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Ideas For Law Schools
During thirty years as a law school faculty member, first a faculty fellow at the University of Chicago and then a professor at Santa Clara University, I observed a number of problems with the current state of legal education and came up with possible solutions, none of which I ever persuaded my colleagues to implement. Perhaps someone else can.
Law School Financial Aid: Robin Hood in Reverse
Law schools need students. Applicants look at outcome statistics such as bar passage rates, reported to and published by the Bar Association, and other measures summed up in the annual US News and World Report ratings, in order to decide what schools to apply to. To improve those statistics law schools offer generous financial aid to applicants with high LSAT scores and GPA’s.1 The students who get that financial aid are the ones most likely to do well in law school, pass their state bar exam, end up with high paying jobs in top law firms. The students who pay full fare are the ones least likely to pass the bar exam or, if they do, get good jobs, most likely to end up more than a hundred thousand dollars in debt with very little to show for it.
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The schools are subsidizing the future rich at the expense of the future poor, often by more than a hundred thousand dollars per student.2 A school that abandons that policy will see its ratings decline, leading to a decline in the quality of applicants, leading to a further decline in its ratings, leading to … . The law schools are run and staffed by people who favor redistribution from rich to poor.3 They are forced by the institutional incentives they face to redistribute from poor to rich.
Outcome statistics depend on two different things: how able students are and how well they were taught. Getting smarter students by offering them money improves the first, which is why schools do it, but it is the second that matters to a student choosing a school. What he needs to know is not how well the average student at that school does but how well he will do if he goes to the school; the best measure of that is how well students like him have done in the past. If he has an LSAT of 155, the percentage of students with about that LSAT who passed the bar or got jobs after graduation is the relevant figure. Reporting outcome information that way, outcomes as a function of student characteristics, would give each student the information he needs to decide which school would be best for him.
Stanford graduates about two hundred students a year. The 25th percentile LSAT is 170, the 75th percentile is 175, so half the students have LSATs in that range, which gives an average of about sixteen students each year for each LSAT score. Bar passage over the past three years should give large enough numbers to generate meaningful data. That would be more true for larger schools, less for smaller.
Calculating a student’s chance of success based on both LSAT and GPA would be harder, since the number of students in each box, each combination of the two measures, would be lower. The solution is to use a multiple regression to fit the data. Currently the American Bar Association requires law schools to report statistics on average student performance. It would be almost as easy and much more useful if the statistics were reported as a function of LSAT and GPA. If each school did so, a student could plug in his own LSAT and GPA, read out how likely someone with those characteristics who goes to that school is to pass the state bar, get a job requiring a law degree, or succeed by any other criterion that he cares about and schools can measure, and choose his school accordingly.
That would help applicants make a better-informed choice of law school. It would also reduce the incentive that the present system gives law schools to buy good students, hence the degree to which they are forced to subsidize the abler students at the expense of the less able. If the ABA is not willing to do it, a law school that believes it does a better of training its students than its competitors could report the information itself and challenge other law schools to do the same.
Decisions by the law schools or the ABA could solve part of the problem, but not for those students who chose to rely on US News and World Reports ratings. Part of the point of the USNWR ratings is to present the information in the simplest possible form, a ranking of law schools. But they also provide ranking of schools by specialty, so that a student who plans to go into intellectual property law can find out which school is best for that. There is no reason why they shouldn’t add rankings of schools by student credentials showing what schools are best for students with low, medium, or high credentials, measured by LSAT and GPA.
One advantage of the proposal is that it would help students do a better job of choosing schools. Another is that it would reduce the incentive for perverse redistribution. A third is that it would encourage some schools to specialize in being very good at teaching students who aren’t.
Why are Law Schools Expensive?
Both the rules by which the American Bar Association accredits law schools and the U.S. News and World Report rankings are based in large part on inputs. Thus, for example, the ABA recommends a student to faculty ratio of no more than twenty and takes a ratio of thirty or more as presumptive evidence that the school does not meet the standards for accreditation. Its rules for calculating the ratio count one adjunct as one fifth of a tenure-track professor. It requires that substantially all of the first third of a student's coursework be taught by the full-time faculty. The standards include a lengthy list of what must be in a law school library, mostly material currently available to both faculty and students online. They further require that:
A law school shall require, as a condition for graduation, successful completion of a course of study in residence of not fewer than 58,000 minutes of instruction time, except as otherwise provided. At least 45,000 of these minutes shall be by attendance in regularly scheduled class sessions at the law school.
A school that chose to spend less on its library, have a higher student to teacher ratio, use more inexpensive adjuncts and fewer tenure-track professors, provide its education in any form other than the conventional number of hours sitting in a classroom, would risk losing its accreditation, whether it was doing a better or worse job of teaching its students.
U.S. News and World Report does not publish the details of its ranking system but it has been successfully reverse engineered. The four factors that together predict the ranking almost perfectly are peer reputation, fraction of graduates employed nine months after graduation, student-faculty ratio, and undergraduate GPA of the students.
The ABA requirements I have listed so far measure inputs, as do two of the four factors used to generate the U.S. News and World Report ranking. The ABA also includes in its requirements a measure of what fraction of students pass the bar. That, the USNWR employment measure and the peer reputation measure, are output measures but not very informative ones. A professor at one law school is unlikely to know how good a job other schools do of educating their students, likely to base his opinion on what prominent scholars in his field are at which school and what they are publishing, information almost entirely irrelevant to most students.
Bar passage and employment rates are more relevant but both depend on quality of students as well as quality of instruction. Top schools get high bar passage rates not because they do a particularly good job of teaching the skills relevant to bar passage — most of their students take an additional bar preparation course before taking the exam — but because they admit only smart students.
Individual law schools could make changes, such as Judge Posner's proposal to make the third year of law school optional,4 that would reduce costs. But they won’t, since it is not in the school’s interest to save their students money at the cost of risking their accreditation and ranking. The ABA could change its rules to permit cost-reducing changes but there is an incentive problem there too, since the ABA is largely controlled by tenure track faculty and practicing lawyers. The current standards increase the demand for tenure-track faculty and raise the cost of entry to the profession, benefiting both groups.
A Bare Bones Law School
Part of what started me thinking about the issue of law school cost was a blog post that included a description by a law school student of what is needed to teach law.
I take my last law school exam tomorrow, and I attend an ABA certified school.
Here is what I have learned about law school, and the elements required to effectively run one:
1) You need 3, maybe 4 professors (my advice: try to pick three or four that don't just read off of their own power point slides).
2) you need a table, some chairs, and a room that is relatively free from distractions. A corner table at a Denny's would be fine, a checked out conference room at a library would be perfect.
3) a few (maybe 3) admin personnel to collect money and deal with admissions and registrars issues.
4) That is it.
I have never seen anyone check a book out from the library, and so the ABA requirement that a school have a large one seems at best a relic from another time (and at worst absurd). Having a large physical plant, such as a faux-court room for the mock trial events that absolutely no one attends, or a campus bookstore (everything is cheaper on Amazon), or a law review (no one reads those things unless you are at maybe the top five or six reviews). Career services? Get rid of them, I have never seen them do anything, but if you are really not convinced about this, maybe hire one or two. 15 deans? I have never met any of them, although occasionally I get annoying emails from them. Perhaps you feel that your students cannot survive without a cafe? Build/rent your school next to a Panera.
My point is simply that a law school is about the lectures, and that is it. If you want to make the cost of law school more reasonable (and presumably the price associated with legal services with it) pay some teachers cut out all of the nonsense, pay 5 teachers 75k a year, and charge 50 students 10k a year. I am unable to see how this system would have in anyway changed what I learned during the course of my almost concluded $120k education (during which I had classes with exactly 9 professors, 3 of whom I felt like respectably talented at their craft).
His bare bones law school would cost students about $10,000 a year. Price increases since he wrote it would take it to about $13,000. Combine that with Posner's proposal for a two year degree and you have the cost of legal education down to $26,000.
But the ABA wouldn’t accredit it.
Another Approach to Ranking Law Schools
Suppose you are a wealthy potential donor and you want to give money to the school in your state that is doing the best job of educating its students. How do you find it? How could you provide a measure of law school quality, value added, that would work for all schools, allow you to compare Stanford to Golden Gate?
I have a simple answer. The required data is bar test result — pass or fail on the first try — and LSAT for every law student in the state. Given that data, it is straightforward to compute bar pass probability as a function of LSAT score. Start with all students who got 180. Calculate what percentage of them passed the bar on their first try. Repeat for 179, 178, … all the way down to 120.
Now consider a particular school. Given the distribution of LSAT scores for its students, calculate how many of them would have passed the bar on their first try if the results corresponded to the statewide average. If there were three students with an LSAT of 179 and 95% of the students with that LSAT score in the state passed, then 3x.95=2.85 would on average have passed. Do the same calculation for every score and add up the result. Compare that number to how many actually did pass.
If the average result for that distribution of LSAT scores would have been 80 students passing and in fact 80 did pass, then the school is doing as good a job as the state average at preparing students for the bar exam. If 88 passed, it is doing ten percent better than average, if only 72 passed, ten percent worse. We now have a single measure that tells us how good a job each law school in the state is doing.
Different states have different bar exams, some easier to pass than others, which is why this has to be done at the state level rather than the national level. If you think what matters is not passing on the first try but ever passing, or neither of those but getting a job for which a law degree is required, or some other measure of success for which the data are available, do it with that instead.
A Modest Proposal
Some years before I retired my law school, along with most others, faced a sharp decline in applications driven by an increasingly widespread perception that going to law school was likely to leave the graduating student with large debts and either no job as a lawyer or one that did not pay very well. Thinking about what we could do in response, I came up with the following plan:
Consider a school with a target enrollment of 200. It currently plans to set the lower limit for accepting applications at a level, defined mainly by LSAT score and undergraduate grade point average, that will result in accepting 400, half of whom it expects to enroll. It could admit more and get more but at the cost of lowering average LSAT, bar passage rate, USNWR rating and future applications.
It does it anyway, lowers the cutoff far enough to get an entering class of 250. Fitting them in is no problem; due to the decline in enrollment over the previous several years, it has more than enough classroom space and teaching staff.
At the end of the first year it sends a message to the fifty students at the bottom of the first year class, warning them that, on the basis of their grades so far, they are at serious risk of failing to pass the bar. The school offers to refund their first year tuition in full if they choose to drop out. If only thirty accept the offer, a similar message goes to twenty more. The process continues until enrollment is down to 200.
What is the result?
1. The school ends up with the same revenue as if it had followed its original plan and admitted 200 students. Costs are only increased by a little, because the school has excess resources, physical and human, due to past enrollment decline.
2. Since the students least likely to succeed have been warned and offered their money back, the professors may legitimately feel less guilty about taking the money of students who are not going to make it.
3. First year grades are a better predictor of bar passage rates than the information available at admission, so the school's bar pass rate goes up.
4. Once word of the policy spreads more students will be willing to apply, permitting the school to raise either its standards or its enrollment, because they know that if law school turns out to be too hard for them they can leave and get their tuition money back.
The Law School Junk Mail Problem
During my years at the Law School of Santa Clara University I was teaching half time, one semester on, one off. During one of the off semesters I came into my office to collect my accumulated mail and found that it included forty-three pieces of unsolicited mail from law schools, ranging from brief glossy brochures announcing a new hire, lecture, or institute to full scale glossy magazines describing the wonders of the school. None of these schools was trying to hire me, so why did they bombard me with literature advertising themselves?
The answer, almost certainly, is that one way U.S. News and World Report rates schools is by asking randomly chosen law professors each fall what they think of the various schools. To improve your school’s rating, something all law school deans would like to do, you bombard law professors with literature in the hope that some of it will catch their eye.
I do not know the actual cost to the senders of those forty-three pieces of mail but I would be surprised if the total was much under a hundred dollars or if the annual total cost of sending me such mailings, all of which go into the recycle bin, was under a thousand dollars. I would not be surprised if it were several thousand. There are about ten thousand law professors in the U.S. Assuming that my experience was average — there is no obvious reason to think it was not — the total cost is probably more than ten million dollars a year, plus the time spent composing the material and reading it.
I have a simple solution, designed to save the law schools money and law professors time. Let the ABA or the AALS set up a no write list for law professors. By putting my name on the list I put law schools on notice that I do not wish to receive any mailing from them not specifically written for me, including any mailing of which more than a hundred copies go out. I further put them on notice that if any school sends me such mailings, I will remember the fact against them when and if U.S. News and World Report calls me.
Something My Law School Did Right
This chapter so far has been about things law schools could do and don’t. I will end it with an example of something my law school, and some others, do right.
The Northern California Innocence Project is run out of, and largely staffed by, the law school of Santa Clara University. Its purpose is to identify people who have been convicted of crimes they did not commit in order to get their verdicts reversed. While the project involves some lawyers and at least one faculty member, a lot of the work is done by law school students. Seen from one side, the purpose is to get innocents out of prison. Seen from the other, it is to educate our students.
Considered as education, it is a successful example of the approach I have argued for in earlier posts. The students are learning legal skills, how to interview witnesses, file the right paperwork, make the right legal arguments, convince judges and prosecutors. They are learning those skills not because someone else has told them they will need them five years from now to do the work someone then will pay them to do but because they need the skills now to do something they very much want to do, right a wrong, rescue someone unjustly imprisoned.
For data on financial aid at private law schools, see https://www.usnews.com/best-graduate-schools/top-law-schools/finaid-private-rankings. For public law schools, see https://www.usnews.com/best-graduate-schools/top-law-schools/finaid-public-rankings
Pennsylvania State University, Carlisle, has a median grant of $51,840 a year, making it, by that measure, the most generous of public universities. The figure for St. John’s University, the most generous of private law schools, is $63,290.
For evidence on the political views of law professor, see https://www.thecollegefix.com/post/24015/
Richard A.Posner, The Problematics of Moral and Legal Theory 280-95 (1999).