The Wrong Argument for Law School

I have received a most interesting response to my argument about legal education. I have contended, in articles and speeches, that the current depression for lawyers is not merely the bottom of a boom-and-bust cycle; it signals structural change in the delivery of professional services and thus the training process for the same. I am not alone. Critical observers, including those within the legal academy, have tried to point out the problems, but reform efforts have been rebuffed — the California bar association, for example, has not moved forward on draft rules that would emphasize the teaching of actual skills.

My friends who take issue with me have said that an abundance of lawyers is not so bad. The economic principles that they and I agree apply to members of the bar no different than other workers in a competitive, global marketplace also suggest that if the supply of lawyers goes up, with the demand being stable at best, then the price should go down. 

The rebuttal, which I take seriously, is that the public will benefit. The consumer who needs a lawyer for her business or her divorce will be well served. She will have previously unknown strength in bargaining with her would-be counsel, and she will have options.

Perhaps this line of reasoning is so. But the analysis is hardly a recommendation of law school. Accepting the proposition as true, anyone smart enough to pursue a degree beyond the undergraduate level will select an alternative to the Juris Doctor. 

She is being told that by coming to law school, she can reduce the cost of legal services. If her friend joins her, they will cut their potential compensation all the more. People do not want to pay tuition to help other people hire them for less.

In theory, more lawyers ought to improve access to justice. An abstract model would predict that the new law school graduate, upon receiving no offer for the coveted job that pays $180,000 per year will start her own shop. Her rates will be such that her neighbor can retain her, say, for a child custody dispute or to draft a contract for a small business.

That doesn’t happen though. Or it occurs much less than might be imagined.

In law school, we try to continue discussion beyond a simple back-and-forth. Allow me to proceed with the colloquy. 

There are two more reasons legal education is in trouble, if its point is to prepare attorneys to make a living serving other people (actual people, not companies which the law treats as “people”).

First, legal services are diverse and varied. There are elite firms that represent corporations and high-net worth individuals. There also are the bulk of attorneys whose clients are very different, whose take home pay reflects that. A lawyer who devises a “poison pill” to thwart a hostile takeover of a corporation is not the same lawyer who protects a tenant from eviction, unless she is doing a bit of pro bono. (That is similar for the plaintiff’s bar on the other side: for every big-name trial lawyer who has her own private jet there are a hundred who only hope to be referred a case from her that she doesn’t deem lucrative enough.)

Yet legal education is all the same. People are charged an identical amount whether they wish to be a community mediator or prosecutor or public defender, as they are if they aspire to join what has been dubbed “BigLaw.” There are scholarships and loan forgiveness. But by and large, law schools do not differentiate in their pricing for students who do differ in their likely returns on the investment. Thanks to competition for the applicants boasting the top credentials, it may well be that those whose student loan burden is heaviest will be those whose income stream is likely to be the lightest.

We complain about the dearth of lawyers who are competent and affordable. Students will say — and we should all be on the side of students — that it is well nigh impossible to acquire the experience that is needed, have the business to pay the rent much less earn a living, and pay back what they borrowed to be called “Esquire.” They cannot afford to be affordable. Flooding the market with more lawyers would cause them to lower their prices only to the extent they can do so. 

Anecdotally, I am told by managing partners at firms that are fine but not the fanciest that they have already crossed the line, taking commodity projects as loss leaders, in an effort to win additional assignments. However, the clients who are sophisticated enough, with sufficient market power to make these demands, know exactly what they are doing.

Second, we do not celebrate the lawyer who is ethical and decent and has a little office around the corner. We valorize the valedictorian, who edited the law review, and has been recommended for a clerkship with a Supreme Court Justice, after which awaits a signing bonus, and, after a suitable interval, a corner office in a downtown skyscraper. Even in public interest roles, we, those of us who assess merit, distinguish between the ambitious, successful graduate who has a coveted fellowship with an internationally-known NGO or an entry-level job at the United States Attorney’s Office or federal Department of Justice, and the also-ran who ends up in their hometown with the county clerk.

The hierarchy is what makes people miserable. Law schools select individuals who are competitive. It further develops that spirit. Our justice system is based on an adversarial model of determining the truth.

What angers people about legal education is unmet expectations. Since television shows depict the life of lawyers as glamorous and materially rewarding at a level just below professional athletics and drug-dealing, even the few persons who land the offer to be an associate at XYZ law firm can be disappointed. Even when those law firms have flourished, they have recruited a minority of the class from a minority of law schools. In the tournament culture, few last long enough to make partner — though many depart happily enough.

If we were serious about law school training people for solo practice or the mom-and-pop firm, we would set tuition accordingly, adapt the curriculum to ensure students were as ready as possible for such futures, and then make clear we regarded them as having done well when that turns out to be their fate. Legal education has value. It just doesn’t have the value its sellers claim, at least to the buyers — and it is not the sellers but the buyers who prevail.

That is the great irony of the mess. There is unmet legal need. There is an acute shortage of lawyers for poor people, for municipalities, and for normal folks who just need a bit of advice and counsel. The pipeline has not been designed to direct new lawyers where they could be put to use. There also is a huge volume of legal work, ranging from due diligence to litigation support. As in other fields, it can be unbundled and other than due to licensing requirements it probably could be performed by technicians who are not lawyers.

Some time ago, Derek Bok, then president of Harvard, lamented that in America too many of most talented young people pursued law. Now, we may have the opposite problem. Too few of them are interested the very foundation of our diverse democracy, the rule of law. We have to show them why it matters.

This article originally appeared at The Huffington Post.