May 7, 2012
Orin Kerr Reviews Brian Tamanaha's Failing Law Schools
Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it [past] the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.
While this is a great situation for law professors who want a cushy life, it doesn’t serve students. The high cost model of legal education means that students are mostly denied ways of obtaining low-cost legal educations, which has led to spiraling costs for legal education that make law school best suited for the wealthy, those on scholarship, and those able to compete successfully for corporate or public-interest jobs. Some applicants don’t realize this, in part because loans are so easy to obtain and schools are in no hurry to point out the economics of legal education. And even while law school is so expensive, the obsessive focus by law school applicants and alumni on the U.S. News ranking has led schools to change their programs and their admission standards to whatever helps their U.S. News ranking, even if it hurts the quality of their educational programs. Maximizing U.S. News rankings has led schools to restructure their admissions standards, limit part-time programs, raise the number of transfers, and raise tuitions to make room for scholarships that can be used to maximize the numbers of the entering class. A Dean who doesn’t do this won’t stay a Dean long; the U.S. News rankings are so widely considered authoritative that a Dean whose school falls in the ranking is considered a failure. So even at the high dollar figure of most law schools, the focus is on making changes that maximize rankings, not delivering the most effective education for students. The model is unsustainable, Brian argues, and we have begun to see that already with the recent drop in law school applications that may soon threaten the viability of a number of law schools.
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