Friday, March 11, 2011

Two Profound Articles. (That's Right JDs Rising Blog. It Is Very Much the ABA's and the Law Schools' Fault.)

I want to highlight two profound articles about the law school scam.  Other scambuster bloggers have posted about them.  I probably first became aware of these articles from reading the excellent Exposing the Law School Scam blog, but I want to mention them on my blog in the hopes of increasing publicity for these two pieces.

The first article is one of the best pieces I have ever read about the law school scam.  It was authored by Jason M. Dolin, Esq., a self-identified solo practitioner and adjunct law professor who sometimes teaches at a fourth tier toilet, Capital University Law School in Columbus, Ohio.  (It appears to have been presented at a conference.)  This article should be required reading for anyone who is considering the LSAT.

Opportunity Lost: How Law School Disappoints Law Students, The Public, and The Legal Profession  (This link is to a PDF.)

He begins by noting that almost all new lawyers are unprepared for the real-world practice of law and then points out that lawyer overproduction is a serious problem.

In my view there are two interconnected problems, both of which emanate from failings in the world of legal education. The first, is that law schools continue to produce large numbers of lawyers, flooding an already drowning market.  The second is, that having flooded the market, law schools have refused to teach new lawyers how to swim – how to practice.  Individually, the effects of either would be bad enough.  Together, however, the effects of these two shortcomings have had a tremendously damaging effect on law students, the legal profession, and most importantly, the public.
Later he goes on to say:
Driving a lot of the change in the world of law practice has been the glut of lawyers on the market; a glut fostered and even encouraged by the ABA and by law schools.  According to the American Bar Foundation, in 1951 there was one lawyer for every 695 Americans. Since then, in the year 2000 there was 1 lawyer for every 264 Americans.4 At that rate, in the year 2050 there will be 1 lawyer for every 100 Americans.  I think it is safe to say that, as a nation, the supply of lawyers long ago outstripped the demand for their services.  There are simply too many lawyers and too many law schools in the United States.  Given the oversupply of lawyers, if law schools were at all sensitive to market forces they would be shutting their doors or at least reducing their student headcount.  Instead, new law schools continue to open each year.
(Emphasis is mine.)

This is a profound admission coming from someone who sometimes teaches at a law school.  Note that I have calculated that the lawyer-to-population ratio is about 1 (accredited) JD for every 215 Americans based on ABA and Census Bureau stats, only counting JDs produced over the past 40 years.  (In previous posts I calculated what the lawyer-to-population ratio would be if the population and rate of lawyer production remained static for 40 years and concluded that over the past forty years the average of that figure would be about 1 JD for every 172 people.)

Here is another profound quote.  Here Dolin explains how JD overproduction is bad for consumers of legal services.  Prices decrease and access to a lawyer might increase, but at what cost?  He explains how it is actually a disservice to the public.  That's right, the ABA, in its seemingly ever incessant quest to increase new lawyer production (such as the publication of knowingly misleading stats about lawyer incomes) is doing a disservice to the public!  (The ABA article is misleading because the ABA very well knows (they would have to be retarded not to know) that they are a high-profile and presumably authoritative and reliable source of information, that prospective law students and their families might read it when deciding whether to go to law school, and that those income stats fail to account for the "incomes" or lack of income of unemployed and underemployed JDs.)
The overabundance of lawyers is not without consequence.  It is not benign.  It has hurt the practice and, more importantly, it has hurt the public.  This glut of lawyers has made competition for clients greater than it has ever been.  While the overabundance of lawyers may have the short term consumer benefit of depressing legal fees, there is more to competent lawyering than cost.  The low cost provider is not always the competent provider.  The oversupply has caused sometimes vicious and underhanded competition for clients.  When there are too many lawyers and not enough clients, there is a greater temptation for attorneys to over promise and, once the client has been landed, to overbill.  Stories of bill padding are legion.  The lack of business can encourage those on the margin to file frivolous lawsuits, built on little evidence, in the hope of a fast settlement.  Further, in a too-competitive market lawyers are tempted to handle cases that are beyond their competence or outside their area of expertise.  The results can be disastrous and the clients pay the price.
(Emphasis is mine.)

That is profound!  Consider the source.  The author is an adjunct law professor who seems to have presented this paper at a conference and who published it as a formal paper and not just a hot-headed scambuster blogger.  So, JD overproduction encourages potentially unethical behavior and exposes the public to incompetence or at least amateur work product!  Thus, the ABA and the law schools, rather than doing a service to American society, are, in essence, potentially exposing the public to unethical behavior and bad counsel!
A survey conducted for the State Bar of California in 1994 found that two thirds of the attorneys surveyed believed that lawyers “compromise their professionalism as a result of economic pressures.”[8]  Is it just coincidence that the increased loss of civility and professionalism coincides with the explosive growth of law schools? While you can’t blame the loss of professionalism entirely on the glut of lawyers, it is certainly a large contributing factor.[9]  The glut has turned lawyering almost entirely into a business, with an attendant loss of the professional values that once made lawyering a great and justifiably proud profession.

The result of all this is that law practice today is faster, more competitive, and more pressurized than ever before. Lawyers today face pressures and challenges unknown by those who practiced as recently as twenty or thirty years ago. Lawyers, many new but some old, struggle to survive in such a marketplace.  The temptation to cut ethical corners increases as it becomes more difficult to make a living.  According to former Chief Justice Rehnquist, “The greater the pressure of maximization of income, the more likely some sort of ethical difficulties will be encountered….”
So, why are the law schools continuing to pump out new JDs?  Why are they providing fraudulently misleading employment and income statistics?
Why then, given the glut of lawyers, do new law schools continue to open and existing law schools continue to graduate new lawyers in large numbers?  The answer, of course, is that by and large law schools make money.  Law schools and their affiliated universities have benefited handsomely from the increased number of those who desire law degrees and they continue to mint graduates in large numbers.  Whereas many, if not most, graduate programs are money losers for their universities, law schools are moneymakers and profit centers.
It's a great paper that succinctly excoriates the law schools and, by implication, the ABA that accredits them.

The other article is the famous recent New York Times piece, Is Law School a Losing Game.  The content is nothing new, and while this article may not be a scholarly paper like Dolin's, it is profound because it was featured in a preeminent newspaper, exposing millions of non-lawyers to the truth.  Many readers probably believed that becoming a lawyer was like purchasing a golden ticket to the gravy train.  This op-ed probably discouraged some pre-laws from fucking up their lives and it probably dampened parents' and families' enthusiasm for sending their kids to law school.

Here is one of the gems from near the beginning of the article.  Once again, the ABA is implicated as a promoter of the law school scam.
How do law schools depict a feast amid so much famine?

Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves.  “Every time I look at this data, I feel dirty.”

IT is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways.  And the survey’s guidelines, which are established not by U.S. News but by the American Bar Association, in conjunction with an organization called the National Association for Law Placement, all but invite trimming.

A law grad, for instance, counts as “employed after nine months” even if he or she has a job that doesn’t require a law degree.  Waiting tables at Applebee’s? You’re employed.  Stocking aisles at Home Depot?  You’re working, too.
(Emphasis is mine.)
The surveys themselves have a built-in bias.  As many deans acknowledge, the results are skewed because graduates with high-paying jobs are more likely to respond than people earning $9 an hour at Radio Shack.  (Those who don’t respond are basically invisible, aside from reducing the overall response rate of the survey.)
Here is a profound quote from Professor Henderson.  He has the cajones (and I assume tenure) to come out and identify, in public, the only real solution to the problem of JD overproduction:
Solving the J.D. overabundance problem, according to Professor Henderson, will have to involve one very drastic measure: a bunch of lower-tier law schools will need to close.  But nobody inside of the legal establishment, he predicts, has the stomach for that.  “Ultimately,” he says, “some public authority will have to step in because law schools and lawyers are incapable of policing themselves.”
(Emphasis is mine.)

I have been saying this since long before I started this blog.  The solution is not to increase the preparedness of new lawyers.  Practical skills training might make us feel better, but it won't address the real problem.  Rather, the only real solution is JD birth control.  Since the law schools have a financial interest in JD overproduction, some outside authority will need to step in.  Perhaps the student loan spigot will be shut off when the bubble bursts and impoverished unemployed and underemployed JDs begin defaulting on their law school student loans in mass or having their federal loans discharged by Income Based Repayment (IBR).  Humanitarian concerns probably won't end the law school scam.  Instead, economic practicalities might catch up to it, eventually.

Hopefully these two pieces are just the beginning of a tidal wave of information that will change the general public's perception of the value of law school and higher education.

For those of you who are wondering about the JDs Rising reference in the post title, here is a link to the post I was referring to: Dear Law School: It's all your fault.  Signed, recent grad.

EDIT: The ABA Journal just reported a story that is a great example of how JD overproduction can act as a disservice to the public and how it can encourage unethical behavior.  In this case an inexperienced (and probably desperate for business and income) lawyer defended a client in a murder trial, but was in over his head.  Also, according to the ABA Journal's report, it sounds like he may have even attempted to engage in something akin to witness tampering.


Anonymous said...

Why am I the only one to notice that William Henderson who claims law schools engage in Enron style accounting is the same guy that wrote the recent ABA article "what lawyers make" stating that lawyers make over 100,000

LSTB said...

Frank, the BLS predicts that between 2008 and 2018 the economy will add **only** 98,500 lawyer jobs. Compare that the 44,000 ABA JD grads plus those from the forty non-ABA schools per year for ten years and you're looking at half a million new JDs fighting for one hundred thousand new jobs.

Consequently, law school faculty who think that only a few bottom-feeder schools will have to close have another thing coming. The actual law student reduction is going to have to be 60-80%.

More in my sig.

Frank the Underemployed Professional said...

Anonymous, I suspect that Henderson merely played a role in collecting and processing some of the data for the study and didn't publish the article himself. I haven't really paid a huge amount of attention to him, but from what I can tell he clearly opposes the law school scam and has taken a brave stance against it. Read what he wrote at Comment #44. (I would love to hear what other law school professors and college administrators have said to him in response.)

You know, I hadn't paid too much attention to that ABA article until I went back to investigate what it had to say about Henderson's involvement. The ABA is receiving an earful of negative comments. I'm going to have to edit my post to encourage people to check it out, now.

Frank the Underemployed Professional said...

LSTB, thanks for pointing out that 98,500 number. One or both of us should calculate and estimate the net excess of new lawyers produced for those 98,500 jobs over the next ten years. You could use some of the data I collected previously from the ABA, make an estimate of new JD production for each of the next ten years, and then subtract the JD production from 40 years ago for each of those ten years to get the number (using my standard assumption that a lawyer's career would probably last for about 40 years).

Frank the Underemployed Professional said...

LSTB, I want to add your blog to my list of scambuster blogs, but Blogger won't let me do that at this time for some reason.

J-dog said...

Looks like LSTB is already on your blogroll, or you successfully added it.


I'm not really seeing an incongruity. It seems Henderson is interested and researches the profession. His complaint, as cited in the Times and other places, is that the schools use manipulative data to sell the idea that graduates make $160,000 starting salary. That's true. It may also be true that real-life lawyers with 20 years of experience average $100k+. The two don't contradict each other and both seem entirely within his research scope.

Liz said...

Check out this post from Henderson, it's honestly almost exactly what I've been waiting for someone in the academic world to say for a long time:

"Now is one of the very few moments in our careers as academics where we have to make hard choices and demonstrate that we warrant the trust and respect of our tenured positions. Through our governance organizations (ABA, LSAC, NALP, AALS), we need to implement a system of complete transparency on employment outcomes. If the system has real teeth, it will force us all to work very hard to ensure we are delivering value commensurate with the tuition dollars we collect."

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