This blog frequently runs into what I refer to as the “Bottleneck Argument,” a two-pronged attack on the hydra-headed problem facing the legal education system: the attorney overproduction problem and the law school tuition bubble. It addresses these issues by claiming that:
(a) There is no attorney overproduction problem and any unemployment experienced by recent graduates is due to the housing bubble bursting, i.e. it’s cyclical unemployment; therefore (b) because graduates will find gainful legal employment in the future, tuition increases are not onerous to law students, but less competition over U.S. News rankings would help reduce tuition.
The bottleneck argument is easily disproven by comparing government agencies’ lawyer employment projections to graduate output data from the ABA and LSAC. Link to those data here.
However, too often bottleneckers try to disprove attorney overproduction by comparing present law school and law student data per capita to those of the more recent past. Even though their data are often accurate and precise, they commit two errors: They either (a) choose an irrelevant target comparison date, or (b) ignore the rapid increase in law students per capita that occurred between the mid-1960s and 1970s. During his tenure as ABA President, Stephen Zack, made the first type of error, the second appeared in a 2010 National Jurist article by Editor Jack Crittenden that also provides the foundational bottleneck argument.
Here is President Zack’s table indicating a slight contraction in the legal education system using only two data points.
Here is Crittenden’s more accurate chart.
This page provides readers with a clearer understanding of the legal education system’s history and disproves any bottlenecker appeal to past law school and law student data. Link to the original post here.
Law Schools Per Capita
Over the last several decades, the number of law schools per capita, including non-ABA accredited law schools has declined (excluding correspondence schools and the Judge Advocate General’s law school in Virginia). Readers will note the increase in law school density through the 1970s. The population data from the following chart come from three sites in the Census Bureau, though I think they exclude Puerto Rico. The number of law schools in the “All law schools per 10 million residents” category comes from the foundation dates in the Wikipedia’s List of U.S. Law Schools, but the “ABA law schools per 10 million residents” counts law schools only from their accreditation year, as provided by the ABA.
The overall reduction in law schools per capita has not been uniform throughout the United States as the animation below demonstrates. In particular, New England is the only Census division to have more law schools per 10 million residents above the 1960 average than any other in the country. We can expect that region to be hit hard by the contraction in the law school bubble. The Pacific division’s high law school density is propelled by California, which has a deregulated legal labor market that allows entrants to qualify for the state bar exam by attending its many state-accredited or unaccredited law schools. While I’ve done no in-depth research on the subject, my understanding is that these schools often have lower tuitions and enrollments than ABA law schools. No one knows their graduates’ job prospects in the California market. The animation below also counts Michigan’s Thomas M. Cooley Law School’s main campus and three branch campuses as one school because the ABA does as well.
A similar animation measuring ABA law schools per capita relative to the 1960 national average would color the West North Central division and New England red (above average). In New England this is due to low population growth and law school overbuilding in the region, especially in Massachusetts. In the West North Central, the high law school density is driven by a combination of old state schools in sparsely populated interior states and Minnesota building two law schools despite its modest population.
Law Students Per Capita
Here is a slightly better graph than Crittenden’s depicting ABA law students per capita, beginning in 1963 for that is the earliest date for which we have data. It includes graduates per capita as well as a line showing the proportion of law students to law graduates. Given that law school has always taken three years for full-time students, and given that some are part time (16.5% in 2009, and they’d be double-counted or more in subsequent years) and some drop out, in a typical academic year the ratio of enrollments to graduates should be somewhere above 3.0 but probably under 4.0. The ABA system of 1964 had obviously just accredited some non-ABA law schools and was “spending down” their enrollments. There was another spike in the late 1960s. However, beginning in the 1970s, enrollments per capita never drops back to 3.0 per 10,000 residents. It may have even been lower before 1963.
Measuring ABA law student growth is stymied by the fact that many law schools had long, independent existences before joining the ABA, which rapidly began accrediting law schools in 1923. Thus, one could explain the dramatic growth in law students per capita in two ways: (1) Along with additional law schools (as evidenced by the small spike in law school density in the above section) the remaining law schools dramatically expanded their enrollments, or (2) the ABA accredited a group of law schools with very large preexisting enrollments, meaning the Law Students Per Capita chart is inaccurate. In other words, around five law students per 10,000 residents has always been the norm.
Explanation (1) is correct: ABA law schools dramatically increased enrollments and many new law schools opened in that time period.
How do we know?
Let’s compare the ABA law school enrollments each year from 1965 to 1980 and divide the increased enrollments between any newly accredited law schools:
|YEAR||ABA Enrollment (# of Schools)||Enrollments/
Newly Accredited Law Schools
|1968-1969||59,498 (138)||431.1||(-1,586, very likely due to the Vietnam War)|
|1972-1973||98,042 (149)||658||3,408 (End of Draft)|
Aside from what must be effects of the Vietnam War draft, in the fifteen year period, the number of law schools increased by 25% while the number of law students grew by 130%, equaling 1,948 students per new school. In no way can this be due to the ABA accrediting large law schools (with the exception of the Thomas M. Cooley Law School, known for its very high enrollments today).
Proponents of the bottleneck argument should know better than to look to past enrollment rates when future employment projections are what matter. Even when they do so, they never justify the 1960s and 1970s law school expansion in terms of market demand or employment prospects. Therefore, whenever bottleneckers bring up law school and law student per capita data, they are to be discredited.