Has Legal Education Lost Its Way?

Now that the new academic year is coming up fast, there have been a wealth of complaints about the sorry state of American legal education. These are not wild-eyed laments from individuals who think that their first duty is to bring down the legal establishment and all the corrupt practices it is said to stand for. Quite the opposite, most of the objections to the current situation come right out of the standard manuals of sustainable business models.

As a recent story by Lincoln Caplan in the New York Times notes, there are all too many recent graduates of American law schools who can not fund their debts on graduation out of their future earnings from the legal profession—or, for that matter, from anywhere else. The message in question ripples through the ranks of prospective law students, who come (quite sensibly) to the conclusion that they are well-advised to look elsewhere for a career. The shift of course is not all or nothing: many students will still think that they can do well in a legal career.  But their numbers will be down, which will in turn put huge pressures on law schools to cut their enrollments and to whittle down the size and costs of their faculties. These results are reflected all-too-clearly in the rapid decline of the number of students taking the LSAT test—down by nearly 25 percent in the last two years. The decline in the number of applicants will closely track that number, and it is likely to infect all law schools, from top to bottom.

The causes of the current downturn are many, and they are not likely to be reversed any time soon. Part of the problem is that many legal jobs need no longer be done by lawyers, or at least by lawyers in the United States. Document searches can often be organized better by computers. For many tasks that do not require client communication, the work can be outsourced to India and other places with deep pools of legal talent possessing more than enough training to do these jobs at cut-rate prices. That trend will never be reversed. It will only intensify over time.

Then there is the long-term decline in the overall economy. The “good” news for lawyers is that the relentless increase in compliance work necessarily creates more work for them. But that increase is not nearly enough to offset the decrease in deal flow and litigation that stems from the overall slowing of the economy, which in turn reduces the number of large and complex transactions that require strong legal skills to execute. Nor does it stop the constant business pressure to take many of these premium jobs in-house, which allows firms to escape the expensive per-hour billing cycle that still dominates most forms of legal work done by the upscale legal firms.

 So the question is what, if anything, should be done about this trend, both by the law schools and the law firms. My view is that these organizations will prove themselves adaptable to the challenge. But wherein will their expertise lie?  My own guess is that it will lie in beating an orderly contraction in the face of a set of external forces that cannot be overcome. There will be a group of not-so-clever suggestions to make law an undergraduate education, to reduce law school to two-years, to require more hands-on instruction and clinical work. All of these are largely beside the point. American law schools have already taken some steps in these directions, but it is unlikely that there is much more that can be done.

The important social point is that there should be no government rescue squad to save the legal profession. There is no need to subsidize large numbers of makeweight jobs that are supposed to supply the poor with legal services, most of which they don’t want to begin with. And most of all, there should be no new round of regulation that requires pro bono work of recent graduates, or imposes other kinds of licensing restrictions. Indeed, the one constructive reform would be to eliminate any role whatsoever that the American Bar Association has in the accreditation of law schools so that market forces could exert a more rapid and certain influence over the pattern of legal education.

So how will this shake out? My guess is that the legal profession will see this strong bifurcation: For those standard type legal services, prices will continue to fall, and non-lawyers will (and should) move quickly into the space so created. But at the top of the distribution, where huge amounts of discretion are required in major business transactions and complex litigation, lawyers will still prove indispensable. Here it is likely that salaries, under the pressure of new entrants, will fall more slowly than they do at the opposite end of the profession, which in turn means that the separation from top to bottom—between the elite institutions and their standardized competitors—is likely to become more pronounced than before.

No one should, however, lament these changes.  They are brought on by profound social forces that should be accommodated, and not resisted. Even—perhaps especially—lawyers should be subject to the discipline supplied by market competition

  1. genferei

    The legal profession has been managed, broadly speaking, as though the only services it provides are advice on bet-the-company mergers, tax issues and litigation. Thus law firms are structured as though every associate will, one day, be the dispenser of such rarefied advice, with the inevitable effect that charge-out rates for barely-trained peons reach stratospheric levels.

    In fact, the vast majority of legal services are barely value-adding. Even documenting a mega-merger only provides a little risk-management around the edges. This is not to say that such things do not require skill, experience and judgment under pressure. But so does making a hollandaise sauce.

    The situation in the US is further exacerbated by the huge role played by litigation. Any business of any size spends a considerable amount managing more-or-less frivolous lawsuits. Even procedural oddities like discovery become multi-billion dollar industries – although I have yet to be convinced that the quality of justice provided by the extreme approach to discovery practiced in the US is appreciably better than in those countries where the practice is milder (e.g. the UK) or unknown (the civil systems).

    The revolution cannot come quick enough.

  2. Eric Blair

    I graduated from a top fifty law school two months ago (bar exam in a week, thus this will have to be regrettably brief).  I can tell you that Professor Epstein is per usual exactly on point.  I can’t help the feeling that I made the biggest mishap of my life by going into the law when I did.  My education is on a model meant for 2006 with Obama administration job prospects.  I started law school in 2009 with the school administration jumping through hoops to tell us that we would be fine when we graduated.  I received my diploma in the mail yesterday without a job, along with the overwhelming majority of my class, with 150k+ in debts that will begin exploding with 9% accuring interest.  My best, and really, only hope is to take a public job, that I will be lucky to get, that will forgive my debt in ten years.  If you are thinking of law school, please think twice.

  3. Cornelius Julius Sebastian

    [Sigh] Where to begin….  First, the market is saturated.  Eric, good luck to you sir, I hope you fare well.  I made it out with far less debt in 1996 and I am still paying of the loans, though I’m almost there.

    Prof. Epstein, yes, Legal Ed is broken.  Although not as bad as undergraduate, it has its share of being infected with navel gazing legal versions of grievance studies (Feminist critique of the law, etc. ad nauseum).  If you aren’t going to be an academic, that stuff is just fluff.  It’s fluff anyway, but it if you are a top 1% LBGT you’ll probably get tenure. 

    But even focus on traditional law curriculum won’t fix it.  The problem is, unles you are a small town solo practioner, no one is a generalist lawyer anymore.  But a J.D. is a generalist degree.

    Here is my bold suggestion:

    1L make uniform at all law schools and make passage of the MBE a requirement to move on to 2L.  This will weed out a lot. Use a 4 stop rotating unpaid intership 1sr semester 2L. They must find specialty. 3L specialize. BARBRI for bar exam.

  4. Cornelius Julius Sebastian
    Pseudodionysius:As it is, I’m barren physically because I’m barren financially.

    That was a painful sentence to read. · 5 hours ago

    You beat me to it. Literally pained my chest to read Amy’s words.  Lord have mercy.

  5. Cornelius Julius Sebastian

    I realize my prior post may seem harsh and academy may bristle, but I think it is the only way to increase marketability.  The only thing that really counts in law is skill.  Firms can’t groom people the way they used to and stay competitive.

    I’ve been both an inhouse counsel and a firm lawyer. Being inhouse gave me a whole new appreciation for how clueless most firm lawyers are about the businesses of their clients (including me when I was).

    Other problems with law are simply that law has become so complicated that all of us lawyers are just cost added.  I always joke, “There is a reason there are so manylawyer jokes.” I do regulatory work and litigation, and most of the time I literally want to torch all of the CFR and about 3/4 of the USC. 

    James Madison was right: “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

    I have numerous times wished I had simply become a carpenter….

  6. HVTs
    genferei:

    The situation in the US is further exacerbated by the huge role played by litigation. Any business of any size spends a considerable amount managing more-or-less frivolous lawsuits. Even procedural oddities like discovery become multi-billion dollar industries …

    The revolution cannot come quick enough.

    You are talking “revolution” and Prof. Epstein is talking “changes.” I should think “revolution” would apply only if fundamental reform is introduced, such as “loser pays.” That would certainly remove some of the frivolity in tort law.  We can’t afford to be such an exquisitely litigious society in the face of globalized economic competition, can we?  More worrying still is this comment: “… there should be no government rescue squad to save the legal profession. There is no need to subsidize large numbers of makeweight jobs …”  The fact the Professor felt compelled to say this tells me the doyens of the legal profession are thinking it, much like journos began talking about newspaper bailouts a few years back. How about we hang the first three law professors who support such a “rescue squad,” simply as an encouragement to more thoughtful behavior among the others?

  7. Nick Stuart

    Having followed Prof. Epstein’s comments on legal education with great interest, the one thought that continues to occur to me is what’s in store for people who have small legal needs that require a lawyer, but they don’t need and certainly can’t afford a cum laude graduate of an elite school who’s a partner in a top tier firm??

    Example, I needed a simple guardianship of the person for my disabled daughter (power of attorney doesn’t do it when you’re dealing with state agencies). Everybody involved was on board. I had to call 6 lawyers (including getting a referral from the county bar association, legal aid, and a non-profit group I belonged to) before I found one who would even call me back or take a second call. The 6th gave it to a part-timer in his office who did it nominally pro bono. An attorney’s participation was essentially required to navigate the procedural labyrinth at the county court house.

    There has to be a better way.

  8. HVTs
    Eric Blair: I graduated from a top fifty law school two months ago … can’t help the feeling that I made the biggest mishap of my life by going into the law when I did.  … I received my diploma in the mail yesterday without a job, along with the overwhelming majority of my class, with 150k+ in debts that will begin exploding with 9% accruing interest.  My best, and really, only hope is to take a public job, that I will be lucky to get, that will forgive my debt in ten years.  If you are thinking of law school, please think twice.

    Thank you and please accept my condolences. This will go straight to my undergrad daughter who still toys with law school ambitions.  The good news is the pre-law counselors at her university were equally discouraging/realistic when she was a freshman in 2010. So, apparently the word is indeed getting around.  She now talks more about letting a future employer help pay for an MBA.  I wonder what the world of B-school grads looks like today?

  9. Nick Stuart

    BTW I am always amazed at how Prof. Epstein can melifluously deliver himself extemporaneously of the 1200-word sentences he speaks in on the podcast. With perfect a-to-z logic, and footnotes. Not a single “ah” or “um”. I’m sure he’s one elite law school prof worth the high tuition (which leaves all the other ones who aren’t, but that’s another post).

  10. Nick Stuart
    HVTs

     She now talks more about letting a future employer help pay for an MBA.  I wonder what the world of B-school grads looks like today? · 0 minutes ago

    If somebody else is paying, and it’s an elite school, she should take it. Otherwise she should take a week to diligently work all the way through What Color is your Parachute and figure out what she really wants to do with her life.

    The principal difference between people with MBAs and people without are that people without can at least cherish the illusion that having one will improve their career prospects [HT Oscar Wilde]

  11. HVTs
    Nick Stuart: BTW I am always amazed at how Prof. Epstein can mellifluously deliver himself extemporaneously of the 1200-word sentences he speaks in on the podcast. With perfect a-to-z logic, and footnotes. Not a single “ah” or “um”. I’m sure he’s one elite law school prof worth the high tuition (which leaves all the other ones who aren’t, but that’s another post).

    Yeah, but can you imagine taking notes in his class?  My head hurts just thinking about it. I’m sure there are lots of recording devices whirling when his lectures begin.

  12. HVTs
    Nick Stuart

    If somebody else is paying, and it’s an elite school, she should take it. Otherwise she should take a week todiligentlywork all the way throughWhat Color is your Parachuteand figure out what shereallywants to do with her life.

    The principal difference between people with MBAs and people without are that people without can at least cherish the illusion that having one will improve their career prospects [HT Oscar Wilde]

    Thanks. I’ll pass this one along too. [:-)  It does seem to me an MBA is so 1980′s.  Unless you specialize quantitatively, become a serious number cruncher at a mutual fund or something like that, I wonder what an MBA really buys for you.  I’ve known too many MBAs who can’t reason their way out of a paper bag or organize anything more complex than a Girl Scout meeting.

  13. Amy Schley
    Pseudodionysius: 

    That was a painful sentence to read. · 8 hours ago

    Cornelius Julius Sebastian

    You beat me to it. Literally pained my chest to read Amy’s words.  Lord have mercy. · 1 hour ago

    Trust me, it isn’t all that fun to write it, but it is the truth.  My college educated husband and I have a combined income of around $40K and combined student loan debts over $200K.  We simply cannot afford to make payments on that with just the two of us, much less afford health insurance or the children I want so badly.  Our ten year anniversary is next month, and we are now further away from starting a family now than we were then.

    Richard Epstein: 

    No one should, however, lament these changes.  

    Professor, it’s much easier to say that with your $100K+ salary for life than as someone who’s actually caught in this wringer.  Frankly, I would fix the whole education problem in two steps: 1)Make student loans dischargeable in bankruptcy 2) All student loans must be issued and held by the college.

    That way, someone like you would actually suffer when someone like me finds the education worthless.

  14. Amy Schley
    Eric Blair:  I can’t help the feeling that I made the biggest mishap of my life by going into the law when I did.  

    I’m way past that.  I know that law school was, bar none, the biggest mistake of my life.  If I could have the bank repo my degree & credentials in exchange for the debt, I’d do it in a heartbeat.  What little success I have in life is due to my skills as a saleswoman of shoes, and my law degree has actually been a hindrance in searching out any kind of work outside that field.  Had I no debt, my modest earnings would be plenty to start a lower-middle class family.  As it is, I’m barren physically because I’m barren financially.

    Richard Epstein: There will be a group of not-so-clever suggestions to make law an undergraduate education, to reduce law school to two-years, to require more hands-on instruction and clinical work. All of these are largely beside the point. 

    Professor, I’m not understanding this.  How is reducing opportunity costs and better training students “beside the point” in examining the future of legal education?

  15. Peter Meza

    I entered law school in 1984 and I distinctly remember someone in authority saying at the time that the market was already saturated.  It was well known even at that time that you had to have something in place more or less waiting for you like your Dad’s law firm or some narrow speciality, or connections of some type on your side, or an actual job.  The percentage of students who actually went on to practice law from my class was about 50%.  I went to Lewis & Clark law school in Portland Oregon if you were wondering.  If you want to get a job in the law without connections or already having a guaranteed job before you even enter law school, here’s a guaranteed way to do it: be in the top 5% of your class from one of the top 5 law schools.  Otherwise forget it.

  16. Pseudodionysius

    As it is, I’m barren physically because I’m barren financially.

    That was a painful sentence to read.

  17. Pseudodionysius
    Peter Meza: I entered law school in 1984 and I distinctly remember someone in authority saying at the time that the market was already saturated.  It was well known even at that time that you had to have something in place more or less waiting for you like your Dad’s law firm or some narrow speciality, or connections of some type on your side, or an actual job.  The percentage of students who actually went on to practice law from my class was about 50%.  I went to Lewis & Clark law school in Portland Oregon if you were wondering.  If you want to get a job in the law without connections or already having a guaranteed job before you even enter law school, here’s a guaranteed way to do it: be in the top 5% of your class from one of the top 5 law schools.  Otherwise forget it. · 2 hours ago

    This really needs to be on a coffee mug. I’d buy the first 2 dozen.

  18. Dramman
    Eric Blair: I graduated from a top fifty law school two months ago (bar exam in a week, thus this will have to be regrettably brief).  . · 21 hours ago

    Edited 21 hours ago

    I hear you! I got the NY Bar in six days, so I need to, hopefully, be brief as well (and please excuse a punt). There are two issues that need to be addressed.

    First, I think we need some way to weed-out those who want to become lawyers from dilettantes who go to avoid adult life or just to please parents. I meet quite a few, and the loans are always easy for them to get.

    Second, somebody, anybody, please put some of the blame for the state of legal educations on the hiring managers. Nobody wants to consider the demand pull from law firms that rewards the current state of legal education. In short, everyone says they want experience and knowledge, yet they only hire and pay for grades reflecting esoteric trivia, knowing when to italicize or underline, or play acting. 

    At the risk of trumpeting my horn, I wrote on this a few months ago: http://ricochet.com/member-feed/Leg-Humping-Lawyers

  19. Peter Meza

    The sad fact is that you have to take your chances if you go to law school.  If you are really smart and think your will rise to the top then you should probably go for it.  If you are a marginal candidate you probably shouldn’t go for all of the reasons given above.  It is not going to pay off for you, as sad as that may be.

    If you rank order all of the law graduates based on a figure of merit of prestige of your school, plus your grades, plus whether or not you were on the law review or Order of the Coif and other such accolades, the odds are probably something like this:

    Top fifth 100% hired

    Second fifth 80% hired

    Third fifth 60% hired

    Fourth fifth 40% hired

    Bottom fifth 20% hired

    Your mileage may vary but you get my point.  It’s tough out there for a law grad, to coin a phrase.

  20. Boisfeuras

    I too am a lawyer, albeit an English barrister rather than a US attorney. I’ve been knocking around the legal game for some 12 years now. 

    On this side of the Atlantic things are no better. The flood of heavily indebted law graduates grossly exceeds the number of training contracts or pupillages on offer. In my Chambers we probably have about 800 applicants for 3 training positions.

    The only piece of advice I can offer (if you are determined to do law) is to get out of the shoe shop. If you can’t offer top grades from a top institution, then the next best thing is to offer relevant experience and the possibility of an introduction to a potential client(s). Look for positions in the claims handling department of insurance companies for example, where you will have an opportunity to get to meet external counsel. If you can impress them in an in-house position, you’ve a much better chance of transferring into private practice later.

     

Want to comment on stories like these? Become a member today!

You'll have access to:

  • All Ricochet articles, posts and podcasts.
  • The conversation amongst our members.
  • The opportunity share your Ricochet experiences.

Join Today!

Already a Member? Sign In