Take Five: Brian Tamanaha on why law schools are failing and how to fix them
To get a graphic demonstration of the problems with law schools that Washington University Professor Brian Tamanaha highlights in his new book, try this:
Ask Google to find, using rankings from U.S. News, the law schools whose students have the most debt.
The results show not only the staggering amounts that newly minted lawyers owe before they even begin their legal career but also the percentage of students from any particular school who have debt.
So, 94 percent of the students who leave the Thomas Jefferson School of Law in San Diego take with them debt that averages more than $153,000. At American University in Washington, the figures are 80 percent averaging $151,000; for Northwestern, 73 percent averaging $131,000. And U.S. News lists Saint Louis University at 83 percent averaging $120,000, with Washington University having 73 percent in for an average of $101,000.
In an era in which big-salaried corporate law jobs are harder to find, Tamanaha says, many young lawyers will find their debt burden too much to overcome. That financial imbalance, along with other problems including requirements imposed by the American Bar Association, led to Tamanaha’s new book, “Failing Law Schools.”
While he isn’t sure that the reforms he proposes will ever come to pass, Tamanaha said he felt compelled to let the public know what is happening to the profession to which he has devoted his life as a lawyer, including stints as a public defender, clerk for a federal judge, assistant attorney general for the Pacific island state of Yap, interim dean of St. John’s University law school and, since 2010, a professor at Washington University.
He’s also spent time surfing the waves in his native Hawaii -- a pastime that may have prepared him for some of the turbulence his critique of the current state of legal education is sure to bring.
Tamanaha began the book after writing blog posts for several years about the growing tuition bills and loan payments that law students and graduates were facing. When he finally sat down to write last summer, he said, the data he collected showed that the problem had only gotten worse, as the number of high-paying legal jobs shrank and student debt mounted.
He notes that for the law school classes of 2011, only 55 percent had full-time jobs as lawyers. From 2010, where students at only one school had average debt over $140,000, that number increased to nine schools the following year.
As the fresh numbers have become available to help prove his point, he said he regrets that he could not access the figures before, because they clearly show how the situation continues to get worse.
“When I began,” he said, “I suspected things were not working, but as I pulled numbers together, I was quite shocked at how many people it was not working for.
“I made it a rule of thumb to make conservative estimates, but as a result, I understated the degree of the problem.”
Understatement isn’t exactly the tenor of “Failing Law Schools.” In forthright prose filled with facts and figures yet written in an easy-to-digest style, Tamanaha methodically makes his case: Legal education is badly broken.
He also comes up with concrete proposals to turn things around, though he isn’t confident that they will be put into place in time to save some lower-tier law schools that might find themselves unable to attract enough students to stay in business.
“The ABA has been behind some of the problems,” he said, “so the likelihood that the ABA will reform some of the schools is not high.”
The interview with Tamanaha has been edited for length and clarity.
Are the problems you highlight in the book new, or were they prompted by the economic downturn? Have others pointed them out before?
Tamanaha: I think it pre-dated the recession. The contraction in the legal market, essentially the corporate law market, which hit in 2008, just exposed a problem that already existed. We began paying attention because it began affecting graduates.
It wasn’t that there wasn’t a problem. In part the problem was concealed because people were not paying attention to graduates from law schools, and it has gotten worse because tuition continues to go up so much. Something that was already expensive has become absurdly expensive. No one sat down to figure it all out and pull all the numbers together. I pay more attention to it than most academics, and even I didn’t realize it until I had the numbers.
You have to break it out into two hemispheres. Students don’t all graduate and become the same kind of lawyers. At the high end of the market is the corporate legal market, where people earn $120,000 to $150,000 a year. So even at a cost of $200,000, for people in those positions it still pays off. But that is only 10 percent of graduates nationwide. That number got squeezed down, and when that squeeze happened, it sent people who previously had jobs in the corporate legal market to get other types of legal jobs.
It was a crescendo effect. The bulk of graduates from law schools, particularly local law schools, work in local firms and state and local governments. For those people, salaries have stagnated because of the oversupply of lawyers.
Also, at the lower end of the market, efficiencies have come such as online services that let people download their own forms and do things like write a will. The legal profession is losing its monopoly.
Is this a structural change or something that is just cyclical?
Tamanaha: People suggest that this is just temporary, and things will turn around. They won't. We have produced an oversupply of lawyers throughout this period, and statistics that project forward show that that will continue.
Meanwhile, law schools continue to increase their enrollment. It is bizarre that they would have problems with their graduates getting jobs but continue to graduate even more lawyers.
In general, during an economic contraction, people apply to law schools thinking they will come out at a time of better economic opportunity. Now, three years on, schools are sending out even more graduates into a tough environment. In the past two years, the number of applicants to law schools has dramatically turned downward. This year, law schools are actually scrambling to fill their classes. 2011 was a year of very bad publicity for law schools. Information got out there not only about the high costs of getting a law degree but about the poor results for students once they got out.
I think we’ve priced ourselves too high, and that was exacerbated in 2011 when all the bad news came out. If this continues for another year, I think some law schools will fold. Ironically enough, the lowest-ranked schools are also having significant declines in their number of applications, but they may be able to weather it. It’s schools that actually want to hold themselves to higher standards that will find themselves in a difficult situation. There are just fewer bodies to go around. If you have standards, you can’t accept everyone. If you only accept those who you think will graduate and pass the bar, you will have a hard time filling a class.
What financial reforms do you think are needed?
Tamanaha: The federal loan program has to change. As long as there is no limit on what students can borrow, tuition will continue to go up. We’re just part of a higher education system that is showing the same dynamic. The problem with law school is that it takes students who have already gone through their undergraduate years and accumulated whatever debt they need to go there. Then they take on more debt on top of that. You might say we’re just the most extreme corner of higher education.
We need to apply some kind of cap on the federal loan program, either on how much individual students can borrow or on how much individual schools can obtain for any given year.
A student who applies to law school and is admitted applies for federal loans through the school. You can get the full cost of attendance, all tuition plus living expenses minus any grants you get. The federal government then sends the money to the law school, and the school disburses living expenses to the student. This is basically done by filling out a one-page form. The program doesn’t make any evaluation on the student’s ability to repay. A student who goes to Harvard can borrow the same amount as someone who goes to Thomas Jefferson Law School. If you put a cap on that, law schools will have to set tuition with that cap in mind.
In an election year, a lot of attention is being paid to student debt. This is becoming a serious public policy concern. People are talking about student loans as the next debt problem. I have a hard time believing that there won’t be some changes to the student loan situation.
What other changes could help law schools become more responsible and accessible?
Tamanaha: The ABA rules need to be changed to strip out provisions that relate to the academic model of law schools -- things like tenure, support for research and library collections. The main benefit of doing that is that it would allow law schools that focus on training students to be lawyers to operate at a much more modest cost.
Law schools can run at a much lower cost if they are not subsidizing so much research time for professors. Instead of having professors teach two classes a semester, they can teach three or even four. A school based on that design would be much cheaper. I would allow more choice in law schools, so that students can go to schools that are still accredited but cost $20,000 less.
At the end of the book, you pose a scenario to legal educators where their best friend since high school asks whether their daughter should go to law school and amass debt possibly into six figures. Talk about the factors that go into that decision.
Tamanaha: It depends on what school you get into, how much money they are offering you, how much debt you expect to incur. You have to lay out all of these different considerations. This isn’t just an abstract question. I tell people they have to look at their own institutions and make that choice.
Would you advise a friend to send their kid to their own law school? That’s a hard question. I’m trying to personalize it. This is something that we all need to figure out for ourselves.