As I've written before, the powers that be are increasingly waking up to the fact that legal education is a mess. But the solutions being proposed leave something to be desired.
At this point, I think it's safe to say that the consensus solution is the "market information" approach. Its supporters want to increase the accuracy of employment information available to prospective law students, enabling them to make smarter choices about where and when to attend school.
The most obvious manifestation of this trend is Law School Transparency, an organization devoted entirely to seeking more detailed employment information from law schools, and which has gotten a lot of press lately. The ABA is revising its accreditation standards to include a greater emphasis on accurate job statistics. The US News rankings are getting into the game, too, revising their employment reporting standards.
Don't get me wrong: better statistics surely can't hurt. But I'm extremely skeptical that they'll do much to help, either. That's because this approach is based on a flawed premise: that the oversupply of paying law students is the result of deception by law schools.
Look, I've been pretty harsh on law schools in the past. I don't plan on stopping anytime soon, because the supposedly-respected heads of these institutions know full well how badly their students are going to fare in the real world. But we shouldn't let anger at law schools obscure the real problem.
The breakdown in legal education is a broad-based market failure that goes much deeper than deceptive practices by the schools themselves. It's not that the sellers of legal education have themselves churned up too much demand for legal education relative to the number of available jobs. Instead, too much demand existed in the market prior to the current crisis. Schools eventually discovered this, and have taken advantage of it like any rational economic actor might, both by jacking up tuition dramatically (because there's always someone willing to pay it) and opening dozens of new schools (because there's always someone willing to attend).
I know a lot of people who read this blog are law students -- how many of you carefully delved into economic statistics prior to law school? How many of you examined legal employment outcomes while deciding whether to attend law school at all (and remember, that's a different question than which law school to attend)? Maybe some, but I'd wager not many. I certainly didn't. I based my decision on fuzzy notions of self-fulfillment ("Lawyering is intellectually engaging work"), hopeful thoughts about degree portability ("A JD opens a lot of doors for me"), and, of course, optimism about salaries ("All lawyers do pretty well for themselves, right?").
The evidence isn't just anecdotal, either -- poll after poll shows that incoming law students are absurdly overoptimistic about their job prospects and generally far less concerned with finding careers than with accumulating prestige.
More realistic information about law careers might dampen the seemingly inexhaustible American enthusiasm for legal education. But this approach seems unlikely to solve the problem completely, because the demand for law schools is driven by external factors; namely, the widespread cultural perception of lawyers as rich and influential. At this point, it's a perception with little resemblance to reality, but it might take a long, long time for ingrained attitudes to shift.
On the other hand, maybe the market information approach would be successful. But what then? At the very least, some law students would decide to not attend law school. Fewer students means financial pressure on law schools. One would have to assume that even a five- or ten-percent drop in matriculating students would significantly strain a school's budget. And after that?
Some schools, rather than accept a reduced existence, would probably scrape even further along the bottom of the barrel for applicants. (For its part, the ABA is threatening to make this easier by making the LSAT optional.) If anything, it's these least-qualified students that are most vulnerable to rosy promises of legal careers, and subsquently most likely to suffer under enormous debt loads. While improved employment reporting may individually benefit some students, the basic social problem would remain unaltered: too many useless degrees bought with nondischargeable debt. So long as we're talking about the general social good, one broke law student is pretty much the same as the next.
Alternatively, some schools, unable to make ends meet, might simply shut their doors. In certain ways this is the superior outcome: fewer JDs! Less job competition! Less debt! But it's also a chaotic outcome. It seems that, so long as we're shuttering law schools, it's better to shutter the lousy ones first, right? And market-based school closings would probably occur irrespective of school quality.
After all, if there's an overall drop in the number of law students, it's likely to occur across the board, rather than be confined to a few institutions. Schools that close as a result aren't going to be the schools with the worst academic programs, but the schools with the worst particularized financial circumstances. That might mean schools that cater to low-income students. Or it might mean schools with a very small endowment. Or it might just mean schools with an anomalously small incoming class the previous year. I don't see any way to predict in advance which schools would be hit the hardest, or ensure that they're "bad" schools. Moreover, while a widespread decline in admissions would leave many schools standing, virtually every school would suffer in the meantime, causing a lot of unnecessary pain. Meanwhile, before the market finished rebalancing itself, thousands of students would continue taking out millions in loans to pay for legal educations at institutions of dubious longevity. If you think a JD is worthless today, imagine having a JD from a school that financially imploded.
So, in summation, the market information approach probably won't drive students away from law school. And if it does, law schools will probably just fill those seats with worse students. And if they don't, the resultant market shift will cause pain and uncertainty for wide swaths of the legal field.
With all that in mind, it seems clear that the optimal solution is also the simplest: simply shut down law schools. Pick a handful of institutions and show them the door in an orderly fashion, probably spaced out over a number of years. After they're gone, don't accredit new law schools until the legal industry actually needs more lawyers.
Yes, this approach leaves a number of open questions: who gets shut down, and how, and by whom? All thorny issues, but none of them insurmountable. (I might post about these problems later.)
Yes, this approach raises worries about "picking winners." But this isn't really about picking the right schools -- there are hundreds to choose from -- but solving the problem without creating a free-for-all and all its attendant risks.
Of course, the odds of anyone pursuing such a dramatic and simple solution are slim to none. Instead of solving anything, the ABA would rather wash its hands of the matter. "Well, told law students it was a trap," it says. "Who can blame us if they walked into it anyway?"