[The following is presented as a book review of Brian Tamanaha's Failing Law Schools, with certain assertions being made for narrative effect. The author of this blog does not, by relating the fictitious monologue below, necessarily endorse or condemn the views expressed therein.]
Hey, you. Yes, you. The one who’s working on your FAR form and studying that map of the catacombs at the Wardman Park Marriott. C’mere. I want to talk to you. Shut the door. Have a seat.
Want a drink? Is scotch OK? Here you go.
You may be wondering why I called you over. No, I don’t want to give you advice on how to become a law professor. Others have that base covered. In fact, from all of the how-to-become-a-law-professor blog posts out there, I bet you think there’s no better job out there. Not true. Larry Kramer, the former dean at Stanford Law School, just found a better job. In his new job, he’ll spend all day, every day, giving away another guy’s money.
I want to have a different kind of talk with you. I want to be the bad guy. The Walter White. The one who lays out some of the reasons why you shouldn’t become a law professor.
Now, don’t get me wrong. Being a law professor can be a very good job. Even a great one. I don’t think I need to tell you why. You know all of that already. And I’m not going to rehash all the things about our jobs that are a little strange or quirky, if not necessarily problems. Like the fact that the second- and third-year students we teach because, presumably, they don’t know enough about the law also control our professional destinies by determining whether and where our articles get published.
Instead, let me just hand you this copy of Brian Tamanaha’s Failing Law Schools. Keep it. I’ve got others. Before you decide whether you want to become a law professor, I want you to read this book, to do your own research on law schools and where they’re headed, and then to consider how you’ll fit into the big picture, if you get hired somewhere. And not necessarily your dream school, either. Ask yourself: Do I really want in on this?
Now, your answer may still be “yes.” I get that. Again, it’s a great job, and no one thinks that they, personally, are part of the problem. But if you credit Tamanaha’s argument, which collects and develops a bunch of criticisms of law schools that have been floating around for a while, lots of law schools are running a scam that’s around a 3.0 on the little white lie (1.0)-to-Bernie Madoff (10) spectrum. At a minimum, an uncomfortably large number of law deans and professors are running operations that are hurting more students than they help, or pulling a collective ostrich as to how their law schools are run, and their salaries paid.
I say this without pointing a finger of blame at anyone because, as the saying goes, when you point at someone, two other fingers are pointing back at you. Only two? Here, let me see. OK, you’re right, three fingers come pointing back at you.
Tamanaha’s book is essentially about people, no better or worse than anyone else, who are making decisions that are good for them, but very bad for others. Law deans and professors are taking money–lots and lots of money–from students and the federal government, and using it to support their (increasingly) cushy lifestyles and (increasingly) excessive pay. Now, this situation might not set off alarm bells if these students all had ultra-lucrative jobs lined up after graduation. But we know that’s just not happening these days. Instead, a whole bunch of graduates have only a diploma, a huge, mounting pile of debt, and huge, mounting frustration that they can’t find a decent law job.
The deans and professors who run these operations aren’t monsters, and the book doesn’t portray them as such. Except, maybe, when it comes to their preparation of U.S. News and World Report data. But even there, Tamanaha describes the steep price of moral purity. If you refuse to play the U.S. News game, you may fall five, ten, or even twenty places in their rankings. Your alumni will flip at the loss of prestige, your current students will crush you (since the rankings affect their job prospects, too), high-caliber prospective applicants will look elsewhere (which may lead to a vicious cycle in which your ranking packs up and heads to Antarctica), and you’ll lose your job.
Whether you agree with Tamanaha’s take on U.S. News reporting or not, he’s right in that history has taught us, time and again, that one of the most dangerous situations you can find yourself in is one where financial or other pressures encourage you to do something that, if you thought about it in a vacuum, you’d realize you probably shouldn’t do, but which everyone else seems to be doing, with no one getting called out for it. The fact that everyone else is doing it not only obscures the fact that it’s wrong, but also provides participants with an incentive to perpetuate the practice even after they figure out that it’s wrong–assuming that they ever have such a revelation.
To draw a modern analogy, what Tamanaha describes as going on in law schools right now is a little like what happened last decade with steroids in baseball. (I want to emphasize the word “little,” here; there are some important differences.) Some players started to use steroids, and got an advantage because of it. So other players started to use steroids, too. Pretty soon, a bunch of major leaguers were juiced, because they felt they had to be in order to stay competitive. Maybe they knew it was wrong, maybe they didn’t, probably most didn’t care or think about it much. Everyone else was doing it, too; the fans seemed happy with the results; and nobody voiced any objections, even with obvious warning signs like Mark McGwire’s terrible acne.
Then, suddenly, boom. The federal government got interested, subpoenas were issued, sportswriters somehow figured out that their optimal position was one of sanctimonious outrage, and in a flash, most everyone who used steroids became a bad guy. Was this fair? I don’t know. Maybe, maybe not. As Bill James once wrote, many scandals involve the imposition of higher standards than previously prevailed, as society takes off its collective blinders and condemns a practice that it used to tacitly accept, or at least abide. And since society can’t blame itself, the individuals closest to the practice get the worst of it.
Now, replace “steroids” with “manipulation of data used in the U.S. News and World Report rankings” and “tuition hikes,” and ask yourself: Are you, and your school, going to occupy any different a position than Mark McGwire (or Bobby Estalella) if, a few years from now, you’re a law professor at an institution where more than half of your students graduate with more than $100,000 in debt, but can’t get jobs as lawyers? And a bunch of your other graduates can land only attorney positions from which the sole escape route from their loans is the federal-debt-repayment equivalent of the witness protection program?
Look, I know I’m not marching into battle on a high horse here. I am part of the machine. And I certainly have spent more than my fair share of time thinking about how to keep up with the Jones on the U.S. News and World Report rankings. But we’re not talking about me. We’re talking about you. Regardless of how well your scholarship goes as a professor, how happy would you be–how happy should you be–if only half of your students achieve a goal that they paid up to $200,000 to realize?
What’s that? You want schedule flexibility, the ability to do research, and, in any event, what else are you going to do with a law degree? Again, I understand, and I don’t necessarily have a good response if it’s all about you. Let me just paraphrase the famous philosopher, Herman Edwards. Just as nothing good ever happens after midnight in a club, elsewhere in life you simply have to avoid situations where you may, unavoidably, make a mistake or otherwise contribute to a bad situation. If you think that what’s going on in law schools today is wrong, trust me, it’s not going to get any easier to dissent from these practices once you’re on the inside–at least until you get tenure, by which time it may be too late.
Solutions? Don’t look at me for solutions; I’m already half-drunk. And, I should add, untenured. Tamanaha throws out a few possible ones, but aside (maybe) from changing the status of law-school debts so that they could be discharged in bankruptcy–which I suspect would have an enormous effect on legal education–I don’t know how well many of them would take, and how much of a difference they’d make. Maybe some law schools need to fail. Law professors probably have to work harder, for less money, and with fewer guarantees of lifetime employment. Maybe law schools have to be run a little more like other businesses, even if it means fewer staff, and worse benefits. Maybe law schools should pool their endowments to purchase the zombie carcass of U.S. News and put it out of commission once and for all (assuming that doing so wouldn’t raise any antitrust issues, which it probably would), though I still suspect that the rankings would find a way to rise from the grave. Tell you what. I’ll think about it, and get back to you if I have an epiphany.
All right. I’ve got to run for my three-martini lunch. Hope you enjoyed the conversation. Let’s talk again soon. Have your people call my people. And if you do apply, anyway, know that it takes exactly four minutes and twenty-two seconds to race from the top of one Wardman tower to the other at a dead sprint.