A Peculiar Fairness Issue Brewing In Law Schools

Brian Tamanaha

An annual rite of spring in law schools is the (quiet) announcement of tuition increases for the new academic year. Tuition goes up every year in law schools around the country, generally in a range between 5% and 10%; sometimes less, sometimes more, but rarely not at all. At my own institution, to offer one example, tuition has about doubled in the past decade.

Deans have plenty of explanations for this: the exploding costs of technology and libraries; the expenses of running clinics, holding conferences, and retaining and attracting big name faculty; increasing scholarships for students; problems with fundraising in hard times; and public schools subjected to budget cuts from legislatures. This is all true (and let's not leave out large increases in Dean salaries).

We might also, in a moment of candor, add that we each increase tuition because every other law school is increasing tuition as well, so why not go with it. And students keep showing up at the door, at least so far.

One has to wonder, however, how long this can continue, as we collectively sprint past $30,000 per year (not counting expenses) and beyond. The economic value of a law degree for graduates from elite law schools, and for top students from non-elite law schools, would seem to handily justify the price. A law degree for these favored individuals is a ticket to $130,000+ starting salaries in corporate law firms, with the prospect of much more down the line.

But what about the overwhelming majority of law graduates (all those not in the favored categories above) for whom a law degree offers a far lower earning potential? There is a large separation in the practicing bar, superbly documented in Heinz, et. al., Urban Lawyers (Chicago 2005). Corporate lawyers are doing well, but, while tuition keeps going up, salaries for the rest of the lawyers out there have decreased in real terms.

This brings me to the fairness issue. A peculiar system has developed in many non-elite institutions, in which the students most likely to make the least money end up subsidizing the legal education of the students most likely to make the most money.

The way "merit" scholarships work, students with high LSAT scores--which law schools covet in the effort to shape their profile for the purposes of U.S. News rankings--get large discounts (with some paying no tuition at all). It is not the case, of course, that high LSAT students always rank at the top of the first year class, or that the lower LSAT students end up at the bottom half of the class. But when it does happen (often enough), the result is that the lowest ranked students pay full price, while the highest ranked students pay much less. And the lowest ranked students get the worst paying jobs (and sometimes no job), while the highest ranked students get the best paying jobs.

This system is understandable--and one can come up with an argument that the lower students benefit from the system as well because maximizing the LSAT profile of the law school enhances the value of their degree (though that does not mean they will make any more money)--but it is also, well, perverse.

Elite schools are off the hook on this, because they don't have the same dynamic, but any law school outside the top twenty will have some version of it.
Posted 4:01 PM by Brian Tamanaha [link]