Brian Tamanaha's recent article can be summarized (very roughly) as follows: 1) Many legal academics are left-leaning and are nominally concerned with inequality and protecting the downtrodden; 2) Few leftists, including those who have urged "resistance" to the hierarchical nature of legal education in the past, protested as law schools persisted in raising tuition, which has exacerbated inequalities within the profession, turned students away from public interest, and contributed to the lack of access to affordable legal services; 3) In Tamanaha's words: "Seduced by the allure of prestige and material comforts, Crits and progressive law professors have become part of the system they set out to reform."
As a left-leaning newcomer to legal academia (I was a fellow when Tamanaha first started writing about these issues on Balkinization), perhaps I am not the target audience for Tamanaha's call for "critical self-reflection." Nevertheless, in my view, his focus on law professor complicity, while undoubtedly appealing to many disenchanted law school graduates, is ultimately a distraction from more significant problems that plague not only legal education but higher education generally.
Tamanaha is undoubtedly correct that high tuition has had many negative consequences on law school graduates. The connection between high law school tuition and lack of access to legal services is less clear to me given the longstanding nature of the problem (as I have maintained previously). I also think Tamanaha is wrong to claim that high law school tuition disincentivizes law school graduates from taking public interest jobs. There a number of reasons why one might prefer public interest work, not the least of which is the possibility of having one's student loan debt forgiven after ten years. Tamanaha's article acknowledges that there is high demand for public interest jobs and mentions federal student loan forgiveness programs but does not fully consider the extent to which these programs make public interest careers more appealing than they otherwise would be. He neglects entirely the role of the academy in advocating for loan forgiveness programs.
Tamanaha's primary complaint against leftist law professors is that they did not engage in "collective resistance" to prevent tuition increases. Of course, Tamanaha cannot know what actions individual law professors undertook at their institutions. Moreover, not all law schools charge excessive tuition. Some that would appear to do so may not when compared to the expected rate of return on the degree or when scholarship dollars are considered. I am also skeptical that "collective resistance" would have produced meaningful change because many universities are operating with diminished resources and have historically used law school tuition dollars to support other programs.
Let's assume that law professors had succeeded in freezing tuition at all of the nation's law schools prior to the recession, however. This would have somewhat eased the plight of law school graduates, but it would not have changed their employment prospects. In fact, freezing or capping tuition might have led more students to enroll in law school during the recession and/or encouraged administrations to admit more students. These students would, of course, have been competing for jobs in a historically difficult market. Perhaps Tamanaha's view is that law school faculties should have fought for both tuition freezes AND smaller class sizes. The latter is hardly consistent with leftist goals such as lowering barriers for entry into the legal profession and expanding access to legal services.
The most controversial aspect of Tamanaha's article is his pointed criticism of prominent leftist law professors and groups. There is a rich history of leftists pointing out the hypocrisy (my word, not Tamanaha's) of other leftists, inside and outside of the legal academy. (My favorite work in this genre is G.A. Cohen's, "If You're An Egalitarian, How Come You're So Rich?"). But Tamanaha's vision of the typical professor's life likely rings true for only a small percentage of the professoriate.
Tamanaha also fails to explains why it is incumbent on a Harvard law professor such as Duncan Kennedy (criticized in Tamanaha's piece) to decry high tuition notwithstanding that Harvard Law students are not struggling compared to their brethren at other schools. Perhaps it is professors at lower-ranked schools who should have spoken out, even though they are generally compensated less, teach more, and their universities are far more dependant on tuition income? At no point does Tamanaha consider whether other reform efforts other than fighting tuition increases at law schools might allow leftist law professors to maintain their egalitarian bona fides.
I do agree with Tamanaha in one respect. Law professors were slow to recognize the plight of many of their students. In this regard, Failing Law Schools could be seen as an invaluable work of consciousness-raising. Vilifying leftist colleagues now that Tamanaha (along with others) has succeeded in bringing the reform of legal education into the forefront seems gratuitous. Perhaps worst of all, Tamanaha creates the misimpression that it is predominately pampered law professors that are standing in the way of affordable legal education. I do not know if Tamanaha actually believes this, but it certainly is a convenient narrative for those who would hasten the increasing corporatization of the nation's institutions of higher education.