Tuesday, November 1, 2011

Talk is cheap, change is expensive

The National Law Journal is holding an internet forum on its Law School Review blog regarding the question of whether law schools are in crisis.  I particularly recommend:

(1) Brian Tamanaha's acerbic take on this issue, which points out that, for the present at least, law schools are "doing just fine, thank you."  It's only when one considers the situation faced by our recent graduates, well more than half of whom either don't have real legal jobs at all, or have legal jobs that don't pay anywhere close to enough to service the debt they've incurred as a consequence of our skyrocketing operating costs, that one might get the idea that all is not for the best, in this the best of all possible legal academic worlds.

(2) Bill Henderson's cold-blooded analysis of the long-term structural changes in the market for legal services, that helps explain why the situation Tamanaha describes has come about, and why those changes will eventually require law schools to make major, as opposed to cosmetic, changes in the way they operate. Henderson points out that there are enormous inertial barriers to such changes:

Institutional change is extraordinarily difficult.  But I think it is extra hard for law schools. Law faculty have little or no experience making high stakes business decisions, yet we control curriculum and appointments, which are the areas that need major rethinking.  Talk is cheap--and we specialize in talk.  Like any other industry undergoing structural change, we need to objectively assess our situation and be prepared to take decisive action despite painful tradeoffs and imperfect information.  For law faculty, our biggest risk factors are indecision and denial. 
Henderson argues that clients are shifting the cost of training lawyers onto firms, who in turn will find ways to put pressure on law schools to train people to be lawyers.  While this demand may seem outrageous on its face -- are we not meant for nobler tasks than mere vocational training? -- Henderson suggests that economic necessity will force most law schools, if only slowly and painfully, to surrender some of their more elaborate and expensive academic pretensions, despite the extent to which we've fallen in love with the flattering self-image those pretensions provide us (Nietzsche:  "A pair of powerful spectacles has sometimes sufficed to cure a person in love.").  

Henderson has a gift for asking the kind of simple, straightforward question whose answer is both so obvious and so disturbing that it never gets asked by those who should be asking it. For example: "In the year 2011, should the heavily indebted federal government underwrite the record production of law school graduates?"  And he points out that we law professors should be asking lawyers and law students these sorts of questions, rather than each other.


  1. Also worth reading is Henderson's response in the comments to a comment by Orin Kerr, where Henderson talks more about the resistance to change.

  2. One point worth mentioning...This systemic problem has a profound impact on all lawyers, not just recent graduates. In other words, a lawyer who graduated ten or fifteen years ago who is now out of work, is looking down the barrel of a shotgun as well. Experience does not seem to matter these days when 100 applicants are applying to one position.

  3. This should be a good venue for having a productive discussion, and engaging lots of different viewpoints and perspectives.

  4. You might have to do an end run around the institutional reform, and just join the protesters. They're the only group trying to make large-scale changes happen.

  5. One reason why the profession has been so slow to change is that the rules against profit-sharing have kept law firms relatively untouched by the kinds of managerial and organizational reforms that happen in other industries. The rules have enabled law firms to continue using an archaic model, where each partner still has his own little business and (more or less) handles everything from marketing to intake to billing and collection.

    I would be sad to see the rules against profit-sharing go (and not just for self-serving reasons). But they do have the effect of holding back innovation.

  6. That is definitely not the case at larger firms.

  7. A possible future for American law firms.


  8. You have got to be fucking kidding me...ACADEMIC pretensions?!?!?! Dudes and dudettes, if you want to screw around with this bullshit line kindly do not do it with other people's money or with so much of it. Do like the Greeks and find a cave somewhere and go to town.

    You don't want to teach lawyers how to be lawyers?? This is actually a serious thought? God I hate you people. Just die off already. Useless twats.

  9. @Campos:

    Between you, Henderson and Tamanaha, you've gotten Orin Kerr past the is-it-really-that-bad? stage and into the it's-bad-but-it's-cyclical stage of law professor denial regarding employment outcomes. Good work.

  10. @John-

    So very true. I still think Henderson is more of a shill creating an academic niche off of the legal market. Professors Campos and Tamanaha seem to generally care.

    It's actually kind of humerous to watch the reality slowly set in especially with people who have so much pretension about their intelligence.

    Can you imagine what most profs would do if loans were cut off tomorrow? The only thing more entertaining is to watch the reactions of CPAs should a flat tax ever pass. All kinds of Schaudenfreudey awesomeness.

    It kind of reminds me of this vid:


  11. In the Henderson article:

    "In the years to come, many of the most lucrative, challenging and innovative opportunities will lie at the intersection of law and other disciplines. Law schools are ill-equipped to teach many of these critical competencies, such as teamwork, collaboration, project management, finance, marketing, statistics, knowledge management and effective communication across knowledge domains."

    And yet this blog hates the "law and" movement.

    You are beginning to muddle your message. And don't say "law school is broken" is the message, and these all support that. Your definitions of "broken" are not complementary, but internally inconsistent. For example, teach "'law and' as Henderson says in the form of law and stats, law and business, etc." v. "teach vocational, practical training only; it's not all SCOTUS cases and law rev articles, guys!"

    Good goals:

    1. Transparency in jobs numbers.
    2. Slightly more clinical experience (with the caveat that actual practical experience can only come from working and having full-time responsibility for real cases, not from glorified internships).
    3. Chill out on tuition increases, perhaps in part by lowering the law school "tax" to parent institutions.

    Oh and 4. accept imperfection in your goal to transform law school into a place you would not yourself be qualified to teach at. Think about that--what are the chances that is even possible? No stakeholder has any interest in seeing it happen.


  12. Professor,

    You do a great job of highlighting certain issues within the issue. Thanks for shining the light on what needs to be shined on.

    Keep up the good work!

  13. Jonn writes:

    Between you, Henderson and Tamanaha, you've gotten Orin Kerr past the is-it-really-that-bad? stage and into the it's-bad-but-it's-cyclical stage of law professor denial regarding employment outcomes. Good work.

    I'm flattered that anyone cares what my views are on this, but you're confusing two different questions: (1) Whether the job market for lawyers is good or bad right now, and if so, why and for how long; and (2) Whether law school is a "scam," and if so, what we should do about it. My recent comments in response to Bill Henderson were about issue (1), whereas our prior discussions were about issue (2).


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