Being a trench lawyer rather than scholar, and this being a blawg rather than law review (you can tell by the absence of footnotes), it comes as no surprise that the Academy pays no heed to my constant urging that it pull its collective head out of its butt and recognize that things are not swell in the marbled hallways of the ivy-covered buildings in which they toil in wood-paneled offices thinking profound thoughts.
But that’s just me. I’m easily dismissed as just another vulgar lawyer lacking an appreciation of the need for the law school/industrial complex that supports the professorship in its quest for tenure and pedagogic hegemony. What can you expect from those whose brain is too feeble to appreciate the need for theory rather than the nuts and bolts of a trade school? Brian Tamanaha, however, is not so easily dismissed.
Tamanaha is the Chief Judge Benjamin N. Cardozo Professor of Law Professor at St. John’s Law School. After taking note of the blogs of misery and bitterness by disaffected law school graduates, he writes at Balkanization :
Their complaint is that non-elite law schools are selling a fraudulent bill of goods. Law schools advertise deceptively high rates of employment and misleading income figures. Many graduates can’t get jobs. Many graduates end up as temp attorneys working for $15 to $20 dollars an hour on two week gigs, with no benefits. The luckier graduates land jobs in government or small firms for maybe $45,000, with limited prospects for improvement. A handful of lottery winners score big firm jobs.
And for the opportunity to enter a saturated legal market with long odds against them, the tens of thousands newly minted lawyers who graduate each year from non-elite schools will have paid around $150,000 in tuition and living expenses, and given up three years of income. Many leave law school with well over $100,000 in non-dischargeable debt, obligated to pay $1,000 a month for thirty years.
This, of course, is nothing new, except to those law students who were swept into the dream for lack of diligence and excess of optimism. Yet law schools remained bizarrely disconnected, as if this situation had nothing whatsoever to do with them.
Wait a minute, we protest.
Law professors are not scammers. We advance the rule of law and justice. We promote efficient legal institutions. We develop legal knowledge and knowledge about law for the good of society. We are the conscience of the legal profession. Indeed, we made a financial sacrifice to become academics when we could have earned more money as practicing lawyers.
The students made their choices. They should have done more research. They should have thought more carefully about the consequences of taking on so much debt. It was their foolish over-optimism to think they would place among the top 10% of the class and land the scarce corporate law jobs. They should have known better. (If the numbers on our website are misleading it’s the Administration’s fault; and we don’t set the high tuition.) Don’t blame us.
It is their dream to become a lawyer—we provide them with the opportunity and what they make of it is up to them. Besides, a law degree is valuable even if you don’t get a job as a lawyer. It improves your reasoning ability. It opens all kinds of doors.
Isn’t it amazing how mass hysteria will contort even the sharpest minds when it’s in their personal self-interest? The ability to rationalize one of the cushiest jobs in the world distinguishes scholars from trench lawyers. We are subject to the banal rules of supply and demand. The Academy has managed to defy them. You’ve got to give them credit. If we could, we would all thumb our noses at the laws of physics, among other things. Who wouldn’t want to walk the courthouse halls humming “defying gravity?”
More crucially, law schools must shrink the number of graduates, and must hold the line on tuition increases. (The fact that many students get scholarships is no answer because it simply means that some students, those paying full fare—often the students with the worst prospects—are subsidizing others.) This will be painful: smaller raises (perhaps even salary reductions), smaller administrations, smaller faculties, more teaching, less money for research, travel, and conferences.
Oh, so close. As it currently stands, they are putting out 45,000 graduates per year for 30,000 jobs. And the jobs aren’t all that great. The graduates aren’t equipped to do much lawyering, since they are heavily steeped in theory and not expected to gain proficiency in actual lawyer work. But the problem at the outset, the only one Tamanaha is considering, is the just the bottom of the iceberg. Five years, ten years later, it continues. The perpetuation saturates the profession and is, from my seat, the driving force in our race to the bottom.
Too many lawyers. Too many lawyers who either aren’t very good lawyers or don’t have the opportunity to be the good lawyer they might otherwise be, competing for the scarce dollars. Too many good lawyers, hard-working lawyers, still competing for the scarce dollars. A profession reduced to a trade, because even lawyers have to put shoes on their kids’ feet.
I applaud Brian Tamanaha’s fortitude in taking on the orthodoxy of the Academy. Too many others have just hid their head in the sand (or elsewhere) to preserve their lifestyle at the expense of their students and the job they might have been forced to work had they not become one of the elite. There will no doubt be fine minds parsing Tamanaha’s words to prove that the fix will destroy life as we know it, leaving society in ruins without the articulation of an alternative theory of due process at the Ministry of Magic.
While Tamanaha not only recognizes that things have gone awry, and that a melt down is coming if left alone, his solutions don’t go nearly far enough. And as with most painful solutions, it’s best done one time rather than death by a thousand knives.
We are producing far, far too many lawyers. It’s time to cut output by half, both by closing law schools as well as cutting class size. Society doesn’t need them. Society cannot support them. And because we are lawyers, and can cause a lot of trouble with our idle hands, society cannot tolerate them.
But it’s not, as suggested by the disaffected law school graduate blogs, merely a matter of how recent graduates can’t find sufficiently gainful employment. It’s not a simply a matter of tuition being ridiculously high to cover the price of scholarship. It’s far more pervasive, and far more pernicious. These kids just don’t realize how far the problem goes yet as they are stuck at step one. Lawyers ten years out, twenty years out, suffer the long term consequences. Tamanaha is only listening to the squeaky wheels at the moment. Or maybe he’s trying to make it more palatable to his own by limiting this to only the most pressing problems, with the larger problems to be left for another day.
This is not to place blame only on the shoulders of law schools and lawprofs. There’s plenty to go around, from putative law students to experienced lawyers. But the over-production of lawyers is central to the many problematic penumbras the one-time profession faces, and the Academy couldn’t care less what trench lawyers have to say about it, even though we suffer for their choices.
As long as law schools continue to fill every empty chair without regard to what it is doing to the profession for the primary purpose of funding their own lifestyle, we will never stop the slide of the profession into the gutter. And it will inevitably be the end of society’s tolerance for lawyers.
If you won’t listen to me (and we both know you won’t), listen to Brian Tamanaha. Stop denying it. Deal with it. And step back and take the long view of the harm over-production is doing. It’s destroying my profession now. Yours will be next when the pyramid scheme of law school collapses.