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April 15, 2014

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Steven Freedman (KU Law)

@ Terry. Wow, I've never been so harshly criticized for citing to the Atlantic Monthly. Maybe I should have cited Harper's?

anon

“Indeed, it seems to me to be a virtual certainty that there will be a shortage of entry level lawyers in 2017.”

Here we go again. Another person in legal academia who claims to know the future, and considers it his duty to tell others about his “certainty” to induce them to invest huge sums of money and years of time to attend law school.

Ben Barros doesn’t pull any punches. “[Should] legal educators argue that students should go to law school now[?] Shouldn’t we wait to see how things play out in the next couple of years? I think the answer is no.”

So, here we go again. One can understand an assistant admissions director acting like a barker. But a professor?

Barros proclaims that legal educators should behave as investment advisors do: Advise others to get in the game!

Barros states: “Potential applicants who are interested in law school should go now because (a) they will start their legal career sooner, and (b) they might not fare as well on the admissions market if they wait until the conventional wisdom on the desirability of law school shifts. Prospective students would do well to stay ahead of the herd.”

This is sales talk, pure and simple. It is eerily similar to the kind of talk one hears from all hard sale types hawking investments.

“Buy stock now before market goes up! No one ever loses money in the market over the long term.” “Borrow that money now and buy that property! Real estate always appreciates. Just look at this chart!”

One is tempted to ask: Has legal academia lost all sense of its dignity? Will we reduce the goal of attaining a legal education and the aspiration to practice law to complete irrelevance in favor of this sort of come on?

Now is the time for your tears. The fact that more folks in legal academia aren’t recoiling from this unseemly discussion is the ultimate proof of indifference to the conditions that have created the present crisis.

It is not “the market,” folks. Blaming all of the present dysfunction on the "market" is a very serious error, and placing trust in these sorts of claims about a certain future to justify complacency is pure folly.

Ben Barros

Anon, you appear not to have read or understood my post. I should probably delete it as irrelevant, but you selectively quote the post so I won't. Why don't you try engaging in my actual argument? Among other things, I don't claim to know exactly what will happen in the future. What I do is look at (a) the number of likely graduates and (b) the number of jobs we can expect even if the job market does not improve. Both sets of numbers are based on actual data.

At the end of my post, I asked people who disagreed with me to state why they disagreed. After more than 20 comments (admittedly including my responses), not a single person has raised a meaningful critique of any of my arguments.

anon

Ben:

You say I haven’t read your post. I’m tempted to say: “Right back at you.” You are selectively addressing my comment, and, as you concede, I quoted your words.

Please don’t say that “Among other things, I don't claim to know exactly what will happen in the future.”

Ben Barros! You state, among other things:

“Put bluntly, the class of 2017 is virtually certain to graduate into the best job market in recent memory.”

“When I look at these numbers, I come to the conclusion that the class of 2017 will graduate into the best job market in recent memory, even if the economy does not improve. Indeed, it seems to me to be a virtual certainty that there will be a shortage of entry level lawyers in 2017. “

“The combination of what is probably the best admissions market in history with what is virtually certain to be the best job market for graduates in recent memory makes this, to me, a great time to go to law school.”

In other words, you argue that you know the future to a virtual certainty, but that you don’t know what will happen in the future. Got it.

You seem to believe that shrinking class sizes will guarantee that a greater percentage of graduates will find gainful employment as attorneys in a few years, even if the absolute number of jobs stays flat. On that basis, you have claimed that this is a great time to get in the game and go to law school. Further, you extoll the virtues of the “market” to prove that the time to enroll is “now” before the herd comes stampeding in.

My view is that the present decline is multifactorial. Part of the problem is that the law academy has lost touch with the practice of law and has been unable to respond to changing needs for legal services in a dynamic marketplace. As the Exec Dir. of the NALP has pointed out, the sector shed 60,000 jobs during 2008 and 2009, and only 15,000 of those positions have returned. Nearly 9 percent of associates at U.S. law firms were laid off in 2009 and some of them are still trying to make their ways back into fulltime law firm work. Meanwhile, as the vast number of Americans remain underserved (see, recent piece in the New Republic documenting this, and calling for “Judicare”) all this time and energy is being expended to “prove the future” market for legal services is bright, instead of focusing on the dynamic needs of the US population for legal services. Your certainty fails to account in any way for the changing needs and constituencies that could make up a different and more functional market for legal services. This would be a worthy endeavor, in my view.

More importantly, do poor employment outcomes for attorneys solely account for the recent outrage and decline in applications? Take a look at Steve’s graphs. What strikes me is how far above the green bars that orange line is. Whether you know or care, or dismiss the hordes of grads who can’t find employment as “scam bloggers” unworthy of your respect, there is simply a bad impression among many about representatives and representations coming out of legal academia in recent years. In my view, your posts exemplify the problem. You are demeaning the value of a legal education by hawking law school as an investment, complete with your “buy today, beat the herd” sales talk. If proved wrong, and that is an even bet, what will you have wrought?

This sort of hawking exacerbates an existing problem that is in part is causing students to stay away. Because you are "selling" law school like an investment, including the "buy today" type argument, you are creating an air of desperation and untrustworthiness. Guaranteeing future economic benefits to induce others to invest in any activity is a form of charlatanism, and this isn’t missed by prospective students - who don’t expect law profs to "sell" law school based on money talk, but rather on the dignity and honor of becoming an attorney.

Frankly, the crass numbers crunching that is going on here seems not only demeaning but sort of amateurish. Leave it to admissions directors to “sell” law school based on like economic analyses (e.g., looking at the present number of entrants and the present number of positions and then blithely concluding that the lines will meet in three years).

You say that you want to engage with others on your "certainty" about a future market. As argued in response to Steve's posts, you fail to account for the vagaries that inhere in any prediction of what a market will do. Many of us believe that perhaps the absolute number of positions will stay flat, but that isn't any basis for assertion of any certainty about anything. As a former practicing attorney, I suspect you know this. For example, you dismiss one factor that might affect the certainty of your analysis with yet another certainty that “there is less existing slack in the employment market than many people might think.”

All in all, I find your posts to be a sad commentary on the depths to which the law academy feels itself obliged to stoop. The "market" is not the only reason that students are staying away. Are you helping or hurting our legal institutions with this sort of post?

anon

BTW, Ben, stop deleting and threatening to delete comments and let others decide whether "a single person has raised a meaningful critique of any of your arguments."

terry malloy

Are we reading the same source material?

From your Link:


"Some law schools point to our profession’s low unemployment rate as a positive reason to embrace law school. Is that a valid way to use the BLS statistic?

No, the statistic is quite misleading when recited without further context.

First, the statistic includes only people who held a lawyering job before becoming unemployed.

Second, the statistic does not include anyone who worked for a single hour during the survey week.

Third, the statistic does not include lawyers who have been unable to find satisfactory legal work and have taken jobs in other fields.[yoo hoo]

Finally, the BLS count of “unemployed lawyers” includes only individuals who have actively looked for work during the preceding four weeks. This caveat is important because of the number of unemployed lawyers who become discouraged and leave the workforce entirely.


In sum, it is technically true that the unemployment rate for lawyers, according to the BLS, is just 1.4%. But that statistic is likely to give prospective law students and others a distorted view of the legal job market. The bare statistic suggests that 98.6% of people who want to practice law, and who have law licenses, are employed as lawyers. That’s clearly not the case. In fact, the same BLS data series suggests that the number of practicing lawyers declined between 2011 and 2012: There were about 1,085,000 respondents working as lawyers in 2011, but just 1,061,000 in 2012."

You see what Prof. Merritt did there? That's called research and analysis, and it appears to call the way Prof. Freedman used the BLS lawyer unemployment number "quite misleading."


Am I missing something?

Ben Barros

Anon,

Thank you for at least making an attempt to address my post. You have not, however, explained why you think my math is wrong. When I look at the numbers, the math tells me that the class of 2017 will graduate into the best entry level job market in recent memory so long as the number of jobs does not decline dramatically. Do you disagree? Why? In my analysis, I assumed jobs would be flat, which seems fair, but the analysis would be basically the same even with modest declines. That is why I said it is a virtual certainty. If you want me to take you seriously, actually engage in the analysis that I put forward. And, as to your second comment, it is my post, and I'll delete any comments that I feel are off topic of useless. There are plenty of other places on the internet for people to go on rants about law professors and legal education.

Terry,

What you are missing is that Steve did not misuse the overall unemployment statistic. If you actually read what he said, you will see that he was talking about people who had been employed as lawyers, and who were later laid off. In other words, he was using the statistic correctly.

Jojo

Ben,

With due respect, how can you possibly rule out systemic change with pure optimism and conjecture? As a very explicit data based counterpoint, please consider this. Biglaw employs a non-insignificant number of entry level attorneys (and a decade ago employed an even more non-insignificant number of entry level attorneys). The decline is not merely cyclical and will not bounce back when the legal economy "picks up" to the extent it ever does. Litigation practitioners (and M&A compliance attorneys) have witnessed this firsthand.

In the 1980s, you could actually get relief from a Court to limit paper discovery if there were more than 50 or 100 bankers boxes worth of documents. (I know people who obtained such relief). From the mid-1990s to the mid-2000s, there was an explosion of data, and of data driven discovery. Divisions of junior associates at biglaw were hired to review documents as a major portion of their work along with their small-scale substantive assignments (research memos, sections of briefs, nondispositive motions, etc.) It was how GenX baby lawyers were trained by Biglaw.

Beginning in about 2004, things started to change. Predictive coding became popular. Doc review sweatshops opened. The ABA endorsed LPO (legal process outsourcing). Clients began to refuse to pay for junior lawyers to do document review. This has led to a reduction in the junior biglaw workforce. No doubt that there was some cyclical downturn from 2008 to 2011, but there was this structural change too.

Also, you're discounting the fact that cyclical changes in the overall economy can have systemic changes in law. I have personally observed the focus on corporate and governmental budgets brought utilized to change the way that those departments hired outside counsel and/or utilized lawyers internally. Also, software has meant that cash-strapped members of the middle class are doing more routine things pro se (eg., writing wills, creating LLCs, etc.) It's not going to get better. Law is a mature field. America will always need lawyers; but we will only need approx 25,000 per year.

MacK

Ben:

When you say "the math tells me that the class of 2017 will graduate into the best entry level job market in recent memory" it would be more accurate to say that they will graduate into a dire market, where a fair proportion will not find legal employment and very few will find a job that justifies the cost of attendance at law school, in short a "catastrophically awful market that is magically less catastrophic than say 2012 or 2013.

The difference between saying that market will be somewhat better ... and trying to say it will be wonderful is the difference between shilling and honesty.

terry malloy

I place myself in the capable hands of the readers as to how broadly Steve was (mis)using that number.

Also, even if Steve narrowly intended people employed as lawyers, and then laid off, many would be excluded from that number for a host of reasons, as Prof. Merritt outlined.

You have to ring a number of bells to be an 'unemployed lawyer' per BLS.

I expect more from Professors who are attempting to entice individuals to take on metric tons of debt.

If you were selling a mutual fund, you'd have the regulators in your office before you could blink the way you all play fast and loose with your pitches.

BoredJD

Ben, you have already admitted you have no salary data. The massive leaps of logic you are making come from a bunch of interviews with your old students. Hardly a rigorous scientific study. Let's put that in perspective.

You talk about LST's "credibility." You have no credibility. Law professors have long abandoned any pretense of having any credibility because of the way in which they structure their arguments, this post being the prime example. Whether they will be able to make their payments after they graduate is probably the most important consideration for a prospective student. That you have to be goaded to mention debt repayment, and then do so in a throw away comment that essentially says "well, IDK, but it seems like everyone's doin' okay to me!" is exactly the problem that people have with your enterprise, and exactly why we think it wouldn't be so bad if you had to make do with a lot less in tuition revenue. The New America Foundation agrees with us, coincidentally, which means that this all might be, ironically, academic by 2017. The GRADPLUS program might not continue to be the gravy train you need.

The non-discounted COA at Widener is 250K. When you sell to a Widener student you are asking them to mortgage their futures. Until you can seriously address those numbers (with something more than 'let them eat PAYE') Widener is just not going to be a good deal. By the time a student is making 80-100K (even on the fantastic assumption that most students will make this much) the debt will have increased commensurate with the salary increase. You need to tell prospective students to be aware that by signing the promissory notes they may be signing up to PAYE for life, not hide the ball.

I know that your school must be under extreme financial pressure right now, but the way you have dismissed or avoided the debt issue does nothing to restore the complete lack of credibility the legal academy has in the eyes of recent graduates (and we talk loudly to prospective students). Are you really that out of touch that being unemployed for nine months or more isn't a problem, even from just a marketing perspective?

John Steele

Guessing the future is a perilous task, but I will offer my own prediction about structural changes.

When we're looking at the extent of structural changes, it might be helpful to look at (1) the growth of legal service providers outside the law firm paradigm, for which there is lots of hard data; and (2) the impact of that growth on how money gets spent inside private practice firms. Lots has been written about the former and I was just on a panel with providers of that type. Lots of them don't need to hire JDs to offer their legal services and even if a JD is in some sense an "advantage," it doesn't mean that the employer will have to pay for that degree. (Do we need to break down "JD Advantage" into two categories: ones that pay for the degree and ones that don't?)

Regarding the latter, the basic story is that the market has learned how not to pay associates who don't add value and the market is getting better at that each year. The market has also learned how to avoid some of the supra-competitive profits that useful partners garner and the market will get better at that, too.

So even when the macro-economic cycle finally rebounds (it has to, right?) and even when the transactional firms respond with a surge of hiring (they have to, eventually, right?), the economics of being a young lawyer will not be the same as they were 10, 15, 20 years ago. For a quick intro to the topic, see Bill Henderson's post. Notice the long term fundamental shift in associate hiring, a shift that pre-dates the recent economic downturn:

http://lawprofessors.typepad.com/legalwhiteboard/2013/12/did-the-market-for-law-firm-associates-peak-25-years-ago-1.html

Anon

When you state that law school is worth $150,000 in debt are you including within that calculation that the student will be paying off an amount with interest equal to $250,000 over a lifetime? All students who took out 150k in loans and are on standard repayment are paying that much. Do you contemplate this? It is a very inconvient point to the salesman's pitch. What's more inconvient is that I've done the math, lifetime earnings of a paralegal vs attorney who is paying off 250,000 debt. There is zero financial advantage to law school when you crunch hard numbers instead of talking about it in inapplicable generalities

anon

Ben says "When I look at the numbers, the math tells me that the class of 2017 will graduate into the best entry level job market in recent memory so long as the number of jobs does not decline dramatically. Do you disagree? Why?"

Here is the major point of disagreement with the "math" and this is the point that Ben just doesn't seem to understand.

Ben is not doing "math." Ben. Ben is opining about the future but claiming mathematical certainty (with a meaningless "all things being equal" caveat) to hawk law school attendance.

One supposes that were we interested in philosophy, and not economics, we might be more accepting of this sort of approach.

One wonders why Ben can't break out of his "do the math" and "dispute the math" retort (despite the fact that we have, at length, disputed the assumptions upon which his speculations are based) to address the propriety of his posts. That is the real issue, and he won't address it.

That is what Brian and Doug were politely saying, but Ben wants only to hear about the "math" of the future. Worse, the imperious attitude with which all this is presented by Ben undermines and demeans the legal academy.

Ben, don't you see that it is the impression that arguments like yours have created, as much as the "math," that has contributed to driving down the number of applicants to law school? Who would want to embark on such a rigorous and demanding enterprise when enticed in the manner of your posts?

Ben Barros

Jojo,
I agree with a good amount of what you have to say. I agree that there is a lot of long-term structural change in the legal profession. I don’t think that it is the driving cause of the poor recent job market in part because I saw a lot of these changes happening gradually when I was a practicing lawyer between 1997 and 2004. I’m also deeply skeptical of any argument based on the permanence of current conditions because I’m old enough to have lived through several economic cycles. I’ve seen arguments in the form of “things are never going to get better (or worse)” before. They’ve always been wrong in the past. So I tend to think that economic factors are more significant than structural factors. I see the structural changes, but I don’t think they are as big a component of what is going on as many people argue. On the point of this particular post, my general analysis holds even if there is some decline in the overall number of jobs, because the number of enrolled law students has dropped so dramatically.

BoredJD,
Wow. I’m not quite sure what to do with this. First, I’d note that you don’t do anything to refute the actual analysis that I make in the post. I don’t think you can. The math, based on real numbers and data, shows that law graduates in 2017 will virtually certainly have the best entry level job market in recent memory. Indeed, there is likely to be a shortage of entry level lawyers in 2017. I’ll take your silence on that part of the analysis as a concession that it is correct. Second, I explained why I thought that LST’s use of BLS data in the press release was questionable. If you disagree with my statement about that, you should explain why. Third, I’ve discussed the financing issue before, and note in the post the importance of cost. This post, which was made in the context of an existing discussion about employment rates, focused on employment rates. Fourth, you exaggerate the cost of attendance at Widener. I worry enough about student debt in the $120-150k range. Your $250k number is not helpful. Fifth, I know a lot more about the financial and professional wellbeing of my former students than you do. Sixth, the available data shows that a law degree is a good long term financial investment. Seventh, my school is not under extreme financial pressure. Eighth, your last statement about being unemployed nine months out is insulting. I’ve said repeatedly that I think it is a problem, and have made a proposal about how to fix it. Those jobs, however, exist, as inconvenient as it may be for people who are wedded to the idea that the employment prospects for law graduates will always be terrible.

Anon,
The Simkovic & McIntyre study took finance costs into account, so yes, I have taken into account.

Ben Barros

I won't respond to anon at 12:30, but I will comment on the comment. What anon is saying is that he or she can't refute the math, and doesn't like the conclusions that I have drawn from the math. So he or she suggests that there is something improper about my post.

Getting past 30 comments, and still no one has actually tried to refute the analysis in the post. That is starting to be telling.

Stan

Ben, I agree that, if your assumptions are correct, then your math would also be right. The problem is that your assumptions are wrong / unprovable for the reasons above, so the math is irrelevant.

Look around you, if law school was a good investment, people wouldn't be on this website right now debating this topic ad nauseam. The NY times ran an op-ed yesterday and 80% of the comments were negative.

People are discovering the truth: Law school works out great for some, but for thousands and thousands of others, it has been, and continues to be, an inescapably terrible, life destroying decision. Think about that. Even if LS worked out great for most students (which it doesn't), that still leaves a significant number of ruined lives.

Literally every single lawyer from my graduating class (mid T-2) is under-employed save two. Those two are lucky enough to have health insurance. Will it be better in the future? I think not. You think so. Who knows. But given the massive, life-long ramifications of being wrong, I cannot agree with you that it is wise to encourage 22 year olds to take that gamble, no matter the projected math.

These articles by you, Freedman, Simkovic, etc remind me of Big Tobacco commissioning their own reports to disprove the link between smoking and cancer. This saddens me, because in my heart, I do not believe that the professoriate are bad people. They just don't realize how different America is today from 20 years ago. Law school is a prime example of the new truth: education is not the key to a brighter tomorrow.

So unless you can show that you know the legal market will be dramatically better (an impossibility, since no one can know anything about the future), it seems reckless at best to advise 22 year old children that now is a good time to spend hundreds of thousands of dollars - - dollars that can never be discharged if you're wrong - - on an uncertain future.

These are real people who could suffer real, life-long consequences. Please stop doing this.

anon

Ben

The bravado is unbecoming.

If we assume the number of grads in three years (by discounting current enrolling by a reasonable estimate of grad rates) and assume the current level of entry level jobs will remain constant, then the proportion of jobs to grads will be greater in the three years then it has been in recent years. This is your only real mathematical point, and, if you left your rhetoric at that, then there would be fewer objections.

But, you go way past this simple conclusion, to argue that it is virtually certain that in three years we will see the "best job market in recent memory." Further, you say that it is "virtual certainty that there will be a shortage of entry level lawyers in 2017." A shortage is a virtual certainty!

To wit: "Put bluntly, the class of 2017 is virtually certain to graduate into the best job market in recent memory.”

“When I look at these numbers, I come to the conclusion that the class of 2017 will graduate into the best job market in recent memory, even if the economy does not improve. Indeed, it seems to me to be a virtual certainty that there will be a shortage of entry level lawyers in 2017. “

“The combination of what is probably the best admissions market in history with what is virtually certain to be the best job market for graduates in recent memory makes this, to me, a great time to go to law school.”

Claiming that your superficial and facile calculation justifies that sort of hyperbolic prediction is beneath a legal educator. One actually trained in economics wouldn't engage in that sort of discourse. If you need a model to show how to present the available information in a measured and professional manner, take a cursory look at the statements by the Ex Dir of the NALP posted on Steve's thread.

So, we come to the point. As you stated in your post above: "Brian ask[ed] why [i.e., should] legal educators argue that students should go to law school now"?

You have stated: “Potential applicants who are interested in law school should go now because (a) they will start their legal career sooner, and (b) they might not fare as well on the admissions market if they wait until the conventional wisdom on the desirability of law school shifts. Prospective students would do well to stay ahead of the herd.”

Should legal educators go there? Good question. Many answer they shouldn't. For the reasons stated above (to which you refuse to respond), there is a serious issue of propriety about the sort of hard sell ("get in now before the herd") in which you have engaged.

The reason is that, if proved wrong, you will have mightily contributed to the impression that law schools don't tell the truth to entice students, who then act as the conduits of substantial student loan funds. However noble your intentions (I see no evidence of this one way or the other), there are too many variables (as many have pointed out above, despite your steadfast refusal to listen) to come to such sweeping conclusions about attending law school. Your words are just not apt, and are, in the view of many, inappropriate.

Legal educators have every reason to extol the virtues of the legal system and the many contributions that a legal education can make in a young person's life. Engaging in the sort of hawking that your post and comments typify is, conversely and in the view of many, inappropriate.

So, Ben, we come to a basic question:

To whom are you speaking in these hyperbolic terms about the future market for attorneys, and why?

Anon

Your analysis is just speculation. I listened to you back in the day and now I can't find a job. Thanks

Anon

Ben,

They can't quarrel with the numbers becuase the analysis is dead on, and they know it. Nobody likes to hear the initial death knells of their cottage industry (and, by the way, scambloggers have been predicting that law professors would be hearing such knells for a while now, and making no bones about their somewhat craven delight in that prospect, so I don't mind so much that they're experiencing the same thing). And the comment thread *is* telling -- the only arguments advanced here are (and I'm paraphrasing): (1) we don't like your tone (one of the greatest hits in the genre of having no substantive counterargument); (2) law professors should be extolling the dignity of the profession *rather* than talking about employment outcome data (this from scambloggers!!); (3) the use by a commenter who is not the author of the post of an unemployment statistic that is not mentioned in the post is -- what -- questionable on one uncharitable reading of the claim it was cited to support?; (4) you're a terrible person because you didn't write your post about a subject you explicitly said you wanted to set aside and have written about at length elsewhere.

It is long past time that we provided potential students with something that directly refutes the venomous nihilism and petulence of the scambloggers. It is long past time that people began to realize that they, too, have an agenda -- their "fame" (that's not exactly right but it will have to do), their share of voice, depends on things being crappy. So, of course, they'll tend to ignore everything except that which supports their partially self-interested view that things are crappy. In fact, I'll expect to see certain websites proclaiming, in 2017, that despite dramatically improved employment rates things are still *secretly* crappy.

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