What Ails the Law Schools?
Horwitz, Paul, Michigan Law Review
SCHOOLS FOR MISRULE: Legal Academia and an Overlawyered America. By Walter Olson. New York and London: Encounter Books. 2011. Pp. 237. $25.95.
FAILING LAW SCHOOLS. By Brian Z. Tamanaha. Chicago and London: The University of Chicago Press. 2012. Pp. xiii, 187. $25.
In January 2012, law professors from across the country arrived in Washington, D.C., for the annual conference of the Association of American Law Schools ("AALS"). It was an opportune moment. The legal economy was struggling. Graduates were begging for jobs and struggling with unprecedented levels of debt.1 The smart talk from the experts was that the legal economy was undergoing a fundamental restructuring.2
For these and other reasons, law schools were under fire, from both inside and outside of the academy. Judges-including the keynote speaker at the AALS conference himself!-derided legal scholarship as useless.3 Law school deans called the economics of law school increasingly unsustainable.4 Legislators and litigators alike were looking into what law schools said and did.5 Professors registered their alarm in high and low places.6
What many call the "law school crisis," and more than a few the "law school scam," managed to pierce the carapace of the AALS. A workshop on "the future of the legal profession and legal education" contained a number of panels whose descriptions promised "frank and open exchanges" about "the many interrelated issues raised by change in both the legal profession and legal education," and "how the current restructuring of law practice likely will affect the organization and economics of law schools."7
Yet, if there was an overall message conveyed by the conference, it was, in the words of Kevin Bacon's character in Animal House, "Remain calm! All is well!"8 It did not escape notice that the AALS rejected at least two proposals for so-called "hot topics" sessions devoted to financial aid and other issues surrounding law schools, concluding that "there was not a strong proposal for a session on the legal education crisis" while finding room for a panel on the U.S. Fish and Wildlife Service.9
Not coincidentally, public discussion of the law school "crisis" or "scam" reached its boiling point around the same time as the rise of the Occupy Wall Street movement and not long after the rise of its counterpart on the right, the Tea Party movement. All three phenomena sounded a distinct note of populism, and all were connected to the present economic doldrums. All three voiced complaints that predated the recession, and all three gener- ated calls for immediate action-usually more vague than specific. Finally, all of them spoke to a vision of a divided society, one nicely captured by the meme of the "1 percent" versus the "99 percent."10 Some elite group- bankers, incumbent politicians, law schools-had managed to enrich itself at the expense of a suffering majority. A reckoning was due.
Popular dichotomies such as the "1 percent" versus the "99 percent," however, are often unclear about what how to define the divide and who falls within which group. In the political realm, the question is whether the division is class-based-whether it involves a simple distinction between the wealthiest and everyone else-or culture-based, involving divisions between "Wall Street" and "Main Street," the elite and the common man, the lattesipper and the beer-drinker, and so on.
Something of this vagueness is also present in debates over what ails the law schools. Is the problem structural and economic-a problem of debt, tuition, and job scarcity, exacerbated by a lack of transparency on the law schools' part? Or is the problem what law schools do, particularly their failure to produce students who are educated in the actual practice of law rather than in airless theorizing about "the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria?"11
Many critiques of law schools focus on either economic or culture-war explanations. …