Whither Law School; Whither Law
“Don’t go to law school.” Many George Washington Law students have likely heard this, said this, or both. I heard this repeatedly from bar-certified friends before I entered law school, and I hear current students from our school and others tell this to their friends now. I, for one, obviously didn’t listen, but I also do not repeat it.
Professor Banzhaf sent a November 2009 American Bar Association article on this topic to Nota Bene recently, presumably asking for a student reaction. Looking at the impact of the economic crisis on the profession, the ABA wrote about the value proposition of going to law school. This article has been generating some discussion and debate amongst the faculty for a while, which isn’t surprising because now is the time that the entire profession needs to be thinking about what it means and what it should mean to be a lawyer. In their infinite wisdom the ABA essentially told prospective law students: “Don’t go to law school.”
A direct read of the article would not find that message so directly, and I am sure the author and many readers (read: professors, practicing attorneys, and many students) would say the nuanced message of the article is more akin to ‘Think very carefully before going to law school because the cost is high and the probability of economic success is instable at best.” Instead they suggested students attend cheaper schools.
It would be lovely to think that messaging worked that way, but this is a fool’s errand when speaking to young, ambitious people who want to succeed in life. Because while we all think we are talking about law school, this conundrum has a lot more to do with the state of our economy over the last several decades. Law has simply become one of the flash points because there has been relatively less change in this industry.
America’s job market has become “pay to play,” and perhaps it always was. We can see this law through the rankings system, a system that the ABA finds fault with but nonetheless continues to rule the land. Absent a direct personal connection, the best jobs go to students from the best schools. And as Professor William Henderson of Maurer noted last July, 9.75 percent of the US News ranking determination is based on direct per student spending. (Yale spends approximately $100,000 per year per student. Harvard and Stanford only spend about $80,000 each.) Professor Henderson’s focus and conclusion was that, based on spending alone, Stanford could never overtake Yale for the number one ranking, no matter the caliber of their students. My conclusion is that this reality means it takes money to make money.
Still, telling someone who is ambitious that one door is challenging and risky without showing her another door to try isn’t a successful way to keep him or her out of door number one. Students will continue to enter law schools in record numbers until the law schools do not let them in. Law schools will continue to charge high tuition if there are direct incentives to do so. So even if some smart, risk-adverse people do take the ABA’s well-intentioned message to heart, then less risk-adverse individuals will step up and take their place.
Step back and analogize for a moment. Telling Americans not to buy homes they could not afford was not very effective. Telling banks not to take on risk they could not manage was not very effective. Or even more simply, telling teenagers not to have sex is not very effective. The individual will always believe that they will not bear the brunt of collective risk; even if they do, they may find the possible rewards too alluring to turn away.
Because while opportunities seemingly exist, who wants to be left behind? The lessons of the last few years, stemming all the way back to the 1980s, is that those who succeed take are those who take risks. Many who take risks do not succeed, sure, but they only path to real victory is paved with uncertainty. And given the number of people who are falling out of the American middle class and losing pensions, it is hard to imagine a future of simple, risk-adverse stability. ‘Betting the farm,” seems more appealing when the farm is unlikely to be worth very much in the future.
Working through to this conclusion, though, there are two big picture issues I do not hear or see discussed much in the halls of the law school or in blogs and articles on the topic.
First, I think we forget that the law schools did something very noble in the last few decades. They threw open their doors to diversity. They may not have changed the structure for getting to success once in law school, but they created a footpath for those who were traditionally shut out.
The law schools allowed minorities, women, and the economically disadvantaged to believe that they too could succeed in this field. What we see today on the gristmill are the hopes and dreams of those who before did not dare to dream. Our numbers are up, but if law school numbers go down, who will be the first to be shut out? Law schools are not likely to cut their diversity ratios nor should they, but when the message from the ABA becomes one of “stay out,” those who were traditionally shut of the workforce out before may be the first to disappear from law school.
To their credit, many firms also worked hard to embrace diversity too. But as we saw in the so-called bloodbaths of 2008, which created our now-labeled lost generation of attorneys, minorities were the first to leave firm work, and women all too often became non-equity partners if they stayed. We have a mismatch, and until there is more coordination between the job market and training, more and more well- trained intelligent people are going to fall through the cracks.
Second, coupled with the reality that people will not stop coming to law school under the status quo, the profession calls out for structural change. There are many options for this. The first would be painful: the ABA could cut back school accreditation. Better, we could start to think about creating a tiered system of certification. We continue to worry about law schools, but we don’t really reconsider the fundamental institution of the bar. The world has gotten bigger and more complicated, compounded year on year. Most other industries have had to stand up and take notice. And yet, there remains a cookie-cutter approach to being bar certified. We love the myth that any intelligent attorney can practice in several different subfields throughout their life. Reality suggests, however, that the law is a profession of niches, often niches that people simply fall into without any real choice.
Thinking about the same thing another way, international human rights lawyers do not need the same training as patent attorneys. But they both need more depth of experience in their own areas of expertise, and they would both benefit from mentoring or apprenticeship. Instead of closing the doors, we should be thinking about how to open other ones. Otherwise, the dreamers who have little hope elsewhere will continue to clamor to enter.
To address this reality, we can break up education, certification, and law practice in any number of ways. Which ways, however, would require significant thought and discussion, but it may be the future of the law. Because the alternative-continuing to believe that attorneys should be jacks-of-all-trades is tantamount to burying one’s head in the sands of time. That, unfortunately, is unlikely to forestall change; it will only make change less manageable and more surprising.
Bottom line: admission and tuition rates are a symptom of something bigger within law that will need to change. Change is hard and painful. But until we start addressing deeper fundamentals, the symptoms will rage on.
These symptoms hurt more now because we are all experiencing America’s second Great Depression. Take issue with that if you like, but 2010 was the worst year for jobs since the first Great Depression. America, as a whole, is hurting. Stepping back a little, what would someone do if they didn’t go to law school? The soundest investment anyone can make may be in themselves and in their education. Loans may come due, homes may be foreclosed, and we all may be out of work for endless days. So is everyone else, but at least for now no one has figured out exactly how to repossess a law degree.