Wednesday, August 7, 2013
In an earlier post, I noted my basic agreement with the majority of the thematic recommendations of the Task Force. Here I will make a few more critical comments on aspects of the WP, though it may be that, at the end of the day, they will not matter much.
1. It is important that the Task Force's recommendations be based on real evidence, not cyber-chatter and cyber-hysteria. That means, in particular, that the final Task Force report should take account of two important developments since the Task Force began its work.
2. Although these two important developments do not undermine the relevance of the Task Force's most important recommendations, they do have some bearing on some (but not all) claims in the WP that are of doubtful accuracy--claims that should either be cut or substantiated:
First, the Simkovic & McIntyre paper provides substantial evidence that the JD degree confers substantial economic benefits on its holders as compared to those who only have a BA. Despite several weeks of cyber-ranting, it's pretty clear that their results are sound. Even so, the Task Force's objective of making legal education available at lower cost remains obviously desirable: first, because more individuals would reap more financial benefits from the JD (the "private good" of legal education as the WP calls it), and, second, more lawyers would likely be available to those in need of legal representation. The "public good" and "private good" aspects of legal training would both benefit. But the Task Force should not lose sight of the reality that as a "private good" legal education has done very well. (This should be incorporated into the WP's discussion, e.g., of "return on investment" [p. 10].)
Second, the federal government's "Income-Based Repayment" program for student loans means that the burden of student loans for education, including legal education, is not what it was just a few years ago. That fact--and it is now a fact--does not mean that it would not be good for society as a whole, and for individuals, it it were possible to get a legal education at a lower cost: IBR is not loan-forgiveness, and so, once again, both the private and public good aspects of legal education would be well-served by lowering the costs of legal education, even in an IBR world.
(a) The WP suggests that law schools used to think of "education as a means to personal growth and development" but now the "consumer outlook" has become dominant, namely, "education as a means to a job or career" (p. 9). This is mystifying: who has defended law school, as a postgraduate professional degree, as being primarily about "personal growth and development"? The defense of including economics, philosophy, psychology, and history into aspects of the legal curriculum has always been that it makes better lawyers, not that it contributes to "personal growth and development" (it may do the latter too, of course).
(b) The WP says that J.D. students "who do not receive substantial scholarships pay for their education through loans" (p. 11). But surely some number of JD students have their legal education funded in whole or in part by their own savings and earnings, or by those of spouses, partners, or parents. What are the facts? In any case, this is minor: the main point is that the section of the WP on "Financing of Legal Education" needs to take into account the advent of IBR.
(c) At the bottom of page 12 of the WP appears the most dramatic factual claim in the whole report, namely, that changes in the "economy of law-related services and the related employment market...over the past five years" are "structural": "The developments are likely to continue, with contuing impact on lawyer employment. It seems probable that this change in employment for lawyers is not just a passing phenomenon caused by the Great Recession." This may be right, but what is the evidence? None is cited in the WP. The Simkovic & McIntyre study adduced strong evidence that the wage premium for a JD is cyclical, and that even since 2008 we are still within past cyclical norms. This may be wrong: the future may not be like the past. But to the extent Task Force recommendations turn on this assumption, it is important to adduce compelling evidence that the assumption is correct. (I suspect some of the Task Force recommendations are independent of this assumption, however.)
(d) The section on "The Business of Legal Education" (pp. 14-15) should probably be cut in its entirety, or substantially revised. As far as I can see, it is just flat out false that, "Law schools have long escaped pressure to adapt programs or practices to customer demands or to the pressures of business competition" (p. 14). The enormous drop in applications to law schools--which is leading schools to cut faculty, leave faculty positions unfilled, and so on--is a clear case of market pressure. The extensive curricular innovations, both in clinical offerings and in other ways (such as Chicago's Business Leadership Program), have arisen precisely in response to student interests and the needs and interests of legal employers. (As noted before, the WP doesn't really come to terms with the fact that some developments it seems not to like--e.g., lower faculty teaching loads--have also arisen precisely from market competition.) If what the WP is driving at is that it thinks law schools are simply "businesses," and not academic institutions, then let it come out and say so and defend that view. I agree that a law school could simply be a business venture, as the rise of for-profit law schools well illustrates (notice, of course, that these schools are widely criticized and derided). Let the ABA deregulate, and we will see which model the "market" actually favors. (And let's also be clear that markets are good at only one thing, namely, figuring out what people want; but we have known since Socrates [if not before!], that not everything people want is what they need. And some things individuals want can only be provided if society as a whole restrains the satisfaction of wants [as the WP recognizes in its discussion of law as a public good]. That is why every successful human civilization has some institutions that are insulated, in some measure, from the market [e.g., churches, universities, charities, public libraries, etc.] And here's what happens, of course, when the 'market' goes awry.)
(e) Although the WP correctly repudiates the absurd and irrational criticisms of law schools that have proliferated in cyberspace, it still evinces a curious obsession with what it calls "law school culture." For example, the WP claims, bizarrely, that, "Law schools' culture is at the root of an enormous number of current conditions...." (p. 3). But Law Schools did not cause the Great Recession or the structural changes in the legal marketplace that the WP believes are permanent and necessitate changes to legal education. The WP gives a quite sensible characterization of the faculty culture of law schools at p. 16, without even pretending to explain how any of these features explain the problems of, inter alia, unemployment of newly minted JDs . This seems a case where cyber-hysteria has exercised a pernicious influence on the WP. That becomes especially clear in the astonishing charge that the legal academy "consists of people who have sought out their positions because of a desire to avoid a market- and change-driven environment" (p. 16). This is astonishing for reasons that are, by now, clear: first, law schools are not immune to the forces of competition (just the opposite); and second, people enter law teaching for all kinds of reasons, but mostly because they like teaching and writing (law schools are always highly suspicious of candidates whose motive appears to be to "escape" practice). It is a bit scandalous for an ABA Task Force to make a fact-free pronouncement about the motives of people who go into law teaching. What were Task Force members thinking?
Since the theme of both the WP and my commentary on it has been "deregulation in the service of experimentation," let me conclude with a suggestion about how ABA regulation could make a constructive contribution: the ABA should prohibit all member law schools from participating in "evaluation" exercises by profit-making organizations, such as U.S. News. U.S. News comes in for some appropriate criticism in the WP, though perhaps not enough. The misleading and fraudulent employment data reported by law schools that I've written about for more than a decade was all brought about by U.S. News (which created an incentive to massage the numbres); U.S. News also creates the idiotic incentive to spend as much as possible, without regard to efficiency. If the ABA were to bring about an end to the U.S. News "reign of terror" it would, immediately, eliminate the worst incentive in legal education--one that trumps "law school culture" and "market insulation." By getting the idiotic U.S. News rankings out of the picture, the ABA would also make it easier for new and innovative models of legal education to flourish.