Leiter's Contradictory Conclusion

Brian Tamanaha

Typical Brian Leiter. He cannot just say why he thinks you are wrong: he sets out to destroy you, ruin your credibility and reputation, and grind your face in the dirt. Leiter says I owe the world an apology—that I must abase myself and do public penance for writing Failing Law Schools—because Simkovic and McIntyre’s (S&M) study has definitively proven me wrong. Remarkably, for all his bluster, when Leiter lays out “what I think we know and don't know,” he repeats one of my main objections to their study.

Before getting to that, I feel compelled to say that I have long been anticipating his “destroy Tamanaha” assault for reasons entirely apart from the current debate over legal education. We have skirmished on various subjects over the past fifteen or so years, but my greatest offense is having the temerity to challenge his interpretation of the formalists and the realists—in particular my argument in Beyond the Formalist-Realist Divide that the conventional story about the formalist age is a myth. Leiter alludes to this dispute in his post: “in the areas where I have expert knowledge, [Tamanaha’s work] has always been a bit notorious for its confusions and theoretical overreaching, especially in its desire to make startling claims, the evidence and the arguments be damned.”

Leiter considers himself the world’s foremost authority on formalism and realism, so anyone who disagrees with him is obviously wrong. Thus it must come as some discomfort to Leiter that a major new historical study, David Rabban’s Law’s History, is consistent with my core argument that our conventional image of the so-called formalist age is false. Robert Gordon blurbs the book, “This is a pioneering study of American historical jurisprudence in the late nineteenth century. It is comprehensive, meticulous, and deeply learned….And it is eye-opening: the standard picture of this era's legal scholars as political reactionaries and abstract deductive 'formalists' cannot possibly survive this splendid and important book.”

As for legal education, based upon a single study Leiter again leaps to judgment and condemns me in a vicious fashion. This debate assuredly has become tiresome for readers, so I will not rehash the details, but instead will briefly comment on his three basic statements about what we know from their study.

1. The vast majority of those who got a JD over the last two decades are better off, financially, than similar individuals who stopped with the BA.

S&M have issued a torrent of words in response to my various criticisms, but what they have not justified is their earnings comparison between the bottom 25th percentile law grads and the bottom 25th percentile bachelor’s holders. This flies in the face of their finding that law grads are above average in GPA’s and test scores, in wealth, in quality of undergraduate college, etc. If we believe that 25th percentile law grads, had they not gone to law school, would likely have been as successful as median bachelor’s holders, their conclusion fundamentally changes.

2. We don't know if other post-graduate degrees are more worthwhile, financially, than the JD; Simkovic & McIntyre did not attempt to address that systematically.

Correct.

3. We don't know if the economic pattern for JD-holders will hold for the future, though Simkovic & McIntyre adduce some evidence that it will.

Correct. This is a stunning statement to read, after the opprobrium Leiter heaps on me, since this is this precisely what I have been arguing.

When stripped to its core, S&M’s argument is that the past generation of law grads (who entered law school in the 1970s, 1980s, and 1990s) reaped an earnings premium of “hundreds of thousands of dollars” at the 25th percentile, therefore, current law students will reap the same. If we don’t know whether this pattern will hold, however, then how can they (and Leiter) express such confidence that people who chose to forgo law school today are making a terrible mistake?

Leiter weakly papers this over by saying S&M “adduce some evidence” that the pattern will continue. But we must not forget that their study omits the dismal results suffered by law grads from 2009, 2010, 2011, 2012, 2013, and counting. (That’s about 200,000 new law grads not captured in their study.) And lots of people, including managing partners of law firms, have expressed the view that the legal job market is undergoing a fundamental transition. The bottom line is that we don’t know. So how can Leiter condemn me for being wrong when the ultimate answer turns on this unresolved question?

Fighting with Leiter is a losing proposition, so I will stop with a final comment. As he often does, Leiter quotes an email from an anonymous colleague who supports his position. I get lots of supportive emails from law profs, including some that make unflattering observations about Leiter, which I will not reprint.
But I must say I laughed when I read Leiter’s unnamed professor remark that I was defending a “profitable franchise.” This enterprise has been anything but “profitable” for me. I have vowed to donate all proceeds from the book to student fellowships, and so far have given much more to this than the royalties I have received. On top of that, I have offended many colleagues across legal academia. This book has been a professional disaster for me, as I anticipated it would be. And Leiter is doing his utmost to make sure of it.


Posted 4:12 PM by Brian Tamanaha [link]