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Electronic copy available at: http://ssrn.com/abstract=2256725

LEGAL STUDIES RESEARCH PAPER SERIES

PAPER NO. 13-04-02

April 2013

THE FAILURE OF CRITS AND LEFTIST LAW PROFESSORS TO DEFEND PROGRESSIVE CAUSES

by

Brian Z. Tamanaha

William Gardiner Hammond Professor of Law

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Typewritten Text

“Reprinted with permission of the Board of Trustees of the Leland Stanford Junior University, forthcoming from the Stanford Law & Policy Review, at 24 STAN. L. & POL'Y REV. ____ (2013).”


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THE FAILURE OF CRITS AND LEFTIST LAW PROFESSORS TO DEFEND

PROGRESSIVE CAUSES Brian Z. Tamanaha*

INTRODUCTION

Future generations will look back at the first decade of the twenty-first cen-tury 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 scholar-ship 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 le-gal 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 so-ciety—championing access to the legal profession and the provision of legal

* William Gardiner Hammond Professor of Law, Washington University. Portions

of the text in Parts IV and V have been taken from my book Failing Law Schools, with sub-stantial modifications. I thank University of Chicago Press for allowing me to use this mate-rial.


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2 STANFORD LAW & POLICY REVIEW [Vol. XXIV:nnn

services for underserved communities. Yet as law school tuition rose to its cur-rent 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); phi-losopher 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 pro-fessionally. 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 criti-cal 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 lib-erals. It may even lose me some friends. 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 ac-tion 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 re-sultant 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 conse-quences. The Article concludes with reflections on why leftist law professors failed to protest or take action against these developments—Why This Hap-pened—starting with the obvious point that we benefitted personally from the stunning rise of tuition. There is much to answer for.

1. Duncan Kennedy, the doyen of CLS, emphasizes this thrust of CLS in DUNCAN

KENNEDY, Afterword to LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM (2004) [hereinafter KENNEDY, A POLEMIC AGAINST THE SYSTEM].


2013] THE FAILURE OF CRITS AND LIBERAL LAW PROFESSORS 3

I. 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 ex-pensive 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 their degree. The cost of attendance at other law schools scatters below this list in small downward increments, with many schools approaching or ex-ceeding $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 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

2. See Jennifer Poland, The 10 Most Expensive Law Schools in America, BUS.

INSIDER (Oct. 5, 2012, 9:18 AM), http://www.businessinsider.com/the-10-most-expensive-law-schools-in-america-2012-9?op=1. All of the following costs are taken from Poland’s article.

3. The 2011 Official Guide to Law Schools, the most recent information available, indicates that in the academic year 2010-2011, 49.1% of students received scholarships. See LAW SCH. ADMISSIONS COUNCIL, ABA-LSAC OFFICIAL GUIDE TO ABA-APPROVED LAW SCHOOLS 229 (2011). The median grant amount was $10,250.

4. Poland, supra note 2. 5. See ABA-LSAC OFFICIAL GUIDE, supra note 3. Many schools are priced at

$45,000 or more. Combined with living expenses around $20,000, this results in a cost of attendance nearing or exceeding $200,000.

6. See Law School Tuition 1985-2011, AM. BAR ASS’N, http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/ls_tuition.authcheckdam.pdf (last visited Jan. 5, 2013).

7. Id.



$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 ex-clude undergraduate debt, which averages around $25,000,11 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 under-graduate 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 eco-nomic 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 tak-ing part-time jobs and temporary jobs, and with many earning relatively low salaries.12 Only 55% of law graduates in 2011 had obtained permanent full-time lawyer jobs within nine months of graduation.13 A few numbers will illustrate the severity of the situation. The average stu-dent 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.14 After the dash, highlighted in bold is the percentage of the graduates at each

8. Average Amount Borrowed for Law School 2001-2010, AM. BAR ASS’N, http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/avg_amnt_brwd.authcheckdam.pdf (last visited Jan. 5, 2013).

9. Id. 11. See Tamar Lewin, Student Loan Borrowers Average $26,450 in Debt, N.Y. TIMES

(Oct. 18, 2012), available at http://www.nytimes.com/2012/10/18/education/report-says-average-student-loan-debt-is-up-to-26500.html?hpw.

12. See James G. Leipold, Truth or Dare: The New Employment Market, NALP BULL. (Nat’l Ass’n for Law Placement, Washington, D.C.), Oct. 2012, at 1-3, available at http://www.nalp.org/uploads/1012NALPBulletinExecDir.pdf.

13. See Joe Palazzolo, Law Grads Face Brutal Job Market, WALL ST. J. (Jun. 25, 2012, 10:18 AM), http://online.wsj.com/article/SB10001424052702304458604577486623469958142.html?mod=rss_economy.

14. The debt and percentage in debt numbers are at Whose Graduates Have the Most Debt?, U.S. NEWS & WORLD REP., http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/grad-debt-rankings (last visited Jan. 10, 2013). I have ex-cluded John Marshall from the list because of an evident error in the numbers reported for the school.



law school who obtained permanent full-time jobs as lawyers (excluding those entering solo practice) nine months after graduation.15

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 ob-tained 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

15. These numbers are from the chart produced by Law School Transparency (LST),

which obtained the underlying numbers from ABA data on employment results for the class of 2011. Job Characteristics, LAW SCHOOL TRANSPARENCY, http://www.lstscorereports.com/?r=other (last visited Jan. 6, 2013). “Permanent employ-ment” includes all jobs with a duration of at least one year, which includes judicial clerk-ships. When calculating the percentage of these jobs, LST subtracts new graduates who enter “solo practice,” because this is a tenuous economic path for new graduates to take. Id.



$60,000.16 The standard monthly payment on $150,000 debt is over $1700; on $125,000 debt (the average among private law school grads) the monthly pay-ment is over $1400.17 To manage monthly payments this large (after taxes, rent, and other basic expenses) requires a salary in excess of $100,000, which less than 15% of graduates nationwide obtained.18 Law graduates with high debt and low salaries will be compelled by financial necessity to enter a new government program, Income Based Repayment, created to assist debtors in financial hardship.

These numbers cover 2011, but the situation is not new. Employment numbers for graduates have been abysmal since 2009; for the past decade, at least, about a third of law graduates nationwide have not obtained jobs as law-yers.19 The U.S. Bureau of Labor statistics estimates about 22,000 lawyer openings annually through 2020 (counting departures and newly created jobs), at a time when law schools yearly put out over 40,000 new graduates.20

Law schools thus discharge a slew of graduates each year scrambling for jobs in a tough employment market, burdened by a pile of debt that has resulted from a swift and massive run up of tuition. What were leftist law professors do-ing as these developments took place?

16. See Employment for the Class of 2011—Selected Findings, NAT’L ASS’N OF LAW

PLACEMENT, http://www.nalp.org/uploads/Classof2011SelectedFindings.pdf (last visited Jan. 6, 2013).

17. Loan Calculator, FINAID, http://www.finaid.org/calculators/loanpayments.phtml (last visited Oct. 30, 2012) (using a conservative blended interest rate of 7.25%, which com-bines Stafford loans (6.8%) and Graduate Plus loans (7.9%)). The monthly payment on the standard 10 year plan at this rate is $1,761; on $130,000 it is $1,526. Id. 18. The earnings for the class of 2011 can be estimated based on the information pro-vided by the National Association of Law Placement, at Class of 2011 National Summary Report, NAT’L ASS’N OF LAW PLACEMENT *1-2 (July 2012), available at http://www.nalp.org/uploads/NatlSummChart_Classof2011.pdf. There were 44,495 J.D. graduates that year, about 40% of whom obtained jobs in private law firms (17,666). The larger law firms pay the highest salaries. Firms with 500 or more lawyers hired 2856 gradu-ates; firms with 25 to 500 lawyers hired 891; firms with 101 to 250 lawyers hired 1010—for a total of 4,757 lawyers. In addition, 888 graduates were hired in firms with 51 to 100 law-yers, for a median salary of $88,000. Adding half of this number to the above total is 5201 lawyers, or 11.7%. This is an estimate because it is possible that a number of graduates in smaller law firms also earned above $100,000, although this is unusual, and will not show up in the salary data. I have rounded the number up to 15% to give the outer bounds.

19. See BRIAN Z. TAMANAHA, FAILING LAW SCHOOLS 114-18 (2012). 20. See Employment Projections, Table 1.7, U.S. BUREAU OF LABOR STATISTICS,

http://bls.gov/emp/ep_table_107.htm (last updated Feb. 1, 2012) (projecting 21,880 openings annually through 2020); Deborah Jones Merritt, Labor Day, INSIDE THE LAW SCHOOL SCAM (Sept. 1, 2012) http://insidethelawschoolscam.blogspot.com/2012/09/labor-day.html; Debo-rah Jones Merritt, More Bad News from the BLS, INSIDE THE LAW SCHOOL SCAM (Sept. 5, 2012), http://insidethelawschoolscam.blogspot.com/2012/09/more-bad-news-from-bls.html.



II. THE CRITS

The Critical Legal Studies (CLS) movement burst onto the legal education scene in the mid-1970s, generated lots of agitation among law professors for about fifteen years, and then quietly faded away. Much has been written about what CLS stood for and the professors involved, which need not be detailed here.21 Their core position can be summarily stated. Law and legal institutions in American society are legitimated through beliefs about the neutrality of law and rights for all, the Crits argued, but the darker truth is that the legal system has been “largely built by elites who have thought they had some stake in ra-tionalizing their dominant power positions, so at any given time they have tended to define rights in such a way as to reinforce existing hierarchies of wealth and privilege.”22 Their scholarship aimed at exposing this concealed re-ality, primarily by demonstrating the indeterminacy and manipulability of law.

Crits were politically on the far left, with Marxist leanings, and many had been radicalized by events relating to the Vietnam War and Civil Rights pro-tests of the 1960s and 1970s.23 They were educated at elite law schools and many were professors at elite law schools. Their immediate goal was to get more like-minded leftists hired onto law faculties. As Crit Mark Tushnet ex-plained, “Critical legal studies is a political location for a group of people on the Left who share the project of supporting and extending the domain of the Left in the legal academy.”24 Duncan Kennedy, the enfant terrible of CLS, was a flamboyant iconoclast on the Harvard Law faculty who reveled in ridiculing the legal establishment. So notorious had the disruptions become that in 1990 the New York Times ran a full-length feature story on the dysfunctional state of the Harvard Law faculty, featuring Kennedy as prime provocateur.25 Kennedy declared that a major goal of CLS was to transform legal educa-tion. Legal Education and the Reproduction of Hierarchy, published in 1982 in the Journal of Legal Education, was a scorching critique of the legal acad-emy.26 Kennedy argued that everything about law school, from the curriculum,

21. For a concise summary of the main themes in CLS, see Guyora Binder, Critical Legal Studies, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 267 (Dennis Patterson ed., 2010).

22. Robert W. Gordon, Some Critical Theories of Law and Their Critics, in THE POLITICS OF LAW 641, 649 (David Kairys ed., 3rd ed. 1998).

23. For an insider history, see Mark Tushnet, Critical Legal Studies: A Political His-tory, 100 YALE L.J. 1515 (1991).

24. Id. at 1516. 25. Ken Emerson, When Legal Titans Clash, N.Y. TIMES MAGAZINE (Apr. 22, 1990),

http://www.nytimes.com/1990/04/22/magazine/when-legal-titans-clash.html?pagewanted=all&src=pm.

26. Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. LEGAL EDUC. 591 (1982) [hereinafter Kennedy, Reproduction of Hierarchy]. In addition to



to course material, to teaching styles, to the grading system and class ranking, to how law professors treat secretaries, to how people dress and talk, to the on-campus hiring system, and more, “train students to accept and participate in the hierarchical structure of life in the law.”27 Three years of law school, in Ken-nedy’s account, amounts to indoctrination of law students to take their place serving elite power in American society. “Students learn that law teachers are intensely preoccupied with the status rankings of their schools and show them-selves willing to sacrifice to improve their status in the rankings and to prevent downward drift.”28 He continued, “Law schools channel their students into jobs in the hierarchy of the bar according to their own standing in the hierarchy of schools.”29 The graduates from the best law schools, and the best students from lower schools, are sent to elite corporate law jobs, conveying the message that this is the brass ring of success, while other legal work is denigrated.

“Legal education structures the pool of prospective lawyers so that their hi-erarchical organization seems inevitable and trains them in detail to look and think and act just like all the other lawyers in the system,” Kennedy argued.30 Legal educators are crucial actors in perpetuating this system: “To my mind, this means that law teachers must take personal responsibility for legal hierar-chy in general, including hierarchy within legal education.”31

This is a classic piece of CLS scholarship, expressing the core themes within the movement, designed to shock complacent, self-satisfied liberal legal educators. Kennedy even proposed to “[e]qualize all salaries in the school (in-cluding secretaries and janitors), regardless of educational qualifications, ‘diffi-culty’ of job, or ‘social contribution.’”32 His article closed with a rousing message to Leftists: organize, link up, get other Leftists hired to the law faculty, and make your voices felt on campuses. “The strategy I am advocating,” he wrote, “is that of building a left bourgeois intelligentsia that might one day join together with a mass movement for the radical transformation of American society. The great movements of liberation in the history of the West (and also of the third world) have always had in their service cadres of class turncoats from the intelligentsia, who provided them

this publication, Kennedy self-published a longer version as a pamphlet, KENNEDY, A POLEMIC AGAINST THE SYSTEM, supra note 1, and a shorter version in The Politics of Law. Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, su-pra note 22, at 54.

27. Kennedy, Reproduction of Hierarchy, supra note 26, at 591. 28. Id. at 603. 29. Id. at 601. 30. Id. at 607. 31. Id. at 608 (emphasis added). 32. Id. at 615.



everything from a few ideas, to some knowledge of tactical use, to leadership itself.”33 It is not clear whether Kennedy, known for his sarcasm,34 took this exag-gerated Marxist rhetoric seriously, but the agenda he announced proved re-markably successful. After getting past a rough initial reception from some quarters,35 by 1990, when Mark Tushnet wrote his insider history of CLS as the movement was petering out (critical feminist theory and critical race theory had already taken over the momentum), being a “Crit” was no longer scandalous and many law faculties had at least a few professors who openly identified their scholarship as critical. Tushnet noted that this success carried with it worrisome implications:

The legal academy has accepted our scholarship in a weakened form, and has thereby given us the sense that we are doing work that meets its criteria of merit. Yet in providing us with that degree of legitimacy, the academy simul-taneously defuses the political explosiveness of the positions we thought we were taking: it reinforces its definition of merit and gives us a stake in the maintenance of the system as it is.36

Not only was their place in the legal academy secured, critical scholars were well on their way to becoming part of the establishment.

The original Crits, along with the first wave of critical feminists and criti-cal race theorists, placed their work in elite law journals—the coin of the realm in legal academia. Stanford Law Review dedicated a symposium issue in 1984 to CLS, confirming its credibility as elite academic work.37 Placement success led to recognition by fellow scholars, citations of their articles, and invitations to deliver public lectures and speak at conferences. Critical scholars were doing very well. When speculating that, despite its impressive successes, CLS might have trouble attracting new recruits going forward, Tushnet wrote an off-key pas-sage:

In addition, many cls adherents are likely to be underrecognized, a condition that potential recruits are likely to perceive. By “underrecognized,” I mean that a substantial group of cls adherents, the white males, are likely to have positions at institutions lower in the status hierarchy of law schools than their merits entitle them to, as measured by the criteria of merit applied by most law professors and internalized to some degree by many adherents of cls.38

33. Id. at 610. 34. See Emerson, supra note 25. 35. A few critical scholars were said to have been denied tenure owing to their connec-

tion with the movement, and they suffered an initial backlash from some quarters. See Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDUC. 222 (1984).

36. Tushnet, supra note 23, at 1540. 37. Symposium, Critical Legal Studies, 36 STAN. L. REV. 1 (1984). 38. Tushnet, supra note 23, at 1541.



Tushnet explains the underrecognition: Men associated with cls and those who might support them for appointment are committed to increasing the numbers of minority and female scholars in the legal academy. Given a choice between a white male cls adherent and a minority or feminist scholar not associated with cls, their votes are likely to go differentially to the latter, wholly apart from whatever political misgivings people might have about cls.39

What Tushnet is saying, in a roundabout manner, is that if the hiring decision was made solely “on the merits,” the white male Crit should have landed the job in these head-to-head situations against minority and female scholars but often will not; systematically passed over in this way, “a substantial group” of otherwise deserving white males “are likely to have positions lower in the status hierarchy of law schools than their merits entitle them to.” These are strange assertions to find in an article about a movement of radi-cal law professors. Only faint-hearted revolutionaries, scholars more focused on advancing their career than the cause, would be dissuaded from becoming a Crit this reason. But what makes Tushnet’s argument odd, and revealing, is something else. A major Crit theme, per Kennedy’s article, was to overturn il-legitimate, elitist hierarchies within legal education, law, and society. The stan-dards that uphold and legitimate the hierarchy must be rejected. Tushnet’s ar-gument that white male Crits land at law schools lower in the pecking order than they should, however, presupposes the validity of the standards used in the legal academy to determine merit. I raise this not to dispute whether the standards have merit, but to point out that, as Tushnet’s comments project, Crits cared about and judged their own achievements in relation to the standards. They strove to succeed in the law school hierarchy, not to upend it. Many had attended elite law schools them-selves, before pursuing the coveted prestige and perks that came with teaching at highly ranked law schools. There is nothing untoward about seeking what everyone else in the legal academy does, but this is not a radical path.

Scholars highly critical of law in their pronouncements were entirely con-formist in their day jobs as law professors. Measured by traditional academic standards—high citation counts and professorships at elite law schools—they have achieved enviable success. Many critical pieces landed spots on the most cited law review articles of all time, and a number of critical scholars are on lists of the most cited law professors.40 Kennedy was at Harvard from the be-ginning, as were other leading CLS figures Morty Horwitz and Roberto Unger.

39. Id. 40. See Fred R. Shapiro & Michelle Pierce, The Most Cited Law Review Articles of All

Time, 110 MICH. L. REV. 1483, 1489-1503 (2012); James Cleith Philips & John Yoo, The Cite Stuff: Inventing a Better Law Faculty Relevance Measure 21-39 (U. Cal. Berkeley, Pub-lic Law Research Paper No. 2140944, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2140944.



Tushnet served as President of the Association of American Law Schools, and was appointed to the Harvard law faculty. Martha Minow, associated with CLS, is the presiding Dean of Harvard Law School—atop the very pinnacle of legal education.

Three decades later, looking back at Kennedy’s piece on legal education, it is hard to suppress a sense of disappointed irony at what subsequently tran-spired in legal education. Law schools no longer use a “soft” method like in-doctrination to funnel students to the corporate bar. Today this is accomplished through the sheer irresistible force of economic necessity: students desperately pursue corporate law jobs to pay off the debt they incurred to obtain their law degrees. Three decades ago a law graduate could chose to forgo a corporate le-gal job if she so desired. Now, for many law students this freedom no longer exists. When Kennedy penned his jeremiad against legal education, tuition at Harvard was $5850 ($14,111 inflation adjusted).41 In 1990, when the Times publicized the dysfunctional Harvard faculty, tuition had risen to $14,475 ($25,780 inflation adjusted).42 Today Harvard tuition is $49,950.43

Recent law graduates have begun to compare their situation to “debt servi-tude.” Many graduates who have no desire to work in corporate law nonethe-less pursue these positions, which require punishing hours of mind-numbing toil; then there is the plight of heavily indebted graduates at small firms who also work long hours but at much lower pay, or, worse still, those who get no legal or professional job at all. This is the concrete materialization of Ken-nedy’s observation that law schools send students to serve the corporate bar, but now they are dragged in debt-forged chains more unforgiving than anything he imagined.

As the cost of legal education rose to astronomical heights, loading more and more debt on the backs of students, erecting an enormous economic barrier to access to the legal profession with major class implications, the Crits said nothing. Like other law professors, they have been playing in the academic sandbox, enjoying the increased income and release from teaching that fol-lowed from and was funded by the immense rise in tuition.

41. HARVARD LAW SCH., HARVARD LAW SCHOOL CATALOG 1981-1982, at 22 (1981),

available at http://pds.lib.harvard.edu/pds/view/8508871?n=1904&imagesize=1200&jp2Res=.25&printThumbnails=no; CPI Inflation Calculator, BUREAU OF LABOR STATISTICS, http://www.bls.gov/data/inflation_calculator.htm (last visited Apr. 23, 2013).

42. HARVARD LAW SCH., HARVARD LAW SCHOOL CATALOG 1990-1991, at 23 (1990) available at http://pds.lib.harvard.edu/pds/view/8508871?n=3516&imagesize=1200&jp2Res=.25&printThumbnails=no; CPI Inflation Calculator, supra note 41.

43. Student Budget, HARVARD LAW SCH., http://www.law.harvard.edu/current/sfs/basics/cost/budget.html (last updated Jan. 4, 2013).



Today, the first-generation Crits are honored academic elder statesmen. In-dicative of this status, a longer version of Legal Education and the Reproduc-tion of Hierarchy was republished in 2004 as a book, along with (celebratory) essays from several prominent academics, including a new Introduction and Afterword by Kennedy. Continuing his radical stance, Kennedy urged contem-porary law students to engage in “resistance”—“to hook up with one another and kick against the traces of the present—by analyzing and protesting inside law school, against law school.”44 His Afterword, a retrospective on the article and Critical Legal Studies, was self-congratulatory about the movement. After claiming that CLS had a formative influence on “fifty tenured profs around the country,”45 Kennedy lists these achievements, among others:

There are several hundred CLS-inspired articles on just about every area of law. They are the main existing alternative to the mainstream liberal and right-wing libertarian stuff that fills the reviews. This literature is still expanding, slowly but steadily, because CLS is very much alive as a “school.” . . . Many crit ideas, and particularly the notion of the “indeterminacy” both of classical legal analysis and of policy analysis, have become part of American legal aca-demic common sense. Much of the institutional agenda of CLS has been adopted, little by little, by law schools at all levels of the status hierarchy.46

These are indeed accomplishments (keeping in mind that the indeterminacy thesis has a long history pre-dating CLS).47 Kennedy might want to reconsider the wisdom of taking credit for shaping contemporary law schools, however, since the monumental change that overtook legal education in the intervening period was the ramp up in cost that drastically altered the economics of obtain-ing a law degree.

Kennedy mentioned law student debt in passing (“$85,000”),48 so he was not unaware of the issue, but he expressed no alarm and said nothing about its broader implications. The source he cites for the debt figure, which Kennedy does not elaborate on, was a report by the ABA consultant on legal education, John Sebert, who observed that law school tuition had “increased dramatically” in the past decade, producing a “dramatic increase” in student debt; Sebert con-cluded that “many law school graduates” will “have difficulty” paying off the debt in the standard period.49 Kennedy ignored this in his analysis, instead talk-ing about radicalism and rebellion in law schools,50 and explaining that the ap-

44. KENNEDY, A POLEMIC AGAINST THE SYSTEM, supra note 1, at 7. 45. Id. at 218. 46. Id. at 220. 47. See BRIAN Z. TAMANAHA, BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF

POLITICS IN JUDGING (2010). 48. KENNEDY, A POLEMIC AGAINST THE SYSTEM, supra note 1, at 215. 49. John A. Sebert, The Cost and Financing of Legal Education, 52 J. OF LEGAL EDUC.

516, 516, 521, 523 (2002). 50. See KENNEDY, A POLEMIC AGAINST THE SYSTEM, supra note 1, at 212-15 (2004).



parent decline of CLS was attributable (in part) to the need of the next critical generation (“feminists and minorities,” and “younger pomo guys”) to stake out their own theoretical ground, causing them to “essentialize” first generation Crits as “old white male heavies.”51

A sadly absurdist tone, resonating with outdated rhetoric, echoes through Kennedy’s commentary about legal education. A handsomely compensated Harvard Law professor urges law students burdened by large debt to engage in “resistance” while in law school, then after graduation, “to find a morally toler-able law firm to work for, or to move from whatever firm one is forced into working for by the status degradation ritual of the law school placement proc-ess.”52 This is a gross mis-description of their situation. Students nationwide are “forced” to work for a law firm—any law firm that deigns to offer them a job, tolerable or not—not because of the degrading ritual of the placement process but compelled by the iron cage of law school debt. This was already the case in 2004. Had a liberal law professor offered such shallow diagnosis and tepid advice, Kennedy, who delights in blunt talk, would have called it bullshit.

Thirty years ago, in their radical heyday, it would have seemed unthinkable that the Crits would remain silent in the face of such extraordinary changes in the economics of legal education. What stood out about the Crits—one of the most attractive qualities of their work—was their commitment to social justice and the downtrodden. This compassion oozes from another seminal CLS arti-cle, written by Joseph Singer in response to critics who charged Crits with ni-hilism. In a world without foundations, he asserted, “We will have to take re-sponsibility for making up our minds.”53 Singer articulated several goals: “We should prevent cruelty.”54 “We should alleviate misery.”55 “We should democ-ratize illegitimate hierarchies.”56 “We should alter the social conditions that cause loneliness.”57 Acknowledging that uncertainty is unavoidable in life, Singer closed with a call to action: “Surely that is right: no guarantees—and at the same time, no passivity.”58

Rarely are law review articles written like Kennedy’s and Singer’s original pieces anymore—passionate, raw, overtly moralistic, confrontational and per-sonal. Critical scholarship “was premised on a sympathetic regard for the suf-fering of people in the world—and a felt moral imperative to respond to it.”59

51. Id. at 216. 52. Id. at 215. 53. Joseph William Singer, The Player and the Cards: Nihilism and Legal Theory, 94

YALE L.J. 1, 66 (1984) (emphasis added). 54. Id. at 67. 55. Id. at 68 (emphasis omitted). 56. Id. (emphasis omitted). 57. Id. at 69 (emphasis omitted). 58. Id. at 70 (emphasis added). 59. ROBIN WEST, NORMATIVE JURISPRUDENCE 175 (2011).



As critical scholar Robin West observed in her recent retrospective on CLS, “moral claims were central, nor peripheral—they were defining—of the old critical legal studies movement.”60 Disappointingly, the Crits, currently re-spected members of the legal academy who have built their identity on fearless criticism in pursuit of justice, have remained passive in the face of a massive rise in the cost of legal education that would inflict serious harms on social jus-tice and the well-being of law students nationwide.

III. SOCIETY OF AMERICAN LAW TEACHERS (SALT)

The largest and most active organization of leftist law professors is the So-ciety of American Law Teachers (SALT), formed in 1972 to advocate for pro-gressive causes.61 Several hundred members strong, SALT has engaged in a host of advocacy work on behalf of progressive causes, from testifying before Congress, to issuing public positions, to writing reports on nominees to the fed-eral judiciary, to submitting amicus briefs in cases before the Supreme Court, to participating in various matters related to the ABA regulation of law schools. A great deal of SALT advocacy relates to issues in legal education, particularly the effort to boost minority enrollment and minority faculty in law schools. “Social justice” is frequently repeated in SALT materials. From the outset, SALT’s “focus was three-fold: law reform, legal education, and equal access to justice.”62 SALT has vigorously pursued an impressive list of initiatives over the years—equality for gays, affirmative action in law school admissions and hiring, human rights advocacy, and others—yet it has taken no official action against the rise of tuition.63

The May 2011 SALT Co-Presidents’ Column expressed growing alarm about apparent threats to law professors arising from the forces of the right:

These are daunting times for progressives inside and outside law school and academia. Mirroring their dismantling of civil rights and social justice reforms and safety nets in the United States, the same neo-con forces are busily at work attacking academic freedom, collective bargaining, tenure and security of position, and critical legal and race scholars and their social justice scholar-ship.64

60. Id. at 155. 61. See SOC’Y FOR AM. LAW TEACHERS, BACKGROUND INFORMATION FOR THE MEDIA

1, available at http://www.saltlaw.org/userfiles/file/SALT%20PDF%20Documents%20/8-18-09Background%20Information%20For%20the%20Media.pdf (providing general infor-mation about SALT).

62. Id. 63. See SOC’Y FOR AM. LAW TEACHERS, http://www.saltlaw.org (last visited Nov. 1,

2012) (highlighting many SALT initiatives, none of which appear to relate to slowing the rise of tuition).

64. Raquel Aldana & Seven W. Bender, Co-Presidents’ Column: Progressive and Proud of it, SALT EQUALIZER (Soc’y of Am. Law Teachers, St. Paul, MN), May 2011, at 1,



By their account, the most pressing concern in legal education was that pro-gressive law professors were under siege. Not a word was said in the newsletter about the daunting employment struggles of the flood of heavily indebted re-cent law graduates who have suffered since the contraction slammed the legal market in 2008.

SALT has always paid close attention to issues of race and class in legal education. That makes their failure to act forcefully against the rise of tuition and debt, which carries major class and race implications, all the more inexcus-able. To see why, recall the list of law schools provided earlier with the highest average indebtedness among 2011 law graduates, led by Cal Western at $153,145 and Thomas Jefferson at $153,006.

Seventeen of the schools on the list are ranked outside the top one hundred law schools. A study found that students from wealthy families are overrepre-sented at the top law schools, and that the relative percentage of students from families with less wealth rises toward the lower end of the law school hierar-chy.65 One indication of this wealth effect shows up in the list: compare the percentage of the class in debt at the lowest ranked law schools—Cal Western (89%), Thomas Jefferson (94%), Phoenix (92%)—with the percentage in debt at the highest ranked law schools—Northwestern (77%) and Columbia (77%). A greater percentage of students at lower ranked law schools rely on borrowing to finance their legal education because their families tend to be less wealthy. Graduates of lower ranked law schools, in general, have much less success landing jobs as lawyers and earn much less pay than graduates of top law schools. Consequently, students from middle class households and below tend to end up in greater numbers at law schools with poor outcomes for students, while also taking on debt in greater numbers.

Many of the lower ranked law schools on the most indebted list, further-more, have relatively high percentages of minority students. In the 2012 U.S. News Diversity Index, St. Thomas ranks #4, San Francisco #10, Whittier #13, Atlanta’s John Marshall #22, Southwestern #25, and Thomas Jefferson #30.66 That sounds laudable on the part of these law schools—advancing the SALT goal of enhancing minority access to the legal profession. But the picture is not so rosy. At St. Thomas, only 49% of graduates overall landed full time perma-nent lawyer jobs; at San Francisco only 34%; at Wittier only 17%; at Atlanta’s

available at http://www.saltlaw.org/userfiles/SALT%20Equalizer%20May%202011%20final.pdf.

65. Richard H. Sander, Class in American Legal Education, 88 DENV. U. L. REV. 631, 639 (2011).

66. Law School Diversity Index, U.S. NEWS & WORLD REP., http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-school-diversity-rankings (last visited Jan. 10, 2013). Other schools on the debt list that are in the top 50 in diversity index are #36 Florida Coastal, #40 Golden Gate, #43 California Western, and #45 Phoenix. Id.



John Marshall only 41%; at Southwestern only 37%; and at Thomas Jefferson only 27%. These percentages, remember, are for the entire graduating class, not minorities alone. These law schools are enrolling relatively higher percentages of minorities, but in actuality they provide an uncertain avenue to the legal pro-fession. Students that enter these institutions think they are on the way to achieving their dream of becoming a lawyer, but it is more akin to an expensive roll of the dice with the odds heavily against them.

Black and Hispanic graduates, moreover, appear especially burdened by law school debt. Ninety-five percent of African American graduates take on debt for their legal education, substantially above the percentage of white graduates who do so (81%).67 A study of graduates from the class of 2000 found that a much smaller percentage of black (4.5%) and Hispanic (6%) law students graduated from law school debt-free than did whites (17.3%) and Asians (19.9%). The median debt of blacks ($72,000) and Hispanics ($73,000) was higher than that of whites ($70,000) and Asians ($60,000). Half a dozen years out, fewer blacks (17%) and Hispanics (28.9%) had paid off their student debt as compared to whites (37%) and Asians (46.8%).68 Since tuition went up substantially after the study was conducted, the size of the debt today is un-doubtedly much greater for recent law graduates than the numbers cited above.

The combination of these factors presents a worrisome picture: Students from less wealthy families attend lower ranked law schools in higher numbers than top law schools; they leave law school with large debt; a significant per-centage of the students at lower ranked schools are minorities; less than half the class at many of these schools land jobs as lawyers; and most of the lucky grads who do obtain lawyer jobs from lower ranked law schools earn $60,000 or less, insufficient to manage the standard monthly payments on the average debt. For a progressive concerned about the implications of class and race on access to a legal career, this has the makings of a disaster.

One of SALT’s core missions is to “extend the power of law to under-served individuals and communities,” to the large population of the lower mid-

67. James G. Leipold, Exec. Dir., NALP—The Ass’n of Legal Career Prof’ls & Jef-

frey E. Hanson, Dir., Borrower Educ. Servs. Access Grp., Law Student Debt and Its Impact on Lawyer Career Paths, PowerPoint Accompanying Presentation at Northeast Association of Pre-Law Advisors 36th Annual Conference: From Far Above Cayuga’s Waters: Viewing the Pre-Law Advising Landscape 19 (Jun. 13, 2008), available at http://www.nalpa.org/law_school_debt.pdf.

68. Deborah Jones Merritt, Equal Opportunity, INSIDE THE LAW SCH. SCAM (July 5, 2012, 12:40 AM), http://insidethelawschoolscam.blogspot.com/2012/07/equal-opportunity_05.html; see also RONIT DINOVITZER ET AL., THE NALP FOUND. FOR LAW CAREER RESEARCH AND EDUC. & THE AM. BAR FOUND., AFTER THE JD: FIRST RESULTS OF A NATIONAL STUDY OF LEGAL CAREERS (2004), available at http://www.americanbarfoundation.org/uploads/cms/documents/ajd.pdf; RONIT DINOVITZER ET AL., THE AM. BAR FOUND. & THE NALP FOUND. FOR LAW CAREER RESEARCH AND EDUC., AFTER THE JD II: SECOND RESULTS FROM A NATIONAL STUDY OF LEGAL CAREERS (2009).



dle class and poor in American society who cannot afford lawyers to handle their legal affairs.69 There are not enough government funded legal aid posi-tions. If the underserved population is to get legal assistance, private lawyers will have to enter the low-end legal market. The problem for recent graduates who wish to fill this need, however, is that they cannot earn enough from this type of work to eke out an income while also making monthly loan payments on such large debts. The exorbitant cost of law school thus exacerbates the problem of underserved communities.

What was SALT doing while the cost of obtaining a law degree rose pre-cipitously? It was fighting the good fight on behalf of progressive causes. In the co-Presidents’ rousing words, “As the neo-cons have ramped up their rhetoric and campaigns against equality, human rights, and basic human dignity, SALT has risen to the challenge inside and outside the law school classroom.”70

SALT’s major initiative on the challenges facing legal education was to sponsor a conference in Honolulu in December 2010, “Teaching in a Transfor-mative Era: The Law School of the Future,” attended by 230 members. The purpose of the conference was to explore “what we teach, how we teach, and how we will teach in the future.”71 The first day of the conference was held at the Hawaii Prince Hotel Waikiki, followed that evening by a reception at the Chart House restaurant, featuring “Hawai’ian appetizers, drinks, and live mu-sic.”72 Topics addressed at the two-day gathering included evolving trends in law school administration, skills training programs, alternative applicant selec-tion methodologies, the rising cost of legal education, the government spon-sored income-based loan repayment program, “Rebellious Lawyering,” and the pending initiative in the ABA standards committee to cut back on tenure and job security protections for law professors.73 “By all accounts, the conference was a terrific success.”74 At a time when law students and recent graduates na-tionwide have been struggling with large debt and poor job prospects, leftist law professors sojourned to Hawaii in mid-winter, many presumably at school expense, to discuss sundry topics of concern to legal educators—with the great-est urgency placed on perceived attacks against the law professoriate.

69. Mission, SOC’Y OF AM. LAW TEACHERS,

http://www.saltlaw.org/contents/view/mission (last updated Aug. 16, 2009). 70. Aldana & Bender, supra note 64, at 2. 71. Hazel Weiser, Executive Director’s Column, SALT EQUALIZER (Soc’y of Am.

Law Teachers, St. Paul, MN), May 2011, at 3, available at http://www.saltlaw.org/userfiles/SALT%20Equalizer%20May%202011%20final.pdf.

72. Ngai Pindess, SALT’s Teaching Conference A Tremendous Success, SALT EQUALIZER (Soc’y of Am. Law Teachers, St. Paul, MN), May 2011, at 6, available at http://www.saltlaw.org/userfiles/SALT%20Equalizer%20May%202011%20final.pdf.

73. Weiser, supra note 71, at 3; Pindess, supra note 72, at 6. 74. Pindess, supra note 72, at 6.



More questionably, SALT has taken a strong and unbending stance against a set of initiatives aimed at slowing the rise of tuition. For the past several years, the ABA Standards Review Committee has been considering a number of proposals that would eliminate from accreditation standards any rules requir-ing tenure and long-term job protection for law professors. The proposals would allow law schools to fill teaching positions more cheaply and with greater flexibility by hiring greater numbers of adjuncts and professors on con-tract.

SALT has been at the forefront of the fight against these changes. The ex-ecutive director of SALT characterized the proposals in sinister terms: “how a small group of deans is pushing for deregulation, using the claim that law school tuition costs too much as their justification for ending the requirement of full-time faculties, tenure and security of position, and a defined role for faculty in institutional governance.”75 SALT submitted an Opposition Statement to the ABA asserting that great harm to legal education would follow if the proposals were adopted, arguing that

“[t]he cost of such changes would be enormous—not just for most current faculty, who would retain the protections they already have earned, but for fu-ture faculty, who could be hired without them and ultimately for legal educa-tion, which would cease to be led by individuals who can afford to speak truth to power, and for students, who would no longer benefit from such leader-ship.”76

Although the proposals would require law schools to provide contractual pro-tections for speech, SALT found this inadequate and insisted that “there are special concerns and pressures that warrant special protections for legal aca-demics.”77

SALT acknowledged that the purpose of the proposals was to help reduce costs, but countered, “no evidence has been provided that changing the tenure requirements will produce any cost savings. Indeed, schools may need to offer higher salaries to induce highly qualified individuals to accept faculty positions without tenure.”78 That was SALT’s entire response on the issue of high tui-tion.

Among the dozens of actions it has taken in the past decade, including many related to legal education, SALT has offered no proposals on how to slow the rise of tuition; it has issued no official statements or position papers about the terrible crisis suffered by recent law graduates and the harmful conse-

75. Weiser, supra note 71, at 3. 76. Society of American Law Teachers, Statement on Tenure/Security of Position, at

*1 (Apr. 2, 2011), http://www.saltlaw.org/userfiles/file/StatementOnTenureSecurityOfPosition_Final_3-28-11.pdf.

77. Id. at 2. 78. Id.



quences for social justice that will result from such a large economic barrier to access to the legal profession.79

SALT might have indirectly contributed to increasing costs for law stu-dents through its annual survey of law professor salaries. Previously, law pro-fessor salaries were collected by the ABA; this practice was halted in 1995 when the Department of Justice filed a civil antitrust suit against the ABA charging that legal academics had captured the accreditation process and were using the salary data to ratchet up their pay.80 After the ABA was prohibited from collecting salary information, SALT stepped into the breach, asking law deans across the country to voluntarily provide information on the average sala-ries of their professors. The annual salary issue is SALT’s most widely read publication among law professors generally, which it proudly touts as “an im-portant contribution that SALT makes to the legal academy.”81 The annual sur-vey allows law professors to keep track of how much others are earning, sup-plying them with information they can take to their dean to argue that they are underpaid compared to peer schools. SALT implicitly acknowledges this pur-pose: “The results of the survey are published in the winter so that law profes-sors have information available to them for hiring, retention, and promo-tions.”82 SALT does not explain why enhancing the bargaining power of law professors advances progressive causes.

IV. LIBERAL LAW PROFESSORS

Many law professors are on the liberal end of the political spectrum,83 though most do not identify with CLS scholarship and most do not join SALT. The cluster of familiar liberal positions includes gay rights, abortion rights, gun control, free speech, affirmative action, open immigration policies, universal health care, higher taxes on the rich, unemployment benefits, a decent mini-mum wage, rights for criminal defendants, a social safety net for the poor and elderly, better schools in poor districts, equal access to opportunities, protection

79. For a representative list of SALT initiatives, see SALT at Work: Program High-

lights, 2009 SOC’Y OF AM. LAW TEACHERS 2-4, available at http://www.saltlaw.org/userfiles/12-10-09SALT%20At%20Work%281%29.pdf.

80. For the background on the antitrust suit and its consequences, see TAMANAHA, su-pra note 19, at 11-19.

81. Weiser, supra note 71, at 4. 82. Salary Survey, SOC’Y OF AM. LAW TEACHERS,

http://www.saltlaw.org/contents/view/salarysurvey (last updated Apr. 30, 2012). 83. See Karen Sloan, Study: Law School Hiring Skews Liberal, But Liberals Don’t Get

All the Plum Jobs, NAT’L L.J. (July 21, 2010), http://www.law.com/jsp/article.jsp?id=1202463734686&Study_Law_School_Hiring_Skews_Liberal_but_Liberals_Dont_Get_All_the_Key_Jobs.



for unions, equal pay for women, environmental protection, human rights, cor-porate regulation, legal services for the poor, and a host of other positions that tend to be associated with the Democratic Party. Many law professors hold some combination of these views. A study found that substantially higher per-centages of professors on law faculties contribute to the Democratic Party than the Republican Party.84

Law faculties across the country, as did SALT, erupted in protest in spring 2011 against the above-mentioned proposed changes to the ABA accreditation standards. Seventy law faculties (“and counting”) passed resolutions “vigor-ously opposing the proposed changes to ABA Standards 206, 405, and 603 that would end the legal academy’s commitment to the system of tenure and secu-rity of position for law school deans, traditional faculty, clinical faculty, legal writing faculty, and librarians.”85 The President of the American Association of Law Schools (AALS), Michael Olivas, sent a ten-page letter detailing objec-tions to the changes, insisting in his opposition letter that it is essential to the training of competent lawyers that law schools be staffed by “career, full-time faculty” in positions with tenure:

The high quality and distinctiveness of American legal education are based largely on the work of career, full-time faculty who engage fully in the law school’s teaching, scholarship, and service missions. Full-time faculty should be experts in their fields and continue to engage in scholarship that makes them even more accomplished. Given that law is fundamentally a public pro-fession, law school faculty should perform public service that both models for students the selflessness encouraged for all lawyers, and helps fulfill the role of law schools in contributing to the improvement of law, lawyers, the legal system, and the system of justice. The scholarship and public service of career, full-time faculty do not merely supplement their teaching role. Both scholar-ship and public service underlie teaching and give it an authority that teachers who merely pass on received understanding or transmit skills cannot.86 Claims about public service and selflessness by law professors are dubious.

A few professors on every law faculty engage in voluntary work for bar com-mittees, offer pro bono services on cases (often on work time compensated by law schools), and other such activities. But most do not. Law professors teach, write, serve on faculty committees, and meet with students; faculty members

84. See Adam Liptak, If Law is an Ass, the Law Professor is a Donkey, N.Y. TIMES, (Aug. 28, 2005), http://www.nytimes.com/2005/08/28/weekinreview/28liptak.html; Peter Shuck, Left Leaning, YALE L. SCH. BLOG (Dec. 20, 2005), http://www.law.yale.edu/news/1855.htm.

85. More on the Comprehensive Review of Standards for Approval of Law Schools: Report from the July Standards Review Committee, SOC’Y OF AM. LAW TEACHERS, http://www.saltlaw.org/contents/view/3-2011_ABA (listing faculty resolutions opposing the elimination of tenure).

86. Letter from Michael A. Olivas, President, Am. Ass’n of Law Schs., to Hewlett H. Askew, Legal Educ. Consultant (March 28, 2011), available at http://www.aals.org/advocacy/Olivas.pdf.



who engage in substantial consulting work are usually profitably compensated for it. Olivas’s suggestion that we perform the important task of modeling “selflessness” for law students is specious at a time when legal educators are paid handsomely for what we do.

Salary numbers reveal that legal educators are doing very well. The recent Chair of the ABA Section on Legal Education, Dean John O’Brien of New England School of Law, earned $821,221 in taxable compensation in 2010.87 Dean Rudy Hasl of Thomas Jefferson School of Law earned $395,614.88 New York Law School Dean Richard Matasar earned $572,784, and four professors at that school received compensation above $300,000.89 That is a lot of money to earn at low-ranked law schools where the students suffer poor outcomes. At all three of these non-elite law schools, graduates of the class of 2011 carried debt in excess of $100,000, and only about a third or less had obtained perma-nent full-time jobs as lawyers (nine months after graduation), most of them at salaries around $60,000 or below.90

The pay of most law professors is not publicly available. The latest SALT survey shows a median pay of law professors above $150,000 (including sum-mer stipends) at most of the schools that reported salaries.91 (The survey is un-representative because most of the higher paying law schools do no partici-pate.) Professors at top thirty law schools earn much more, although these law schools typically do not report their salaries in the survey. The highest median salaries reported in the 2008 SALT survey were at Michigan ($254,500), Har-vard ($252,450), Minnesota ($220,000), and Emory ($212,004)—all of these medians are likely higher today. Given that comparably ranked law schools

87. 2010 IRS Form 990, Schedule J for New England Sch. of Law 2 (May 5, 2012),

available at http://www.guidestar.org/FinDocuments/2011/042/152/2011-042152671-0843d86b-9.pdf.

88. 2010 IRS Form 990, Schedule J for Thomas Jefferson Sch. of Law 2 (Apr. 9, 2012), available at http://www.guidestar.org/FinDocuments/2011/330/696/2011-330696561-083f8794-9.pdf.

89. 2010 IRS Form 990, Schedule J for N.Y. Law Sch. 2 (Apr. 23, 2012), available at http://www.guidestar.org/FinDocuments/2011/135/645/2011-135645885-083e58a6-9.pdf.

90. New England School of Law places 34.4% of graduates in permanent full-time employment, LAW SCHOOL TRANSPARENCY, supra note 15, and had an average debt of $108,326. Whose Graduates Have the Most Debt?, supra note 14. New York Law School places 35.5% of graduates in permanent full-time employment, with an average debt of $146,230. Thomas Jefferson places 26.7% of students in full-time employment, with an av-erage debt of $153,006. Supra note 15 and accompanying text.

91. 2011-12 SALT Salary Survey, SALT EQUALIZER, (Soc’y of Am. Law Teachers, St. Paul, MN), May 2012, at 1-3, available at http://www.saltlaw.org/userfiles/SALT%20salary%20survey%202012.pdf.



compete for professors, it is reasonable to surmise that the median pay of ten-ured professors at another twenty or so top law schools exceeds $200,000.92

A behind-the-curtain glimpse of the amount of money in play at elite law faculties was provided when the Texas law faculty recently revolted over pay issues, culminating with the firing of the dean.93 Nineteen Texas law professors earned above $300,000 in compensation in 2010 (the highest at $351,000).94 On top of their salaries, between 2006 and 2011, twenty members of the faculty received one-time bonus payments ranging from $75,000 to $350,000.95 Dean Sager received a bonus of $500,000. If Texas professors are compensated at this level, given the nature of the lateral market for top professors, it is likely that many full professors at top-five law schools are in the $300,000 to $400,000 range, with some earning more. Sager revealed, “In our own experi-ence, candidates whom we have wished to hire have been offered more than $400,000 a year.”96

During Sager’s five-year tenure as dean, resident tuition at Texas rose from $18,208 to $28,669. Texas law students likely received neither a better educa-tion nor improved employment opportunities from this jump in the cost of their degree. The primary beneficiaries of competition over faculty talent in the chase for prestige are professors, who command ever-higher salaries. The im-age legal educators encourage that we have given up lucre to mold young minds has been long obsolete.

Most tenured law professors are not paid in the same range as elite law pro-fessors, it must be said, and at affordable public law schools professors are not compensated extravagantly, but law professors generally are well compensated,

92. See 2008-09 SALT Salary Survey, SALT EQUALIZER (Soc’y of Am. Law Teachers,

St. Paul, MN), Mar. 2009, at 1-3, available at http://www.saltlaw.org/userfiles/SALT_salary_survey_2009.pdf.

93. See Reeve Hamilton & Morgan Smith, UT President Asks Law School Dean to Re-sign Immediately, TEX. TRIB. (Dec. 8, 2011), http://www.texastribune.org/texas-education/university-of-texas-system/dean-ut-law-signs-letter-resignation; Miriam Rozen, Sager Out Earlier Than Expected As UT Law Dean, TEX. LAWYER (Dec. 8, 2011), http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1202534984121&slreturn=1.

94. See Letter from Margo Iwanski, Assistant to the Vice President, Univ. of Tex., to Julius G. Getman et al., Professor, Univ. of Tex. Sch. of Law, Item #2 at 7-19 (Nov. 15, 2011), available at http://s3.amazonaws.com/static.texastribune.org/media/documents/ut_law_school_open_records.pdf.

95. See Ralph K.M. Haurwitz, Chancellor Orders Review of UT Law School Founda-tion Funds, AM. STATESMAN, (Dec. 9, 2011), http://www.statesman.com/news/local/chancellor-orders-review-of-ut-law-school-foundation-2023572.html.

96. See Letter from Larry Sager, Dean, Univ. of Tex. Sch. of Law, to Law Faculty (Dec. 8, 2011), available at http://s3.amazonaws.com/static.texastribune.org/media/documents/Letter_to_My_Colleagues.doc (resigning position).



with most earning salaries at or above the level of federal judges. And we earn much more than professors in other fields (except medical professors), repeat-edly pressing the argument that we deserve higher pay because we could earn more as lawyers.97

The recent creation of California-Irvine law school offers additional rea-sons to doubt AALS president Olivas’s assertions that law professors engage in public service and model selflessness. California already had a surplus of law graduates and a state commission concluded that there was no need for another law school.98 With great fanfare, Irvine was rolled out and justified as a unique institution for the twenty-first century—one that will train skilled, ethical attor-neys and imbue students with the spirit of public service.99 The school received a $20 million gift from a local businessman. A prominent liberal constitutional law scholar from Duke Law School, Erwin Chemerinsky, was hired to lead the school. He recruited a line-up of professors from top-twenty-five law schools. His explicit goal was to create a top-twenty law school right off, an unprece-dented feat. “We have the chance to build something very special: the ideal law school for the 21st century,” said Chemerinsky.100 “We have a wonderful op-portunity in that we have a blank slate.”101 Although Chemerinsky acknowl-edged that there was no shortage of lawyers in California, he insisted that, “there is a need for attorneys who graduate better trained in how to practice law. There is a need for more attorneys who will use some or all of their talents to serve the public service.”102

What he ended up doing was chasing a prestige ranking, following the standard template for all top law schools: a research institution with a heavy dose of clinics. Tuition at Irvine in 2012 was $46,804 for residents and $53,298 for non-residents.103 Adding expenses, law students who pay full price to at-tend Irvine will spend over $200,000 for their law degree. To ensure that its LSAT/GPA scores remain high, the law school will implement the standard re-verse-Robin Hood scholarship arrangement that has the bottom half of the class

97. See TAMANAHA, supra note 19, at 47.

98. See CALIFORNIA POSTSECONDARY EDUCATION COMMISSION, REVIEW OF A PROPOSAL TO ESTABLISH A SCHOOL OF LAW AT THE UNIVERSITY OF CALIFORNIA IRVINE 1 (March 2007), available at http://www.cpec.ca.gov/completereports/2007reports/07-01.pdf (recommending to not create a new law school),

99. See Erwin Chemerinsky, A Dream Come True: Visions of Change, UNIV. OF CAL. IRVINE SCH. OF LAW (July 17, 2009), http://www.law.uci.edu/visions_of_06.html.

100. Id. 101. Erwin Chemerinsky, Keynote Speech: Reimagining Law Schools?, 96 IOWA L.

REV. 1461, 1462 (2011). 102. Susan Valot, UC Irvine Opens First Public Law School in California in Decades,

S. CAL. PUB. RADIO (Aug. 24, 2009), http://www.scpr.org/news/2009/08/24/5362/uci-law-school (presenting an interview with Erwin Chemerinsky).

103. School of Law Fees 2012-2013, UNIV. OF CAL. SCH. OF LAW (July 18, 2012), http://reg.uci.edu/fees/2012-2013/law.html.



subsidize the top half (more on this shortly). Irvine law graduates in 2015 will walk out the doors with more than $100,000 average debt.

Students with debt that large are compelled by financial necessity to pursue corporate law jobs. Although public service jobs are eligible for a federal pro-gram that ties monthly loan payments to income and forgives the remaining debt after ten years,104 heavily indebted law students would take a huge risk to pass up a corporate law job (which is obtained through interviews in the fall of the second year) in the hope that they might later land a public service job, which is obtained near or after graduation. This would be a bad bet for a stu-dent to make because public interest jobs are extremely competitive. Irvine law professors can saturate the atmosphere with public service105—it doesn’t mat-ter. Irvine students will be forced to seek corporate law jobs, and the many stu-dents who don’t land these positions or public service positions will struggle under their debt.

Irvine Law School is nothing new. Avowedly progressive law professors with ample resources and a clean slate, setting out to build a school focused on public service, reproduced an institution that loads students with debt and channels them to the corporate law sector. Where they went wrong was in set-ting out to create an elite law school. Competition over U.S. News rankings has warped law school economics and Irvine jumped into it with gusto, doing its utmost to land high in the ranking sweepstakes.

To achieve this objective, Dean Chemerinsky recruited law professors from top law schools, who come at a high price. An op-ed in the L.A. Times penned by Dean Chemerinsky in 2010 explains:

Over the last few weeks, I have negotiated salaries with superb professors we are attempting to recruit who are currently teaching at Harvard, Northwestern and Yale. The University of California must match their current salaries or they will not come. As much as I love living in Southern California, I could not have afforded to leave Duke University if it meant taking a substantial pay cut.106

UC salary records reveal that Irvine law professors are compensated in the same range as professors at other top-twenty-five law schools, with many earn-ing above $200,000 (two received gross compensation topping $300,000 in

104. See Public Service Loan Forgiveness Plan, FED. STUDENT AID,

http://studentaid.ed.gov/repay-loans/forgiveness-cancellation/charts/public-service (last vis-ited Jan. 10, 2013).

105. Among other initiatives aimed at public service, second- and third-year law stu-dents are asked to do fifty hours of pro bono work. See Christina Thomas, UC Irvine’s Grand Plan, NAT’L JURIST, Oct. 2012, at 19.

106. Erwin Chemerinsky, Invest in Higher Education, L.A. TIMES, (Dec. 27, 2010), http://articles.latimes.com/2010/dec/27/opinion/la-oe-chemerinsky-uc-tuition-20101221.



2011).107 If you are recruiting against top law schools, you pay top dollar for professors.

In defense of his approach, Dean Chemerinsky argues that a new law school has a stark choice: aim for the top twenty or end up in the fourth tier.108 Setting aside whether other viable options existed, the point remains that he created one of the most expensive law schools in the country. Irvine law stu-dents, regardless of their dedication to public service, face the same financial pressure that sends all law students hustling for corporate law jobs. Chermerin-sky is correct that there was no need for another fourth-tier law school, but there was also no call for yet another extremely expensive top-twenty-five law school.

The process of founding Irvine law school—their priorities and the choices they made—illustrates that liberal law professors pursue prestige and, like most people, try to maximize their pay. Irvine Law School exhorts its students to en-gage in public service, which requires a significant financial sacrifice on their part: starting pay at public interest jobs ranges from approximately $40,000 to $50,000; pay eleven to fifteen years out ranges from $65,000 to $79,000.109 Meanwhile, Irvine professors insist on being paid market value “or they will not come,” as Dean Chemerinsky put it, resulting in new professor salaries ex-ceeding $150,000 and experienced professors pulling in well above $200,000. Since professor salaries typically constitute half or more of the budget, high professor pay adds to the debt burden carried by students. Although Irvine pro-fessors are fully entitled to market salaries, what results is in tension with their advocacy of public service. We cloak ourselves in public service (pace Olivas), but a closer look at our own conduct is less flattering.

V. ELITE LAW SCHOOLS AND THE TUITION-SCHOLARSHIP MATRIX

The über-elite law schools—Yale, Harvard, Stanford, Columbia, Chicago, NYU, etc.—are responsible for the rapid rise of tuition nationwide. Legal aca-demia is a prestige market in which the elites set the market price, and other

107. University of California, Irvine, School of Law Salary Data, UNIV. OF CAL.

SALARY DATA ANALYSIS, http://ucpay.globl.org (enter “Irvine” under “Campus” and “law school” under “Title”) (last visited Jan. 10, 2013).

108. See Erwin Cherminsky, You Get What You Pay for in Legal Education, NAT’L L.J. (July 23, 2012), http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202564055135&You_get_what_you_pay_for_in_legal_education; Rachel M. Zahorsky, Law Prof’s Ideal, Affordable Law School Not Possible in Reality, Chemerinsky Says, A.B.A. J. (Aug. 22, 2012), http://www.abajournal.com/lawscribbler/article/law_profs_ideal_affordable_law_school_not_possible_in_reality_chemerinsky.

109. See Press Release, Nat’l Ass’n of Leg. Career Prof’ls, New Public Interest and Public Sector Salary Figures Show Little Growth Since 2004 (Oct. 18, 2012), available at http://www.nalp.org/2012_pubint_salaries.



schools price themselves a level or two below roughly in accordance with rank (and location).110 When elite law schools increased their tuition, all other schools beneath them kept pace, maintaining a price about $10,000 lower.

As the acknowledged prestige leader, Yale Law School, with many pro-gressive law professors on the faculty, played an inordinate role when it ramped up tuition by $21,000 in just over a decade (from $26,950 in 1999 to $48,340 in 2010).111 Imagine what would be the case if Yale had increased tui-tion by only $13,000 during this period (still exceeding inflation). Yale would be priced around $40,000. Tuition at the other top schools would also cluster around $40,000 (tuition at Columbia would not be above $50,000 if Yale cost $40,000). And tuition all the way down the law school hierarchy would be about $10,000 cheaper than it is now. Having less revenue to spend, the Yale faculty would be smaller, and full professor pay would be arrayed below $300,000 rather than above, but otherwise not too much would be different. It would still be on top, with outstanding professors and students. Law faculties nationwide would be smaller and professors more modestly but still comforta-bly compensated (closer to our university brethren). Average student debt lev-els would be much lower across the country.

The liberals on the faculties at Yale, Harvard, and Stanford might salve any pangs of conscience (assuming they experienced any) about these tuition in-creases because their graduates land high-paying corporate law jobs and, unlike every other law school in the country, their financial aid is almost entirely need based, which means wealthy students help subsidize those with less wealth. But the vast majority of law schools do not have these advantages. So every time Yale (et al.) jacked up its tuition by several thousand dollars, tens of thousands of law students across the country saw a sizable amount added to their yearly tab, ultimately manifested as additional debt upon graduation.

Neither Yale nor any other law school up and down the hierarchy exercised restraint, turning a blind eye to the harmful consequences to our students and to society of rapidly increasing tuition. Law schools across the country raised tui-tion by large amounts each year because they could. Applicants continued to line up, clamoring to get in, willing and able to pay whatever price law schools set.

The harmful class consequences this produced might have been partially ameliorated if law schools had taken a large portion of the revenue they reaped and distributed it to lessen the financial burden on students with limited means. But the opposite happened—as tuition rose dramatically, law schools substan-

110. See TAMANAHA, supra note 19, at 128-30. 111. The 2010 tuition is from ABA-LSAC OFFICIAL GUIDE, supra note 3, at 866. The

1999 tuition is from A YALE BOOK OF NUMBERS 1976-2000, at tbl.L-1 (Beverly Waters, Yale Univ. Office of Inst. Research ed., 2001), available at http://oir.yale.edu/node/214/attachment.



tially reduced the proportion of need-based scholarships, shifting the bulk of financial aid to merit scholarships.112

A perverse system resulted. Students with LSAT/GPA profiles in the bot-tom half of the entering class pay full tuition, while students in the top half of the class obtain substantial discounts. Law schools allocate scholarships in this manner to maximize their LSAT/GPA medians for the purposes of law school rankings. Students with better entering credentials often perform better in law school and thus reap better paying jobs. Under this arrangement, students with lower expected earnings end up subsidizing the legal education of students with higher expected earnings. The practice seems morally indefensible—yet nearly every law school in the country does it (Harvard, Yale, and Stanford aside).

Students from lower socio-economic classes suffer a particular disadvan-tage under this system. “[M]any administrators feel that the LSAT, more than other admissions criteria, favors the wealthy because of their backgrounds, their educational experiences, and their test-preparation courses.”113 Students from wealthy backgrounds thus have a greater chance to maximize their LSAT scores, thereby benefitting from merit scholarships that depend upon these scores.

This manner of distributing scholarships contains another set of class im-plications with great potential for inflicting long-term harm. The key dynamic involves students who are made to pay full fare, typically those in the bottom half of the LSAT/GPA profile of students admitted to the J.D. class at any par-ticular school. The highest ranked schools have students with the highest LSAT/GPA combination—with LSAT numbers steadily falling as you travel down the ranking. For example, an applicant with a 171 LSAT would have placed below the median of the class at Columbia, but in the top quartile at Michigan, Penn, Berkeley, Virginia, Duke, and so on.114

An applicant in this position would be confronted with a tough choice: go to Columbia and pay full price or attend a lower-ranked school, say Duke, with a tuition discount of half or more; Columbia at $150,000 tuition over three years or Duke at $70,000. When you add in projected expenses, the final price would be well above $200,000 for a degree at Columbia versus $120,000 for a degree at Duke.

Applicants from wealthy families who can help financially would not hesi-tate to go to Columbia. But applicants from middle class families—school teachers, middle management, small business owners, solo practitioner lawyers

112. See TAMANAHA, supra note 19, at 57, 96-99. 113. MICHAEL SAUDER & WENDY ESPELAND, FEAR OF FALLING: THE EFFECTS OF U.S.

NEWS AND WORLD REPORT RANKING ON US LAW SCHOOLS, RESEARCH REPORT NO. GR-07-02, at 12 (2007).

114. Best Graduate Schools: Schools of Law, U.S. NEWS & WORLD REPORT, 2012, at 69.



(parents who exhausted their resources helping their child make it through col-lege with less debt)—will find the Duke offer hard to turn down.

I use Columbia as the example rather than Harvard, Yale, and Stanford (HYS) because the latter three, uniquely among law schools, provide scholar-ships wholly or predominantly on a need rather than merit basis. Once admit-ted, a student with a bottom quartile LSAT at HYS would be eligible for a grant on the same terms as a top-quartile student. Yet the same economic dilemma would exist for a person with limited economic means because the amount of need-based aid provided would not necessarily offset the merit-based scholar-ship offered by a school like Duke. HYS typically require students to be re-sponsible for a base amount each year ($33,000 at Stanford, $38,800 at Yale), plus an additional amount that parents and spouses are theoretically capable of contributing (based upon income formulas)—only above that figure does the school begin to provide need-based aid.115 In 2011, Harvard graduates had an average debt of $118,500, Stanford graduates had $108,777, and Yale grads had $107,761.116 These are much higher debt levels than a student with a full-tuition scholarship at Duke would carry.

A student who goes to Duke will have an outstanding career anyway. But law is a highly elitist, credential-oriented profession. Consider that in the his-tory of the United States Supreme Court, eighteen Justices attended Harvard, ten attended Yale, and seven attended Columbia (including Justice Ginsburg, who also attended Harvard); no other law school counts more than three; Duke has none.117 It is easier to land elite clerkships, choice positions in the Depart-ment of Justice, and a law professor job out of the top five schools.118 Although a Duke degree is an elite credential that opens many doors, the difference in ca-reer opportunities compared to HYS or Columbia is not negligible.

Versions of this same dilemma play out all the way down the law school hierarchy, often with more dramatic differences at stake. Applicants at the bot-tom LSAT quartile point (166-168) who would be required to pay full price at Michigan, Penn, Cornell, Duke and Northwestern, would get substantial tuition reductions to attend any school ranked twentieth or higher. Pay full tuition at

115. See STANFORD LAW SCHOOL, FINANCIAL AID HANDBOOK 2011-12 (2011); YALE LAW SCHOOL, FINANCIAL AID POLICIES, PROGRAMS, & PROCEDURES 2011-2012 (2011), available at http://www.law.yale.edu/documents/pdf/Financial_Aid/FinAidHandbook.pdf.

116. See Whose Graduates Have the Most Debt?, supra note 14. I have rounded off the figures to the nearest five hundred.

117. List of Law Schools Attended by Supreme Court Justices, WIKIPEDIA, http://en.wikipedia.org/wiki/List_of_law_schools_attended_by_United_States_Supreme_Court_Justices (last visited Jan. 10, 2013).

118. See Brian Leiter, Where Current Law Faculty Went To Law School, BRIAN LEITER’S LAW SCH. RANKINGS (Mar. 17, 2009), http://www.leiterrankings.com/jobs/2009job_teaching.shtml. According to Leiter, as of 2008, Harvard had 993 and Yale had 712 of their graduates in law professor positions, with Columbia the next closes school in number at 308. Id.



Vanderbilt or attend Iowa, North Carolina, Emory, etc., at a big discount? Fre-quently, the pertinent choice will be between local alternatives. An applicant who scores 165 on the LSAT would be in the bottom 25% of the class at UCLA but in the upper 25% at Loyola Marymount. Pay full tuition at the former or get more than half-off at the latter? In all of these examples, the disparity in career opportunities entailed in the choice is considerable.

Applicants from families with money will attend the better school without hesitation. Applicants from middle-class families will be faced with the agoniz-ing decision of whether taking on mountainous debt will be worth the advan-tages gained from going to the higher-ranked school. Some will make the leap to the higher-ranked school. When making this choice, they are placing a bet that they will successfully land a corporate law job upon graduation to pay off the loan (regardless of whether that is a job they desire). Some applicants with modest means will, reluctantly, select the lower-ranked school at a discount. They can go on to have stellar legal careers anyway, but the higher-ranked school would have laid an easier path with better opportunities.

In this manner, the tuition-scholarship relationship to the higher-versus-lower-school choice constitutes an allocation matrix that uniformly funnels wealthy applicants to the higher school, securing the attendant advantages, while people with less financial means divide between higher- and lower-ranked law schools. Multiply this out by tens of thousands of like decisions each year and the effect is large. A generation ago, a middle-class aspirant to a legal career would not be put to this choice. But current and future generations must face it.

A study of the graduating class of 2000 found that “across the spectrum of law schools, there is a lopsided concentration of law students toward the high end of the socioeconomic spectrum, which becomes more lopsided with the eliteness of the law school.”119 Top-ten law schools had the highest concentra-tion of students from the top decile of socioeconomic households (57%), while the bottom hundred law schools had the lowest concentration from the top so-cioeconomic decile (27%).120 If the tuition-scholarship matrix operates in the manner I suggest, the already-present wealth concentration in law schools will strengthen over time as tuition rises.

It seems that an inevitable consequence of the pricing structure of law schools is that in the coming generation more and more elite legal positions—corporate bar, Supreme Court justices, high ranking Justice Department offi-cials, and law professoriate—will be in the hands of the offspring of the wealthy. Revisiting Duncan Kennedy’s thesis about legal education serving a sorting function for hierarchy, three decades later, we have put in place a set of conditions that increasingly arrange this sorting in accordance with wealth.

119. Richard H. Sander, supra note 65, at 637. 120. Id. at 639.



VI. WHY THIS HAPPENED

In the past few decades, I have argued in this Article, an economic barrier to access to the legal profession was built layer by layer, with significant class consequences for society and the legal system. I am not uniquely blaming lib-eral law professors for these developments. Everyone in legal academia was involved, went along, and enjoyed the benefits. (Self-identified religious law professors employed at law schools that purport to advance a special mission—to name just one example—have behaved no differently).121 Nor is “blame” the right word, for I am not asserting that law professors caused tuition to rise, but examining why we did nothing to resist it.122

These developments, it bears emphasizing, were not exclusive to law schools. Law schools are the most extreme manifestation of a broader situation in higher education, wherein academic institutions became focused on growth and wealth accumulation—for the institutions, administrators, and professors—wantonly raising tuition without heed to its consequences for individuals and society. That it occurred in legal education is more critical due to the central role that law plays in our society, and the debt levels of law graduates are much higher and thus more painful and life-altering, but the same phenomenon took place across higher education.

I focus on liberal law professors to explain an apparent puzzle: How could developments so contrary to progressive causes occur at a time when most law professors are progressives? Most of it happened in a single generation that spanned the 1990s and the 2000s. This is not offered as a study from a distance but from a liberal insider who watched it happen. I support the cluster of pro-gressive causes I mentioned earlier. Beyond writing a few blog posts on the topic and voicing objections at faculty meetings, I did nothing myself to halt tuition increases that I too benefitted from.123

If liberals are to be true to our professed values, we must critically examine our own conduct, however painful and embarrassing it might be. We cannot speak truth to power yet not to ourselves. The Crits and progressive law profes-sors, I charge, have profited from a system of legal education with harmful consequences to individuals and society—while claiming (and believing) that they were fighting the system. Before addressing why this happened, let me

121. See Robert Vischer, Catholic Law Schools and the Student Debt Crisis, MIRROR OF

JUSTICE (June 8, 2012), http://mirrorofjustice.blogs.com/mirrorofjustice/2012/06/catholic-law-schools-and-the-student-debt-crisis.html. 122. Tuition rose at this rate owing to demand: students have been willing to pay be-cause they thought a law degree offered a good career, and they have been able to pay be-cause the federal loan program provides sums with virtually no limits. See TAMANAHA, FAILING LAW SCHOOLS, supra note 19, at 126-34.

123. When serving as the interim dean of St. John’s in 1998, I did not increase tuition, but tuition rose in the long run nonetheless. See id. at 7.



first anticipate several objections liberal law professors are likely to raise to my argument.

We didn’t know. Any law professor who did not know that we were erect-ing an enormous economic barrier to access to a legal career and loading huge debt on students was being willfully ignorant. 124 When tuition reached $20,000 to $25,000 at many law schools a decade ago, then blew through that on the way to $50,000, scholars attuned to class should have known that a disaster for the middle class and below was in the works. Anyone with concern for students must have sensed that their debt was getting very large.

Loan forgiveness and repayment programs ease the pain for graduates. Only a handful of law schools—the most elite—provide meaningful loan for-giveness; indebted graduates of about 190 law schools get no real relief. The new federal income-based repayment program for graduates in “financial hard-ship” will save many graduates from defaulting on their loans.125 This new program does not ameliorate the fact that exorbitant tuition is what put law graduates in financial hardship to begin with, nor does it help the tens of thou-sands of students who took on large private debt before the program was im-plemented.

This is a historically bad legal market, so don’t blame us. Tuition is too high, and its negative consequences for progressive causes, including the tui-tion-scholarship matrix, would still exist (and did exist before) even if the em-ployment market had not suffered a severe contraction.

We don’t control tuition or set law school policies so there is nothing we could have done to slow the rise. Tuition is set by the university and law school administration—a process that individual law professors have no say in and do not control. But collective resistance might have had an effect. Had professors on a faculty banded together to resist tuition increases, with the support of na-tional organizations, the increases might have been tempered. Law professor organizations and law faculties nationwide sprang into action to effectively

124. This information was made available in a series of blog posts going back to 2006

on Balkinzation, a widely visited law professor blog, warning of the implications of rising tuition and debt. See e.g., Brian Z. Tamanaha, A Peculiar Fairness Issue Brewing in Law Schools, BALKINIZATION (May 11, 2006), http://balkin.blogspot.com/2006/05/peculiar-fairness-issue-brewing-in-law.html; Brian Z. Tamanaha, A Slice of Information About Cor-porate Law Firms and Legal Academia, BALKINIZATION (Jan, 31, 2007), http://balkin.blogspot.com/2007/01/slice-of-information-about-corporate.html; Brian Z. Tamanaha, Is there an Impending Crisis in Non-Elite Law Schools?, BALKINIZATION, (Jan, 18, 2008), http://balkin.blogspot.com/2008/01/is-there-impending-crisis-in-non-elite.html.

125. See Income Based Repayment Plan, FED. STUDENT AID, http://studentaid.ed.gov/repay-loans/understand/plans/income-based (last visited Feb. 9, 2013). Although it helps make the debt payments manageable, the income based repayment program has significant negative implications for borrowers as well as for society. See Brian Z. Tamanaha, The Problems with Income Based Repayment, and the Charge of Elitism: Re-sponses to Schrag and Chambliss, GEO. J. OF LEGAL ETHICS, (forthcoming 2013).



fight proposals to remove job protection from accreditation standards. Liberal law professors could have engaged in similar actions to resist tuition increases, but we did nothing. Credible opposition by the law faculty to restrain tuition increases would have required that we voluntarily accept reduced raises on the condition that the savings go to hold tuition down (rather than be siphoned off by the university), a trade-off we were unwilling to make. Why we did not resist is straightforward: we benefitted personally. Tuition increases meant yearly salary raises, research budgets to buy books and laptops, additional time off from teaching to write (or to do whatever we like), traveling to conferences domestically and abroad, rooms in fine hotels, and dining out with old friends. A sweet ride it has been. After becoming accustomed to such treatment, it seems normal to desire even more pay, and not think twice about traveling to Hawaii or taking the family to the annual Southeastern Association of Law Schools conference, held every summer at a luxury resort.126 Why liberal law professors did not perceive or experience a sense of ur-gency about the harms we were inflicting is more complicated. The Crits I know personally, and many liberal law professors, are genuinely caring, com-mitted people, yet everyone overlooked what was developing in our own law school buildings. Upton Sinclair’s quip is perhaps apropos: “It is difficult to get a man to understand something, when his salary depends upon his not under-standing it!”127 There is more. The Crits, folks in SALT, and liberal law professors, some-times speak as if they are waging battles on the side of good against evil on a grand stage: taking on an unjust legal system and puncturing the false ideology that props it up, struggling against racism and sexism and anti-gay bias in American society, combating neocons and the reactionary right, challenging Republican judicial appointments and Bush’s torture policies, writing theories of constitutional interpretation to counter conservative originalism, saving the environment, championing the spread of human rights and the rule of law around the globe—this is heady stuff, fought out on national and global arenas (at least in law reviews, op-eds, and blogs).

Focusing on how many tuition dollars law students are charged could seem mundane by comparison. And if students did have to pay more (and more), that is okay because their money goes to support the important progressive causes liberal law professors are advancing. And if liberal law professors were earning

126. See SE. ASS’N OF LAW SCHS., http://sealslawschools.org (last visited Jan. 10, 2013) (publicizing the 2013 meeting at The Breakers, Palm Beach, Florida and the 2014 meeting at Amelia Island Plantation, Amelia Island, Florida). The 2012 annual conference was also held at Amelia Island, Florida. SE. ASS’N OF LAW SCHS., 2012 CONFERENCE PROGRAM 1 (2012), available at http://sealslawschools.org/wp-content/uploads/2012/06/SEALS-Program-2012_06.23.12.pdf.

127. UPTON SINCLAIR, I, CANDIDATE FOR GOVERNOR: AND HOW I GOT LICKED 109 (Univ. of Cal. Press 1994) (1935).



a nice income from these activities, these rewards were well deserved because the work is good for society.

These are worthy progressive causes, but liberal law professors could have pursued them all with the same vigor while also taking collective action to keep tuition down. The situation brings to mind an old joke we tell in Hawaii about the early Christian missionaries to the islands, whose families went on to be-come wealthy land owners: “They came to do good, and they did very well.”

What also helped us block out the harm is our sense of personal virtue. Deep down, it appears, many liberal law professors really do believe AALS President Olivas’s claim that we are engaged in public service. Many law teachers share an implicit assumption that we have made a financial sacrifice to pursue righteous causes through advocacy, to advance knowledge, and to in-spire our students to become ethical lawyers and go on to do good in the world. When reminded that we are well paid, law professors rebuff this by responding that we could have earned more in practice, so we sacrificed income to take these jobs. Law professors compare ourselves to our most financially success-ful classmates on the false assumption we too would have become partners or CEOs, not remembering that the skill sets are different, and forgetting that the unmatched freedom we enjoy is worth more to us than the money we might have earned. The truth is most law professors had no desire to practice law anyway. No sacrifice was made to become a law professor—a dream job cov-eted by many. But the sense of public service remains.128

Our sense of virtue is further enhanced by the belief that the production of legal scholarship is an inherently noble and worthy pursuit, as expressed by Jay Silver in his impassioned defense of the law professoriate:

[L]egal scholarship enriches teaching as it refines the practice of law and ad-vances justice and . . . the traditional emphasis on scholarship requires the academic freedom provided by tenure and the time furnished by customary [low] teaching loads. Indeed, all of the rights we enjoy today or are struggling to achieve were once just ideas. The immediate, real-life impact of legal scholarship—whether the author advocates a particular change in law or policy or provides a new theoretical paradigm—can be immense. . . . And who will replace the law pro-fessor—protected by tenure and unbound to clients or special interests—to re-flect on and identify abuses of power and solutions to perplexing social prob-lems from the Archimedean point of the academy?129

In similarly glorious language, Stephen Diamond argues:

128. The claim that we are engaged in public service, besides a comforting self-delusion, is an insult to the many lawyers who work in genuine public service jobs under difficult conditions at relatively low pay. Three decades ago, at the start of my legal career, I worked first as a public defender and later in a developing country—and I can say unequivo-cally that being a law professor is luxurious by comparison.

129. Jay Sterling Silver, The Case Against Tamanaha’s Motel 6 Model of Legal Educa-tion, 60 UCLA L. REV. DISC. 52, 54-55 (2012).



Given the critical role of the law school in shaping the law it is not inappropri-ate to appropriate E.P. Thompson’s felicitous comment about the “rule of law” and suggest that the modern law school itself, in its commitment to teaching and research like the university of which it is an integral part, is an “unquali-fied human good” that must be defended even if the school must constantly consider reforms in response to inevitable external change.130 Lofty justifications of this sort make it easy for legal educators to rational-

ize: the onerous debt taken on by law students is a small price to pay for knowledge, justice, and the rule of law. Belief in the value of scholarship—and both Silver and Diamond extoll progressive scholarship in particular—almost amounts to a shared ideology, or faith, among some law professors that our re-search is an “unqualified” good beyond measure and, therefore, priceless. Nei-ther Diamond nor Silver actually talk about the enormous cost of a law degree or the debt burden this imposes on our graduates presumably because, in their mind, the intangible benefits of tenure and scholarship implicitly outweigh these harms.

Our blindness was also encouraged by a close sense of community. Con-ference-going, networking, retreats, late-night wine sessions, the social and personal connections that form within groups like CLS, SALT, and AALS, all build enduring relationships—in many instances decades-long friendships—between like-minded fellow travelers. This creates solidarity among members of the group; defending one another is obligatory good form; we don’t chal-lenge others in the group or the group itself. To do so would breach an unspo-ken taboo. Contrary to the critical spirit, solidarity encourages mutual rein-forcement and suppresses critical self-examination.

Can we criticize the Crits, many at elite law schools, for trumpeting resis-tance while failing to protest the rise of tuition with its manifestly detrimental class consequences? (Was their evident lack of concern fueled by the fact that they despise corporate law and, through a twisted logic, rationalized that their hefty pay raises were being extracted from the corporate legal arena via the employment secured by their graduates—who would be serving as corporate tools anyway?) Can we tell our friends in SALT that it is unseemly to attend a conference about the future of legal education in Hawaii when so many law students and recent graduates are struggling desperately in the here and now, and can we suggest that they should have fought the rise of tuition as hard as they fought to preserve job security for professors? Can we plead with fellow liberal law professors at schools like California Western, Thomas Jefferson, New York Law School—and several dozen additional law schools where the average debt exceeds $100,000 and fewer than half the class land full-time jobs

130. Stephen F. Diamond, The Future of the American Law School, or, How the “Crits” Led Brian Tamanaha Astray and His Failing Law School Fails 9-10 (Santa Clara Univ. Legal Studies Research Paper No. 3-13, 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2207749.



as lawyers, most at low pay—that they are wreaking financial havoc on their students and should slash their tuition or close their doors? Can we ask the lib-eral law professors at California-Irvine how they can preach to their students that they should engage in public service when they charge $50,000 tuition, loading students with debt, while insisting on getting top dollar for their own professorial services? Can we say to liberal law professors at elite schools that their salaries have escalated too high too quickly, and that pushing tuition ever higher is exacting profoundly detrimental consequences for which they bear re-sponsibility?

To say any of this to fellow progressive law professors would be poor form, a breach of solidarity.131 Hence we avoid the topics; instead, we share a bottle of wine and commiserate with one another about the right-wing takeover of America.

What transpired with progressives in legal academia was not unique to us. In Death of the Liberal Class, Chris Hedges observed:

The liberal class has ossified. It has become part of the system it once tried to reform. It continues to speak in the language of technical jargon and tepid po-litical reform, even though the corporate state has long since gutted the mechanisms for actual reform. The failure by the liberal class to adjust to the hard, new reality of corporate power and the permanent war economy, to ac-knowledge its own powerlessness, has left the liberal class isolated and de-spised.132

Seduced by the allure of prestige and material comforts, Crits and progressive law professors have become a part of the system they set out to reform. Watching market-thinking become pervasive and the gap between rich and poor in America steadily increase, knowing that on broader economic issues we had lost, we succumbed to the temptation to grab what we could for ourselves and our families, while fighting the good fight on affirmative action and immigration, women’s rights, gay rights, the environment, human rights, etc., . . . and for tenure and fair compensation for law professors (not for our sakes, mind you, but to defend the principles of academic freedom and equitable pay).

Legal educators (not only progressives but all of us) loaded debt on the backs of our students, and our hands helped build the economic barrier that makes it difficult for people from middle-class and poor families to become

131. The sharpest reviews of my book have been written by avowed progressives who

charge me with treading on progressive values. Diamond paints me as a “conservative.” Id. 4-6. Elizabeth Chambliss presses the argument that my book is elitist. Elizabeth Chambliss, It’s Not About Us: Beyond the Job Market Critique of US Law Schools, GEO. J. LEG. ETHICS, (forthcoming 2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189021. For a response, see Tamanaha, supra note 125.

132. CHRIS HEDGES, DEATH OF THE LIBERAL CLASS 153 (2012).



lawyers and to reach elite positions in law, government, and business. We made it much harder for the current generation to walk the same path of upward mo-bility many of us took ourselves. It is as if “The System” set a devious trap for progressive law professors: indulging us to “rebel” with our flurry of written words and speeches while dangling status, a comfortable life, and other good-ies, ours for the taking as long as we did nothing to challenge the underlying economic dynamic at work.133 We went for it. That was our bargain with the devil. Future generations of liberals will not judge us kindly—nor will the streams of heavily indebted students we send off each year to bear its concrete consequences.

A final small lesson to be learned from these events: Be skeptical of ten-ured academics who present themselves as radicals. When our stances secure generous rewards, we are not fighting the system. To think otherwise, if I may invoke a favorite Leftist phrase, is false consciousness. We liberal law profes-sors are a privileged leisure class living an enviable lifestyle, and we should not forget this for a moment.

133. To be clear, I do not personally believe in talk about “The System.” This metaphor

was, and perhaps still is, common in leftist circles, and I invoke it for that reason. In my view, there are structural conditions and individual choices, and my point is that we indi-vidually made choices that collectively brought us to the current situation.