The Problems with Income Based Repayment, and the Charge of Elitism: Responses to Schrag and Chambliss

Abstract

Critics of Failing Law Schools have focused on two main points: 1) Income Based Repayment (IBR) solves the debt problem for law students, and 2) the differentiated legal education system I propose is elitist and will create a division within the legal profession. These two critiques are articulated by Philip Schrag and Elizabeth Chambliss, respectively, in a symposium on the book in the Georgetown Journal of Legal Ethics. This essay responds to both arguments. (I do not respond to two other reviews in the symposium, which I find persuasive.)

I accept Schrag’s argument that the new version of IBR/PAYE — implemented after the book was published — substantially reduces the financial burden on heavily indebted law graduates (with a major caveat about the tax bomb that awaits them when the debt is cancelled). For reasons I explain, however, IBR potentially has perverse consequences. It was intended as a debt relief program for graduates in financial distress (which I support), but as Schrag argues, it works as a subsidy for legal education. Now law schools have begun pitching IBR, telling prospective law students not to worry about taking on huge debt. This distorts the purpose of IBR and, by rendering the size of the debt irrelevant, exacerbates the warped economics of legal education.

In her review, Elizabeth Chambliss declares: “Tamanaha’s own critique and prescriptions are professionally self-serving and dangerously, outrageously, elitist.” She argues that I focus too much on the financial plight of law students and recent law grads and not enough on clients. A few other critics of the book have echoed her arguments. In response, I show that Chambliss distorts my position, ignores the reality of the legal job market, and avoids the heart of the problem: a substantial number of law schools take in large numbers of students, load them down with huge debt, and send them off to horrendous job prospects.

Keywords: Legal Education, Law and Humanities, Law and Society, Legal Profession