Responsible Solutions: Reply to Tamatha and Campos
Texas A&M Law Review
At the end of Brian Tamanaha's instant classic, Failing Law Schools, tracing the economic forces behind exorbitant law school tuition and graduate debt and unemployment, he lays out his plan to help resolve the crisis. He would eliminate tenure, dispense with the final year of law school, rely heavily on adjuncts and apprenticeships, and loosen the ABA accreditation standards mandating "one-size-fits-all" law schools to allow the marketplace to fashion more affordable models of legal education. Some schools would remain in the traditional, three-year mode, with faculty conducting research. Others would morph into, or spring up spontaneously as, the "law school parallel ... of vocational colleges. Very candidly, Tamanaha explained that the "two-year law schools... would be dumping grounds for the middle class and the poor .... Few children of the rich will end up in these law schools." He calls the plan "'differentiated' legal education." Others, including Paul Campos, founder of the Inside the Law School Scam web blog and author of Don't Go To Law School (Unless), and the ABA Task Force ("Task Force") on the Future of Legal Education, have endorsed Tamanaha's prescription. While Tamanaha and Campos, the leading voices in the call to overhaul legal education, have done well to bring the suffering of law grads and the economic forces behind the crisis to the forefront, the "differentiated" model they sponsor will gut the public and private good in the present model and, at the same time, exacerbate graduate unemployment. Moreover, a set of measures exists that more directly and effectively addresses the causes of the crisis and preserves the underappreciated good in the present model. With the crisis only worsening and the ABA's recent appointment of the Task Force on the Financing of Legal Education to recommend solutions, the debate on the appropriate measures to take and the proper contours of legal education has taken on added urgency. The trouble with Tamanaha's two-tiered, "differentiated" model of legal education lies in forging a branch of higher education in the marketplace when it was unchecked market forces that caused the crisis in the first place. Moreover, his plan institutionalizes stratification, demotes legal education from the American academy to trade school status, and aggravates graduate unemployment in the process. The trouble with doing away with tenure is that the legal academy's independent critique of law and the legal system would be lost, ceding the field to those who buy their spokespersons and lobbyists, and law school clinics could not represent unpopular clients and causes without political pressure or fear of reprisal. The trouble with an army of busy adjuncts replacing experienced, full-time professional educators is that adjuncts normally place less emphasis on the rigorous classroom dialogue that promotes analytical thought and effective advocacy. And the trouble with compressing the study of law into one or two years-in the herd of new law schools that will stampede into the market-is that the low-LSAT students Tamanaha designed these schools for are the ones who are most in need of three years of rigorous instruction. The abbreviated programs, moreover, conflict with the long-standing call to do more to train practice-ready attorneys. After I noted these problems in a brief piece entitled The Case Against Tamanaha's Motel 6 Model of Legal Education, both Brian Tamanaha and Paul Campos took strong exception. In The Failure of Crits and Leftist Law Professors to Defend Progressive Causes, Tamanaha objected that I had overestimated the value of legal scholarship relative to its costs, and in a subsequent piece in the Georgetown Journal of Legal Ethics, he disagreed with my criticism of his two-tiered system. In Self-Congratulation and Scholarship, Campos argued that, contrary to my contentions, tenure and scholarship would thrive in Tamanaha's "differentiated" model, that I had overestimated the value of both, that the model is not a throwback to separate and (un)equal, that talk of teaching analytical skills is an empty slogan for an unnecessary task, and that, as the title of his piece suggests, my views represent the "platitudinous self-congratulation" of law faculty that, "in large[ ] part," caused the crisis. This Article answers the objections of Tamanaha and Campos and offers a set of solutions that, unlike the popular, perilous, often pretextual fixes put forward by Tamanaha and the Task Force, directly targets the actual causes of exorbitant tuition and graduate unemployment while, at the same time, preserving the public and private good in the present model. In Section II, I address Tamanaha's and Campos's rebuttals to my position that one set of law schools for the rich and one for the poor and middle class represent separate and, with regard to educational quality, unequal. In Section III, I respond to Campos's criticism of my view that tenure and scholarship will largely fade away if and when tenure is no longer mandated by the ABA's accreditation standards and, in support of my view, present previously unpublicized evidence about the efforts of law deans to extinguish it. In Section IV, I explain how Campos's rejection of my view that a principal task of the law professor is to cultivate students' analytical skills guts the essence of a legal education and threatens the interests of clients. Section V explains how Campos's thesis that law professors are to blame for the crisis lands far off the mark, and how the charge otherwise serves the effort to push legal education out of the American academy and into the ranks of the trade schools. In Section VI, I place a slightly different emphasis than Tamanaha on the economic dynamics underlying sky rocketing tuition and unemployment and outline five measures that will, by confronting the real causes of the crisis, more directly and effectively help resolve it than Tamanaha's purported fixes. I conclude by joining in Brian Tamanaha's call to the professoriate to actively participate in the quest for solutions, but to sponsor solutions-unlike those of Tamanaha and Campos-that preserve the good in what we do.
Jay Sterling Silver, Responsible Solutions: Reply to Tamanaha and Campos, 2 TEX. A&M L. REV. 215 (2014).