The Volokh Conspiracy

Yesterday I attended a panel presentation at the annual meeting of the Association of American Law Schools on the subject of “Law Schools and Their Critics.” The panel was moderated by Lauren Robel, the AALS President, and the panelists included Deborah Rhode of Stanford, Bill Henderson of Indiana, Gene Nichol of UNC, and Bryant Garth of Southwestern. This panel was only one of several at the AALS meeting on criticisms of law schools, and the panel was very well attended. My guess is that there were about 125-150 professors in the audience.

The most interesting aspect of the panel was that most of the panelists — and if the Q&A is representative, most of the audience — appeared to agree with the basic gist of the criticisms of law schools advocated by Brian Tamanaha and others. The closest I heard to defenses of the status quo was a panelist’s argument that although law schools have problems, caution is warranted in enacting changes in light of the uncertainty of the future. Panelists also distanced themselves from the suggestion of some critics that faculties have acted in bad faith in trying to “scam” students. But on the whole, most of the reaction of the panelists and the audience was pretty much in keeping with the critics. Two moments from the Q&A stood out. First, one law professor audience member suggested that law professor salaries were unjustifiably high, and that they could not be legitimately sustained. The panelists had mixed responses to this suggestion — Bill Henderson disagreed, for example — but no one thought the idea at all nutty. Second, after one professor lamented that much of the online debate over these issues involved strident and vindictive anonymous online commenters, another professor responded that if law professors can’t win a war of words, they need to check to see if their arguments are as strong as they think they are.

It’s too early to tell if the arguments of Tamanaha and others have really become so widely accepted among law professors to have become a majority view. Perhaps those who opted to attend a panel on “Law Schools and Their Critics” are more likely to be critics than most professors. Perhaps defenders of the existing law school model have decided to keep quiet about it given the rush of angry anonymous criticism that follows public defenses. And there certainly was no clear agreement about what schools should do next. But in a room with well over 100 law professors, the basic critique appeared to be the majority view.

In a short essay in the UCLA Law Review online supplement, lawprof Jay Sterling Silver argues that the status quo of legal education is in the public interest. Silver’s essay responds to Brian Tamanaha’s critique of legal education, in which Brian looks for ways that law schools could reduce costs — such as by having higher teaching loads and more practice-oriented teachers. Professor Sterling disagrees with Tamanaha’s proposals, and the most interesting part of his argument is that society benefits from the scholarly status quo because law professors today can “reflect on and identify abuses of power and solutions to perplexing social problems from the Archimedean point of the academy”:

As a wise colleague pointed out to me not long ago, “The legal professoriate develops suggestions for law in the common interest that are not produced by the powerful lobbies generating laws today. If we are reduced to teaching automatons, we would leave the field to those who buy their spokespersons.” Stripping law faculties of the time to contemplate the weaknesses of the law and the injustices of the legal system, and discarding the tenure necessary to instill meaning in the words “academic freedom,” reduces a vital social resource to a cog in the current structures of power. Under the guise of fiscal management, law professors willing to take on the wielders of power in the public and private sectors would be silenced.

I don’t find this argument persuasive. First, I’m not entirely sure what it means. Silver never says what it means to “take on the wielders of power.” Who are these wielders, and how do law professors take them on? Is that really the only goal of scholarship, and if so, how do we know if that goal is in the common interest or not? Even if we assume that law professors do this and it’s a good thing, we need to consider the cost and the options. Legal scholarship is expensive: Is it worth the cost? If we see scholarship as “buying” a specific kind of scholarly output, is the status quo of tenure, high pay, and low teaching loads for every law professor the most effective way to achieve it? Many people who are not tenured law professors teaching a relatively light teaching load manage to reflect and provide solutions to perplexing social problems. Many do so better than law professors. And many (most?) people who are tenured professors never do much in the way of trying to solve important societal problems at all. Is the current approach really the best way to foster the best kind of scholarship, however we want to measure that?

As readers know, I think legal scholarship can be extremely valuable and worthwhile. Brian Tamanaha thinks so, too. But making the case that the status quo is the best possible world requires more than just patting ourselves on the back about how society is very lucky to have us.

Civil comments only– thanks.

The Chronicle of Higher Education has an interesting article on responses to a forthcoming book I recently blogged about, Brian Tamanaha’s Failing Law Schools. The Chronicle article is behind a paywall, so to read it you need to click here and then click on the link.

The article includes this defense of the status quo from law prof Michael Olivas:

Michael A. Olivas, a professor of law at the University of Houston and a past president of the Association of American Law Schools, says relaxing accreditation standards to allow more-diverse education models, which Mr. Tamanaha calls for, could lead law schools in the direction of for-profit institutions like the University of Phoenix, which critics contend shortchange students.

As Mr. Olivas puts it, the result could be “the Phoenix-ation of law schools, churning students through, having a contingent and transient faculty, and none of the institutional investment in the broad roles of legal education.”

If so, what is wrong with that? Some law schools may follow that approach, but others won’t. And students ultimately will be the ones to decide which balance of approaches is best, as their decisions where to enroll will determine which schools remain viable. I don’t see why we wouldn’t want students to have that choice. “Institutional investment in the broad roles of legal education” is expensive. If students can get a good legal education without it, I don’t know why they shouldn’t be able to choose to do that.

Thanks to Brian Leiter for the link; Brian has his own thoughts here.