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.


DHMC said...

Part I

I was surprised and disappointed to read this post, for I usually agree with Prof. Buchanan's analyses. I have three main points of disagreement. 1) The only people who care about this debate are already in the profession, so I doubt people outside of the profession have much of a sense of it -- I am a pretty wide consumer of news, and the broader discussion is only on legal blogs. 2) Culling of law students is a good thing. Even before the recession, too many law schools of widely-varying quality were putting too many lawyers into the market (I write as someone who attended a middling second-tier law school, so this is not a top 10 bias being evinced). The recession was brutal on the legal profession, but recessions tend to be most brutal on professions where there is some kind of glut. Plus, unlike the internal debate on legal education, the “downsizing” (I hate the word, but it is in common currency now) that has occurred in the legal profession has been widely covered. Everyone who has been to law school has had classmates and friends who went to/were thinking about going to law school because they could not figure out what else they wanted to do. “I dunno – it seems like a good idea.” How many times have we all heard that? I reckon that these are the people who are no longer applying – for they realize that the legal profession is not a guaranteed meal ticket. (These are probably also the same people who leave the profession by that magic five-year line.) So their loss as applicants is not a loss to the profession. 3) Much about how we “educate” (or don’t educate) our lawyers is misguided at best, a scam at worst, and this carries over into how the profession is organized. LSATs, most law school exams, bar exams, CLEs , the difficulty (or inability) to take your professional skills across state lines without shelling out more money for another pointless exam – few of those hurdles test , teach or evaluate any of the skills that are actually needed as a practicing lawyer, yet we treat these things as if they have been in place since 1066, or Magna Carta, ignoring the fact that they are mostly accretions of the last century (or less). This country produced some pretty good lawyers who did not spend a day in law school – such as many of the Founder generation. It is past time for lawyers, those “in the field” as it were, and in the academy, to assess where we are as a profession, how we got here, and whether changes are warranted that would both produce better lawyers, and would draw lawyers from more diverse backgrounds (racial and economic).

DHMC said...

Part II

I felt after leaving law school that a two-track system of legal education should be considered – one, for those who intend to be practicing lawyers, could be two years (or four trimesters, with autumn, spring, and summer each counting as a trimester), and then a mandatory apprentice period with a firm or another legal organization before being admitted to the bar. A separate track, more along the model we have now, could be for those who want to have a more in-depth appreciation for the law. (Perhaps the shorter/practical track could be the JD, the second, more philosophical/academic, could be the LLM.) And I would scrap the bar exam. This is just a back of the envelope idea, which admittedly has echoes of the solicitor/barrister distinction in our common law mother England, but it demonstrates how the legal profession in this country could be reconceived. (Too few lawyers in the US have any idea that there are other ways than ours of educating lawyers, or thinking about the law.) Of course, there are powerful psychological reasons – it was good enough for me, everyone else should suffer as I did (what I term the boot camp mentality) – why the profession will be difficult to change, as well as powerful economic interests at stake (those who administer tests, those who sell prep guides, like the Washington Post-owned Kaplan, those who offer the mostly-pointless CLE classes, state bar associations, etc., etc.)

The only reason there is an “assault” on law schools is that a critical mass of people who have been through the system are saying, "You know what, the system did not give me the skills I needed, and it made and continues to make demands on me that have little or no correlation to the skills I need as an attorney." Rather than blindly defending a system that works for some but arguably does not work for the profession, Prof. Buchanan should step back and consider whether change is warranted. I feel it is, but law school is not the sole problem. The profession as a whole needs a rethink.

Mark Regan said...

Law school is not "essential to the maintenance of a civilized society." What a bunch of rubbish.

Mark Regan
Anchorage, Alaska

Neil H. Buchanan said...

My thanks to DHMC for his thoughtful comments. Although he was disappointed by my post, and indicates that he disagrees with me, I see very little in his comments with which I would categorically disagree -- or, if I do disagree, the disagreement is hardly fatal to a good discussion.

(1) "Nobody outside the profession cares." I hope so. If DHMC is right about this, then I'm worried about nothing. I see a tendency for the public discussion about professors in general to follow a common line of attack -- "They're all a bunch of impractical intellectuals." The attacks on law schools follow this line of attack (while mixing in other complaints, of course). If I'm wrong, then my concerns about the consequences of these attacks will turn out to be unfounded. And that would be good news.

(2) "There were too many law students, anyway." Probably true (especially the part about the people who defaulted into law). A large, long-term reduction in law school enrollments could be a good thing, but at the very least, it would be a challenge to manage. Since my conclusion was that enrollments are not going to be driven by NYT articles attacking law schools, however, the goodness or badness of current enrollment levels is ultimately beside the point.

(3) "The current system needs to be rethought." Agreed again. CLE's, while great in theory, are apparently ridiculous in reality. Licensing across state lines is an unnecessary restraint on trade. And on and on.

If it appeared that I was "blindly" defending every aspect of the way the legal profession is currently organized, then I did not communicate my point well at all. I am saying that the tenor of the recent run of attacks on law schools feeds into an anti-intellectual current in American politics, and that this is likely to further undermine support for intellectual freedom and academic inquiry over the long term.

This means that I can agree that it would be good to have a discussion about how to improve the overall structure of the legal system (only one part of which is law schools), while still expressing serious concern that the discussion in many quarters reinforces an anti-intellectual and anti-academic element in society.

Should we have more clinics, externships, shorter JD's, etc.? Let's have an honest debate. I am responding to those (clearly NOT including DHMC) who are pushing the message that the problem with law schools is that the professors are not "practical" enough, which is both false in the aggregate and likely to lead to calls to undermine the academic role of law schools.

Shark Sandwich said...

Even if our economy recovers tomorrow, many young lawyers and law students will be left out in the cold. Don't pretend to not understand legal hiring. The firms will skip over the graduates and 3L's to go straight for the kids at OCI. So how does this help everybody else?

You're also trying to change the subject to an argument you know you can win. But really, many of us don't care what professors write in their articles. We're just concerned that they're drawing six figure salaries to do do, and that they aren't being asked to do enough in the classroom.

Deborah Jones Merritt said...

Neil, I agree that the attack on law schools engages anti-intellectual themes that have marked American culture at least since the mid eighteenth century. But that doesn't mean all of the attacks are wrong. Indeed, one of the best ways to defuse the anti-intellectualism is to identify the valid attacks and work to solve them. That, after all, is in the spirit of all academic inquiry: Use intellectual courage to identify problems (even in things that have long been taken for granted), examine the problems using knowledge from all relevant disciplines, and propose innovative solutions.

Very few law professors talk about the extensive research in cognitive science, education theory, medical education (a huge field in itself), and other disciplines that sheds light on how law professors teach and how new lawyers acquire professional expertise. We could learn a lot from that literature, yet too many law professors become all huffy about how we know what we're doing with the case method.

To be blunt, the current law school program is far from state-of-the-art. It's a kind of anti-intellectualism in itself to defend the program so strongly without consulting the academic literature on how professionals learn. Why not plug for understanding more about what we do and drawing upon knowledge from other disciplines?

Lois Turner said...

Three years of tuition at your law school costs almost $150,00. Add in living expenses and the cost will be close to a quarter of a million to get the degree. Yet there are no full-time legal jobs for huge numbers of your graduates. Their lives are ruined because they believed your B.S. and enabled you to live a prosperous, stress-free and otherwise agreeable life. Don't you care? No wonder you think that law school is the best thing since sliced bread.

Deborah Jones Merritt said...

Neil, one other thought that I consider equally important: I strongly agree that "it is impossible to make a case in favor of allowing law schools to lie about their employment statistics." By the end of next week, all law schools will know the 9-month employment outcomes for their 2011 graduates. Will you join me in pressing schools to publish those data immediately on their websites? If the numbers are better than 2010, then surely schools will want to give that fresh information to potential recruits; we will all enroll most of the new class during the next three months.

Conversely, if the numbers are worse (which I strongly suspect will be the case at many, many schools), then applicants should know those facts before signing tuition and loan agreements. And law school faculty need to be aware of those numbers and think about what they mean. I, along with many others, think that there are massive structural changes in law (largely driven by technology) that will long outlast the recession. Indeed, like most things technology-related, the impacts are likely to escalate.

One reason I am so bothered by schools' foot dragging in publishing employment information is that the conduct is the antithesis of academic behavior. Academic inquiry is premised on seeking truth--even when the truth is uncomfortable. Withholding employment information negates our academic integrity and fuels the attacks on law schools.

Not to mention that publishing old data, when more current data are available, is unethical and, well, fraudulent.... What do you think? I'm going to press for OSU to publish its updated data. Will you do the same at GWU? It's going to unpopular, but it seems academically and ethically right to me.

Bored 3L said...

How can we consider the long-term damage from the assault on law schools when you refuse to consider the long-term damage the academy is doing to their students and the profession by not controlling the number of students graduating from law schools each year? This is a profession that relies on it's reputation for self-regulation to maintain high fees and barriers to entry. Every unemployed law graduate, or law graduate who is working for 12/hr part-time, or for free and living at home, or doing contract doc review in a basement, damages that reputation. This is a direct result of too many law students being produced by the academy without a commensurate increase in the number of full-time, JD required, decent wage jobs. Without law schools to take them in, these students would not be underemployed or unemployed JDs with tens or hundreds of thousands of dollars in debt.

JJ said...

This "defense" reminds me of a scene from one of my favorite movies, Casino.

Sam Rothstein (Lefty Rosenthal in real life, who operates the Tangiers (the Stardust in real life), has just confronted his slot machine manager over three simultaneous jackpot payouts. The odds of this are astronomical, suggesting a fix. The slot manager is grossly underqualified for the job, contributes nothing to the operation of the Tangiers and only has the job because his brother in law is on the County Commission.

Rothstein has had enough.

Ace Rothstein: [grows more irritated] Ward, you're p******g me off. Now you're insulting my intelligence; what you think I am, a fuckin' idiot? You know g****n well that someone had to get into those machines and set those f*****' reels. The probability of one four-reel machine is a million and a half to one; the probability of three machines in a row; it's in the billions! It cannot happen, would not happen, you f*****' momo! What's the matter with you? Didn't you see you were being set up on the second win?
Don Ward: I really think...
Ace Rothstein: [interrupts] Wait! You didn't see that you were being set up on the second win?
Don Ward: I really think you're overreacting...
Ace Rothstein: Listen, you f*****' yokel, I've had it with you. I've been carrying your a** in this place ever since I got here. Get your a** and get your things and get out of here.
Don Ward: You're firing me?
Ace Rothstein: I'm firing you. No, I'm not firing, I'm firing you, ya...
Don Ward: You might regret this, Mr. Rothstein.
Ace Rothstein: I'll regret it even more if I keep you on.
Don Ward: This is not the way to treat people.
Ace Rothstein: Listen, if you didn't know you were being scammed you're too f*****' dumb to keep this job, if you did know, you were in on it. Either way, YOU'RE OUT! Get out. Go on, let's go.

And to the author of this post, I echo a similar sentiment. If you do not know that you are perpetuating a system that destroys as many lives as it improves, you're too dumb to keep this job. If you do know, you're in on it. EITHER WAY, GET OUT!

Citrus7 said...

Mr. Buchanan,

The problem with your approach is that it will tangibly harm innocent people.

Your actions and indeed seemingly your hopes, are that college graduates are fooled by fraudulent job placement statistics into borrowing fortunes from taxpayers, to fund the salaries of law professors "for the good of the profession."

Having established that, i.e. having established that the unpricipled thought processes of legal academics such as yourself results in the victimization of innocent people - a classic form of evil - the conclusion can only be that it is not the backlash against people like you that damaged the legal profession. No, people like you damaged the legal profession long ago.

In summary Sir, you need to stop rent-seeking off of the backs of defrauded students and taxpayers. I am up early on a Sunday morning to get to work, after having worked 70 hours last week doing menial labor (I have a JD from a good school) and I still do not earn anywhere near the income that you earn by working an estimated 10-20 hours a week (perhaps 30 hours a week if we call your blogging and other commenting "work".)

You can't fool all of the people all of the time, and for law professors the game is over.

Citrus7 said...


Are Ohio State's numbers going to once again fraudulently calculate an "average" salary based on the highest earning 50% of graduates, and represent that as the salary for all 100%?

I'm really starting to get sick and tired of people like DJM and Campos who run their mouths but do not lift a finger to do a damn thing about the problem that unjustly pays them a fortune each year.

Morse Code for J said...

If they simply follow the money, probably a third to half of all law schools will not be able to show prospective law students enough of it to interest them - in a world where law schools are no longer allowed to mislead their students.

For the sake of those not yet in our predicament as a "lost generation" of attorneys, we will do everything we can to make clear to prospective law students that they are not all being prepared for a career in the law, despite their education. Somewhere between a third to a half of them are merely subsidizing the careers of those who will have an opportunity to have a career in the law, although that won't be clear to them until they've taken a bar exam and determined absolutely that they are unprepared to do the smallest legal task for a paying client.

Frankly, I wouldn't mind seeing a meteor strike my alma mater, but I'd settle for it closing its doors forever.

Edward X. Clinton, Jr. said...

It is remarkable that an educational system that can only give about 40% of graduates a decent job, would be insisting that it is essential to civilized society. What a weak argument.

Lois Turner said...

Not just weak, but comically self-serving. And it isn't "the educational system" that is insisting that it's "essential to a civilized society." It is a leisured class of individuals, Buchanan and his fellow professors and administrators, who desperately want us to believe that it is somehow "essential to civilization" that their faux-academic lifestyle of disproportionately high pay and preposterously low work hours should continue indefinitely, at the expense of kids and taxpayers.

Edward X. Clinton, Jr. said...

There will be no long-term damage from the assault on law schools. There will be long-term benefits, including (a) students who understand their job prospects; (b) reduced tuition costs and (c) fewer law schools.

All of this is a good thing - not a bad thing.

Jan said...

Prospective students are probably put off by the curved grading system of law schools, and the fact that they could be thrown out on the street if some professor doesn't like what they write on a final exam.

Funny Games said...

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