August 18, 2005

Why should a state run a law school?

Andrew Morriss, guest-blogging at Volokh Conspiracy, doesn't think there is a good enough reason for state universities to have law schools.
Why should states have law schools at all? If there is a desire for more lawyers in a state, funding a state law school (esp. a prestigious one) is not an efficient means of getting them. In Ohio, for example, Ohio State touts the opportunities for its graduates to get jobs across the U.S., not just in Ohio, after graduation. Clearly not aimed at maximizing the number of new lawyers in Ohio.

Here in Wisconsin, the diploma privilege — exempting Wisconsin own law students from taking the bar exam — shows we're serious about supplying lawyers for the state. Much as we also care about helping students find employment outside of Wisconsin, if they leave they will have to take a bar exam.

Morriss has more on the topic here, where he addresses many of the justifications that people raised in the comments to his first post.

Why pick on law schools, though? Look at all the other departments of the state university. Do they all make sense in a way that law school doesn't? I haven't read all of Morriss's posts over there, but his main topic has been law school rankings, and I think his more fundamental problem with state law schools is their participation in the effort to climb in the U.S. News rankings. If there is a reason for the state to run a law school, is it consistent with competing in the rankings?

This reminds me of the question Justice Scalia asked counsel for the University of Michigan in the oral argument in Grutter?
QUESTION: Ms. Mahoney, I — I find it hard to take seriously the State of Michigan's contention that racial diversity is a compelling State interest, compelling enough to warrant ignoring the Constitution's prohibition of distribution on the basis of race.

The reason I say that is that the problem is a problem of Michigan's own creation, that is to say, it has decided to create an elite law school, it is one of the best law schools in the country. And there are few State law schools that — that get to that level.

Now, it's done this by taking only the best students with the best grades and the best SATs or LSATs knowing that the result of this will be to exclude to a large degree minorities.

It is — it's not unconstitutional to do that, because it's — that's not — not the purpose of what Michigan did, but it is the predictable result. Nonetheless, Michigan says we want an elite law school.

Now, considering created this situation by making that decision, it then turns around and says, oh, we have a compelling State interest in eliminating this racial imbalance that ourselves have created.

Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other State law schools do, lower the standards, not have a flagship elite law school, it solves the problem.

MS. MAHONEY: Your Honor, I don't think there's anything in this Court's cases that suggests that the law school has to make an election between academic excellence and racial diversity. The interest here is having a —

QUESTION: If it claims it's a compelling State interest. If it's important enough to override the Constitution's prohibition of racial distribution, it seems to me it's important enough to override Michigan's desire to have a super-duper law school?

MS. MAHONEY: Your Honor, the question isn't whether it's important to override the prohibition on discrimination. It's whether this is discrimination. Michigan — what Michigan is doing benefits —

Perhaps the question Morriss really means to ask is not whether the state should run a law school, but whether the state, if it chooses to run a law school, ought to have a different, less elite approach than a private law school.

2 comments:

Bruce Hayden said...

As usual, I find your comments interesting. As many know, this was an interesting discussion over at volokh.com yesterday.

But I find the discussion of a "local" law school interesting here in Colorado, as the state law school is proud of the fact that it is the "national" law school, while DU is the local one - with probably 1/3 or better of the attys and better than that on the bench, state wide. This is a point of pride at CU.

I think I can see a potential need in some of the less populated states out west, but in New England, given all the law schools there, it is hard to justify.

Part of this discussion is historic. There are agreements between the various states out here that other states help financially with some school or another, and in return, get preferential in-state admissions for its residents. Some that have used this are the Vet school (CSU), the medical schoo (CU), mining engineering (CO School of Mines), AG (CSU again).

I should add that if a state is serious about this sort of thing, all they have to do is condition enrollment at preferred pricing on employment in the state for say, 5 years, after graduation. To get around servitude problems, etc., you put a price tag on this so someone can buy their way out.

If you will remember, the TV series Northern Exposure was somewhat tied to this - the doctor from NYC had his tuition paid for by Alaska, and was working it off after graduation.

Ryan Hatch said...

Come on, how many people actually stay at Wisconsin because of the bar privilege? No one that I know of.

And think about it: do you really want to keep those graduates who are so scared they will fail the bar that they stay in Wisconsin?