The Two-Year Tuition Fallacy and Other Confusion in Legal Education ...

Even the President has now weighed in about the cost of legal education, thus elevating the profile of the debate about the "dual crises" of legal education:  costs and job placement.

Let me put aside all of the possible criticisms one might make of the President weighing in on this matter and focus on one pernicious fallacy:  that reducing law school to two years would result in a corresponding reduction in the cost of legal education.  Let's call this the 2+0 approach, as opposed to the traditional 3+0 approach. There might be good pedagogical reasons for reducing law school to two years.  I personally don't think that's the case, although I do think law schools need to think more systematically about the content of legal education. 

Here's the problem:  most law school's budgets are taken up by fixed and semi-variable costs. Totally variable costs are a small part of law school budgets. That means that in the short-term, law schools simply cannot reduce their revenue (mainly tuition and endowment income) and still operate in the black. Schools cannot simply cut the salaries and benefits of tenured faculty, nor can they meaningfully reduce the costs of maintaining and operating their physical plants. This means that if law school went from 3 years to 2 years, law schools would still have expenses based on being 3-year schools. That would necessitate maintaining total tuition revenue equal to 3-years. That could be done by either increasing annual tuition or by increasing class size. The former would mean that students would still be paying for 3 years and getting 2 years of education, while the latter would flood the job market with lawyers who would still have significant debt burdens. 

Now over time, schools might be able to trim faculty sizes and reduce physical plant expenses, but we wouldn't likely see meaningful changes for at least a decade if not more.  Competition isn't likely to force down costs in the short term not least because of the limited ability of low costs competitors to scale up their operations to steal market share. To be sure going from 3 years to 2 years would enable an extra year of employment income for law school graduates. That's not meaningless--assuming that law firms don't decide to pay less for graduates with only 2 years of education.  So all of this is to say that cutting a year out of law school isn't likely to result in cost savings of any significance any time soon.  And critically there is no prospective legal education reform that can or will address the existing student loan debt problem. 

While some have proposed simply cutting a year out of the JD requirement, others have suggested retaining a 3-year degree, but with classroom time reduced to 2 years and with the third year spent in clinical education. Let's call this the 2+1 approach. Whatever one thinks about clinical legal education (and I think it is very difficult to genrealize about it), there is one thing that is undebatable about it:  when done at quality, it is incredibly expensive, much more so than for classroom instruction because the student-faculty ratio needs to be much lower than for classroom instruction.  A 40 or 80 or even 120 person classroom course can work quite well, but that's not really possible for a clinic. My school likes to pride itself on having the Cadillac of clinical legal education.  It's not cheap. By my reckoning, we spend something like 15x as much per student credit hour in our clinics than in our classroom courses. (You might rightly note that this imbalance could be corrected by giving the classroom profs a raise...) Bottom line is that the 2+1 approach is actually diametrically opposed to the 2+0 approach, as it would cost more than 3+0.  We can summarize legal education reform thusly:  (2+0)=(3+0)<(2+1).  

This observation should underscore a tension that is seldom remarked upon in the legal education reform debt:  the job market and student debt issues may point to conflicting reform agendas. Often the job market and student debt issues are seen as pointing in the same direction--legal education needs to be cheaper because the employment market cannot support the debt burden.  But they are not necessarily aligned. If the goal is better education (or at least education that makes students more employable), that may well run contrary to the goal of cost-cutting and vice-versa.

There seems to be relatively little awareness of this tension, which is something schools need to think through carefully.  I'm personally skeptical of both the cost-cutting and pedagogical reform approaches as a general matter, although the devil is very much in the details.  As far as cost-cutting, well, there just isn't a lot of room for most schools to cut costs in the short-term:  there are too many fixed costs like tenured faculty compensation and physical plant.  And there are real pressures to increase spending.  The tighter job market means that there is more competition for jobs, so there's a bit of an arms race among students (and among institutions). That arms race is about producing the best qualified, most practice-ready students, rather than doing so the cheapest, as the big law jobs still pay more than enough to service law school tuition debt.  

I'm also skeptical that any educational reforms adopted by any school will fundamentally transform its students' job market prospects in the short term. Interviews are done at the start of 2L year, and large firms have never expected any particular body of knowledge or even skill set from their entry-level associates beyond basic research and writing abilities. Basically firms are looking for smart people who are likely to stick around as long as the firms have use for them. This means that for the most part a student's employment prospects will be a function of the relative position of the law school in the relevant legal market, and much of that is the result of decades of school reputation, which are unlikely to change rapidly. 

The dual "crises" have presented an opportunity for advancing various pedagogical agendas of varying merit.  I have no doubt that most are well-meaning and made in good faith. But I object to reform of legal education solely as a reactionary measure to the "crises".  Legal education pedagogical reforms should not be crisis driven not least because they are unlikely to solve either of the "crises." Instead, we should be asking what proposals will provide better education on its own terms and turn out students who are better thinkers with more skills and a broader knowledge base. Such improvements may have long-term collateral benefits for employment of a school's graduates, but legal education reforms should be undertaken on their own merits. It seems, however, that no good crisis is going to be left to go to waste.