The Failure of Crits and Leftist Law Professors to Defend Progressive Causes

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TABLE OF CONTENTS  INTRODUCTION I. THE COST OF ATTENDING LAW SCHOOL II. THE CRITS III. SOCIETY OF AMERICAN LAW TEACHERS (SALT) IV. LIBERAL LAW PROFESSORS V. ELITE LAW SCHOOLS AND THE TUITION-SCHOLARSHIP MATRIX VI. WHY THIS HAPPENED 

INTRODUCTION

Future generations will look back at the first decade of the twenty-first century as a pivotal time when a huge economic barrier was erected to encumber the path to a legal career. The symbolic announcement of this barrier rang out when annual tuition crossed the $50,000 threshold, now exceeded at a dozen or so law schools. Including fees and living expenses, it costs well in excess of $200,000 to obtain a law degree at most of the nation's highly regarded law schools and at a number of non-elite ones as well. Law schools thus impose a formidable entry fee on anyone who wishes to follow what, until recently, has long served as a means of upward mobility and access to power in American society.

The pricing structure of legal education has profound class implications. High tuition will inhibit people from middle-class and poor families more than it will deter the offspring of the rich with ample resources. Law school scholarship policies, for reasons I will explain, in effect channel students with financial

means to higher ranked law schools, reaping better opportunities, while sending students without money to lower law schools. A growing proportion of elite legal positions will be held by people from wealthy backgrounds as a result. For students who rely on borrowing to finance their legal education, the heavy debt they carry will dictate the types of jobs they seek and constrain the career they go on to have.

Liberal law professors often express concerns about class in American society-championing access to the legal profession and the provision of legal services for underserved communities. Yet as law school tuition rose to its current extraordinary heights, progressive law professors did nothing to resist it. This Article explores what happened and why.

Twenty-five years ago, as a budding academic with an interest in theory and concern for social justice, I was drawn to Critical Legal Studies (CLS), and came to know a handful of the first generation Crits (as they were called); philosopher Roberto Unger was my doctoral thesis advisor, and I dedicated one of my books to Morty Horwitz--seminal critical scholars both. Notwithstanding the sharp criticisms that follow, I hold them in high regard, along with Duncan Kennedy, Joseph Singer, Robert Gordon, and many other Crits whose work I have imbibed. I also admire many folks in the Society of American Law Teachers (SALT) and many liberal law professors I know personally and professionally. But I say tough things about all these groups in the hope that an honest reckoning might help shock fellow leftists out of our collective stupor.

This is offered in the spirit of critical legal studies--as a critical self-examination of the failure of leftist law professors. The Crits were highly critical of complacent liberal academics of their day, arguing that they had a hand in perpetuating an unjust legal system; (1) here I charge liberal legal academia--including the Crits--with perpetuating the profoundly warped and harmful economics of legal education. What follows will offend many of my fellow liberals. Liberal law professors must see past their anger to reflect on whether there is a core truth to my arguments, to take personal responsibility for what has happened, and to engage in collective action to do something to alter the economics of our operation. If not, the current economic barrier to a legal career may become permanent.

I begin with a few core statistics on the cost of attending law school and resultant debt, along with job results, revealing the enormity of the price of entry and its consequences for students. I then address, in order, three circles of leftist scholars--The Crits, SALT, and Liberal Law Professors--and I describe the Elite Law School Driven Tuition-Scholarship Matrix and its class consequences. …