This policy is hurting students. Federally subsidized loans have enabled law school tuition to spiral out of control. As noted by Professor Paul Campos, “[i]n real, inflation-adjusted terms, tuition at private American law schools has doubled over the past 20 years, tripled over the past 30, and quadrupled over the past 40,” and resident tuition at public law schools has climbed even faster. So long as the federal loans keep coming, tuition is unlikely to stop rising. In the words of Professor Brian Tamanaha, author of “Failing Law Schools,” “Federal loans are an irresistible (and life-sustaining) drug for revenue addicted law schools … law schools have been ramping up tuition and enrollment without restraint thanks to an obliging federal loan program.”
If the government were to stop lending for law school or even just impose per-student or per-school caps on loan amounts (perhaps combined with making it easier to discharge student loans in bankruptcy), law schools would have to dramatically lower tuition, in order to attract students. There would be no other way for most students to finance their education. (And many law schools are already struggling to fill their seats.) Private lenders might step into the breach – but carefully, because banks have a stronger interest than the government in actually getting repaid. Private lenders would focus on borrowers going to law schools with strong job placement records. And if banks are unwilling to lend to all law students, that’s further proof that the market produces too many lawyers.
Of course, the nation does have a significant “justice gap,” or a severe shortage of lawyers willing or able to serve the poor (or even middle class), to practice in certain (often rural) communities, or to work in public-interest careers. To address this problem, the federal government could dramatically curtail general law-school lending but set aside some money to lend without restriction (or even award as scholarships) to law students who commit to working in an under-served community or sector for several years after graduation. In 2013, South Dakota did just this, passing a law establishing a program that subsidizes lawyers who work in underserved rural areas for five years. The program took effect in July 2013, so it’s too early to render a verdict on its success, but according to South Dakota Chief Justice David Gilbertson, response to the program has been “beyond, quite frankly, our expectations.”
Law school administrators often respond to calls for reform by pointing the finger elsewhere. For example, why not crack down on federal loans for other types of education? Uncontrolled federal lending plagues a wide range of fields, to be sure – but if we have to pick one field in which to experiment, law school is a good place to start. According to a New America study, law school graduates have the second-highest debt burden among graduate and professional students, behind only graduates of medical school and other health-science programs. But given that our nation faces a shortage of doctors (which may explain why unemployed doctors are rare compared to unemployed lawyers), now is not the time to discourage people from pursuing medical education. Student loan reform should logically start with law school and then expand to other sectors, applying any lessons learned from the legal-education pilot program.
Lawyer jokes and “Better Call Saul” notwithstanding, the law is a noble profession – but it’s also an oversubscribed one, due in large part to excessive federal lending. To paraphrase Shakespeare, the first thing we do, let’s defund all the lawyers.