Hacking The Legal Academy

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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40 Responses

  1. Avatar NewDealer says:

    I am still not sure how much of this is a paradigm shift or just a longer-lasting cyclical depression. There have been other times with a more lawyers than positions. The 1970s recession being one, the early 90s recession being another. Both times law especially big law bounced back.

    There have been some notable firms that went bust but there are still a lot of really big law firms out there that makes lots of money every year.

    The issue with the loan caps is that would seem widen the gap more between the haves and the have nots. Student debt might be large and crushing but it does allow people from modest backgrounds to attend college and grad school. I’m afraid that with loan caps, only the well-off will attend law school. And I see that you already mentioned that….

    I’m not sure how I feel about the waiting period. I think the theory behind it is that kids would choose not to go to law school because they have jobs/careers and are making some money but I am not sure this is true. I received my BA in 2002. The classmates of mine who are doing the best financially seem to have gone straight to grad school and then professions. The ones who kicked around a bit and tried more daring/less common paths (like me) seem to be taking a bit longer to “make it”. One friend (not a lawyer) just got his first job with benefits and everything and it took him until 30 so. I am still waiting for a job that provides insurance and vacation time. The last job I had that gave me PTO was when I was 22-23 and teaching English in Japan. I know other people my age in the same boat.

    The one issue with the End of Big Law is how it changes the rest of the market. My law school was founded before WWI started. For most of the school’s history, it was a well-respected regional law school that provided lawyers to most small and medium sized firms in the Bay Area. Many or most superior court judges in Northern California are or were from my law school. This was all destroyed by the US News World Report rankings and craze of big law. Now people out of big law are taking positions that used to go to people from my school.Report

    • Avatar Michael Drew in reply to NewDealer says:

      ND,

      I agree with your intuition about the gap. It seems like the gap is already in place for lots of law school students, and from what I have seen, it doesn’t really filter for a set of applicants especially committed to law school for whatever the right reasons are supposed to be. Rather, it just produces a set of applicants of which there are a significant number of who, like their colleagues who went directly from undergrad to law schools

      I think, though, that your resistance to the loan cap idea, though laudable in your concern for mobility, ultimately doesn’t deal with the problem as the kind of hard problem that it is – if it is that. And I do think you’re justified in being somewhat cautious in granting to the Campos view of the world the assumption that this is structural not a cyclical shift, so it’s legitimate for you to resist the loan cap idea on that basis. But if the problem is more long-term than the downturns in the market you mention, then I think only Campos’ suggestion, among those in the TNR piece, really confronts that problem directly at all. As I said to Burt, most of the others basically just tinker with the law school product to make it somewhat more practically valuable, which is perfectly laudable. But if the problem is the way Campos sees it, then, ultimately, the only way that’s going to be addressed is by a lessening of the perception of law school as an available means to advancement compared to how it’s currently perceived (which is not at all to say a complete eradication of that perception), by one means or another. Over time, if the crisis persists, people will simply start to realize that it’s not a worthwhile proposition for them. Campos’ point is that we’re currently facilitating and encouraging people to pursue this route to mobility with public policy that’s basically heedless of the value of what it actually facilitates. And moreover, if the Campos view of law school’s value to a typical student is right, then in actual point of fact, the reality of the extent of the loss of a tool for economic and professional mobility would be much mitigated compared to the perception thereof. Meaning, it’s not a loss of mobility if currently law school is in a much too large number of cases not actually promoting mobility and is materially harming lives by saddling young people with debt to finance the acquisition of an asset of greatly less actual value than advertised.

      If all that’s the case, then, even if it would cause some students not to be able to go to law school who might benefit from it, it’s still destructive public policy to more or less blindly facilitate the assumption of all that extra debt (compared to implementing some form of actuarial control on it) if the results are more typically harmful to a student’s life prospects than helpful.

      But, as I started out saying, those are legitimate “ifs,” and you’re not wrong to remain not fully convinced the situation won’t improve. The current problems could have some kind of a natural end to them that is on its way, as they have in the past. But if they don’t, it doesn’t seem like sound policy to compound them by so extensively and indiscriminately financing law school attendance, thereby artificially worsening, separately, each of the problems of 1) there being too many JDs conferred compared to available legal jobs, 2) by too many law schools, 3) each at too high a price, financed with non-dischargeable debt. Indiscriminate availability of financing for law school attendance separately drives each one of those problems. The government effectively has a gravy spigot open for cash to cover law school costs, creating something of rushing gravy river, and all a law school has to do to get afloat is put together something they can call a gravy boat that will carry students down the river to a presumed turkey feast – all they have to do is sign on the dotted line. If the market for people with JDs recovers, it could all still work out okay. If not, there’s gonna be a lot of gravy to clean up.Report

      • …oops.

        …who, like their colleagues who went directly from undergrad to law schools, decided to go basically because they couldn’t find better opportunities or fields that match their interests better (as opposed to having a positive belief that law matches their interests and talents particularly well).Report

      • Avatar NewDealer in reply to Michael Drew says:

        What makes law school different from other graduate programs in this regard? Would we suggest putting loan caps on M.F.A. programs? Arts and Humanities graduate programs? After all, most people who get those degrees will never get positions in the academy or as full-time artists. People talk about how there are too many adjunct positions and too many PhDs? I don’t think this is a new problem either. In AS Byatt’s Possession, there is a line about the main character being 1 of 600 applicants for an academic post in English Lit. The novel takes place in 1986.

        Or would those fields be saved from loan caps because they are more purely educational?

        Closing law schools is another tricky issue but I often see people saying that all law schools below the Top 10-20 should be shut down and they seem to mean it. Isn’t this just a wee bit too pro-corporate and elitist? Most of the lawyers in the Top 10-20 go to the big corporate firms. They do not go on to be public defenders, wills and trusts lawyers, family/divorce lawyers, immigration lawyers, plaintiff’s lawyers, tenant-landlord lawyers, or other “real people law” fields.
        Also why should the U.S. News and World Report rankings determine which law school survives or not? They aren’t academic accreditors?

        Would people say argue that most colleges or universities should shut down?

        In the end, I am not a fan of the nudge school of getting people to live better by removing their choices. It seems anti-democratic.Report

        • Avatar Kim in reply to NewDealer says:

          Let us discuss the so called “academic question”
          How much of your ranks of academia do you want to go
          to the people most willing to whore themselves for a job —
          or blackmail others?

          1 in 600 odds (which back then was exceptional, but is now distressingly common) means that the venal will win out, time and time again.Report

        • Avatar Griff in reply to NewDealer says:

          Can people borrow the same kind of astronomical sums for MFA programs that they can for law school? Honest question as I just don’t know how this works — but I think most of the grad students I’ve known in non-“professional” fields were getting paid by the university, not borrowing from the government.Report

          • Avatar Griff in reply to Griff says:

            Also, shutting down all but the top 10 law schools would be ridiculous, but I would definitely support shutting down the bottom 10 based on some metric that accounts for debt on graduation and likelihood of getting a legal job.Report

          • Avatar NewDealer in reply to Griff says:

            Yes. I know people with serious debt for MFA programs. Maybe not law school levels but certainly in the high five to low six-figure range.

            Though it is easier to get some kind of job during an MFA program but it might just be bartending or waiting tables.Report

          • Avatar NewDealer in reply to Griff says:

            A little more detail.

            I have an MFA and a JD. My MFA program gave me a moderate scholarship but not enough to cover tuition and books. There were maybe a few people who received very generous or full rides.* Most arts and humanities programs do not offer full-funding for people in their grad programs because of a lack of funds.

            I was lucky (very lucky) to have a decent sized educational trust that paid for my undergrad, grad school, and law school educations. Other people in my program had this as well but others did not and paid for their MFAs via student loans. They also had cost of living loans considering this was New York, even the people who worked and I think most of us had jobs. I was lucky to find a flex time job during my MFA program at decent pay (about 25 an hour).

            *Most art schools just need one or two people to make it really big to ensure their name. Some programs have a disproportionate amount of famous artists like The Iowa Writer’s Workshop and the Yale School of Drama. As such, they tend to pick who they think will make it big and give them a lot of support and generous financial aid. Sometimes they are right, sometimes they are wrong. Everyone knew Meryl Streep would be a success but Sigourney Weaver was voted “least likely to succeed” by her classmates at Yale Drama. Dustin Hoffman and Gene Hackman were also voted least likely to succeed. Art schools know that most of their grads will not have careers as professionals or be famous. I think for a long time, law schools were able to reasonably say that most of their grads would have decent middle-class or upper-middle class lives with a straight face and be right.Report

  2. Avatar Michael Drew says:

    Was it Kinsley who came with the pedagogical suggestions, if I recall? The non-responsiveness of that suggestion to the discussion actually being had on the topic currently is so deliciously Kinsleyan. It really illustrates how it is he came to be the father of the #Slatepitch. Truly, no one does it like him.Report

    • Aaaaaaand that is why I posted the ideas without attributing them to any particular person.Report

      • Avatar Michael Drew in reply to Burt Likko says:

        Understood; I was just going for a little humor. And, to be fair (though this, too, is part of the #Slatepitch), that wasn’t his only suggestion; it was just the title of his section. Some of his suggestions seemed more constructive, and indeed quite worthy, though they all sort of tinker around the edge of the major problem, if the Campos view of the world is right. I.e., that incurring the debt associate with law school can be real threat to a person’s long term wellbeing if the school in question is not at some cutoff level of prestige. Running the third year as a clinical and putting law students with clients might well make the experience at, say, Northwestern a much more valuable one for Northwestern students. But I’m dubious that it’s going to really transform the value of a JD from the University of West Los Angeles (even though it’s possibly even better advice for that school, though for that matter I suspect that it’s places like the University of West Los Angeles that are most likely to already be doing such tinkering, and the prestige schools to be holding on tighter to the traditional format). It just doesn’t really address the basic concern here; it just tinkers. Which is fine, but it’s not really responsive to the conversation that Campos and articles like Scheiber’s suggested is needed. But then, for my money, neither are a number of the suggestions being made in the TNR roundtable, I think arguably for a reason that Atrios suggests <a href=" here.Report

  3. Avatar A teacher says:

    I’m glad you commented on the Socratic seminar as having value for the rigors of work. I have found that it is actually a challenging style of teaching to do well especially when you have a goal of what to teach and you’re not just shooting the breeze with students. I also believe that the depth of understanding is much greater when students wander into an idea (even if led there with guiding questions) rather than simply copying idea off the black board in a more traditional way.

    As to competition there is a danger, I think, in that kind of rule creating all manner of unintended consequences. There is a real incentive for middling students to undercut each other for a slight edge and for students to cut them selves out of a better educational opportunity simply to be more confident they would be “safer” at a different school. Basically at any law school to get a degree they ~must~ place higher than 60% of peers. Doesn’tattwr how smart they ate, just how they stack up to that peer group.Report

  4. Avatar LeeEsq says:

    Is the weeding out of students in the bottom third of each year even enforceable? I imagine that a lot of them are going to want a refund, especially if they used loans to pay for their legal education and have to pay them back on a more ordinary salary.

    I’m also unsure of the specialty degree. What I do think non-profits law schools should do is focus on preparing their students for less glamorous legal work as ND pointed out happened in the past.Report

    • Avatar Will H. in reply to LeeEsq says:

      There are likely other issues with the issuance of specialty licences as well.

      There was one state where the legislature set aside certain division in certain circuits as “family law courts,” permitting other circuits to so designate such divisions within the circuit by local rule. This was found to be unconstitutional under the state constitution.
      This was in the context of a divorce case. There was a writ which reached the appellate level, and because this was a writ, the appeals court was able to rule on constitutional issues.
      They ruled that the language in the state constitution stating that all circuits are courts of general jurisdiction renders the statute setting aside family law courts unconstitutional.
      The point is moot now, as the legislature changed the statute the following year.

      I believe this was decided in error; in much the same manner as general personal jurisdiction has different requirements than specific PJ. That is, setting aside certain divisions in the circuit does not alter the general jurisdiction of the other divisions within the circuit.
      What’s done is done.

      The appellate court stated a need for family law courts to sometimes hear tort suits to complete the division of property; though this point fails to convince this observer.
      Consider the matter of a dissolution in which one spouse has filed for bankruptcy.
      In ordinary cases, there would be two courts of limited jurisdiction, concurrent and original.
      I don’t see the problem.

      But the main point is that the existing infrastructure in the structuring of the courts (in at least certain places) would likely not permit such limited specialty licensure; regardless of actual practice.
      There has to be someone to hold liable for malpractice. (Bwa, ha, ha, ha, ha ! !)Report

  5. Avatar Michael Drew says:

    ND,

    Nesting is down and I don’t have much time so this is going to be quick. But my view would be that it’s the numbers of people affected and specific direction of the degree, and the fact that it’s a professional degree pointed to a particular profession where the number of jobs doesn’t match the number of newly credentialled individuals that distinguishes law. But I’d also say that it’s a conversation that could be usefully had about all such educational lending, including undergrad.Report

  6. Avatar NewDealer says:

    Mike,

    In theory I have no problem with tracking and the idea that “college/university is not for everybody” However, in reality I think tracking would often correlate to socio-economic class. There are still plenty of people from upper-middle class and above circumstances who should not have gone to college for a variety of reasons but they would do so because their parents know how to game the system.

    My worry about programs that curtail undergrad enrollment is that it is going to keep the deserving poor and middle-class out but not the undeserving rich. And as a former misfit student (my grades were all over the map), I worry about those who bloom a bit later as well.Report

  7. Avatar Michael Drew says:

    ND,

    I’m with you on college. I just think that it would survive on my end of the conversation as a result of a fairly close calculation, not because of a broad principle that the lending spigot must be on full blast for any amount for for undergrad for everyone. I wasn’t saying that undergrad and law school both come out of the conversation the same ay for me; just that I think the conversation would profitable for both. Nearly unlimited and unreviewed undergrad lending shouldn’t be immune to that consideration, I just think it survives it for me more or less intact (though more narrowly than it used to for me. For example, I’d want to take a hard look at allowing anyone to borrow six figures for an undergrad degree. I’m not sure we’re doing anything but giving nice colleges that money by making it available, as, if someone who needs to borrow that much can gain admission to a college, it’s likely that the college, if made to, can let them attend for an amount that keeps their debt at a manageable level.).Report

  8. Avatar Kazzy says:

    Mike,

    Is there something unique to law schools and/or the legal profession that such reforms are both necessary and specific? Or do you think these apply to graduate schools in general or even the whole post-secondary system?Report

  9. Avatar Kazzy says:

    Ugh, I don’t know why I said Mike there. That comment was for Burt.Report

  10. Avatar ScarletNumber says:

    @Griff 10:26

    MFA’s are considered professional degrees for purposes of funding. The vast majority of students are paying their own way, and the program is a cash cow.Report

  11. Avatar Barry says:

    NewDealer: “I am still not sure how much of this is a paradigm shift or just a longer-lasting cyclical depression. There have been other times with a more lawyers than positions. The 1970s recession being one, the early 90s recession being another. Both times law especially big law bounced back.”

    I’m willing to bet that those days didn’t have the ratio of tuition costs to salaries that we see now.Report

  12. Avatar Burt Likko says:

    Above, Kazzy asked me:

    Is there something unique to law schools and/or the legal profession that such reforms are both necessary and specific? Or do you think these apply to graduate schools in general or even the whole post-secondary system?

    Much of what I point out in law school is a high-relief version of problems permeating the post-secondary academy: tuition escalated to a point that the cost of getting the degree compared to the reward is at least questionable, unnecessary time and effort spent in the academy compared to the actual day-to-day tasks of the ultimate work the degree is typically aimed at, unrealistic expectations given at least tacit if not explicit encouragement by the institutions leading to bitterness in careerists, and the failure of the academy to adapt the curriculum to recent economic, technological, and cultural transformations.

    With that said, there are some things that as far as I can tell are unique to the legal academy, the Socratic method in particular and the legacy of the “weeder” rule which still has some cultural resonance within the profession even if in my experience there aren’t any more law schools that use it anymore.

    It’s at least a defensible proposition that what law students do in law school is not a whole lot like what lawyers do in practice. If you subscribe to this point of view, then law schools appear to be outliers among the various kinds of graduate schools available. In medical schools can serve as an example in terms of clinical instruction, as would-be doctors get into hospital settings fairly early on in their postgraduate academic careers. “B” schools teach a lot of hands-on management and financial analysis tools that at least some kinds of businesspeople, particularly at management levels, use on a daily basis. Liberal arts graduate students do things with their time and instruction that seem to substantially resemble what at least some of them will do once they attain their degrees, because doing academic work to prepare for a career of further academic work. I don’t know precisely what hard science/STEM grad students do, really, but that’s because because that’s alien to my experience — I assume there is a combination of academic work in the form of reading and study, attendance in seminars and classes, as well as hands-on research and experimentation in laboratories or field studies appropriate to the discipline.

    What law students do that resembles actual legal work is legal research. Law school is good at teaching students how to look up the law and how to divine legal rules from cases and statutes. But even for the sort of lawyer like me who does a fair amount of research and writing, that’s still only a fraction of what I really do all day long. A lot of what I do is learn about other peoples’ situations — business and employment situations, and buying and selling real estate in my particular case — and explain to those people a universe of likely future events, choices, and consequences. Then there’s a lot of combing through evidence, recapitulating it in the form of discovery. And then, there’s the sales and receivables side of things. The skills I learned in law school are foundational to my practice, but a lot of other skills that are also foundational were not taught at all, or only taught in a single class (for instance, most law students take a single class in legal ethics over their three-year career and in my opinion, legal ethics are really important and pervasive) while the overall focus was more academic than the reality of practice.

    So that’s a roundabout way of saying that it’s a question of degree: among the various kinds of graduate schools available, many suffer from these failures, but law school seems to be the most disconnected from law work, the most subject to tuition inflation, the most subject to unrealistic student expectations, the most antiquated in the face of an evolving real world.Report

  13. Avatar NewDealer says:

    @burt-likko

    On the “weeder” rule. My dad was allegedly given the “turn to your left, turn to your right, one of you won’t be here next year” speech during his law school orientation in the 1970s. At least that is what he said.

    My school kicked out 10 percent of the 1L class.

    Allegedly, McGeorge practices the 1/3 rule during both the 1st and 2nd years.Report

  14. Avatar Barry says:

    “I imagine that for engineering a lot of people just transfer out…..”

    Yes, and I believe that the ‘one-third of you won’t be here…’ rule holds in reality.Report

  15. Avatar Art Deco says:

    No one has mentioned the complaint of an attorney with whom I correspond (derived from his own schooling at the University of Illinois ca 1980 and his first years as a firm associate): Legal education is satisfactorily designed to train appellate judges, not ordinary working lawyers. He has said that he was a drain on the productivity of his firm’s partners and senior associates during his first year or two. His suggestion is that the three years of academic instruction be replaced with one year. The aspirant would then be placed in an apprenticeship supervised by a working attorney and then take the bar exam after about two years.

    As a layman, I cannot help but wonder why a baccalaureate degree is the conventional screen for admission to law schools. That was not a universal practice as recently as 1950, and (if I am not mistaken) British solicitors are trained in a 3 year course of study between the ages of 19 and 22. Attorneys and law students of my acquaintance have earned B.A. degrees in political science, history, theatre, and art history; one had an elementary teaching credential. Seems like a pointless paper hoop. Perhaps one might consider replacing the baccalaureate degree with a pair of brief certificate programs – one in business and one in philosophy and history with some ancillaries. (Or why not just discontinue the baccalaureate degree for everyone?)

    Supposedly Japan is able to make do with few attorneys because they have a large corps of junior grade legal practitioners.Report

    • Avatar Barry in reply to Art Deco says:

      “Supposedly Japan is able to make do with few attorneys because they have a large corps of junior grade legal practitioners.”

      The way I heard it is that passing the Japanese bar and ‘becoming an attorney’ is very difficult, and few people do it. They end up as ‘attorneys’, who supervise those who didn’t pass the bar, who do legal work, but who don’t have the title.

      In short, the number of ‘attorneys’ is not the number of attorneys.Report

    • Avatar Burt Likko in reply to Art Deco says:

      An attorney at my firm entered law school in 1986 and was admitted to practice in 1989. He does not hold a bachelor’s degree. He’s a very capable lawyer; I have trusted him to handle some of my own legal needs.Report

    • Avatar LeeEsq in reply to Art Deco says:

      Japanese courts have a legal backlog that makes our legal backlog look like nothing. Several years ago the Times ran articles as bout the lack of judicial candidates because not many young Japanese people aspire to the bar.Report

      • Avatar Barry in reply to LeeEsq says:

        That wouldn’t surprise me:
        (1) I would expect the Japanese system to prize informal settlement of disputes and grievances.
        (2) I would expect the Japanese system to really oppose channels which (relatively) easily allowed the weak to challenge the powerful.Report

      • Avatar Kim in reply to LeeEsq says:

        barry,
        you’d be wrong on the second. In japan, it’s public shaming … if a corporation is causing an environmental issue, the whole community shows up, and “expresses its concerns.”Report

  16. A large number of law school graduates seem to end up in public policy positions. While some knowledge of law is quite useful, there are a number of other things that apply as well. Any thoughts on whether people headed in the policy direction ought to be in law school, or if law schools ought to offer a public policy path to some different degree?Report