Tuesday, January 22, 2008

What's Wrong With This Picture of Legal Academia?

Brian Tamanaha

In 1995, the Department of Justice filed an antitrust law suit against the American Bar Association alleging that law professors had been utilizing the accreditation process to engage in anti-competitive practices aimed at boosting their pay and reducing their teaching loads (among other things). Without admitting guilt, the ABA entered into a consent decree with the Department of Justice promising to cease such practices.

The accreditation process is justified as the means to insure a quality legal education so that the public will be served by competent lawyers. Oddly, in the very period in which law schools were being instructed to boost their professors’ pay (to attract highly qualified professors) and to cut their teaching hours (so they could do more academic research, which would presumably enhance their knowledge and teaching), the American Bar Association also produced the MacCrate Report, arguing that law schools were doing a poor job of training lawyers. The reason for this failure: law professors were occupied with academic matters while neglecting practical legal training for their students.

So in the mid-1990s the American Bar Association was simultaneously sponsoring two initiatives seemingly at odds: the accreditation process was being used to free up professors for more writing, while law schools were being criticized for spending too much time on academic work and not enough time teaching law students to become skilled lawyers.

When you think about it, the situation we have created is bizarre: law students attend law school to become lawyers (paying tens of thousands of dollars for the privilege); however, as the Report indicates, many law professors do not see it as their job to train lawyers—they are, rather, legal scholars; meanwhile, many judges dismiss the vast bulk of legal scholarship as useless for their purposes; and tons of articles are being published every year, 43% of which are not cited at all and almost eighty percent of which are cited fewer than 10 times. One final tidbit: it is an insult within legal academia to be branded as a school that “teaches for the bar”—notwithstanding that the daunting threshold hurdle every law student faces coming out of law school is to pass the damn bar exam.

It is with this background in mind that I raised skepticism last week about the apparent popularity of interdisciplinary studies within law schools. We can come up with explanations for why this initiative in law schools promises to make our students better lawyers, and maybe it will. [Critics who remarked that my objections exaggerated the costs associated with "interdisciplinary studies" may be right, although I had in mind all associated expenses.] But in light of the above recent history (Larry Solum gives an excellent historical account of contemporary legal academia from a more theoretical perspective; Leiter has an informative take here), it sounds like more of the same old story—law professors pursuing what they find interesting and beneficial.

Would legal academia look any different if we had not collectively engaged in actions designed to boost our pay and decrease our teaching loads [lest I appear like an ingrate, let me pause for a moment to thank my predecessors for making this the best job in the world!]?

In several important respects things would probably be about the same. Tuition at the elite law schools would likely be just as high as it is now, as would high pay and light teaching loads. These aspects, which took off after the consent decree and also happened at the undergraduate level, are more related to market factors and ranking competition than to anti-competitive conduct.

But I think there would be one crucial difference. The accreditation process was utilized to promote and force a single “academic” or research model on all law schools. All law schools were told to reduce teaching loads (from earlier highs of 15 to 18 hours a week) in order to free up writing, and schools were evaluated for their academic output. This sent a strong message to law schools about what matters (not teaching!), which was exacerbated by the “academic reputation rating” category utilized by US News. Now the conventional hiring wisdom is that the most important credential for a teaching position (in addition to having a degree from a top 5 school) is to have published a couple of articles after graduation (with having a PhD now surging in importance).

Law schools were inhibited from developing an alternative model, one which emphasizes producing well trained lawyers. Rather than taking pride in and building an identity around that—“We teach students to pass the bar and to be capable lawyers on the very first day out the door.”—law schools had to claim to be something more than (or other than) a place dedicated to educating lawyers for practice.

Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers. Money now allocated to scholarship and research leaves would instead go to clinics and other practice training; professors would teach 15 hours or more a week; faculty would be hired for the desire and ability to train lawyers, not for scholarship; more law schools would look like Massachusetts School of Law (which the ABA has mightily resisted). Schools built around this alternative model would produce capable lawyers at a much lower tuition, which would be good for the students and good for society.

This vision of legal academia allows for a range of law schools, serving different needs and circumstances, rather than one academic model for all. It makes sense, but to succeed it must have the support of law professors.


I was surprised to learn from researching legal education in MA in the late 18th century to around the Civil Law that even "reading the law" in a law office (when there were few law schools) served to limit legal competiton in various ways, including by limiting the number of "students" a lawyer could "train" in his law office. Could the high law school tuitions today serve a similar purpose?

"[T]he overriding immediate goal of every law student coming out of law school is to pass the damn bar exam."

That doesn't seem right--the overriding immediate goal for lots of them is to get a job. That can be a lot harder than passing the bar.

Your objection is noted, Chis, so I rewrote the line. I agree with you that getting a job is the overarching goal.


Thanks. I'm not sure that the bar exam is "the biggest hurdle" either, though.

Coming, as I do, from a non-ABA accredited, non-WASC accredited correspondence law school in California, well, all I can say is, "Yup." My school doesn't even do such a bangup job of teaching to the test, and it certainly doesn't do anything to prepare me for practice.

But it lets me take that damned test, get my ticket punched, join the club---without which no job as a lawyer, Chris's concerns notwithstanding. Why else would I haunt places like this if I wasn't stifled and intellectually undernourished "at home"?

Most lawyers aren't elite. Most are just guys and gals who figured out how to make decent money. Most of them ("us", someday) would be well served by a bigger dose of Professional Responsibility, Practice Training, Ethics than either "pure" legal theory or any of the interdisciplinary stuff. Most lawyers just need to know how to manage their clients a little better, how to avoid malpractice, how to make a little more money. But who, possessed of an academic or intellectual bent, wants to face up to that ugly, anti-intellectual reality? (Not me!)

What's the relation of academia to "public intellectual life."

"But I've always thought (and this is what I meant when I said that this is something that I've thought a lot about since well before I started TPM) that there's something a little 'eat your spinich-ish' about folks who cry out, in the thick of a campaign, how everyone's focusing on the 'horserace' rather than 'the issues'. I associate it a lot with the work of Thomas Patterson, a fellow up at the Shorenstein Center at the Kennedy School and others of a similar bent. And in that vein of thinking there's an always implicit and often explicit belief that investment and interest in politics itself is somehow discreditable or that there was a pristine before-the-flood time in our history where politics was a matter of disinterested mandarins dishing out and serving up issues to an attentive citizenry -- much as lawyers do to juries. But I don't think that's true."

I was just making a general comment, but actually, and interestingly, marshall has this very wrong...

"...that there was a pristine before-the-flood time in our history where politics was a matter of disinterested mandarins dishing out and serving up issues to an attentive citizenry -- much as lawyers do to juries."

if he believes that last line.

I believe Marina Lao has written an antitrust analysis that supports your position. More broadly, Dean Baker's "Conservative Nanny State" demonstrates that many professions have cartelized .

However, I object to your focus on "judges" as the proper party to evaluate the usefulness of legal scholarship. What about administrative decisionmakers, legislators, etc.? What about a press in search of objective, impartial voices (or simply people with enough time to thoroughly study issues)? What about the need to balance "think-tank" land?

I also doubt that law professors will teach "better" to the extent they teach "more." But a renewed focus on writing and research skills would probably help everyone if it were done right.

Back in 1954, my third year, law school tuition was $400.00. (I understand Harvard Law School charged $500.00 at that time.)

While judges may be reluctant to cite law review articles, attorneys use them (even when not cited in their briefs) to better understand and argue their cases, not having to reinvent the wheel. So keep the law review articles coming; they can serve attorneys well, even when they disagree with their conclusions. Make the point (with the benefit of the articles) and cite a string of cases in support quickly found via such articles.

I should have added that law school students also benefit from law review articles, perhaps better understanding cases assigned for class.


I don't think judges are the only measure, but I do think they are an important measure because courts are a critical locus of legal activity and because law professors in the past played an important role in developing the law.


"law students attend law school to become lawyers"

This assumption begs the question of whether more doctrinal education is appropriate.

I attended law school to learn about law. I became a lawyer merely incidentally to pay for law school and to make the world a better place.

I was not allowed into a top 5 school, despite top test scores, because of seven year old engineering grades, and as you point out I will not be allowed into academic legal circles, despite top law grades, because I was not allowed into a top 5 school. I managed to learn a lot about law, and so achieved my inital goal, just not my later realized dream job.

Dividing up the pool of ABA law schools into "elite," "professional," and "trade" categories will actually strengthen the barriers to upward mobility and put even more at stake in the deeply imperfect LSAT/GPA school assignment lottery. I was at least able to study legal theory at my school. Under your model some admissions formula may have consigned me to trade school to study the intricacies of Delaware Chancery opinions and proper etiquette for scriveners.

A common model for legal education allows pedigreed Hahvahd chaps to at least have a conversation with motivated students from Indiana or Lewis and Clark. In this way, a common model serves democratic values and facilitates the little academic diversity law actually exhibits.

There is a very simple reason why law school has become more research-oriented, rather than teaching-oriented. Law schools are run by the faculty, just like other university programs, except possibly more so.

Whom would faculty rather interact with? An emphasis on teaching involves interaction with students, the vast majority of whom are perceived to have an inferior intellect to the faculty. The intellectual challenge which they crave is missing. There is certainly an intellectual challenge in teaching, but it is of a different type (and probably closer to courtroom practice than to legal research).

On the other hand, when faculty are more engaged in research, they get to interact with their peers, which is precisely the type of intellectual challenge which they crave. So what has happened is that you have law school by, of, and for the faculty, rather than for the students' benefit. Put crudely, the incentives are all out of whack.

It amazes me that the academy has become so ghettoized that what would be obvious to an outside observer remains unobserved by the initiate.

What is the significance of the across the board remodeling of the educational centers as research institutions? You think what's happened in law schools has no relations to what's happened in the rest of the humanities? It's the same process: scholarly and critical activity is now subsumed under the rubric of a pseudo-objectivity and pseudo-science Philosophy professors and literary critics want to pretend they're chemists. Economists are given a free pass for their bullshit.

When and where did this bureaucratized intellectual culture get its start? Henry Ford? Sputnik? Post-war rationalism?
Lawyers like newspapermen are craftsmen. If legal philosophers don't know that- don't begin with that understanding- then all their rationalizations are bullshit.

Law graduates do not just practice law. A lot of them engage in policy and advocacy work. So I think having a purely doctrinal education is a huge disservice to them and to the society which the school serves. They have to be mechanics and philosophers at the same time.
In any case, of course teaching is still important - but I believe its not the end-all and be-all of a law school.

I'm quite familiar with this debate because *in my country* (the familiar LLM refrain, pun intended) you can see the ill effects of a purely doctrinal education. I came to study here in the US specifcally to experience the interdisciplinary approach and I'm loving every minute of it.

I think the problem is not so much that law professors are focused on research as on the character of the research conducted.

Prof. Heather Gerken had an interesting series of posts here last summer (see, e.g., this one) about the need for election law scholarship to pay more attention to the issue of the "here to there" problem: it's one thing to make a reform proposal; it's another thing to think about how it might come to pass that the reform could actually be enacted. Some commenters remarked that this problem is pervasive in legal academia, and I agree. Too much legal scholarship is either (i) entirely divorced from any existing problem within the legal field (i.e., purely historical or philosophical in nature),(*) or (ii) doesn't make any workable proposal for change.

This ought to be a criterion by which scholarship is evaluated: an article that proposes that an existing legal rule or institution be replaced with some other rule or institution is not useful without some consideration of how that could actually happen.

To look at it from a different angle, law professors are teaching students who will actually be advocates, and they themselves ought to be engaged in the here and now of legal advocacy. By and large, their research ought to be connected up with some viable advocacy outside the academy.

(* This is certainly not to say that all historical work is useless, but rather that it's important to recognize that research that has present utility ought to be favored. Medical historians sit on the faculty of medical schools, but their numbers are limited.)

As a courtesy, since I mention you in it, I thought I'd post a copy here of the comment I sent to Dan Solove about your debate:

Someone showed me the excerpt of your debate with Brian Tamanaha posted on the lawandletters blog. Intrigued, I followed the links to your original postings. I've read those, and I'm surprised the debate is as simplistic (no offense) as it is.

I've been a lawyer for over thirty years and on the faculty of Mass. School of Law for the last ten. And some years ago I co-authored with a couple of my colleagues an article in the Journal of Legal Education pointing out some of the ways we in fact meet the call of the Macrate Report and do so for far less money than most law schools. (We've gotten better since then.)

The choice between "a lawyer factory" and a place where the students "think about the broader issues in the legal system" is a false one. And ironically, our "lawyer factory" is a much better place to focus on "larger moral questions," the "tension between the rule of law and justice," and the "policy implications" of the law than were either of the "elite" law schools I attended. Doctrinal law is far better taught and learned when it is anchored in reality, the reality of law and law-related practice that my students are likely to engage in.

Much of what I studied in law school was absolutely meaningless to my life and work as a lawyer, and I would bet that a substantial portion of working lawyers would echo my sentiments. Law school did not prepare me for the bar exam, and after I passed it, I knew almost nothing about how to do any of the things I was then licensed to do -- except for work I did in a very good small law office during my final semester of law school.

In your posting, you keep saying legal education "isn't simply about producing . . . lawyers" or "simply train[ing] them . . . to be . . . hired guns" or "should be more than a lawyer factory." The assumption throughout is that what you make sound like the easy part is in fact being done. It isn't.

Just imagine a medical school that taught its students all about the history and philosophy of medicine, the societal impact of medical developments and technology, the economics of healing and dependency, but didn't have the time, money, expertise, or inclination to teach them what doctors do. If that sounds ridiculous, it should.

Posted by: Andy Starkis at January 23, 2008 03:51 PM

Seconding Andy's post and adding:

Most law schools now follow the elite model, striving to hire faculty and produce scholarship like research universities, when it might better serve the interests of many non-elite law schools and their students to concentrate on training good lawyers.

I'm about to graduate from a non-ABA, California Bar Accredited school. From what I understand the Cal Bar has no interest in allowing either ABA or Cal Bar schools from becoming anything like the Massachusetts school you linked to.

The Cal Bar did an "inspection" of our school last year. Their focus was on two what I would consider ridiculous things. #1) Did we have the library properly stocked with the volumes they think are required? (Again, ridiculous in the age of Lexis) #2) Any classes that were of a "Bar Review" nature would result in immediate loss of the Cal Bar accreditation. So, each syllabus and course was audited to prevent such types of teaching. As my Dean said to me as an aside was that the Cal Bar considered the school experience to be academic in nature and that the bar exam itself is only a test of minimum competency.

So, the Cal Bar's position is to prevent a school from teaching to minimum competence and to punish schools that do.

Because my school has several law clinics that serve various needs (e.g. elder law, small claims, courtroom mediation, etc.) I've managed to get a small amount of practical education during my four years of night school. However, the vast majority of my education has been on legal theory and history that has no practical purpose aside from the law on the bar exam.

This is all insane. As Chris says my overriding immediate goal is to be employed. What does a law school graduate under these conditions have to offer a potential firm?

As an aside; Professor Tamanaha, (I enjoyed your conlaw book by the way) There is an undergraduate school at NYU that I attended that is purely focused on this "interdisciplinary" approach that you might be interested in taking a look at. It's the Gallatin School of Individualized study. But, my experience might be the result that has been your concern for an "interdisciplinary" legal education.

1. I might understand ABA taking an interest in promoting proper education of law students, but what valid interest would it have in promoting legal writing, particularly where it results in less time handling proper education of law students?

2. I know of a certain prof. teaching trial practice who actually undertook to try a civil case. The result was the only civil mistrial for incompetent representation (sue sponte, I might add) of which I have ever heard. It helps if you actually can ask a proper question of a witness. He kept making one error after another, in asking what should have been a simple question.

It may be difficult to find non-academic lawyers willing to teach 15 or more hours per week, at least at current salaries.

Each hour of class time entails at least a few hours of total work time (preparation, reflection, student discussion, evaluation, recommendations).

Even if this is as low as 3, that’s a 45 hour work week ; for many conscientious teachers, total work time per teaching hour is probably more like 4 or 5, meaning a 60 or 75 work week.

At current teaching loads of about 5 hours per week (amounting to about half the traditional work week), many lawyers are willing to sacrifice the higher compensation achievable in practice.

To induce lawyers to teach 50 or more hours per week without such a perk likely would require that schools (and students) pay them much more in cash than at present.

It would be interesting to know how many tenured law professors have ever taught 15 of class per week. I taught 10 hours of class per week once in my fourth year of teaching and it was way more exhuasting than practicing law at a large NYC firm, for a fraction of the salary.

This is a fascinating discussion.

I'm glad to see it.

My mother worked at the ACLU in Philadelphia for 15[?] years. She authored books on the rights of children and prisoners. The staff lawyers in her office said she could have passed the bar any time she wanted. She had a Ph.D in English literature,
She read law.

What if this sort of scholarship were to be moved outside the legal academy, into something like a hypothetical new "department of legal studies"? Legal scholarship would take radically new and unpredictable directions if it were to be done outside the legal academy, and would likely be less relevant to practitioners. But it would allow legal scholarship to continue being done while allowing the law school to do a better job of actually teaching.

Many new law professors have basically the same qualifications as second year associates.

As yourself, if you've practiced law, just what would you trust a second year associate to do unsupervised?

Back to the point, many law students would be better served if after their first year they were channeled into a single additional year of focused study.

For example, a year of classes on how to be an insurance adjuster (a place many graduates end up these days); or a year of classes on being a bankruptcy paralegal (allowed to be independent practice by statute), a contracts officer in a corporation, an AA compliance officer, etc.

There are many areas where attorneys who can't find jobs end up where they are over credentialed and under trained, and where with a master's degree they could be spot on with the training, skills and focus they need, while having the benefit of the first year of law school.

The first year of law school pretty much sorts students out. Outside of elite and quasi-elite schools, placement is very difficult for many students. Rather than keeping them in school for two more years, or following the old model of washing them out, it might serve the students much better to be diverted into a year of focused and specialized classes.

That way, instead of having a surplus of unemployed lawyers, a law school could provide those it could not place easily or well with useful education, at a lower cost and more useful skills.

We can come up with explanations for why this initiative in law schools promises to make our students better lawyers, and maybe it will.

I've seen lots of blatantly self-serving theories, but I wonder if there's a non-interested party who could explain why an emphasis on interdisciplinary scholarship is the best way to train lawyers.

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Opportunity to Learn

Just as I can point to lack on joy and motivation, I can point to adult learners that preferred to be guided. I can also point to situations where the instruction did not meet the initial needs articulated by the learners because the instruction itself changed the learner's and their stated needs………….

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