Women and Law School

By Mark McKenna

If I told you that a famous professor from a well-known law school was arguing on his/her blog that law schools should consider discounting their tuition by 1% for each year a graduate stayed in the work force (with the purpose of encouraging attendance by those to whom the law school education would add the most value), what school would you guess that professor was from? It’s an easy question for me – University of Chicago, where everything can be reduced to dollars and cents. And that’s precisely right – it’s Judge Posner, responding to an article in the New York Times a couple of weeks ago about how some female Yale undergrads expect to leave the workforce at some point after having children [The article was not empirical, and it has been very controversial].

I think Posner is greatly oversimplifying the economics involved here. The evidence pretty clearly suggests that fewer and fewer people are advancing to partnership at big firms (where the big money is), as firms create ever more heirarchical structures. Thus, going to law school with the expectation of making a lot of money down the road is becoming more and more like a lottery, with lots of people buying tickets and few hitting the jackpot. [I realize that, in the big scheme of things, first year associates making $135,000 is hardly peanuts. But I take it that Posner is talking about people who stay in the workforce for a long time, and you can’t stay an associate forever]. But people’s willingness to pay huge amounts of money to go to law school is based in large part (and, according to Posner, should be based entirely) on that person’s expected lifetime return. Lifetime return, of course, is determined by the supply and demand in the market for attorneys – and that market presumes that a certain percentage of lawyers will drop out, whether to raise children, become a high school english teacher, or whatever. If we adopted Posner’s system, it seems to me that the expected return would have to go down, since supply of attorneys would rise without any reason to believe demand would rise at the same time. Thus, students’ willingness to spend exorbitantly on law school may well go down.

I don’t know whether that would happen or not, but it seems to me an equally plausible scenario as Judge Posner’s, and determining which one is more likely requires a lot more data. This is one of the reasons I have a hard time with law and economists sometimes – you can make a lot of assumptions that greatly oversimplify reality and then smuggle in normative goals under the guise of “neutral” economics. And it seems to me that is precisely what Posner is doing.

On its face, that point has little to do with marketing. Dig a little deeper though, and you’ll see that a great deal of the economic assumptions made in the context of trademark law are just the type of assumption Posner made. They assume that consumers will behave in certain ways and make little attempt to empirically demonstrate that behavior. Those assumptions are normatively loaded, but they are often expressed as though they were neutral descriptions of the way the market works. It doesn’t have to be that way; we can learn a lot about consumer behavior if we only learn to ask the right questions.

As a final, and to some extent unrelated point, let me loop back to the beginning of my post. I asked at the outset which school you would associate Judge Posner’s position with. If it was an easy answer for you as it was for me, it is because the University of Chicago has done a good job of branding itself. What we make of that brand is a different, and more interesting, question.

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