Tracking for Law Students: Solution or Abdication?

Professors, journalists, and, most saliently, students have raised national awareness about the steep rise in college and post-graduate tuitions over the last thirty years.  As someone who has a hard time remembering statistics, for me the easiest math on the subject is the following.  When I started law school at UC Berkeley in 1988, tuition was roughly  $2,000 for in-state residents and $6,000 for out-of-state residents.  Adjusted for inflation, today those amounts would be approximately $4,000 for in-state and $11,000 for out-of-state.  In fact, in 2011-2012, Berkeley students paid over $50,000 for in-state tuition and $54,000 for out-of-state.  Those increases are among the most dramatic, but reflect the larger trend of public schools adopting private funding mechanisms, and private schools themselves raising tuition well above historic numbers.

What to do?  There are a lot of constructive suggestions out there, several of them made by Brian Tamanaha in his book Failing Law Schools:  Put a ceiling on federal student loans.  Reform the US News Ranking system.  Rein in the costs of legal education by restructuring salaries and other adjustments.  These seem well worth exploring.  In a recent New York Times Op-Ed piece, Tamanaha highlighted another of his proposals: reform the American Bar Association’s accreditation standards to encourage the rise of cheaper, more teaching-focused law schools:

One solution to this problem is to strip away the accreditation requirements that mandate expenditures to support faculty scholarship — for example, deleting the requirement that the bulk of professors be in tenure-track positions, removing limits on teaching loads, not requiring paid research leaves for professors, not requiring substantial library collections and so forth. This would allow some law schools to focus on training competent lawyers at a reasonable cost while others remained committed to academic research. Law students would then be able to choose the type of legal education they desired and could afford.

This one worries me, and not because it might deprive professors of fulfilling academic jobs, but because it would only deprive some of them of those jobs, creating the potential for a two-track system for professors and students.

It might be a good idea.  It might result in a truly democratic, cafeteria-style legal education menu, with eager young people of all races, classes, and ethnic backgrounds freely choosing the type and cost structure of legal education best suited to their talents, drives, and interests.  Or… it might result in a two-tiered system of legal education, one for elites (from whatever race or class background, but let’s face it, they would tend to be the children of elites), and one for everyone else.  One of the best things about attending Berkeley Law when I did was that everyone’s children were there.  One of my class-mates was the Chicana daughter of a Mexican immigrant who worked in a sweatshop.  Another was the African-American son of a family from Compton.  Yet another was the rabble-rousing activist daughter of a janitor from Concord.  And there were professors’ kids, lawyers’ kids, and doctors’ kids too.  We all chose Berkeley because it was a fantastic school and we could graduate with minimal debt.  Why shouldn’t everyone’s kids be interested in the very best legal education, regardless of where they came from? Choosing Berkeley also enabled us to pursue meaningful careers regardless of income.  We (and I am speaking from personal knowledge about my class-mates) became public defenders, legal services lawyers, union attorneys, and non-profit directors, in addition to academics, judges, and big and small firm lawyers.

My worry is that solving the serious problem of sky-rocketing tuition by creating a two-track system of education (whether for professional schools or undergraduate institutions) is to give up, finally and completely, on the dream of excellent, low-cost, public education for everyone.  Remember that?  Californians surely do, and the hope was that they would lead the country.  Several structural trends have all but killed the dream.  They include our collective refusal to tax ourselves for the good of all.  (Proposition 13; copycat state laws all over the country; the Reagan era; etc.); academia’s gradual surrender to the market (the two go hand-in-hand); and the public’s inability to organize and advocate for the fair delivery of public services.

I admire Professor Tamanaha’s attempts to propose constructive solutions to the threats to affordable legal education.  Reforming ABA standards may well be one of the proposals that makes sense, but doing so without simultaneously reinvesting in public education and remaining vigilant about, as Tamanaha describes it, “the complexion of the legal profession,” could well result in the very same elitist structure that Tamanaha worries about.  If so, the teachers and students would not be the only ones facing a stratified system.  People who need lawyers would be as well.

It’s not satisfying to keep pointing back to the big structural problems.  It’s even harder to do anything about them.  And in truth, it would take more than well-intentioned professors with good ideas.  It would take a groundswell of people, agitating, voting, and demanding more from politics and the state.  But tinkering with one part of the problem without tackling the wholesale abdication of democratic commitment to the common good might land us in a slightly altered version of the same place we are now.  Let’s aim for something better, and not all that distant:  California public schools circa 1960s-1980s, until the bottom dropped out.  What made that work so darned well, until it didn’t?

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3 Responses to Tracking for Law Students: Solution or Abdication?

  1. Anonymous says:

    What to do? What to do is lower law professor salaries. Drastically. They are simply undeserved for teaching maybe 6 hours of class a week, 9 months a year. It’s preposterous.

    Yes. You can make arguments about ‘contributions to research’ blah blah blah and how one could be getting paid more in the private sector – working ridiculous hours. There should be a trade off. If one wants to contribute to ‘the academy’, you simply get paid commensurately for that life choice – you don’t make an exorbitant salary at the expense of your students and the US taxpayer. It should be livable. But reasonable.

    If one wants to continue making what law professors ridiculously get paid in this day and age for the amount of work they do and the pressure they’re under, they should find another job.

  2. What about a law clerk track? Aspiring lawyers apprentice with practicing lawyers for a number of years and then sit for the bar. Washington state has such a system in place. Real practice, no fees. Professional development for both tutor and student. Worked for Abe Lincoln, I’m told.

    • Sarah Krakoff says:

      I like it. An ideal world?: excellent public law schools coupled with a no-school option (closely monitored and supervised by the state bar.) It would take another post to explain why, to me, this would be preferable to the law-school-lite approach.

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