Rethinking Law School Admissions Through Accreditation: A Simple Proposal

Yurko_Richardby Richard J. Yurko

Point

There is a glut of new law school graduates.  One former law school dean has estimated that there is a need for approximately 25,000 new lawyers each year.  Tamanaha, Failing Law Schools p.139 (2012).  On average, law schools have been graduating almost twice as many lawyers each year. Id.  This situation has persisted since 2009.  One result of this glut is that many well-educated men and women pay (or borrow and pay) up to $200,000 for a law school degree, but then are unable to find employment as lawyers.  There is a market disconnect, an inefficiency of staggering proportions.  Id.

Some believe that the problem is just a temporary dislocation in the market which will, in due course, right itself.  I disagree.  Yes, there has been some improvement since 2009.  It is true that the entering classes at law schools today are 20-25% smaller in the aggregate than they were at the peak, in Fall 2010.  Although that shrinkage is good, it is still not enough and it took too long for this contraction to occur.  In the meantime, thousands upon thousands of law school graduates – perhaps one hundred thousand graduates in round numbers – found themselves up to $200,000 poorer, often with long-lasting non-dischargeable debt, with no real prospect for legal employment.  I believe that it does not have to be so.  A non-market solution should be found.

An Historical Perspective

In the nineteenth century, most lawyers were trained not in law schools but rather in clerkships with practicing lawyers.  Harne, Legal Education in the United States, p.27 (1953).  As of 1900, the majority of American lawyers had not attended law school or, for that matter, college.  Moline, “Early America Legal Education,” 42 Washburne L.J. 775, 801 (2003).  Law was a profession that one joined by apprenticeship.

Although I am not recommending we return to this approach, it did have several advantages.  First, young soon-to-be lawyers learned by doing; they got practical experience.  Second, there was an effective cap on the number of lawyers who could come into the profession at any one time because taking on an apprentice was a time-consuming task usually involving intensive one-to-one teaching.  By contrast, law schools permitted one professor to instruct scores or hundreds of students at a time.

By the start of the twentieth century, law schools had supplanted clerking and apprenticeship as the dominant means of legal training.  Harne, p.82.  And, because of the potential high student-to-faculty ratio, law schools became substantial revenue centers for universities. E.g. Harper, “Law School as Profit Centers,” The American Lawyer Daily (Sept. 7, 2012).  It was in the institution’s short-term financial interest to admit as many “qualified” individuals as its classrooms could hold, irrespective of whether they ever obtained work as a lawyer.  Indeed, it was in the institution’s financial interest to build more classrooms.

In the mid-20th century, more than a few students went to law school with no interest in becoming lawyers, but because they saw a J.D. degree as a credential for advancement in business, politics, or government.  However, as business schools (which were only two years in length) refined their curricula and became more widely respected, the M.B.A. degree began to fulfill this role.  Additionally, specialized schools of politics, policy and government sprang up.  In the last several decades, my impression is that law schools were operated to turn out lawyers-to-be, and they can no longer expect to have many graduates find comparable employment in business and politics.

2009 Recession and the Shift

Law schools, however, continued to grow as long as large private law firms (“Big Law”) looked to law schools to fill their growing cadres of first year associates, typically hiring law students for the summer between their second and third years of study, and then making offers of post-law school employment to those who performed well, while taking into account the projected hiring needs of the firm a year hence.

Such law firms regularly rode the boom and bust cycle of other parts of our economy.  Woe be the law student who graduated during a brief one or two year recession.  There was always going to be a new crop of fresh law school graduates to choose from.  Thus, when a recession was over, law firms rarely went back to look at applicants who happened to graduate during that recession unless an applicant had done something in the interim (like clerking for a judge or working for a highly touted government agency) that burnished his or her credentials and kept her “fresh” for her re-entry into the private job market.  This was the nominally self-correcting market cycle that only left behind portions of a year or two of law school graduates who had the misfortune to finish their studies in a brief recession.

In contrast with the small cycles of the past, the collapse of the legal employment market in 2009 was deep, long-lasting, and truly dramatic.  See Tamanaha.  In addition, the 2009 recession occurred at a time of technological change that is in the process of shrinking the domestic legal employment market.  Just as one example, documents at one time reviewed by law firm associates for relevance and privilege are now likely to be stored electronically and capable of being sent by a mouse click halfway around the world to be reviewed for relevance and privilege by persons trained to do so in a foreign land at a fraction of the domestic cost.

One can debate the pluses and minuses of this shift, but the shrinking job market for law school graduates is hard to miss.  Tamanaha, p.139 (45,000 graduates annually chasing an estimated 25,000 openings).  We can also debate whether law schools were slow in coming to the realization that the marketplace for their graduates had fundamentally contracted, but at this time there is little doubt that it has.  Chances are that, this summer, an embarrassing number of newly-graduated law students simply did not find jobs.

A Simple Proposal

Law schools are not to blame, neither individually nor in the aggregate.  No one law school can solve the problem.  But law schools are an essential place to focus on the solution.

So, how could this have been prevented?  Better, how can it be prevented from happening again and again in the future?  Simple.  Make real employment rates a key component of law school accreditation and, in addition, cap incoming classes for any law school where some percentage (say 85%) of its graduates have not procured real legal employment within six months of graduation.

Law school accreditation is generally run by the American Bar Association.  This has not been without controversy.  In fact, the ABA’s accreditation process was at one point the target of an antitrust suit filed by the Department of Justice.  E.g., Tamanaha, pp.11-19.  Nevertheless, currently the accreditation process requires law schools to report on some metric the percentage of their graduates who are employed in legal jobs.  See Tamanaha pp. 71-74 (law schools use various questionable methods to inflate reported employment statistics).  But it does not appear that the ABA actually uses those numbers for the purpose of accreditation.

Imagine, for a moment, that, in the accreditation process, a law school were told that it should not matriculate more students than 120% of the number of its students who got real, paid legal (i.e., J.D.-required) employment from the last class it graduated.  (I suggest 120% because there will always be some folks who don’t want a legal career, don’t seek employment as a lawyer, or don’t pass the bar exam.)  If this were the standard, what might happen?

First, I suppose, each law school would spend still more money on its legal placement efforts than it does today.  Probably not a bad thing.

Second, I predict, law schools would restructure their programs to include still more clerkships, internships, and other practical experiences, which often lead to jobs, rather than treat those experiences as a palliative for third-year blues.  Probably, a good thing.

Third, law schools would downsize, even when their university’s revenue center motive would counsel expansion, not to run afoul of an accreditation standard.  Law schools might try to match the size of their classes to the actual demand for their graduates.  Definitely, a great thing.

This potential accreditation standard does not mean that law schools would suddenly become less diverse.  A reduction in size of the class does not mean a reduction in the percentage of women, students of color, LGBT students, or students from any socio-economic background.  This potential accreditation standard also does not mean that there is no role for private and public employers in addressing the issue, but it may give the law schools themselves the incentive to bring together those disparate employers to explore changes to how law students and recent graduates learn practical skills and find employment.

Something has to change.  My suggestion is that the accreditation process is where that change should begin.  And if the ABA is unwilling or unable to address the situation, then state Supreme Courts, which set the standards for admission to the bar, should be the catalysts for such change.

 

Richard J. Yurko is the founding shareholder of the business litigation boutique, Yurko, Salvesen & Remz, P.C. 


A Modest Response to a Simple Proposal

Nelson_Camilleby Dean Camille A. Nelson

Counterpoint

In his essay, Rethinking Law School Admissions Through Accreditation: A Simple Proposal, Attorney Yurko presents some interesting ideas.  The upshot is a suggestion for greater regulation of the market in legal education, due to a market failure that has resulted in significant student debt load, and an assumed inoculation of law schools from the consequences of lower placement rates.

But legal education does not exist in a vacuum.  There has been a decline in the “market for lawyers” post-2008, as the US economy shifted from a period of relative expansion to one of economic stagnation, and ultimately financial crisis.

As the demand for traditional professional legal services decreases, there is an inevitable and predictable impact upon legal education as well.  Given this interconnectivity, it is folly to assume that one can be fixed (i.e. law schools), without a corollary remedial assessment of the other (the legal profession).  Moreover, law schools find themselves in the mix in other complex and, often complicated, systems beyond the legal profession.  These other “partners in legal education” also often have strong views about the way forward in terms of the education of future lawyers.

It is increasingly important for law schools to be in dialogue with the practicing bar and bench, just as it is important to recognize that law schools must be responsive to the larger university systems of which they are often a part, the dictates of the Department of Education and accreditors, all while being vulnerable to U.S. News and World Report ratings.  Law schools have complex governance structures, and it should not be forgotten that many of them also provide legal and community services in addition to graduate education.

Additionally, many schools have already done what Mr. Yurko suggests.  They have “restructured their programs to include more clerkships, internships, and other practical experiences, which often lead to jobs.”  Indeed the monumental work, Educating Lawyers: Preparation for the Profession of Law. (William M. Sullivan, Anne Colby, Judith Welch Wegner, Lloyd Bond, Lee S. Shulman. San Francisco: Jossey-Bass, 2007), also known as the Carnegie Report on Legal Education, produced seismic shifts in that direction.  Importantly, however, law schools can seek to include all the clerkships, internships, externships, and experiential opportunities they want – and we do want – but we are only one piece of that puzzle.  The bar and the bench are our obvious partners in this respect, and we rely on them.

The notion that increased accreditor regulation of law schools would mean “…that each law school would spend more money on its legal placement efforts than it does today” would likely elicit enthusiasm, but for the reality that the funds for investment in career placement services necessarily come from somewhere (especially if the number of matriculating students is summarily regulated by accreditors) and, as we know, increasing tuition should not be an option.  So many law schools have quietly, or not so quietly, started shifted resources in more painful ways that have other impacts on the community, not the least of which is institutional morale, and the possibility of diminished student services in other areas.  Thus, such allocations, investments, and shifts are not so easy after all — they have real-life consequences for our students, staff, administrators, and faculty.

For this reason, and others, I cannot embrace a suggestion that would turn over to the ABA the regulatory capacity to downsize law schools.  I would rather that we leave the inevitable right-sizing of law schools to the market of consumers of our services, the potential students themselves, many of whom gauge value in ways not exclusively captured by aspirations of big firm or traditional practice possibilities, and for whom other legal, business, public service, and justice concerns might also influence their desire to study law.  Indeed, the decline in applications to law schools is appropriately making those of us who are willing and able to be more responsive and accountable to student and graduate needs better situate ourselves for the shifting demand for legal education, and transformed legal services, both in terms of substance and delivery.

There is no doubt that “traditional” lawyering has been recalibrated, given the intersecting forces of globalization, technology, and rapid innovation in business and legal practices.  Perhaps this is as it should be as, heretofore, legal practice has been, by definition, a backward looking profession, as demanded by our system of precedent, as opposed to necessarily future-oriented.  I think that Attorney Yurko and I, therefore, agree that the crucial issues for legal education and practice relate to where we go from here. Where we may part company is the appropriate course of action.

While it is the case that many law schools have been strategically shrinking the size of their entering classes, to empower accreditors to mandate such reductions ignores some key variables.  For instance, many law schools are not in a position to unilaterally shrink their class sizes – they are part of university systems that are interconnected in complex ways beyond the reach and purview of the ABA.  Additionally, if taken to its logical conclusion, some law schools would be forced to close due to low placement rates.  One can make an argument that some law school closures may be necessary.  But which schools close and which schools remain is embedded with a hierarchical underpinning that furthers elitism within the legal profession.  As the top schools, meaning elite schools, generally have the best employment placement rates, they would ostensibly be immune from regulatory accreditor reductions.  However, those schools which face challenges in this regard, disparately found at the lower end of the U.S. News and World Report rankings, would be reduced in size by the ABA under Attorney Yurko’s model.

Were this to happen, the push to open up the legal profession to people from all walks of life would be curtailed.  The legal profession would witness a significant reshaping of its demographics and its ability to provide broad-based and meaningful access to legal services would also be stymied.  In this mix, we might wish to analogize between legal education and medical education and consider whether we ought to be thinking more seriously about residency programs, apprenticeships, pro bono legal services, grassroots legal enterprises, and innovative uses of technology, all towards the end of furthering experiential, entrepreneurial, and employment opportunities for law school graduates, whilst simultaneously making affordable legal services a real possibility.

That this has not happened in the last couple of decades when we have had a “surplus” of attorneys is disturbing.  For their part, law schools have been investing in clinical, pro bono, and experiential programs designed to train and supervise students while bringing legal services to domestic and international communities.  I think there are further opportunities for bridging this justice gap if the practicing bar, bench, tech-entrepreneurs and law schools could come together in meaningful partnerships to deliberate, and ultimately problem-solve, around this serious societal, and supply-line economic issue.

So we have to figure out how to preserve access to the legal profession for those individuals desirous of becoming lawyers, responsibly manage the costs associated with law school, provide potential applicants with information about the quantifiable costs and opportunity costs of attending law school, and work with the bar and bench to ensure that there are meaningful opportunities for graduates to enter the profession as practitioners, including filling the justice gap.  There is much room for dialogue with the bar, the judiciary, the ABA, the AALS, bar affinity associations, law school deans, university provosts and presidents, students, and graduates in terms of these myriad concerns.

At the end of the day, I would urge an expanded appreciation for the work that lawyers have done, continue to do, and will do in the future.  We are not, and have never been, a static profession.  Instead, perhaps betraying my Canadian roots, I prefer to think of us as having a “Living Tree” approach to our profession.  By that I mean that as a community we are not frozen, but rather we are progressively building upon what is best and strongest about our profession, whilst simultaneously advancing to meet the needs of an ever changing and diverse society, with evolving legal delivery demands and substantive requirements.

 

Camille A. Nelson is Dean and Professor of Law at Suffolk University Law School.  Before joining Suffolk Law, Dean Nelson served as Professor of Law at Hofstra Law School. From 2000 to 2009, she was a member of the faculty of Saint Louis University School of Law.