Barbarians inside the gates

rome2The Wall Street Journal reports here on a letter to the ABA (which sets accreditation standards for law schools) signed by what it describes as “academic heavyweights” endorsing law school reform. What seems to tie together this ideologically disparate group (the list includes “Crits” like Lawrence Friedman, liberals like Walter Dellinger, and “law and econ” figures like Richard Posner) is their uncritical adoption of the Campos and Tamanaha school of law school critique including a call for weakening of what they say are the ABA’s “expensive” accreditation standards to encourage “diversity.”

Of course anyone paying attention to law school battles of the last 20 years will recall that some on this list only yesterday were complaining of too much diversity in law schools. And in fact if there is one thing the American law school has gotten right it is diversity, whether of the ideological, methodological, ethnic or gender variety. And despite what the letter implies, the diversity is structural as well, with a wide range of low and high cost options available for students.

But the slightly hidden gem in the letter is their apparent endorsement of what is at the heart of the “good cop/bad cop” show (as they were introduced at the Cato Institute recently) put on by Tamanaha and Campos: the weakening of tenure and therefore academic freedom and faculty’s role in shared governance of the university. As I explain in my review essay on Tamanaha’s book, Failing Law Schools, a central plank of his proposal to reform law schools is the elimination of tenure as a requirement for accreditation.

Tamanaha falsely claims this is a critical step to unleashing diversity in law schools. He provides no evidence of how this could be true (or how tenure undermines diversity), fails to examine the rich diversity already present in law schools and ignores the important protections that tenure provides to those attempting to conduct research and engage in teaching on controversial, and therefore inherently diversifying, ideas.

The letter claims, as does Tamanaha, that the current accreditation standards are “expensive.” There is no basis to think this is true, and it has not stopped the creation of a wide variety of law schools already, from those that are able to pay professors $300,000 a year down to those that pay them $75,000 per year.

In fact, tenure has been a stable part of the university environment for many decades, long before the very recent increase in the cost of law school. The lack of correlation is notable given the emphasis on economic analysis in a letter titled: “the economics of legal education.” Despite the presence on the list of several people who claim some familiarity with economics, they do not seem to have thought very carefully about this lapse.

As I have pointed out here several times law school faculties engage in frequent and careful, even exhaustive, internal debate about the proper balance between cost and revenue generation. These debates result in frequent changes to the way law schools work. I think the current cyclical downturn in the economy represents a good chance to think about new ways to improve law schools such as the adoption of MOOC-like courses to save costs and free up faculty time for research. I outline several other ideas in my essay on Tamanaha.

But the signatories of this letter would seem to wish to go far deeper: by addressing themselves to the ABA and raising the canard that universally recognized accreditation standards like tenure are too expensive, they undermine the integrity of the law school itself. It is remarkable how only a few years ago these “academic heavyweights” in law schools were fighting for recognition as academics by their social science and hard science colleagues. Now they seem content to return law school to its early 20th century place as a mere trade school.

The barbarians are not just at the gates, they are inside the compound.