Brian Tamanaha's Revenge • TaxProf Blog

Following up on my recent posts (links below) on the turmoil at St. Louis over the abrupt resignation of Dean Annette Clark and the naming of local practitioner Tom Keefe as Interim Dean: Anders Walker (Associate Dean for Research and Faculty Development, St. Louis), Tamanaha's Revenge:

[O]ur 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. … 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. …

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. … 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.