If you're not part of the solution

This blog is now a month old, and the responses to it in legal academia, after a predictable flurry of blustering outrage from an obsessive freak or two, have been somewhat encouraging. For one thing, I've encountered surprisingly little in the way of attempts to minimize the problems it's addressing.
  Almost no law professor who has responded, either in public or in private (I have yet to hear from any administrators), has taken the line that the current model of legal education in America is basically sound, and just requires some marginal tweaking while we wait for the job market to pick up.  I find this surprising given that, even earlier this year, that seemed to be the reaction of most legal academics to claims that something was seriously wrong.  That was the reaction I got to my initial attempts to rouse people from their dogmatic slumbers, and that seems to be the response Brian Tamanaha and Bill Henderson were mostly getting to their respective forays into sounding the alarm.  Even the first big David Segal piece on the front page of the New York Times in January seemed to barely ruffle the surface of the placid lake upon which legal academia collectively floated (If a front page story in the paper of record about how your business model is breaking down doesn't get your attention . . .).

But now things seem . . . different somehow.  I don't want to exaggerate the extent of the change, but there are various signs that we may be beginning to approach some sort of tipping point.  Part of it may simply be that people in the law business, like people all across the economy, are starting to get the sense that "things" aren't going to get significantly better any time soon -- that this isn't a normal downturn in the business cycle, but something much more structural, problematic, and even historical in its dimensions.  The real possibility exists that the old world of economic growth, fueled by too-easy credit and the ever-increasing pace of consumerism it enabled, may be if not gone forever, at least not likely to return in anything resembling its previous form.

Another factor in whatever shift in the wind may be happening is that the information that various muckrakers have been trying to compile and get out there is finally starting to sink in.  The scam bloggers have played a key role in this process, and I made the decision to frame this blog as a further contribution to their effort both as a tribute to their importance, and as an acknowledgement that their basic message is correct. The basic message of the scam blogs has been, for more than three years now, that law school has become a ripoff for a very large proportion of law students. It's a ripoff because the benefits of going to law school, for a huge number of current students and recent graduates, are outweighed by the costs to a disastrous and even life-wrecking degree, and because law schools have gone to great lengths to obscure that fact.  Slowly but surely, legal academics, who even a year ago almost universally rejected and ignored that message, are beginning to acknowledge it is true.

Which brings us to the question of what next.  Christine Hurt at Conglomerate puts it this way:

 So, what are law schools supposed to do?  Anonymous Law Prof isn't a big fan of modern scholarship, but my cliched question after reading all of his very informative posts is "So, what is the normative uptake?"  ALP has done a good job of describing the main problem (though I don't agree with all of his commentary on the whys, wherefores and results), but what is the prescription?  His commenters are enjoying the therapeutic exercise of placing blame and exposing bad outcomes, but at some point we need to talk about the solution, besides "more transparency," which seems to be on the road to happening.

Now this is a fair question.  But let's not get ahead of ourselves.  For one thing, claims that more transparency "seems to be on the road to happening" shouldn't be overstated.  Law schools -- which mostly means law school administrators, more on that shortly -- are still very much hiding the ball on employment stats.  Yesterday I highlighted Jason Dolin's data indicating that the real employment rate at a top tier school for the class of 2010 was probably under 50%, and that at a lower-tier school it was 20% at best.  These numbers are very much in line with what my own research indicates.  Prospective law students who limit their inquiries to what law schools tell them about this matter would never get the faintest inkling of any of this.  In the last few months I've noticed that as the -- to put it as delicately as possible -- "misleading" character of official law school employment stats has gotten harder to ignore, a tendency on the part of law faculty to imply that any 0L who takes official law school pronouncements about employment at anything like their face value is simply a fool.  This strikes me as a rather remarkable attitude to adopt, given the endless bloviating in the law school world about professional ethics and aspiring to something higher and more noble than etc. etc.

Law schools have engaged in a massive disinformation campaign about the true employment prospects of their students, they are (we are) continuing to do so, and to this point almost nothing has been done about this at the official institutional and regulatory levels.  So let's not all start giving each other warm embraces about increasing transparency just yet.

OK, so "everyone" agrees we need a lot more transparency (except for the people who currently have the power to change the status quo).  What's the next step?  Here Prof. Hurt notes that this question, coming from a law professor, has a cliched quality, and it indeed it does.  If this little project of mine was proceeding according to SOP for legal academic writing, I would have spent about five minutes writing about how legal education is no longer producing enough bang for its buck, and then immediately launched into my five-part plan, involving various balancing tests and levels of review, for Fixing What's Wrong.

I haven't done that for a couple of reasons.  First, despite the recent progress noted above, most of legal academia is still in deep denial about just how bad the problem really is. Reformist efforts that get undertaken in the current atmosphere aren't going to get far, because most law professors still have no real idea what we're dealing with here: with just how out of wack the law school cost curve has gotten, and with just how completely the job market for new attorneys has cratered.  I once saw a sign at a naval base outside Chicago which said "If you can keep your head while all around you are losing theirs, then maybe you don't understand the situation." Precisely.  So, in my view, a whole lot more consciousness raising needs to happen before genuine reform has any chance of getting started.

Second, and more fundamentally, it's a sign of the lack of intellectual seriousness of so much of legal academic life that law professors are expected to -- and expect themselves -- to hire a couple of research assistants and just whip up a handy, readily implementable "solution" (in the form of a law review article naturally) to a minor problem such as the ongoing collapse of the traditional economic and pedagogic model of American legal education.  I would suggest that this expectation indicates, among other things, that our methods have become unsound.  "Fixing" legal education in America in any meaningful way is going to require an enormous effort of political will, a terrific expenditure of capital, both economic and cultural, and most of all a whole bunch of currently entitled people getting desperate enough that they're willing to experiment with all sorts of alternative approaches to the status quo, many of which won't work, and all of which are likely to alter the status quo for the worse as far as they're concerned (although not worse than what will happen if they persist in what they'll finally recognize is a futile effort to maintain the status quo).

In other words, we've all got a long way to go.  That, in the end, is why with this blog I've thrown my lot in with the scam bloggers. Yes they are rude and crude and disrespectful of their elders and not much given to making "constructive suggestions" (translation: making a few minor changes while keeping everything else the same to the extent possible).  But they are right.  And until that gets much more generally recognized within the still far-too cozy confines of legal academia, nothing is going to happen.