The UCLA Law Review has a new short essay out by St. Thomas Law professor Jay Sterling Silver (yes, that's his real name), attacking the calls for reform in Brian Tamana-Montana's (not his real name) book Failing Law Schools.
While the essay is short in law review terms, it's too long to comment on point by point, so we're going to just point out some of the high lights. Or, as the case may be, low lights.
[After explaining the rise in law school tuition rates.] Faculty salaries, according to Tamanaha, were simply one of the spots where the revenues landed. As law school administrators know only too well, however, most law teachers take a sizable pay cut when they join the academy from practice, and the bulk of any alleged windfall ends up in university coffers rather than in faculty salaries.
This is the common mantra of the over-paid law professor. "We could make more in practice, you know!"
Oh yeah? Well then go fucking make more in practice if that's what you want to do.
Plenty of grads from top schools who could have gone in to Big Law choose to take low paying positions working for the government, non-profits, or doing largely pro bono work. A public defender doesn't get to say to his client "Better pony up $200/hr, because I could be earning $500/hr in Big Law right now." Nope, he recognizes that there is good to be had in providing low cost services, and that pursuing this good means giving up his six figure salary. Law professors on the other hand want to bite the apple from both sides, getting the job and lifestyle that they want, while maintaining a high income. Plus, while the income of law profs might be lower than Big Law, the job security that comes with the position may very well make up for it. Someone who washes out as a mid-level associate can easily end up earning far less than the average law prof.
The solution? For starters, all law schools, particularly lower-echelon schools, must tighten their belts, reducing the size of incoming classes, cutting administrative costs, and forgoing faculty hiring for a while. In the process, however, we must not forget, as Professor Tamanaha has, that legal scholarship enriches teaching as it refines the practice of law and advances justice and that the traditional emphasis on scholarship requires the academic freedom provided by tenure and the time furnished by customary teaching loads.
Cutting administrative costs is definitely a winning idea. So is reducing class sizes, and of course if you're taking in fewer students you won't need to hire as many new professors. That all works. But look at who is the only party in Sterling Silver's plan that doesn't have to make any sacrifice: current professors. They're not asked to teach more classes, or take pay freezes or even pay cuts. No. They must be preserves, and no harm must come to the holy scholarship. And why is that scholarship so important to protect?
Indeed, all of the rights we enjoy today or are struggling to achieve were once just ideas. 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. (Recall Kurt Lewin’s remark that “[t]here is nothing so practical as a good theory.”) And who will replace the law professor—protected by tenure and unbound to clients or special interests—to reflect on and identify abuses of power and solutions to perplexing social problems from the Archimedean point of the academy?
Yes, the rights we enjoy today were once just ideas. Does Sterling Silver show how any of the rights enshrined in the Bill of Rights were the product of academic legal scholarship? No. Can legal scholarship have an immediate, real-life impact? Yes, in theory. Does it? Sterling Silver certainly provides no example of this.
And who will replace the law professor as the great legal thinkers of our time? Maybe practicing lawyers? Yeah, they're busy doing practice stuff, but they also spend time thinking about the law as they do it. They face serious legal issues in their work, and often try to formulate doctrinal changes tat would improve the legal system. And then there are PhDs in history, and political science, and sociology, and philosophy, all of whom can pick up the burden of reflecting on and identifying abuses of power and finding solutions to perplexing social problems.
Stripping law faculties of the time to contemplate the weaknesses of the law and the injustices of the legal system, and discarding the tenure necessary to instill meaning in the words “academic freedom,” reduces a vital social resource to a cog in the current structures of power. Under the guise of fiscal management, law professors willing to take on the wielders of power in the public and private sectors would be silenced.
Want to fight against injustices in the legal system? Get a job as a public defender. Volunteer for the ACLU. The Foundation for Individual Rights in Education takes on wielders of power in the public and private sectors, yet FIRE isn't a group of ivory tower academics.
Tamanaha touts his “differentiated” legal education, where a handful of elite law schools remain three-year research institutions and the rest morph into cut-rate, two-year trade schools, as a means by which “[p]rospective students will be able to pick the legal education program they want at a price they can afford.” He adds, tellingly, that “[a] law graduate who wishes to engage in a local practice need not acquire, or pay for, the same education as a graduate aiming for corporate legal practice.” 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. Instead, based on their ability to pay, they’d either attend a school from which they might emerge onto Wall Street or one where they’d have no choice but to hang up a shingle on Main Street.
Yes, having specialized law schools would remove from of the freedom to choose your career path. But young graduates often don't have that freedom to begin with. Especially in a tight economy, you take whatever job you can get, practicing whatever area of law someone will pay you to practice. Sterling Silver is apparently worried that someone attending a third tier local school will forgo the chance to work on Wall Street, but that was never an option in the first place. He was always going to end up in a small Main Street shop, but under Tamanaha's model, he wouldn't be forced to pay for the production of legal scholarship only read by people on Washington Square West.
The real benefit of specialized law schools though would be that it forces prospective to really sit down and consider their goals in law school and what career path they want. No longer would law school be some default generalized liberal arts education for people with a degree in history or philosophy. It'd be a school where you go because you want to practice criminal law, or because you want to practice tax law. That'd be a good thing for students, and for their future clients.