Enough about the Ills and Evils of Legal Education

Commentary

Don LeDuc, President and Dean | August 15, 2012

 

A cottage industry of criticism has grown up about legal education.  According to the critics, legal education is in an existential crisis, law schools must reform, law schools are defrauding the public and the unwary law school applicants, law schools are manipulating their data, there are no jobs for law school graduates, there are too many lawyers, law school graduates have too much debt, law school is too expensive, law is no longer an attractive profession.  A relative handful of critics re-circulate the same increasingly tired arguments, thus reinforcing one another's views, nearly all of which are not remotely objective and without support in fact.

The Recession Hit Our Profession Hard . . .

In late 2008, a recession hit the American economy, a bad one.  The legal business was hard hit as well, precisely because the legal business is so vital to our free market, capitalist economy.  The recession heightened in 2009, and the recovery that followed has been exceptionally slow.  Business at all levels has slowed, economic activity is down, and tax revenues that support government activity are down as well.

So, the law business, including the government law segment, has suffered.  Employment of lawyers declined during this recession, and employment of recent graduates was in turn more challenging.  Of course, that is true for all segments of the economy and all management and professional occupations. 

. . . But Not As Hard As the Critics of Legal Education Say

In 2008, the national unemployment rate reported by the U.S Bureau of Labor Statistics was 5.8%; in 2009, it climbed to 9.3%, then to 9.6% in 2010, and declined by less than one percent to 8.9% in 2011.  The BLS-reported national unemployment rate for all management and professional occupations in 2008 was 2.7%; this rate leapt to 4.6% in 2009, rose to 4.7% in 2010, and declined slightly to 4.5% in 2011.  Compare these rates to the unemployment rates the BLS reported for lawyers during the same period:  1.9% in 2008, 2.3% in 2009, 1.5% in 2010, and 2.1% in 2011.  These related employment facts, which provide the necessary context to this discussion, have been completely ignored by the critics. 

The National Association for Law Placement began publishing data about employment of recent law school graduates in 1975.  This is the fourth recession the economy has gone through since then, and it was the longest in duration.  We recovered nicely from all of them, although each time it has taken several years for complete recovery to be realized.  NALP's data shows that the new lawyer unemployment rate following each recession since 1975 has included several years of double-digit unemployment. 

During the entire subsequent 35-year period, the average unemployment of recent law school graduates (as measured by the overly inclusive standard used by NALP) has been 9.4%, exactly the same unemployment figure reported by NALP for 2010 graduates, its latest published annual data.  [NALP continues to make public statements about the 2011 graduate data, but thus far it has not released its official annual report for 2011 graduates.]  The range in unemployment levels during this time has included several years of double-digit unemployment following each recession, while it reached an all-time low of 5.8% in 2006.  New lawyer unemployment reached a historical low of 5.8% in 2006, but no mention is made of that fact in media comparisons to the current rate, or of the fact that over 90% of the graduates are employed, despite the worst economic conditions in 80 years.

The critics uniformly avoid providing any real context for their claim that unemployment is too high, fail to state what they consider to be the appropriate level of unemployment for recent graduates, and ignore any data that might detract from their conclusions and opinions.  Other than asserting generalities about employment of lawyers, they provide no context about the legal employment market generally, and they persist in lumping all law-related jobs in with lawyer jobs when describing unemployment.  In fact, according to the Bureau of Labor Statistics data, the number of employed lawyers reached an all-time high in 2011, a year in which 45,000 lawyers found employment compared to the previous year despite the slow recovery.

Legal Employment is Strong Compared to Other Professions

Another missing context is a comparison to other professions and occupations, including a comparison of the effect of the recession on employment in all other professions and occupations.  When attacking legal education, the critics do not identify other educational options or immediate employment opportunities that potential law students might try more profitably. 

The U.S. Bureau of Labor Statistics, the official keeper and reporter of the Nation's employment and unemployment data, reported in 2011 that lawyers had among the lowest unemployment rates compared to more than 50 professional and management occupations most comparable to lawyers.  In 2011, only doctors, dentists, psychologists, physical therapists, registered nurses, and veterinarians had lower unemployment rates than did lawyers. 

And no effort whatsoever is made by the critics to compare legal education to graduate education in any other field or to examine employment opportunities for college graduates in any major course of study.  Compared to legal employment, how strong is employment for graduates of schools of education, journalism, business, criminal justice, history, English, or any other field?  With the employment of current lawyers being the best among all professional and management occupations other than the medical-related, it is difficult to see why a potential student would prefer another field without a detailed comparison of employment potential.

The Job Market Is Already Improving

Still another missing context is perhaps the most important for the potential law school applicant.  The labor market today is essentially irrelevant to the decision a potential applicant must make today.  What is relevant is the potential for employment upon the completion of the typical three-year course of study in law schools.  For those who enter law school in the fall of 2012, graduation will be in mid-2015, and for the admissions cycle headed for fall 2013 enrollment, the relevant question is what will the market be like for them as summer 2016 law school graduates.  If things remain unchanged, the employment market for law graduates will be the same as today—poor according to the critics, but not that bad in comparison to other professions. 

Things are likely to change, however.  Given the general trend of slow recovery and the pattern of improved employment for law school graduates following all previous recessions, it seems that things likely will be better rather than worse.  So, comparison to other occupations will remain important context, whether things stay the same or change for better or worse. 

A major flaw in the critic's assertions is that demographics favor improvement in employment.  The critics repeat the misleading mantra that the law schools cannot keep "pumping out" 45,000 graduates, implying that this number is far beyond what the employment market can absorb.  Ironically, 45,000 is exactly the number by which lawyer employment grew in 2011, according to the official BLS data. 

The critics also use an assertion that all graduates of law schools intend to practice law in a law firm as a basis for their arguments about the legal profession, but the reality is that law school graduates have always pursued careers that are not traditional law firm careers and will always do so.  Part of the value of legal education is its inculcation of analytic skills that translate well into many employment and leadership settings; part of the value of the law degree is its incomparable flexibility.  Part of the reason that lawyer unemployment has remained at levels less than a fourth of the national rate (and less than half the rate for all management and professional occupations) is precisely because the skills learned in law school are useful in a wide variety of occupations.

Job opportunities will expand in the coming two decades.  While the growing retirement level of the baby boom generation will impose an increasing burden on the country's social security system, those retirements represent increasing job openings in every field.  That will be particularly so in law, which experienced rapid growth beginning in 1970, mainly due to the enrollment of increasingly large numbers of female law students.  By 2015, this retirement trend will be established clearly—at least as demonstrated by Michigan data—which shows that those leaving active bar membership will exceed those joining the active membership beginning as early as 2012 or 2013. 

Market Forces Are Already Prompting Change

The critics clamor for reform of legal education, and reform there should be, but not because the situation facing legal education is desperate or because law schools are somehow corrupt.  We can do better at what we have always done.  Still, the quality of legal education is today at the highest level ever.  At many schools, the preparation for practice theme is catching on, albeit slowly.  For some schools, that approach has always been a major focus; for others, particularly the higher-profile schools, that approach is only reluctantly considered.  The fundamentals of law school education are solid, but a reorientation to the needs of employers and those who require legal help is clearly in order.

What the critics completely ignore is that the law schools, like every enterprise in a market system, are sensitive to market forces.  The fall 2011 entering class was 7.4% smaller than that in 2010.  The 2012 class will be smaller still.  When these classes graduate in 2014 and 2015, the job market will be absorbing a correspondingly lower number of graduates in those years.  The current employment market has already affected applicant behavior, and the schools in turn have responded to those market forces.  We need no mandate to make adjustments dictated by accrediting agencies, education departments, or legislative bodies.  Supply and demand clearly are at work; they are just not recognized by the critics.

The Critics Overstate the Effect of Law School Cost and Debt

The final argument of the critics is based on financial considerations.  Law school is too costly, remuneration is too low, and the debt is too high, according to the critics.  The response to this argument is the same as to the employment level—the facts don’t support the assertions, and context is totally missing. 

Critics offer no comparison of law school costs to the cost of other educational programs at either the graduate or professional levels.  Is law school tuition somehow differentiated as proportionately more expensive than medical school tuition or MBA tuition, or Ph.D. program tuition?  Other than the inapposite comparison to inflation, no support is offered for this argument other than the subjective view that the cost of legal education is just too high. 

Law school debt is the major focus of these critics, who are quick to point out that the level of debt is high, although they invariably overstate the level of law school debt and cite only examples of extreme individual cases that are outliers.  Much could be said about the undisciplined borrowing practices of today's law students, including their borrowing during undergraduate days, but that is not the issue here.  Most in the public do not realize that the law schools are not the lenders and do not directly control how much students borrow during law school.

The last year for which reports are available (2010) shows that the median debt of public law school graduates with loans was about $75,000 (approximately $25,000 per year of attendance) and about $115,000 (approximately $38,333 per year of attendance) for graduates from private schools.  Compare this to the average tuition costs for the three years of attendance of these students—about $55,546 ($18,515 per year) for resident public law school students, $91,609 ($30,536 per year) for nonresident public law school students, and $107,448 ($35,829 per year) for private law school students.  Largely ignored is the fact that about 15% of all students graduate with no law school debt at all.  

The overall tuition burden is reduced by about 25% at the typical law school, which offers scholarships and grants at about that level.  So, when an argument is made that tuition has increased by whatever percentage is asserted, a similar assertion would show that scholarship support has increased by at least the same percentage, if not more, at the typical school.

Law school debt can only rarely be discharged in bankruptcy, a fact seized upon by critics but used only in the context of anecdotal stories about students with debt far in excess of the norms.  While the educational debt cannot be discharged, the borrowers can go into default.  However, law school loan default rates are low, so some critics simply made up false default rates, which were then repeated by others as if true.  That default rates are so low undermines the assertion that students today are strangled with debt and do not have sufficient income to pay off their loans.  While this assertion may be true anecdotally of a limited number of law school graduates, the anecdotes distort, not represent, the true picture, which is that the default rates for law school and other professional school graduates are far below the national default rates for all other educational programs.

Finally, before we can decide what tuition level is too high, we need to decide what the measure of "highness" is.  In reality, tuition will always be too high, but so long as accreditation continues, state funding for education declines, and federal regulation of education increases, tuition increases are inevitable. 

Don't Believe the Uninformed Critics

The facts about legal education simply belie the outcry.  Those who read the media and blog reports should do so with a skeptical, if not jaundiced, eye.  Nearly all that is said is wrong, much of it is intentionally misleading if not purposely false, and all of it is missing in context and perspective.  There is no crisis in legal education any more than in other aspects of education.  There is no need for urgent reform, only for reasoned progress in making legal education more responsive to the needs of society and future clients and employers.  The law of supply and demand will adjust law school behavior to the market, unfortunately following that market rather than predicting it.  Legal education is no more or less to blame than anyone else for failing to foresee the recession or in responding too slowly to the glacial economic recovery.  Indeed, we should guard against being too cautious now, when the economy is still recovering and the demographics favor enrollment growth in light of increasing long-term demand for law school graduates.