Brian Leiter's Law School Reports

Brian Leiter
University of Chicago Law School

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Saturday, August 3, 2013

Curious and misleading "defense" of Tamanaha by one of his colleagues at Wash U

I find it hard to believe that the author of this "defense" expects to be taken seriously given that he just makes so many things up.  Prof. Rosenzweig writes, regarding Failing Law Schools [FLS], that, "Tamanaha has made an  invaluable contribution to the academic literature and to the betterment of the world. The posting of the Simkovic & McIntyre paper should provide the opportunity to make this clear. That it has led to the exact opposite by some in the legal community has proven  distressing."   Prof. Rosenzweig is, remarkably, completely silent on how Tamanaha's own hostile and careless response to the Simkovic & McIntyre paper triggered the need for a systematic response by the authors to address Tamanaha's misrepresentations and mistakes.  I assume Tamanaha responded as he did because he recognized that the Simkovic & McIntyre paper undermined his posture in FLS. 

Even more strangely, Prof. Rosenzweig writes:

Let us recall what the state of the debate about the future of legal education looked like prior to the publication of FLS. Law “scam” blogs accusing law schools and law professors of exploiting students, a “cesspool” of threats and slurs, anonymous posts making scandalous and vicious  personal attacks on individual law school faculty members, and public statements by law schools, faculty, and the ABA making it appear as if the entire legal community was oblivious to the crisis facing students graduating law school during that period.... 

Look at the state of the debate after the  publication of FLS. Almost all public statements on the issue are now clearly attributed to their authors. Academics publicly publish data under their own names. I am assuming, since it is cited in the paper, that FLS in part led Simkovic and McIntyre to pursue their project in the first place. In other words, FLS has done precisely what the highest and best scholarship can and should do – it increased the amount of knowledge in the world at the time, led to a better and more informed debate, and began the process of replacing emotion and opinion with facts and analysis.

I must say this is pure fiction from top to bottom.  It omits, for example, the active role that Tamanaha played in legitimating a number of deranged "scam" blogs that were, and are, still "'cesspools' of threats and slurs" with "anonymous posts making scandalous and vicious personal attacks on individual law school faculty members."  (If anything, they've gotten worse since Tamanaha's book, and are even more visible.)  He did this by referencing them favorably in his book and, more remarkably, by sometimes posting encouraging comments on some of them.  For this alone, he would deserve condemnation by his professional colleagues, even before we get to the damage done to the debate through the carelessness of significant parts of Failing Law Schools (some of that has come out in the recent debate, but when the detailed review of the book, and its reckless allegations, by Simkovic & McIntyre goes on SSRN, this will be clear to all).

But I do agree with Rosenzweig, as I said previously, that FLS collects good anecdotes, has an interesting (and unflattering) history of the regulation of law schools, and sensibly recommends a lighter regulatory hand to permit more experimentation with models of legal education.  Its anecdotal approach to systematic issues, however, has seriously distorted the discussion of those issues, as the Simkovic & McIntyre paper makes clear. 

I note, finally, that Prof. Rosenzweig, like so many, doesn't know the meaning of ad hominem.  Prof. Simkovic was the victim of many ad hominem smears after his paper came out; Prof. Tamanaha has been spared them entirely.

UPDATE:  Paul Horwitz (Alabama) has found a nice example of the "state of the debate" after Tamanaha's intervention--this from a "scam" blog on which Tamanaha has posted encouraging comments, I should add.

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