Even though it is always dangerous to pay attention to supposed details we are inundated by reports on the conditions of the legal profession and legal education. This includes such things as:
The Legal Profession
- There has been an increase in the number of lawyers hired in a particular month in the US.
- There has been a decrease in the number of lawyers hired in another month.
- “This” law firm is expanding hiring.
- “That” law firm is laying lawyers off.
- “Big Law” hiring is up.
- “Good” law jobs are few and far between.
- Many law graduates are dropping out of the market because they can’t get decent jobs or any law job.
- Law jobs are increasingly insecure, mirroring the conditions prevalent in the rest of the economy.
- A significant percentage of law graduates are being forced into hand-to-mouth solo practice settings for which they are not prepared and that represent extremely difficult ways to earn a living. The incomes earned by many lawyers in this situation are insufficient to make ends meet and pay accumulated debt.
- Many smaller law firms are consolidating and shedding jobs.
- Corporations are expanding legal departments and relying less on private practitioners. They are learning how to leverage their other professional and technical resources in ways that reduce their need for lawyers.
- Several states are allowing alternative entries to specific areas of law practice that bypass traditional legal education. Washington has just opened the door to this dramatic shift in the right to practice law and California is reviewing a proposal to allow forms of limited licensing for types of law practice.
- Canada and the UK are allowing non-lawyer ownership of law firms and Britain’s Tesco and Canada’s Walmart have launched low cost basic law practices within their commercial systems. It is only a matter of time until immense and incredibly wealthy businesses such as Walmart insist that they be allowed to do the same thing in the US. The resources, access to clients drawn into the stores’ facilities for other purposes, and the easily achievable advances in economies of scale and marketing such companies possess will transform a significant segment of the traditional legal profession and quickly put a number of the profession’s “Mom & Pop” equivalent of law practices out of business.
- Non-lawyers (paralegals, consultants, CPAs, real estate agents, mediators, financial advisers, etc.) are increasingly fulfilling “quasi-legal” responsibilities that lawyers long considered their exclusive turf. We can expect to see new business forms being created in which one or two lawyers create comprehensive specialized practice networks in which they are able to leverage the need for legal representation in certain areas by facilitating and essentially “rubber stamping” the work of other professionals and giving it the required legal “patina”.
- Specialized information, data sharing and acquisition and communication systems are rapidly reducing and replacing the need for intensive labor activities by lawyers. The “Luddite” irony is that the significant efficiency and labor saving gains realized through the technologies make some lawyers much more efficient while simultaneously eliminating law jobs.
- Some legal services are being outsourced beyond the US.
- Many lawyers, perhaps as much as 40% of private practitioners, are underemployed in terms of being unable to attract an economically required critical mass of paying customers.
- As the American middle class shrinks, lower paying jobs predominate and incomes fail to match inflation the number of people able to afford to pay for a private lawyer’s services can be expected to decline.
- If there is something like 15,000 to 25,000 law jobs available each year for new hiring, previously underemployed and unemployed lawyers will compete with the 38,000 to 40,000 new law graduates for those positions. This is not a good thing for law schools needing to have a substantial percentage of their graduates hired into “law jobs” each year.
- There is a “bulge” or surplus of perhaps 150,000 to 200,000 lawyers who have graduated from US law schools over the past fifteen years. It will take another ten years to “clear” the excess from the system whether through job creation, shifts to other types of careers, death, retirement or simply giving up. The result of the reckless production of this surplus is that many of those “excess” lawyers who are unemployed or underemployed have developed significant levels of resentment about the outcome of their expensive legal educations and are contributing to the message about the lack of wisdom in attending law school through postings on aggressively critical blog sites accessed by potential law school applicants.
- Generic data on “law jobs” is not generalizable to specific law schools because most law schools compete to place their graduates in “law jobs” in local and regional territorial markets. They lack the contacts and resources required to overcome the competitive advantages of law schools that have traditionally seen their graduates employed in a specific market context. As in real estate, the mantra is “location, location, location” unless you are Harvard, Yale, Stanford, Chicago, Columbia, Duke or NYU.
- In a globalized economy non-US lawyers and other professionals are a vital part of the activity of transnational companies with those lawyers’ cultural awareness and contacts being important elements of their employment.
- To a far greater extent than ever before self-representation will replace a significant element of lawyers’ “bread and butter” as intelligent clients use legal tools on the Internet and consulting advice to draft wills, create simple estates and trusts, write deeds and more.
- Public interest entities and organizations such as Legal Services offices are already creating self-help tools for clients that will develop to the point that clients will be able to do a substantial amount of legal work for themselves.
- Artificial Intelligence (AI) systems will provide expertise that renders many lawyers obsolete in areas such as research, writing, case management, and document review. This is already expanding in the financial and medical areas.
- The number of applications to law schools in the February 2015 period is the lowest in the last 40 years. OMG “the sky is falling” (it actually is).
- Law school enrollments are down another 8.4% compared to last year at this time, representing a 35% or more decline since 2010.
- Elite law schools increased their tuition by 10%. While this initially creates an “are you kidding me” reaction the reality is that schools such as Harvard and Yale are not charging more because of the actual educational quality of what they “sell” but because they are selling a “brand” for which a premium is being paid.
- The bar passage rate and quality of analysis is plummeting.
- Law schools are admitting more stupid people. As the best qualified students are siphoned off by the elite law schools with a better brand identity, the other law schools lower in the “pecking order” are not only experiencing reduced enrollments but in many instances an overall reduced quality of students. This is often characterized by a dramatic increase in admissions in the lowest quartile of applicants in which law schools are offering entry to students they would have cringed at only a few years ago.
- Many of the “best and the brightest” candidates of the kind possessing credentials that previously placed them at the top of law school admissions are now going into medicine and engineering and away from law.
- In a “brain drain” phenomenon, schools such as Harvard and Yale are sucking the dwindling pool of “smart” applicants away from other law schools. The “brand rocks”.
- Law student debt is running as high as $150,000 on graduation even though most law students can no longer obtain jobs that enable them to pay off that debt in a reasonable time period.
- A number of law schools are in financial trouble and are downsizing by faculty buyouts and layoffs while some are responding by raising tuition. Some schools that raise tuition may be able to obtain a short term “fix” but the end result is a lack of sustainability and a death spiral.
Numbers Lie and Lie and Continue to Lie
The reason I am listing the above points is that in far too many instances analyses of what is or is going to happen in relation to “law jobs” and law schools in the US are similar to the “body count” data that characterized America’s reporting on the Vietnam War. Every day in that tragic period of Vietnam we were informed that we had killed “X” number of Viet Cong or North Vietnamese troops. As the “X’s” multiplied the thought was that we must be winning because on the face of it we must have “killed” them all or that no one could sustain such losses and keep fighting. Unfortunately, our opponent didn’t seem to get the “you are all dead” message and so never understood they had lost. The result was that as the North Vietnamese entered the struggle in force after using the Viet Cong as “cannon fodder” that softened us up and weakened US morale and public support for a longer war, rather than victory we were forced to flee from the roof of the US Embassy in Saigon barely ahead of the enemy.
The point is that sometimes numbers help us to understand and sometimes they lie, mask or distort an unfortunate underlying reality such as the entry in force of battle-hardened professional troops. In that latter context of needing to understand the “big picture” and overall dynamics of a situation I don’t care about the almost daily litany of specific short-term numbers or “body counts” about what is going on in the legal profession, in law school applications and enrollments and in the quality of graduates and bar exam takers. Even if accurate—they are only a small part of the system’s dynamics. The “daily grind” of hopeful and pessimistic data offers “the individual trees” of the “forest” ecosystems of law and law schools, systems that are undergoing significant changes in their fundamental characteristics. Rather than focusing on the inner workings of hapless law schools and surprisingly unsophisticated legal academics and administrators, it is wiser to identify the external conditions and forces that are going to dictate the system’s outcomes and “rules of operation” over the next five, ten and fifteen years.
In the context of the American legal profession over that period of time the external dynamics are driving the transformation, not the “mini” strategies of the law schools or even the activities of “Big Law” that, after all, are essentially meaningless for all but the highest rated law schools. In the above list ALL the critical dynamics point to a continuing shrinkage of the legal profession as we know it and ALL point to a permanently reduced operational scale for many law schools and the merger and closing of others. We too often take “what is” for “what must be” and in a dynamic marketplace that “myopia” of the familiar is deceptive and blinding. Consider that sixty years ago there were only half as many ABA-accredited law schools and only about 1,000 law professors compared to approximately 8,000 today. Why should it be surprising that if a growth “market” for legal education was capable of stimulating such a rapid expansion that a “compression” market can generate an equivalent reduction in operating scale that includes the disappearance of some institutions? It is disingenuous or naïve to think otherwise.
The Prevailing Market Dynamics Transcend the Power of Law Schools to Control
A question of interest to law faculty is one of how law schools will be impacted by these rapidly shifting dynamics. An important fact is that the external forces in play are largely outside law schools’ ability to control. Not surprisingly, the accreditation wing of the ABA is proposing action that reflects what is taking place. [http://taxprof.typepad.com/taxprof_blog/2015/03/aba-seeks-comments-on-eight-proposed-changes-.html]. This includes attempting to provide specific directions to law schools that are trying to merger as with the recent proposal by Hamline and William Mitchell. Whether it is Thomas Jefferson’s bankruptcy, the Rutgers’ “merger”, Ave Maria’s move from Michigan to Florida, Cooley’s closing of its Anne Arbor campus, Puget Sound’s sale to Seattle University, New Hampshire’s linkage with the state university, numerous faculty buyouts, law faculties being reduced through attrition, and other developing strategies, the reality is that we are only at the beginning of a dramatic restructuring among many law schools. The ABA’s proposed rules seek to recognize what is inevitable and discuss takeovers, combinations with other institutions, sales of assets, job security and the ability to attract transfer students from non-ABA accredited law schools. As discussed below, this latter set of rules regarding transfers from non-accredited law schools appears particularly problematic in that it is likely to lead to a further “dumbing down” of law schools and the overall legal profession.
Law schools are also taking steps to create greater flexibility in their programs, seeking to reduce costs, expanding clinical programs and other more non-traditional course offerings. My problem with much of the rhetoric about “practice ready” graduates and the importance of teaching legal skills is that in 2015 the assertion that simulation courses, clinics and legal writing programs are in some way “innovative” or “revolutionary” is absurd. Many law teachers have offered such approaches for more than three decades and many law students have learned significant practical and theoretical skills from such courses. Claiming there has not already been a dramatic curricular evolution in legal education in which students interested in “practical” education had significant and varied opportunities to gain legal experience prior to graduation is a claim without substance. Suggesting that requiring all law students to engage in such courses will somehow elevate the quality of law practice is naïve at best.
The Absolute Cynicism of the ABA’s Proposed Credit Transfer Rule
The proposal that students from non-ABA accredited law schools should be able to transfer to ABA schools and receive full credit for courses taken at the non-accredited law school is fascinating in that applicants and students from non-accredited schools pretty much enrolled in them because they were not accepted into an ABA-accredited institution. This is a cynical stopgap measure that seems to have two predictable aims. One is to create a mechanism by which the non-accredited schools disappear. Another is to create a short-term source of students for the lower rated half of the ABA-accredited law schools as they siphon off the non-accredited schools’ applicant and student base.
Since the ABA law schools are suffering such a sharp decline in enrollment it seems without question that the ABA felt compelled to open up a new avenue to attract students to ABA law schools at least until the non-ABA law schools collapse. The transfer strategy cannot last for long but it has the potential to offer a two or three-year “bridge” mechanism to mitigate the ABA law schools’ enrollment decline. The hope is obviously that the system will reverse itself within that period but as I indicate above in the listed points all the dynamics point in the opposite direction. If the non-accredited and for profit “bottom feeder” law schools disappear, one result is that the ABA-accredited schools in the nether regions of the national rankings will reap the applicant benefits from students that have been enrolling in the unaccredited schools, ones they would not admit prior to the current enrollment “crisis”.
The avenue the ABA is opening is allowing the transfer of course credit for work done at a non-accredited law school when a student moves to an ABA law school. In a period where there are increasing concerns about the declining quality of law school students and data that suggest a qualitative drop in new graduates’ performance on bar examinations this “innovative” approach does not speak well for law schools or the American Bar Association. But the fact is that the ABA is a trade association that is heavily influenced by the needs of the law schools it accredits. The accreditation rules have simply not required any significant changes to this point—one in which numerous law schools face serious issues that even rise to the level of survival.