“Puffing” and “Blowing Smoke”

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The “back and forth” over what is happening and will happen in America’s legal profession and US law schools is frustrating. I see many of the assertions being made by deans and law professors as wishful thinking about what they hope or feel will occur in order to keep up a “brave front” in the face of a catastrophe they cannot prevent. The fact is that if deans and other significant figures in the world of legal education admitted the truth of what was occurring the result would be an acceleration of the downward slide. There is virtually no chance that an honest analysis will be forthcoming from “official” sources. Nor is there much chance that the process has run its course.

Rather than an honest assessment of what is happening and what pretty much is guaranteed to take place over the next five to fifteen years in law schools and “law jobs”, we see claims that the legal profession will rebound and jobs for law graduates return. Almost daily, momentary micro-shifts in the situation are projected pro or con without connection to the macro-dynamics that are playing the primary role in the contracting future of the legal profession and law schools. It feels that we are either running around like little chickens proclaiming “the sky is falling” or like big chickens who are comfortably ensconced in our nests and dedicated to the proposition that “we have seen everything before and it will all be OK soon so stop being so alarmist”.  Either way we are mostly just “clucking” around.

The reality is that “things” will be OK—just not for many of the faculty members and staff of a majority of US law schools whose jobs are at risk or for heavily indebted law students and graduates without jobs of the kind they spent huge sums trying to obtain through their legal education. “Things” will be quite OK for the country because we don’t need more lawyers of the kind we have seen for the past half-century in the volume law schools have been producing. “Things” will be OK because this is a period of re-imagining what it means to educate someone to provide legal services and one in which the long-term monopolistic control over entry into the legal profession by law schools, the ABA and state supreme courts is finally being recognized as the self-interested and expensive restraint of trade that it is.

Scale and Economics

The issue of adequate scale and economics is even more important if we choose to go along with the “practice ready” arguments some are making and accept that there is a need for an expansion in well-run and substantive course experiences that introduce law students with sophistication, breadth and intensity to what is involved in the actual practice of law. What are typically thought of as “skills” courses tend to be more resource intensive that general law school offerings. Historically law schools were founded on the fact that they operated “on the cheap” and generated surplus revenues for their parent universities.  The obvious problem with this is that we are in a declining resource base situation rather than a neutral or rising one. Implementing such course requirements in that context raises the specter of severe battles over resource distribution and faculty hiring. It is possible to create positive educational experiences that takes place outside the law school walls but in my own rather extensive experience in developing and coordinating such programs there is a constant risk of inadequate oversight and experiential quality. Such courses can unquestionably be worthwhile and exciting but do not offer automatic quality of education across the board. It is difficult to find placements with the kind of commitment to teaching and learning we would wish not only due to the fact that high quality teaching is a special skill and that staffs in outside placement contexts have their own programs to put first.  Of course, it is also possible (and fair) to argue that there are no real quality controls within law schools governing the ways in which traditional courses are taught by tenured law professors who pretty much do whatever they want without much oversight.

One immutable fact is that in 2014 enrollment in law schools’ first year classes was about 37,000 students, down from 52,000 five years ago. An enrollment drop of that magnitude over a three-year period results in a decline in a 45,000 students attending US law schools. There has been some debate about whether some law schools would close from among the 204 ABA-accredited institutions and the forty or so non-ABA law schools. No one knows and many have made guesses. I have suggested that as many as twenty law schools could shut down and that as many as 80 should close if the ongoing law schools hoped to maintain something approximating the necessary scale of activity and curriculum that has traditionally been assumed as essential to a quality legal education.

The ironic reality about whether law schools should close is that if we look at the issue from the perspective of the twenty seven percent decline in law school enrollments over the past three to four years we can argue that the equivalent of 60 law schools have already closed in terms of the resources going into the system. I suggest this based on the idea that four years ago if we average the number of law schools against the total law student population the average size of a law school was 625 students. Four years later that average fell to 480 students. Even this is not uniform. I just looked at the list of the nation’s largest law schools and a “back of the envelope” calculation indicates that the twenty largest law schools enrolled nearly 28,000 JD students even though at least twelve of those schools had low to even very low US News ratings and only three could be considered in the top twenty of the national rankings (Harvard, NYU and George Washington).

In 2014 in a slumping total student enrollment market, 69 law schools increased their enrollments while 127 decreased. In a completely rational action law students are seeking what they determine to be the highest value law degree that they feel has the ability to provide them with the best return on their educational investment in the form of well-paying jobs. This dynamic is also represented in the burgeoning law student transfer market in which more highly ranked law schools are reaping harvests of qualified transfer students from lower rated and increasingly indignant competitors. At this point there are numerous law schools that now find themselves with enrollments of between 250-400 students and it is a serious problem that those schools have high level fixed operating costs that can only be met by admitting lower qualified applicants and/or reducing faculty and staff. If anyone thinks this does not pose a major ethical challenge for law schools I have a bridge in Brooklyn available for sale.

“Goods” and “Bads”

If total law school Juris Doctor candidate enrollment was approximately 150,000 five years ago and is now 120,000 this represents both a good and a bad. The primary good is that fewer lawyers are being produced in a saturated market that even with a significant surplus has still not seen improvement in the delivery of legal services to people in need but who can’t afford legal fees at current market rates. Another good is that a few law schools are exploring alternative ways to educate people in law and different kinds of law degrees. In several instances there are efforts underway to educate people over shorter time spans that reduce expenses in states such as Washington where the right to practice some forms of law is being conferred without having to complete the traditional model of legal education. California is now considering such an approach and if that occurs it will offer a significant expansion in access to legal services to people in need but who lack the financial ability to pay a lawyer the currently “going rate”.  Such changes, if adopted in California, will very likely accelerate the deaths of a number of traditional format law schools that refuse to accept the alternative as being “beneath” them.

The “bad” has multiple components, and here I am addressing it mainly from the perspective of law schools and law students. For members of law school faculties and staffs in the 95% of schools that are considered “non-elite” it is a bad that their job security is in danger. People who had counted on permanent and well-paid jobs with status and considerable perks are increasingly finding that might not be the case. Even here, those who have taken advantage of the forced retirements and buyouts that some law schools have been using to shrink expensive staff may be more fortunate than those still at earlier stages in their careers. This is because it is likely to turn out that universities will implement even more draconian restructuring policies with their law school faculty and staff as it turns out that the changes in demand for a traditional legal education are permanent and the educational resources continue to decline. What law school faculty still seem to not understand is that many universities are under enrollment and financial pressures related to declines in the rest of their programs. Those universities will take an increasingly hard look at their law schools in terms of pay, working conditions and even whether they are worth keeping.

Another “bad” is that it has become increasingly clear that in an effort to maintain some degree of essential financial base through tuition revenues many law schools are admitting large numbers of applicants from a declining pool of “warm” student bodies whose predictable intellectual capability ranks considerably lower than past applicants. We can suggest numerous qualities that relate to what we hope a lawyer possesses in regard to the ability to practice law. I suggest that a significant degree of natural intelligence and analytic capability would rank high on the scale. What is clearly occurring at this point is there is much greater admission to law schools of candidates considered not qualified for admission to ABA-accredited law schools only a few years ago accompanied by early indications that such candidates are performing less well on bar examinations after graduating.

“Puffing”, Avoidance Behavior and “Blowing Smoke” to “Fool the Wolf”

Law schools engaged in maintaining their revenue base on the backs of unqualified and marginal applicants are betraying the ideals they have long professed. Of course, given the declining job prospects for law graduates, the law schools are also betraying the lesser-qualified students they are admitting for purposes of revenue maintenance. A law school in Florida that is currently crowing about the fact that it posted the highest bar passage rate among the state’s law schools costs nearly $250,000 to attend. Somehow it has not posted on its website along with that bar passage factoid that according to data reports mandated by the ABA only 37% of its recent graduates obtained a job for which a law degree was required.

It is entirely understandable that law school faculties will do everything within their power to keep their jobs and substantial salaries while maintaining the pleasant working conditions that have long-characterized the position of law professor. For a substantial number of faculty members their “holding actions” and denials will allow them to make it to the end of their careers while operating in largely the same conditions to which they are now accustomed. For many others, however, that comfortable transition will not occur and they will experience layoffs and terminations, increased workloads, reduced pay and elimination of the “extras” that have long been associated with the privileged position of law professor. They will also face a rising degree of competition from non-tenure track law teachers, temporary contract faculty and adjuncts. It will not be a “happy time” in many US law schools.

Several Dismal “Truths”

There are many things that could and have been said about what is going on in law schools and the legal profession. But there are some “truths” being ignored far too easily. I suggest they include the following.

  • Curriculum reform is not the answer to what ails law schools. There are various ways to educate people to practice law and the primary requirement is that the people engaged in the process as students possess above average intelligence, analytic ability, and a degree of innate subtlety and craftiness. If they do then they will figure out how to do what is required regardless of a specific law school curriculum. If they don’t, a course of study can improve what they are capable of doing but the reality is that you can’t “make a silk purse from a sow’s ear” and you can’t make an intellectually mediocre person smart. This is not elitism, simply a fact of life.
  • There are way more than enough lawyers available for clients capable of paying for their services. It will take several decades for the surplus created by the law schools to “clear”. There is no valid reason to anticipate any significant “uptick” in law school enrollment during that period.
  • At this point the continuing health of law schools not ranked among the elite or not the flagship law school of a state or of a religion (Notre Dame, Georgetown, Brigham Young) is all about job access, location, competitive rankings, alumni support networks, “brand” reputation among potential employers, and serendipity.
  • Virtually all other strategies within the control of law schools are largely ineffectual in a law school’s being able to attract applicants in the numbers desired for the critical mass needed to operate a school at the level of quality that would be hoped for a traditional graduate academic/professional institution of higher learning.
  • The current intensity of competition for the declining pool of “warm student bodies” along with the absolute insanity of the US News and World Report law school rankings have combined to create a system in which it is almost impossible for a law school to improve its perceived rank in any meaningful way without “gaming” the system.   Members of a law school’s faculty have every reason not to say anything good about another law school and may even have the incentive to “trash” a competing school so that its peer reputation rating does not improve. Judges and law firm partners who contribute to the rankings reputation system know very little about specific law schools and tend to respond in ways that guarantee the maintenance of the existing law schools’ reputational hierarchy. They assume that Harvard, Yale and Stanford scholars and graduates are better than others so their responses inevitably accumulate in ways that consistently rank those institutions at the top and rank others about which they know little or nothing much lower in an “endless reproduction of the same” system.

 

 

One comment

  1. JJ says:

    Excellent analysis (as always), but I do have one caveat regarding these “alternative ways” of educating practitioners in Washington and California. Even if these providers do become a factor in the legal sector, the disadvantaged will STILL not receive the legal services they require.

    As it stands today, we already have lawyers working at extremely low salaries to serve various disadvantaged groups. We also have many attorneys in private practice that waive their “going rates” in order to accommodate clients. Anecdotally, I personally see this type of accommodation happen all the time.

    The problem, however, is not the low salary; the problem is that there is NO MONEY at all. In other words, lawyers would essentially have to volunteer their time to help these disadvantaged groups. This is something NO provider of legal services will agree to, even if they are trained in less time and accumulate less debt.

    Frankly, the only way to really help the underprivileged would be for more grants, either by government or by a charity.

    I personally think finding ways to help the underprivileged should be incorporated into a new model of legal education. If, as in medical school, law school consisted of a full year or two of supervised clinical work, we’d be able to tackle this problem more effectively, as well as to offer a more practical training for attorneys.

    Again, thank you for this very informative blog.

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