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Facts and Sound Theory where Hyperbole more often Treads
on June 16, 2012
The recent recession hit the legal industry harder than most, and to paraphrase Warren Buffet, when the tide receded we learned law schools had been swimming naked. Something is obviously badly wrong, but a deluge of scamblogs and overheated articles notwithstanding, very little intelligent is being said about it. Brian Tamanaha--law professor, former interim law school dean, and traitor to his class--changes all that in this wonderful book, replacing hyperbole with facts and sound theory.
Tamanaha first sets his sights on law professors, showing their pernicious effects on law schools both through the ABA-accreditation process (Part I) and through the law school itself (Part II). He then shifts his focus to the malignant effect on law schools of a single ranking--the US News (Part III), before showing why the law school model is broken and suggesting what to do about it (Part IV).
Law professors have proved a potent special interest force both within and out of the law school. It was they who convinced the ABA to mandate a third year of legal education and to adopt accreditation standards that put a premium on well paid tenure-track professors (the ABA had to backtrack somewhat from the latter in response to a DOJ antitrust suit). Professors have also effectively lobbied for the same within the law schools themselves. No dean can withstand the wrath of a unified faculty.
The law is curious among academic programs for being dominated by a single ranking. The law is prestige driven as it is, and the U.S. News & World Report ranking is waited on with bated breath each year by potential applicants. And so "[t]he annual pronouncement of the surviving rump of a defunct magazine thus mercilessly lords over legal academia." Manipulation is the rule of the day. Most (most) schools won't outright lie, but they will make the truth dance a mighty fine jig. More rankings (it's a fool's errand to expect rankings to go away) are a solution that Tamanaha doesn't give enough attention, here or in his later recommendations. They could both rely on less imperfect proxies for law school quality and, more importantly, dilute the over-importance of the U.S. News rankings.
A continued influx of large numbers of cost-insensitive students to law schools drives tuition increases and provides the financing for reduced teaching loads and so on. If potential students are acting irrationally, why? Tamanaha identifies three reasons: lack of information and uncertainty make it difficult to estimate a proper long-term rate of return, the optimism bias, and schools are providing misleading and incomplete employment numbers (he gets to another, the government student loan scheme, later, but for some reason doesn't mention it here). The third reason is the most disconcerting. Schools are providing bad data and doing it willfully. Since it's easier to gather salary and employment data from the most successful graduates, numbers can be manipulated by just not trying very hard to collect them. One example drives home how important effort is to reporting rates. Two schools, South Texas College of Law and Texas Southern University, both fourth-tier and located in Houston, Texas, with similar names and full of students with similar LSAT scores (one wonders how many students show up to the wrong school at the beginning of classes each year) have dramatically different results. South Texas salary figures represent only 5% (!) percent of the portion of a recent class employed in the private sector, while Texas Southern salary figures represent 97% of the same. The only explanation is that administrators at Texas Southern are working much harder than their counterparts at South Texas to gather salary data.
In Part IV, Tamanaha moves into an exploration of what the preceding and other trends say about the current law school economic model. His conclusion: its broken. Tuition has skyrocketed at far past the rate of inflation (or rate of increase in legal salaries), student debt has similarly ballooned, and an already tepid legal market contracted severely during the latest recession. Market distortions aside, students have begun to take notice, and are taking the LSAT, applying to law school, and matriculating to law school at steadily declining rates.
Tamanaha parts with some sound advice for potential law students and recommendations how to fix the law school model. Law schools show little interest in changing--new school UC Irvine, touted as the opportunity to build the perfect law school, instead looks like every other first tier school in every way. But if current trends continue, all the market distortions built into the current model won't be able to stop the correction. Tamanaha sees an inevitable end state as a law school model that reflects the bimodal distribution of legal salaries: schools will split between elite schools continuing on much as they have before (along with public law schools offering an attractive price and entrée to the local market) and newly practice oriented lower-tier schools run at a greatly reduced cost.
Tamanaha's primary recommendation is that the ABA-imposed minimum number of classroom hours be cut by a third (thus allowing true two-year programs), standards and official interpretations written for the benefit of faculty be deleted, and rules on law libraries be deleted.
But Tamanaha has understandably little faith in the ABA (after all, are not all professions conspiracies against the laity?) so he suggests a bypass: state supreme courts use their regulatory powers over state legal industries to circumvent the ABA-accreditation process by allowing graduates of non-accredited schools to sit for the bar.
Another bypass is changes to the federal loan scheme. Tamanaha gives two suggestions: apply federal loan eligibility requirements similar to those applied to for-profit vocational schools (and wouldn't that bruise a few egos) and cap federal loan totals by schools (Tamanaha also thinks a path to discharge of student loans in bankruptcy should be restored). Neither suggestion is wrongheaded, but both suffer from being overly crude and reliant on the government. If law students are going to continue to rely heavily on debt to finance their law degrees, and they are, then their creditors must play an integral role in policing their spending decisions (as any bank asked for a loan to buy a home or finance a business does). The government simply isn't competent to do so. They lack the information and the alignment of interests (the current system amounts to massive subsidies to law schools at the students' expense with taxpayers ultimately left to foot the bill, in true government fashion, far down the road).
Tamanaha's contribution to the conversation is welcome, not the least because he takes his subject seriously. Like all commentators, Tamanaha has an ulterior motive, but rather than the more common motive of propping up lawyer (and law professor) profits through further cartelization of the legal industry, Tamanaha's ulterior motive is improving access to justice. It is an admirable aim--and in my mind a moral imperative--and one that requires reform. Unfortunately, Tamanaha is not as effective in his prescription as in his diagnosis.
This review is of the Kindle edition. Reference material and appendices comprise 39% of the Kindle edition, and consist of: a list of abbreviations, a list of law schools references (in-text reference and official name), endnotes (linked from the text to the notes and back), and the index (referencing the hardcopy page numbers, but linked to the text).