Law Schools as Buggy Whip Factories

Yesterday I posted on Facebook a simple question:

What law schools have undertaken serious consideration of the permanent restructuring of the legal market in their mission & strategic plan?

Reasonable people may differ on whether the current recession and the last few years of poor hiring by law firms necessarily mean we are undergoing a permanent, fundamental change rather than a simple economic cycle. The evidence is mounting, however, that reasonable people cannot take the latter conclusion as a given. If numerous scholars and practitioners who have examined the trends closely have concluded that the legal market is undergoing basic, long-term change, it is foolish to ignore their conclusions and act as if everything is going to go back shortly to the fat times and eternally growing legal market we all know and love.

The New York Times chart showing the state-by-state surplus of lawyers in the U.S. is only the latest indication that the market for lawyers is changing. Brian Tamanaha notes some of the likely effects on law schools:

The 2010 acceptance numbers suggest that many law schools are already in a worrisome spot. That year, twenty schools accepted between 45% and 49% of the students who applied; twenty-two schools accepted between 50% and 59% of applicants; and seven schools has an acceptance rate of 60% or higher (Cooley was the highest at 83.3%). Added together, nearly a quarter of law schools in the country accepted close to half or more of their applicants—and this was before the latest decline in the number of applicants.

Law schools have enjoyed flush times for more than a decade. Tough times are ahead.

Stephen Bainbridge adds:

The point should be obvious. Unless law schools voluntarily start consolidating and downsizing, which seems about as likely as yours truly winning the Miss America pageant, we face a long-term prospect of ever increasing competition for fewer and fewer applicants. Long before the day comes that there are fewer applicants than available seats, we will be in very big trouble. Budgets will have to be slashed to pay financial aid to attract students. Admission standards will have to go down. Relations between deans, faculty, and students will be increasingly fraught.

What we have here is a classic collective action problem. Unfortunately, what we don’t have is a market in which to develop solutions to that problem.

For many traditional critics of legal education, the response is simple: law schools should quit teaching all that theory and focus on practical skills so new graduates can hit the ground running (as minimally skilled servants to entrenched capital interests). Larry Ribstein suggests that such solutions are shortsighted:

The problem isn’t that we have too many law trained people and so should train fewer.  In fact, in our increasingly regulated economy, there is probably a gross undersupply of law-trained people.

The problem is that regulation has fixed the nature of the product so it hasn’t adequately responded to shifts in demand.  The downward demand shifts have been produced by, most importantly, technology.  But demand is increasing for new kinds of law-trained people both at the low-cost end of service to the poor and middle class and the potentially high-profit end of producing new kinds of products and services (see Law’s Information Revolution).  Yet regulation has locked law schools into models that don’t serve these new needs.

The best short analysis I’ve read was just published in the ABA Journal, “Law Job Stagnation May Have Started Before the Recession—And It May Be a Sign of Lasting Change,” which concludes:

Whether the changes affecting the legal profession are indeed a reflection of market cycles or a complete paradigm shift will become evident in coming years. But for those betting substantive change has not happened, they are betting their practices against the future.

The answers thus far on my Facebook post suggest that there aren’t many law schools taking this seriously. One colleague comments “I think that depends on what ‘permanent restructuring of the legal market’ means–is there enough agreement on that to have taken it into consideration?”

How much agreement do we need to begin taking the future seriously?

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About James G. Milles

Professor of Law, SUNY Buffalo Law School

Posted on July 1, 2011, in Uncategorized. Bookmark the permalink. Leave a comment.

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