THE COMING CRASH IN LEGAL
EDUCATION: HOW WE GOT HERE,
AND WHERE WE GO NOW
RIcHARD W. BOURNEt
I.
INTRODUCTION
The initial impetus for writing this Article came in the form of the
tragic death of one of my former students just a little over a decade
and a half ago. The student, a bright, sweet young man, a terrific
student with his whole life lying before him, failed to get the job he
had hoped for in one of the larger law firms that serve the city where I
have taught for over thirty years. The young man had just rented his
first apartment, bought his first car, and become newly engaged to
marry his girlfriend when he got the bad news. He felt trapped by
debt and pride. Rather than tell anybody, he drove to Annapolis and
jumped off the Chesapeake Bay Bridge.
The awful news of this young man's death caught those of us who
thought we knew him completely by surprise. For me, his story
brought home, for the first time, the sad reality that there might be
something wrong with the way we were getting young men and women to put their futures in hock in order to finance their educations.
After a few brief talks with colleagues, my attention went elsewhere.
A few years ago, as the realities of teaching law in a twenty-first
century law school began to make clear, it was no longer possible to
put concerns about the cost of legal education on the back burner.
Literature, sputtering at first but now coming on in earnest, began to
suggest that there might be a debt crisis looming for the legal education industry. Until 2008, our industry has appeared to be booming.
We know, from the principles of Newtonian physics, that what goes up
must come down. But often our capacity for denial prevents us from
recognizing that we are at risk until it is too late to avoid catastrophe.
Now, of course, with the reality of the economic collapse in 2008
caused by overextension of credit in the housing industry, we are beginning to see more clearly that American legal education may also be
at the precipice of its own credit-fed denouement.
For most of my adult life, from the time I entered law school in
1965 until the present, legal education has appeared to be a booming
t Professor of Law, University of Baltimore School of Law. A.B. Harvard 1964;
LL.B. Virginia 1968; LL.M. Harvard 1975. I owe thanks to two research assistants at
the University of Baltimore Law School, Amged Soliman and Kevin Penhallegan.
CREIGHTON LAW REVIEW
[Vol. 45
industry. The number of seats in American law schools more than
doubled from the late 1960s until the mid-1980s, and while the growth
trajectory has slowed somewhat, the new schools that have emerged
are richer by almost any measure that any of their predecessors could
possibly have imagined. The cost of this growth was steep, and the
enhancement of law school programs was accompanied by huge increases in student indebtedness in order to support it. The student
debt, in turn, was paid for by major changes in the legal services industry, led by gigantic growth and enrichment of large corporate law
firms that absorbed increasing numbers of law graduates and helped
them pay off the debt they had incurred to go to law school.
The legal services market has changed over the years in ways
that, until recently, facilitated the boom in legal education. The collapse of the financial services market in 2008 has radically changed
the market for students being trained in legal education. The recession caused a massive downturn at the top of the new-lawyer market,
raising questions whether the huge enhancements in legal education
in recent years can be sustained, or whether it will be necessary for
the industry to become smaller and cheaper in order to survive. And if
the legal education industry must change, what direction should the
changes take?
This Article will first track the ways in which the legal services
market has grown and changed over the past forty years. This Article
will then track the major changes that have attended legal education
during the same period and the increasing dependence of the legal education industry on student debt. This Article will then explore why,
at long last, the boom time may have run its course and why, at some
point, painful changes will likely occur. Though they cannot be described in detail, this Article will attempt to outline the likely nature
of the changes that will occur. Finally, this Article will briefly explore
how the predicted reckoning may yet lead to an improvement in the
marketing of legal services and an enhanced role for law schools in
preparing new attorneys for the new bar they will be joining.
II.
CHANGES IN THE LEGAL SERVICES MARKET
During the first two-thirds of the twentieth century, the number
of lawyers did not increase more rapidly than did the population.1
During the 1970s, the lawyer population grew by 90%, and it grew
1. See Richard H. Sandler & E. Douglas Williams, Why are There So Many Lawyers? Perspectiveson a Turbulent Market, 14 LAw & Soc. INQUIRY 431, 432 (1989). According to Richard H. Sandler and E. Douglas Williams, the number of lawyers per one
million Americans never varied more than 9% from an average of 1,268 from 1910 until
1970. Id.
20121
THE COMING CRASH IN LEGAL EDUCATION
653
another 48% from 1980 to 1988.2 Such rates of growth reflected gigantic increases in law school admissions, which went up nearly three
times during the period.
The growth in the legal services market was remarkably uneven.
Demand for "little lawyers"-solo practitioners and lawyers in extremely small firms-did not increase. From 1954 through 1980, the
number of lawyers in government practice more than doubled, while
those law firms and corporate offices more than tripled. 3 Wages for
the solo practitioners actually fell, in real dollars, for much of the period, whereas earnings by partners in law firms rose considerably. 4 In
recent years, growth in new legal services jobs has skyrocketed in
large firms, grown considerably in other firms, and actually fallen
5
among solo practitioners.
2. Id.
3. Id. at 442. Table 6 reflects the distribution of lawyers by types of employer
during the period.
TABLE 6
Lawyers Employed
Government
Judicial
Sole Proprietor
Law Firm
Corporation
Other Private
Inactive
1954
21,279
8.8%
3.3%
7,903
127,389 52.7%
25.6%
62,034
15,063
6.2%
1,585
0.7%
6,581
2.7%
1960
25,621
9.8%
8,180
3.1%
116,811 44.6%
75,442
28.8%
22,533
8.6%
2,665
1.0%
10,887
4.1%
1970
35,803
10.6%
10,389
3.0%
118,963 35.0%
117,122 34.5%
35,593
9.9%
6,893
2.0%
16,812
5.0%
1980
50,490
9.3%
10,160
3.5%
179,923 33.2%
190,187 35.1%
54,626
10.1%
3.5%
19,236
28,582
5.3%
Id. at 442. This data was sourced from census materials available at the time. Id.
4. Id. at 450 (noting that between 1960 and 1985, the wages of solo practitioners
fell slightly, in real terms, from $27,904 per year to $25,339 per year, but earnings of
law firm partners increased during the same period from $65,469 per year to $88,493
per year).
5. See Employment Patterns- 1982-2004, NALP: ASS'N FOR LEGAL CAREER PROF.
(June 2006), available at http://www.nalp.org/2006junemploymentpatterns?s=june%20
2006. The National Association of Career Professionals ("NALP") broke down the number of men and women entering various kinds of employment settings between 1982 and
2004. Id. According to their June 2006 bulletin, members of the classes of 1982, 1994,
and 2004 entered the job market in the following employment settings:
TABLE "MEN AND WOMEN"
1982
Women
Men
Private Practice
Solo
2-10
11-25
26-50
51-100
101+
Business/Industry
Government
Judicial Clerkships
Public Interest
60.4%
7.7%
38.9%
14.4%
10.7%
9.5%
13.9%
11.5%
12.8%
9.4%
1.4%
54.2%
5.8%
36.9%
13.5%
10.1%
11.7%
17.0%
8.5%
14.2%
13.8%
3.4%
Men
58.9%
5.7%
36.0%
12.1%
7.6%
7.6%
22.4%
12.2%
12.6%
11.4%
1.8%
1994
Women
51.4%
4.1%
35.6%
10.6%
7.9%
7.9%
26.0%
10.9%
14.9%
15.2%
3.8%
Men
58.6%
3.3%
32.1%
10.8%
7.2%
5.8%
33.0%
12.5%
12.1%
10.7%
3.4%
2004
Women
56.0%
2.2%
30.6%
10.7%
6.4%
6.3%
35.9%
10.0%
11.9%
12.8%
6.1%
654
[Vol. 45
CREIGHTON LAW REVIEW
Much of the growth has occurred in large law firms, which have
6
grown more rapidly than other sectors of the legal services market.
The larger firms have concentrated on corporate law practice. 7 The
expansion of the large law firm market for corporate lawyers has been
matched by a decline in the rest of the private firm market for new
attorneys, but not by a decline in the number of lawyers going to work
for large entities (government and business or industry house counsels' offices) or entering public interest practices. 8 While wages for
lawyers in private practice-except perhaps for those entering solo
practices-have grown over recent years, income growth in the larger
firms has dwarfed that occurring in small and middle-sized firms.
Lawyers entering practice in the largest firms-those with more than
250 lawyers-received a 129% jump in starting salaries between 1994
Academic
Total # of Jobs
1.1%
15,426
1.9%
7,196
0.8%
13,936
1.4%
10,076
1.4%
15,426
1.7%
14,769
Id. According to the NALP study, its figures are based solely on
all graduates known to be employed, including those for whom employment
types are not shown; hence percentages may not add up to 100. Information for
1982 was adjusted to exclude graduates pursuing an advanced degree from the
academic category and to include public defenders in the government category,
as they were in 1994. However, effective with the Class of 2004, the public
interest category once again includes public defenders.
Id.
Today, the overwhelming majority of lawyers work in either small firms (defined as
firms of between two and ten lawyers) to very large firms (defined as those with over
500 lawyers). See James G. Leipold & Jeffrey E. Hanson, Law Student Debt and Its
Impact on Lawyer Career Paths, NALP: ASS'N FOR LEGAL CAREER PROF. (2008), available at http://napla.org/lawschool-debt.pdf. In 2007, 2.8% of lawyers worked as solo
practitioners, 31.4% worked in firms of 2-10 lawyers, 9.1% in firms with 11-25 lawyers,
5.7% in firms with 26-50 lawyers, 5.5% in firms with 51-100 lawyers, 8.2% in firms with
101-250 lawyers, 8.8% in firms with 251-500 lawyers, and 23.0% in firms with 501 or
more lawyers. Id.
According to the American Bar Association ("ABA-), the percentage of law graduates entering private practice from law school peaked in 1988 at 64.3%, shortly before
the job market took a nosedive in the late 1980s and early 1990s. See Don J. DeBenedictis, Growing Pains:Boom Time Expansions No Longer Fit, A.B.A. J., Mar. 1993, at 52,
53.
6. See Employment Patterns- 1982-2004, supra note 5. According to David B.
Wilkins, from 1980 through 2010,
large law firms have mushroomed in size ....
In the 1960s, there were only
twenty law firms in New York City with more than fifty lawyers, with the largest, Shearman & Sterling, consisting of 125 lawyers. By the turn of the twentieth century, there were more than 250 U.S. firms larger than Shearman's old
size, with more than ten firms of over 1000 lawyers. The growth since 2000 has
been even more torrid - until, of course, the fourth quarter of 2008. In 2006, the
median size of the nation's 250 largest firms had ballooned to over 500, with
more than twenty topping the scales at over 1000 ....
By some estimates,
almost 10,000 lawyers - nearly a quarter of all law school graduates - were
expected to begin their careers in a large law firm in 2006.
David B. Wilkins, Team of Rivals? Toward a New Model of the Corporate AttorneyClient Relationship, 78 FORDHAM L. REV. 2067, 2089-90 (2010).
7. See Sandler & Williams, supra note 1, at 440-41.
8. See Employment Patterns - 1982-2004, supra note 5.
2012]
THE COMING CRASH IN LEGAL EDUCATION
655
and 2008; meanwhile, lawyers entering small firms of two to ten lawyers received only a 72% increase in salaries. 9 The increase in demand for lawyers in the larger firms led an increasing percentage of
young attorneys to join these practices, rather than attempt to start
out solo or in small firms. 10 The only group of lawyers faring worse
than those entering small firms is those entering public service jobs"
or going into practice as solo practitioners.' 2 For most of the last dec9. See What Do New Lawyers Earn?A 15-Year Retrospective 1994-2008, NALP:
ASS'N FOR LEGAL CAREER PROF. (Aug. 2009), available at http://www.nalp.org/aug09new
lawyersal. From 1994 to 2008, the overall median starting salaries for lawyers increased 150%, from $50,000 to $125,000. Id. The huge jump reflected "rising salaries in
general, especially in law firms, and an overall increase in the share of jobs taken in
larger firms, where salary coverage is more complete." Id. The table sets out median
salaries for each year from 1994 through 2008:
TABLE
1-100
101-250
MEDIAN STARTING SALARIES
Year
All Sizes
1994
1995
1996
1997
1998
1999
2000
2001
2002
$50,000
50,000
50,000
55,000
60,000
70,000
80,000
90,000
90,000
2003
2004
2005
2006
2007
2008
% Change
2-10
11-25
26-50
$32,000
22,500
24,000
35,000
37,000
40,000
50,000
43,000
45,000
$40,000
40,000
40,000
42,000
43,500
46,000
50,000
52,000
52,500
$48,000
48,000
49,000
50,000
52,000
55,000
60,000
62,000
65,000
$55,000
55,000
55,000
58,000
62,000
70,000
76,000
80,000
80,000
80,000
45,000
55,00
65,000
80,000
85,000
95,000
108,000
125,000
150%
45,000
50,000
50,000
52,800
55,000
72%
55,000
60,000
62,000
65,000
65,000
63%
65,000
70,000
73,000
75,000
77,000
60%
251-500
500+
$60,080
62,000
62,000
67,000
72,000
80,000
99,500
100,000
100,000
$70,000
72,000
74,000
79,000
85,000
92,000
125,000*
125,000*
125,000*
$70,000
72,000
77,000
80,000
90,000
97,000
125,000*
125,000*
125,000*
80,000
95,000
125,000*
125,000*
76,000
80,000
85,000
90,000
95,000
73%
100,000
100,000
105,000
115,000
120,000
100%
116,000
125,000*
125,000*
140,000*
160,000*
129%
125,000*
125,000*
135,000*
160,000*
160,000*
129%
Id.
According to another study by NALP, starting salaries for all attorneys rose from
$52,800 in 1985 to $65,750 in 2007 (adjusted for inflation). See Leipold & Hanson,
supra note 5. Those in private practice had their salaries jump from $61,085 to
$109,000 while those in public interest positions rose only from $36,227 to $42,000. Id.
10. See What Do New Lawyers Earn?, supra note 9. The median salary for all lawyers entering firm practices grew more rapidly (i.e., 150%) than did the median for any
single size group of practices (ranging from a low of 60% in mid-sized firms of 26 to 50
lawyers, to a high of 129% for firms with more than 251 lawyers), suggesting that an
increased percentage of lawyers entering firm practice were going to the more remunerative larger firms. Id. This is precisely what one would expect given the increase in
demand firms of such size have had for new lawyers' services. This trend is likely simply a continuation of the shift from solo and small firm practices to large firm practices
that was noted in earlier studies. See Sandler & Williams, supra note 1, at 442; Employment Patterns- 1982-2004, supra note 5.
11. New Findingson Salariesof Public Interest Attorneys, NALP: Ass'N FOR LEGAL
CAREER PROF. (Sept. 2008), available at http://www.nalp.org/2008sepnewfindings.
NALP reported that in 2008, beginning local prosecutors' mean salaries were $45,675,
state prosecutors $50,000, public defenders $47,435, civil legal services attorneys
$40,000, and public interest organization lawyers $41,000. Id.
12. There are virtually no figures for solo practitioners in recent years. Sandler
and Williams' report indicated that they were at the bottom of the private practice scale
in the 1980s, and there is no reason to believe that they have improved their position
656
CREIGHTON LAW REVIEW
[Vol. 45
ade, over half of all law graduates either earn the very low salaries
that are associated with tiny firms, solo practice, or public service, or
the very high salaries coming from the 250-plus lawyer private firms.
This creates a bimodal salary distribution curve that somewhat re13
sembles the back of a two-humped camel.
It has been suggested that the growth trend in the largest law
firms had already slowed or stopped sometime in the middle of the
first decade of the twenty-first century. A number of large law firms
broke up or went under, and exponential growth of the large firms
that had been associated with BigLaw for a quarter century may have
begun to trail off into a period of stagnation around 2004 but held
steady until the denouement in 2008,14 when by all accounts it colsubstantially in the intervening years. Sandler & Williams, supra note 1, at 450, 46465.
13. See Salary DistributionCurve, NALP: AsS'N FOR LEGAL CAREER PROF., http:/!
www.nalp.org/salarydistrib (last visited Aug. 3, 2010). Salary distribution curves for
new graduates for 2009 do not follow a classic bell curve but instead follow a bimodal
curve, with large numbers of graduates clustered at the bottom and top of the scales.
Id. According to those statistics, 34% of salaries ranged from $40,000 to $65,000, while
another 25% were between $150,000 and $160,000, with an adjusted mean salary of
only $85,198. Id. The median salary for new lawyers was $72,000. Id. NALP statistics
indicate that the bimodal pattern first developed in 2000 and has persisted in repeated
studies since that time. See Salariesfor New Lawyers, How Did We Get Here?, NALP:
AsS'N FOR LEGAL CAREER PROF. (Jan. 2008), available at http://www.nalp.org/2008jansalaries. The bimodal salary curve "began to emerge around the turn of the century,
and became steadily more pronounced in succeeding years." Bernard A. Burk & David
McGowan, Big But Brittle: Economic Perspectives on the Future of the Law Firm in the
New Economy, 2011 COLUM. Bus. L. REV. 1, 103 (2011).
The median salary for new lawyers fell from $72,000 to $63,000 (nearly 13%) between 2009 and 2010, and the mean salary fell nearly as much, from $93,454 to $84,111
(10%), during the same period. Press Release, NALP: The Ass'n for Legal Career
Profls, Class of 2010 Graduates Saddled with Falling Average Starting Salaries as Private Practice Jobs Erode (July 7, 2011), available at http://www.nalp.org/classof20l0
salpressrel [hereinafter Private Practice Jobs Erode]. The national median for law
firms based on reported salaries was $104,000, down from $130,000 the previous year.
Id. NALP attributed the rapid fall in figures not primarily to an across-the-board collapse in salaries but rather to a shift in the distribution of jobs from those paying highend salaries of $135,000 to $160,000 to those further down the line, as well as to a
decline in salaries among a few firms in the 101-500 lawyer range. Id.
It should be noted that the bimodal salary curve closely tracks a similar bimodal
curve that describes the number of lawyers working in various law firm settings; according to NALP, 31.4% of lawyers in private practice work in small (two to ten lawyers)
while 23.0% work in mega-firms of 500 or more lawyers, with the balance working either in solo practices or mid-size firms in between these two groups of firms. See Leipold & Hanson, supra note 5.
14. See William D. Henderson and Rachel M. Zahorsky, Law Job StagnationMay
Have Started the Recession-And It May Be a Sign of Lasting Change, A.B.A. J., July
2011, at 40, 42-43. Henderson and Zahorsky claim the growth of BigLaw actually
stopped around 2004; David Wilkins claimed it halted only in 2008. Compare Henderson & Zahorsky, supra, at 41, with Wilkins, supra note 6, at 2089. Wilkins noted that
some argue the weakening of bonds holding a client to an attorney has weakened the
ability of the latter to act as an ethical gatekeeper for the client. Wilkins, supra note 6,
at 2079. Wilkins further suggested that the new relationship between lawyer and client
2012]
THE COMING CRASH IN LEGAL EDUCATION
657
lapsed. The weakness of the big firms' structures was masked by the
bidding war the firms continued to engage in for top graduates, driving beginning salaries to new highs, despite internal difficulties with
15
their own cost structures.
Whatever the cause, there is no question that the large law firms
took a huge hit in 2008 and thereafter. The impact of the large firms'
inability to employ new graduates has begun to have a reverberating
impact. Many new lawyers who might have gone to work in large
firms were forced to take less remunerative jobs in smaller firms or
the public sector. The legal education industry has also suffered as
many of the jobs it had been training young lawyers to fill simply no
longer exist.
Studies published after this "Great Recession" began suggest unprecedented weakening of the lawyer employment market, 16 particularly at the top. One survey of the twenty largest feeder schools to law
firms in 2008 saw a 17% drop in the number of students hired in 2009,
and one school, Columbia University, saw 54.5% of its graduates land
jobs in one of the 250 largest firms, down from 70.5% just one year
earlier. 17 In 2009 and 2010, numerous firms rescinded existing emi8
ployment offers or deferred new hire starting dates for up to a year,
may well require a redefinition of the way professional independence of lawyers should
be maintained in their relations with modern corporate clients. Id. at 2121.
15. The high-end firms leveraged too many associates into their structures, and
when clients began to resist billing new graduates at partner-level rates, clients successfully resisted by employing large in-house counsel offices to handle routine work
and to parcel out on a contract basis only the more complex matters and cases, one at a
time, as opposed to the classic long term retainer agreement under which the firm handled all of the client's legal needs. The firms began to take away equity from less productive partners, contract out increasing amounts of work to non-partner track contract
employees, bring in as lateral hires new rain-making partners, and eliminate the system under which all promotions came from within and those who failed to make partner
would have to leave after a certain period of training, a system that had been in place
for nearly a century since it was first adopted by the prestigious Wall Street firm of
Cravath, Swaine & Moore. The new regime of promoting lateral hires and of decreased
chances of promotion-from-within weakened internal bonds within the firms, rendering
them increasingly unstable and subject to cross-firm raiding and breakups in which
whole departments might depart the firm, taking with them many of the firm's most
remunerative clients. See Burk & McGowan, supra note 13, at 24-25, 46-47, 58-59, 6569, 87-89, 98-100 et passim.
16. According to one article, more than 340 new lawyers graduated in 2009 with
only 140 positions available in the state for attorneys, limiting employment opportunities for University of Iowa College of Law graduates so much that only 28% got jobs in
Iowa and the balance had to go elsewhere to gain employment. See George C. Ford,
Glut of Lawyers Has Many Graduates Saddled with Debt, Bus. 380 MAG. (May 15,
2011), http://business380.com/2011/05/15/glut-of-lawyers-has-many-graduates-saddledwith-debt/.
17. Jack Crittenden, The End of Elitism in BigLaw?, NAT'L JURIST (July 1, 2010,
11:19 AM), http://www.nationaljurist.com/content/end-elitism-biglaw.
18. See Burk & McGowan, supra note 13, at 31. The article noted that over one
hundred NLJ 250 firms deferred 42% of their entering classes, approximately 2,800
658
CREIGHTON LAW REVIEW
[Vol. 45
and often what offers were made came with reduced compensation in
the offing. Many new graduates were given only temporary or parttime work in 2009,19 and the trend continued into 2010.20 From the
beginning of January 2008 through November 2009, one website
counted 14,940 layoffs from "major law firms," including 5,820 attorneys and 9,120 "staff' (comprising staff attorneys and contract attorneys as well as non-lawyer personnel), 2 1 and the number of attorneys
in the National Law Journal ("NL") 250 decreased 4.3% in 2009 and
another 1.1% in 2010.22 One reporter indicated a fall of 35% in new
hiring by big law firms. 2 3 A National Association for Law Placement
("NALP") press release in July 2011 indicated that 2010 salaries indicated a drop of median salaries for new lawyers of 13% and a mean
salary drop of 10%.24 In addition to massive downsizing, there were
fewer promotions and a fair number of partner demotions to non-equity status. 25 Virtually all of the direct impact of the market contracassociates, and 60% of Am Law 200's responding partners deferred associates in 2009
and 43% expected to do so in 2010, including apparently some who had already been put
off one year. Id. at 31-32 (footnotes omitted).
19. See Press Release, NALP: The Ass'n for Legal Career Profls, Market for Law
Graduates Changes with Recession: Class of 2009 Faced New Challenges (July 22,
2010), available at http://www.nalp.org/09salpressrel. NALP is reported to have found
that, of the lucky 88.3% of the Class of 2009 who got jobs after graduation, a quarter
only gained temporary employment and another ten percent got only part-time jobs.
See Job Market Proves Weak for Class of 2009, NAT'L JURIST (June 7, 2010, 2:45 PM),
http://www.nationaljurist.com/content/job-market-proves-weak-class-2009. The 88.3%
figure was the lowest rate reported since the mid-1990s. Id.
20. See Market Trends, NORTHWESTERN L., http://www.law.northwestern.edu/career/markettrends/ (last updated Mar. 2012). The Northwestern survey indicated that,
among large law firms, the permanent offer at the end of 2010 summer associate programs was 69%, down from 90% at the end of the 2009 summer programs. Id. According to the survey, the Class of 2011 will likely see even fewer job opportunities than in
earlier years. Id. The survey said the pipeline has in part been clogged by a common
reaction to decreased workflow that involved pushing back starting dates in earlier
years. Id. It indicated that deferrals had declined for the class of 2010 from what had
happened to members of the class of 2009. Id.
21. See Layoff Tracker, L. SHUCKS, http://lawshucks.comlayoff-tracker (last visited
July 5, 2011). As pointed out elsewhere, the numbers do not include many firms with
over 50 lawyers, and omits the fallout from dissolution or reorganization of others. See
Burk & McGowan, supra note 13, at 29 n.75.
22. See Burk & McGowan, supra note 13, at 29 n.76. As Burk and McGowan
pointed out, these figures are but "the tip of the iceberg" because they ignored the collapse of 12 out of the top 250 firms altogether. Id.
23. Jack Crittenden, The Good News About the Dismal Salary Reports, NAT'L JURIST (July 13, 2011, 4:47 PM), http://www.nationaljurist.com/content/good-news-aboutdismal-salary-report.
24. See Private Practice Jobs Erode, supra note 13. A NALP press release issued
July 7, 2011 indicated that almost all of the "hit" was in the private sector, where median salaries fell from $72,000 to $63,000 and mean salaries went down from $93,454 to
$84,111. Id. The press release quoted NALP's executive director, James Leipold, as
stating that virtually all of the fall was at the high end of the salary scale, where the
collapse of employment in big firms paying the highest salaries occurred. Id.
25. Burk & McGowan, supra note 13, at 30.
2012]
THE COMING CRASH IN LEGAL EDUCATION
659
tion was on the large blue chip firms, 2 6 though indirect pressure was
felt among the lower reaches of the graduating classes of 2009 and
2010 as the massive
contraction at the top of the salary scale . . . pushed a substantial number of competitive entry level job candidates
down the scale [and] displace[d] some of the graduates in the
job market who had in past years taken up less remunerative
27
positions in government and at smaller private firms.
Market conditions led to a radical decline in the number of people
employed in the legal services industry as it shrank all across the
country. 28 Writers began to complain that law schools were cranking
out 44,000 new lawyers a year for about 30,000 jobs. 2 9 So far, there is
scant evidence that the radical decline in the number of new graduates entering the big firms has shifted the salary curve back toward
being the bell-shaped curve that described the job market for new
graduates in earlier decades. 30 As the number of newly-minted attorneys going into the largest law shops has been cut in half, the second
"hump" of the bimodal demand curve has been trimmed to about half
its former size. The two-humped camel remains a camel, albeit a
31
strangely misshapen one, rather than an old fashioned dromedary.
III.
THE BOOM IN LEGAL EDUCATION
Legal education has grown and changed during the last forty
years. The law schools that we now have are housed in edifices that
are often the signature buildings of their university campuses. These
schools attract brighter students and employ more highly credentialed
26. Salaries in firms from 251 to 500 lawyers dropped the most, from $160,000 to
$145,000, and firms of 51-100 fell by the highest percentage, from $95,000 to $85,500.
Crittenden, supra note 23. Overall, median salaries among private employers fell from
$125,000 in 2008 to $104,000 in 2010. Id. The big reason the editor gave for the falling
figures was not that most firms were paying less, but rather that the big firms were
hiring fewer lawyers, thus driving the median down. Id. The big firms, which up to
2008 were hiring nearly a quarter of the graduating class, were hiring just about half as
many new graduates by 2010. Burk & McGowan, supra note 13, at 103-04. The recession had very little impact on small and medium sized firms. Ward B. Coe, III,
Profound "Nonchanges"in Small and Midsize Firms, 70 MD. L. REV. 364, 364 (2011).
27. See Burk & McGowan, supra note 13, at 104.
28. Annie Lowrey, How Law School Went from Being a Sure Thing to a Bum Deal,
WASH. POST, Oct. 31, 2010, at G04, available at http://www.washingtonpost.com/wpdyn/contentarticle/2010/10/30/AR2010103000211.html. According to Annie Lowrey, the
number of people employed in 2010 was 1.103 million, down 7.8% from the peak (in
June 2007) of 1.196 million. Id.
29. See, e.g., Ford, supra note 16.
30. See Salariesfor New Lawyers, supra note 13. NALP statistics indicate that the
bimodal pattern first developed in 2000 and has persisted in repeated studies since that
time. Id. In earlier studies the salary distribution curve was bell-shaped. Id.
31. See supra note 13 and accompanying text.
CREIGHTON LAW REVIEW
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faculties than ever before. Curricula are much more variegated than
in the past, enriched with many more clinics, skills courses, and specialized classes dealing with increasingly narrow and interesting topics. The student-teacher ratio at the modern law school has doubled,
and the scholarly productivity of modern law faculties would put to
shame earlier generations of law professors. The new faculties have it
good: higher salaries, lower course loads, and increasingly varied (and
often interdisciplinary) scholarship that makes law teaching one of
the best gigs in the country.
From the class entering law school in 1963 to the one entering law
school in 1986, first year law school enrollment more than doubled,
rising from 20,776 in 1963-64 to 40,195 in 1986-87.32 The growth continued into the next two decades, although the pace of increase declined. In 2009, American law schools awarded 43,000 Juris
33
Doctorate degrees, nearly 11% more than a decade earlier.
The increase in size of American law schools was accompanied by
an increase in the resources devoted to them. Many of these increases
involved significant improvement in the quality of legal education.
The average student-faculty ratio was radically cut. 34 The reduction
in the student-faculty ratio has increased the ability of legal education
to provide more skills training, expanded student services, better instruction in legal writing and research, expanded co-curricular activities, and much improved technology that has transformed the
information retention and retrieval systems and teaching tools of
32. John R. Kramer, Will Legal Education Remain Affordable, by Whom, and
How?, 1987 DUKE L.J. 240, 241 (1987).
33. David Segal, Is Law School a Losing Game?, N.Y. TIMES, Jan. 8, 2011, at BU1,
available at http://www.nytimes.com/2Oll/01/O9/business/O91aw.html?_r=l&scp=l&sq=
is%201aw%20school%20a%201osing%20game&st=cse.
34. John J. Costonis, The MacCrate Report: Of Loaves, Fishes, and the Future of
American Legal Education, 43 J. LEGAL EDUC. 157, 161 (1993). According to John Costonis, the student-teacher ratio at Harvard Law School in the 1920's was 78:1. Id. Such
numbers are presently unheard of. Id. According to Daniel Morrissey, between 1984
and 1991, law faculties expanded full-time professors by over 1,000 positions. Daniel J.
Morrissey, Saving Legal Education, 56 J. LEGAL EDUC. 254, 258 (2006). The ABA's consultant on legal education, John A. Sebert, has indicated that the ratio fell from between 26.1 and 35.1 from 1979-80 to an overall average of 18:1 in 1999-2000. See John
A. Sebert, Cost and Financingof Legal Education, 35 SYLLABUS 2 (ABA Section of Legal
Educ. & Admissions to the Bar, Chi., Ill.), Feb. 2004, at 4 [hereinafter SYLLABUS]. In the
view of the nation's major law school accreditation agency, a ratio of 20:1 or less is
presumptively within the standards. See John A. Sebert, The Cost and Financingof
Legal Education, 52 J. LEGAL EDUC. 516, 518 (2002) [hereinafter The Cost and Financing of Legal Education]. The National Jurist has indicated that the teacher-student
ratio has dropped 22% in the last 10 years and is roughly half of what it was in 1978.
Jack Crittenden, What to Make of the Rise in Faculty Size, NAT'L JURIST (Mar. 11, 2010,
8:14 AM), http://www.nationaljurist.com/content/what-make-rise-faculty-size. This has
led to increases in tuition, from $19,683 in 1998 to $34,298 in 2008 (private school average). Id.
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THE COMING CRASH IN LEGAL EDUCATION
661
modern law schools. 3 5 Law schools have radically expanded the depth
of services made available to students, offering and funding more cocurricular activities, larger job placement offices, and ever-expanding
support programs for weak students. The expansion in faculty has led
to the recruitment of young teachers with interdisciplinary backgrounds and expanded curricula that cover a welter of academic subjects and narrow legal specialties ranging from various aspects of
human sexuality to the law of elections. Legal education has involved
a longstanding conflict between those who see law school as essentially a trade school and those who would like its focus to be primarily
academic. 3 6 As this battle currently stands, the proponents of the aca35. See SYLLABUS, supra note 34, at 5.
36. See, e.g., Thomas F. Bergin, The Law Teacher:A Man Divided Against Himself,
54 VA. L. REV. 637 (1968); Paul Campos, Shame, 17 J. CONTEMP. LEGAL ISSUES 15
(2008); Richard A. Matasar, The Rise and Fall of American Legal Education, 49 N.Y.L.
SCH. L. REV. 465 (2004); Maimon Schwarzschild, The Ethics and Economics of American
Legal Education Today, 17 J. CONTEMP. LEGAL ISSUES 3 (2008); Alan Watson, Legal
Education Reform: Modest Suggestions, 51 J. LEGAL EDUC. 91 (2001). Schwarzschild
believes that the emphasis schools put on scholarship has the benefit of putting moral
and intellectual pressure on the profession to attempt to be more than a business.
Schwarzschild, supra, at 5. The author questions whether the cost to students can be
justified in any but a small number (between 20 to 30) of elite schools. Id. at 8. Campos
is less sanguine, suggesting that "the typical law school [is like] ... an uneasy combination of a seminary and a department of religion" filled with "confusion" about whether it
is "training lawyers or studying law as a subject of scholarly inquiry.., two tasks [that]
are to a significant extent incompatible." Campos, supra, at 22. In his view, "[T]o the
extent we are trying to do both, we will do neither well." Id. Matasar believes that law
schools have opted to teach neither law nor lawyering but only how to think like a lawyer. Matasar, supra, at 472. Watson critiques legal education for being neither good as
trade schools nor good at teaching legal theory. Watson, supra, at 92. He stated, "Despite the availability of several clinics, law teaching was emphatically not geared to the
practice of law." Id. Unlike Matasar, who found reprehensible the decision of law
school to pass on to others the responsibility to teach legal skills or at least enough law
to pass the bar examination, Watson found profoundly disturbing the discovery that law
students believe "that the sole-or virtually sole-purpose of law school should be to
provide training for the practice of law." Compare Matasar, supra, at 472, with Watson,
supra, at 93. In Watson's view, law school should focus on "the greater dimension of
law. Law teachers should cater to the needs of the lawyer philosopher as well as the
lawyer plumber." Watson, supra, at 93. Bergin, like Watson, argues that legal educators suffer from a kind of"intellectual schizophrenia" deluding them into believing that
they can be both good academics and good trainers in legal practice. See Bergin, supra,
at 638. In Bergin's view, nothing can be further from the truth. Id. at 642. Policy
analysis is so complex and demanding that, in his view, it "would be difficult to imagine
any student emerging from law school with anything more than half-baked policy notions unless he had devoted his full three years to the acquisition of policy-appraisal
skills." Id. Attempting to perform both roles forces scholars to waste talents on "rule
preaching and case parsing" and forces non-scholars to "produce vast tonnages of trivia
each year ... I refer the reader to that Forest Lawn of catalogues, the Index to Legal
Periodicals." Id. at 646. Bergin claims that,
[A] stroll through the Elective Courses section of a modern . . .catalogue is a
treat that should be kept for Christmas... [appearing as] a veritable gift shop
of ideas and... proof of the fact that law school can be fun and relevant at the
same time. But I am afraid that all the glitter ... is a glitter of paste.
CREIGHTON LAW REVIEW
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demic view of legal education appear to be winning. While the increase in live-client clinics seems consistent with the trade school view
of legal education, far more has been spent on curricular offerings on
the academic side of the ledger, as course choice beyond the first year
increasingly follows the scholarly interests and inclinations of the
more specialized faculty. 3 7 The expansion of the curricula reflects the
scholarly interests of law faculty, 38 which have taken on an increasingly academic twist that isolates teachers in legal education from
practitioners at the bar.3 9 The new emphasis on scholarship has more
Id. at 646. He attributes this fact to law faculty's lack of formal advanced training in
academic fields that are necessary to inform the discussion in these specialty courses
and the teachers' self-delusion that they are, in some essential and undiscovered way,
authentic academics. Id.
37. WILLIAM M. SULLIVAN ET AL., CARNEGIE FOUND. FOR THE ADVANCEMENT OF
TEACHING, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAw 89-90
(2007). The Carnegie Foundation Report strongly criticizes legal education for failing to
teach skills courses in any other than minor add-ons to an otherwise fixed curriculum.
Id. at 24. According to the report:
Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional
practice. The result is to prolong and reinforce the habits of thinking like a
student rather than an apprentice practitioner, conveying the impression that
lawyers are more like competitive scholars than attorneys engaged with the
problems of clients.
Id. at 188.
38. See Richard A. Matasar, Defining Our Responsibilities:Being An Academic Fiduciary, 17 J. CONTEMP. LEGAL ISSUES 67, 71 (2008). Curricula are focused not on what
students want to learn but what teachers want to teach. Id. Evaluation is infrequent
and grades often late because of other "priorities." Id. Schools promote absence to go to
conferences, do scholarship, or anything but wasting time on students, which does little
to promote the reputation of the institutions or the personal careers of the teachers. Id.
In an earlier piece, Matasar noted that teachers historically justified not teaching students lawyering skills with assumptions that somebody else-the firms, agencies, or
future employers of the students-would train them after they were hired. Matasar,
supra note 36, at 472. Armed with such assumptions, he argued, faculties could focus
on larger questions of justice and the normative bases of law-topics that fitted nicely
into the research agendas of university-based colleges and would be consistent with the
reward system for faculty compensation for research. Id. According to Matasar,
changes in legal practice settings has meant that many young lawyers would not receive
much in the way of mentoring once they entered practice and therefore need skills
training in law school so they could be "practice ready" before they went to work after
law school. Id. at 473. But law schools did not build their ability to compete on their
success in making students practice ready. Instead, law schools were caught up in a
ranking system that did not take into account what skills students had learned or how
well they did in the market place, but instead focused on inputs-the skill level of students as they entered law school, the number of faculty that taught them, and the extent to which their faculties were well known in the profession. Id. at 481.
39. See Harry H. Wellington, Challenges to Legal Education: The "Two Cultures"
Phenomenon, 37 J. LEGAL EDUC. 327 (1987). The alienation of law teachers from other
members of the bar is well documented. One writer notes that the two groups of lawyers do not even speak in the same language. "[Liaw teachers talk differently from
practicing lawyers. In the Sterling Law Building and elsewhere one hears heated conversations about hermeneutics, externalities and deconstruction." Id. at 327. In Wellington's view, "Too many very able academic lawyers who... do not venture outside
20121
THE COMING CRASH IN LEGAL EDUCATION
663
than counterbalanced the effect of the clinical education movement to
40
focus legal education on helping educate students in tradecraft.
Law schools have vigorously competed with one another to increase brand recognition and institutional status. Since the mid1990s, this competition has focused on increasing a school's ranking in
the annual survey of law schools published by U.S. News and World
Report, a popular national magazine. At least until recent years, the
students at the highest-ranked schools stood the best chance of cashing in on the huge increase in top salaries among the increasingly
the ivy-covered walls, scorn the practicing lawyer and his work (deprecate it) and look
for rewards only within the universities. This is an established phenomenon. It is now
visible in a second generation of law teachers." Id. at 329.
One should note that Wellington was writing in 1987. If anything, the gulf between
academic and practicing lawyers has widened since he wrote. Judge Harry T. Edwards
repeatedly bemoaned the tendency of academic lawyers to disdain practitioners, the
value of practice, and even of "traditional" scholarship that might be beneficial to judges
and practitioners of the bar. See Harry T. Edwards, The Growing DisjunctionBetween
Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 37-55 (1992); Harry T.
Edwards, The Role of Legal Education in Shaping the Legal Profession, 38 J. LEGAL
EDUC. 285, 292 (1988). According to Dean Matasar, law school incentive systems focus
faculty on writing for other academics, in order to enhance school rankings, rather than
encourage them to focus on teaching students. Matasar, supra note 38, at 71. Teachers
are taught to write articles for people who will judge them for tenure, invite them to
conferences, help them move up (and perhaps out of) an institution, and increase the
institution's profile among academic lawyers. Id. at 72. Faculty are easy marks for this
kind of agenda, for they yearn for academic respectability in the universities in which
they teach and vigorously eschew any notion that they should be identified with trade
school training. See Bergin, supra note 36, at 638 (referring to the "raw lusting for
academic respectability" that afflicted most law teachers of his day). Bergin acknowledged that the need to teach legal tradecraft made most law teachers intellectual
.schizophrenics" and led many of them to engage in academic posturing that was genuinely beyond their capacities. Id. at 639. To eliminate the "inefficiencies" this schizophrenia created for law schools, Bergin recommended transforming law schools into two
track institutions, one focusing on academic matters and utilizing Ph.D. trained experts
in policy analysis while the other became more clearly focused on teaching people how
to practice law. Id. at 652-53. His emphasis on hiring highly trained people from other
disciplines to flesh out law faculties foreshadowed a current trend in legal education.
40. See Bergin, supra note 36, at 640-41. The goal of making legal education a
primarily academic subject is one legal educators have pursued for over half a century.
Id. at 640. The American legal realists pushed the argument for interdisciplinary learning as an aid to training lawyers. Id. An influential article in the Yale Law Journal
shifted the focus much further toward enhancing the academic respectability of legal
education by arguing for the use of social science research in legal education to enable
lawyers to become more effective policy-makers who could then advance democratic values throughout society. See Harold D. Lasswell & Myres S. McDougal, Legal Education
and Public Policy: ProfessionalTrainingin the Public Interest, 52 YALE L.J. 203 (1943).
Bergin praised Lasswell and McDougal's decision to focus on policy analysis, but noted
that the revolution suggested by Lasswell and McDougal failed to occur, in part because
policy analysis was much more difficult than acknowledged and, in part, because the
legal education establishment was unwilling, at least at the time he was writing, to
abandon its commitment to training lawyers for private practice, which Bergin believed
would be a necessary concomitant to a three-year degree program training attorneys in
policy analysis. See Bergin, supra note 36, at 642-43.
CREIGHTON LAW REVIEW
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large corporate law firms of the country. 4 1 In any event, vast sums
are spent on marketing each law school in an attempt to enhance each
school's place in the rankings.
The U.S. News rankings themselves encourage this sort of marketing mentality. 4 2 The rankings play directly into the psychological
needs of students and teachers across the board, because they feed
directly into the almost unconscious worship of hierarchy, however illegitimate, that afflicts law students, law teachers, and the legal services industry. 4 3 The mania for prestige drives faculties to become
egg-headed status seekers who worship at the shrine of academic accomplishment without realistic consideration of how pursuit of their
goals may affect the students or public the faculties are nominally
44
called to serve.
The U.S. News system says little about the quality of what goes
on in the law schools being ranked 45 or even what kinds of pay-offs
41. The large law firms at one time recruited almost exclusively from a narrow
group of top schools. When BigLaw's need for new blood outgrew what the prestigious
schools could produce, the large firms began to recruit from midlevel and higher schools
whose rankings fell outside the Top 10 or T-14 level of prestige law schools. Whether,
and to what extent, the large corporate firms will continue to recruit below the top tier
law schools after the Great Recession is an open question.
42. See N. William Hines, Ten Mqor Changes in Legal Education Over the Past25
Years, AALS NEWS (Ass'n of Am. Law Sch., Wash., D.C.), Aug. 2005, at 3-4, availableat
http://www.aals.org/documents/aals -newsletter-aug05.pdf. The U.S. News rankings
have affected the way deans pursue their responsibilities in destructive ways. Id. The
rankings have been roundly criticized for the way in which they distort data by giving
improper recognition to qualities about the schools being rated. See Malcolm Gladwell,
The Order of Things: What College Rankings Really Tell Us, THE NEW YORKER, Feb. 14,
2011, at 68, available at http://www.newyorker.com/reporting2011/02/14/110214fafact
_gladwell.
43. See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32
J. LEGAL EDUC. 591 (1982). Kennedy noted "law teachers are intensely preoccupied
with the status ranking of their schools and show themselves willing to sacrifice to improve their status in the rankings and prevent downward drift." Id. at 603. He argued
that legal education spends too much time accentuating differences between strong and
weak students rather than investing more time in systematic skills training and feedback, and fails "to prepare students to run a small law business, to assess realistically
the outcome of a complex process involving many different actors, or to enjoy the feeling
of independence and moral integrity that comes of creating their own job to serve their
own goals." Id. at 602.
44. In his article, Kennedy discusses at length the tendency of legal academics to
mask how hierarchical legal education and legal institutions are. See id. at 594-607.
He concludes, "The denial of hierarchy is false consciousness." Id. at 610. The blindness with which legal academics pursue the value of prestige is equally false. Id. at 604.
Years ago, social commentary ridiculed the way Americans pursued social status while
flatly denying the existence of class in American life; one bestseller, Vance Packard's
The Status Seekers (1959), was so successful that for years being called a "status seeker"
was to be insulted, almost as bad as being called a "phony" by Holden Caulfield, the
protagonist in J.D. Salinger's The Catcher in the Rye (1951).
45. Robert Morse & Sam Flanigan, Methodology: Law School Rankings, U.S. NEWS
& WORLD REP., Mar. 12, 2012, available at http://www.usnews.com/education/best-graduate-schools/articles/2012/03/12/methodology-law-school-rankings (explaining the rank-
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THE COMING CRASH IN LEGAL EDUCATION
665
students can get from getting a legal education at any particular institution. The status of a school among academics in other law schools
accounts for twenty-five points out of a possible one-hundred on the
U.S. News scale, and it should not be surprising to see schools attempting to enhance their status by improving research agendas,
which do far more to enhance the lives of their faculties than it does to
improve in any direct sense the education of their students. 4 6 Teachers are given lighter teaching loads, smaller classes, and summer
writing stipends. Teachers are asked to put together seminars for
scholars from across legal education at the teacher's home school, all
in the name of raising their institution's flag among faculty peers
whose rating of the institution is heavily weighted in U.S. News rankings. 47 Schools raid other faculties to attract scholarship "stars" in
ings of the law schools). The proposition that U.S. News numerical rankings of law
schools are "objective" is absurd. Id. A whopping 40% of each school's score depends on
its reputation among peers (25%) and bench and bar (15%). See id. Much of the rest of
the rankings relate to "inputs" into the schools, not their outputs. Thirty-seven and one
half percent of the score turns on what it has to work with to begin with-how good its
incoming student credentials are (22.5%) and what percentage of applicants were not
accepted (2.5%), along with what it had available in "faculty resources" (15%), which are
broken down into expenditures per student (9.75%), financial aid (1.5%), student-faculty
ratio (3%), and library volume count (0.75%). See id. The balance of a school's score
(20%) consists of placement success of graduates, with 4% going to employment after
graduation, 14% going to placement nine months after graduation, and 2% going to bar
passage rate. See id. The placement data is vague, since it says nothing about what
kind of work setting or rates of remuneration the graduates may be earning, failing
even to differentiate between full and part time employment or legal and non-legal employment. See id. Even U.S. News concedes the placement data has been less than fully
adequate in the past, and there is substantial evidence that it has been subject to considerable "padding" by the schools that report it. See infra notes 100-03 and accompanying text.
46. See Kenneth Lasson, Compelling Orthodoxy: Myth and Mystique in the Marketing of Legal Education, 10 U.N.H. L. REV. (forthcoming 2012), available at http:llworks.
bepress.com/cgi/viewcontent.cgi?article=1007&context=kennethlasson
(arguing that
marketing values so permeate law schools' support of scholarship as to threaten academic freedom).
47. See Morse & Flanigan, supra note 45. U.S. News assesses the "quality" of a law
school as counting forty percent of its rankings score. See id. The bulk of this factor
(25%) is given to peer assessment, which consists of how the schools are rated by deans,
teachers, and newly tenured faculty members. See id. It is a small wonder that some
law schools shower every law teacher in the United States with slick promotional
brochures informing them of such exciting topics as who the publishing institution's
new faculty members are and what new publications have come out of the faculty during the past several months.
The other 15% comes from lawyers and judges, whose "votes" are assiduously
courted by schools seeking to move up in the standings. Since law firms notoriously hire
law school graduates based on the "brand" of their schools, weighing it equally with
class rank or grades earned in law school, it should not be shocking that law school
rankings among the lawyers in the firm do not change much over time. See Burk &
McGowan, supra note 13, at 108. The elite firms contain a disproportionate number of
graduates from elite law schools, but that does not show that the elite schools are what
got the partners their jobs; instead, since the elite schools draw topflight students in the
first place, the number who end up in elite firms shows nothing about "the value added
CREIGHTON LAW REVIEW
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much the same way that baseball franchises outbid one another under
modern free-agency rules. 48 Scholarship is only one part of a law
school's marketing expense that does not directly accrue to the educational benefit of its students. Many schools publish slick brochures
that are sent to every law teacher in the United States informing
them of such exciting topics as who the publishing institution's new
faculty members are and what new publications have come out of the
faculty during the past several months.
A second high-ticket marketing mechanism is the use of financial
aid and tuition discounts afforded to law school applicants, not on the
basis of need, but on their academic credentials. The goal is to bribe
the more talented among them to matriculate at the donor school
rather than enroll in one of its closest competitors. Why? Because one
of the major factors U.S. News counts in evaluating a school is the
percentage of newly entered students that come in with high Law
School Admissions Test ("LSAT") scores and high cumulative Grade
Point Averages ("GPA"). 49 For example, at one law school a professor
was delighted to learn that the university's new dean had gotten the
school to increase scholarship aid by a factor of five. Unfortunately,
the professor was then crestfallen when it was revealed that every
dime of the increase was aimed at attracting the best and the brightest, people who clearly did not need monetary aid to go to school anywhere near as much as the institution which paid them needed them
to help raise its status in the U.S. News sweepstakes. In effect, the
school needed these students far more than the students needed the
school. 50 As the number of merit scholarships increases, the number
by the elite degree[s]." See Richard H. Sander & Jane Yakowitz, The Secret of My Success: How Status, Prestige,and School Performance Shape Legal Careers 19 (UCLA Sch.
of Law, Research Paper No. 10-26, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstractid=1640058. Since the list of schools in the top ten-or T-14, in current parlance-has not changed since I went to law school in the 1960s, it is doubtful
that much will result from the efforts of some schools to boost reputations among all the
lawyers and judges in the land.
48. See Clayton P. Gillette, Law School Faculty as Free Agents, 17 J. CoNTEMP.
LEGAL ISSUEs 213 (2008) (noting that service and teaching are given short shrift in free
agency marketing; what counts is the agent's scholarly reputation).
49. See Morse & Flanigan, supra note 45. The current method for ranking law
schools uses 12 factors to determine a school's rankings. Id. Median LSAT scores
counted for 12.5% of the score and median undergraduate GPA scores counted for 10%.
Id.
50. See The Cost and Financingof Legal Education, supra note 34. John A. Sebert,
then the ABA's consultant on legal education, noted that between 1993-94 and 19992000, ABA accredited law schools had a higher increase in the cost of financial aid
(87.4%) than in any other cost factor, including salaries and benefits (36%), library operations (29.8%) and other law school operations (58.5%). Id. at 519. The phenomenon of
tuition discounting was almost unknown until the 1970s, but by the early 2000s was
widely criticized as raising the cost of higher education generally and, thus, severely
interfering with the opportunities of students of modest means to get into and graduate
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THE COMING CRASH IN LEGAL EDUCATION
667
of need-based scholarships decreases,5 1 so that currently it now "appears that virtually all law school financial aid has been redeployed in
the service of law school rankings."52 The percentage of law students
receiving such aid, either in the form of merit scholarship awards or
tuition discounts, "hovers in the vicinity of 50 percent."5 3 Such grants
only help those students with LSATs and GPAs above the median, as
only they can help law schools enhance their rankings. 54 The new regime of providing so many merit scholarships is antithetical to the
mission of education to help level the playing field for poorer students.
Since scholarship aid is paid for out of tuition, the effect of the new
merit awards is fundamentally regressive rather than progressive.
Given the advantages young people from wealthy backgrounds have
before law school, the regime that rewards those with high scores is
highly likely to force young people from working class neighborhoods
from schools. See Tim Goral, Is Discounting Dangerous? Caught in an 'Arms Race,'
Higher Education Needs to Find a Way Out of the Tuition DiscountingSpiral - Tuition
Management, U. Bus., Aug. 2003, available at http://findarticles.com/p/articles/
mimOLSH]is_8_6/ai_106949651/; John L. Pulley, New Report Warns of the Dangers of
Tuition Discounting, CHRON. HIGHER EDUC., Jan. 26, 2001, http://chronicle.com/article/
New-Report-Warns-of-the/25938/. According to a recent New York Times article, in the
last decade American law schools "have gone on a giveaway binge." See David Segal,
How Law Students Lose the Grant Game as Schools Win, N.Y. TIMES, May 1, 2011, at
BU1, availableat http://www.nytimes.com/2011/05/01/business/law-school-grants.html?
pagewanted=all. In 2009, ABA data indicated that 38,000 out of 145,000 students enrolled in American law schools were on scholarship, raising the cost of scholarship aid to
over $500 million. Id.
51. See Segal, supra note 50. According to Segal's article, the number of needs
scholarships fell from 20,000 to under 18,000 over the past five years. Id.
52. See William D. Henderson & Andrew P. Morriss, What Law School Rankings
Don't Say About Costly Choices, NAT'L L.J. (Apr. 14, 2008), http://www.law.com/jsp/nlj/
PubArticleNLd.jsp?id=900005508485.
These merit scholarships have been criticized as "bait-and-switch" mechanisms for
corralling matriculates with promises of a cheap legal education only to take the scholarships away in the upper years of law school because of failure to comply with hidden
stipulations about what must be done to keep them. See Segal, supra note 50. Segal
noted that one school granted far more scholarships to entering first year students than
its budget permitted it to renew, bringing students in with the full understanding that
only a small percentage would do well enough to hold onto their scholarships in the
second and third years and hence would have to pay the full rate later on. Id. As Segal
points out, while details vary, 80% of the law schools about which information is public
apply stipulations that make keeping a merit scholarship problematic for incoming students who are unlikely to understand what the limitations of keeping their scholarships
actually mean. Id. Segal conceded, "[t]here is nothing inherently wrong with incentives
that ask students to earn strong grades in exchange for a break on tuition. But given
that students are often shocked when their scholarships disappear, there are some basic
questions about good faith and disclosure here." Id. As noted elsewhere, law schools
understandably may be reluctant to publish statistics regarding what percentage of
merit scholarships are lost after the first year, but there is pressure on them to make
such disclosure. See Philip Nannie, Losing Merit, NASHVILLE POST, May 23, 2011, http:/!
nashvillepost.com/news/2011/5/23/losing-merit.
53. See Henderson & Morriss, supra note 52.
54. See id.
CREIGHTON LAW REVIEW
[Vol. 45
to subsidize the law school studies of students raised on "the other
side of the tracks." 55 It is difficult to justify making kids from Brooklyn and the Bronx pay for the educations of those raised in Greenwich
or on Sutton Place. Policies that encourage this kind of hidden tax on
disadvantaged students are inconsistent with the obligations schools
owe the states that subsidize them, the charitable purposes of private
donors who give to them, and the overriding obligation the schools
have to treat their students with the concern and consideration a fidu56
ciary owes to those whose interests are entrusted to it.
The increase in cost of legal education can be seen in the increase
in tuition rates at U.S. law schools. Between 1974 and 1986, in-state
students at state universities had average tuition increases of 9.6%
55. William D. Henderson & Andrew P. Morriss, How the RankingsArms Race has
Undercut Morality, NAT'L JURIST, Mar. 2011, at 8, available at http://www.napla.org/
conf2011/presentations/National%20Jurist%2Rankings%2Article,%2OMar%202011.
pdf. Moreover, not only do more affluent students have their educations subsidized by
poorer ones, but the former group tends to get the high grades needed to get the better
paying jobs afterwards, while the latter group are likely to end up with the highest law
school debt and the worst job prospects. Id.
56. The point is well put by Richard A. Matasar where he rejects what he calls
legal education's "traditional model" based on teaching, scholarship, and service, derisively labeled our "holy trinity," and also distrusts a business model for legal education
focusing on stakeholders, including students, graduates, donors, and regulators. See
Matasar, supra note 38, at 69; Richard A. Matasar, Private Publics,Public Privates:An
Essay on Convergence in HigherEducation, 10 U. FLA. J.L. & PUB. POL'Y 5 (1998); Richard A. Matasar, A CommercialistManifesto: Entrepreneurs,Academics, and Purity of
Heart and Soul, 48 U. FLA. L. REV. 781 (1996). In Matasar's view, the old models make
law schools ignore intangible values, which create proper accountability measures that
ought to underlie their work and which are needed to prevent the law school's ultimate
failure. Matasar, supra note 38, at 69. He calls for shifting from a faculty centered
enterprise to an "emerging trust model." See id. at 70. The dominant "faculty centered"
approach to legal education assumes that value will trickle down to students if faculties
are encouraged to do the scholarship they want. Id. at 83. In his view, much as trickledown economics has little benefit for the poor, trickle down faculty benefit is overrated
as a way of giving value to students. Id. Instead, he believes that all law school investments should be prioritized in terms of serving students, not faculty. Id. at 83. In his
view, chasing law school rankings inevitably skews spending preferences in favor of
servicing faculty, not students. Id. The biggest barrier to fulfilling duties to optimally
educate students is caused by a misguided quest for higher prestige. Id. at 95. The
current regime's logic is: the better your students, the higher the rank; the higher the
rank, the better students' job prospects; the better the prospects, the better the students
who will enroll, etc. ad nauseam. Id. at 95. The nexus between higher prestige and
improvement in student opportunities is extraordinarily attenuated, and the hunt for
future prestige is inevitably funded by diminishing what can be provided current students. Id. at 95-96. Investments to obtain higher prestige are justified by hope that it
will improve students' opportunities-a connection that is attenuated at best. Id. at 95.
The hunt for future prestige diminishes what is given the current generation-a hidden
tax on present students' investments. Id. at 95. At a minimum, this should be disclosed. Id. The failure to be candid and scrupulous about our priorities often produces
buyers' remorse, as students realize that schools value what they claim to reject by
demonstrating through their actions that they privilege the very things U.S. News rates
even as they claim to reject the ratings game. Id. at 96, 112-13.
2012]
669
THE COMING CRASH IN LEGAL EDUCATION
while those at private institutions had average increases of 11.3%. 57
Later, as the table in the footnote suggests, average increases in public schools continued to rise at an even faster pace than those of their
private counterparts. 5s Even so, private school tuition and fees rose
73% between 1999 and 2009. 59 Overall, increases in public and priinvate school tuition rates have consistently more than doubled
60
creases in the cost of living for a quarter century or more.
There once was a time when a student might realistically expect
that parental assistance could go a long way toward funding her legal
education. During the Kennedy Administration, for example, a federal employee with a GS-9 (Step 1) salary rating could have paid for
his or her child's first year at Harvard Law School in 1961-62 with
18.7% of the parent's pre-tax income. 6 1 The numbers sound not of this
57.
58.
See Morrissey, supra note 34, at 262.
PUBLIC SCHOOL V. PRIVATE SCHOOL TUITION TABLE
Public School TuitionPub School TuitionResident
Non-Resident
Average Tuition Increase Average Tuition Increase
Private
Average Tuition Increase
1988
$2,608
-
$6,017
-
$9,562
-
1992
1996
2000
2004
2008
$4,015
$5,955
$7,790
$11,860
$16,836
53.9%
47.6%
30.8%
52.2%
42.0%
$9,070
$12,419
$15,683
$21,905
$28,442
50.7%
36.9%
26.3%
39.7%
29.6%
$14,204
$17,083
$21,920
$27,005
$33,985
48.5%
20.3%
28.3%
23.2%
25.8%
This table is derived from ABA collected data. Law School Tuition, A.B.A., 1, http://
www.americanbar.org/content/dam/abamigrated/legaled/statistics/charts/
stats_5.authcheckdam.pdf.
59. See Debra Cassens Weiss, Cooley Dean Decries 'Apocalyptic'View of Legal Markets, Cites Market Stats, A.B.A. J. (Dec. 8, 2011, 8:08 AM), http://www.abajournal.com/
news/article/cooley lawdeanhits.apocalyptic-view.ofjlegal-marketcitesemploymentstat/.
60. For the periods set out above, cost-of-living ("COL") index increases were considerably less than half the increases in school tuitions. The cost of living figures were
derived from the United States Department of Labor, Statistics: Inflation & Consumer
Spending, U.S. DEP'T LAB., http://www.dol.gov/dol/topic/statistics/inflation.htm (last visited Apr. 4, 2012).
COST OF LIVING TABLE
COL
Public Resident
Public Non-Resident
Private
50.7%
48.5%
1988-1992 18.4%
53.9%
47.6%
36.9%
20.3%
1992-1996 11.6%
26.3%
28.3%
1996-2000 12.4%
30.8%
23.2%
52.2%
39.7%
2000-2004 9.7%
29.6%
25.8%
2004-2008 15.6%
42.0%
61. See Kramer, supra note 32, at 241 (providing Harvard Law School's 1961-62
tuition amount); see also General Schedule Pay Tables from 1949 to 1993, U.S. OFF.
PERSONNEL MGMT., http://www.opm.gov/oca/prel994/Index.asp (last visited Apr. 4,
2012). I derived more recent GSA Pay information from a link to the just cited source,
which takes one up to the present. Use of the GS-9 (step 1) figures here and in subsequent text is designed to provide some real-world perspective to what the growth in law
670
[Vol. 45
CREIGHTON LAW REVIEW
world, as remote as the dinosaurs, but the time period is within the
lives of our older teachers. The reason the cost of a Harvard education
in 1961-62 sounds laughably cheap by today's standards is that the
cost of legal education has mounted over the past few decades so much
more rapidly than the cost of living that the difference is hard to digest. The federal salary scale has increased over time, as has the general cost of living, but nowhere near the increase in the cost of law
school tuition. During the past two decades a parent with a GS-9 salary would have found the task of paying for even one year's tuition of
her child's law school education increasingly daunting, regardless of
whether the child chose to go to an in-state publicly supported law
school or a fully private institution. For example, such an employee
would have to spend 11.4% of her pre-tax income on her child's tuition
in a public in-state school in 1988 and would have to pay 41.7% of her
pre-tax income to pay for a private school education in that year. 62 By
2008, such an employee would have to cough up 35.0% of her annual
salary to pay for public in-state school tuition and a whopping 70.6%
of her annual salary for the average private school's tuition.6 3 And, of
course, these are merely average tuition costs for a single year. Many
schools are more expensive than the mean, the cost of legal education
extends way beyond tuition, and the standard accredited law school
requires a student to take at least ,three years of study to gain her
degree.
school tuition costs has meant for the American family. I use these federal employees
because they are so ubiquitous across the society. GS-9 rated employees hold mid-level
managerial and professional positions in the federal bureaucracy and earn modest but
decent incomes as public servants. Their salary scales have increased over time, keeping pace with the cost of living index, but nowhere near the increase in law school
tuition.
62. See supra note 57 and accompanying text. Comparing past average tuition
costs with the current GS-9 Step 1 salary indicates that a federal employee earning
such a salary would have to pay an increasingly large share of pretax income should she
actually decide to pay for her child's year at a law school of the child's choice.
PAST AVERAGE TUITION COSTS WITH CURRENT
1988
1992
1996
2000
2004
2008
GS-9
SALARY TABLE
Public School- Resident
Public School-Nonresident
Private School
11.4%
14.4%
19.4%
22.0%
28.4%
35.0%
26.3%
32.5%
40.5%
44.2%
52.4%
59.1%
41.7%
50.9%
50.9%
55.7%
64.6%
70.6%
See supra notes 58, 61.
63. Id.
20121
IV.
THE COMING CRASH IN LEGAL EDUCATION
671
THE BURDEN OF STUDENT DEBT
For years, legal educators have been concerned about the increasing cost of legal education and its impact on whether college seniors
might become unable to finance law school or have the cost of such
education unduly influence the kinds of career choices they would
have to make. As early as 1987, John Kramer complained that "[Iaw
schools for the last twenty years have been testing the elasticity of
demand for their product." 64 The skyrocketing increases in tuition
costs led Richard A. Matasar to ask, "How long can Americans continue to raise the price of our education, without jeopardizing the existence of our institutions (or without changing them to increase their
value)? Can we be like Eton and defy the law of educational gravity:
65
what goes up must come down?"
The enormous increases in the cost of legal education have been
difficult for students to finance. Legal education has always been expensive, with costs consisting of lost income caused by delay in entering the workforce, living expenses, and law school tuition, books, and
fees. Obviously, all of these costs have gone up, as has the cost of living over the past half century. But there is no question that at one
point, middle class people would find funding legal education for their
children, particularly at a state law school, manageable. In those
days, I do not recall many students griping about going into debt to
complete their educations; the fact is that, for all but the poor, help
from parents, summer jobs, clerking positions (if the school were in a
major population center), and frugal living often made it possible to
get through law school without graduating with huge financial obliga66
tions hanging over the new graduate.
As predicted by people like Kramer, the only way students could
pay these increases was through borrowing. The credit industrywith a healthy amount of federal support-helped students defray the
increasing costs by allowing them to borrow enough money to pay the
mounting tuition bills as well as the inevitable increases in other costs
of graduate education. Over time, the dependence on credit created an
entirely different way of funding higher education. In the last decade
64. Kramer, supra note 32, at 240. John Kramer noted that, during the period, law
school tuition had gone up by factors as much as nine, e.g., Harvard from $1250 in 196162 to $11,135 in 1987, and even higher at other private schools. Id. Kramer predicted
that law schools will increasingly be limited to educating only the children of wealthy
families and that the huge costs of education would eventually force a radical increase
in the cost of legal services as students, caught in what he called a "debt-driven financing regime," would be forced to pay off their debts by charging ever increasing fees for
their services. See id. at 241.
65. Matasar, supra note 36, at 466-67.
66. Parental help was usually crucial, because need-based scholarships and government support for graduate school were both severely limited.
CREIGHTON LAW REVIEW
[Vol. 45
alone, the average law graduate has accumulated an increasingly
large amount of debt to go to law school. 6 7 Today, nearly nine out of
ten students have to borrow, heavily, to get a legal education. 68 In
2008, 88.6% of newly graduated law students owed law school debts
averaging $80,081.69 According to a report from the American
Bar Association, debt from private law schools runs much higher than from public institutions; the average debt of 2008-2009
graduates from private schools was $100,002 while that from public schools was $66,045.70 In many cases, these students also owe
debts for undergraduate education antedating law school, 7 ' so
67. Private law school graduates end up owing considerably more than their public
school counterparts, but both groups have been mounting up increasingly burdensome
debt loads over the past decade. Recent figures are substantially greater for recent
graduates than for those coming out of school just a few years earlier. See table below.
Note that these figures do not cover all student indebtedness: what is covered only includes federally subsidized loans for law school, leaving both private loans and pre-law
school educational loans uncounted.
DEBT LOADS TABLE
2001-2002
2002-2003
2003-2004
2004-2005
2005-2006
2006-2007
2007-2008
Public
Private
$46,499
$45,763
$48,910
$51,056
$54,509
$57,170
$59,324
$70,147
$72,893
$76,553
$78,763
$83,181
$87,906
$91,506
Average Amount Borrowed for Law School, A.B.A., 1, http://www.americanbar.org/
contentldamlaba/administrative/legaleducation and-admissions to the bar/council_
reports andresolutions/2001_2010 avg-amt-borrowed.authcheckdam.pdf (last visited
Apr. 4, 2012).
68. See Student Loans, FINAID.ORG, http://www.finaid.org/loans (last visited Apr. 4,
2012).
69. See id.
70. See Equal Justice Works, Graduate School Debt Often CurtailsPlans of Nonprofit Work, U.S. NEWS & WORLD REP., May 25, 2011, http://www.usnews.com/education/blogs/student-loan-ranger/2011/05/25/graduate-school-debt-often-curtails-plans-ofnonprofit-work. As the U.S. News article indicates, these figures represent substantial
increases. Id.
71. According to FinAid, figures derived from the Department of Education's National Postsecondary Student Aid Study ("NPSAS") indicate that two thirds of college
graduates in 2007-08 owed an average of $23,186. See Student Loans, supra note 68.
FinAid reported that average cumulative debt rose 5.6% or $1,139 a year between 200304 and 2007-08. Id. According to Department of Education figures, the amount of undergraduate student debt is not evenly distributed among students; instead, those from
homes with modest incomes are likely to owe more money than those from richer families. See U.S. DEP'T OF EDUC., 2007-08 NATIONAL POSTSECONDARY STUDENT AD STUDY 7
(2009), available at http://nces.ed.gov/pubs200912009166.pdf. The amounts were not
evenly distributed among graduates. Id. A higher percentage of those from homes with
modest incomes were likely to owe debt than those who came from richer families. Id.
The FinAid Student Loans Report indicated that among graduates from public universities, 61.1% averaged cumulative debt of $19,839 in 2008, while 70.6% of those from
2012]
THE COMING CRASH IN LEGAL EDUCATION
673
that the aggregate amount of debt at the end of law school is even
72
higher.
The burden of debt is not evenly felt among law graduates.
Ninety-five percent of African-American graduates owe debt, as compared to only eighty-one percent of white graduates, 73 and poorer stuprivate non-profit institutions owed $27,349 and 97% of those from private for-profit
institutions owed $24,635. Student Loans, supra note 68.
While the average borrowed was $23,186, the FinAid Student Loans Report indicated that the median was lower-$19,999. Id. A quarter borrowed $30,526 and a
tenth borrowed $44,668. Id. The number with substantial debt-40,000 or more, coming out of undergraduate school-included 9.5% of all graduates and 14.6% of those who
borrowed money. Id.
72. According to FinAid, in 2007-08, 88.6% of law graduates owed cumulative undergraduate and graduate school debt averaging $92,937. See Student Loans, supra
note 68. Virtually all (99.9%) of the law graduates who asked for federal aid ended law
school in debt, owing $82,601 on average for law school and $95,914 on average for all
school debts cumulatively. Id. Moreover, average debt figures do not accurately reflect
the extraordinary indebtedness poorer and needier students are likely to have incurred
in order to graduate from law school. While there are no figures for 2007-08, the final
report of the ABA Commission on Loan Repayment and Forgiveness indicated wide disparities among law graduates in terms of the amount of law school debt owed. See ABA
COMM'N ON LOAN REPAYMENT & FORGIVENESS, Lifting the Burden: Law Student Debt as
a Barrier to Public Service (Curtis M. Caton et al. eds., 2003), available at http://www.
americanbar.org/content/dam/aba/administrative/legal-aid -indigent-defendants/ls -scl
aid-lrapfinalreport.authcheckdam.pdf [hereinafter LIFrING THE BURDEN]. The median
debt lay somewhere between $60,000 and $75,000. Lifting the Burden, supra, at 24.
But 6% owed $140,000 or more. Id. The report laid the figures out in Table 4 below:
TABLE
4
REPORT
Borrowed less than $20k
$20,000-39,999
$40,000-59,999
$60,000-79,999
$80,000-99,999
$100,000-119,999
$120,000-139,999
$140,000 or more
17%
10%
22%
19%
17%
5%
14%
6%
Id. at 24.
These ABA figures have only gotten worse over time. The ABA study had shown
87% of all law students in 2002 had to borrow to finance their legal educations, with the
average loan doubling during the 1990s. Id. at 10, 17 (providing data in Table 2). The
trend has continued. In 2002, the figures were over $80,000 in law school debt alone,
without regard to undergraduate debt. Id. at 10. Within two years, the median debt for
law school graduates had grown to $67,000 for graduates from state schools and over
$98,000 for graduates from private schools. See Morrissey, supra note 34, at 264. Law
student debt has increased markedly in recent years. According to Debra Cassens
Weiss, in 2009, 29% of law graduates expected to owe more than $120,000 upon graduation, up from 23% in 2008, 19% in 2007 and 18% in 2006. See Debra Cassens Weiss,
Almost 1/3 of Law Students Expect to Graduate with 129K Debt, A.B.A. J. (Jan. 26,
2010, 9:23 AM), http://www.abajournal.com/news/article/almost1 3 of lawstudents_
expect to-raduatewith_120k indebt/.
73. See Leipold & Hanson, supra note 5. The mean debt owed by African-American
students was $72,800, while that of whites was $70,990. Id.
CREIGHTON LAW REVIEW
[Vol. 45
dents are more likely to be heavily indebted than those who come from
74
affluent backgrounds.
A number of governmental efforts have been made to alleviate the
burdensome increases in costs to would-be attorneys. Individual
need-based scholarship aid run by institutions and charities tends to
be focused on undergraduate students, as is also true of federal Pell
Grant aid. Loans have been the principal source of monetary support
for law students. For the recent past, until the Great Recession hit
full force, the number of dollars afforded to law students through federally supported loan programs grew tremendously, enabling law
schools to continue their binge of ever-increasing expenditures to enhance their product and beat out the competition in the race for resources that will help market the institutions to new students and
new faculty.
The difficulty, of course, is that lawyers often do not earn enough
income to pay off the debt incurred during law school. A variety of
loan forgiveness programs have been created for law students to help
those who might otherwise not be able to tackle public service careers
and pay down their student debts. 75 Such programs, however, to the
extent that the programs are funded by the law schools' tuition, have
the negative effect of driving up tuition costs for the average law student. Public subsidies are more helpful.
In recent years, Congress has acted several times to help alleviate
the debt burden education loans place upon students. In 1993, Congress established a program of direct loans to graduates with high
debt and low incomes through which debt might be capped as a fraction of the student's income and the remaining debt would be forgiven
after twenty-five years of capped repayments. All graduates of college
and graduate education could take advantage of this program. Defects in design made the program unattractive to most law graduates,
74. See Henderson & Morriss, supra note 52.
75. This, of course, was the major concern of the authors of the final report of ABA
Commission on Loan Repayment and Forgiveness. See ABA COMM'N ON LOAN REPAYMENT & FORGIVENESS, supra note 72. The report cited a major study finding that law
school debt had prevented two-thirds of student respondents from considering a government interest or public job after law school. Id. at 9. The article stated that many
states had indicated interest in loan forgiveness programs but only three had actually
funded them. Id. at 43-54. Fifty-six law schools had offered loan repayment and forgiveness programs, but these programs varied tremendously in terms of number and
size of the subsidies offered, and it was noteworthy that nearly 70% of the money for
them came from a tiny handful of wealthier institutions. Id. at 47. Other programs
were sponsored by local bar groups, trade unions, and the like. The largest subsidies
are now granted by the federal government, which got into the business of loan forgiveness in a big way with the College Cost Reduction Act of 2007 and the Student Aid and
Fiscal Responsibility Act of 2010.
2012]
THE COMING CRASH IN LEGAL EDUCATION
675
and the number who utilized the program was very small. 7 6 A major
problem with the program arose from the fact that the program required the graduate to assume an extremely long period of low income
in order to gain substantial benefit from the program. According to
Philip Schrag, a major reason law graduates "shunned" the program
was their reluctance to commit to a long government program of uncertain benefit to their long-term careers. 77 In subsequent years, Congress has acted to enhance the attractiveness of federal loans to
graduates who take low-income jobs, particularly those who choose to
follow careers in public service. Under the College Cost Reduction and
Access Act of 2007,78 Congress established a new public service loan
forgiveness program, under which a graduate's debt might be discharged after ten years of full-time public service. 79 More recently, in
2010, Congress enacted the Health Care and Education Reconciliation
Act of 2010,80 which lowered the income-based repayment plan to ten
percent of income above a basic living allowance, as compared to fifteen percent under prior law, and reduced the time period for loan
forgiveness from twenty-five to twenty years, while retaining the
shorter ten-year period for graduates working in public service careers.8 1 The degree to which these will help law students is question76. For a lengthy discussion of the operation of the program and its failings, read
Philp G. Schrag. See Philip G. Schrag, The FederalIncome-Contingent Repayment Option for Law Student Loans, 29 HOFSTRA L. REV. 733 (2001).
77. Much of this ground is covered in the final report of ABA Commission on Loan
Repayment and Forgiveness. ABA COMM'N ON LoAN REPAYMENT & FORGIVENESS, supra
note 72, at 38-39. See also Schrag, supra note 76, at 738. Schrag also pointed out that
financial aid officers were woefully ignorant of the program and often failed to advise
graduates as to its advantages and disadvantages. Id.
78. Pub. L. No. 110-84, 121 Stat. 784 (2007) (codified at 20 U.S.C. § 1078).
79. See College Cost Reduction Act of 2007, Pub. L. No. 110-84, 121 Stat. 784
(2007) (codified at 20 U.S.C. § 1078). Under the statute, the borrower must make 120
payments as part of the Direct Loan program to obtain this benefit. The Direct Loan
debts include Stafford Loans (subsidized and unsubsidized), Federal Direct PLUS
Loans, and Federal Direct Consolidated Loans. Although Perkins Loans were not eligible for public loan forgiveness, they could be included in a Federal Direct Consolidation
loan and if so would be eligible for public loan forgiveness. Tradeoffs in terms of subsidized interest and loan forgiveness often make inclusion of Perkins Loans unfeasible.
Borrowers under the loan forgiveness program were allowed to use income-based repayment plans and income contingent repayment plans as well as standard repayment
plans. See also Public Service Loan Forgiveness, FINAID.ORG, http://www.finaid.org/
loans/publicservice.phtml (last visited Apr. 23, 2012).
80. Pub. L. No. 111-152, 124 Stat. 1071 (2010) (codified at 20 U.S.C. § 1001).
81. Ensuring that Student Loans are Affordable, WHITE HOUSE, http://www.
whitehouse.gov/sites/default/files/100326-ibr-fact-sheet.pdf (last visited Feb. 17, 2012)
(providing a fact sheet on the Student Aid and Fiscal Responsibility Act of 2009); Student Aid and Fiscal Responsibility Act of 2009, FINAD.ORG, http:/www.finaid.org/educators/20090715hr3221.phtml (last visited Apr. 4, 2012) (describing the Student Aid
and Fiscal Responsibility Act). See also Health Care and EducationReconciliation Act
of 2010, FINAID.ORG, http://www.finaid.orgfeducators/20100330hcera.phtml (last visited
Apr. 23, 2012) [hereinafter HCERA, FINAD.ORG].
676
CREIGHTON LAW REVIEW
[Vol. 45
able, however, since the program's maximum benefit still provides
meaningful assistance only to those whose earnings remain extremely
low over substantial periods of time.
Various loan programs, grants, and loan forgiveness programs are
designed in part to alleviate the burden law school debt imposes on
poorer students and graduates who enter less remunerative practices8 2 or go into public interest work.8 3 The combination of income
based repayment plans and loan forgiveness programs can limit the
burden of debt for those going into public service jobs by hundreds of
thousands of dollars.8 4 While admirable, these programs do not come
close to fully alleviating the burden student debt imposes on poorer
students. Moreover, the vicissitudes of governmental largesse in subsidizing higher education strongly suggest that these burdens will in85
crease in future years.
82. Under recent federal legislation, including both the College Cost Reduction Act
of 2007 and the Student Aid and Fiscal Responsibility Act, H.R. 3221, 111th Cong.
(2009) which was passed as part of the health care reconciliation bill on March 21, 2010,
Pell Grant funding was increased. See Ian Shapira, Bush Signs Sweeping Student Loan
Bill into Law, Adding an Asterisk, WASH. POST, Sept. 28, 2007, http://www.washHCERA,
ingtonpost.com/wp-dyn/content/article/2007/09/27/AR2007092700958.html;
FINAID.ORG, supra note 81. Moreover, under the new Health Care and Education Reconciliation Act of 2010, the federal income based repayment plan that has allowed borrowers to cap loan payments at fifteen percent of their discretionary income was
modified for borrowers taking loans after 2014 by reducing the cap to ten percent and
shortening the time over which payment might be required before the balance would be
forgiven from 25 to 20 years. See Income Based Repayment, FINAID.ORG, http://www.
finaid.org/loans/ibr.phtml (last visited Apr. 25, 2011)
83. The College Cost Reduction and Access Act of 2007 established a loan forgiveness program under which student debt balances would be discharged after 10 years of
full-time employment in public service. See PublicLoan Forgiveness,FINAID.ORG, http:/
/www.finaid.org/loans/publicservice.phtml (last visited Apr. 23, 2012). Twenty-three
states offer loan repayment assistance programs for public interest lawyers. See StateBased Loan Repayment Assistance Programs,EQUAL JUST. WORKS (June 6, 2011), http:ll
www.equaljusticeworks.org/resources/student-debt-relief/state-based-lraps.
84. See ABA COMM'N ON LOAN REPAYMENT & FORGIVENESS, supra note 72.
85. Much of the increases in Pell Grants Congress made available in recent legislation was put on the chopping block in February 2011 budget wrangling. See Kelly Field,
House Republicans' Spending Bill Would Cut Pell Grants by 15 Percent,CHRON. HIGHER
EDUC., Feb. 13, 2011, http://chronicle.com/article/House-Republicans-Spending/126356/;
Lesa Jansen, Obama's Budget to Target Education Pell Costs, CNN MONEY (Feb. 13,
2011), http://www.money.cnn.com/2011/02/13/news/economy/obama-budget-pellgrants/index.htm; Doug Lederman, Obama Budget Sustains Pell Grants But Cuts
Perks,USA TODAY, Feb. 15, 2011, http://www.usatoday.com/news/education/2011-02-15pell-grants-budgetN.htm. The program faced even stronger opposition when Congress
fought over whether to raise the ceiling on the national debt. See Eric Andrew-Gee, Pell
Knell, NEw REPUBLIC, Apr. 6, 2011, http://www.tnr.com/article/politics/86298/pellgrants-obama-budget-ryan. Whether the increase in Pell Grants will be sustained in
future years is problematic. Moreover, even if they are sustained, they may not assure
affordability of higher education in the United States unless other sources of supportstate and local financial aid and loan forgiveness programs-are sustained.
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In the last decade, the burgeoning debt of law graduates has
fallen increasingly hard on those students who were unable or unwilling to take jobs with large private firms willing to pay top dollar to
recruit top talent from the law schools by paying very high salaries.
Prospective law students were slow to get the message, but in 2010,
for the first time in decades, the number of individuals taking the
LSAT declined, from 171,514 (in 2009) to 155,050,86 and the number
of new graduates may have declined in the last year.8 7 Law schools,
too, may be beginning to accept new market realities. The dizzying
growth in the number of graduates in recent years8 8 may have abated
or even begun to turn around in light of the tight employment market
89
for new lawyers across the country.
The burden of debt caused by the radical increase in the cost of
legal education over the past four decades is unevenly shared by new
graduates. This is true for several reasons. First, some simply have
to borrow more than others because they have much less money than
their better-heeled classmates to pay for their legal educations. Putting aside those students who are unable to secure law jobs of any sort
upon graduation, it is clear that many new graduates-chiefly those
in public service, public interest, or small firm practices-are able to
earn salaries ranging from twenty-five to forty percent of what classmates in the largest firms are able to get in the first job after law
school. Often the more poorly paid graduates are the same people who
had to borrow more money than their peers just to get the law degree.
The compounded inequalities mean that graduation does not signify
the commencement of a new, free period of professional growth but
instead the beginning of a lengthy period of indentured servitude dur86. Hamilton Nolan, Law School is Slowly Crumbling Away, GAWKER (June 21,
2011, 10:44 AM), http://gawker.com/5813986/law-school-is-slowly-crumbling-away. Nolan indicated the number of LSAT-takers in 2008 was 151,398. Id.
87. See Kevin Kiley, Objecting to More Lawyers, INSIDE HIGHER ED (June 21, 2011,
3:00 AM), http://www.insidehighered.com/news/2011/06/2lawschools-shrink-enrollments in face of poorjob-market fewer applications. Applications to law schools declined 11% in 2011 after a jump the year before. The number of law students gaining
admission also fell, by 9.9%. See Jack Crittenden, What to Do About Misleading Data,
NAT'L JURIST (Oct. 14, 2011, 1:29 PM), http://nationaljurist.com/contentmisleading-lawschool-employment-data.
88. See Lowrey, supra note 28. "Law schools awarded 43,588 J.D. degrees" in 2009,
up 11.5% since 2000, and the number of law schools approved by the American Bar
Association increased 9.0% to 200 during the last decade. Id.
89. According to Elie Mystal, four law schools-Albany, Touro, Creighton, and
Western New England, have recently announced cutting back the size of their entering
classes. Elie Mystal, Trendspotting: Will Law School Start Decreasing the Supply of
Unemployable New Lawyers?, ABOVE THE LAw (June 20, 2011, 3:27 PM), http://abovethe
law.com/2011/06/trendspotting-will-law-school-start-decreasing-the-supply-of-unem
ployable-new-lawyers. Iowa has also cut enrollments in recent years. See Ford, supra
note 16.
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ing which the new graduates are compelled to make career choices
from a smaller field.
Starting twenty-five years ago, a series of Cassandra-like scholars
began warning that legal education was increasing costs too fast and
was likely to create serious funding problems if its rates of inflation
were not curtailed. 90 Despite these threats, students continued to
borrow more and more money to pay increased tuition and cost of living rates at American law schools. The Great Recession in 2008 has,
for the first time, made prospective students wary of the notion that
law school, however expensive, was an investment worth making. A
number of law students and graduates simply complain about increases in law school tuitions.91 Increasingly, the complaints are
edged with a sense of anger and betrayal, as young graduates have
begun complaining in public that legal education was a confidence
game in which students have been taken advantage of by greedy lenders and universities. 9 2 The press, too, has begun to question the value
may, for the
of a legal education, 9 3 and the market for legal education
94
first time in generations, be taking a downward turn.
The cost of legal education has grown so far as to threaten the
ability of many students to take seriously going to law school and getting a job in the new job market that is now upon us.The dean of one
major law school indicated that, given the amount of debt law students must accumulate in order to graduate, a newly minted graduate
needs to earn a minimum of $65,000 her first year out of law school. 95
90. See, e.g., David L. Chambers, The Burden of EducationalLoans: The Impacts of
Debt on Job Choice and Standards of Living for Students at Nine American Law
Schools, 42 J. LEGAL EDUC. 187 (1992); David L. Chambers, EducationalDebts and the
Worsening Position of Small-Firm, Government, and Legal Services Lawyers, 39 J. LEGAL. EDUC. 709 (1989); John R. Kramer, Who Will Pay the Piperor Leave the Check on
the Table for the Other Guy, 39 J. LEGAL EDUC. 655 (1989); Kramer, supra note 32;
Matasar, supra note 36; Morrissey, supra note 34.
91. See, e.g., Tuition Skyrocketing: When is Enough, Enough?, NAT'L JURIST (Sept.
20, 2010, 12:56 PM), http://www.nationaljurist.com/content/tuition-skyrocketing-whenenough-enough.
92. See, e.g., Jack Crittenden, Law Grads Are Angry, NAT'L JURIST (Oct. 5, 2010,
11:01 AM), http://www.nationaljurist.comlcontent/law-grads-are-angry; Prospective Students Deserve StraightforwardLaw School Data, NAT'L JURIST (Sept. 28, 2010, 12:02
PM), http://www.nationaljurist.com/content/prospective-students-deserve-straightfor-
ward-law-school-data. Nearly a dozen blogs published by recent graduates are extremely popular. Their names, "Third Tier Reality," "Exposing the Law School Scam,"
"Jobless Juris Doctor," "Shilling Me Softly," and "Law School Transparency," suggest
their message, which is one of deep hostility to the lending institutions and to law
schools.
93. See, e.g., Segal, supra note 33.
94. The number of students taking the LSAT began to decline in 2010. See Nolan,
supra, note 86. The number of people applying to law schools fell last year for the first
time, by 11%. See Kiley, supra note 87.
95. See David Lat, Changes in Legal Education:Some Thoughts from Dean David
Van Zandt, ABOVE THE LAw (Feb. 3, 2010, 8:23 PM), http://abovethelaw.com/2010/02/
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One NALP study indicated that forty-two percent of 2009 graduates
earned between $40,000 and $65,000, thus indicating that a third
were not going to be able to break even. 96 According to the National
Jurist,lawyers in the smallest firms suffered an eight percent decline
in standard of living between 1998 and 2009, mostly as a result of the
drop in salaries in 2008 and 2009. 9 7 While many law graduates will
continue to do well, 98 as they have in the past,9 9 we must face the
grim reality that approximately one-third of the graduating law classes cannot make a living after incurring seven years of post-high
school education, including the opportunity costs those years imposed
in terms of lost earnings. The burden is not spread evenly among
graduates of law schools, but instead falls most heavily on all but
changes-in-legal-education-some-thoughts-from-dean-david-van-zandt; Lowrey, supra
note 28; ProfessorsPredict Law School Closings as Grads Earn Less, NAT'L JURIST (Oct.
25, 2010, 6:00 AM), http://www.nationaljurist.com/contentprofessors-predict-lawschool-closings-grads-earn-less-1.
96. See Salary DistributionCurve for the Class of 2009 Shows Relatively Few Salaries Were Close to Mean, NALP: Ass'N FOR LEGAL CAREER PROF. (July 2010), available at
http://www.nalp.org/startingsalarydistributionclassof2009.
97. See Recent Law Grads Enjoy Better Standard of Living than Ten Years Ago,
Nat'l Jurist (June 22, 2011, 12:40 PM), http://www.nationaljurist.com/content/recentlaw-grads-enjoy-better-standard-living-10-years-ago.
The decline was reported for
firms of 2-10 lawyers. Id. The article indicated that firms of 11-100 lawyers averaged
between 6% and 15% growth over the 11-year term, while those in the largest firms got
the lion's share of growth, rising from a median salary of $90,000 in 1998 to $160,000 in
the past few years. The last group's numbers have grown, too, rising from 15% to more
than 22%.
98. Northwestern Law's Market Trends indicated that the market rate for the top
firms in three big cities remained at $160,000. Market Trends, supra note 20. The
Northwestern study indicated that the market rate of $160,000 set for the largest firms
in major markets may suffer partial retrenchment back to the $145,000 range for some
cities, but that the median for all private practice attorneys in 2009 was $110,000, well
above the break-even point. Id. The same study indicated that 2010's mean-entry level
law salary was $84,111, down 10 percent from a year earlier. Id. Hardest hit were
attorneys in firms of 25 attorneys or less (median $73,000) and those in public service
jobs, all falling below the breakeven point. Id. New lawyers entering government jobs
earned only $52,000 while those entering public service jobs received only $42,900. Id.
99. As one source put it, it is easy for a graduate who earns $160,000 plus bonus
her first year out of school to pay for $100,000 debt plus three years of lost earnings. See
Henderson & Morriss, supra note 52. The burden of $100,000 debt will fall much more
heavily on the third of graduates who earn only $40,000 to $55,000. Id. But even before
the Great Recession, such salaries were available only to a small elite cadre of graduates, with an extraordinary fall-off in percent getting jobs in NLJ 250 firms from those
schools at the top of the hierarchy to those just a few steps down. Id. For example, at
the time the Henderson and Morriss article was published, NLJ 250 firms hired 54.5%
of the class from Columbia (then ranked 5th by U.S. News) against only 21.9% from
William & Mary (then ranked 25th), a fall-off of 32.6 percentage points. Id. The decrease from 25th to 45th (then Brigham Young) was only 8.4%, and from 45th to 65th
(then Louisville) only 4.3%. Id. The burden of indebtedness looks different indeed to
the third of graduates who make between $40,000 and $55,000 a year and owes
$100,000. Id.
680
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those in the most elite schools' 0 0 and those whose entering credentials
prevent them from getting financial aid packages that would help
limit the cost of law school. 10 1 Given such figures, it is hardly surprising that many observers believe change must be substantial-indeed,
wrenching-if law schools are to survive a massive tsunami wave of
retrenchment forced on them by the prospective unwillingness of students to continue to pay for legal education as it has been offered to
them.
A number of years ago, before the Great Recession began, Daniel
Morrissey discussed the increasing burden of student debt and argued
that many young lawyers were already beginning to face real difficulty in making ends meet once they graduated from law schools and
began to have to pay off their debts.' 0 2 Morrissey pointed out that one
dean, Joseph Harbaugh of Nova Southeastern, provided a sobering
orientation address to students. Dean Harbaugh warned students of
the terrible burden most of them would likely suffer upon graduation,
pointed out the difficulties most would have in paying those debts
given their likely average salaries, and encouraged them to be frugal
100. Henderson and Morriss's article contains a revealing graph explaining why
elite schools are a much better investment than non-elite schools. The top 14 schools
place 49% of their graduates in NLJ 250 firms, while the rest of the 1st-tier schools
place only 19% of their graduates in NJ 250 firms. See Henderson & Morriss, supra
note 52. From there, the fall-off is more modest, down to 7% in the 2nd-tier, 3% in the
3rd-tier, and 1% in the 4th-tier. Id. While students from the top schools carried considerably more debt than the average for other tiers-$98,746 as opposed to figures ranging from $72,254 (1st-tier) to $79,545 (4th-tier), it is obvious that the average graduate
of a top 14 school will have an easier time with debt management than those coming
from schools down the pecking order. Id. Elite law schools will increase their payoff
differential compared to their competition. Law School Costs and Debt: The Law School
Market, ADVISE-IN SOLUTIONS, http://www.advisein.com/lawschool-costs.html (last visited Apr. 23, 2012). Using 2009 to 2010 values, the average total tuition over three
years for top ten schools was $137,505, compared to $130,095 for schools ranked 11th
through 25th and $104,241 for the rest of the top tier. Id. Median debt for graduates
from the first group was $80,000, only $10,000 more than the other two groups, but
median first year earnings were $135,000, as compared to $95,000 for the group ranked
11th through 25th and $61,000 for the rest of the first tier. Id. First year graduates
from top ten schools would then earn $1.42 for every $1.00 earned by her 11th through
25th counterpart and $2.21 for every $1.00 earned by her below 25th counterpart. Id.
With no raises whatever, the top graduate would earn $405,000 in three years, compared to $183,000 for the graduate from a school ranked below twenty-fifth with only a
modest difference in debt load. Id.
101. As Henderson and Morriss demonstrate, the wealthiest schools do not have to
offer much in the way of scholarship aid, as their position in the employment market
enables them to attract plenty of students who are willing to borrow enough to pay for
high priced educations. See Henderson & Morriss, supra note 52. "[Nlumbers... that
will get someone admitted to an Ivy League school with $120,000 in debt can get the
same person a free ride at one of the Tier 1 schools [among the top 15 law schools]." Id.
"Likewise, numbers that would get someone into the bottom of the U.S. News Tier 1 (at
$100,000 in debt) can get that person a full ride at an excellent regional school with a
strong alumni base in his or her dream city." Id.
102. Morrissey, supra note 34, at 255, 269-71.
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THE COMING CRASH IN LEGAL EDUCATION
681
throughout their law school days. 10 3 In Morrissey's view, "The approach taken by Dean Harbaugh . . . should be standard operating
procedure at all law schools, not just after the students have matricu04
lated but while they are considering enrollment."'
The actions of legal educators across the board are inconsistent
with Morrissey's prescription and Harbaugh's practice. Instead of
warning prospective students, law schools come close to affirmatively
misleading them. 10 5 In competing for prospective students, law
schools often publish slick brochures filled with pictures of obviously
well-heeled alumni comfortably ensconced in plush corporate law offices. Moreover, they notoriously publish misleading statistics regarding how well-placed graduates are in the profession. 10 6 As one author
pointed out, New York Law School had reported for publication information suggesting that the median private firm salary for its graduates in 2009 was $160,000, the same figure reported by Harvard and
Yale Law Schools, while the New York Law School dean indicated that
103. Id. at 265. See Leigh Jones, As SalariesRise, So Does Debt, NAT'L L.J. (Jan. 30,
2006), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1138096931459. Jill Peterson,
an associate in a firm in Minnesota, said that living "too richly" is a problem for law
students. 'Some people are living like lawyers when they are in school and living like
students when they're out." Id.
104. Morrissey, supra note 34, at 277.
105. Indeed, occasionally they get caught crossing the line. Villanova admitted that
it deliberately reported inflated LSAT and GPA data in such a way as to enhance its
U.S. News rankings. See Jack Crittenden, A New Low in the Rankings Arms Race,
NAT'L JURIST, March 2011, at 4, availableat http://www.nxtbook.com/nxtbooks/cypress/
nationaljurist0311I#/4. Illinois did the same. See Tierney Plumb, Illinois Law Dean
Falsified Data for the Money, NAT'L JURIST (Nov. 10, 2011, 10:39 AM), http://www.nationaljurist.com/content/illinois-law-dean-falsified-data-money.
106. See, e.g., Henderson & Morriss, supra note 55. U.S. News makes placement
success 20% of the score used for ranking a law school. Morse & Flanigan, supra note
45. Of this, placement at graduation currently counts 4%, at nine months after graduation counts 14%, and bar passage rate counts 2%. Id. Until 2011, students were
counted as working if they had full or part time jobs, legal or non-legal, or if they were
in graduate school, or if their status was unknown. Id. Students not seeking employment were discounted from the number of graduates, in such a way as to inflate the
percentage "employed." Id. Starting in 2011, the figure for employed students includes
only those graduates working full or part time in legal or non-legal jobs and graduates
not seeking employment will be counted in the calculation of percentage employed. Id.
Depending on what comes out as a result of adoption of new ABA Standard 509(b) requiring enhanced reporting in future years, the U.S. News survey may report enhanced
data.
The figures in the past have led to great student unhappiness. Even without the
open critique of the numbers by outside sources, students have expressed an awareness
that the numbers do not jibe with their own experience. "Law students know the score.
They know that law schools pad their employment figures. They know that the gaudy
salary numbers advertised on the career services page are actually calculated based
upon only about 25 percent of the graduating class . . . ." Prospective Students Deserve
StraightforwardLaw School Data, NAT'L JURIST (Sept. 28, 2010, 12:02 PM), http://www.
nationaljurist.com/content/prospective-students-deserve-straightforward-law-schooldata.
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he always told incoming students that most of them would be able to
enter small to medium size firms and earn a beginning salary of between $35,000 and $75,000.107 Another article recently pointed out,
the post-graduation "employed-at-nine-months" statistics reported by
law schools reflect obvious massaging by law schools that falsify their
reports to gain position in the U.S. News rankings.'l0 Indeed, students at several law schools became so frustrated by the failure of the
job market to meet expectations, they claimed had been falsely fostered by their law schools and filed lawsuits, alleging misrepresentation and fraud against their law schools for restitution and
damages. 10 9 Moreover, what general statistics are reported fail to accurately provide the kind of detailed information prospective students
would like to have regarding how effective schools are in placing attorneys in the profession. 1 10
107. See David Segal, Law School Economics:Ka-Ching!, N.Y. TIMES, July 16, 2011,
at BUl, available at http://www.nytimes.com/2011/07/17/business/law-school-economics-job-market-weakens-tuition-rises.html?pagewanted=all.
108. See Henderson & Morriss, supra note 55. The "employed-at-nine-months"
figures have been used by U.S. News as an important component of its rankings since
1997. As Henderson and Morriss pointed out, the average figure reported in 1997,
based on figures for the 1995 class, was 83.9%, whereas "[t]hirteen years later, it had
risen to 93.1 percent. Similarly, in 1997, 26 schools reported employed-at-9-months
rates of 95 percent or higher. By 2010, the number had risen to 91 schools scattered
throughout the U.S. News' first, second and third tiers." Id. The authors found these
increases "are all the more remarkable because they are based on employment (for the
class of 2008) as of February 15, 2009-the trough (we hope) of the worst legal economy
in decades. Moreover, with national first-time bar passage rates hovering at 84 percent,
a substantial number of those employed likely would have actually flunked the bar." Id.
109. The first such lawsuit was filed by a Thomas Jefferson graduate after she failed
to gain employment after graduating and passing the bar. See Karen Sloan, Law School
Sued Over 'False' Employment Statistics, NAT'L L.J. (May 27, 2011), http://www.law.
comljsp/nlj/PubArticleNLJ.jspid=1202495481202&slreturn=l. Subsequently, separate
class action lawsuits were filed by graduates against New York Law School and Thomas
Cooley. See Ryan Brown, In Lawsuits, Graduatesof 2 Law Schools Accuse TheirAlma
Maters of Inflating Employment Data, CHRON. HIGHER EDUC., Aug. 10, 2011, http://
chronicle.com/article/In-Lawsuits-Graduates-Accuse/128596/. As of this writing, the
law firms that brought the two most recent actions are planning to bring suit against 15
more law schools. See Debra Cassens Weiss, Law FirmsAnnounce Plans to Sue 15 More
Schools over Job Stats, A.B.A. J. (Oct. 5, 2011, 11:37 AM), http://www.abajournal.com/
news/article/law firmsannounceplans to sue 15 morelaw schools-overjob-stats/.
110. The "employed-at-nine-months" figures reported by the schools are too generalized to be of any utility. What consumers need is information about what kind of jobs
are held, whether full-time or part-time; what the rates of pay are; what percentage are
in law firms, government, public service, or even in legal services or law-related fields,
etc. None of this kind of information is touched on. Moreover, the numbers are inevitably misleading, because they fail to account for the many graduates who do not respond
to questionnaires, many of whom are presumably unemployed, and hence produce inherently inflated school scores. Finally, the numbers mask some obvious manipulation
by the schools themselves. For instance, it has been reported that in 2009 law schools
"created a variety of employment opportunities for graduates through bridge programs,
fellowships, and grant programs for public interest work. . . account[ing] for over 800
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683
The marketing approach through which law schools attempt to
attract students is totally at odds with the market realities the average graduate will face upon graduating law school. Awarding tuition
discounts and merit scholarships to entering law students without
warning them of the likelihood that many will not be renewed because
of special stipulations limiting renewal only to those who do very well
in school leaves many students with a sense of betrayal.1 1 ' The current student rage that has accompanied the realization of those realities among recent graduates from law schools 11 2 can only begin to be
assuaged if law schools adopt what Morrissey called "a baseline consumer protection initiative [that] forthrightly tell[s] their applicants
1 13
the full story about what a legal education entails."
Many law teachers and administrators argue that this sense of
betrayal is unwarranted, since much information about what law
school is about, or about what the legal services market has to offer, is
in the public domain for any student to find. 1 14 In addition, it can be
jobs or a full two percentage points of the employment rate." Job Market Proves Weak
for Class of 2009, supra note 19.
111. See Segal, supra note 50. Segal says:
Another consequence of merit mania [is] a lot of heartache and anxiety. After
fall semester exams, it dawns on thousands of 1L's . . . that their financial
future is about to change dramatically for the worse. As realities set in, many
are irate. Others... feel snookered. "By the middle of the second semester of
that first year, everyone saw the system for what it was... We were furious.
We realized that statistically, because of the curve, there was no way for many
of us to keep our scholarships. But at that point, you're a year in. They've got
you. You feel stuck."
Id.
112. Brian Tamanaha, Wake Up, Fellow Law Professors, to the Casualties of Our
Enterprise,BALKINIZATION (June 13, 2010), http://balkin.blogspot.com/2010/06/wake-upfellow-law-professors-to.html.
This dismal situation was not created by the current recession-which merely
spread the pain up the chain into the lower reaches of the elite schools. This
has been going on for years. The law graduates posting on these [blog] sites
know the score. They know that law schools pad their employment figures....
They know that the gaudy salary numbers advertised on the career services
page ... are actually calculated based upon only about 25% of the graduating
class ....
They know all this because they know of too many classmates who
didn't get jobs or who got low paying jobs ... the numbers don't jibe with their
first hand knowledge. They know the score now. But they didn't know it when
they first applied to law school. They bought into the numbers provided by law
schools. The mission of these sites is to educate and warn away the incoming
crop of prospective law students-to save them from becoming victims of the
law school scam.
Id.
113. Morrissey, supra note 34, at 277.
114. Jeff Thomas, Why Students Are to Blame When Merit-based Scholarships Go
Awry, NAT'L JURIST (June 20, 2011, 2:47 PM), http://www.nationaljurist.com/content/
why-students-are-blame-when-merit-based-scholarships-go-awry.
Rejecting the position taken by New York Times reporter David Segal that law admissions offices unfairly
lure students to their law schools with generous financial aid packages that the schools
know are unlikely to be renewed, Thomas instead blamed the prospective law students
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argued, not without some justification, that a regimen of good faith
disclosures would be unlikely to deter many prospective law students
from going to law school and chasing the dream of a lucrative practice
at the end of their three years in law school. After all, it is common
knowledge that many law students overestimate their talents and
likelihood of success despite overwhelming evidence to the
contrary. 1 15
These arguments are inherently flawed. Law students are not
mere consumers. Legal educators are not simply barkers selling a
product to people who have no reason to rely on them. In a very real
sense, law schools have a fiduciary duty to their students to make sure
they know what they are doing. Law schools teach the ethics of fiducifor foolishly "betting" on a particular law school's offer of first year merit money without
finding out what the odds are of their retaining financial aid beyond the first year. Id.
He said that schools will "gladly give you the answers if you ask the right questions."
Id.
115. 'The very human tendency to overestimate one's talents is part of the problem.
Like Garrison Keillor's fictional Lake Wobegon, all incoming 1L's seem to believe that
they are above average." Segal, supra note 50. The same point was made by Richard A.
Matasar when he said:
[Elven when students understand the risk associated with high levels of borrowing in a modest job market, they tend to think they will be the exception to
the rule. In countless conversations with entering law students, I have concluded that most think they will be in the upper-third of their class (or at worst
will be average). They also see their chances of being a top student as no worse
than one in three to one in five. Many believe that they will be in the top of
their classes because they always have been in the top of their classes. Thus,
they tend to deeply discount the risk that they will be in jeopardy of incurring
high cost and have a low paying job. But it is a fact that 90% of all students
will be in the bottom 90% of their class!
Matasar, supra note 36, at 493. See also Bill Chamberlain, Law School Transparency:
Cutting-edge Issue or Passing Fad?, NAT'L L.J. (Mar. 8, 2011), http://www.law.com/jsp/
nlj/PubArticleNLJ.jsp?id=1202484857637&Lawschool_transparencycuttingedge-issueorpassing jad ("[Students who attend a school in which 2% of the grads will get
six-figure jobs, all assume that they will be in the top 2%"); Jones, supra note 103 (quoting a recent graduate bemoaning the fact that, "while you are in law school, everyone
has the idealistic thought that you'll be a partner in five years, bringing down $350,000,
and life is going to be grand . The reality is that it takes a lot of work and it takes
time").
Wonderful literature has been developed to explain the exponential growth of large
law firms over the past three decades. Particularly insightful has been the application
of "tournament theory" on the partnership chase that firms manage to entice new graduates to enter into every year; as in medieval tournaments, it is clear from the outset
that only a few will be winners, but the prizes have been set so high as to attract nearly
a quarter of law graduates to join the chase in large firms in the past few years. See
Marc Galanter & William Henderson, The Elastic Tournament: A Second Transformation of the Large Law Firm, 60 STAN. L. REV. 1867 (2008); see generally Marc Galanter &
Thomas Palay, A Little JoustingAbout the Big Law Firm Tournament, 84 VA. L. REV.
1683 (1998); Marc Galanter & Thomas M. Palay, Why the Big Get Bigger: The Promotion-to-PartnerTournament and the Growth of Large Law Firms, 76 VA. L. REV. 747
(1990); David B. Wilkins & G. Mitu Gulati, The Tournament of Lawyers: Tracking,
Seeding, and Information Control in the Internal Labor Markets of Elite Law Firms, 84
VA. L. REV. 1581 (1998).
2012]
THE COMING CRASH IN LEGAL EDUCATION
685
ary relations, of trust and full disclosure. Arguments that blame the
victim for being gullible ignore the fiduciary relationship educators
have toward their students and fail properly to account for the vulnerability of students who aspire to become lawyers. The fact is that law
schools are competing for students and need to entice them by any
means they can, short of affirmative fraud, in order to attract highly
credentialed students and thus place well in the status race the
schools are enmeshed in with their competitors, the other law schools.
Law school administrators know the rankings of U.S. News are wildly
inadequate measures of the quality of the educational experience at
the rated schools. The U.S. News questionnaire focuses heavily on the
rated schools' inputs-the size of their faculties, the size of their libraries, the reputations of their faculties, and the academic credentials of their entering classes. The questionnaire tends to simply
identify quality education with institutional wealth. A good ratings
system would evaluate the outputs of various schools, speaking to the
value the educational experience added to the lives of their graduates,
most simply measured in terms of the kinds of jobs their graduates
are able to get upon graduation. Law school administrators know
what that would entail, but have demonstrably failed to show the
slightest interest in reporting such data to their incoming classes.
There are many deleterious impacts that flow from these practices. Perhaps the most insidious is the implicit messages they send to
prospective students about professionalism and ethical behavior. The
sense of betrayal students feel toward the schools that were supposed
to nurture them into joining a noble profession is palpable. When students see their teachers exploiting them, hiding from them the real
costs of what they are doing, and ultimately using them for the selfpromotion of the elites that run the schools, the hidden message is
that clients exist to be exploited by their lawyers rather than to be
served by them.
In the early years, writers like John R. Kramer 1 6 and David L.
Chambers" i 7 issued Cassandra-like warnings that the burgeoning
cost of legal education, exacerbated by the increased reliance of law
schools on student debt, might become the undoing of the legal education industry. These costs grew throughout the last three decades,
and then the Great Recession struck, hitting the legal services market-and hence the law school market-like a cyclone.
116.
117.
See Kramer, supra note 32; Kramer, supra note 90.
See Chambers, supra note 90.
CREIGHTON LAW REVIEW
V.
[Vol. 45
COURSE CORRECTION: HOW TO BRING LEGAL
EDUCATION BACK INTO SYNC WITH MARKET
REALITIES
The coming crisis in legal education has been brewing for years.
It is now upon us. It will not be fixed without pain. The law schools
have lived in a financial bubble for twenty years, and a reckoning is
about to take place. Are there solutions to this predicament?
The easiest "solutions," of course, would be for some white knight
to bail out the law schools. Law schools have been complaining,
rightly I think, that the central universities of which many are a part
treat them as cash cows, forcing law students to pay inflated tuition
rates to subsidize the rest of the universities' sundry programs. 1" 8
Every time the accreditation teams visit law deans they try to persuade the deans to push their central administrations to understand
how such "thievery" threatens the viability of the law schools. In addition, state schools have experienced a radical substantial decline in
state subsidies, thus forcing the state schools to raise tuition levels at
a rate considerably faster than what private schools have experienced
over the past three decades. 11 9
I accept uncritically the propositions that diversion of law school
tuition monies to non-law school programs damages law schools and
that privatization of public universities undermines the mission of
118. See Elizabeth Ewing, Why Baltimore Dean Went Public After Forced Resignation, NAT'L JURIST (Aug. 5, 2011, 2:59 PM), http://www.nationaljurist.com/content/whybaltimore-dean-went-public-after-forced-resignation. According to the article, the University of Baltimore School of Law dean claimed he was fired after complaining that the
central university siphoned off 45% of law school revenues to pay for non-law school
related expenses. The dean, Phillip Closius, noted that because law schools tend to be
profitable for universities, their revenue often is a ripe source of conflict between universities and deans. "When deans get together, this is a pretty frequent topic of conversation," he was quoted as saying. Id.
Accreditation agencies have attempted to control the amount of money law schools
pay to central universities for years, primarily by demanding substantial independence
for law schools from the central institutions of which they are a part. See Morrissey,
supra note 34, at 258. When legal education's student-teacher ratio stood at 30-to-1, it
was obvious that law schools stood to be major money-makers. The National Jurist has
indicated that the surge in faculty size accounts for fully 45% of the increase in tuition
between 1998 and 2008. See Crittenden, supra note 34. Since law schools are not the
profit centers they once were, central universities have been accused of raising tuitions
in the law schools more rapidly than they do in their undergraduate schools in an attempt to alleviate financial pressures at that level. See Elie Mystal, New Tuition Trend:
Will 1Ls be Willing to Subsidize 3Ls?, ABOVE THE LAW (June 17, 2010, 3:25 PM), http:/!
abovethelaw.com/2010/06/new-tuition-trend-will-lls-be-willing-to-subsidize-31s/.
119. This change is what is responsible for the difference in growth rates of tuition
at public and private institutions over the past 20 years. See supra notes 5, 6 and
accompanying text. It also explains why public school tuitions, which in 1988 were only
about one fourth as much as tuitions in private institutions, rose to the point where they
were half the cost of private school tuitions in 2008. See supra note 26 and accompanying text.
2012]
THE COMING CRASH IN LEGAL EDUCATION
687
public universities to make higher education available to the citizenry
at an affordable price. Be that as it may, any great change in the near
future in favor of law schools is not likely. The fact is that white
knights are few and far between, and it is unlikely at any time in the
foreseeable future that we shall be able to change the current tendencies of external forces to divert our incomes and fail to subsidize us
properly. Spending a lot of time debating these subjects is likely to be
little more than a hapless diversion. 120 The question is, what can
those of us in the legal education community do to fix the monumental
imbalances in the legal education market that we have so profitably
(and profligately) created?
The most obvious "fix"-and cheapest to implement-would be to
adopt a regime of full-disclosure of how well our graduates have done
after leaving law school. What kind of jobs did they get? How much
were they being paid (including expected bonuses and benefits)? In
what part of the legal services industry? What size firm? Was the
employment full-time or part-time, permanent or not? Do not just report such figures as averages, but describe the ways in which graduates were distributed according to the various criteria being reported
on. The recent changes in U.S. News methodology do not begin to
remedy the problem, 12 1 but changes in the rankings system may well
occur after implementation of the American Bar Association's newly
adopted Standard 509-(b) for accreditation of law schools. The new
standard was passed in June 2011 and requires law schools to make
available much more meaningful and consistent employment informa120. I do not wish to take the brief of those who would divert "our" funding or fail to
help our students advance their careers in the public calling called the law. One must
acknowledge, however, the difficulty of winning the argument under current circumstances. After all, all universities suffer from many of the financial straits that we in
legal education find ourselves in, hence shifting budgets back to us is likely to have
disruptive consequences in other parts of most of our universities. Further, the decline
in state support for higher education, while deplorable, is part of a larger story of tight
budgets at all levels of government. Laudatory though support for the ambitions of
hard-driving future lawyers may be, one must acknowledge that the governmental need
to fund health, education, and welfare, as well as economic infrastructure, is not likely
to disappear because we want it to.
121. U.S. News makes placement success twenty percent of the score used for ranking a law school. Morse & Flanigan, supra note 45. Of this, placement at graduation
currently counts 4%, nine months after graduation 14%, and bar passage rate 2%. Id.
Until 2011, students were counted as working if they had full or part time jobs, legal or
non-legal; if they were in graduate school; or if their status was unknown. Id. Students
not seeking employment were discounted from the number of graduates, in such a way
as to inflate the percentage "employed." Starting in 2011, only those graduates working
full or part time in legal or non-legal jobs and graduates not seeking employment will be
counted in the calculation of percentage employed. Id. The figures do not separate full
time from part time jobs, nor does it tell the reader what the rate of pay the graduates
were able to earn or what kinds of institutions-firms, government, etc.-in which they
received placement.
[Vol. 45
CREIGHTON LAW REVIEW
tion to prospective students than has been made available to them
1 22
prior to the new standard's adoption.
122. 2011-2012
STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW
SCHOOLS 40-41 (ABA Section of Legal Educ. & Admissions to the Bar eds., 2011), available at http://www.americanbar.org/content/dam/aba/publications/misc/legal education/
Standards/2011_2012_standards-and-rules_for web.authcheckdam.pdf. Standard 509
relates to basic consumer information a school must make available to its applicants.
Under New Standard 509(b), a school must post on its website by March 31 each year a
required chart, accurate as of February 15, for persons who graduated between September 1 two calendar years prior and August 31 one calendar year prior. The following
tables were designed for law schools to report placement data:
STANDARD 509 TABLI 1
FULL TIME
PART TIME
Employment Status
Employed - bar passage req'd
Employed - JD preferred
Employed - other professional
Employed - non-professional
Employed -job type unknown
Pursuing graduate degree FT
Unemployed - not seeking
Unemployed - seeking
Employment status unknown
Total graduates
Number
Long/Short
##/%/
##/0/%
##/%/
##/0/
##/100%
Full Time
Employment Type
Long/Short
Number
Long/Short
Part Time
Long/Short
stl/##
st2/##
st3/##
Law firms
Solo
2-10
11-25
26-50
51-100
101-250
251-500
501+
Unknown
Business & industry
Government
Pub. Int. (inc. Pub. Def.)
Judicial clerkships
Federal
State & local
Academia
Employer type unknown
Total
Employment Location
# in 3 main employ't states
# employed in foreign country
Memorandum from Dean Art Gaudio, Chair, Questionnaire Comm. to the Council of the
Section of Legal Educ. & Admissions to the Bar (May 28, 2011) (on file with ABA Section of Legal Education and Admissions to the Bar). Implementation of an ABA requirement will lead to disclosure of employment data that is broken down so as to
permit the reader to discern full-time from part-time employment and long-term from
2012]
THE COMING CRASH IN LEGAL EDUCATION
689
A second, more draconian source of change is likely to come from
market discipline.
Already a number of law schools are limiting the number of students they are accepting and graduating, 12 3 and the market may force
others out of business. Curtailment of the market for law schools is
going to be extremely painful for many schools. The going consensus
124
As elite schools'
is that the truly elite schools should survive easily.
reputations are likely to continue to draw plenty of students and their
graduates are likely to be able to retain dominance in the smaller, but
still powerful, large-firm market in which entry-level salaries may
paying off student loans a reasonably painless operation, truly elite
schools are likely to survive if not prosper. 12 5 What happens just below the elite is more subject to doubt.
Beyond the truly elite institutions, difficulties are likely to reverberate all down the law school pecking order. Many schools with
strong national reputations, such as those that fill out the rest of the
first tier of U.S. News rankings, may have great difficulties surviving
in the current environment unless they engage is massive cost cutting.
These schools have cost structures that rival "top ten" schools but pay
for their status by raising tuition rates for the bottom half of their
classes so as to afford discounted tuition and financial aid to wellcredentialed students whose admission can enhance their standing in
the U.S. News rankings. The shrinking number of jobs available to
pay the high cost of going to one of these schools may force schools to
short term employment, reports what areas the graduates are getting employment, and
honestly factors out the number of graduates who fail to respond to law school requests
for data. The schools are not required to come up with information regarding salary
levels of new graduates, but as Dean Gaudio's report makes clear, the information they
supply regarding where their graduates are going, combined with state-specific data on
salary levels provided by the National Association for Law Placement ("NALP") should
help define that sort of information in ways that are superior to what graduates have
historically been willing to report back on school-by-school surveys. Needless to say, the
new data will far surpass what is available in the U.S. News rankings.
123. See supra note 84 and accompanying text.
124. As Richard A. Matasar put it,
Because the admissions, faculty, employment, and philanthropy markets value
brand names most highly, high-prestige schools have a much greater chance of
prospering in a declining market. Students there have the strongest skills
coming in. Graduates of the schools have a disproportionate share of the highest payingjobs. They have the greatest cushion provided through philanthropy
....Employers are willing to hire graduates from throughout their class ranks.
Matasar, supra note 36, at 497.
125. The source of a student's degree, along with his or her class rank, are the two
most important factors law firms consider in considering job applicants. Burk & McGowan, supra note 13, at 108. Since modern legal education has increasingly abandoned "'trade school" identity for something approaching a graduate school model, this
seems surprising, unless the firms are simply relying upon the school rankings to separate talented graduates (i.e., those who got into the top schools) from those who are less
talented (all the rest).
CREIGHTON LAW REVIEW
[Vol. 45
pull back from the financial aid arms race rather than pay more for
what little return they will get from picking up the few top paying jobs
available for schools of similar rank. As their graduates fight for private employment in mid-sized firms that at least allow them to "break
even," schools in mid-tier positions will find it harder to place gradu26
ates in "break even" jobs without cutting costs.1
Recent commentators have suggested, not without justification,
that a number of schools that lack high national reputations may nevertheless be able to weather the storm. Particularly well suited are
schools in small, less served markets that never did bite the BigLaw
apple, have modest cost structures and strong alumni bases upon
which to rely. 12 7 State-supported schools, because of the lower student debt levels needed to attend and graduate, are much better off
than private institutions with debt levels that are fully fifty percent
128
higher on average.
Downsizing may not be enough. The obsession with rankings and
status has driven legal education into a ruinous binge of competitive
expenditures aimed at marketing, 12 9 and something will have to be
done to cut back on costs. Given the need of the legal services industry for entrants who are practice-ready, certain costly innovations in
legal education, particularly those involving simulation-medium and
live client clinical training, cannot be dispensed with. 130 Expensive
marketing tools, however, can be disposed with.
If law schools could somehow eliminate or seriously weaken the
impact of U.S. News rankings, law schools could begin to cut back in a
big way on many of the marketing costs that currently burden legal
education. 13 1 All the rankings really measure is the wealth and repu126. Before the Great Recession came on, Richard A. Matasar predicted that
Expensive schools with modest reputations will be in jeopardy. Such schools
offer very little to sustain student demand. Most of their graduates cannot
command large salaries after graduation, with higher paying employers seeking only those with higher grades. Their degrees do not have national brand
recognition. Most importantly, these schools have for years escalated costs in
an effort to gain prestige, established new programs to create "distinctiveness"
in the market, and have hired expensive, permanent faculty, who cannot be
shed without modifying tenure ....
If they face a depressed applicant pool,
they must reach deeper into [it] and accept less well-qualified students. This in
turn will diminish the reputations that the schools have been seeking... and
ultimately unravel the accomplishments of the school.
Matasar, supra note 36, at 497. Matasar suggested that the focus of these schools on
rankings and status, rather than training and placement, would drive a number of them
to the wall. Id. at 480-81.
127. Burk & McGowan, supra note 13, at 111.
128. Matasar, supra note 36, at 497.
129. Id. at 478.
130. Id. at 473.
131. The proposition that U.S. News numerical rankings of law schools are "objective" is absurd. See supra note 45 and accompanying text. In addition to its lack of
2012]
THE COMING CRASH IN LEGAL EDUCATION
691
tation of a school1 3 2-information that says little or nothing about
what the experience of going to a given school is likely to be or what
the fruits of attending are likely to be in later life.1 3 3 If such figures
relate to the quality of a given law school, the relationship is so tangential as to be virtually worthless. The only U.S. News data that
even remotely relates to what a student gets out of a law school is the
placement data. Such information, in its present vague form, is
worthless to evaluating the quality of a given school. Even if the
placement data were much more detailed, it would be of little help.
The data speaks of the payoff of an educational process without any
accounting for its costs, and totally ignores the question of what value
was added to students by the school he or she attended compared to
what they might have gained elsewhere.
Schools could also stop the rampant advertising that runs up the
cost of legal education. Schools spend huge sums of money on public
shows and "educational" seminars that have little or no intellectual
value but do allow institutions to show their wares to one another.
Most egregious of all are the shiny brochures law schools broadcast to
academicians in other schools. Each edition is filled with pictures of
distant law teachers mixing uncomfortably with alumni. The publications resemble shopping guides addressed by well-known mail-order
stores to prospective buyers-except that these guides are mailed indiscriminately to teachers who in no sense want to buy anything from
the mailing institution.
It will be much more difficult to dispense with some of the other
more expensive marketing strategies of law schools. Discounted tuition rates and merit scholarships constitute an extremely expensive
mode of advertising, 13 4 and cutting back on them would have a salutary impact on the cost of legal education for the students who now
pay the tuition that funds this marketing, thus lowering considerably
the base "sticker price" of a given institution. The merit scholarships
and discounted tuition rates that law schools use to attract highly
objectivity, the U.S. News law school ranking system is flawed because its figures are
unreliable and are subject to manipulation by the schools it ranks.
132. See supra note 45 and accompanying text.
133. Only 20% relates to what students may get out of a given school, reported
under "placement success," and the reporting in this area is so vague as to be virtually
meaningless. See Morse & Flanigan, supra note 45. As Morse and Flaningan note,
most of a school's "placement" score relates to whether students were "employed nine
months after graduation." Id. Even as modified in 2011, the score does not tell whether
employment is full or part time, legal or non-legal, and certainly does not tell what the
rates of pay or conditions of employment were for the class. Id. Even if it did, since it
does not relate the return on investment to cost (i.e., how much a law school really costs
to attend), the rankings fall far short of gauging the value-added a student would get
from attending this or that law school, even on the barest dollar-for-dollar measure.
134. See The Cost and Financingof Legal Education, supra note 34, at 519.
692
CREIGHTON LAW REVIEW
[Vol. 45
credentialed students do in fact bring in high quality students. Elimination of scholarships and tuition reductions would make law school
considerably less expensive for students who are not at the top half of
law schools' entering classes-the people who, once they become students, are most likely to have to borrow large sums to complete their
law degree programs and are least likely to graduate into a BigLaw
job that will make paying off law school debt reasonably easy. The
elimination of the merit scholarships would also likely make law
school itself a more humane, less cut-throat experience, since it would
eliminate much of the grade-consciousness that now afflicts law
schools, 13 5 and would also enhance diversity.
A major way to cut costs would be to cut back on the research and
writing requirements law schools impose on faculties. As noted earlier, 136 the most important single reason law school costs have raised
in the past forty years is the radical decrease in student-to-teacher
ratio that has swept across legal education at virtually all levels. The
increased number of teachers has led to smaller classes, particularly
in skills courses and live-client clinics, and an enriched menu of seminars. But much-probably most-of the increase in faculty size has
not led to curriculum enrichment, but rather to increased faculty
scholarship.' 37 While such scholarship was once required in only a
handful of law schools, today virtually every school in the country has
adopted a research and writing agenda, with the result being an increasing volume of articles being published in a dizzyingly increasing
array of law journals across the country. 138 As pointed out by Maimon
Schwarzschild, there has been a remarkable decline in average teaching loads for teachers in the past thirty years, most of it done in the
interest of encouraging more faculty scholarship. 13 9 Arguably, up to
135. Because law schools routinely attach strict stipulations to their scholarship
grants requiring students to maintain high academic averages if they wish to retain the
aid after the first year of school, law schools have been accused of "bait and switch"
tactics. See Segal, supra note 50. Needless to say, the heightened risk associated with
not maintaining a high academic average makes students extremely grade conscious, a
fact that can easily undercut other academic values.
136. See supra notes 35-41 and accompanying text.
137. Unlike most other disciplines, legal scholarship is largely done through student-run law journals, not peer-reviewed journals, and is increasingly remote from
what teachers teach in the classroom or what judges and lawyers read while practicing
law in law offices and courthouses across the country.
138. See Lasson, supra note 46, at 37-38. While there were approximately 150 law
reviews in 1936, Lasson cited to Fred Rodell and said, "the reviews he collectively called
'spinach' . . . have now mushroomed into a gargantuan souffl" of 993 U.S.-based law
journals, of which 222 are of general interest and 771 are specialized. Id. (citing Fred
Rodell, Goodbye to Law Reviews, 23 VA. L. REV. 38 (1936)). Lasson estimates these
journals put out about 9000 new articles annually. Id.
139. Schwarzschild, supra note 36, at 4. Thirty years ago, teachers taught an average of three courses a semester or six or more a year. Id. at 6. By the 1990s, the norm
20121
THE COMING CRASH IN LEGAL EDUCATION
693
forty percent of faculty salaries go into this work. Students-and student debt-funds most of this scholarship. Regardless of whether one
sees great virtue in such scholarship or simply academic conceit, it
remains extremely difficult to find that it contributes much in the way
of direct benefit to the students who pay for it. Requiring that every
teacher publish reams of such material, rather than spend more time
in the classroom, is difficult to square with the notion that law schools
should perceive themselves as fiduciaries of the students they
40
serve.1
Universities may have to make cuts to certain courses that many
believe enrich the curriculum. The typical law school menu of courses,
at least after the first or second semester, is a virtual smorgasbord of
liberal artsy offerings, typically labeled "Law and (fill in the blank)"
and designed to cover delightfully interesting but increasingly narrow
subjects that appeal to only a few students. In many ways, such curricula are almost a caricature of the "ideal" curriculum of the "advanced liberal arts curriculum" recommended a generation ago by
George Priest, a wonder world in which every serious scholar would be
able "to transform his course to make it theoretically challenging, that
is, challenging to him." 14 1
An additional sacred cow that may go on the chopping block may
be the modern law clinic, at least as configured in most law schools.
While skills training necessarily requires small classes and is inevitably expensive, live-client clinical representation under some models
limits teachers to supervision of no more than four or five students per
semester, making such courses nearly four times as expensive to staff
as simulation-medium classes that focus on teaching similar skills. It
may well be that live-client clinical education provides a richer learning experience than do externships, even when combined with simulation, but clinic programs still are much more expensive to operate
than the alternative model. Whether, in an age of diminishing resources, law schools will continue to invest in "Caddyshack prodropped to two per semester. Id. In the last ten years, it has dropped to 10 credits per
year. Id. at 6. Schwarzschild argued that the top 20 or 30 schools in the country could
probably afford this kind of research agenda, but found it doubtful that such a pace
would be sustainable for most of the rest. Id. at 7. Schwarzschild pointed out that one
for-profit law school charges less than $10,000 a year for a four-year J.D. program. Id.
at 8. In his view, market conditions may give schools that cut back on scholarship requirements and rely more heavily on adjunct professors a powerful competitive position
compared to institutions that try to hold the line on scholarship. Id.
140. See Matasar, supra note 38, at 70-72.
141. George L. Priest, Social Science Theory and Legal Education: The Law School
as University, 33 J. LEGAL EDUC. 437, 440 (1983). Priest continued, "In our current
state of theory, this objective often can be achieved within the bounds of the standard
law curriculum. But the more sophisticated social science becomes, the stronger the
pressures will be to alter the curriculum itself ....We await the Enlightenment." Id.
CREIGHTON LAW REVIEW
[Vol. 45
grams" 14 2 or instead cut back to Ford and Chevrolet-type clinics is of
course an issue for future legal educators, but it is one that some will
want to address in the future.
One must acknowledge that since live-client clinics tend to take
only non-fee producing cases, they do allow the law school to supplement the limited resources of poverty law offices funded by the government and traditional legal aid agencies. Serving the poor has been
a major goal of most clinicians since the beginning of the movement.14 3 The impulse to give to the poor is charitable and honorable,
but it is important to note that it is not the schools but the students
who are being asked to foot the bill. This fact rarely concerns clinicians, many of whom are themselves fugitives from legal aid agencies.
Indeed, when one law school attempted to create a law-school-owned
law firm largely paid by the fees earned by its clinical faculty-law
practitioners, teachers from the clinical education community roundly
trashed the effort. They grounded their attacks on the basis that the
novel arrangement created conflict between a teacher's concern for her
students' education and the teacher's own desire to have cases resolved in a speedy and inexpensive way, made cost a significant factor
in lawyer decision-making about what kinds of things should be done
with and for clients, and was inconsistent with the goal of clinical
teachers to abolish status differences between themselves and more
traditional law school faculty members. 1 44 It is an open question
142. That is, where there are fancy educational "cars" parked outside a house of
education that on the interior is being stripped to the bone.
143. See, e.g., Lisa Lerman, Fee-for-Service Clinical Teaching: Slipping Toward
Commercialism, 1 CLINICAL L. REV. 685, 697 (1995); see also supra note 46 and accompanying text.
144. The modern clinical education movement gained great impetus from the publication of what later became known as the MacCrate Report, Narrowingthe Gap (1992),
which was the short-form name given to ABA SECTION OF LEGAL EDUC. & ADMISSION TO
THE BAR, A.B.A., LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTINUUM: REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION:
NARROWING THE GAP (1992). Chicago-Kent's response to the report was to create a law
school operated law firm, which would pay for itself while including students in live
client representation of clients in a variety of fee-producing cases. Gary Laser, Significant CurricularDevelopments: The MacCrate Report and Beyond, 1 CLINICAL L. REV.
425, 437-42 (1994); Richard A. Matasar, The MacCrateReport from the Dean's Perspective, 1 CLINICAL. L. REV. 457, 488-91 (1994). The descriptions of the program by
Matasar and Laser indicated that the faculty of this clinic would be non-tenure track
people who would be paid from the fees earned by the law firm, once it reimbursed the
law school for a number of its costs. Id. Under this model, some of the clinical teachers
were paid more than the most senior regular faculty, and people at Chicago-Kent appeared happy with the model. Id. Chicago-Kent believed its program allowed it to attract first-rate, seasoned attorneys to teach clinical courses at virtually no cost to the
law school. See Laser, supra, at 438.
Proponents of traditional clinical legal education savaged the Chicago-Kent model,
principally for the three reasons set forth in the text above. See Martin Guggenheim,
Fee-Generating Clinics-Can We Bear the Costs?, 1 CLINICAL L. REV. 677 (1994);
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whether, in an age of scarcity, it is appropriate for law schools to push
law students further into debt to serve the charitable impulses of their
teachers.
It will be difficult for law faculties to cut back on merit scholarships and universal faculty research. As Dean Matasar pointed out,
the logic that drives marketing encourages law schools to invest
whatever they can in buying highly credentialed students, hiring new
faculty stars, creating more lower teaching loads or more sabbaticals,
funding academic research, promoting the program to outsiders, and
other marketing activities. 145 Few faculty stop to examine just how
attenuated is the link between quickly bought prestige and improved
student opportunities. Instead, faculties privilege the very things
U.S. News, which they claim to despise, values highly: highly qualified
students that need little teaching rather than weaker students who
do; easily employed students rather than the opposite; students who
can pass the bar rather than those who will fail without substantial
help from their law schools. Each of these matters relates directly to
matters of faculty privilege-low teaching loads, generous scholarship
stipends, and the rest-rather than to concerns that are student-
centered. 146
Be that as it may, competition may yet drive a number of schools
out of business or force them to adopt a less aggressive policy toward
encouraging scholarship. A number of schools already are attempting
to run themselves with more adjunct teachers and greater use of technology to promote distance learning that may cut the costs of legal
education radically. Institutions that try to hold on may be forced to
14 7
adjust or die.
Of course, not all of the changes that will attend legal education
need necessarily involve cost cutting. Competitive pressures have led
law firms to abandon much of the function they once served as training grounds for novice attorneys. 148 It may well be that law firms will
Lerman, supra note 143. In addition, Chicago-Kent was criticized simply because its
program gave what Professor Lerman believed to be inadequate attention to public service as opposed to earning a profit. See Lerman, supra note 143, at 697-98. Supporters
of the proposal responded that the status issues were overblown and that ChicagoKent's own clinical teachers were a happy lot; that the law school could monitor and
control conflict of interest issues between their clinical teachers' interests and those of
their students; and most importantly, that it was impossible to teach students how to be
lawyers in the real world if one asked them to ignore, on a systematic basis, efficiency
concerns that every responsible private practitioner had to think about as she worked
through her caseload. Id.
145. Matasar, supra note 38, at 95.
146. Id. at 112-13.
147. Matasar, supra note 38, at 118; Matasar, supra note 36, at 497-98; Schwarzschild, supra note 36, at 8.
148. Matasar, supra note 36, at 473.
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increasingly look to law schools to do the initial training that once occurred in the firms themselves. Law schools that continue to focus on
training students in legal analysis and skills work will be in demand,
because the schools will be performing a role that employers will likely
find useful in the future. 14 9 Expenditures on skills training and clinics will provide real educational value to students, not just a fancy
brand name or high school ranking. If schools spend money on the
educational needs of students rather than on status seeking, the
schools will have a real chance at prospering, even in today's cramped
150
marketplace.
Beyond cutting back on the ruinous U.S. News sweepstakes and
enhancing skills curricula, law schools may yet rethink themselves so
as to serve more diverse markets. One can imagine a law school offering a variety of degree and certificate programs, either helping lawyers to specialize in various roles in the profession or training people
from other disciplines about law. A wide variety of models can be suggested. During much of the nineteenth century, law was an undergraduate degree, and it remains so in Britain, though law schools can
help train people beyond the level necessary to become general practitioners, such as providing specialized courses for would-be litigators or
judges. Rethinking legal studies so that they could be broken down
this way might well make the path to a basic degree shorter and
cheaper. 15 1 In addition, as has been pointed out elsewhere, some law
schools could use the newly-hired teachers who have training in history, economics, and the like to help provide knowledge to people from
other disciplines who want to know about law but not to become attor149. See Coe, supra note 26, at 364.
150. Matasar, supra note 36, at 498.
151. Alfred Z. Reed noted that, unlike the healthcare professions which had accepted their differentiation by using functional lines to separate physicians, dentists,
nurses, midwives and the like, American lawyers had adopted an entirely "fictitious"
vision of themselves as members of single "unitary profession." ALFRED Z. REED, TRAINING FOR THE PUBLIC PROFESSION OF THE LAw 39, 40, 64, 217, 406, 410, 418-19 (reprint
ed., 1976) (1921). Reed argued that the failure to acknowledge the differentiation of
American lawyers in multiple "bars" had "evil" effects upon their training and ability to
serve the public in ways that would advance the public interest. Id. at 57, 405-06, 41718. Reed suggested that law schools develop different kinds of degree programs for different kinds of lawyers who would then be properly trained and organized to serve differing roles in American society. Id. at 298-99, 328, 419. His report was rejected as
heretical by the organized bar, largely at the instigation of the elite law firms and law
schools. See ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE
1850S TO THE 1980s (G. Edward White ed., 1983). As Stevens points out, the current
regime mandating three or more years of undergraduate study plus three years of law
school did not begin to take hold until the 1920s; the only grudging exception was made
for part-time programs, which the powers-that-be mandated be four year degree programs. Id. at 200 n.23. Today this regime is virtually universal. Obviously, turning
back the page would be difficult, but if law schools are threatened sufficiently, it might
happen.
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THE COMING CRASH IN LEGAL EDUCATION
697
neys; such a turn in law schools would make them into "mini15 2
universities."
VI.
CONCLUSION
No one can predict precisely what changes will occur in American
legal education. But the forces of change are inexorable and change is
inevitable. Given the incentives that now govern law deans and faculties, it is hard to imagine reform voluntarily coming from within the
institutions, and many doubt such reform is possible. 15 3 But the boom
days are over, whether law teachers realize it or not, and change will
come, whether they want it to or not. Unless law schools reconfigure
themselves, many will die on the vine, crushed by cost-structures incurred during good times and starved by an unwillingness of students
to incur ever-increasing indebtedness to train for a much tighter job
market. The time has come to stop pursuing the ephemeral benefits of
prestige, simply for the sake of prestige, and to deliver more in the
way of value. A variety of law school models are likely to emerge,
eliminating what has been for generations a stifling tendency toward
conformity among law schools. Quality will not always win out, but
law students will begin to get more value for their money.
The time for change is now.
152.
153.
Matasar, supra note 36, at 500-01.
See Segal, supra note 107.
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