Thinking the unthinkable

Perhaps the most troubling aspect of this job is that doing it seems to entail making an implicit representation to one's students that attending law school is going to end up being a good long-term decision for at least a solid majority of them.  It doesn't seem plausible to me to characterize accepting money from students in return for a legal education (or in any event a law degree) as an arm's-length transaction.

This is particularly evident when we're asked by the school's administration to attend events at which admitted prospective students have a chance to meet faculty, as they attempt to decide whether to enroll at this or that law school.  I doubt that the average dean, or for that matter the average faculty member, seriously considers the possibility that a prospective student at such an event might be told to think about going to another law school, or, even more shockingly, to not go to law school at all.

Now why is that? It's not, I don't believe, because such gatherings are conceptualized by administrators and faculty as sales events, so that giving prospective students genuinely candid advice about going to law school would be considered as strange as a car dealership giving people looking to lease new cars genuinely candid advice about whether leasing a new car was a good idea for them all things considered.

Rather, my impression is that for most people in legal academia the proposition "our students would as a group be better off if they hadn't enrolled in law school" is as a practical matter an unthinkable thought.  That isn't a thought which is available to a well-socialized legal academic, because being a well-socialized legal academic means, among other things, that one's social identity is constructed on the basis of an axiomatic assumption that going to law school is a good decision for one's students -- not in every single individual case, of course, but "generally," which is to say collectively. 

Since producing a collectively beneficial outcome for one's students would seem to be the minimum criterion for doing a job worth doing, rejecting that assumption means accepting the possibility that one's job -- which is to say a core aspect of one's identity if one is an upper class professional -- is in an exercise in bad faith.  And since that is an extremely unpleasant possibility, most people don't find it too difficult under most circumstances to accede to whatever combination of social, psychological, and ideological forces keep that possibility from ever being considered seriously.

But let us consider it anyway.  To frame the question in economic terms, at how many law schools at present are the transactions involved in getting a law degree going to end up being "efficient" for the student body as a whole?

Now obviously something like getting a law degree is even under the best possible social and economic circumstances never going to produce Pareto efficiency for the collective student body. (Pareto efficiency is defined as a transaction that leaves some party or parties to it better off, while leaving no parties to it worse off.)  But what about the far more modest demands of Kaldor-Hicks efficiency, which is defined as a transaction that produces a collectively positive result for the parties to it, although some individual party or parties to it may be left worse off?

I'm not asking this question rhetorically.  I'm merely suggesting that it's a question that, under present circumstances, should become a very real and pressing one at every law school in the country, as it is not, I would suggest, completely clear that any law school now meets this criterion, while it is quite clear that many do not.