Thursday, February 09, 2012

The Long-Term Damage From the Assault on Law Schools

-- Posted by Neil H. Buchanan

It is hardly news that the legal academy has been under sustained assault for the last few years. We at Dorf on Law have weighed in occasionally for the defense, but most of the action has taken place in forums quite hostile to the current law school model. Some of the complaints about law schools are clearly meritorious -- for example, it is impossible to make a case in favor of allowing law schools to lie about their employment statistics -- but many others are downright silly. My overall reaction to the public discussion is that far too many people are launching broad, baseless, ill-informed attacks on an institution that is both fundamentally well designed and essential to the maintenance of a civilized society.

This raucous atmosphere might have the effect of reducing the number of people who are potentially interested in attending law school. We have, in fact, seen a pronounced drop in law school applications this year, which could certainly be a response to the idea that law school is nothing but a "scam" or a waste of students' borrowed money. Of course, there are multiple explanatory factors at work, most obviously the continued recession-level employment prospects for far too many law graduates. Potential students need not believe any of the nonsensical attacks on the case method, nor pay any heed to the false claim that law professors are writing useless articles, to conclude that their individual best choice today is to delay applying to law school (or even to choose never to attend).

Let us take seriously, however, the idea that the attacks on law school are affecting potential students' assessments of whether to apply to law school. How much damage could that do to the broader legal academy? Clearly, if applications bounce back next year, then the one-year dip will be a non-issue. If applications (and ultimate enrollments) drop significantly on a permanent basis, all law schools will be affected, and some law schools will be forced to close. If the effect lasts for several years and then returns to the old normal, then the long-term effect on the structure of the legal academy is likely to be small. (Note that I am leaving aside what I mean by "structure," which could include significant curricular and pedagogical changes, as well as other matters well beyond the number of law schools in existence at any given moment.)

It seems plausible to imagine that the current media hype itself is ultimately driven by little more than the state of the economy. That is, there is a lot of concern about students who are being left in debt without jobs, and some reporters have figured out that they can make a name for themselves by picking up on complaints about law school that -- at least in the aggregate -- are often essentially stand-ins for the understandable concern about the real pain being felt by real people. A news article ridiculing the case method would not be written, or at least would not show up on the front page of The New York Times, if the overall market for lawyers were strong -- even if there really were a good argument to be made against the case method.

So let us imagine that the economy gets back on track within the next few years. Within that time, we might see legal hiring return roughly to levels seen before the Great Recession, and it is even possible to imagine another boom in careers in the law. None of that is guaranteed, of course, as there are plenty of reasons to suspect that some changes in society at large are permanently altering how law schools will operate in the future. Even so, we might imagine a time when the legal academy is no longer under assault, with no (or far fewer) angry blog posts being written, no newspapers publishing series of articles attacking law schools, and no hearings in Congress about alleged wrongdoing by law school administrators. These changes could only happen if the market for lawyers were strong enough to let something resembling good times to roll once again.

It is possible, however, that the current assault on law schools could have a lingering effect, even in that happy possible future world, in hardening potential students' opinions about attending law school. That is, we might currently be witnessing the infliction of wounds that will leave permanent, disfiguring scars on how the pool of future potential applicants views the prospect of applying to law school. Today's assaults might be permanently shrinking our applicant pool.

Although that is possible, I do not think that it is very likely. Potential law students are, for very good reasons, focused on the future, and they have every incentive to think about whether a law degree will be good for them. If the economy improves for lawyers, then it is hard to imagine that applications will not rise in response.

I am reminded of a newspaper article written in the late 1990's, in which the reporter interviewed a bunch of law students who were opting out of traditional law firm jobs to work on "deals" in "real business environments." It was all very plausible in context. Why not do the exciting work of building dot-com businesses, rather than live the stultifying life of a law firm associate? Even though I was not yet a lawyer when I read that article -- indeed, I had no intention at the time to attend law school -- the explanations struck me as nothing more than happy talk to explain why people were following the money. Had firms been paying more than start-ups, we would have been reading about how great it is for lawyers to stand above the ugly, grubby business of brokering deals, with the ability to do important legal work that advances the good of society.

In short, even though there are many secondary effects that might matter, I am highly skeptical that the current assault on law schools is having a permanent scarring effect on possible future enrollments. To be utterly reductionist about it: If the job market for lawyers improves, the future for law schools will be good.

If the current ugliness is not necessarily going to permanently reduce interest in legal studies among potential applicants, is the assault on law schools nothing to worry about? Definitely not. To me, the long-term damage is being done to the notion of the legal academy as an academic institution. Even if future applicants are not being permanently put off of legal education, the public at large -- and especially political players, many of whom are generally hostile to academic inquiry and intellectual freedom -- is being inundated with claims that legal academics are fundamentally out of touch and wasting time and money.

If that critique -- which, I wish it went without saying, is completely wrong -- takes hold with respect to law schools, then it will affect all academic fields even more profoundly, because law schools have always been able to rely on being only quasi-academic (with the "trade school" label always lurking nearby) as a defense against the claim that we are mere woolly-headed denizens of ivory towers. If we are now much more vulnerable, what does that say about the humanities and the "non-rigorous" social sciences?

In short, The New York Times and other news sources are doing serious damage to the long-term prospects of the legal academy, and ultimately to society as a whole. That damage, however goes far beyond the possibility that our future client pool is being drained on the basis of over-hyped claims. The future of intellectual inquiry is at stake, and there is good reason to fear that the damage being done now will have serious consequences well into the future.