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Law Professor Blows the Whistle

Professor Brian Tamanaha’s book explains much that is wrong with law schools these days.

By Charles E. Rounds, Jr.

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November 04, 2012

When a witness makes an admission that is against his personal interest, that admission is given particular deference by the court. It must be true or he wouldn’t have said it—that’s the logic.

In Failing Law Schools, Professor Brian Tamanaha of the Washington University School of Law has spun out an extended and detailed admission, one that is sure to bring down upon him the wrath of his colleagues from the Atlantic to the Pacific, from Canada to Mexico.
 
The admission is that a student who enrolls in a lower-tier law school with the idea that he or she is going to get a good law job afterwards is going to be in for a rude awakening.

Many recent law school graduates are driving taxis or working at Starbucks with no foreseeable prospect of more lucrative employment, let alone paying off their student loans.

If that weren’t enough, last year several lower-tier law schools were caught falsely advertising “sky-high employment rates and triple-digit salaries for recent graduates,” says Tamanaha. He blames the federal student loan program, despite its good intentions, for “devastating consequences” to many law students who find themselves with law degrees, but no legal employment.

Tamanaha argues that the untrammeled greed and union laborer mentality of law school academics is the cause of much that is wrong with American law schools today.

Specifically, the three academic constituencies roosting comfortably in the rafters of the law’s ivory towers—the doctrinal faculty (the folks who teach fundamental courses such as Contracts and Torts), the in-house clinical faculty, and the legal writing instructors—long ago captured the law school accreditation process and have been exploiting it for their personal advantage ever since. As a result, we have the requirement that law school last three years, along with generous faculty compensation, lavish libraries, fancy moot court rooms, tenure or quasi-tenure for almost everyone, light teaching loads, and lots of professional junkets.

Tamanaha drives the key point home: Law schools operate far more for the good of the legal education producers than for the good of the consumers (students). Much of what goes on in them is woefully inefficient, ineffective, and expensive, but if a dean should try to cut back, the squawking would be deafening, especially from the latter two groups. They tend to agitate and vote as a flock.  

The author’s analysis is good as far as it goes, but Failing Law Schools doesn’t tell the full story of why law school nowadays is generally a bad deal.

The rest of the story is that while the law student is piling up all this debt, he really isn’t learning very much. Gone are the days when the law student would at least come away with a thorough grounding in the basic anatomy of the Anglo-American legal tradition.As I argued in my 2011 article “Bricks without Straw” (published in Academic Questions and available here), “Great swaths of core legal doctrine have been scythed from the required law curriculum, a process of misguided reform that began in the 1960s.”

Students can now get through law school without learning much about the law’s essentials. Instead, the curriculum has been larded up with the sort of opinion-laden courses I called “bad sociology” in an earlier Pope Center article.
 
To make matters worse, the pedagogical environment of the American law school nowadays more closely resembles that of a Montessori school classroom than Professor Kingfield’s in the movie The Paper Chase. In no way is Professor Tamahana correct when he asserts that the first year of law school is “uniquely demanding,” and that it is a legendary ordeal involving “daily classroom grilling.”

If only that were the case. The reduction in the number of required courses and rampant grade inflation (the inevitable consequence of that reduction), omnipresent concerns over “sensitivity” to students, and the tyranny of the course/teacher evaluation form that each law student is asked to fill out have seen to that. And it hasn’t helped that the bar examination is not as rigorous as it used to be, at least in some states.  My home state, for one, is known as “Passachusetts” in legal circles.
 
What then is to be done?

Tamanaha is vague when it comes to solutions. Essentially, he suggests that the legal academy needs some industrial-grade belt tightening and general personal sacrificing. He suggests that marginal tweaks like more hours in the classroom and less frivolous scholarship would be helpful.
 
My suggestions are far more radical. We should take the responsibility for educating real-world lawyers out of the hands of universities altogether and put it back in the hands of the practitioner-scholars, where it was lodged at the beginning of the 19th century.

The sine qua non for being a law school instructor would be many years of real-world practice experience on the civil side of the law. Are there any professors of surgery out there who have never performed an operation on a real human being?  I doubt it. Unfortunately, most full-time law school professors nowadays have minimal practice experience. I know of a prominent Ivy League law professor who admitted proudly in a deposition that he has never actually represented a client.
 
My model law instructor would be the great practitioner-scholar John Chipman Gray (1839-1915), who was simultaneously practicing law full-time at Ropes and Gray, the law firm he co-founded, and teaching full-time at Harvard Law School.

Also, law schools should be for-profit institutions. What legal education needs is a heavy dose of market-based accountability. As to those who, for whatever reason, are interested in getting a Ph.D. in the law, or whose predilections are multidisciplinary, I would direct them to the American university system and wish them good luck.    

Tamanaha’s book does a good job of explaining why law school is a bad deal economically, especially at a lower-tier school, and how this sorry situation came to pass. It is good to have his admission against interest on the record, but it only covers a fraction of the grave problems that beset all of our law schools.

 


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