The response to the ABA Task Force on the Future of Legal Education’s working paper (PDF) has been lukewarm to critical, which is fair based on my read of it. There are a some good points, like “reengineering the financing system of legal education” and “minimizing the obstacles for those who wish to pursue a career in legal services.” I don’t want to leave the impression that I’m understating the importance of the Task Force making these statements, but I’m nonplussed by its insistence that the “stresses and criticisms” legal education faces are due to a “fundamental tension” between the public and private good aspects of lawyer training. By definition lawyer training cannot be a public good, so I think the Task Force is grasping for a theory that allows it to not pick sides when it has no such luxury.
A good is “public” when its consumption by one person does not diminish it for others and does not exclude others from consuming it. For example, lighthouses and national security are (supposed to be) public goods. Some aspects of the legal system are public goods, such as: legal knowledge; the efforts of attorneys general, solicitors general, prosecutors, public defenders, etc.; and the civil and criminal justice systems. Of course, when the attorney general spends his time sending in SWAT teams to rifle-butt 50-year-old medical cannabis farmers, the public benefit is unobvious, but that’s the problem with codifying substantive justice. The fact that the public doesn’t sufficiently provide justice is another broader problem.
Arguably, the regulation of lawyers (which, by the way, excludes people from the private good of law practice) is a public good in that competent lawyering increases accessibility of the judicial system and conserves its resources for everyone. However, “competent lawyering” isn’t the same as “lawyer training” and it certainly doesn’t mandate three years of education for college graduates or even law programs at public universities. In fact, the public good aspect of the legal system is indifferent to lawyer training. Lawyers who sit through ethics courses can be just as honest as lawyers who read about ethics in books. Being judicially created, the legal education requirement for law practice is wholly artificial, making lawyer training a private good through and through.
Consequently, the “fundamental tension” is not balancing the public and private goods of legal education but how much training is necessary for lawyers and who should bear the risk for it, but that’s a distributional question whose answer is crystal clear: Currently, law students bear 100 percent of the risk of failure. If they get laid off from a good lawyer job never to return, if they hate law practice despite their best efforts, if they can’t repay their student loans with their lawyer incomes, if they never use their legal educations professionally, if they fail the bar exam, if they blow character and fitness, then their law schools still get paid in full—at public expense.
In short, the lawyer training system is completely lopsided against law students and favors universities, some private lenders, and prestigious employers instead. Only in the coming year will we see some institutions pay a price for their law school overbuilding, over-enrolling, and overpricing. Rest assured none of their stakeholders will be held personally liable for their schools’ debts—but their former students certainly will for theirs.
Despite its willingness to acknowledge the effects of the student loan system, I didn’t (and still don’t) expect the Task Force to consciously throw the law schools under the bus, but it hopes in vain that some kind of compromise solution can be struck among parties participating in good faith constructive dialogue. Law school defenders participating in good faith would at the very least guilelessly offer the “mutual mistake” defense, i.e. they had no idea that there were too many law schools, that the federal loan program encourages tuition hikes, that job outcomes’ importance is paramount, that they stood by while the bankruptcy law was cruelly tightened against student loan debtors, and that all these policies must be reversed.
What arguments has the law school side presented instead? Last month, a relatively recent graduate from an elite law school peddled a paper based on an absurd human capital formation theory of legal education, stating that law school pays off for everyone who attends. Human capital theory for everyone else; signaling theory for him. How is that good faith? Or how about a week later when a dean bafflingly declared that the ratio of college graduates to law graduates matters more than the ratio of law graduates to jobs and who “rejects the premise that American law students are too stupid to know the cost of their degree” even though his own school’s Web site still lists last year’s tuition rates?
Law professors’ obstreperous proclamations that everything is fine undermine the Task Force’s aspirations for a “dispassionate and pragmatic examination of the current situation.” When the enrollment numbers come out for fall 2013 like the casualty lists from Antietam, and the low October and December LSATs predict a dearth of applicants for 2014, the acrimony will ratchet up, and the freeloading rentiers will ensure there won’t be a middle ground left to stand on.