The Canary in the Law School Coal Mine?

Coal miners used to bring a canary down into the mine to warn them when the air was becoming too dangerous. If the canary went limp, it was time to get out.

For the last several years, conditions for American law schools have been getting progressively more dangerous, as students respond to the realities of the market: the legal profession is over-saturated with people holding Juris Doctor credentials. Law schools have been graduating far more students than there are legal jobs, and the number of jobs is apt to shrink further as technology sinks its teeth into legal work.

In his recent City Journal article Machines v. Lawyers, Northwestern Law School professor John O. McGinnis explained why the demand for lawyers will keep shrinking. “Law is, in effect, an information technology – a code that regulates social life. And as the machinery of information technology grows exponentially in power, the legal profession faces a great disruption not unlike that already experienced by journalism, which has seen employment drop by about a third….”

Throughout the 60s, 70s, and 80s, law was a growth industry and a great many people (especially students who had taken “soft” majors in college) figured that earning a JD was an attractive option. Naturally, law schools expanded to accommodate the throngs of degree seekers, who were aided by federal student loan programs. Going to law school both delayed the need to start repaying undergraduate loans and appeared to be the pathway into a bright and lucrative career.

That’s not true anymore.

Indicative of the new law school reality is the announcement by the administration of the Western Michigan University Thomas Cooley Law School that it will close its Ann Arbor campus at the end of 2014.

A crucial factor in the steep declines in law school enrollment is the ready availability of information on the job prospects for graduates. Over the last 20 years, we have gone from it being common knowledge that a JD was a good investment, to rumors that it might not necessarily be, to hard data showing how unlikely it is that a graduate from a law school will find a law-related job of any kind. See, for example, the Cooley page on the Law School Transparency sit

Cooley was founded in 1972 as a stand-alone institution and remained that way until this year, when it affiliated with Western Michigan University. Its other campuses, in Lansing, Grand Rapids, and Tampa, Florida remain open – for now. Perhaps the closing of the Ann Arbor campus will be the last it will have to do; perhaps the law school industry will manage to plug the leaks and sail on.

Such optimism, however, seems unwarranted. I think it a safe bet that other law schools will close and many others will contract.

The current regulation of the legal profession props up the existing model of law school, which requires three very costly years to complete. In nearly all states, no one is allowed to sit for the bar exam, the prelude to licensure, without having graduated from a law school accredited by the American Bar Association. Is there something sacred about three years of law school? Would people be incapable of passing the bar and providing competent legal services without that?

No. This is an artificial barrier to entry that limits competition in the profession but does nothing to ensure competence.

One lawyer (among many) who has made that argument is Hans Bader, a Harvard Law graduate who now works for the Competitive Enterprise Institute.

In this Truth on the Market piece, Bader argued in favor of eliminating the law school degree requirement. Regarding his education at the famed Harvard Law School, he writes, “I learned little about the law at Harvard. This was partly due to my own laziness, and partly due to professors whose teaching pointlessly focused on ideologically-trendy but atypical situations, or hide-the-ball Socratic dialogue. (For example, my property instructor was obsessed with sexual harassment of lesbians by tenants.)”

Despite his lack of serious effort, Bader graduated easily – and only then, faced with the need to pass the bar exam, did he start learning the essentials. “I learned more law in two months of studying for the bar exam than I did in three years of law school, including basic principles that I was never even taught in law school,” he writes.

Thus we see the truth about law school. It isn’t crucial, nuts and bolts training like a plumber, electrician, or truck driver receives. It’s completely unnecessary. Before state governments got into the business of mandating ABA law school graduation, few lawyers went to law school at all. We could return to the time when law school had to pass the test of the market once it becomes more generally known that the legal profession’s anti-competitive rules hurt consumers rather than protecting them.

A surprising number of law professors know that and dare to say so. See, for example, this recent issue of Fordham Law Review.

All American law schools are protected by a Berlin Wall of regulation that ensures them a substantial number of students simply because alternatives are not allowed. That wall is being undermined by pro-consumer criticism. Eventually, it is going to fall, and then legal education will be subject to the same sort of creative destruction we have seen when competition is restored to formerly restricted markets.

The overexpansion of legal education is emblematic of higher education generally. In his sharply critical Atlantic Monthly article, The Law-School Scam, University of Colorado law professor Paul Campos wrote, “Just as the law-school reform movement has exposed the extent to which law schools have overpromised and underperformed, similar reform movements are calling into question the American faith in higher education in general, and all its extravagant promises regarding the supposed relationship between more (and more expensive) education and increased social mobility.”

Precisely so. Thanks to heavy government subsidization and incessant rhetoric from politicians about the huge income gains people are supposed to get from an “investment” in higher education, we have a terribly bloated higher education sector. That includes not just law school, but postsecondary education in general. Cooley’s Ann Arbor campus is probably just one of many canaries that will keel over.

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