Balkinization: Are Law Schools Harming Individuals and Society?

Are Law Schools Harming Individuals and Society?

Brian Tamanaha

In a recent post on the NPR Justice Talking blog, I played out the implications of the astronomically high and ever-increasing costs of attending law school, combined with stagnating pay for all legal positions outside of corporate law.

Here is an excerpt from the post:

What does this mean for individuals thinking about becoming a lawyer?

Anyone admitted to an elite law school is in good shape—by all means, go. Everyone else, however, should think long and hard about whether attending law school is the right decision. Specifically, one must take a close look at the financial implications of attending law school: how much money will be borrowed, the expected amount of monthly loan payments upon graduation, and expected income upon graduation. Too few prospective students sit down and crunch the numbers. An after tax monthly income of $3,000 (based on a gross income of about $45,000) sounds pretty good, until the $1,200 monthly loan payment is factored in (then there is rent, car payment, food, etc.).

The key is to be realistic. While many entering law students think (or hope) that they will be in the lucky top 10 percent that land the corporate law job, the hard truth is that 90 percent of graduates from non-elite law schools will not get these jobs, and therefore will earn far less over time. Given these long odds, a prospective student with a degree in engineering or business, or other fields with solid earning potential, or people who already have decent jobs, might be better off not going to law school.

Today, the only reason to go to law school (at least outside of the elite schools) is that one is absolutely determined to become a lawyer. For everyone else, law school is a long, expensive, laborious slog, which offers uncertain rewards.

What does this mean for social justice?

One implication of the current situation is that becoming a lawyer is no longer the sure path to upward mobility that it once represented. It can still deliver this social benefit, to be sure, but the cost barrier is becoming increasingly burdensome. People from low income backgrounds may shy away from taking on a huge debt to attend law school. Not only will this be socially detrimental, it will be a regressive development for the legal profession, as lawyers will increasingly almost exclusively come from upper middle class and wealthy backgrounds (as was the case in the past).

Another implication relates to the provision of legal services. Students who enter law school with the desire to work in public service positions often instead go on to become associates at corporate law firms owing to concern about the hefty loan they must repay. Many elite law schools offer debt forgiveness programs for students that take low paying public interest jobs, but most graduates do not enjoy this benefit. What this means is that fewer and fewer lawyers can afford to work in public service positions. If current trends continue, moreover, it is possible that low paying legal positions of all kinds will go unfilled, as these positions make no economic sense for law graduates (only the desperate will take them). This sector of the legal market consists of the needs of the poor and the lower middle class, chronically under-served as it is, and promising to worsen.

Further consequences relate to the financial pressures put on lawyers and the growing chasm in the legal profession. Although it is true that lawyers have always focused on making money (notwithstanding protestations otherwise), it is not true that lawyers in the past have exclusively focused on making money. Lawyers have also espoused and often tried to live up to a set of professional values. As the cost of becoming a lawyer rises to ever greater heights, lawyers cannot help but be increasingly focused on making money. Lawyers may be less inclined to take a stand against an unethical course of action desired by a client if they are worried about losing the client to another lawyer. More generally, the professional bonds that lawyers share will be frayed by the fact that the profession is starkly divided into such different hemispheres.

None of these observations are new. Some of these developments are already evident; some are speculative and may not pan out. But there is little question that the situation is real and has potentially serious implications for individuals and society.

Every year, law schools sponsor an extraordinary number of conferences on a variety of issues, with justice an often-mentioned theme. Yet I do not recall seeing a conference on the justice-related implications of the high tuition charged by law schools (heading toward $40,000 per year at private schools).

In addition to the points mentioned above, such a critical self-examination might also consider the consequences of the shift away from need-based scholarships, and the fact that in some law schools students at the bottom of the class, those with the most dismal earning prospects, are now subsidizing students at the top of the class, those who stand to earn the most (if you don't believe me, read this).

While on the subject, perhaps we should also examine how law schools have collaborated through the accreditation process to restrict lower-cost competition from for-profit law schools, and to raise the perks and pay of law school administrators and professors....

On second thought, never mind the conference.

Posted 10:11 AM by Brian Tamanaha [link]

Comments:

Also note that the threat of socialized medicine, coupled with just as out-of-control medical school tuition, has already scared many med students away from general practice / internal medicine and toward higher-paying specializations.

Eventually this could lead to widespread abandonment by elite students of medical school altogether in favor of law school or other high-skilled professions. Anecdotal evidence of this is already accumulating in the medical blogs.

That kind of competition would only make "being top 10% at a top 10% law school" even harder.

Meanwhile, one solution to the "public service" problem is simple: privately endow more public service scholarships. One of my two favorite charitable donees, for example, is the Point Foundation, which gives scholarships to needy and worthy gay students -- including law school students.

My law school, meanwhile, has a major public service fellowship program that is separately endowed from the rest of the school.

And so on.

# posted by

KipEsquire : 11:55 AM

Brian, this is an interesting post; it raises important points about the delivery of legal services and the related implications for social justice. However, ultimately I'm not so sure the problem is as you describe it. First, a little personal background (for what it's worth): although I hold a law degree, after practicing for a short period of time, I chose to go back to graduate school and earn a PhD. I'm now a tenured faculty member at a small liberal arts college, with a salary far less than most beginning lawyers - even those from the bottom rungs of the U.S. News rankings. So what? I continue to teach because I find it a meaningful activity. Perhaps a different type of person will be attracted to law school, and to the profession, than many of those who show up now (i.e., those attracted more by the lure of significant salaries and less by the intrinsic meaningfulness of the work itself). Might this not prove more of a benefit to the profession? Just curious.

# posted by

bill : 1:31 PM

Every prospective student of every law school should do a cost benefit analysis of the cost of the education vs. the expected increase their current income by practicing law.

This especially applies to those considering paying the equivalent of the cost of a new home to attend an incredibly expensive "elite" law school.

Even assuming that it will be easier to find higher compensated jobs in the corporate sector graduating from an "elite" law school, a prospective student needs to ask him or herself whether they even want to practice in these areas. Highly compensated positions usually demand insane hours and mind numbing work. That is why they are highly compensated. If you assume student loans equal to a mortgage, you will not have a choice but to work in one of these positions simply to pay off your debts.

I would suggest that prospective law students also stop thinking of themselves as prospective employees and instead consider whether they have the skills and temperament to go into practice for themselves. Most law firms split an associate's billing in thirds with a third going to partners, a third going to the associate and a third going to overhead. You can double your income by cutting out the partners and going into business for yourself. Or you can put in fewer hours and get a life while still earning the same or more income than you would as an associate.

Forming my own law firm was the best thing I ever did.

# posted by

Bart DePalma : 1:34 PM

Bart,

That's good advice all around.

I have read recently that a few law schools are offering debt counseling to law students. This is an important and overdue service.

However, it's a bit too late. Students need serious financial advice before they go to law school. In addition, law schools need to be more honest and forthcoming in providing information about earning prospects for its graduates. The "optimistic" numbers we now provide fall short of our responsibility.

Bill,

That's an optimistic view of things, and I hope it works out that way.

The irony in your point is that you chose to leave legal practice. I don't know that many people would enjoy being lawyers sufficiently that they would do it even at high entry cost and moderate pay.

Brian

# posted by

Brian Tamanaha : 2:23 PM

# posted by

Brian Tamanaha : 2:24 PM

The concerns in the original post are real and serious. Having said that, some schools do offer loan forgiveness programs (prospective law students should inquire); and some law schools in, say, the second or third tier, offer essentially full-ride scholarships for students with first-tier credentials. There aren't really that many jobs you can't get if you do well at, say, a second tier school, and graduating with little or not debt opens up more options.

# posted by

jslater : 4:38 PM

"Also note that the threat of socialized medicine, coupled with just as out-of-control medical school tuition, has already scared many med students away from general practice / internal medicine and toward higher-paying specializations."

Oh please. Med students have been choosing specialization over general practice for decades and the reason has nothing to so with "the threat of socialized medicine." Mainly, med schools encourage students to specialize, and certainly the economic incentives run that way as well since specialists can make far more money than family physicians.

# posted by

steveh46 : 5:04 PM

speaking of accreditation, we ought to eliminate the requirement that law school be three years long. If the value justifies the cost, students will pay for it. If it doesn't, we shouldn't force them to pay by capturing the regulators.

# posted by

Ted : 5:15 PM

Tim,

I agree that a legal education can be completed in two years. The current trend, however, appears to be drifting in the opposition direction. With the proliferation of LL.M. programs, students are beginning to take on an extra year of law school. This is by choice, however.

jslater,

You are correct about the discounted tuition for students with high LSATs at second tier schools. I'm happy for them. As I noted, however, their free ride is often paid for by students who have the worst earning potential. It is a bit perverse that things work out this way (although there are reasons for it, which I explore in the linked post).

Brian

# posted by

Brian Tamanaha : 5:26 PM

Yep, I think LLM programs provide a good model. Two years of required school, at which point you get a JD or LLB. Then schools could offer a third year for an LLM. Students could do it immediately, or down the road; at their own school, or another.

For many (most) students, two years would be enough. And schools would have a great financial incentive to create innovative, effective third-year programs.

Lots of professors (myself included, probably) would be out of jobs. But it would be the right move to make from a social justice perspective.

# posted by

Ted : 5:38 PM

"Oh please. Med students have been choosing specialization over general practice for decades"

I see your "Oh please" and raise you a "Gimme a break" --

"Interest is so low that the number of primary-care internal medicine residency positions dropped by more than 50% in the past decade."

Still dare say socialized medicine has nothing with it?

# posted by

KipEsquire : 6:02 PM

Germany has a very sensible approach to legal education. My German lawyer friend tells me you can obtain a law degree in a five year college program after high school. I am unsure whether a law degree is even considered a graduate degree or simply another undergraduate degree.

I do not see a good reason why you need an undergraduate degree to be prepared for law school nor why law needs to be a graduate level education.

The first two years of a standard undergraduate liberal arts education should be enough to teach future law students how to communicate and think critically.

The standard three year law school curriculum could replace the last two years of courses normally dedicated to an undergraduate major to create a five year undergraduate law degree program.

I envision that most law professors would disagree with being "demoted" to mere undergraduate professors and the universities might balk at receiving lower undergraduate fees. In that case, I would suggest that we leave law school as a graduate program, but only require an AA degree as a prerequisite for entrance.

# posted by

Bart DePalma : 6:19 PM

Also note that the threat of socialized medicine, coupled with just as out-of-control medical school tuition, has already scared many med students away from general practice / internal medicine and toward higher-paying specializations.

This is not to say that primary care is going unfilled. As doctors move more and more toward specialties, physician assistants and nurse practitioners are taking over more and more of the routine medical care care general or family practitioners once filled. Face it -- most doctors are overqualified to provide the sort of routine care people typically seek at their primary doctor's office.

Something similar is happening with law. As a paralegal, I can do most of what is required for a simple car accident until things reach the deposition phase, or most of drafting a simple will, doing an informal probate, or seeking an uncontested guardianship. Other paralegals I know can do most of what is required for a simple individual bankruptcy or most divorces.

Obviously we cannot act without a lawyer's supervision, which will have to be closer and more thorough the more complex the case. But a lot of routine law work is not much more than filling out forms, something lawyers are more than overqualified for.

# posted by

Enlightened Layperson : 7:12 PM

Ted (sorry about the "Tim"),

I like your proposal for two years with a third for voluntary specialization. But law schools have no interest in shifting to this position; nor do Bar associations, which will worry that a reduction to 2 years will increase the flood of new lawyers.

Bart,

I also see no reason why law cannot be a first degree, as is the case with many countries.

There is a lot of talk about curriculum reform in legal academia, but no one is taking up these more fundamental questions of structural reform.

Our self interest is wrapped up in maintaining the current system, so real reform along these lines is unlikely.

Enlightened layperson,

You are correct that lawyers are not necessary to many legal tasks, and people without legal training are increasingly stepping in to conduct legal tasks. Many divorces, real estate transactions, and immigration matters, for example, are handled (quite well) by people without a law degree.

This is in part by necessity, because lawyers are not serving the low ends of these legal markets.

Bar associations, however, continue to take actions to protect this legal turf for lawyers (castigating the "unauthorized practice of law"). The result is that legal needs of the very poor will not be met, as lawyers prefer to not take up such tasks owing to the low return.

Brian

# posted by

Brian Tamanaha : 7:47 PM

"But law schools have no interest in shifting to this position; nor do Bar associations."

Yeah, sadly, I agree that crass self-interest is the only reason we maintain the current system. And we are powerful, and we have captured the mechanisms of regulation.

But maybe if we speak truth to power long enough, loudly enough, something will change.

They have, after all, started to budge on this issue. They have recently allowed some schools to do two-years-plus-three-summers programs. That doesn't decrease the minutes requirement, which is the ultimate source of the problem... but it's a start.

# posted by

Ted : 9:17 PM

While on the subject, perhaps we should also examine how law schools have collaborated through the accreditation process to restrict lower-cost competition from for-profit law schools, and to raise the perks and pay of law school administrators and professors

I wonder, though, if more law schools is the answer. I currently live in California (though I did not attend school here), where the fact that graduates of non-accredited law schools are able to sit for the bar has not prevented the law schools here from raising tuition sharply in the last few years. Clearly the unaccredited law schools do not compete with Boalt or UCLA, but even places like Loyola or Thomas Jefferson cost upwards of $30k. (Not to say that those two can necessarily be substituted with unaccredited schools--but those schools seem to suffer from the exact problem you identify.)

I suppose at a certain point the market will reach equilibrium, but surely these competing institutions would be composed almost entirely of students who will suffer from a crushing debt with little to show for it.

I fear that California's example shows that competition from unaccredited schools would not really add much.

# posted by

Andrew : 11:16 PM

Many divorces, real estate transactions, and immigration matters, for example, are handled (quite well) by people without a law degree. This is in part by necessity, because lawyers are not serving the low ends of these legal markets.

I will say that in even the most routine matter, professionals (a broader term than just lawyers) have the advantage of knowing the ropes. Pro se litigants just don't know what to expect. The ones I have known tended to see routine but unfamiliar procedures as hostile and sinister. Maybe courts need to work on simplifying procedures in field like divorce where many people represent themselves. Or perhaps do-it-yourself forms should could with more detailed directions on what the overall procedure is and what to expect. Another insurmountable advantage professionals have is being plugged into a network and knowing countless little details about how to get things done.

Until law schools make the sorts of reforms people here are suggesting, expect low-end law practices to turn more tasks over to support staff and have fewer lawyers supervising more non-lawyers.

# posted by

Enlightened Layperson : 11:35 PM

the lucky top 10 percent that land the corporate law job

This brought a smile to my face. They're not so lucky and a large number leave after the first few years, like I did. But the hive mentality in law school is so strong that students climb over each other for the corporate job they'll soon learn to hate.

I do not see a good reason why you need an undergraduate degree to be prepared for law school nor why law needs to be a graduate level education.

It's for the reasons you and Brian have outlined: to maintain barriers to entry to the profession in order to extract rent based on a position of privilege. The high cost of law school, law as a graduate rather than undergraduate degree, onerous requirements for admission to the bar, weak penalties for wrongdoing once admitted (through a system of self-policing via "ethical guidelines" rather than binding laws), highly specialized niches of law broken down by state and expertise that are impenetrable to laypeople--all these things keep the costs of legal services higher than they would otherwise be. Law in this sense has always been a tool of the privileged class to maintain privilege.

And taking another step back, the inscrutability of law to the public as it's created, interpreted, and enforced in the U.S. (and most other places) often acts to maintain powerlessness rather than to empower. Law is not like medicine in the sense that a poorly-trained surgeon is a menace to his patients principally because the human body is a complex organism. Law doesn't have to be as complicated as it is--to legal practitioners, the opacity of law is a feature, not a bug.

# posted by

yave : 12:22 AM

This comment has been removed by the author.

# posted by

Bob : 6:38 AM

I question the merits of making law an undergraduate degree. That would prevent people from using their undergraduate years to study liberal arts. If I had had to spend my undergraduate years studying law, I wouldn't know Greek, or ancient history, or differential equations, all of which have enriched my life.

# posted by

sean : 9:36 AM

"I see your "Oh please" and raise you a "Gimme a break" --

"Interest is so low that the number of primary-care internal medicine residency positions dropped by more than 50% in the past decade."

"Still dare say socialized medicine has nothing with it?"

Yes, I do since I actually know something about this subject. It was in the early 60s that, for the first time, the majority of med students who chose non-primary care specialties exceeded those who chose primary care. By the early 90s only 1/3 of med students were choosing primary care.

"In 1963 half of all American doctors were primary-care physicians. Today that number is down to a third. And surveys of medical school graduates reveal that less than 20% plan to enter primary care. By contrast, half of all doctors in Canada and more than two-thirds of those in Britain are primary-care providers...

"As matters stand, primary-care doctors, who tend to emphasize low-cost preventive treatment, make one-third to one-half the money earned by specialists, who can charge top dollar for their high-tech procedures. For a newly minted doctor who leaves medical school with an average debt of $50,000, it is hard to resist the appeal of a lucrative specialty."

Is Health Care Too Specialized?

But in the 90s something happened to arrest the decrease of med students choosing specialization, and it wasn't the "threat of socialized medicine."

"Since the mid-1980s, healthcare markets have been transformed by the growth of managed care. Managed care payers seek to contain costs by imposing controls on the settings where patients obtain services and on the particular services they receive. Of key importance is the fact that managed care plans frequently limit a patient's access to specialty care and simultaneously negotiate reduced payments to providers for services... We find that managed care growth is associated with a decrease in the earnings of specialists relative to primary care physicians, which is consistent with a reduction in market-level demand for specialty services. These findings suggest that managed care is changing the relative demands for primary care and specialist physicians, and challenge the need for additional regulatory strategies to redress perceived imbalances in the physician workforce."

The effect of managed care on the incomes of primary care and specialty physicians

Yes, due to managed care there was a small and temporary uptick in the proportion of med students choosing primary care. However, as you may have noticed, managed care has come a cropper and the temporary restraints placed on the income of and demand for specialists were broken. That is where your 50% drop in interest in primary care comes in.

If fear of socialized medicine was the force behind the increase in specialization, why wouldn't applications to med schools drop? Why wouldn't the fear of socialized medicine produce more primary care docs since that is, in fact, what med schools in countries with universal health care produce in greater numbers than US med schools? The Amer. Assoc. of Med schools reports increases in number of applicants for med school. There are actually at least two applicants for every opening in first year med school. I guess these people are not frightened at the threat of "socialized medicine."

# posted by

steveh46 : 11:48 AM

Another great piece on an important issue. I'm applying to law school out of the non-profit world and I have no interest in corporate or firm work, so the price tags I'm seeing are just preposterous. I would only go with a scholarship or a loan-repayment plan. Now, however, there's the new College Cost Reduction and Access Act.

I don't know all the details, but supposedly the federal government will forgive all your subsidized loans after ten years paying at a reduced rate, as long as you work in public service (501c3, govt, etc.). It won't help with private loans or people who just want to make a living, but it should be a part of your social justice equation.

# posted by

Ezra : 3:08 PM

The most hilarious mail you'll ever get is from your law school alumni association, asking for even more money. hah! as if.

# posted by

abu hamza : 5:11 PM

this is a very interesting post. i am a law student from the Philippines and the scenario mentioned here is also happening in our place. in my own experience, i just got lucky to get into an elite (though State-run) law school. other private schools have astronomically increased their fees so those with limited means, even though they have the aptitude to become lawyers, will have second thoughts in considering to enrol in law school if they cannot get into law schools like ours.

# posted by

Solitary_Man : 10:10 AM