Candor and the Politics of Law Teaching

Yale Rev. L. & Soc. Action, 1970

2012

Brian Z. Tamanaha’s book, Failing Law Schools, asserts and echoes criticisms of U.S. legal education, calling for the end of the required third year and of scholarly model of law teaching. In this book review, Steve Sheppard reads the historical record and statistical data and contends that Tamanaha’s arguments from history and policy fail. Sheppard charges Tamanaha with incomplete historical analysis, which leads to misleading conclusions. Specifically, the article details how Tamanaha’s acontextualism, analytical gaps, trouble with sources, and unsupported rhetoric lead the author to advocate remedies that fail to resolve real problems facing legal education. Sheppard provides data and history that are essential to a more contextual picture. The article concludes by explaining how Tamanaha’s proposals would harm not only law schools but also society at large, among other concerns, by limiting the quality of legal education available to the poor and the quality of the lawyer who wo...

H-Net Reviews, 2013

"Brian Z. Tamanaha’s book, Failing Law Schools, asserts and echoes criticisms of U.S. legal education, calling for the end of the required third year and of scholarly model of law teaching. In this book review, Steve Sheppard reads the historical record and statistical data and contends that Tamanaha’s arguments from history and policy fail. Sheppard charges Tamanaha with incomplete historical analysis, which leads to misleading conclusions. Specifically, the article details how Tamanaha’s acontextualism, analytical gaps, trouble with sources, and unsupported rhetoric lead the author to advocate remedies that fail to resolve real problems facing legal education. Sheppard provides data and history that are essential to a more contextual picture. The article concludes by explaining how Tamanaha’s proposals would harm not only law schools but also society at large, among other concerns, by limiting the quality of legal education available to the poor and the quality of the lawyer who would serve the poor and the middle class."

This is a paper written in response to Professor Brian Tamanaha’s Failing Law Schools. Much of the book is laudable for highlighting the serious structural, policy, and moral issues confronting legal education today. However, I disagree with several of Professor Tamanaha’s ideas for reforming our system. In this paper, I write from the perspective of a tenured legal writing professor teaching at a for-profit fourth tier school, in fact, one of the schools that Professor Tamanaha repeatedly implies are the problem and not the solution for the legal education crisis. Part One addresses the idea, which dates back to 1921, that students at lower-tiered schools should be able to receive a different education (impliedly lower quality) than those students matriculating at higher ranked schools. Part Two counters Professor Tamanaha’s dichotomous view of legal scholarship and teaching, arguing that scholarship and legal theory carry a unique practical value for students, particularly in the context of a non-elite legal education. Part Three considers Professor Tamanaha’s puzzling claim that clinical faculty and legal writing faculty must accept less job security and unequal pay in order to help save legal education. Part Four of this paper presents an alternative explanation as to why students might choose to attend law school, even with the deep economic hardships involved. In terms of the continuing value of the J.D. degree, both Professor Tamanaha’s narrow economic analysis and the predominant counterarguments (e.g., you can do anything with a law degree!) miss the point that, for many, a law degree carries cultural value that operates apart (but sometimes in tandem) with economic capital. The idea that we should impose restraints on the ability of students to obtain a law degree, if they so choose, is somewhat paternalistic and at odds with the free market aspects of his analysis. The paper concludes by briefly developing social policy arguments that explain why we must work on reducing the institutionalized elitism that afflicts the legal profession and its educational system. Legal education must be reformed. But my suggestion is that we look for ways to make it better—less elitist and less hierarchical—as well as cheaper.