Failing Law Schools by Brian Z. Tamanaha (review)

Most professors are blissfully unaware of recent structural developments that literally threaten the college enterprise. Such cannot be said of Professor Brian Z. Tamanaha, whose apocalyptic book Failing Law Schools is a shrill call to arms, a substantial work of powerful charges and dire solutions, well-written and arriving at a crucial time in legal education in the U.S. and worldwide. Although I believe he holds powerful diagnostic skills and has a storyteller's narrative, I also believe his solutions are substantially wide of the mark and would violate the code that remedial actions should, at the least, do no harm. If he were simply overstating issues or being a provocateur for the sheer sake of being one, I would simply let him stew in his own juices. But his devastating critique has a number of accurate observations, ones I share, so laying out his arguments and his critical architecture is necessary to see how the analytic second step—his remedies—can be so wrong.

There is a surprisingly large body of study in legal education—most, but not all of it, by legal scholars. And there is a remarkable convergence on what the major issues and problems are. A number of states, faced with ruinous economic conditions, are reducing their subsidy to public collegiate institutions. This development and the rising cost of private education have meant that it is harder to finance education without resorting to substantial student debt burdens. Many students already arrive at law schools with large financial obligations and compromised creditworthiness. Some states have privatized their public law schools, rapidly increasing the tuition prices. Private law school tuition costs have continued to outstrip the consumer price index. Both these features have meant that law student debt loads have also increased substantially. Professor Tamanaha is at his best in chronicling these developments, carefully laying out the way that debt issues arose and giving examples of the extraordinary amounts being incurred by the increased costs of legal education—ones that have affected students at all levels of law schools.

And he lays this dire assessment at the feet of the requisite ABA accreditation process, which he feels forces law schools to meet higher (and more expensive) standards: "Now, however, students must pay a premium that attaches to accreditation, not just because it costs more to run an accredited law school but also because the market-based tuition price of an accredited law school is at least $10,000 higher than an unaccredited school" (p. 19). Even while thoroughly noting and critiquing these contrasting differences in law schools, at the same time, he develops a major premise that the accreditation process flattens them and requires a cookie-cutter accreditation regime, one that is too costly and borne largely by students: Proposals to loosen some of the important ABA standards "would allow . . . greater flexibility and variation among law schools" (p. 31). If there is a single point at which his logic fails, one need look no further than these mutually exclusive assertions about the variability of the 200 or so U.S. (ABA-accredited or provisionally-accredited) law schools and the accreditation provisions that have enabled so many styles and approaches to flower and bloom, looking nothing at all alike.

Professor Tamanaha does provide a useful service in his substantive analysis of enrollment and application data, perhaps the most detailed and balanced exposition of any single issue in this complex book. He believes that the number of qualified law school applicants will shrink, due to what he believes will be the declining market for lawyers, and that the entire apparatus will fall down, due to the inability of these graduates to support their loan debt loads. Every institution has its own admissions trajectory and narrative, and there have been years where schools defied gravity—and there will be years where they return to earth. In addition, these national aggregate data are very volatile and cyclic. There are many interlocking features to...