Stanley Fish on education, law and society.
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Back in November, an editorial in this newspaper began by declaring that "American legal education is in crisis." I was struck at the time by how unlikely it would be for an editorial to announce that "humanities education is in crisis," if only because a state of crisis, along with ritual lamentations about it, has characterized humanities education for much longer than I have been alive. There would be no news there, but it was news, apparently, that the legal academy was in trouble.
In fact, that news was itself not so new. Uneasiness about the state of legal education has been around for some time, but in the wake of the financial meltdown of 2008, uneasiness ripened into a conviction that something was terribly wrong as law school applications declined, thousands of lawyers lost their jobs, employers complained that law school graduates had not been trained to practice law, and law school graduates complained that they had been led into debt by false promises of employment and high salaries. And while all this was happening, law schools continued to raise tuition, take in more and more students, and construct elaborate new facilities.
That at least is the story told in a book to be published later this year, "Failing Law Schools," by Brian Tamanaha. Tamanaha is a law professor, a former law school dean, a prolific legal theorist and, by his own account, a malefactor who in the past did some of the things he now criticizes. Having seen the light, he feels compelled to spread and document the bad news.
Tamanaha predicts that his "pages will put off many of my fellow legal educators," and given the legal academy's responses (including mine) to a series of critical articles by David Segal, he is probably right. Tamanaha's analysis pretty much tracks Segal's, but his book is more ambitious in its scope and puts statistical flesh on the bones of Segal's polemic. He catalogs a large number of failings on the part of law schools, but his emphasis is less on particular bad actors (although he names more than a few) than on the structural conditions — conditions put in place by no one, but affecting everyone — that generate and drive their behavior.
Two such conditions can be colloquially named "the ABA made me do it" and "the rankings made me do it." Tamanaha faults the American Bar Association for instituting policies that have the effect of forcing all law schools, no matter what demographic they serve, to model themselves on wealthy elites like Yale, Harvard and Stanford. ABA requirements that accredited law schools have state-of-the-art facilities, substantial libraries, an academically credentialed faculty and low student-teacher ratios operate to dis-accredit law schools "built on a low cost model which emphasizes teaching rather than research, relies upon a smaller number of full time faculty without tenure at lower pay, uses a large number of lawyers and judges to teach courses … possesses basic facilities and library collections, and focuses on teaching students practice skills."
The U.S. News and World Report rankings, says Tamanaha, produce even worse deformations; in fact they produce behavior that is at least deceptive and borders on fraud. A law school dean who knows that the rank of her school will in large part determine the faculty it can attract, the quality of the applicants, the support provided by her university and the job opportunities of graduates will be tempted to fiddle with the numbers by (among other things) reporting high salaries for graduates when the pool surveyed is a tiny fraction of those who have the school's degree, devising schemes to keep students with low test scores off the books by shunting them off to evening programs and inflating the employment rate by hiring its own for a short term.
Tamanaha finds these and other "disreputable actions" understandable if not excusable given the structural situation: "A conscientious dean who refused to engage in questionable number reporting … risked not just her continued tenure as dean but the standing of her institution." And all of this is happening, he adds, because "a bunch of folks" are sitting around in the offices of an almost defunct magazine "brain-storming about what they will choose to count … and not count" and thus setting in motion "a phenomenon that is reshaping the internal composition of law schools." As a result, he concludes, "the contours of a five billion dollar educational industry are being carved by a self-appointed maker of lists sold for profit."
Tamanaha does not spare the internal practices of law schools and is particularly distressed about the amount of debt incurred by those least able to get out from under it — graduates of lower-ranked schools. He also takes aim at the claim of law professors that their high salaries and low teaching loads (relative to other academics) are justified by the revenue they forgo when they enter the academy. No, he replies. Not only is "our pay far better than that of other professors," not only do we have lifetime security and hours of work that are "whatever we want them to be," but "our quality of life is far better than that of lawyers and we make more money than most lawyers."
Will these fortunate conditions persist? Can law schools keep doing what they're doing? Not according to the statistics Tamanaha marshals, statistics that show, among other things, that while law schools produce annually 45,000 new graduates, only 25,000 openings for lawyers are projected "each year through 2018." Not that the oversupply of lawyers means that Americans have all the legal services they need. In fact, Tamanaha reports, large populations are underserved. The paradox is easily explained: the kind of lawyering poor and disadvantaged communities require does not bring in enough money to attract newly minted lawyers trailing clouds of debt. "Law schools have created a systemic mismatch between graduates and jobs."
And the solution? In a word, differentiation. Don't let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: "Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types." Different strokes for different folks.
Will it happen? Tamanaha is not optimistic, and he cites the (to him) discouraging example of the new law school at the University of California at Irvine, which, he says, chose "elite status" over "affordability," chose to enter the "ranking sweepstakes" rather than opting for a "different design." Still, he finds hope in a number of public law schools that do "charge tuition well below $20,000." He's just not generally hopeful.
He also anticipates readers who will be "unconvinced that the economics of legal education are as badly askew" as he argues they are. That is no doubt correct, but even those who disagree with him and challenge his analyses will be participating in a conversation shaped by his contentions. "Failing Law Schools" does not say entirely, or even mainly, new things, but it does present a comprehensive case for the negative side of this debate and I am sure that many legal academics and every law school dean will be talking about it.
Victor Cuvo
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