What ails the law schools?

AuthorHorwitz, Paul

Schools For Misrule: Legal Academia And An Overlawyered America. By Walter Olson. New York and London: Encounter Books. 2011. Pp. 237. $25.95.

Failing Law Schools. By Brian Z. Tamanaha. Chicago and London: The University of Chicago Press. 2012. Pp. xiii, 187. $25.

INTRODUCTION

In January 2012, law professors from across the country arrived in Washington, D.C., for the annual conference of the Association of American Law Schools ("AALS"). It was an opportune moment. The legal economy was struggling. Graduates were begging for jobs and struggling with unprecedented levels of debt. (1) The smart talk from the experts was that the legal economy was undergoing a fundamental restructuring. (2)

For these and other reasons, law schools were under fire, from both inside and outside of the academy. Judges--including the keynote speaker at the AALS conference himself!--derided legal scholarship as useless. (3) Law school deans called the economics of law school increasingly unsustainable. (4) Legislators and litigators alike were looking into what law schools said and did. (5) Professors registered their alarm in high and low places. (6)

What many call the "law school crisis," and more than a few the "law school scam," managed to pierce the carapace of the AALS. A workshop on "the future of the legal profession and legal education" contained a number of panels whose descriptions promised "frank and open exchanges" about "the many interrelated issues raised by change in both the legal profession and legal education," and "how the current restructuring of law practice likely will affect the organization and economics of law schools." (7)

Yet, if there was an overall message conveyed by the conference, it was, in the words of Kevin Bacon's character in Animal House, "Remain calm! All is well!" (8) It did not escape notice that the AALS rejected at least two proposals for so-called "hot topics" sessions devoted to financial aid and other issues surrounding law schools, concluding that "there was not a strong proposal for a session on the legal education crisis" while finding room for a panel on the U.S. Fish and Wildlife Service. (9)

Not coincidentally, public discussion of the law school "crisis" or "scam" reached its boiling point around the same time as the rise of the Occupy Wall Street movement and not long after the rise of its counterpart on the right, the Tea Party movement. All three phenomena sounded a distinct note of populism, and all were connected to the present economic doldrums. All three voiced complaints that predated the recession, and all three generated calls for immediate action--usually more vague than specific. Finally, all of them spoke to a vision of a divided society, one nicely captured by the meme of the "1 percent" versus the "99 percent." (10) Some elite group--bankers, incumbent politicians, law schools--had managed to enrich itself at the expense of a suffering majority. A reckoning was due.

Popular dichotomies such as the "1 percent" versus the "99 percent," however, are often unclear about what how to define the divide and who falls within which group. In the political realm, the question is whether the division is class-based--whether it involves a simple distinction between the wealthiest and everyone else--or culture-based, involving divisions between "Wall Street" and "Main Street," the elite and the common man, the latte-sipper and the beer-drinker, and so on.

Something of this vagueness is also present in debates over what ails the law schools. Is the problem structural and economic--a problem of debt, tuition, and job scarcity, exacerbated by a lack of transparency on the law schools' part? Or is the problem what law schools do, particularly their failure to produce students who are educated in the actual practice of law rather than in airless theorizing about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria?" (11)

Many critiques of law schools focus on either economic or culture-war explanations. It is possible that how we identify the primary problem will shape the course of our reform efforts (if there are any). It certainly, in any event, will say a great deal about our preoccupations, and about what different audiences see (or fail to see) when they look at law schools.

This split between economic and cultural visions of the law school crisis is evident in the two books under review here. Brian Tamanaha's Failing Law Schools (12) takes a largely economic approach to its examination of the law school crisis, focusing on the financial and economic causes of the crisis and advocating both financial reform and partial deregulation of the law school market. Walter Olson's Schools for Misrule: Legal Academia and an Overlawyered America (13) takes more of a culture-war approach, arguing that law schools are a breeding ground for "liberal-left wing" ideas; they "helped bring us the Sixties," among other sins, and are still at it today (Olson, pp. 3, 7). Tamanaha seeks structural reform aimed at the economics of law school, while Olson wants law professors to set aside "the business of trying to govern the rest of us" and focus instead on "training students in the skills and knowledge they will need in legal practice" (Olson, p. 237).

As I make clear in this Review, I find Tamanaha's diagnosis convincing and Olson's much less so. My point is not to compare and contrast, however. Rather, I want to suggest that one of Tamanaha's main prescriptions--that there should be "greater flexibility and variation among law schools" (Tamanaha, p. 31)--is at least a partial answer to both critiques. Institutional pluralism of a variety of sorts is not a complete answer to either the economic or the culture-war diagnosis of what ails the law schools. Nor will it succeed without other structural changes in how law schools operate and are funded. But it's a damn good start.

I close with a discussion of what seems to me a remarkable gap in both books--and, indeed, in discussions of law school reform generally. That is the absence of the client. It is an unfortunate fact that we have in this country both an apparent oversupply of law school graduates, and an undersupply of lawyers willing and able to serve large numbers of people who need competent legal representation. (14)

The reasons for this mismatch vary. Many of them have to do with the kinds of structural problems that Tamanaha and other critics have raised: it's difficult to provide lower-priced legal services for low- or middle-income clients when you are carrying six figures of student debt. It is striking, nevertheless, that so few of these discussions focus directly on clients. Even Tamanaha, who acknowledges the problem (Tamanaha, p. 170), focuses primarily on the plight of lawyers and law students. Reform of the American system of legal education is certainly necessary. But reforming law schools without focusing on clients is bound to be incomplete, and could lead law school professors and administrators, who are fiduciaries of a sort, to neglect the essential objects of our fiduciary obligations: our clients and the broader public. (15)

It is also striking that many of the most vocal advocates for law school reform seem to want it that way. The most fervent pro-reform constituency is made up of neither professors nor clients: it consists of current students and recent graduates. Their main concern, understandably, is not with the culture-war issues of what is taught and how. It is with economic interests--specifically, their own. It is on tuition, debt, and jobs. Law professors who focus on other issues are accused of diverting attention from the central economic issues. These constituents raise valid concerns, and law schools have both an economic incentive and a moral obligation to address them. But they are not our only constituency. In good and bad economic times, we have an obligation to consider the needs of clients, not just students.

The current law school crisis is salutary. As crises do, it provides an opportunity and incentive to engage in real reform. But it also poses a risk. The crisis may encourage us to focus on only one part of the problem. Conversely, if and when the crisis passes and students begin finding decent-paying jobs again, the incentive for law schools to think about what they should be doing, why, and for whom, is likely to dissipate. The current crisis may have sensitized more law school professors and administrators to focus on structural issues which have, until now, been paid too little attention. The question is whether we can use this crisis to remind ourselves that our duty to be mindful of our obligations must persist through booms as well as busts.

  1. What's Wrong

    Fred Rodell famously observed that just two things were wrong with law reviews: their style and their content. (16) In short, everything. A modern-day Rodell might say that just two things are wrong with American legal education right now: how law schools treat the law, and how they treat education. In short, everything. Of these failings, and despite many law professors' emphasis on scholarship, (17) the second is vastly more important and I turn to it first.

    1. Economics

      There is no perfect place to begin. As Tamanaha writes on the first page of his book, "[L]aw schools are failing abjectly in multiple ways" (Tamanaha, p. ix). The problems are multiple and interconnected. But we could offer the following list.

      Accreditation. The American Bar Association ("ABA")'s accreditation process for law schools forces law schools to conform to a unified, questionable, and expensive model. For a variety of reasons, not least the law schools' thirst for legitimacy within the precincts of the university (Tamanaha, p. 23), law schools must all meet the same basic description: "a three-year course of study taught by full-time academics" (Tamanaha, p. 26). They must all provide a basic package of resources...

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