Since Annette Clark’s abrupt resignation the week before
last, things have been frenetic here at SLU.
Within 24 hours, the university appointed an interim dean, Tom Keefe,
who brought three new variables to the equation (in addition to those leading
up to the resignation), namely: 1) the perspective of a successful, practicing alumnus,
2) the perspective of a longtime donor, 3) Brian Tamanaha’s new book.
Barring some already uncanny connections (Tamanaha also shocked
faculty when he was unilaterally appointed interim dean by the President of St.
Johns in 1998; Tamanaha’s predecessor at St. Johns, Rudy Hasl, had previously been
Dean at SLU), our interim dean recently read Failing Law Schools … and liked it.
Oh shit.
Brian’s sacred cow killing polemic boasts a new convert …
and soon they’ll be lunching. Now
what? For those of us scrambling to keep
things afloat here, what began as an ugly dispute between the Dean and the
President is now morphing into something very different, a Tamanaha-esque audit
of legal education in its current state, including questions about tuition, faculty
resources, and the merits of scholarship.
For anyone who hasn’t read the book, Tamanaha’s argument is basically
that law school faculties at non-elite schools, together with the ABA and US
News, have distorted the market for law school, pushing everyone to endorse a
scholarship model that results in high salaries for inexperienced professors
along with excessively high tuition for students, and a de-emphasis on
practical skills training. The solution,
argues Tamanaha, is for law schools to adopt a tiered approach, with elite
institutions like Wash U continuing along the scholarly model and non-elite
schools like SLU adopting a low tuition, practical skills approach.
How convenient.
For me, the implications are profound. If SLU is to focus simply on doctrinal
courses and clinical work, why offer a legal history survey? I asked Tamanaha about such inter-disciplinary
fluff last year and he seemed ambivalent. What was then an academic question
is now, ironically, practical.
To that end, I have decided to do what I can to save legal history at
SLU … and to engage Keefe on the merits of Brian’s claims. It hasn’t been easy. In 187 concise pages, Tamanaha makes a
convincing case that legal education is "failing society." To his credit, few can deny that US News has
distorted incentives, that tuition has grown too fast, and that the ABA has inhibited market
innovation. Yet, the question remains
whether faculty scholarship per se is part of the problem. For example, many of our best scholars
at SLU are also our best teachers – as indicated by their student-generated
teaching evaluation scores. One reason
for this, I suspect, is that faculty scholarship actually enhances classroom
teaching, making it interesting and fresh – very different from classes where
faculty continue to use casebooks from 1982.
Finally, our most successful program here at SLU is the Health Law
Center, a heavily
inter-disciplinary program that has been built, in large part, on
scholarship. Why not encourage non-elite
schools to pursue similar niche topics? Why
not measure faculty productivity by linking scholarship to teaching scores?
More problematic is Tamanaha’s point about the relationship
between faculty salary and tuition. Here, his data is hard to refute. Currently, faculty
salaries constitute the primary expense at law schools, and a direct obstacle to
lowering tuition. Further, lowering
tuition is important, particularly for non-elite schools. If SLU could lower its tuition by 5 or 10K,
for example, we could ease debt burdens for students and successfully
out-compete peer institutions, arguably remaining viable even in the worst of market
conditions. However, it is not clear to
me that faculty scholars should be the first to go.
Rather than punishing productive faculty who are out-performing in both
teaching and scholarship, it seems to me that the primary problem (and cost),
are under-performing faculty who have given up on scholarship, lost interest in
teaching, and taken up novel writing. On
this point, the mysterious missing topic in Tamanaha’s book is post-tenure
review. Why? Brian alludes to his frustration with
non-productive, absent faculty in his prologue, but then drops the subject.
