Paul L. Caron
Dean




Friday, November 7, 2014

80 Law Schools Are at Risk of Closure, Mostly in California, Florida, Indiana, Michigan, Ohio, and Pennsylvania

ClosedDavid Barnhizer (Cleveland State), Looking at the Law School ‘Crisis’ from the Perspective of the University:

Even with the very large excess capacity represented by the number of law schools and graduates versus the available jobs it is unlikely that the number of closings of ABA accredited schools will exceed the predictions offered below by Matt Leichter, Jerry Organ [10%] and Brian Leiter [up to 10]. ... But as many as 20 law schools could be closed in the near future and many others will be forced to adjust and adapt. ... My best guess would be that 80 law schools are at some degree of risk. The risks will in many cases be managed by shrinkage, layoffs, mergers and consolidations, distance learning and computer-based instruction strategies, and by adoption of additional kinds of educational missions. Accessing new applicant pools that benefit from some modified forms of education in law while not seeking the right to practice in the traditional sense will also produce new versions of law schools or new components within schools. The changes will be exciting but for many they will be painful.

Just as the legal employment market is over-saturated due to the surplus numbers of graduates law schools pumped into the system over the past twenty years, the productive capacity of the law school “industry” is entirely out of balance with all foreseeable need for law graduates. Given the direction the traditional employment markets for lawyers are heading no more than 80-100 law schools could easily serve America’s need for new law graduates. With various projections of law employment (as we know it) put at 23,000 available positions annually (and quite possibly substantially lower) compared to the 45,000 that was the norm for a time, there is no need for 203 (ABA) fully accredited law schools, for another five provisionally accredited schools, or for the graduates of the numerous California non-ABA law schools approved by that state’s Bar, and another ten or so new or entirely unaccredited law schools. California by itself has an amazing number of law schools, 60 in total, with only five of the law schools public and fifty-five private, some with real universities and others that are either free standing or even existing primarily in electronic hyperspace. Taking all types of law schools together California is home to about 25 percent of the total number of institutions offering graduate education in law. ...

The truth is that law faculties and law deans have very limited control over what is going to occur at law schools. The ongoing “tinkering” with largely cosmetic curricular change that is claimed to significantly reform legal education is more public relations than substance. Minor curriculum adaptations are not going to “win the day” because the problems law schools and universities face go far deeper than curriculum. After decades of denying, ignoring and marginalizing educational (and research) orientations directed toward the needs of graduates entering the legal profession the idea that a majority of traditional law faculty members are suddenly committed to educating graduates to be more prepared to enter the practice of law is a combination of public relations announcements that re-label existing programs and teaching approaches that many clinical, professional responsibility and skills teachers have been doing for decades while being looked down on as intellectual inferiors by their doctrinal counterparts. ...

The fact that California is home to sixty law schools suggests an impending “domino-like” collapse of a number of those institutions, particularly given the fact that there are already problems with a shortage of “law jobs” in that state. A similar observation seems applicable to Florida. Ohio has nine law schools, Michigan five, Indiana another five and Pennsylvania eight. Not counting the “national” and “flagship” law schools in those states (Ohio State, Michigan, Indiana Bloomington, Penn State and the University of Pennsylvania) that leaves 22 law schools to compete for a limited pool of applicants in a region of static, aging or declining population with compromised economic systems, and high public expenditures on social priorities. It is difficult to see why Ohio needs nine law schools (not even counting competition with border-state law school graduates from schools such as Wayne State, Pittsburgh and Northern Kentucky. It will be unsurprising if in five years several of the nine Ohio law schools have either merged or closed. It makes sense to me that Cleveland State, Case Western Reserve (even though private) and Akron ought to begin serious talks about how they can create a regional law school. ...

[N]on-national law schools located in areas where the pool from which they attract students (and place their graduates) must shrink, or merge with another law school in the same competitive territory, or be closed at the hands of universities increasingly unwilling to subsidize what they had always considered a positive revenue generator. A number of law schools are likely to be shocked when their universities simply “pull the plug” on their operations. As suggested above, eliminating an entire department is the most viable option both for budgetary reasons and to avoid protracted and costly disputes with law faculties. Cutting out an entire department can eliminate tenure rights and other employment conditions because the unit in which they had tenure and rights no longer exists and faculty in other academic departments possess priority rights and qualifications within those disciplines.

A consideration that makes the law school closure strategy more likely is that given the increased diversity found in law faculties any attempted discharge of a faculty member is almost certainly going to involve a university having to defend against a claim of discrimination whether it is said to involve age, gender, race or ethnicity, religion, political beliefs or a “conspiracy” by the administration to get rid of a trouble-making employee. It is my experience that all law professors have a firm belief in their own competence relative to other faculty members. Law faculty egos may be hypersensitive but they are not under-developed. If a law school and its parent university seeks to use termination of even a limited number of faculty in order to balance expenses and revenues it will face years of accusation and extremely expensive litigation. At some point and in some situations universities will decide it simply isn’t worth going through the turmoil and “pull the plug”. Attrition through retirement and death is one option but failure to replace faculty who leave slots also has serious morale, intellectual vibrancy, teaching coverage and financial consequences. The positive options for preserving the traditional business model and operational scale for numerous law schools are few and far between.

https://taxprof.typepad.com/taxprof_blog/2014/11/80-law-schools-are-at-risk-of-closure-.html

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Comments

Close Cooley altogether - that will take some burden of both Michigan and Florida!

Posted by: Transactional Prof | Nov 8, 2014 10:37:37 AM

I've recently thought law schools and chiropractic schools followed a similar pattern of expansion.Being a lawyer (or 'doctor') was regarded as a good thing by Grandma

Posted by: corwin | Nov 8, 2014 7:56:08 AM

Thank you for your response.

Posted by: Paul Horwitz | Nov 8, 2014 7:05:26 AM

DW has it backwards. The best thing for the market place is to stop the monopoly of ABA accreditation for law schools. Many states only allow graduates of those schools to even take the bar. Most of the non-accredited schools will fail first, but it would have a HUGE market impact on the accredited schools and speed up the process of reform.

Posted by: RRP | Nov 8, 2014 5:55:06 AM

There is nothing I would like better than to see all the non-ABA schools close. This is in part based on 28 years of practicing law in California and dealing with these graduates on a daily basis. The hostility and lack of skill and knowledge they often demonstrate is quite discouraging.

Posted by: DW | Nov 7, 2014 8:34:54 PM

The more the merrier and the sooner the better. If 80 are at risk we need to close down more than 100.

Posted by: Walter Sobchak | Nov 7, 2014 8:24:01 PM

Northeastern, I intended to include the NE region in the at-risk groups. Thanks for pointing that out.

Publius: Aggghhhh yourself. Legal education is a hybrid system that has been called the invention of the "academic-professional" graduate school. I agree with that point of view and in fact have taught courses that contain heavy doses of skills, strategic action and theory. In a system run by lawyers and judges responsible for maintaining the values and integrity of the Western version of the Rule of Law it strikes me as essential that law schools instill those deep values. I actually think they too often fall short in that dimension. So I want the schools to be consciously aware of their responsibility to nurture and instill the deep values of the system as well as provide the essential professional understandings and skills of the lawyer. By the way, that does not automatically mean that the best way to develop professional skills is to concentrate on technical trivialities that can be learned from CLE programs and mentoring by experienced lawyers and judges on entering the practice. Look at my blog post on strategic awareness on LawNext.com.

Paul, I can't give you the timing. Probably the main intent of my post was to more forcefully introduce the idea of the universities and their concerns and actions into the "closure" and "shrinkage" equations. This is a perspective that I think has received too little attention and it is going to be probably the most powerful force in what occurs. It is also the determining factor that is largely outside the control of law faculty. So in order to have a specific grip on the future--near and mid-term--"we" would need to be able to understand the financial conditions of the parent universities in which law schools are located. Obviously this doesn't include the stand alone schools that really have no backup when things start falling apart.

The financial strength of a university, where it is located in terms of the applicant pools for its own students, and its programmatic priorities are critical determinants that will dictate what occurs. Of course one problem is that desperate law schools and universities will start digging deeper into the lower end of quality and admit students who are less qualified academically. This will buffer the situation for the schools and exacerbate the dilemma for the profession and law graduates. The LSAT is not an IQ test but I really would hesitate to bring in law students with low LSATs because I do think it says something about intellectual acuity. I know there are numerous exceptions but it represents a situation about which we should be concerned.

Plus, I don't pretend that the thoughts are original. I have been writing on aspects of the topic for several decade. See, e.g., "The University Ideal and the American Law School" [Rutgers]; "Of Rat Time and Terminators" [J. Legal Education]; "The Clinical Method" [JLE]; "Freedom to do What?"; "Redesigning the American Law School" [Michigan State; "The Purposes and Methods of Legal Education" [J. Legal Profession] etc. The problem is that in my experience law faculties are not real communities of shared interest (other than preservation of self) and that the "pieces" represented by faculty are largely disconnected and atomistic with the common interest being turf protection so they can keep doing what they are doing. It is not a "team" but a confederation.

Posted by: David | Nov 7, 2014 9:53:36 AM

David, thanks for the article linked to here. You seem pretty active in reading and responding to comments here, so I wonder if I could ask some questions about this.

1) Do you think the headline—“80 Law Schools Are at Risk of Closure”—accurately conveys the sense of your article? Of course I understand where in your article this number comes from. But, having read the whole article (albeit rather quickly), I thought a fairer reading of what you’re saying is that up to 20 law schools are truly at risk of closure, while another 60 are technically at risk but more likely to adjust and adapt.

2) Is there any original qualitative or quantitative basis for your predictions? Not that there has to be! I’m seeking clarification, not criticizing. It seems to me that your predictions are based on looking at and aggregating the work of three other writers and then adding your “best guess” based on a mix of tangible and intangible factors. Is that right?

3) You write that “as many as 20 law schools could be closed in the near future.” What do you mean here by “near future?” I assume the date has something to do with what you read in Leichter, Organ, and Leiter. I didn’t see a date, or actually a prediction of closure or the numbers thereof in what you quote from Leichter, but I have not read his other work. The dates offered in Organ and Leiter are 2019 and 2022, respectively. So, by “near future,” do you mean somewhere between 2019 and 2022? I agree that could qualify as the “near future.” But it would help, obviously, to have a date certain in mind when verifying or falsifying your predictions.

4) What is the confidence level of your predictions, and with respect to what prediction precisely? It’s obviously not your doing or your responsibility, but my impression is that sometimes a reader will come away from a piece like this confidently describing it as predicting that up to 20 law schools *will close* or are highly likely to close in the near future (with or without a particular date in mind). What percentage of likelihood would you assign to the prediction that some, all, or even one law school will actually close in the near future? How confident are you that, say, five or ten law schools will in fact close in the near future? Or would you describe yourself only as predicting that up to 20 law schools will face the serious *risk* of closure by 2019-22? I just want to be sure I’m reading you correctly and taking your intended meaning.

5) You write to suggest “an impending ‘domino-like’ collapse of a number of [ ] institutions” in California, and add that “a similar observation seems applicable to Florida.” You add that “[i]t will be unsurprising if in five years several of the nine Ohio law schools have either merged or closed.” This passage seems to indicate a prediction of actual closure of some of those schools, not just a prediction that those schools will be at serious risk. Is that right? What percentage of likelihood do you think there is that there will be one or more actual closures in each state, how many schools do you predict are likely to close, and with what percentage of confidence? You also mention Michigan, Indiana, and Pennsylvania. Are you confident there will be closures in those states, or are you just pointing out similar situations there but without a similar confidence level?

6) It’s a lesser point, but I was curious what you meant when you referred to or implied the word “we” a few times in the first part of your piece. You write that “we [in the law schools] neither understand nor appreciate the fact that the university of which we are a part has its own interests, needs and agenda.” Similarly, you suggest a “we” in your reference to a “subjective blindness that pervades law schools,” and write that “We too easily overlook the fact that laws schools have been run at a profit and that in many situations law schools have funneled a significant amount of earnings into their parent universities.” I have no particular objection to these observations, but I suppose I was surprised because all of these subjects have been under discussion for at least, say, five years in fairly public forums on and off the Internet. So I take it that you’re not suggesting that no one was or is aware of these issues or that the observations are novel. When you say “we,” therefore, do you mean some, most, or all law professors? Is it that you think they’re unaware of these considerations, that they deny them in general or with respect to their own institutions, that they don’t take them seriously enough, or that they are aware of them but draw the wrong conclusions from them?

7) I appreciate your candor in writing, “At this point everyone is speculating about what is going to happen to US law schools and no one actually knows.” I suppose much depends on how you answer the questions above about the confidence level of your predictions and what precisely you are predicting. But I wonder whether you would say that your own piece falls within that category or whether you think it is an exception.

Thank you!

Posted by: Paul Horwitz | Nov 7, 2014 7:52:48 AM

Agggghhh! Prof. Barnhizer, could we at least get our nomenclature right? Like many academicians, you refer to "graduate education in law." Law education is not "graduate"; it is PROFESSIONAL. There is a big difference and a good chunk of legal education's current deficiencies are due to the legal academy's failure to distinguish between the two.

Posted by: Publius Novus | Nov 7, 2014 7:36:28 AM

Bravo. I would add that fair, small Massachusetts also has nine law schools - of which only one places better than 3 in 4 graduates into FT, LT, license-required jobs at any salary (Harvard) and only three place better than 1 in 2 (Harvard, BC, BU). Six of MA's nine law schools clear less than 50% placement for their grads, and aside from unaccredited Mass School of Law and public UMass, they cost between $200,000 and $250,000 for those sterling outcomes.

Posted by: Unemployed Northeastern | Nov 7, 2014 6:55:35 AM