Bill Henderson has data and it looks like a success.

Washington & Lee is the Best Legal Education Story of 2013 | William Henderson.

I have integrated the substance of several of my prior posts here on the future of the American law school into a review essay of Brian Tamanaha’s book, Failing Law Schools, and posted it on my SSRN page.

As part of an effort to examine claims that law schools were responsible for “creating” the mismatch in the market for law jobs today I took a look at the kinds of information that a prospective student might have come across when applying to my law school, Santa Clara, in 2008 and 2009. As it turns out a good deal more detailed information was available to law students then than simple broad aggregate claims of 99% employment as Professor Brian Tamanaha suggested was the case recently in a presentation at the Cato Institute. In one breakdown on our career services website, two charts detailed a range of jobs students from the Class of 2007 had obtained as well as salary ranges.

In my view it is the availability of this kind of information that weakens claims that marketing materials from law schools were some how responsible for the rising tide of applications to law school in 2009 and 2010 which has now created an oversupply of young lawyers. In fact, for the prior several years applications declined yet the marketing materials were relatively comparable and certainly did not discourage students from attending.

In the face of this logic, those who maintain that law school is a “scam” continue to try to cloud the issue with personal attacks and claims that somehow the statistics cannot be what they really are. One page I looked at, for example, included a chart indicating that 122 students (out of a graduating class of 262, or 44%) reported to SCU their salaries and type of employment.

From that a law school applicant could deduce that not every one in the class responded with that information and draw conclusions from that relevant to employment potential. I think that was (moderately) useful information to potential applicants and it was, indeed, not an undifferentiated aggregate claim of 99% employment.

Like many schools, I gather, the school had to use other means than reports from students over time to complete the NALP survey and reach the final conclusion of 97% employed as finally reported to NALP. That NALP data, too, has a detailed breakdown. Some aspects of that breakdown were also disclosed on the SCU website. Over time more of that detail was posted. Of course, since 97% of the class was employed it adds up to 97%.  But there was not just an aggregate undifferentiated statement that 97% students from the Class of 2007 were employed.

At some point I think that such information breakdown loses marginal utility. The cost of providing answers to all permutations of information needed by law school applicants would be prohibitive, indeed, impossible as suggested by Acting Justice Platkin in the Albany Law School case.

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It is instructive to listen to or read one of the many eloquent speeches of Martin Luther King today and recall how important it was to the progress of civil rights to overturn the view that separate schools for blacks and whites could be considered in any reasonable fashion “equal.” That lawyers played such a prominent role in ending Jim Crow style racism in America is an achievement that we can justly applaud today, even in the face of the continuing reality of other less overt forms of discrimination in education.

Thus, it is all the more poignant to realize that there is an attack underway on American law schools that threatens access to legal education for those who lack the resources and opportunities that belong to the very wealthy and powerful in our society. The heart of the attack is based on exploiting the unfortunate fall out of the recent financial crisis on employment prospects for law students once they graduate. The crisis caused a sudden, unpredictable and large drop in jobs for new lawyers. The market has recovered somewhat, stronger in a few areas like IP, but remains far from robust.

This one hundred year storm in the macroeconomy is now being used as the basis of a claim that the modern law school itself has “failed” and is, in fact, nothing more than a scam. These critics persist in a series of claims that defy common sense. They focus obsessively on nominal tuition rates when those rates are greatly impacted by the availability of financial aid and repayment plans as well as significant variation in students own resources, abilities and opportunities.

They blame optimistic sounding law school marketing materials and cherry pick certain aspects of detailed employment statistics. These are said to have a powerful impact on convincing college graduates to go to law school in certain years such as 2009 and 2010. Yet, they are unable to explain why those same materials are ignored in those years when law school applications decline significantly as in the period from 2004-2008.

They insist that law schools themselves opportunistically “created” the mismatch between the macroeconomy and law school graduates giving law schools a power that the Federal Reserve itself would envy (one is reminded of the claims that Italian seismologists are responsible for the damages caused by earthquakes they failed to predict.) Yet they ignore the fact that in years like 2003 when law schools could have easily hiked admissions in response to increased applications admissions barely moved.

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It’s such a great idea, it turns out some one has come pretty close to proposing it already. I was contacted by Professor Marsha Cohen at Hastings about their new effort also called “Lawyers for America.” Here is how she described it in a comment at TaxProf:

“Lawyers for America already exists — it’s a new California nonprofit corporation (501-c-3 already secured) created at UC Hastings College of the Law but open to law schools nationally. Its mission is to improve the practical skills of new lawyers, to expand the availability of legal services for those who cannot afford lawyers, and to increase the ability of government and nonprofit legal offices to render such services. The mission is accomplished through two-year fellowships encompassing law students’ final year of law school and their first year as new attorneys. The agency partners receiving fellows will pay Lawyers for America, but the financial model is that a fellow for a two-year arc will cost approximately half the fully-allocated cost of a first-year attorney. Thus the partners get a bargain, and law students/new attorneys receive “medical model” legal training. Our pilot class of fellows has just been selected, and will begin as full-year externs in fall 2013 (at the offices of the Contra Costa County DA and PD). After a bar break, each fellow will work at the office for a year, paid a modest sum (as an employee of LFA). We are talking to other law schools interested in participating, and are hopeful that partnership opportunities will arise with nonprofits and government offices engaging in transactional work as well as litigation. Check our website (http://www.uchastings.edu/academics/clinical-programs/lawyers-for-america/index.php) for more information.”

It would be great to see this model spread. Of course, my larger hope and the impetus behind my LFA idea is for a national program that provides significant debt relief so that we avoid the risk of a “lost generation” of young lawyers.

The debate over whether or not law school is a “scam” would seem to be largely over. Court after court has dismissed cases against law schools for charges of misleading employment statistics except in one case in California where there were allegations of actual fraud, including an affidavit regarding shredding of documents. But the Appellate Division of the New York Supreme Court did issue an important reminder that law schools are a critical factor in shaping the law and owe at least a moral duty of candor to law students.

There are signs that law schools are already heeding that lesson by providing more detailed job statistics on their websites. Yet, as I have argued, even that information is relatively generic and only an individual analysis by a prospective student can provide students with a clear understanding of whether law school makes sense for them. Even if the economy continues its current slow recovery the job market will remain sluggish. Employers can afford to be picky and that will make job searches for all but a small handful of students challenging no matter where they go to school. Fortunately there are new income based repayment plans available.

The second indication that the debate is over is that, as I said would happen, law school applications have fallen off to pre-crisis levels and beyond. This is entirely consistent with patterns seen in the wake of past economic cycles, although the spike up and the spike down in the economy this time was much sharper.

The drop off in applications will and is forcing law schools to deepen internal debate about possible alternative models of legal education. That is happening in tandem with the longer range trends where technology and organizational restructuring of law firms is also taking place. In my previous post on this issue below I suggested some alternative approaches and, in fact, have been engaged for quite some time in discussions with colleagues at SCU about changes we can and I believe should make to our own program. We are beginning a search for new leadership at SCU and are hopeful of finding someone as our new Dean who will help guide this process.

But leaving aside the failed litigation strategy of the “scam” crowd and the unsurprising impact that falling application rates is having on resolving the “failing law school” crowd’s arguments, we are left with one very important problem: the thousands of successful law school graduates who passed the bar but have not been able to find jobs as lawyers or to find appropriate non-lawyer occupations and thus are facing a mountain of debt. I do not know the exact numbers but I think it is large enough to be considered an important problem for society as a whole not just lawyers and law schools. As a society, we should not be allowing these young people to waste the years of training we have invested in them.

I believe a proposal should be developed to solve the problem. It would work like Teach for America and I call it Lawyers for America. It would offer young unemployed or underemployed lawyers the chance to practice law serving an underserved community under the supervision of existing lawyers. One example: there are many thousands of small businesses in our poor and immigrant communities, including cleaning, housekeeping, gardening, construction and other services.  Many of these could be organized as LLCs thus shielding their owners from personal liability. This requires legal help.  These entities could use other legal advice as well. A legal service organization would be established in major urban areas that could provide these services.

The supervising lawyers could earn CLE or pro bono credit for their time. The law students would be provided a stipend for living expenses and more importantly would earn credits for debt relief. Every year of full time service would earn them 20% cancellation of their outstanding debt.

Now the people who actually lose cash in this exercise are the investors in the securitized loans that funded the law students while in school. But many of those investors are likely large institutions such as pension funds. Their boards of trustees should be brought into the program and be allowed to suggest ways the LFA lawyers could aid their constituencies.

A program like this that ran for perhaps five to ten years would allow an entire generation of young lawyers to learn their craft, relieve their debt, and contribute significantly to the wider society. They would emerge at the end of the program with either a genuinely sustainable reduced debt load or in some cases no debt at all. They would have skills and experience and perhaps new relationships that would make them employable as lawyers in what we all hope is a much healthier economy.

Introduction

The law school is a “scam” argument depends, in my view, on some tendentious ideas. A “scam” implies that law schools take people’s money and leave them with nothing. It is a serious charge. It is in my view unsustainable. It appears to depend on the idea that law schools bore some responsibility for the sudden and unpredictable collapse in the job market in post-08 period. But there is no disclosure language or data I am aware of that could have been provided to law students in, let’s say, 2006 that would have allowed students to plan for the waterfall towards which they were headed.

How did we get in to this situation? Some say it began with Washington University School of Law Professor Brian Tamanaha’s bracing call for change on the Balkinization blog in the summer of 2010. Let’s examine that and see if we can sort all this out.

The Tamanaha Manifesto and the Rule of Law Debate

In his manifesto for the reform movement, Failing Law Schools, Tamanaha described in absorbing detail many of the shortcomings of American law schools, without a great deal of attention to the important accomplishments of the institution unfortunately (including, it should be said, Tamanaha’s own work on the rule of law). He might even be our Kingsley Amis absent, sadly, the brilliant satire. But Tamanaha relies on very generalized data sets that do not provide persuasive evidence of misbehavior by any individual school, fails to test for counter-factual explanations, and draws conclusions that are only one among several possible explanations for the current situation.

In light of Tamanaha’s own conservative perspective on legal theory – one that I disagree with but view as articulate and informative – one consideration is that there is an ideological agenda at work here. A reshaping of American law schools along the lines suggested by his book would do a great service to American capital, which despises in many ways the legal profession and even the rule of law as it has evolved since the New Deal. Under tremendous economic pressure, capital is looking for ways to cut costs. A successful assault on what are viewed as costly and entrenched law schools would help tremendously in the battle against law firms and the courts as a whole.

Why might Tamanaha be willing to aid in this fight? It is not necessarily the case that he would do so with intent, though I do not rule that out. Among many other issues, Tamanaha’s work on the rule of law considers carefully the relationship between property rights and the state. That is a traditional concern of conservative figures like Hayek and Mises, whom Tamanaha clearly admires. But a problem with this approach is that those figures never dealt adequately with the impact of the transition by the 1930s from property to capital. The end of the Lochner era produced a traumatic ideological crisis within classical American liberal thought (what many now think of as conservatism).

Why, exactly? When property becomes capital, that is, when it employs labor to produce surplus value, two souls in the rule of law emerge. One guards narrow conceptions of property rights against intrusion from the state, what might be called the classical concept of the rule of law. The other soul that emerges, however, is a social concept of the rule of law that guards the human rights of labor against intrusion by capital and its allies in the deteriorating aristocratic classes – if we are talking of Europe and England – and its allies in the new managerial state if we are talking about the New Deal United States. An excellent introduction to one example of the social concept can be found in the work of Katherine Stone of UCLA here on industrial pluralism which represented the creation of a social rule of law in the workplace. I relied on similar arguments here.

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