Sunday, November 27, 2011

Brave new world

This weekend the New York Times ran an editorial with a good first sentence ("American legal education is in crisis"). What followed was a rather confused analysis of that crisis, which failed to grapple with its essence, which is that the cost of acquiring law degrees from ABA-accredited law schools has gone through the roof at the same historical moment when the market for the services of the graduates of those schools has been contracting.  This is a very bad development for people with law degrees. Making law graduates more "practice ready" upon graduation would shift some of the costs of these developments somewhat among lawyers, i.e., from recent to older graduates, but it would not in itself make legal education any less expensive or any more remunerative for lawyers as a class.

The problem, in short, is that at present ABA law schools are pumping out two graduates for every available legal job, and that the cost of acquiring what jobs there are has gotten far too high. No amount of pedagogical reform by itself is going to change that.

Predictably, legal academics have jumped all over the Paper of Record for the editorial's short-sightedness.  Commenting on David Segal's article last week on the same subject, Larry Ribstein observes that an article he's written

Suggests that law schools should teach law students how to be architects and designers rather than mechanics.  The lawyers of the future will focus, more than today’s lawyers, on the building blocks of law. Computers and non-lawyers will handle the mechanical tasks. Training lawyers demands the sort of theoretical perspective that Segal disdains. * * * The real problem * * * is not that law professors are teaching theory rather than the way to the courthouse, but that their choices of which theories to teach pay insufficient attention to the skills and knowledge today’s and tomorrow’s market demands.
I agree with what I take to be one of Ribstein's implicit points here, which is that it doesn't make any economic sense to charge people $150,000 so that they can be licensed to perform routine tasks that can easily be outsourced to non-lawyers and even machines, and that an educational model based on doing so is unsustainable in the long run.

What this line of thinking doesn't acknowledge is that, to spin out Ribstein's metaphor, society (or if you prefer, "the market") doesn't need nearly as many architects and designers as it needs mechanics.  The Carnegie Foundation/McCrate Report criticisms that appear every 15 years or so point out that law schools aren't very good at producing legal mechanics, which is true.  Ribstein et. al. point out that, given the rapidly changing nature of the market for legal services, it's not an efficient use of social resources to dedicate three years of very expensive postgraduate education to producing legal mechanics, which is also true.

But does it follow from these criticisms that we ought to be trying to reconfigure law schools in their present form to produce 50,000 legal "architects and designers" per year, at an average cost, including opportunity costs, to these hypothetical proteges of the brave new legal world of more than $200,000 each? I don't think that follows at all (Of course all this assumes it would even be possible to restructure the American law school in such a way as to perform this impressive feat.  As the old econ joke puts it, assume a can opener).

A more realistic goal, in my view, is to focus first on producing fewer lawyers per year at a much reduced cost.  That goal requires less in the way of visionary speculation and more in the way of political will to face up to unpleasant facts.


  1. You are so right that it's more complicated than the Times would have us believe. I think it's even more complicated than you've stated here - not only are we graduating too many lawyers with 100K+ debt for not enough jobs that pay well enough to service that debt. But at the same time, we have wide swaths of unmet legal needs and no one willing to/able to afford to meet them. We need differentiated law schools (not everyone has to be Yale - or in Ribstein's world, some law schools can turn out architects, others mechanics), with different staffing models, different curricula, different tuitions. We need to treat law more like the business it is (fewer barriers to enter the profession). We need to not subsidize (through federal loans) the elite who make 160K straight out of law school. We need to develop funding sources that allow lawyers to better serve the legal needs of low- and middle-income folks. In other words - truly a crisis.

  2. I think the inability to understand the problem of too many lawyers for too few jobs isn't one that will be solved by explaining it. You can't get a man to understand an idea when his paycheck depends on not understand it, or however the expression goes. You can state the "2 lawyers for every 1 job" line over and over again, and prove it with statistics and real world examples of top law grads who can't find work and legal academia will still look at you with a perplexed "huh? what do you mean?"

  3. "we have wide swaths of unmet legal needs and no one willing to/able to afford to meet them."

    In another thread I demanded that whenever someone make this statement, they provide at least one example. You made the statement so you have to provide the example. Who do you know that can't find a lawyer. What is his or her legal problem? How much did they want to spend?

  4. "A more realistic goal, in my view, is to focus first on producing fewer lawyers per year at a much reduced cost."

    Marge: I want you to stop putting so much sugar into everything. Or at least warn people that it's so unhealthy.

    Garth: Hmm, that'll boost sales! While we're at it, why don't I just change my name back to Hitler?

  5. 10:45--I am not the previous poster, but I will respond to your post. I am embarrassed by your ignorance. If you are a lawyer, you do not deserve to practice law. Perhaps this is yet another indictment of law schools: They are graduating people who don't have a clue about how our legal system disregards the needs of most low- and middle-class Americans.

    You can find extensive documentation of this fact on the internet, both extensive studies and individual stories. For one study, see the Legal Services Corporations' 2009 study, "Documenting the Justice Gap in America."

    As for personal anecdotes, I'm sitting here choosing among many since the blog won't accept a post that's too long. For now I'll go with this: I attended a conference of judges and lawyers two weeks ago, and a primary topic of discussion was the judges' distress at the vast increase in unrepresented litigants in their courts. Imagine presiding over a trial at which one or both parties has never learned the rules of evidence--and the trial is going to determine whether a parent loses her child, a family loses its house, or a man goes to jail. And, although I have my own criticisms of law school, these judges can easily tell you how much a brand new law grad knows compared to an unrepresented litigant.

  6. I don't mean to start a whole thing, but you were asked four very specific questions:

    1. Who do you know that can't find a lawyer. You answered this.

    2. What is his or her legal problem? You answered this, e.g. a child custody dispute, bank foreclosing on a house, man going to jail, but you did not answer the last question.

    3. How much did they want to spend?

    So how much do you think a lawyer should charge to (a) represent a mother or father in a custody dispute to the end of the trial court's deliberations.
    (b) represent a family being foreclosed upon because they did not pay their mortgage. what is the scope of representation here? do they represent them for a month? until they get kicked out? until a trial court rules on their case?
    (c) a person who has been arrested. what were they arrested for?

    Your third example is particularly curious, since we have public defenders.

  7. 11:16: I suggest you look up some info on how the public defender system works in the state in which you're located, since apparently you didn't learn anything about this in law school.

  8. I thought that anyone accused of a felony or a misdemeanor involving jail time got a free public defender?

    What am I missing? I'm not being rhetorical I just want to know.

    Also, I think it would be helpful to get dollar amounts on the three clients described in 11:10/11:16.

  9. 11:16, I will shortcut the questions by addressing the underlying issue that I suspect drives your expression of disbelief: Why, if there are so many unemployed lawyers, don't they serve the clients who have unmet needs? Surely there's a price point at which the two would meet?

    There are many reasons why this market doesn't work. Low- and middle-income Americans have very little cash to spare for legal assistance. And law grads, who have paid so much in time and money for their legal degrees, don't find it worthwhile to work for what these potential clients can pay. Law grads also have college degrees so, if the potential return on their legal services falls below what they can earn in other ways as college grads, they'll leave law.

    Meanwhile, there are many law grads who wouldn't do this legal work even if it paid the same as non-law jobs. This is what some of you so condescendingly call "shitlaw." Plea bargaining for drunk drivers, representing a parent in a child custody battle, helping a home owner stay in her house for an extra two months. These are things that clients really need, but that so many of you disdain.

    I agree that law school costs way too much, and that we need to develop whole new models of legal education. I've been working with people in my state on that. We also need to overturn many of the "ethics" rules that pump up the cost of legal services. I have found it very hard to get practicing lawyers even to consider the latter: I predict you'll change legal education before you change the practicing bar. But let's not bash (or ignore) clients who can't afford legal services.

  10. "The problem, in short, is that at present ABA law schools are pumping out two graduates for every available legal job, and that the cost of acquiring what jobs there are has gotten far too high. No amount of pedagogical reform by itself is going to change that."

    Exactly, LawProf. Thank you so much for all of your efforts.

    Here's a question for you, LawProf: what, exactly, is it going to take for other law professors to finally "get it" the way that you have? Sure, there are some of them who won't ever get it, but as far as the others: former students showing up in their offices to respectfully explain it to them? local practictioners showing up in their offices to respectfully explain it to them? maybe having the professors look at their CSO "job listings," the State Bar's job listings and the local Craig's List section for legal-related employment? Surely (?) they would be shocked not only by the lack of listings, but the nature of those listings.

    One of the most frustrating things about this whole situation is the fundamental disconnect between what's happening on the ground with the legal market (i.e., reality), as those of us on the ground are experiencing it, and the law professors who seem absolutely bound and determined to ignore it and live in a dream world.

  11. "11:16, I will shortcut the questions by addressing the underlying issue that I suspect drives your expression of disbelief"

    OK, respectfully you need to stop dodging the question. I asked you a very precise question, how much did they three clients you described in 11:10/11:16 want to pay for the legal services they requested? What would be a fair price?

  12. Why not start with the Bar? What is with this determination to start with law professors? Is it the fear of alienating potential employers? There are other players in this game, and all people here want to do is talk about law professors.

  13. The State Bar is a pretty powerless and ineffective entity.

  14. I'm not 11:10 - I'm the original commenter on this thread. But I don't see why it's a dodge. There are people who face custody issues who have next-to-nothing to pay, there are those who can pay more. In other words, there's no precise number that can answer to your question. It doesn't mean that there's not a need. Think of the problem like health care. When I am sick, I see a doctor, because I know insurance (that my employer and I have paid into - because my employer and I can afford it) will cover it. But when I have a legal problem, I'm much less likely to get it attended to. Costs are just too high. Not that I couldn't if it were crucial, but I don't. Now move further down the economic scale - to that parent who has next-to-nothing to pay a lawyer and who might lose access to her child without legal advice. A custody issue is a place where I would bite the bullet and pay what needed to be paid. But some don't have that choice. All up and down the economic spectrum we have unmet legal needs - and just like a cold can turn into bronchitis, an unattended legal issue can morph into a disaster. We need a new funding model.

  15. 12:15,

    I think we need to introduce basic 4th century (BC) economics into the discussion.

    A statement was made that people want, but can't afford, legal services. Three specific examples were provided, child custody, criminal defendant and family being foreclosed upon.

    However, the first statement requires that these clients have an amount of money that they can pay, but that there not be a single licensed lawyer willing to work for that prices. Without this element, the first statement is wrong.

    Now when you write, "There are people who face custody issues who have next-to-nothing to pay" which suggests that the three clients didn't want to pay anything! Well no system of legal education, bar regulation or whatever is going to solve that problem!

    My only point in having this exchange is that, the next time someone states the "people can't afford legal services" line we need to demand an example. If the speaker can't provide that example, then we need to ask why they made the statement in the first place.

  16. Right. And when someone without a dime to his name shows up at a hospital with a bullet wound - we should just let him die. Got it.

  17. What happens in your example is that the hospital treats the person, sends him a bill, and if he has any assets or income - sues to collect.

    The hospital doesn't treat the gunshot wound victim for free.

  18. (and if, after collection efforts it becomes clear that he doesn't have any assets or income / and or the patient declares bankruptcy - the fees are written off).

  19. 11:16 and 12:05, You're not even reading my original post. I didn't refer there to three specific clients; I described comments by judges from many states (at a national conference) describing problems they were seeing repeatedly in their courtrooms. These weren't three clients, they were thousands. Do you think the clients were going into the legal system on their own just for fun? Or are the judges lying? On the latter, take a look at

    Since you want a specific client, here's just one of many I know: My husband has a distant cousin who is permanently disabled, living off Social Security in another state. She lives in public housing, and has no income or assets other than her SS. She desperately needs dental work and other things that Medicaid doesn't cover. Her father abandoned the family decades ago, but left her $10,000 (virtually all of his estate) when he died recently. If she just banked the $10,000 to spend on dental care and other necessities over the next year, it would have diminished her social security $ for $ so she still wouldn't have gotten the dental care. She needed a "special needs trust," a routine legal maneuver that clients in many economic brackets use.

    This is a simple legal job involving forms printed off a computer. She visited several legal aid offices, but none could take her on--too swamped with other cases. A private lawyer was willing to do the work for $250 per hour--and ultimately sent a bill for $3500! What could she afford? Nothing. What would she have been willing to pay? Up to $1000. The lawyer thought this cost $3500--and this woman will have to live without some of the dental care she needed. (I might have tried to do the work myself for this woman, but there is some estrangement in that branch of my husband's family and we learned about this after the damage was done. Also, I'm not licensed in that state so I would have been subject to bar discipline if caught doing this routine work.)

    I really can't believe we're having this discussion.

  20. Let's dial this back. I am not suggesting anyone should have to work for free. But the hospital in my example gets paid (some sum)whether the victim pays or not - by some form of social insurance (exactly which form depends on the circumstances). I am saying that as it stands, legal services are priced out of most people's reasonable ability to pay, and we have no fall-back (like insurance). And that would be one thing if legal services were a luxury. But I believe that as often as not they're more like healthcare. And as a society we are all harmed when we treat basic legal rights and needs as luxuries rather than necessities.

  21. "What would she have been willing to pay? Up to $1000. The lawyer thought this cost $3500"

    Thank you for answering the question. So now we have something meaty to talk about - can a lawyer make a living by charging $1,000 to prepare a special needs trust? Unfortunately I will now have to leave this part of the discussion because I have no idea. However, hopefully a trust lawyer can provide an answer.

  22. "We used an attorney who specializes in the areas of elder and special needs; recommended by a financial planner who's got a special needs child of his own. The attorney took the time we needed to help us make informed choices and was there for us afterwards when we had incidental questions. His fee [to set up the special needs trust] of $600 came from the trust fund itself."

    Maybe your cousin should have shopped around a bit!

  23. I can't believe some of the posts I'm reading here today. You folks truly are a sheltered lot.

    Let's start with, "The State Bar is a pretty powerless and ineffective entity." On the contrary, the legal profession is the only group in society that gets to regulate itself. State supreme courts, relying heavily on input from their state bar associations, define what constitutes law practice, and set bar admission standards. Courts and bar associations have successfully maintained for over a century that they alone--not legislatures--have this power.

    Why does only one state (Wisconsin) have a diploma privilege, which allows grads of that state's schools to join the bar without taking the bar exam? Why do state supreme courts increase passing scores on the bar exam whenever there's a recession? That doesn't come from law schools--it's in their interest to make bar admission as easy as possible. That's the power of state bar associations.

    More important, it's state bar associations that sue innovative, low-cost legal providers like Legal Zoom. And it's bar associations that keep out interstate competition. The cousin in the above example could shop around, but only within her state. She may have lived in a high cost state (like California) while the internet poster lived in a low cost one. The California bar (like every other state bar) won't let its residents get legal services from lower cost providers in other states.

    I know that law school courses teach this information in PR courses--and that all grads are required to take those courses. I have a sneaking suspicion that some of you thought this was "theoretical" stuff. It's very practical, and very, very real. Law Grad, 30 years out

  24. The state bar certainly has power. I think the reason they don't get criticized, though, is that:

    (a) They don't profit off of the law school scam. State bar employees are generally low paid government workers. You don't see them making $500,000 or $200,000 salaries at the expense of law students.

    (b) They didn't commit any of the nefarious acts that comprise the scam. As far as I know the state bars don't publish any materials suggesting that lawyers get high paying jobs, or that becoming a lawyer is an attractive career.

  25. Right, the law schools are the root of the saturation problem because they admit and graduate too many people. The bar associations might be able to do something about it, but its ultimately the law schools that are responsible for this. The professors are guilty because they profit from this without saying or doing anything about it.

  26. Could you imagine the bloodbath if say, the state bars lowered the bar passage rate to 40 or 50%? That would take care of the saturation problem but dear lord the schools would scream bloody murder.

  27. If I keep knocking my head against this wall, I'm going to need a carpenter.

    "State bar employees are generally low paid government workers," Sure, but state bar employees don't promulgate the rules of ethics, set bar admission standards, or discipline lawyers who fail to abide by the bar's restraints of trade. The employees answer phones and enter data. Go to your state bar's website and look at the biographies of the lawyers who serve on the board of governors, executive council, or whatever the top group is called in your state. That is the "state bar association."

    "I thought that anyone accused of a felony or a misdemeanor involving jail time got a free public defender?" Oh, boy. The standards vary somewhat by state but, generally, you are eligible for a PD only if your income is less than 125% of the federal poverty level. For a single person, that currently means less than $13,613 annual salary. So if you earn $14,000 a year and get stopped on a DUI (or even get caught taking a leak in public) you're out of luck. What will a private lawyer charge to represent you? For the public leak (a misdemeanor) $500 to $1000. For the DUI, more like $5000 and up depending on the circumstances. Of course, you get what you pay for--a lawyer charging more probably has more experience, better relationship with the prosecutors, etc. Given the penalties for DUIs, I'd sure like someone a little above the bargain basement.

    Why so much even for the bargain basement? For the misdemeanor, your lawyer will have to go to the courthouse at least twice to get you the going deal on that charge; the first time the prosecutor will say "plead to the charge." Each time, the lawyer will wait around for the judge or prosecutor to be free--and if he has to wait in the courtroom (often the case), the judge probably won't let him use a cell phone or text. Hard to get much other work done while waiting. The courts and prosecutors are so understaffed that the wait times can be very long.

    The lawyer will also need to talk with the client, figuring out what needs to be set up to produce the best sentence (e.g. if you can persuade the client to start immediately with AA, the sentence may be less). The client will lie to the lawyer about significant facts (e.g., prior convictions) during the first meeting, so the lawyer will need to check records and talk again with the client.

    And here we're talking about cases in which there's no question of guilt, no fourth amendment violations, no disputed facts. If the police violated your fourth amendment rights (happens all the time) or tased you during the arrest (very much on the rise), well you'll pay a lot more if you need lawyer time to raise those violations. And if you happen to be innocent and want to contest your guilt at trial...that is going to cost much, much more.

    Thirty years out and getting grayer by the day

  28. The NYT editorial is just what the doctor ordered. I am glad that the scamblogger critique is expanding beyond costs, job prospects, and career services lies to include the piss-poor job that law schools do in training young lawyers.

    I propose a return to the 19th century apprentice model, updated and modified, of course, for these more complicated times.

    Law school should begin with a bar-review-like crash course to teach core doctrine fast, plus a couple of classes in legal research and writing. No more "hide the ball" pedagogy-- appellate decisions should be assigned sparingly, to illustrate the application of particular doctrines that students have already learned. And no more waste-of-time "Socratic" bullying sessions.

    Following that, there should be a two-year-long structured series of clinics and externships to train students to try a case, write and argue an appeal, run an office, and represent clients in several different practice areas of their choice. These clinics and externships should be supervised by successful local practitioners, not by professors who have not seen the inside of a courtroom in 15 years, if ever.

  29. With all the fair criticisms of law school, I have to ask. Does it do anything right for its students? Does it do a good job at anything that benefits students?

  30. Anonymous, aka Thirty Years Out. You are exactly right. I mentioned the Bars of all the states because they are, in fact, the seat of power in the profession. They have the power to shape the practice and the profession in fundamental ways. Yet, no one demands anything from them. It is either because people do not know what they do--and the exchanges here suggest that us likely the case--or it is as I suggested: people do not want to engage people in a way that may mark them negatively.

  31. But what, realistically, can the bar associations do?

  32. "Can a lawyer make a living by charging $1,000 to prepare a special needs trust?" Ok, as someone with a little economics knowledge, I'm going to take that one on too.

    First, it's not the right question from an economist's point of view. The right question is: "Will new entrants come into the market to prepare special needs trusts for $1000 or less?" Or, "Will new entrants come into the market to defend misdemeanors at less than $500 a shot?"

    The lawyers currently in the market are experienced and have established client bases; they can get more than $1000 or $500 for these tasks. There is some competition among experienced lawyers to gain more clients by lowering prices. But the real action in any market comes from new entrants. For those of you who are unemployed law grads, today's posts have suggested at least two markets in which you might find clients: Drafting special needs trusts for the poor (because legal aid generally doesn't handle this) and defending the near-poor in criminal cases. According to classical economics, you should be eagerly researching these two areas and figuring out how you can efficiently meet these needs. If there's ANY WAY to make a living meeting these needs, you should be plunging in.

    If you're not doing that, don't feel bad: The graduates before you, in good times and bad, haven't done much of it either. Maybe it's because the lawyers before them definitively proved that you can't make a living doing these things--or, at least, you can make a better living doing something entirely unrelated to law.

    But there are at least two other reasons why you're not seeing eager new entrants in these areas. One, legal ethics rules forbid nonlawyers from investing in a law practice. So you can't go to your entrepreneurial college classmate and say, "hey, you've got a bit of capital and some business know-how, I've got the legal knowledge--why don't we set up shop together and split the profits?"

    Lawyers have to be their own investors and business people, a scenario that doesn't make sense. Of course, if you make this point to state bar associations they'll raise their collective eyebrows and say, "Are you suggesting that we have WALMART lawyers??????" Well, yes, if you want to provide legal services efficiently, that's probably just what we need.

    Second, and this is where I join forces with much of the commentary on this blog: The size of law school debt has grown so much that it would be foolhardy for individual grads to go out and create start-up practices addressing these needs. Escalating tuition--combined with the bar's restrictions--is putting a real damper on new entrants to law practice.

    But if you focus exclusively on the law schools (and again, I'm with you there), and ignore the realities of law practice, you sound a lot like the professors who won't listen to facts about legal education. Thirty Years.

  33. "They are graduating people who don't have a clue about how our legal system disregards the needs of most low- and middle-class Americans... [and all subsequent responses"

    The discussion that's missing here is that one good reason we have so many people without representation is because, as a whole, we just have more litigation. That has become the answer to life's problems.

    I don't think this is a good development.

    More lawyers, even if they work for near free, will not improve matters for our litigious society.

  34. Can I just point out that, In response to the question:

    "Can a lawyer make a living by charging $1,000 to prepare a special needs trust?"

    You wrote,

    "First, it's not the right question from an economist's point of view."

    Then you wrote a bunch of other stuff flesching out the "right question" at which point you concluded with:

    "If there's ANY WAY to make a living meeting these needs, you should be plunging in."

    Do you see the irony?

  35. 12:48 resolved that lawyers are preparing special needs trusts for much less than $1,000. I think the person who was quoted a $3,500 fee to set up a special needs trust must have called Sullivan and Cromwell or something.

  36. 4:12, No I don't see the irony. I see someone who tries to score points with words, rather than thinking things through. That's bad lawyering.

    The point is that there is no government office, practitioner, professor, or other guru who can tell you whether it's possible to make a living preparing special needs trusts for $1000 (or any other figure). In a market system, it all depends on what the providers think is a "living" and on how efficiently they can provide the services. And it's the new entrants to a market who keep pushing those limits--market economies are dynamic and depend upon innovation.

    I offered you several thoughts about why law practice doesn't function very well as a market, but you don't seem interested in those.

    And to 4:18 (maybe the same person?), If you think an anonymous commenter on a blog has established the price of a particular legal service by quoting an anonymous poster on another blog, especially when the price of legal services varies by state (with the bar assn restraints I've explained), well, please tell me you don't think that. I've been hoping my colleagues were wrong when they complain that new lawyers rely indiscriminately on anonymous internet sources for their facts.

  37. "The point is that there is no government office, practitioner, professor, or other guru who can tell you whether it's possible to make a living preparing special needs trusts for $1000 (or any other figure)."

    Doesn't that directly contradict your earlier statement of,

    "For those of you who are unemployed law grads, today's posts have suggested at least two markets in which you might find clients: Drafting special needs trusts for the poor (because legal aid generally doesn't handle this) and defending the near-poor in criminal cases. According to classical economics, you should be eagerly researching these two areas and figuring out how you can efficiently meet these needs. If there's ANY WAY to make a living meeting these needs, you should be plunging in."


    On the one hand you're saying that unemployed law grads should figure out if they can make a living in a particular area, and if they can they should jump in. In your other statement you say that it's impossible to know whether you can make a living preparing special needs trusts for a certain price.

    Whatever. I won't carry on this line of discussion further but I just wanted to point out the inconsistencies in what you're saying.

  38. P.S. I agree with your comments about tying legal education to market forces, and placing greater import on market forces in general.

  39. You know, you and Segal, on the one hand, and Hoffman, on the other, just have it wrong.

    Almost five years into practice, I believe there are real problems in both legal education and practice.

    But I also believe Segal's article - which you took credit for helping - was childishly simplistic and trafficked in stereotypes about lawyers for the purpose of vaulting it to the top of the NYT's ratings (it was ranked #2 for most emailed articles last I checked). Campos, I realize you have never practiced (or practiced only a trivial amount), but how high a priority should it be for law schools to teach what kind of document to file with the secretary of state before a merger? That is the exact kind of thing that is best, and should be, taught in context -- i.e., in practice.

    Hoffman's post mystified me. I hope his attitude does not typify that of law professors, but the possibility that it may does not send me running into the arms of your simplistic point of view.

    A great take on the Segal piece:

  40. Oh and the NYT editorial was ridiculous and totally unhelpful. To paraphrase good lawyers everywhere, if you don't have anything helpful to say, shut the hell up.

  41. Kudos to you, Law Professor, for pointing out what the New York Times article lacked. I get disheartened when I read suggestions that the reason the law school model is currently failing is because not enough practical skills are being taught or that the third year should be dropped and replaced with an apprenticeship model. I come from a school that teaches ONLY practical skills: by the time I graduated from law school, I had conducted five full-length trials, written numerous court opinions (I interned for a judge), contracts, briefs, answers, complaints, etc., Acquiring these skills did not give me or any of my fellow graduates from the same school any advantages in the job market. In fact, employers will still pass us over in favor of recent graduates who have never seen a courtroom but graduated from a more credentialed school.

    For that reason, I don't buy that it's the lack of skills that has resulted in low employment rates for recent graduates. That's just an excuse to justify hiring recent graduates for lower and lower wages - ie: "they don't deserve the wages they're getting and should be willing to work for free because they are completely unskilled."

    Worse, it avoids any meaningful reflection on the real issue: why has law school tuition spiralled so much out of control that going to law school is no longer a reachable goal for the average individual?

    We can talk until we are blue in the face about whether law schools should teach a contracts theory or practical skills course, but all the skills in the world won't help if there are no jobs and law school is priced so far out of the range that no one can no longer afford to attend.

  42. 5:36: My contribution to David Segal's article was limited to helping estimate how the rate of legal academic publishing has changed over time, and estimating how much tuition is being spent subsidizing that scholarship. As I've emphasized several times on this blog, I don't think that MacCrate/Carnegie style criticisms have much relevance to the key problems with legal education.

  43. While you are in the line, that 10,000 law review articles figure consists of just articles by law professors, exclusive of Notes?

  44. I don't even know what to say to the person who doesn't see why students should know the varios forms that have to be filed and the various other steps that have to completed to deliver a legal product to a customer.

    5:36, what do you recommend teaching in place of the above? Some Law and X BS like "menstrual themes in Hume oriented themes underlying the legal philosophy of aboriginal land use right?"

  45. 10,000 articles by law profs every year, or does the 10,000 figure include student notes?

  46. 5:57, You are correct that teaching practical skills will not create jobs. However, why not teach practical legal skills? Why teach some other "law and X" topic in their place?

    Regarding your question as to why law school tuition has increased, we've identified the following causes:

    1. The most direct cause is that students are willing to pay that price. Markets allow suppliers to charge whatever buyers will pay, so naturally law schools have increased - and continue to increase - tuitions.

    2. Why are students willing to pay these prices? Fraud. Law schools tell students, "don't go into that other program with their measily $50,000 to $80,000 salary and boring jobs doing physical therapy, being a chiropractor, being an oil worker, being a medical assistant, being an engineer, being a computer programmer and so on, come to law school where you can earn $160,000 to be a big shot lawyer!"

    So students take their student loan money - which is a blessed gift from our government - and waste it on the black ooze of legal education. They waste three years, subject themselves to a 40% rate of depression (studies have shown that 40% of 3Ls are depressed where as 8% of 0Ls are depressed), and wind up getting thrown out worse off than they were when they started law school.

    If sellers are allowed to get away with fraud, the price discovery mechanism of the free market fails and prices grow to unjustifiable amounts. Allow me to lie enough and I can get people to pay $100,000 for a Hyundai.

  47. Two stories:

    LONG BEACH, Calif. (AP) — Jesse Yeh uses the University of California-Berkeley library instead of buying textbooks. He scrounges for free food at campus events and occasionally skips meals. He's stopped exercising and sleeps five to six hours per night so he can take 21 credits — a course load so heavy he had to get special permission from a dean.

    The only thing he won't do: take out a student loan.

    "I see a lot of my friends who took out student loans, then they graduated and because of the economy right now they still couldn't find a job," said the third-year student, whose parents both lost their jobs in 2009 and who grew up in the boom-and-bust town of Victorville, Calif., on a block with several houses in foreclosure. "The debt burden is really heavy on them."

    China to Cancel College Majors That Don’t Pay
    Much like the U.S., China is aiming to address a problematic demographic that has recently emerged: a generation of jobless graduates. China’s solution to that problem, however, has some in the country scratching their heads.

    China’s Ministry of Education announced this week plans to phase out majors producing unemployable graduates, according to state-run media Xinhua. The government will soon start evaluating college majors by their employment rates, downsizing or cutting those studies in which less than 60% of graduates fail for two consecutive years to find work.

  48. Student notes aren't part of the calculation.

  49. Thanks for the answer.

  50. One more thing, Segal does not give a citation for the statement. Do you know what study he used?

  51. I generated estimates for him going back to 1970 by taking representative samples from the legal periodical literature and the indexes to it.

  52. LawProf, will you specifically dissociate yourself from anything in the Segal piece, or are you content merely to claim credit for pieces of it and leave the impression you generally endorse the rest with unspecified reservations? That was the shoddiest, laziest piece of journalism I have seen in a long while.

  53. I think Segal's work is one of the most important pieces of journalism I've seen in a long time.

  54. As a practicing lawyer, I'll share the way I price non-contigency cases. You estimate how many court appearances will be involved, then figure out a per court appearance fee. In my case I typically charge $500 per court appearance which works out to half a day in court and includes my out of court preparation time. This does not cover trial time which I will bill on an hourly basis.

    Most typically you show up to court early, get in line, talk to a prosecutor, find out that they don't have all the paperwork they need, bounce through at least one social worker (for example on a domestic violence case) and generally wait around for the system to catch up to you.

    Because courts in my state do not like to let Attorneys withdraw from cases for non-payment, it forces attorneys like myself to demand retainer fees of say $3,000 up front for felony cases because we know that case will be in court at least six times if not more, even without trial. Clients will often offer to "pay as they go". In criminal law cases I have rarely seen such promises honored by the promisor, so you get forced to demand money up front unless you wish to regularly sue your clients and get grieved in exchange.

    While criminal cases are predictable, any case involving a custody or child support matter can drag on for years so Attorneys tend to demand equally high retainers.

    If I could simply withdraw for nonpayment of legal fees I could drop my fees by a third, but Judges hate this because they do not want to see any more pro-se parties in court and will tell you in essence, that you signed up you are in for the duration.

  55. @7:54
    I read your first article and I'm not sure I understand its particular relevance to this current discussion. Let me state my take away from the thing:
    The article was about how students, at undergraduate institutions, who take on extreme measures in order to avoid taking out any loans which they may need are less likely to finish their degrees (which the article assumes is bad.)
    What does that have to do with an education that is so expensive that one cannot but help to go six figures into debt? If you avoid loans in this case (and need them) you probably cannot even attend, right?
    Maybe you got a different take away from the article, or maybe it fits into the grand theme of things in a way I don't see, I'd be interested in hearing about it.

  56. Maybe one thing that would help correct some of the problems would be if law schools actually started failing people.

    What is the point of a forced curve if everyone passes anyway? Is it just to ensure you take away a certain percentage of merit scholarships while convincing all 200+ students that they still "have what it takes" to finish law school and land a job?

    Do you mean to tell me that the admissions folks do SUCH a good job screening their applicants that pretty much 100% of the students are able to graduate?

    Save the poor performers from an extra $60-$100k of debt and 2 years of their lives and fail them after 1L.

  57. 4:36, That would hurt revenue. The game is to extract as much money from the victims as possible before depositing their body at commencement.

  58. Maybe one thing that would help correct some of the problems would be if law schools actually started failing people.

    Yeah this has been a running question among my friends all through law school. Seeing how dumb people could be, how poorly they've prepped, how little they know the law, and yet they're still able to squeak out a B- (or the occasional C) and you're left wondering, "Jesus Christ, how dumb do you have to be to fail a class?!"

    I have only heard of one case of one student in my year failing a class. It was a 100-question crim law multiple choice exam and the kid just straight-up guessed on the whole thing and walked out after 10 minutes. Even then, grades were delay for a couple of weeks because the professor "couldn't figure out what to do".


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