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No more room at the bench

The American Bar Assn. allows unneeded new law schools to open and refuses to regulate them. The government should consider taking steps to stop the flow of attorneys into a saturated marketplace.

January 08, 2010|By Mark Greenbaum

Remember the old joke about 20,000 lawyers at the bottom of the sea being "a good start"? Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys.

Part of the problem can be traced to the American Bar Assn., which continues to allow unneeded new schools to open and refuses to properly regulate the schools, many of which release numbers that paint an overly rosy picture of employment prospects for their recent graduates. There is a finite number of jobs for lawyers, and this continual flood of graduates only suppresses wages. Because the ABA has repeatedly signaled its unwillingness to adapt to this changing reality, the federal government should consider taking steps to stop the rapid flow of attorneys into a marketplace that cannot sustain them.

From 2004 through 2008, the field grew less than 1% per year on average, going from 735,000 people making a living as attorneys to just 760,000, with the Bureau of Labor Statistics postulating that the field will grow at the same rate through 2016. Taking into account retirements, deaths and that the bureau's data is pre-recession, the number of new positions is likely to be fewer than 30,000 per year. That is far fewer than what's needed to accommodate the 45,000 juris doctors graduating from U.S. law schools each year.

This jobs gap is even more problematic given the rising cost of tuition. In 2008, the median tuition at state schools for nonresidents was $26,000 a year, and $34,000 for private schools -- and much higher in some states, such as California. Students racked up an average loan debt in 2007-08 of $59,000 for students from public law schools and $92,000 for those from private schools, according to the ABA, and a recent Law School Survey of Student Engagement found that nearly one-third of respondents said they would owe about $120,000.

Such debt would be manageable if a world of lucrative jobs awaited the newly minted attorneys, but this is not the case. A recent working paper by Herwig Schlunk of Vanderbilt Law School contends that with the exception of some of those at the best schools, going for a law degree is a bad investment and that most students will be "unlikely ever to dig themselves out from" under their debt. This problem is exacerbated by the existing law school system.

Despite the tough job market, new schools continue to sprout like weeds. Today there are 200 ABA-accredited law schools in the U.S., with more on the way, as many have been awarded provisional accreditation. In California alone, there are 21 law schools that are either accredited or provisionally accredited, including the new one at UC Irvine.

The ABA cites antitrust concerns in refusing to block new schools, taking a weak approach to regulation. For example, in 2008 the ABA created an accreditation task force to study the need for changes, but saddled it with a narrow charter. In the end, it proposed only cosmetic changes and rejected out of hand the possibility of giving up control over accreditation, calling the idea not viable and "draconian."

The task force also raised the possibility that if the ABA gave up its accreditation authority, the Federalist Society, a conservative-leaning interest group, could take over that job. This is an intellectually dishonest red herring, likely injected to divert attention from the idea's merits. The Federalist Society would have no reason to do this because the technical, expensive accrediting process does not gibe with its mission, nor would the Department of Education be likely to give it such authority.

The ABA has also refused to create and oversee an independent method of reporting graduate data. Postgraduate employment information generally provides the most useful facts for prospective students to study in deciding whether to go to law school.

In many cases, the data that schools now furnish are based on self-reported information, skewing the results because unemployed and low-paying grads are less likely to report back. Law schools do this because they want the rosiest picture possible for the influential rankings given by U.S. News & World Report. Despite its ample resources, the ABA has rebuffed calls to monitor the schools to get more accurate data, calling the existing framework an effective "honor system."

Based on what happened with the accreditation task force, the ABA is not likely to force change; it is too intertwined with the law schools. ABA groups -- such as the task force, which was chaired by a former dean -- are stacked with school officials who have no incentive to change the status quo. This is why the ABA should get out of the accreditation business completely.

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