The Charge of the Juris Doctor Brigade, Part I: Storm’d at with Shot and Shell

Law schools to the right of them,

Law schools to the left of them,

Law schools in front of them

Volleyed and thunder’d

Introduction

During the Great Recession and the pre-housing bubble one, no law schools have closed nor have any reduced their faculties.  Because of their immunity to economic downturns it is worthwhile to now ask if there are too many law schools.  Discussion of the number cannot be separated from the number of lawyers currently in the market, but I’ll work on it anyway.  When I first wrote about the Juris Doctor’s alleged flexibility, I crafted a pool analogy, describing it so, “Imagine you’re filling a small pool with a garden hose.  The pool is the legal profession; the hose-water is new JDs being added to it.”  Adding to that analogy, the hose itself is the legal education system, specifically the number of law schools.[1] Although calculating this relationship is useful, merely looking at the hose’s rate can tell us what to expect to happen to the pool irrespective of its water level.  True, there may be areas deficient of legal services (I’m imagining the pool sitting on an incline where some parts overflow while others aren’t full), but no one seriously believes there are zero-zones.  Certainly not for long.

The federal system makes it possible to see if some regions are filling quicker than others.  Finding legal dry spots will be a goal for this blog.  You can even think of it as another ranking system to see which legal markets are easiest to enter.

The Story until Now

Starting early 2010, writer Mark Greenbaum published an opinion piece in the LA Times arguing that there are too many lawyers and the ABA’s lenient accreditation policies allow too many law schools to operate.  He proposes stricter regulations and closing of “unneeded” law schools.  The conversation continued at Above the Law (ATL), where Elie Mystal summarizes Greenbaum’s argument and provides ABA President Carolyn Lamm’s response, which cites anti-trust concerns as preventing the ABA from regulating the profession the way the AMA or ADA regulates medicine or dentistry, respectively.[2] In Mystal’s post, it’s clear that Lamm even corresponds with ATL where she claims the ABA’s accreditation body is looking into asking law schools different questions about their employment outcomes.

Regarding shutting down law schools, Lamm warns not only of the anti-trust concerns but points out that legal services consumers benefit by the legal market’s saturation.  Finally, Professor Bainbridge acknowledges Lamm’s anti-cartelization concerns but ultimately agrees with Greenbaum.  Bainbridge colorfully suggests we, “Lop off the bottom third of law schools and see if that solves it.  We could start with UC Irvine.”

But will it affect the law school tuition bubble?

Unnoticed in these fairly concise debates is Jack Crittenden’s, “A Wise Investment?[3] where the author argues that the problem is not the number of law schools but the cost of legal education.  He provides statistics showing that (1) there are fewer law schools per ten million Americans than in the past, (2) there are fewer law students per ten million Americans than in the past, and (3) the legal services sector as a portion of GDP has quadrupled in the period b’ween 1978 and 2003 and will increase by thirteen percent this decade.  Crittenden’s article is noteworthy not so much because he discusses the number of law schools but because, unlike the above-mentioned pieces, he connects that issue to rising tuition.

Fortunately for me and the rogue scholars huddling under their tinfoil tricornes who read The Law School Tuition Bubble, it doesn’t take a Michigan-trained quantitative methods grandmaster to see problems in all three of Crittenden’s points.  First, the number of law schools and law students overlooks two important considerations: federalism and productivity.  The federal system greatly affects a legal education’s value because it discourages national lawyer mobility (at least initially); this will be the primary focus of my data-gathering in subsequent posts.  Moreover, recent law schools haven’t opened evenly in states and regions.  For example, exactly one third of the eighteen ABA-accredited law schools that opened in the last twenty years are in Florida.

I have no idea why my blog’s readership is so paranoid.

Second, I’ve never taken an intro to macroeconomics course, but I know something about productivity: Legal practice in the mid-1960s (where Crittenden’s statistics begin) differs vastly from today’s (and the future’s) due to advances in information technology.  From the industrial era until I would guess the 1980s, legal practice resembled the one Herman Melville depicts in “Bartleby the Scrivener”.[4] Lawyers required massive paper-based law libraries, created their documents and had non-lawyers laboriously copy them.  Either this was all done by hand, or it was typed and copied with carbon paper, and later maybe mimeographed or photocopied.  My local government law professor, an avid historian, made an interesting point: 21st century legal practice will be more like it was in the 18th century rather than in “Bartleby”.  In preindustrial times, lawyers’ information came from their copies of Blackstone.  Today, an attorney can at worst pay an unlimited subscription to LexisNexis and access all legal knowledge from a laptop with a wi-fi connection, or at best combine Google searches with public domain publications from state court systems, passing the savings to legal consumers.  Word-processing has rendered Bartleby obsolete (an added irony for those who know the story).  In other words, fewer law schools and law students per population is something we should expect by now and going forward.  Unfortunately for this study, I have no idea how to calculate increases in information age-based attorney productivity, nor do I know of any statistics that do so.[5]

Lastly, Crittenden points to the legal service sector’s increase as a portion of GDP to show the need for the current proportions of law schools and law students to the US population.  This tells us nothing useful.  Between 1978 and 2003, the US transitioned from a manufacturing economy to a service economy.  Legal services’ proportion probably increased passively as a consequence.  Furthermore, the 2000s (and let’s hope not the 2010s) was a lost decade for the American economy due to incompetent macroeconomic planning.  Legal consumers in the Great Recession have no incentive to support six-figure-earning junior associates fresh from law school, and law firms can’t afford to pay those salaries either.  Finally, Crittenden declines to calculate whether the projected thirteen percent increase in the legal services sector will employ all the displaced attorneys, graduated and unemployed attorneys, and projected surplus attorneys in the future.  In fairness, he acknowledges that the recovery will take longer for the legal profession, but I can’t accept that he can say law school is a “wise investment” on the one hand while on the other reading the Bureau of Labor Statistic’s publicly available statement that “Competition for job openings should be keen because of the large number of students graduating from law school each year.”  I don’t think it helps any that the BLS accepts the versatile J.D. argument too.

What’s necessary now are better data covering the number of law schools per state population, and data that connect the number of law schools to state economies.  Two wonderful treats I’ll whip up in the coming posts, so get ready for some methods fun.


[1] For those of you who remember your calculus, all this is a generic related rates problem.

[2] At this point I wonder why the Justice Department isn’t punishing these and similar industries for anti-trust violations.

[3] My last post focused on his subsequent publication, “Why is Tuition Up?  Look at All the Profs,” showing that Crittenden believes legal education is suffering in a bottleneck and not a bubble as I argue.

[4] “Law and Economics” I took; “Law and Literature” I did not.

[5] Productivity statistics in this context usually refer to whether lawyers bill their hours or switch to a different revenue mechanism.  See “Increase Lawyer Productivity by Cutting Out the Waste,” “Measuring Lawyer Productivity.”  No one will miss the billable hour when it dies.

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