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Tuesday, July 12, 2011

How Law Schools are Helping the Elite

Brian Tamanaha

In 2010, tuition at Yale was $48,340, plus $18,900 in estimated living expenses. About 45 percent of the incoming students paid full price. In rounded terms, nearly 25 percent received a remission of half or more of tuition, 29 percent received less than half, and no student received a full tuition scholarship. At Harvard a bit more than half of the entering JD students paid full price; tuition was $45,026, with estimated living expenses of $22,874. At Stanford half of the students paid full price; tuition was $44,121, plus $23,739 in living expenses. Harvard and Stanford handed out a number of full scholarships, but otherwise their scholarship numbers were in the same range as Yale’s. The top schools, with some variation, distribute scholarships roughly along these lines: 50 percent of the students pay full fare, 25 percent get a discount of half or more, 25 percent get less than half off, and a handful of students enjoy full scholarships.

The key dynamic involves the students who are made to pay full fare. Typically, they will be in the bottom half of the LSAT/GPA profile of students admitted to the JD class at any particular school. The highest ranked schools have students with the highest LSAT/GPA combination—with LSAT numbers steadily falling as you travel down the ranking. For example, an applicant with a 171 LSAT would have placed in the bottom 25 percent of the class at Yale, but in the top 25 percent at Michigan, Penn, Berkeley, Virginia, Duke, and so on.

An applicant in this position would be confronted with a tough choice: go to Yale and pay full price ($50,750 this year), or attend a lower down school, say Duke ($44,722), with a tuition discount of half or more; Yale at $150,000 tuition over three years or Duke at $70,000. When you add in projected expenses, the final price would be $207,000 for a degree at Yale versus $118,000 for a degree at Duke. (The numbers work out similarly for a choice between Harvard and Duke.)

Applicants from wealthy families who can help financially wouldn’t hesitate to go to Yale. But applicants from middle class families—school teachers, middle management, small business owners, solo practitioner lawyers (parents who exhausted their resources helping their child make it through college without debt)—will find the Duke offer hard to turn down. Evidence of this wealth effect can perhaps be seen in the fact that, although its tuition is among the highest in the country (and the school rarely awards full scholarships), only 73 percent of Yale 2011 graduates had law school debt—among the lowest in the country. (At most schools 80 to 95 of graduates have law school debt.)

This might not seem like a major concern because a student who goes to Duke will have an outstanding career anyway. That is correct as far as it goes, but there is more. Law is a highly elitist, credential-oriented profession. Harvard and Yale degrees open more doors, more easily than do Duke degrees. Consider that in the history of the United States Supreme Court, seventeen Justices attended Harvard, ten attended Yale, and seven attended Columbia; no other law school counts more than three; Duke has none. It is easier to land elite clerkships, choice positions in the Department of Justice, and a law professor job out of Harvard and Yale. Although a Duke degree is an elite credential that opens many doors, especially to corporate law jobs, the difference in career opportunities compared to Harvard and Yale is not negligible.

Imagining a choice between Yale and Duke is misleading because the downside does not seem so bad. But the phenomenon goes much further. Versions of this same choice play out all the way down the law school hierarchy, often with more dramatic differences at stake. Applicants at the bottom LSAT quartile point (166-168) who would be required to pay full price at Michigan, Penn, Cornell, Duke and Northwestern, would get substantial tuition reductions to attend any school ranked 20th or lower. Pay full tuition at Vanderbilt or attend Iowa, North Carolina, Wisconsin, Emory, etc., at a big discount? Frequently the pertinent choice will be between local alternatives. An applicant who scores 165 on the LSAT would be in the bottom 25 percent of the class at UCLA but in the upper 25 percent at Loyola Marymount. Pay full tuition at the former or get at least half-off at the latter? In all of these examples, the disparity in career opportunities entailed in the choice is considerable.

Applicants from families with money would attend the better school without hesitation. Applicants from middle class families will be faced with the agonizing decision of whether taking on mountainous debt will be worth the advantages gained from going to the higher school. Some will make the leap to the higher school. When making this choice, they are placing a bet that they will land a corporate law upon graduation to pay off the loan (regardless of whether that is a job they desire). Some applicants with modest means will, reluctantly, select the lower school at a discount. They can, of course, go on to have stellar legal careers anyway, but the higher alternative would have laid an easier path with better opportunities.

In this manner, the tuition-scholarship relationship to the higher-versus-lower-school choice constitutes an allocation matrix that uniformly funnels wealthy applicants to the higher school, securing the attendant advantages, while people with less financial means divide between higher and lower. Multiply this out by tens of thousands of like decisions each year and the effect is large. The pricing structure of law schools thereby helps the wealthy in America further consolidate their grip on elite legal positions.

Let me end by getting more concrete, and personal, for any law professors who might be reading this. A bunch of colleagues of my generation and older are from middle class backgrounds. Their smarts got them into elite law schools, which they easily financed with loans that weren’t too scary in size. Their elite degrees, in turn, opened the door to the legal academy: the substantial bulk of law professors today are graduates from top 10 law schools.

Ask yourself this: If you were an applicant today facing this choice, what would you decide. Think about it. You might decide to go to Harvard or Yale anyway—but that comes with at least $150,000 in debt (assuming you keep it down by working at law firms during the summers). A stint at a corporate law firm after graduation would lie ahead. If you couldn’t bear to endure several years in a firm, the loan payments that remain will cut a large slice out of your professor pay for three decades.

You might decide, on the other hand, to pass on Harvard and Yale, and instead attend an excellent law school like Northwestern, Georgetown, UCLA, or Vanderbilt, with a substantial scholarship. That would be prudent, leaving you with a much lower debt. Unfortunately, your chance of ever becoming a law professor would greatly diminish.

As for me, knowing my conservative personal finances, I’m not sure I would attend law school at all.

A generation ago, when we were coming up, a middle class aspirant to a legal career would not be put to this choice. But we impose it on current and future generations. And it seems that an inevitable consequence of this—as a greater proportion of middle class folks are funneled downward in the law school hierarchy—is that more and more elite legal positions will be in the hands of the wealthy.

Comments:

I am not sure it has ever been otherwise, that the wealthy are more represented in elite positions, but changes in the context of what you observe give it added meaning. It seems a good argument could be made that the character or virtue of wealth has changed, has become more oligarchic. What does this mean for the transmission of values in the legal academy, especially if we take into account the increased emphasis on clinical or practical skills, and the more intense focus on the utility of legal positivism (for oligarchic ends)?
 

I think there might be another reason for what you observe. Increasingly, having a fellowship (during which one can write an article or three) is an essential step to obtaining a teaching job, especially at a top school. It's hard to take one of those fellowships if you have large loans (even if loan payments are postponed during the fellowship period). And it's hard to get one of those fellowships if your law degree is not from a top school.
 

One solution is to judge law professor candidates by their actual work and not their degrees. The candidate with a J.D. from UCLA who publishes a couple interesting articles that show real scholarly potential ought to be favored over the person with a Yale J.D. and a fancy clerkship or two.

Many professors would retort "of course" but a great many of those with shiny resumes but little scholarly ability continue to be hired, which can frustrate those w/ non-über elite J.D.'s from even attempting to enter the academy, even if they would be good scholars.

On a related note, I've been astonished to learn that many schools take into account entry-level professors' grades from law school. Outside of seminars and other courses where scholarly work is digested and research papers are written, I fail to see how one's grade in a Civ Pro lecture with 50-100 other students is relevant.
 

Jason Mazzone is absolutely right that the increasing importance of the fellowship tilts entry into law teaching even more strongly in favor of the already elite. (It also strongly cuts against those who have families at relatively young ages, unless one has a spouse who makes a lot of money).

At the law school admissions level, it seems to me that this data is largely a function of the fact that financial aid is rarely need-based anymore. And that is (in some part, at least) another consequence of the distortion caused by US News.
 

Thanks for the comments--I agree. There was always an elite tilt (pace John), but the current financing arrangement will take it to another level. Jason is right about the reinforcing effect VAPs will have on this. (GU--you are right as well, but no chance legal academia will move to your way of thinking--elitism runs too deep.)

The concerns I raise are not just about law professors, I should emphasize (although the end of the post turned it that way).

Think about our current Harvard-Yale-Columbia Supreme Court. The developments I discuss point to future courts lacking people from humble economic backgrounds.

The same goes for the Solicitor General's Office, the Office of Legal Council, the elite corporate bar, and so on. The consolidation by the elite will happen across law. We (the folks running law schools) are contributing to it, and sleep walking through it.
 

The vast majority of lawyers do not come from Yale, Harvard, or Stanford. Why don't the rest of us do something about this monopoly at the top?
 

I also commend Brian's series of valuable posts on this issue. Jason Mazzone is also absolutely on point in emphasizing the increasing importance of post-clerkship fellowship programs. It has been years since one could get a position at an "elite law school" simply by having terrific grades at Harvard or Yale and clerking even for a Supreme Court justice. (One would be lucky to get even an interview these days.) It is now absolutely essential to have already published something or, at the very least, to have a long manuscript, perhaps a book, that is on the verge of publication.

Doesn't this all go back to the statement attributed to Joe Louis: "I've been rich, and I've been poor, and being rich is better"?
 

Let's see: I'm currently engaging a lawyer to get an answer to a simple question in real estate law. It should take half an hour of his time, an hour tops. Around here that will cost me $350. That high cost is justified in part by the need to pay back the crushing debt from law school.

Tell me again about the need for any law degree to cost $200K.

Now, how does this relate to the issue of only the wealthy being able to afford this? And scholarships with respect to that?

Well, if the cost were $50K, there would be little issue.

High cost makes it a hard, sharp, nasty issue.
 

Not everyone's family helps out for law school. So if you have a family with 300K income that isn't willing to pay for law school, you wind up with 200K in debt from Yale. But if you are from a modest income family and get 1/2 off, you "only" wind up a 100K in debt, which you can pay off maybe in two years at a big firm if you live frugally instead of four. So it's not just wealthy vs. non-wealthy; you wind up worst off if you are from a well-to-do family that won't pay for law school. (And I've certainly known of well-off families where either the parents won't pay beyond college, or the children are trying to get out from under their parents' thumb and wouldn't take money from their parents).
 

Oh, and for ever it's worth, when I was at Yale I was shocked by how many students had gone to elite NYC prep schools, and what a small number of undergrad schools Yale drew from. Surely there are some bright kids out there who are from the Midwest, a middle class home, and went to State U.--but I can't think of anyone I knew who fit that description.
 

Last time I checked - and someone can correct me if I get the detail wrong - you can take the bar exam and become a member of the New York Bar without going to law school. Problem is the "office study" route requires 4 YEARS of work in a law office. There's no justification for this 4 year requirement in terms of occupational competency. It's time we started treating this occupation as we do others, and knock down irrational and protectionist barriers to entry that create an economic cartel.

We should analyze these restrictions on entry to the occupation of law the same way we do with regard to the occupations of plumber and electrician. The implicit (and illogical even if true) argument against this approach is: "Yeah, but we're really smart." Problem is, we're not - or for the minority of us that are, it's incidental to the profession. 100% of molecular biologists could be lawyers, if they were so inclined. Maybe 3 or 4 percent of lawyers have the brainpower to become molecular biologists.
 

The cross-cutting variable of race/ethnicity needs to be added to this analysis. I've no doubt that the middle class path to the elite institutions via scholarship remains open for black and Hispanic kids--its middle class Asian kids and working class white kids, however, who see the door slammed in their face.
 

I wonder about a potential countervailing effect which might result from lower-family-income students needing corporate salaries to pay off law school debt: Would they be more likely to remain in the lucrative private sector than their wealthy counterparts, who are more likely to pursue prestigious but lower-paying positions in government or academia? Imagine the middle-class Wisconsin girl who chooses Harvard over UW, accrues $150,000 in debt and goes to a big Chicago firm over DOJ. Will she ultimately earn more as a law firm partner than her wealthy counterpart who is later a judge, professor, etc.? Is that an equalizing effect?
 

The concept of elite law schools and the Supreme Court Justices graduating from them perhaps needs to be examined from the time each of them started law school. Were their families elites, however that word is defined? Do we have financial information on these students' law school years, including the extent of financial support they received from family? To what extent did these elite law schools lead to their appointments as Justices? If they had not attended these elite law schools, might they not have been appointed Justices? And to what extent were the Presidents appointing them strongly influenced by the elite law school they attended? It could be that the appointing Presidents are the ones most influenced by the elite law schools their appointees attended.
 

"I think there might be another reason for what you observe. Increasingly, having a fellowship (during which one can write an article or three) is an essential step to obtaining a teaching job, especially at a top school. It's hard to take one of those fellowships if you have large loans (even if loan payments are postponed during the fellowship period). And it's hard to get one of those fellowships if your law degree is not from a top school."

I wish more law faculty were as insightful and level-headed as Jason.
 

I agree with your basic conclusion. But the details in this article show that you're really out of touch with these things and don't really know enough to write about this. Full price at Yale is better than any amount of money at any other school, except possibly a full scholarship at Columbia (or Stanford or Harvard, but those are completely need-based, not merit-based, which you failed to mention, so they don't apply to your conclusion).

The idea of somebody choosing a half scholarship at Duke over full price at Yale is humorous to anybody who knows anything about the T14 and the job prospects coming out of them and the application process. Lower T14 schools like Duke do not guarantee a good job. Plenty of people completely strike out at these schools and end up unemployed out of law school for a while, sometimes even students with good grades.

You also make it seem relatively easy to go into academia at the top schools. If you're at any school that isn't HYS, your chances of becoming a professor are absolutely tiny. If you're at Harvard or Stanford, they're very very small. If you're at Yale, they're merely pretty small. Very few of these jobs exist.

I have a "half or more" scholarship at Northwestern that in practice is a full scholarship ($45,000 per year) and though I'm going to Northwestern in the fall, if I had gotten into Yale, I would have gone to Yale, even though I would have been taking on six figures of debt. The job prospects really are that much better. For most people, even people with debt, taking full ride lower T14 over Yale would generally be considered dumb. Harvard and Stanford are a different story though.
 

You also ignore federal IBR (Income-Based Repayment).
 

Ignore these Ivy League fools. There is very little difference among law schools. I practiced law for over 30 years. I went to a mediocre state school. I had to go up against lawyers from all of those places that think they are such hot stuff. I more than held my own, and some times I schooled them.

There is only one set of laws in this country (except for LA), one set of law text books, and one set of bar exams, and they are they same for grads of Yale and for grads of South-West Murray State Normal Barbers College and Law School.

Given the state of the law business, the difficulty of finding and keeping good legal jobs, it is very very important for students to limit the amount of student loan debt they carry out of law school. Even a job in big law will not pay off a six figure debt in the space of the average big law career.

It is far more important to your eventual peace of mind and future happiness to stay out of debt, than it is to own a fancy diploma.

One caveat, if you want to be a law prof, you must have gone to HYP. Of course, no child grows up wanting to be a law prof, they flee to it after they discover that they cannot stand working in big law.

Of course, if you have other ambitions, you should approach them appropriately. If you want to go into politics, you should go to State.

But most important of all do not take on debt that you do not have to take on. The choice between Yale at retail, and Duke on a scholarship is to me a no-brainer.
 

I hope some here will reflect and post on the role of Supreme Court and Appeals Court law clerks, a homogeneous class of empty elites with a deeply disturbing role in shaping the law.

Though they may be black, white, asian, male, female, heterosexual or not, they are otherwise totally monolithic in their lifestyles and worldviews.
 

My daughter attended Harvard, had 10 job offerings and i'm from the middle class. To me it's a no brainer. If you get in go there. You get summer work that almost cuts tuition in half.
 

I agree with Joe. Anyone who gets into Harvard/Yale/Stanford/etc. would be stupid not to go even if they had to finance 100% of their education on loans and came from a low-income working class family. This article is trying to stir up some class warfare where none exists.
 

Well wait, I think full ride at a T14 vs. sticker price at Harvard or Stanford is a relatively even choice and depends on the person's circumstances and what they want to do after law school. Having no debt vs. having six figures of debt is still a huge deal. Debt is a huge load on a person's shoulders. But Yale is such a golden ticket that it's almost always a no-brainer.
 

Right on Professor!
 

Having no debt vs. having six figures of debt is indeed a big deal. But having no job vs. having a six figure job is an even bigger deal.
 

Are you aware there are jobs in other fields?
 

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If students from privileged backgrounds typically attend schools where they rank towards the bottom of the class in terms of LSAT/UGPA, do they also tend to end up towards the bottom of their classes in terms of class rank? If so, how much does this affect their prospects of obtaining the very best jobs?
 

I think it might be another reason for what you watch. Increasingly, they have a price (which you can write an article or three) is an essential step to obtaining a teaching position, especially at a university. It's hard to take one of these scholarships, if you have large loans (even if the loan payments are deferred during the period of the concession). And it's hard to get one of these scholarships if his law degree is not a college.

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