Needing Law Schools

March 22nd, 2015 / By Deborah J. Merritt

I agree entirely with Noah Feldman that society needs law schools. He couldn’t have said it better. This, however, is exactly why law schools need to fix their financial model. Most schools lack the big endowments of Harvard and other elite schools. Students, meanwhile, are increasingly unwilling to pay so much more tuition than Feldman did in the 1990’s or I did in the 1970’s. We need to keep asking: Why does it cost so much more today to learn what the law “can be”?

I learned a lot about what the law can be from Ruth Bader Ginsburg, my constitutional law professor at Columbia in 1979. I also learned from Herbert Wechsler, author of the much-cited article on “neutral principles” in constitutional law; William Carey, one of the New Deal architects and an early chair of the SEC; E. Allan Farnsworth, Reporter for the Restatement (Second) of Contracts; Maurice Rosenberg, one of the earliest legal scholars to apply social science research to legal problems; and many others. Why were all of these luminaries able to teach me and my classmates for so much less tuition than Columbia and other schools demand today?

In part, they earned less. I know that, because I am the daughter of yet another Columbia professor from that era: William K. (“Ken”) Jones. Our family did just fine financially, but we didn’t have the affluence that law professors enjoy today. Another explanation rests on the enormous number of staff members that law schools now need to operate. Communications staff, admissions staff, development staff, student services staff . . . . Each seems indispensable in the modern law school, but how many contribute to our mission of teaching students and others what the law can be?

I doubt that it’s possible to unwind the contemporary law school, to dismiss all of the staff, and go back to an earlier, simple world. Although it’s a charming notion, isn’t it? We could simply post our lower tuition, admit students who apply (without spending time marketing to them), teach them, and send them into the world knowing something about both what the law is and what it can be. Meanwhile, we would publish and engage in law reform efforts–as Ginsburg, Wechsler, Carey, and the others did–while teaching four courses a year.

I know that’s unlikely to happen, so we’ve got to find other ways to fix the financial model. Shifting the first year of law school to the undergraduate curriculum makes sense to me. Let’s teach more people about both the power of law and what it can be. Meanwhile, let’s lower tuition for those who will actually practice law. We, as professors, can teach people what the law can be–but our graduates are essential to make those changes happen.