The Missing JDs

Memo to the legally educated: Look to your left, look to your right, look to the seats in front of and behind you: two of you are not practicing lawyers or judges (even temporarily).

Recent reading (Amir Efrati’s, “Hard Case: Job Market Wanes for U.S. Lawyers,” in the Wall Street Journal (which I wished I read earlier), Informed Skeptic, & Kowalski & Associates) on the swelling of the legal sector prompted me to compare the BLS’s employment numbers with the ABA’s juris doctor conferral rate over the years.  Conclusion: If everyone who has a J.D. for 40 years retires at 65, then in 2008 1,399,164 juris doctors in the U.S. were available for the 810,400 lawyer and judicial positions.  In other words, 42.08% of juris doctors are neither practicing lawyers nor judges.  Thankfully, some of these 588,764 JDs are in the positions in which a juris doctor is actually versatile or may have been a useful stepping stone towards their current occupations (especially for those who graduated 20+ years ago).  Commonly these are legislators, executives, lobbyists, corporate officers (aside from in-house counsel), investigators of various stripes, and of course law school faculty.  The J.D. total calculated here is also going to be lower due to mortality and early retirement by practitioners who started later in life and retired before 2008.

Now, doing the math, we find that by 2018 (assuming graduation levels remain constant at 44,000 per year, an assumption we have no reason to believe true) there will be 1,615,406 JDs for 910,800 lawyer and judicial positions.  The J.D. surplus will be 704,606 or 43.62% of the total, and I should add this is pretty persuasive evidence against the bottleneck arguers.

The seeming modesty of this 1.54% increase in the juris doctor surplus is highly deceptive, and we should not take it to mean that the oversupply situation isn’t going to worsen in the coming decade for the following reasons:

(1)  Plenty of experienced attorneys were already unemployed by 2008.  Some of them are much better job candidates than the inexperienced ones currently seeking work.

(2)  Not all of the >759,200 lawyers employed today are in full-time positions.  Full-time positions were more common in the past but less so now.  I have no idea if the BLS counts deferred, temporary, or contract attorneys with full-time lawyers in its totals.  Unfortunately, I suspect that’s the case.

(3)  I’ll note again that with increasing and planned law schools, despite slightly restrained growth in class sizes, the number of juris doctors graduating in the coming years will continue to increase.  Fortunately, the national population will also increase, which is why I had a slightly positive feeling upon finding that the number of graduates has fluctuated between 39,000 and 44,000 since 1993.  The number of graduates hasn’t inflated the way tuition has, which is good news.

(4)  Between productivity gains and the growing likelihood of outsourcing and contract work, the quality of jobs available to those in the surplus will further deteriorate.  In other words, the juris doctor is simply too inflexible to allow people to graduate from law school to walk into corporate executive positions or win elections.  Additionally, growth in the legal sector has stagnated since 1987, according to Efrati.

(5)  The real problem with the available source data is that we don’t know much about the surplus’s history, but that doesn’t really matter:

  1. Given that we’ve had legislators and executives longer than juris doctors have existed, we know the surplus is as old as the degree.  From the beginning, it consisted of people who (a) were simply dissatisfied with legal practice,[i] (b) became physically/mentally unable to work in law, and (c) used law as a stepping stone like legislators often do.  What we don’t know is its initial size and growth rate.
  2. From Efrati above, looking at the pop-out graphs, in 1970 the ABA’s calculated ratio of attorneys to the population was 1/572, and by 2000 it dropped 1/264.  It being 2010, we don’t know what the number is now, but it must be closer to the 2000 number than the 1970 one.[ii] Now, perhaps in the early 1970s 1 lawyer for every 572 residents was an abusive shortage and the actual number needs to be at 1 for every 200.  Why do I think this isn’t the case?  Two reasons.  (i) Because of the undue hardship exception and the tuition bubble, only law students have had any incentive to conduct a market analysis of the American legal sector.  Few if any were interested, if they had the technical knowledge or capabilities to do so.  (ii) Think about it: when was the last time a newly-minted dean of an opening law school commented that his or her new school would address the terrible attorney shortage in the region?  Among Wilkes School of Law, University of North Texas School of Law at Houston (Kowalski above), and Louisiana College of Law, none of them made this claim.  Why not? Because they had no reason to check.

(6)  Most importantly, simple arithmetic of the surplus does not account for the law school tuition bubble and the structural changes in the American economy over the last few decades.  Those who “fell” into the surplus 30-50 years ago did so in a healthier economy and were more likely to find commensurate work for themselves outside of law.  They also had way way way less debt relative to that of current graduates, and they had the option of discharging any unserviceable debt they did have in bankruptcy.  Consequently, walking away from the law today is a lot more like an expensive acrimonious divorce requiring debilitating support payments than a breakup with a high school sweetheart.

The connection between the peril of attorney oversupply and the fact of exploding tuition cannot be understated.  Attorneys trapped in these circumstances face suppressed wages, low workplace autonomy, duties incommensurate to their educations, excessive hours, low living standards, risk for drug abuse, psychological and emotional breakdown, and reduced ability to form and maintain families.  The legal profession cannot be called a “noble profession” if it ignores the tuition bubble and fails to reduce the 40% surplus by slashing the number of juris doctors awarded each year.  The ABA must assess how many attorneys are necessary for the population and act accordingly.


[i] The Law School Tuition Bubble can’t speak too much to those who walk away from the law.  Comments on other blogs depict anecdotal evidence, self-selection biases, hasty generalizations, ecological fallacies, and fundamental attribution errors.  While generalizing from any one person’s experience carries its risks, it’s likely that oversaturation and the tuition bubble have adversely affected the experiences of newer JDs.

 

[ii] Efrati’s graph wrecks Jack Crittenden’s argument against attorney oversupply using ratios of law students per 10 million Americans.

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