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Pepperdine University School of Law

Thursday, September 10, 2015

More On The NY Times Op-Ed: Too Many Law Students, Too Few Legal Jobs

NY TimesThe American Lawyer:  The Intractable Crisis in Legal Education, by Steven J. Harper (Adjunct Professor, Northwestern; author, The Lawyer Bubble):

To understand why the crisis in legal education persists, take a look at how law deans and professors are wishing it away.

My August 25 Op-Ed in The New York Times went viral. It became number one on the Times’ “most-emailed” list. It rose to the top-five in “most viewed,” “most shared on Facebook,” and “most tweeted.” Within hours of publication, it generated more than 600 comments.

It also produced letters to the editor, three of which the Times chose to publish on September 2. Two are from law professors whose responses reveal why the current crisis in legal education is so intractable. 

Milan Markovic is an associate professor of law at Texas A&M. He argues that current law students will soon have better job prospects because there are fewer of them. ... Professor Markovic perpetuates the sloppy analysis infecting virtually all academic discussion about law student debt and the crisis in legal education. In particular, his macroeconomic prediction about the fate of future graduates ignores a crucial fact: job opportunities vary dramatically according to school.

A 2018 graduate from Professor Markovic’s school — Texas A&M — will not have employment prospects comparable to students at top schools that regularly place more than 90 percent of their new graduates in full-time long-term bar passage-required positions. In that key category, Texas A&M’s employment rate for 2014 graduates was 52 percent. Likewise, only three Texas A&M graduates in the class of 2014 began their careers at firms where attorney compensation is highest (that is, firms with more than 100 lawyers).  ...

Professor Jeremy Paul is dean at Northeastern University School of Law. His letter to the Times editor notes correctly that many Americans cannot afford legal services and analogizes the situation to doctors.

“No one would say we had an oversupply of medical students if millions of Americans resorted to self-medication and treatment because they could not pay for a doctor,” he writes.

One commenter to Tax Prof Blog countered Professor Paul’s analogy with this one: “How can anyone say there are too many restaurants when there are still so many starving and malnourished people in the world? That’s how 12-year-olds think, not lawyers, which I’ve heard is law school’s reason for being.”

For the indigent needing legal services, there are not enough lawyers. But that’s because our society isn’t willing to pay for them. ...

Like Professor Markovic, Dean Paul knows there’s no unitary legal education market. He graduated from Harvard Law School in 1981. For Northeastern Law School — where he has been dean since 2012 — the full-time long-term bar passage-required employment rate for the class of 2014 was 53 percent.

Professor Paul’s final observation is that “studies show that a law degree remains a sound investment…”

Which takes us back to the pervasive and persistent academic canard that aggregate data matter to individual decisions about attending particular schools. What study tracks outcomes by individual law school to “show that a law degree remains a sound investment” for graduates of every school?

No such study exists. But for those determined to resist necessary change in the broken system for funding legal education, magical thinking combines with confirmation bias to trump reality every time. Federal student loan subsidies unrelated to student outcomes encourage otherwise thoughtful legal academics to become unabashed salespeople. ...

Would Professor Markovic and Dean Paul — among many others who similarly ignore the crisis in legal education — counsel their own children to attend a marginal law school that, upon graduation, assured them of six-figure debt but offered only dismal JD-required employment prospects?

Update:  Law School Truth Center, If It's Broke, Leave It As-Is

http://taxprof.typepad.com/taxprof_blog/2015/09/more-on-the-ny-times-op-ed-too-many-law-students-too-few-legal-jobs.html

Legal Education | Permalink

Comments

Kudos to Mr. Harper for having integrity.

Posted by: anon. 25 | Sep 10, 2015 12:45:56 PM

I find it hard to take Harper's response seriously given how satisfied he appears to be that his superficial op-ed went viral.

Harper accuses me of "sloppy analysis" and yet presumes to predict the fate of 2018 law school graduates based on 2014 employment statistics. Even the most strident law school critics acknowledge that 2018 graduates will be in a much better position because of the steep decline in law school enrollment.

Harper’s response does reveal two things, however: His disregard for employment opportunities outside of BigLaw and willingness to conduct a grand national experiment in student loan reform that will likely leave law students more indebted while transferring profits from the treasury to private lenders.

Posted by: Milan Markovic | Sep 10, 2015 1:24:21 PM

For all those aspiring writers suffering in anonymity, do you see how easy it is to make a name for yourself by criticizing law schools? Top 5 article on NYTimes, highly shared on Facebook. . .sounds pretty good, right? Everyone will know your name overnight if you just pen an article excoriating law schools!

Posted by: JM | Sep 10, 2015 1:35:57 PM

Is it just a tiny bit possible that Harper is mostly right. I am quite willing to stand by the comments below. Particularly, the part about self-interest and sinecure blinding or biasing us toward convenient rationalizations.


Self-Interest and Sinecure: Why Law School can’t be “Fixed” from within

David Barnhizer, Cleveland State University College of Law
Abstract

The issue of how best to do a legal education is being approached as if it were an intellectual and pedagogical question. Of course in a conceptual sense it is. But from a political and human perspective (law faculty, deans and lawyers) it is a self-interested situation in terms of how does this affect me? The reality is that for law faculty and deans it is mainly a life style, status, economic benefit and political situation in which the various interests protected by the traditional faculty slot placeholders [as well as the non-traditional practice-oriented teachers) are being masked by self-serving language best described as “high rhetoric”. My point is that as some lawyers have told me, “people would kill to have your job.” That is disturbingly close to being accurate. And if that is true then it offers a useful insight that “people would probably do almost anything to keep that job” once they have become part of the incredibly comfortable academic system inhabited by the American law professor.

If we were critiquing any system other than the one in which we work, law professors (as lawyers) would immediately evaluate that other system based on the effects of the inevitable sense of entitlement, privilege, self-interest, bias and resistance to change that affects any system. A central dynamic operating against real change in legal education is the very high level of individualized self-interest that characterizes the amazing job of the American law professor. This individualized self-interest produces a set of inchoate “work rules” that is at least as powerful as the work rules under which many labor unions operate. The rules allow the law professor unaccountable “space” to do whatever he or she desires in teaching, research, and external activity. This allows too many members of law faculties to treat their lucrative and privileged positions as a part-time job. As I suggest in this brief essay, very few beneficiaries of such a system voluntarily seek to alter its highly favorable terms of operation or are able to fully withstand the seductions of its privileges and perquisites. Most engage in convenient rationalizations that prevent real change because that would require them to lose the privileges and impose greater accountability and responsibility.

A result of the intense self-interest in which the American law professor operates is that recommendations that law school be modified to be more “practical”, implement clinical programs and incorporate courses such as Trial and Appellate Advocacy, Dispute Resolution, Negotiation, Interviewing and Counseling, Transactional work and so forth will not be accepted as significant across-the-board educational reforms. Arguments aimed at achieving substantial improvements in legal education have been around for four or five decades. It isn’t as if the premises of those arguments were obscure and a “great cloud of unknowing” suddenly stripped away. It is amusing to see people “reinventing the wheel” and acting as if they have suddenly achieved an intellectual epiphany that allows them to understand that American law schools are in fact in the business of educating people to become effective practitioners and responsible and principled professionals. But even though there is a strong likelihood that in many instances the new attitudes being trumpeted are little more than cynical or desperate public relations devices rather than actual shifts in pedagogical mission and educational strategies, they may offer hope for significant reform. If so this will be due to the sheer desperation being experienced in many law schools as enrollments plummet, lawyers and recent graduates protest, and parent universities become unwilling to subsidize their law schools.

Suggested Citation

David Barnhizer. 2014. "Self-Interest and Sinecure: Why Law School can’t be “Fixed” from within" The SelectedWorks of David Barnhizer
Available at: http://works.bepress.com/david_barnhizer/88
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Posted by: David | Sep 10, 2015 1:46:52 PM

Markovik, I understand that everyone believes that they are the hero of the story. . . but answer his question: would you advise your child to attend a middling law school, lets say brooklyn law school, or northeastern, for full price plus living expenses entirely financed by student loans?

Show your superior analysis skills with your answer.

Posted by: terry malloy | Sep 10, 2015 2:54:08 PM

There are too many lawyers for the given number of legal jobs. That's not a startling revelation. The elephant in the law school room is that the run up in matrics (before the 2011 bust) is of recent vintage. Enrollment of 1Ls was pretty flat from the late 1970s to the late 1990s. A return to the "normal" enrollment numbers is a good thing.

http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/enrollment_degrees_awarded.authcheckdam.pdf

Posted by: Jojo | Sep 10, 2015 3:08:13 PM

(1) What is the typical starting salary for an employment opportunity outside of BigLaw?
(2) Most importantly, what percent of incoming students attending a school ranked 100 are defrauded into believing this salary number is materially higher?
(3) Has there been a decrease in enrollment at the schools that typically feed into BigLaw?
(4) If no, and one's goal is BigLaw, then why would someone assume that 2018 graduates will be in a better position?
(3) Before the recent decline in attendees, just how bad was the oversupply of recent JDs? If it was a 5x oversupply, cutting down to a 4x oversupply doesn't seem to make graduates meaningfully better off.

Posted by: anon. 25 | Sep 10, 2015 3:20:39 PM

Professor Markovic:

1. The “sloppy analysis” begins with the failure to acknowledge an obvious reality: The job opportunities available to new graduates vary dramatically according to law school. Period. That has always been true and will remain true for the foreseeable future. Suggesting, as you do again, that all “2018 graduates will be in a much better position because of declining enrollments” – regardless of the school they attend – is, at best, disingenuous.

2. None of my analyses has disregarded employment opportunities outside of Big Law. Rather, I focus on the ABA category that includes all full-time long-term bar passage-required employment. Along with that overall JD-required employment rate, Big Law placement is one indicia of a particular law school’s relevant market. As I wrote, that’s not a value judgment; it’s just true.

3. I’d like to end the ongoing “grand national experiment” whereby law schools exploit the moral hazard inherent in the current system of funding legal education. Currently, marginal schools have a financial incentive to fill classrooms and maximize revenues – most of which come from enormous student loans. But the schools have no accountability for their dismal JD-required employment rates.

Would you counsel your child – or good friend – to incur staggering debt to attend such a marginal school?

Posted by: Steven J. Harper | Sep 10, 2015 6:18:34 PM

Two modest points that may be helpful:

First, pointing out that students who attend schools such as Harvard generally have better employment options than students who attend lower-ranked schools misses the point. The relevant question for someone considering law school, be it at Harvard or a lower-ranked school, is whether they have better options in other fields. Students who are accepted at Harvard likely have very different options from students who attend lower-ranked schools.

Second, there are signs that in the immediate future, the number of law graduates will be in line with the number of bar pass required and JD advantaged jobs that are available. The number of jobs available appears to have stabilized at levels seen in the early 2000s. The number of matriculating 1Ls has dropped dramatically.

For job data, see: https://lawschooltuitionbubble.wordpress.com/2015/09/08/class-of-2014-nalp-data-unemployment-small-firm-jobs-down/

For matriculant data, see: http://taxprof.typepad.com/taxprof_blog/2015/04/organ-projects-26-decline-in-fall-2015-1l-enrollment-.html

Posted by: Gary Lucas | Sep 11, 2015 8:20:06 AM

@ Gary,
Responding to your two points:

1. You make a fair point. Anyone considering law school needs to look at their own specific alternatives. With that said, I am not sure what is a worse alternative than high debt and less than full time/long term employment. Yet this is the outcome for at least 33% of the graduating population. So even assuming your advice is sound, there should still be about a 33% reduction of JDs in a sane world.

2. Even if there are 20,000 jobs/year and 20,000 JD grads, there will still be large numbers of unemployed JD grads each year. Contrary to your underlying premise, employers will not just hire anyone that you decide to crank out of your schools. Many recent grads just lack the aptitude for legal work and they will not be hired regardless of an employer’s need. If they cannot write or produce any type of quality work product, then what is the point? Just because they serve a purpose to you (conduit to Govt loan funds) does not mean they serve a purpose to anyone else. Furthermore, far more grads than at any point in history will never pass the bar exam, which will preclude them from working as lawyers. Your point is sound, however, in that more solid but unspectacular grads will have better options in the legal market.

Posted by: JM | Sep 11, 2015 9:28:58 AM

RE: anon. 25 | Sep 10, 2015 3:20:39 PM

1) Here's a chart about the bi-modal salary distribution for law school graduates. I'm not sure it directly answers your question, but it may help. http://thegirlsguidetolawschool.com/09/law-school-myth-1-lawyers-make-a-lot-of-money/ Google "law school bimodal salary distribution" and you'll find a lot of similar tables.

2) Lawsuits against law schools in recent years alleging fraud haven't fared very well. For example, a class action against 15+ law schools alleging that the schools fraudulently overstated their post-graduation employment rates were all, I believe, dismissed. Here's an article from when the law suits were filed with some details of the allegations. http://abovethelaw.com/2011/10/fifteen-more-law-schools-to-be-hit-with-class-action-lawsuits-over-post-grad-employment-rates/

Posted by: Matthew Bruckner | Sep 11, 2015 9:37:53 AM

Gary Lucas:

1. Pointing out that students at Harvard and other top schools have job better job prospects than students at marginal schools does not “miss the point.” It IS the point. Relying on aggregate data to predict better prospects for all graduates “in the immediate future” (your phrase) ignores the fact that there is no single market for all law grads. But the current student loan funding system allows marginal law schools to escape accountability for their graduates’ poor employment outcomes. Among the consequences: many schools reporting the worst employment results have the highest average student debt at graduation.

2. Your second point injects the Pandora’s box of “JD-Advantage” jobs. Some of the jobs in that category – especially at top law schools – are excellent. But the ABA definition allows schools to include many others that aren’t. In that regard, I agree with Professor Bernard Burk’s critique: http://thelawyerbubble.com/2014/07/16/are-you-a-smokin-bucketful-of-awesome/. In recent years, law schools have increased dramatically the number of graduates they put in the JD-Advantage category.

Finally, the data links you cite don’t prove your points; they reinforce mine.

1. In your first link, Matt Leichter notes: “These charts show the remarkable growth in JD advantage jobs over the years…[T]he definition of J.D. advantage…is so broad that it likely includes graduates returning to their prior jobs….” Even adding another month to the law school reporting period did little to help the overall full-time long-term JD-required employment rate for 2014 graduates ten months after graduation. It was 59 percent and the total number of such positions actually declined.

2. If you take Professor Organ’s data in your second link back a little farther in time, you’ll see the dramatic increase in the overall law school acceptance rate – from about 56 percent in 2004 to almost 80 percent today. In other words, to compensate for declining applications, schools increased acceptance rates – even as the demand for new graduates plummeted across the board in 2008-2009-2010. To accomplish that feat, most schools lowered admission standards, as Professor Organ’s charts demonstrate. Meanwhile, schools also raised tuition. That’s evidence of a multi-dimensionally dysfunctional market, thanks to a student loan system that lacks law school accountability.

My question remains unanswered: Would you counsel your child – or good friend – to incur staggering debt to attend a marginal law school? Insofar as it bears on your answer, feel free to consider what you describe as that prospective student’s “options in other fields.”

Posted by: Steven J. Harper | Sep 11, 2015 11:05:36 AM

The possibilities for legal education reform are endless once an institution has unshackled itself from elitist traditions, copycat curricula and cultures, and the belief that law schools exist primarily to serve the needs of affluent clients, students who want to be rich, and faculty who want protection from markets and the demands of practice. This article describes the confluence of historical and recent forces that make this a good time to reflect and act on the relationship between legal education and the availability of legal services to the ordinary public. We have an opportunity to reassess the assumptions and costs associated with years of copying an elitist model of legal education – a model that has neglected to train lawyers and other legal services providers to meet society’s substantial unmet legal needs. The article sketches out what a truly innovative, affordable, and public interest-minded law school might look like. It argues for a new definition of education excellence based on the ability of law schools to serve the interests of both students and the underserved public. See, Beyond Elitism: Legal Education for the Public Good, 46 Univ. Toledo Law Review 311 (2015)

Posted by: George Critchlow | Sep 11, 2015 12:28:18 PM

Great points, George, and for a perfect example of everything that is wrong with law school, i.e., elitist traditions, copycat curricula and cultures, look to the most recent example: the genesis, justifications and current operation of the UC Irvine Law School, where the Dean is on record as presenting himself as almost a victim, bound to follow this model, lest his all important "top 20 ranking" be compromised. Speaks volumes.

Posted by: Anon | Sep 11, 2015 3:07:35 PM

As an accountant, I don't have a dog in this hunt. But, when over 1/3 of law school grads can't find a job, you have a problem.

Posted by: Dale Spradling | Sep 12, 2015 7:00:53 AM

Posted by: Milan Markovic: "Harper’s response does reveal two things, however: His disregard for employment opportunities outside of BigLaw and willingness to conduct a grand national experiment in student loan reform that will likely leave law students more indebted while transferring profits from the treasury to private lenders. "

Your response here pretty much concedes the game, since you don't have an honest reply to make.

With law school debt (before counting UG debt) running $150-$250K for many law schools, if a grad does get into Big Law to start, their chances of paying that off before they die plummet.

With current law school tuition, in general grads need to get in a couple of years at $140K to knock some of that debt down, and get ahead of accumulated interest.

Posted by: Barry | Sep 15, 2015 1:33:20 PM

Matthew Bruckner:

"Lawsuits against law schools in recent years alleging fraud haven't fared very well. For example, a class action against 15+ law schools alleging that the schools fraudulently overstated their post-graduation employment rates were all, I believe, dismissed. "

I've heard that the US government has put more people in prison for pointing out torture than for torture.

And we've seen a multi-trillion $$ wave of Wall St fraud with maybe *dozens* of people going to prison, none of them higher-ups.

So tell me again that dismissal of lawsuits means that there was no underlying fraud?

Posted by: Barry | Sep 15, 2015 1:47:39 PM