Richard W. Bourne on the Coming Crash in Legal Education

This paper, by University of Baltimore’s Richard W. Bourne, deserves wide attention.  I fear it won’t get it, however.  The Coming Crash in Legal Education: How We Got There, and Where We Go Now.  It is written in clear, plain, and personal language; it is factually well-informed about the roots of the impending economic crisis for law schools as well as conditions now; and Bourne has thought hard about the alternatives.  They are none of them happy and all sobering, unless, Bourne says, one happens to be sitting as a student or professor at one of the T-14 schools.  Here is the SSRN abstract:

This paper will first track the ways in which the legal services market has grown and changed over the past forty years. It will then track the major changes that have attended legal education during the same period and the increasing dependence of the legal education industry on student debt. The paper will then explore why, at long last, the boom-times may have run their course and why, at some point, painful changes will likely occur. Though they cannot be described in detail, the author will attempt to outline the likely nature of the changes that will occur. Finally, the paper will briefly explore how the predicted reckoning may yet lead to an improvement in the marketing of legal services and an enhanced role for law schools in preparing new attorneys for the new bar they will be joining.

He points out that although today’s entry level attorneys are not well-prepared for practice and this is a problem, the sorts of solutions that are proposed – more clinical education, particularly – are often prohibitively expensive.  One might produce better prepared attorneys, but that does not address either an oversupply or tuition prices leading to indebtedness that cannot be supported at the salaries that, even looking over the longer run, even the employed lawyers can support.  Something – several things – have to give.  One of them, he says, will be faculty-student ratios; and the drive for scholarship as the mission of the law school.

Although he hopes to see an undermining of the importance of the USNWR rankings, I don’t think he believes that the new metrics will actually do so.  It is true that USNWR rankings favor almost entirely increasing resources; it is, as he says, a proxy for  institutional wealth.  The rankings overwhelmingly take into account factors that raise the price of education; and of course they are pro cyclical.  That dominance is unlikely to end, however, in part because what employers seek at the end result of the process is, paradoxically, not the best trained junior lawyers – but the best talent.  Apart from a certain common core, taught pretty much by any school, employers do not so much differentiate by training as see school for as proxy for basic talent.

Employers don’t much care if I teach law and robots (which I don’t), because if they had to choose, talent over training, they choose talent, or at least their marker for perceiving it, any day over training.  That marker is irrespective of any big value-added from law school in other words. “Law school” adds a certain basic value in training lawyers, but that is actually about the same across schools, and what separates the schools is who walked in the door in the first place, as reflected in LSAT scores particularly.  I suspect most professors think the same way as the employers do, more so the more elite the school; whether their perception of their students is accurate, however, it does provide a ready-made reason not to worry overmuch about how well one teaches.  The die was cast more or less in the genes.

I don’t think that’s quite fair to us as teachers, however; I think professors at law schools by and large take teaching seriously and the issues are more what should be taught to students.  I would indeed favor professors teaching more classes and, in many doctrinal classes, larger classes.  But we also have to understand that the law is wider and deeper, the doctrinal areas that lawyers need to know and interrelate with one another, the background disciplines that we expect them to have absorbed as practicing lawyers – all that has gotten vastly more complicated since my days in law school.  Teach students attorney skills?  The same folks demanding that are also demanding greater exposure to doctrinal law, and they’re demanding that they know something about accounting and basic business and finance, too.  Expectations of lawyers have gone up, too.  Which is one reason I find talk of making law an undergraduate degree somewhat peculiar.(And I see a number of commenters essentially arguing that lawyers don’t need to know or have formal education in much more than an undergraduate degree in law and some practical training, as is the case in many countries. That’s for another post, but I don’t think that reflects what we expect lawyers in this society and this legal system to know, and to have absorbed from other disciplines.)

Conversely, if law school does not provide very much in the way of value added; if the die was cast, as indicated by LSAT scores; then eventually students will simply skip the purchase of the education and look at their LSAT score first and see what it will buy them.  Anecdotally, I think that is happening now to some extent, despite the hope springs eternal of the young and naive.  As purchasers of the service figure out that it’s basically just sorting, they can do that themselves, and the result?  (Added: no, I don’t think the LSAT is an adequate measure of raw talent, nor does Bourne, but it is what the system has produced in the way of effects.)  Law schools, Bourne says, have lived in a bubble of good times for years, and now the reckoning is upon us.  What will it look like?  Among other things, he focuses on those schools in the first tier below the T-14:

Curtailment of the market for law schools is going to be extremely painful for many schools. The going consensus is that the truly elite schools should survive easily. As their reputations are likely to continue to draw plenty of students and their graduates are likely to be able to retain dominance in the smaller but still powerful large firm market in which entry-level salaries make paying off student loans a reasonably painless operation, truly elite schools are likely to survive if not prosper. What happens just below the elite is more subject to doubt.

Beyond the truly elite institutions, difficulties are likely to reverberate all down the law school pecking order. Many schools with strong national reputations, such as those that fill out the rest of the first tier of U.S.News’ rankings, may have great difficulties surviving in the current environment unless they engage is massive cost cutting. These schools have cost structures that rival “top ten” schools but pay for their status by raising tuition rates for the bottom half of their classes so as to afford discounted tuition and financial aid to well-credentialed students whose admission can enhance their standing in the U.S. News rankings. The shrinking number of jobs available to pay the high cost of going to one of these schools may force them to pull back from the financial aid arms race rather than pay more for what little return they will get from picking up the few top paying jobs available for schools of their rank. As their graduates fight for private employment in mid-sized firms that at least allow them to “break even,” schools in mid-tier positions will find it harder to place their graduates in even “break even” jobs without cost cutting of their own.

Recent commentators have suggested, not without justification, that a number of schools that lack high national reputations may nevertheless be able to weather the storm. Particularly well suited are schools in small, less served markets that never did bite the BigLaw apple, have modest cost structures and strong alumni bases upon which to rely.  State-supported schools, because of the lower student debt levels needed to attend and graduate, are much better off than private institutions with debt levels that are fully 50 percent higher on average.  Downsizing may not be enough.

Cassandra?  Realist?  Moralist and scold?  Your call.

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