The "gainful employment rule" and nonprofit law schools

Today the New York Times published an editorial calling for the federal government to apply the "gainful employment rule" (GER) to all law schools, not just the for-profit schools to which the GER currently applies.  The GER requires that schools whose students receive certain federal tuition loans demonstrate that their graduates are achieving "gainful employment."  Gainful employment is measured by comparing graduates' debt burden to their annual income.  Under the GER, "a program would be considered to lead to gainful employment if the estimated annual loan payment of a typical graduate does not exceed 20 percent of his or her discretionary income or 8 percent of his or her total earnings."  (This quote comes from the Obama administration's press release announcing the policy.)  As that press release notes, "[p]rograms that exceed these levels would be at risk of losing their ability to participate in taxpayer-funded federal student aid programs" -- that is, their students would not be eligible for federal loans.

The basic idea behind the GER makes sense.  Without the GER, schools have an incentive to sell more education, at higher prices, without worrying about the market value of that education to the students who are purchasing it.  Government tuition loans increase demand for higher education in the same way home loans increase demand for nonrental housing:  they make it possible to purchase the product for the large majority of people who cannot pay for it in cash.  This increased demand creates an incentive for the seller (the school) to provide more of the product (that is, to admit more students) and to charge a higher price for it.  And, since the costs of the loans are born, not by the schools, but by the students (in the form of interest) and the lenders (in the form of default costs), there is no countervailing incentive for the schools to reduce their tuition (thus reducing the amount of interest students pay) or limit the supply of their product (thus reducing competition among holders of JDs, increasing the chances that any given graduate will get a job, and reducing loan default rates).  The GER supplies these countervailing incentives, giving schools a powerful reason to control costs (as a way of limiting student indebtedness) and to limit supply (as a way of increasing each graduate's chance of gainful employment).

Applying the GER to for-profit law schools is necessary -- inarguably so, it seems to me.  Because they are almost entirely market-driven -- their need to satisfy accrediting organizations (principally the ABA) being the only significant exception -- for-profit schools have very weak existing incentives to control costs or limit supply.  Theoretically the market itself would provide these incentives:  prospective students would not be willing to go deeply into debt in return for a relatively low chance at a decent-paying legal job, which is what graduates of for-profit schools typically face.  But information asymmetry (applicants to law school typically have less relevant information than the law schools themselves), cognitive biases, the difficulty of predicting where the market will be in three years when students will graduate, and the relatively cheap and forgiving terms of federal loans combine to distort the normal laws of supply and demand.  Many students whose prospects of gainful legal employment are dim continue to take out loans and apply to law schools, and without the GER these for-profit schools would continue to admit them in droves.

It's somewhat less clear whether the GER should apply to nonprofit law schools, which make up the vast majority of American law schools.  At least in theory -- and in my experience, in practice as well -- nonprofit law schools take seriously their status as holders of a public trust and thus at least attempt to behave in a way that is not entirely market-driven.  They consider, for example, the impact on the legal system of graduating large numbers of lawyers and saddling many of them with huge debt.  Indeed, many nonprofit law schools are public law schools, whose tuition typically is controlled by a state legislature, a public higher-education system, or some other public body.  And (at least in theory) these public decisionmaking bodies take the public interest into account in deciding how much tuition public law schools should charge.

In practice, however, the market inevitably intrudes in the decisionmaking processes of nonprofit law schools in a significant way.  Law schools have employees whose jobs and salaries depend on the economic viability of the institution.  Reducing tuition or class size means reducing the revenue available to pay these employees, requiring pay cuts or lost jobs.  (This point, by the way, often is obscured in discussions of legal education, and we ought to keep it in mind:  jobs are in fact at stake.)  It is difficult for law school deans, who themselves typically are members of the faculty, to make decisions with these drastic consequences.  At many law schools, moreover, deans cannot make enrollment or tuition decisions unilaterally:  the faculty itself often must consent (or at least advise) on enrollment, and as I mentioned above public law-school tuition often is set at the university or state level.  The fact that most faculty at most law schools are tenured complicates things further, by reducing a school's flexibility regarding the size of its work force.

These realities mean that nonprofit law schools are subject to some of the same incentives as for-profit schools:  to raise (or at least not to lower) tuition, to sell more degrees even if the legal-services market cannot support them.  Applying the GER to nonprofit law schools would countervail these incentives, probably forcing many or most of these schools to reduce their class sizes significantly and perhaps to cut tuition as well.  All else being equal, this would be a good thing for prospective law students, for the legal system, and for the taxpayers who foot the bill when students default on their federal loans.

But, as I suggested above, all else is not necessarily equal:  there would be costs as well as benefits to applying the GER to all law schools.  Significantly reducing tuition revenues means reducing operating expenses, and the largest operating expense for any law school by far is the personnel budget.  If the GER is applied to all law schools, faculty and staff salaries will be cut and people, inevitably, will be bought out or laid off or outright fired, perhaps in large numbers.  Some law schools might close altogether.  (This blog post, linked from the Times editorial, suggests that at least fifty nonprofit American law schools would fail to satisfy the GER if it were applied to them today.)  It may or may not be the case that laying off law school faculty and staff is better, as a public policy outcome, than continuing to sell many law students expensive degrees that they can't really use.  But at least we need to recognize that there is a significant tradeoff here.

We also need to recognize that there is a correlation, if far from a perfect one, between the cost of legal education and the quality of legal education.  As I discussed in an earlier post, many of the increased costs of legal (and other higher) education in recent years can be explained by very good reasons.  Law schools must hire staff to administer Americans with Disabilities Act requirements, for example, and must increase the experiential learning opportunities available to their students (which often means expanding resource-intensive live-client clinics) to comply with ABA mandates.  Law schools must employ academic support staff to enhance the success rates of students who are not well prepared when they enter law school -- not just students from underprivileged or nontraditional backgrounds but, increasingly, students from traditional backgrounds as well.  Law schools must employ career services professionals to help their students find gainful employment when they graduate.  And of course law schools must recruit and retain excellent full-time teachers who will not be distracted from their mission of education and scholarship by the need to make extra money practicing law on the side.

All of these expenditures benefit a law school's students and the legal system generally.  I think it's too early to tell what effects applying the GER to all law schools would have on these priorities, but it's at least far from clear that the effects would be entirely benign.  Which is to say that while the Times certainly is correct that the availability of cheap federally backed student loans distorts some of the key incentives in legal education, it's not obvious that the cure the Times recommends wouldn't be worse than the disease.  We simply need more data and more discussion on that question.

One final point.  The Times editorial correctly notes that there are large swaths of legal-services needs going unmet or undermet in the current system; for example, "millions of poor and lower-income Americans remain desperate for quality legal representation."  (I discussed this problem at some length in an earlier post.)  Applying the GER to all law schools would do nothing to solve this enormous social problem and might even exacerbate it:  the average annual income figures used by the GER to determine "gainful employment" are likely to be driven downward if large numbers of a school's graduates take lower-paying public-interest jobs, thus increasing the chance that the school will become ineligible for government loans.  The Times suggests providing more federal funding for legal services organizations, which would be a good start -- it would better serve the public and also create more jobs for public-service-oriented law graduates.  An even more focused solution might be to shift some federal money from general student loans (like those to which the GER applies) to public-interest grants.  Currently the Public Service Loan Forgiveness program forgives federal loans for some students who take government or nonprofit jobs when they graduate.  It might make sense to consider funding, not just loan forgiveness for students after they graduate, but also up-front tuition grants for current or prospective students who will commit to practicing in the public interest for a period of time when they earn their degrees.

My take on the Kim Davis saga ...

... in this op-ed in the Sep. 16th Baltimore Afro-American.  Thanks to the editors for printing the piece almost verbatim.

The costs (and benefits) of legal education

I was beginning to think the New York Times had tired of whacking the giant, low-hanging pinata that is the American system of legal education, but not to worry.  Yesterday came the latest blow, an op-ed by former Kirkland & Ellis partner Steven J. Harper lamenting what he sees as the continuing oversupply of newly minted law graduates.  Harper blames irrational optimism on the part of law school enrollees, the ready availability of federal student loans, and the willingness of law schools to "exploit" these factors by continuing to enroll large numbers of students at high tuition rates.  He is particularly critical of a recent ABA task force report on the financing of legal education.

Harper is right about a number of points, and his attention to the apparent disconnect between the demand for legal education (and thus the supply of law graduates) and the supply of lawyer jobs (that is, the demand for lawyers) is helpful, shifting the focus as it does from typically simplistic complaints that "law school is too expensive."  I will have more to say about this disconnect later on.  First, though, a few nitpicks about Harper's analysis.

Based on Harper's piece alone, one might get the impression that law school enrollments have steamed along at a breakneck pace over the past few years, blissfully unaffected by the stark realities of the legal job market.  Harper asserts that "law schools have been able to continue to raise tuition while producing nearly twice as many graduates as the job market has been able to absorb," and he focuses on a group of for-profit law schools owned by an outfit called Infilaw, whose graduating class size "almost doubled" between 2011 and 2014, even "as the demand for new lawyers continued to languish."  In fact, as Harper acknowledges in passing, overall U.S. law school enrollment declined steeply during this period, from about 52,000 in 2010 to about 38,000 in 2014 -- a drop of 27% in just five years.  The decline in enrollments reflects, not surprisingly, a corresponding decline in applicants to law school:  the number of individuals applying to American law schools in 2015 looks like the lowest in at least 15 years.

So potential law students are in fact adjusting their behavior in response to market conditions, in a fairly significant way.  And law schools -- rather than simply admitting less-qualified applicants to keep their numbers up -- are, by and large, reducing their class sizes, and thus their tuition revenues, accordingly.  (Among the exceptions to this trend are for-profit outfits like the Infilaw schools, which appear to have no qualms about admitting borderline unqualified students so long as they can pay the tuition bill.  But these are the unfortunate exceptions, not the general rule.)  It's therefore far from clear that the supply-demand disconnect is as severe as Harper implies.

Harper also fails to note the time-lag property of legal education, which further complicates the supply-demand picture.  It takes at least three years to earn a J.D. degree, during which time the demand for employees with that degree can rise or fall substantially.  So entering law school is a bit like investing money in oil drilling or unproven technology:  it's an inherently speculative venture that may not pan out well in the end.  It's not surprising, then, that law school applications continued to climb for a couple years after the 2008 global financial crisis before beginning their steep decline.  And despite evidence that the market for law jobs is now improving, it won't be surprising if applications continue to drop for another year or two.  Indeed, the ongoing decline in enrollments increases the chances that today's apparent oversupply of lawyers won't exist in 2019, when most of this year's entering law students will graduate.

Moreover, Harper exaggerates the oversupply problem by focusing on a single statistic:  the number of law graduates in full-time, long-term, bar-required jobs ten months after graduation.  That number, as Harper notes, was about 60% for May 2014 law graduates.  Does this mean that 40% of those graduates were unemployed ten months later?  No -- it means that 40% of them did not have jobs that (a) were full-time, (b) were long-term, and (c) required their occupants to pass the bar exam.  A close look at the data from the ABA shows that another 11% of the 2014 class held full-time, long-term jobs that were "JD advantage," meaning jobs "for which the employer sought an individual with a JD, and perhaps even required a JD, or for which the JD provided a demonstrable advantage in obtaining or performing the job, but ... do not require bar passage, an active law license, or involve practicing law."  (Examples of "JD advantage" jobs include "corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, and accountant.")  Roughly another 6.5% held bar-required or JD-advantage jobs that were either part-time or temporary.  Fewer than 10% reported being unemployed and actively seeking employment.

So Harper probably overstates the current glut of law graduates and understates the market's capacity to correct the problem.  Still, I think Harper is correct about a number of important issues.

First, even acknowledging the steep decline in demand for legal education over the past half-decade, accounting for the time-lag phenomenon, and noting the existence of many alternative law jobs, there are too many recent law graduates still looking for good jobs in the law -- a problem confirmed not just by the statistics but, anecdotally, by the experiences of many of my own former law students.  Students who have "JD advantage" jobs often wish they had full-fledged lawyer jobs -- and might have had those jobs five or ten years ago.  Too many law graduates are unemployed or underemployed in the current market.

Second, the ready availability of low-interest-rate government-backed loans for most law students, combined with some endemic market failures, distorts somewhat the demand for legal education.  Even if prospective law students acted completely rationally, they might calculate that a roughly 70% chance of a better job on graduation offsets the risk of defaulting on relatively modest loan payments.  And for various familiar reasons -- information asymmetry, cognitive bias, the sexification of lawyers in popular culture -- some (probably many) prospective students overestimate the rewards and underestimate the costs of law school in deciding to enroll.  For their part, law schools suffer no direct financial penalty when a graduate defaults on her loan, because the tuition checks have already been cashed.  So, like home sellers whose buyers take out a mortgage, they have no real incentive to ensure that the other party is making a rational decision (whatever that might mean in practice).

Third, the recommendations of the ABA task force on financing legal education are in fact unlikely, by themselves, to solve the first two problems.  The task force makes three core recommendations:  that law schools be required to provide more disclosure and "debt counseling" to prospective students than is now the case; that the ABA return to its earlier practice of collecting detailed revenue and expenditure data from law schools (and that these data be made public); and that the ABA be more accommodating of experimentation by law schools in the programs they offer.

The membership of the task force (which included the President of my University, Kurt Schmoke) was distinguished, well-qualified, and no doubt very well-meaning.  But I agree with Harper that its recommendations are disappointing.  Greater disclosure and "debt counseling" by law schools might redress some of the information asymmetry that currently hampers prospective students' decisionmaking, but it can do little about the hardwired cognitive biases that cause most law school applicants to believe they will beat the odds, or the inherently speculative nature of investing in a degree whose true value won't be evident for several (perhaps many) years to come.  Nor is there good reason to think that law schools, whose expertise lies in legal education, can become effective life coaches or financial advisors.  Attempting to fulfill that function, moreover, will require law schools to add more administrative staff, thus further driving up the costs of legal education and exacerbating one of the core problems the task force was meant to address.

The recommendation that the ABA return to collecting detailed financial data from law schools might be a good idea, but not because it will have much effect on affordability.  At the margins, having to disclose their finances might reveal for-profit law schools as the profit-maximizing factories they are, taking in as much tuition revenue as possible and spending as little money on education as possible in return.  But most law schools are nonprofit entities, and of these, many -- particularly run-of-the-mill public law schools -- are already cutting expenditures pretty close to the bone.  As the task force's own numbers show, public law school expenditures on instructional (faculty) salaries have decreased over the past decade; their expenditures on administrative salaries have stayed roughly even; only their expenditures on student scholarship grants have increased substantially.  Shrinking expenditures on instructional salaries saves costs at the expense of the quality of education, all else being equal; often these reductions are accomplished by attrition (meaning fewer teachers) or increased reliance on part-time faculty.  Administrative salaries sound like prime targets for cuts, except that (as I pointed out in an earlier post) many or most of these positions either respond to regulatory requirements (see my point about mandated "debt counseling" above) or directly help students by, for example, providing academic support for at-risk students and arranging accommodations for students with disabilities.  And the increase in expenditures on student scholarships -- a somewhat misleading trend, since these "expenditures" typically take the form of tuition discounts, that is, money that is never collected -- directly translate into reductions in what otherwise would be an even higher cost of legal education.

I should note, too, that the ABA had a decent justification for discontinuing its practice of collecting these financial data a few years ago.  The much-loathed U.S. News rankings, piggybacking on ABA-required data, used (and still use) "expenditures per student" as an important ingredient in their ranking formula.  EPS was (still is) figured by, in essence, dividing a law school's total annual expenditures by the number of full-time students enrolled.  Many schools protested (still do) that this figure is only loosely related to quality of education and thus unfairly favors well-financed elite schools (usually private) over relatively poorly financed non-elite schools (often public).  I suspect, though I don't know for sure, that the ABA's decision to stop collecting detailed financial information was motivated at least in part by this concern, and by the hope that U.S. News would follow suit and drop the EPS measure as a factor in its rankings.  This hope proved unfounded:  U.S. News still "asks" schools to provide these data (and uses them to figure EPS) even though the ABA has stopped requiring them.

Finally, there's the recommendation that the ABA become more flexible in allowing law schools to "experiment" in ways that might reduce costs.  This echoes similar recommendations by an earlier ABA task force.  There's nothing objectionable about this recommendation, as far as it goes; the problem is that it relies entirely on the law schools, not only to be willing to engage in experimentation, but actually to come up with good, workable ideas.  It reminds me of the old joke about the economist who, stranded on a desert island with an unopened can of beans, suggests that his fellow castaways "assume a can opener."  The recommendation simply shunts the responsibility for proposing solutions, perhaps unrealistically and certainly unhelpfully, onto some of the very actors who were hoping for specific guidance from the task force.

Of course, it's one thing to criticize the task force report and quite another to improve upon it; it takes a theory to beat a theory.  I don't yet have anything remotely resembling a theory of how to fix the economic challenges facing the American system of legal education.  What I have is some rough thoughts that might, with a bit more work, be assembled into the framework of a theory.  So bear with me for a moment while I work through them.

We should start with a better understanding of what exactly the problems are.  It's far from clear that we have an oversupply of law graduates, as Harper claims.  Here I'm not referring again to the nitpicks I make above regarding Harper's assumptions or methodology.  I'm referring instead to the more-significant fact that a great many legal services needs in this country are regularly going unmet, despite the apparent plethora of lawyers.  From the BigLaw perspective -- one Harper, whose former firm had the fifth highest revenues of any law firm in the nation in 2014, appears to share -- it looks like we're in the midst of a lawyer glut, with far more qualified applicants than (high-paying) legal jobs.  But things look different from other other end of the legal-services spectrum.  According to a recent article by a distinguished legal scholar and his student, "[e]ighty percent of the civil legal needs of low-income people are unmet by lawyers and forty to sixty percent of the needs of middle-income individuals are unmet."  These estimates account only for civil legal needs (e.g., landlord-tenant disputes, potential tort claims, divorces), not criminal cases, and only for individual needs, not those of nonprofit organizations or small businesses; taking account of this broader picture would surely reveal the level of unmet demand to be much higher still.  For these potential clients, there are too fewer legal services providers, not too many.  The better way to describe the problem, then, is not that there are too many lawyers, but rather that there are too many lawyers to do certain kinds of jobs and not enough lawyers to do other kinds of jobs.

Nor is it entirely accurate to say that legal education is "too expensive."  Any rational consumer of legal education (like any other product or service) would of course prefer that it come at a lower cost.  But for many law graduates, the investment turns out to be well worth it:  they end up earning far more money over their lifetimes than they would have made without a law degree, with the difference being greater than the cost of earning the degree.  Law graduates who go to work for the top "BigLaw" firms, for example, typically start with salaries well into the six figures and often retire with incomes well into the seven figures.  It would be difficult for most of these individuals to claim, when all is said and done, that their legal education was "too expensive."  Even at the more modest levels of the profession, most law graduates find steady work that they could not have found without a law degree and are able to pay off their loans on time.  Not to mention the nonfinancial rewards many lawyers find in law practice.  From the perspective of many lawyers, then, legal education cannot fairly be said to be "too expensive."

Many others, however, probably can make this claim with a straight face.  For a solo practitioner or public-interest lawyer who can barely pay off her student loans, law school might have been more expensive than it should have been.  The same might be said for a graduate who would like to take a public-interest job but takes a big-firm job instead to pay off her loans, or for a prospective law student interested in serving low-income clients but deterred from applying to law school by the inevitable debt burden.

Ultimately the question whether legal education is "too expensive" is a public-policy question that has to be answered by reference to the common good, not the needs or desires of particular individuals.  From a public-policy perspective, it's relatively rare that we talk about goods or services being "too expensive."  You or I, as individual consumers, might decide not to go to Whole Foods because it's "too expensive" to shop there, but few would seriously suggest regulating how much Whole Foods can charge for a watermelon.  Only when the good or service in question falls into one of two categories do we ask the "too expensive" question as a matter of policy.

The first category consists of basic necessities of life, like food (the staples, not the luxury Whole Foods variety), shelter, and healthcare; we care as a matter of policy about how much these things cost because we believe that everyone should have access to them.  Unlike K-12 education and, arguably now, college education, a legal education is not one of these basic necessities; it's hard to make the case that every American is entitled to a law degree.  But legal services might be a basic entitlement, and if so, the cost of legal education -- a necessary precursor to the provision of legal services -- is a public-policy concern.

The second category consists of what economists call "public goods" -- benefits from which no one can effectively be excluded and whose enjoyment by some does not diminish their availability to others.  National defense is a public good:  it benefits all of us, not just those who directly pay for it, and my enjoyment of it does not diminish your capacity to enjoy it.  Clean air and clean water are public goods; there are many other examples.  The problem with public goods, however, is that private actors typically lack sufficient incentive to produce them, since they cannot charge for them (there being no way to deny them to people who refuse to pay).  So the public as a whole, in the form of government, typically provides particularly valuable public goods (e.g., national defense) or requires private actors to provide them (e.g, clean air and water).  And since the public is paying for these public goods, how much they cost -- how much the public has to pay to provide them -- obviously is a matter of public policy.

There is a strong argument to be made that legal education -- or more precisely, the legal system made possible by the existence of legal education -- is a public good.  It is to everyone's advantage to have competent, ethical lawyers to operate the legal system and uphold the rule of law.  These public benefits of a legal system inure to all of us, whether we pay for lawyers or not, and my enjoyment of these general benefits does not in any way reduce your capacity to enjoy them.

Of course, legal education also provides a private benefit to those who undergo it and earn a law degree.  I will have more to say about this in a moment.  For now, the point is that the cost of legal education has public-policy implications, in part because access to legal services probably is a matter of basic entitlement, and in part because a well-functioning legal system is a public good.

So we need to ask whether law school is "too expensive" from a social policy perspective.  Here I suspect the answer (as from the individual perspective) will be, "it depends."  With respect to law graduates lucky enough to land high-paying BigLaw jobs, legal education probably is not too expensive, and indeed making it cheaper across the board might unfairly subsidize these fortunate few.  With respect to law graduates serving legally underserved clients, or wanting to do so but having to take other jobs instead (or to forgo law school altogether), legal education probably is too expensive as it stands and, from a public policy perspective, ought to be made cheaper.  The same might hold true with respect to many law graduates who go into government or nonprofit work.  These latter two categories -- lawyers serving underserved populations and lawyers working for government or nonprofits -- probably disproportionately fulfill the central public-policy aims of a legal system, namely providing access to legal services and contributing to the proper functioning of the legal system.  So it is good public policy (all else being equal) to incentivize people to take these jobs and support them when they do, and affirmatively bad policy to penalize or discourage them with high tuition and a heavy debt burden.

For me, then, the central question about the financing of legal education -- and a central question of legal education generally -- is how to change the system so as to incentivize more qualified people to fill legal-services, government, nonprofit, and other law jobs that benefit the public and currently are going underperformed, while not overincentivizing people to seek higher-paying law jobs that currently are in short supply (and I suspect will be for the foreseeable future).  I don't pretend to have well-worked-out proposals for answering this question.  I do have a couple tentative big-picture suggestions, however.

The first is that government actors -- at the federal, state, and public-law-school levels -- ought to take the public importance of legal education more seriously than many of them currently are and subsidize or regulate accordingly.  The current system of legal education operates in uncomfortable hybrid fashion -- partly according to market principles (that is, as a method for allocating private goods) and partly under public control (that is, as a method for providing public goods and basic entitlements).  As with private goods, law schools basically offer a service at a price people are willing to pay, without caring how the purchasers obtain the money to pay for it or what they do with that service after they've bought it.  But the terms of the transaction are distorted in multiple places by public regulation and subsidies.  Government-backed student loans increase the price consumers are willing to pay for legal education, and thus the price law schools are able to charge for it.  State bar authorities and national accrediting organizations (the ABA, the AALS), ostensibly in the public interest, impose requirements for the content of legal education (think "professional responsibility courses") that consumers and law schools might not bargain for if left to their own devices.  State legislatures and trustees of public universities raise or cap law school tuition, often in ways driven by political and budgetary concerns rather than market forces or sound educational policy.

This mixed system is in many ways the worst of both worlds, unable either to respond organically to market forces or to effectively promote the public interest.  The public subsidizes legal education just enough to distort the market by creating a cohort of under- or unemployed law graduates looking for steady paychecks to pay off their loans, but not enough to meet the needs of drastically underserved communities.  Getting government out of the business of subsidizing legal education is not the answer; it would only result in more legal needs going unmet.  Instead, government should better target its subsidies to encourage law graduates to serve the public good.  The government currently forgives some direct loans for graduates working in public-interest jobs; this program could be expanded to include government-backed private loans and to cover graduates working in "for-profit" positions that serve low-income or otherwise underserved clients.  Indeed, government at the federal and state levels could go further, funding full- or part-tuition scholarships (not just loans) for students who commit to working in public-interest jobs or serving underserved populations for a period of time after graduation.  Law schools too, particularly public law schools, could make fundraising for such scholarships a top priority.

State governments also need to get more involved in another way:  they need to partner with law schools and the bar to develop alternative ways to provide many legal services.  This leads to my second big-picture suggestion (like the first, far from an original one):  licensure requirements can be altered to allow many legal services to be performed by professionals other than full-fledged lawyers.  Many legal tasks, such as drafting basic wills and leases and representing clients in relatively simple disputes, can be effectively performed with less than the three full years' worth of legal training currently required for a JD.  Often these tasks are precisely the things many lower-income clients need from a legal professional.  The idea is familiar in the medical context, where nurses, nurse practitioners, and osteopaths handle many diagnoses and treatments that MDs used to perform.  Lesser credential levels for these professionals would translate into reduced educational requirements -- a 12- or 18-month program rather than three years -- and thus lower-cost options for individuals who want to enter the legal profession.  Saddled with less debt, many of these graduates could take lower-paying or riskier jobs with nonprofits or practicing in underserved communities.

Interestingly, the availability of lower-cost legal education options might free up law schools to enhance the JD program rather than scaling it back, as some current reformers advocate.  These proposals have always coexisted uneasily with another common refrain of legal-education reformers:  the notion that law schools aren't doing enough to prepare their graduates for practice in "the real world."  It's hard to provide more knowledge and skills to law students while at the same time reducing a three-year degree program to two or two-and-a-half years; and it's difficult to pay for resource-intensive skills courses (e.g., law clinics, which require high faculty-to-student ratios) while at the same time lowering costs.  With a stream of tuition income from sub-JD programs, law schools might be willing to put more resources into their JD programs rather than less, perhaps even extending them from three years to four (with, say, an entirely experiential final year), perhaps experimenting in other ways.  Indeed, it might be good for the system to make full-fledged JD programs more expensive -- more like the MD programs at American medical schools.  Doing so would help support enrollment in the (cheaper) emerging sub-JD programs, while imposing the high costs -- and conferring the enhanced benefits -- of a full JD only upon those committed enough to devote four years' worth of study and tuition to obtaining it.

So, to sum up:  claims (like Harper's) that there are "too many law graduates" miss an important part of the picture -- the undersupply of legal professionals serving low-income clients and certain other segments of the community.  Legal education may indeed be "too expensive" to meet these underserved public needs.  But this is not to say that it is too expensive across the board -- only that the current system generates a mismatch between high-end supply and low-end demand.  That mismatch is caused in large part by the hybrid public-private nature of legal education:  government regulations and subsidies distort the market, pumping up the demand for and thus the cost of legal education, while failing to effectively promote the public goods legal education should serve.  The only solution, as I see it, as greater and more targeted public involvement:  subsidies that are contingent on public service by law graduates, and regulation that expands the availability of legal services by reducing the credentials necessary to perform many of them.

There's a great deal more to be said on this topic.  But if you've made it this far, I'll spare you that.  At least until the next post.

Just because the law says you can ...

... doesn't mean it's a good idea.  Gail Collins's New York Times column yesterday described, in typical Collinsesque tongue-in-cheek fashion, a list of recent incidents involving people openly carrying firearms in inappropriate places.  (By people, of course, I mean men, more specifically white men.  As Collins points out, open carry these days seems to be the nearly exclusive province of Caucasian males.  Back in the '60s, when it was the Black Panthers who advocated open carry, it was a bit harder to find votes for those laws in the state legislatures.  It will be interesting to see what happens when, say, Islamic fundamentalists start wearing pistols into the local Walmart.  But I digress.)

One such incident caught my particular interest because it happened in my hometown of Kalamazoo, Michigan.  Alarmed librarians called police when the 31-year-old owner of a lawn-care business toted his holstered 9-mm pistol to a summer reading party for kids at the Kalamazoo public library.  There was nothing the cops could do, as it turns out openly carrying a gun in a public library is perfectly legal in Michigan.  The man in question, Mike Warren, said he wore the gun "to protect my family. God forbid there was a person who decided to shoot the place up, but I'd be the only one there who could do something about it."  When asked by the Kalamazoo Gazette "how other library patrons would know that he was not dangerous, Warren paused.  'Let me think about that for a minute,' he said."

So, two quick points to be made about this charming story and its growing number of counterparts.  The first is that regardless of what the NRA (or, I suspect, Mr. Warren) might claim, these open-carry confrontations have nothing to do with the Second Amendment.  There is no constitutional right to carry a gun into a public library, or a school, or a private business, or indeed anywhere outside the home of the person who owns the gun.

In District of Columbia v. Heller, its 2008 decision interpreting the Second Amendment, the Supreme Court held that the Amendment protects an individual's right, not to carry a gun wherever he pleases, but simply to possess a working handgun in his home for purposes of self-defense.  Writing for the Court, Justice Scalia explicitly stated that this right, "[l]ike most rights ... is not unlimited. ... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the sale of arms."  This list of "presumptively lawful regulatory measures," he went on to note, "does not purport to be exhaustive."

Mr. Warren, then, wasn't asserting his Second Amendment rights when he showed off his pistol to the kids at the Kalamazoo library, any more than the proverbial jokester is invoking the First Amendment when he falsely shouts "fire" in the crowded theater.  He was simply taking advantage of Michigan lawmakers' failure to prohibit that particular use of a gun -- a failure that appears to be more the product of happenstance than of considered public policy.  He had a legal right to carry his gun in the library, yes, but only a contingent one that exists through the grace (or passivity) of the state legislature.  No deeply cherished constitutional values were at stake.

Which leads me to my second point.  There are lots of things that the law (even the Constitution) allows us to do that we really shouldn't be doing.  In 1971, the Court upheld a man's First Amendment right to wear a jacket reading "Fuck the Draft" in the hallway of a California courthouse; as a result, the use of profanity in public places is a constitutionally protected right (again, with some reasonable qualifications -- "like most rights," to paraphrase Justice Scalia, the freedom of speech is "not unlimited").  Does that mean it's a good idea for grown men and women to swear loudly in public when there are children within earshot?  Though drunken fans in sports arenas throughout the country might disagree, the answer is no.  Just because the law allows it doesn't mean it's the right thing to do.

The American Constitution is justly celebrated around the world for its explicit protections of individual liberty against the danger of an overreaching government (or an overbearing majority).  One negative side effect of our collective veneration of individual rights, however, is a cultural tendency to smuggle our own notions of morality into our understandings of constitutional rights -- to equate our legal rights with our personal moral views.  If we believe in a God-given right to armed self-defense, then by golly the Second Amendment must protect such a right!  And as the Kalamazoo incident and many others like it demonstrate, this identification of the law with morality runs both ways.  If the law allows it, it must be a good thing!  If it's legal, it must be moral.

But of course this is wrong.  The great value of our constitutional protection of individual liberty is that it leaves most things in life to individual choice.  We can decide for ourselves whether to keep a handgun in our homes for self-protection or whether to express our anti-military sentiments with vulgarities displayed on our clothing.  The law says it's legal, but we get to judge for ourselves whether it's ethical or moral.  And with that freedom of choice comes moral responsibility.  We have to take the consequences of our conduct seriously, including giving thoughtful consideration to how that conduct might affect others.

On the subject of carrying guns in public, as on other questions of ethics, there probably is room for reasonable disagreement.  There are some circumstances, however, in which it's hard to imagine that brandishing a weapon can be a good idea, and it seems to me that a kids' party at the local public library is one of them.  According to the Kalamazoo Gazette, "Warren finally said he understands if others are unnerved when they see his gun, but 'I value my family's safety above their feelings.'"  That is, to put it mildly, a problematic weighing of the relevant costs and benefits.  Small-town midwestern libraries are not typically high-crime areas, and more than "feelings" are at stake when children are put in close proximity to a loaded firearm.

I can't shake the impression that for many open-carriers, flaunting a gun in public is about something very different from defense of self and family.  I doubt familial safety was what motivated the man who walked into the Atlanta airport with a loaded assault rifle, then YouTubed the inevitable encounter with police and threatened to sue if they arrested him.  Or the guy -- another Georgian -- who, according to Collins, interrupted a kids' baseball game in a public park by loudly declaring "I've got a gun" and daring the police to arrest him.  (They couldn't; his conduct was legal under Georgia law.)  Many of these incidents strike me as the sort of in-your-face, touchdown-dance acts of attention-grabbing that are the quintessence of twenty-first-century American culture.  They reflect, at bottom, a fundamental narcissism, and a corresponding lack of regard for the feelings and well-being of others.  Warren, our library gunslinger, told the Gazette that "an armed society is a polite society."  But all too often, ostentatious open carry is about pugnacity, not politeness.

There is a real irony here.  The self-defense motives claimed by gun-rights advocates like Warren presuppose a government that is unable to defend its citizens; they assume a breakdown in the rule of law.  But in a democracy, an essential aspect of the rule of law is respect for the views and interests of others.  Without that mutual respect, we lose our central reason for obeying laws with which we happen to disagree.  And it is precisely this value of respect for others that open-carriers reject when they bring loaded weapons into libraries, airports, and school parking lots.  If gun advocates want to preserve law and order, the first place they should look is in the mirror.

A thoughtful and nuanced op-ed ...

... about the malaise in America's inner cities, by Harvard sociologist Orlando Patterson in today's Times.  Patterson spreads the blame around, casts current events in historical context, and actually proposes solutions.  There is something in here for everybody, and also something that will probably make everyone angry, which suggests to me (who is neither a sociologist nor a historian) that there is is a lot of truth in this piece.

Note also yesterday's editorial in the Times discussing the racist historical roots of Baltimore's current problems.  When we first moved to Baltimore, I was struck by how much like a patchwork quilt the city is -- a true city of neighborhoods, cheek-by-jowel with each other, each distinct socioeconomically, architecturally, atmospherically and, often, racially.  Baltimore's neighborhoodiness can seem quaint, but the Times editorial gives us the sinister side of the story.

Dave Jaros in The Atlantic on the charges in the Freddie Gray case

My colleague Dave Jaros was the subject of an extensive interview published this morning in The Atlantic online, about the charges filed last Friday against six police officers in the Freddie Gray case.  As usual, Dave's take is both accessible and nuanced -- well worth the short read.  Dave also shone in an interview last Friday with the CBS Radio affiliate in Boston.

Great work, Dave, you make us proud.

Those long-winded, plainspoken, grumpy Justices

Here's a New York Times article by Adam Liptak describing a new linguistic study of Supreme Court opinions conducted by a law professor and a couple of computer scientists.  The study concludes that SCOTUS opinions are becoming (a) longer, (b) more accessible to the public and less legalistic in their language, and (c) grumpier.

Point (a) has been made in other recent studies and seems undeniably true.  Point (b) rings true to me as someone who has read a lot of SCOTUS opinions written during the past 200+ years.  Point (c) probably is the hardest to measure (as the Times article notes), as it turns on the frequency in the Justices' opinions of certain "positive" and "negative" words, which may have special connotations in a legal context; nonetheless, it too is consistent with my own experiential sense of trends over the past generation or two.

Intuitively it seems likely that these three phenomena, rather than each developing independently of the others, are interrelated in some way.  Here's a brief and very tentative hypothesis about how.

Legal thought over the past century or so has moved from the belief that law is autonomous (it involves a unique style of reasoning, it draws on fixed universal truths, it is best done by experts who are disconnected from political or other outside influence) to a view that law is more or less a form of politics, if a rather special form:  it employs a type of practical reasoning; it draws on earthly experience and moral and political beliefs and goals; as such, it invariably relies on the personal views of lawyers and judges and thus should be done by people who, while specially trained, represent diverse perspectives and backgrounds.

As our philosophical understanding of law has evolved in this way, judges have come to behave like types of political actors, albeit rather unique types.  Judges have intervened in the national economy (mostly disastrously, during the so-called Lochner era of the first few decades of the 20th century), in race relations (with mixed results, from the glorious Brown v. Board to the less clearly laudatory recent cases on affirmative action), in voting rights and election law (again with mixed results, from the beneficent "one person, one vote" decisions in the 1960s to Citizens United and recent refusals to overturn voter ID laws and partisan gerrymandering), and in many other areas of social and political life.  This may be a good thing overall, it may be a bad thing, but it almost certainly was inevitable.

And as judges have intervened in areas that 100 years ago might have been the exclusive realm of politics, judges have come to be seen as political actors.  So the federal judicial nomination process has become politicized, focusing not on the legal skills of the nominee but rather on how he or she is likely to vote on a host of hot-button issues.  And so -- surprise, surprise -- judges themselves have begun not only to intervene in formerly "political" affairs, but also to communicate like, well, politicians.  Hence the move away from technocracy and formalism in judicial opinions and toward plain language.  (Judges, like politicians, want to be understood by and persuasive to the general public.)  And hence the grumpiness:  once we acknowledge that a case can't be decided by mechanical application of universal legal truths, we enter the realm of political and moral disagreement, and judges (like politicians, and indeed like citizens) tend to get testy when someone disputes a basic value or ideology they hold dear.

And, hence, the long-windedness.  It usually takes longer to explain legal concepts to laypeople than to explain them to trained experts.  And it takes even longer still when a Justice has to  retort (often grumpily) to a point made (often grumpily) by a Justice on the other side.

Should we regret these trends?  In my opinion, no -- not as long as there is a reasonable stopping point.  The simple fact is that law does not flow from a "brooding omnipresence in the sky," to quote one of the earliest and most influential progenitors of these trends, Justice Oliver Wendell Holmes, Jr.; it is a creation solely of intentional human conduct.  Once we recognize that fact, then we can't ignore the role of experience, emotion, and belief in lawmaking, including lawmaking by judges.  To deny that these things play a role is to bury our heads in the sand.

But this doesn't mean we ought to succumb entirely to the view that judges are nothing more than politicians in robes. As I write in a recent book chapter, American judges make policy, but they do so from a perspective different from that of an elected legislator or political official.  Judges are bound to conform the policies they make to the outlines of the laws they are applying; they can't make them up from whole cloth.  They are bound to respond in good faith to the proofs and arguments of the parties before them in court.  And they are bound to act impartially as between those litigants.  All of these constraints set judges apart from politicians and make law different from mere politics.  In acknowledging that judges make law and that they can never be completely objective in doing so, we need to hold on to the things that make judicial lawmaking different, and special.

It's not (just) a Baltimore problem

After a few weeks that have been eventful in both the usual ways (end-of-semester rush) and some not-so-usual ones (you all know what's been going on in Baltimore), I'm back in the saddle with a few overdue posts, all of which will be mercifully short.

First, on those recent events in Baltimore.  An astounding new study described in today's New York Times confirms that Baltimore City is one of the worst places in the country to grow up if you are poor.  (Here is the Times's graphic summary of some major points of the study, which you can tailor to your own geographic area; here is a summary by the study's authors; and here is the text of the study.)  The study examines data on five million families who moved from one county in the United States to another, concluding that the geographic location where children grow up materially effects their future earning potential.  Using these data, the study builds a model of the geographic factors that seem to prevent "intergenerational mobility" (the capacity to increase income as compared to one's parents).  Those factors read like a list of the usual suspects:  highly concentrated poverty, high income inequality, poor schools, a low percentage of two-parent families, and high crime rates.  The higher the degree of these factors in your neighborhood, the worse your chances of doing better than your parents, financially speaking.

The study's authors then rank all of the nation's 2,478 counties according to these negative factors, correlating to variables such as gender and income level.  Guess what:  my county (Baltimore City, which is in fact a stand-alone county) ranks dead worst among the nation's 100 most populous counties (and in the bottom 1% of all counties) in effects on future income for low-income children.  This means that, measured by effects on lifetime income, there is almost no worse place in the country to grow up poor than in Baltimore.

So it's a Baltimore problem, right?  Yes, in the sense that the hopelessness of entrenched poverty is particularly bad and particularly evident in Baltimore, as the recent unrest has made painfully but necessarily clear.  But it's far from just a Baltimore problem.  Baltimore is only the worst example of a problem that plagues most large American cities.  Consider the other nine counties that placed among the 10 worst among large counties in the study, listed here from #99 to #91:  Mecklenburg, NC (home to Charlotte); Hillsborough, FL (Tampa and St. Petersburg); Orange County, FL (Orlando); Cook County, IL (Chicago); Fresno County, CA; Wayne County, MI (Detroit); Milwaukee County, WI; Bronx County, NY; and Pima County, AZ (Tucson).  In each of these mostly urban locales, a poor child can expect to earn between 12% and 17% less over the course of his or her lifetime than the average poor child growing up in America.

The factors that tend to entrench poverty exist in cities from coast to coast.  That should concern everybody, not just Americans who live in the worst of these locations.  There is the sheer self-interest of wanting to avoid the chaos in our cities that the anger and frustration of entrenched poverty can cause, as we've seen illustrated all too vividly in recent days.  But bigger than that is the moral imperative:  it is simply unjust to sustain a system in which the future of so many children is dictated primarily by the zip code into which they happen to have been born.  America was founded in part on a rejection of what Thomas Jefferson called the "artificial aristocracy founded on wealth and birth" that had dominated Europe since the middle ages.  The entrenchment of American poverty is an artificial peonage founded solely on wealth and birth -- an affront to core American ideals.

And peonage and aristocracy almost always travel together (the one in steerage, the other in first class).  Growing up in Baltimore, it turns out, isn't a bad thing for everybody.  The study also reveals that the children of the wealthiest 1% in the City actually do better over a lifetime than the average American top-one-percenter.  While the richest get richer, the poorest grow more and more hopeless.  That's not an America any of us should want our kids to grow up in.

The rising cost of higher education: some perspectives

There's no question that college, graduate school, and professional school tuition has risen substantially over the last few decades, outpacing the rate of inflation.  One obvious possible culprit is reduced taxpayer support for public education at the state level.  In last Sunday's (04/05/15) New York Times, Paul F. Campos denies that cuts in state funding are the problem.  Instead he blames swelling administrative costs, suggesting near the end of the piece that "seven-figure salaries for high-ranking university administrators" are largely at fault.

Today the Times published several letters responding to Campos's piece, including my own.  In my letter, I note some legitimate reasons for rising administrative costs at colleges and universities, reasons that have nothing to do with "seven-figure salaries," which are very far from the norm.  (Kurt Schmoke, current president of my school (the University of Baltimore) and surely one of the most qualified leaders in higher education today, earns around $300,000 per year.)  One reason is increased regulation of higher education, such as student-privacy requirements and standards for disability accommodation (to name just a few examples); these mandates necessitate administrators and staff to implement and oversee them, jobs that didn't even exist several decades ago.

Another reason is the increasing complexity of the educational mission in today's economy.  College degrees are now the norm, not the exception, in the job market, making jobs for graduates harder to come by -- and pushing schools to develop sophisticated career development programs to help their graduates get those jobs.  American K-through-12 education also is not what it once was -- many students come to college unprepared for the basic analytical and communicative tasks they are asked to perform -- requiring colleges to maintain extensive academic support programs.  (The recent and overdue push to enroll more students from low-income families makes these programs even more essential.)  Of course, these necessary student services require administrative personnel to run them.

So the problem is not just -- indeed, not primarily -- the salaries of university administrators.  Higher education is a lot more complex, and thus a lot more expensive, than it was fifty years ago.  The question is who is going to pay these increased costs.  I personally think taxpayers should pay the lion's share of them through increased financial support for public colleges and universities.  The alternative, which has taken hold in most states by default, is for students and their families to bear the brunt of these costs through increased tuition.  There are tough choices to be made here, and Campos's article obscures them by suggesting that fat-cat university administrators are to blame.

Campos's piece is misleading in another way as well:  he points out that overall public spending on higher education has increased over the last few decades, but downplays the fact that it actually has decreased on a per-student basis.  (Exhibit A is another letter in today's Times, from the CFO at the University of California, who points out that California's higher-education system currently is funded at the same level as in 1999, despite the influx of 83,000 more students since then.)  Public universities are now providing more services to their students than they were a generation ago but receiving less taxpayer support per student.  In real terms, that's a decrease in public support for higher education, no matter how you slice it.  (Here's an interesting blog post breaking down some of the ways in which Campos's assertions to the contrary are misleading or poorly supported.)

Campos, who is a law professor at the University of Colorado, has been a vocal critic of the current system of legal education.  He now appears to be broadening his target to higher education in general.  He's surely correct that there are many problems with the system as it currently stands.  He's also right to demand that arguments on all sides be "intellectually rigorous."  Unfortunately his recent piece in the Times fails to live up to his own standard.

RFRA follow-up: new post from Garrett Epps

My colleague Garrett Epps hardly needs my help to boost his Atlantic.com readership, but as a follow-up to my post yesterday, I can't resist plugging his latest comment on the Indiana/Arkansas RFRA controversy.  My favorite line from a column chock full of witticisms and insights:  the Arkansas RFRA bill (which governor Asa Hutchinson has said he won't sign in its current form) "makes the Indiana law look like the Universal Declaration of Human Rights."

Update: the fate of the Orange County Government Center

And now for something completely different.  Last month I posted about seemingly irreversible plans to demolish an icon of modernist architecture, Paul Rudolph's Orange County (NY) Government Center.  Yesterday came news of a lawsuit seeking to block the demolition.  These cases rarely succeed, but maybe the lawsuit at least will keep the spotlight on the county and its strangely bullheaded determination to tear down what many consider a masterpiece.  Where there's life (or concrete), there's hope.

Equality, "religious freedom," and the need for context

By now you're probably familiar with the controversy over the Indiana RFRA (Religious Freedom Restoration Act) law and its potential -- most likely intended -- to license businesses to discriminate against gays and lesbians.  (And now those enlightened statesmen in the Arkansas legislature are getting in on the act.)  Here's an excellent summary in the Times of the controversy, the history of RFRA laws, and the distinguishing characteristics of the Indiana law; here's my colleague Garrett Epps's description of how Indiana's law differs from the federal and most state versions of RFRA; and here's Lambda Legal's take on why the law seems motivated by anti-gay bias.

I have never been a fan of these RFRA statutes, and these recent abuses of them highlight a big reason why.  The original federal RFRA can be understood sympathetically, as an attempt to protect religious minorities from general laws that needlessly burden their religious practices (e.g., a ban on hallucinogenic drugs that fails to exempt the use of peyote in Native American rituals).  But once we start requiring exemptions from general laws for religious beliefs or practices, we open the proverbial can of worms.  There's a huge and growing variety of religious beliefs and practices out there, and requiring exemptions for all of them threatens to make our laws look like Swiss cheese.  (That's a worm and a cheese metaphor in the same paragraph.  My apologies.)  It's difficult, moreover, to discern whether any given expression of a religious belief is sincere (rather than just a dodge to get around a burdensome law), or to know whether burdens on sincere beliefs are "substantial" enough (the language of most RFRA statutes) to justify an exemption.  Under RFRA laws, however, judges have to make these calls, which means government officials have the authority to decide what religious beliefs are genuine and which religious beliefs and practices are sufficiently important to render a burden "substantial."  And RFRA laws inevitably beg the question of who is capable of holding a "religious belief" or engaging in a "religious practice" (can for-profit corporations do it? the Supreme Court has said yes), which is really an existential question about what "religion" is -- and thus, again, hardly the kind of issue we want courts deciding.

My biggest beef with RFRA laws, however, is their prioritization of religious belief over other important values.  This priority is inherent in the very notion of a "Religious" Freedom Restoration Act (as opposed, say, to a "Moral" Freedom Restoration Act):  RFRAs entitle me to an exemption from drug laws if I smoke peyote as part of my Native American religious practice (the "I" here is hypothetical), but not if I smoke peyote because of a moral judgment that moderate use of hallucinogens is an acceptable form of recreation.  It's true that our Constitution itself seems to prioritize religious belief by safeguarding "the free exercise" of "religion" in the First Amendment.  But this Free Exercise Clause has been interpreted by the Supreme Court -- correctly, in my view -- to protect religious beliefs and practices only from intentional targeting by the government, not from incidental burdens as the result of religion-neutral laws.  (This interpretation is what prompted the enactment of RFRA laws in the first place.)

And it turns out that even the Constitution's apparently favorable treatment of religion is largely illusory.  The Constitution also protects other important values, such as freedom of speech, "life, liberty, [and] property," and equality, to name just a few.  And this is where the primary danger of RFRA statutes becomes apparent.  Some general laws are designed to further one or more of these other constitutional values.  Laws prohibiting race discrimination in employment, business, or housing, for example, advance the constitutional principle of equality, extending the formal requirement of equal protection from the realm of government action (which is directly controlled by the Constitution) to the realm of private conduct (which is not).  If RFRA laws are applied to create exemptions from these antidiscrimination laws, then one constitutional value (freedom of religion) is being deployed to trump another (equality).

Of course, if constitutional values conflict, one of them has to win out; one competing value inevitably must take precedence over the other.  If the choice is between religious freedom and equality, why shouldn't religious freedom win?  In the abstract, I'm not sure which value is more important.  (I strongly lean towards equality; others surely will disagree.)  But the issue presented by Indiana's version of RFRA is not an abstract one.  That law expressly protects the "religious freedom" not just of individuals or religious organizations, but also of for-profit businesses; and it expressly applies not just to actions taken by the government (such as tax assessments or criminal prosecutions), but also to private lawsuits.  This means that if an Indianapolis hotel (say) refuses to rent its honeymoon suite to a newly married gay couple; or an Indianapolis Hooters refuses to hire an openly lesbian waitress; these businesses cannot be sued for violating the Indianapolis ordinance that prohibits private discrimination based on sexual orientation.  They would be exempted from that ordinance thanks to the new state-wide RFRA statute.

Imagine that the owner of our hypothetical Indianapolis hotel holds a sincere religious belief that interracial marriage is against God's will.  (As Garrett Epps points out, such beliefs were not that terribly uncommon not that terribly long ago.)  It would be obvious to most of us in that case that the value of equality should trump the hotelier's claim of religious freedom.  Renting a room to an interracial couple, after all, would not force the hotel owner to change her religious beliefs; it would not prevent her from communicating those beliefs to others or expressing those beliefs through the rituals and practices of her religion.  But refusing to rent the room would cause clear material harm to the interracial couple, who would be deprived of a benefit to which others are entitled, merely because of their race.  And while the hotel owner is free not to invite the couple to dine at her private home, or to worship at her church, her decision to enter the hotel business is a voluntary (and remunerative) act of participation in civil society -- and thus a voluntary choice to submit to the legal and social norms of that society in the operation of her business.

As this hypothetical shows, to cloak the Indiana RFRA law in the mantle of "religious freedom" is to obscure a lot that is important about how the law will apply in the real world.  The law safeguards, not simply private acts of worship or expressions of belief, but the use of for-profit businesses to inflict real, material harm on others.  It thus tolerates demonstrable acts of inequality in the name of protecting the religious sensibilities of some business owners.

Of course, the meaning of "equality," like the meaning of "religious freedom," is a matter of debate.  The racial-discrimination hypothetical is powerful precisely because, when it comes to race discrimination, that debate is now over; the proponents of racism have lost.  No court would exempt the racist hotelier from the scope of antidiscrimination laws; any judge would recognize the state's compelling interest in preventing race discrimination.  The debate over sexual orientation, obviously, continues (although the opponents of tolerance are losing at an encouraging rate).  But it is not open to proponents of RFRA laws like Indiana's to remain on the fence about sexual-orientation discrimination, as Indiana's governor Pence has tried to do.  (Pence says he favors amending the law to "clarify" that it does not license discrimination against gays.  But he also has no plans to push for affirmative state-wide bans on LGBT discrimination.)  If RFRA treats LGBT discrimination differently from race discrimination -- if it exempts the former but not the latter -- then it takes a stand on the discrimination issue:  it declares that sexual-orientation equality is less important than racial equality.  On the other hand, if Indiana's RFRA treats LGBT and race discrimination the same, then it assumes the opposite position on the equality question -- and there is no reason for the state not to add sexual orientation to its list of criteria upon which businesses in that state may not discriminate.

There is an irony here.  Indiana's and other recent RFRA laws seem to have been prompted by the rapid spread of same-sex marriage, and in particular by the possibility that the Supreme Court will soon hold that state laws prohibiting same-sex marriage are unconstitutional.  But if the Court in fact decides this, the likely result will be to render RFRA laws irrelevant to the same-sex marriage question.  If same-sex couples have a constitutional right to marry, then the state governments have a compelling interest in protecting their freedom to do so.  And this compelling interest is sufficient to override claims of religious freedom under every current RFRA statute.

In other words, a SCOTUS decision recognizing the constitutional right of gay couples to marry -- ideally premised on a recognition that sexual orientation is a "suspect" basis of legal classification -- would make it clear that sexual-orientation equality, like racial equality (or for that matter religious freedom), is a central constitutional value that may not be sacrificed to the religious sensibilities of a few.  Here's hoping Justice Kennedy feels the same way.

Confederate flags, government speech, and racial hierarchy

On March 23, the Supreme Court heard arguments in Walker v. Sons of Confederate Veterans, a case presenting the question of whether the State of Texas must produce license plates bearing the Confederate flag (alongside more than 400 other specialty plates Texas offers, including one promoting a hamburger chain).  As my colleague Garrett Epps writes in TheAtlantic.com, the case poses the question whether there are First Amendment limits to "government speech" -- to what the government itself may say using its bully pulpit (including license plates), and to how the government may decide what it says and what it does not.

The State of Texas allows drivers to choose from hundreds of specialty plates, many bearing the logos of colleges or service organizations, some promoting commercial products (like the aforementioned hamburgers), and some communicating clearly political messages, like "Choose Life."  The Sons of Confederate Veterans want Texas to produce a license plate bearing the name of their organization and a depiction of the Confederate flag.  (I was surprised to learn that nine other states, including my current state of Maryland, already allow this.)  Texas doesn't want to print the plates, on the understandable ground that the Confederate flag is a divisive and, for many, an offensive symbol.  But this would amount to the state's picking and choosing which messages to print on its license plates, based on controversial criteria.  Clearly the First Amendment does not allow the state to pick and choose which private speech it will punish or reward based on the viewpoint presented by that speech.  Can the state engage in this sort of censorship when the entity being censored is, in essence, the state itself?

As Garrett writes in his piece, current SCOTUS doctrine suggests that states are free to engage in this sort of self-censorship -- that "government speech" is a sort of First-Amendment-free zone (so long as government does not impermissibly endorse religious views), in which government is free to pick and choose what it says based on viewpoint or other content.  For many, though -- including, I suspect, several Supreme Court Justices -- the result of applying this "anything goes" principle to the Walker case would be disturbing.  The power of government speech is awesome, because the government has so much money to spend on communicating its message and controls so many forums for communication (not just license plates, but also airports, public buildings, buses, subway trains, etc., etc.).  If the government can always decide which messages it likes and communicate only those messages, the result could be a serious distortion in the information available to the public and thus in the terms of public debate about important issues.

On the other hand, the implications of not allowing Texas to censor the Confederate flag are themselves distasteful.  If Texas must issue a Confederate-flag license plate, what's next -- a swastika plate?  A plate endorsing al Qaeda?  As Garrett writes, it can't be the case that government must air all opposing viewpoints every time it communicates a message.  When the National Park Service reminds us that "Only You Can Prevent Forest Fires," it doesn't have to follow up by saying "Forest Fires Are Fun for the Whole Family" (this of course is Garrett's clever imagery, not mine).

So the case looks like a tough one.  The first thing the court has to decide is whether communications on license plates really are government speech, rather than a "public forum" like a public sidewalk or public park.  It's clear that the government cannot engage in viewpoint-based censorship of private speech occurring in a public forum; Texas could not allow (say) the NAACP but not the Sons of Confederate Veterans to hand out literature in the public park.  Is the material on "specialty" license plates really just private speech in a public forum?

This is, in my view, the most difficult aspect of the Walker case.  On the one hand, it's pretty clear that license plates are not traditional forums for public expression, like streets and parks.  They are, first and foremost, administrative documents -- tools for serving a particular ministerial function of government, namely identifying registered motor vehicles.  Unlike the open spaces that serve as traditional public forums, license plates are a creation of the government, which the government could choose to eliminate at any time (if, say, RFID technology makes license plates obsolete) without creating a free-speech problem.

On the other hand, the state governments have complicated matters by creating these "specialty" plates and allowing them to be used to communicate nontrivial private messages (e.g., "Choose Life" rather than simply the University of Texas logo).  By doing so, the states arguably have transformed license plates into so-called "limited" public forums, meaning locations in which private speech is allowed at certain times and for certain purposes.  If license plates are limited public forums, then the state need not allow them to be used for private speech -- but once it does allow this, it cannot pick and choose which speech to allow based on viewpoint.

The Walker case might well turn on whether SCOTUS thinks specialty plates are limited public forums or rather simply examples of government speech.  In order to decide the latter, the Court would have to conclude, I think, that the State of Texas typically (not just in really controversial cases, like this one) exercises discretion regarding what messages to allow on its license plates and what messages not to allow.  That might demonstrate that specialty plates are not really private speech in a limited public forum (and thus immune to viewpoint censorship), but rather are government speech that happens to be prompted and supported by private actors.  There is a parallel here to religious "endorsement" cases decided under the First Amendment's Establishment Clause, in which the Court has held that religious displays on public property can qualify as government speech endorsing religion, even if they were donated by a private organization.  The Court's approach in the Establishment Clause context has been very fact-specific, focusing on the history of the display in question and how it would be perceived by a reasonable observer.  The Court might apply a similar approach in Walker; but if it does so, the very fact-specific nature of the decision would invite further litigation over specialty license plates in other states, where the underlying facts might turn out to be crucially different.

If the Court holds that specialty plates in Texas are government speech, not private speech in a limited public forum, then I think the case becomes relatively easy.  I agree with Garrett Epps that the current "anything goes" approach to government speech probably is not sustainable, and so I hope the Court doesn't simply apply that approach to rule in favor of Texas.  But I think there is a narrower principle upon which the Court could draw to decide for Texas in the Walker case:  the Court could rule that Texas's censorship of the Confederate flag is justified by the state's compelling interest in avoiding communicating a message of racial hierarchy or divisiveness.

In a deeply entrenched series of cases going back to Brown v. Board of Education in 1954, the Court has held that laws or other government policies that are intended to send a racist message -- a message that black schoolchildren are inferior to whites in Brown, or that blacks are not fit to marry whites, as in the antimiscegenation law struck down in 1967's Loving v. Virginia -- are unconstitutional even if they provide "equal" treatment in a material sense.  In Brown, for example, the separate schools for black children maintained by the Topeka school district were physically as good as the white schools, but the Court invalidated segregation anyway -- because of the message of racial hierarchy that it communicated.  When the government itself communicates a message of racial hierarchy, the Brown Court held, it is that message itself that is the unconstitutional harm.

If the government causes constitutional harm when it communicates a message of racial hierarchy, then the government has a compelling interest in not communicating such a message.  And there is a strong argument that by posting a Confederate flag on its license plates, Texas would be communicating a message of racial hierarchy, which is a message that many people quite reasonably associate with that symbol.  In refusing to issue Confederate flag plates, then, Texas would simply be avoiding the greater constitutional harm that (Brown and its progeny tell us) it would be committing by distributing those plates.

This reasoning is relatively narrow (a quality that might attract the more centrist Justices on the Court), in that it offers a way to avoid the slippery slope.  Confederate flag plates send a message of racial hierarchy, but most other messages states regularly print on their specialty plates -- even politically controversial ones, like "Choose Life" -- do not.  The Court thus would not be declaring that states may decline to print "Choose Life" plates, or that they must also print "Celebrate a Woman's Right to Choose" plates if they do.  The logic of the decision would be limited to the principle embodied in Brown, Loving, and similar cases:  that government endorsement of racial hierarchy is a constitutional harm that must be avoided.

Of course, the logic I'm suggesting might have implications for the nine other states that currently allow Confederate flags on their license plates (not to mention for Mississippi, which is the sole remaining state to incorporate the Stars and Bars into its state flag).  If government displays of the Confederate flag communicate a message of racial hierarchy, then these states probably are (and Mississippi certainly is) violating the Equal Protection Clause by displaying that flag.  I say "probably" because courts in these hypothetical future cases might find that those states' specialty plates are not in fact government speech, by the fact-specific inquiry I suggested above.  And it might be possible to find in some circumstances that the meaning of the Confederate flag has become so diluted by context that it no longer embodies a message of racial hierarchy (although I am deeply skeptical of this reasoning -- particularly as applied to the flag of a state with the history of racial injustice that Mississippi has).

And of course the Court might not buy my logic.  (I haven't studied the Walker case enough to know whether any of the litigants actually suggested such an approach.)  If it doesn't, the Court might simply reaffirm the current notion that anything goes when it comes to government speech -- though in doing so, I think the Court would simply be putting off the inevitable need to rein in that principle eventually.  Or the Court might hold that Texas's specialty plates aren't government speech at all, but rather private speech using a limited public forum.  The implication of this latter holding inevitably would be to require Texas to produce the Confederate plates.  Distasteful as that may be, it's far from the worst outcome one could imagine.  The principle of freedom of speech includes the principle of tolerance even of speech we find deeply offensive, and so the Court should always err on the side of speech rather than censorship.

The role of legal scholarship in legal education, Part I: a primer for beginners

This post introduces what I suspect will be a recurring topic on this blog.  (Hence the "Part I" in the title.)  That topic is the relationship between legal scholarship (which I will tentatively define for the moment as non-client-subsidized research and writing about the law or the legal system) and legal education (by which I mean the system of educating future lawyers in American law schools).  It is a topic that is near and dear to my heart, and to my pocketbook, which makes it all the more frustrating that I don't yet have a very good handle on the many difficult issues relating to the topic, much less on how to resolve them.

A couple of law professors at the University of Florida, Jeffrey Harrison and Amy Mashburn (neither of whom I know personally), recently posted a draft of a provocative paper about the topic.  The paper reports the results of an empirical study which suggests, as I read it, that much or most legal scholarship does not influence the decisionmaking of judges; that most of the people who cite legal scholarship are other law professors; and that most of the time these other law professors choose which articles to cite based, not on the substance or merits of their ideas, but on the prestige of the journal (think Harvard Law Review) or of the author.  The authors of the paper also briefly assess two potential justifications of legal scholarship -- that it produces "benefits" and that it is a "public good" in the economic sense -- and suggest reasons to doubt these justifications, based in part on the results of their empirical study.  And they offer some suggestions for reform of the way legal scholarship typically is published and funded that they think might help make it more beneficial.

There is much to be said about the Harrison and Mashburn paper, some of which has already been said and lots of which I am not qualified to say.  Rather than dig into the merits of the author's study and their normative arguments, however, I want to use their paper here primarily to sketch some background about the general topic -- the relationship between legal scholarship and legal education.  At the end, I'll offer some tentative big-picture principles for assessing the topic, which I hope to support, refine, and test in subsequent posts.

First, some background for readers not intimately familiar with legal scholarship or legal education.  Most American law schools are peculiar hybrids between trade schools and graduate schools in the liberal arts.  Most law students attend law school -- at a high financial cost -- because they want to become practicing lawyers, and with very few exceptions it is the case that one must have a law degree (usually a JD -- juris doctor -- or a foreign equivalent) to practice law in the United States.  So law schools train most of their students for careers in, if you will, a trade.  Moreover, the vast majority of most law schools' operating expenses come from student tuition, meaning that if law schools did not offer what is perceived to be at least adequate training in the trade of being a lawyer, they would cease to exist.

At the same time, most American law professors -- the people doing most of the teaching in these law schools -- are more or less full-time academics, not full-time (or even part-time) lawyers.  Here the exceptions are more numerous and more significant.  Many "full-time" law professors also engage in extensive law practice, either pro bono or for paying clients.  And every American law school of which I'm aware relies on many "adjunct," or part-time, professors to teach mostly specialized courses, most of whom are practicing lawyers or sitting judges.  Still, the typical American law professor spends relatively little of her time actually practicing law, and many spend no time doing so.  So the principal teachers of American law students -- most of whom want to be practicing lawyers -- are themselves not practicing lawyers in any real sense.

In some respects this seems silly.  Why is American legal education structured this way?  Shouldn't practicing-lawyer-wannabes be taught by actual practicing lawyers?  Silly or not, it is probably unavoidable, or at least eminently understandable.  Teaching and practicing law are not the same; they involve different sets of skills.  It is difficult to become (and remain) very good at one while also becoming (and remaining) very good at the other.  Part of the reason for this is time:  busy practicing lawyers have limited time available that they can devote to other pursuits, like preparing a good lesson plan, keeping up with developments in pedagogy, and meeting with students.  So it is natural that a professional class of law teachers would develop on a separate track from the professional class of lawyers -- even though most American law professors also have law degrees.  (Indeed, this is true in other areas of education as well, so much so that it is unremarkable.  Think of your high-school biology teacher.  He or she probably was not an active professional biologist; does that seem strange to you?  Probably not -- because it's easy to understand that the job of teaching biology to class after class of hormonal teenagers is itself a full-time job.)

Add to this the fact that law professors also have the opportunity to do something else that is difficult to accomplish while holding down a full-time practice, namely scholarship.  Practicing lawyers have relatively little time to research and write about the law, and their need to uphold the interests of clients (actual and potential) limits the range of topics they can research and write about and the substance of what they can write about those topics.  Full-time law professors typically are not subject to the latter limitation, and although theoretically they could be subject to the former limitation -- teaching and related activities conceivably could take up all their time -- in actuality most of them are not, for reasons I'll discuss later on.  The opportunity to devote significant professional time to research and writing about interesting legal topics is what attracts many law professors away from practice and into legal education.  Many law professors -- I count myself among them -- find it personally more rewarding to engage in deep intellectual exploration of intriguing legal issues than to (say) draft page-limited, client-driven court briefs or negotiate million-dollar contracts.  And of course there are other attractions to the academic lifestyle, such as schedule flexibility and freedom from the worry that the client will phone at 4:55 on Friday afternoon with a problem that needs to be solved by Monday.

So it is understandable, and may have been inevitable, that American law schools would come to rely primarily on full-time legal academics to train the lawyer wannabes who pay the law schools' bills.  And now we begin to see the faint outlines of the problem as it relates to legal scholarship.  The outlines can be brought into clearer focus by adding some details to the picture.

The first detail is the relative dearth of external funding for legal scholarship.  Medical schools (for example) also have full-time faculty members that spend a lot of time on research; but most of the funding from that research comes from outside sources -- the government, private foundations, industry.  In contrast, relatively little funding for legal research comes from outside sources (that is, sources outside the law school itself).  The reasons for this are complex, and I'm not sure I fully understand them, but they probably include the facts that the results of legal scholarship rarely have an obvious cash value, and that legal scholarship often (indeed usually) is explicitly normative -- arguing for or against a particular state of affairs -- rather than descriptive (like medical research), thus making the dangers of funding by private industry (law firms, clients) too salient.

Bottom line, then:  legal scholarship has to be funded primarily by law schools themselves, which means from tuition dollars.  It's important to note that legal scholarship is not nearly as expensive as, say, medical research; it rarely requires outlays for expensive equipment and support personnel.  The cost of legal scholarship is, if you will, primarily opportunity cost:  a law professor who is taking her paycheck in part to do legal scholarship is not spending that portion of her time doing something else (say, teaching).  Still, that cost might be rather high, relatively speaking; Harrison and Mashburn estimate it at 25% of faculty salaries, which would work out to well over $1 million per year at most law schools.  And this cost, remember, is supported at most law schools almost entirely by student tuition income.

The second detail is the peculiarity -- some would say pathology -- of how the activity of legal scholarship has developed among American law schools.  American legal scholarship is strange in so many ways that it's hard to know where to start.  It is unusual in the typical length of the units of legal scholarship, law-review articles, which usually run between 15,000 and 30,000 words and are heavily footnoted.  It is unusual in the review and editing process for these articles, which with a few exceptions is performed by law students.  (So second- and third-year law students are deciding whether to publish work written by experts in the relevant fields.)  And it is unusual in the number of journals available in which to publish:  each of the roughly 200 U.S. law schools has at least two journals, and many have quite a few more, so that the total number of student-edited law journals is probably at least 500 (I haven't actually counted), most of which publish multiple issues each year and include between two and five articles in each issue.

These unusual features converge, and interact with other dynamics in the legal academy, to create what we might politely call "issues."  There are thousands of "spots" in law reviews that have to be filled each year, creating a strong incentive for students at many journals to publish bad scholarship.  (The students don't need to worry about selling the journals they edit -- no one buys them; they just want to get credit for an extracurricular activity.)  Add to this the fact that the student editors are, well, students, and thus not always in the best position to tell the bad scholarship from the good.  And so lots of bad law review articles get published every year.

Why do law professors keep cranking this stuff out for students to publish in journals that few people will read?  For one thing, publication in some law reviews -- the elite ones, roughly the top 20 or 30 -- is quite prestigious; it can bring professional recognition to law professors and can enhance the reputation of their schools.  Law professors care about their professional recognition because it figures into institutional decisions on things like tenure and promotion (and also because law professors, like most people and perhaps more than many, like to be well-regarded).  Law schools care about their reputations because rankings like that in U.S. News & World Report typically weigh "reputation" heavily in their formulas, and prospective tuition-paying law students (and donation-wielding alums) typically pay close attention to the rankings.  Partly for this latter reason, publication of law-review articles is required for tenure and promotion at most law schools.  (Why the law-review article, rather than some other form of legal scholarship, became the base unit for assessment of scholarship in the American legal academy is a mystery to me.  I suspect the accidents of history and the outsized influence of the Harvard Law Review as legal education developed in the early 20th century have something to do with it.  But I digress.)

Meanwhile, the length of law-review articles has its own perverse effects.  It is, frankly, difficult to read all the way through most 25,000-word, 300-footnote law-review articles.  This creates an incentive for busy student editors of law journals to rely, not on the actual quality of a submission (which they're unlikely to be well-suited to judge anyway), but on external cues about quality, like the prestige of the author or of her home institution or alma mater.  It also deters the people who evaluate law professors' scholarship for tenure, promotion, and other purposes -- chiefly other law professors -- from carefully reading that actual scholarship, leading them to rely on many of these same imperfect external cues.  And it undoubtedly deters members of the potential audience for legal scholarship -- practicing lawyers, sitting judges, policymakers -- from paying much attention to that scholarship.  (Most of them have better things to do than wade through 300 footnotes.)

All of which brings us to the third detail, the one that motivates articles like Harrison and Mashburn's and that animates the much-larger, introspective discussion of which that article (and this blog post) are part.  American legal education is in the midst of a financial crisis that may be unprecedented in its history.  The number of high-paying jobs for lawyers has gone way down in the past decade or so, while law-school tuition has climbed, resulting in a steep decline in applicants to law schools, resulting in a decline in law-school enrollments, resulting in a decline in tuition revenues and thus in law-school budgets.  So law schools have to compete for students to an extent that they have not had to do before.  And not for just any students, but for good students -- the ones capable of doing well in law school, graduating, passing the bar, and succeeding in practice.  But law schools have less money with which to compete for these students -- less money for scholarships, and less money to develop innovative educational programs that can prepare students for the changing legal market.

Which brings us -- whew! -- to the debate over the role of legal scholarship in legal education.  Legal scholarship is an obvious target in the current climate, because (a) it costs quit a bit of money (mostly in the form of opportunity cost), and (b) its benefits (to society, to law students, to practicing lawyers) typically are not salient.  Why not eliminate, or substantially reduce, law schools' support for legal scholarship (by, e.g., reducing law professors' salaries, or increasing their teaching loads)?  This is the rather obvious question that triggers the rather predictable debate.

So let me bring this lengthy post to a close by suggesting a handful (eight at the moment) of basic principles (really propositions at this point) that I think should frame this debate going forward.  I hope to further develop these principles in future posts -- and I reserve the right to amend or supplement them liberally.

1. Legal scholarship should not continue to be financially supported -- in this financial climate or in any other -- if it does not actually generate benefits sufficient to justify that support.
2. To the greatest extent possible, these benefits (if they exist) should be a matter of empirical demonstration and normative argument rather than just taken on faith (or dismissed out of hand).
3. However, it is likely that some potential benefits of legal scholarship will be difficult to measure empirically, or will only be discernible well after the fact (e.g., as scholarly ideas trickle down into judicial opinions and gradually influence the law).
4. Legal scholarship done by law-school faculty (as compared to that done by practicing lawyers and judges on the one hand, or by faculty in other disciplines -- economics, philosophy, political science -- on the other) is likely to have value -- to produce benefits -- that are distinctive, perhaps unique.  Law-school faculty do not have to worry about client interests or judicial impartiality.  And yet their legal training gives them a perspective lacking in most scholarship about the law coming from other disciplines.
5. For reasons suggested by principles 3 and 4, external support from industry or government is unlikely to successfully fund more than a small amount of legal scholarship.  At least some benefits of legal scholarship are likely to be what economists call "public goods."  They are non-rivalrous:  one person's use of them does not diminish the amount available for others.  And (most importantly for my point here) they are non-excludable:  anyone can enjoy them without paying for them.  This last feature makes it difficult to raise industry (private) support for legal scholarship.  That difficulty is enhanced by the chiefly normative nature of legal scholarship, which prevents ethical scholars from relying heavily on industry funding.  While government or nonprofit funding is a more promising avenue, the lack of immediate, demonstrable "on the ground" benefits of much legal scholarship is an obstacle to significant development of these sources.
6. One type of benefit of legal scholarship is its capacity to function as a critical or reforming tool.  Law professors are free to criticize the law and legal systems, not just describe them.  This informed critique is (or can be) a public good, despite its typical lack of direct benefit to judges and lawyers, who typically (though not always) are concerned with what the law is (or can be said to be), not with what it should or could be.
7. Another type of benefit of legal scholarship is its usefulness in educating prospective lawyers.  Legal scholarship can be helpful in providing law students with an overview of a particular legal subject or issue, and in familiarizing them with competing arguments about particular issues and with the concept of good legal arguments in general.  It also can be helpful to teachers in developing new ideas, new ways of thinking, new ways of communicating old ideas -- all of which can be brought to bear in the classroom.
8. A significant reduction in support for legal scholarship would change the makeup of the legal academy.  Not necessarily for the worse, but change would be inevitable.  Many law professors are attracted to teaching in part because of the opportunity to do scholarship.  If that opportunity shrinks or disappears, some (perhaps many) of tomorrow's potential law professors will choose to do other things with their lives.  Some likely results are (re-)stratification in the legal academy -- with the elite law schools monopolizing legal scholarship, as was once the case -- and an increasing reliance by many law schools on faculty who spend significant time practicing law in addition to their teaching duties.

That's all for now.  If you've made it this far, stay tuned!  And of course I welcome your comments.

ADDENDUM:  And a ninth principle/proposition occurs to me:

9. Legal scholarship must change if it is going to survive.  I think it's likely that the changes will be in the direction of shorter works, more immediacy, engagement with a broader audience, and more attention to real-world application, although not all successful examples of legal scholarship will have to push all of these buttons.  There may also be a trend in the direction of more peer review, which may pose some tension with some of these other developments.  In any event, I suspect the reign of the student-edited law review is nearing its end.

As I said, stay tuned.