No More Adventures in Perverse Incentives Please

Ari L. Kaplan, “Applying the alternative fee model to law school tuition,” in the National Law Journal

The tagline to Kaplan’s editorial reads, “The time has come to talk more openly about the cost of legal education.”

I guess no one’s had that idea before. He continues:

“I don’t mean cheaper, I mean different. My suggestions … are not driven by performance, where schools persuade underperformers to leave, but rather by student preference, where those who find they lack the passion to continue have a realistic choice to walk another road.

Instead of starting the shift by making law school cheaper, consider restructuring the payment schedule.”

Kaplan suggests that instead of dividing law school tuition evenly by year (he doesn’t discuss the tuition bubble), law schools should backload their costs: make the first year cheap and the next two years more expensive to compensate. He contrasts his proposal with that of Ahkil Reed Amar and Ian Ayres that Slate published recently; the two Yale professors recommended that law schools give partial refunds to students who choose to drop out after their first years.

I wasn’t thrilled with Amar’s and Ayres’ proposal, and as you can imagine, I find Kaplan’s even less appealing. To begin with, he touts, “This proposal neither results in any loss for the school, nor makes a J.D. degree more expensive.” I certainly hope he’s not proposing a net increase in price, but I suspect Kaplan thinks universities’ interests need to be accommodated for the sake of fairness. However, universities aren’t deserving of fairness (at least in this sense). To them, law schools are risk-free ways to make money. As a result, they have every incentive to entice and enroll as many students and take as much from them as they can without looking greedier than their peers. Any proposal that does not discuss law schools taking on more financial risk along with cost and system-wide enrollment reductions does not result meaningful fairness.

More subtly, Kaplan’s proposal, like Amar’s and Ayres’, assumes that what goes on in the first year of law school should crucially influence career outcomes. They believe everyone who performs poorly on law school issue-spotters will naturally enjoy practicing law less or won’t be as good at it, so either give them a refund if they choose to leave (Amar and Ayres) or give them the arm-over-the-shoulder treatment, “Law is not for everyone, but, you know, the choice to continue is really yours to make…” (Kaplan). Whether law schools should be accepting people they know won’t do well, or will hate law, or won’t be employed isn’t up for discussion. In this sense, there isn’t a real difference between the two proposals: all believe that what happens in the first year of law school is and should be indicative of success after graduation.

In contrast to this view, given the endless criticism of legal education as not preparing graduates for practice and the curved grading scales that reward efficient studying to beat one’s classmates over competent understanding of the material (to the extent it’s relevant), emphasizing the impact of the first year is actually one of the bigger flaws in legal education. Indeed, legal education generally needs to be more relevant not merely to what lawyers do but to what law students want to do as lawyers, and it has to recognize and accommodate students with high potential but longer learning curves. Neither proposal addresses this.

Instead of thinking up better gimmicks for discouraging the “wrong people” from continuing, we should reject the ideology that people should pay for education to fulfill career (or class) goals while letting the economy dictate whether they can meet those goals. In other words, no matter how much some people might want to be professionals, even if they don’t articulate clear reasons for wanting to be, there’s no point in training them if we know beforehand that there’s a good chance they can’t get the kinds of jobs they do want or do get the kinds of jobs they later find out they don’t want. It would be better to require applicants to already have experience in the legal profession doing what they want to be doing than handing them diplomas and telling them they should move to Omaha if they didn’t get the jobs they wanted. This way, law students wouldn’t be gambling with loan dollars, their time, and their life expectations, even if it’s just for one year and a few thousand dollars.

Finally, shifting the cost distribution of legal education to the backend is, well, backward. By making the first year cheaper, more people will apply to law school to “test the waters,” even though Kaplan explicitly argues his goal is to discourage people who aren’t passionate about The Law from applying. Similar to Amar’s and Ayres’ proposal, we might expect this to backfire by encouraging applicants—many of whom we know will drop out—to both spend a year of their lives taking on debt (even if it’s small) for a year’s worth of education that’s of questionable value and reinforce this ideology that education creates jobs. These are some of the biggest problems with legal education and Kaplan’s proposal only amplifies them.



  1. Matt, sorry to be off topic but I could not figure out how to email you.

    Good evening, I am a 2011 graduate of a Midwestern T4.  I recently received my first email soliciting my employment status and a thought occurred to me.  As a longtime follower of the law school scam blog movement, I have heard much of the distortion of employment statistics, in part, because only winners are reporting their salaries.

    Given the increased attention the various blogs have received in the past year, why not post, and encourage other in the blog movement to post, encouragement for 2011 graduates to contact their schools and provide all of the information we would like to see the schools be required to collect and publish? (at least those of us who are transparency oriented)

    I am planning on sending this suggestion out to other blogs. Let me know what you think.


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