Sunday, November 10, 2013
This essay is by Dean Frank H. Wu, who is Chancellor & Dean of University of California Hastings College of the Law. This blog entry appeared originally at Huffington Post.
Law schools must reduce their J.D. class sizes. They should do so immediately and permanently.
The data are compelling. There are simply too many lawyers and too many law students in the United States nowadays. Only about half of recent graduates of law schools, of which there also are too many, are securing permanent full-time employment in the legal profession at this point.
There, I've said it. Indeed, my law school has taken action. Lest observers speculate, we announced our decision as part of comprehensive strategic planning, well in advance of seeing how the applicant pool looked for this academic year.
If anyone doesn't know the news, there were fewer people aspiring to join the bar in the admissions season that ended a month ago when we welcomed the one-L class -- again. This runs opposite to the previous pattern: When the economy slumps downward, law school applications spike upward. Worse, it appears that the supply of the strongest candidates is decreasing at the greatest rate.
The only issue is whether these trends are an anomaly, blip, or cycle. I'm convinced they signal a permanent and profound structural change.
Sure, the economy will recover. Yes, law firms will too.
But look at the law firms that already have come back. Many of the so-called BigLaw firms -- the most prestigious, constituting only a fraction of the bar -- are making more profits per partner than they ever have. The same is true of some of their mid-size counterparts and specialized boutiques.
Except those establishments are doing what they do after surviving a round of layoffs. They are not rushing to recall the people they showed the door.
A few of these thriving operations even have flat revenues. They have managed to adjust their model so they do more work with fewer people. Thanks to technology, outsourcing, and the commodification of service professions, as institutions they have come to resemble the corporate clients they serve.
I say all of that as a description of what has happened, not a judgment about it. We can lament the situation all we wish, but we are compelled to adapt in any event.
I'll go further. Law schools should have reduced their class sizes long ago. Or at a minimum, we ought to have done our part to set realistic expectations. Even in a boom economy, only a minority of graduates from a minority of law schools were competitive for the entry-level slots at the one hundred largest law firms.
There are hyperbolic claims from people who seem to have no greater desire than to burn down the law school from which they recently graduated. They cannot be ignored if only for public safety.
Some -- but not all -- of their concerns are about the economy more generally.
Young people feel they have been sold on a false promise. They are not wrong.
It's possible for a twenty-five year-old who has acquired a good education, displays a decent work ethic, and who is agreed to possess a solid character -- who has, by all accounts, done everything they were told to do -- to have, through no fault of her own, very bad job prospects and high levels of student loan debt.
This challenge is not limited to new lawyers. It's also true of architects, social workers, journalists, PhDs, and liberal arts majors from all but the fanciest schools. Law happens to receive the bad press, probably because anyone enrolling in a three-year M.Arch degree (which I once considered) has been warned well enough not to do it for the money.
Thus we confuse three arguments about legal education. Rational discussion depends on framing the issues properly.
The first argument is a useful provocation but absurd upon consideration: the allegation that legal education is an utter waste of effort for all involved. Rule of law is the foundation of our diverse democracy. The enforcement of contracts and the protection of civil rights depend on lawyers advancing causes and independent judges deciding cases. We promote that concept around the world even as we come to doubt it at home. So critics of legal education are inadvertently supporting an ideology that would destroy civil society.
on a sham. That is a statement not without risks, given the high proportion of the population that takes the zodiac seriously. The Juris Doctor is not based on a hoax. The return on the investment may not be as high as the popular imagination would have had it, but legal education continues to have market value not to mention enduring intellectual content.
The second argument is the assertion that we have more than the optimal number of lawyers for our nation under law. This claim is better than plausible. The surplus of lawyers is about the absolute quantities as well as the proportions, as versus engineering and other fields.
The great irony in our shared predicament is that we actually have unmet legal needs. Prosecutors' offices, their public defender opponents, court systems requiring clerks, public interest organizations, and just ordinary folks looking to retain counsel all need competent, ethical attorneys -- including at the entry level. The trouble is they can't afford them and the lawyers can't afford to do that type of work on a sustained basis. The pipeline hasn't been built properly to bring the supply to the demand.
The third argument is over whether law school is right for you in particular. Law school is for people who want to be lawyers. Or persons who have the seriousness of purpose and a definite plan for using the training to good effect: they want to be an entrepreneur, join a family business, enter public life, and so on.
Law school isn't a good bet at current tuition rates for the one third of the class that we have usually seen: the bright college senior who isn't ready for "the real world" but tests well. Too many people take up three years of Socratic method based on what they've watched on television or in the movies. They will be disappointed if not embittered by the real world of document review and legal research in an environment that is an exquisite combination of the very boring and very stressful.
Yet we live in a cynical era. When my school, University of California Hastings College of the Law in San Francisco, announced it would strategically downsize the incoming J.D. class by twenty percent at once, some wondered if we were having trouble filling our seats or insisted that we had a secret self-serving purpose. We typically receive 5000 applications and accept only a quarter of the contenders (we're slightly down and somewhat up, respectively); there isn't any problem in that regard. We do have reasons for our decision that are to our advantage (as is true of rational decisions in general) -- to become a stronger school by every metric.
Angry individuals are demanding that law schools simply close their doors. Some institutions may well be compelled to do so. But law schools that are responsible about shrinking will be able to keep their doors open to justice. That would be in the best interests of the schools themselves, and, more importantly, their students and society.
None of us will be able to reform the system of legal education by ourselves. If we compete during this market failure instead of cooperate to reform the rules, we will regret it.