For those of you who noticed I hadn’t posted here lately, thanks for noticing. I’ve been listening and thinking, two virtues we all too often honor in the breach. What I’ve mostly been listening to and thinking about is the swelling threnody bemoaning—or in some cases celebrating—the impending Demise of Legal Education As We Know It.
What all this shouting about Fraud, Failure, Exsanguination, Plague and Death has given me is an appetite for some perspective. (My favorite Thanksgiving side dish, inexplicably not served in many American homes these days. Go figure.)
What kind of perspective? Let’s start with some clear thinking about What Matters Most in legal education’s current circumstances. What I mean by this is that we ought to start our discussion about What’s Broke and How To Fix It by isolating, among the many matters of legitimate concern at this time of profound and rapid change, which ones are the most fundamental—the ones that provide the necessary backdrop and context for the rest.
I’m going to start that effort here. I’m working on a longer piece that will explore these issues at greater length and with some effort at empirical support, but as the lamentations swell, I’ve become increasingly concerned that this question is getting drowned out, and at some considerable expense to clear thinking. In my efforts to isolate What Matters Most, I imagine I will exasperate quite a few of you who are understandably preoccupied with issues that I don’t think Matter Most. So let me be clear: The issues that I don’t think Matter Most are still very important, and deserve concerted attention. But those issues are not are the ones that necessarily define the context for plausible definitions of problems and solutions. First things first.
There are roughly three categories of contumely being heaped on the legal academy these days. Two of them have received disproportionate attention, and what’s striking is that they are pretty clearly not the ones that Matter Most. Those two are arrays of related contentions (1) that law school fails to prepare students for practice; and (2) that law school costs too much. Let me say again before readers start calling me names in the Comments that these concerns are, in one formulation or another, both quite important and quite well taken. But they’re not What Matters Most.
What Matters Most is that there are today significantly more seats in accredited American law schools than there are entry-level law jobs for the emerging graduates. This is obviously neither an original nor a novel observation; lots of people in addition to me have written about it. But its fundamental importance has received surprisingly little attention.
To appreciate why it’s important, let’s refine the observation a little. You can argue about how big the overproduction of law graduates is right now. Numerous commentators have focused on ABA employment statistics counting the number of law graduates who have found full-time, long-term jobs requiring a law license within nine months of graduation to argue that something like half of all recent law graduates are “unemployed” or “underemployed.” For reasons I have elaborated on previously in this space, I think this overcounts the number of law graduates unable to make good use of their law degrees in the job market. But however you count it, the overproduction is currently very substantial. I’m still working with the data, but I would estimate overproduction of law graduates today at about 1 in 3—that is, that roughly 1/3 of recent law graduates cannot get a job that makes good use of their law degrees.
You can also argue about how long the overproduction will last—that is, how much of this overproduction is cyclical, caused by depressed demand for legal services resulting from our depressed economy; and how much is structural, resulting from changes in the provision, staffing and pricing of legal services driven by changes in technology and business practices. The difference is critical, because cyclical forces should largely resolve themselves as the economy eventually improves, while structural forces should force long-term reduction in the demand for young lawyers regardless of the pace of economic recovery. I was on record early with the view that the changes we are observing in recent years are much more structural than cyclical in origin, and what has happened since has only confirmed that the sudden reductions in law jobs that have emerged since the economy crashed have resulted predominantly from pent-up structural forces that had been building for years.
If that’s right, What Matters Most is the current and foreseeable future overproduction of law graduates. Period. This matters more than law schools’ pervasive failures to prepare their students adequately for practice—failures that, by the way, have persisted for at least a generation and probably two during which demand for young lawyers grew rapidly and consistently. Why? Because the reason that substantial numbers of recent law graduates cannot get a law-related job is not for lack of practical training. It is for lack of jobs. Schools that improve their practical preparation may help their graduates seize a marginally greater share of the limited law jobs available, but they will not materially expand the job market. While my friends in the Crisis Chorus would probably liken this to improving your chances at Musical Deck-Chairs on the Professional Titanic, I reject this metaphor, but only because I deny the analogy to the Titanic, not the very apt analogy to musical chairs. Again, this is not to say that curricular reform is not very important and long overdue, but it is not What Matters Most.
Similarly, overproduction of law graduates matters more than the excessive cost of a law degree (and the indiscriminate availability of government lending to fuel its increase). Why? Because the reason that substantial numbers of recent law graduates can’t get a law-related job, or a law-related job that pays enough to service their student loan debt or economically justify the cost of their professional degree, is not mainly because they are overburdened with debt. It is because they are undersupplied with jobs. If there were any more law-related jobs available, even at very low pay, the unemployed and underemployed recent law graduates extant today would be swarming to fill them. But they don’t exist. And lowering the price of a law degree will not create more law jobs. In most markets, if you lower price, demand rises. So if you lower the price of a law degree, on the margin you will induce more people to apply to law school (lower cost; lower risk; why not see how I do?), and create an even greater oversupply of law graduates. Is this wise? Yet again, I am not suggesting that there is much good to say about the manner in which legal education is currently priced and funded. Nor am I suggesting that every law school should remain as expensive as it is. But I am suggesting that, if the markets want cheaper law degrees, ordinary price competition (with some interference from regulatory forces such as accreditation and licensure standards that may need attention) should help provide solutions. Watch for it in the next 12-24 months. But with all respect to Jimmy McMillan, I’m not prepared to join The Rent Is Too Damn High Party.
I’ll have more to say about this in coming months, but this post is already long enough. The long and the short of it is that What Matters Most is that there are too many law-school seats and not enough law-grad jobs. In most markets, what happens when there is an oversupply is that production and price fall until the market clears. That’s already happening today. Prospective law students have become aware of the undersupply of law jobs, and law-school applications are falling significantly. Many law schools appreciably reduced the size of their entering classes this fall in response to the falling number of qualified applicants. Price competition on tuition (right now predominantly through the tactical use of financial aid) is being reported. Many schools will shrink, and some will fail. Many will experiment with curricular, placement and financial innovations to meet the demands of the times and attract more and more-qualified applicants. Critically, all of this will be driven by the applicant pool’s perceptions about what kinds of value a law degree will furnish by the time you’re done getting one. And that’s why the oversupply of law-grad production and the undersupply of entry-level jobs are What Matters Most right now. The really interesting questions are which schools are going to be most and most quickly affected by these forces and how.