The NY Times reports in its blog today on a forthcoming book on he failures of law schools that is likely to keep the debate alive.
That at least is the story told in a book to be published later this year, “Failing Law Schools,” by Brian Tamanaha. Tamanaha is a law professor, a former law school dean, a prolific legal theorist and, by his own account, a malefactor who in the past did some of the things he now criticizes. Having seen the light, he feels compelled to spread and document the bad news.
The key not-so-new thought is “differentiation,” the idea that some law schools, those at the high end, should focus on research, while others should focus on training for practice.
And the solution? In a word, differentiation. Don’t let the A.B.A. and U.S. News call the tune. Instead, take a good look at the educational landscape, at the market, at the costs, at the demographics and come up with a flexible system that matches law school graduates to needs: “Research oriented schools will remain as they are. Practice-oriented schools will be staffed by experienced lawyers; … research institutions will be staffed by scholars mainly engaged in research; other schools will be staffed by both types.” Different strokes for different folks.
This makes me both queasy and hopeful. Obviously we have differentiation already in terms of job options and likely salary, just not in pricing, so we have the worst of all worlds. But a split profession would lose a lot of value, appeal and effectiveness. Maybe we would be no worse, and better in some ways, so long as the differentiation did not extend to formal professional eligibly rules and a divided profession — although there would surely be pressure for that.
We certainly need lower cost educational models, and without them we will never have lower cost legal professionals or affordable access. In that sense it is not just the law schools, but the profession that is failing. Presume for differentiation of some kind, either by allowing non-lawyer practice, or by developing systems of less theoretical and more practical legal education, can only grow.