Mistaken beliefs about the crisis of the American law school: Part I

This week I'm planning to write about various widespread but in my view mistaken beliefs regarding the intensifying crisis in American legal education.  I'm going to start with this one:

The biggest problem with American legal education is that it fails to produce practice-ready graduates.

This claim has been made by critics of the legal academic establishment for roughly a century now (every 15 years or so some sort of quasi-official report reiterates it).  It was a topic of discussion at a law school symposium this weekend on the future of the legal profession, and is apparently a theme of Jim Molitenrno's forthcoming book, A Profession in Crisis, which argues that the fundamental problems with legal education today are in large part products of the fact that more than a century ago "medical schools decided that their mission would be to turn out doctors, while law schools decided that their mission would be to turn out law professors."

Now the claim that law schools remain largely indifferent to the fact that law school teaches law students almost nothing about the practice of law is itself quite true.  What isn't the case is that this fact has in itself much to do with the increasingly unacceptable relationship between the cost of a law degree and the economic benefits it confers.  Making graduates practice-ready is a fine idea in theory -- why else are law students going to law school anyway? -- but if such reforms do nothing about, or worse yet exacerbate, the crumbling cost-benefit structure of legal education they will do nothing about this fundamental structural problem.

Producing "practice-ready" graduates (to the extent this could be done within the context of institutions that even loosely resemble current American law schools) does nothing about the problem that there aren't nearly enough legal jobs that would allow those graduates to practice their newly-acquired skills, and even fewer legal jobs that pay enough to justify the current cost of legal education.  And the only thing producing law graduates who are better prepared to practice law will do to the basic economics of the legal services industry is to make new lawyers better off than they would otherwise be relative to experienced attorneys, while doing nothing for the economic circumstances of the profession as a whole.

It appears the great hope of at least some people who advocate a more practically useful legal academic curriculum is that turning out tens of thousands of new attorneys every year who are ready to hit the ground running will drive down the cost of legal services, thus creating new markets for those services, and thus more legal jobs.  I don't understand how this theory is supposed to work in practice.  For one thing, it's difficult to envision how moving law school toward a more experiential, practice-based, clinical model is going to make legal education less expensive, again at least within the confines of anything even vaguely resembling the contemporary American law school. Any reform that doesn't make legal education less expensive while reducing the number of new attorneys is doing nothing about the real crisis, which is that law school costs far too much relative to the number of jobs available for attorneys.

After all, given the basic structure of American legal education, making that education more clinically intensive would be even more expensive than maintaining the present model, which remains centered on tenure-track law professors teaching classes with 50 and 75 and 120 students in them. (The simplest way to drive down the cost of legal education would be to make the tenure-track faculty teach the same number of classes their predecessors  were teaching in the 1970s. It's true this might result in 5000 rather than 10,000 law review articles being published per year, but under the circumstances this might be a price worth paying).

Now it's true that a genuinely clinical model could be cheaper within the context of a radical restructuring of legal education -- one in which for example law school is transformed into an undergraduate major followed by a year or two of supervised apprenticeship work.  But within the current model, in which law schools are supposed to be a combination of graduate schools of law and vocational training centers, doing what would actually be necessary to produce graduates who are more ready to practice law than current graduates would drive up the cost of legal education even beyond its present absurd and unsustainable level. And doing so would certainly not do anything about the fact that ABA-accredited law schools are producing (at least) two law graduates for every legal job.

In other words, to the limited extent that making new graduates more practice-ready would enhance their future earning potential, it would to that same extent decrease the future earnings of older graduates. And if the increased cost of producing practice-ready lawyers turns out to be higher than the enhancement of earning potential such reforms produce that would actually make law degrees even worse investments for future graduates than they have been for recent ones.   The problem, as these statistics illustrate, is that it appears essentially the same number of real legal jobs that existed 25 years ago are now being pursued by literally twice as many lawyers. Which of those lawyers get and keep those jobs is not nearly as important as the fact that the ratio between legal jobs and people with law degrees continues to get worse every year.