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Wednesday, August 29, 2012

Tamanaha vs. Chemerinsky

At Balkinization, Brian Tamanaha and Erwin Chemerinsky have a fascinating set of responses to each other regarding Tamanaha's criticisms of UC Irvine Law School. Tamanaha argues that for a school that purported to dedicate itself to public service and used this as a raison d'etre for creating a new school in an already crowded region, Irvine undercut its own mission by seeking to immediately become a "Top 20" school. That made it, he argues, highly expensive, largely because of the hiring of top-notch faculty at competitive prices. As a result, he says, "UCI grads (class of 2015) will be forced by their debt burden to seek corporate law jobs regardless of a desire they might have to work in public service." "Although Irvine professors are fully entitled to earn market value," he adds, "what results is in tension with their advocacy of public service."

Chemerinsky is understandably a little gobsmacked by all the attention focused on Irvine. His most important empirical argument is that faculty salary do not account for all the rise in tuition at Irvine and that hiring much cheaper faculty would not have resulted in a significant reduction in tuition -- and that even a partial reduction would require eliminating the school's elaborate in-house clinical program. His most significant argument in general is that "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. . . . [H]ad 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."

There's already enough black-and-white in this back-and-forth for me not to want to add to it by saying someone is completely right and the other person completely wrong. That said, I am far from persuaded by Chemerinsky's arguments.

Chemerinsky's core argument, one that is all too common in our profession and within our social class, is that it is essential for law schools to do "well" by conventional measures in order to do "good." There is some justice to that: as he writes, in a credential-obsessed environment, "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." But the question, to me, is 1) whether the cost of doing "well" outweighs its putative benefits toward the goal of having a successful public service-oriented law school; and 2) whether Chemerinsky, as Tamanaha argues, sets up a false dichotomy between either having "a 'top 20' law school or a 'fourth tier' law school." This leaves out the possibility of genuinely innovating: of having a school that attempts to defy those categories altogether and focuses instead rigidly on the single goal of designing a fully public service-oriented law school. The subject matter and prestige of the professors Chemerinsky hired seems to have relatively little to do with that goal. In the way that liberal elites or elites of any kind do, it seems to me to end up accepting as a given, and benefiting from, all the conventional values of success and prestige that are part of the current system and have served its prominent faculty so well, until in the end the goal that was supposed to drive the whole enterprise becomes something closer to the cherry on top.

Nor do the figures that Chemerinsky supplies convince me the school has succeed in its public service goal. Chemerinsky writes:

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.

These are all short-term measures involving what students do in school, not afterwards. They are not wholly unique: many law schools have pro bono requirements, and my own, much less expensive school has plenty of students logging large numbers of pro bono hours and receiving public interest certificates upon graduation. And what happens after graduation? "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." The results are at best unclear here--where did the students go after their clerkships? How many that received offers from major firms took them? Why were 20 percent not fully employed? how many took those "some" government and public interest jobs--but it does not suggest a dramatic success rate at encouraging public service work. A school devoted wholly to that goal might indeed be counted by the tastemakers as a "fourth tier" school--but would it do a better job of sending its students into long-term public interest work?

All this, I must say, reminds me of a case that is about to resurface in public discussion: Grutter, the Michigan Law School case. That case, too, involved a debate over the merits of and relationship between doing "well" versus doing "good." In his dissent, Justice Thomas pointed out that Michigan could have ensured a more racially diverse class by changing or lowering its admission standards, and accused it of seeking "to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status." But Justice O'Connor, for the majority, responded that "[n]arrow tailoring does not require . . . a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups."

The parallels are not exact, but they are there. Diversity, or public service, are treated as an important part of the educational mission, but not one that is so important that it requires sacrificing being viewed as an "elite" school in the eyes of others. Doing "good" is important, but so is doing "well." The result is a system that doesn't challenge the system--one in which Irvine is to be counted as a success as a "public service" school even if many of its graduates end up in large firms or underemployed, just as Michigan is to be counted as a success even if it could be even more racially diverse, in part because both schools still manage to do "well" as elite schools. Perhaps if we let go of some of our endless elitism, there would have been more room for both schools to either accept--or challenge altogether--what it means to be a "lower-tier" school, and for Irvine in particular to present us with a genuinely different model of what legal education means.  

Posted by Paul Horwitz on August 29, 2012 at 08:32 AM in Paul Horwitz | Permalink

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Comments

Paul, do you have any thoughts about where (or whether) Savannah Law School, which just opened this fall, fits into this debate? I don't know much about it, but the mission statement and dean's message on their website suggest that they intend to be a public service-oriented law school. I don't know if that's just website puffery, or if they truly are trying to innovate in some way. Again, I don't know anything about it, but Savannah doesn't strike me as having the same goal as Irvine of quickly becoming an elite school. I'm just suggesting that this may be another data point to consider in the debate about reasons for opening new law schools in this already saturated market and curious about your thoughts, if any.

Posted by: Interested Anon | Aug 29, 2012 9:27:06 AM

Prof. Horwitz, I think you're letting the perfect (which you have conveniently not defined) be the enemy of the good here. I think I have some sense of what Dean Chemerinsky wants to accomplish: create a law school that churns out successful, high achieving public interest lawyers. Whether or not one agrees with that goal, it appears to be clear. Conversely, I am not so clear what you (or to a lesser extent, Prof. Tamahana (and I have admittedly not read his book, just some blogposts here and there)) want to accomplish that is not already being well served by a number of 3rd and 4th tier schools (cheaper law school that is more focused on skills). What is it that you mean by transforming legal education?

Posted by: Anono | Aug 29, 2012 9:29:47 AM

The underlying question here is the extent to which legal hiring is dominated by pure signaling.

If all law schools could become elite law schools that place their graduates in highly paid positions by hiring excellent professors (who in turn must be able to be defined as excellent in an absolute sense rather than a relative sense for this to work), developing good curricular programs, and so on, then it makes sense to create another such school. The net effect would be to increase the total pool of lawyers with bright futures ahead of them.

On the other hand, if the legal market is largely driven by positional signaling, and thus only a fixed percentage of law schools can be elite, the effect of adding another such school is simply to shuffle the the deck. Irvine graduates will have good outcomes but will push the marginal elite school into the non-elite category, which will push another school down - creating a cascade that ends up with more unemployable JDs.

All I have seen indicates that law and law teaching are among the most naked prestige based professions around, and thus the second outcome is most likely, but I am interested to hear what Irvine / Chemerinsky supporters think.

Posted by: brad | Aug 29, 2012 9:50:06 AM

Thanks for the interesting comments. I'm afraid I have no knowledge about Savannah--I suppose I'll have to learn more! Anono, I appreciate your challenging questions. I do wish I had a clearer view of what constitutes transforming legal education, so I think that's an especially apt challenge, although I can add that my desire, such as it is, would not be its utter transformation so much as the appearance of more viable alternatives and differentiation within the current system. On the question of the perfect and the good, I take the point, but I guess I would say two things: 1) surely there is a balance between perfect and good; I'm not looking for utopian circumstances, but I think there is room to push on standard assumptions and patterns of operations more than Irvine appears to; and 2) I agree that Chemerinsky's (stated) goal is clear; the question is how essential being a top 20 school by conventional measures is to that goal, and how much the things needed to achieve that seemingly secondary goal distract from the stated primary goal.

Posted by: Paul Horwitz | Aug 29, 2012 9:56:49 AM

I subscribe to the "shuffled deck" hypothesis, but if UCI manages to add something new to the legal profession, congrats to them. (At every school I've taught at, except perhaps Stanford, there was already much more interest in public service jobs than there were available jobs in that field. How does the presence of UCI make the pie bigger, especially given its high tuition?)

One of the commenters asked about what innovations were possible. Five years ago at Tax Prof Blog, Paul Caron ran a series about "advice for Dean Chemerinsky," and the various posters had a wide mix of suggestions, from, essentially, "here's how to chase the traditional type of prestige" to "do something quite different." Now that UCI has been up and running, it's interesting to go back and re-read that advice.

http://taxprof.typepad.com/taxprof_blog/2007/10/roundup-of-advi.html

Posted by: John Steele | Aug 29, 2012 10:16:32 AM

Here is the bottom line: there was (and is) no need for the UC Irvine law school. California is loaded with great state law schools. The UC Irvine students who have succeeded as Dean Chemerinsky describes would have otherwise attended Cal, UCLA, UC Davis, or Hastings, and likely have obtained the same clerkships or desirable jobs. The only possible loss is that they might not have done the public service work that they were apparently required to do at UC Irvine.

Posted by: Doug Richmond | Aug 29, 2012 10:18:52 AM

I think he wants his school to be HYS, not Cal, UCLA, UC Davis, or Hastings.

Posted by: JMH | Aug 29, 2012 2:24:10 PM

"Here is the bottom line: there was (and is) no need for UC Irvine law School"

Too bad we didn't know that before the schools started. Oh wait, we did know that?:

A report conducted by the California Postsecondary Education Council in 2007, assessing whether the U.C. Regents should approve the creation of Irvine Law(linked below), advised against it.

The Report clearly showed, way back in 2007, that California did not need another law school (top 20 or otherwise) as the projected need for lawyers in the state was already being met, and would continue to be met (indeed, exceeded) by existing schools.

Further, the report specifically refuted Irvine's public interest ploy, and referenced Berkeley, in particular, as doing more than enough to address the public interest needs.

http://www.cpec.ca.gov/completereports/2007reports/07-01.pdf

From the report, and I quote:


"Based on a review of proposal data, documents, and
analyses provided by the University of California,
Irvine (UCI) and the University of California Office
of the President, including recently submitted supplemental
information, the UC Irvine proposal does
not satisfactorily meet:

1. The industry and occupational demand component
of the Commission’s social need criteria;

2. The program duplication component of the
Commission criteria regarding the number of
existing and proposed programs in the field;

3. The Commission’s total cost criteria.

Although California could benefit from a higher
proportion of law school graduates pursuing careers
in public interest law, this issue is being addressed
by the California Bar Association and by a number
of existing public and independent law schools,
most noticeably the UC Berkeley law school.
These collective efforts, which appear quite promising,
greatly lessen the need at the present time to
establish a new public law school to increase the
supply of public interest lawyers.
Given the above findings, the staff recommend that
the Commission not concur with the proposal to establish
a public law school at the University of California,
Irvine."

Hmmmm....But, but, their citation count is so high! Clearly they are justified!

Posted by: Anon | Aug 29, 2012 2:51:47 PM

A propos law school tuition levels in general:

It seems the tuition at Tamanaha's institution is even higher than that at Chemerinsky's. Can't help but wonder whether Tamanaha has devoted some of his considerable energy trying to get his own school to reduce tuition, and reduce the salaries of WUSTL faculty, or has set an example by taking a salary reduction. Or whether it is only other schools that are supposed to reduce tuition and salaries.

TUITION
UCI Law: $42,975
WUSTL: $46,710

Posted by: Dan (not Markel) | Aug 30, 2012 9:55:31 AM

2 additional points I would make that I think are not being made in this debate:

1) The difference between $150,000 and $100,000 in 3 year tuition isn't actually particularly significant, if you're talking about amortizing that debt over a 10 year period, even more so when you're talking about the 30-40 year careers that most law school grads will have in the law. Any such difference is completely dwarfed by the difference in options for the average graduate of a top-20 school (Dean Chemerinsky's goal; whether or not UCI ever achieves that is a topic for its own debate) and a top 100 school (let alone a 4th tier school).

2) As someone who has actually worked in public interest, I think that Profs. Tamahana and Horwitz may also be making a false distinction between public interest and private practice, as I think that many (most?) of us who work in public interest actually spend some time in private practice as well. Is law school debt a factor in working in private practice? Sure, but far less so imo (see 1 again above) than other considerations (kids, health care, a preference for eating out at nice places once in a while). Kudos to those who work purely in public interest for their entire careers, but I don't think that accurately describes most of my public interest classmates from law school, who have mostly spent at least a couple of years in private practice.

Posted by: Anono | Aug 30, 2012 10:43:34 AM

Chemerisnky said: "I wouldn’t have come at half the price. No one is going to take a 50 percent pay cut, no matter how beautiful Orange County is, and no matter how wonderful it is to be part of a new school."

Why is that? Look at the career paths of fresh graduates from top schools and you'll see that 15-25% choose to work in government or public interest jobs. They forgo $160,000 paychecks at BigLaw shops and instead take $60,000 jobs with the government or jobs in public interest which presumably pay even less. They're looking at not a 50% pay cut, but 60%+.

How is it that every year thousands of law students willingly choose to take steep pay cuts in order to pursue the public interest, while Chemerinsky can't round up 30-40 professors willing to do the same? And it's not just that he can't find others, he said he's unwilling to do so himself. He won't pursue the public good for less than $176,000 a year (half his current salary).

As for his claim that cutting salaries wouldn't be enough ("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."), why let the perfect be the enemy of the good? $33,000 a year is certainly better than $44,000 a year.

Posted by: Derek Tokaz | Aug 30, 2012 12:36:45 PM

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