So it has come to pass that UC-Irvine's dean, Erwin Chemerinsky, has taken to the pages of the National Law Journal to explain why it's actually a good thing that the dumpster fire that is the California market for new (and old) attorneys has now been supplemented by another law school. And not just another law school, but one that will charge nearly $47,000 this year in resident tuition and fees, and $53,000 to non-residents, while conveniently located smack in the middle of one of the most expensive places to live in the USA. (Estimated cost of attendance at UCI this fall is $71,000/$77,000. Debt-financing a law degree from the school will result in a total debt of $250,000 to $280,000 for the class of 2015 six months after graduation, assuming COL increases).
But a funny thing happened on the way to the apologia: Chemerinsky's article is around a thousand words long, and exactly none of them are dedicated to explaining either why California needs a new law school or whether that school is worth anything like the cost of attending it.
Instead, the article is dedicated to the proposition that it's impossible -- literally impossible -- to provide a "quality" legal education for much less than the mind-boggling price UCI is charging for this increasingly less in demand product. This argument takes the form of an attempt to refute some of the central claims of Brian Tamanaha's Failing Law Schools, such as that law professors are paid too much.
Tamanaha is correct that law professors are paid significantly more than university faculty in disciplines like English, philosophy and history. Imagine that a law school tried to pay at that level, say roughly half of current faculty salaries at top law schools. Who would come and teach at a school where they got paid half what other law schools would pay them, and who would stay there when other opportunities arose?Current faculty salaries at top law schools range from nearly $200,000 for entry-level hires (including summer money) to double that or more for the highest-paid senior people. So Chemerinksy's argument -- which as so often the case in our business lacks any reference to concrete numbers -- is that you can't staff a "quality" law school faculty with people getting paid $100,000 to $200,000 per year.
Now it just so happens that the latter pitifully inadequate salary scale is a higher pay scale than that which obtained at elite (let alone typical) law schools not so long ago, as in the early 1980s. (I am of course adjusting for inflation). So the idea that one can't staff a "quality" law school with people getting paid half of what professors at top law schools today is obviously absurd from a historical perspective. (Not to mention that there are plenty of lower-tier law schools today that have salary scales that look like those of elite law schools 30 years ago).
Of course it isn't the 1980s any more. Expectations have changed. Indeed they have -- law professors at top schools expect to get paid stupendous salaries for teaching two to three classes per year, supervising the composition of law review articles, counting SSRN downloads etc. And professors at third and fourth tier schools expect to have the same salaries and teaching loads that professors at elite schools enjoyed a generation ago. But what has changed can change again.
Chemerinksy claims raising teaching loads wouldn't do much to alter legal education's absurd price structure because lots of professors at UCI are teaching four courses per year. As so often is the case in this business of ours an anecdote fills in for data: The actual data indicate the standard teaching package at all top 50 schools and many second tier schools is three classes per year, and the functional teaching package at the elites, once one takes into account research leaves, sabbaticals, etc., is closer to two. Again, a generation ago four courses was the standard package at a few elite schools, while five and six courses were standard everywhere else.
So cutting faculty compensation and raising teaching loads to those which obtained when Chemerinksy was getting what I assume he still considers an adequate legal education would in fact result in an enormous reduction in law school budgets, since faculty salary and benefits make up 50% to 60% of the typical law school's expenditures. Now it's true it's difficult for schools to proceed in this direction, because of a collective action problem. But that collective action problem will start disappearing faster than cashews in a bowl of mixed nuts as soon as a few central administrations decide that the envelopes coming over from the law school seem way too light this year.
Of course even bigger cost savings can be realized by returning to the faculty-student ratios that existed 30 years ago. Across legal academia, faculty-student ratios have been cut in half, going from 29.1 to 1 in 1978 to 14.9 to 1 in 2008. (Harvard had a ratio of 21 to 1 as recently as the late 1990s. Today it's 10 to 1 -- and that's actually quite a bit higher than most elite schools).
In other words we're not talking rocket surgery here. Chemerinksy's argument that such measures will result in an unacceptable sacrifice in quality is the kind of argument one always hears from defenders of cartels that maintain wildly inefficient price structures. (Not to mention that, if anyone has even tried to establish that American legal education is appreciably "better" than it was 30 years ago, I'm unaware of the effort).
But all this is really quite beside the point. Let's assume for the purposes of argument that it really does cost as much as Chemerinsky says it does to provide a quality legal education. The problem is that, going forward very few of UCI's graduates are going to get jobs that even begin to justify UCI's cost. Even making the extraordinarily optimistic assumption that UCI ends up placing its grads down the line as well as UCLA and USC do, this means that perhaps one third will get six-figure jobs, and maybe half of those people will hold on to them long enough to have a reasonable shot at getting their educational debt down to manageable levels. And that, needless to say, is the optimistic projection.
The more realistic projection is that UCI ends up placing people in high paying legal jobs about as well as Hastings does. And that outcome doesn't come within a light year of justifying either school's cost.
Ultimately what happens to UCI isn't very important per se (except, naturally, to the people who are reckless enough to enroll there this fall without a massive discount on advertised tuition). What's important is that the model of legal education Chemerinksy is defending is economically unsustainable. That's Tamanaha's point, and there isn't a word in Chemerinsky's reply that's responsive to it.