FALSE ADVERTISING POSING AS LEGAL SCHOLARSHIP

Sometimes everything you need to know about a piece of purported scholarly legal research appears in its opening lines. Take, for example, the first two sentences of “Keep Calm and Carry On” in current issue of The Georgetown Journal of Legal Ethics:

“Supposedly, there is a crisis in legal education. It appears to be touted mostly by those who are in the business of realizing monetary (or, at least, reputational) gain from providing cost-efficient coverage about matters of (rather) little importance.”

At this point, Professor Rene’ Reich-Graefe’s 15-page article offers the second of its 80 footnotes: “For example, in 2011, The New York Times Company reported annual revenues of $2,323,401,000. Of those, approximately 52.57% (or $1,221,497,000) were raised in advertising revenue…”

So it turns out that the New York Times, The Wall Street Journal, and every other media outlet reporting on the troubled world of American legal education have manufactured a crisis to sell advertising space. Never mind too many law school graduates for too few JD-required jobs, more than a decade of soaring law school tuition, and crippling student debt. Everyone just needs to calm down.

The argument

Professor Reich-Graefe offers what he calls “a brief exercise in some eclectic apologetics of the present state of legal education for those of us who refuse to become card-carrying members of the contemporary ‘Hysterias-R-Us’ legal lemming movement.” Starting with a Bureau of Labor Statistics report that “lawyer employment jobs in 2010 were at 728,200,” he observes that the United States has an additional 500,000 licensed attorneys and concludes:

“One may safely assume that, at present, a good number (though certainly not all) of those licensed lawyers are gainfully employed, too — mainly within the legal profession.”

Then Reich-Graefe posits trends that he says will favor the legal profession: “Over half of currently practicing lawyers in this country will retire over the next 15 to 20 years”; “U.S. population will increase by over 100 million people, i.e., by one third, until 2060, thus, increasing total demand for legal services”; “the two largest intergenerational wealth transfers in the history of mankind…will occur in the United States over the course of the next 30 to 40 years, thus, increasing total demand for legal services even further”; and “everything in the law, by definition, will continue to change…there will be more work for more lawyers.”

His analysis culminates in a breathless conclusion: “[R]ecent law school graduates and current and future law students are standing at the threshold of the most robust legal market that ever existed in this country — a legal market which will grow, exist for, and coincide with their entire professional career [sic].”

The critique

Others have already dissected Reich-Graefe’s statistical arguments in great detail. Suffice it to say that when law professors wander into the world of numbers, someone should subject their work to peer review before publishing it. But Professor Bill Henderson makes an equally important point: Even if Reich-Graefe’s analysis and assumptions are valid, his advice — “Keep Calm and Carry On” — is dangerous.

I would add this nuance: Reich-Graefe’s advice is more dangerous for some law schools than for others. The distinction matters because law schools don’t comprise a single market. That’s not a value judgment; it’s just true. At Professor Reich-Graefe’s school, Western New England University School of Law, only 37 percent of the graduating class of 2013 obtained full-time, long-term jobs requiring a JD. Compare that to graduate employment rates (and salaries) at top schools and then try to convince yourself that all schools serve the same market for new lawyers.

The dual market should have profound implications for any particular school’s mission, but so far it hasn’t. Tuition at some schools with dismal employment outcomes isn’t significantly less than some top schools where graduation practically assures JD-required employment at a six-figure salary.

Likewise, virtually all schools have ridden the wave of dramatic tuition increases. In 2005, full-time tuition and fees at Western New England was $27,000. This year, it’s $40,000.

Shame on us

Reich-Graefe makes many of us accomplices to his claimed conspiracy against facts and reason. Shame on me for writing The Lawyer BubbleShame on Richard Susskind for writing Tomorrow’s Lawyers. Shame on Bill Henderson for his favorable review of our books in the April 2014 issue of the Michigan Law Review. Shame on Brian Tamanaha, Paul Campos, Matt Leichter, and every other voice of concern for the future of the profession and those entering it.

Deeply vested interests would prefer to embrace a different message that has a noble heritage: “Keep Calm and Carry On” — as the British government urged its citizenry during World War II. But in this context, what does “carry on” mean?

“Carry on” how, exactly?

Recently on the Legal Whiteboard, Professor Jerry Organ at St. Thomas University School of Law answered that question: filling classrooms by abandoning law school admission standards. Ten years ago, the overall admission rate for applicants was 50 percent; today it’s almost 80 percent. That trend line accompanies a pernicious business model.

It’s still tough to get into top a law school; that segment of the market isn’t sacrificing student quality to fill seats. But most members of the other law school market are. They could proceed differently. They could view the current crisis as an opportunity for dramatic innovation. They could rethink their missions. They could offer prospective students new ways to assess realistically their potential roles as attorneys while providing a practical, financially viable path for graduates to get there.

Alternatively, they can keep calm and carry on. Then they can hope that on the current field of battle they’re not carried off — on their shields.

10 thoughts on “FALSE ADVERTISING POSING AS LEGAL SCHOLARSHIP

  1. It’s interesting that the WNE Law School professor completely ignores his school’s dismal placement rate when extolling the wealth of opportunities for law grads. I guess his message should be “Calm down, and carry on. Just not here.”

  2. I do wish that this debate could be carried on with a less ad hominem fervor. The truth is, almost everyone who participates in the discussion has an interest. Certainly that is true of Professor Reich-Graefe. It is rather less true of Steve and the New York Times. The fate of lawyers may not matter that much to the vast majority of 300 million Americans, but it matters a lot to lawyers, prospective lawyers, and law professors. The data are somewhat mixed, and it would be a welcome thing if someone were to approach them in a dispassionate way. In the current state of affairs, credibility is too much a function of which side you are on and not enough a function of bringing independent judgment to bear. The point (now) is not to change the world, but understand it..

    • What data do you think are “somewhat mixed”?

      Certainly not the job market for recent graduates. For the class of 2012, one-third of all accredited law schools reported nine-month JD-required employment rates below 50 percent.

      Certainly not skyrocketing law school tuition. The overall rate of tuition increase since 1998 exceeds that of colleges and medical schools.

      Certainly not law student debt. The median student loan debt for 2012 law school graduates exceeds $140,000, according to the New America Foundation study reported in this week’s Wall Street Journal. The $52,000 increase since 2004 is more than any other advanced degree, including medicine.

      I think the point (now) is to accept that the world for many lawyers and prospective lawyers has changed — and is continuing to change. There is nothing ad hominem about exposing a flawed argument or the misuse of statistics that underlies an untenable position. There is great potential harm in allowing a misleading claim to pass without notice or scrutiny.

    • “The data are somewhat mixed, and it would be a welcome thing if someone were to approach them in a dispassionate way. In the current state of affairs, credibility is too much a function of which side you are on and not enough a function of bringing independent judgment to bear. The point (now) is not to change the world, but understand it..”

      Pat, as ‘bellyofthebeast’ pointed out, the data are not mixed at all. I’ll add that the only ‘mixed’ nature of the data is when certain law school play games. As for dispassionate analysis, the major books are quite dispassionate, more than their targets deserve.

      • Yes, imagine what would happen if Michael Lewis or Matt Taibbi (rather than Brian Tamanaha or Bill Henderson) decided to dig into this topic, especially on the issue of tuition discounts and section stacking.

        There’s nothing ad-hominem about these harmful practices. They hurt students and the profession (and, they are largely the products of law school administrations, not professors). Honestly, I am surprised that the legal academy hasn’t found more common ground with the scam-bloggers.

      • Given how much Taibbi missed in his expose of student loans 12-15 months ago, I wouldn’t be overly hopeful about him. IIRC, he neglected to even mention the Student Loan Asset-Backed Securities market, whose aggregate market value stood at nearly $2.7 trillion before the recession hit, or how federal student loans are either wildly profitable or wildly unprofitable depending on what accounting system is being used – the variance over the next ten years ranges from $184 billion in profits to $95 billion in losses.

        But speaking of false advertising and law schools, I noticed that Northeastern, in its most recent alumni magazine, is back to hawking the notion that 40% of their students are landing FT, LT, license-required jobs from a co-op employer. They’ve been selling this stat for like ten years now; the percentage never changes, and they’ve never corroborated how they arrive at that percentage. Meanwhile, according to the school’s ABA disclosures, the TOTAL percentage of grads with FT, LT, license-required jobs nine months after graduation was 49.4% in 2011, 43.2% in 2012, and 45.8% for 2013. So either only 10 to 20 Northeastern grads are managing to land “real” legal jobs outside of the co-op program each year, or the 40% co-op-to-job stat is pure fantasy.

      • I looked at the alumni magazine. The sentence from Associate Dean Luke Bierman reads: “And, finally, we came to the conclusion that although 40 percent of students’ post-graduate job offers came through co-op connections, that number could be much higher.” (p.2)

        Meanwhile, the cited ABA disclosures are correct (as Unemployed Northeastern reports them in the comment).

        In other words, Unemployed Northeastern makes an interesting point.

        -SJH

  3. Pingback: WHO REALLY PAYS FOR LAW STUDENT DEBT? | The Belly of the Beast

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s