Questions for the ABA Task Force on the Future of Legal Education

The ABA Task Force working paper has many interesting ideas in it.* But it also has several points of weakness, glossing over critical perspectives and insufficiently supporting important factual claims. We can hope that a footnoted final draft will take care of the latter issue. But the lack of acknowledgment of critical perspectives is a deeper problem, and one I hope participants at this Saturday’s meeting will raise. Questions could include:

1) When clients refuse to pay for the work of recent law school graduates, do they say, “We’re not paying for first or second year attorneys,” or “We’re not paying for attorneys without the following ‘practice ready’ skill set”?

If it’s the former, isn’t the problem more one of bargaining power than one of inadequate education? If it’s the latter, shouldn’t the ABA solicit some critical mass of major clients to articulate the skills that need to be trained, and to pledge to pay those who possess them?

2) Why are (certain types of) law jobs in decline?

The Task Force strongly believes that there are “structural changes” in legal employment. The “structural vs. cyclical” dispute over the causes of unemployment is deeply ideological. A conservative economist may characterize the great recession as a “great vacation” of people unwilling to work (or learn new skills). Paul Krugman and Mike Konczal challenge the structural story generally, and Mike Simkovic & Frank McIntyre give us some reason to doubt it in the case of attorneys. They believe that the “data does not support” the view that “law continues to be depressed while the rest of the labor market has recovered.” Many other types of professionals are also faring worse than they have in the past. For every “death of biglaw” story, there’s a skeptic who’s heard it all before.

I have no doubt that certain types of law jobs are in decline. But this raises a deeper question: why is this happening? Let’s think outside the BigLaw box, and consider, say, elder abuse attorneys. Stipulate, for purposes of this discussion, that there has been some decline in the number of attorneys specialized in the regulation of assisted living and nursing home facilities (and tort lawsuits for neglect and abuse). Why might that occur?

A) Attorneys simply aren’t needed here. Technology and market forces have brought a golden age of quality care to the nation’s elderly. Like buggy whip manufacturers, law schools have been rendered obsolete by the invisible hand of consumer choice.

B) There is still a great deal of elder abuse and neglect, but it’s not worth much to expose or deter it. States have cut back regulation of nursing homes and similar facilities. They also impose trivially low fines for avoidable resident deaths (like $150 in California and $601 in Georgia). Elaborate networks of companies shield beneficial owners from tort lawsuits. In this new environment, the technically brilliant (if morally dubious) lobbying and lawyering of the dominant firms has left a much larger group of attorneys without any real legal basis to gain reasonable recoveries for sizeable harms.

Among a certain technocratic policy elite, answer “B” is merely the cri de coeur of trial lawyers and bureaucrats. But that’s the same technocratic policy elite that cheered on the deregulation of the finance sector—both eliminating many “wasteful” lawyer jobs and plunging the world into years-long recession. A purely economistic, technocratic perspective hides an array of value judgments about the role of attorneys in society.

3) What if there is a tension between assuring law students are “practice ready” and preparing them for “JD-required” jobs?

One fundamental value proposition of a law degree is training in a variety of tactics for distributing risk and reward when two entities conflict or cooperate. As the Supreme Court uses arbitration and preemption to sweep more contract and tort disputes out of the courts, there may well be less work in litigation-intensive fields. But conflicts remain, and are increasingly absorbed into positions in fields like compliance, supply chain management, revenue cycle management, and the like.

For many critics of law schools, the only good job is one that requires a JD. But the nature of the new positions is being able to connect, coordinate, and mediate between systems in novel and unique situations. Sometimes the best person for those jobs will be an attorney; sometimes someone with superior strengths in allied fields will be needed. (Think, for instance, of PR Director for a union or Chief Privacy Officer at a corporation—you probably want someone with a law degree in the position, but a person with particular press contacts or technical expertise may get the job, and try to learn the job’s legal aspects on the side. Similarly, a hired lawyer might try to learn the technical aspects “on the job.”).

What’s odd to me is that so much of the anti-law-school literature (which seems to be a foundation of the ABA’s Task Force Report) says, simultaneously, that a) JD-required jobs are the only good jobs and b) that there are fewer and fewer JD jobs to go around. On that logic, all that’s left for law schools to do is to compete on status to grab a shrinking pool of JD-required jobs for graduates. But that’s a prescription for failure, particularly if you believe that most standard tasks within any field are increasingly automated. Many of the jobs of the future exist at the “seams” of law and other areas, in non-standardizable interactions.

4) Does scholarship have any value in training students?

For the ABA Task Force, “scholarship” seems almost entirely instrumental to a destructive economy of prestige among law professors. The Task Force does not adopt the full-on John Roberts characterization of legal scholarship as ruminations on 18th Century Kantian Bulgarian evidence law, but it clearly sympathizes with the Chief Justice’s frustrations.

I hope the Task Force will consider Mike Madison’s argument that “a well-trained lawyer . . . should have experience as a scholar.” It should also acknowledge the role of scholarship in helping both students and professors keep up with changing fields.

These questions have a common theme: a critique of the “solutionism” that tends to “reach for the answer before the questions have been fully asked.” The draft report of the ABA Task Force is too quick to reach for managerialist prescriptions that may well be self-defeating in the long run. Before simply endorsing “diverse” models of legal education, it should fully consider how the growth of “for-profit” options among colleges has panned out. Before faulting law schools for failing to fully adapt to structural change, it should consider the broader macroeconomic debate on the great recession. And before lamenting an excess of scholarship in the academy, it should demonstrate its own willingness to properly document and cite the authorities it relies on.

*Sorry for the cached link—the main link appears to be broken.

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