American legal education is broken because it is systematically unfair and unaffordable. We can begin to understand the current, unfair state when we examine how schools and the ABA govern; how schools recruit new students and set prices; and how policymakers and their influencers fundamentally misunderstand what it means to provide “access to education.” These factors enable and cause our broken system to endure.
Achieving a higher education should not hurt students—economically, socially, or personally. But our legal education system has hurt many. Countless well-meaning people defend the status quo reflexively, choosing to focus on theories of long-term return on investment or the J.D.’s intrinsic value to justify the current state of legal education. Enchanting as these arguments may sound, they are presently and justly overshadowed by crippling debt. Simply put, if you are a young college graduate or mid-career applicant right now, then you aren’t buying the idea of a long-term return when the most certain thing about your future is your monthly loan obligation.
A fairer entry to our profession requires that the legal education system undergo significant structural change. Our sharpest tool thus far has been information. Publicizing the expense, debt, job outcomes, moral hazard, rent seeking, deception, regulatory capture, price discrimination, protections that enable systemic failure, etc. has led to better consumer information, downward price pressure, and more accountability. Your alma mater may not seem interested in reforming on ethical grounds, but economic pressures speak loudly and forcefully. When schools cannot generate adequate revenue using old practices, they must change or they will close. Our goal is to ensure that we’re all better off as a result.
Responsible efforts for change require thoughtful consideration to the resultant state of legal education. To justify advocating for change, we must believe that both society and the legal profession would be better off as a result of a transformation of the law school model. This requires more than mere pressure (revenue, perception) on schools to change; we also need to think about what legal education could look like post-reforms. We need to invigorate debate about how to view law schools, and to actively rehabilitate the severely damaged trust in law schools (when deserving) so that their actions do not endanger the administration of justice. Much of this reform requires an attitudinal shift within our profession.
We named LST based on a belief that our profession would benefit from making transparency a powerful norm in legal education, under the assumption that transparency would catalyze a desirable resultant state. By and large, school leaders have still not sufficiently embraced transparency. We’ve had to drag the schools into the transparency era through carrots and sticks. Transparency threatens the status quo of our legal education system because it forces both the public and school leaders to confront difficult realities, ranging from the sheer number of graduates who do not obtain desirable jobs to the financial hardship many find themselves in post-graduation. And when prospective students can access and use new information, transparency helps combat unfairness. As we continue to see more improvements in terms of disclosure and comprehension, we can direct more attention to the cost of earning a J.D. In turn, this will ultimately shape our profession’s prevailing norms about access, affordability, and fairness.
For years pricing has followed a willingness-to-pay model. Willingness was artificially inflated by borrowers’ financial unsophistication and by misleading employment statistics, both against a cultural backdrop that reinforced law school as a ticket to financial security. Many justify tuition by pointing to a J.D. wage premium. In fact, this attitude is common throughout higher education. A fairer pricing model, however, doesn’t ask how much post-graduation value your school can capture without reducing your investment’s net present value to zero. Neither does it use aggressive price discrimination to provide more affordable access to the students most likely to succeed in the job market.
Rather, a fairer pricing model considers how paying for education affects your outlook in the short, medium, and long-term. Integrating these concerns looks beyond the net present value of human capital investment. It attunes all the aspirations you may have in life: a fulfilling career, owning a home, having a family, helping your community, saving for retirement, etc. Fundamentally, the model needs to acknowledge how paralyzing debt due to unconscionable prices impacts and undermines our aspirations. If obtaining an education burdens one or more of our basic needs, we need to question whether we can still celebrate “access to higher education.” Without affordability as a cornerstone of the definition of access, it’s an empty term, even if no student will technically lack the loans to pay educational costs.
To promote these ideas on the need for reform and how to get there, we must create original research, ferret out information, write, and organize information for easy consumption. We must also engage in advocacy while also consulting with law schools, the ABA, and other regulators. For us, the foundation of reform continues to be good ideas supported by data.
Transparency—through information disclosure—greases the wheels of reform. The facts are already on our side, so focusing on the facts is not only right but strategically beneficial. It is important, however, not to increase information on LST’s various websites simply for the sake of wanting more information. First, not all information is quality information. Second, information overload threatens to obfuscate quality information, which could undermine access to that information.
We must carefully assess any information to which we lend our credibility and emphasis. For example, many users would find the inclusion of historical U.S. News rankings on the LST Score Reports valuable because the rankings are an attractive sorting mechanism with cultural cachet. But as a number of studies and extensive commentary have shown, the U.S. News rankings poison informed decision-making and can irreversibly frame a law school applicant’s beliefs about relative worth. Therefore we should not encourage use by including it in on the Score Reports. We argue that students are better off substituting other information because tools are now available to allow them to do so.
As a different example, many law school administrators have pushed to include J.D. Advantage jobs in the LST Employment Score, which includes only jobs requiring bar passage. As of today, the J.D. Advantage category lacks precision in meaning and understanding, and there is limited information available about what these jobs are and what graduates think of them. We do know that graduates with these jobs are three times more likely to be looking for another job than graduates with jobs that require bar passage. We likewise know that some of these jobs are desirable and would not have been obtained but-for the J.D. However, schools should not demonstrate the value of their programs through anecdotes, especially when much more useful information is available. By not including a messy, often-misleading category of jobs in the Employment Score, we encourage schools and the ABA to innovate in how they communicate value and raise interest in their programs.
To increase access to and availability of quality information, LST must encourage and support coverage of activities that impact legal education; write columns, reports, papers, and blog posts that break or create news; and organize information for consumption by students and policymakers. Open access to high quality information aids the creation and maintenance of an environment of accountability.
Accountability concerns the acknowledgment and assumption of responsibility for actions and policies. When we founded LST we were surprised by the lack of accountability by law schools and the ABA to prospective students, the profession, and society. Not only were law schools and the ABA publicizing misleading employment information, but law schools were irresponsibly growing their enrollments without regard to whether their graduates would be competitive in the job market.
To make matters worse, law school tuition growth has outpaced both the consumer product index and higher education inflation for decades. Consequently, schools capture more and more of the J.D. wage premium each year because entry-level wage increases have not kept up with tuition. Tuition increases have even outpaced salaries at America’s largest firms, where only about 10% of graduates—concentrated at the most prestigious schools—obtain jobs. As price discrimination shifts even more dramatically towards discounting tuition for those most likely to obtain the highest paying jobs (or any desired job), those who are more likely to struggle on the job market pay even higher prices.
Demand for law school is in decline. Transparency, mainstream press, ever-increasing tuition, the ABA’s stricter accreditation requirements and greater threat of enforcement, and an uncertain legal market have all contributed to the decline. Realistically, law school enrollment will bottom out in the next few years. At that point, schools will need the fortitude to exercise restraint and maintain enrollment numbers in congruence with legitimate community needs. They also need the fortitude to avoid raising tuition simply because demand increases.
Unfortunately, law schools have not habitually oriented decision-making towards the best interests of the students, the profession, and society. In the past ten years, a glut of new schools opened on the premise of projected community needs. Today, schools already seek to expand class sizes, citing a belief that law schools may have overcorrected. It's a telling example of how law school administrators use hope uncritically as evidence for actions and policies.
Information can curb bad law school behavior. Penalizing poorly targeted growth through information is a sound way to achieve accountability; schools must care about the negative consequences of poor employment numbers. But such information is not likely adequate to combat unwarranted enrollment growth or price increases. Job outcome information, after all, will not be available for the current admissions cycle cohort until May 2019.
Trusting that decisions this year will be made on realistic 2019 projections rather than 2015-16 academic year revenue needs seems fanciful. Each year, a new crop of law students enrolls without knowing the class size or the employment outcomes of the previous three incoming classes. A school could double its entering class—severely impacting job competition—and your only recourse as a new student would be dropping out or transferring after the first year. Given human psychology, you would most likely stick with school despite signs that your circumstances have drastically changed.
At the law school level, deans typically say all of the right things about transparency, enrollments, and costs. Much progress remains to be made, but acknowledging responsibility is a positive step. Yet accountability is about more than talk and reacting to public pressure. The answer to this cycle of enrolling too many people, the applicant market reacting, and rinsing and repeating over many-year periods is making responsible choices.
Three basic principles must guide law school choices:
- Don't produce too many graduates.
- Don't raise prices because people will eagerly pay.
- Provide a quality education that enables bar passage and the successful practice of law.
By encouraging and maintaining an environment of accountability, we can integrate these professional and educational responsibilities into law school decision-making. Features of this environment include improving and enforcing disclosure norms, documenting how well schools follow and the ABA enforces Standard 509, and working for the adoption of norms in law school strategic plans. It will be critical that we effectively communicate expectations and performance to the schools, ABA, and public.