Revisiting Brian Tamanaha’s “Failing Law Schools”

When I first read Brian Tamanaha’s Failing Law Schools (Chicago 2012) I thought it contained some mildly interesting anecdotes about the troubled economy’s impact on higher education thrown together with some decade old memories Tamanaha had of his first law school, the then-languishing St. John’s University in New York. But the book hardly seemed to justify the attention it was garnering.

It became clear to me, though, that a mini-industry was being created – by class action lawyers, naive young law school graduates and a handful of opportunistic legal education reformers – to push Tamanaha’s agenda of weakening tenure and attacking the important role that the autonomous law school has in the university environment. I realized then the book merited closer attention. I wrote an essay that examined the logic of the Tamanaha argument, placing it in the context of the wider debate about the rule of law itself, a subject that had originally established Tamanaha’s reputation. It is almost certainly the case that that prior reputation is a significant factor in the weight that Tamanaha’s decision to join the anti-law school campaign carries.

Unfortunately, my closer read of his book led to my conclusion that Tamanaha had not done the necessary “careful econometric analysis” to assess properly what had caused the volatility in the legal market but instead relied on “broad-brush statistical material and anecdotal information.” This approach did not sustain Tamanaha’s conclusion that law schools were responsible for the bubble in enrollment that followed the economic downturn of the mid-2000s.

Yet, the inevitable bursting of that bubble led the anti-law school mini-industry to argue, with a straight face, that law schools are to blame for the impact on legal employment rather than the worst economic downturn the world has experienced since the 1930’s.

I had hoped to engage Tamanaha in first hand discussion about his book, but within a short time after my review was posted on SSRN he cancelled his long planned visit to our law school to discuss the book. In the meantime he traveled to the conservative Cato Institute, financed in part by the Koch Brothers, where he was celebrated as the “good cop” of law school reform (as opposed to the so-called “bad cop,” namely, another less well known law professor in the anti-law school camp whose demeanor is distinctly less temperate than the usual style of Tamanaha). Cato, of course, proudly attacks teacher tenure and higher education whenever it gets the chance.

It is fortunate, then, that two scholars who have done very careful empirical work on the value of earning a JD, Michael Simkovic of Seton Hall (Law) and Frank McIntyre of Rutgers (Business), have now turned their attention (here) to Tamanaha’s book. It is not likely, of course, that Tamanaha will be willing to engage in serious debate with these authors. Their original work on the positive net present value of a JD (explained here) across the income spectrum of law degree holders caused Tamanaha to engage in a series of vituperative and arguably irrational attacks on their solidly presented data. The original paper, “The Economic Value of a Law Degree,” can be found here. Simkovic recently presented the paper at Berkeley Law and a video of his talk can be seen here. I summarized the paper’s key findings here.

While the Simkovic/McIntyre research largely closes the debate about the value of a JD, it is nonetheless useful to have them weigh in on the original manifesto for the anti-law school campaign. The abstract for Simkivic and McIntyre’s review reads:

The review focuses on problems with empirical claims in “Failing Law Schools” regarding outcomes for law graduates and also regarding law faculty compensation. The review also discusses Professor Tamanaha’s proposals for reform of legal education in light of economic theory and the empirical economics literature, and finds reasons to doubt that Tamanaha’s proposed reforms will have the effects he predicts.

I am pleased to see that their review confirms my original argument about the weak empirical basis for Tamanaha’s book. They note many of the very basic mistakes that Tamanaha made, including:

  • using the earnings of very recent JD graduates to drive a conclusion that the JD is not worth it although this greatly understates lifetime earnings for JD holders
  • misstating the conclusions of his own sources about the increase in JD holders salaries throughout their careers
  • using inconsistent assumptions about age, experience, work status and the definition of earnings to sustain his claim that JD holders do earn enough to justify the expense of pursuing the degree (the result is Tamanaha compares top earning BA holders with the lowest cohort of JD holders)
  • citing one key study to support some of his claims but ignoring the same study when it contradicts his claims (e.g., when the study concludes that debt loads of JD earners are sustainable and do not interfere with important life choices like when to purchase of a home or start a family)
  • overstating how well law professors are compensated relative to lawyers (in fact, across the distribution law professors earn less than practicing lawyers, undermining the patently absurd and self-serving claim by some in the anti-law school movement that law professors are “rich”)

One of the more important aspects of Tamanaha’s book – overlooked by some – is his call for a weakening of tenure standards. He has now, sadly, been joined in this call by some within the ABA which accredits law schools. Thus, it is welcome that Simkovic and McIntyre take the time to point out that tenure has an inherent value to the American law school including a basic economic rationale that reinforces its importance. It is simply not the case that ending tenure has any rational link to solving the problems of supply and demand for lawyers in the wider economy.

The authors conclude by once more, calmly, calling for constructive reform based on good data. That data makes it clear the JD has real value (a present value of $350,000 at the low end and more than a million dollars at the high end).  Sadly, many in the anti-law school camp have been unwilling to respond in kind. Thankfully, reflected in the reception accorded Michael Simkovic at Berkeley recently, most law schools – deans, faculty and alums together – remain committed to responsible reforms that are consistent with the core principles of academic freedom and tenure that have been central to the stunning and progressive success of the American university system.