I recently exhumed Jack Crittenden’s March 2010 bottleneckus maximus piece defending the legal education system, “A Wise Investment?” in The National Jurist. Rereading it shows just how badly he misinterpreted the data he gathered, and rather than dismember all his zombie arguments like I’m Ash from Evil Dead II, I’ll limit myself to his mischaracterizations about law schools and law students per capita. I’ve looked into this in the past, but this post will be more thorough. Why is this relevant for contemporary legal education’s ills when yours always is throwing the 240,400-between-2008-and-2018 number at his readers?
(1) Crittenden explicitly argues that the problems new attorneys face are recent in origin:
Law schools were not producing more attorneys than the market could bear prior to the recession, and experts expect most to still land full-time legal jobs. (36)
Reading this makes me fear that we killed the bottleneck argument but couldn’t bring ourselves to dismember its corpse. We buried it…God help us. We buried it in the earthen floor of the fruit cellar! (Violent and possibly NSFW)
Have I told you recently how much I cherish Bruce Campbell?
(2) I really, really, enjoy graphing and animating stuff.
It turns out the Census Bureau doesn’t actually have a single site containing annual resident population estimates going back through the decades. I pieced them together from here, here, and here. I highly doubt the Census Bureau includes Puerto Rico in its annual estimates, so this will be inaccurate but precise. That said, from the outset, I trust that Crittenden’s following chart is accurate. I do criticize its inconsistent x-axis though.
Here’s what Crittenden says about it:
“[T]here are fewer law schools today per U.S. resident than at almost anytime in the past 45 years …The numbers are not much different when you compare the number of students to population. There are currently 5.0 law students for every 10,000 Americans. In 1975, there were 5.42 law students for every 10,000 Americans.” (33) (emphasis added)
As you can see, 1965 and 1975 differ greatly in law school years, and Crittenden shouldn’t’ve put the two together. The problem, though goes deeper. What accounts for this sharp rise in law students per capita in the mid-1960s?
Glad you asked.
Let’s start earlier. Lemme show you law schools per capita, including all non-ABA law schools (ex. JAG school and correspondence schools) because they’re critically important. The biggest problem in researching all law schools, law students, and tuition, is that there’s no centralized authority to give us this info. The ABA gets a ton of shit for its schools’ employment data, but no one has a clue what’s going on in the dozens of non-ABA or California-accredited/unaccredited law schools, including the ABA-renegade Massachusetts School of Law. Incidentally, this was the first thing that crossed my mind when Sen. Boxer sent her letter to ABA president Stephen Zack. She should’ve cc’d the California bar while she was at it.
Here’s what we get:
Verily, the number of law schools per capita has dropped over the decades, but note the bump that started in the late 1960s for later. It’s also worthwhile to see that the drop hasn’t been consistently distributed nationwide. Check out this animation of law schools per capita by Census Divisions, which sets white to the national average in 1960.
The Pacific (really California) is crammed with law schools (though I *think* the non-ABA ones’ enrollments tend to be smaller), but just look at New England! LOOK!! It’s the only Census division that gains law schools per capita above the 1960 average while others shed them. I predict that many New England law schools will close in the near future.
(* I confess that I excluded Cooley’s three branch campuses (founded in the 2000s) from all these calculations. Including them wouldn’t've thrown the East North Central states into the red but it would lighten its blue hue. I believe the ABA counts its branch campus students in its national enrollment calculations, so the distortion should be minimal. I’m also unsure if Cooley’s Ann Arbor campus has received ABA accreditation yet.)
Here’s an absolute growth graph:
If you squint, you’ll see that the ABA appears to pull law schools into its orbit starting in 1950. This next one is more illustrative, but beware that the y-axis starts at 68%.
Whenever the percent of ABA-accredited law schools drops, it means new law schools are being established, as law schools never leave the ABA system. The 1970s saw a wave of law school creation, as did the 1990s, but most of those were non-ABA California ones.
Sadly, the ABA collects law school enrollment and graduation data only going back to 1964, I divided them by the resident population as Crittenden does, though I think he counts all law students; I only count JD-candidates, fearing the LL.M.s are forsaken.
Given that law school has always taken three years for full-time students, and given that some are part time (16.5% in 2009, and they’d be double-counted or more in subsequent years) and some drop out, in your typical academic year the ratio of enrollments to graduates should be somewhere above 3.0 but probably under 4.0. The ABA system of 1964 had obviously just accredited some non-ABA law schools and was “spending down” their enrollments. There was another spike in the late 1960s. However, beginning in the 1970s, enrollments per capita never drops back to 3.0 per 10,000 residents. It may have even been lower before 1964. Now, your inner Professor Crittenden may say, “Look, the number of law students per capita has always been around 5.0. Either you’re just detecting relative ABA growth ‘at the expense of’ non-ABA schools, or it accredited some big law schools.”
My reply: Between 1968 and 1976, the ABA accredited 23 law schools, and most of them were founded after 1960 if you compare their accreditation years and foundation dates, so the ABA’s growth came from the absolute law school growth and not from relative growth as it did pre-1950. As for the “big law schools” hypothesis: in that same period enrollments grew from 61,084 to 111,047 (no law schools were accredited in 1976, yet enrollments grew by 6,000 nonetheless). That’s more than 2,000 students per “big law school” compared to 442 per school at the others. As of today, only Cooley has that kind of capacity, and that’s after opening three of branch campuses in the last decade. Here’s what the ABA system looks like if we set 1964—one of the last three years ABA enrollments per capita was below 3.0—to one:
The monster we’ve unearthed in the fruit cellar isn’t so much the strain of law schools that opened recently or have been proposed by brain dead university officials and other elites; rather, it’s the few dozen that opened in the 1970s and the enrollment surge that accompanied them. The most parsimonious explanation for this is that despite the Vietnam War, which I think affected enrollments in 1969, the ABA system in the early 1970s grew, I believe, due to the Higher Education Act’s new student loan program and a sincere desire to make legal services more affordable to the masses. I wonder if anyone asked if it was really necessary.