“The legal profession must be saved from itself”

I posted this article on ComingAnarchy.com, and feel it worth sharing here also because it serves as a good international comparison to the controversial introduction of the law school system in Japan. In Japan, new law schools have been introduced that, at the time devised, were supposed to produce graduates who would pass the new bar exam at rates close to American law school rates, about 60-70%. Those rates have in fact been at around 20%, meaning that despite the new system, thousands of promising young graduates sacrifice some of the most important years of their lives on a wasted course of study that will not result in a career.

Critics write on this as if it is unique to Japan. But it’s not — especially not America in recent years. Of the hundreds of thousands of lawyers in the profession, there are many tens of thousands who never find employment in practice, with many thousands who were added to the unemployment roster over the past two years due to the sharp economic downturn, and yet the American Bar Assocation and numerous state legislatures are pushing to open even more law schools.

The author thinks the solution is to regulate and limit the power of the ABA, and maybe he’s right, although I tend to take a more cynical view and think that the complicity with the reckless expansion of the profession is far broader. An abridged version of the article appears below. Every paragraph is basically enough to expand into an entire book chapter. I think the numbers are also a worthwhile comparison — many more thousands of people (tens of thousands) waste their youth in American law schools than in Japanese law schools.

No more room at the bench
Mark Greenbaum

Remember the old joke about 20,000 lawyers at the bottom of the sea being “a good start”? Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys…

From 2004 through 2008, the field grew less than 1% per year on average, going from 735,000 people making a living as attorneys to just 760,000, with the Bureau of Labor Statistics postulating that the field will grow at the same rate through 2016… the number of new positions is likely to be fewer than 30,000 per year. That is far fewer than what’s needed to accommodate the 45,000 juris doctors graduating from U.S. law schools each year.

Such debt would be manageable if a world of lucrative jobs awaited the newly minted attorneys, but this is not the case. A recent working paper by Herwig Schlunk of Vanderbilt Law School contends that with the exception of some of those at the best schools, going for a law degree is a bad investment and that most students will be “unlikely ever to dig themselves out from” under their debt. This problem is exacerbated by the existing law school system.

Despite the tough job market, new schools continue to sprout like weeds. Today there are 200 ABA-accredited law schools in the U.S., with more on the way, as many have been awarded provisional accreditation. In California alone, there are 21 law schools that are either accredited or provisionally accredited, including the new one at UC Irvine.

The ABA has also refused to create and oversee an independent method of reporting graduate data. Postgraduate employment information generally provides the most useful facts for prospective students to study in deciding whether to go to law school.

In many cases, the data that schools now furnish are based on self-reported information, skewing the results because unemployed and low-paying grads are less likely to report back. Law schools do this because they want the rosiest picture possible for the influential rankings given by U.S. News & World Report. Despite its ample resources, the ABA has rebuffed calls to monitor the schools to get more accurate data, calling the existing framework an effective “honor system.”

Based on what happened with the accreditation task force, the ABA is not likely to force change; it is too intertwined with the law schools. ABA groups — such as the task force, which was chaired by a former dean — are stacked with school officials who have no incentive to change the status quo. This is why the ABA should get out of the accreditation business completely.

Unlike other professional fields such as medicine and public health, whose preeminent professional organizations do not have control over the accreditation of schools and programs, the ABA exercises unfettered power over the accreditation of law schools.

The U.S. Department of Education should strip the ABA of its accreditor status and give the authority to an organization that is free of conflicts of interest, such as the Assn. of American Law Schools or a new group… The legal profession must be saved from itself.

20 thoughts on ““The legal profession must be saved from itself””

  1. There are doubtless many issues in the legal profession in the US of which I’m unaware. In principle, though, is oversupply such a bad thing for anyone except lawyers? Isn’t greater competition supposed to improve the service on offer and bring down the cost?

  2. I’m not sure that’s exactly true, as a lawyer without working experience probably isn’t worth much of anything to a client so I don’t see how they would bring down costs very much.

  3. If 45,000 people are going for 30,000 positions, then, broadly speaking, the best will get the jobs. That ought to be better for quality than if everyone, including the worst, get jobs.

  4. Another important factor to consider is the utter lack of mobility for lawyers. Every singled State has their own bar exam you must pass in order to become a lawyer in that state. Every bar exam has differing levels of difficulty but none of them are easy. The further you get away from law school the more difficult it is to pass the bar exam in another state. This is because the bar exam tests what is colloquially called “bar exam law.” This is not real law, it is closer to the law you learned in law school but still somewhat different (FYI all bar exams are written by professors, not practitioners, which leads to an ever further disconnect from legal reality).

    Passing a states bar exam basically requires you to memorize the “law” in approximately 14 different subject areas and then regurgitate it onto paper in the way the bar graders want to see it (the topic of bar grading, BARbri bar review, etc. would require its own post). The further away from law school you get the more difficult it becomes for you to remember the law you learned in law school and for the bar exam. Attorneys specialize just like doctors; no attorney would attempt to practice in 14 different areas just as no doctor would be a cardiologist and a plastic surgeon at the same time.

    Therefore, if you are an attorney in Texas, that has been practicing for 20 years in employment law, and you have recently lost your job and you hear there is a great need for employment lawyers in California. Can you just up and move to California and start applying for jobs? Of course not, you must first pass the “attorney’s exam” which is the same as the normal California bar exam, except you get to skip the multiple-choice portion (the easiest part).

    You are a very smart competent lawyer that would be a great asset to the State of California, what do you think the chance is you will pass this exam? In July 2009 the answer would be 32.5%. Shocking? It should be, you are an honest, ethical hard-working attorney so California doesn’t want you.

    Essentially the end result of all this is that an attorney is stuck in the place where they first took the bar exam. I was an economics major in undergraduate so I do not know much anymore about econ, but I believe the legal profession lacks labor mobility, leading to an inefficient allocation of resources. I challenge you to think of any other field that makes it so difficult to move from state to state.

  5. I was going to comment on the Coming Anarchy thread, but basically I agree with Mulboyne. This has hurt people going to law school recently and helped, well just about anyone who needs a lawyer. Maybe this should happen to doctors too.

    Actually, in the industrialized world, our employment system is seriously screwed up. I remember back to my time in college (I was going to be a lawyer! Ha!) and remember how hopelessly bad I was steered towards how I could get a career that would both pay my bills and be of some use to society. The employment landscape at least in the US seems dominated either by cartels/ guids who limit supply to drive up the wages of their members, such as the AMA, or by people who adopt devices to break the wages of a trade or profession, for example software designers, mainly using outsourcing or just moving the plants to lower wage countries. So this is now happening to the legal profession.

    We may reach a time in the US where its just not worth going to graduate school, because you will just be qualifying for “professions” marked by low wages or high unemployment, and make yourself “overqualified” for normal jobs. But then at least tuitions should finally start to come down.

  6. It’s interesting that Ed mentioned graduate school at the end of his post. The expansion in the number of law schools and number of lawyers they turn out would seem to have many parallels in the expansion of grad schools in the social and hard sciences. For a long time, universities been churning out far more Phds (and MAs) than there are jobs for, in large part for their own selfish reasons.

    Of course, a new grad with a Phd in English, history, psychology, or biology under their arm who complain they can’t find a job they are properly qualified for have largely themselves to blame because the employment situation has been so grim for so long. Welcome to the club lawyers.

    I work for a Japanese university with one of the worst-rated law schools (at least in terms of percentage of students passing the bar exam and probably by several other measures as well). Part of the problem in our case is a declining pool of students and expanding number of schools drags down the quality of students entering the programme. Many students have no hope of passing the exam from day one. They are just too far behind. But worse, I think the large number of lazy students ( I won’t say bad apples) end up acting as an anchor on some of the harder working students.

    In any case, I thought Japanese lawyers were already up in arms at the increasing number of students passing the bar exam and wanted to make it harder again.

  7. California is a bit of an outlier when it comes to lawyer mobility. Most smaller states have extensive reciprocity deals with other states that make transferring a law license largely a matter of getting some experience and mailing in a check. There is also overseas practice. In-house lawyers in Japan (like me) are basically completely unregulated, and even if you want to work in private practice as a foreign legal consultant you just have to pay a hefty fee to the bar association (like Japanese lawyers do).

    The bigger problem is that law school does not really teach someone how to be a good lawyer–that’s what their initial employer does under the current system. Unfortunately, there are few employers equipped to adequately train new lawyers, other than cash-strapped big corporate firms and cash-strapped government agencies, and only the former will pay enough to cover $100k in debt. The end result under these circumstances will be a small population of competent corporate lawyers and a huge population of bumbling low-end lawyers who are perpetually bankrupt. Not really a victory for the consumer.

  8. This blog talks about government targets for total successful exam takers:

    “”The plan to increase the number to 3,000 from 2010 was originally approved by the Cabinet in March 2002 and had been a pillar of judicial system reform along with the introduction of the lay judge system.”


    Isn’t that still the controlling factor, and wouldn’t the people that have been attending these new law schools have understood that going in?

  9. Joe, you raise a valid question as to training, but most “consumers” don’t need “competent corporate lawyers.” You seem to conflate the power of the client and the power of the lawyer, and confuse power with competency.

  10. Seriously, Joe, think what you are saying when you say “low-end lawyers.” What you are really saying is “low-end” people.

    You’ve chosen to represent the interests of “international finance.” That’s great. I’m sure you’re good at it, and do right by your clients. I’m also sure that you didn’t have to reinvent the wheel, because the wheel was there for you to help keep turning.

    How has international finance been working for the “consumer” you express concern for? Seems to me that the FIRE economy has become parasitic on the real economy.

  11. No Dwight, what Joe is saying is that there is a real lack of training for lawyers except those who get involved in “Big Law,” which tend to have very well organized systems in place and tremendous resources to help lawyers get oriented, trained, and stay trained with regular continuing education programs. The others have to reply on the people who train and individuals, not institutions, so there is a lot more luck involved. The smaller the client and the less they are willing to pay, the less training the senior lawyers can afford to provide to the next generation.

    Trebleesq — ohhh, who? Is it 京産大, one of my all time favorite J-universities?

    Mulboyne/Ed: Sorry, I wish the economic theory applied as you would expect and people were getting better service, but it’s simply not true. Big Law lawyers, and lawyers in general, are paid much better than they were today, or at least in 2007-8, than at any time in history, by a long shot. Consider, the starting salary for an attorney in New York in 1999 was $100k-125k — today it is $160k. And meanwhile, profits per partner have grown tremendously, and at many firms, more than doubled. That’s an amazing boost that can’t be ignored, and most of it comes because of a massive increase in fees charged to clients. The biggest beneficiaries are the lawyers. Those hit the worst are law students who think that law school means easy money. Clients are only benefiting now because with so many law firms slow and eager for work, there is a lot more competition for fees.

  12. Curzon,

    Then I don’t understand what you are saying. If the rewards remain as handsome as ever, why should you be surprised, or indeed rail against the fact, that more people want to get access to them than there are places available to do so?

    However, you also go on to say that there are now lower fees on offer because there isn’t enough work to go around. I thought that was what I alluded to above.

    You speak about law students as if they have no possible way of knowing that competition for well-compensated places is intense and increasing. These are educated people. If they can’t do the basic research to work out that elementary point then I have a bridge to sell them. Of course, they might understand it very well but prefer to believe they will be the ones to succeed rather than fail.

  13. Legal education is increasingly like the lottery — you plunk down a wad of cash for a shot at a limited number of chances to get a six-figure salary for life.

    The law schools are borderline fraudsters in characterizing the risk/return profile of a law degree. For instance, they often report average salaries which are, in practice, very difficult to get. Many schools advertise an average salary of 70k when in reality 10% of the alumni make 120k++ and the rest make 40-50k. 15k a year in debt service for 10 years (about what you’d pay to borrow 100-150k) makes sense if you’re expecting to get a 70k salary but not if you’re expecting to get a 50k salary. Of course, most people looking to go to law school are not statisticians and they don’t get these subtleties in the numbers.

    Am I taking a paternalistic attitude? Yes indeed I am. The consumer is damned to be clueless when scams happen on a global scale with millions of otherwise respectable participants. Many of us have learned to be cynical, but try imparting that attitude on a fresh college graduate.

  14. Very good point, Joe. Humanities grad school is a similar lottery. Instead of planking down a wad of cash, however, the stake is the sacrifice of years that could be spent moving up a seniority ladder and you end up competing for a comparatively smaller body of jobs with the losers in circumstances that would make even the most poorly paid legal jobs look great (think $10 an hour with no benefits, job security, or chance of promotion after 10 years of training). Of course, some humanities students end up burying themselves under huge piles of debt on top of the rest.

    I tell students that doing a PhD is a huge gamble, that there are plenty of other ways to stay engaged with a field that they love, and refer them to the many horror stories that pop up on the Chronicle of Higher Education and elsewhere.

    The problem is that most of the people in a position to hand out advice are the lucky ones who did make it – which pretty much undermines the “don’t do it, it is hopeless” story. Students, unfortunately perhaps, end up looking at what we did, not what we say.

    I want to ask, however – what advice should one give to a first or second year undergrad with the marks to eventually get into a good program who says that they are thinking about law or a PhD? Forget law and do business? Accounting? JET until they figure it out themselves?

  15. JET isn’t a bad option. I think it’s pretty healthy to experience the real world (or some reasonable facsimile) and bank some cash before embarking on graduate study.

    Of course, JET is not nearly as easy to get into these days as it used to be, and humanities undergrads are likely to end up making lattes for a living unless they swing some good internships before graduating.

  16. “The author thinks the solution is to regulate and limit the power of the ABA, and maybe he’s right, although I tend to take a more cynical view and think that the complicity with the reckless expansion of the profession is far broader.”

    This sounds like an interesting issue. I wish I actually knew something about it. Everyone should have equal access to the law, and it seems that the main barrier to becoming a lawyer should only be one’s desire. Having said that we need institutions to help us sort the good lawyers from the bad lawyers. Why should there just be the ABA and not several different organizations? I can then pick and choose my lawyer as I see fit based on whatever organizations he’s received approval from. If I show up in court with a total idiot to defend me, isn’t that my problem?

    Is there a good history book on the law profession in general? That’s something I’ve never thought to read up on.

  17. The ABA is not the only game in town. Each state has its own bar association, and many cities do too. Membership is mandatory in some associations but not in others — it all depends on where the lawyer works.

    ABA membership is completely voluntary, though. Many lawyers skip it altogether. I pay dues in order to get their business law journals even though I have little interest in the organization.

  18. Here’s a good article, which raises the general points raised by Joe and Coruzon with which I agree.


    Issues of employment and debt are not the same as issues of competency and consumer or citizen need for legal representation. They are certainly intertwined, and employment and debt are themselves of course huge issues for young people considering law school, but lawyers’ inability to protect the public is more a function of hierarchy and power than of competence.

    Joe, are those global scammers you speak being represented by bumbling small lawyers, or by big corporate lawyers?

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