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. 


The Value of Diversity and Inclusion for Our Legal Community

by Lisa Goodheart

President’s Page

I recently attended a conference on diversity and inclusion and the future of Boston law firms in a global economy.  The event, which was ably organized by Macey Russell, Co-Chair of the BBA’s Diversity & Inclusion Section, was well-attended, and the discussion was lively and constructive, with a panel of impressive and thoughtful speakers and active participation by an engaged audience.  But the issue of diversity and inclusion within the Boston legal community remains a problematic one, and progress has been painfully slow.

Recent statistics reflect a disappointing reality.  For example, NALP recently reported that among all firms and offices listed in its nationwide 2011-2012 NALP Directory of Legal Employers, just 6.56% of partners were racial or ethnic minorities, and just 2.04% of partners were minority women.  About 29% of the firms or offices reported no minority partners at all, and 57% reported no minority women partners.  The reported numbers for associates were not much better – over 17% of the firms or offices reported no minority associates, and over 27% of offices reported no minority women associates.  NALP’s numbers for openly gay, lesbian, bisexual and transgender lawyers also remain relatively low, with 1.44% of partners and 2.43% of associates at the reporting firms and offices being openly LGBT lawyers, as of 2011.

Looking to Boston-specific numbers does not provide a more comforting perspective.  As reported by NALP, the percentages of diverse partners and associates remain lower in Boston than in many other major cities.  For the 2011-2012 reporting cycle, just 3.21% of partners were minorities, and just 1.01% were minority women.  Over 48% of the reporting Boston firms and offices had no minority partners, and over 74% had no minority women partners.  Over 11% had no minority associates and nearly 23% had no minority women associates.  (City-specific statistics for LGBT lawyers are not included in the available NALP reports.)

How should we respond to this state of affairs?  One refrain that is frequently heard is the need for better education about the “business case” for diversity and inclusion.  In a nutshell, the business case for diversity rests on the premise that as our economy becomes more global in nature, significant corporate clients are themselves becoming more diverse and inclusive, as they serve an increasingly diverse customer base and answer to an increasingly diverse shareholder base.  It follows that the law firms best positioned to serve these increasingly diverse corporate clients will be those that are able to offer correspondingly diverse teams of legal talent.  Law firms should therefore pursue diversity within their ranks to gain a competitive edge.

Certainly, it’s logical to think that appealing to the self‑interest of law firms and other law offices might be the most persuasive way to get them to make a more serious, intense and sustained commitment to the recruitment, development, support and retention of more diverse lawyers.  But does the business case for diversity really provide the most productive way for us to think about this issue?  It is by now a familiar argument, and it has not succeeded to date in producing a true sea change in law firm demographics.  The status quo has proven to be a remarkably stubborn thing.

At the BBA’s Law Day dinner in May, Harvard professor Michael Sandel spoke to us about what he calls the moral limits of markets, and what money can’t buy.  Professor Sandel highlighted the degree to which economic analysis has permeated virtually all spheres of modern life, with sometimes pernicious and counter intuitive effects.  Sometimes, he suggested, things have a non-monetizable value, and the relentless drive to convert our values into marketplace terms can have a corrupting effect that paradoxically undermines that value.  In terms of diversity within our profession, perhaps we need to acknowledge that a robustly diverse and inclusive Boston legal community is one of the inherently valuable things that are worth pursuing for reasons that are not rooted in concerns about market share or enhancing profitability.

At the BBA, the investment in fostering a more diverse and inclusive legal profession is manifested in many ways.  It is embodied in our partnerships with various affinity bar associations, in the annual BBA Beacon Award for Diversity and Inclusion, and in the establishment of the Diversity and Inclusion Section for our members.  It is reflected in initiatives such as the Mentoring Program, the BMC Internship Program, other pipeline and recruitment work with area law schools and the Boston public schools, and events like the above-mentioned conference.  What lies behind this investment of effort?  No doubt, these programs and initiatives are pursued in part because they are attractive to the BBA’s members, potential members and sponsor organizations.  In that respect, they are part of the BBA’s own “business case.”  But the driving impulse behind theBBA’s commitment to diversity and inclusion is something much more fundamental.

The true motivation for the BBA’s emphasis on diversity and inclusion, in my view, is – and should be – that we are inspired to build the kind of legal community that we want to be a part of and are proud to claim as our own.  The BBA is an organization of members who choose to come together, not only for reasons of professional self-interest, but also to advance the causes and promote the values we collectively care about, and to find the professional fulfillment and personal satisfaction that comes from doing so.  Those values include justice, equality and opportunity.  A profession with a homogeneous and exclusionary demographic profile is simply not consistent with those values.

Achieving a substantially greater degree of diversity and inclusion is hard, subtle, time‑consuming work.  Of course, if it were easy, it would have already been accomplished by now.  But lawyers relish hard problems and are relentless in pursuing solutions.  And I am confident that we will collectively muster the resourcefulness and creativity to do much better.  Ultimately, the reward for doing so will be the greater strength, energy and richness of a legal community that all of us fully claim as our own.