Applicants and Aspirations

December 2nd, 2013 / By Deborah J. Merritt

What will draw more students back to law school? Several writers have suggested that declining class sizes will attract more JD applicants. Smaller classes mean fewer graduates: If graduates decline, while jobs hold steady, then employment rates will improve. College graduates will take note and turn their attention back to law school.

Jacob Gershman, writing in the Wall Street Journal Law Blog, notes that if entering class sizes decline for just one more year, then the Class of 2017 may enjoy better employment rates than the Class of 2007 did. That sounds pretty promising, especially since Gershman limits his calculation to full-time jobs requiring bar passage. Will that degree of improvement attract more law school applicants?

It almost certainly will: An employment rate of 79.4% for the Class of 2017, using Gershman’s figures, is much more attractive than the 58.6% achieved by the Class of 2012. Several factors, however, counsel that applications will not rebound as far as employment rates. Here are three reasons why, all caveats that law schools should consider when planning strategically for the future.

Greater Transparency

Law schools published employment information in 2007, but not with the same transparency that the ABA and applicants require today. Many people are shocked to learn that, nine months after graduation, no more than 72% of the class of 2007 had obtained full-time jobs requiring bar admission. More than 10% of the class was unemployed, unaccounted for, or working in nonprofessional jobs like retail. Most of the remainder had secured “JD preferred” or “other professional” positions, but a substantial minority of that group was unhappy with their employment. 37.7% of the former group, and 39.6% of the latter, were seeking other jobs.

Those figures were available to applicants and professors who pressed for details in 2007, but we didn’t talk about the job market as frankly then as we do today. When projecting the behavior of future applicants, we have to remember that they operate in a world of more transparent employment figures. We have to ask: If applicants know that ten percent of them will be un- or under-employed with their JD, while another 18% will take jobs that do not require bar admission, how many will choose to attend law school?

Rising employment rates, in other words, will shed light on how much transparency matters. Did students flock to law school last decade because they were impressed with the actual employment rates of the period? Or did they misconstrue their odds in the employment market? I don’t know, and I don’t think anyone can know, but I think that improved transparency will depress applications at least somewhat. 2017 will not be 2007.

Different Jobs

Today’s transparency includes, not just employment figures, but detailed information about the kind of positions that law graduates obtain. Those positions have changed significantly since 2007, and potential applicants know about the shifts. Indeed, applicants may know more than the average law professor; we need to catch up with that knowledge if we’re going to plan effectively for the future.

In 2007, the largest law firms (those employing more than 500 lawyers) hired more than 4,745 new JD’s within nine months after graduation. For the Class of 2008, the number reached more than 5,193. I say “more than” for both of those years because several law schools, including BigLaw feeder Columbia, did not participate in NALP surveys at that time.

For the Class of 2012, these largest firms hired only 3,636 JD’s within nine months after graduation. That smaller number seems likely to persist. Corporate clients are handling more legal work in-house, while BigLaw firms are hiring outsourcers and contract attorneys for substantial portions of their routine work. Even some of those 3,636 BigLaw positions are no longer associate jobs; some are staff attorney positions. Market forces strongly suggest that these trends will continue.

Those trends, of course, create other job opportunities. In-house positions, document review work, and staff attorney jobs often require bar admission, so these are new “bar admission required” jobs. The jobs, however, are different from the ones available to the Class of 2007–and applicants will know that. Some applicants may find some of these jobs desirable, although the salaries are much lower. Others will not be interested in a “79% employment” rate that includes a significant number of part-time, short-term, or staff attorney positions. Once again, it’s hard to quantify the impact of these changes, but they almost certainly will reduce applications to some extent.

Constrained Choices

For at least a generation, the most attractive aspect of a JD may have been our promise of many employment options. Graduates could work for large firms or small ones; they could choose government or public interest work; they could apply their JD to politics, business, or other endeavors. Law school applicants tended to be high achievers with uncertain career goals; they were people who liked to maximize their options–and law school seemed like the greatest option maximizer of all.

For many graduates, these options proved elusive. Students at the top schools, or at the top of their class elsewhere, might have been able to choose from a full menu of careers. But most students at most schools faced more limited options. A student in the bottom half of the class never had the option of working as an associate at a BigLaw firm–unless the student attended one of the top law schools, had a strong personal connection, or possessed non-law experience that was both highly desirable and rare.

Regional firms were also picky; most students couldn’t simply “choose” to work at them. Government and public interest jobs were more available, but students often had to begin working in those positions early in law school; they couldn’t wait until graduation to discover an interest in prosecution or environmental policy work. I’ve taught at two top-50 law schools during the last 30 years; even during boom years, I knew students who struggled to find a single job–any job. They did not choose among a variety of positions.

The changing job market has narrowed choices further. At more than half of accredited law schools, associate positions in BigLaw are virtually unattainable. In 2012, 45 schools placed 0 graduates in the largest firms–not even in staff attorney positions. Another 67 schools placed 1-5 graduates in those firms, with an unknown number of those graduates taking staff-attorney or paralegal positions. (These figures derive from the ABA’s 2012 employment spreadsheet, which is available here. I do not include any of the Puerto Rico schools in my counts.).

Competition for jobs in all other categories is stiff. To secure those jobs, students often have to chart a careful course starting at the end of their first year. Working part-time for a future employer while gathering related experience in courses, externships, and clinics, often provides the best shot at a full-time job. Many students are happy with these jobs, but they do not choose from a wide menu of options.

Today’s law school applicants understand both these narrowed choices and how those choices are distributed among students at different law schools. This may be the greatest impact of transparency: Most law schools have lost their reputation as “choice maximizers.” A handful of top law schools can credibly offer their students a wide range of employment options. At most schools, however, the options are more constrained and students need to specialize early in their law school careers.

Swallowing the Pill

This truth, about narrowed options, may be the hardest pill for legal educators to swallow. Choice is deeply ingrained in our culture, and has been one of the most attractive selling points for law school. For many applicants, I suspect, the promise of choice mattered even more than high salaries. We all like the power to steer our own destiny.

As professors, our experience tends to perpetuate the notion that law school graduates choose among many career options. Most of us personally enjoyed a very wide range of entry-level job choices and career paths. We also see the overall employment patterns for our graduates, which suggest a large menu of jobs. The employment reports show so many different outcomes! It’s easy for us to believe that each of those graduates chose his or her job over all of the competing options.

Contacts with graduates who enjoy their work buttresses these beliefs. Former students rarely call to say, “I really wanted to do commercial litigation for a mid-sized firm, but the only work I could get was with a solo doing personal injury work”–although those calls and blog posts are becoming somewhat more common. Students are more likely to call when they are satisfied, or to describe their work as a chosen path. Unless we listen closely, we risk missing a key fact about today’s job market.

These trends–transparency, new jobs, and reduced options–mean that law schools cannot simply wait for applications to rise. We need to grapple with the forces that are reducing interest in legal education. What, specifically, should we do? I have a few ideas, which I’ll describe in my next post.