Over a rainy Sunday, I commented heavily over at Prawfsblawg on the NYT article by Segal. Here's a more concise view of my take on it. [I've added a few edits to the post and tried to put them in brackets.]
For an article pitched to a general audience, Segal got lots of stuff correct.
We’ve heard all this before, so let’s not over-react just because it’s now front-page news.
Yes, for a more nuanced analysis, read Henderson, Ribstein, Tamanaha, etc. But also recognize that Segal is writing for a general audience.
His potshots at law review articles with seemingly funny titles was an over-reach.
Segal didn’t argue that the recent hiring troubles are simply a matter of schools not teaching practical skills and no one believes it’s that simple. But, if he did argue that, he was wrong, because it's more complicated than that.
[University-based] schools haven’t taught practical skills for a long time—or, perhaps, never really have in the last 100 years
As Brad and other have pointed out, there was lots of fevered hiring of new graduates in recent times—even if practical skills weren’t being heavily taught in law schools.
But, even when that recent hiring was happening, corporate GC’s were doing what they could to avoid paying for first year associates’ time. There just wasn’t much that the GCs could do about it, especially when we were in economic up-cycles.
Those of us who were in heated discussions with client GCs even back in the 1990s about the costs of first year associates know that this is not a recently invented concern. It’s been brewing for a while. (I’ve used ppt slides to make this point in my Legal Professions course for over a decade now.)
While the concern has been around for a while, there was nothing GC’c could do to stop it—except complain. They now have options, as discussed below.
We’re being hit by a double-whammy: (1) we’ve had a huge downturn in the national economy, and (2) the boundaries of the legal profession have become significantly more porous.
Some people think we’re simply in a slightly longer than usual down-cycle that will become an up-cycle at some point. While we’re in the down-cycle, corporate GCs have lots more leverage over law firms.
Others (including me) think [that there is also a second change afoot]: a variety of factors have combined to undermine the way big law firms have done business for the last 25-30 years. Those factors include the disaggregation of legal services, the huge build-up of human capital inside corporate law departments, the globalization of certain legal and quasi-legal services, and the corporate clients’ use of sophisticated cost containment techniques. (I was speaking to law firm GCs about "disaggregated" legal work and "hollowed out" work back in 2007-08.)
If the latter factors explain some of what’s going on, then there will be a new normal of some type even when the economy picks back up.
If the latter factors explain some of what’s going on, it will have a lasting impact on the economics of law school.
On top of that double-whammy, law schools have heaped economic pressure on law school students. Law school tuition has increased and schools have used a combination of financial aid and IBR to essentially squeeze as much revenue from law students as the schools can squeeze.
Back when I went to law school, investing in the degree was a no-brainer as an investment.
These days, lots more law students are buying degrees that may not be sound investments. [See the new article by Herwig Schlunk.]
Compounding the difficulty of deciding if the degree is a sound investment has been the practice of some schools to “puff” or “blow smoke” or outright lie about the economics of their graduates.
The law degree will remain a terrific investment for lots of students but may have become a bad investment for more students than ever before. If so, law schools will be taking some heat. (“[Loyola 2L,]” where are you?)
The complaints about the lack of value add by recent graduates aren’t an ideological conspiracy, or propaganda, or the unfair shifting of costs from law firms to law schools [or attacks written in support of the 1%.] [links added] The market is changing and the law schools have to adjust. How could it be otherwise?
This is a healthy development, not a sinister movement. Lighten up, guys.
Law schools ought to be sensitive [and attentive] about adding value.
Law schools, being significantly insulated from market pressures for some time now, have done what just about everyone would do in that situation: they’ve spent money on themselves and have chosen to spend their money on the things that they particularly value. [Professor's satire on this point here.] What law faculties value isn’t [necessarily] what corporate clients value. (For example, right now there’s a vogue in law schools for “interdisciplinary” studies. I can’t speak to the academic value, but I predict that the market will be underwhelmed by that.)
[Successful rent-seekers tend to generate and internalize justifications as to why their control over price, output, qualities, and terms is a public benefit showered on the rest of us. The rest of us don't have to buy those justifications. Once you've internalized those justifcations, it's easy to view market pushback as some sort of [vicious] attack. It isn't.]
Law schools control the accreditation process and, not surprisingly, have used that power the way any rent-seeker would. If the market is now pushing back against that rent-seeking, let’s not consider that a conspiracy. Successful rent-seeking isn't a [moral] entitlement.
Adding practical skills is part of the answer but certainly not all of it. Students heading for the top end of the profession need to understand the new “disaggregated” legal services market and thrive in it.
One obvious [albeit partial] solution is to permit an educated, enlightened student body to have much greater say over the curriculum.
One crazy solution is to bring back the LLB and let undergraduates study law the way they now study accounting and business management. (I'd like to see this. For example, if San Jose State were to add an undergrad law degree, we'd have lots more diversity in the profession and the students wouldn't be burdened by debt.)
One obvious problem from all this: the law degree will be seen as a sound investment by the people most able to pay the upfront costs and then recoup them over a long period of time. My guess is that the 50,000 new enrollees [each year] will not be getting any more diverse and presumably will get marginally less diverse. If so, that means that 10, 20, 30 years from now we will have a limited pool of experienced people for the top slots in our society.