What Should Law Schools Maximize, and Who Decides?
Bill Henderson, concluding an informative post on the bubble in higher education debt, writes:
“The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing. The financing has to incentivize educational productivity — i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation. No more $100,000 checks from the federal government for sorting students by standardized test scores. Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level. How many of my fellow law professors grasp the depth of our problems? Not enough.”
As often with Bill’s work, there is much to chew over. In particular, I’m curious as to how Bill would operationalize the phrase “better skills and learnings as measured by marketplace earnings and innovation.” That sentence might be read to mean that we should loan money to schools that produce graduates who earn the most money and/or those whose graduates “innovate” the most. (Or maybe it is marginal returns against the graduate’s pre-enrollment baseline?) Though teaching a graduate how to innovate and enabling them to make more money are both excellent goals, they strike me as an oddly narrow set of maximands for a professional school, let alone a university. And it’s not obvious to me that they correlate well with social welfare. (LLSV, after all, suggest that legal culture and the rule of law have important economic growth consequences: returns to individuals lawyers aren’t on the LLSV variable list!)
This maximization question is tied up in a bigger one: who decides? Unlike Bill, I’m not an “unapologetic New Deal Democrat,” as I’m not sure that history has been kind to its central planners. Why, given the generations long failure of the Department of Education to come up with useful standards by which to measure the success of primary and secondary education, would we think that the government is suddenly going to be any good at coming up with standards measuring law schools’ success at achieving “better skills and learnings”? Or the ABA, which is hopelessly compromised by its (real and important) mission of protecting incumbency? Orienting the debt question around “who will be the gatekeeper” is useful because there are literally only a handful of examples of private organizations setting quality control standards that stick.
Perhaps Bill knows this. And perhaps the real answer to the debt/cost problem is to end federal involvement in educational finance altogether, which, when put together with Tamanaha’s de-accreditation proposal, would result in truly radical change. Unfortunately, the only people I’m certain would benefit in such a winner-take-all & unregulated environment would be those at the very tippy-top of an increasingly steep pyramid. That’s not to say that ending both subsidy and accreditation is a bad idea, nor that the current system isn’t a festering mess. Indeed, maybe we can tax the winners and compensate the losers, as the first generation of legal economics was always promising us would happen…sometime!