November 28, 2011
Catching Up on Law School Reform Proposals in the News
Posted by Christine Hurt

I've been doing a few other things lately, but out of the corner of my eye, I noticed at least two articles about the high costs of law school that I feel not only need commentary, but I guess my commentary.  (If youa re blogger and don't think the world needs your commentary, then that would be odd.)

Ian Ayres and Akhil Amar propose giving law students a rebate of half a year's tuition if they quit after first years.  I suppose I should say this is a good idea (or at least half a good idea) because I suggested essentially a full year's rebate eighteen months ago here.  I still think that lessening the sunk costs of quitting is a good idea, but many people in the blogosphere disagreed with me at the time.  Here is one of the more positive critiques, by my colleague Larry Ribstein, but I saw on some students' blogs phrases like "worst idea ever."

And, of course, David Segal's NYT article, which seemed to imply a connection between rising law school costs, writing law review articles, and not teaching law students practical skills.  The article had lots of numbers about how much it costs to produce a law review article and how many days new professors have practiced, but it didn't have any numbers as to whether clinical education was on the wane or on the rise in law schools.  However, the article definitely seemed to say that if law schools hired lawyers, rather than Ph.D.'s, then more practical skills would be taught, teaching would be better, law school would be cheaper, and there might be better job prospects for graduates.  As someone who practiced for five years before teaching (and whose spouse practiced twice that long), I should agree with Segal, but I just can't.  His article rests on many unproven and nonintuitive assumptions.

First, that lawyers teach better than Ph.D.'s, or that folks who have practiced longer teacher better than those that have practiced less.  Teaching is part skill, part substance.  Lawyers may know more substance about particular areas, but that doesn't guarantee good teaching.  Looking around my faculty, which houses many excellent teachers, there is no direct tie between practice experience and teaching skill.  In any event, at least Ph.D.'s, or those who have been academic fellows or VAPs, have experience teaching.  I once supervised 31 adjuncts at a law school, and some were magnificent, some were horrible, some just did not have the time and some even disappeared.

OK, but what about the related assumption that lawyers teach practical skills better than academics.  This is probably true, which is why clinics are usually supervised by those with experience (though I have actually seen the opposite).  However, that then leads to the next assumption, which is that lawyers teaching practical skills would be cheaper than academics.  This does not seem to be true.  First, clinics have to have a different student-teacher ratio, so you have to hire more lawyer-teachers.  Very successful lawyers have very high opportunity costs, so most schools couldn't hire one of them, much less twenty.  So, clinics tend to be limited, serving a small number of students, to keep the hiring down.  And, clinical professors tend not to be paid as well, so whether you can attract those with exceptional skills varies greatly depending on location, luck, etc.  Or, you can hire adjuncts, which has also has high variance depending on location, luck, etc.

There seems to be an assumption that back when law schools hired from the practicing bar only, law school graudates were better prepared.  I've been around law schools for over 20 years now and the theory v. practice argument was old when I was applying to law school.  Law schools weren't full of clinics, they just had former practitioners teach the same classes that are taught now in the same way.

And (almost) finally, law school tuition was lower years ago because law schools hired from the practicing bar.  This doesn't ring true, either.  Tuition has gone up greatly, but the reasons seem to be diffuse.  State tuition has gone up dramatically because it is no longer subsidized.  (I guess there is an argument to be made that at one point, state-run legal education was underpriced, and I'm glad that I benefited from that!)  Rising salaries may have contributed to some of the increased costs, but it's hard to tie rising salaries to a rising preference for nonpractitioners.  The rise in salaries seemed to track the rise in legal salaries, which seems to point to the opportunity costs for hiring those with either experience or practice opportunities.  We're just at an odd point now where legal salaries are in decline, but academic salaries aren't because of organizational differences (tenure, etc.).

And, finally, that law school could effectively and economically prepare law students for law practice without relying on firms to provide training.  Given the heterogeneity of law practice, I'm just not convinced.  Thinking about medical school, that practical training takes four years, with one year of clinical rotation, and is very expensive to deliver.  In addition, medical school graduates, though medical doctors, then have to complete a residency program, and possibly a specialty program in order to "walk into a courtroom."  So, following that model would make law school much more costly for the student, much longer, and probably require federal subsidization the way that residency programs do.

OK, that's enough.  I'm one of the first people willing to say that a lot could be done to reform legal education and the tuition structure, but I don't think I'll take a lot of my ideas from David Segal.

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