Can You Hear Me Now?

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.

18 thoughts on “Can You Hear Me Now?

  1. mirriam

    I’ve had my head up my ass for a long time. I took a look at some of the links in the original post, and wow. My heart breaks for my profession. What’s happened to us?

  2. SHG

    If we step back and take a hard look at the problem of the legal profession, both the ones we suffer and the ones we cause, it becomes painfully clear that the excessive number of lawyers being pushed out of law schools plays a very significant role.  There just isn’t any question that it’s got to stop if the legal profession is to survive, and society is to survive us.

  3. SHG

    To borrow from your cancer comments yesterday, sometimes it’s necessary to excise the malignancy to save the patient, even though it may be painful and disfiguring.  The alternative is worse.

  4. Slack-wa-zee

    I’m a bit conflicted on this.

    I think that a lot of the teeth-gnashing and hair-pulling on the part of recent graduates is completely unjustified. It is harder to find a job now than it was five years ago, but that’s true for everyone from garbagemen to doctors. A lot of lawyering jobs in large markets do suck, but that’s always been true – where there’s enough work and enough lawyers that the successful can pay the unsuccessful to do their doc review for them, they will. If you don’t like that, move to a smaller market where lawyers do their own doc review (and fix their own toilets).

    I also don’t understand the complaint that lawyers don’t leave law school prepared to practice law. It’s true, but it’s true in every profession and trade I can think of. Doctors graduate with an M.D. and need 3-4 years of residency before they are trusted to work independently, MBAs are all picked up and shuffled into “middle management,” a corporate tier that exists only to train business school graduates in the realities of management, plumbers have to do a three year apprenticeship after trade school before they are licensed, even teachers have student teaching and mentorship requirements following graduation but preceding their license. I’m not suggesting that law schools couldn’t do a much better job teaching some practical skills, they surely could, but it’s not a problem unique to the legal profession.

    I also think that some of these problems are sorting themselves out. The CCRAA is a pretty revolutionary bit of legislation that should change things completely for indebted law school grads. As long as it’s around, there’s no excuse for anyone to whine about debt or cost. Schools, at least the schools I’m familiar with, are getting more realistic about practical skills – In my three years, I took a number of classes taught by practicing lawyers that focused on practical skills: My first year crim law course was taught by a working prosecutor, my crim pro class was taught by a working public defender, and my real estate transactions, education law, UCC, and property classes were taught by working lawyers. I certainly didn’t walk out with the ability to function, but I knew what I didn’t know, and I knew how to learn it.

    I understand that my perspective is limited to my experience which is out in the boondocks. Things are certainly different in the cities where there are 160k first-year salaries to skew people’s sense of reality and scads of disaffected young graduates doing doc review and complaining about their dire circumstances.

    I think the cities also engender a lack of perspective. I’m a young lawyer, and a recent graduate. I work for very little money and handle a lot of work that other lawyers hate (juvenile and criminal). But before I was a lawyer, I was a carpenter, and no matter how hard and shitty lawyering can be, it’s fucking cake compared to building in the snow and rain. And it pays better.

  5. SHG

    I believe you’ve taken the “let them eat cake” approach.  The unemployed are gathering to march on your home with pitchforks and torches.

    If you expand your view beyond your own circumstances and time frame, you might have a firmer grasp on the issues.  It’s always dangerous to put the pervasive problems into one person’s paradigm and draw broad conclusions, though it is a Slackoisie trait.

  6. Dan

    “I also don’t understand the complaint that lawyers don’t leave law school prepared to practice law. It’s true, but it’s true in every profession and trade I can think of. Doctors graduate with an M.D. and need 3-4 years of residency before they are trusted to work independently…”

    The problem is that the law school doesn’t have a mechanism to address this, whereas the medical profession does. In medicine, you do have to do a residency before you’re allowed to work unsupervised. But in law, all you need to do is graduate and throw up a website proclaiming yourself to be a top guy in your field before you can take money from unsuspecting clients who think you are helping them.

  7. Slack-wa-zee

    I’m aware that I am constrained by my perspective (I think I mentioned that). And I don’t think I have takken a “let them eat cake” approach.

    My point is that much of the kveching about employment is done by graduates who hoped for 160k associateships in major markets, and who now have to work for some smaller firm or for the government making half the money or less. I know a lot of these people. They are not complaining because there is no work, they are not complaining because the work that is available does not allow them to cover their debt payments (that’s basically impossible under the CCRAA), they are complaining because they wanted to be an associate with a porsche and make partner in seven years, but now they have to work for a living.

    So I don’t think it’s a “let them eat cake approach” so much as it is a “let them work and eat like everyone else” approach. And most biglaw-associate-wannabees wouldn’t know where to even get a pitchfork, so I’m not too worried about the mob…

  8. SHG

    I agree that many of the problems are self-imposed and, to some extent, only problems because they fail to meet unreasonable (or Slackoisie) expectations.  But it’s important to remember that there are others at fault as well, and plenty of blame to spread around. 

  9. Slack-wa-zee

    True, and I’m all in favor of doing something about this. I’m just saying that this could be done by the profession, rather than by the schools. If bar associations required a three year apprenticeship where you were under the supervision of a more experienced lawyer before you were able to be a full member of the bar with the right to practice on your own, it would go a long way to solving the problem.

    And I think it would be better if the problem was solved by the profession rather than by the schools. The if we’re trying to prepare students to practice, their training ought to come from those who practice, not from the schools. Same as in the medical industry.

  10. Slack-wa-zee

    Sure. And I didn’t mean to let law schools off the hook. Perhaps the worst actors in the equation are those who are fermenting and capitalizing on law-students’ unrealistic expectations.

  11. Dan

    I don’t think it matters whether it comes from the schools or the profession and I’m not sure that a distinction should be made. (Nonetheless, in my first sentence I meant to write “legal profession” instead of “law schools.”) But the schools are blameworthy in that they are well aware that the profession does not contain any such mechanism, yet they continue to foist graduating class after graduating class of useless lawyers on the public, lest their revenues should dip.

  12. Andrew

    Your blog (or blawg, if you will) manages to simultaneously encourage and discourage my dream of becoming a criminal defense attorney. It’s always a treat to read because I never know which of the two I’ll get.

  13. SHG

    No, no, no.  First of all, each state functions differently.  There’s no “bar associations” that contol things across the country.  The only entity that does that is the ABA, which has accreditation authority over law schools.  Second, who pays for this?  Who are these experienced lawyers who will supervise kids for three years?  Get the Biglaw rules the world idea out of your head, as most lawyers have nothing to do with Biglaw, and Biglaw doesn’t exist is most areas of the country.

    Come on, boys. Think this through before coming up with ridiculous ideas.  There is one, and only one, way to change this, and it’s in law school.  An addition idea, by the way, is to rid law students of the wasted third year and put that into the mix of apprenticeship, but then, that would be one less year of tuition.

  14. Dan

    A professor of mine once suggested that law school should be either two years or four years, but that three is just pointless.

  15. Slack-wa-zee

    I’m looking at the medical profession as a model. There is a bar in each state (I should not have said “bar association”) and each state has rules for admission to the bar. It would be a simple matter for states to create a provisional credential allowing graduates to practice with supervision and allow full membership after a period of provisional practice.

    I’m not thinking in terms of Biglaw at all, it doesn’t exist in my area except as something we read about on the internet. But there would be plenty of lawyers that would supervise new attorneys – in fact my state (Vermont) already has a 90 day supervised practice requirement, and there is no shortage of experienced lawyers who are happy to take on free or low-paid new lawyers for the three months it takes to fulfill the requirement. Now, 90 days is pretty pointless, but the fact that it’s not any trouble to find a place to do your supervised practice, even for pay, suggests that, even here in the wide world outside of biglaw, it wouldn’t be that hard to get professionals to support an apprenticeship program.

    Since I’m talking about Vermont rules, Vermont also allows people to take the bar who have not been to law school at all. If you clerk in a law office for four years, you’re elegible to sit for the bar. One of our supreme court justices never went to law school. If that kind of rule were more widely adopted, it could put law schools right out of business.

  16. Dan

    In your more crowded urban areas, I think it would be extremely difficult for professionals to support an apprenticeship program because the volume of new law grads is such that today’s apprentice will tomorrow be trying to take your potential new clients for nothing more than a shiny new nickel.

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