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02 July 2009

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Although you're spot-on correct, there's a variable you haven't mentioned, which is the bar examination. I would argue that the bar exam tests skills which are almost irrelevant to the practice of law, and since many or most law schools "teach to the exam," law school curricula are a reflection of the bar exam's irrelevance.

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A GC

I'm interested in knowing what Ken Dau-Schmidt means when he refers in his last paragraph to "the talented but unexceptional students of modest means." I would have thought that a "talented" student is an "exceptional" one, but clearly Ken is getting at something else entirely by using the two terms separately.

Ken Dau-Schmidt

I recently had a similar discussion with my son who just started law school and is contemplating the required debt load.

Law faculty salaries went up over the last two decades not because of any teaching innovation, but because the value of what we produce (lawyers) also increased dramatically over those years. Its just the market at work, spurred on by bloated endowments enjoyed by the large private schools.

Debt load has increased in part because the value and price of a law degree has gone up, but also because we are in the process of privatizing education in the US. Since at least the 1980's state support for higher education has significantly declined leaving students to pay for this good on their own.

Will these trends continue? I think that at least the upward pressure on legal salaries an law faculty salaries has already changed with the recent recession. Law faculty salaries across the country are frozen (Indiana), or even in decline (California). The privatization of higher education continues however, so the debt load will continue to increase. The limit will be that students will not borrow more than the value of a legal education over their next best alternative. There is a limit and we cannot exceed it, but we probably aren't there yet.

The people who have been lost in all of this are the talented but unexceptional students of modest means who can't secure the resources to go to law school even though it would pay for them to do so. Schools have incentives to commit scholarship resources to high test score and grades students who help them in the rankings and minority and female students who help achieve goals of diversity. There is no incentive to help students who simply need a little financial aid to make law school work.

Jack

"Is any of this new? Since at least the 1980’s, law schools have been chided for doing a poor job at training future lawyers."

From a financial perspective, graduating from law school now is nothing like graduating from law school in the eighties.

From 1970 to 2007, according to the ABA, lawyers per capita in the United States went from 1 in 700 to 1 in 263. (I don't know how that's measured, or how reliable that measure is.) From 1985 to 2008, the average cost of tuition at a public law school went from $2,006 to $16,836. (http://www.abanet.org/legaled/statistics/charts/stats%20-%205.pdf)

Law school imposes a frightening, often crushing debt load, and it opens access to a job market that may already have a long-term over supply of lawyers. I'm delighted that law professors are thinking about whether the numbers are sustainable.

ohwilleke

One thing that law school doesn't teach for transactional lawyers, but should (I had one class with supplemental materials that did this), is to teach what the customary deals are first, and the motivations that drive those deals second, and the doctrine that applies to them third.

Unless you have worked in the relevant lines of business, learning this material in another order is like getting perfectly accurate directions to your destination, in Chinese.

MAW

Is any of this new? Since at least the 1980’s, law schools have been chided for doing a poor job at training future lawyers. This criticism has been accompanied by pressure to increase their emphasis on skills training. The pressure increased with the publication of the McCrate Report in 1992, and then again with the publication of the Carnegie Report in 2007. In my remarks given last month at the 2009 mid-year meeting of the AALS Conference on Business Associations ("What Law Schools Should Teach Future Transactional Lawyers: Perspectives from Practice") I respond to the questions "Are law schools teaching students adequate transactional skills?" and "From the standpoint of preparing students for a transactional practice, what would you like to see law schools change?" I just posted an edited version of these remarks here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1430087.

Jeff Yates

I think that Ohwilleke's comments are probably the most sensible and telling insights that I have heard on this issue and related issues regarding what law school can and can't reasonably do. It's especially compelling that it comes from someone who hung out their own shingle right after law school - dispelling the notion that marketable skills aren't made available. I had a number of classmates who did this as well. My recollection of law school was that there were plenty of opportunities for students to learn practical skills - pretrial litigation; trial practice; appellate advocacy; drafting; corporate governance; multiple clinics, etc. - I assume that these opportunities still exist.

Bill Henderson

Ohwilleke, David, Richard, you raise some good points. Thanks for your comments. bh.

ohwilleke

Relevance may be an issue, but while law schools may not live up to their own ideals, they are also still high on the graduate degree relevance scale.

It is possible to go out and solo practice immediately after graduating. I did it. I've worked at a firm where the founding partner did it. It wasn't an ideal way to make a living, but the notion that lawyers are not teaching things that they are well suited to teach isn't entirely true. Much of what you need to learn to do the job either cannot be taught at all in a traditional academic setting (e.g., "people skills" and "cultural capital"), or is easily learned ("finding your way to the courthouse").

It will be a long time before a J.D. has worse job prospects than someone with an M.A., M.S. or PhD in the humanities or social sciences (apart from psychology and economics). The idea that 100% of law school graduates can get jobs that fully pay off their student loans and make them a good living to boot was probably always unrealistic and new student loan payment plans are probably a good way to address that problem.

Also, while there is an oversupply of lawyers handling Wall Street transactions, other fields like family law, are suffering a lawyer shortage (50% of parties go pro se), and the solution may be to find better ways to fund legal services where there is a shortage.

Similarly, part of the problem is that we have institutions, like 2000-2200 billable hour a year expectations for associates that made sense in a severe lawyer shortage situation that may no longer make sense. Why not start associates at 1200-1500 billable hours a year, pay them half as much, and assume that student loans may take 15-25 years to pay off? Small firms must do what their clients need done on their schedules, because they have little room to buffer what needs to be done against their resources. Big firms benefit from the law of averages to smooth their work loads to some extent, and are better able to handle surges of client demand if they don't have all of their lawyers operating at 110% all of the time.

In a completely different context, public defenders are routinely operating at insane case loads and prosecutors are preparing jury trials at a rate an order of magnitude greater than so called "trial lawyers." Again, these are institutions that have their roots in lawyer shortages. If we are going to have economic stimulus, why not increase the number of lawyers on the payroll in these positions?

While Jerry McGuire may have had it wrong in "fewer clients, less money," that doesn't mean that there aren't places where it wouldn't make sense to have more lawyers handling the existing demand.

Dave Shearon

Thanks for this! I'd suggest that one pressure point may be in the area of law-student (and lawyer) well-being. The huge jump in depression, anxiety, drinking as a coping behavior, etc., during the first six months of law school is tough for those leading law schools to shrug off (though some do). The good news is that positive psychology research suggests that, by focusing on improving well-being, schools are also likely to produce lawyers that are "fully functional." See, http://daveshearon.typepad.com/daveshearon/2007/02/dear_ann_althou.html

Richard Moorhead, Cardiff University

Bill,

A very interesting post (as usual). Much to agree with. In the UK, we are beginning to wonder how and increasingly marketised higher education system will adapt to please both students and the profession whilst retaining liberal education credentials.

Interestingly, given your comments on costs and e-disclosure, there is a major piece of work, led by a Court of Appeal judge, Lord Justice Jackson, on redesiging the costs system behind civil litigation. For those interested in costs and lawyers quite a few, sometimes radical, ideas are floated and there is a collection of interesting data and the Jackson LJ was also quick to look at empirical research (much of if from the US). An academic economistis amongst his panel of assessors. There's an extended section on e-disclosure.

Anyone interested in the report can download it here:

http://www.judiciary.gov.uk/about_judiciary/cost-review/preliminary-report.htm

It's enormous, but worth the read I think. I have summarised and commented on it here if anyone is interested:

http://civiljustice.wordpress.com/jackson-talk/

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