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Wednesday, December 12, 2012

To Avoid a Pile-On...

...I will simply point readers to Orin Kerr's critique of Jay Silver's recent critical review of Brian Tamanaha's Failing Law Schools book. I certainly don't mind criticisms of that book; I had some, and so have others. But I don't think Silver's criticisms are sound, both because they overstate Tamanaha's arguments and because they consist more of bromides than well-supported arguments. To pick just one extraordinary example, is it really the case, as Silver writes, that "[t]he time-honored Socratic and casebook method of legal instruction, administered by professional educators, is a snug fit with the pedagogical needs of future attorneys?" In any event, read Orin's post.



Posted by Paul Horwitz on December 12, 2012 at 08:54 AM in Paul Horwitz | Permalink


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Interesting observation from reading the comments there: many seem to want law professors to teach and write more private law or commercial public law like tax. Many also want faculty salaries to go down. And many want more teaching by those from practice.

... but these goals are inconsistent, if we think that law faculty salaries are higher than cognate disciplines in (large?) part because law schools must compete with very high-paid practice for personnel. And I suspect they a high- powered tax attorney will demand rather more money to teach than will a former public defender or phd in anthropology.

Posted by: Paul Gowder | Dec 12, 2012 9:21:48 AM

I think turning this into a liberal vs conservative debate is seriously misguided. Orin often has useful things to do but jumping on someone for talking about power issues is not helpful, and repeating it here is likewise misdirected. Let them have their silly forum over at the Volokh thing.

Posted by: MS | Dec 12, 2012 9:45:31 AM

MS, a partial agreement and partial dissent to your comment. First, I agree with most of what Orin said in his post. But I didn't focus on that here; I simply pointed readers to the VC and picked up on another example of a broad assertion that seems both questionable and unsupported. I agree that turning these issues into liberal vs. conservative debates would be silly (this is part of the point I make about the Walter Olson book in my Michigan review). But I don't think "power issues" map that easily onto "liberal vs. conservative" issues. There are both liberals and conservative law professors who see themselves as engaging in some version of Silver's description of what law professors do; like Orin, I think such a self-image is both overblown and in any event does not answer a variety of questions about the costs and methods of preserving such a system. In any event, this is only one of a number of areas in which I disagree with Silver's review.

Posted by: Paul Horwitz | Dec 12, 2012 9:55:04 AM

I want to know more about the issue of "taking on the wielders of power." I think I can agree with this description of what legal scholarship is about, provided we're talking about the power of ideas. Or was it something else?

Posted by: Marc DeGirolami | Dec 12, 2012 10:18:56 AM

"Indeed, all of the rights we enjoy today or are struggling to achieve were once just ideas."

This is true, but which of these rights were ideas that originated within the legal academy? I don't think John Locke, Francis Bacon, David Hume, or any of our own Founding Fathers were law professors, or professors of any sort. How many recently acquired or currently-pursued rights had their origins in the legal academy or were significantly advanced by legal scholarship? Silver certainly provides no examples.

"The immediate, real-life impact of legal scholarship—whether the author advocates a particular change in law or policy or provides a new theoretical paradigm—can be immense."

Can be, in theory, for sure. That doesn't mean that it is, or even likely to be. And this is really where Silver's argument (and similar arguments by others) for maintaining scholarship falls apart. No arguments are offered as to why the current size and structure of legal scholarship are right.

Why is 10,000 articles per year the correct volume rather than 1,000 or 25,000? Why are professors at all universities expected to produce scholarship, and why does every law school have a law review and secondary journals?

Why is scholarship even seen as a profession to begin with, rather than an interest you can pursue in your own time? You can be a professor from 9-5, and then if you wish to be a scholar, the resources of the school will be available to you, but it's something you have to work on after hours.

It'd be nice to see the academy take a serious, critical look at scholarship rather than relying on the argument that some scholarship does some good, and therefor all scholarship is perfect.

Posted by: Derek Tokaz | Dec 12, 2012 10:49:25 AM

I am a first year professor at a solid second tier school. I am writing under the cloak of anonymity, because, for obvious reasons, I fear that publicly stating my views would be detrimental to my nascent career. I have been closely falling the debates about legal education over the past couple years, and I am frankly dismayed by the current state of affairs. I think that teaching loads are ridiculously too low across the board -- a 2/2 load is considered on the high side?! Correct me if I am wrong, but wasn't it not that long ago that professors regularly taught three classes each semester (even those at elite institutions)?

I very much enjoy producing scholarship, and I think that some of it is extremely insightful and socially valuable. But let's be honest -- a huge amount of it is pretty bad and is destined to go off into the ether, never to be read. Many, many professor simply do not really have anything original to say, so they dutifully churn out their articles so as to comply with tenure requirements. And, to get back to the teaching load issue, why are we so obsessed with quantity for its own sake when it comes to scholarship? If professors taught more, then they might write an article every two years instead of every year. Would that really be so terrible?

Posted by: Anon First Year Prof | Dec 12, 2012 1:39:26 PM

Doing plaintiffs-side antitrust work, I learned that many people who enjoy insulation from market forces tend to theorize that insulation as a great benefit for the public. (Ymmv, but I found Prof. Silver's version of that theory way over broad even if it did have a kernel of truth here and there.)

As for the left-right issue, when the David Segal articles came out I was surprised that a handful of law profs interpreted the market changes as an attack of the right wing on the champions of the left, the 99%, and the downtrodden (i.e., the law professors). It may be that Prof. Silver thinks of himself and the academy that way, but I agree that that's no reason for the rest of us to view this as a clash of left-right politics. (Fwiw, though, I find it ironic that Prof. Silver cares so deeply about challenging the existing power structures but writes in favor of the status quo when it comes to the power structures that benefit him.)

So, yeah, I think that there is a considerable benefit to society from having a corps of bright professors thinking about and writing about the law. But as Derek Tokaz notes (and as others have noted elsewhere), we can concede that the benefit exists and still legitimately ask, "at what cost?", "how much of that do we need?", and "who pays for that?" The failure to address those issues is what makes Prof. Silver's article a disappointment.

Posted by: John Steele | Dec 12, 2012 1:40:24 PM

Silver starts with a significant mistake, shared by many law professors, few of whom seem to have engaged in or studied business - differentiated does not mean worse. To give one example, BMW started out as a maker of motorcycles, and when they moved into cars they needed to offer a different value proposition than the dominant car maker in their region, BMW. They chose to make cars that were fun to drive, not rolling couches, and marketed themselves that way. Is BMW better or worse then Mercedes? Depends on who you are and what you want.
As I tried to explain in my own review of Tamanaha's book, it's a requirement of successful strategy, for most businesses, that they choose the way in which they can be sustainably different from their competitors. If you choose to be a pale imitation of the market leader, you are heading for extinction. Law schools and universities are hard to kill, but the same logic of differentiation applies. Choosing to be different does not mean choosing to be second best (face it, almost every school out there would love to be second or even third best). It means choosing something at which you can be excellent, and building your offering at achieving that excellence and targeting consumers who want a product that offers excellence along that dimension.
Until the academy begins to understand what it really means to offer different solutions, there will be a boring circularity to the discussion. In my opinion, it gets interesting, very interesting, when you start talking about ways schools can choose to be uniquely excellent and build sustainable advantages along those criteria.

Posted by: Ray Campbell | Dec 12, 2012 10:28:43 PM

I'm surprised everyone is taking this guy so seriously. His big criticisms of Tamanaha seems to be that:

1. "Law students, in other words, would no longer be able to select freely among the various career paths within the profession after exposure to the different areas of law in law school."

2. "the traditional emphasis on scholarship requires the academic freedom provided by tenure and the time furnished by customary teaching loads."

With regard to number one, these are St. Thomas's placement stats:

Not Working: 26.3%
Working Part-Time: 4.6%
Working Solo: 5.4%
School Funded: 0.9%

Compared to --
Federal Clerkships: None
Law Firm (100+): 1% (can you say "doc review")

So most grads are "no longer be able to select freely among the various career paths"; the two-tiered system already exists.

With regard to number two, these are Professor Silver's publication stats in the last 15 years:

(yeah, that's nothing but empty space up there).

Posted by: john | Dec 13, 2012 6:52:15 AM

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