Parked at the crossroads of higher education and legal practice, U.S. law schools find their once serene setting to be under siege. The legal services industry faces a period of profound structural change with uncertain consequences for the traditional practice of law. Meanwhile, higher education wades through its own Slough of Despond, with its mission unclear and elite institutions spooked by disruptive change.
Just at this moment Brian Tamanaha has entered the scene with a book entitled Failing Law Schools. Tamanaha argues persuasively that law schools are in crisis, with costs so high and employment prospects so poor that most law schools now represent a bad investment for students. He tells how things came to this sad pass, with legal educator selfishness playing the leading role. He builds a compelling case.
Tamanaha falters when he attempts to present a path forward for law schools. In proposing changes for the future, he essentially seeks a return to a more affordable past. In the context of changes sweeping higher education and legal services, such a return may not be possible or desirable. Law schools that find themselves in a challenging situation will need to address – and perhaps embrace – radical change in order to chart a path forward.
Tamanaha’s failure to address the future flows from fundamental limitations in his approach. First, Tamanaha errs in treating law schools as a special case. The most severe ills afflicting law schools – the orientation towards benefiting faculty rather than serving students, a system-wide elevation of research over teaching, and soaring tuitions – appear in similar degree across the academic spectrum of modern U.S. universities. Second, Tamanaha also fails to engage with some of the most disruptive (and promising) changes coming to higher education, including eventually law schools. Effective online learning threatens to split the instruction aspect of higher education from the research and networking aspects, with enormous implications for educational finances as well as institutional missions. Tamanaha’s modest “back to the future” vision fails to engage with the ways these new developments create opportunities for schools to be better than they ever have been, at lower costs.
Tamanaha also fails to take into account the changing nature of the legal services market. He focuses on training traditional lawyers for traditional legal practice. Both at the high and low ends, however, change is coming to the legal services market, impacting both the demand for traditionally schooled lawyers and potentially creating demand for new kinds of service providers. Tamanaha’s prescription fails to address this systemic change, and as a result fails to look at how law schools might be best reconfigured to serve a society with changing needs.
That said, Tamanaha has helped launch a discussion that needs to be had. No professor with a conscience can comfortably watch half his or her students spend three years of their youth and significant sums on a legal education only to find no jobs that justify the investment. For those schools not in the very upper tier of American legal education, something needs to change, and Tamanaha’s book helps structure the discussion of what that change should be.