by Brian Z. Tamanaha. Chicago: University of Chicago Press, 2012. 216pp. Cloth $25.00. ISBN: 0226923614.
Reviewed by Ronald C. Den Otter, Department of Political Science, California Polytechnic State University, San Luis Obispo. rdenotte [at] calpoly.edu.
If a good point can stand to be overstated, then an increasing number of American law schools are getting away with running scams. "Scams" is a strong word but it captures the extent to which some law schools have acted deplorably in enticing students to pay for a very expensive legal education that ultimately may not be worth it. Brian Tamanaha's new book Failing Law Schools could not be more timely; it is easy to read, well-written, jargon-free, thoroughly-researched, and full of important insights. Simply put, it is one of the best books ever written about American legal education.
The book is divided into a prologue, four parts (each of which describes a different aspect of the coming crisis), and an epilogue. The first part spells out the dangers of allowing law schools, through the American Bar Association (ABA) and American Association of Law Schools (AALS), to regulate themselves. The second part discusses the role that law professors have played in changing the nature of legal education and driving up tuition. The third part explains how the U.S. News and World Report Law School Rankings (hereinafter, "the rankings") affect the behavior of law schools. The fourth part covers the flaws of the economic model that law schools follow and offers some provocative proposals to remedy them.
According to Tamanaha, law schools continue to act as if the current economics of legal education were tenable and their doing so has serious adverse consequences for a growing number of law students. As he portrays them, law schools only care about revenue and their reputations (which are not mutually exclusive) and are indifferent to the fates of too many of their graduates. One must wonder whether Tamanaha is a present-day Cassandra, blessed with the gift of prophecy but cursed by the fact that nobody will listen until it is too late. Anyone who is thinking about attending law school should read this book carefully before making a decision.
In earning a J.D., a law student may not be able to manage her debt because she will not be able to procure a legal job that pays well enough for her to make her monthly payments (pp.109-112). Indeed, she may not be able to find such a job in the first place (pp.114-118). Pre-law advisors, law students, law professors, administrators, lawmakers, lawyers, and judges should take seriously the possibility that the law school bubble may burst. Taxpayers should know that the federal government covers most law student debt and law school graduates will not repay a considerable amount of it (p.124). The book succeeds in documenting the serious problems that characterize law schools. It falls a bit short, though, in offering plausible solutions. In fairness, that shortcoming may not be the author's fault but rather stems from the severity [*428] and complexity of the structural problems that characterize American legal education.
Although the decision to attend law school may turn out to be one of the worst decisions that they ever make, too many prospective law students are oblivious to the downside of taking this career path. Almost 90% of law students incur debt to finance their legal education (p.120). The average amount is close to $100,000 (p.120). Despite an awful legal job market, some law schools continue to increase their enrollments (p.ix). At present, there is less than one legal position for every two recent law school graduates (p.73). In 2011, several elite law schools charged more than $50,000 per year in tuition and non-elite law schools are following suit (p.ix). That figure does not include law school-related expenditures like books, laptops, professional attire for interviews, or living expenses, which push the total cost of the three years of law school to approximately $200,000 (p.ix). Some of the students at the lowest-ranked ABA-accredited law schools may be better off going to Las Vegas or Atlantic City and putting the money that they would have spent on their legal educations on black.
For Tamanaha, when one attends a top-twenty law school, it probably is not a bad bet to lay down that much for tuition, even when it requires borrowing a lot of money. By graduating from one of these schools, one has a decent chance of recouping one's investment by securing a high-paying job in corporate law after graduation. The same cannot be said for those who pay exorbitant tuitions at lower-ranked law schools when they have almost zero chance of finding such a job (pp.110-112). Statistically, only a small percentage of law students land a job at a large law firm that will enable them to repay their student loans in a timely fashion (pp.110-112). Many of them never will be able to handle the debt that they incur (p.108) yet such loans cannot be discharged through bankruptcy (p.110). Furthermore, a growing number of legal positions are part-time (p.116). The student debt produced by this economic model "imposes a severe penalty on losers" (p.x).
Winners are those who either do not pay much for their legal educations or who do but find a high-paying legal job at the end of the rainbow. Law students can avoid having to pay the full price by receiving a merit scholarship. One of the malign influences of the rankings is that they induce law schools to buy high LSAT scores through increasingly generous scholarship offers that are offset by increases in tuition (pp.97-98) and decreases in need-based financial aid (p.xiii). This practice has the effect of discouraging those with limited financial means from attending law school because they cannot afford it (pp.27, 45, 134). The existence of high economic barriers to the legal profession should disturb anyone who believes that the legal profession should be diverse and that lawyers should serve everyone in the community and not only those who can pay them handsomely for their services. Also, those who attend law school are subject to the "reverse robin-hood effect," where the "worst" students (those with lower LSAT scores), who pay full tuition, subsidize "better" students (those with higher LSAT scores) who receive discounts through the aforementioned scholarships (pp.98-99). Some law schools employ "bait and 29] 4[*switch" schemes where students lose their scholarships in their second and third years when they do not meet the minimum GPA for renewal and as a result, have to pay the full price (p.74).
The basic problem is that tuition continues to rise and many law students, with the availability of student loans, are willing to pay just about whatever price law schools demand. However, higher tuition does not translate into higher-quality legal education or better job prospects. Instead, it creates more jobs for law professors, raises their salaries, and reduces their teaching loads (pp.39-53). Today, ABA-accredited law schools are research institutions (p.45). As such, they are set up in a manner that minimizes how much time law professors spend on teaching and interacting with their students, leaving more time for research.
The cumulative effect is that more students have to pay higher tuition to support the research that law professors are expected to do. While the accreditation process is supposed to serve the interests of law students and the community by ensuring that law school graduates are adequately prepared to practice law, it has allowed almost all law schools to be run for the benefit of law professors (p.8). ABA committees that regulate "law schools are staffed with leaders from organizations that have the interests of law professors and law schools foremost in mind" (p.36). The cost of running an accredited law school is considerably higher than that of a non-accredited one (p.19). Normally, a graduate of a non-ABA-accredited law school cannot sit for the bar exam. It is almost impossible, then, in most states for low-cost law schools to come into existence and compete with their ABA-accredited counterparts.
The lack of a more affordable alternative not only raises economic barriers to the legal profession. It also encourages law schools to act unethically. Under economic pressure to meet their expenses, some of them have stretched the truth. Why so many prospective law students would be so willing to pay so much for a legal education in the midst of such an uncertain legal job market would be even more baffling if law schools had not shamelessly misrepresented employment and salary data and blatantly lied in some instances (pp.71-84).
That said, it is too easy to conclude that the propaganda of law schools has brainwashed applicants into concluding that their decision to go to law school is a good bet. There are far too many independent sources of information on the Internet and elsewhere to merit putting all of the blame on law schools. As a generalization, law school applicants seem to be overly optimistic about their chances of finding gainful legal employment even when they end up at a lower-ranked law school that in reality has a poor job placement rate. Tamanaha focuses mainly on the supply side (law schools that sell a legal education) and not on the demand side but it would be useful to know more about the latter. His possible explanations for the seemingly irrational behavior of so many law students include uncertainty, optimism bias, and reliance on misleading information (pp.143-144). My guess is that the explanation is largely psychological. Liberals Arts students will be tempted by the prospect of earning a six-figure salary and the perceived prestige of [*430] being an attorney. Or they may choose law school by process of elimination when they do not know what else they can do professionally with their undergraduate degrees.
The other related problem is that a substantial number of undergraduates are not ready for the rigors of law school and the legal profession (p.166). Even if they graduate, some of them will have spent a considerable sum to become an attorney only to learn too late that they lack the motivation, work ethic, personality, or academic skills to be good at it. After all, the practice of law is not for everyone. If there is one message that a prospective law student should take away from this book, it is: buyer beware (pp.145-159). The risks may not be worth the reward. Thus, for many law students, "...it might be prudent to forgo law school at current prices" (p.xiii).
Tamanaha only devotes a single chapter of the book to possible solutions. Law schools must make radical changes, yet as he frankly acknowledges, they will not do so on their own (pp.xii, 182). Some of his proposals, like changing the rules for federal loan eligibility, having private lenders bear some of the risks of bad loans, and capping the amount of federal loans per law school (pp.177-181), are promising but are unlikely to be implemented. Also, making student loans harder to acquire would make legal education even less accessible than it already is, compounding the social justice problem previously described. The more students that a law school admits and the higher the tuition it charges, the more revenue a law school generates. That is the bottom line. The truth is that some law schools are using their students as a means to that end and sadly, do not seem to be as troubled by this practice as they should be.
His other main idea for reform is to lower the cost of legal education by creating more diversity and competition in the market so that students can choose the kind of law school that they want to attend. Less expensive, non-ABA-accredited law schools may seem to be undesirable in terms of their quality but more affordable options will invite those with more limited resources to think more seriously about becoming lawyers and perhaps to serve underserved communities. Some of these law schools, like community colleges, would be not be research-oriented, and thus less expensive (p.19).
On paper, this seems like a sensible idea. Still, it is doubtful that the existence of such law schools would have much of an impact when there are already too many law schools and too few legal jobs. At present, the legal job market could not be much worse and probably will not improve anytime soon. True, the market might self-correct (pp.160-161). Recently, law school applications are down (p.65). But law schools can simply lower their admissions standards and accept even less academically qualified applicants, as some of them already have done (p.164). The supply of newly-minted J.D.s already grossly exceeds the demand and permitting more non-ABA-accredited schools to come into existence will only exacerbate the problem of oversupply. California is already loaded with such schools, which are less expensive but have extremely high attrition rates and terrible bar passage rates. On the other hand, it is not evident that fourth-tier ABA-accredited law schools are doing much better in preparing their students to practice law 431] [*when the lowest-ranked of them also have very low bar passage rates. At least when it comes to less expensive, non-ABA-accredited legal education, a student who drops or flunks out, fails to pass the bar exam, or passes it but fails to find legal employment will not be saddled with as much debt.
With respect to the likelihood of reform, Tamanaha is pessimistic (pp.xii, 176) and
understandably so. Unless the incentives change, law schools will continue to engage in unethical practices that they will justify on the ground that they have no other choice if they want to remain competitive. When they receive negative publicity in the media, which is common these days, they will defend themselves, as they have done in the past, by insisting that prospective law students are adults who can make their own life decisions for better or for worse.
Although the problem of the poor fit between the cost of a degree and the economic return on such an investment is not unique to legal education, the consequences of losing that bet are more dire. Recent law school graduates, who have sued their law schools when they cannot find legal employment, have been mocked on blogs, but lives can be ruined when a student graduates in the bottom half of her class at a lower-ranked law school, has accumulated six-figure debt, and has nearly non-existent job prospects. These days, even students who graduate from higher-ranked law schools and do reasonably well grade-wise increasingly seem to be finding themselves in the same employment situation.
This book is bound to upset just about everyone: law school deans and other administrators, law professors, and anyone else who has a vested interest in maintaining the status quo. As with any exposé, the author is bound to make plenty of enemies. Those who benefit from the status quo will continue to rationalize their own self-interested behavior by minimizing the aforementioned problems or passing the blame. Or they will complain that Tamanaha has been unfair. If anything, he is too easy on law schools. Many of them are taking advantage of the naivety of their students. If that were not enough, students considering law school also may not be receptive to Tamanaha's message because they would rather follow their dreams than be practical. As long as they continue to make poor judgments about attending law school, co-enabled by federal loans and misleading data produced by law schools, the situation will not improve until, perhaps, the bubble bursts.
In any event, they should not kill the messenger. Tamanaha is a well-respected law professor but does not spare anyone, even himself, who bears at least some responsibility for this disturbing state of affairs. Some will see him as an apostate. Others will see him as exaggerating how bad the situation is. Above all, I admire his courage to reveal the truth. As a J.D. myself and a pre-law advisor, it is hard to be candid with students who want to become a lawyer. Who wants to pour cold water on their professional aspirations? Nevertheless, someone needs to impress upon them the possibility that law school may not be the right choice. If the tone of this review seems indignant, it is designed to be. Law schools still have incentives to paint a rosy picture of legal employment when doing so brings in much-needed [*432] revenue. Far too many applicants will continue to put their heads in the sand. Tragically, then, Tamanaha is likely to be our Cassandra after all.
Copyright 2012 by the Author, Ronald C. Den Otter