ONE OF THE truly great and unique creations in higher education, the American law school, is in trouble. But before we get to that, let us acknowledge what makes the American law school so special. While in the rest of the world, law schools mostly house scholars focused either on theory or on practice, the American law school bristles with scholars focused on both. Law professors achieve professional success by publishing brilliant theories in scholarly journals, but also by translating their ideas into briefs, magazine articles, or laws. The American law school stands out not just for the professors but also for the students: for the past seventy-six years, every presidential election has featured either a presidential or a vice-presidential nominee who was at one point in time a law student. But after a century of mainly positive attention, law schools are now making news with something else: the existential crisis they face.
Brian Tamanaha’s book is the best analysis yet of this crisis. American law schools are, as the title of his book says, simply “failing.” They offer only a one-size-fits-all law school education that does not teach many law students what they should learn and is also incredibly expensive. If we are to save one of our cherished American institutions, we must take Tamanaha’s concerns to heart.
The problems affect almost all law schools because law schools are required to be more similar to one another than different. There are at least two major reasons for this. First, the American Bar Association (ABA) decides which law schools can be accredited, and it requires that law schools primarily employ tenured or tenure-track professors. Sixty-five percent of professors in American universities are employed in positions not eligible for tenure, but any law school that tried to match that proportion could lose its accreditation. As a result, law schools shoulder the cost of a permanent crop of highly compensated professors. Law schools also lose the flexibility to shuffle professors in and out as pedagogical and scholarly needs change.
Second, like the accreditation rules, the primary rankings system for law schools—U.S. News & World Report—uses the same criteria to evaluate all law schools. If a school’s ranking drops, faculty and alumni will be deeply unhappy, the school will attract worse students, and the students it does attract will have a harder time finding employment after graduation. Indeed, Tamanaha notes that “[m]ultiple deans have resigned after a drop in rank.” Fear of a ranking drop inhibits law schools from experimenting to serve their precise student population and instead forces law schools to direct resources to what the rankings value.
This would all be very disturbing to anyone who works in legal education, and just mildly distressing to any observer, were it not for the fact that the consequences go beyond the legal academy. Tamanaha argues that tuition and the federal government are paying the price. Tuition at public law schools increased 200 percent, and at private law schools by 179 percent, throughout the 1980s. In the 1990s, law student debt quadrupled. Meanwhile, the job market for lawyers has contracted dramatically, and without any immediate prospect for improvement. In this climate, lenders might be less inclined to lend—except that the federal government has emerged as a major enabler. If your income is meager enough to make it difficult for you to pay back your law school loans, your monthly payment will be lowered, and the federal government will help. After twenty-five years for most lawyers and ten years for those working in public-service jobs, any remaining law school loan balance will be forgiven—paid for by the federal government and the American taxpayer. (This applies to some other professionals, as well, like doctors, but lawyers, on the whole, are the professionals who face the hardest time paying back their rising debt.)
Tamanaha’s solution is to encourage “greater flexibility and variation” that permits law schools to be “differentiated” in the same way that universities are. More variety among schools would hopefully mean that students would pick the school that would best equip them for life after law school. But there are reasons to doubt that this could happen to the degree we might want. First, some students still might make unwise choices. Second, law schools will struggle to diversify. The problems with legal education are as much about fundamental features as they are about an accreditation rule here or a rankings system there.
On the student side, law schools and the legal community convey that the status of the school is quite important, and students are already inclined to believe this. Enrollment choices are therefore too often made according to marginal differences in the status of the school rather than on the quality of the educational product and the cost at which it provides it. This seems unlikely to go away immediately in Tamanaha’s proposed scenario.
Let us suppose that Tamanaha’s reforms work, and law students could then choose to attend a cheaper, local, more practical law school that sends its graduates into solid local legal jobs. Many law students will still choose a marginally more expensive, national, and theory-focused law school, even if that school only offers a moderately—or even worse—chance of solid employment after graduation. The economic argument for the cheaper school might even cut against it: the lower cost might be seen as a signal of lower educational quality, and the greater chance of placement in lower-paid local legal employment might be seen as a signal of worse post-grad prospects than the (much smaller) chance of placement in a higher-paid national legal position at the more expensive school.
On the law school side, reform will not be universally welcomed: years of large revenue surpluses and prominent and savvy faculty have provided law schools with a degree of autonomy within the larger university and a strong culture of self-government. Major changes to law schools at many universities will have to be supported by the faculty. With a lifetime job contract, what incentives will law professors have to change a system that so many of them have thrived under for so long?
Law professors are a special breed in another respect as well. Many other types of scholars are dependent on research support in dollars and cents. A biology professor needs money for her laboratory, and an empirical political scientist needs money to obtain new election data. Any actual or potential funding cuts can induce change—admittedly, not always for the better. Law professors, by contrast, tend to consume research that costs money, rather than produce it. When it comes to research funding, the carrot and the stick just do not exist for them.
It is clear that law schools are facing troubling times. Since 2010, applications to law schools are down nearly 25 percent. Only about two-thirds of law school graduates are employed in jobs requiring passage of the bar examination, and 12 percent of graduates are unemployed. This is a situation crying out for a thoughtful examination, and Tamanaha’s provides this.
But in many ways Tamanaha’s proposals and the problems they address are merely the symptoms of a deeper, underlying disease. There are changes suggested in his book and by others that need to be made, but more than anything, we need to reorient how we think about legal education in the first place. If law schools can and do diversify, as Tamanaha suggests, this will only go so far unless we communicate that we are not just creating different choices, but desirable choices. Current and future members of the legal community are more status-driven than almost any other professional community (witness that eight of nine Supreme Court Justices graduated from Harvard or Yale law schools, and both 2012 presidential nominees graduated from Harvard Law School). Law schools and the legal community need to validate different law degrees, and communicate that many law schools produce successful lawyers. Notable role models can help—a Supreme Court Justice like a Mario Cuomo (St. John’s Law) or a presidential nominee like Marco Rubio (Miami Law) might go a long way.
It might be time not just to rely on law schools to change themselves, but to encourage or even require them to change. Universities can signal the importance of reform by creating financial incentives for reform and by indirectly overseeing it. Tenure standards might be raised to permit law schools to help ensure that new salary obligations are made to scholars who will remain productive even after tenure. And it might be time for even the most basic of support for legal research to come from a law school equivalent of the National Science Foundation or the National Institutes of Health—or even from the central university administration funding legal research—in order to impose a little healthy competition. These are ideas worth exploring, if not necessarily adopting at all schools in all situations.
The American law school has a proud tradition, one that law schools around the world have imitated. This tradition is worth saving. It might be that to save this tradition we need to focus on the disease underlying the law school crisis just as much as the symptoms.
David Fontana is Associate Professor of Law at George Washington University Law School.