Professor Brian Tamanaha of Washington University in St. Louis School of Law wrote a brilliant exposé of the current legal-education system. In Failing Law Schools, Tamanaha does not seek to indict law schools. He seeks to reform them — a goal that he has pursued for many years. As a law professor, I find many of his arguments persuasive.
Tamanaha aptly characterizes publishing in legal education as “the coin of the realm: financial and professional rewards to individual professors are earned through scholarly recognition.” He speaks descriptively not normatively and says that professors should have some choice between scholarship and teaching, recognizing that “[t]he strongest predictor of scholarly production is scholarly production.”
The idea is that law schools can keep spiraling costs down by continuing to pay those who publish and teach to do both, while compensating those who only teach to do more of it. Currently, professors are paid to do both even though many only teach. As a result, nonpublishing professors reap a windfall at tuition-paying students’ significant expense. When Tamanaha was appointed interim dean at St. Johns University School of Law, he required nonpublishing professors to teach an extra course. Within one and a half years, five professors upped their teaching loads in lieu of publishing and 10 retired or otherwise left.
In analyzing the actual costs of scholarship in legal education, Tamanaha goes to sources: He quotes a former Vanderbilt University Law School dean, Edward Rubin, for the ubiquitous view within the legal academy that “40 percent of faculty time is (or should be) devoted to scholarship.” And Tamanaha references a National Law Journal article, “Legal Scholarship Carries a High Price Tag,” which discusses an oft-cited lecture of law professor Richard Neumann of Hofstra University Maurice A. Deane School of Law. About Neumann, Tamanaha writes: “Another critic of scholarship estimated that…the cost of a single law review article…comes to $100,000. This estimate, based upon contestable assumptions, was no doubt selected for its shock value, but the point remains that the amount of money that supports scholarship comes to a kingly sum.” My own independent research shows a range of roughly $20,000 to $1 million per article at my school. I have no doubt that many schools have similar ranges.
Clinical programs have exacerbated these costs. Clinics originally developed to counter the claim that law schools had become too divorced from practice, but the allure of tenure — an opportunity not traditionally available to clinicians — proved too powerful. Now clinicians often seek tenure through publication — thereby further reducing their teaching loads. Coupling this cost with the relatively high expense of clinical teaching resulting from its inherently small class size produces higher costs to students.
Increases in legal education expenditures do not result solely from misdirected research resources. Striving to increase rankings significantly contributes too. The price of the latter comes in part in the form of scholarships to attract more credentialed students. In this instance, students with lower indicators partially pay for their higher-scoring classmates — although Tamanaha writes, “African American and Latino students…obtain merit scholarships at lower relative scores,” for the purpose of increasing diversity. Higher tuition for some caused by the additional merit scholarships has significant benefits, as lower-scoring students likely wind up with both a better ranked school and atypically capable classmates. The competition for the better students, however, does create wasteful — but likely unavoidable — rent-seeking.
Moreover, while increasing law school tuition and competition present real dilemmas for students, these forces often reflect a tragedy of riches. Tamanaha details a narrative particularly familiar to me — that of “[a]n applicant…confronted with a tough choice: go to Columbia…[at] full price…or…Duke…with a [merit] tuition discount of half or more.” Tamanaha rightly points out that this is a tough choice for middle class families, deciding between price and prestige. “This might not seem like a major concern because a student who goes to Duke will have an outstanding career anyway.…[But] [i]t is far easier to land…clerkships,…positions in the Department of Justice, and a law professor job coming out of top-five schools.”
I faced exactly this conflict. My family was well ensconced in the lower middle class. So money was a real concern. It was a very tough decision, indeed. Duke is an outstanding school. Nonetheless, I went to Columbia. After graduating, as Tamanaha presciently details, I clerked for a U.S. court of appeals judge, worked at the Department of Justice and landed a teaching job. With that said, my former colleague Richard Peltz — an absolutely brilliant academic — went to Duke and landed a teaching job at the very same school as me! But Tamanaha’s point is, nonetheless, well taken: The odds favor the top five law schools.
For example, my school’s most recent hires are top-five graduates. And Harvard, Yale and Columbia graduates dominate legal education and the U.S. Supreme Court. More importantly, overall job prospects for law school graduates change drastically as one moves past the top-tiered schools. I’m acutely aware of this situation from talking with my students. In listing “schools with the lowest percentage of the 2009 class (nine months after graduation) that obtained a job requiring a JD,” Tamanaha describes my school as ranked 17th, with a 48 percent employment rate. I suspect that this ranking results in part — as Tamanaha painstakingly details — from the fact that many other schools have artificially increased their employment numbers. I don’t think that my school has. Moreover, my school compares remarkably well to some others, given its particularly low tuition — providing a significantly greater value than schools with similar employment rates and much higher tuition (and ensuing debt).
For Thomas Jefferson Law School, the numbers are terrible: According to Tamanaha, the average debt for the class of 2010 was almost $140,000, 95 percent of the students graduated with debt, only one third of the 2011 graduates passed the California bar exam and only one third of the 2011 graduates had jobs as lawyers nine months out. Tamanaha says “[i]f only one out of two (or fewer) graduates get jobs as lawyers from a given school, that is a warning to stay away.” By that standard, prospective students should run kicking and screaming from Thomas Jefferson.
Tamanaha dispels the claim that the job placement numbers are a function of the recession and highlights the aforementioned misinformation spewed upon prospective students. Even putting aside notable examples of downright lying, as was the case with the University of Illinois, law schools have been very cagey in their public reporting — “posting misleading and incomplete information about employment outcomes of their graduates.” South Texas College of Law, says Tamanaha, is the most misleading, but it shares its ignominy broadly. Too many schools have made far-reaching claims based on scant data. For example, of the five schools tied for the rank of 84 in U.S. News and World Report, two soundly based their employment numbers on data from more than 90 percent of their classes (University of Arkansas School of Law at Fayetteville — the other Arkansas school — and Louisiana State University Paul M. Hebert Law Center), but three (Seattle University School of Law, Hofstra and Santa Clara University School of Law) had data from 50 percent or less of its graduates. “The only explanation — aside from incompetence by the latter schools — for such a great disparity, is a less than diligent effort on the part of the school to obtain salary numbers of all graduates.”
Unfortunately, a New York state court recently dismissed an effort to sue New York Law School for such misleading employment information. Perhaps the court felt that no self-respecting prospective law student should believe what the defendant law schools had to say. Cases against other law schools are still pending.
Tamanaha offers several reform suggestions, such as allowing schools to have two-year J.D. programs, stripping the American Bar Association of its inappropriate and harmful monopoly over law school accreditation and limiting the maximum federal aid available to law schools — as well as tightening the requirements therefor. Tamanaha speaks truth to law school institutional power and has done so throughout his career.
He names names and identifies schools in a noble effort to tell the story of how legal education arrived at its current position. Failing Law Schools is a must-read for all legal academics, prospective law students and anyone else interested in law schools.
Robert Steinbuch is a law professor at the University of Arkansas at Little Rock William H. Bowen School of Law.