The Right Coast

March 03, 2006
Can Law Schools Keep Their Monopoly?
By Maimon Schwarzschild

Harvard law professor Bill Stuntz writes in the New Republic that Harvard is an academic General Motors:
Harvard is the General Motors of American universities: rich, bureaucratic, and confident--a deadly combination. Fifty years from now, Larry Summers's resignation will be known as the moment when Harvard embraced GM's fate. From now on, the decline will likely be steep. And not only at Harvard: Among research universities as in the car market of generations past, other American institutions will follow the market leaders, straight to the bottom. The only question is who gets to play the role of Toyota in this metaphor.

To a casual observer of the university world today, that picture likely seems too pessimistic. American universities are the best in the world, probably by a large margin. The best scholars and researchers in the world are drawn to America's shores to work in America's libraries and labs. Students, parents, and alumni seem willing to pay whatever they are asked; the gravy train shows no sign of slowing down, much less stopping. With its $26 billion endowment, Harvard sits atop what looks like an unstoppable juggernaut.

But juggernauts that seem unstoppable never are. And when the sun shines brightest, it is best to look for clouds on the horizon.

One need not look far to find them. Three key American enterprises have seen costs rise much faster than inflation over the past generation, and all three are enterprises in which America leads the world: housing, health care, and higher education. Houses have grown bigger and better, as anyone who has looked at contemporary bathrooms and kitchens knows. Doctors do things they could not imagine a generation ago. Costs may have risen faster than quality, but there is no doubt that quality has risen, and risen substantially.

Higher education is similar--on the cost side. Benefit is another story. There is little reason to believe that undergrads and graduate students are better educated today than a generation ago. More likely the opposite. Teaching loads of senior professors have declined; probably teaching quality has declined with it. The culture of research universities has grown ever more contemptuous of students, especially undergraduates, who are seen as an interruption of one's real work rather than the reason for the enterprise. Which means that, year by year, students and their parents pay more for less. That isn't a sustainable business plan.
Read the whole thing.

What goes for Harvard is even more true of America's would-be Harvards, i.e. a wide swath of universities and colleges. As Stuntz says, "other American institutions follow the market leaders": nowhere more so than in higher education.

It may be even worse for law schools -- especially law schools not in the "top 10" or "top 20" -- although the law schools may seem to be sitting pretty for now. In most states, on-campus law schools have a legal monopoly: you have to graduate from an accredited law school in order to take the bar exam. But laws like this can change anytime, and sooner or later they will.

Legal education is a three-year graduate programme in the US. (In almost all other countries law is an undergraduate subject, followed by a bar exam and usually some kind of apprenticeship.) So after four years of college and three years of law school, many US law graduates have educational debt in the six figures. Law school tuition is typically around $30,000 per year at private universities.

While law school tuition (and college and university tuition generally) has risen at double the rate of inflation and more in the past few decades, senior faculty teach less than ever -- three courses a year is the norm at many law schools -- and senior faculty salaries have risen far ahead of the inflation rate.

Faculty scholarship has also increased considerably across the country. Law professors publish more, and the quality of scholarship is more widely spread out than it used to be: there is smart, good legal scholarship from professors at law schools that would have fielded few (or no) good scholars a generation or two ago.

On the other hand the scholarship, and the classroom teaching, is heavily tilted to the political left: virtually unanimously at many law schools. So students and their families who pay the tuition, and taxpayers who pay for public subsidies, might well feel that they are buying only one side of the story for their money.

Will this still be the model of legal education five, ten, twenty years hence? Should it be? Will there be cheaper alternatives? More "fair and balanced" ones? I'm organising a conference about this early next year at the University of San Diego Law School -- with papers to be published in our symposium journal, the Journal of Contemporary Legal Issues. So we'll have all the answers soon. Well, maybe not. But law schools and universities need to think hard about all this.

Otherwise, as Bill Stuntz says, "It's a little like the early stages of a Ponzi scheme: Everyone wants to keep it going as long as possible, and the odds are it won't end just yet." But "When one sees a large competitive opportunity, it's usually a good bet that someone else has seen it already":
[M]aybe Bill Gates will use a few of his billions to create a new university from scratch, one that does not follow the old rules, and a new style of education will take the market by storm. The only thing that seems certain is that [a generation hence] the world of higher education will look very different than it does now. For Harvard and for the high-end universities with which it allegedly competes, that world will look a lot worse than this one.
Unless we can do better than General Motors, at least.