On Being Misinterpreted (Or, Elie Mystal Thinks I’m An Idiot On Account Of Things I Didn’t Say; Now What?)

It’s always fascinating to see what others make of your ideas.  Sometimes your readers find them a window into a world they hadn’t fully explored, which is ineffably gratifying.  Sometimes your readers make them into strange lenses that refract things into exactly what they thought they already knew, which is rather less gratifying.  Three journalists (well, two journalists and a full-time blogger) took a look at my new article, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21^st Century,” described in my last post.  Karen Sloan of the National Law Journal provided a fair and balanced summary of the paper’s content, but concentrated on the aspects of the analysis predicting that the number of entry-level Law Jobs will remain depressed for the foreseeable future.  Jacob Gershman of the Wall Street Journal provided an equally fair and balanced summary, but focused on the paper’s additional and somewhat counterintuitive conclusion that, because poor job prospects are driving down the number of new law students, there will eventually be fewer law graduates seeking more or less the same number of jobs, which should make life somewhat easier for the fewer graduates on the job market some years from now.  Elie Mystal of Above the Law treated us to one of his breathless, spittle-on-the-corners-of-his-mouth rants, and pronounced me a Don’t-Worry-Be-Happy academic apologist vying with purportedly like minds for the “neatest bit of sophistry in defense of going to law school.”

Poor Elie.  It can’t be three weeks since he indulged in a similar surge of fury at Michael Simkovic and Frank McIntyre of Seton Hall concerning their study on “The Economic Value of a Law Degree,” and savaged the work for errors that even a casual reader would have appreciated simply weren’t there.  (To be clear, I think there is plenty to argue with in the Simkovic-McIntyre analysis; unfortunately, almost none of it could be found in Elie’s landmark post “Another Garbage Study Offering Misleading Statistics On The Value Of A Law Degree.”  This had the perverse effect of deflecting attention from a range of more subtle concerns with the paper, which I doubt was the intended effect of the attempted beat-down.)   Since I am a teacher, I can’t help but notice that there appears to be lesson emerging here:  Read before you rage. 

So let’s see if we can straighten this out for anyone else in danger of confusion.  Anyone who knows anything about my work (and to be clear, Elie Mystal is not to blame if he doesn’t) knows that I have argued explicitly and repeatedly that there currently are far too many seats in far too many law schools given the number of law-related jobs available; that this mismatch has visited tragic and incalculable misery on tens of thousands of aspiring lawyers, and that anyone who tries to assert otherwise is either grievously mistaken or contemptibly dishonest.  Look here and here, for example.

Far from being “sophistry in defense of going to law school,” then, the “New Normal” paper (here) provides detailed empirical support for the propositions just described  (with which, ironically enough, Elie apparently agrees).  The paper shows that the entry-level Law Jobs market is currently poor and has been for the last five years (pages 24-25, 28); that reductions in BigLaw hiring are responsible for a disproportionate amount of that change for the worse (pages 30-35); and that there are strong objective reasons to believe that entry-level BigLaw hiring, and thus the entry-level Law Jobs market in general, will remain depressed below pre-recessionary levels for the foreseeable future (pages 35-54). 

So far, it would appear that Elie and I are in complete agreement.  The paper goes on to reason that if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs.  Elie doesn’t fight the logic (you can’t); instead, he pronounces the prediction of a shrinking academy “almost certainly wrong” because he believes there is no way that the number of law graduates will fall.  What is the empirical basis for this prognostication?  He says the executive director of the National Association for Law Placement, James Leipold, told him so.  Now, I have no idea what Jim Leipold told Elie Mystal, but I do know the facts.  Here are a few of them:  The largest first-year class in history entered law schools across the country in the fall of 2010; it was about 52,500 people.  The first-year class that started in the fall of 2012 is estimated at about 42,500, a drop of about 20% in two years.  [Update:  LSAC reports an entering class of about 44,500 in 2012, only a 15% drop in two years.  Others estimate the 2012 first-year class at less.  Hat-tip to Paul Campos for pointing this out.]  Last year, over half the accredited law schools in the United States shrank their entering classes by 10% or more.  We don’t have entering class numbers for this fall yet, but there are reports –particularly among the schools that have had the worst placement records in recent years—of 30%, 40% and even 50% reductions in entering class sizes.  The number of applicants to law school has shrunk by a third just between 2010 and 2013, and the number of applicants for the first-year class that will be starting soon is at levels not seen since Ronald Reagan was president.  And remember that, historically, about 10% of each aggregate entering class drops out before graduation.  So the number of new graduates we can expect to see three to five years from now will necessarily be much smaller than it was just three years ago, and it’s still looking for its bottom.  In other words, what Elie thinks is impossible is actually happening already.  By the way, all of this information is prominently presented in my paper.  See pages 54-56. 

So yes, for the much smaller number of law school graduates we’ll be seeing three to five to seven years down the line, I do think it will be easier to get a law-related job, so long as the number of such jobs at worst stays at about the same seriously depressed levels we see today (which I think is a good bet, and probably a little conservative).  But that is true only because there are currently way too many seats in way too many law schools, and only because a lot of people who might have considered applying to law school are already choosing not to do so, and even more in the future will continue to stay away. 

What that means as a practical matter should be obvious:  You need to figure out if you’re one of the many potential law-school applicants who ought to stay away for your own good.  Nothing in my paper (or anything else I've ever written) should be read as suggesting that no matter who you are, things are going to be great for you if you start law school in the next few years. Things will improve only if more people avoid law school unless they are good bets to succeed.  So unless you have a coherent and plausible plan for the use you’re going to make of your law degree that is rationally justified by your LSAT and undergraduate grades, don’t go to law school.  If the only law schools you get into are ones with an acceptance rate north of 50%, don’t go.

If that makes me an idiot, I can live with it.  When all is said and done, though, I do have one thing to thank Elie for.  As Oscar Wilde memorably remarked, the only thing worse than being talked about is not being talked about.  I thank Above the Law for subjecting me to the lesser of the two evils. 

Bernie

Comments

[Brian]

I don't disagree with the statement of too many seats given the number of available law-related jobs, but that does not mean there is decreased demand for legal help. There are simply not jobs available for positions where there is significant demand. Just visit the local family law court and see the daily disasters. There is a mismatch between cost (the price of education, the income expectations of attorneys, the cost of being an attorney, and the costs created by an inefficient court system), and what the average person can afford for their typical legal needs.

[Tde]

Why is it that law school Pollyannas are so defensive and prissy?

[MacK]

I have to say that I found Mystal's article rather silly - as I read your article it could hardly be described as Pollyanna-ish; if anything your paper pointed to a need for major change in legal education, that the BigLaw good-times are not coming back. When I say that the baseline capacity for law schools is half the number of law schools with double the productivity (in terms of cost), that is a baseline assumption as to what it would take to restore equilibrium. Assuming that the predicted contraction in law school places continues, sooner or later you do get to a bottom, a point where the number of graduates and their tuition/debt matches what the market will absorb. In fact the capacity often undershoots.

Inter alia, I do not regard the Simkovic-McIntyre paper as useless - wrong in its conclusions and analysis - but useful in the data it presents and shows to exist. Comparing Simkovic-McIntyre's paper with yours, the obvious contrast is the care you took to explain the weaknesses in your dataset and the consequences for the reliability of your conclusions - and that by the way is my biggest critique of Simkovic-McIntyre, that it presented a hypothesis as an established fact, while yours presents a hypothesis as a hypothesis.

I think the strongest evidence that your article is not an apologia for the current law school situation, or a justification is the "can you hear the crickets" silence from the usual collection of law school cheerleaders that so welcomed Simkovic-McIntyre.

[John Thompson]

"...if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs."

If these are jobs that only recent graduates are competing for, then sure, but I don't think that there's such a thing as a purely "entry-level" legal job any more. When my father graduated from law school, he ran for county prosecutor, then a part-time position in an office of one. When I was in high school, he would lose one of his five or six assistant prosecutors every other year to a personal injury or insurance defense firm who liked their courtroom experience. Today, my wife is applying for an opening in his former office paying between $45k and $62k, and the long list of applicants includes several sole practitioners from the criminal defense and child welfare bar with more than twenty years of experience as attorneys in this state (one of them is a former AUSA).

Conservatively speaking, there are at least a hundred thousand underemployed JDs just from the last five graduating classes, some significant number of which have passed a bar exam in one state or another. That is in addition to some number of underemployed, bar-admitted JDs who lost their positions in private practice during the market contraction for legal services, and are trying to use their experience to find positions elsewhere in the legal economy even if it's at a job which they previously would not have considered (e.g., T&E with a mid-to-large-sized firm to DUI defense or PI). I agree that Elie is unduly concerned with the opening of new law schools instead of the total number of applications. However, since I know how unconcerned with caveats law school administrators are when they shill for their product to prospective students, you should state that it's not just new JDs who compete for putatively entry-level jobs, and that the salaries for those entry-level jobs will continue to reflect a buyer's market for legal services with no relation whatsoever to the prices charged for the credentials necessary to provide those services. Bold font, red ink and underscored, if possible.

[MacK]

John Thompson:

"“In the Long Run We Are All Dead,” Keynes.

I think we are a long way from new JDs finding the job market significantly easier - law school graduates in 2016 will still be circa 38-42,000. But if the current rate of decline in matriculations continues, 2022 might see 20,000 graduates or thereabouts p.a.

As for absorbing the large crop of unemployed lawyers out there - the harsh reality is that most will have a harder time getting into the profession than a new JD, especially those who have not found legal employment more than a year after graduation. That leaves the experienced but unemployed - again I think many will find it tough to get hired after 1-2 years out of the profession/practice.

Still your observation that there is a large overhang of lawyers for the market to absorb is sound - and it will have an effect for several years. It will particularly have an effect if law schools vey dramatically lower admission criteria (a point Bernie Berk alluded to) since the classes of 2007-12 will be regarded as more intelligent and more able than later graduates.

[BoredJD]

One possibility is that the behavior of the law schools will change. After a few years of struggling to meet their budgets, send money back to a central university, or the threat of salary or job cuts to people who actually matter (not adjuncts or low level administrators) law schools may decide that playing the USNWR game simply isn't worth it and begin to loosen admissions standards to try and boost class sizes, or aggressively market in areas that may lag behind the rest of the country in their understand of the changes in the higher education market. If they can cut 20% in one year, then they can make a 20% increase.

In fact, I think this is more likely than continuing to raise tuition. There's a sicker price at which even Yale doesn't look like a good bargain, and at 300K at some schools, we just might get there.

[John Thompson]

@MacK/7:36 a.m.:

Certainly a BigLaw firm or a boutique like yours might not hire a recent graduate outside of the OCI process, but municipal/county/state government offices and truly small firms seem less bothered by it, at least in my area. This prosecutor's office I mentioned had an opening about six months ago, with about the same level of competition, and the job eventually went to a career sole practitioner and 2009 graduate from the state university's law school. This guy had taken several criminal appointments in the county and made a good impression on the assistant prosecutors, so the elected prosecutor hired him over JDs both newer and older than himself. Recently, the circuit court judges have also hired attorneys who worked first as solos or associates, in some cases for more than ten years.

If the market has changed such that you can get someone you know with a bar number and 2+ years of experience for not too much more than you'd expect to pay a new JD that you'd have to train, then some employers will eventually take advantage of that even if historically they would assume the worst about an applicant in that situation. Every job that goes to one of these underemployed older JDs is one that a new JD can't take.

[Cent Rieker]

I think this is the beginning of a significant market correction in not just legal education, but higher education in general. Matriculating college freshman this fall were born in 1995. They are the progeny of the earliest Gen Xers or youngest boomers, who were the first cohort to experience significant student debt.

Because they dealt with the consequences, the rational consumers/parents/students have learned that it is not worth going to an expensive private school, unless it's an Ivy/Ivy caliber (a REAL Ivy caliber- like Duke or Stanford... NOT some over priced Big East Jesuit affiliated rip-off). It's much more prudent to enroll at a reputable in-state flagship, or community college before transferring to a 4 year school.

Bringing it back to law school though, I appreciate Professor Burk acknowledging the risks and costs, and am puzzled at Elie Mystal's rant on a sensible, constructive critique. At least Professor Burk has the integrity to advise people not to enroll at a law school with an acceptance rate above 50%. Maybe we just have the Elie Mystals at one end of the spectrum screaming the end is nigh, and Professors Leiter, Diamond, Dean Mitchell and the ABA at the other claiming everything is hunky-dory and that they are being unfairly maligned.

I advise anybody thinking about law school to treat the LSAT as the most important legal test you'll ever take. Take 6 weeks off, and treat it like it's your full time job... just the way people study for the Bar- though nobody at the feckless ABA tells you it. How many higher scores would there be if people studied for the LSAT like they did for the bar? If you can't get in the high 160s-low 170s, then the caliber of law school you'd be accepted to makes law school a losing bet.

[Paul Horwitz]

Bernie, is it not enough just to say that Elie Mystal wrote the article? I think once you say that, it's generally understood that the article gets it wrong.

[Anonymous JOnes]

Elie's criticism has more to do with the WSJ's ridiculous headline: "Legal Job Market Is So Bad, It’s Good, Says New Paper." The headline and out of context excerpts will be read by many as a come-on that the new smart money is going to law school -- zigging while others are zagging.

Mr. Burk's article is fairly subtle and a welcome analysis of the current market. It answers several questions regarding structural shifts in the profession. It is not a celebration of law school's virtue.

So, why does Elie lump you in with the choir of law school salesmen? Because of experience. The law school critics view law deans and many faculty as untruthful carnival barkers. Dean Mitchell's defense of law school as "worth the money" in the NYT. Dean Katz's nonsense on the Denver Law blog. Dean LeDuc's defense of Cooley's practices despite the Sixth Circuit Court of Appeals findings that the use of certain employment statistics were (to use the Court's words) "objectively untrue."

There were an awful lot of games being played by certain law schools over the last 5 years. To an outsider, it appeared that schools were more interested in preservation of a comfortable living than in the welfare of some pretty vulnerable people (ie, your students -- young, naive, and trusting of academic authority).

I welcome Mr. Burk's paper and introspection by the academy. It's about time. Perhaps there will be a recognition that there are far too many students, spending far too much money, who hope for an outcome where they can earn a living at the end. Law school is different from graduate school. Most students enter intending to be practicing professionals. While academics do valuable work and are good thinkers, 0Ls don't sign up for $200k in debt expecting something akin to social science and philosophy school. They expect -- rightly -- to be able to practice law at the end. The mismatch between cost and horrible outcomes is too much for most students. And that is why critics are so harsh on the academy.

[Steven]

What a zinger by Paul Horwitz.

[MacK]

Perhaps, but Horwitz could fire just as accurate a stinger at a certain Steve D, methinks he would not though...

[John Roberts]

I don't understand why academics actually spend time responding to anything ATL posts. They are a law rag meant to entertain overpaid big law associates who fiddle around on the internet and complain about their "long hours" and "not-big-enough bonuses". Don't give them the respect of an answer and, in my opinion, you will be better off.

[Michelle N. Meyer]

Tell that to the media: https://twitter.com/ariannahuff/status/368469771315986432

[Incredulous Guest who thinks you are Scamming Us]

The oversupply of lawyers is so huge that there is no way the market will get better even if the number of law school grads drops drastically.

The reason is that there are two big sources of oversupply in the legal profession. The first being too many law school grads, and the second being the very bottom heavy mix of lawyer jobs in the U.S., with many real jobs for quite inexperienced lawyers and many fewer real jobs for very experienced lawyers. Outside of solo practice, many lawyer jobs are associate positions subject to up or out policies or clerkships or other jobs, like law school funded jobs and government programs for entry level and junior to midlevel lawyers, that are not career positions.

If the law schools would ever produce the data, it would be apparent that the number of jobs held by each graduating class shrinks until several years out, less than half of those who started in full time permanent jobs are in those jobs. As a result, there are huge numbers of underemployed involuntary solos in the game so to speak. There are so many experienced lawyers who are underemployed that the job market would not improve in the next decade even if all of the law schools were to close for a decade.

My estimate is there are no more than 400,000 full time permanent legal jobs in the U.S. for about 1.45 million grads of ABA accredited law schools in the last 40 years and 1.25 million licensed lawyers outside of solo practice. Here is the math:

BLS says there are 732,000 working lawyers.

http://www.bls.gov/ooh/legal/lawyers.htm

The ABA estimates 75% of lawyers are in private practice and half of those are solos.

http://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/lawyer_demographics_2012_revised.authcheckdam.pdf

If you do the math you get a number of non solo lawyers just over 450,000, but that number includes part time and temp jobs. A rough estimate of non temp non part time lawyers with real jobs, not solos, is about 400,000.

Take out the 130,000 lawyers in big law, as these firms are heavily weighted towards the young, and you have just maybe 270,000 jobs for about 1.1 million licensed lawyers outside of big law, leaving out solos. That is worse than one job for every four licensed lawyers.

Furthermore, law schools are still graduating double the number of lawyers as there are first year jobs, making the job market worse, not better, each year.

The statement that the job market for lawyers will improve any time soon is pure hogwash, and you should know it if you look at the numbers. Why don't you visit these numbers and try to justify your conclusion that the job market will get better?

There is no evidence that licensed lawyers who are underemployed are dropping out. On the contrary, from these numbers, they sure seem to be hanging in there, keeping their law licenses and hungry for work.

[Incredulous Guest who thinks you are Scamming Us]

Just to be clear, I know of several solos who got back in after years of struggling as a solo. Being a solo for one or two or even five years is not the same as being unemployed, even in the eyes of big prestigious employers. A number of solos make it right back to success and high paying real legal jobs. So you cannot discount solos saying they are unemployed or any of the 1.25 million licensed lawyers out there in analyzing the job market. These lawyers are all potential competitors to newly graduating lawyers for scarce jobs. The only thing that stops the competition is employers who put experience limits on open jobs.

[Anons]

Incredulous,

Virtually every point in your "analysis" is wrong. To start with, the BLS numbers don't include law firm partners and self-employed lawyers. A substantial number of JD holders also hope to work in non-law fields and others exit the employment market entirely for family reasons or what have you.

I do appreciate that you walked back your claim about solos, however.

[MacK]

One major critique of Anons (11:45am) is that it lets someone to pose as a scholar but actually post false information:

So "the BLS numbers don't include law firm partners and self-employed lawyers" -

See, http://www.bls.gov/oes/oes_ques.htm#have

"Does the BLS have occupational employment estimates that include the self-employed?

The Bureau of Labor Statistics' Office of Employment Projections provides current and projected national economy-wide occupational employment estimates that include the self-employed."

There is no reason to suggest that the BLS data does not include law firm partners or solos. That is simply nonsense. What the BLS does not report is salaries for solos, while it generally treats equity partners as self-employed. More details here:

http://www.law.harvard.edu/programs/plp/pages/statistics.php

What BLS data also does is list unemployed by their last job classification - so a JD holding barista who gets fired by Starbucks is not called an unemployed lawyer.

Every-now and then someone posts as Anons and reminds people how poorly so many law professors would perform if actually trying a case. In Anons case it he should be glad no one will identify him anymore.

As for "[a] substantial number of JD holders also hope to work in non-law fields and others exit the employment market entirely for family reasons or what have you" - well Anons, you can believe this if it makes you feel better - but pretty well no-one else does. Indeed, were you to put your name to this statement I think you would not want to put in an appearance at your law school for several months; mocking would be the least of what people would do to you.

[matt]

Let me know if you disagree but Bernie's paper seems to be a refutation of the Simkovic-McIntyre paper (assuming his results are correct). S-M assume future employment opportunities for lawyers will be similar to the past, this assumption is necessary, otherwise the historical data they analyze would be worthless for making predictions. S-M justify their assumption by claiming to show the recent downturn in the legal market is cyclical and things will return to normal soon. Bernie argues the employment opportunities are getting worse and the only way things can improve is for the supply of lawyers to fall.

A few other thoughts. I don't see any reason for law schools to stop raising tuition. In fact I can see this increases accelerating as prospective students become better informed about the gov't's incredibly generous programs to help people pay off their loans. The logical thing for law schools to do is step up their own loan repayment programs to cover the small amount the gov't requires law grads to pay. They can fund this by raising tuition (as Georgetown has been accused of doing).

Finally, I think things may not have changed as much as people think for grads of the bottom 100 law schools, however, this is because their options were always terrible. The only thing that is different now is these schools are forced to disclose how bad the outcomes really are. In this sense S-M are right and Bernie is wrong, nothing really has changed.

[CHS]

Why not just say the person is wrong, and show why he or she is wrong? Why go on and on about profs and practicing lawyers as if practicing lawyers never make arguments that are wrong.