The New Republic

Law schools are just a part (though a big part) of the higher education industry; an industry that I don't believe is sustainable. The industry could not exist in the absence of large numbers of students, namely the bottom half of academic achievers, for without them the business model would not work. This is particularly evident in the case of large public universities, with their numerous academic programs, including law schools, and sports programs, in particular football and basketball, the latter dependent on a large alumni (many from the bottom half of academic achievement) for support. It's that bottom half of academic achievers that I believe will soon be lost. Why? Because it no longer pays to spend four or five years in "higher education". In the past, those in the lower half could return home to nice jobs in the local bank, in the family owned hardware business, selling insurance or real estate, or in other occupations that require few academic skills. But those jobs are rapidly disappearing. And as those jobs dissappear, so will the lower half of academic achievers from the higher education industry, and as those students disappear, so will many academic programs and sports programs dependent on their support. As for law schools, they occupy a special place in the higher education industry, for they produce many of the future state legislators on whom funding for the higher education industry depends, so continued funding of the law schools has significance far beyond the bleak job prospects for the law school graduates.

- rayward

April 25, 2011 at 8:29am

In 17 years of owning my small business, I have used legal services three times. The first was when I bought the assets of a firm as I opened for business. The key work was the sale agreement and my attorney did a great job. He also handled the incorporation paperwork, but today I see that as boilerplate. Later, he handled the sale of a subsidiary and saved me a great deal of money and hassle by writing the contract adeptly. This attorney was a friend and highly experienced in business transactions. The third instance was a copyright issue. This young lawyer overbilled me and basically told me I was on the wrong side of the issue. I fired him and simply negotiated with the other party, reaching a friendly deal that operated successfully for years. How the major law firms have managed to find 2,000 hours a year of valuable work for new lawyers to bill out has always mystified me. We may find in coming years that those legions of young men and women who do research and fill out templates are the equivalent of elevator operators.

- emccded

April 25, 2011 at 10:43am

04/25/2011 - 10:43am EDT | emccded: Oh dear! You have have opened a rich vein for discussion sort of flowing from Campos's piece: people's experiences with lawyers charging too much driven by the pressures on them to produce to meet the over/under: overheads and bottom lines. ...Law schools are just a part (though a big part) of the higher education industry; an industry that I don't believe is sustainable. The industry could not exist in the absence of large numbers of students, namely the bottom half of academic achievers ... Law schools and "the bottom half of academic achievers": I don't know what the hell you're talking about here. Nor do I think do you. But what else is new? I suspect you never applied to law school. Or if you did, I have my doubts about your getting accepted.

- basman

April 25, 2011 at 11:17am

basman, I know that lawyers read stuff fast, avoiding details for the general picture, so I hope you won't be offended if I (while agreeing with the general tenor of your response) merely point out that (1) rayward and not emccded wrote the comments you appear to be irritated by, and (2) he didn't say that the bottom half of academic achievers enters law schools but rather that that segment is the biggest source of support for football and basketball programs.

- ironyroad

April 25, 2011 at 2:08pm

irony: I meant to express my interest in emcded's post and to make a separate a not-so-interested-in irritated note about rayward's, but I didn't sharply enough distinguish between the two. So I'm happy to make that difference clear. I read Rayward's post fairly quickly admittedly, but I just read it again. You're right I misread him. So I stand corrected and welcome that clarification too. No offense taken, none at all. That said, I agree with your agreement with the general tenor of my response.

- basman

April 25, 2011 at 2:43pm

Here is a plan. Every state gets to keep its flagship law school. California can keep Boalt, Hastings, and UCLA. The top 30 independent schools -- that's about Fordham and up -- get to stay open. Every other law school must stop enrolling students and close once the 1L class entering this fall graduates. The remaining functions from the closed schools would be allowed to operate within another unit of the school and would offer a variety of masters-level programs, e.g., business law, tax law, real estate law, that would be useful for people in other professions but would not come with the J.D. designation. This would ensure that the real legal needs of society are being met while preventing faculties at mediocre law schools from preying on the dreams of recent college graduates to fund their largely irrelevant research agendas.

- dezrow

April 25, 2011 at 3:07pm

Here's a different plan: Eliminate or minimize sharply law schools altogether as a necessary step to being an accredited lawyer and make passing the bar exams or whatever competency tests any jurisdiction lays down the sole condition of accreditation. Let applicants make their own ways to these tests whether by way of law schools, home schooling/self study, on line schools or whatever. What do law schools teach in the way of professional preparedness: ethics, black letter law competency in the usual areas, how to read cases and statutes, write and reason like a lawyer. Why should law schools have any monoply on that and who's to say other modes of acquiring such knowledge and such skills can't do as good a job or better? If a counter argument to this proposal is "What about other professions, say doctors?", my answer is I don't know about them but I know something about the legal profession.

- basman

April 25, 2011 at 3:29pm

When I was applying for law school there were essentially two models, the prevailing model of only a few accredited law schools in the state and the California model of law schools on every corner, some accredited and some not, the weeding out taking place when the "graduates" took the (relatively difficult) California Bar exam. Each had its defenders and detractors. My state had the prevailing model. It seemed to work well (easy for me to say). But the entire state university system was profoundly changed in the 1960s and 1970s, as many more state universities were added (there were but three when I was applying to college), each with its own mission and mission creep. It's that mission creep that lead to the creation of I don't know how many law schools there are now. As I have already commented, this is in part a political battle, as each university hopes to add its (mostly law school) graduates to the state legislature in order to advance its interests (i.e., funding). I will say that my state only partly adopted the California model: now it's true that most anybody can get accepted to some law school, but unlike the California model of my day, most of those who graduate can pass the Bar exam because the exam was not made any more difficult.

- rayward

April 25, 2011 at 3:55pm

I generally agree with Professor Campos's theory but I question his use of data for the class of 2010 as being truly representative, given the abysmal state of the market when these folks were starting their search. (Keep in mind that many law students are looking for jobs at least a year before they graduate, or at least are looking the fall prior, so the students in the class of 2010 were looking during 2009. Plus, there were tons of graduates from 2009 who'd never found jobs, so some firms were hiring those folks instead.) I don't know the statistics but my sense -- from reading legal industry news on hiring trends -- is that 2010 was far worse than average, and that 2011 graduates may have a much easier time. Also, although there is a glut of grads and we could easily lose the bottom tier schools, I think the real issue is a mismatch between the costs and the salaries. The tuition at all the schools is astronomical, requiring loads of debt, but only the students from the top tier schools get the big firm jobs that allow one to pay off that debt. If more schools were able to charge less, there'd be more grads who could afford to work as prosecutors, public defenders, smaller firms, etc. Additionally, if students graduated with actual skills (more like medical students), it would be easier to start a practice as a new grad. If the legal system required new grads to complete some sort of initial training before being licensed (something akin to a medical residency or the articling system in England), a newly-licensed attorney would be in a better position to start her own practice and be less tied to hiring needs (whims) of firms. (This is coming from a 1997 graduate of a top tier school, started out at a big firm that luckily paid enough for me to quickly pay off my debt.)

- shellski

April 25, 2011 at 8:05pm

basman, intriguing proposal. It wouldn't work for medicine, though. I have sat medical professional examinations in two countries, the USA and Australia, and I have yet to encounter a test that I would trust to certify competency in the full range of situations required. I suppose there's no absolute reason that you couldn't permit people to "test out" of the first two, preclinical years of med school, but after that medical education is all on-the-job training, essentially an apprenticeship, and it is hard to imagine an alternative, medically ethical pathway to acquiring the practical skills that such training instills.

- AaronW

April 26, 2011 at 6:48am

aaronw I take completely your point about the inapplicability of my mdoest proposal to medicine. But law school--save for mooting and courses and programs geared to practical experience, like a supervised stint in a law clinic or some such--doesn't do so much so uniquely that, in my view, alternatives to it can't accomplish. In Canada, in every province, somewhere along the way, a prospective lawyer must article--apprentice--for 6 months to a year. Plenty of full on experience there. When I mention my proposal to my lawyer friends, they look at me like I'm crazed. But when I think how much law school costs, how those expenses entrench class differences as they are so prohibitively expensive for so many and how law schools vying for academic respectability claim they are providing an education in a particular discipline as much as, or more than, they are professional training schools, I still await an argument that puts my proposal decisively in its place.

- basman

April 26, 2011 at 12:43pm

one ps: When you say ... suppose there's no absolute reason that you couldn't permit people to "test out" of the first two, preclinical years of med school... you're getting into the space my proposal occupies.

- basman

April 26, 2011 at 12:58pm

basman, you gotta be kidding. The ABA will NEVER go for something like that. Too many rice bowls that will break. Monopoly capitalism, like law schools, for example, never goes quietly. That said, no reason why it can't work, and produce that same plague that the law schools do now. Said as a proud member of the profession.

- butchie b

April 26, 2011 at 1:30pm

ButchieB I hear you loudly and clearly. I wonder though whether the pressure of onlinedness against the sheer ungodly expense of law schools will eventually wreak some backlash havoc. Don't know about the plague though. I guess you're kidding, but if not, why the plague? I'd guess as a necessary group--speaking a Canadian lawyer-- we're no worse and no better than other necessary groups, and the market keeps us in check pretty well. My experiences with U.S. lawyers have been good except a firm in Minnesota a long, long time ago charged us a ridiculous amount for some routine agency work and we refused to pay until we got its account down to a fair size.

- basman

April 26, 2011 at 5:21pm

Basman- I agree with you that three years of law school is not the only way that one could achieve and demonstrate competency to practice law. I could certainly envision an apprenticeship path or a combination of two years, or even one year of law school, with several years of subsequent apprenticeship before a person could be licensed to practice law. However, I cannot agree that a bar exam, at least as presently constituted, would be a fair test of competency to practice law. Bar exams or worthless as to that purpose. They are designed so that a student who has aced three years of law school cannot pass the exam without taking a commerical prep-test course. They are a scam.

- NR143296

April 26, 2011 at 5:52pm

DHurtado Our Canadian Bar Exams are not like that. They're a true test of a jurisdiction's black letter law in major areas. When I did them it was a 6 month program moving from one subject to the next, replete with big, weighty tomes and a stiff exam for each segment studied. After that I had to do a year's articling, and that was all after the traditional 3 years of law school. But their whys and wherefores as such are not really my point--which is alternatives to traditional (oppressive) law school strangle hold on certification. I think we're on the same broad wavelength. The possibilities for designing the appropriate lead up to finally vouching professional competence are wide open and really interesting in their own right.

- basman

April 27, 2011 at 12:46am

That's much better than what we have in the US, Basman. That said, it doesn't sound as though many people could successfully complete such an exam without some type of specialized formal education (i.e., law school). But I have always believed that the first year of US-style law school is sufficient to prepare one to be a legal apprentice. (Associates in large law firms are nothing more than absurdly well-paid apprentices.) On the other hand, I immensely enjoyed my second and third years of law school. In focusing on whether a law school prepares a person to practice law or ensures employment as a lawyer, we are overlooking the intrinsic value of a legal education, and the contibutions to legal thought and the administration of justice that are made in the cauldron of law school. Taking a seminar in critical legal theory or writing a law review article may not have done anything to make me a better lawyer, but those experiences were personally enriching and enabled me, I would like to think, to make some contribution to legal scholarship. Dhurtado

- NR143296

April 27, 2011 at 4:47pm

Dhurtado, Your law school experience was different than mine. First term semester, 300 of us sacredy cats wondered whether we’d flunk—and all of us were good students. After first semester exams, and seeing we knew we could pass, apart from some pockets of genuine interest—jurisprudence, administration of criminal justice, joint essay on equality before law in lieu of a course and civil liberties—each semester was for me at least an increasingly frustrating and irritating jumping over hurdles to write papers, sit exams, to get past graduation. (I wrote one paper that got published in a legal journal when I went back for an LLM. It was on Continuing Discovery under Ontario procedures. I never finished my LLM—I lost the motivation to write my thesis after I finished my course work.) But apart from these pleasant/unpleasant reminiscences I emphatically maintain my point that law school—for however some may have found/find it intellectually enriching--need not be the exclusive means whereby an aspirant can equip him/herself to take whatever battery of tests may be in order, together with articling/apprenticeship—in England called student pupilage— to ensure presumptive legal competency. Disestablishing JDs as a necessary step towards licensing lawyers, as I before noted, amongst other things, breaks the self sustaining monopoly law schools hold, breaks the ongoing class differences that facilitate, by and large, who can afford to go, allows people to gain proficiency without incurring the near to prohibitive costs, harnesses the internet in allowing people flexibility in how they advance in their own fashioned legal education and in opening up a host of innovative means catering to those who would do that fashioning.

- basman

April 27, 2011 at 10:32pm

basman - yes, I was kidding. Sort of. In the US we have WAAAY too many lawyers. They need something to do, and so ruin various areas of American life. Hope you're right about the online thing. It is a ray of hope against the monopolists.

- butchie b

April 28, 2011 at 2:29pm

As Basman notes, butchie, there are no more lawyers than the market will bear. While I am open to the idea of a law school education not necessarily being a prerequisite for a license to practice law, I don't see how making it easier to obtain a law license will reduce the number of practicing lawyers. And whatever downsides there may be to requiring a law degree in order to practice law, I don't see how it creates a "monopoly," any more than does requiring a medical degree to practice medicine. You can't have it both ways, claiming there are too many lawyers at the same time to are claiming there is a monopoly. Dhurtado

- NR143296

April 29, 2011 at 9:28am

Basman- While I am not in principle opposed to "[d]isestablishing JDs as a necessary step towards licensing lawyers," I am skeptical that any kind of test could be designed that could establish competency to practice law. I would favor abolishing bar exams altogether, and establishing apprenticeship requirements, with mentors, after a certain number of years, certifying that the apprentice is sufficently competent to receive a law license. Or at least something along those lines. It would be up to the mentoring law firms whether they would prefer someone to have a law degree before taking them on as an apprentice. Dhurtado

- NR143296

April 29, 2011 at 9:38am

It creates a monopoly for law schools - to be a lawyer, you MUST go to an ABA accreditied law school. Basman is talking about moving away from that model. Good idea. I believe that there are many more lawyers than the market will bear - that is, many lawyers aren't working in the law, but the large number of lawyers has caused the entire profession to get creative and insert the law and lawyers into places it need not be.

- butchie b

April 29, 2011 at 1:15pm

butchie- As I said, I am not opposed to exploring paths to a law license that don't require a formal legal education. However, any such move should not be based on false premises. Even in a different model, law schools will impart value and it will be difficult for people to succeed in entering the practice of law without the foundation of a formal legal education, as with any other profession. Law schools are not remotely a monopoly. There are nearly 200 laws schools all hotly competing with one another for students. That is the genesis of Campos' complaint that law schools are spinning the employment data. I suppose the requirement that teachers have degrees in education creates a monopoly in schools of education? The requirement that physicians have a medical degree creates a monopoly in medical schoos? To the extent "lawyers" (by that I presume you mean persons with law degrees) are not working in the law, then they can have nothing to do with the "too many lawyers" problem of which you complain. I would appreciate some examples of where lawyers are inserting themselves into places where they "need not be." A lawyer cannot insert him- or herself anywhere unless there is a litigant willing to pay for it, or a client willing to engage the lawyer. If lawyers are where they "need not be," it is the fault of consumers of the law, not lawyers. Dhurtado

- NR143296

April 29, 2011 at 5:48pm

Dhurtado, "lawyer insert[ing] him- or herself anywhere unless there is a litigant willing to pay for it, or a client willing to engage the lawyer" does not seem to me to be much of a metric for judging over-lawyering. It frankly seems to be a fictional metric having nothing whatsoever to do with the complaints of people who suggest we are overlawyered. The problem is that there are any number of means by which lawyers impose themselves as third parties. Only one party needs to engage the lawyer, and then all other parties are hopeless but to be dragged along by the process. Now, I can provide examples of that, but it seems to be so obvious that I wonder if I'd be accepting some rhetorical bait by doing so. I'll offer examples, but only first asking: why isn't this obvious like cereal or eggs for breakfast? When people, especially lawyers, ask a question that treats the obvious like it was a thief in the night no one really saw (but eek!, the cookies are stolen) it sets off red flags. Either he's about to say something really insightful, or the grease just hit the gears and straightforward affairs between people working in good faith just got slippery, so better watch out. But here goes. Spouse A recognizes that the law and the facts will only allow for a divorce within parameters A..D, Spouse B is advised by an attorney motivated to create a pool of future post-divorced clients to aim unrealistically for parameter F, hoping the court will give D or E and expecting to re-litigate in 2 or 3 years. Spouse A is dragged along into hell, years of it. Employee Q of MightyWidgits recognizes that his group of specialists needs to analyze a set of data before it goes into MegaComputer because, GIGO, garbage in/garbage out. Now, his specialists are the ones responsible for the output, MegaComputer does a black box process, and the only way you can validate MegaComputer's accuracy is the control manage its input. Problem is, a separate business group that knows nothing about MegaComputer and its processes generates its input data, say through collection of customer receipts. They know about customer receipts in a tables/data/format sense, but they have no idea that receipt type A gets MegaComputer to generate beautiful schedules and receipt type N gets MegaComputer the spit tar unless babied tenderly with motherly hands. The businessperson, or engineer, says: go ahead - group one audit the data for correctness to customer contracts, group two analyze it for suitability for data processing for MegaComputer churns. Introduce lawyer: "BUT NO! This violates separation of duties, it violates SOX. Second group cannot validate the data, even though that is their job". Does it matter that we now imperil hundreds of millions of dollars of global logistics, and literally undermine the value to investors, customers and business partners alike? Not a bit, because incompetents judging your data = compliance, so says the lawyer. It also equals, what engineers and businesspeople alike, call "over lawyering". That and being sued frivolously by some other lawyer's client willing to engage a lawyer and able to pay for it, being regulated over business areas so dynamic that they resist compartmentalization necessary for regulation without stifling progress and innovation, or heck, even dealing with the aftermath of being sued frivolously, where one must contend with the fact that lawyers are unique among professionals in that they regulate themselves. I can go to the government to complain about bad banks - I must go to the bar to complain about a lawyer who knowingly spurned a frivolous lawsuit. And what do I find in doing this: the lawyer knows all the people on the bar who will judge him, and knows all the rules that fit in the checkboxes to let him slip/slide out of accountability for his lack of ethics. So - metrics of the problem, yes yes, but let's all agree to practice good faith and use metrics that matter. Ah, but ghast! Notice too how many in this string of comments felt it necessary to establish their bonafides to comment by establishing that they themselves were lawyers. There goes the double-standard: a non-lawyer's complaints, concerns and observations, no matter how researched and legitimate, are visited with communal scorn by the collective of lawyers. If you, non-lawyer, wish to complain or reform our august estate, it is contingent upon you, non-lawyer, to hire one of us to speak on your behalf, otherwise let us do the deciding as to who is and is not "over-lawyered".

- dcwood10

May 1, 2011 at 12:42pm