Acad. Quest.

(2011) 24:167–171
DOI 10.1007/s12129-011-9220-4
H A R D C A S E S : A M E R I C A’ S L AW S C H O O L S

The Coming Law School Bubble

Michael I. Krauss

Published online: 20 April 2011

# Springer Science+Business Media, LLC 2011

A man who has described himself as a constitutional law professor at the

University of Chicago is now president of the United States. Another law
professor, Cass Sunstein, is one of his chief advisors, while a third, Elena
Kagan, has been appointed to the Supreme Court. One might think these are
fat years for legal academe. But as in the story of Joseph, these fat years may
portend an impending crisis. Market forces and internal law school policies
may be combining to produce a legal education bubble the likes of which the
country has never seen.
Consider the following facts.

Ideology

In July 2010, research by Douglas Spencer and James Phillips at the

University of California at Berkeley examined 149 entry-level, tenure-track
hires made during 2005, 2007, and 2009. Spencer and Phillips assigned a
measure of ideology for each hire, based on political donations, Facebook
profiles, work experience, publications, and the political party of the
president who appointed any federal judge for whom the professor had
clerked. New hires easily identified as liberal far outpaced those who were
very clearly conservative. Spencer and Phillips determined that of
identifiable hires, 87 percent were liberal and 13 percent conservative—a
ratio that “doesn’t speak well of intellectual diversity in American law

Michael I. Krauss is professor of law at George Mason University School of Law, Arlington, VA 22201;
mkrauss@gmu.edu. His most recent book is Principles of Products Liability (West, 2011).
168 Krauss

school hiring.”1 Conservative law professors may be more discreet about

political leaning early in their careers, Spencer and Phillips found. They
concluded that “the extreme discrepancy between the proportion of new
professors who can be clearly identified as liberal or conservative indicates
either unequal hiring patterns or environments less conducive to openness
and debate in the law school setting.”2 They noted the recent praise given
Justice Kagan for increasing the political diversity of the faculty while she
was dean of Harvard Law School: of thirty-two tenure-track hires she
made, three were openly conservative. In fact, it is likely that this ratio (10
percent) did increase the political diversity at Harvard.
Forty years of politicized hiring have arguably had an effect on legal
academe’s institutional structure. My friend Steve Bainbridge, of UCLA
School of Law, had this to say about our professional association, the
Association of American Law Schools (AALS):
Although I used to attend them regularly, I don’t go to the annual
meeting of the Association of American Law Schools very often any
more. Why? Because they suck, as does the organization itself. It’s not a
learned society. Instead, it’s basically an association of left-liberal
busybodies who care mostly about two things; to wit, (1) maintaining
their cartel and (2) politically correct, multicultural identity politics.3
The AALS does not allow the conservative Federalist Society (full
disclosure: I’m a Federalist Society member and frequent lecturer) to sponsor
panels at its annual meetings, or even to meet in the same hotels as the
AALS. AALS official positions include the following:
& In 1990 it banned “discrimination based on sexual orientation” in all
member law schools, which had the effect of requiring law schools to ban
military recruiters.
& It then opposed the 1996 Solomon Amendment,4 the validity of which was
unanimously upheld by the United States Supreme Court. (Full disclosure: I

1
Douglas M. Spencer and James C. Phillips, “Ideological Diversity and Law School Hiring,” (unpublished
manuscript, July 2010); abstract available at http://works.bepress.com/dspencer/4/.
2
Ibid.
3
Stephen M. Bainbridge, “AALS: A Learned Society or a Bunch of Left-Liberal Busybodies?”
ProfessorBainbridge.com (blog), January 5, 2010, http://tinyurl.com/6dfw2a2.
4
The Solomon Amendment is the popular name of 10 U.S.C. § 983, a statute that allows the Secretary of
Defense to deny grants (including research grants) to institutions of higher education if they prohibit or
prevent ROTC or military recruitment on campus.
The Coming Law School Bubble 169

was one of several co-authors of George Mason Law School’s amicus

curiae brief defending the constitutionality of the amendment. George
Mason’s was the only brief claiming the amendment was valid—we were
opposed by dozens of other law schools.) To repeat, the Supreme Court
decision upholding the amendment was unanimous.
& It opposed California’s Proposition 209 as well as other challenges to
mandatory racial preferences.
& It insists on racial and gender diversity in selecting speaker panels at its
meetings, while ignoring intellectual diversity. I once attended a hilarious
session of the Section on Jewish Law at an AALS annual meeting. One of
our speakers was an African American labor lawyer. He apologized that his
talk had nothing whatsoever to do with Jewish law. Why was he there?
Well, the section was not allowed to hold a session at the annual meeting, its
chair explained, unless at least one speaker was not a white male.
& It insists strenuously on preferential admissions and hiring for all groups
except white males. Accreditation pressures lead even the most conservative
schools to employ race- and gender-biased standards for admission.
Diversity of viewpoints on this issue is not tolerated.

Finances

Law students are now routinely graduating with student loan balances of
$200,000 or more. My friend Christine Hurt, who teaches at the University
of Illinois, analogized law school attendance and pricing to the national
housing crisis in an April 2010 blog posting:
Just as something about home ownership seemed intrinsically good, so
did getting a law degree, from any law school. Strangely, most law
school educations were priced similarly. Law schools with lower
employment rates charged more money than some schools with higher
employment rates. Price was not a clear signal of quality. Anyway, more
and larger houses were built; more and larger law schools were built.
Then, as if on a dime, the world changed and all of a sudden lots of
people with law degrees were getting laid off, deferred, ignored.5

5
Christine Hurt, “Minding Our Own Business Forum: Bubbles, Student Loans and Sub-Prime Debt,” The
Conglomerate (blog), April 19, 2011, http://tinyurl.com/2a648p9.
170 Krauss

Law schools may be puffing their product so deceptively that they violate
consumer protection laws. Bill Henderson, professor of law and director of
the Center of the Global Legal Profession at Indiana University, found that
the number of law schools claiming that 95 percent of their new graduates
had jobs nine months after graduation rose from 26 percent in 1997, when
the nine-month employment data was added to the U.S. News & World
Report rankings, to 92 percent in 2010.6 This “creative accounting” includes
students actually hired by their own law schools (who often offer temporary
jobs to unemployed graduates precisely during the crucial U.S. News ranking
period). Kyle P. McEnte, co-founder of the website Law School Transpar-
ency, found that one school claimed a $160,000-median salary for graduates,
though that amount was earned by as few as 8.2 percent of graduates. Low-
salary grads are not encouraged to list their salary, so the reported “median”
turns out to be quite a bit higher than the real median salary. I teach at a top-
tier law school, and can attest that some of my best 2010 graduates are
working at legal “temp” firms for hourly wages with no benefits. “If you
don’t do [creative accounting], you’re a chump,” Prof. Henderson noted on
the Shilling Me Softly blog.7

Quality of Education

Law students may be paying a lot for an education that doesn’t bring them
the financial rewards needed to repay their debts, let alone allow them to live
in the manner to which they hope to become accustomed. But is their
education at least appropriate to the profession to which they aspire? In a
word, it is not, according to Educating Lawyers: Preparation for the
Profession of Law, an influential 2007 study by the Carnegie Foundation for
the Advancement of Teaching.8 Carnegie, whose analysis revolutionized
medical education in the twentieth century, was very critical of the nation’s
law schools. To quote the study’s authors: “Unfortunately, despite some very
fine teaching in law schools…they fail to complement the focus on skill in

6
Don J. DeBenedictis, “ABA Seeks More Law School Transparency,” LA Daily Journal (subscription
only), reproduced in Shilling Me Softly (blog), December 29, 2010, http://tinyurl.com/6k8wbw3.
7
Ibid.
8
William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, and Lee S. Shulman , Educating
Lawyers: Preparation for the Profession of Law (San Francisco: Jossey-Bass, 2007). For another view of
the Carnegie study, see “Bricks without Straw: The Sorry State of American Legal Education,” by Charles
E. Rounds, Jr., in this issue.
The Coming Law School Bubble 171

legal analyses with effective support for developing ethical and practice
skills.”9 The authors found that law schools give only casual attention to
teaching students how to use legal thinking in the complexity of actual law
practice. Even in the first year of law school, when the education is generally
of very high quality, non-judgmental positivism reigns supreme and students
are often warned not to let ethical concerns or natural law doctrine “cloud
their legal analyses.”10
Many law professors, unlike their medical school counterparts, actually
disdain practicing their profession, and an increasing number have never
practiced law themselves. Discussion of controversial legal-moral issues such
as abortion and affirmative action is rare as hen’s teeth at law school.
Environmental law courses almost never incorporate economic insights into
the ecological impact of implementing and protecting property rights. Tort
law classes often routinely assume that corporate defendants are culpable.
And constitutional law courses often proceed in total ignorance of the
teaching of the Founders, and in disdain of the notion of originalism.11 (Full
disclosure: George Mason Law School is a notorious exception on all
counts.)
So there you have it. Are you an undergrad, or the parent of an undergrad?
If so, realize that two hundred accredited (and many more unaccredited)
American law schools vie for your patronage. Most of them will provide an
expensive and politicized education at a high price that you may never
recoup, in support of a profession that may be in existential peril.

9
The Carnegie Foundation for the Advancement of Teaching, “Carnegie Examines the Education of
Lawyers and Calls for Change,” news release, January 2007, http://www.carnegiefoundation.org/press-
releases/carnegie-examines-education-lawyers-and-calls-change.
10
Ibid.
See the discussions of originalism in this issue: “The Growth of Originalism,” by Robert H. Bork and
11

“Originalism in the Classroom,” by David F. Forte.