteria. Why is there only one law school ranking while there are multiple credible business school and undergraduate program rankings? One important reason is the resistance of law schools individually and collectively to transparent dissemination of data. U.S. News has influence among students because it is the only easy means of comparing law schools. If law schools or the ABA published data allowing easy comparisons, students would be less dependent on U.S. News.

Moreover, the key is that law professors care about U.S. News rankings and since Tamanaha posits that the professors are the ones ultimately in control of legal education, it would have been instructive if he had asked why law professors care so much about their schools’ rankings in a system they regularly claim to loathe. This is one of the bigger disappointments in the book, as Tamanaha resorts to the easy excuse that “law schools are helpless” to do anything but compete for U.S. News’ rankings because of pressure from applicants, students, and alumni. Incredibly, he asserts that “No law school administrator likes posting misleading employment numbers or putting out scholarship offers that trap unwary students, but once a few less scrupulous schools used these techniques to advance their position in the ranking, other schools inevitably followed.” This is nonsense. “The rankings made us do it” for unethical behavior is as poor an excuse by those purporting to be educating future leaders of a self-regulating profession as “all my friends are snorting coke” is for a high school student caught by his parents with a backpack full of drugs.

Moreover, the penalty for not playing the rankings game would have been relatively small for many law schools. During the fat years of legal education, no law school would have closed its doors if it had failed to rise or maintain its U.S. News rank. Student quality as measured by LSAT and undergraduate GPA might have dipped, resources would have had to be diverted from other uses to reducing effective tuition (either by discounting or by lowering tuition), and faculty would have endured condescending expressions of sympathy from their friends at other schools. For many law schools, this would have been a trivial change. For example, at the top, Yale would have lost its number one spot to Harvard had it declined to participate in U.S. News’ ranking (since the values U.S. News estimates for schools that do not submit data appear to be worse than the values the school would submit), but Yale would remain one of the most highly regarded law schools regardless of its U.S. News ranking.  Moreover, if a dozen or so highly ranked law schools and state flagship university law schools defected from U.S. News, they could have made the entire ranking irrelevant. If law professors control the academy as Tamanaha suggests, they bear responsibility for their schools’ unethical or silly efforts to worship at the altar of U.S. News. Acting like mature adults whose self-worth was not determined by a magazine’s arbitrary ranking would have been sufficient to eliminate the excesses Tamanaha and others have documented.

Third, Failing Law Schools fails to address the full consequences of the capture. Tamanaha does a tremendous job illustrating how law professors have come to dominate the ABA’s Section on Legal Education. In particular, he gives a clear explanation of how the accreditation process has increased law professors’ salaries and improved their working conditions. But again, Tamanaha pulls his punches. Emory law professor George Shepherd has thoroughly documented how the ABA standards are not simply a means of feathering the nests of faculties but also are responsible for creating the problem of access to justice for the poor. In his 2003 article, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Legal Edu. 103, Prof. Shepherd documents the origins of the ABA accreditation system as a racist effort to keep blacks and other minorities from becoming lawyers. As Prof. Shepherd notes:

It is no accident that accreditation harms black law schools and black students. During the 1920s and 1930s the bar, the courts, and state governments imposed the accreditation system as an intentional means to exclude blacks and other minorities from the profession to reduce competition for existing white lawyers. Those who presently operate the system do not harbor personal racist beliefs; they merely believe that admitting more lawyers into the profession, many of whom would be black, would harm consumers and the profession. However, these well-intentioned people tenaciously enforce a deeply discriminatory system with roots in a racist past. It is the system, not those who currently operate it, that is racist. It is the system’s discriminatory impacts, openly intended by those who originally established the system, that make it so.

It is no doubt uncomfortable for today’s law professors, largely a politically left-leaning group, to acknowledge that their high salaries and light work loads are merely the side effect of a system designed to exclude blacks. But focusing on the ABA Section on Legal Education as an economic cartel misses an important dimension to the harm that cartel has caused. That dimension suggests that curing the problem is going to require much more than diversifying the race of people teaching in law schools – it is going to require addressing the problem of access to the legal profession that our current model of legal education has created. Tamanaha gives an excellent analysis of problems of the economic model of legal education but he never looks past the numbers to ask how that model became dominant.

Fourth, Tamanaha is far too circumspect on the failings of legal scholarship. Although he notes that much legal scholarship is never cited, that law schools today do not value doctrinal analysis as much as they did in the past, and that many lawyers and judges do not find legal scholarship to be particularly useful, his conclusion is merely that “We must inquire whether it is appropriate that law students are forced to pay for the production of scholarship at current levels and to the same extent at law schools across the board. Not all law schools and not all law professors must be oriented toward research.” This is a weak conclusion that avoids the hard questions.

Again, a comparative perspective would have been enlightening. Law professors are not the only members of the academy who write work that outsiders suspect is of limited utility. Business, engineering, dental, veterinary, and medical professors also balance writing for the academy and their respective professions. Are law professors better or worse at striking a balance than their peers in the academy? Moreover, as Tamanaha notes, as law schools hire more J.D./Ph.D. or just Ph.D. faculty, much of the scholarship done in law schools has become indistinguishable from scholarship done elsewhere in the university. How does the work produced by law professors in other disciplines compare with that produced by philosophers, political scientists, or economists? Prof. Tamanaha might object that he set out to write a book about law schools, not universities. And, to be fair, reviewers must take care not to criticize authors for failing to write the book the reviewer would have written. But Failing Law Schools would not have needed to be a different book to have provided a broader context. Omitting that context weakens the analysis because the discussion of the problems of legal education is taking place within a broader discussion of the problems of higher education.

To see the value of a comparative perspective, let’s look at one example of how scholarship is handled elsewhere in the academy. I have long admired the scholarship of an acquaintance who teaches history, including legal history, at a mid-tier, state school. He has the professional degrees (including M.A., Ph.D., and J.D.) from an excellent school and these are sufficient to qualify him to teach in many law schools.  His productivity is extraordinary. Not only does my acquaintance regularly teach a much heavier load than most law professors, but he is a prolific scholar in a difficult field. His webpage lists seven regular courses. In addition, he has duties as an advisor to graduate students. Despite a diverse, heavy teaching load, this professor has written 18 books, 39 articles (including quite a few law review articles), 16 book chapters and encyclopedia entries, and numerous book reviews; has an active scholarly agenda including 5 books under contract; is active in his profession through leadership positions in honor societies and professional organizations, helped found an important regional historical society, and has served as a member of the editorial board of multiple scholarly journals. What this anecdote illustrates is that there is no inherent tradeoff between carrying a much heavier teaching load than most U.S. law professors and producing a substantial body of significant scholarship about legal topics.

Should law professors be producing more scholarship? Tamanaha’s opening anecdote from his time as interim dean suggests they should – one of his key points was that every professor had 10-15 hours of work time per week in which he or she could be writing. As Tamanaha notes, opinions are sharply divided on legal scholarship’s value. But dividing the world into elite schools where professors write more and non-elite schools where they write less – effectively what Tamanaha advocates at the end of the book – does not answer this question. He makes a compelling case that the price of reducing teaching loads to “buy” scholarship using tuition revenues is high for students. But, as my example suggests, there is no reason why law professors could not write considerably more than they do now even while teaching much more as well.

The issues surrounding scholarship go deeper and it would have been useful for Tamanaha to go beyond the obligatory quotes from lawyers and judges on legal scholarship’s failings from the point of view of the bar to ask some difficult questions. Why has legal scholarship changed so dramatically over the past 50 years? Why have subjects like commercial law vanished from top law journals? (See Larry Garvin’s excellent The Strange Death of Academic Commercial Law, 68 Oh. St. L. J. 403 (2007).) Why have law journals proliferated, so that there are now hundreds more student-edited journals than there were just a few decades ago? If the faculty are in charge, these developments are the result of law professors’ decisions and ought to be explained. Tamanaha concludes the book by saying he “resolved that this book could be written only if [he] protected no one, including myself” yet there is no discussion of whether his students’ tuition dollars were wisely spent on funding his own considerable scholarly output. More importantly, Tamanaha offers no metric by which deans, university boards, or the legal community can choose how much or what kinds of legal scholarship is worth the cost. This is a fundamental question for the future of the legal academy, yet all Tamanaha provides is the obvious point that some legal scholarship is not worth the cost without offering a means by which to identify that which is worthwhile and that which is not. This was a major missed opportunity to start a dialogue on a critical point.

Failing Law Schools is an important book, one that raises more questions than it answers. Its greatest virtue is the concise, clear statement of the economic problem of legal education. Its greatest flaw is its failure to probe below the surface of the problem. Prof. Tamanaha is a worthy contributor to the debate over the future of legal education; and I hope he will continue to make contributions as the debate progresses.