[Andrew Morriss (guest-blogging), August 16, 2005 at 3:40pm] Trackbacks
State supported law schools:

A comment on one of my earlier posts raised the question of what business state law schools have in attempting to increase rankings. This raises a couple of interesting questions, about which I wrote an op-ed several years ago:

1) Why should states have law schools at all? If there is a desire for more lawyers in a state, funding a state law school (esp. a prestigious one) is not an efficient means of getting them. In Ohio, for example, Ohio State touts the opportunities for its graduates to get jobs across the U.S., not just in Ohio, after graduation. Clearly not aimed at maximizing the number of new lawyers in Ohio.

2) In a state like Wyoming or Idaho, where there is only a state law school, there might be a case that having a state law school is useful to the state because it creates a body of legal scholars who can help with law reform (Prof. Dale Goble at Idaho, for example, played a key role in reforming that state's administrative law.) But is establishing a law school the best way to do even that? Alaska has no law school - but it does have a law review (the Alaska Law Review) which it contracts out to a law school elsewhere. Isn't that a more cost-effective means of getting scholarship on Alaska law than setting up a law school?

3) Another justification is that state law schools help state residents go to law school by offering cheaper tuition. Again, however, there is no reason to do this via a state-operated law school. Vouchers for an appropriate tuition amount could be offered state residents and used at any law school if a subsidy is the motive. Vouchers would be more flexible as state resources expand and contract, since in tight budget years new vouchers could be cut in size or number. (Existing students presumably would need to be protected.) Operating a law school, on the other hand, is a lumpy financial commitment.

4) A fourth justification is that the poor, criminal defendants, or some other group need more representation. Again, however, subsidizing all graduates of a state law school because some might go into the desired field is an inefficient use of resources. Various medical scholarship programs already demonstrate how to do this effectively: give a scholarship that converts to a loan if the student doesn't practice in the desired area or type of practice.

So, why have state law schools at all?

Note: I completely exempt from the above my alma mater, the University of Texas at Austin. UT receives relatively little of its funding (I believe less than 25%) from Texas and has, like many flagship universities' law schools, changed into something other than a pure state law school. This exemption is self-interested, of course. Ohio State doesn't get an exemption because my employer competes with it. Self-interest again.

UPDATE: George Mason is, of course, also exempt from criticism since it is something of an admission against interest by the state - funding a law school that generates graduates who understand economics and faculty who publish scholarship that advances liberty is sufficiently rare that they should be the last ones cut off from the state trough.

UPDATE #2: Uh, the "disclaimers" were supposed to be humorous.

Donald (www):
Generally, a reason to eliminate government-funded services/institutions is because they are inherently less efficient at performing their functions than the private sector is. But that doesn't seem to hold true for law schools: using your examples, Ohio State ranks ahead of Case Western, and Case Western is not very far ahead of Cincinnati (using US News and World Report rankings). And other private schools, such as Ohio Northern and Capital, fall well beneath either OSU or UC in the rankings. So it seems that--at least in Ohio--the state is performing an important function and doing an equal or better job of it than private competitors.

Having state law schools certainly allows entry into the market by more individuals. If the state were to offer a voucher program, as you suggest, the money that would be offered would be so diluted as to be trivial. (Example: Ohio disbands all of its public law school and distributes the money used to fund them amongst all law students who reside in the state. The per-student voucher would be far less than state currently spends per-student for state-operated law schools, as it would be distributed amongst all students, not just those attending law schools at public universities. Thus, the voucher makes a difference for fewer people than does the direct funding of law schools.) The reduction of financial barriers into the legal profession is reason enough for state law schools exist, assuming that are doing an adequate job of "creating" lawyers.
8.16.2005 5:06pm
AST (mail):
Methinks your exemptions are swallowing up your rule. How could any bureaucrat or law school administrator be expected to draw the distinctions or fashion a workable policy from them?

I think you make a good case that law schools are little justified as a wise use of the public's money, but I'm not sure the same arguments wouldn't apply to just about every field taught by universities. Maybe land grant colleges and universities should be abandoned altogether, especially when they have become havens for frauds like Ward Churchill and politically and ideologically undiverse as most are today. Universities used to be places of free inquiry and tolerance of different views. They could be again, I suppose, but if that is to happen they are going to have to deal with
speech codes, radical feminism, radical "gender studies," and minority studies departments who are hostile toward traditional values and intolerant of any questioning of their new orthodoxy.
8.16.2005 5:10pm
Shelby (mail):

You're assuming that the purpose of a law school is to rank high in the USN&WR rankings. Or, more plausibly, that those rankings acccurately capture all relevant aspects of what differentiates law schools.

1) A school may choose to emphasize, say, public service law at the expense of matters that weigh more in the rankings.
2) A school may focus on areas that will ultimately improve the school's ranking but don't help much in the short term -- e.g. cultivating new faculty it thinks will improve the school in coming decades.
3) Higher rankings do not mean greater efficiency. A gold-plated public law school could easily be funded far more lavishly than a given private school, enabling it to spend more on things that will pull up its rankings.

This is hardly exhaustive, but plainly USN&WR rankings don't tell us much about individual schools. They MAY, however, tell us something about the aggregate: for example, what % of the top-quartile schools are public? Bottom-quartile?
8.16.2005 5:16pm
frankcross (mail):
It's a question that surely applies much more broadly than to law schools. Indeed, it probably applies a little less to law schools. State law schools typically have some professors who are directly helpful to state legislatures and even the judiciary, in a bow to state funding, more than private law schools.

The general case for state education is that it provides an externality benefit. While much of this is lost out of state, the state captures a good amount of it. And there is some reciprocal benefit from other state law schools. While this could be captured by vouchers, the transitional transaction costs would be pretty great, probably creating an efficiency loss much greater than efficiency gain.

And there is an amorphous "pride" benefit. You see this most obviously in connection with rooting for state U. sports teams (which doesn't apply to law schools), but I think it applies in academics too. State residents take pride in academics, too, though to a lesser degree.
8.16.2005 5:22pm
Perhaps this isn't true at most schools, but at mine, it is constantly said in idle conversation that the law school is a profitable enterprise for the university and that it provides funding to the other schools. One of my best friends is in medical school, and I occasionally joke that my tuition bought her cadaver ( I realize that cadavers are probably not "purchased" in the same way that a school would purchase an X-ray machine, but the substitution wouldn't be quite as humorous )

In effect, the law schools bring in more in donations, grants and tuition than they are forced to spend on salaries and resources.

If this is true, why shouldn't every state have a law school?

Of course, if this is false then Mr. Morriss's very interesting question remains.
8.16.2005 5:23pm
NaG (mail):
Actually, George Mason's law school is now turning out more new Virginia lawyers than any other law school, even University of Richmond. So George Mason is truly becoming the source of Virginia lawyers these days.
8.16.2005 5:23pm
jallgor (mail):
One reason might be that a state would not only like to provide an opportunity to its citizens but it may want to have some control over the nature of that opportunity. A voucher system would send your state's future lawyers off to be schooled at a place that you have no control over. Also, many state schools really cater to the local market. Despite Ohio's boasting to the contrary, I can tell you that after 8 years of practicing law in NY I have never met a Ohio State Law graduate here in NYC. But when I use local counsel in Ohio the Ohio State grads come out of the woodwork.
There are really very few schools that routinely place their grads across the country. Even a state school like UCLA (where I went) doesn't exactly send its graduates far and wide. If I had to guess I would say 75% or more of state school grads practice in the state they went to school.
8.16.2005 5:37pm
Michael Krauss (mail) (www):
Don't forget that other important function of a state university in general (and of state law schools, in particular): they increase real estate values in upper middle class areas when they achieve high USNWR status.

As the upper middle class gets priced out of aristocratic climes, they find in-state 1st tier schools irresistable. The state subsidy gets capitalized into the value of their homes, since they (not the toiling masses) are the ones admitted to the elite state schools. Thus the upper middle class is able to internalize this subsidy from the working class, whose progeny (if they are lucky) get into the state's 2nd and 3rd tier schools.
8.16.2005 5:37pm
Many state law schools do a darned good job of educating their students. Often, state schools are considered "better" than their private cohorts. Yes, in theory, vouchers would provide similar subsidies, but why mess with something that works?

And what's the proposed solution? Close the state school? Sell the state school? To whom? Why would we think the buyer would do a better job?
8.16.2005 6:21pm
chsw (mail):
While most commentators address the main points of Morriss' blogpost, he touches on something that must be addressed. OSU Law is encouraging its graduates to leave Ohio. Why? a) Because there are diminishing societal returns after achieving a certain number/percentage of lawyers in the population. b) Because increases in the number of lawyers beyond a certain number/percentage of the population diminishes the returns from the practice of law. These are not mutually exclusive, nor would they be expected to progress at the same rate.

There is an economics paper there. Someone should research it. Perhaps a grant can be scored from a law school if part of the paper ranks metro areas by regionally-deflated returns to law practice.

8.16.2005 6:24pm
Hattio (mail):
What about having attorneys who are familiar with that state's laws? I know everybody is assuming that there would be a private law school within the state, but that isn't always the case. Look to Alaska. I know I had to go out of state to Illinois (I'm from Alaska). Not only did I waste a lot of my time learning Illinois state law because many profs required it, I knew virtually nothing of Alaska specific law except what I'd researched on my own. Granted, attorneys quickly become used to the relevant cases etc. But I can't help but imagine it was a quicker adjustment for my classmates who stayed in Illinois. Especially considering that many new graduates start out in state service, either as law clerks, or at the prosecutor's or PD's office. Wouldn't it be a good thing to have these folks more familiar with Alaska law than Illinois law (or wherever they went to school)?
8.16.2005 6:31pm
Shelby (mail):

c) because if OSU is perceived as producing lawyers who can readily go anywhere in the country, that makes it more attractive to potential students, compared to other Ohio schools that implicitly will leave you chained to the Ohio bar.
8.16.2005 6:35pm
Doug Collins (mail):
Perhaps state law schools, or at a minimum state law libraries, can be justified as a necessary resource to the people of a state.
After all, lawyers exist for the benefit of the populace, not the other way around.
8.16.2005 6:44pm
Ari Indik (mail):
This is one of the arguments made by Justice Thomas in his dissent in Grutter v. Bollinger. "Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school."
8.16.2005 8:27pm
arbitraryaardvark (mail) (www):
Cronyism, patronage, institutionalized graft. Law schools are a good place to park campaign staff between campaigns. Welfare for the rich. More importantly, it's a place for the thought police to vet potential lawyers. State constitutions are radical documents, offering liberty. That is offset by a class of bureaucrats, cynical guns for hire who know their oath to the state constitution is a sham. Some of these grow up to be legislators, who "generously" increase funds to their alma maters, perpetuating the cycle. Others trade in political capital, as lobbyists and litigators under sundry lawyers' full employment acts.
8.16.2005 10:35pm
Joe Goldberg (mail):
I was born and raised in Alaska. At the time of my graduation from a California undergraduate school (1974) I began looking for a law school. No law school in Alaska. At that time Alaska had a program, WICHY(ph), which provided financial assistance to Alaska residents who attended law school. The state assistance paid the difference between in-state and out-of-state law school tuition. I graduated from California Western School of law (1977) and clerked for an Alaska Superior Court judge after graduation.
8.16.2005 10:35pm
Hattio (mail):
Joe, Unfortunately WICHE was gone by the time I went to Law School. Are you practicing in AK?
8.16.2005 10:40pm
Christian Johnson (mail):
Nebulous as it may be, an important additional justification for maintaining a state law school is that law schools are a fundamental constituent of a viable state legal culture, and some states are too small to support a private school. For Alaska, geographically isolated and relatively wealthy, this may not be much of an issue. But for North Dakota, about half of whose population lives within 20 minutes of Minnesota, it is. Even wealthy, populous New Jersey finds itself in much the same position as Poland under the Molotov-Ribbentrop Pact, and although perhaps Seton Hall could fulfill this function on its own, the two Rutgers law schools certainly help.
8.16.2005 11:16pm
Phil (mail):
jallgor is probably more correct than is apparent.
As fas as I can determine, having worked as an attorney in five jurisdictions (VA, DC, IN, OR, and CA), most law grads (not just those from state schools) end up working within a (short) days drive of the law school they attended. Notre Dame grads may ot end up in Indiana, but they certainly flood the Chicago firms. UW grads flood Portland and U. of Oregon returns the favor in Seattle. Of course, this is not simply a placement issue as many people pick a law school where they actually want to live.
It does make me wonder if the public law school thing matters much once that geographical preference is factored out: do UI grads really pursue Illinois jobs more than IU grads?
(This might matter when a state is deciding the extent of funding to its already existing law school.)
If there is any serious social science research on this I would love to get a link.
8.17.2005 5:05am

What about having attorneys who are familiar with that state's laws?

Learning local law is generally not the purpose of law school. Attorneys learn local law while studying for the bar exam and on the job. Law school is too short to give law students both a general understanding of legal theory and a specialist's knowledge of local law.
8.17.2005 6:51am