Dialogue with an Affable Law School Dean, Part 2

Read Part I here

When we last left our hero, Dean had just asked him why reputation should be the sole standard for any given law school’s continued existence post-tuition bubble.  LSTB was also moments away from deciding to accept the dean’s offer of the remaining portion of his clementine.  Will Leichter take it??  FIND OUT NOW, IN THE CONCLUSION OF “Dialogue with an affable Law School Dean, Part 2.”

**********

LSTB reaches to accept the last orange segment in Dean’s extended hand:  Why thank you.  The market may be unfair or arbitrary, but what you’re proposing is a contentious internecine debate as to which law schools get to live and which ones don’t.

Dean, mulling:  I see your point, but I still think you’re over-relying on the market.  You know full well that prospective law students are overconfident in their abilities.  Even with transparency, what’s to stop them from applying anyway?

LSTB:  I trust they’ll get the impression of which law schools are risks and which aren’t.

Dean:  An impression?  Based solely on a few years’ statistics?  I see two problems with your argument.  (1) There’s too little information for anyone to make a reasonable call.  Law schools with predicting enrollments and law students in where to go if accepted.  The FDIC prevents bank runs by bailing out the depositors.  When there’s a run on a law school, there is no legal education deposit insurance to protect their investment, unless state governments bail out public schools or alumni shore up the private ones.  Will students be able to transfer and continue elsewhere?  Will they be able to go on IBR and walk away?  What will the Department of Education think?  (2) You’re inviting the legal profession to ask the question, “How many unemployed graduates is the profession willing to tolerate each year?”  10%?  5%?  Zero?

LSTB:  Anything above zero isn’t exactly fair given the nondischargeable tuition investment, nor would it be a stable equilibrium if there’s an oversupply problem due to high unemployment.

Dean:  This is one more reason I support a top-down solution to the problem and feel no need to altruistically participate in the transparency process.  You can imagine that playing records custodian isn’t something that I want our career services personnel to do, and it won’t be free.  Here’s another problem you’re probably not aware of but should be since you’re concerned on the return-on-investment of a legal education.

LSTB, raising an eyebrow:  Oh?

Dean:  Graduate employment data won’t reflect the overall value of a legal education, and it’ll be muddied by the state of the general economy.  Imagine it this way: Say I set myself up along the side of a track.  I promise to take a picture of the track one second after the race begins.  Then I’ll use that to tell the public that this is an accurate estimate of how fast the runners are.  Even if I do this for multiple races with the same runners, I’ll collect a lot of data that can only be useful longitudinally.

LSTB:  Yeah but the purpose of the transparency movement is to give prospective law students a better indicator of how well they’ll be doing when they graduate.  For its part, Law School Transparency proceeds from the first premise that prospective students lack sufficient information to make a rational decision.  Its goals are fairly modest, but just because it’s imperfect doesn’t mean we shouldn’t support it.

Dean:  Hmm…What’s the term legal education reformers use?  “Lost generation”?  How does transparency help them?

LSTB:  Wages.  If salaries, especially starting salaries at the lower modality, begin rising, then we know that the legal market is absorbing people with juris doctors.  Once starting salaries get high enough, JD holders in other fields will move back into law.

Dean:  I hadn’t thought of that.  Again, wouldn’t an independent economic audit of the profession give us the same results more quickly?

LSTB:  I suppose, but wait, we’re discussing a tuition bubble, but aren’t you at all concerned about your job?

Dean:  Not really.  Transparency regulates outputs not inputs.  You might see more law schools allowing higher 1L courses with a harder curve that flunks people out.  The 1Ls then pay for the 3Ls and we maintain our practices.

LSTB:  That’s just wrong.

Dean:  Hey, if they don’t want to flunk out, they don’t have to enroll.  In fact, it gets even better.  As the number of law students decreases nationally, law schools’ leverage over the profession increases, so don’t expect any serious substantive reforms in legal education to make graduates more competitive on the market.

LSTB:  Right, but then people will start keeping track of attrition rates in various rankings, and they’d be easier to measure because law schools can easily monitor those data.

Dean:  That wouldn’t necessarily keep people from applying.  Law schools are already criticized for doing similar things, such as conditioning scholarships on GPA and then placing all students with scholarships in the same sections.  They could just bring this aboveboard.

LSTB, eyes wide:  …

[Dean leans forward avoiding the clementine peels on his desk]

Dean, speaking softly:  Matthew, so long as formal legal education precedes entrance to the legal profession, and the ABA doesn’t strictly regulate law schools and graduate output, these practices will continue.  [Dean gently smiles] Gatekeeper’s privilege.

LSTB:  Oh God.

[Dean leans back, wrapping his clementine peels into a plastic bag and then throwing it into the wire mesh trash can]

Dean:  Matthew, I think we’ve both learned much from this discussion.  I certainly enjoyed it, and maybe we can do it again sometime.

LSTB:  Yes.  Very informative.

[LSTB awkwardly shifts his weight as he sits up and leaves the office.]

LSTB:  Keep your door open or closed?

Dean:  Closed please.

[LSTB quietly shuts the Dean’s office door behind him as he steps out.]

**********

Reflecting on my dialogue with the dean, I have two thoughts.

(1)  I’m reminded of Professor Bainbridge’s response to Mark Greenbaum’s LA Times op-ed from earlier this year:

My suggestion? Assuming we aren’t going to have real free markets for legal services, but will continue to have such barriers to entry as ABA law school accreditation, bar exams, and so on, which presumably would solve the problem, we need to constrict supply. Lop off the bottom third of law schools and see if that solves it.

His statement illustrates the problem with transparency as the sole response: it sounds like a free-market solution, but it really isn’t.  Markets require predictability, and the face-off between applicants and law schools concerns me because it might take years to reach a safe equilibrium.  I doubt either group can account for the state of the economy, gauge enrollments, calibrate tuition adjustments, and foresee the future of the profession.  I’d be happy to be wrong, and I’m curious if anyone disagrees.

For some reason I thought of Susie Derkins applying to law school.

(2)  What should we think of Dean’s (and Professor Bainbridge’s) top-down solution?  I apologize to you, reader, for not calling him on this, but superficially Dean’s general argument against transparency is to pass the responsibility and make someone else solve his law school’s problems.  However, though transparency will short the bubble, which we should like, it doesn’t change the reality that the judiciary is the real gatekeeper to the profession–no matter what law schools say.  This I will write on later.  As for the efficacy of top-down solutions: Off the top of my head, I can only think of three calculations for how many law students would have to be sent away or law schools would have to close to reach an equilibrium.  Anyone know of any others?

  1. Prof. Bainbridge: Lop off the bottom 1/3rd (U.S. News’, I’m guessing) of the law schools [UPDATE 1/25/2011: Professor Bainbridge recently revised his number up to the bottom 100 law schools. (!)]
  2. Jerry Kowalski: ½ to 2/3rds reduction for a few years
  3. Frank the Underemployed Professional: 60% reduction to stabilize the system; 75% to help the market absorb the Lost Generation

I’m curious what kind of lawpocalypse transparency advocates predict, or if they see one at all.

Oh, and in case you were wondering, Dean’s clementine was still fresh but tasted a little warm.

Dude needs to keep his lunch in a fridge.

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