Balkinization: Why Tamanaha's "This Time is Different" Critique Fails

Why Tamanaha's "This Time is Different" Critique Fails

Frank Pasquale

Professor Tamanaha's post today expresses deep skepticism about the predictive value of the article "The Economic Value of a Law Degree." Unfortunately, his caution about extrapolation is mainly reserved for academic work he disagrees with. For Tamanaha, the prophets of lawyers' doom are far more credible than this empirical study. I don't think that's fair, for several reasons I'll give below.

Tamanaha cites a recent New Republic story on Mayer Brown as evidence that law is indeed being disrupted. Here's a response to that piece:

From the cover lines and title (“Big Law in Free Fall,” “The Last Days of Big Law”) to an outlandishly flimsy [prediction] (claiming just one in 10 top firms will survive the imminent apocalypse, or so says “one common hypothesis” that then never gets explained or examined), the story looks at one sore throat and proclaims it a cancer pandemic. Its prognosis on the death of the mid-sized full-service firm echoes a forecast made so many times it has lost all credibility.

Tamanaha also cites several authors who believe the current downturn is structural, not cyclical. A few responses:

1) As far as I know, most of the "ReInventLaw"/Disruptive Innovation crowd does not share Tamanaha's views of the future of lawyers in the job market. I highly doubt that Daniel Katz or Oliver Goodenough walk into their classrooms at Michigan State or Vermont and tell students "This is all a big waste of time; you're about to be roadkill on the information superhighway." Rather, they creatively adapt old curricular models for new economic realities. I try to do that, developing and teaching courses on health information technology law, health data analysis and advocacy, and other material designed to prepare students for new opportunities.

2) However, I also try hard in my scholarship and popular writing to resist technological innovation that undermines the rule of law or otherwise disserves vulnerable populations. Tamanaha's writing about technological change often sounds like the fallacy Michael Sacasas calls "the Borg complex:"

[T]ech writers and pundits sometimes write as if resistance to technology is futile; regardless of what human beings say or do, technology will have its way. Some of them are thrilled by the prospect, others despondent, some indifferent. [Such rhetoric] makes grandiose, but unsupported claims for technology, pays lip service to, but ultimately dismisses genuine concerns, equates resistance or caution to reactionary nostalgia, starkly and matter-of-factly frames the case for assimilation, [and] announces the bleak future for those who refuse to assimilate.

Even faultier than the Borg Complex is a combination of casual technological determinism (computers will do all the lawyer jobs) with a social determinism (lawyers are not going to be valued because their training isn't valuable, and their jobs will be outsourced). Such dry predictions mask a host of value judgments. Should more discovery be done in countries with inadequate security and privacy laws? Should investigations of foreclosure fraud be done by people without law degrees? Most importantly: what are the commercial interests of the people who insist law graduates are poorly trained, or their skills are useless in a changing economy? Before jumping on the "massive technological change is making lawyers obsolete" bandwagon, Tamanaha may want to think critically about the interests it is serving.

3) Labor economist Mark Price has observed that it's always in employers' interest to characterize applicants as unqualified--it's just one more excuse not to pay. Labor economist Peter Cappelli has claimed that our broken job market has a "training gap, not a skills gap;" "everybody wants somebody with three to five years' experience." The narrative of constant, disruptive technological change fuels this attitude. I would also hazard a guess that at least some of the "law is being disrupted" crowd have consultancies that profit, like McKinsey, from devising plans to cut the pay of average workers and further enrich those at the top (or the multinational corporation client).

4) This is not to say that "all is well in BigLaw"--nothing could be further from the truth. Profits per partner continue to rise even as austerity is imposed on staff and associates. Those with jobs appear overworked, while many qualified to lighten the load are shut out. Fortunately, law schools are among the institutions generating proposals to improve the situation.

5) All my points above are part of a broader challenge to Tamanaha: consider larger economic dynamics, not just the legal market. Mike Konczal at the Roosevelt Institute has often noted that, if we were really experiencing widespread structural unemployment, there would be much greater disparity in employment rates between occupations. But that's not developing: instead, "underemployment has risen due to a lack of aggregate demand, not a mismatch between workers’ skills and available jobs." Tamanaha's narrative of doom could also apply to:

a) Scientists:

“There have been many predictions of [science] labor shortages and . . .robust job growth,” said Jim Austin, editor of the online magazine ScienceCareers. “And yet, it seems awfully hard for people to find a job. Anyone who goes into science expecting employers to clamor for their services will be deeply disappointed.” . . . Since 2000, U.S. drug firms have slashed 300,000 jobs. . . . [According to one laid-off drug developer,] “Very good chemists with PhDs from Stanford can’t find jobs.”

b) Veterinarians

c) Nurses

d) Architects

e) Finance Workers

I could multiply the examples. What we're seeing here is less a law problem, than a capitalism problem. Too much wealth is concentrated at the top, and has stopped flowing through the economy generally. The answer here is to beef up programs like income-based repayment, funded by more progressive taxes on the lucky and successful in today's winner-take-all economy. That was part of the funding mechanism for the Affordable Care Act, and should apply in education as it has in health care.

For someone who thinks and writes only about law schools, every problem for law graduates may seem like a pathology of legal academics. Take a broader view, and a more accurate picture emerges.

Posted 10:35 AM by Frank Pasquale [link]