The Coming Law School Bubble

Michael I. Krauss

A man who has described himself as a constitutional law professor at the University of Chicago is now president of the United States. Another law professor, Cass Sunstein, is one of his chief advisors, while a third, Elena Kagan, has been appointed to the Supreme Court. One might think these are fat years for legal academe. But as in the story of Joseph, these fat years may portend an impending crisis. Market forces and internal law school policies may be combining to produce a legal education bubble the likes of which the country has never seen.

Consider the following facts.

Ideology

In July 2010, research by Douglas Spencer and James Phillips at the University of California at Berkeley examined 149 entry-level, tenure-track hires made during 2005, 2007, and 2009. Spencer and Phillips assigned a measure of ideology for each hire, based on political donations, Facebook profiles, work experience, publications, and the political party of the president who appointed any federal judge for whom the professor had clerked. New hires easily identified as liberal far outpaced those who were very clearly conservative. Spencer and Phillips determined that of identifiable hires, 87 percent were liberal and 13 percent conservative—a ratio that “doesn’t speak well of intellectual diversity in American law school hiring.”1 Conservative law professors may be more discreet about political leaning early in their careers, Spencer and Phillips found. They concluded that “the extreme discrepancy between the proportion of new professors who can be clearly identified as liberal or conservative indicates either unequal hiring patterns or environments less conducive to openness and debate in the law school setting.”2 They noted the recent praise given Justice Kagan for increasing the political diversity of the faculty while she was dean of Harvard Law School: of thirty-two tenure-track hires she made, three were openly conservative. In fact, it is likely that this ratio (10 percent) did increase the political diversity at Harvard.

Forty years of politicized hiring have arguably had an effect on legal academe’s institutional structure. My friend Steve Bainbridge, of UCLA School of Law, had this to say about our professional association, the Association of American Law Schools (AALS):

Although I used to attend them regularly, I don’t go to the annual meeting of the Association of American Law Schools very often any more. Why? Because they suck, as does the organization itself. It’s not a learned society. Instead, it’s basically an association of left-liberal busybodies who care mostly about two things; to wit, (1) maintaining their cartel and (2) politically correct, multicultural identity politics.3

The AALS does not allow the conservative Federalist Society (full disclosure: I’m a Federalist Society member and frequent lecturer) to sponsor panels at its annual meetings, or even to meet in the same hotels as the AALS. AALS official positions include the following:

  • In 1990 it banned “discrimination based on sexual orientation” in all member law schools, which had the effect of requiring law schools to ban military recruiters.

  • It then opposed the 1996 Solomon Amendment,4 the validity of which was unanimously upheld by the United States Supreme Court. (Full disclosure: I was one of several co-authors of George Mason Law School’s amicus curiae brief defending the constitutionality of the amendment. George Mason’s was the only brief claiming the amendment was valid—we were opposed by dozens of other law schools.) To repeat, the Supreme Court decision upholding the amendment was unanimous.

  • It opposed California’s Proposition 209 as well as other challenges to mandatory racial preferences.

  • It insists on racial and gender diversity in selecting speaker panels at its meetings, while ignoring intellectual diversity. I once attended a hilarious session of the Section on Jewish Law at an AALS annual meeting. One of our speakers was an African American labor lawyer. He apologized that his talk had nothing whatsoever to do with Jewish law. Why was he there? Well, the section was not allowed to hold a session at the annual meeting, its chair explained, unless at least one speaker was not a white male.

  • It insists strenuously on preferential admissions and hiring for all groups except white males. Accreditation pressures lead even the most conservative schools to employ race- and gender-biased standards for admission. Diversity of viewpoints on this issue is not tolerated.

Finances

Law students are now routinely graduating with student loan balances of $200,000 or more. My friend Christine Hurt, who teaches at the University of Illinois, analogized law school attendance and pricing to the national housing crisis in an April 2010 blog posting:

Just as something about home ownership seemed intrinsically good, so did getting a law degree, from any law school. Strangely, most law school educations were priced similarly. Law schools with lower employment rates charged more money than some schools with higher employment rates. Price was not a clear signal of quality. Anyway, more and larger houses were built; more and larger law schools were built. Then, as if on a dime, the world changed and all of a sudden lots of people with law degrees were getting laid off, deferred, ignored.5

Law schools may be puffing their product so deceptively that they violate consumer protection laws. Bill Henderson, professor of law and director of the Center of the Global Legal Profession at Indiana University, found that the number of law schools claiming that 95 percent of their new graduates had jobs nine months after graduation rose from 26 percent in 1997, when the nine-month employment data was added to the U.S. News & World Report rankings, to 92 percent in 2010.6 This “creative accounting” includes students actually hired by their own law schools (who often offer temporary jobs to unemployed graduates precisely during the crucial U.S. News ranking period). Kyle P. McEnte, co-founder of the website Law School Transparency, found that one school claimed a $160,000-median salary for graduates, though that amount was earned by as few as 8.2 percent of graduates. Low-salary grads are not encouraged to list their salary, so the reported “median” turns out to be quite a bit higher than the real median salary. I teach at a top-tier law school, and can attest that some of my best 2010 graduates are working at legal “temp” firms for hourly wages with no benefits. “If you don’t do [creative accounting], you’re a chump,” Prof. Henderson noted on the Shilling Me Softly blog.7

Quality of Education

Law students may be paying a lot for an education that doesn’t bring them the financial rewards needed to repay their debts, let alone allow them to live in the manner to which they hope to become accustomed. But is their education at least appropriate to the profession to which they aspire? In a word, it is not, according to Educating Lawyers: Preparation for the Profession of Law, an influential 2007 study by the Carnegie Foundation for the Advancement of Teaching.8 Carnegie, whose analysis revolutionized medical education in the twentieth century, was very critical of the nation’s law schools. To quote the study’s authors: “Unfortunately, despite some very fine teaching in law schools…they fail to complement the focus on skill in legal analyses with effective support for developing ethical and practice skills.”9 The authors found that law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Even in the first year of law school, when the education is generally of very high quality, non-judgmental positivism reigns supreme and students are often warned not to let ethical concerns or natural law doctrine “cloud their legal analyses.”10

Many law professors, unlike their medical school counterparts, actually disdain practicing their profession, and an increasing number have never practiced law themselves. Discussion of controversial legal-moral issues such as abortion and affirmative action is rare as hen’s teeth at law school. Environmental law courses almost never incorporate economic insights into the ecological impact of implementing and protecting property rights. Tort law classes often routinely assume that corporate defendants are culpable. And constitutional law courses often proceed in total ignorance of the teaching of the Founders, and in disdain of the notion of originalism.11 (Full disclosure: George Mason Law School is a notorious exception on all counts.)

So there you have it. Are you an undergrad, or the parent of an undergrad? If so, realize that two hundred accredited (and many more unaccredited) American law schools vie for your patronage. Most of them will provide an expensive and politicized education at a high price that you may never recoup, in support of a profession that may be in existential peril.

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