My article, “Obama’s Good, and Hopeless, Idea for Law Schools,” appears on The Chronicle of Higher Education blog — “The Conversation.” Here’s the link: 


Recently, I wrote about law schools using merit scholarships to fill seats in their entering first-year classes. Economists would say that such price-cutting makes sense in a declining market for new students. Today’s topic considers what may seem at first to be a contradictory trend: Average law school tuition continues to rise at more than double the rate of inflation.

An article in The National Law Journal mused that perhaps rising tuition in the face of reduced demand meant that the fundamental laws of economics might not apply to law schools. In fact, rising tuition along with the proliferation of non-need-based scholarships are parts of the same failing model that regards law school as a business for which U.S. News & World Report rankings provide the definitive metric.

Is relevant demand sufficiently low?

There were 68,000 applicants for the fall 2012 entering class. But in 2011, law schools admitted 55,800, of whom 48,700 enrolled. Two points about these numbers are key.

First, admissions and enrollments may be down, but not nearly enough to create equilibrium with the far fewer available legal jobs for new graduates. In fact, the recent drop in enrollments has simply returned them to 2006 levels. (Law schools were producing too many lawyers in those days, too.)

Second, the laws of economics are performing as expected. Student demand (68,000 applicants in 2012) still outstrips supply (48,700 enrollments in 2011). That sends a signal to deans that they can raise the list price that they charge for tuition, provided that the quality of the applicants doesn’t matter to them.

But quality — as measured by U.S. News rankings methodology — does matter to them. That’s where discounts enter the equation. Published tuition is the list price, but many schools are offering individual scholarships (discounts from list price) in an effort to bolster the U.S. News ranking credentials of their entering first-year classes.

As part of a total profit-maximzing strategy, increasing the list price accomplishes two objectives. First, it generates additional revenues from students willing to pay (or borrow to pay) the full amount. That’s easy money for the school.

Second, it enhances pricing flexibility to recruit so-called desirable candidates (that is, those who will enhance the school’s U.S. News ranking). A higher starting price creates more room to maneuver — through selective and even bigger discounts (scholarships) that seal the deal.

What’s ahead?

In this scenario, U.S. News wields stunning power to determine the characteristics of the next generation of lawyers. But the magazine can’t solve the problems that arrive at graduation time. At the current rate of attorney production, only about half of new graduates will find jobs requiring a legal degree. Since the Great Recession began, the Bureau of Labor Statistics has already revised downward its projection of new legal jobs over the next decade. But even that revision results in an estimate that is probably overly optimistic.

Meanwhile, in case you missed it, yet another law school dean departed recently in a dispute over her university’s efforts to funnel law school revenues back to the mother ship. That implicates another U.S. News rankings item as it relates to rising tuition: The ranking methodology incentivizes deans to spend more, regardless whether it adds value to a student’s education or employment prospects.

The victims

Put it all together: Declining admissions aren’t declining enough, rising tuition is rising too much; discounts go to students with desirable LSATs and GPAs at the expense of other students who really need financial aid; law schools return a portion of profits to their universities; and every year the system is still producing far too many attorneys. Added to this is the exploding educational debt that is financing this mess.

The current hype that borders on hysteria suggests that declining student interest in law school heralds a major self-correction of the market that will remedy all of these problems. But the sad truth is that the problems are still growing and the end is nowhere in sight.


One of the next big bubbles is educational debt. A recent article in The New York Times notes that it exceeds one trillion dollars — more than total consumer credit card debt. Meanwhile, according to The Wall Street Journalthe Federal Reserve Bank of New York reports that for those aged 40 to 49, the percentage of educational debt on which no payment has been made for at least 90 days has risen to almost 12 percent. Sadly, history will view these as the good old days.

Middle-aged education debt blues

Growing delinquencies among middle-aged debtors result from two phenomena. First, some people took out loans for their own education, such as the 50-year-old who woman told the WSJ that she got her bachelor’s degree in 2008. The recession pushed many newly unemployed workers into higher education as a way of reinventing themselves. For some, the strategy worked.

A second group consists of parents who took out loans to fund their kids’ education. A related Department of Education program is, according to the Journal, “among the fastest-growing of the government’s education loan programs.”

Now extrapolate

For anyone who thinks this problem is bad now, wait until today’s twenty-somethings who went to law school and can’t get jobs reach their forties. Indiana University Maurer School of Law Professor William Henderson has analyzed the origins and long-run implications of current trends. His article with Rachel Zahorsky, “The Law School Bubble,” describes them in thoughtful detail.

Recent graduates in particular know where this is going because many are already there: Lots of debt — averaging $100,000 for recent classes — and limited prospects of employment with which to repay it. Meanwhile, the nation’s law schools are turning out more than twice the number of lawyers as there are law jobs.

The problem is growing, but so is denial. Recent headlines proclaimed that a drop in law school applications must be a sign that the market is self-correcting. After all, first-year enrollment fell by seven percent — from 52,500 in 2010 to 48,700 in 2011. Now for some context: The current number is about the same as total one-L enrollment was each year from 2002 to 2006.

How are law schools responding to this continuing crisis? Some better than others.

Law school reactions

Deans at George Washington University, Hastings and Northwestern recently announced that they were considering plans to reduce enrollments. Meanwhile, Thomas M. Cooley Law School opened a new campus in Tampa where it has signed up 104 students — double the number it initially expected. Last month the WSJ quoted Cooley’s Associate Dean James Robb, who said that the school “isn’t interested in reducing the size of its entering class on the basis of the perceived benefit to society.”

All right, let society take care of itself. But how about the school’s students? Two weeks after the Journal article, the ABA reported recent law school graduate employment data that, for the first time, refined one category of “employed” to include only jobs requiring a J.D. degree. For that group, Cooley’s “full-time long-term” rate for the class of 2011 nine months after graduation was 37.5%. Remarkably, more than two dozen law schools did even worse.

I wonder how those who run Cooley — and many other law schools — would feel if they had to bear the risk that some of their alumni might default on their educational loans. For now, we’ll never know because: 1) the federal government backs the vast majority of those loans, and 2) even bankruptcy can’t discharge them.

Meanwhile, a court recently dismissed Cooley alumni’s complaint alleging that the school’s employment statistics misled them into attending. The most revealing line of Senior Judge Gordon Quist’s ruling is the conclusion:

“The bottom line is that the statistics provided by Cooley and other law schools in a format required by the ABA were so vague and incomplete as to be meaningless and could not reasonably be relied upon.”

Too bad for those who did. In some ways, the profession is a terrible mess — and it’s just the beginning.


Recently on ABC’s “This Week with George Stephanopoulos,” the usually thoughtful George Will practically jumped from his seat at the prospect that the interest rate on student loans might continue at 3.4 percent (based on a federal subsidy that President George W. Bush signed in 2007), rather than move up to 6.8 percent. He was — for him — apoplectic at the idea of creating what he was sure would become yet another “entitlement.”

Will opposes such relief because the average college student graduates with around $30,000 in loans and, over a lifetime of earning superiority over non-college graduates, he says, “that’s a pittance.” One man’s pittance is another man’s fortune, I guess. Then again, Will has a much different opinion about a slightly greater amount — $36,900 — when it’s the additional tax he’d pay on a million dollars of annual income if the Bush tax cuts expire.

But rather than search for consistency that can’t be found, put Will’s comment next to Mitt Romney’s related suggestion that young people should do everything they can to attend college, even “borrow from your parents.” If only all college-bound students had parents who could float them six-figure loans for however long it might take to repay them.

About those big salary differences

That leads to the point that Will sidestepped: repayment could take a while. Will’s “pittance” argument relies on studies showing that a college degree produces better lifetime earnings for those who obtain them. Historically, that’s been true. But it ignores what’s been happening to the newest college graduates. The NY Times recently reported  how unemployed graduates have been flocking to unpaid internships. Sadly, two years ago it ran a similar piece. Meanwhile, the Times also reports, they and their families are buried in debt.

Ultimately, many who get degrees will fare better than their non-degree counterparts. But at the moment there are more unemployed and underemployed recent college graduates than ever. Studies show that their delayed entry into the labor market will likely translate into huge lifetime earnings losses. As baby boomers defer retirement because the Great Recession wiped out their savings, the plight of young people worsens.

How about lawyers?

Among the most burdened in the youngest generation of debt holders are new attorneys. Their average law school debt exceeds $100,000 — and it’s climbing. So is their reported unemployment rate, especially now that law schools have to start disclosing the truth about their graduates. If you’re wondering why all of those students went to law school when there are legal jobs for, at most, half of them, deceptive deans have been a big contributor.

On their promotional websites, law schools routinely reported more than 90 percent of their graduates as employed. But they didn’t mention that the number included those with part-time jobs, non-lawyer positions (like working at Starbucks), or temporary employment by the law school itself for just long enough to count in their U.S. News ranking.

A compromise

Tavis Smiley responded to Will’s position with this: Wall Street bankers got zero-interest rate loans from the government; why can’t students get a break on theirs? That’s not a bad question. However, not all students need relief from their student loans. Families like the ones Mitt Romney had in mind sure don’t, but many others do. The Wall Street Journal recently profiled one — a 34-year old unemployed attorney with more than $200,000 in educational loans, mostly from law school:  “It’s a noose around my neck that I see no way out of.”

Here’s a compromise: get rid of the noose by returning to pre-1976 bankruptcy rules. In those days, any baby boomer who wanted out of even federal student loan debt could get it. Filing for bankruptcy was an extreme step and few did it. In fact, there was never empirical support for changing the rule. There was even less reason for the added protection against discharge that private lenders received in 2005 — a change that no legislator is currently willing to admit sponsoring.

Those who cry “moral hazard” should prove it — not simply list a theoretical parade of horribles that never happened under the old rule. If the bankruptcy option was good enough for baby boomers, it should be good enough for their kids.


The University of Virginia Law School has offered its unemployed 3Ls stipends to defray the cost of bar application fees ($500) and bar exam prep courses ($1500). This follows a protest during admitted students weekend when some UVA students wore (and sold) T-shirts saying, “$40,000 a year and no jobs.” Of course, such public turmoil is the tip of a mammoth iceberg that isn’t limited to UVA.

The absence of jobs — even for graduates of top schools — is especially dire because repayment of educational loans typically begins when higher education ends. The collateral damage of such debt can persist for generations. As one analyst recently told the NY Times, “A lot of people will still be paying off their student loans when it’s time for their kids to go to college.” According to the same Times article, last year’s college graduates left school with $24,000 in debt.

For those moving on to law school, $24,000 soon looks like the good old days. The 2009 Law School Survey of Student Engagement reported this stunner:

“The percentage of full-time U.S. students expecting to graduate owing more than $120,000 is up notably in 2009…29% of students expect to graduate with this level of debt.” Almost half of all law students expect to cross the $100,000 debt threshold before getting their degrees.

Here’s the disconnect: according to the Bureau of Labor Statistics, the median salary for all lawyers nine months after graduation is $68,500. Try servicing $120,000+ debt on that budget. Average compensation for all attorneys in the United States is $129,000 a year.

Why the gap between investment and reward? A better question is, why not? The BLS numbers don’t appear in law school recruiting brochures that are more likely to tout big law’s $160,000 starting salaries. Nor do they disclose the downside that comes with those high-paying jobs.

Likewise, most schools don’t report meaningful employment data, either. When they collectively tell U.S. News that the most recent average employment rate nine months after graduation is 93%, something is amiss — like the fact that employed can mean being a greeter at Wal-Mart or flipping burgers at McDonald’s. In an insightful new article, Professor Paul Campos calculates the true rate — graduates with full-time legal jobs nine months out — to be well under 50%.

Revealing the truth would almost certainly drive down applications, compromise U.S. News rankings, and threaten law schools’ bottom lines. That might force many deans to reconsider what they’re doing to their own students. Too many administrators hide behind rhetoric — “free choice,” “markets work,” and “students should take personal responsibility” — as excuses to disregard their own roles as the profession’s most important fiduciaries. When ignorance and misinformation reign, choices are distorted and markets don’t work. I often wonder if law school deans who have kids the same age as those they’re duping behave differently from the rest. Or do they fault students’  “failure to take responsibility,” too?

My article, “Great Expectations Meet Painful Realities,” appearing in the current issue of the Seventh Circuit Bar Association’s semi-annual publication, Circuit Rider has more on this (starting at page 24).

Fraud can be overt — by commission — or it can occur by omission when there’s a duty to speak. Revealing good facts can create an obligation to disclose the bad ones. Greater candor won’t stop the flow of talented applicants to law schools. Nor should it. The legal profession is still a noble calling. But it has also become a way for some educational institutions improperly to persuade the next generation to mortgage its own future — literally.

Some call it the next big bubble. If it bursts, I’m not sure what that will mean. Because of statutory revisions in 2005, bankruptcy doesn’t discharge student loan debt unless the difficult “undue hardship” test is met. The era of big bailouts has passed, so that’s an unlikely solution as well.

Perhaps we’ll see a new growth industry in the revival of an ancient concept: debtors prisons. Law school deans who lost sight of their true obligations to their students and their profession should run them — without pay.


My thanks to the standing room-only crowd that turned out to hear about my new legal thriller, The Partnership, at the Virginia Festival of the Book in Charlottesville. That delightful town is, of course, the home of a great university that includes a law school worthy of Thomas Jefferson’s pride.

While I was there, it occurred to me that when law schools get it wrong, they deserve the scorn that comes with a public spotlight. When they get it right, they should bask in its warm glow. The University of Chicago Law School recently got it right. Really right.

It’s ironic.  The home of the Chicago School — where free market self-interest reigns and the economic analysis of the law has been an article of faith for a long time — has adopted a loan repayment program that sends students this powerful message:

There’s more to life after law school than pursuing big law’s elusive financial brass rings. If you take the large firm path, do so because it’s what you want, not because you have no other financial options.

This must shock deans who have pandered to the large law firm constituencies that hire some graduates for the best-paying starting associate jobs. Former Northwestern Dean David Van Zandt made himself the most visible and ardent proponent of that approach. The U of C’s new program doesn’t ignore big law as a potential employer of its graduates. In fact, it led all other schools in the NLJ 250‘s most recent list of big firms’ “go-to schools.” But it now tells the country’s top students that even if they don’t want big law, the U of C still still wants them — so much that it will pay their way.

It’s unique. For example, Harvard has a respectable Low-Income Protection Program. In 2008, it went a step farther and announced a plan forgiving third-year tuition in return for five years of post-graduate public service, but overwhelming student demand made it a casualty of the financial crisis. In its place, Harvard now provides limited funds to encourage public interest work on a case-by-case basis. Other schools, including Northwestern, have loan forgiveness programs, too, but none appears to be as good as the University of Chicago’s new one.

A single line from its website description says it all:

“This means that a graduate who engages in qualifying work for 10 years, earns less than the salary cap, and maintains enrollment in the federal Income-Based Repayment Program, will receive a FREE University of Chicago Law School education!”

“Qualifying work” is public interest broadly defined as “the full-time practice of law, or in a position normally requiring a law degree, in a non-profit organization or government office, other than legal academia.” It includes judicial clerkships.

The “salary cap” is $80,000 and doesn’t include spousal income. That combination seems to beat Harvard, Yale, and Stanford. (Caveat: The differences across school programs can be significant and prospective students should consider their own circumstances, run the numbers, and determine which one produces the best individual result.)

The program is a reasoned response to practical realities. First, big law cannot accommodate all top law school graduates, even if deans try to put them there and all want to go.

Second, the burden of law school debt shapes career decisions that lead too many lawyers to dissatisfying careers and unhappy lives, especially in large firms.

Third, the upcoming generation of prospective attorneys wants options other than large firms. To be sure, many lawyers find that such places are a good fit for their personalities and ambitions. But in recent years, such individuals have become a shrinking minority of the people heading in that direction. The profession should encourage attorneys who will become unhappy in such institutions to avoid them in the first place. Imagine a big law world populated exclusively with lawyers who wanted to be there.

Finally, the program is a reminder that the law is a great calling. Law schools aren’t big law assembly lines, grinding out graduates for firms where nobility too often yields to a business school mentality that prizes misguided metrics — billings, billable hours, leverage ratios, and average partner profits — above all else. The best law schools are uniquely positioned to level a playing field that now tilts students toward large firms.

Whatever else they accomplish, the U of C’s actions bring important attention to student alternatives that sometimes get lost in the myopic focus on big law. Now that’s leadership.