In a short essay in the UCLA Law Review online supplement, lawprof Jay Sterling Silver argues that the status quo of legal education is in the public interest. Silver’s essay responds to Brian Tamanaha’s critique of legal education, in which Brian looks for ways that law schools could reduce costs — such as by having higher teaching loads and more practice-oriented teachers. Professor Sterling disagrees with Tamanaha’s proposals, and the most interesting part of his argument is that society benefits from the scholarly status quo because law professors today can “reflect on and identify abuses of power and solutions to perplexing social problems from the Archimedean point of the academy”:
As a wise colleague pointed out to me not long ago, “The legal professoriate develops suggestions for law in the common interest that are not produced by the powerful lobbies generating laws today. If we are reduced to teaching automatons, we would leave the field to those who buy their spokespersons.” Stripping law faculties of the time to contemplate the weaknesses of the law and the injustices of the legal system, and discarding the tenure necessary to instill meaning in the words “academic freedom,” reduces a vital social resource to a cog in the current structures of power. Under the guise of fiscal management, law professors willing to take on the wielders of power in the public and private sectors would be silenced.
I don’t find this argument persuasive. First, I’m not entirely sure what it means. Silver never says what it means to “take on the wielders of power.” Who are these wielders, and how do law professors take them on? Is that really the only goal of scholarship, and if so, how do we know if that goal is in the common interest or not? Even if we assume that law professors do this and it’s a good thing, we need to consider the cost and the options. Legal scholarship is expensive: Is it worth the cost? If we see scholarship as “buying” a specific kind of scholarly output, is the status quo of tenure, high pay, and low teaching loads for every law professor the most effective way to achieve it? Many people who are not tenured law professors teaching a relatively light teaching load manage to reflect and provide solutions to perplexing social problems. Many do so better than law professors. And many (most?) people who are tenured professors never do much in the way of trying to solve important societal problems at all. Is the current approach really the best way to foster the best kind of scholarship, however we want to measure that?
As readers know, I think legal scholarship can be extremely valuable and worthwhile. Brian Tamanaha thinks so, too. But making the case that the status quo is the best possible world requires more than just patting ourselves on the back about how society is very lucky to have us.
Civil comments only– thanks.