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Friday, November 30, 2012

Schrag and Tamanaha on Legal Education

Two very valuable contributions to the discussion of legal education and its financing were made this week, and neither of them appeared in the New York Times (or Salon). The first is this review by Philip Schrag of Brian Tamanaha's Failing Law Schools book. It argues, in brief, that while Tamanaha usefully collects many stinging criticisms of American legal education and its cost, he "understates the benefits offered by the federal income-based repayment plan." The second is this reply by Tamanaha, along with interesting comments by, inter alia, Schrag and Tamanaha.

Having written my own (positive) review of Failing Law Schools, I should note one area of overlap and agreement between my review and Schrag's. It is my closing point, and Schrag's as well: in thinking about reforming legal education, our focus should include clients as well as students, and specifically the mismatch between the number of lawyers and law school graduates and the number of middle- or low-income clients who need but do not receive or cannot afford legal services. Neither of us charge Tamanaha with being indifferent to this state of affairs; we simply argue that it was worth more discussion. I should add that, even with IBR factored in (and not everyone will avail themselves of IBR), I think Schrag undersells the extent to which high tuition and debt are responsible for the mismatch, asserting that "the cost of law school may be a relatively minor factor in the high cost of service."

As Tamanaha agrees in his post, Schrag offers a good deal of valuable detail about current loan repayment programs, and his discussion is a valuable supplement to Tamanaha's book. There are, however, a couple of areas where I think Schrag is wrong and Tamanaha is right, and Schrag's paper doesn't persuade me to change my mind.

The first is his argument that Tamanaha's proposal to loosen accreditation requirements and permit greater flexibility in law school programs would "accelerate and perpetuate" the division of law schools into "elite and non-elite wings." Schrag seems to think that Tamanaha's intention is to create, or permit, a "two-tier" system of legal education. That's not how I read him; I think he's pretty clear that his interest is in allowing a variety of models of legal education to emerge.

In any event, like Tamanaha, I agree that we already have a two-tiered system of legal education. The question is whether we can do anything to make sure that the second tier need not take on all the expenses of the first tier, with fewer of the benefits. As far as I can tell, Schrag doesn't ultimately make any actual arguments against a stratification of legal education, beyond the unsupported assertion that "I doubt that many members of the profession desire further acceleration of the trend toward two hemispheres" in the legal profession. Instead, he just assumes some kind of egalitarianism that makes such a prospect (which, again, is already the current reality) unacceptable. I don't think he's right; but even if he is, his paper doesn't offer any substantial arguments for his position.

Second, although Schrag's expansion of the IBR discussion is helpful, I agree with Tamanaha that it does not adequately justify the large number of schools with large tuitions and so-so outcomes. As Tamanaha writes in his post: "The intended purpose of IBR is to rescue grads who find themselves drowning under large educational debt--but it was not set up to be utilized by schools (fighting for their own survival) as an inducement to persuade prospective students to leap into risky financial waters that will likely leave them foundering." In my own review, I suggested that the dependence of law schools on things like IBR is something like a canary in a coalmine. As Tamanaha notes, that dependence has, for some law schools, become a marketing point to prospective law students. That seems perverse to me. 

Schrag's response to this, both in his paper and on Balkinization, is, again, a general appeal to egalitarian values. Many countries subsidize higher education, he writes, and the US offers public subsidies for many things, so why pick a fight with IBR? That's a bigger discussion than anyone can have here. But it's really an argument about values, not facts. He writes in his paper that he "would not want to try to construct a principled basis on which to assert that partial subsidies were less warranted for lawyers than for philosophers, dentists, architects, business executives, journalists, political scientists, poets or many others who have graduate educations." I can see perfectly sensible reasons to subsidize some professional educations less than other fields. Or more: I can also see excellent reasons to offer fewer public subsidies to would-be poets! Having lived through three years as a student at McGill of annual student marches favoring tuition freezes, I was delighted by Quebec's efforts to raise university tuitions, and I was also pleased when Ontario allowed universities to substantially increase tuition for various professional schools. We may just have a philosophical disagreement here.

What I don't get, however, is why, if he favors the continuation of direct or indirect subsidies to law schools, Schrag isn't more eager to insist that those subsidies carry substantial expectations or conditions with them. "While we are at it," he writes on Balkinization, "would [Tamanaha] also eliminate the subsidies that Congress has provided for farm products, the oil industry, airlines, housing, etc.?" It's always tough to gauge tone on the Internet, but I sense that Schrag would not complain too hard if Congress did eliminate subsidies for, e.g., the oil industry. At the very least, I doubt he would complain if those subsidies were strongly linked to monitoring, transparency requirements, some required showing of efficiency, and some demonstration of a link between the subsidies and actual outcomes. If we are to heavily subsidize law schools, shouldn't we require the same thing there? England, among other countries that heavily subsidize higher education, also imposes heavy accountability burdens on schools and educators. Shouldn't he at least be willing--indeed, eager--to link IBR to a showing that law schools are keeping costs and tuitions as low as possible and providing decent outcomes for their students?

Finally, if I may pick a smaller bone, Schrag writes in criticism of Tamanaha's advocacy of loosening accreditation requirements to make lower-cost legal educations possible that such an approach ultimately might lead to the "jettison[ing] of many of the goals of the current system of legal education, such as teaching students to think critically about social problems that are caused or remediated by legal doctrines and institutions." Even if this is a sound goal, I'm not sure why it has to be the goal of every law school, or why accreditation requirements need to be uniform along the dimensions in which they're currently uniform in order to achieve it. In any event, to put it mildly, I doubt we are doing all that great a job of achieving this goal currently, or that current tuitions would be justified even if we were.

Again, both Schrag's paper and Tamanaha's response, as well as the comments on his post, are well worth reading--instead of, with all due respect, wasting one's time on this week's New York Times op-ed or responses to it.


Posted by Paul Horwitz on November 30, 2012 at 11:23 AM in Paul Horwitz | Permalink


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Looks like IBR might be coming to screeching halt:

"The bill would also eliminate income-based programs that forgive loans entirely after 20 or 25 years -- and, after 10 years, for those who enter public-service careers, such as teaching or law enforcement."

Farewell, free-money-train, we hardly knew you.


Posted by: John | Dec 4, 2012 5:31:01 PM

IBR is a necessary solution for the actions of law schools - but it should be retroactive. In addition there should be a significant penalty for any law school whose students are obliged to take IBR - my own view is a one to one reduction per year in the number of students that can receive student loans. So if say GULC has 10 students from the class of 2012 on IBR - the number of students from the incoming class that can receive loans that are either federally backed or subject to non-dischargeability in bankruptcy should be reduced to the lower of Class of 2012 minus ten or the most recent incoming class minus ten.

In other words every student on IBR is one less loan.

Posted by: MacK | Dec 2, 2012 11:23:59 AM

Thanks, paul. We had a bit of the "what is the government subsidizing?" conversation while Solomon was here. I think it's worth emphasizing that in general the purpose of loan subsidies is to subsidize loans. That is, it isn't to underwrite some particular outcome the loans permit students to obtain. The idea is that there is a failure in the market for personal credit, which is the result of asymmetric information between borrower and lender. That is true not matter the reason for the student's borrowing. The idea is that the government fixes that problem, and then it's up to "the market" (here, students) to decide the best uses for their borrowed funds.

If the output of the funds is also socially underproduced, then subsidize that, too. But I think conceptually the two are separate, and so it doesn't make sense to me to tie loan subsidies to some kind of government oversight of the "outputs" of the credit subsidies simply because the loans are being underwritten. Maybe there is a separate consumer-protection argument, but that would be there whether the government was backing the loans or not.

Posted by: BDG | Nov 30, 2012 4:15:27 PM

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