The Downsizing of Legal Education

I’d like to thank Dan for inviting me to visit at The Faculty Lounge.  During my time here I will offer my views on the deep crisis legal education is facing.  I have been a dean at two schools for a total of 11 years, recently completed six years on the ABA Section of Legal Education’s Standards Review Committee, and currently serve on the Task Force on the Future of Legal Education established by the ABA President.  I hope to bring all of these perspectives to bear here.

As others have pointed out, three of the most important questions facing legal education are:

1. Do we have too many students enrolled in law schools given the current and likely future job market?
2. Why is law school so expensive and what can be done about that?
3. Are we doing an adequate job preparing our students to practice law in today’s changing profession?

Thursday’s powerful and generally excellent New York Times story on the rapid, ongoing decline in law school applicants prompts me to begin with the first question.  As a result of greater transparency about job outcomes and widespread criticism of law schools by bloggers and the mainstream media, law school applications have plummeted.  Enrollment is going down, too, although at a slower pace.  In 2010
there were approximately 52,000 first year law students.  In the fall of 2013, that number is likely to be around 40,000. 

In my view, 52,000 is far too many law students and even 40,000 is too many.  The “right” number of law students must surely be related to the job market.  We are in a profound restructing of the legal services market, as Bill Henderson and others have pursuasively argued.  Projections based on Bureau of Labor Statistics data indicate that there will be approximately 20,000-25,000 jobs per year for lawyers in the coming decade.  Of course, as Yogi Berra (allegedly) said, “Predictions are very hard, especially about the future.”  Perhaps, as has happened in the past, predictions of the decline of lawyers will prove to be overstated.  Still, the BLS data is the best evidence we have, so we must take it seriously.

What about law grads who work in other fields?  This is a point that some defenders of legal education love to make.  We deans all have wonderful stories of (and frequently generous contributions from) graduates in business, real estate, etc., who have had truly great careers using their legal training, but not working as practicing lawyers.  However, the vast majority of the successful non-lawyer law school grads I know started out practicing law and later migrated to another field.  In my 25 years in legal education, I have met only a very small number of students who came to law school not planning to practice law.  Given the expense, how could it be otherwise?

Still, a small number of law school grads do pretty well from the start in jobs other than practicing law.  I have taken a careful look at our 66 graduates from 2011 (out of a total graduating class of 251) who reported working nine months after graduation in a “JD Advantage” or “Other Professional” job.  I considered whether they were working full or part time, whether or not the job was long term, whether it seemed reasonably likely to lead to a JD required job (a number of them are working as law clerks for firms, and each year some of these jobs have become real associate positions) and what we know about their salaries (although not required by the ABA, my school publishes detailed salary information).  I would estimate that approximately 20-30 of them are doing well enough to be considered reasonable success stories right now.  This is speculative, and I can’t say how typical my school is.

A real deficiency in the available data is that we really only know how our graduates are doing nine months after graduation.  How many of those who are really struggling nine months out eventually find their way to a solid job?  How many with jobs nine months out suffer setbacks?  The After The JD study provides a great deal of rich information, and suggests that the situation of law school graduates in general improves the longer they are out of school.  But After the JD focuses on the class of 2000 and we really need to know what is happening over time to the students who graduated during and after the Great Recession.  

Longitudinal data is very hard to obtain.  I tried to resurvey our class of 2010, but the response rate was too low, and too skewed towards those doing well, to be reliable.  I recently had a conversation about this with Jim Leipold, the Executive Director of NALP, and I believe they are considering ways to fill in the information gap on a national level.   I hope they succeed.

In the end, I have little doubt that if there were an Emperor of Legal Education, he or she would order schools to enroll fewer students.  My best guess is that the target would be 35,000 students, a drop of about 33% from 2010.  Others, I’m sure, would place the number lower.  But we don’t have an Emperor (I know that some think that the ABA should play this role, but that is a topic for another day), and the total law school enrollment is the result of decisions made by 200 schools with different goals and market positions.

For an individual school, the decision about whether, when, and by how much to downsize is a complicated one.  Downsizing is painful.  Because almost all of our budgets are personnel, enrolling fewer students means pay cuts, layoffs or other difficult steps.  There has to be a compelling rationale.

It is tempting to say that we are downsizing because it is the morally right thing to do, but that would not be honest.  Any benefit to society or even to individual students from a single school’s downsizing will likely be mostly symbolic.  My school will probably shrink by 25-30 students next year.  The students we do not enroll will almost certainly attend another law school, so we are not saving them from a risky choice.  Will the ripple effect from our decision mean that the least selective schools will enroll 30 fewer students?  I don’t know, but that is a very attenuated basis for downsizing. 

What about the students we do enroll, will they be better off because we are smaller?  Perhaps.  If there are X number of jobs likely to go to Loyola graduates, then 30 fewer graduates will be unemployed or underemployed in 3 or 4 years.  But it is also the case that because the students we will not enroll would have had lower incoming credentials, they would have been more likely to finish near the bottom of the class.  So some of our actual new students may wind up with lower class ranks than if we had enrolled a larger class, which might affect their employment prospects.

So why are we, and so many law schools, downsizing?  Candidly, it has a lot to do with rankings.   No one likes to see their median LSAT’s and GPA’s decline, and we worry that if they do, we may fall in the rankings.  With rapidly declining applications, most of us are experiencing drops in the average credentials of our students.  In an effort to minimize that decline, and out of concern about our relative standing if other schools succeed in holding their credentials steady by getting smaller, we decide to downsize. 

A great deal of what is wrong with legal education is a result of the impact of U.S. News & World Reports and our complicity in playing that game.  I will have more to say about U.S. News and law school behavior in future posts.  For now, I note the irony that in this crisis, U.S. News actually provides a strong incentive for us to do something that ought to be done, but that we would otherwise have great trouble doing.  The Emperor of Legal Education would be happy.

Comments

[anon prof]

David, will you be addressing the other two questions in subsequent posts? I assume yes.

In the interim... in my opinion, the answer to #3 is a resounding no, with a few noted exceptions. For example, Boston firms love to joke about having to teach Harvard students to find the bathrooms, while Northeastern students are ready and raring to go on the first day of their employment, even when they haven't yet found out their bar exam results. Also, apparently Washington and Lee has added new elements to its 3L curriculum to better prepare students for life as a lawyer, yielding a wait list for its enrollment.

As a counter-example, I am currently teaching a small lecture (20 students) open only to second semester 2Ls and 3Ls. Students are evaluated on the basis of 4 projects to be completed during the course of the semester and class participation. There is no final exam or final scholarly paper, neither of which accurately represent the way lawyers work. The projects are practically based, and 2 of the 4 projects involve a group writing assignment. On the first day of class, which I spent entirely on orientation to the syllabus and the new course structure, I learned that only 2 of the students had ever written in a group before, and the earlier groups consisted of only 2 people (i.e., the student sitting in my course and someone else). This is hardly the way most lawyers practice law. Lawyers work in teams! Until we in the academy effectively teach students to function effectively in real-life situations (real or simulated) that involve teamwork, we are failing them.

[Rebecca Bratspies]

At CUNY, we have had a 3L clinic requirement for decades. It is not a new idea to ensure that all graduating students have experience representing actual people with real problems.

[Josiah]

I think the global recession played a major part in the rise of applicants in 2009-2010 and the decline now. That is, at 10.5 percent or so unemployment, a lot of people go to law school to wait it out who would not when it is lower. I would not attribute the applicant decline entirely to the employment stats and bloggers.

[concerned lawyer]

David, I am glad that you have opened this conversation up. With regard to topic #1 (number of graduates), if we accept the Bureau of Labor Statistics estimates, it seems a right-sized legal academy would be graduating 20K - 25K JD students each year. Given the many thousands (60K? 80K?) of recently graduated JDs who have been unable to put their degree to use, in principle new classes would be smaller so as to afford those poor graduates an opportunity to enter the market while their recently-acquired education is still recently-acquired. By what logic should the legal academy seek to graduate 30K new graduates each year? Yes, 30K graduates is a better than the present situation, but it is hardly a laudable objective.

[MacK]

I too am of the view that law school enrolment must drop until it is about 25,000 graduates or so per annum. But I also think that law school productivity, or professors productivity, needs to double in teaching terms to bring costs into line. That amounts to closing about 100 law schools and shrinking faculty payroll by 1/2 at the remaining schools. There are about 12,000 full time law professors today - 9,000 will need to go - 3 in 4 - to bring output and costs into line. The number might be higher if schools need to move to more practical training because a lot of current law professors have pretty well no practice experience. They would need to be replaced by experienced lawyers and adjuncts.

Now 9,000 unemployed law professors is not in the scheme of the US economy a big thing - but for the faculty it will be very painful and brutish.

This is the hard issue - 3 in 4 law professors probably need to leave teaching.

[Confused]

Dean Yellen,

Your law school's mission: "Loyola University Chicago School of Law is a student-focused law center inspired by the Jesuit tradition of academic excellence, intellectual openness, and service to others. Our mission is to educate diverse, talented students to be responsible leaders in a rapidly changing, interdependent world, to prepare graduates who will be ethical advocates for justice and the rule of law, and to contribute to a deeper understanding of law and legal institutions through a commitment to research, scholarship and public service. (Adopted by the law faculty, 2002)"

http://www.luc.edu/law/about/mission.html

Your Law School's Outcomes: 55% of the 2011 class obtained full-time jobs requiring bar passage.

http://www.lstscorereports.com/?school=loyola-chicago&show=NALP

Only a small portion of the 55% earn enough money to justify the $40,000/year tuition your school charges. Please reconcile the differences between the school's purported mission and the outcomes it produces for its students. Also, please explain how the more than half of your class that is mired in debt induced poverty can even begin to "be ethical advocates for justice and the rule of law, and to contribute to a deeper understanding of law and legal institutions through a commitment to research, scholarship and public service."

[Unemployed Northeastern]

anon prof wrote

"For example, Boston firms love to joke about having to teach Harvard students to find the bathrooms, while Northeastern students are ready and raring to go on the first day of their employment, even when they haven't yet found out their bar exam results."

As an Northeastern Law alumnus, I think I have the right to say that this is an entirely bogus statement.

1. Northeastern's curriculum is no more vocational than anyone else's. Given the severe allergy Northeastern profs seem to have towards substanative courses, it may be even less vocational than Harvard's. Not wanting to take "The Legal Imagination" or "International Diaspora Human Rights Creative Writing" or other such claptrap, I found that nearly every class I took 2L and 3L year was taught by adjuncts whose days jobs were teaching reality-based law courses at BC/BU/Suffolk. Their claim to creating practice-ready associates is based entirely on their co-op system, which is a program of wildly uneven quality and virtually no oversight. Get a good co-op, you learn things. Get a bad co-op, and you are answering phones and picking up laundry. Since the school tends to 'misplace' negative student evaluations of co-op employers, staying away from the bad apples is easier said than done. I would say that only one of my four co-ops was nominally worthwhile, and at least two were such a waste of time they bordered on exploitation of the co-op system.

2. Regardless of what Boston law firms might say, they hire far, Far, FAR more associates from Harvard than Northeastern. Ditto for BC and BU. 4 of 184 Northeastern students found BigLaw jobs in 2011. That's 2% of the class. Fewer than half of the graduates found full-time legal jobs AT ALL. It's a pretty raw deal for a law school stickering north of $70,000/year.

[John Thompson]

I think law schools do themselves a disservice by continuing to pay undue attention to U.S. News, when it is obvious that other sources of information weigh at least as heavily in the minds of prospective law students - AutoAdmit, Top-Law-Schools.com, Above the Law, etc., etc. Those sources are telling them to focus on two things: the amount of indebtedness that they are likely to incur, and the rate at which graduates have recently found full-time, JD-required employment from those schools.

The University of Minnesota is a law school traditionally well-regarded by U.S. News, landing in their top 25. In terms of employment outcomes for the class of 2011, it falls below Samford University and South Texas School of Law and just barely above Touro, all of these allegedly "third-tier" institutions. Maybe we can start by jettisoning the notion that rankings mean anything, if they don't convey what chance a graduate has of practicing law upon graduation.

[James Grimmelmann]

The U.S. News obsession may, unfortunately, become even more self-reinforcing. The rankings strongly influence where students choose to enroll, giving law-school administrators a powerful incentive not to let their school be lower ranked than the schools with which it competes for applicants. If law schools are going to start closing in significant numbers, then the rankings aren't just about prestige, they're about survival -- and no law school is going to ignore the rankings until applicants start ignoring them, too.

[John Thompson]

@James/9:12 p.m.:

I'm not sure that this will be true for much longer, if it is even true now.

Go to lstscorereports.com and look at the state report for law schools who place the most alumni in Virginia. The University of Virginia has the highest full-time/JD-required employment rate, and is also the Virginia law school that U.S. News ranks most highly. Its projected non-discounted cost of attendance for Virginia residents in the class of 2016 is $245,070, or $2,919 a month before IBR is taken into account.

However, you don't get too much further down the list before you see that some Virginia schools underperform others that U.S. News favors less, in terms of projected COA and employment rate. George Mason and the University of Richmond are both ranked below Washington & Lee at U.S. News, but both schools have a substantially lower projected COA for residents, and both schools placed their 2011 class in full-time/JD-required positions more frequently. American University placed only 36% of their students with a projected COA of $253,621 - the fourth-worst placement statistics of any of their peer schools, combined with the third-highest projected COA.

They are starting to catch on to this, out there on Prospective Student Land, and no thanks to U.S. News. The longer U.S. News cedes authority to places like TLS or AutoAdmit, the less time that it will retain credibility for successive classes of law students that can't imagine spending money to purchase a physical magazine to get information about law schools. http://www.top-law-schools.com/forums/viewtopic.php?f=1&t=186905

[AnonProf]

You know it's funny, when I went to law school, I thought the professors were there to teach me how to think like a lawyer and that I'd have to bust my butt to study, get a good job, pay off my loans, and have time for a social life. Like all other law students, I was taking a calculated risk that I hoped would pay off after three years. Now, I guess, some graduates think that professors are supposed to function like members of the career services department, and if they fail to achieve their dreams upon graduation they have someone other than the economy and themselves to blame.

[Attorney99134]

Anonprof, that is true. Some graduates unfortunately think that way. But others know that you and a number of your colleagues are powerless, noninfluential employees.

[Attorney99134]

Dean Yeller, at some point you and faculty members of mid and high ranked law schools will have to publicly advocate that certain law schools will have to close.

While most law schools collectively and publicly criticize the US News rankings, almost all of them will not hesitate to game the rankings to its own advantage. Because there are so many law schools in existence seeking to improve their own ranking, it is almost impossible for law schools to collectively take a stand.

[John Thompson]

@AnonProf:

You know, it's funny. When I went to law school, I didn't think that a 90+% employment rate nine months after graduation and a $90,000 median starting salary meant that the school was counting baristas and 25% of the non-respondents towards their employment rate, or that nobody, especially not the median graduate, could expect to make $90,000 under the profession's bimodal salary distribution. I thought that law schools, having greater moral standing than a used-car dealership, would point some or all of that out to students in light of lawyers' stringent ethical requirements to advise their paying customers of all the risks of their decisions, such as those mentioned above.

I'm sorry that you were unfortunate enough to have a career during the time of the Internet, and that students are now so déclassé as to gather online and talk about how useless and counterproductive their degrees have been. It must be just awful for you.

[john]

>>You know it's funny, when I went to law school, I thought the professors were there to teach me how to think like a lawyer and that I'd have to bust my butt to study, get a good job, pay off my loans, and have time for a social life.

You seemed to have missed the part about the overproduction of lawyers. We can't simply chalk-up the bad outcomes to lazy students when we graduate roughly twice as many people as there are jobs each year.

>>Like all other law students, I was taking a calculated risk that I hoped would pay off after three years.

It's only been a very recent phenomenon that students have the data to accurately calculate the risk of going to law school. And surprise, surprise, app numbers fell off a cliff.

>>Now, I guess, some graduates think that professors are supposed to function like members of the career services department

That should have always been your job. Of course professors are supposed to leverage their connections with law firms and judges to help their students get jobs. Are you really suggesting they shouldn't have this responsibility?

>>and if they fail to achieve their dreams upon graduation they have someone other than the economy and themselves to blame

We didn't lose over 20,000 entry-level jobs because of the down economy, and we won't gain that many back after the recovery. The crisis isn't just a cyclical problem, it's structural.

http://online.wsj.com/public/resources/documents/CitiHildebrandt2013ClientAdvisory.pdf

[MacK]

Anonprof, your post is filled with ironies:

"I thought the professors were there to teach me how to think like a lawyer"

You were of course aware that the average law professor has barely 2.6 years of legal practice (reading your posting it would seem that you have less). Now to be fair I'm sure the law school did not publicly state how little actual experience as a lawyer your professors have - but by now you must be sadder but wiser (sorry I meant happier and wiser - after you secured a job as a law prof.) But it does lead to one tiny little question - why do you think a law professor with essentially no experience of being a lawyer can teach someone to think like a lawyer? We wait wit bated breath for the explanation....

Now I don't need any career help - and if I was looking for it - I think your help would be like an anchor to a drowning man. But tell me, why do you think you should not help your customer, the law student, get the result that he or she came to law school for. I am curious.

But overall, remember what I said, 3 in 4 law professor's days in academia are likely numbered. When that day comes and you are in fact looking for a job that will require you to "think like a lawyer" you might want to appear a tiny bit of a sympathetic character. I might feel sorry for some law professors - but not you.

[MacK]

John, broadly I agree with you, but.....

">>Now, I guess, some graduates think that professors are supposed to function like members of the career services department

That should have always been your job. Of course professors are supposed to leverage their connections with law firms and judges to help their students get jobs. Are you really suggesting they shouldn't have this responsibility?"

I think you need to recognise (and there are surveys to support this), law professors do not for the most part have connections with law firms and judges, or at least practicing lawyers and judges have minimal respect and indeed often outright contempt for law professors. Anon prof is the archetype of the sort of professor lawyers and judges despise. Thus the problem with you thesis is that assumes facts not in evidence, that such leveragable connections exist. Indeed to the extent that we see public boasting of such connections, it is by the likes of Dean O'Brien of New England School of Law | Boston (don't you just lover the vertical line) who brags about getting the Chief Justice on an annual junket for a semester abroad (2 weeks) program. The leverage of O'Brien and his merry band has secured an employment score of 29.5% - maybe anon-prof is at NESL?

[tether]

MacK -- On what do you base your statement that practicing lawyers and judges have outright contempt for law professors? is this based on your immediate group of friends and scamblogger commentators? i know professors and deans sometimes get appointed to the bench -- e.g. justice Kagan -- do you think they are held in contempt by their colleagues when they get there?

[Anon]

MacK - I am sure these arguments bring down the house at ITLSS, but you're going to have to do better here. You could start by not making sweeping generalizations of the type tether mentions. A second recommendation would be to have some basis for your pseudo-economic blather beyond a two-step calculation based on the broadest employment numbers possible. Either that or explain to us your experience as a law school Dean, or why you can with authority discuss law school budgeting. Otherwise, these comments are just noise (which, I admit, may be your intent).

[MacK]

Maybe Tether and Anon twenty years as a practicing lawyer, my personal acquaintance with judges and policy maker inform my views. Of course you could review the following citations drawn heavily from Brent E. Newton, The ninety-five theses; systematic reforms of American Legal Education and Licensure, South Carolina Law Rev. 64: 55 http://ssrn.com/abstract=1994189. As for Justice Kagan :

Gregory W. Bowman, The Comparative and Absolute Advantages of Junior Law Faculty: Implications for Teaching and the Future of American Law Schools, 2008 BYU EDUC. & L.J. 171, 204 n.108 (“Based on my own anecdotal experience, people on the law school tenure-track job market are often advised to practice law for no more than five years or so.”);

Robert P. Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students?, 45 S. TEX. L. REV. 753, 762 (2004) (“Neither practice skills nor ‘real world’ experience matter. Indeed, apart
from judicial clerking, they may even be seen as detrimental.”);

Brad Wendel, The Big Rock Candy Mountain: How to Get a Job in Law Teaching, CORNELL L. SCH., http://ww3.lawschool.cornell.edu/faculty-pages/wendel/teaching.htm (“One of the oddities of the legal teaching market is that candidates for classroom positions are considered tainted if they have too much of a background in practice. Because of the obsession . . . with being perceived as legitimate by their colleagues in the arts and sciences, law faculties are not looking for people with extensive practice experience as classroom teachers.”);

Frank H. Wu, How to Become a Law Professor, PRAC. LAW., Sept. 2000, at 15, 22 (“With rare exceptions, former judges, elected officials, and partners at the prestige law firms likely will start as assistant professors at almost the bottom of the pay scale.”).

Brent E. Newton, The ninety-five theses; systematic reforms of American Legal Education and Licensure, South Carolina Law Rev. 64: 55 http://ssrn.com/abstract=1994189 ("My own empirical study of full-time, entry-level law professors (excluding experiential professors) hired between 2000 and 2009 revealed that the average professor possesses only three years of practical experience; at the top-ten
schools, the typical new professor possesses only one year of practical experience.") citing Brent E. Newton, Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. REV. 105 (2010)

Amy B. Cohen, The Dangers of the Ivory Tower: The Obligation of Law Professors to Engage in the Practice of Law, 50 LOY. L. REV. 623, 643 (2004)(“One of the most unfortunate collateral effects of the tendency for law professors to identify first and foremost as scholars and academicians and to distance themselves from practicing lawyers is the apparent disdain many professors feel and perhaps even express towards practice and practitioners.”);

Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 34–35 (1992) (noting that law firms and law schools are “moving
in opposite directions”). (“The situation is even worse now than [before], because now we see ‘law professors’ hired from graduate schools, wholly lacking in legal experience or training, who use the law school as a bully pulpit from which to pour scorn upon the legal profession.”)

Robert P. Schuwerk, The Law Professor as Fiduciary: What Duties Do We Owe to Our Students?, 45 S. TEX.L. REV. 753, 762 (2004) 767 (“Many law professors do not like the practice of law, and consistently denigrate it to their students.”)

Lee C. Bollinger, The Mind in the Major American Law School, 91 MICH. L. REV. 2167, 2175–76 (1993) (noting that many law professors began to lose their identity with judges, includingfederal judges, during the 1980s and early 1990s, when younger judges were increasingly appointed whose ideologies differed from most law professors, who more closely identified with federal judges from the Warren Court era);