Friday, February 09, 2007

More on Non-Elite Legal Academia

Brian Tamanaha

My post last week on the precarious economic situation of non-elite law schools and their students has generated a bit of commentary on various blogs (though not as much as David's spin-off post applying marxist theory to law firm associates). It also generated a discussion within our faculty, and among our students (typical comments from students: "It's depressing." "I wish I had read this before deciding to go to law school.").

The basic thrust of the post is that the high pay at corporate law firms allows elite and non-elite law schools to continue to increase tuition, but about 90% or so of graduates from non-elite law schools (the 150+ schools outside the top 30) do not land these choice corporate law jobs. Most of these graduates will serve individual clients or will work in government positions, earning salaries that have declined in real terms in the last few decades. (See Heinz, Urban Lawyers 2005, a superb study of the legal profession that prompted me to think about these issues).

Call me "Chicken Little" (as a number of my colleagues do), but if economic considerations matter a day of reckoning of some kind must be ahead for non-elite institutions. Given current trajectories, the annual tuition at a fair number of non-elite private law schools will be in the $40,000 to $50,000 range within the next five years. It is correct that the increase gained in expected career earnings can justify the cost of a law degree even at these levels. But these students already have college degrees (and $100,000 in debt) and decent earning prospects without a law degree.

A combination of factors will likely drive tuition upward at non-elite law schools even under these circumstances. First and foremost, tuition at elite law schools will continue to go up and non-elite schools will rise with this tide. For the lucky 5% to 10% at non-elite law schools who land corporate law jobs, law school is still a great deal, well worth the expense (especially when one considers that many of them are scholarship students subsidized by their less fortunate brethren). This is reinforced by the fact that many (and perhaps most) incoming students think they will be in that lucky 10%, although the odds are overwhelmingly against them.

Various implications follow from this situation for non-elite institutions and their students, some of them moral, some of them curricular, some of them economic, in addition to broader implications for the legal profession. Many of these issues are explored in Randolph Jonakait's "The Two Hemispheres of Legal Education and the Rise and Fall of Local Law Schools" (available here, which I discovered thanks to Bill Henderson on ELS).

Jonakait suggests that non-elite law schools have an interest in concealing from prospective students the upleasant reality of their job prospects:

"The local law schools are in a strange position. They need to continue to
attract students. They would like them to be bright, but those students must
also be naive enough to be oblivious to these realities or willing to ignore
them. Robert Nelson has suggested that it may be 'that prospective law
students are attracted by the high starting salaries of Wall Street law
firms, even though most do not have a realistic chance of participating in
that segment of the bar....The disperson of lawyers' salaries should give pause
to college students and others contemplating legal careers. Potential law
students may not comprehend such complexities.'"

If non-elite law schools don't fully and bluntly inform prospective students of the reality--"Nine out of ten of you will not get the corporate law job, and will earn over your career about a third or less of what corporate lawyers earn."--they won't know. [Yes, they can find out, but they don't]. But if non-elite law schools do provide this information, the students might not come (in the same numbers).

There is much more at issue in this situation than the self-interest of non-elite law schools, and I do not know enough to offer any concrete suggestions. But I will repeat the final point of the previous post. A great deal of what goes on in legal academia is driven by the circumstances at elite institutions (which supply the vast majority of professors at non-elite institutions). Given the two separate worlds of law practice, matched by the two separate worlds of legal academia, and given that the overwhelming majority of law schools and their graduates fall in the non-elite category, it does not make sense for non-elite schools to follow in all respects the model set by elite schools.

Why is there so little talk within legal academia about this? One obvious reason: What we talk about collectively is shaped by elite law schools, but these schools have no interest or stake in this problem. Non-elite law schools must seize control of their fates, or suffer the consequences ("The sky is falling.")


The analysis assumes that partnership track jobs at the elite law firms are the only route to them. I know of people in litigation services areas of elite law firms from non-elite schools. Also, it assumes that non-elite top ranked persons are not able to get elite school status through selecting for a targeted LL'M that gives them some of the elite school pixy dust. Also, non-elite school students may have access to forms of power and wealth that they can leverage to get them where they want to go (the family firm a classic example in the local area). So the picture is only bleak if you think that the picture is one with top corporate law partner track as the be all and end all. Life is too diverse for that. It is just buying into a hierarchy to go there. I am not such a pessimist because the pie is bigger than what you suggest. And I have left to the side the folks going into public law or public interest law or other forms of practice that are not tied directly to a classic law firm (big or small) practice.

Well, no, the picture is only bleak if one looks at trends and overall statistics, and refuses to generalize from the rosy outcomes that await a few.

On a more positive note: I think Posner's suggestion for eliminating 3L has genuine merit here. There's a third of the debt right there.

I would offer an alternative hypothesis for tuition inflation apart from unrealistic expectations of being able to earn an income sufficient to pay back these insane tuitions. Instead, I would suggest that the movement over the past 25 years of a large portion of the old middle class into upper middle class incomes combined with the upper middle class parents believing that good college credentialing is necessary for their children to maintain this standard of living has provided the money and the class impetus to spend that money on soaring tuitions.

i am following this discussion with great interest because i rest on the cusp of deciding whether to try applying to law school again or to just try something else.

i haven't the talent to get into even a top 50 law school (last time the only school to accept me was rutgers). and i haven't the desire to work 80 hours a week for a six figure salary. does that put me in an inescapably debt-ridden middle age when i finally get to practice?

i just want to be equipped with the educational and vocational tools to advocate children's rights, but i don't want to starve in the process.

I think you make some excellent point. I remember graduating from Emory in '94 (are they elite or non-elite these days? I don't even know) in a legal recession year. Researching going to law school career services made it seem as if everyone or at the very least the top half of the class got "elite" jobs. The reality at graduation was about 15-20% did, meaning the rest of us did not. (I graduated pretty high-top 15%). Six months later I'm cutting meat for $6.50 an hour with $85K in student loans. Good times. My first law job paid 25K.

It all worked out in the end and I've paid off my loans and make a bit more than those new associates these days but never work more than 40 hrs a week (35 if I can help it) but I certainly felt vaguely deceived back then. I remain convinced to this day that the school exaggerated the average and median salaries of their graduates. Couple this with a career services center that was 90% devoted to the "elite" law firms that 80% of the class would never work for and let's just say I've never given to the alumni fund. There may be a crisis point at some time, these things have a way of filtering down the grapevine. Time will tell.

Aaron said...

i just want to be equipped with the educational and vocational tools to advocate children's rights, but i don't want to starve in the process.

First, do you really need to be an attorney to do the work you desire? Do some research in the field and identify the jobs which interest you. Unless the jobs you want require you to be an attorney, forget law school.

If you need to go to law school, you still might want to see if law school is for you before making the commitment. Most undergraduate schools have introduction to the law courses for various majors taught by practicing attorneys. If you take a class or two and the experience compares unfavorably with having teeth removed, then you may want to reconsider spending three years taking 30 or so of these courses and then practicing law for a living.

I had a friend in 1L who was a very good reporter, but got it into his head that a law degree would make him a better reporter. However, the law bored him to tears and he was obviously miserable. Unfortunately, he figured he would finish the entire three years because he had already made a financial commitment. I observed to him that the only way he could pay off the 3 year debt he was building was to practice the law which he loathed. He thought about that point for two weeks and then left school to go back to reporting.

OK, I have done my best to scare you off from joining the practice of law. If you are one of us sick puppies who actually enjoy the law, read on...

If you must become an attorney to pursue your dreams, but have a limited blue collar budget and maybe a family like I did, look for state law schools which either provide specialized classes in child rights or, better yet, offer credit for interning with groups that specialize in child rights.

In many internships, you are working as a real lawyer under supervision. If you perform well, an internship provides you with a significant advantage in getting a job with the firm or group for which you interned. Even when applying for a position with other firms or groups, you can offer a prospective employer real life experience which those who limited themselves to theory classes in law school do not have, not to mention references from your internship.

Moreover, if you want to practice trial work, you need to find a law school which will allow you to get trial experience before you graduate and have to look for that first job.

I'll let you in on a dirty secret. Law is not rocket science and winning trials generally has far more to do with common sense, experience and proper preparation than with LSAT scores or law school grades. Start getting that experience in law school.

Many schools have mock trial teams, but look for one which is mentored by a professor with real life trial experience or by an outside litigation firm which is contributing its time to mentor law students. If the school has a record of consistently winning mock trial tournaments against the so called "elite schools," then they are being properly trained by their mentors.

Better yet, find a law school which offers internships with government agencies which will give you courtroom experience. For someone interested in child rights, the school should offer internships as a child guardian ad litem or even as a prosecutor or public defender before the juvenile court.

I hope this is helpful for you. Good luck.

I don't buy the idea that the non-elite schools must have the sole burden here. Aren't there negative consequences to Harvard and Yale if Suffolk and Quinnipiac can't stay in operation?

I pose this as an actual question, because I'm not sure what those consequences might be, honestly, but it isn't just a matter of institutional survival, is it?

Brian's extremely important questions can also be directed at many universities' Ph.D. programs, which, I fear, are less than candid about the probabilities about getting jobs at the relatively few research-oriented universities in the land. If "truth in advertising" laws were applied to the academy, or if we even had to meet the equivalent of 10-B(5) disclosure in the "prospectuses" we send prospective students, I fear that we'd all have much to answer for. The interests of the institutions in attracting graduate students (who can TA and fill other important institutional roles) is not identical with the interests of the students themsleves. Law schools may be better than graduate schools in a couple of respects: Law school doesn't take so many years out of one's life, and very few students at non-elite law schools have the desire to teach law. Most of them can in fact find jobs in "the law," even if they aren't the kind of large-firm jobs they might desire. And they can also come to realize that there are real benefits to many of these other kinds of jobs, even at lower salaries. Graduate students spend more of their lives in school, and the disconnect between their subsequent careers and what they were trained to do may be greater as well.

Reading Brian's post also made me think of the terrible, terrible role that athletics is said to play in many African-American communities, where youngsters persuade themselves that they way out is athletic prowess, never realizing that a very small fraction of athletes ever make it to any of the professional leagues. I suspect this information is rarely emphasized at training camps for teenagers run by Nike, millionaire basketball coaches, and the like, all of whom benefit from selling the fantasy. But, then, states with lotteries are no better, since they also depend on deluding the poor that their ship might come in if only they keep buying the lottery tickets. (And, of course, states can criminalize their competition, an added advantage.) Corruption is everywhere, alas.

thank you for your thoughts and time, bart.

Is it naive to suggest that someone might value their legal or other graduate degree for reasons besides financial gain? Of course one expects to have a return on one's investment. But is annual salary really the only or primary way we value education? We ought to be careful that comments in these and other forums not reinforce that sort of thinking among our students, who we often encourage to think in broader terms than "legal trade." It is merely anecdotal evidence, of course, but I have had contact recently with some very satisfied public sector graduates from my "non-elite" school. They did not seem to believe they had been misled or defrauded. I'm also not as sure as Brian seems to be that students who might otherwise attend law school have "decent earning prospects" with only a college degree. I suppose it depends on what one defines as "decent." And, again, part of the calculus ought to be what sort of work one wants to spend one's life doing. Last, this is not merely a problem in graduate schools. George Washington University has apparently become the first to raise tuition, fees, and other costs above $50,000. Perhaps many students should think twice about attending universities when they can earn a "decent" living at a trade?

You can start by not referring to my law school as "non-elite."

I have done quite well here, and I believe that I know as much law as anyone learns at Yale. I am confident that I will eventually prove this to the satisfaction of all concerned.

But Yale has both an institutional interest in maintaining the presumption that its graduates are smarter and more qualified than me, an the market power to protect that interest. Thus, my law school will always be referred to as "non-elite," and I will always be left to wonder on my dark doubting days, what could I have accomplished in this world if I had been admitted to Yale?

My 1L year I read a good deal of writing by Duncan Kennedy, Ralph Nader, and some friends of theirs that could be mistaken for this new-found understanding of the two spheres. Their proposals for reform would still be applicable if anyone wanted to take them seriously.

"very few students at non-elite law schools have the desire to teach law."

And yet, imagine the angst of those of us who do. For us, every new 24 year old hired into our schools from Harvard or Stanford or Yale is just another brick in the wall.

The only traditionally rational course is to take a firm job, harass the LLM admissions offices, and hope to teach a practical class someday as an adjunct.

Of course, SSRN and the proliferation of blogs allows me to spam the ether with a variety of off the cuff scholarly-style musings. Maybe I am early enough in the intellectual buildout to sneak into the establishment --before the egalitarian potential of the internet is recognized as a threat, institutionalized interests enter defensively, and I am relegated to the long tail. Or maybe it is already to late and I should head for the radical margins.

I am inclined to agree with Corey on some of these points. I went to a non-elite law school, and now owe the equivalent of a sizeable mortgage to boot. However, my education was far from menial. In addition, one of my ambitions is to teach and I hope already having an article published will set me on the road to a career in academia, even if I am little more than a neophyte lawyer. Rankings, as they are now, denigrate the value of education provided at schools falling outside the rubric of top 25, and serves only to reinforce the economic stereotype proliferated by large firm payroll. Then again, I have the bias opinion of a graduate from a non-elite law school, so take this tirade with a grain of salt.

I attend a top ten school and intend to practice law in the public interest (right now I am engaged mostly with public housing/affordable housing issues). My school's institutional resources include need-based scholarships (which pay for nearly half of my law school expenses) and loan repayment assistance. There are two career services offices, one for your typical big firm track, and another for public interest careers.

These assets would mean almost nothing if not for the strength of the public interest community of students here. The greatest pressures I had to overcome in deciding to follow my passion and my conscience were not financial, since I don't have a taste for any more luxury than I presently enjoy and don't have a family to support. Instead, it was the lack of intellectual support, comraderie, and understanding from faculty and those who actually teach us.

As dire as the financial challenges of a public interest career seem, what is most jarring is the almost total lack of understanding on the part of faculty of what many students want out of their legal education.

Very few of my peers think of big firm work as a "dream job". At best, it seems like a barely palatable necessity. It's some intermediate obstacle lodged in place by the structure of legal education -- something they need to climb past in order to get to where they really want.

This is the biggest mispresentation made to law students: that the education they are buying into will empower them to pursue a career that means something to them. Law students are not MBA students. Very few come here motivated by dreams of exorbitant compensation. But they also lack precision in what opportunities are available to them as JDs. Law faculty fail most extravagantly in this regard by failing to engage the creativity of these students about what they can do with they law degree and what the practice of law can be.

Sadly, law schools from day only reinforce the inexorability of corporate law practice by aiming 90% of their resources into placing them into these jobs and teaching courses around this kind of career. Here at my school, students have taken the lead in trying to supplement our education with what we thought we were investing in in the first place.

I feel drawn into this conversation as one of Prof. Tamanaha's former students at a non-elite. I am a little older, and did more research than my younger peers, and what I see is two things: active deception by law schools, and willful blindness by students.

At the same time, many of us do understand how important it is to end up on top: that is why the mid and low-level schools are renowned for being hyper-competitive...we know that only a few of us will get the jobs we want.

It is even tougher on those of us planning on a public interest career: low salaries and tough competition. At least there is funding for the PI folks in the way of loan repayment programs. (Though most of the faculty and fellow students seem stunned that a future lawyer could have such a goal.)

I would welcome serious reform: but law schools don't seem all that interested in the students. It is hard for me to understand who the administration is interested in. They seem vaguely irritated by all the law students buzzing all over the place, mucking up the intellectual air with their blunderings.

How will there ever be any movement? The only school I know of to buck the system, CUNY, seems universally scorned. Lawyers and law schools are so self-conscious about prestige that the nonelites will never stop sniffing the tails of the elites.

Are the law schools making money? I hope so with the tuitions they charge. As long as they can keep making money off us suckers, what incentive is there for them to change? The reckoning will come when law students stop buying the hype and start calling their institutions to account. Unfortunately, the students who suffer most after law school are the least likely to be in a position to put pressure on their schools. They are too busy trying to find non-document-review jobs.

Alumni who have made it into the white-shoe world could make a difference with their pocketbooks, but as the haves in a have-and-have-not system, they would be questioning the system that made them stars.


The dichotomy is not between elite and non-elite schools, since these days talented people everywhere land jobs anywhere. Rather, the difference here is between students who do their homework--literally and figuratively--and those who do not.

The analogy to proxy deception is apt, except that law students have more tools at hand to discover relevant information than do securities investors. Check out the attorney profiles on any major firm's website and see where its lawyers hail from. Contact Career Services and ask how many students a given school places annually in federal clerkships. Read blogs like this one.

Professor Tamanaha supposes that were there some sort of mass awakening, only a handful of schools would remain on solid ground. This seems incorrect. A better analogy than securities fraud is playing the lottery: everyone thinks she has a shot, however minimal, at happiness, comfort, prestige, or whatever. Regardless of the odds, everyone is technically correct. Perhaps the risk-preferring should be saved from themselves.

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