“Law School Trilogy” Posts

Note: The following — lengthy — post is a collection of three separate posts dealing with law school which appeared on Opus Publicum‘s predecessor, Ius Honoarium, in late 2011/early 2012. Since the question of my experience in law school (and after) arises from time to time, I thought it may be of some service to re-post them. At the time I wrote them, I was a faculty fellow at DePaul University College of Law. Please remember that these posts are nearly five years old; my thinking has developed on some of the sub-issues addressed below.

Law – Originally Posted September 1, 2011

Diane, a frequent commenter on this web-log, asked if I might share a few thoughts on law school. To do so, it’s necessary to say a few things about American legal education, the academic study of law, and the legal profession itself. Because of my somewhat “offbeat” position in the legal landscape, I find that I have something of an “outsider’s perspective” on all of these facets, even though I maintain direct contact with all of them. I don’t consider myself an expert on any of these areas, only someone who, through frequent reading and interaction, has come to formulate what can probably be described as “rather strong” opinions on such things. I won’t pretend that this is a complete recitation of my views, but it should be enough to get the ball rolling.

First, no one should doubt for a single moment that there are too many law schools in the United States. At last count, there are just over 190 educational institutions approved by the American Bar Association (ABA) and a handful of others operating—with some success apparently—without ABA approval. The result of the rapid growth of law schools is a thinning of the talent pool, not just within the study body but among the faculty as well. What this means is that students who are not, conventionally speaking, academically impressive or capable (for a variety of non-intellectual reasons) of securing a placement at a Top 100 law school (as defined by U.S. News) are likely (but not guaranteed) to receive a sub-standard legal education. There are exceptions, of course. Lower tiered law schools which eschew trying to be quasi-graduate level departments of legal studies and instead focus on training their students in the nuts n’ bolts (along with the substance) of law can still produce very good lawyers. But with many so-called “Third Tier” schools struggling to make their way into the coveted Top 100, more and more are hiring the thinning supply of qualified scholars who can boost the school’s academic reputation. Many of these individuals are not only poor academics, but poor lawyers as well (or, more specifically, poor students of the law). They’re essentially hacks and no student benefits from having them as a professor.

Second, the realities of the job market provide a second argument that the American legal landscape is saturated with schools. According to several recent reports, as many as 33% of the 2010 graduates of American law schools are either without jobs or without law jobs. It is clear that law schools are graduating too many students, though there is no incentive for them to stop. When law schools function as money-makers for the universities they are attached to, the goal remains to keep the students coming (within reason; overly liberal admissions policies result in a less impressive lot of students and thus a reputational and statistical loss in the rankings). And since the federal loan program provides many would-be law students with a source of cheap money, law schools rarely have to be sensitive to the market when it comes to setting tuition. Moreover, the rapid increases in law professor pay, coupled with the tenure system, makes it difficult for law schools to cut costs by dropping deadweight faculty. These factors, and more, add up to a system where law schools have powerful incentives to maintain high prices and admissions policies which are not calibrated to the demand for new lawyers.

Third, for several decades now law schools have drifted further and further away from teaching, well, law. The rise of interdisciplinary studies, which can be traced back to the 1930s and the Legal Realist movement, took a shot in the arm during the 1970s and 80s with the emergence of Law & Economics, Critical Legal Studies, Law & Literature, and a plethora of other “Law & [Blank]” movements. As an academic matter, some of these trajectories have produced a bountiful scholarly literature that has illumined many areas of law and, in some limited circumstances, affected doctrinal development. As a practical matter, however, most of these research agendas are irrelevant to most practicing lawyers, particularly those who focus in private law areas. (This is not to say that all of these areas are irrelevant; many lawyers could benefit from having a solid grounding in economics, statistics, and graduate-level research methods.) Law schools have come to rely on the profession to supply their students with practical skills—a model which works up to the point where it simply becomes too expensive for law firms to dedicate resources to training novice lawyers who may, or may not, stick around long enough for firms to see a return on their investment. More and more firms, particularly small and mid-sized practices, want their new lawyers to come fully equipped with the everyday skills they will need to be good practitioners. The problem is that fewer and fewer schools are supplying those skills, thus compelling students who want to shore-up their credentials to seek non-remunerative positions during their student years. The “payoff” of this approach is that students do gain some practical knowledge; the downside is that their foregone earnings are replaced by more student-loan debt.

Fourth, with respect to debt, there is a good chance that most law students who have graduated in the last five years will not be able to pay off their loans within the 30-year limit set by the federal government and most private loan suppliers. Even if the legal market picks up again, the reality is that it will remain well-stocked with lawyers for decades to come. This increased supply will lead to depressed fees—a boon for clients, but not for the profession. Positions which may have returned $75k/year in 2007 will yield $65k (or less) in 2011. And so long as law schools keep flooding the market, this trend will not be reversed. At some point, perhaps, information concerning the legal market will dissuade potential students from entering law school, thus leading to an eventual decline in graduates. How long this will take remains far from clear. Moreover, if the legal market does pick back up again, it’s likely that many will take this as a sign that they should enter law school, even though they will be graduating into a swelled market. In short, things are not likely to get better anytime soon.

Fifth, though the legal academy has more than its fair share of problems, no one should be blind to the problems of the profession itself. The legal profession has become a parasite on the American economy and will continue to function as such until there is either top-down legal reform in this country (an unlikely prospect) or the entire legal educational system experiences in a sea change in how it approaches, as an ideological matter, the nature and purpose of law (an even more unlikely prospect). This observation is not a rehash of the “conventional wisdom” that all lawyers are liars, cheats, and scoundrels (though some are). Rather, it is an observation about the self-interested nature of the legal profession and its rational desire to create business. There is nothing more wonderful to a lawyer than a new law or anything more likely to result in an explosion of consulting and litigation opportunities than a new regulatory schema. The administrative state has been a boon for the profession for decades and will continue to act as such, regardless of whether the regulations applied through this schema are in any sense justified. Lawyers simply have too much at stake to see these schemes go the way of the dodo, which is why lawmakers (the majority of whom are lawyers) have no incentive to roll it back. Moreover, because so many lawyers have reared on the idea that the administrative state is normative, it comes as no surprise that public law subjects are heavily pushed in law schools. Subjects such as Contracts, Wills & Trusts, and Secured Transactions are castigated as “bar classes” that must be endured; the “real heart” of law is public and administrative. If that is the orientation of law-school graduates, is it any wonder that the administrative state continues to grow?

Sixth, and related to the fifth point, the legal profession would better serve the economic interests of the country by being redirected toward private law areas, that is, law which helps to maintain, transfer, and increase wealth rather than capture, waste, and redistribute it (rarely to the most needy in society). But in order for there to be a genuine increase in private-law lawyers who, more importantly, are affordable to the whole spectrum of American society, the price of legal education must be depressed. One simple method of doing this would be to delete the largely useless third year of law school entirely. Another—perhaps more promising—route would be to reform bar-admission requirements to allow undergraduates who have been sufficiently trained in the law (such as a five-year concentrated program at the undergraduate level) to enter the profession with far less debt. Universities with the faculty and resources to do so could still create academic “Legal Studies” departments, but they would be primarily reserved for those seeking an academic, rather than a professional, career. (In the end, I imagine there would only be about 20–30 schools in the U.S. which could credibly maintain such departments.)

In the end, I believe that some level of reform is coming to American legal education, but my suspicion is that it will be piecemeal, haphazard, and underwhelming. The hard truth is that thousands upon thousands of law students will find themselves acquiring larger and larger debt loads for fewer and fewer opportunities. Eventually the market—as distorted and uneven as it already is—will provide some correction to this problem, but it will be far from painless. Few law schools (and their employees) will feel the pinch. Rather, it will be those bright-eyed students who believed that the study of law presented a pathway to a better, more rewarding, life who will be left holding the bag.

More Law – Originally Posted September 13, 2011

Since my first post on legal education , I have had time to comb through more than a dozen recent articles chronicling the employment woes of not only law school graduates, but moderately experienced attorneys who have lost their jobs since the 2008 economic crisis began. In-house attorneys have been hit particularly hard, though there are plenty of former “big law” employees who, unsurprisingly, have been unable to find that “other $160k/year job” to replace the one they lost. So far, I have read nothing which instills even the slightest inkling of hope for these unemployed (or under-employed) licensed attorneys. And even though law school enrollment is apparently down at many of the nation’s schools this year, the drop will not be significant enough to restore equilibrium to the market.

Recently, a newly elected dean at a Top 100 law school remarked that new graduates will have to become more “entrepreneurial” to negotiate the current marketplace. This is a smokescreen statement intended to divert attention away from the fact that this school, like many law schools, cannot provide a reasonable chance that its graduates will find work in established firms, companies, or government institutions. The “entrepreneurial” claim is also farcical. Most law schools do not provide the requisite training for new graduates to enter the legal profession without further mentoring/oversight from more experienced attorneys. I would wager that if most law school graduates attempted to be “entrepreneurial” the day they receive their licenses, they’d be staring down the barrel of a malpractice suit before the end of the year.

I have read several suggestions that the federal or state governments should step in to provide economic relief to unemployed attorneys in exchange for legal services to indigent clients. Superficially, this sounds like a reasonable plan of action; in practice, it could be a disaster. As noted, many recent graduates are not fit to practice without being placed in a working law firm/legal department. Also, student loan forgiveness—the leading compensation suggestion—doesn’t pay the rent or put food on the table. In order for these plans to be successful, attorneys would have to be compensated with a mixture of loan forgiveness and real earnings. They would also have to be placed in a preexisting institutional setting where they can be properly supervised. But even if these steps are taken, offering cheap, subsidized legal services comes with the attendant risk of increased litigation, frivolous lawsuits and other legal filings, and attorneys uninterested in being “zealous advocates” for their clients. Most would likely view subsidized attorney positions as stepping stones to “real” employment; the sooner they can get out, the better.

A more radical suggestion on offer is across-the-board loan forgiveness without any additional requirement that these attorneys work for some sort of public aid legal services program. The thinking here is that if attorneys are freed up from their debts, the ones who are genuinely interested in public service law (and hence would be good advocates) will go that route while others will push into areas—legal or otherwise—that are of interest to them. This is a very expensive suggestion and fraught with administrative difficulties. Without some form of means testing, for instance, there is likely to be strong public outcry against attorneys making $200k/year receiving $100k in loan forgiveness. More importantly, it’s not entirely clear why lawyers should be a privileged class. Why not loan forgiveness for nurses, doctors, accountants, and school teachers, too? And where does one draw the line? Do 2010 graduates receive loan forgiveness because they entered into a bad job market while 2007 graduates—still heavily encumbered by their debt—are out of luck because they got in just before the crash (though are perhaps still suffering through it)?

I am doubtful that any action will be taken on this issue. There’s simply too much else distracting the country right now for politicians to invest time trying to get law school graduates off-the-hook for their poor career choices. The only (remotely feasible) action the U.S. Government could take is stepping in to regulate law school admissions guidelines. The American Bar Association has, in theory, the power to strip law schools of their accreditation, though they have no strong incentive to do so. The loss of accreditation does not automatically mean the law school will close anyway. Also, the ABA is likely to remain under pressure from alumni associations and individual practicing attorneys not to close their alma maters. Finally, the accreditation process and the “prestige” which accompanies it are simply too lucrative for the ABA to throw away for something as flimsy as the best interests of the profession.

There is a brief ray of hope shining through the clouds, though its chances of being swallowed up are high. There are now several class action lawsuits underway against American law schools for their failure to properly report employment statistics and other relevant data. If even one of them proves successful, it could spark a nationwide series of suits which not only forces schools to engage in more honest disclosure, but inflict enough economic damage on particularly egregious offenders that it forces them out of the law school market altogether. I imagine that this will be an uphill battle. These are law schools after all and many judges will probably not be terribly sympathetic to “failed attorneys” taking their grievances out on their former educational institutions. But maybe I am wrong. By this point, there must be enough judges across the country who know what the contemporary law school is like. Perhaps their sensitivity to the fraudulent nature of the enterprise (at least at certain schools) will tip the scales in favor of the plaintiffs. One can only hope.

More Law? – Originally Posted January 3, 2012

Due to a number of “pressing matters,” I missed the end-of-the-year wave of law school critiques which adorned the pages of Slate, New York Times, and various web-logs. Though I didn’t take notes, from what I recall the critiques were the usual fare: law schools don’t teach law; there are too many law schools in the United States; the current legal market no longer affords law firms the latitude to put the polish on recent graduates; etc. Two law professors from Yale suggested that law schools ought to offer recent 1Ls a 50% rebate on their tuition to quit law school. A couple of blog commenters suggested that the federal government should step in and close all but the top 100 law schools in the country (though, unless I am mistaken, this would leave Mississippi without any legal academy); another suggested that only the top 50 deserve to stay. Of course, the government has no apparent authority to do any such thing, but I suppose that’s true of so many things the government has and continues to do on a regular basis. Regardless of what one thinks of these critiques or the rather far-fetched suggestions for “big bang” reform, it appears that legal academia, more than any other comparably “worthless” branch of formal education and inquiry currently on offer in the United States, remains a perfectly acceptable target for public scorn from lawyers and non-lawyers alike.

A recent e-mail from one of the commenters on this web-log (to which I promise a personal reply in the near future!) steered my thinking back to law. Truth be told, I have quietly let my “legal knowledge” (however one defines that) slip a bit in the last few months. Not too long ago I would religiously check the latest issues of the major law reviews (Harvard, Yale, Chicago, Columbia, etc.) to keep abreast on the latest salvos between constitutional theorists and the various declarations that Law & Economics is dead (or in the midst of a renaissance — take your pick). I always tried to read one or two articles outside of my academic comfort zone just to see what other people were up to and maybe get a sense of what the next “Law & [Whatever]” fad was going to be. But if one does this long enough, one quickly finds that they’re no longer reading about the law so much as digesting theory after theory of the law. “Law,” in fact, becomes almost irrelevant; most legal scholarship which is heralded as “cutting edge,” “empirical,” “high caliber,” and so forth apes social science literature (albeit with a 10 to 20 year lag). This isn’t always a bad thing, mind you. For instance, Adrian Vermeule’s on system effects and constitutional law, while perhaps not as paradigm shifting as the Harvard press releases imply, still makes for an interesting read. Moreover, the infusion of game theory and other rational-choice methodologies from international relations scholarship into international law writing has been, in my opinion, the first interesting thing to come into that field since Vattel’s The Law of Nations (I jest…). Pure doctrinal scholarship, such tracking and criticizing the latest common-law developments concerning the rule against perpetuities, has been thrown off the reservation. I have no doubt that one could read 50 articles from a handful of elite law journals and never once learn a single legal rule.

Such is life. “Law” is no long a freestanding “science” — not in the way it is conceived and conducted amongst the elites in American legal academia. “Legal reasoning,” i.e., analogical reasoning, is a rhetorical art form and not a privileged skill unique to the discipline. Judges, by and large, carry no special insights or capacities for discerning the “right outcome” in most cases; many will act in accord with personal (political) preferences. The “best” we can do is check these ambitions through diverse judicial panels (or something). There’s no need to go on, I suspect. I doubt one could speak about the “majesty of the law” to contemporary students with a straight face. If you attached that line or the sentiments behind it to a piece of published writing, you can all but kiss your tenure potential goodbye. Law has been degraded at the highest levels of academic reflection; it really should come as no surprise if law schools are falling over themselves to no longer teach it.

This isn’t a lamentation on my part, mind you. While I do, now and again, want to believe in the “majesty of law” or, at least, the value of studying law qua law and not as a datum, I can’t bring myself to imagine why it would matter. Yes, there are still some “true believers” out there like Richard Epstein who has gone on record to blast law graduates for not knowing enough law, but his critique is instrumental. After all, if one doesn’t know a great deal of law, then what do you have to “sell” would-be clients who might otherwise look the information up themselves on the Internet? Perhaps Epstein, an Oxford graduate from the “good old days,” believes that assembling a strong background in “the law” (generally speaking) will provide students access to insights and connections that more myopic lawyers lack. I’m not sure. I do know he believes that theory — the prized possession of the best schools — is important, too. Both should be taught, albeit with a mind toward balance. He may be right, but his admonition is unhelpful without a clear measure of the weight which ought to be afforded to each.

I, naturally, have a few ideas. Since there is no way that a three-year law school program can or ought to teach any given student “the law” as a whole, it would not be unwise if greater weight was placed on directing students into particular fields or realms of law. The most elemental distinction I can think of is between private and public law (albeit with the reminder that la large swathe of the private law is no longer judge-made, but statutory); further breakdowns can occur from there. Eventually it will become clear that some schools hold a comparative advantage in one or more areas than others. I suspect, for instance, that elite schools will continue to churn out not only more legal academics and future judges, but lawyers, either working for the government or in private practice, who deal almost exclusively with some set of administrative law. Lower level schools, on the other hand, can and probably should provide the chops to people who will be handling divorces and drafting wills for medium-sized estates. That’s not “sexy law,” I suppose, but it pays (unlike, say, a “strong foundation” in federal antitrust law from fourth tier academy). Given that elite schools have an edge on theory already, they are better positioned to instruct new lawyers on those theoretical issues which are valuable to practice.

Some may attack this general proposal on the ground that it denies a heavy concentration of students the opportunity to learn and specialize in some areas of the law, but so what? The alternative is to provide unrealistic career expectations to students who would have been financially better off focusing on riparian rights than the finer points of the Administrative Procedure Act. Additionally, the basket of research and writing skills necessary to successfully negotiate complex antitrust litigation are — I hate to say — a few grades above what’s necessary to handle a DUI. Yes, “it’s all law,” but some of it requires a radically lesser degree of dumbassedness than others.

Keep that in mind kids when filling your e-applications which, as I understand it, are transmitted for free to dozens upon dozens of law schools in the blink of an eye.

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