Rogerian rhetoric and law school cred – part II

Lucy Jewel

In my last post, I suggested that law schools employ Rogerian rhetoric to engage debate on the current crisis in legal education.  Rogerian rhetoric holds that the advocate fully and completely state the opposing view and only then move forward to consider the counter view.  So the question is – how do we apply a Rogerian structure to the question of whether there is still value in the J.D., given troubling tuition costs, employment numbers, and starting salaries?  For purposes of this argument, let’s consider a J.D. from a low-tier school, which can be expected to have the worst rate of return for its graduates.  At a minimum, Rogerian rhetoric mandates that we not obfuscate our graduates’ employment and salary data.  We would have to start by expounding on the following, with complete accuracy:

• The law graduate may only have a 50% chance of not finding a full-time job as a lawyer;
• If the graduate does find a law job, there is a strong likelihood that the job will only pay in the range of mid five-figures [$45,000 - $65,000].
• The graduate will likely be carrying an enormous amount of student loan debt.
• If the graduate elects income based repayment options for his/her student loans, the graduate is likely to remain on a modest fixed income for the next twenty-five years of his/her life.
• As Dean Jim Chen has cogently pointed out, coming out of this mix, many law school graduates will not be in an optimal financial place.

With all that said, let’s focus on why someone would want to go to law school, with full knowledge of the above risks.  I’ve been mulling these ideas around for quite some time, in part, to justify my existence as a fourth-tier law professor (where I primarily teach practice skills).  I’ve also been perturbed by the strains of elitism running through this debate (justify your existence, lowly fourth tier law schools!) and the idea that law professors, accumulating our own cultural capital as we write and blog our way to more prominence, are the expert arbiters on whether law school is a good investment.  None of this is to discount there are deeply compelling narratives as to why one should not attend law school.  But I’m curious to explore the counter position, if there is one.

One thing to consider is cultural capital, i.e. the non-economic value, that a law degree affords.  Social mobility has long been associated with obtaining a law degree, and obviously, the argument that a law degree will help move one up in society’s structure is a difficult one to make given the financial hole one must dig in order to obtain the degree.  But there is more to the story of social mobility than just economics.  Some law students, the first in their family to obtain a JD, may see the opportunity to practice law as an important cultural marker in their community.  The cultural cache of a law degree might mean something, even if the newly minted JD can only find full-time work in a non-legal job and must enter the profession via a part-time solo-practice.

Meaningful autonomy is the other reason I can think of as to why someone would take a huge risk to obtain a J.D. with little guarantee of job security in return.   Practicing law, even if it is only part-time and even if it includes tasks that have long been designated as unchallenging and low-level (drafting wills, preparing bankruptcy petitions, family law, criminal defense) still requires the outlay of substantive knowledge, rhetorical skill, and counseling ability, as the attorney seeks to help others maneuver through the legal system. 

As professors, let’s not impose our own hyper-snobbery on the rest of the world.  For all the professional elitism about rank of law school and type of law practice, most lay-people, especially in underserved communities, view being a lawyer as being a lawyer.  It doesn’t matter what school one graduated from or what type of law one practices.  Moreover, as Professors Dinovitzer and Garth have reported, lawyer satisfaction rates among lawyers who graduate from less-elite schools (more likely to represent individual clients) remain higher than those legal professionals that graduate from elite schools (more likely to land a corporate law-firm job).  (The authors then posit that these differential outcomes in lawyer satisfaction are a manifestation of how our professional hierarchy replicates itself, an analysis that remains valid, but which may need updating, as the Great Recession and its after-effects have re-aligned our professional hierarchy).  Nonetheless, I think the data on lawyer satisfaction should give law professors pause before we project our own values and risk-aversion scales onto everyone who contemplates a career in law. 

Why do people make seemingly irrational economic choices?  Why, for instance, do throngs of people move to New York City, to be musicians, writers, or actors, when NYC is hardly an incubator of financial security or success in these endeavors?  Yes, we must accept that job security is no longer a reason for obtaining a law degree.  In addition, the argument that “one can do anything with a law degree” does not work these days (if it ever did).  The Rogerian line of reasoning may not continue to draw 40,000-plus new law students into our classrooms each year, but my predication is that the JD will continue to retain cultural value that defies pure economic reason. 

Comments

[twitter.com/jimmilles]

Excellent post, Lucy, and with your comment about "strains of elitism," you're pointing to a hidden current throughout this discussion: the powerful effect of status anxiety on law faculty as a conservative force against significant change in our system of legal education.

Several of the authors in this forum have called for radical changes in our model of legal education, such as deregulation by the ABA, making the JD an undergraduate degree, or creating alternatives to the JD with varying kinds of training for varying kinds of legal work. We already have a de facto trifurcated system of legal education in this country: the elite (5, 10, 14, or 25) schools, the fourth-tier practice-oriented schools, and the vast majority who are either in the top 50 or desperately trying to get there but have more in common with the fourth-tier schools than they care to admit. Even if the US News rankings disappeared tomorrow, the same struggle to enter the elite group would continue; it's in our DNA now.

The elite-ish schools can be as experimental as they like; they can eschew practical instruction entirely, or then can create third-year programs focusing on practical experience. Barring major disastrous missteps, there is little they can do to endanger their elite status. The fourth-tier schools (barring a few marginal startups) have mostly identified their niche and fill it admirably, training lawyers for their regional market. It's the middle range of schools that have the greatest investment in the status quo. They're the schools that insist on trying to hire elite scholars from the elite law schools, then spend endless time in faculty appointments meetings trying to game out which of those elite candidates they have a shot at, how long to make their exploding offer periods, and what to do when their first choices inevitably take faculty jobs elsewhere. They're the schools that decide, in the face of the lawyer employment crisis and increased scrutiny of law school effectiveness, decide to decrease the faculty teaching load to encourage even more faculty scholarship. They have wat too much invested in moving up the status ladder to even consider doing anything more than tinkering at the edges of the curriculum.

[Milan Markovic]

To the extent that one can draw positives from the current crisis, one might be that "regional law school" may cease to function as a pejorative term. In a time when even many elite "national" law schools are having difficulties placing their graduates in paid positions, there is a great deal to be said for law schools that have strong reputations in their local communities and have many devoted alumni nearby.