Friday, January 18, 2008

Is There an Impending Crisis in Non-Elite Law Schools?

Brian Tamanaha

My post a couple of days ago raising doubts about whether non-elite law schools should "go interdisciplinary" provoked a series of heated responses on Leiter, Concurring Opinions, and Prawfsblawg. In opposition to my post, various law professors objected that law is more than rules and doctrine, that we should not bar the door to the intellectually curious, that we should not drop jurisprudence from the curriculum, that, indeed (shock and dismay), according to my argument we must abolish all academic orientation and interest from law schools (!).

Judging from these responses, one would think I am a misplaced legal troglodyte who needs to be set straight on the value of academic thought. I'm glad people are so committed to interdisciplinary academic work because that is what I do, so perhaps this means there will be a larger audience for my books (see Realistic Socio-Legal Theory, A General Jurisprudence of Law and Society, Law as a Means to an End). Needless to say, I bring this perspective and knowledge into my jurisprudence class.

My point was not to be anti-intellectual but to get us to think about a growing crisis in non-elite law schools.

Signs of the crisis are evident in many recent reports. The basic elements are this: tuition at private law schools ranges around $35,000-$40,000 per year, doubling in the past decade and still rising; pay for law jobs outside corporate law has stagnated, many in the $40,000-$50,000 range; the overwhelming majority of graduates from non-elite law schools will not get corporate law jobs, and will be saddled with a huge debt.

This is not just a problem for the employed graduates who find themselves moving back home with their parents because they can't make rent payments, car payments, and $1500 monthly student loan payments. It is also a problem for society because the lower middle class and poor cannot obtain lawyers--it just doesn't pay enough. This vacuum is currently being filled by "do it yourself" divorce and immigration mills run by self-taught "paralegals". [For anyone interested, the previous post contains three links to discussions of various implications of the situation].

It's time we start thinking more seriously about whether non-elite law schools would be better served, and would better serve their students, if they develop a different model for training people who want to be lawyers. Otherwise the crisis might be one that non-elite law schools bring upon themselves, as more and more prospective law students decide that the cost of law school is not worth the return. If you think this an unlikely scenario, read this article about a BU grad who is spreading the word that law school does not pay.

[Addendum: Anyone interested in this subject should read Larry Solum's brilliant overview of how legal academia ended up in this uncertain position.


There is definitely some truth to this.

I myself go to a large state law school that's considerably closer to being in the third tier than the first.

I was fortunate enough to do well enough in undergrad. that I got a scholarship to law school. (which was the primary reason I chose my local state school rather than the higher tier law schools which I was accepted to)

Because of my scholarship I'm not accumulating a significant amount of debt, and my GPA is such that I'm not terribly worried about finding employment when I graduate.

However, many of our graduates are accumulating tens of thousands of dollars of student loan debt (on top of already existing debt for undergrad) and the ones that are in the bottom 3/4ths of the class are looking at an average salary on the south side of $50,000 a year.

I'm a law prof. PhD who also practiced for a decade before going into teaching (at a second tier school). First, I think that PhDs and non-PhDs alike can (and should) teach both black letter rules and theory effectively.

Second, even if too many law schools are producing too many graduates who can't find jobs, how exactly is that related to the issue of which schools should be populated by more PhD-holding profs? I don't think elite firms that recruit at "top" schools but not others do so because the hiring partners believe that students at lower-ranked schools are getting too much interdisciplinary theory in their classes.


As with others, you misunderstood my concern. I am not opposed to a PhD. The more knowledge the better. I do have a some concern, however, if schools at lower levels begin to hire JD/PhDs with little or no practice experience--for the simple reason that I believe practice experience is a positive (not that PhD is a negative).

That is not to say that some JD/PhDs with no experience are necessarily poor teachers.

Given you long practice experience and your academic training, you have an ideal background.



I thought you were saying that lower-tier law schools should focus on more purely "practice-oriented" approaches because there is an oversupply of lawyers, as least relevant to good jobs.

Again, I believe in teaching things that are relevant to practice, including lots of black-letter rules. But I don't think the reason that students at some lower-ranked schools have trouble getting jobs is because they are getting too much PhD-type theory.

As some have pointed out in other threads, students from lower-ranked schools have troubles getting jobs, comparatively at least, because they are . . . from lower-ranked schools. And, as some have pointed out in other threads, if you think PhD types likely to publish more/higher-placed articles (which may be a stretch, but is plausible), and you believe the "reputation" rankings in U.S. News reflect actual faculty quality-as-measured-by-that-sort-of-thing (which I grant is a bigger stretch), then having more PhDs or other types might help the school's rankings, and thus the job prospects of the students.

Even if you don't buy that, however, I'm still not sure how having more PhDs hurts students in the job market. If I have misunderstood your argument, apologies.

One question I would like to see explored: are law jobs declining (both in number and pay)? If so, could that trend be attributed to the anti-regulation and tort reform movements that have reduced the number of harms in society that are actionable? Or so sufficiently reduced liability for causing harm that it no longer behooves a company to even try to follow the law . . . and lawyers see little prospect for gain in enforcing it?

Consider, for instance, HIPAA violations--it's very rare for a health care provider to face serious sanctions. In the absence of sanctions, why hire compliance officers? And why try to develop a career vindicating individuals' privacy rights in court?

The big question a book like David Cay Johnston's Free Lunch raises is whether we have entered an era of "crony capitalism"--where large corporations exert such robust control over political and legal systems that they are reducing the need for legal professionals (and bureaucrats).

Of course, a political system should avoid having too many "redistributors" and too few "doers and makers." But this should be a collective and transparent choice, not the result of endless aspersions against "trial lawywers" that lead to political programs that may well be leading to less employment of lawyers generally.

Maybe graduates of law schools need to learn how to negotiate higher salaries.

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