What does it mean to call law school a scam?

Not surprisingly, some law professors aren't too happy about some of the assertions I've made -- or supposedly made: contra Prof. Horwitz I never said "virtually no professors prepare for class" -- during the six days of this blog's existence (like a more distinguished predecessor, I plan to rest from these creative labors tomorrow).


I'm happy to concede that the simple unmodified claim that "law school is a scam" is hyperbolic -- and that's why I haven't made it.  What I am arguing is that, for a very large number of current law students and recent graduates, the law schools they attend or graduated from have some striking scam-like elements. What does this mean?  A scam is a scheme to obtain money by means of deception.  Of course a huge number of social practices have scam-like elements.  For instance advertising almost always has scam-like elements, and in a contemporary economy advertising and business are intimately intertwined.  The complex social interactions described in books like Michael Lewis' The Big Short involved quite a bit of scam-like behavior, most of which was perfectly legal (as Mike Kinsley famously observed, "The scandal isn't what's illegal; it's what's legal").

In other words, the scam-like qualities of any particular practice will fall along a spectrum. At one end lies Bernie Madoff'; at the other, a scrupulous unwillingness to profit by even the most minor exaggeration or omission.  Where law schools fall on this spectrum is both historically and institutionally contingent, which is to say that the extent to which law schools are scam-like varies a lot by time and place.  Law schools are scam-like precisely to the extent that they represent to potential students that they provide things which in the end they fail to provide.  Historically, law schools have promised three things in return for a student's tuition: professional training, intellectual edification, and a reasonable return on investment, in the form of an enhancement of earning power that justified the direct costs and opportunity costs of spending three years in this form of post-graduate education.

It's not particularly controversial to assert that, historically speaking, the representations law schools have made regarding the first two benefits have tended to involve considerable exaggeration.   Complaints that law students learn nothing about practicing law are as old as the American law school itself, and as fresh as today's Twitter feed.  As for edification, the academic value of law school, while not as uniformly disparaged as the claim that law school teaches people how to practice law, has also come in for some very rough treatment over the course of the last century and a half.  (For a classic demolition, see this essay, which thoroughly outraged me when I read it as wide-eyed 1L -- rather remarkably, it was assigned reading material in an "experimental" class).

But the crucial point is this: as long as enough law students were getting a reasonable return on their investment in terms of enhanced earning potential, the fact that law school taught them next to nothing about the actual practice of law, and that much of their time was wasted in intellectually barren classes, was enough to make claims that law school was a "scam" seem hyperbolic.  While the failure to engage in professional training at anything beyond the level of ideological acculturation described by Kennedy was the source of much complaining by both law students and their future employers, and while the sheer boredom and academic emptiness of much legal education was also a source of considerable unhappiness, law students and recent law graduates were merely restive rather than openly rebellious as long as they could, ultimately, get paid.

The problem, of course, is that now they're not getting paid.  The scam blogs, with some exceptions, have tended to focus on the plight of graduates of lower-tier law schools, where, in terms of return on investment, the scam-like qualities of contemporary legal education are most evident.  But the current crisis in legal education reaches to the very top of the legal hierarchy.  I spoke recently to a friend on the faculty of a top ten school, who was, to his credit, intimately familiar with the precise employment statistics for the school's most recent graduating class.  Fully 20% of the school's graduates were unemployed at the time they took the bar (this is at a school where just a few years ago almost literally no one who actually wanted to practice law didn't have a real legal job lined up at graduation). At another top ten school, I've been told that 3Ls who do not yet have jobs -- of which there are many -- are finding it almost impossible to get on-campus interviews during the fall interview season.  Employers have already moved on to the second-year class, even though a significant portion of the third year class at this very prestigious school will be trudging through their final two semesters with little prospect of securing employment prior to graduation.  And this is at the very top of the law school pyramid . . .

So no, law school is not a scam in the literal sense. What it is, for a huge number of law students all across the law school hierarchy, is a practical, intellectual, and economic waste of time and money.

The question then becomes, what to do about that.  So far, this blog has been focused solely on criticizing the current state of affairs.  I believe that the people in charge of contemporary legal education -- the ABA, the AALS, the deans of the 200 ABA-accredited law schools, and most important of all, the faculty of those schools, need to come to grips with how bad the situation really is.  Law schools remain largely in denial about both how bad the employment situation actually is for their students, and about the skyrocketing cost of legal education.  The cost of going to law school has gone through the roof even as the economic benefits of a law degree have declined sharply.  That these two curves continue to move in the directions they've been moving may not make legal education a scam -- but it does make it something that is badly in need of fundamental reform.  That is an issue I plan to address at length.  But fundamental reform never takes place before those who stand to gain the most from the maintenance of the status quo are convinced that maintaining it is no longer an option.