Tuesday, August 28, 2012

A Response to Brian Tamanaha

Guest Blogger

Erwin Chemerinsky

In his book, Failing Law Schools, and in his recent post (“Why UC Irvine Went Wrong: Chasing Prestige at the Expense of Public Service”), Professor Brian Tamanaha criticizes me and UCI Law School for making the choice to create a top 20 law school. In his book, Professor Tamanaha argues that we should have created a low cost law school instead. In his post, he agrees that our tuition is essential to create a top law school, but he says that I have not explained “why it was necessary to create a ‘top 20’ law school.”

First, all of the goals that Professor Tamanaha identifies in his book – maximizing the opportunity for jobs for our students, especially jobs that will allow students to pay back any loans, best serving the profession and the community – are best achieved if we succeed in being a top 20 law school. Of our initial graduating class from May 2012, 28% secured judicial clerkships, 15 in federal courts around the country and one on a state supreme court. About 40% received offers from major law firms. Some are working at government and public interest jobs. As of this writing, 80% of the Class of 2012 has full time employment. None of this would have been possible if we did not have faculty and students of the caliber of a top 20 law school.

Second, had we followed Professor Tamanaha’s advice we could have achieved none of this and would have created a not very good fourth tier law school. Professor Tamanaha criticizes the salaries we paid, matching the salaries of those we hired at their prior schools. He says that we could have hired other faculty more cheaply.

But we certainly could not have attracted the kind of faculty who have come to UCI without matching their salaries. A recent study by professors at St. Thomas Law School ranked our faculty seventh in the country in scholarly impact, behind Yale, Harvard, Chicago, Stanford, NYU, and Columbia. Professor Tamanaha admits that his approach would not have yielded such a faculty.

But even more importantly, his approach – whether for UCI or other law schools – would lead to a poor legal education. Even if we paid faculty half as much as we do, we could not reduce tuition nearly as much as Professor Tamanaha advocates. Faculty salaries and benefits are about 50% of our budget. Cutting them even by half still would not reduce our tuition to anywhere near under $20,000 a year. The only way to achieve his goal – absent a substantial subsidy from the government -- would be a small faculty and a large number of adjunct faculty. I believe that this would be a far worse education for students. Moreover, it would eliminate in-house clinical education, which we require of all our students, and which I think is essential to prepare students for law practice.

Finally, Professor Tamanaha says that our public service goal “was doomed” by our desire to be a top school. Here he is just wrong. Ninety-eight percent of the students who graduated in May did pro bono work in law school. They averaged well over 100 hours each. We have similar numbers for the current third year class and almost every first year student last year did some pro bono work. We have full scholarships for students interested in public service. Additionally, we have provided a summer grant for every student doing public service work after his or her first or second year of law school. We are providing bridge funding for students who are looking for public interest work after graduation, paying their salary at a public interest organization for several months after the bar exam. We are implementing a generous loan forgiveness program. Besides, public interest places can be as elitist in their hiring as firms and being a top tier law school is crucial if we are going to get our students public interest jobs.

Professor Tamanaha makes many important points in his book. But I am baffled as to why he singled out UCI and me for criticism for aspiring to create a top school. The irony is that had we followed his approach we would have created a not very good fourth tier school and his most powerful criticisms are directed at such schools. By seeking to create a top school, we are best serving our students, our community, and hopefully the profession as well.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, University of California, Irvine School of Law. You can reach him by e-mail at EChemerinsky at