One of the most welcome initiatives in U.S. law schools over the last decade or so has been the creation of LRAPs, or Loan Repayment Assistance Programs, which subsidize (by delaying or reducing payments on student loans) recent law school graduates who work in an approved list of jobs. Those jobs are generally referred to as "public interest employment" and are, therefore, rather low paying -- especially by comparison to the positions in large law firms that so many law students seek. Many students who take the higher paying jobs will tell you that they feel boxed in, forced to take higher-paying jobs simply to pay off their student loans, even thought they'd really rather work in the public interest. Law schools responded with LRAP programs. Makes sense.
Given that LRAPs cost the law schools money, the difficulty lies in deciding who is most deserving of the limited dollars available for these subsidies. Beyond the obvious starting point of limiting the pool of potential recipients to those who accept lower-paying jobs, however, some difficult questions arise. For example, at the University of Michigan Law School, which was in the process of significantly expanding its LRAP program when I was a J.D. student there from 1999-2002, I was told that judicial clerkships were not on the list of approved LRAP positions. The theory, as I understood it, was that even though federal judicial clerks were then being paid annual salaries of about $45,000 (about one-third of the starting salaries at big law firms at the time), and even though clerk's duties clearly served the public interest, clerking was most often a stepping stone to jobs that paid very well. As a matter of allocating scarce dollars, it made sense to exclude clerks in favor of, say, advocates for tenants' rights in blighted neighborhoods (or community organizers?).
I recently had a discussion with a colleague about an aspect of LRAP programs about which I had not previously been aware. For at least some LRAP programs, being a prosecutor is on the list of approved LRAP jobs, so long as the salary is below a certain level. When I expressed surprise that prosecutors would be eligible for loan subsidies, my colleague pointed out that it would be political suicide for law schools to subsidize law graduates who work as low-paid assistant public defenders but not those who work as low-paid assistant district attorneys. As a matter of public relations, this would obviously be easy to spin as "friendly to criminals." I can only imagine the storm of protest and demagoguery that would follow. Still, there seemed to be an important difference between the two positions, even when the salaries are similarly low.
For me, it is significant that district attorneys' offices are a well established stepping stone to later career success in politics and private practice, whereas attorneys who provide legal services for the poor more often sacrifice long-term career advancement even as they sacrifice short-term financial security. Obviously, not every assistant DA becomes Lieutenant Governor, nor is every assistant PD stuck earning $30,000 per year forever; but the career paths that lead out of the two offices are generally quite different. Public relations concerns aside, it seemed odd that prosecutors would be eligible for these limited funds. (Clearly, the more money that is available within any LRAP program, the easier it is to avoid difficult tradeoffs. In the extreme, we could make law school free for everyone. I haven't heard any plans to move in that direction recently, though.)
Pursuing this line of reasoning further, I began to wonder whether LRAP money should be available for judges. Clearly, federal judges would be ineligible for assistance simply on income-cutoff grounds, since all federal judges earn well over $100,000 per year. We often hear arguments about whether even those salaries are too low, but I cannot imagine anyone suggesting that a federal judge should be eligible for an LRAP program. Some state judges, however, are paid quite poorly, reportedly as low as $40,000 per year in New York State and lower still elsewhere. Should they be eligible?
Certainly, any person who is earning a low salary would welcome loan repayment assistance. That, however, is true of judicial clerks, who are excluded from coverage. Judges have opportunities to leave the bench at any time to move into some seriously high-paying jobs. Perhaps the difference is that we want judicial clerks to move on, whereas we are worried about judges hitting the trail too soon. There is thus at least one good policy reason to think that subsidizing judges is better than subsidizing judges' clerks.
Of course, it is also possible that we should not be excluding judicial clerks from the pool, either. Just as a thought experiment, I encourage readers to consider the following hypothetical. You are running an LRAP program's selection committee. You have four applicants, each of whom will earn the same (low) salary, is the same age (let's say 28 years old), and is in every other way similarly situated. They are about to accept the following positions:
(A) Judicial clerk,
(B) Public defender,
(C) District attorney,
(D) State judge.
Do you give all of the money to one recipient (which one?) or split it among two or more (which ones? evenly?)? Why? Show your work.
[Note: During September, I am cross-posting my Dorf on Law posts on the Concurring Opinions blog.]
-- Posted by Neil H. Buchanan