One expects legal academics to use the Socratic method for teaching students. But when it comes to the subject of going to law school, many of them are engaged in pure sophistry. I think many of them felt insulated from the effects of the recession when only recent law school graduates faced challenging job prospects and non-dischargeable debt loads. But now that law school applications have dropped off, professors are starting to see the barbarians at the gate. For God’s sakes, junior faculty are getting layoff notices, and the ABA just voted to consider dropping tenure as a requirement for accredited law schools. Professors must know that this system of high tuition and no jobs for graduates can’t go on forever.
And so some of them are fighting back. No, not with real reform. But by doing what professors do best: making theoretical arguments largely detached from the realities on the ground. They’re on a public relations campaign of lip flapping, as if the entire crisis in legal education is a media fantasy. For my money, this concerted effort by law school types to fight the war in the press started with Lawrence Mitchell, but we’ve since seen too many bad studies and bad arguments to count.
Today’s entry isn’t even all that bad. This professor spends a large part of his paper detailing the decline of Biglaw hiring that is unlikely to come back any time soon. But at the end, he tries to sound a note of hope — a misleading note of hope — that once again seems to encourage students to go to law school without fully grasping the depths of the problem in the market for legal education…
Professor Bernard Burk of the University of North Carolina School of Law has a paper up about the “new normal” and its implications for entry-level hiring. The Wall Street Journal Law Blog touts the paper like this in its headline: “Legal Job Market Is So Bad, It’s Good, Says New Paper.”
[W]hat’s overlooked, he argues, is the supply factor.
In a draft paper, the professor predicts that even if the number of entry-level positions stays flat as the economy heals, there will be fewer new lawyers “chasing” fewer jobs.
Here’s the actual “prediction” from the paper:
It is worth pausing for a moment to appreciate the likely dynamic between the market for new law students and the market for new lawyers, not least because it offers a ray of hope in what otherwise might seem a dismal landscape. If, as appears is already occurring, the legal academy significantly contracts, in just a few years there will be substantially fewer law graduates seeking Law Jobs. Even if the number of entry-level Law Jobs remains more or less flat, the Law-Jobs Ratio will significantly improve. In other words, with fewer new lawyers chasing fewer Law Jobs, more graduates who want a Law Job should be able to get one.
So… that prediction is almost certainly wrong. Remember, I asked James Leipold, executive director of NALP, almost this exact question in April. I asked Leipold if prospective law students could expect better job prospects because the dearth of applications would lead to an under-supply of lawyers. He told me no. And that’s because while individual law schools might be cutting enrollment, there are more law schools now, and more continue to open. More law schools means more people to make up for the fewer people going to older law schools. It’s like an Escheresque nightmare from which there is no escape.
The other problem with Burk’s prediction is that it doesn’t really take into account the fact that we are currently experiencing an under-supply of lawyers right now. That’s not a typo; I said “under-supply.” There are already not enough lawyers available to work for poor and disadvantaged clients. Have you ever seen an appellate public defender? Have you ever walked into a Legal Aid office? Right now, today, we need more lawyers… who can work for free or very, very little.
Oh, law schools don’t produce lawyers who can afford to make peanuts for the rest of their lives? Well, I guess we’ve just seen why aggregate “lawyer supply” has very little to do with whether or not someone should go to law school.
Now, in fairness, Burk concedes that the jobs available will not be “top dollar” jobs. But in my experience, telling prospective law students they won’t make “top dollar” is one thing, telling them they won’t be able to take the jobs available without needing government financial assistance to pay their debts is quite another.
Which actually all leads to Burk’s other big miss in this paper:
At one level, this reduces to the simple economic observation that there is an oversupply of new law graduates relative to the Law Jobs available for them. If this paper is correct, that oversupply should continue until the market adjusts. There does not seem to be any reason to believe that the market will not adjust as markets usually do: In the face of an excess supply of law graduates, demand and price for law degrees should fall.
The market for legal education will not adjust “as markets usually do” because the market for legal education is protected from normal market forces by the American taxpayer. How many law schools would go out of business tomorrow if government-backed student loans went away today? There are kids out there operating lemonade stands who have a deeper appreciation for price sensitivity in a competitive marketplace than most American law schools.
The legal job market is so bad, it’s good? No. The legal education market is so bad it would completely fall apart without government money keeping the entire bubble afloat.
How come there aren’t more papers on that? How come there aren’t more law professors writing “how my job is completely unsustainable without price-gouging low-information students”? Or “hey guys, if we all milk the government heifer at once she’ll die”?
Again, it just feels like law professors right now are getting their intellectual jollies by trying to see who can engage in the neatest bit of sophistry in defense of going to law school. But eventually one would think that the self-preservation motive would kick in and these guys would start bending their intellectual will towards actual reform instead of clever arguments in support of the status quo.
Until then, here’s another paper we’ll have to file in the “let them eat cake” section of the law library.
UPDATE (8/16/2013, 10 a.m.): Professor Burk responds over at The Faculty Lounge: “On Being Misinterpreted (Or, Elie Mystal Thinks I’m An Idiot On Account Of Things I Didn’t Say; Now What?).”