One of the leading propagandists of the “law school is a scam” crowd is stumped. Professor Merritt of Ohio State has looked at the experiential/clinical effort at Washington and Lee and concludes that its impact on hiring may not be as bright as was once thought. Merritt suggests several explanations but they all add up to the same thing: huge efforts to rewrite the law school curriculum and restructure faculties may not be worth it.
I have a better explanation for the downturn in the legal market than the suggestion by the critics that tenured faculty are simply featherbedding: the downturn in the global economy wiped out a bubble in the financial markets which had kept the entire US economy afloat for several years in the mid-2000s. When the bubble burst so did corporate hiring and the law jobs that go along with that. Today’s downturn on the stock market in reaction to the suggestion that the Fed will be raising interest rates makes clear how fragile our economy remains.
Legal employment is not exempt from that fragility and never has been, at least since the late 1970s. Indeed, the most recent data from NALP modestly encourages the view that a recovery is underway. And the overall employment rate of about 85%, while slightly down, remains very strong relative to other professions (think you would be better off as an architect or economist, think again).
What should law schools do? Offer a range of choices to law students while making clear to them the value of serious study of both black letter law and the theories that underlie the design of formal legal institutions. It is that combination that is the singular success of the law school as an academic institution. In the long run that deeper comprehension of how law and theory work together is what makes for lawyers who can add value for clients.
California offers an excellent example of how this choice model works: there are unaccredited law schools, there is the option to sit for the bar without going to law school and there is a wide range of accredited law schools. In the latter category some offer more and some less of the elements I think are important. Although demand is down, understandably given the slow recovery in the economy, there remain thousands of applicants looking at all of those options in California.
There is a new effort in California to increase the very kinds of programs that Merritt says may not have worked at Washington and Lee. The state bar and law schools should remain cautious about making wholesale changes particularly if these put pressure on schools to limit their contribution to the important connections between the theory and practice of law.
UPDATE: Professor Moliterno of Washington and Lee has replied to Professor Merritt. My assessment is here.