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Law Schools: Tournaments or Lotteries?

I think David Segal’s flashy and inevitably much-e-mailed Sunday Times piece on law schools ultimately represents a missed opportunity. There’s some good stuff about rankings competition and how law schools continue to expand, charge high prices, and generate large profits even as the market for lawyers contracts. But he takes the easy way out by mis-portraying a tournament as a lottery.

Segal repeatedly characterizes going to law school as a form of gambling, “like a game of three-card monte, with law schools flipping the aces and a long-line of eager players, most wagering borrowed cash, in a game that few of them can win.” Yet nearly all of the students, he notes, “are convinced that they’re going to win the ring toss at this carnival and bring home the stuffed bear.” Segal acknowledges that this argument is “complicated by the reality that a small fraction of graduates are still winning the Big Law sweepstakes. Yes, they tend to hail from the finest law schools, and have the high G.P.A.’s. But still.”

But still what? Law school isn’t a game of chance. It’s a tournament. My wife, for example, entered the law-school tournament in 2001. The first stage was getting into a good law school, which she managed with stellar grades from a Big Ten university and very good (but not quite stellar) LSAT’s. That was enough for the night program at Georgetown Law, which sits near the bottom of the top tier at number 14. Then she spent the next four years working really, really hard. She attended every class, five days a week, 5:30 to 8:30 PM, and spent every Sunday, morning to night, in the law library. And unlike Spendthrift McGee, the lead character in Segal’s article, who borrowed $250,000 to attend a fourth-tier law school because it was in a warm climate, with long debt-financed European vacations thrown in for good measure, she didn’t want to be overwhelmed by loans. So she took a difficult four-fifths-time job as a law-firm analyst during the day to help pay the bills. Four years later, she graduated Magna Cum Laude, entered the federal clerkship tournament, and won that too. Now she works for the federal government as an appellate litigator.

The point being, there was nothing random about it. She want to class and other people didn’t. She spent Sundays studying while others were watching football. Everyone applying to law school takes the same standardized test. Classes are graded on a curve and class rank is relative to other students who took the same classes. It’s not perfect—nothing is—but law school is about as close to a fully transparent pure meritocracy as you’ll find in American education.

That has strong bearing on how we should think about law schools from an ethical perspective. The thing about three-card monte is that it’s illegal. You can’t set up a carnival ring toss in your back yard and charge $1,000 a throw. Lotteries are the exclusive province of state legislators who would rather not raise taxes honestly. All legal gambling is highly regulated. That’s because these are all games of chance where the odds are deceptively stacked in favor of the house.

The morality of tournaments is more complicated to judge. The worst offenders are probably those who open up new bottom-tier law schools and charge top-tier prices. Students there have lost the game pretty much before it begins. And just because law schools can induce legions of young students to borrow tens of thousands of dollars for tuition doesn’t mean they ought to. “Non-profit” law schools that generate tons of cash to be spread among faculty and the larger university aren’t exactly embracing the ethic of public obligation.

At the same time, trying to win the law school tournament is like shooting for the top of a lot of other difficult, talent- and effort-dependent professions—artist, musician, novelist, professor at a Research I university. Most who try, fail. But that’s not exactly a secret. It’s telling that Segal framed his story around someone so callow. There is a better, more nuanced account of law school ethics to be written.

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