Law Professors Are Academia’s 1 Percent!
This analysis is less about law schools than about the trends occurring outside law schools as in the changing conditions of the legal profession, the delivery of legal services and “law knowledge,” and in the economic climate within which lawyers and clients function. These changes have far more to do with the effects of those external conditions and needs on the future of law schools than the very limited steps that can be taken by law schools to mitigate the consequences of the ongoing “crisis” whether those steps relate to individual law schools or the overall “law school industry.” Of course an initial mea culpa is in order because the law schools contributed to the situation by their gross overproduction of new law graduates over the past twenty five years without asking whether there should be limits to the “high pressure stream” of new lawyers they were injecting into the legal profession on levels that that far exceeded the profession’s ability to assimilate the output.
What law schools need to understand at this point is that the current form, method and control over who was admitted to the mysteries of law and the right to practice law are not inevitable nor were they essential. Law schools are reactive mechanisms rather than creative ones. Law schools grew into their current form over the past century in order to provide services to particular societal, professional and economic interests. Law schools do not possess an independent identity regardless of professorial aspirations to being involved in higher intellectual activity. Modern law schools were created as a convenience that bestowed substantial profits on parent universities, elevated the public perception of lawyers as university graduates rather than uneducated and unethical shysters, and expanded the ability of the organized bar to control the legal profession as a guild.
Something I fear laws schools are missing in this time of change is that they are experiencing the effects of conditions located outside their walls, ones over which they have virtually no control. To this should be added the fact that no one likes lawyers and by association law professors. Law professors are the “One Percent” of academia and that means no one is going to lament their passing simply as a matter of resentment and jealousy. In this era of resentment over the distribution of wealth and power it is ironic that law faculty members do not appreciate either just how insignificant they are in any “grand” scheme of things or the extent to which others in the university world and elsewhere might enjoy their plight as the system collapses around them. The message might be phrased somewhat inelegantly as “they just aren’t that into you” even if law faculty generally feel they are at the center of what is in fact a very small part of the legal universe.
Think of it this way: if law schools did not exist would we still find ways to create lawyers? Sure, no problem. What we defined as lawyers in a non-university-based system of educating in law knowledge and for law practice (these aren’t the same thing) would likely take on a somewhat different form but methods would be invented that provided a system of social regulation and resolving disputes. It would be useful to be honest and admit that the practice of law is not “rocket science” and most law is simply various sets of technical rules and invented language. Many people could do it, a lot of not all that bright people are already doing it, and intelligent people who never endured law school as currently conceived could perform better in a variety of tasks than quite a few that have already received a law degree and had the exclusive right to practice conferred on them after expending a very large sum of money.
Law Schools Reflect the Conditions and Needs of the Legal Profession, Paying Clients and Our Economy
The only thing saving many law schools from collapse is the anti-competitive monopoly granted them by the combination of the American Bar Association and state supreme courts which together are intent on protecting their constituents’ (lawyers) turf and competitive advantages. This system is not one focused on advancing the highest intellectual dimensions of law. It was created to serve the competitive interests of lawyers and has little or nothing to do with the needs of people seeking assistance with matters of law. Without the constraints imposed by the ABA—State Supreme Court alliance we would expect diverse systems of educating people in law to have been created as well as numerous approaches by which people could obtain legal advice and specific kinds of representation at generally lower cost.
As law schools have ratcheted up the “price of admission” to the legal profession considerably beyond the rate of inflation over the past thirty years a result is that basic legal services have increasingly been priced out of the reach of many who need advice, services and representation.  This creates an imperative that could produce better and more widespread access to law services even while reducing the need for more lawyers. Economics and “lawyer affordability” are becoming critical elements of change. At this point many people who are categorized as middle class from a socio-economic perspective are nonetheless “legally impoverished” in the sense that they cannot afford to pay for the costs of a lawyer. This is becoming even worse to the extent that the economic conditions of the American middle class are shrinking with the result that access to legal assistance is being denied to a large band of citizens who are too poor to pay for lawyers but whose income is too high for eligibility in subsidized legal assistance programs. A result may be pressure to expand subsidized access programs or to expand the definition of who is entitled to practice “law.”
If the rigid constraints of the ABA/Supreme Courts monopoly from which law schools benefit were eased then the nature of legal education in America would change rapidly and dramatically. This could still occur. The recent US Supreme Court decision concerning the North Carolina Board of Dental Examiners’ effort to control the right to legally perform teeth whitening may suggest that the Court is ripe for a look at ABA and state-by-state rules restricting the right to offer some forms of legal advice and service. Certainly the fact that there are states in which arbitrators and mediators do not have to be lawyers or admitted to practice in the particular state suggests that there is no inevitability to having lawyers being the only people who can make decisions grounded in law.  But even if the system somehow manages to remain the same on the surface it will still experience significant alterations in form and scale in actual practice.
Caught In the Midst of a “Kondratiev Long Wave” of Economic Change
What the law schools did in their exercise of oblivious greed over the past twenty years is “water under the bridge.” Law schools did what they did, and the ABA let them do it. In that sense since the ABA membership is in the hundreds of thousands and the ABA sets the admission, curriculum and accreditation standards for most law schools, the legal profession and judiciary abdicated their own responsibilities and are as much at fault as law schools. There is enough blame to go around that playing the “blame game” at this point really does not matter other than to serve as a warning about continuing institutional blindness, self-interest and neglect that unfortunately is likely to continue. Universities are also part of the problem because they were thrilled to acquire the excess profits their law schools produced and so instead of intelligent limits on their growth we saw an expansion in the number of law schools as well as the size of existing schools. This is now all coming to a head.
A consequence is that the system of law schools is in the process of being forced to make adjustments to dilemmas caused by their own irresponsibility and greed. We can equate what is happening at the moment to what occurred in the excesses of the raucous decade of the “Roaring Twenties” followed closely by the Great Depression. We are still in the early years of the “American Law Schools’ Great Depression.” Particularly challenging is that the cyclical dynamics and infusion of a large “surplus commodity” represented by too many lawyers is being accompanied by a “Kondratiev Wave” of technological change and capital reinvestment and restructuring among some of the profession’s main clients and in the overarching economic system. Although there is debate about the concept, the Russian economist Nikolai Kondratiev identified what he considered to be “long waves” of change in Capitalist societies. Investopedia explains: “Kondratiev called these large performance fluctuations “super-cycles,” which last 50-60 years.”  Unfortunately for Kondratiev, he had been instructed by Joseph Stalin to prove the inevitable collapse and death of Capitalism, not that it experienced cycles of transformation and rebirth. He spent the remaining years of his life in a Siberian gulag.
Whether we call them “Kondratiev Waves” or the effects of a restructuring economic system resulting from communications technologies and exponentially advanced information capabilities relative to what existed even fifteen years ago, an unfortunate fact for law schools, for their heavily indebted law graduates and even experienced lawyers, is that the “compressive” effects of the combination of cyclical change with the production of a bulging surplus of law graduates are being multiplied by fundamental structural and technological transformations in our economic system. This unique combination of phenomena is intensifying and lengthening the downturn as well as reshaping the “upturn” by changing the demand for legal services in ways that render naive any hope that what is being experienced by law schools and lawyers is an ordinary cycle. Part of the process is that lawyers will increasingly lose control over who “practices law.”