Law Professor Blows the Whistle on his Colleagues

by Charles E. Rounds, Jr.

Professor Brian Tamanaha’s new book, Failing Law Schools,  does a good job of explaining why borrowing to obtain a lower tier law school education has become a bad deal for all too many, but fails even to acknowledge the sadder fact that to enter most any American law school nowadays is to enter an intellectual wasteland.

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. In Failing Law Schools, Professor Brian Z. 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 if one enrolls in a lower tier law school with the idea that one is going to get a good law job afterwards, one is going to be in for a rude awakening. Many recent law graduates are driving taxis or working at Starbucks with no foreseeable prospect of paying off their student loans. In other words the price is way too high if it is a good job one is after. And the cause of this sorry state of affairs? The untrammeled greed and union laborer mentality of law school academics, of which Prof. Tamahaha has been a beneficiary over the years, as have I.

Failing Law Schools, however, 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. And I don’t mean that he is not gaining any meaningful law practice experience. Both Prof. Tamanaha and I agree that the only way to get that is to actually get out and practice in the real world over an extended period of time. No. What I mean is that gone are the days when it could be said that the law student will at least come away with a thorough grounding in the basic anatomy of the Anglo-American legal tradition.

To make matters worse, the pedagogical environment of the American law school nowadays more closely resembles that of a Montessori school classroom than Prof. Kingfield’s in The Paper Chase. In Bricks Without Straw, an article published by the National Association of Scholars, I explain why legal education has degraded to such a state. In other words I tell the rest of the story. The article is posted on JDSUPRA:

In no way is Prof. Tamanaha correct when he asserts in an aside, its self-evidence apparently warranting no factual support, that the first year of law school is “uniquely demanding,” that it is a legendary ordeal involving “daily classroom grilling.” If that were only the case. Those days are long gone as I explain in Bricks Without Straw.

But back to Failing Law Schools. As Prof. Tamanaha sees it, and I agree with him in this regard, the root of the economic problem is that the three academic constituencies within the legal academy, the doctrinal faculty, the in-house clinical faculty, and the legal writing instructors “have repeatedly worked…[their]…self interest into accreditation standards.”

The three-year in residence requirement, generous faculty compensation packages, tenure or quasi-tenure are just a few of the by-products of these market distorting machinations. And still newly-minted law graduates these days can’t write and don’t know the law’s basic anatomy. “We teach less and get paid more than other professors, and we earn more than most lawyers, yet we complain about being underpaid relative to lawyers.”  The federal loan program, “though well intended, has devastating consequences for many students.”  Think three trade unions fighting over the spoils of an enterprise that is a shell of its former self and whose intellectual product has degraded to a state of mediocrity and irrelevance.

In Bad Sociology, Not Law, a piece posted by The Pope Center, I explained why the clinical and legal writing faculties deserve a share of the blame for this sorry pedagogical state of affairs. As a follow-up, Failing Law Schools does a good job of explaining why their actions also have contributed to the economic binds that the law schools and their newly-minted graduates now find themselves in. Here is a link to the Bad Sociology, Not Law piece:

If all this were not bad enough, law schools across the country were caught in 2011 advertising “sky-high employment rates and triple-digit salaries for recent graduates.” In other words student grades and their personal accomplishments are not the only things that the denizens of the legal academy have been inflating.

What then is to be done?  Prof.Tamanaha is vague. Essentially he suggests that the legal academy needs some industrial-grade belt tightening and general personal sacrificing. More hours in the classroom. Less frivolous scholarship. That sort of tweaking around the edges.

My suggestions are far more radical. If I were all-powerful, I would take the responsibility for educating real world lawyers out of the hands of the American universities and put it back in the hands of the practitioner-scholars, where it had been 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. I certainly hope that is not the case.

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 The Harvard Law School. For more on Prof. Gray, see my Bricks Without Straw. And I would make law schools for-profit institutions. As to those who, for whatever reason, are interested in getting a law PhD, or whose predilections are multidisciplinary, I would direct them to the American university and wish them good luck.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Charles E. Rounds, Jr., Suffolk University Law School | Attorney Advertising

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