Supply and Demand

Lately, I have been disappointed to see how reactive the legal academy has been to the legal jobs crisis. In particular, the public discussion of what to do about the decline in jobs for our graduates seems always to be about how best to cut expenses, shrink faculties, close schools, or reallocate resources. We tend to take as given the number of paying jobs available and we scrap over nothing more than how to adjust ourselves to these small numbers.

Many of these debates, apart from their antagonistic tone, are useful. Some ideas for better efficiency and reduced expenses are genuinely prudent, and we should be glad for the debate and for any ensuing reforms that make life better for our students and the public.

But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need.  Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?

In certain circles, law-reform types mention notions like a "civil Gideon" or suggest renewed appropriations for public defenders, but these conversations seem to me to occur almost entirely apart from the debate about what to do about law schools. Shouldn't these topics be part of figuring out how to employ more of our graduates? Perhaps we need a strategy to dramatically increase public investment in legal services. Perhaps the new support ought to come instead from foundations or philanthropists. Perhaps the bar itself, those lawyers who have found lucrative careers in our noble profession, should be cross-subsidizing service to the less-well-off to a much greater degree. I don't know.

Excluding these questions from the debate, however, amounts to simply accepting the world as it is handed to us, as if the market for lawyers were a fact of nature. To the contrary, the market is a human creation, and humans can alter it. We strive to teach our students to fight for their clients not just on whatever unfavorable battlefield they happen to find themselves, but to seek out or even build new legal terrain upon which ever more favorable results can be won. Don't we owe ourselves the same creativity?

Comments

[clarifying]

You suggest that we should be "increasing demand," but the specifics of your suggestion describe a supply subsidy that does not shift the demand curve, am I right?

[anon]

"Perhaps the bar itself, those lawyers who have found lucrative careers in our noble profession, should be cross-subsidizing service to the less-well-off to a much greater degree. I don't know."

Sounds good, lets start with law profs.

[Orin Kerr]

Just off the top of my head: I think this hasn't been a big part of the debate on legal education for a few overlapping reasons:

1) It's not really a proposal about legal education itself.
2) Given the high levels of unemployment nationwide, it's hard to make the case that the government should select lawyers as the group worthy of a special jobs program.
3) Given that a government subsidy (in the form of guaranteed loans) has lead in part to the oversupply of lawyers, it would be counterintuituve to solve the problem created by a government subsidy by creating yet another government subsidy.
4) Given that federal deficit has reached record highs in recent years, there is no money around for massive expenditures to hire lawyers.
5) Law schools have relatively little political influence, so they aren't in a great position to lobby for such expenditures.

[Justin Long]

Orin, thanks for your thoughtful response. Of your five points, perhaps the fifth is the most persuasive-- but I don't know if you're right about the law schools' capacity to influence politics because I haven't seen much of a concerted effort to try on this front. I take your other points to be arguments on the merits. My initial reaction is skepticism about some of them, but I'm open to persuasion. And that is exactly the discussion I think we need more of, but are not getting, in the broader debate.

[Lawyer's Anonymous]

Hey Justin:

Here's a thought: the next time your school comes across a little money...say from the "profit" they made from collecting student loans, or from a wealthy donor, they can create some sort of trust for those people who cannot afford lawyers so they have access to funds in order to pay the highly indebted lawyers who attended your school.

I will be sure not to be too offensive. Wouldn't want my personal information to be made public.

[anon]

Did Justin make personal information public?

[Barry]

"But there is an entire side to the discussion that we simply aren't having: beyond reducing supply, we should be increasing demand. Despite the shrinking numbers of existing jobs in existing firms working for existing clients, there is no corresponding shrinkage among those who simply cannot afford the legal advice they need. Where is the debate about how to find funds so that lawyers can be hired to serve those clients, at salaries commensurate with their skill, education, and indebtedness?"

Considering this would need to cover probably 25% to 50% of law school grads, this would be an incredibly large program:

20K law grads/year * $50K/grad = $1 billion/year.

Ongoing.

And that's using a ridiculously small dollar amount per grad, and ignoring the proven fact that law schools expand seats and tuition to meet subsidies.

[No, breh.]

So when we speak of "unmet demand" then (and I note that, by definition, demand includes both a willingness and ability to pay for whatever is being supplied), what we are really doing is voicing our support for a subsidy?

Good to know that at least we've finally got our definitions straight.

[Andrew]

There are a few problems with this:

1. An increased "demand" for lawyers is generally caused by an introduction of inefficient regulatory mechanisms and greater legal intrusion into personal lives and economic structures that disadvantages society as a whole even if it financially benefits lawyers.

2. Law faculty generally vastly overestimate the need for legal services among the underrepresented poor. While there are obviously cases where a competent attorney can alter the ultimate outcome, usually this is not the case. People are almost always evicted because they can't pay their rent or mortgage, not because they don't have a lawyer representing them in the eviction process. The same goes for most civil actions that most of the poor find themselves in.

3. The reason the debate has focused on law school costs and high enrollment is because these are the primary drivers of the problem, in conjunction with basically unlimited government-funded student loans. And most of the costs are born by unreasonably high salaries for law professors, most of whom are in the bizarre situation of being highly paid academics yet having neither research degrees nor practical experience in the law.

[harold]

Take all the gov't loan money that goes to law schools and redirect it to legal services. Kill multiple birds with one stone (over-production of new lawyers, jobs for unemployed new lawyers, and legal services for the under-represented).

And probably close a few of the more awful law schools in the process.

[Anonymous JOnes]

Mr. Long:

With due respect, your proposal makes no practical sense at all, and it is the kind of idea that freely flow around law schools drawing contempt from the practicing bar and all outsiders. Not every problem requires a subsidized lawyer to resolve it. I have no doubt but that if the cost of legal services were not carried by a client that there would be more legal work to go around. But think about what you're saying. Under what set of circumstances is that beneficial to society?

If every slight, dispute, disagreement were to result in taxpayer funded litigation, what do you think the Courts would look like?

Right now, in middle America, if you have approx. $500, you can find some lawyer to hire to bring some modicum of a fight to any slight that you've experienced that has any merit at all. You want to drop that floor to -- free? or $50 or $100?

I'd encourage you to go to a small claims court now, or to family court, or to any court really. Do you really think there's a shortage of disputes? Do you really think society would be well served by spending limited resources on that?

In Texas they'd say that you're talking your Law Professor Book. The academy gets enough subsidies, which is why there is no market discipline to begin with. For heaven's sake, we don't need any more!

[M. M.]

I want to commend you, Mr. Long, for your idea and for tackling another side to this that most people haven't thought of. I have visited court recently and was astonished by how much of a burden the now vastly unrepresented individuals bring to the system. Over and over again, I saw judges spending their time telling people how they needed to fill out this form or that form and then come back to court and I imagine, from a judges' point of view, that this has greatly increased their work loads.

Having said that, I am not sure where the income would come from to subsidize such a program and whether increased participation by lawyers is the answer. I work in a profession that encourages individuals to avoid court and the results are generally satisfactorily. There simply isn't enough money to pay for people's attorneys. Perhaps the answer is increasing subsidies to programs that help people avoid court and resolve their disputes in other ways, such as mediation. Or, increasing subsidies to programs that educate the public about the law (ie: law classes, or programs that teach people how to fill out their own forms and prepare them for court) so that people will be more educated when they represent themselves in court. I understand that that may not serve the goal that you probably had in mind - increasing employment outcomes for lawyers - but maybe the time has come where the lawyer's role in society is being reexamined and we are learning that they are not that important to society as we tried to make them out to be.

No lawyer wants to hear that, but maybe we have been overproducing lawyers for so long that the simple solution is that our system is too expensive to maintain and needs to be cut back. We need to figure out different ways to do things, but it is doubtful that we could ever afford a program to pay for lawyers for individuals who can't afford them when we continue to maintain an unjustifiably high cost to educate our attorneys.

Having said that, I appreciate your fresh look at things - this debate should be open to all points of view.

[Hilary Kao]

Dear Justin:

I agree there has been a great deal of attention paid to talk on how to address expenses and reallocation of resources. I think there has been some focus on how to increase demand for lawyers, as you suggest. I found your posting interesting, because I read several articles in bar association journals this month on the concept of "low bono" - providing legal services to clients who make too much for pro bono services, but cannot afford the full price fees charged by attorneys. This seems to be a growing trend and one way for schools and recent grads to provide much-needed services and gain experience. I would be interested to hear how many schools are rolling out such models. I've include the NY Times article from March discussing this as well.
I don't know if this is responsive to your points on how to increase demand, I believe the demand is out there, and these efforts prove it. The challenge is connect those who need affordable legal services with those who are willing to provide it at an affordable price.

1.
http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/september_2013/lowbono.cfm (Karen Alfisi article in the DC Bar Journal)
2.
http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/august_2013/president.cfm (Letter from D.C. Bar President Andrea Ferster about low bono)
3.
www.thelaw.net/to-place-graduates-law-schools-are-opening-firms/ (quoting the 3/7/13 NY Times article)
4.
http://www.nytimes.com/2013/03/08/education/law-schools-look-to-medical-education-model.html?pagewanted=all&_r=0
(The NY Times article describes programs at Arizona State, Brooklyn, Hastings, CUNY, Thomas Jefferson, Pace, Utah, Rutgers, and notes a number of other programs exist. The article also notes that the ABA is interested in creating a jobs corp.)

[Samuel Browning]

Justin

If law professors cared, they could spend their time lobbying their state governments to allocate more money to pay legal service attorneys who generally do a good job of selecting clients who need pro-bono services as verses those who "want" them.

Of course free legal services for the poor is horribly unpopular with the general tax paying public, so there is a limit to the number of new jobs that are going to be created through this funding source.

Sadly where the poor could really use a good lawyer is in the worse sorts of divorce and child custody actions in which one partner, or the children are being abused. The system is seemingly not set up to provide such representation.