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Monday, May 6, 2013

Epstein: There Is No Crisis in Big Law or Legal Education

The Lawyer BubbleRichard A. Epstein (NYU) reviews Steven J. Harper (Former Partner, Kirkland & Ellis; Adjunct Professor, Northwestern), The Lawyer Bubble (Basic Books, 2013):

Law schools are under siege. Applications have dropped to around 54,000 annually, from around 100,000 in 2004. First-year enrollment has slipped to under 40,000 students, from 50,000 in 2010. Jobs are scarce—especially for students coming from lower-tier law schools. The average annual tuition has risen to just over $40,000 per year, from about $23,000 in 2001. Average debt on graduation has followed suit, jumping to about $125,000 in 2011, from $70,000 in 2001. No wonder many experts expect perhaps a dozen schools to close their doors within a year while other schools slash their class size, faculty and staff to stay open.

Meanwhile "Big Law"—the largest 200 or so law firms, which serve elite corporate clients in major urban areas—are under stress. Firm size has topped out, and both partnership shares and entry salaries are treading water at best. Clients now scour bills and disallow certain fees. Alternative, transaction-based fee arrangements are now more common. Competition has replaced cushy long-term relationships.

Terrible news, for sure. But is the "Profession in Crisis," as the subtitle of Stephen J. Harper's "The Lawyer Bubble" has it? The answer is no. A bubble may have burst, but not for the high end of the profession or for the thousands of attorneys working in specialized niches. ...

[T]he author ignores the more salient fact that the vast majority of big firms have avoided this grisly fate. Mr. Harper never looks into how these savvy firms survive in a tough environment. They do so, in part, by avoiding overstaffing, by cutting bad clients and by paying premium wages to young associates—many of whom, debts paid, happily bail out for less stressful work as in-house counsel for companies or in the government and nonprofit sectors. Over all, the model proves stable: With Congress passing monstrosities like Dodd-Frank and the Affordable Care Act, top-flight legal talent is needed more than ever to guide well-heeled clients through the growing regulatory maze.

Ironically, Mr. Harper misses the most significant recent dislocation in the practice of law, which is at the consumer end of the market: the rise of low-cost online law firms like LegalZoom and RocketLawyer that aid clients in drafting standard partnerships, wills, leases and the like. These firms pose a mortal threat to sole practitioners, not to Big Law.

So what does the new legal environment mean for legal education? Mr. Harper thinks that law schools fail because their faculties won't sully their hands with people with "actual experience" but seek out people "who are good at big ideas." ... Mr. Harper charges that academics like me, who are obsessed with high theory, cause "institutional inertia" in law schools and prevent the sort of evolution necessary to gear students up for the 21st-century legal market. The author's recipe for change includes large doses of hands-on instruction on business relations and practice skills. But law schools can't just be "practical training" centers, as Mr. Harper would have them; they must make sure that their students grasp the fundamentals of legal theory and doctrine. Future lawyers must also be capable of connecting law with collateral disciplines ranging from corporate finance to game theory to cognitive psychology. ...

Mr. Harper's blunderbuss condemnation of most large firms and most law schools is off-target. By and large, they have proved resilient in a competitive legal climate.

WSJ Law Blog, Pricking the "Lawyer Bubble":

Mr. Harper told Law Blog by email that “despite Professor Epstein’s contrary assertion, my book doesn’t advocate that law schools abandon the ‘fundamentals of legal theory’ in favor of practical training.” And as to the question of Mr. Epstein’s experience, Mr. Harper stands by his description, saying, “The perspective of a retained expert for a client is much different from that of anyone who has worked inside a big firm.”

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Epstein is essentially right. NYU is perfectly fine. It's graduates, even the recent ones, for the most part, are perfectly fine. For the ones that didn't land good jobs, well, they paid to play. NYU will never have trouble recruiting students, and their 10 and 20 year reunions will be happy ones.

All schools that are outside of the top 30 in the nation are in a much different position. These institutions send less than 5% of their classes to BIGLAW jobs. I would expect the Epstein's of the world to be pointing out the difference between NYU and them loud and clear.

Posted by: JM | May 6, 2013 1:52:32 PM

Actually, a lot of schools outside the top 30 (by U.S. News) send more than 5 percent of their graduates into big law.

But you don't need to get a big law job for law school to pay off, so it really doesn't matter.

Posted by: Anon | May 7, 2013 5:53:06 AM

You need a big law job for 2-3 years to make law school pay off. Even if you get in the door, there's no guarantee you make it that long.

I don't view the legal education crisis as a problem of what's taught. New legal or JD advantaged jobs aren't magically created because law students aren't better trained. The problem is that there are too many JDs and law school costs too much. The market is correcting and law schools near the bottom will close.

Posted by: HTA | May 7, 2013 7:56:38 AM

Anon at 8:53,

You've illustrated a great lesson that I've learned in life. The best way to get people to retreat in the direction of what is exactly right is to exaggerate slightly in the other direction. There would be no easier way to get law schools to publish flawless debt/employment information than to have outside sources consistently exaggerate the debt and unemployment figures by 5%. You'd see these schools carve out this data with a razor.

Posted by: JM | May 7, 2013 7:58:15 AM

Coincidentally, I just finished reading Harper's book last night (and today someone told me about Epstein's review). Harper's book is useful, but hardly new in recounting all the statistics about too many law graduates and not enough jobs, the high cost of law school tuition, etc. Unfortunately, like other articles (my estimable former colleague Bill Henderson's suggestion for law school consortia, etc.) and books I have read (Tamanaha's really, really useful book), the book falls short in terms of realistic solutions (meaning solutions that either would solve some of the problems, or have a chance of being actually adopted). That is because, in my view, there IS no good solution which (1) saves all the law schools out there (assuming, for the sake of argument, they deserve saving) that are producing, in toto, too many graduates; (2) saves the jobs of all the academics (like myself)-- many of whom simply don't have the qualifications to practice law because they never practiced it to begin with, or did so for only a couple of years (unlike me) before going into academia; (3) increases the number of jobs; (4) diminishes what Harper convincingly discusses: the rapaciousness of BIGLAW players; and (5) reduces the tedium of a lot of law practice. I can hardly fault Harper, et al., however, since I likewise have no solutions.

Posted by: Howard Eglit | May 7, 2013 11:20:16 AM

That was an intelligent review of Harper's work. I agree with you though, I can't see that the law school is on crisis. In our place law schools are on the edge.

Posted by: Karen | May 14, 2013 2:57:16 PM