Zillions have linked to and millions have commented on the NYT Economix blog post on the supposed lawyer surplus. Here are some further thoughts on the “lawyer glut” and its implications for legal education.
To begin with, the NYT numbers are unreliable. They ignore, among other things, the facts that people take multiple bars, and that NY, a big “surplus” state, is a magnet for foreign students not planning to practice in NY. Much more importantly, they look at “annual job openings for lawyers.” The question, which I discuss further below, is whether that really captures the full value of a law degree in a rapidly changing market.
Brian Tamanaha adds data that should cut more deeply into the hearts of the really important group (I’m referring to law professors, of course): falling applications, rising enrollments. So, he says, “with tuition high and job prospects low, it seems likely that the number of law school applicants will continue to fall–although it’s hard to say how far or for how long.” This summons a scary scenario: “schools will reach deeper in the pool to fill their classes, bringing in students with lower qualifications.” He concludes that “schools would be prudent to anticipate a cumulative drop in applications of perhaps a third from their high. * * *Law schools have enjoyed flush times for more than a decade. Tough times are ahead.”
But Steve Bainbridge responds that law schools may not adjust. He says the self-interest of university presidents and influential alums produce a “classic collective action problem” with no market (given our regulated industry) to solve it.
I have a different take in my forthcoming article Practicing Theory. The problem isn’t that we have too many law trained people and so should train fewer. In fact, in our increasingly regulated economy, there is probably a gross undersupply of law-trained people.
The problem is that regulation has fixed the nature of the product so it hasn’t adequately responded to shifts in demand. The downward demand shifts have been produced by, most importantly, technology. But demand is increasing for new kinds of law-trained people both at the low-cost end of service to the poor and middle class and the potentially high-profit end of producing new kinds of products and services (see Law’s Information Revolution). Yet regulation has locked law schools into models that don’t serve these new needs.
In a real market, the supply side would change. As discussed in yesterday’s WSJ, if nobody’s buying borscht, make more horseradish. Practicing Theory provides some specific suggestions as to how law schools might change their product. These include training lawyers to interact better with other disciplines and to think more globally. In other words, the answer is to change, not necessarily to shrink. In the long run regulation will also have to change, but there are things law schools can be doing in the meantime.
The other side of this is that if law schools can’t figure out how to make horseradish, law professors may go the way of borscht.