Lower courts are stumbling over the Second Amendment. Badly.

In its deeply problematic 2008 decision District of Columbia v. Heller, the Supreme Court’s (then) five-justice conservative majority declared for the first time that the Second Amendment protects an individual right to possess a gun for purposes of self-defense.  One of many reasons why the Heller decision was problematic was that the majority opinion, written by Justice Antonin Scalia, provided almost no guidance to lower courts regarding how to apply the new constitutional right the Court was announcing.

Heller’s professed methodology was originalist:  the Court recognized an individual Second Amendment right on the ground that, according to the five-justice majority, the Amendment was understood to protect such a right when it was ratified in 1791.  One difficulty with this methodology is that it makes it very hard to apply the Amendment to modern issues, unforeseen by the Framing generation.  How (for example) would that generation have applied the “right … to keep and bear Arms” to semiautomatic assault rifles, or to persons on the terrorist watch list?  Because these particular problems were unknown in the late eighteenth century, there is no on-point “original understanding” to discover.  And because the originalist methodology currently in vogue purports to render irrelevant the purposes or values the Amendment was designed to serve, judges who profess faith to originalism cannot refer to these purposes or values in applying the Amendment to contemporary problems.

This interpretive obstacle was compounded by two additional features of Heller.  First, the Court failed to specify the type of scrutiny that would apply in future Second Amendment challenges.  For most constitutional rights, the Court has developed different levels of means-ends scrutiny for different kinds of laws that affect the right.  For example, under the First Amendment’s Free Speech Clause, the Court applies “strict scrutiny” to laws that regulate speech based on its content, striking down a law unless it is “narrowly tailored” to serve a “compelling” government interest; it applies the less-demanding “intermediate scrutiny” to laws that regulate speech in a content-neutral way (e.g., noise ordinances or laws requiring a parade permit).  Means-ends scrutiny provides some guidance to lower courts, relieving them from having to make an all-things-considered judgment about the validity of a law in every case.  In Heller, however, the Court offered no instruction regarding what level or levels or scrutiny should apply to laws restricting gun possession.

Second, the Heller Court, despite its professed originalism, acceded to modern realities by acknowledging that its decision had limits.  “[N]othing in our opinion,” Justice Scalia wrote, “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 commercial sale of arms.”  The logic behind these exceptions, however, was not explained by the Court.  Were these “longstanding prohibitions” simply outside the scope of the Second Amendment?  If so, why?  Or did these examples represent cases in which the Second Amendment right is outweighed by pressing government necessities under some version of means-ends scrutiny?

The product of these foundational uncertainties in Heller has been a predictable struggle in the lower federal and state courts to make sense of the Second Amendment as it plays out across a wide variety of contexts.  To some degree, this process of messy case-by-case clarification is an inevitable part of our constitutional system; it occurs every time the Supreme Court issues a groundbreaking constitutional decision.  And indeed it is exciting, in its way, to watch courts grapple with the task of forging doctrine around a newly minted constitutional right.  Unfortunately, however, the result so far has often been decisions that are even more normatively troubling and conceptually incoherent than Heller itself.

Consider two cases decided within the past month by en banc federal Courts of Appeals.  (En banc means all active judges of the court participated in the decision of the case, rather than the three-judge panels in which Courts of Appeals typically render decisions).  In Binderup v. United States Attorney General, a fragmented Third Circuit held that a federal statute prohibiting the possession of firearms by convicted felons violated the Second Amendment rights of two men who had been convicted of relatively minor crimes many years ago.  And in Tyler v. Hillsdale County Sheriff’s Department, an even-more-splintered Sixth Circuit ruled that a federal ban on gun possession by any person “who has been adjudicated as a mental defective or … committed to a mental institution” violated the Second Amendment as applied to a man who had been involuntarily committed for a short time as a juvenile.

One serious problem with both Binderup and Tyler was the bewildering variety of views expressed by the judges in each case.  In Binderup, the fifteen judges of the en banc Third Circuit divided into three overlapping opinions, none of which commanded a majority of the bench.  Not to be outdone, the sixteen Sixth Circuit judges in Tyler split into no less than eight separate opinions with no majority.  In each case, shifting coalitions of judges disagreed about how to determine whether the plaintiffs and their conduct fell within the “unprotected” categories listed in Heller; about whether a finding that the plaintiffs’ conduct was protected by the Second Amendment required a per se ruling in their favor; about the level of means-ends scrutiny to be used in evaluating the statutory prohibitions in question; and about whether the level of scrutiny (whichever it was) should be applied to the statute as a whole or only to the enforcement of the statute against the plaintiffs.  En banc rulings are supposed to clarify the law within a particular federal Circuit, but both Binderup and Tyler had the unhappy result of making the law even more confusing than it had been before they were decided.

Nor was the discord and confusion generated by these decisions unique in the post-Heller Second Amendment case law.  As a November 2015 Justice Department memo illustrates, judges across the country have disagreed on precisely the issues that flummoxed the Third and Sixth Circuits in these recent cases.

At least as troubling as the incoherence of Binderup and Tyler was their bottom-line result:  each case in effect created personalized constitutional exemptions from the enforcement of federal firearms laws.  A majority in each of these decisions ruled that federal bans on gun possession by categories of presumptively dangerous people – convicted felons in Binderup, involuntarily committed mental patients in Tyler – could not be applied to the particular plaintiffs in question without violating the Second Amendment.  The courts did not say that these gun regulations on the whole were unconstitutional – nor could they, given the obviously compelling government interest in keeping guns out of the hands of dangerous criminals or the seriously mentally ill, an interest that is only underscored by the daily news headlines.  Instead, these courts in essence ruled that any given felon or mental patient is entitled to argue in court that otherwise valid gun regulations should not apply to him, because of some fact about his background that suggests he is not truly “dangerous.”

This kind of individualized “as applied” challenge to an otherwise valid legal rule is almost unheard-of in other areas of constitutional jurisprudence.  Indeed, highly individualized challenges have been explicitly rejected by the Supreme Court in several analogous contexts, including in the area of religious liberty jurisprudence under the First Amendment’s Free Exercise Clause.  And there are good reasons for disfavoring them.  Individualized rulings threaten to turn general laws into Swiss cheese, riddled with arbitrary holes in which they cannot be enforced against particular people or categories of people.  They allow courts to overrule elected legislatures on intensely empirical and predictive questions, like who is too dangerous to possess a gun.  And they invite a flood of costly litigation to determine whether, in each of potentially thousands of cases, an individual’s particular circumstances entitle her to a special carve-out from laws that others must obey.

Until the Supreme Court brings more clarity to Second Amendment doctrine, however, the lower federal and state courts will continue to generate incoherent decisions like Binderup and Tyler.  Among other things, the high Court needs to determine whether individualized Second Amendment exemptions are permissible or required; whether there are in fact entire categories of people (e.g., felons) or gun-related conduct (e.g., carrying assault rifles) that fall outside the Amendment’s protections; and the standard by which to assess the great many federal, state, and local laws that in some way affect gun possession.  Of course, the current Court is deadlocked on most hot-button issues between four deeply conservative and four relatively centrist members (with occasional crossover votes by Justice Kennedy from the first group and Justice Breyer from the second).  A structurally deadlocked Court is not likely to take any important constitutional cases, under the Second Amendment or otherwise, until the deadlock is broken.  This fact highlights the already salient significance of this November’s presidential election, which will determine, among a great many other important matters, how the Court eventually shapes Second Amendment doctrine.

Non-elite law schools in the 21st century: the business school model

I’ve had occasion to do a lot of thinking lately about the future of American law schools, particularly the vast majority of them that can’t be considered “elite” schools.

It’s old news that times have been tough in American legal education over the past six or seven years.  Almost every non-elite American law school is now tuition-driven, relying primarily on its own tuition revenues for its operating expenses.  And at most of these schools, the vast majority of tuition is generated by the JD program.  But this model is under heavy strain, thanks to a confluence of factors including heightened competition among law schools, declining JD enrollments, and increasing operating costs.  Some of these trends may ease somewhat over time, but none is likely to reverse course in the foreseeable future.

The most salient trend is declining demand for legal education.  Applications to U.S. law schools have plummeted since 2010 and are only now beginning to level off at less than two-thirds of the 2010 volume.  Most law schools have had to respond by reducing enrollment, admitting students with lower credentials, or both.  The former strategy has a severe impact on a law school’s budget, while the latter harms bar-passage and employment rates.

In light of these developments, how can American law schools thrive – indeed survive – over the next several decades?  Most of them, I believe, will have to pursue one or more of four strategies.

A few elite schools will prosper simply because they are elite and demand for their degrees therefore will remain high.  Clearly this path is not open to most of the more than 200 ABA-accredited institutions.

A handful of schools will cultivate a market niche that saliently distinguishes them from the competition.  But while schools can and should develop distinctive programs, there are relatively few specialty areas that are both prominent enough to attract large numbers of students and stable enough to withstand changing market conditions.

A few other law schools will respond by drastically lowering JD admissions standards, admitting most or all applicants who are willing to pay.  This path, however, is both ethically problematic and likely to be foreclosed by anticipated ABA or federal government regulations measuring outcomes such as bar-passage rates.

The large majority of non-elite American law schools, then, will have one basic strategy for success in the twenty-first century marketplace, the particulars of which will vary substantially from school to school.  I will call this strategy the “business school model.”  Compared to law schools, most U.S. business schools are more closely integrated with their parent universities; they are more innovative in the educational products they provide and in how they deliver them; and they are more diversified in the array of degrees and other academic products they offer.  Non-elite American law schools, I believe, will have to become more like business schools in these respects to thrive in the twenty-first century.

Integration.  To prosper in the coming decades, those few law schools that are not yet embedded within a university should seek to do so, and embedded law schools should look to enhance connections with their universities in creative ways.  Close integration with a parent institution is advantageous, financially and otherwise, particularly in perilous economic times.  Closely integrated law schools can cut costs by sharing administrative and instructional functions with their parent universities and by piggybacking on university marketing, technology, foreign programs, and other assets.  They can offer a broader spectrum of academic options to their students and take advantage of a built-in college-to-law-school pipeline.  And with the university’s resources as a backstop, they typically have greater leeway to adjust or retool in response to changing market conditions.

Innovation.  Law schools will need to embrace innovation in order to thrive in the years ahead.  On the revenue side, American law schools must develop new products to sell (more on this below) and must penetrate new markets for their products, particularly overseas.  On the cost side, law schools must readily take advantage of advancing technology to deliver their products more cheaply.  For example, within a decade or so it will be feasible to have a quality law-school classroom experience in an all-digital environment.  Adopting this technology when it arrives will allow law schools to substantially reduce a significant component of their costs (in the form of bricks-and-mortar classroom facilities) and to enroll students with only limited regard for geographic limitations.  Early adopters will have a substantial market advantage.

Diversification.  Increasingly, non-elite law schools will succeed by diversifying the array of educational products they offer.  While the cost-benefit analysis will differ from school to school and from program to program, it is likely that most law schools can enlarge their tuition revenues in a cost-effective way by offering alternatives to the expensive, all-or-nothing JD.  Law schools should look for opportunities to add nontraditional degree programs that are tailored to regional demand, that leverage existing expertise and capacity where possible, and that take full advantage of synergies with the parent university.  These might include undergraduate degree programs, joint degree programs, graduate programs in non-law fields with close affinities to law (such as public policy), and perhaps limited license legal technician programs like the one currently being piloted in Washington State.

As always, I welcome your thoughts.

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.