Instead of the clichéd approach of finger-pointing between and among law schools, employers and the bar, the Task Force recommends an approach in which the various sectors and stakeholders work together to undertake the professional formation of young lawyers. [Report from the NYSBA Task Force on the Future of the Legal Profession, Page 38]
On Friday, the New York State Bar Association’s (NYSBA) Task Force on the Future of the Legal Profession published its report on the NYSBA website. Unlike your typical ABA committee, the Task Force wasn’t crammed full of law school deans along with token general counsel; only five of fifty-eight members were law faculty, including New York’s legal education prognosts, Prof. Rachel Littman of Pace and Dean Richard Matasar of NYLS. This is as real a deal as you’ll get from a very large non-integrated state bar association.
Excluding the executive summary, the Task Force devoted about two-fifths of the 102-page report to legal education and lawyer training, and it has some worthwhile ideas like mandatory mentoring. Skipping to the meat on pages 66-67, it appears the Task Force finds plenty of poo to fling around. I’ll itemize my response:
Helping New Lawyers Form a Professional Identity
IV. Attending to the National Debate Regarding Law School Debt
Recent commentators within and outside legal education argue that the current structural and business model of law schools is no longer sustainable. These commentators call attention to the burden our current economic model places on unsuspecting law students while law school administrators point out the stranglehold that U.S. News & World Report’s criteria and rankings have on law school finances.
(1) I find it hard to sympathize with the law school administrators’ hatred of U.S. News. Law schools’ core business is training lawyers, not earning a magazine’s approval.
(2) Whenever someone says “X” is unsustainable, I take it seriously, whether it’s someone warning about an $8 trillion housing bubble or someone mistakenly thinking the national debt is going to wipe us out. Such claims demand prompt, correct responses. So, the NYSBA Task Force’s shoulder-shrug at people claiming the legal education system is unsustainable confuses me. If true, the Task Force should be sounding the alarm before thousands of students matriculate to New York’s fifteen law schools this fall. If not, the Task Force needs to say why not.
Escalating law school tuition, drastically increased student debt, and the high probability that most debt-burdened law graduates will not quickly obtain high paying employment has not only created an economic nightmare but a real moral and ethical challenge for law schools and the profession. [Emphasis original]
(3) Spot on. Watchya gonna (recommend the NYSBA) do about it? Answer further down.
Law schools must continue to examine the real cost in human terms that flows from new graduates carrying such large debt loads and ensure more realistic financial expectations for those entering law school by providing more transparency in employment data. However, a balance needs to be struck. Law schools cannot afford to be saddled with additional, costly regulatory requirements, nor should applicants from disadvantaged economic or diverse social backgrounds be discouraged from entering the profession in the attempt to create “realistic expectations.”
(4) “Continue to examine”? The truth is that no matter how much a law school frets over its debt-burdened graduates, it took on none of the financial risk—not just the information risk that transparency attempts to equalize—but the financial risk of its graduates’ failures. Law schools aren’t going to examine “the real cost in human terms” any more than they already do. Either their graduates are employed or they’re not, and law schools get paid from current law students not former ones.
(5) I’m not here to do the transparency people’s work for them, but as far as I know, they just want the raw data law schools already collect and transmit to NALP made directly available to applicants. This is not a “costly regulatory requirement,” especially if a magazine can have a “stranglehold” on their finances.
(6) The “economic or diverse social backgrounds” stuff is a red herring for a few reasons:
- The deans of the non-ABA-accredited Massachusetts School of Law tout they can do the job of a private law school for $15,000 per year. I’m not here to do MSL’s work either, but it’s contradictory—not to mention confusing—for the Task Force to claim that law schools are strapped for cash appeasing U.S. News and then lament how we need the poor and the diverse to pay as much as law schools feel like charging to enter the profession.
- “Realistic expectations” does not mean patronizing the poor and the diverse: why would they want to enter a profession that doesn’t provide them with upward mobility or meaningful social visibility? Why would they want to jump into an “economic nightmare”?
- If law schools were so concerned about the profession’s accessibility, I wholeheartedly invite them to change their business model from unlimited federal debt financing to equity investment such as human capital contracts. Law schools could be paid from ten percent of their graduates’ incomes for ten years after graduation. What would that do to those law schools that care more about their U.S. News ranking than providing a valuable education? To quote Michael C. Macchiarola and Abraham Arun, “If a school doubts its own value proposition, it might think about becoming an unschool; and we will all be better off…No one should be overly sympathetic to the plight of these schools; expensive, lower-tier schools in their current form never represented a good deal for non-upper income students to begin with.” [129-130]. Ouch.
At the same time, law firms that decry the lack of practice-ready law graduates need to examine whether their own hiring criteria are based on elitism or fundamental lawyering ability and skills. For example, do large-firm employers request interviews with those law students who have excelled in clinical experiences, or do they simply emphasize more heavily those who have the best GPAs from the most prestigious institutions or who have law review credentials?
(7) I suspect the Biglaw example is another, albeit unintentional, red herring to distract us from the oversupply problem. It’s one thing for employers to capriciously hire graduates based on pedigree when others are demonstrably better (theoretically the market would correct for their incompetence), and I suspect this happened until the recent past. It’s another thing for employers to use credentials to filter hopelessly large stacks of resumes to save time. Here’s something for law school administrators to internalize as they’re being choked by U.S. News: Legal employers don’t need you; they are under no obligation to hire all of your graduates no matter how qualified they are, and if you fail, as I predict many will, you will not be missed.
The Task Force’s recommendations aren’t bad (the uniform bar exam and psychometric testing are good ideas [page 69]), but it’s all you’ll get from an authority without power. As for what the Task Force thinks the NYSBA should do about its “economic nightmare and moral and ethical challenge for law schools and the profession”: participate in the debate and ask the law schools to be transparent.
V. Support Appropriate and Realistic Entry Into the Profession
15. The Task Force recommends that NYSBA closely monitor the issue of law student debt. The issue of debt, combined with the decreased hiring due to the economic downturn, has a tremendous impact on the future of the legal profession. NYSBA should play an active role in all aspects of the national debate regarding law school debt and full disclosure of tuition costs and job prospects, including working cooperatively with other entities to develop ways to reduce the impact of student debt on the future of the legal profession and to promote greater transparency regarding the cost of legal education and prospects of employment.
18. All law schools should provide accurate and meaningful information to entering and current students regarding the job market, career options, and their placement of recent graduates both at the J.D. and at the LL.M level. Self-reported information should be audited and include data concerning recent graduates hired by private sector employers, including size of firm, starting salary, type of position (e.g., partnership track, staff attorney, temporary, other), geographic location of employer, substantive area(s) of practice, and diversity, particularly at the leadership and equity-partner levels. [Pages 71, 72]
I’d like to see the NYSBA play an active role in the national debate regarding law school debt.
If you can’t tell whether I’m being sarcastic, the good news for you is that I can’t either. Bar association heavyweights have had plenty of time to educate themselves on the law school debt crisis, and while the Task Force should’ve mentioned Income-Based Repayment as an alleviation, there really isn’t a lot left to debate. No one seriously believes law schools are undercharging their students, aside from law schools like Stanford recently. Nor does anyone seriously believe demand for legal services will increase rapidly to accommodate all the juris doctor-holders who want to enter or desire reentry to the profession.
As for transparency, I’ll say it again: law schools must take on the financial risk of their graduates’ failures not just the information risk. Even with full transparency post-bubble, there will still be underemployed law graduates whose tuition effectively subsidizes the educations of their successful classmates. Admittedly, I’m more partial to human capital contracts than Macchiarola and Arun’s 10-year put option, but the effect would largely be the same. Changing the financing mechanism actually makes transparency easier as it would be a natural function of law school revenue collection.
After listing some more admirable recommendations (I don’t mean to belittle them, but I can only write so much), the Task Force backstabs its readers’ in the dignity:
VII. Work With U.S. News & World Report
21. The Task Force recommends that NYSBA meet with representatives of U.S. News & World Report to discuss current methodologies and to proposed changes to the U.S. News methodology that are aligned with improvement to the profession outlined in this Report. [Page 73]
Bob Morse accompanied by his merry half-dozen subordinates create nationwide rankings for all of higher education. Such is his power that the NYSBA Task Force feels it’s necessary to negotiate with him over his ranking methodology. Of all the players who least deserve a seat at the table when discussing the Future of the Legal Profession, it’s a magazine, yet the Task Force thinks the NYSBA has some kind of leverage over Bob Morse. It does not. U.S. News will keep doing what it can to sell magazines, and Bob Morse has no interest in the legal profession’s future beyond his own and his employer’s valid profit motive. If his rankings have a “stranglehold on law school finances,” it’s because law schools can raise tuition indefinitely without bearing any risk for failing to provide value. Paragraph 21 indicates that the Task Force doesn’t want to consider that.
The New York bar’s situation isn’t enviable. New York should be infamous for increasing its number of law schools by 50% during a period of economic and demographic decline in the 1970s and 1980s, and there’s no evidence suggesting that the newer schools are remarkably good at exporting graduates elsewhere, though CUNY is unusually cheap and Cardozo has a good reputation considering it’s, like, four in law school years. New York’s thirteen private law schools are all over the average in cost, though some of them are very well regarded, and living expenses are very high. New York’s law schools, especially the disreputable ones in the southern part of the state, are ticking tuition time bombs. The Task Force wants the bar to avoid the “clichéd finger-pointing between and among law schools, employers and the bar,” but it won’t. Put simply, the Task Force can’t suggest numerous changes to lawyer training without taking a concrete opinion on the legal education system’s sustainability. Thus, it seems pretty clear that those pointing fingers at the law schools are right.