Book Review: Failing Law Schools

This is a very depressing book for someone like myself who has spent his entire career in legal education. In Failing Law Schools, Brian Z. Tamanaha asserts that law professors are overpaid and underworked, and that the legal scholarship they produce is of little practical use to judges and practitioners. He accuses law schools of overstating the employment prospects for their graduates and fudging the data U.S. News and World Report uses to rank them. He describes the cut-throat competition among law schools in the scramble to attract students who use those U.S. News rankings to choose where they will enroll. And he concludes that more than half of the students currently enrolled in law schools will never earn enough to pay off the debt they are incurring.

What's so depressing about all this is that it's true.

Some of the examples Tamanaha presents are stunning. Up until 2009, U.S. News weighed only full-time first-year students' LSAT scores, leaving part-time programs out of the equation. Law schools responded by increasing the class size for their part-time programs with students who had applied to attend full time but whose scores would bring down the school's LSAT average. These students were promised they could switch to full-time status after the first year, when U.S. News no longer counts LSAT scores. When the magazine changed its formula to include part-time LSAT scores, the size of incoming part-time classes at law schools all across America plummeted. He also reveals the dramatic increase in law schools' acceptance of transfer students, to make up the revenue lost from declining first-year enrollment; this explains why law schools at the bottom of the rankings will be the first to go under. Though we might shrug our shoulders and say those schools deserve to go under, the reality is that many of them have kept their tuition affordable, offering an alternative for students who do not have family wealth to back them up.

Tamanaha points out that the percentage of graduates with debt is lower at elite schools than at the lowest-ranked schools (for example, only 73 percent of Yale graduates had law school debt, even though Yale's tuition now exceeds $50,000 per year, while 96 percent of the graduates of John Marshall Law School in Atlanta were in debt, despite tuition in the low-$30,000s range. He concludes that this "wealth effect" reflects the growing separation between rich and poor in America, and the hollowing out of the middle class.

The reason law schools are scrambling so desperately in the competition for students is that they depend entirely upon tuition for their revenue - and for the past 30 years they have increased tuition at two or three times the rate of inflation in order to hire more professors and let them teach less. From 1985 through 2009, resident tuition at public law schools rose 820 percent, while tuition at private law schools went up by 375 percent.

The pressures that led to this sad situation were not inexorable. The problem was that every law school in America was on the same path, striving to become more elite according to the measures imposed by U.S. News. Law schools constantly boast about the size of their faculties, and they measure professors' productivity by the number of articles published in law journals. The more elite the journal, the louder the boasting. And so the value added to the students' education by astronomical tuition increases was minimal.

Professor Tamanaha (yes, he's a law professor at Washington University in St. Louis) identifies the fundamental problem as the failure to adopt a differentiated system of legal education, where research-oriented law schools could coexist side by side with others that focus on training competent lawyers at a reasonable cost. He blames the accreditation standards of the American Bar Association and the American Association of Law Schools for imposing the academic model on all law schools.

The solutions Tamanaha proposes make such good sense that there is little prospect they will be adopted. The vast portions of our population that are underserved by traditionally trained lawyers could be better served by law graduates with two years of training, which would substantially reduce new practitioners' debt loads, allowing them to survive on more modest incomes. The top-ranked law schools could keep their three-year research-oriented model and continue to supply corporate law firms with graduates who need six-figure incomes to pay off their loans. The problem, of course, is that everybody wants to be elite. Having two tiers of law schools, along with two tiers of lawyers, will never be acceptable to the legal profession. Perhaps we need to take another look at the British system of barristers and solicitors, and recognize that in reality, lawyers are not all members of the same profession.

It took a lot of courage to write this book. It is very likely that the legal academy will respond by attacking the messenger, rather than reading his handwriting on the wall.

Gerald F. Uelmen is a professor at Santa Clara University School of Law.

---