The Volokh Conspiracy

Last week I had the pleasure of reading a pre-publication draft of Brian Tamanaha’s new book, Failing Law Schools, which has not yet been released but can be pre-ordered now. I found the book engrossing and its argument powerful. I read it in 2 days after receiving a copy, and I think it should be required reading for all legal academics.

Brian’s basic argument is that law schools have been on an unsustainable path fueled by the ready availability of student loans, the cartel power of the ABA, and the influence of the U.S. News rankings, all of which have led schools to adopt policies that help law professors more than they serve students. In most states, you can’t be a lawyer unless you graduated from an ABA-accredited school. Law professors have run the ABA accreditation process, however, and have done so in ways that ensure that all ABA-accredited schools treat professors extremely well and that law schools are quite nice places to work. This has led to a surprisingly uniform educational system in which nearly every school adopts a high tuition model that gives professors low teaching loads, nice salaries, and lots of time for research. Some professors work extremely hard and produce important scholarship, which is the goal. But many other professors just coast and take advantage of their good fortune after making it past the (typically low) tenure hurdle. And Deans generally can’t treat the hard workers and productive scholars better than the dead wood because Deans generally require faculty support to stay in office: A Dean who favors the productive scholars and top teachers too much may not stay in office long. So salaries for all professors are high and course loads are low, whether the professors work 80 hours a week or 20.

While this is a great situation for law professors who want a cushy life, it doesn’t serve students. The high cost model of legal education means that students are mostly denied ways of obtaining low-cost legal educations, which has led to spiraling costs for legal education that make law school best suited for the wealthy, those on scholarship, and those able to compete successfully for corporate or public-interest jobs. Some applicants don’t realize this, in part because loans are so easy to obtain and schools are in no hurry to point out the economics of legal education. And even while law school is so expensive, the obsessive focus by law school applicants and alumni on the U.S. News ranking has led schools to change their programs and their admission standards to whatever helps their U.S. News ranking, even if it hurts the quality of their educational programs. Maximizing U.S. News rankings has led schools to restructure their admissions standards, limit part-time programs, raise the number of transfers, and raise tuitions to make room for scholarships that can be used to maximize the numbers of the entering class. A Dean who doesn’t do this won’t stay a Dean long; the U.S. News rankings are so widely considered authoritative that a Dean whose school falls in the ranking is considered a failure. So even at the high dollar figure of most law schools, the focus is on making changes that maximize rankings, not delivering the most effective education for students. The model is unsustainable, Brian argues, and we have begun to see that already with the recent drop in law school applications that may soon threaten the viability of a number of law schools.

Importantly, Brian does not argue that every school needs to change. His basic argument is that there are lots of different kinds of law schools, and they should be allowed to follow different models. There is no one way to create a lawyer, contrary to the assumption of the ABA accreditation process. The “top” schools can and should continue basically as-is. Their students want a 3-year academic degree in a scholarly atmosphere, and their graduates generally can get the jobs needed to pay off loans quickly. So there is no need to change there. But less elite institutions should be free to adopt lower cost models. They should be free to rely more on adjuncts, or have professors with higher teaching loads or who don’t focus on research. They should be free to offer two-year degrees instead of three-year degrees. A diversity of offerings will better serve students who have different needs and different abilities to pay for legal education. One-size-fits-all just can’t work.

I found Tamanaha’s analysis compelling, and his basic deregulatory solution pretty convincing. (I wasn’t fully convinced by all of the details in the various proposals he makes, but that’s a quibble in the overall scheme of things.) Whether people agree or disagree with the book, it should — and I think will — receive a wide audience among legal academics. Tamanaha’s book is both thoughtful and damning, made all the more persuasive because Tamanaha is an experienced and respected academic who builds his argument carefully step by step with an insider’s understanding. It’s definitely worth a careful read — and for defenders of the status quo, a thoughtful response.

The National Law Journal reports on the under-reporting of estimated cost-of-living expenses at many law schools. The story begins:

The news just keeps getting worse — at least as far as financing a legal education goes.

Law School Transparency has recalculated its estimates of the debt that law students stand to incur after discovering that a number of schools had low-balled the cost-of-living figures that they provided to U.S. News & World Report. On average, schools underreported those expenses — upon which the organization pegged its initial estimates — by $5,000, according to the Law School Transparency’s executive director, Kyle McEntee.

Additionally, the organization made several mistakes in its handling of the U.S. News data, which contributed to the problems, he said.

Here is the post that led to this story.

In an effort to educate potential law students about the real costs of attending law school, Law School Transparency has launched a “Data Clearinghouse”, a database of “consumer information” on law schools, including much information law schools have been reluctant to disclose.

The latest addition to the database are projections of the full cost of attending each law school in the nation. Based on Law School Transparency’s calculations, these costs can vary widely. As the NLJ reported:

As part of the comprehensive database of law school employment statistics it launched this week, the organization has projected the total cost of law school loans for students who will graduate in 2015 and 2016 — that is, the ones who will start law school this year or next. The former will owe an average of $195,265 and the latter will owe an average $200,595.

“My jaw dropped when I ran the numbers,” McEntee said.

He added a few caveats. The calculations are based on the assumption that students will borrow the full tuition amount in the form of federal loans, even though many students receive some scholarship money. They also assume that students at public law schools pay out-of state-tuition levels, which generally are higher than in-state rates. . . .

The City University of New York School of Law features the lowest projected debt for the class of 2015, at $96,242. The University of California, Berkeley School of Law had the highest, at $273,667, although that figure assumes graduates paid out-of-state tuition rates; most students from outside California qualify for in-state tuition after one year.

New York University School of Law had the next-highest projected debt at $266,462.

Some of the numbers are quite revealing — and some of the numbers are quite wrong. In a quick review of the numbers for a handful of schools, I’ve found substantial under-reporting of cost-of-living estimates. Lets start with the alleged cheapest school on the list, CUNY. According to the database, the estimated annual cost of living is only $7,425. Really? In New York City? (Yes, it’s Queens. But still.) But it turns out that $7,425 is not the estimated cost of living for CUNY. According to the law school’s website, the actual figure is more than double the reported amount, $17,943. That’s quite a difference.

CUNY is not the only school for which the numbers in the Law School Transparency database are inaccurate. The University of Louisville is another low-cost school according to the database, with a reported cost of living of only $10,490. Again, however, a quick check of the law school website reveals a much higher figure. Louisville estimates the cost of living for its prospective students at over $18,000 per year. Florida State’s reported number is $13,000, but their cost-of-living calculator estimates costs of over $17,000. Albany Law School’s reported number is $12,300, but their website reveals costs of $18,000. And so on.

I contacted the folks at Law School Transparency to ask about the problems with their data. They said they relied upon data provided to U.S. News, and pledged to do more research so that they could provide more accurate numbers (numbers which should be up shortly, perhaps later tonight). The faulty data, they argue, is further evidence of how law schools misreport to U.S. News and highlights the need for more standardized and complete reporting. Fair enough. Yet the whole point of their site, as I understand it, is to give law school “consumers” access to more complete and accurate information than they are getting from U.S. News and law schools themselves. Further, some of these numbers — such as the CUNY cost-of-living figure — should have been dead giveaways that something was wrong.

My own curiosity was piqued not just by the CUNY number, but also by the variation in living cost estimates for schools in particular cities. In Chicago, for instance, the estimated cost of living varies dramatically, from Loyola ($15K) to UChicago ($17K) to DePaul ($28K). This seems like a massive difference across a single city, and is the sort of thing that jumps out after even the most casual review of the numbers. It’s hard to see such figures and not suspect that something is wrong.

Closer to home, I noticed that the estimated cost of living for Cleveland-Marshall was approximately $4,000 less than that for my own institution, Case Western Reserve University, even though the two schools are only a few miles apart. This didn’t seem right — if anything, it’s cheaper to live near Case than it is to live downtown. And here again the reported data was wrong. The cost reported in the database was $16,000, and yet Cleveland-Marshall’s own website lists expenses of over $19,000. Case’s data, I’m proud to report, was accurately reported.

As noted above, the folks at Law School Transparency were quite responsive when I pointed out these errors. They pledged to double-check the numbers and post corrections as soon as possible. This is all to the good, but this is also work that should have been done before trumpeting the data to prospective law students and the press. Some numbers, such as CUNY’s $7,425 cost of living estimate or the $10K spread in living costs across schools in Chicago, should have been red flags that something was amiss. At the very least, it should have been obvious that the cost-of-living numbers they decided to post were not apples-to-apples comparisons. Law schools deserve criticism for their relative lack of transparency, as does U.S. News insofar as it publishes inaccurate information or presents a misleading picture of specific schools. But the self-appointed watchmen of law school transparency should be held to a high standard as well, and need to be more careful about presenting false or misleading information themselves, whatever the source.

UPDATE: The cost of living data has been updated on Law School Transparency’s website. Quite a few schools have moved around in these rankings quite a bit. LST’s Kyle McEntee also comments below.

SECOND UPDATE: NLJ reports on this story.

The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas.   The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney.  It’s hard to think of a legal team more able to defend the university’s program.  Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger.   (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.”  Some speculate her success in Grutter may have been a strike against her nomination.)

The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows.  The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible).  John Rosenberg comments:

Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.

UPDATE: Some in the comments have asked how this fee arrangement compares with other recent instances in which government entities have hired elite Supreme Court counsel.  I don’t know what’s typical, but there have been several reports about the fees states and other government actors have paid Paul Clement for his recent work.  For representing over two-dozen states in the 11th Circuit and Supreme Court Clement received a discounted fee of $250,000.  I have not found a direct report on the fees for defending Arizona’s immigration law, but according to these reports, these fees are being paid from an outside fund set up to raise money to defend the law.  And Clement’s work for the House of Representatives defending the Defense of Marriage Act in multiple cases pending in lower courts was initially capped at $500,000, but has since been raised to $750,000 and could go as high as $1.5 million.

Last week, Brian Tamanaha critiqued the LSAC’s decision to increase LSAT fees in response to a declining number of test takes and law school applicants.  The LSAC responded, and Tamanaha has fisked the response.

The number of prospective law students taking the LSAT has declined significantly in the past few years after peaking in 2009-10.  So what is the Law School Admission Council doing in response?  Increasing the test fees.  The fee increases include a substantial increase (in percentage terms) in the cost of sending LSAT scores to schools.  Yet if the LSAC is among those concerned about declining law school applications, making it more expensive to apply is hardly a sound way to respond.

UPDATE: Brian Tamanaha takes a closer look at the LSAC here.  As he notes, this is strange behavior for a non-profit organization that’s “sitting on nearly $200 million in assets” and is supposed to serve the nation’s law schools.

If you are a law student interested in pursuing a career as a legal academic, you may be interested in the Institute for Humane Studies’ upcoming online program for aspiring legal scholars: a series of online lectures on various topics related to getting into legal academia that will be followed by question and answer sessions. There will be a total of five one hour sessions held on weekday nights in May. The lecturers include VC bloggers David Bernstein, Todd Zywicki, and myself, as well as Chapman law professor Tom Bell and Lee Otis, director of the Federalist Society’s Faculty Division. My own talk, scheduled for May 9, is on the subject of “How to Make the Most of Your Time in Law School.” Since IHS is a libertarian organization, some of the advice we offer is specific to libertarians seeking careers in legal academia. But most of it is likely to apply more broadly.

You can sign up for one or more of the sessions here. Participation is free for anyone who is a law student interested in pursuing a career in legal academia. But you must sign up by Friday April 27.

The NYT reports that the number of people taking the LSAT test has declined for the second year in a row.

The Law School Admission Council reported that the LSAT was given 129,925 times in the 2011-12 academic year. That was well off the 155,050 of the year before and far from the peak of 171,514 in the year before that. In all, the number of test takers has fallen by nearly 25 percent in the last two years.

The decline reflects a spreading view that the legal market in the United States is in terrible shape and will have a hard time absorbing the roughly 45,000 students who are expected to graduate from law school in each of the next three years. And the problem may be deep and systemic.

Many law professors are distressed by the proliferation of online course outlines and case briefs. Commercial outlines have been available for years. Now those students inclined to rely on such study tools have access to lower-cost alternatives. That’s not the problem. Rather it’s the existence of outlines that purport to represent how specific professors teach specific classes and (worse) that such outlines are often riddled with errors. I’ve looked at a few outlines from my classes on various websites and was astounded at the number of mistakes. If these outlines are representative of what’s out there, students rely on them at their own risk (and some have — which could explain how every year I find a set of exams making the same set of off-the-wall mistakes).

Some professors have sought to squelch the distribution of notes and outlines from their courses. Professor Bainbridge has come up with a better idea — one I may have to emulate.

I’m going to buy some of these note sets and outlines being sold for my classes. I’ll go through them and find all the mistakes. And then I’ll write exam questions testing on those very same mistakes. If we all did that, the market would dry up pretty quick.

UPDATE: Some of the comments below reflect an odd view of legal education.  A law school exam should test the extent to which a student has mastered the assigned materials.  A student who has mastered the assigned materials will not reflexively regurgitate mistakes found in an outline, whether purchased in a book store or downloaded from the web.  Indeed, uncritically copying or repeating what one finds in an outline is no way to learn the law.  Fortunately, in my classes, this problem appears to be confined to a handful of students each year.

An exam should fairly represent the material covered, not focus on picayune details or play gotcha. My own exams reflect this approach.  They are difficult (or so my students say), but are a fair reflection of what we covered in class.  Most of my former students say my exams were “tough but fair” — and that’s what I want them to be.  Reviewing attendance records, I’ve also found that those students with the poorest attendance records tend to have among the lowest scoring exams, suggesting that paying attention in class pays dividends — and, again, that is what I would hope for.

I have no problem with outlines or other supplemental material if used properly. Every year I make a point of recommending supplemental material that I believe students will find helpful and of explaining how such material (including commercial outlines) can be used most productively.   I referred to outlines in some of my classes as a student.  Yet as I explain to my students every year, I don’t believe commercial or web-based outlines are a substitute for reading and digesting the material or preparing one’s own outline of a course.  If all that were necessary to achieve a good grade were finding the right outline, there would not be much value in taking the course — indeed, there would not be much value in law school beyond the credential.

This week the premier legal ethics blog, Legal Ethics Forum, is hosting a symposium on “Legal Education’s Response to the Economic Realities Facing the Profession.” In this symposium, “scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students.” They have what looks like a fantastic line-up (including my colleague Cassandra Burke Robertson), so this will be a must read for those interested in how legal education and the legal profession are responding to broader economic changes.

Next spring semester, I will be teaching a First Amendment class. So I request advice from commenters about what textbooks they liked, or did not like, and why.

For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

The National Law Journal reports on a recent panel at the AALS conference on the need for changes in legal education. Readers will recall that Judge Cabranes also spoke at the same conference on the same topic, and he urged a return to traditional doctrinal classes and a reduction in “law and” classes. The National Law Journal article adds several more recommendations, such as adding a year of executive-education classes, recommended by the Susan Hackett, chief executive officer of consulting firm Legal Executive Leadership.

Perhaps I am too cynical, but a common theme of these recommendations seems to be that students should be more directed towards the practice needs of the recommender’s speciality area. Transactional lawyers tend to suggest more transactional training, judges suggest more doctrine, etc. I suppose that’s understandable: Like the blind men with an elephant, we assume that the corner of the legal world we experience reflects the legal market as a whole. Still, that trend makes me a bit skeptical that curricular reform is the answer to current problems in legal education. This aside about employment prospects for graduates of existing programs with new “innovative” curricula seems worth noting:

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

“There’s no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven’t affected hiring patterns,” Henderson said.

Maybe that’s because employers haven’t realized the value of curricular innovations. But it might also be because curricular innovations have less of an impact on the skills and knowledge base of law school graduates than their proponents realize.

In a recent speech, Second Circuit Judge Jose Cabranes argued that law schools should get “back to basics” with more bread-and-butter courses and fewer “law and” courses, in addition to other changes:

To get back on track, law schools should shift their curricula back to core courses and away from the interdisciplinary classes that have grown in popularity, he said . . .

Cabranes lamented the move by law schools toward specialized, often interdisciplinary courses that can displace “black-letter” law courses — criminal and civil procedure, evidence and federal courts. He related a story about a friend’s child who enrolled in a law school clinic focusing on housing court — but who had never taken a property law course.

Core law courses should come before clinics and interdisciplinary work, even if the latter are more popular with students and faculty, he said.

I’d love to see an empirical study on how much, if at all, the differences in what courses students take impact their skill sets and influence careers as lawyers. These days, most courses after the first year are elective, and students can take a wide range of classes. Students can decide to take all basic doctrinal classes or all “law and” classes. They can take a lot of clinic credits (at most schools, at least) or none. Or they can take a mix of classes here and there, blending different kinds of classes. The diverse choices of different students would seem to allow examination of whether such choices make any difference — or at least if the students who opted for one set of courses ended up with different careers than ones who opted for a different set. I’d be very interested to know if there’s any difference; my first guess is that there is little or none.

Hat tip: Brian Leiter

David Segal’s recent New York Times article on ABA accreditation of law schools makes the important point that the ABA uses the accreditation process to reduce competition for its members by artificially reducing the number of law schools, and thereby eliminating potential competitors for its members. This interacts with laws that require consumers to rely on lawyers even for relatively simple tasks that in many other countries are performed by paralegals and the like. The end result makes even basic legal services extremely expensive, especially for the poor and the lower middle class:

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors….

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities…..

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers….

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

While there’s a lot worth criticizing in David Segal’s NYT article about law professors and law schools — Matt Bodie covers a lot of good ground in this post at Prawfs — there’s an underlying point that I think is both important and correct: Law professors, at especially the “top” law schools, are becoming less connected to the legal profession. As a result, over time, they are less likely to know — and therefore less able to teach — the perspective an experienced lawyer would bring to legal problems.

Richard Posner made this point nicely in his 2007 essay celebrating the life of his late colleague Bernard Meltzer. Posner begins by describing the professional identities of law professors before the 1960s:

Law professors used to identify primarily with the legal profession and secondarily with the university. . . . Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer.

That all changes starting in the 1960s, Posner argues: Now law professors identify academics first, and with the legal profession second or not at all. Posner argues that this switch has real costs to students, as law professors who identified with the legal profession served as role models for students who were trying to master the craft of lawyering:

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed.

Posner then argues that while you wouldn’t want every law professor to be completely oriented to the profession, law schools should strive for balance between the profession-oriented legal academics and the university-oriented legal academics.

[The practical lawyer's sense] cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

Next semester I will teaching the Constitutional Law I class at Denver University. It’s the standard class that almost all 2d or 3d semester law students must take at all law schools:

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court’s power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President’s war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I’ll be using Randy Barnett’s textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I’d strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

FOLLOW-UP: Things are worse than I had feared. Several commenters mentioned some great books (e.g., Gordon Wood), but I want a survey that goes from no later than 1776 through most of American history. No textbooks for AP or college US History, although I wish my students had the time and the money for the Schlesinger textbook. No books that focus on a particular issue, even if it’s a broad one (e.g., Eric Foner’s book). I’m certainly not going to inflict Howard Zinn on my students. I read the 1st edition of People’s History almost as soon as it came out, and enjoyed it. But that’s definitely not the starting point for someone to learn the actual history of the United States; it’s a book for someone who already knows a lot of American history, and can discern the difference between some neglected stories that Zinn tells, and the incredible amount of chaff. Bill Bennett did so much damage to the Constitution during the Bush administration that I recoil from using his book in a constitutional law class. So in the realm of affordable survey paperbacks, we’re down to Brogan’s Penguin History and Paul Johnson’s A History of the American People. Based on Amazon reviews, each book is way too didactic for my purposes. Not that the distinguished authors are not entitled to their points of view; I just want something without such a heavy hand. At this point, I’m leaning towards telling students to buy Samuel Eliot Morrison’s Oxford History, which ends in 1963, but is available used for almost nothing, plus shipping. Or his more recent Concise History of the American Republic, also available used for very good prices.

I agree with most of what co-blogger Eugene Volokh writes about the benefits of have a wide range of student groups at law schools, including ones that focus on specific ethnic or religious groups. I addressed a similar issue in this 2007 post:

Those who argue for diversity in higher education implicitly envision a school that has a “critical mass” of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.

By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis’ traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.

To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don’t want to be associated with a distinctively Jewish school have plenty of options, even if they can’t attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way.

What I said about diversity across schools also applies to diversity between student groups within a given school. By having a distinctive Jewish student group, black student group, Christian group, and so on, diversity across groups is enhanced even if these groups are not internally diverse (indeed, sometimes precisely because they aren’t). Obviously, internally homogenous student groups have limitations. But those are to some extent offset by the fact that there are usually many other student groups available, including many that are not focused on a specific ethnic or religious identity.

For reasons I have indicated in the past (e.g. here, here and here), I have various reservations about the diversity-promoting affirmative action policies currently practiced by most universities. But that does not undermine the point that there are real benefits to having a wide range of student groups, including some which are internally homogeneous.

The National Law Journal has a new blog, Law School Review, focusing on legal education.  Contributors include Brian Tamanaha, William Henderson, Erwin Chemerinsky, John O’Brien, Lucille Jewel, Kyle McEntee, and Michael Olivas.

Co-blogger Orin Kerr links to Richard Fallon’s interesting article on the ethics of law professor amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? I am not sure that either of us has hit upon exactly the right approach. But I do think that we should apply tighter standards to our participation in these kinds of briefs than seems to be the norm today. Otherwise, as Fallon suggests, we end up using the intellectual authority we have based on scholarship within our fields of expertise to influence courts on issues about which we actually know very little.

An alternative norm is that a law professor might sign an amicus brief on an issue outside his expertise in such a way as to indicate that he’s doing so in his capacity as an ordinary citizen rather than as an academic expert. This approach is, I think, entirely ethical. Experts are not the only ones entitled to express opinions on legal issues, including in amicus briefs. But it does, of course, tend to defeat the main reason why people solicit law professors’ signatures on amicus briefs in the first place. A brief joined by “Professor Joe Blow, constitutional law scholar,” looks a lot more impressive than one signed by “Joe Blow, acting in his capacity as an ordinary citizen.”

Brookings Institution scholar Clifford Winston recently published a good column advocating the abolition of legal requirements mandating that all lawyers must graduate from law schools and pass bar exams:

For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.

Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance….

What if the barriers to entry were simply done away with?

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

At the same time, if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.

Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.

See also his recent coauthored book on this subject.

I have made similar arguments in previous posts, here, here, here, and here. In this post, I explained why it’s better to eliminate the bar exam requirement than try to reform it.

To be clear, neither Winston nor I are suggesting that either law schools or bar exams should made illegal. We merely advocate eliminating the laws forbidding people to practice law without having these two credentials. Consumers, however, might still prefer lawyers who have gone to law school and/or passed a bar exam to those who have not. Moreover, with their legal monopoly gone, law schools will have incentives to provide better legal education and bar associations will have stronger incentives to design tests that really do correlate well with future performance as a lawyer. Voluntary certification has many advantages over the present bar exam system, some of which I covered here:

Voluntary certification is another useful tool for consumers. If state-mandated bar exams were abolished, both bar associations and other private groups would still be free to certify lawyers using either tests or other standards they deem appropriate. If lawyers certified by the bar association are generally more competent than others, sophisticated clients will soon realize that, and the knowledge will quickly trickle down to less sophisticated ones. Over time, lawyers certified by the bar association will command higher salaries and enjoy more prestige than those who are not.

Superficially, voluntary certification seems little different from the old bar exam system. After all, lawyers would still have incentives to meet standards established by some professional organization. However, there are three big differences. First, abolishing state-mandated exams allows different certification systems to compete against each other. This stimulates improvement in standards over time and also increases consumer choice. Second, since no certifying body will have a monopoly, these groups will have strong incentives to improve the quality of their certification systems. If the bar association’s certification system turn out to be inferior to that of the Better Business Bureau, for example, fewer consumers will pay attention to it, and fewer lawyers will pay to take the bar association’s test. For this reason, a bar association that didn’t have a legal monopoly on certification is likely to produce a better test than one that does.

Finally, with multiple certification systems, we would no longer have to have a “one size fits all” system that sets standards for all lawyers and all clients. It could well be that Certification A better meets the needs of some clients, while others have reason to prefer B, and still others need no certification system at all.

Market competition and voluntary certification might not be able to eliminate all need for regulation of lawyer quality. For example, there is the issue of what to do in situations where clients have no real choice, as in the case of court-appointed lawyers for indigent criminal defendants. However, it does obviate the need for crude licensing regimes such as the bar exam that completely block access to the profession to anyone who doesn’t pass.

St. Louis University law professor Aaron Taylor recently published a good column challenging the conventional wisdom that holds that the job market for lawyers is rapidly collapsing:

It’s open season on legal education — falling applications, lawsuits by former students and dooms day warnings about the legal job market. The rampant bad publicity has taken on a sensational flair. Popular blogs and even established news forums are peppered with anecdotes about law school graduates drowning in debt with no good options for the future.

But as is often the case with anecdotes, these compelling tales of woe represent exceptions…

Lawyers have not been immune to the effects of the recent recession. However, they have fared much better than most workers. According to U.S. Department of Labor data, the unemployment rate for lawyers was 1.5 percent in 2010 — more than six times lower than the overall rate of 9.6 percent. Since 2009, while the overall unemployment rate has remained above 9 percent, the rate for lawyers has exceeded 2 percent only once. It is true that unemployment among lawyers has increased significantly over the last few years (it was barely 1 percent in 2007), but the increase pales when compared to other occupations.

Salary data show that the vast majority of lawyers earn relatively high salaries. According to the U.S. Census Bureau, lawyers boast the fourth highest median salary behind medical doctors, dentists and CEOs (some of whom have law degrees). While the majority of occupations have median salaries between $20,000 and $49,999, the median for lawyers in 2010 was almost $113,000. Again, this was the median — the actual midpoint — which means the majority of lawyers made six-figures.

Predictably, starting salaries for new lawyers tend to fall below the median for the profession as a whole, but they still tend to be relatively high. According to NALP, the class of 2010 had a median starting salary of $63,000, a respectable living for a new entrant into any profession. On the downside, the 2010 median was $9,000 lower than the year before. But declining wages have buffeted the entire economy. Fortunately, as the economy sputters back to life, salaries are unlikely to continue falling at the same rate — if at all.

Note that most of the data Taylor relies on comes from the Labor Department and the Census Bureau rather than NALP, which has been criticized for relying on overly optimistic data provided by law schools.

I advanced similar challenges to the conventional wisdom on the legal job market here and here. In this post, I noted that the long-term prospects for the legal profession are likely to be good, because the demand for lawyers is largely driven by the amount and complexity of laws – and that complexity is rapidly increasing.

Some will probably accuse me of wanting to make law seem more attractive than it is because I am a law professor. I preemptively addressed that charge here:

I’m sure someone will argue that I’m just saying this because, as a law professor, it’s in my interest for people to believe that going to law school is a good deal. Maybe so. But note that I advocate several reforms that are definitely not in the interest of law professors, such as allowing people to join the profession through apprenticeships, eliminating the legal requirement of spending 3 years in law school, and so on. More broadly, I favor greatly reducing scope and complexity of American law, which cuts against the longterm interests of both lawyers and law professors.

I have also long argued that too many choose law school as a sort of default option without giving sufficient thought to the question of whether they’re really likely to be happy as lawyers or entering one of the other professions for which a J.D. is valuable. Law is a lucrative profession and likely to remain so. But many lawyers work long hours at tasks that a lot of people would find boring and repetitive.

I’m far from happy about the continued financial health of the legal profession. Much of it stems from the growth of government and the increasing complexity of our legal system, both trends that I oppose. I also oppose the bar exam, ABA accreditation of law schools, and other government policies that artificially inflate lawyers’ salaries by protecting them from competition. These types of policies make it very hard for the poor and lower-middle class to afford basic legal services, which I think is a problem far more worthy of concern than the supposed financial woes of lawyers.

If the long-run demand for legal services really did decline drastically, I would see it as a positive sign. But that’s not what seems to be happening right now. Like most other professions, lawyers have suffered during the current recession, and entry-level job prospects have worsened. But, as Taylor explains, these economy-wide trends are actually much less severe among lawyers than in most other fields.

UPDATE: Some commenters and others claim that the Labor Department data on lawyer pay and unemployment rates are invalid because they don’t take account of people who have left the legal profession entirely. I responded to similar claims here:

[I]t seems unlikely that there is large Marxian “reserve army” of unemployed lawyers [or JDs who would like to return to the legal profession] out there. If there were, one would expect lawyer salaries to drop substantially as competition from the unemployed drives down the pay of those who have jobs, especially at the lower ends of the distribution (e.g. — the 10th and 25th percentiles noted in the post [both of which are relatively high figures]). Yet the Labor Department data shows lawyer salaries holding fairly steady. For example, today’s [2010] 10th percentile salary of $55,000 per year is actually slightly higher than the prerecession 2007 figure. That would be highly improbable if there were large-scale unemployment among lawyers [or if there was a large number of JDs outside the legal profession, but willing to reenter it].

In addition, it seems highly unlikely that nearly all JDs who can’t find jobs as lawyers, but want them leave the profession almost immediately, thereby keeping the unemployment figure at the low measured rate of 2%. One would expect them to hang around somewhat longer than that. The bottom line is that, although the official 2% figure may not be fully accurate, it is still likely that unemployment for lawyers is far lower than in the economy as a whole.

I agree with most of co-blogger David Bernstein’s advice to aspiring law professors. In particular, David is absolutely right to reject the view that you can’t have a major impact on the scholarly and public debate in your field unless you’re at a top 15 school. I had the same fear when I was on the job market. But I was wrong.

Today, it is more possible than ever for professors at lower-ranking schools to have a big influence. For example, 2009 data shows that even the then-untenured bloggers here at the VC had citation counts comparable to those of tenured law professors at top ten-ranked schools, (and none of us teach at schools ranked in the top 15). The same can be said for other VCers teaching outside the top fifteen, such as David Bernstein, David Post, and Todd Zywicki. And the VC itself is an example of how professors at lower-ranked schools can have an impact on public debate, as well as academic discourse.

Modern technology makes it easier for scholars at lesser-known schools to get their work noticed. Thanks to Westlaw, Lexis, and SSRN, well as good old e-mail, you can easily make your work available to interested colleagues even if you aren’t being invited to conferences and workshops at the top 15 schools. Four VCers who don’t teach at top 15 schools are among the top 150 lawprofs in the world in lifetime SSRN downloads, led by Orin Kerr (No. 13), and Todd Zywicki (No. 71). There are numerous non-VCers from non-top 15 schools who rank that high as well. And once you build up enough of a reputation by these other means, the conference and workshop invitations will start to come in too. The internet and the blogosphere also make it easier for non-top 15 professors to influence public debate, if they are so inclined.

There’s no denying that professors at the best-known schools have a real advantage. It’s certainly easier to attract attention to your work if you’re a professor at Yale than if you’re at Podunk U (or George Mason, for that matter). The big name school gives you instant credibility that a lower-ranked school doesn’t. But if you do enough good work and use modern technology to promote it, you can have an impact wherever you are.

UPDATE: Eric Muller writes that “Ilya Somin is of course right that those of us on law faculties below the “Top Fifteen” can do things that have a big impact. But he’s only half right, because he’s only talking about the impact we can have on each other (and on our citation practices).” That’s not entirely true. I also mentioned the impact lawprofs can have on public debate outside the academy. Eric goes on to note that professors at any level can also have an impact on their students and local communities. That’s clearly true. But I don’t think anyone doubts it, which is why I didn’t mention it. What is more debatable is whether professors at lower-ranked schools can influence academic and public debate in their fields.

A wildly disproportionate percentage of law school faculty graduate from a very few top law schools, especially Harvard and Yale. Not surprisingly, graduates of these schools turn to their mentors and references for advice on how to navigate the teaching market.

Some of these professors give sound advice. But the very fact that these folks wound up at the very top schools means that their experiences were exceptional, and they may not have a great sense of the overall market. In addition, for obvious reasons professors at these schools are inclined to think that the market is much more of a meritocracy than it actually is (which isn’t to say that merit doesn’t play a huge role in hiring, just that many other factors also play a role; it’s not that the top schools don’t hire meritorious candidates, it’s that meritorious candidates don’t always get hired by the top schools, or, in some cases, get any jobs at all).

Here are a few examples of terrible advice that I’ve heard students get from their references at top ten law schools:

(1) Go on the job market directly out of your clerkship, with no practical legal experience (and no Ph.D.) because it will signal how serious you are about academia. (This may have worked in the old days, but ONLY if you had a Supreme Court clerkship, which the individual in question did not.)

(2) Don’t bother going into the legal academy unless you can get a job at a top fifteen law school, otherwise you are better off working at a law firm; no one pays attention to what people at lower-ranked law schools have to say, so you will just get frustrated if you wind up at one of them. (Actually, being a law professor at any law school with a good academic environment is one of the best jobs in the world; people do move up; and people do pay attention to good scholarship emanating from outside the top 15).

(3) Prominently display your (otherwise irrelevant) ideological credentials (in this case, officership in a Federalist Society student chapter) on your teaching applications. (Why? Why? Why?)

(4) Sending out a law review article? Start with the top 20 law reviews, and see what happens. (That works if you’re teaching at Harvard or Yale, not if you aren’t even a professor yet.)

(5) Attended a lower-ranked school first year of law school, and then transferred? If anyone asks about it, be dismissive of your original school, to show that you always knew you were better than that. (Any committee you interview with will have at least one member who has friends at that school and will be insulted for them, plus word will get back to your original school where you will have now lost your friends.)

I could go on. But the basic point is, you should double-check any advice you get from your elite-law-school references with professors teaching at less lofty schools, especially ones who have served on appointments committees. Even if you only have a passing acquaintance with such individuals, they are usually quite willing to spend a few minutes to help out future academics.

Joni Hersch and Kip Viscusi have posted an interesting paper counting the number of law professors at the “top” schools that have Ph.D. degrees. Of course, “top” is in the eye of the beholder: Hersch and Viscusi divide schools into the “Top 13″ and then the “Top 26.” A few of the findings:

• At the “Top 13″ schools, 32.3% of faculty members have Ph.D.s. The most prevalent subject area for the Ph.D. was economics, with 9.2% of faculty members having an economics Ph.D. (see page 23)
• At the next tier of schools, those ranked 14 to 26, the proportion of Ph.Ds dropped: 20.4% have a Ph.D. of some kind, with 4.1% having a Ph.D. in economics (see page 23)
• Of the faculty at the Top 26 schools taken together, 979 have only a J.D. degree; 294 have a J.D. and a Ph.D; and 65 have only a Ph.D. and no J.D. (see page 21)

Thanks to Al Brophy at the Faculty Lounge for the link.