The Law School Problem Is Vertical, Not Horizontal as Most Law Professors Believe

I take [the LawScam critique] to be that legal education is hoodwinking prospective law students into law school and conspiring to produce an oversupply of lawyers that face diminished job prospects and crippling debt loads. –Usha Rodrigues (Associate Professor of Law, University of Georgia), “ScamLaw: The Master’s Forum,” The Conglomerate

So, if I’m right, then the argument is: third and fourth tier schools are misleading students, it’s criminal, shut them down. I take it that this is a clean solution to the LawScam: remedy the oversupply of new lawyers by cutting it in half.  I’m not advocating this solution, but just observing that it seems like that’s where you end up if you follow the LawScam argument to its logical conclusion. –Rodrigues, “ScamLaw: Paternalism or prudence?” [emphasis original]

Rodrigues’ statements are a significant step ahead of mainstream legal media coverage of scambloggery, exemplified by Karen Sloan’s editorial on Lucille Jewel’s scam blog article:

It’s difficult to gauge the effect the scam blogger movement has had on the larger debate over the transparency of law school employment data. The American Bar Association recently moved to require law schools to report more detailed job information in its annual questionnaire. However, that push involved a number of more traditional advocates, including law professors and Law School Transparency, a nonprofit group formed by two former Vanderbilt University Law School students.

To which I observe that few if any of the scam blogs I know of prioritize transparency over discouraging people from applying, closing superfluous law schools, and obtaining justice for student debtors. Indeed, I believe scam blogs have been successful in their first objective. Specifically, the wrecked economy did not contribute to as significant a rise in law school applicants as in the past, and according to the LSAC’s preliminary estimates, 2011 is witnessing a law school applicant nosedive. The LSAC’s preliminary number of applicants per law school has dropped to what it was in prosperous 1998, and when compared to Official Guide estimates and Census data, the number of law school applicants per capita is at an all time low going back to 1984, though it’s just one hundredth of a point lower than 1985. Such is the power of the Internet.

The relentless reality presented by scam bloggers persuaded LawProf to begin Inside the Law School Scam (ITLSS), which in turn prompted Rodrigues and her colleagues, the The Conglomerate’s “Masters,” to hold a forum titled, “ScamLaw.” In my opinion, the Masters’ views by and large speak for the legal academy’s understanding of the situation, including what solutions will work. The results discourage me. Here are my criticisms.

I. ScamLaw Misses the History of the Scam Blog Movement

Alarmingly, ScamLaw attempts to reset the clock, setting ITLSS to Year One. This is a wrong move because scam blogs are not a new phenomenon and have existed since at least 2007 with WSJ Law Blog’s Loyola 2L, Temporary Attorney: The Sweatshop Edition, and gifted satirist Scott Bullock’s Big Debt Small Law. Aside from a brief mention of the “burgeoning field of law scam blogs” by Brett McDonnell, ScamLaw brazenly ignores the scam blog movement’s history, which I think contributes to the Masters’ disappointing discussion.

II. ScamLaw Misses Other Academics’ Discussions on the Topic

Sanitizing history, though, is only one of ScamLaw’s problems. Its lack of rigor is more unfortunate, and by focusing on LawProf and ITLSS, it misses an excellent discussion of the legal education system’s pathologies, conducted not even by scam bloggers but between Washington University’s Brian Tamanaha and Loyola Los Angeles’s Theodore Seto. I summarized Tamanha’s and Seto’s discussion and recommend readers skip ScamLaw’s corpus and read that instead, both because it’s better and their discussion illustrates the problems as I see them, making it a good reintroduction to the LSTB for newer readers.

III. Horizontal and Vertical Perspectives

The problem with the ScamLaw Masters’ perspective is that they see the problem as horizontal, as between and among law schools. They do not see it as vertical in terms of the interests of the various parties: prospective students, current students, graduates, lawyers, law schools, the ABA, the profession, and the financers (banks and ED). I see it as vertical, so do scam bloggers and a handful of law professors whose absence ScamLaw sorely missed.

For example, Christine Hurt, whom I should add helped birth the LSTB with her 2010 essay, “Bubbles, Student Loans and Sub-Prime Debt,” presents the Masters with the following two questions:

1. So, what are law schools supposed to do? … [A]t some point we need to talk about the solution, besides “more transparency,” which seems to be on the road to happening.

2. Relatedly, what are law professors supposed to do? … [H]ow do we “withdraw from the conspiracy” (besides just blogging about it).

I find these questions’ assumptions bold. Do universities have the power to change their behaviors? Do law schools? Do these questions even address the situations of alienated graduates and lawyers? What about all the law school debt? Once you assume legal education can be fixed by law schools, then transparent post-graduate employment data promptly follows as the obvious solution. To her credit, Hurt wrote this before the ABA Section of Legal Education decided against asking law schools whether their graduates are employed full- or part-time and whether their positions preferred a J.D. or bar passage. However, I have voiced my doubts about transparency, and I’m sure I’m not alone.

Next, ScamLaw spends an inordinate amount of time discussing entry barriers, such as when Alan Meese wrote, “A system built on subsidized debt and expected perpetual growth in legal employment may not be sustainable. I welcome this debate, particularly its focus on the barriers to entry bolstered by the ABA’s accreditation requirements.” I see this as a psych-out. If the problem is subsidized debt and expected perpetual growth, aren’t the subsidies the problem? Sure, licensing practices are calibrated for an archaic mid-20th century legal profession that idolizes generalized solo practitioners, but the debt problem initiated the discussion.

So, we return to Rodrigues’s aborted suggestion: unilaterally close the bottom half of the law schools. The problem? Whose bottom half? U.S. News’s?? Why should the profession ratify a magazine’s rankings? There are two more problems:

(1)  There are no sacred cows:

For instance, public law schools use the following line of reasoning to justify their existence:

(i)  We need lawyers

(ii)  Lawyers are expensive

(iii)  Government can subsidize expensive things so we can have them

(iv)  Government can subsidize public law schools along these lines

(v)  Public law schools can make inexpensive lawyers

(vi)  We have lawyers

Except (i) is false. We have enough legally educated people to serve the country’s needs. (ii) is debatable. Plenty of paralegals could probably stand before a court and argue a motion just by watching their bosses do it. Moreover, given how much of legal education is memorizing theory and applying it in a blue book, much of that can be self-taught or learned via distance learning. (v) makes no sense when state governments are slashing subsidies to public law schools. What’s the point of UVA or U of Michigan if their students are paying private school tuition rates? The California schools, ASU, and U of Minnesota are coming up behind them. Rather than cut the subsidies, governments might as well do everyone the favor of just closing unneeded programs. Does anyone really think the subsidies will return when the economy starts growing again?

Also, why should we believe that highly regarded law schools provide more value than lesser ones? Just because they charge more? More likely, graduates from top-flight programs could probably pass a bar exam by self-study and learn the trade via apprenticeship. Arguably, the best law schools sell prestige more than substance.

(2)  There is no free lunch.

Behold the Law School Tuition Bubble’s mantra:

The onus is solely on the law schools to demonstrate that they are adding value for the privileges society gives them. If they fail, then we take away their national accreditation, non-profit tax status, grants and subsidies, and access to any student loans that are not dischargeable in a Chapter 7 bankruptcy proceeding.

I’m perpetually nonplussed that the presumption is on reformers to generate solutions. Rather, university officials should be explaining to legislators why they should have access to student debt or why the state government should support public legal education programs, much less secondary campuses. I doubt it will be long before they will.

I don’t think law schools can change themselves so long as they have easy access to government student loans, irrespective of income-based repayment. Even deans of public law schools must toe their institutions’ lines lest they be asked to resign like Baltimore’s Phillip Closius. Neither public nor private law schools seem capable of organizing a boycott of U.S. News, which would help. Perhaps private independent law schools—the ones facing lawsuits from their students—could forgo student loans and offer their students human capital contracts, for example giving them free educations in exchange for ten percent of their income for ten years. If they did that, they’d fail. The jobs are simply not there to keep the financing model viable.

IV. Vertical Solutions

The scam blog movement emerged because law schools took the lead position for the profession by promising careers they couldn’t warrant existed yet charged too much to obtain. The causes of “law career decay” were not wholly in law schools’ power nor in the profession’s (e.g. increased income inequality over the last thirty to forty years). However, scam bloggers are acutely aware that they do not directly benefit from increased transparency, leaving the Masters’ discussions frivolous to them.

While I don’t think internal solutions are possible, here are a few things the profession should do as the problem worsens.

1). Bankruptcy protections must be restored to student debtors, and the Direct Loan Program must be terminated. The ABA’s annual summer resolutions avoid this, further alienating recent graduates. If law professors like Christine Hurt want to help, they can use their government connections to effect this change, and the public will support those who incorporate student debt into reform discussions.

2). The profession must admit that it stood by as the law schools overenrolled students and that many recent graduates will never meaningfully see the inside of the profession. Brian Tamanaha and LawProf have both written on this; they are on the right track.

3). The profession needs to update its licensing system to accommodate the reality that much of law practice is specialized along practice lines. Ultimately, this means the question of legal education will have to be rehashed from the ground up, making suggestions of reducing law school to two years arbitrary.

The truth is that law degrees have been unable to provide long-term career stability for many, many years. Now, the legal academy has twisted into one of the most ossified institutions in American society, a force of inequity and deflation in the economy, transforming prosperity into debt. Contrary to Rodrigues’s cautiousness illustrated above, no solution involves 150,000 law students spending 3-5 billion dollars per year to attend 199 law schools that employ 22,000 people by the end of the decade. That means law faculty who today passively share the views of The Conglomerate’s Masters will tomorrow lose their jobs. Some scam bloggers might delight in this. I will not.

The ray of hope? Separate from the prospective law students who forgo legal education and student debt activists, law students have the power to act. They can walk out and demand tuition reductions and accreditation reform. They have little to lose.

And they will be heard.

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7 Responses

  1. “I’m perpetually nonplussed that the presumption is on reformers to generate solutions.”

    Entitlement and delayed punishment operating by proxy. If you’re on top of a hill, you shouldn’t have to justify how you got there or why the hill exists, after all. Of course those raping the system are going to put the burden on someone else to explain if there’s an alternative to raping the system. It just gives them more time to keep going.

    Great entry. There shouldn’t be any doubt that the problems are vertical. Law schools would rather shoot down allegations of horizontal conspiracy because it makes the critics look batshit crazy. I doubt anyone – anywhere – has argued there’s a “conspiracy” between law schools, and yet that’s what these navel-gazing narcissists take out of it.

  2. Masterful. Everything you wrote. I also agree the burden shouldn’t be on the victim but the perpetrator.

  3. Closing all third and fourth tier schools is arbitrary. Everyone knows that the bottom two-thirds, if not three-quarters, of the first and second tier schools are in for life. Except for the very top, very expensive very top, that is just how it is. There are perfect examples of schools to close across each of the tiers. I would like to see a much higher rejection rate for all of the schools. It is a mistake to assume, however, that this is just a law school problem. How many of the law school applicants are applying simply because they already have an otherwise worthless undergraduate degree? The problem is that there are too many applicants in the first place. That is largely student driven. Bankruptcy protection should be restored, but a debtor shouldn’t be absolved of responsibility. The financial system will not be able to absorb this blow. At some point, assuming that a law grad finds comfortable employment, a percent of that income must pay off the debt. There is no free cake.

  4. http://www.lawschool.cornell.edu/research/JLPP/upload/CJP102-Macchiarola-Abraham-2.pdf

    This article is entitled, “Options for Student Borrowers: A Derivatives-Based Proposal to Protect Students and Control Debt-Fueled Inflation in the Higher Education Market.” It appeared in the 20th volume of the Cornell Journal of Law and Public Policy. The authors actually cited to THIRD TIER REALITY, in footnote 260.

    The main point of this 72-page article is that the burden should be placed on those who benefit from the system. After all, student loan companies and law schools are in the position of the well-informed, repeat player. They make serious cash, in the current scheme. Therefore, the student should not bear the brunt of the risk – which is now the case. Students simply do not understand the job market, whereas the schools know how to play the game. These “institutions of higher learning” can also fudge the numbers, thereby providing an overly-optimistic picture of the industry.

  5. [...] debt with these new graduates having diminishing employment opportunities, as Prof Steve Harper, among others,  recently noted. Law schools having served capitalism well, particularly their own capital, [...]

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