The failure of Crits and Leftist law professors to defend progressive causes.

• Author: Tamanaha, Brian Z.
• Position: Symposium on Legal Education

TABLE OF CONTENTS INTRODUCTION I. THE COST OF ATTENDING LAW SCHOOL II. THE CRITS III. SOCIETY OF AMERICAN LAW TEACHERS (SALT) IV. LIBERAL LAW PROFESSORS V. ELITE LAW SCHOOLS AND THE TUITION-SCHOLARSHIP MATRIX VI. WHY THIS HAPPENED INTRODUCTION

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation's highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial

means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society-championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

Twenty-five years ago, as a budding academic with an interest in theory and concern for social justice, I was drawn to Critical Legal Studies (CLS), and came to know a handful of the first generation Crits (as they were called); philosopher Roberto Unger was my doctoral thesis advisor, and I dedicated one of my books to Morty Horwitz--seminal critical scholars both. Notwithstanding the sharp criticisms that follow, I hold them in high regard, along with Duncan Kennedy, Joseph Singer, Robert Gordon, and many other Crits whose work I have imbibed. I also admire many folks in the Society of American Law Teachers (SALT) and many liberal law professors I know personally and professionally. But I say tough things about all these groups in the hope that an honest reckoning might help shock fellow leftists out of our collective stupor.

This is offered in the spirit of critical legal studies--as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; (1) here I charge liberal legal academia--including the Crits--with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

I begin with a few core statistics on the cost of attending law school and resultant debt, along with job results, revealing the enormity of the price of entry and its consequences for students. I then address, in order, three circles of leftist scholars--The Crits, SALT, and Liberal Law Professors--and I describe the Elite Law School Driven Tuition-Scholarship Matrix and its class consequences. The Article concludes with reflections on why leftist law professors failed to protest or take action against these developments--Why This Happened--starting with the obvious point that we benefitted personally from the stunning rise of tuition. There is much to answer for.

1. THE COST OF ATTENDING LAW SCHOOL

   The most expensive law school in 2012 was Columbia Law School, with an estimated out-of-pocket cost totaling $81,950, including tuition ($53,636), living expenses ($19,894), health insurance ($2,981), books, computer and supplies ($3,520), and miscellaneous fees ($1,133). (2) Typically, about half of the law students at Columbia receive scholarships, (3) leaving the other half to pay full list price. The unlucky half of the entering class of 2012 will spend around $245,000 to obtain their Columbia law degree. The annual estimated cost is $81,293 at Harvard Law School, and $80,037 at Fordham Law School. Cost of attendance at Brooklyn Law School, NYU Law School, Northwestern Law School, Cornell Law School, Stanford Law School, and USC Law School, fall between $79,000 and $76,000. New York Law School is the tenth most expensive law school in America, at an annual cost of $74,986. (4) At all of these law schools, for students without a scholarship, it will cost over $220,000 to obtain a law degree. The cost of attendance at other law schools scatters below this list in small downward increments, with many schools approaching or exceeding $200,000. (5)

   The price of a law degree leapt to these breathtaking heights in a relatively brief period of time, although law school tuition has risen steadily for decades. Average tuition at private law schools in 2001 was $22,961--just a decade later, in 2011, it had reached $39,184. (6) Public law schools are cheaper, but their prices went up swiftly as well, with average tuition rising from $8,419 in 2001 to $22,115 in 2011. (7)

   Increasing tuition immediately results in rising debt levels for law students, about 90% of whom borrow to finance their legal education. The average debt of private law school graduates went from $70,147 in 2001 to $124,950 in 2011; at public law schools over the same period, average debt increased from $46,499 to $75,728. (8) Debt has been increasing annually by alarming amounts in recent years--at private law schools jumping up from $91,506 (2009), to $106,249 (2010), to $124,950 (2011). (9) And keep in mind that these figures exclude undergraduate debt, which averages around $25,000, (10) and they do not count the interest accrued on debt while in school. On the day they depart law school, the full educational debt carried by law graduates, on average, is greater than the numbers cited above.

   Adding college and law school costs together, the price of entry to the legal profession can reach $300,000. Students who attend an elite private undergraduate university and an elite private law school can pay as much as $400,000 in total. This has profound class implications: High tuition is an economic barrier that disproportionately inhibits people from the middle class and below. Entering the legal profession has long served as an avenue of upward mobility and access to power in American society, but high tuition is making this path much harder.

   Tuition and debt went up relentlessly at the same time that law grads have struggled through the worst market for legal employment in decades, with many failing to land lawyer jobs, with unprecedented numbers of graduates taking part-time jobs and temporary jobs, and with many earning relatively low salaries. (11) Only 55% of law graduates in 2011 had obtained permanent fulltime lawyer jobs within nine months of graduation. (12)

   A few numbers will illustrate the severity of the situation. The average student debt at the twenty-five most indebted law schools for the graduating class of 2011 is listed below (again, the figures exclude undergraduate debt and the interest accrued on the loans), followed by the percentage of the class in debt. (13) After the dash, highlighted in bold is the percentage of the graduates at each law school who obtained permanent full-time jobs as lawyers (excluding those entering solo practice) nine months after graduation. (14)

   California Western School of Law $153,145 (89%)--39.3%

   Thomas Jefferson School of Law $153,006 (94%)--26.7%

   American University (Washington) $151,318 (80%)--35.8%

   New York Law School $146,230 (82%)--35.5%

   Phoenix School of Law $145,357 (92%)--37.4%

   Southwestern Law School $142,606 (80%)--34.6%

   Catholic University of America (Columbus) $142,222 (92%)43.7%

   Northwestern $139,101 (73%)--77%

   Pace University $139,007 (87%)--36%

   Whittier College $138,961 (89%)--17.1%

   Atlanta's John Marshall Law School $138,819 (91%)--40.9%

   University of Pacific (McGeorge) $138,267 (93%)--43.6%

   St. Thomas University (Miami) $137,721 (81%)--49.3%

   Barry University $137,680 (90%)--39.2%

   University of San Francisco $137,234 (79%)--34.2%

   Vermont Law School $136,089 (86%)--48.9%

   Golden Gate University $135,645 (82%)--22%

   Florida Coastal School of Law $134,355 (92%)--36.6%

   Stetson University $133,082 (88%)--57.1%

   Syracuse University $132,993 (80%)--50.3%

   Loyola Marymount University (LA) $132,875 (86%)--42.7%

   Columbia University $132,743 (77%)--94.1%

   Georgetown University $132,722 (81%)--62.6%

   Touro College (Fuschsberg) $132,302 (87%)--59.3%

   Roger Williams University $131,754 (87%)--50%

   These numbers, combined with available salary data, paint a devastating picture. At all but seven of these law schools, less than half the class had obtained permanent full-time jobs as lawyers. Many graduates who landed lawyer jobs, furthermore, failed to earn enough to make the monthly payment on their debt. The median starting salary of 2011 graduates in private law jobs was only $60,000. (15) The standard monthly payment on $150,000 debt is over $1700; on $125,000 debt (the average among...