For Legal Education, Adaption is the Only Option for a Better Future

In legal education, we have become delusional about our prospects. We are paralyzed by a combination of denial and confidence — denial about the nature of the problems and confidence in our own ability to compete.

The public is smarter than professors would prefer to give them credit for. People are avoiding law school. The fact is that the pool of applicants has decreased at an unprecedented rate. Prospective students who would have been rejected outright prior to the recession are being offered scholarships now. Law schools have cut their enrollment, but not enough: at many institutions, the average credentials of those who matriculate are not equivalent to their predecessors.

The individuals who might have considered pursuing a J.D. degree now have good reasons for their decisions not to do so. Their main rationale is the predicted return on investment. There are not enough jobs, and those that are available offer a "return on investment" that does not meet expectations. Whether law schools select those who are averse to risk, people are choosing to keep the money that would pay for tuition.

The collective reaction has exceeded its original cause. Many observers no doubt will cheer any reduction to the ranks of our noble profession. But those who believe in rule of law, including managing partners of law firms who at some point will need to replenish their ranks, might well be concerned that there will not be enough qualified, ethical newcomers who wish to represent others.

The trends have not escaped notice. Mainstream media outlets have followed snarky bloggers in suggesting that legal education is a "long con."

There is no end of suggestions. The American Bar Association and the bars of California and New York, among others, have proposed amendments to requirements for admission to the bar.

The difficulties of reform are not unusual. The problems for the institutions are structural and collective. As such, they resist simple remedies.

Law schools are running deficits. These are not one-time shortages that they could recover from, but recurring losses that will accumulate until they are too great to sustain. And this is the case on dozens of campuses.

What is happening is happening for the same reason that any other business enterprise is threatened by the disruptions that define our era. The expenditures exceed the revenues. The expenditures include "tuition discounts" packaged as "merit scholarships." The revenues, which are made from enrollment except at a few schools with substantial endowments, cannot meet targets without compromising standards.

Yet higher education administrators, as well as faculty, believe that they can recover. They hope to: revise the curriculum to show it imparts useful skills, win against their rivals through superior strategies, or achieve their transformation through fundraising hitherto realized.

It doesn't matter who the leader of a school is. It does matter if she "spots the issues" as 1L students are taught to do.

None of the popular possibilities address the changes in the marketplace. The demands of regulation and the desire to rise in rankings ensure that schools have high fixed costs and few incentives for cooperation.

They are in an elaborate contest against each other, even as they are assigned the task of sorting out students into those whom the elite employers will consider from those whom they will not.

Legal education is not unique though. Law firms face their own set of challenges that are comparable; liberal arts colleges too. Virtually every sector of the economy boasts a variation on the themes of potential automation, outsourcing, and elimination of demand.

Lawyers and professors assumed erroneously that they would not be affected. They are highly-credentialed experts, after all. The trouble is that expertise itself is subject to the same rules as anything else. Legal technology has developed, from the ready availability of decent forms on the internet to robust keyword searching for even massive discovery projects.

The prevailing wages globally are below the premium Americans have been accustomed to charging. It's not clear the difference is worth it. Sophisticated clients are like everyone: They want to save money. They can turn almost all assignments into "commodity work." Except for the very best in a field, that means billing rates will be driven down.

Similarly, it is possible, perhaps likely, that legal education, akin to the legal marketplace, will recover to a limited extent and evolve. And there is a business cycle.

But a rally that is partial and temporary should not mislead us. The "new normal" will not remain new, nor normal.

Improvements are not impossible. In every domain, paradigm shift has been uneasy.

A handful of law schools are setting an example. William Mitchell and Hamline in the Twin Cities agreed to merge, eliminating excess supply in seats; requested a "variance" from the ABA to allow accredited on-line courses; and affirmed an emphasis on practical training. Rutgers combined its Camden and Newark campuses. Indiana Tech announced it would close not long after receiving provisional approval.

For legal education, adaptation is the only option.