Why Law Schools Are All the Same -- Except They're Not

The persistent question that critics of legal education ask is why law schools cannot be different, whether in content of the curriculum or pricing of tuition. They point out that law schools ranked at the top and law schools ranked at the bottom, at least some of them, charge (or appear to charge) their students the same amount of money, and, what is worse, graduates emerging from the less prestigious institutions can end up burdened by greater debt while enjoying lesser employment opportunities. 

The question is excellent. The answers raise only more questions, which is a sure signal of a line of inquiry worth pursuing.

I offer three responses. There are more possibilities. These are three explanations about the structure of legal education and individual institutions that ought to provoke discussion. I am among those who doubt that the current model of legal education can, much less should, continue as is. But change is more difficult to implement than imagine.

The first answer is that the common question states a false premise. Law schools are not exactly the same. They are very different. They merely happen to look the same. But once you know what to look for, you realize they are not at all alike. The same is true, incidentally, of liberal arts colleges and research universities that ostensibly compete with one another, including across that division, as peers.

The most obvious difference, once you glance below the surface, is between the ninety-plus percent of law schools that are embedded and the less than ten percent that are independent. It is the fiscal, not the physical, distinction that counts. 

Some schools that are embedded, such as Georgetown, Northwestern, and Howard, have their own satellite complex miles from the main campus. Despite the separation in space, the head of that school reports to a central administration, and, what matters more, the operation has at least some budgetary relationship to the parent entity. If these were corporations, the law school would be a subsidiary or a division, depending on the exact details of the arrangement. 

The benefits are substantial, ranging from economies of scale to a direct monetary subsidy. A law school that relies on a main IT office, for example, is able to share costs with its sisters, the medical school, business school, and an undergraduate college. The same utilitarian analysis applies to the whole infrastructure, from security departments and maintenance crews to the health center and the newly established sexual assault prevention program.

A handful of schools, in contrast, stand alone. The model was more common when they were founded more than a century ago. There were, and still remain a very few, schools in other professions that are dedicated only to that field, such as architecture or pharmacy. The relative paucity suggests a problem with such autonomy. Everything is more expensive on a per capita basis. The executives, for example, serve fewer stakeholders. 

A law school facing such challenges can affiliate. I previously headed a school, UC Hastings, that has its own legal identity, governing board, state appropriation, and budget. But it also has extensive interaction with the University of California system, despite not falling under its formal aegis, and it has sought to develop even more relationships. That is commendable, because it reduces the costs that must be passed onto students.

Yet law schools that are embedded and law schools that are independent compete with one another. Either can be excellent. 

Even among embedded schools, the range is enormous, in terms that hardly matter to anyone but the respective management teams. Of greatest significance in the ongoing contest, they have endowments that span more than an order of magnitude, especially proportional to enrollment. As with other ventures, some perform better than what would be predicted by their money; others, not. There is no adjustment to their output, accounting either for the inputs or the resources brought to bear on the educational process.

To the public, including prospective students, they are the same. It is in nobody’s interest to point out the substantial structural variation.

The second answer, addressing the crux of the concern, is that in a sense law schools do not in fact compete in the same marketplace. Law school tuition does not correlate to rank. 

The reason that school X, ranked not so well, can bill its incoming 1L as it if were school Y, ranked at the apex of the hierarchy, is that literally nobody is considering both school X and school Y. There is not a giant, open public square with vendors hawking legal education to all comers. Schools are selective. Their admissions standards vary considerably. That creates a series of sub-markets. Each is separate.

In other contexts, people cross-shop if they have the financial means to do so, and such cross-shopping is limited only by their bank account. A consumer test drives a BMW, Mercedes, and Audi, if she wants a German performance sedan and can afford it. She has the freedom to choose. She is not precluded from one brand. Unless she has peculiar tastes, she does not look at advertisements for a used Yugo (that is, if any remain on the road) and a new Lexus. The former costs a fraction of the latter. The prior owner might even pay to have it towed away. 

But accepting schools to be ethical, a would-be law student who has the bank account cannot purchase a seat at the most exclusive school even if she tried. She must pick from the options available to her on the basis of her credentials. Some students turn out to be surprised: they are allowed a BMW, but not Mercedes; or they may have available any of the luxury marques, but not the relatively downmarket Volkswagen, due to the vagaries of admissions decisions.

Each year, law school deans are issued a report showing the “overlap” of their institution with its rivals. It tracks admittees in the aggregate, displaying the number who prefer X to Y. The document is confidential and proprietary; each dean sees only her own head-to-head performance against others, and nobody has access to the complete picture. It is possible to draw inferences though. To begin with, almost all of the law schools in America compete meaningfully with none of the others or only a few. Stated positively, each law school competes with only a compressed range, either in its band of rankings or geographic area or both. Hardly anybody simultaneously applies to, say, Florida, Nebraska, Oregon, and Connecticut, or even any two of them. In most match ups, one school crushes the other school across town. Nine out of ten would rather X over Y.

As a consequence, the Yugo-equivalent law school can demand the same tuition as the Lexus-counterpart law school. The students considering the Yugo likely are looking exclusively at other Yugos — perhaps a Pinto or Vega. (People snickering at the comparison of law schools to rust-ridden lemons produced by the Soviet Bloc should be aware the metaphor is quite unfair, because law schools of disparate reputations are much more similar than might be supposed, except for the qualifications of incoming students. In other words, any disdain for School X conceals contempt for its hard-working students.)

The third answer is rankings. But rankings not as is assumed, as if rankings are to blame for everything. Whatever one believes about rankings, it is foolish to doubt their influence. Regardless of any normative opinion as to rankings being good or not for society or students, among the effects of any regime of metrics that gains hold is to set incentives and generate competition, along the lines it defines. Any rating by its nature compels those unable to opt out to perform according to that scale rather than any alternative. That’s the point.

So if you are a law school dean, you play the same game as the next law school dean. It’s the only game in town for law school deans. Creativity is constrained.

All along, there has been an aspect of law school rankings hidden in the open: its reliance on Carnegie classifications. The rankings, as is disclosed in the technical notes that readers don’t bother with, borrow the Carnegie typology. Critics have asked specifically why a law school could not be more dedicated to training lawyers and judges than to advancing theoretical research. Proposals are floated, and have been for generations, for a “clinical” law school. 

There is no analogue to the liberal arts college for legal education, because of the Carnegie system. That’s should not be taken as an attribution of fault; the designers of the system have sought to make it descriptive, but they did not anticipate how others would use it for their own purposes. The Carnegie system is the industry standard. It groups institutions of higher education according to objective factors, to allow appropriate comparisons to be made.

There are two number one schools for undergraduates (or even more if you look beyond the so-called “national” list), thanks to Carnegie. This year, they are Harvard . . . and Williams. It is not Harvard and Yale or Harvard and Stanford. And it is not a tie. It’s Harvard among comprehensive research universities with national scope and Williams among liberal arts colleges with national scope. 

Since Carnegie has created discrete categories, Harvard and Williams do not compete with each other in the rankings. There is a good rationale for separating them. They offer options for the undergraduate students. They are not structurally the same. The research university, as the name suggests, emphasizes the faculty who perform research, and it has a full complement of graduate programs. The liberal arts college is dedicated to the dissemination of knowledge, with faculty who would assert (and I would agree with them) that they too produce original scholarship of equal quality albeit in lesser quantity; it generally is devoted to undergraduates who wish to have the traditional residential experience.

Without a separate Carnegie classification for the clinical/teaching law school, akin to a liberal arts college, a school that set that as an ideal, as some have, nonetheless would be compelled to compete according to criteria designed for and favoring the conventional law school. As a liberal arts college might not fare well against a research university, or vice versa, likewise the clinical/teaching law school would not be suited for head-to-head comparison with those that cater to the rankings. 

Even a disaggregation of law schools, as is done for undergraduate programs, with “regional” as a possibility, would radically alter perceptions The schools that would suffer, oddly, are the bottom of the top ten. They would be shuffled to the lower end of the “national” and “research” scale, since none would wish to be relegated to “regional” or give up “research.”

The best questions deserve the response of another question. The follow up question is what we suppose would develop through differentiation. People who ask, “Why are law schools all the same,” might not prefer the result if law schools suddenly became different. Differentiation could increase, not decrease, stratification. 

Higher education has long performed a sorting function, though America has embraced access to higher education as a public good. Even among would-be leftists, there is tacit acknowledgment that there are “public Ivies.” They start their students on a track of social mobility or enable them to maintain their socioeconomic status.

Different inevitably comes to connote “better” and “best.” A landscape with law schools that were all the more clearly different might well contain law schools that are the more clearly exclusive. They probably would once again converge toward a norm anyway.

I wonder if our anxieties about legal education reflect much more. Perhaps they are about the structural change of the global economy, accelerating further into competition and change, creating uncertainty about which strategies will be successful, upsetting our expectations about winners and losers.

This essay originally appeared on The Huffington Post.