Response to Brian Leiter's "American Law Schools: The New Economic Realities"

On December 29, 2013, Professor Brian Leiter published the first part of a two-part article on Huffington Post, entitled "American Law Schools: The New Economic Realities".  And my response might raise a few eyebrows with readers here, but bear with me.

It's a damn good article, right up until the last few sentences.  Professor Leiter (correctly) points out that:

Money has taken over much of the practice of law in the United States. The American Lawyer magazine ranks law firms by their revenues and profitability. U.S. News & World Report -- a news magazine a generation ago, and now merely a website that ranks anything that can be ranked -- began evaluating U.S. law schools in the late 1980s. The driving force of their rankings, as numerous critics have noted, is money: how much money is spent per capita on education. (My institution, which ranks 4th currently, would rank 1st if my dean would only double faculty salaries!) The dramatic increase in law school tuition, partly attributable to the general financial pressures on institutions, like universities, that do not achieve productivity gains through technology, is also partly due to the perverse U.S. News incentive to spend, spend, spend.

U.S. News also purports to "measure" employment outcomes, though only in the sense of asking the schools to self-report how their graduates fare. Given the media frenzy that surrounds the U.S. News rankings each year, it was predictable that schools would massage the data to over-state the outcomes -- in a handful of cases, even hiring their own graduates as library assistants to boost the employment numbers! As I wrote a decade ago, the employment statistic for most schools published by U.S. News "should be treated as essentially fiction: it may have elements of truth, but basically it's a work of the imagination."

 . . . two events in the last eight years unsettled the status quo, one familiar, one less so.  The familiar event is the collapse of the global capitalist system in 2008, which soon spread to the legal sector, which entered its own severe recession. Less familiar is that in 2005, Congress overhauled the bankruptcy laws to make them much harsher for debtors and much friendlier to creditors; among the changes, no student loans were dischargeable in bankruptcy any longer, except in extraordinary circumstances. The combination proved toxic for many American law schools. Suddenly, substantial minorities of law school graduates were unemployed, thanks to the recession, and many were saddled with significant debt without any recourse of relief in bankruptcy. . . .
 
The ABA had been derelict in its duties for far too long, and there is nothing like stern reprimands from U.S. Senators to focus the attention. Soon enough, the ABA mandated improved employment data reporting by law schools, which made clear how poorly graduates of some law schools were faring during the recession. Around the same time, the New York Times began running a series of front-page stories about the collapse of the job market for new lawyers and the staggering debt loads some were carrying.

(And before we go any further - skeptical readers, take note!  The bolded statements above are straight from the pen of a law professor.)

You'll hear few complaints from me about any of that.  All fairly solid, accurate information.  Many parties were at fault for allowing legal education to spiral out of control, and many parties were at fault for allowing the legal profession to turn into a money printing machine for a select few elite lawyers.

But then the wheels fall off.  After such a promising start, Professor Leiter's second part of the article, entitled "American Law Schools and the Psychology of Cyber-Hysteria", missed the mark so widely that its failings must be addressed.

The thrust of the entire second part of the article is that bloggers blame law professors and law schools for these problems.  I was expecting the second part of the article to propose the solutions to the problems highlighted in the first part, but no, Professor Leiter went off on a sadly predictable tangent.

You see, it's not that anyone believes that law schools and law professors alone caused this mess.  That's just a distraction, a fiction created by legal academia uninterested in addressing anything of real substance.  It's window dressing.  It's a red herring.  We know - and have known all along - that everyone had a hand in causing the mess.  Higher education is out of control in terms of expansion and expenditures.  Professors are very handsomely compensated and enjoy the benefits of a leisurely life in academia (including, it would seem, having time to pen double-headers for Huffington Post on their students' dime, articles which are insultingly insensitive to the plight of many law graduates who funded those very articles).  The legal profession thrives on churning through the glut of new entrants and throwing them out when next year's models arrive.  Students are sometimes greedy and attracted to false promises of high salaries and wonderful careers.  The government funded the entire thing through student loans.  We're all to blame for it happening - schools, educators, lawyers, the government, the ABA, everyone.  We're not placing the blame solely on the shoulders of law professors and law schools.  I want to believe that Professor Leiter is smarter than this, but he's not giving me a lot to work with.

Here's where his confusion stems from, I believe.  We're no annoyed because we believe law professors are the cause of this entire mess.  We're annoyed because when it comes to legal education, law schools and law professors are precisely the parties who hold the power to facilitate change.  And they have failed to do so, time and time and time again - perfectly demonstrated by Professor Leiter's twin articles.  The first article highlighted the problems, but the second article, instead of proposing solutions, blames the students and sweeps the mess under the carpet once again.  Worse still, it dismisses the entire reform movement (which is predominantly student- and graduate-led) as not just an internet "meme" (most of which are rather frivolous - LOLCats, for example), but goes on to portray law professors as victims!  Only in the KrAzY world of legal academia, folks!

Yes, the law professors, most of whom work remarkably few hours per week in safe and comfortable conditions with wonderful job stability and extraordinary benefits, free from stress and boredom and clients and phone calls and deadlines and all those other pesky attributes that make work so unpleasant for those of us outside the ivory tower, those professors are the individuals who should be complaining, not unemployed graduates with their six-figure nondischargeable debt trying to fight for scraps of work in an oversaturated and shrinking market, trying to salvage what remains of their broken careers.

Instead of wasting such a good opportunity to propose meaningful change from within academia, the entire second article was wasted in a petty revenge piece.

Which is, unfortunately, the position of legal academia from top to bottom, Yale to Indiana Tech, with notable exceptions I can still count on just one hand.  Many years ago, when these issues were first raised, doors were slammed shut, hands were placed over ears, and almost everyone in legal academia started chanting, "Lalalalalala can't hear you lalalalalalalala."

So the activists did what activists do, which is to draw attention to the problems through any means necessary.  To do what gets attention.  And I think it's been working - applications are dropping, people are getting the message that there's a problem with the legal education system and it needs to be fixed.

It's not that law schools and law professors are the (sole) cause of the problem, as Professor Leiter misunderstands, although they were a contributing factor and certainly not blameless.  It's that they refuse to help solve the problems!  Worse, they have almost total control over solving the problems!

Example - the moronic decision to allow Indiana Tech Law School to open in 2013.  How did so many in legal academia look the other way and allow something like that to happen?  Only law schools and law professors can solve that problem.

Example - it's clear that there are still twice as many law graduates as there are jobs for those graduates.  Sure, some people seek a legal education for the enrichment the study of law brings, but most - the vast majority - want to become practicing lawyers.  Why have so few schools reduced class sizes to address the weak market demand?  Only law schools and law professors can solve that problem.

Example - why are law professors paid so highly (the source of which is student loan money borrowed by students), when they work so few hours, produce such valueless scholarship, and clearly are not being lured away by the private sector or government?  Only law schools and law professors can solve that problem.

Example - why have law schools not switched to a two year curriculum?  Why are some law schools as expensive as medical schools, yet have a fraction of the expenditures?  Only law schools and law professors can solve that problem.

Example - why are law schools giving large portions of their tuition to the parent university, essentially subsidizing the undergrads (and sports programs etc.) on the backs of the law students?  Only law schools and law professors can solve that problem.

Example - why do professors at the top (good) law schools refuse to speak out about the hundred or so bottom end law schools that are admitting underqualified students, devaluing the JD, flooding the market with grads who have little hope of success as lawyers (from a business perspective), and who are making a mockery of the entire legal education system?  Why do we still have 200+ law schools?  Only law schools and law professors can solve that problem.

The list goes on and on and on and on.

The solutions to all of these problems lie in the hands of law schools and law professors.  So law professors, step up SOLVE THEM!

You might not have made the mess, but you're the ones who are holding the mop and bucket.  Oh, and you own the building where the mess is.

Few would blame only law professors for the problems occurring in the first place, other than those looking to distract - again - the focus of potential law school applicants and those who supply the money.  But blame for failing to solve the problems in a timely manner lands squarely in the faculty lounge.  Law professors, deans, and administrators control how much the JD costs (which affects student debt), how many grads are produced (which affects employment prospects, salaries, careers etc.), and law schools are the primary filter through which the profession self-regulates.  Law schools are ground zero for these problems today.

The blame game is getting old.  Nobody cares.  What matters is the solution.  So instead of covering up the problem by spending time writing articles about how some bloggers are playing by their own rules, let's hear solutions to the problems from within academia.  What is being done to cut class sizes?  What is being done to cut costs?  What is being done to modernize the curriculum?  What is being done to bring sanity and dignity back to legal education?  The debate has changed from "do these problems exist?" to "what can be done to solve the problems?"

The personal attacks directed at law professors are, it seems, motivated by frustration that those who can change the system are failing to do so.  Nothing more, nothing less.

Leiter's second article is not without any redeeming features, and does conclude with at least a partial solution: "Congress will need to take up debt relief for a generation of students caught in the vise of an economic catastrophe."  Agreed.  Except that's just one part of the puzzle.  Debt relief would help and it must be pursued, although debt relief alone merely shifts the problem onto the (innocent) taxpaying public as a whole and ignores the source.  Let's not hide the problem by diluting it in the ocean of government accounting.  That's just lazy.

What needs to happen too is for the cost of education to be brought back down to sane levels.  It was possible to deliver a JD for a fraction of today's price a decade ago, two decades ago, three decades ago.  Not much has changed over the years, yet the cost of law school has skyrocketed.  Why?  Law professors should be working to bring the cost of a JD back down to those pre-madness levels.  Reducing the debt in the first place is far better than forgiving the debt after the fact.

The flood of JDs onto the market also needs to be addressed.  By graduating twice as many JD grads as there are jobs, significant unemployment will continue regardless of what The National Jurist predicts.  Law schools need to reduce class sizes, or simply close the low-performing law schools where employment levels are truly appalling.  And no new law schools.

The solutions are, in general, really rather simple.  They just happen to be solutions that law professors don't want to hear.  And I can understand that, because nobody likes to hear that the solution is downsizing their own job, or trimming the budget from their own department.  But unfortunately, that's what needs to be done.  The excuses for why it can't be done are becoming more and more tortured, illogical, twisted and unbelievable.

And that's where the stalemate arises.  Law schools and law professors acknowledge that reform needs to occur, they hold the keys to reform, yet they refuse to reform.  Which is why the pro-reform activists are doing whatever they can to break the stalemate with their limited resources, much of which involves chipping away at the source of stability for law schools: cash-wielding incoming/returning students.  If we can stop the students/money going into law schools in the first place, things will have to change.  But as everyone living in the US recently can understand, brute-force blanket cuts forced by strangling the flow of money across the board are far more painful than negotiated and gentle reforms reached through sensible compromise.

I, for one, would rather see the ABA or a group of deans/professors step up, bring everyone to the table, and implement some changes that everyone can live with.  Break the grip US News has by refusing en masse to submit data.  Every school agrees to freeze class sizes right now and then reduce seats by five percent per year over the next decade.  Freeze tuition right now and reduce it by five percent per year over the next decade.  One law review per school, and include experienced members of the practicing bar on editorial boards so that frivolous scholarship is stamped out.  Tenure remains, but only if professors teach a full class load each semester.  And no new law schools; if there's demand in the future, increase seats at existing schools again.  There's nothing too radical in there, right?  And there are dozens of other common-sense solutions that we can all happily live with.

So law schools, if you need a little help with figuring this out, all you need do is ask.  You've got thousands of grads (and professors) who know these problems inside out, and who have great solutions.

Charles Cooper is the author, along with Thane Messinger, of “Con Law: Avoiding...or Beating...the Scam of the Century (The Real Student's Guide to Law School and the Legal Profession)”, in addition to being the moderator at Nontradlaw.net and the author of “Later in Life Lawyers”.  He can be contacted at charlescooperauthor@gmail.com.