Posts Tagged ‘law school’

Too Many Lawyers?

Monday, August 19th, 2013

Keith Lee posted an interesting chart on his blog today, comparing how fast the number of lawyers is growing to how fast the general population is growing. The U.S. population has grown at a slow and steady pace since 1945. The lawyer population, however, has grown at a much faster rate since the 70s.

People have been complaining about “too many lawyers” since at least the 70s, if not earlier. This data would seem to explain some of that feeling, as the lawyer population has grown faster than the general population.

But how accurate is that complaint? Are there too many lawyers?

Not too long ago, you could say “no” and back yourself up with a convincing supply-and-demand argument. The market demanded more legal services, so more lawyers were coming out of school to fill that demand. If there wasn’t demand for a lawyer’s services, he’d soon find something else to do.

It’s not as if lawyers create their own work, after all — personal injury lawyers don’t go around causing traffic accidents; transactional lawyers don’t draft contracts because they feel like it; criminal defense lawyers don’t make people go out and commit crimes. It’s the clients who want to sue each other, who have deals that need to be structured, who get in trouble and need help.

So if more and more lawyers were out there, it wasn’t the legal profession’s fault. It was because the rest of you were suing each other more often. It was because life, business and government were getting more complex, and you needed more help in navigating your affairs. It was your fault, not ours. Simple supply and demand.

There weren’t too many lawyers. There were exactly as many lawyers as you, the clients, wanted there to be.

Actually, the growth in lawsuits and wills and ordinary lawyering wasn’t really ballooning. Ordinary lawyering was keeping pace with the population, for the most part. What was really growing, starting around 1970, was the demand for corporate transactional work. That’s what created the big firms, what drove the big fees.

But this new corporate demand wasn’t a permanent shift in the demand curve. It was a bubble. Actually, it was a series of bubbles — the M&A bubble of the 70s, the real estate bubble of the 80s, the dot-com bubble of the 90s, another real estate bubble in the 00s — Wall Street percolated with all kinds of demand for more corporate work. Each bubble burst, as they tend to do. But so long as Wall Street kept percolating, there were always new bubbles coming along. Overall, it was constant. And it drove higher and higher fees, higher and higher salaries, secure and steady work. And that drove more and more people to go into the law, looking to get some of that steady work and high pay. (Which is the exact wrong reason to go into the law, but that’s what happened.)

But then, about six years ago, it stopped. The demand for the high-pay big-firm corporate work dropped significantly. The profession tried to ride it out, keeping all those high-pay lawyers around for when the work came back. But it didn’t. And a year later they realized they couldn’t keep paying all those high salaries without the same level of fees coming in. So they started shedding lawyers.

Those were good lawyers, of course. These firms had only hired the best of the best. Which was great if you weren’t a top student from a top school — with those guys competing for the Wall Street-driven jobs, there was more room for you on Main Street. But once those guys started competing for the Main Street work, there was less demand for graduates whose grades or schools weren’t stellar.

And so you saw an awful lot of students who had entered law school expecting an easy job market graduate with no job (but plenty of debt).

If you asked one of those new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

But that’s because there were more lawyers competing for fewer jobs. The actual number of lawyers working as lawyers was still exactly as many as you, the clients, were demanding.

The job market took that hit in 2008, and it hasn’t really changed much since then. But law school applications — which had been steadily falling up until then — now shot up, rising faster than before for the next couple of years. Presumably well-educated college-graduate adults saw law school as an attractive option, despite all the evidence to the contrary. A lot of these applicants looked on law school as a default — the economy sucked, so this was a great way to ride out the recession and have a good-paying, steady, upper-middle-class career on the other side. They didn’t want to be lawyers for the right reasons, but they wanted to go to law school.

Supply and demand being what they are, if more people wanted to pay good money to go to law school, there were going to be more seats for them to fill. And so the number of law students continued to rise. And so even more fresh graduates came out to face the same job market that had NOT been growing at the same pace.

If you ask any of these new graduates if there were too many lawyers, you’d probably hear a resounding “YES!”

Supply and demand being what they are, of course, people eventually stopped applying to law school in such numbers. They’ve resumed their downward path. In fact, applications are going down faster than ever, and are probably at their lowest point in thirty years. Meanwhile, those who couldn’t find work as lawyers have mostly found something else to do. So this oversupply of fresh graduates is in the process of shaking itself out.

But even with this momentary oversupply of fresh graduates, the number of lawyers actually working is still going to be however many you, the clients, demand. The answer to the question “are there too many lawyers” is still “no.”

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Of course, what people are really complaining about when they say “too many lawyers” is that there are too many bad lawyers. Nobody complains about the good ones. But that’s a subject for another time.

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 Since I got off on this from looking at some graphs, I thought I’d make some of my own. Look at these and ask yourself if there really are too many lawyers:

Why Are You Here?

Saturday, February 9th, 2013

The other day, the Charleston School of Law was kind enough to invite me to speak to its student body as part of its Professionalism lecture series. My theme was, of course, professionalism in the law. But in the context of why we practice law. If you’re interested, have a look:

 

 

P.S. – If you want to skip the dean’s kind introduction, just go to the 5-minute mark.

Answering Your Most Burning Questions

Friday, December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be (more…)

A PhD in Law?

Wednesday, July 11th, 2012

Yale Law School has announced that it will now offer a PhD in Law — apparently the first time a doctoral program in law has been offered in the United States. One can only ask “what for?”

Ostensibly, the purpose of a PhD is to advance human knowledge. You get that degree for figuring out something new, and proving it to the satisfaction of people who know what they’re talking about. At the end of the day, humankind gets a little smarter, and you get to call yourself a doctor of philosophy.

Looked at that way, there’s not a whole lot of room for PhD studies in the law. The law is a manmade thing, not something out there to be discovered, and an unholy number of people make it their business to know all of its various ins and outs. In other words, there’s not much “new” to the law to figure out. The exception is for research into how the law is applied, and philosophical attempts to identify the underlying policies that explain why the law is the way it is. This is what legal scholars already do. They don’t need a PhD to do it. Lowly JD candidates do it when they write notes for their law reviews. Scholars do it when they write books and law review articles. Bloggers do it when they’re not bitching about the job market or SEO. Even amateur cartoons have been known to take a stab at it. There’s just not a lot for a PhD to work with here, and it’s already being done elsewhere.

Of course, that’s looking at it the wrong way. In the real world — particularly outside the hard sciences and mathematics — the PhD is just a prerequisite for a career in academia. If you want to be a professor, you’d better get that doctorate. It’s not about advancing human knowledge; it’s about training to be a “scholar,” however your academic field defines it.

Looked at that way, Yale’s decision makes slightly more sense. The Law PhD would just be one more way of proving your bona fides as a scholar, another way to compete for a job as a tenured law professor. There are far more people who’d like to be a law professor than there are available positions, so the competition is insane. The usual “publish or perish” rules apply here as much, if not more so, than anywhere else in academia, so getting enough articles into some law review or other is one requirement (which explains the proliferation of law reviews that few bother to read — the demand is not for the finished product but for the publication service). But that’s just a starting point. To further weed out candidates, law schools require advanced academic degrees. The J.D. is an entry-level vocational degree, nothing more. They want people with an LL.M in the area of law they teach. More and more, they want people with a PhD in (as the Yale announcement says) “economics, history, philosophy, or political science.” These are what the law is about, after all (and what you should be studying in undergrad — not pre-law — if you want to be best prepared for law school). But a Law PhD is probably not being offered just as another way to prove one’s sholarly ability.

The real reason is probably just supply and demand — and not demand from tenure candidates. The demand is from law school administrators, who want more and more ways to weed out those candidates. Because there are more and more people trying to break into law school academia. There are tons of people with LL.Ms and PhDs from other disciplines. But who has a PhD in law? Nobody. If it existed, it would be a great way to tell which candidates have learned how to be academics, which ones are already “one of us.” Yale is providing schools with a way to be more demanding of professorial candidates, and thus make the school’s job easier (while giving them something more to brag about.) Just as readers aren’t who law reviews are for, the PhD candidates aren’t really who this program is for. They’re not the customer, they’re part of the product.

So let’s make the ivory tower a little higher.  Of course, that will only exclude more people who have actually practiced law. But that’s what adjuncts are for.

More Reason to Increase Legal Profession’s Barriers to Entry

Thursday, April 19th, 2012

When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.

The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”

So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.

It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.

The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.

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Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.

Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.

The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.

The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.

This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.

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The solution is to be, not protectionist, but (more…)

The Well-Educated Citizen

Monday, November 14th, 2011

 

We have more and more college graduates these days, but is it doing any good?

On our first day of college, at UVA back in the late summer of ’87, we didn’t feel the usual nervous excitement one gets from moving away from home, meeting new roommates, trudging through the various long lines to register for classes and get ID cards etc., and hearing the old “look to your left, look to your right” speech. We didn’t feel that way partly because we’d already been there and done that and more at military school, but mostly because we were feeling another emotion entirely that completely overpowered all the rest. It’s an emotion we can’t quite name, though there’s probably a great name for it in German — a great hopeful sensation of “at last, it’s about time!”

We were stoked to finally start getting an education. After years and years of schooling, we were ready to get learning. College for us wasn’t a prerequisite for getting a job or anything like that — it was a chance to gain as much knowledge about as many different subjects as we could cram into four (ultimately five) years. A chance, moreover, to learn how to use that knowledge and apply it and, maybe, start contributing to it. A truly liberal education that would prepare us for pretty much any future by preparing us to think critically and analytically and have the basic underlying data to do it well.

Back in 1987, most of our friends thought we were out of our mind. Most of them were there to get ready for a career, whether it be in engineering, business, architecture, teaching, or the arts. Or a career yet to be determined once they found the right major. Going to college was mainly about getting a good job after graduation.

Now in 2011, that seems even more the case than ever. College is seen as a prerequisite for a good job, period. Many kids are told this from kindergarten through high school, but it’s such an implicit societal assumption these days, that even if it wasn’t drilled into them they’ve picked it up by osmosis.

The problem is, college these days is not something you can rely on to prepare you for a job, unless you’re pursuing a technical degree in the soft or applied sciences.

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Here’s how education is supposed to (more…)

Dear Whiners: Shut Up.

Tuesday, November 1st, 2011

 

Hey. Gen-X lawyer here. Could those of you whining about your law schools and sucky job market please shut up? Thanks.

There’s something about the gripes of new and rising JDs that’s not unlike the same bleats we’re hearing from many “Occupy Wall Street” types: It’s the complaint that they did everything they were supposed to, and now instead of getting a living they’re getting fucked. They went to school, took out loans to pay for it, in the expectation that the payoff would be worth it. That there would be a job out there — more than a job, a lifelong career path. A secure income. But that’s not what they’re finding in the real world. The dream jobs aren’t out there — at least not for them. They’re starting their adult lives with an insane amount of debt, and no conceivable way to pay it off. They feel betrayed. They were promised all this, they did their part, and now society isn’t doing it’s part. So they rant online, some take to the streets to complain, and a few have even sued to enforce the deal they thought they’d made.

This is nothing new to those of our generation. When we graduated from college, the job market sucked big time — only the engineering students seemed to be in high demand, much to the chagrin of those of us with History (cough), Art and Philosophy majors. It was pretty bad when we graduated from law school, too — we knew many bright, talented young JDs who had to work as bartenders, online marketers, and the like before landing a lawyer job (and the ones who persisted, by the way, did wind up getting cool law jobs and are doing quite well).

It sucked, but we knew it was coming. We had no illusions about the economy. We didn’t expect Social Security to even be around any more by the time we’d reach retirement. The Baby Boom generation had spent their lives focusing on how awesome they were, and fucking things up for the rest of us, and we knew it very well. A Washington Post article from 1991 began:

Now adulthood looms, like a cookie jar that somebody else already picked clean. Will the busters [the phrase "Generation X" had yet to be coined, we were called lots of things] ever be able to match their parents’ standard of living? The cost of starting out in life — college and a first house — has been racing ahead of inflation and wages ever since they were born. Meantime, adults have rung up nearly $3 trillion in national debt in the busters’ brief lifetimes, virtually all of it on consumption for themselves. The busters will get stuck with the tab.”

Another article from the Atlantic in 1992 (calling us the “thirteeners” — the 13th generation of U.S. history) described us thus:

After graduation they’re the ones with big loans who were supposed to graduate into jobs and move out of the house but didn’t, and who seem to get poorer the longer they’ve been away from home — unlike their parents at that age, who seemed to get richer. …

In them lies much of the doubt, distress and endangered dream of late twentieth-century America. As a group they aren’t what older people ever wanted but rather what they themselves know they need to be: pragmatic, quick, sharp-eyed, able to step outside themselves and understand how the world really works. From the Thirteener vantage point, America’s greatest need these days is to clear out the underbrush of name-calling and ideology so that simple things can work again.  Others don’t yet see it, but today’s young people are beginning to realize that their upbringing has endowed them with a street sense and pragmatism their elders lack. Many admit they are a bad generation — but so, too, do they suspect that they are a necessary generation for a society in dire need of survival lessons.

When they look into the future, they see a much bleaker vision than any of today’s older generations ever saw in their own youth. Polls show that Thirteeners believe it will be much harder for them to get ahead than it was for their parents — and that they are overwhelmingly pessimistic about the long-term fate of their generation and nation. They sense that they’re the clean-up crew, that their role in history will be sacrificial — that whatever comeuppance America has to face, they’ll bear more than their share of the burden. It’s a new twist, and not a happy one, on the American Dream.”

And you know what we think when we hear Millenials whining? The children of those self-absorbed Boomers, who gave them awards just for showing up, who slathered them with praise and “self-esteem” without actually making them do anything to earn it? (more…)

The Legal Profession Needs More Bars to Entry, Not Fewer

Tuesday, October 25th, 2011

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.

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Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.

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With respect to the bar exam, as we’ve said before, nobody in their right mind believes (more…)

You’re Smart Enough to Graduate Law School, Are You Stupid Enough to Sue It?

Friday, August 12th, 2011

Courthouse News reports that “a $200 million class action claims the New York Law School misrepresents post-graduate opportunities for lawyers and subjects ‘the overwhelming majority’ of its graduates to ‘years of indentured servitude’ after ‘saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off.’ ”  The plaintiffs accuse their school of “a systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits.”

Oh, for crying out loud.  This again?

Look.  Nobody forced you to go to law school; it was your own choice.  Nobody forced you to go to that particular school; it was your own choice.  Nobody forced you to take on more debt than you could reasonably afford; it was your own choice.  After your first year, and it became clear that someone with your grades from your school wasn’t likely to be making the big bucks, nobody forced you to keep going and to take on even more crippling debt.  It was your own choice.  You were a college graduate, an adult, presumably capable of making your own life decisions.

The school did not “saddle” you with debt.  You did it to yourself.  And now you regret it.  Frantically trying to blame anybody besides yourself for your own foolish decisions only makes you look… well… foolish, at best.  At worst, it’s almost like the girl who regrets her drunken orgy and accuses her fellow partiers of gang rape.  Either way, you certainly don’t come off as someone with the requisite judgment and brainpower to make it as a lawyer.  Are you sure it’s the school’s fault you’re not making it on the outside?

Here’s some more from the complaint:

[The] school consigns the overwhelming majority of them to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off. New York Law has done this while blatantly misrepresenting and manipulating its employment statistics to prospective students, employing the type of ‘Enron-style’ accounting techniques that would leave most for-profit companies facing the long barrel of a government investigation and the prospect of paying a substantial civil fine. These deceptions are perpetuated so as to prevent prospective students from realizing the obvious – that attending NYLS and forking over nearly $150,000 in tuition payments is a terrible investment which makes little economic sense and, most likely, will never pay off.

Specifically, NYLS, through both its print and internet marketing materials, commits two basic written, uniform misrepresentations. First, the school during the class period claims that the overwhelming majority of its graduates – roughly between 90 and 95 percent – secure employment within nine months of graduation. However, the reality of the situation is that these seemingly robust numbers include any type of employment, including jobs that have absolutely nothing to do with the legal industry, do not require a JD degree or are temporary or part-time in nature….

Second, NYLS grossly inflates its graduates’ reported mean salaries, by calculating them based on a small, mostly self-selected subset of graduates who actually submit their salary information….

There are so many things wrong with this.

The biggest problem is that, if you really were defrauded, then you had to be basing your decision on whether to go to this particular law school based in large part on how much money its graduates make.  If that’s not true, then none of this is material enough to be fraudulent.  Fraud basically means that, but for the misrepresentation, you wouldn’t have spent the cash.  If that is true, then you have no business being a lawyer in the first place.  You’re in it for the money, and don’t belong here.  You selected this law school not because you thought it would help prepare you for a life of service, but because you thought you’d be able to get “a job” and make “good money.”  Those are the wrong reasons, entirely.

Even if one were to concede that these were material considerations to the plaintiffs in this case, it is hard to imagine that anyone would have thought they really were all that material.  Would law schools really think their students are so mercenary that the main reason why they chose one school over another was the average alumnus salary?  That’s absurd on its face.  But it’s a prerequisite of the complaint.

And where is the deception, in the first place?  The complaint does not say that the school made up numbers out of thin air.  They only allege that the school honestly reported information which the plaintiffs then misconstrued.  Perhaps one could throw the plaintiffs a bone and say post-graduation employment figures would reasonably be expected to refer to legal employment.  But the salary information was what was reported.  There is no deception in reporting the numbers they got.  The school did not “inflate its graduates’ reported mean salaries” — it simply revealed them.

From what’s been reported — here and elsewhere — there just doesn’t seem to be any merit to this case.  We don’t see how it could possibly survive a motion for summary judgment.

As a work of chutzpah, however, it’s pretty good.  It’s not the same as killing your parents then seeking mercy because you’re an orphan, but saying your school owes you a fortune because you shouldn’t have chosen to go there?  It’s up there.

On the Usefulness of Law Reviews

Friday, August 12th, 2011

Okay, see that XKCD cartoon up there?

That’s not how law-school academia works.

Law school academia is more like this:

It’s not exactly news that law review articles don’t carry the same weight in their relevant field as, say, scientific papers published in a peer-reviewed journal.  Ask any practicing lawyer how many law reviews he subscribes to, and the answer is likely to be “zero.”  Ask any practicing lawyer how often he cites law review articles in his motions or briefs, and you are likely to hear either “seldom” or “never.”  Ask any practicing lawyer the effect that law review articles have on the practice of law and the advancement of jurisprudence, and he is likely to laugh condescendingly.

It’s not exactly news, but it’s something people have been talking about this summer, after Chief Justice Roberts disparaged the usefulness of legal scholarship at this year’s Fourth Circuit Judicial Conference.

Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

Law professors, of course, rushed to defend the relevance of their articles.  But pointing out that occasionally a law review article might actually get cited in a footnote, to support an argument that was already being made, isn’t quite the strongest defense of relevance.

And it’s foolish for legal academics to make such a defense.  Nobody expects them to believe their articles are relevant to actual legal practice any more than one would expect a postmodernist paper in an academic literature journal to be relevant to the publishing industry.  Academia and the real life it studies are rarely the same thing.

And it’s foolish for legal academics to even imply that their writings ought to be useful to practicing lawyers.  There are only two kinds of law review articles that are of any use whatsoever to lawyers and judges:  One is the summary or survey of an area of law as it actually is right now this very moment.  The American Criminal Law Review‘s annual survey on white-collar crime is a good example, and there are a fair number of brief summaries of more discrete areas of law as well.  The most useful of these are the ones that deal with areas of law that are in flux, describing recent changes, which can help the practitioner or judge test the wind to see which way things are trending.

The second kind of useful law review article is the kind that doesn’t so much restate the law as explain why it is the way it is.  These are more rare, but can be very valuable for those trying to make a policy-based argument.  A well-done article of this kind takes all the disparate decisions out there and tries to provide an underlying policy that explains most of them.  Such a thesis is useful when dealing with an area of the law that is changing, or that one is arguing ought to change.

These useful articles are not useful as something one would cite as part of one’s primary argument.  If cited at all, it would be in a footnote.  Their value is not as an authority to be cited, but as a guide to help focus or expand one’s own thoughts.

But such articles are few and far between.  The overwhelming bulk of law review publications are of little to no use to anyone besides the author.

This is because law review publication does not serve the same purpose as other kinds of academic publication.

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Law reviews serve two purposes: One is to provide an outlet for career academics to publish something — anything — in order to achieve tenure.  It’s a pointless exercise, as the quality of one’s articles is of no importance; it is the fact of publication that is important.  Having been published often, and recently, is all that is needed to put a check mark in the right box.

The fact of publication is itself no guarantee of the quality of scholarship, that’s for sure.  That’s because of purpose number two: To give better law students a way to further distinguish themselves.  We do that by having law students pretty much run the show.  Students select which articles are published.  Students do the fact-checking, making sure the cited sources actually say what the author claims.  Students check the grammar, spelling and bluebooking.  It’s a lot of work, and shows that one has the ability to juggle responsibilities beyond one’s caseload, and shows an aptitude for the kind of work often assigned to young associates, so it’s fairly prestigious and rightly so.  But it is not peer review, and it is no guarantee that the articles themselves are any good.  Grammar and cite-checking are not the same as substance.

Neither of these purposes is to provide a useful product for practicing lawyers and judges.  So because it is not their purpose, it doesn’t really make sense to knock them when they fail to do it.

-=-=-=-=-

Still, wouldn’t it be nice?  You know, if legal scholars were given tenure based on actually contributing something to our jurisprudence?  If it was the rule, rather than the exception, for law-review articles to be useful summaries of the law or explanations of the unnoticed policies that explain why the law is and where it is likely to go?  Then perhaps one might see them being cited a little more often.  Being read by someone not involved in the publication process.  Making a difference.

Don’t you want to make a difference?

Answering Your Most Pressing Questions

Saturday, July 16th, 2011
Real nice, Google.

Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to (more…)

No Jobs for Your JD? An Economist Explains What Happened.

Monday, June 6th, 2011

Where did all the law jobs go?  And are they coming back?

Good questions.  More on that in a second.  But first, we have to say that we’re frankly tired of hearing law students and newish JDs moaning about the dearth of lawyer jobs to be had.  Particularly grating are the complaints that it’s somehow somebody else’s fault that they’ve got all this debt and no six-figure job to show for it.  Most of these put the blame on law schools for hoodwinking them into thinking the job market for attorneys was awesome.  We don’t get that — people who go to law school are grownups, adults with college degrees, but these ones are acting like they’re still kids.  Come on, at some point you have to be responsible for your own decisions.  Childhood ended a long time ago.  Anyway, one would think that someone intending to become a lawyer would have had the basic ability to research what the real job market was like.  A simple Google search would have turned up a plethora of articles and discussions about it, going back to mid-2008.  If they really had no clue what they were getting into, then they really need to re-think whether they’re in the right profession.

And if they’d bothered to research just a tad more, they’d have found that this ain’t the first time law jobs have been harder to come by.  This kind of thing happens every now and then.  It’s cyclical, just like anything else.  Demographics, economic cycles, and the coming and going of fads have all affected whether there’s enough hiring going on.

One need not understand why it was happening.  But for college-graduate adults to not even know that it was happening?  And to make life-changing, debt-incurring decisions based on law schools saying their graduates had good-paying jobs?  (Or worse yet, based on a fantasy that has never been true, that anyone but the top grads from the top schools would be making the big bucks right out of law school?)  That’s just idiotic.  Such complaints call into question the very ability of the complainer to have practiced law in the first place.  It makes you sort of glad they didn’t find a job, kinda.

Although one need not understand why it was happening, however, it’s still worthwhile asking the question.  We’ve had our own theories, but they’re based more on intuition and anecdote than on any rigorous analysis.  So it’s good when, from time to time, someone pops up with an explanation.

With respect to the latest turndown, our basic understanding was always (more…)

Is Law School Right for You? Ask Yourself 5 Simple Questions.

Wednesday, May 25th, 2011

 

The law is an amazing profession, but it’s not for everyone.  In fact, it’s not for the vast majority of people.  And when it’s not a good fit, the downside is awful.  Mismatched lawyers are miserable.  Their lives can really suck.  They may be very good at what they do, but it’s not particularly fulfilling.  Or it’s too time-consuming, preventing them from doing the other stuff that would be fulfilling.  Maybe they can’t stand dealing with other lawyers.  And if they’re not very good at what they do, their clients can suffer far far worse.

But for those who belong here, the law is a wonderful place to be.  It challenges the intellect, inspires ideas, and gives you a chance to really make a difference.  And that is huge.  It doesn’t matter what kind of law you practice; you’re dealing with real people, with real lives, and you’re helping them with a real need.  A life in the law is deeply fulfilling, and a life well spent.

Unfortunately, most mismatched lawyers don’t figure it out (if ever) until far too late, when they’re already practicing.  Some cut their losses and start a new career.  But most don’t.  Maybe they’re in a large law firm and just hate it, but can’t leave the paycheck.  Maybe they feel they’ve invested too much of their lives in law school and advancing through the profession, and so are unwilling to chuck it all and start over doing something else.  Maybe they sincerely can’t think of anything else to do.  And they wind up getting more and more miserable.  It’s no wonder that alcoholism, depression and divorce are rampant among lawyers.

The best time to figure it out, of course, is before going to law school.  Some people wisely drop out (or, thankfully, wash out), but that’s rare.  No, once a mismatched lawyer is admitted to law school, the odds are they’re going to stick it out and become a sinkhole of misery.  Far better to have turned away and pursued a more fulfilling life before ever going to law school in the first place.

But how can you tell if the law’s going to be a good fit for you?  It’s tough, if you haven’t tried it out first.  Whether you’d be happy or not is all hypothetical until you start working.

Fortunately, you know yourself pretty well.  Nothing hypothetical there.  If you’re honest with yourself, you know what traits you have and don’t have.

And fortunately, we’ve known plenty of other happy lawyers, and had the chance to observe what traits we all seem to share.

So if you’re wondering whether you ought to go to law school, you might want to ask yourself a few very simple questions:

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1.  Do you want to be a lawyer?

If the answer is no, then you shouldn’t go to law school.  Sure, lots of people say it prepares you for other kinds of work, and trains your brain to do marvelous things.  But if that’s all you want out of it, go take some continuing ed courses in History, Philosophy and Economics.  A rigorous study of History will give you the same issue-spotting, researching and detail-checking that you’d get from law school — probably better.  Philosophy will certainly give you a better grounding in logic, analysis, and reasoned argument.  And Economics, along with the other two, will give you enough grounding in how people actually work, and why they do what they do.  There is nothing else that law school teaches if you’re not planning to be a lawyer.

Law school serves a single function: it is a (more…)

Why Become a Lawyer?

Monday, December 13th, 2010

In today’s environment, where law schools are churning out way more lawyers than the market really wants, plenty of law students and recent grads are wondering if it’s really worth it.

We’re asked this question, in various forms, all the time.  And we see it asked every day on various internet fora.

Our answer is always a resounding YES! …if you’re going into law for the right reasons.  It’s worth it.  Oh yes, it surely is worth it.

Now, if you’re going into law just for a nice paycheck and some prestige, you’re doing it for the wrong reasons.  And it’s probably not worth it unless you’re so smart and accomplished that you can be hired by a big firm (and yet not quite bright enough to figure out that, except for a few awesome firms, doing so is essentially trading your life for a living, and putting off any further accomplishments for the next several years).  If you’re not already a superstar at what you’ve been doing with your life thus far, odds are you’re not going to morph into one during law school.

And if you’re doing it because you can’t think of anything else to do, it’s so obvious that you’re doing it for the wrong reasons that it’s a waste of space to even explain it here.

So what are the right reasons?

It’s going to be different for each person, because the right reasons are always personal.  It’s something about you, who you are, what purpose you want your life to have.  But if you’re doing it for the right reasons, you don’t have to be the smartest person in the room.  You don’t have to graduate in the top third of your class at a top-tier school.  All you need to do is bust your ass in school to master the material and learn how to think like a lawyer, then bust your ass once you’ve got that JD and make sure you goddamn well fulfill your purpose.

Again, the reasons are going to be different for each person.  We can’t describe what the right reasons for you might be.  But we can tell you what our reasons were.  Maybe that will help illustrate what we’re talking about.

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Why did we go to law school?

Two words: Frank Johnson.

Most of you have never heard of the guy.  He’s not in the (more…)

The Law Students’ Lament

Monday, November 15th, 2010

For a while there, it seemed like not a day went by without us reading of some firm or other laying off a mess of lawyers.  Things have changed.  Now, it seems as if not a day goes by without us reading of some law student getting upset at the dearth of law jobs out there.  It was bad enough hearing about the lawyers losing their jobs, but the students’ complaints are somehow more upsetting.  And not for the reasons they probably think.

Reading about the firm layoffs, day after day and month after month, evoked some real sympathy for our (mostly) transactional colleagues whose niche was no longer in so much demand.  But it wasn’t all that distressing.  The positions being eliminated had been created to satisfy the needs of a ballooning financial industry, and when the balloon popped, the elimination of those jobs was a rational correction.  Not pleasant, but not distressing.

What is distressing is reading the law students’ lament that there are no jobs waiting for them, that the jobs out there don’t pay enough, that they got saddled with all this debt with no way to pay it off, that the lives of young lawyers are miserable, and somebody (besides the students themselves, of course) must be to blame.  It’s upsetting — not to hear how bad they have it — but to think that so many of these people are getting ready to enter our profession.

To put it bluntly: they are not wanted here.  It only takes a moment’s thought to realize that, if they were wanted, then there would be a place for them.  But the ones complaining loudest seem to be the one who did the least research before deciding on law school, so perhaps they haven’t done this bit of thinking either.

They are not wanted here, because there is no (more…)