Professor Brian Tamanaha, in his provocative new book, Failing Law Schools, argues for a new approach to legal education that involves law schools that are dramatically less expensive. In fact, he singles out for criticism me and the University of California, Irvine School of Law (UCI) for creating an “elite” law school rather than one charging students less than $20,000 a year. Although everyone wants legal education to be less expensive, he proposes a model that is economically impossible without dramatically decreasing the quality of legal education.
Tamanaha makes many important points. He is right that the cost of legal education has gone up tremendously and requires most students to go substantially in debt to pay for it. Of course, this is true of all college and university education; the increased cost of law school is paralleled by a rise in costs for all of higher education. Tamanaha rightly criticizes false claims by law schools and correctly points out that students at bottom-tier law schools may be absorbing more debt than they realistically can expect to pay back.
His solution is to advocate much lower-cost law schools. But is it possible? Tuition at the University of California law schools is approximately $45,000 for in-state students and $55,000 for out-of-state students. This is comparable to the tuition at other elite public and private law schools. For public law schools, it reflects the dramatic decrease in state subsidies over recent years.
Tamanaha says that to create low-cost law schools there should be a very substantial decrease in faculty salaries and an increase in faculty teaching loads. But would this work, and what would it mean for legal education?
Tamanaha is correct that law professors are paid significantly more than university faculty in disciplines like English, philosophy and history. Imagine that a law school tried to pay at that level, say roughly half of current faculty salaries at top law schools. Who would come and teach at a school where they got paid half what other law schools would pay them, and who would stay there when other opportunities arose?
But even doing so wouldn’t allow for the decrease in tuition that Tamanaha wants. At my law school, about 70 percent of the budget is faculty and staff salaries and benefits. Realistically, little could be gained by cutting staff salaries. The staff is generally not paid more than comparable positions throughout the university. A secretary’s $45,000 salary cannot be cut in half. Nor are there likely many staff positions that could be eliminated without compromising the functioning of the school. We need a registrar and an information technology staff and a financial aid director and a facilities manager and a career services staff to function.
About half of our budget is faculty salaries and benefits, but even slicing these in half wouldn’t save nearly enough for a tuition decrease like the one Tamanaha argues for. The only way to accomplish that would also be to cut the size of the faculty at least in half. Increasing the teaching load from an average of three to four courses won’t help much, since I and many on our faculty are already teaching four or more courses every year.
Cutting a law faculty in half would require relying far more on relatively low-cost adjunct faculty. Tamanaha’s assumption is that relying on practitioners rather than professors to teach more classes won’t compromise the quality of the education students receive. Here I think he is just wrong. There are certainly some spectacular adjunct professors at every law school, and they play a vital role. But as I see each year when I read the student evaluations at my school, overall the evaluations for the full-time faculty are substantially better than they are for the adjuncts. It is easy to understand why. Teaching is a skill, and most people get better the more they do it. Moreover, full-time faculty generally have more time to prepare than adjunct professors who usually have busy practices.
Adjunct faculty are available far less for students than full-time faculty. Tamanaha gives no weight to the substantial learning that occurs outside of the classroom. I think he tremendously underestimates the amount that most faculty are around the school and available to students.
Also, his model would eliminate clinical education within law schools and replace it with placements outside of the law schools. Clinical education requires low student-faculty ratios. Here, too, I think he is just plain wrong. A clinical program in which a clinical professor supervises students provides a unique — and I believe essential — educational experience.
At UCI Law School, we require every student to participate in a clinic and encourage students to participate in more than one over the course of law school. I believe it is one of our best policies in terms of preparing our students to be lawyers. For example, this spring, our appellate litigation clinic had 10 students arguing cases in the U.S. Court of Appeals for the Ninth Circuit. We also have a large externship program, and it provides our students great experience. But it’s a mistake to think that it can replace the learning that comes in a clinic where an experienced clinical professor supervises students handling real cases.
Tamanaha says that UCI Law School “squandered” its opportunity, and that where we “went wrong was in setting out to create an elite law school.” My goal, and that of my university, has been to create a top 20 law school from the outset. Recently, a study of faculty scholarly impact ranked UCI Law’s faculty seventh in the country (behind Yale, Harvard, Chicago, Stanford, New York University and Columbia). Our students are of the caliber of top 20 law schools by traditional measures of LSAT and grade-point averages. Our applications were up 105 percent this year. Of the 58 students who graduated in May, 16 have judicial clerkships across the country, which puts us behind only Yale and Stanford among top 20 schools in the percentage of students who will be clerking.
If we had followed Tamanaha’s advice, we would not have faculty remotely of this quality and then never could have attracted students of this caliber. We surely would have been a fourth-tier law school. It is ironic that he would be advocating that because so much of his book is about demonstrating the serious problems such schools face.
I do not deny that legal education faces difficult challenges and Tamanaha identifies many. But nor do I believe the picture is nearly as bleak as he believes it is, and I am convinced that his solution is neither possible nor desirable.
Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law.