Failing Law Schools Research Articles

Populist Outrage, Reckless Empirics: A Review of Failing Law Schools

authors of The Economic Value of a Law Degree (available at http://ssrn.com/abstract=2250585) review Brian Tamanaha's Failing Law Schools. review focuses on problems with empirical claims in Failing Law Schools regarding outcomes for law graduates and also regarding law faculty compensation. review also discusses Professor Tamanaha's proposals for reform of legal education in light of economic theory and the empirical economics literature, and finds reasons to doubt that Tamanaha's proposed reforms will have the effects he predicts.

Why Don't Males Do the Fair Share of House/Care Work?: Theories About Gender Differences Regarding Institutional & Communal Work in American Law Schools in a Time of Economic Distress

For many years, it has been fairly well documented that, as a whole, women do more than their equal share of communal care – household and parenting – work in households across America even when both partners in a heterosexual couple with children work outside the home. Whether such statistical disparity is a result of cultural expectations, men’s larger share of paid work, or the slow pace of achieving gender equality is debatable. Meanwhile, gendered responses to the global recession and to the contraction of the labor market also present interesting phenomena for American feminists to examine. Some the recent unemployment crisis in America the Mancession because of the types of labor sectors most heavily affected, namely middle class manufacturing jobs. Others argue that American females have been more successful in finding new employment during the global recession because they are more adaptable. Still others warn that as the economy turns around and middle class manufacturing jobs return, women will fare worse in the employment comparisons. Questions needing further examination as the data emerge are: 1) whether female employment will increase, decrease or as the economy turns around, and 2) whether female adaptation will create more success in employment numbers and compensation. Equally ripe for study is the gendered face of American legal education, particularly as legal educators are challenged to and, I posit, to engage in feminine behavior: 1) to work communally rather than individually and 2) to adapt and in a new economy. This call for change stems not simply from the 2008 financial crash, and its concomitant loss of legal jobs, but from the spiraling costs of legal education and the restructuring of the legal market. Critiques of American legal education such as those found in the Carnegie Foundation’s Educating Lawyers, the Clinical Legal Education Association’s Best Practices for Legal Education, and Brian Tamahana’s Failing Law Schools all underscore the need for American law school faculties to work in an integrated and communal manner instead of as independent contractor-experts. The question arises whether the need to act in a more holistic, integrated and communal manner will create or exacerbate gendered differences in the legal academy. I argue that there have been longstanding gender differences, as a whole, in American law faculty members’ willingness to engage in the care/household work of law schools, namely in the production of tangible value for the students, alumni and the profession. These differences can be observed in the gender disparity among the workhorse administrative positions such as the Dean of Students and/or Academics, and may also exist in the day to day committee work that is the governing structure of the academy. It can also be demonstrated by the gender identity of those who do the care work of the institution – the formation of students for real practice (clinicians) and the challenge of teaching students the most fundamental skills needed for American attorneys - legal research and writing (lawyering /legal writing faculty). That does not mean, of course, that all female faculty members are selfless and all male faculty members are self-involved. One finds both types of individuals in both gender types. However, for American law to continue to flourish, they will need individuals who work communally, who know how to adapt and for the good of the whole, and who place student or institutional needs above individual inclinations and individual goals. As the work of law school Deans becomes more burdensome and less well-compensated, I believe it is more likely we will see an increasing number of women at the helm of law schools. Contrasting with that argument, however, and on a less cynical and more hopeful note, I explore whether the feminization of law schools including the modeling of and teaching of adaptability, flexibility and communal problem solving will redeem American legal education and better prepare law students for the new economy.

Responsible Solutions

At the end of Brian Tamanaha’s instant classic, Failing Law Schools, tracing the economic forces behind exorbitant law school tuition and graduate debt and unemployment, he lays out his plan to help resolve the crisis. He would eliminate tenure, dispense with the final year of law school, rely heavily on adjuncts and apprenticeships, and loosen the ABA accreditation standards mandating “one-size-fitsall” law schools to allow the marketplace to fashion more affordable models of legal education. Some schools would remain in the traditional, three-year mode, with faculty conducting research. Others would morph into, or spring up spontaneously as, the “law school parallel . . . of vocational colleges.” Very candidly, Tamanaha explained that the “two-year law schools . . . would be dumping grounds for the middle class and the poor . . . . Few children of the rich will end up in these law schools.” He calls the plan “‘differentiated’ legal education.” Others, including Paul Campos, founder of the Inside the Law School Scam web blog and author of Don’t Go To Law School (Unless), and the ABA Task Force (“Task Force”) on the Future of Legal Education, have endorsed Tamanaha’s prescription.

Failing Law Schools

Failing Law Schools

The Future and Legal Education: Are Law Schools Failing and, If So, How?

In Failing Law Schools (2010), Brian Tamanaha recommends that law schools respond to the current economic crisis in the legal profession by reducing support for faculty research and developing two‐year degree programs. But these ideas respond only to a short‐term problem that will probably be solved by the closure of marginal institutions. The real challenge lies in the powerful long‐term trends that animate social change, particularly the shift to a knowledge‐based economy and the demand for social justice through expanded public services. These trends demand that law schools transform their educational programs to reflect the regulatory, transactional, and interdisciplinary nature of modern legal practice.

Tales of a Fourth Tier Nothing, a Response to Brian Tamanaha's Failing Law Schools

This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis. Part One addresses the idea, which dates back to 1921, that students at lower-tiered schools should be able to receive a different education (impliedly lower quality) than those students matriculating at higher ranked schools. Part Two counters Professor Tamanaha’s dichotomous view of legal scholarship and teaching, arguing that scholarship and legal theory carry a unique practical value for students, particularly in the context of a non-elite legal education. Part Three considers Tamanaha’s puzzling claim that clinical faculty and legal writing faculty must accept less job security and unequal pay in order to help save legal education. Part Four of this paper presents an alternative explanation as to why students might choose to attend law school, even with the deep economic hardships involved. In terms of the continuing value of the J.D. degree, both Professor Tamanaha’s narrow economic analysis and the predominant counterarguments (e.g., you can do anything with a law degree!) miss the point that, for many, a law degree carries cultural value that operates apart from (but sometimes in tandem with) with economic capital. The idea that we should impose restraints on the ability of students to obtain a law degree, if they so choose, is somewhat paternalistic and at odds with the free market aspects of his analysis. The paper concludes by briefly developing social policy arguments that explain why we must work on reducing the institutionalized elitism that afflicts the legal profession and its educational system. Legal education must be reformed. But my suggestion is that we look for ways to make it better – less elitist and less hierarchical – as well as cheaper.

Failing Law Schools. By Brian Z. Tamanaha. Chicago: University of Chicago Press, 2012. 216 pp. $25.00 cloth.

Failing Law Schools. By Brian Z. Tamanaha. Chicago: University of Chicago Press, 2012. 216 pp. $25.00 cloth.The jig is up. Countless articles have exposed the disconnect between legal education and legal practice, and countless more have exposed the fibs of some schools when it comes to reporting certain information to U.S. News and World Report. Whatever we have been doing wrong has finally caught up with us. Among the loudest and bravest voices schools is Brian Tamanaha, the William Gardiner Hammond Professor of Law at the Washington University School of Law.And excoriating is not an exaggeration. Even in his preface, Tamanaha starts out with the assertion that law schools are failing abjectly in multiple ways (p. ix). He attributes those failures to the American Bar Association's process of self-regulation, the selfishness of professors who want to research more and teach less, the corrupting influence of U.S. News & World Report's rankings, and the business model of most schools. In so doing, he gives voice to a lot of the frustrations that many of us feel when we hear our colleagues claim that the system is not broken and does not need fixing (e.g., Rapoport 2006, 2012).What makes his book so interesting is that it is not the screed of an outsider who pulls together secondhand stories in order to speculate about legal education. Rather, he is a true insider. He is a professor who has also served as an interim dean. (True to his gutsiness, he served as interim dean while he was still an untenured professor.) He has seen legal education from all three vantage points: student, professor, dean. What he has seen troubles him greatly, and it should trouble all of us.The book is divided into four sources of the crisis in legal education. He starts with the accreditation process, moves from there to the way in which faculty preferences work against changing legal education, turns to what I refer to as the damned lies, and statistics involved with chasing the U.S. News & World Report rankings, and concludes with some dire predictions about schools' ability to continue along their self-destructive path. If ever there were a time to quote Yeats (1956, pp. 184-85)- centre cannot hold-then, based on Tamanaha's book, this is it.I devoured the book but, then, I am fascinated by the changes in the legal profession and how those changes might eventually lead to changes in legal education. I like reading the types of research done by folks like Bill Henderson, Andy Morriss, Jim Chen, Jeffrey Lipshaw, Paul Campos, Bernie Burk, Dave McGowan, and Deborah Jones Merritt. (I know-Campos is persona non grata among many of my colleagues, a fact that Tamanaha recognizes in his book, on pp. 77-78.) The problem is not with what Tamanaha is saying. The problem is that the people who most need to read (and think about whether they agree with) these critiques are not necessarily the ones most motivated to do that.These critiques are scary. They paint a very real picture of an educational system with, at best, perverse incentives and, at worst, venal behavior. In short, they make us feel bad.And they should. When we shiftaround our pedagogical priorities (like which students to admit; which students should get the big scholarships) to chase the ordinal ranking of a news magazine that does not even publish much news any more, we should feel bad-especially when the bulk of that magazine's rankings are based on painfully small sample sizes (the reputational surveys), inputs that say nothing about the quality of the school's educational program (LSATs and undergraduate GPAs), and easily manipulated outcome measures (placement).1But changing our priorities will, for all but a handful of elite faculties, mean admitting that we cannot all be Yale, or Harvard, or Stanford, and that we must give up the attempt to replicate what those schools are doing. …

Failing law schools

Failing law schools

The Future of the American Law School or, How the 'Crits' Led Brian Tamanaha Astray and His Failing Law Schools Fails

Debate over the impact of the economic crisis on the future of the American law school has reached an exceptional level of intensity. Brian Tamanaha’s short book, Failing Law Schools, serves as the manifesto for those who believe the law school must undergo radical restructuring and cost cutting. While there is room for disagreement with almost all aspects of the reform argument no critic of Tamanaha has attempted to place his critique in the context of his pre-existing scholarly work on the rule of law. This review essay argues that only an appreciation for the dual nature of the modern rule of law allows us to explain what is happening to the American law school and to see clearly the limitations of the critics’ arguments. The essay suggests that diversity within a tenure based academic model is a valuable characteristic of the current model that must be preserved.

Failing Law Schools by Brian Z. Tamanaha

Reviewed by: Failing Law Schools by Brian Z. Tamanaha Michael A. Olivas Failing Law Schools. Brian Z. Tamanaha. 2012. Chicago: University of Chicago Press. 216 pp. Hardback ISBN: 978-0-226-92361-1 ($25.00). Most professors are blissfully unaware of recent structural developments that literally threaten the college enterprise. Such cannot be said of Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education in the U.S. and worldwide. Although I believe he holds powerful diagnostic skills and has a storyteller's narrative, I also believe his solutions are substantially wide of the mark and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step—his remedies—can be so wrong. There is a surprisingly large body of study in legal education—most, but not all of it, by legal scholars. And there is a remarkable convergence on what the major issues and problems are. A number of states, faced with ruinous economic conditions, are reducing their subsidy to public collegiate institutions. This development and the rising cost of private education have meant that it is harder to finance education without resorting to substantial student debt burdens. Many students already arrive at law schools with large financial obligations and compromised creditworthiness. Some states have privatized their public law schools, rapidly increasing the tuition prices. Private law school tuition costs have continued to outstrip the consumer price index. Both these features have meant that law student debt loads have also increased substantially. Professor Tamanaha is at his best in chronicling these developments, carefully laying out the way that debt issues arose and giving examples of the extraordinary amounts being incurred by the increased costs of legal education—ones that have affected students at all levels of law schools. And he lays this dire assessment at the feet of the requisite ABA accreditation process, which he feels forces law schools to meet higher (and more expensive) standards: "Now, however, students must pay a premium that attaches to accreditation, not just because it costs more to run an accredited law school but also because the market-based tuition price of an accredited law school is at least $10,000 higher than an unaccredited school" (p. 19). Even while thoroughly noting and critiquing these contrasting differences in law schools, at the [End Page 739] same time, he develops a major premise that the accreditation process flattens them and requires a cookie-cutter accreditation regime, one that is too costly and borne largely by students: Proposals to loosen some of the important ABA standards "would allow . . . greater flexibility and variation among law schools" (p. 31). If there is a single point at which his logic fails, one need look no further than these mutually exclusive assertions about the variability of the 200 or so U.S. (ABA-accredited or provisionally-accredited) law schools and the accreditation provisions that have enabled so many styles and approaches to flower and bloom, looking nothing at all alike. Professor Tamanaha does provide a useful service in his substantive analysis of enrollment and application data, perhaps the most detailed and balanced exposition of any single issue in this complex book. He believes that the number of qualified law school applicants will shrink, due to what he believes will be the declining market for lawyers, and that the entire apparatus will fall down, due to the inability of these graduates to support their loan debt loads. Every institution has its own admissions trajectory and narrative, and there have been years where schools defied gravity—and there will be years where they return to earth. In addition, these national aggregate data are very volatile and cyclic. There are many interlocking features to...

What does and should influence the number of lawyers?

Before we can ask whether there are too many lawyers we must answer several preliminary questions: whom do we consider lawyers, and what does and should influence their number? The term ‘lawyer’, w...