Legal education’s “existential crisis”
September 21st, 2012 by Briana Cummings
There is a large, and growing, mismatch between either (1) the number of law school graduates we are producing and the jobs available for them to fill or (2) the kind of law school graduates we are producing and the jobs available for them to fill. Or both.
The numbers gap
Over the last five years, ABA accredited schools have graduated at least 73,652 students (33.5 – 38.1% of graduates) who did not obtain jobs practicing law within nine months of graduation. In the most recent year, 2011, the percentage was 40.2% (best case) to 44.0% (worst case). (Source: Deborah Jones Merritt, “The Declining Job Market for Law School Graduates, 2001-2011“)
According to figures recently released by the National Association of Legal Professionals, nine months after graduation, 83% of 2011 graduates from the 20 schools with the highest employment were working as lawyers; 31% of those from the bottom 20 were working as lawyers. The Bureau of Labor Statistics released somewhat more sobering figures, which suggest
that the real unemployment rate for new lawyers is more on the order of 63%, if “employment” is defined as having a real legal job, as opposed to the the almost unlimited number of fake legal and quasi-legal jobs the NALP statistics count as full-time employment requiring a law degree (such as for example getting hired into a short-term low-paid position by your alma mater in order to goose its reported employment rate). (Source: “And the New York Times Said Law is Dead,” Inside the Law School Scam)
After plotting the number of new lawyer jobs created between 2003 and 2011 against the number of people who graduated from law school in that period, Graham Martin calculates that 324,661 law school grads are not currently employed as lawyers.
The job market for law school grads has been in a fairly steady decline for the last 20 years. The trend began before the recession, as outsourcing of legal work to places like India and advances in technology have reduced firms’ need to hire low-end laywers. In 2009, twice as many people passed the bar exam as there were legal openings. (Source: Lincoln Caplan, “An Existential Crisis for Law Schools,” The New York Times, 7/14/12)
The broken economics of legal education
While job prospects and median salaries for law graduates are going down, tuition at both private and public law schools is going up — up 73% from 2000 to 2010 for private schools, up 150% for public resident tuition. A mismatch indeed.
As law professor Brian Tamanaha, author of Failing Law Schools, wrote in recent piece for in New York Times,
The economics of legal education are broken. . . . [T]he cost of a law degree is now vastly out of proportion to the economic opportunities obtained by the majority of graduates. The average debt of law graduates tops $100,000, and most new lawyers do not earn salaries sufficient to make the monthly payments on this debt. . . . Thousands of new law graduates will enter a government-sponsored debt relief program, and many will never fully pay off their law school debt.
In a newly released electronic book, Don’t Go to Law School (Unless), University of Colorado Law School professor Paul Campos, author of the Inside the Law School Scam blog, writes that about 80% of law graduates are worse off after going to law school than they were before they enrolled.
Potential applicants are catching on. Fewer are taking the LSAT and applying to law school. Frank Wu, dean of Hastings College of Law at the University of California in San Francisco said law schools will be crushed if they don’t remake themselves: “This is Detroit in the 1970s: change or die.”
The skills gap
The crisis in law schools go beyond their unsustainable economic structure:
Their missions have become muddled, with a widening gap between their lofty claims about the profession’s civic responsibility and their failure to train lawyers for public service or provide them with sufficient preparation for practical work. ~ Lincoln Caplan
As far back as 1999-2000, the Carnegie Foundation for the Advancement of Teaching did a comprehensive two-year studyof legal education in 16 American and Canadian law schools (including some of the most selective). Among their findings:
- “[L]egal pedagogy is remarkably uniform across . . . schools . . . . The consequence is a striking uniformity in outlook and habits of thought among legal graduates.” “At a deep, largely uncritical level, the students come to understand the law as a formal and rational system,” however much it may diverse from a lay person’s sense of justice.
- “Issues such as social needs or matters of justice involved in cases . . . are almost always treated as addenda. . . . [S]tudents . . . are warned not to let their moral concerns or compassion for people in the cases they discuss cloud their legal analysis.”
- “Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result it to . . . reinforce the habits of thinking like a student rather than an apprentice practitioner.”
The problem in legal education, then, is not just that law graduates cannot find existing legal jobs, but also that they are not graduating with the skills to create new legal jobs — that is, to fill the vast unmet need for legal services out there. Big Law may not need the services of every new law graduate, but Americans — poor, rural, middle-income, etc. etc. — very much do.
The road to reform
The suggested by Professor Tamanaha, the first sensible step would be to reform the American Bar Association’s law school accreditation standards. These standards were put in place a century ago, requiring every law school to be run like an expensive research university — i.e., requiring that most professors be tenure-track, that professors get paid research leave, that the schools assemble substantial library collections, etc. These requirements preclude low-cost legal education alternatives. The result:
- When law students subsidize law professor’s academic research, they ultimately pass this cost on to their clients — clients who must often do things like refinance their mortgage, put off college dreams, give up life savings, or go to other drastic measures to obtain their legal services — if they can afford them at all.
- In addition to making legal services more expensive, it also makes them more scarce. High law school tuition erects a two-fold barrier: a barrier to going to school at all, and, for those who do go to school, a barrier to pursuing any but the most lucrative possible jobs (i.e., corporate jobs) available. This makes lawyers scarce in many many areas where their assistance is needed most.
The public — the low- and middle- and average-income public — bears the cost of this broken law school economy. They pay the cost of subsidizing lawyers’ education — in the form of government-underwritten loans — and then, when it needs legal services, it must pay legal flees inflated by lawyers’ needs to pay off their heavy law school debts.
The second sensible step would be to restructure the law school curriculum more along the lines of an apprenticeship model: providing more clinical experience, more training on the business side of running a practice, more thinking about the larger social context of lawyers’ work and ethical considerations associated with it, more preparation in planning a variety of different career paths etc. etc.