Balkinization - Brian Leiter's Law School Reports -...
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Balkinization Front page Balkin.com Balkinization an unanticipated consequence of Jack M. Balkin Email: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Bernard Harcourt harcourt at uchicago.edu Scott Horton shorto at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman marty.lederman at comcast.net Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at princeton.edu Rick Pildes rick.pildes at nyu.edu Alice Ristroph alice.ristroph at shu.edu Brian Tamanaha btamanaha at Tuesday, July 30, 2013 Leiter's Contradictory Conclusion Brian Tamanaha Typical Brian Leiter. He cannot just say why he thinks you are wrong: he sets out to destroy you, ruin your credibility and reputation, and grind your face in the dirt. Leiter says I owe the world an apology—that I must abase myself and do public penance for writing Failing Law Schools—because Simkovic and McIntyre’s (S&M) study has definitively proven me wrong. Remarkably, for all his bluster, when Leiter lays out “what I think we know and don't know,” he repeats one of my main objections to their study. Before getting to that, I feel compelled to say that I have long been anticipating his “destroy Tamanaha” assault for reasons entirely apart from the current debate over legal education. We have skirmished on various subjects over the past fifteen or so years, but my greatest offense is having the temerity to challenge his interpretation of the formalists and the realists —in particular my argument in Beyond the FormalistRealist Divide that the conventional story about the formalist age is a myth. Leiter alludes to this dispute in his post: “in the areas where I have expert knowledge, [Tamanaha’s work] has always been a bit notorious for its confusions and theoretical overreaching, especially in its desire to make startling claims, the evidence and the arguments be damned.” Leiter considers himself the world’s foremost authority on formalism and realism, so anyone who disagrees with him is obviously wrong. Thus it must come as some discomfort to Leiter that a major new historical study, David Rabban’s Law’s History , is consistent with my core argument that our conventional image of the socalled formalist age is false. Robert Gordon blurbs the book, “This is a pioneering study of American historical jurisprudence in the late nineteenth century. It is comprehensive, meticulous, and deeply learned….And it is eyeopening: the standard picture of this era's legal scholars as political reactionaries and abstract deductive 'formalists' cannot possibly survive this splendid and important book.” As for legal education, based upon a single study Leiter again leaps to judgment and condemns me in a vicious fashion. This debate assuredly has become tiresome for readers, so I will not rehash the details, but instead will briefly comment on his three basic statements about what we know from their study. 1. The vast majority of those who got a JD over the last two decades are better off, financially, than similar individuals who stopped with the BA. S&M have issued a torrent of words in response to my various criticisms, but what they have not justified is their earnings comparison between the bottom 25th percentile law grads and the bottom 25th percentile bachelor’s holders. This flies in the face of their finding that law grads are above average in GPA’s and test scores, in wealth, in quality of undergraduate college, etc. If we believe that 25th percentile law grads, had they not gone to law school, would likely have been as successful as median bachelor’s holders, their conclusion fundamentally changes. 2. We don't know if other postgraduate degrees are more worthwhile, financially, than the JD; Simkovic & McIntyre did not attempt to address that systematically. Correct. 3. We don't know if the economic pattern for JDholders will hold for the future, though Simkovic & McIntyre adduce some evidence that it will. Correct. This is a stunning statement to read, after the opprobrium Leiter heaps on me, since this is this precisely what I have been arguing. Books by Balkinization Bloggers Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) 9 Share More Next Blog» Create Blog Sign In
Transcript of Balkinization - Brian Leiter's Law School Reports -...
Balkinization
Front page Balkin.com
Balkinization an unanticipatedconsequence of Jack M. Balkin
Email: Jack Balkin:jackbalkin atyahoo.com Bruce Ackermanbruce.ackerman atyale.edu Ian Ayresian.ayres at yale.edu Mary Dudziakmary.l.dudziak atemory.edu Joey Fishkinjoey.fishkin atgmail.com Heather Gerkenheather.gerken atyale.edu Mark Grabermgraber atlaw.umaryland.edu Stephen Griffinsgriffin at tulane.edu Bernard Harcourtharcourt atuchicago.edu Scott Hortonshorto atlaw.columbia.edu Andrew Koppelmanakoppelman atlaw.northwestern.eduMarty Ledermanmarty.lederman atcomcast.net Sanford Levinsonslevinson atlaw.utexas.edu David Lubandavid.luban atgmail.com Gerard Maglioccagmaglioc at iupui.eduJason Mazzonemazzonej atillinois.edu Linda McClainlmcclain at bu.edu John Mikhailmikhail atlaw.georgetown.edu Frank Pasqualepasquale.frank atgmail.com Nate Persilynpersily at gmail.comMichael StokesPaulsenmichaelstokespaulsenat gmail.com Deborah Pearlsteindpearlst atprinceton.edu Rick Pildesrick.pildes at nyu.eduAlice Ristrophalice.ristroph atshu.edu Brian Tamanahabtamanaha at
Tuesday, July 30, 2013
Leiter's Contradictory Conclusion
Brian Tamanaha
Typical Brian Leiter. He cannot just say why he thinks you are wrong: hesets out to destroy you, ruin your credibility and reputation, and grind yourface in the dirt. Leiter says I owe the world an apology—that I must abasemyself and do public penance for writing Failing Law Schools—becauseSimkovic and McIntyre’s (S&M) study has definitively proven me wrong.Remarkably, for all his bluster, when Leiter lays out “what I think we knowand don't know,” he repeats one of my main objections to their study.
Before getting to that, I feel compelled to say that I have long beenanticipating his “destroy Tamanaha” assault for reasons entirely apart fromthe current debate over legal education. We have skirmished on varioussubjects over the past fifteen or so years, but my greatest offense is havingthe temerity to challenge his interpretation of the formalists and the realists—in particular my argument in Beyond the FormalistRealist Divide that theconventional story about the formalist age is a myth. Leiter alludes to thisdispute in his post: “in the areas where I have expert knowledge,[Tamanaha’s work] has always been a bit notorious for its confusions andtheoretical overreaching, especially in its desire to make startling claims, theevidence and the arguments be damned.”
Leiter considers himself the world’s foremost authority on formalism andrealism, so anyone who disagrees with him is obviously wrong. Thus it mustcome as some discomfort to Leiter that a major new historical study, DavidRabban’s Law’s History, is consistent with my core argument that ourconventional image of the socalled formalist age is false. Robert Gordonblurbs the book, “This is a pioneering study of American historicaljurisprudence in the late nineteenth century. It is comprehensive, meticulous,and deeply learned….And it is eyeopening: the standard picture of this era'slegal scholars as political reactionaries and abstract deductive 'formalists'cannot possibly survive this splendid and important book.”
As for legal education, based upon a single study Leiter again leaps tojudgment and condemns me in a vicious fashion. This debate assuredly hasbecome tiresome for readers, so I will not rehash the details, but instead willbriefly comment on his three basic statements about what we know fromtheir study.
1. The vast majority of those who got a JD over the last twodecades are better off, financially, than similar individuals whostopped with the BA.
S&M have issued a torrent of words in response to my various criticisms, butwhat they have not justified is their earnings comparison between the bottom25th percentile law grads and the bottom 25th percentile bachelor’s holders.This flies in the face of their finding that law grads are above average inGPA’s and test scores, in wealth, in quality of undergraduate college, etc. Ifwe believe that 25th percentile law grads, had they not gone to law school,would likely have been as successful as median bachelor’s holders, theirconclusion fundamentally changes.
2. We don't know if other postgraduate degrees are moreworthwhile, financially, than the JD; Simkovic & McIntyre did notattempt to address that systematically.
Correct.
3. We don't know if the economic pattern for JDholders will holdfor the future, though Simkovic & McIntyre adduce someevidence that it will.
Correct. This is a stunning statement to read, after the opprobrium Leiterheaps on me, since this is this precisely what I have been arguing.
Books by Balkinization Bloggers
Stephen M. Griffin, Long Warsand the Constitution (HarvardUniversity Press, 2013)
Andrew Koppelman, The ToughLuck Constitution and theAssault on Health Care Reform(Oxford University Press, 2013)
James E. Fleming and Linda C.McClain, Ordered Liberty:Rights, Responsibilities, andVirtues (Harvard UniversityPress, 2013)
9Share More Next Blog» Create Blog Sign In
btamanaha atwulaw.wustl.edu Mark Tushnetmtushnet atlaw.harvard.edu Adam Winklerwinkler at ucla.edu
The AntiTortureMemos: BalkinizationPosts on Torture,Interrogation,Detention, WarPowers, and OLC
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When stripped to its core, S&M’s argument is that the past generation of lawgrads (who entered law school in the 1970s, 1980s, and 1990s) reaped anearnings premium of “hundreds of thousands of dollars” at the 25thpercentile, and therefore, current law students will reap the same. If wedon’t know whether this pattern will hold, however, then how can they (andLeiter) express such confidence that people who chose to forgo law schooltoday are making a terrible mistake?
Leiter weakly papers this over by saying S&M “adduce some evidence” thatthe pattern will continue. But we must not forget that their study omits thedismal results suffered by law grads from 2009, 2010, 2011, 2012, 2013, andcounting. (That’s about 200,000 new law grads not captured in their study.)And lots of people, including managing partners of law firms, have expressedthe view that the legal job market is undergoing a fundamental transition.The bottom line is that we don’t know. So how can Leiter condemn me forbeing wrong when the ultimate answer turns on this unresolved question?
Fighting with Leiter is a losing proposition, so I will stop with a finalcomment. As he often does, Leiter quotes an email from an anonymouscolleague who supports his position. I get lots of supportive emails from lawprofs, including some that make unflattering observations about Leiter, whichI will not reprint. But I must say I laughed when I read Leiter’s unnamed professor remark thatI was defending a “profitable franchise.” This enterprise has been anythingbut “profitable” for me. I have vowed to donate all proceeds from the bookto student fellowships, and so far given much more to this than the royaltiesI have received. On top of that, I have offended many colleagues acrosslegal academia. This book has been a professional disaster for me, as Ianticipated it would be. And Leiter is doing his utmost to make sure of it.
Posted 4:12 PM by Brian Tamanaha [link]
Comments:
Two brief comments:
(1) David Rabban shares my view of your book on the realistformalist divide. You aremisrepresenting the content of his recent work.
(2) My doubts about your book on the realistformalist divide were set out in detailhere:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646110.# posted by Brian Leiter : 4:58 PM
This comment has been removed by the author.# posted by Zach Biskup : 5:01 PM
Nobody in the world except academics cares about the formalistrealist or realistformalist divide.# posted by Doug Richmond : 7:26 PM
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