Paul L. Caron
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Saturday, May 17, 2014

Justice Scalia Rejects 2-Year Law School, Skills Training; Calls for Cutting Tuition and Faculty Salaries, Increasing Faculty Teaching Loads

ScaliaAntonin Scalia, Commencement Address at William & Mary Law School, Reflections on the Future of the Legal Academy (May 11, 2014):

What I want to discuss with you briefly—and I promise to be brief—is whether (to be blunt about it) you have essentially wasted one of your three years here, and could have done the job in two. It is a current proposal for reform that law students should be permitted to sit for the bar exam and otherwise be eligible to practice law after only two years of study. ...

I vigorously dissent. It seems to me that the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession—-the profession of law. One can practice various aspects of law without knowing much about the whole field. I expect that someone could be taught to be an expert real-estate conveyancer in six weeks, or a tax advisor in six months. And maybe we should train such people—but we should not call them lawyers. Just as someone might become expert in hand surgery without knowing much about the rest of the human body, so also one can become expert in various segments of the law without knowing much about the rest. We should call the former a hand surgeon rather than a doctor; and the latter a real-estate conveyancer, or H&R Block—but not a lawyer. ...

It is something of an open secret now that the second and third years of school offer a student the chance to study whatever strikes his or her fancy—so long as there is a professor who has the same fancy. ... This elimination of a core curriculum, and the accompanying proliferation of narrow (not to say silly) elective courses has not come without its costs. ... And the problem is not just that students are not required to take such fundamental courses. Even those who wish to take them as electives are often frustrated because the courses are not offered frequently enough. ...

Some of the belief that the third year of law school can be eliminated rests upon the notion that what it provides can easily be provided elsewhere—in the words of the ABA’s panel, by “a year of carefully-structured skills-based experience, inside a law school or elsewhere.” ... [I]t is not “skills-based experience” that makes a person learned in the law. Legal learning is what only law schools can effectively convey. You graduates will never again have the opportunity to study systematically and comprehensively entire areas of the law—Intellectual Property, Commercial Law, Environmental Law, etc. ...

And what is the use of having a bar learned in the law? What is wrong with a conglomeration of “skills-based” experts? There are some pragmatic reasons. For one thing, the skills overlap, and even specialized practice in one field requires basic knowledge of another. One cannot write a contract or settle a case in utter ignorance of antitrust law—or, for that matter, the law of evidence; or write a will without knowledge of tax law and trust law; or litigate a case without knowledge of the substantive fields that are involved. Secondly, the lawyer who is familiar with many fields can apply the ancient learning or the new developments in one field to another—the constant interplay between tort and contract law is an example. In this way the law becomes a more cohesive whole, instead of a series of separate fiefdoms. But forget all that. Most of all, it is good to be learned in the law because that is what makes you members of a profession rather than a trade. It is a goal worthy to be. achieved—as you have achieved it—for itself. To say you are a lawyer is to say you are learned in the law. And, to return to the point, you can’t do that in two years. ...

Now for a less palatable part of my talk. It is no mystery what has prompted the current calls for a two-year law degree. It is, quite simply, the constantly increasing cost of a legal education. ... William and Mary, even for out-of-state students, is a great bargain, but even so is not cheap. If I may advert to my own experience at Harvard, once again: In the year I graduated, tuition at Harvard was $1,000. To describe developments since then, in the words of a recent article:

Over the past sixty years, tuition at Harvard Law School has increased ten-fold in constant, inflation-adjusted dollars. In the early 1950s, a year’s tuition at the school cost approximately $5,100 in 2011 dollars. Over the next two decades this figure more than doubled, so that by 1971 tuition was $11,664 in 2011 dollars. Tuition grew at a (relatively) modest pace over the course of the 1970s, so that by 1981 it was $14,476 in 2011 dollars. Then it climbed rapidly again, rising to $25,698 in 1991, $34,484 in 2001, and nearly $50,000 in 2011, again all in constant dollars. Harvard’s current tuition, by the way, is $53,308.

This is obviously not sustainable, given that over the last 25 years there has been a sharp contraction of the legal-services sector, compared with the rest of the American economy. Which means that a legal education has become less rather than more valuable—if you value a legal education in money, which I obviously do not, and urge you not to do. So things have to change. One solution, the worst in my view, is to shorten law school to two years. That will produce (or ought to produce, if reason prevails) a one-third reduction of faculty size.

But if law school is to remain three years, costs have to be cut; the system is not sustainable in its present form. The graduation into a shrunken legal sector of students with hundreds of thousands of dollars of student debt, nondischargeable in bankruptcy, cannot continue. Perhaps—just perhaps—the more prestigious law schools (and I include William and Mary among them) can continue the way they are, though that is not certain. But the vast majority of law schools will have to lower tuition. That probably means smaller law-school faculties—though not necessarily one-third smaller. That would be no huge disaster. Harvard Law School, in the year I graduated, had a faculty of 56 professors, 9 teaching fellows, and 4 lecturers; it now has a faculty of 119 professors, 53 visiting professors, and 115 lecturers in law. A total of 69 then and 287 now. And cutting back on law-school tuition surely means higher teaching loads. That also would not be the end of the world. When I got out of law school, the average teaching load was almost 8 hours per week. Currently it is about half that. And last but not least, professorial salaries may have to be reduced, or at least stop rising. Again, not the end of the world. To use Harvard again as an example: Faculty salaries have much more than doubled in real terms since 1969. Chief Justice John Roberts, “in his [unsuccessful] 2008 entreaty to Congress to raise the pay of federal judges,” noted that federal district judges are paid half as much as senior professors at top schools.

But to return to my main point: Since the modern legal academy appears not to believe that there is a solid and significant core of courses that entitle someone to be admitted to the profession of law, it is small wonder that there are calls for shortening law school to two years. If and when that happens, the shrunken faculties will have only themselves to blame. But for the moment, for you graduating students who have had what I consider not the luxury but the necessity of soaking in the law for three full years, and for the parents who have paid for that experience, welcome to the ranks of—not tradesmen, but men and women learned in the law.

(Justice Scalia's address begins at 56:00.  Click on YouTube button on bottom right to view video directly on YouTube to avoid interruption caused by blog's refresh rate.)

https://taxprof.typepad.com/taxprof_blog/2014/05/justice-scalia-.html

Legal Education | Permalink

Comments

There's been growth in lawyer incomes at the median as well as at the top. Census data is top-coded, so the very top of the distribution—i.e., big law partners, general counsel—don't even get picked up. Census is understating the growth in average incomes.

Averages matter because total lawyer income is the number of lawyers multiplied by income per lawyer. Simple math. This is the size of the market for the services of lawyers.

Averages also matter because law students don’t know where in the distribution they will end up, so a higher average increases expected value.

There’s no evidence of a bimodal distribution of lawyer earnings other than NALP full time starting salaries. A bimodal distribution doesn’t show up in After the JD or in any of the Census Studies.

NALP data are distorted because:
(1) Starting salaries are much more closely bunched together than subsequent earnings
(2) Including part time workers smooths the distribution
(3) Including bonuses, which are more variable than salary, smooths the distribution
(4) Many lawyers start out as law clerks or at big firms, and then move to midsized law firms. So the distribution of later earnings is smoother than initial earnings

There’s an income spread among lawyers, to be sure, but there’s an income spread among non-lawyers as well. It would be shocking if we didn’t see inequality in incomes among lawyers when we see it everywhere else.

But S&M shows that the earnings at the 25th percentile are still high enough to more than cover the cost of the law degree.

As for minorities and women, the point isn’t that you don’t care about their earnings trajectories.

The point is that back in the 1960s, almost all lawyers were white men, and in every profession and every time period, women and minorities have lower average earnings than white men.

To see what is happening over time, you should look at race / sex groups separately, because the relative proportions are changing.

All of the women, minorities, and white men in the legal profession could be better off over time, but if the proportion of women and minorities increases fast enough, it will look like everyone is worse off if you just look at aggregates.

Posted by: Anon | May 21, 2014 9:04:05 AM

So many Anons, so little time.

@2:51:22 PM

“But that doesn't mean that the dollar increase in earnings or earnings have been flat”

Have they kept up with law school tuition? We all know the answer to that: no. So law school becomes a worse financial deal with each passing year. And flat/stagnant starting salaries can have career-long effects; see the peer-reviewed studies by actual economists on the consequences of graduating from college into a recession by Lisa Kahn of Yale and Philip Oreopoulos of the University of Toronto (note that their studies target the much less severe recessions of the 1980s and 1990s).

“So clearly there are plenty of people who can afford legal services”

Presented without comment in this year six of our nonrecovery.

@2:55:49

You are conflating attorneys with law school graduates again. There are not 1.197 million practicing attorneys in the United States. According to BLS, there were 759,800 attorney jobs in 2012 (including self-employed attorneys) http://www.bls.gov/ooh/legal/lawyers.htm and just 592,670 attorney jobs (excluding self-employed attorneys) in 2013, http://www.bls.gov/current/oes231011.htm#(1) So to nitpick, your self-calculated stat of “Lawyers and judges as a percent of the total employed labor force (employed)” should not be 0.83%, but 759,800 / 144,000,000 = 0.52%. Sure, some of those spare law school graduates are corporate executives and law professors. And some are just like me – utterly locked out of the job market.

@3:10

“The question is simply how many lawyers are employed and how much are they making. There's been growth in both the number of lawyers and in real earnings of lawyers, which suggests robust demand for legal services and the labor of those educated in law school.”

Growth in the number of attorneys is expected; law schools haven’t shut down (yet), BA/BS holders continue to flock to grad school in unprecedented numbers, and many Boomer attorneys have been rickrolled by 2008-present and cannot afford to retire. It does not logically follow that their salaries 1) are increasing and 2) are outpacing what it costs to get through law school. I think the second point has been discussed ad nauseum here and elsewhere: the real cost of attending law school has far outpaced real wages for attorneys since at least the late 1990’s.

Anyways, Matt Leichter recently laid out data from the ABA, NALP, and Census Bureau so that we can see how law school grad salaries for various outcomes compare to college grad salaries. http://lawschooltuitionbubble.wordpress.com/2014/05/19/law-school-salary-outcomes-in-one-uninfographic/ . To quote Matt, “law graduates in full-time, non-professional positions make less than the median full-time college graduate in the same age range. Even the 75th percentile full-time non-professional salary (not shown) is less than the median full-time college grad…. Recent graduate full-time starting salaries have fallen to their mid-1990s level…. Due to the aforementioned bimodality of the NALP data, the 25th percentile full-time employed law graduate reporting a salary (not shown) was only $5,200 higher than the median full-time college grad in 2007. By 2012, the gap had fallen to $668.”

“They can afford public defenders because the government provides public defenders for them.”

Here in Boston, the Globe just two weeks ago ran a piece on a study by the Massachusetts Bar Association that concluded that Boston public defenders 1) are outearned by courthouse janitors and 2) have entered the ranks of the working poor. Kinda runs contrary to your “growth… in real earnings of lawyers,” doesn’t it? And of course, 1) PSLF is already in the crosshairs for repeal and 2) it doesn’t help the pre-Class of 2009 or so public defenders who will have private loans instead of GradPLUS loans. Did I mention that all six Boston-area law schools sticker well north of $200,000 when including interest on unsubsidized grad school loans? And wasn’t there that call a month or two ago in Marin County, California – not an inexpensive area – for unpaid ADAs? That’s right, there was. And weren’t there north of 100 unpaid, full-time, licensed-attorneys working in the Justice Department? Etc, etc.


@4:13.

Irrelevant on many counts. One, lawyers =! law school graduates for Census Bureau purposes. Two, white males are a minority of current law school enrollees. Three, salary data includes all attorneys. The earnings outcomes of law school grads circa 1964 is of no value or relevance to the 2014 grad with $250,000 in outstanding student loans and a benefit-free $30k/year small firm job in Boston or San Fran, for which s/he must bill 2100 hours/year. As S&M have shown, real starting wages for attorneys have gone nowhere since the mid-1990’s, even as the real cost of law school has increased hundreds of percent.


Posted by: Unemployed Northeastern | May 20, 2014 9:39:48 AM

All bickering aside, I'm not really sure what to make of the average income statistic that Anon 4:13 posted. I'm not sure (1) what citing the average was intended to prove, (2) how, given the bimodal salary distribution in the profession, it possibly could prove, and (3) assuming it could prove something, why we would want to control for changes in the composition of the legal profession (aren't we just as concerned about outcomes of female and minority attorneys?) when compiling the average.

Posted by: Former Editor | May 20, 2014 3:17:52 AM

Well, Karl, let's see you put together anything substantive at all.

Posted by: Rob T. | May 19, 2014 7:36:01 AM

Well, Anon. Let's see you put together a cogent & comprehensive counter argument instead of just trotting out random isolated statistics.

Posted by: Karl | May 18, 2014 9:23:26 PM

"They have a chart showing starting salaries being flat, and a chart showing the percentage increase in earnings being flat."

Percentage increase in earnings compared to a bachelor's degree, that is. Not percentage increase in earnings from year to year.

Posted by: Anon | May 18, 2014 2:55:29 PM

Who gets to teach a measly 4 hours a week?? Last fall I had 9, and this spring I had 7 plus 9 hours of VITA each weekend for 12 weeks, plus ABA Tax Challenge team practice... and lots of committee work on top of that. Four hours would be a retirement job!

Posted by: Lori | May 18, 2014 2:26:09 PM

Average personal income for white male lawyers (controls for changes in composition of legal profession) since 1968 from the U.S. Census Bureau's Current Population Survey, in Nominal dollars:

1968 17,186.99
1969 18,361.54
1970 21,204.95
1971 20,235.82
1972 20,363.08
1973 21,570.57
1974 22,137.38
1975 22,106.34
1976 24,892.79
1977 27,471.04
1978 27,571.77
1979 28,506.42
1980 32,089.51
1981 33,370.10
1982 38,647.43
1983 42,322.68
1984 43,825.15
1985 47,516.65
1986 51,079.19
1987 55,224.86
1988 57,632.39
1989 67,675.56
1990 64,160.15
1991 68,684.83
1992 68,582.33
1993 77,134.15
1994 77,775.00
1995 68,249.99
1996 93,650.61
1997 109,570.25
1998 124,642.92
1999 132,536.90
2000 112,214.79
2001 141,013.16
2002 137,638.82
2003 139,544.72
2004 158,152.49
2005 147,037.86
2006 159,063.87
2007 155,267.45
2008 156,799.29
2009 166,509.15
2010 169,140.11
2011 178,271.88
2012 178,474.03
2013 183,966.37

Posted by: Anon | May 18, 2014 1:13:03 PM

"Your stats about American population growth and the number of lawyers do not exist in a vacuum. How many Americans can afford legal services these days? How has technology affected the productivity of lawyers and the size of their client bases? "

The question is simply how many lawyers are employed and how much are they making. There's been growth in both the number of lawyers and in real earnings of lawyers, which suggests robust demand for legal services and the labor of those educated in law school.

Whether the poor can afford the services of expensive professionals has almost nothing to do with higher education and everything to do with social welfare policy.

The poor can afford healthcare because of medicaid, and medicaid alone.

They can afford public defenders because the government provides public defenders for them.

Until such time as the government decides that legal services--other than in criminal cases--are a fundamental right worthy of public financial support, the poor will have limited ability to pay for legal services, just as they have limited ability to pay for everything else.

Posted by: Anon | May 18, 2014 12:10:40 PM

Number of lawyers and judges according to the United States Census Bureau:

1960 -- 221,000
1980 -- 563,000
2000 -- 997,000
2012 -- 1,197,000

Total size of the labor force (employed):

1960 -- 66,000,000
1980 -- 99,000,000
2000 -- 131,000,000
2012 -- 144,000,000

Lawyers and judges as a percent of the total employed labor force (employed):

1960 -- 0.33%
1980 -- 0.57%
2000 -- 0.76%
2012 -- 0.83%

Posted by: Anon | May 18, 2014 11:55:49 AM

"Even the sacrosanct S&M study shows, in their very first chart, that real wages for attorneys have been flat at the 10th, 25th, median, 75th, and 90th percentiles since the mid 1990's."

Which chart is that? I don't see that anywhere in their study.

They have a chart showing starting salaries being flat, and a chart showing the percentage increase in earnings being flat.

But that doesn't mean that the dollar increase in earnings or earnings have been flat.

And in fact, the Census data shows real earnings for lawyers growing over the decades, and the number of lawyers growing both in absolute terms and as a share of the work force.

So clearly there are plenty of people who can afford legal services.

Posted by: Anon | May 18, 2014 11:51:22 AM

A few thoughts:

@Bob,

False equivalency. USSC salaries have been relatively stagnant, and constitute an infinitesimal portion of taxpayer dollars. Prawf salaries have doubled in real terms over the last thirty years,* and constitute a large part of why law schools now routinely cost $200,000 to $250,000 (more when you include interest on unsubsidized loans).

@Anon @ 5:03,

Even the sacrosanct S&M study shows, in their very first chart, that real wages for attorneys have been flat at the 10th, 25th, median, 75th, and 90th percentiles since the mid 1990's. And please note that "lawyers" =! "law school graduates." In fact, it is more like y = 1/2x these days, and has been for years.


@Anon @ 5:20,

Your stats about American population growth and the number of lawyers do not exist in a vacuum. How many Americans can afford legal services these days? How has technology affected the productivity of lawyers and the size of their client bases? And I think Yale Law School, which is less than 1/3 the size of HLS, would like to have a word with you about Harvard being the top institution...

*Paul Campos, The Crisis of the American Law School, 46 U. MICH. J.L. REFORM
177, 188 (2012).

Posted by: Unemployed Northeastern | May 18, 2014 8:57:01 AM

"Harvard Law School, in the year I graduated, had a faculty of 56 professors, 9 teaching fellows, and 4 lecturers; it now has a faculty of 119 professors, 53 visiting professors, and 115 lecturers in law. A total of 69 then and 287 now."

In 1960/1961 the U.S. population was only 180 million (as opposed to 315 million today), and total law school enrollment was less than one third of what it is today.

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

The number of lawyers has increased dramatically since the 1970s.
http://www.law.harvard.edu/programs/plp/pages/statistics.php#nusl

Harvard has grown faster than the rest of the legal academy, as would be expected from the top institution in any industry.

Faculty student ratios have overall only gone down by about a third, consistent with greater specialization and depth of offerings.

Posted by: Anon | May 18, 2014 2:20:22 AM

"Over the last 25 years there has been a sharp contraction of the legal-services sector, compared with the rest of the American economy."

According to all of the data compiled by the United States Census Bureau, over the past 25 years, there has been considerable growth in the number of lawyers and compensation per lawyer--faster than the rest of the labor market,

Justice Scalia's opinion is based on errors about the basic facts.

Posted by: Anon | May 18, 2014 2:03:53 AM

In 1971, The Supreme Court heard arguments in 177 cases. In 2012, it heard 77 cases. The law professors should agree to work twice as hard as soon as the Justices make the same agreement.

Posted by: Bob Kamman | May 17, 2014 10:00:46 PM

Well, for the second time in my life I find myself on the same side of an issue as Mr. Justice S.

Posted by: Publius Novus | May 17, 2014 8:39:34 PM

Of course.

If law professors are poor and overworked, and smart people start avoiding the profession, there will be no one left to point out the problems and pandering to political constituencies in certain unnamed Supreme Court justices opinions.

Posted by: Anon | May 17, 2014 11:45:03 AM

What a fantastic Friday surprise! And who would have thought that Justices Scalia and Thomas,* of all people, would be the most enlightened USSC Justices when it comes to the current plight of law school students?

One might also note that the unsustainable growth of law school tuition is perhaps the only subject where Antonin Scalia, President Obama, Richard Posner, and Matt Taibbi are all in agreement...

*See Justice Thomas's comments here: http://abovethelaw.com/2010/02/clarence-thomas-clarifies-his-clerks-arent-ttt/

"I don’t believe they [Ivy League law schools] have a monopoly on intelligence. I also don’t believe they have a monopoly on the best kids to clerk… I don’t even think that all of us on the Court should be from the Ivy leagues and from just one part of the country. I have a preference actually for non-Ivy league law clerks, simply because I think clerks should come from a wide range of backgrounds. And I don’t have that pedigree. I’m not a part of this new or faux nobility… I think there are smart kids a lot of places."

Posted by: Unemployed Northeastern | May 17, 2014 9:35:35 AM