Sequester
March 1st, 2013 / By Deborah J. Merritt
What does the sequester mean for law school graduates? Those who work for the federal government may have already received notice of upcoming furloughs. The Department of Justice, for example, has notified Assistant U.S. Attorneys that they will be furloughed for up to fourteen days. That doesn’t sound like much, but there are only 260 weekdays in a year. Fourteen days of furlough add up to a 5.4% pay cut.
Add to that the special nature of professional work. Furloughed prosecutors cannot offer to work free on their furlough days, and they must stay away from the workplace on those days. But their cases won’t go away. US Attorney’s offices, like all other offices affected by the sequester, will face an unpalatable choice: Do the attorneys maintain their current workload, working harder on the days they’re at work–for less pay? Or do they cut back on prosecutions?
The same cuts will affect our graduates who work as FBI agents, policy analysts, IRS employees, and any other type of federal government worker. As the cuts affect state budgets, particularly in states that rely upon defense spending, JDs who work for state and local governments will suffer as well.
That’s just the first chapter. With current employees furloughed and the budget future so uncertain, government agencies are likely to cut back hiring–even more than they have done already. We also have to worry about indirect effects on lawyering jobs, as furloughs and other cutbacks ripple through the economy. Fewer FBI agents, US attorneys, and government regulators means fewer investigations and prosecutions. That’s less work for the lawyers who defend the accused (from small-time drug dealers to big-time corporate fraudsters) or who advise companies on complying with government regulation.
We can hope that Congress will come to its senses quickly, once the effects of sequestration sink in. But even then, there will be sobering news for our graduates. The sequester reflects a period of profound political and cultural malaise over government spending. Opposition to that spending occurs on top of the economic forces that already threaten information-heavy professional jobs like lawyering.
Don’t get me wrong: The harshest effects of anti-government attitudes fall upon the poor. We should care passionately about how our economy and government are leaving so many people behind. But, since this blog focuses on legal education, we also need to ask what all of this means for our graduates–and for what we do as law schools. At one time, government jobs were a first choice for some law graduates and a satisfying fallback for others. Those jobs are more in doubt now than they have been for more than fifty years. How does that affect our work as law schools?
UTX
February 28th, 2013 / By Robert Rhee
UTX was my moment of epiphany, the “oh my” moment when cogent thought on the legal profession came in a flash. Admittedly, prior to learning of UTX (not that long ago), I didn’t really know much about the economics of the legal profession other than the obvious fact that the financial crisis of 2008-2009 must have inflicted significant pain on the industry, thus my prior assumption of only a cyclical downturn. I write this blog post for the benefit of those colleagues in the academy who may have a sense that the legal profession is having difficulties but can’t quite see the larger picture beyond anecdotes of layoffs and a very difficult hiring market. I hope to provide a concrete example of the economic stress on the legal profession, which obviously has trickle down effects on the economics of law schools and the value of the law degree. (more…)
Merger
February 28th, 2013 / By Deborah J. Merritt
Rutgers University has announced a plan to merge its two law schools (Rutgers and Camden). Details remain to be worked out, but the university hopes that next year’s applicants (those applying to enroll in fall 2014) will apply to a unified school, with a choice of campuses.
The announcement raises interesting questions about how law schools can work together to meet current challenges. Few schools may be in a position to merge; those arrangements are particularly difficult when the schools reside in different universities. But are there other ways for schools to collaborate to reduce costs, improve job prospects for graduates, develop new clinical programs, or achieve other goals? Some schools are already starting to share courses by internet; what other collaborations are possible?
I welcome here comments on law school collaborations of all kinds–up to and including mergers.
Using Capstone Courses to Assess Curriculum
February 22nd, 2013 / By Deborah J. Merritt
We make a lot of assumptions in legal education. One is that our courses teach students the skills and doctrine we hope to impart. But do they? Do our first-year doctrinal courses teach students to read cases and statutes critically? Do our writing courses teach them to communicate effectively in memos and to argue persuasively in briefs? Does an evidence course equip students to identify evidentiary problems, analyze them properly, and offer competing arguments when the resolution is unclear?
There is a way to answer these questions, through assessment of student outcomes. As Andrea Funk and Kelley Mauerman explain in this useful article, this type of assessment focuses on a whole cohort of students, not on a single student. To assess the success of a curriculum (or individual course), we examine whether the group has achieved the skills or knowledge we attempted to teach.
Funk and Mauerman explain this type of assessment, then apply it to the legal writing curriculum at their school. They demonstrate that focusing on a capstone performance (in this case, a final exam administered at the end of a four-course sequence) can illustrate whether the curriculum serves its intended goals. If students don’t perform as well as we want, we can’t blame the students; we need to go back and improve the curriculum.
Funk and Mauerman focus on assessment conducted by a professor (or group of professors) teaching a particular course or sequence. This type of assessment seems like an excellent place to start. Their article, however, made me wonder about assessment conducted by a group of faculty from different parts of the curriculum or–even better–by a group of faculty and alumni. If a group of faculty read selected finals from a variety of first-year courses, selected papers from third-year seminars, or written work prepared in our clinics, would we be pleased or horrified? Would we identify problem areas that we could address?
It would be particularly instructive to look at student papers together with some practicing alums. What would those alumni see in the work product? Could they identify the skills or analytic abilities that matter to them in practice? How well do they think the students are performing on those key abilities?
Assessment is a simple, but powerful, tool. The biggest hurdle may be the first one: motivating ourselves to take a hard, critical look at the success of our classroom efforts. For those willing to take that step, Funk and Mauerman offer a valuable guide to the assessment process.
Unemployed Lawyers
February 20th, 2013 / By Deborah J. Merritt
The Bureau of Labor Statistics (BLS) reports that only 1.4% of lawyers were unemployed in 2012. That’s an impressive figure, especially when compared to an overall unemployment rate of 7.8%. Some law schools point to our profession’s low unemployment rate as a positive reason to embrace law school. Is that a valid way to use the BLS statistic?
No, the statistic is quite misleading when recited without further context. Here is the information schools need to know–and should convey–if they want to use this statistic. First, the statistic includes only people who held a lawyering job before becoming unemployed. That’s why the BLS titles this data series a measure of “experienced unemployed persons.” The statistic does not include people who have passed the bar and are eager to work as lawyers, but who have not yet held a lawyering job. They may be unemployed, but they’re not unemployed lawyers.
Second, the statistic does not include anyone who worked for a single hour during the survey week. The occupational unemployment rates derive from the Current Population Survey (CPS), which surveys 60,000 households each month. The CPS uses a very liberal definition of “employed.” Anyone who receives pay or profit from at least an hour of work during the week is “employed.” A lawyer who was paid for a single hour of document review during the survey week may be strapped for cash and woefully under-employed, but that person is still an “employed lawyer.”
Third, the statistic does not include lawyers who have been unable to find satisfactory legal work and have taken jobs in other fields. An hour of paid work in any job counts as employment for the CPS. A laid-off law firm associate who takes a retail sales job to pay the bills is an “employed retail salesperson” not an “unemployed lawyer.” Ditto for the laid-off lawyers who have taken jobs as high school teachers, realtors, paralegals, or other workers. Even if these employees want to be lawyers, have the training to be lawyers, and would eagerly leave their jobs for a lawyering position, they don’t count as “unemployed lawyers.”
This point is particularly important because job seekers can work down, but not up, the training scale. A worker with just a high school diploma can’t practice law, but a lawyer can do many of the jobs that the high school graduate performs. Similarly, the lawyer can take many of the positions open to other college grads. This is an important part of the reason why people with advanced degrees have low unemployment rates; they usually can return to occupations that were open to them before obtaining the degree. The advanced degree may have little relevance to their employment, but they are not unemployed.
Finally, the BLS count of “unemployed lawyers” includes only individuals who have actively looked for work during the preceding four weeks. Checking newspaper ads or attending training classes doesn’t count as an active job search. This caveat is important because of the number of unemployed lawyers who become discouraged and leave the workforce entirely.
Women are a barometer of this phenomenon; if paid work is difficult to find, they may choose to care for children or other family members instead of pursuing their profession. Unfortunately for the diversity of our profession, BLS statistics show just this trend among female lawyers. In 2000, women constituted 29.8% of all employed lawyers. By 2003, despite more women graduating from law school (and disproportionately male senior lawyers departing the workforce), only 27.6% of employed lawyers were women. The 2001-03 recession pushed more female lawyers than male ones out of the workplace.
Similarly, both the percentage and absolute number of women lawyers has declined recently. After hitting an all-time high of 34.4% of the profession in 2008, the percentage of female lawyers declined to 31.1% in 2012. More than 100,000 women graduated from law school during the last five years, but there are 19,000 fewer women lawyers today than there were in 2008. I don’t know if those women have moved into other fields or out of the workforce, but they don’t show up as unemployed lawyers in the BLS statistic.
In sum, it is technically true that the unemployment rate for lawyers, according to the BLS, is just 1.4%. But that statistic is likely to give prospective law students and others a distorted view of the legal job market. The bare statistic suggests that 98.6% of people who want to practice law, and who have law licenses, are employed as lawyers. That’s clearly not the case. In fact, the same BLS data series suggests that the number of practicing lawyers declined between 2011 and 2012: There were about 1,085,000 respondents working as lawyers in 2011, but just 1,061,000 in 2012.
There are responsible ways to discuss both positive and negative aspects of the legal job market with prospective students. A responsible approach, however, gives context to statistics; it also includes both positive and negative figures that appear in the same data series.
Note: The BLS does not publish the occupational unemployment statistics on its website; that’s one indicator that the Bureau sees limited utility in these figures. But for those who want to see the data for the last ten years, I have PDF copies of the tables.
Analyzing Cases and Statutes
February 16th, 2013 / By Deborah J. Merritt
Whatever else we teach in law school, most professors and lawyers agree that we need to teach students how to analyze cases and statutes. Lawyers must be able to read those key products of our legal system; analyze their meaning; synthesize their rules; apply the rules to new situations; and recognize ambiguities or open questions.
Why do students have so much trouble with these tasks, even in the third year of law school? These are difficult tasks, but they’re hardly insurmountable. Talented graduate students should be able to grasp them in less than three years. The answer, I think, is that we don’t teach these skills nearly as well as we assume. If we really wanted to teach students to analyze cases and statutes, we would adopt different methods. Here are some of my thoughts on that:
1. Modern courses in Legal Writing explicitly teach students how to analyze and synthesize legal materials, but doctrinal courses rarely do. The typical doctrinal course expects students to learn these skills simply by trying until they get it right. Without explicit instruction or individual feedback, students who get the wrong answers in class (or are mystified by their classmate’s correct answers) don’t know where they are going wrong.
2. The right answers in a doctrinal class usually require knowledge of the doctrine–not knowledge of how to deduce that doctrine from a case or statute. Students who are struggling for answers, therefore, usually turn to doctrinal study guides; they rarely seek additional help in analyzing and synthesizing legal materials.
3. Students learn what we test. Although we may say that our doctrinal courses teach students how to analyze legal materials, we rarely test those skills directly. How many doctrinal courses give students a new case or statute to analyze during the final? The Multistate Performance Test does that on the bar exam, but we rarely do it in law school. Our doctrinal courses test students on doctrine and issue spotting (within a defined doctrinal area), not on analyzing or synthesizing legal materials.
4. Thirty-five years ago, students might have had to analyze and synthesize in order to learn the doctrine and issue-spotting tested on exams. When I attended law school (1977-80), Gilbert’s outlines were sold discretely out of a single student’s locker. They weren’t very good, and there were no other study guides on the market. Today, each subject boasts a half dozen or more study guides–many of them quite good. Websites like Outline Depot allow students to exchange outlines keyed to an individual professor’s class. I’ve looked at the outlines for my Evidence class and, again, they’re pretty good. If we test students on issue spotting and doctrine, then it makes sense to study the doctrine and issues that the professor stresses in class. It’s not necessary to analyze and synthesize cases or statutes.
5. Today, when the doctrine is readily available, we tell students that they should read all of the cases and statutes for their doctrinal courses because that’s a good way to refine their lawyering skills. But that’s such an unrealistic path that students quickly tire of it. Many casebooks include just fragments of cases or statutes, so the students learn little about analysis. If cases are drawn from multiple jurisdictions, students don’t learn real synthesis; they learn to synthesize a blended rule from cases handpicked by the casebook author.
Most important, no practicing lawyer would proceed as we suggest. Close analysis of cases and statutes take significant time; a practicing lawyer would save that time for when it is necessary. For established doctrine, the lawyer would rely upon treatises, other authoritative summaries, or her own accumulated knowledge. The lawyer would read only the newest cases and statutes (those that have not yet been fully analyzed) or the ones with potential ambiguities related to her case.
Students quickly grasp that the law school way of learning doctrine, by reading a case for almost every point, is unrealistic. It’s also tedious and unnecessary, so they don’t do it. In my experience, upper-level students read assigned cases or statutes very lightly–if at all. They know that the bottom line holding will be most important for class discussion and the exam; they also know that a quick read, class notes, or a study guide will provide that information most of the time. If the case is a more complicated one that requires close reading, they’ll learn that in class when the professor embarrasses someone through socratic questioning–and the professor will eventually reveal the nuances.
In other words, I think we discourage students from flexing their analytic skills by demanding that performance when it’s not necessary. If we saved case and statutory analysis for the materials that demand close scrutiny, students would be more likely to engage in that process and learn from it.
The number of cases and statutes requiring close scrutiny varies by subject matter. Constitutional law requires close reading of more cases than Evidence does. (I’ve taught both courses, so speak from experience there.) Some code courses require almost daily analysis of code sections, but very little case analysis. We should be careful, though, in assuming that all of our subjects require daily case or statutory analysis; many of them don’t. If we want to hone analytic skills in our doctrinal classes, we could do so more realistically by requiring those skills only for the material that demands it.
6. If we are serious about honing case and statutory analysis in doctrinal courses, we should be willing to give more individual feedback–or to create online modules to do that. Listening to the professor question another student is not a very effective way to learn close analysis. Instead, we could require every student to complete online exercises related to key cases or statutes. Using fairly rudimentary software, we could ask every student to (a) highlight case language that expresses a court’s holding; (b) highlight language that expresses ambiguities or openings for future distinctions; (c) answer questions about how hypothetical problems might be resolved under a case or statute; and (d) point to the specific language supporting conclusions about those hypotheticals. In each case, the software could tell the student what she had gotten right or wrong.
In class, we could discuss more advanced points about these cases or statutes, knowing that each student had read the underlying source closely enough to answer the required questions. We could also discuss points that many students missed, since the software could aggregate those responses. And we could examine the novel insights that some students might have generated. E.g., perhaps one student saw ambiguous language that the professor missed in creating the exercise.
In sum, I think we have a long way to go if we aim to teach case/statute analysis and synthesis in our doctrinal courses. Currently, we teach primarily doctrine in those courses–and there are more efficient ways to teach doctrine than through the case method. If we really focused on teaching analysis/synthesis in some courses, we could teach those skills more efficiently as well.
About Students and the Opportunity Cost of Curriculum
February 12th, 2013 / By Robert Rhee
The law school admissions process is odd. Among the major professional schools, law school has the lowest barrier to entry in terms of personal commitment to the profession. A student does not choose medical school as a “default” option. A student cannot get into a credible business school unless she has significant work experience. Law schools require only a GPA and an LSAT score. Many law schools may not even ask the most important question, “Why do you want to be a lawyer?” The typical law student is probably 22-23 years old. She may never have worked a regular job, worked on a project where others depended on her, filed a tax return, or bought a car or house. This profile has important implications for curriculum.
Let me digress a bit here. Two weeks ago, I was in California for a symposium on legal education, and this gave me a chance to see some old friends from business school. One of my friends has a spouse who is in her spring 3L at a Top Ten law school (she does not have a job yet and the worst case plan is to work a year for free on the hopes of a job opening in her desired career). He is very involved in her world of law school, and sometimes even attends her classes and socializes with her law school friends. So we naturally got around to talking about law schools and one avenue of conversation was whether law students were smarter than our Wharton classmates. (more…)
» Read the full text for About Students and the Opportunity Cost of Curriculum
Guest Contributor
February 12th, 2013 / By Deborah J. Merritt
We’re delighted to announce our first guest contributor, Robert Rhee, the Marbury Research Professor of Law and Co-Director of the Business Law Program at the University of Maryland’s Francis King Carey School of Law. Robert has published an innovative text on Essential Concepts of Business for Lawyers, and comments frequently on legal education. Earlier this year, we wrote about Robert’s proposal to incorporate more Business Education in Law School. Today, he offers more suggestions for the law school curriculum.
Risk
January 29th, 2013 / By Deborah J. Merritt
Education is an investment. Until recently, Americans considered that investment close to fool-proof; almost every degree from a reputable institution seemed to pay off in the job market. With rising tuition and a turbulent economy, however, an increasing number of students understand that education today is like other investments: it has downside risk.
Legal educators often note that law isn’t the only field experiencing high tuition and uncertain job prospects; other graduate programs show the same trends. That’s true, but the question isn’t whether other programs are risky. The question is whether prospective students now perceive law school as more risky than other programs. It’s like the old story about the two campers and the bear. Other graduate programs don’t have to out-run the bear; they just need to out-run us.
The Risks
Here are some of the features that make legal education risky for today’s students. First, we maintain a three-year program. Students can obtain a wide range of master’s degrees in just two years–sometimes less with summer study. Master’s degrees in public affairs, public administration, public health, economics, social work, accounting, international relations, education, computer science, environmental science, and business are just some of the programs that might appeal to students interested in law.
Second, most of our programs are full-time. Part-time programs are much easier to find in many master’s fields, as well as in some doctoral programs. Full-time law students have limited options to earn money while pursuing their degrees; this increases the degree’s cost. Full-time enrollment may also discourage established workers from entering law school. In today’s volatile market, employees may be reluctant to cut ties as thoroughly as law school demands. Three years is a long gap in any employment history.
Third, our tuition is high. Law school costs substantially more than most master’s degrees, even without accounting for the third year. We also cost more than most PhD programs, especially since many doctoral students receive fellowship support or teach while earning their degrees. Medicine and dentistry cost more than law school, but they have much more secure job outcomes.
Fourth, our job outcomes are uncertain. For a worrisome number of graduates, there are no jobs practicing law. This reality emerges, not only from the 9-month employment statistics compiled by NALP, but also from Bureau of Labor Statistics projections. The Bureau estimates that, even if the economy returns to full strength, it will provide legal jobs for just half the number of students that law schools have been graduating.
It is true that some law graduates find satisfying work in fields other than law practice, but graduates of other programs fill those same jobs. Unless one wants to practice law, why pursue a degree that is more expensive and time-intensive than almost any other?
The job uncertainty, furthermore, extends to the type of law that a particular graduate may be able to practice. JDs practice many types of law, but that doesn’t mean that every JD can choose among all those paths. A top student at a top school probably can choose almost any route in law. The options, however, diminish steadily as one goes down the law school and class rank ladder. At least 80% of law students, for example, have no option to practice for an NLJ 250 firm; that’s simply not a choice for these students. The minority who can exercise that option aren’t necessarily the top graduates from the highest ranked schools–although they dominate this group. Some other students have this option because of special talents or background. My point here is that, for the large majority of students, this career path turns out not to be an option.
The same is true of many other legal positions. As the job market has contracted, and as high loans have made public service loan forgiveness very attractive, students can no longer count on careers as prosecutors, public defenders, or other government and public interest lawyers. I have seen excellent students compete desperately for these positions without success.
It’s one thing to choose law school knowing that you’ll accept a modest salary, and repay substantial loans, while doing work you love as a prosecutor. It’s another thing to choose law school knowing that you’ll have high debt combined with an uncertain menu of job choices. What if you invest all that time and money only to discover that your only options are small-firm family law practice or document review? Some graduates might enjoy those types of work but, if you went to law school wanting to be a prosecutor or other trial attorney, the pay off is disappointing compared to the investment.
These risks are particularly severe when put in the context of the overall job market. I recently discussed the changes that technology is unleashing on our economy. Given the accelerating impact of technology, it is hard to predict the parameters or income of any profession ten years from now. Certainly the economy will still support lawyers, but how many will it support? What will most of them do? And what will most of them be paid?
Against that backdrop, a rational college graduate might invest in a shorter, cheaper graduate degree than law. We are accustomed to thinking of the JD as flexible, but that may not be true in today’s economy. High debt alone reduces a graduate’s options. Today’s prospective applicant might think, “I’ll get a master’s degree in X and work in that field for a while. Maybe later I’ll see if law still makes sense.”
It’s hard to think of the JD as a risky degree; in earlier times, it seemed like one of the safest options for a college graduate wanting a professional career. But, if we want to address the dramatic decline in law school applicants, we need to put ourselves in the minds of those applicants. How do the risks of attending law school line up against the risks of other degree programs?
Remedies
Reducing the JD’s riskiness will be difficult, and it will require challenging steps for law schools. The best ways to reduce risk for law students are some combination of smaller class sizes, lower tuition, more part-time options, a shorter degree program, up-front commitments from employers (similar to medical residencies), or “stepped” programs that allow students to obtain a series of degrees enabling them to perform different types of legal work.
I don’t underestimate the difficulty, from a law school’s perspective, of making these changes. It seems, though, that recognizing the riskiness of a JD–compared to other graduate programs and workplace options–is an important step towards reshaping legal education in a way that will continue to attract talented future lawyers. We need to outrun those other campers.
AP Study of the Economy
January 27th, 2013 / By Deborah J. Merritt
As we plan for the future, law schools wonder about general economic trends. Is the economy recovering? If so, will it create more jobs for lawyers? How soon? The Associated Press recently published a three-part series with troubling answers to those questions. You can find the three articles here:
The bottom line from this series: The economy is recovering in some ways, but technology is wiping out middle-class jobs–and is starting to chip away at higher paying jobs as well. Here are some of the facts that the AP researchers cite to support these conclusions:
** 7.5 million American jobs were lost in the Great Recession, and less than half of them have been restored. The figures, however, are even starker for middle-class jobs. Half of the jobs lost during the recession (about 3.75 million) were middle-class ones. Only 70,000 middle-class jobs have been restored.
** Technology has been cutting jobs for more than three decades. The losses started in manufacturing, but have moved aggressively into office, retail, and other service occupations.
** Top companies (those in Standard & Poor’s 500 stock index) earned one-third more profit in 2012 than they did the year before the Great Recession. But by relying on technology, those companies employ a half million fewer workers today than they did in 2007.
** Start-ups are launching with one-third fewer employees than they needed in the 1990s. Technology combined with outsourcing (which is, in turn, supported by technology) allows these companies to thrive with fewer workers. Since start-ups are a major source of new jobs in our economy, this trend is particularly disturbing.
** We are on the brink of even more dramatic workplace changes prompted by technology. Google’s self-driving cars have now logged 300,000 road miles without a single accident. What happens to the middle class when driver-less cars replace truck drivers, bus drivers, and cab drivers? What ripple effects will that technology have on commuters, insurance companies, and countless of other industries? One hint: It may be much easier to resolve insurance claims from driver-less cars because all of the data will be stored.
** Although technology creates new jobs, computers have been eliminating many more jobs than they create. For one measure of this, consider these facts: Three software giants (Apple, Google, and Facebook) together employ only 138,300 people worldwide. That’s less than a quarter of the workers (600,000) that General Motors employed during the 1970s. And GM itself produces many more cars today with only a third of its former workforce.
What do these trends mean for the future of legal employment? I explore some possibilities below.
Direct Client Loss
When we talk about demand for legal services, we often focus on large corporate clients. Those are the ones who pay the highest fees and support the most lucrative jobs for law graduates. But those clients have never supported the bulk of our graduates. According to analyses done by Harvard Law School’s Program on the Legal Profession, only 15% of U.S. lawyers worked in the 250 largest law firms–serving the biggest corporate clients–in 2007. Since 2007, of course, large law firms have downsized; the percentage of attorneys practicing for BigLaw today probably is less than 15%.
Where do other lawyers go? Some work for mid-sized firms, corporations, government, or public-interest groups, but a substantial number work alone or as members of very small firms. According to the Harvard analysis, more than a third (35%) of all lawyers work in solo practice. Those attorneys, as well as many of those practicing in the smallest firms, devote much of their effort to individual clients and small businesses.
The middle class and small businesses once sustained these lawyers–more than a third of our graduates–by paying them to handle home closings, divorces, child custody disputes, criminal defense, consumer issues, wills, probate, business formation, contract issues, small claims, and workplace disputes. That work has already diminished. Middle-class clients and small businesses have balked at the high cost of legal services, turning to pro se representation and online companies like Rocket Lawyer and LegalZoom.
Further shrinkage of the middle class may decimate that group’s demand for legal services. At the same time, start-up businesses that use technology (rather than new workers) for their accounting, human resources, and other support staff, will be increasingly comfortable with online legal advice. The trends identified by the AP study bode very ill for the lawyers who serve middle-class and small-business clients.
Some of these lawyers will find work in the online companies that are seizing this sector. The genius of those companies, however, is that they are able to provide legal services with many fewer attorneys; that is why they cost less. With the middle class contracting, it is very unlikely that this client base will grow sufficiently to support even the lawyers currently serving them–much less new lawyers in the future.
Larger Economic Upheaval
Law schools and their graduates might hope that large corporate clients will take the place of middle-class and small-business clients who no longer want our services. But the experts cited by the AP study suggest that we are in the early stages of a wrenching economic shift. Our largest economic challenge isn’t housing, banks, foreign competition, or the deficit; it’s computers that replace human workers. The accelerating capacity of information technology will displace an untold number of jobs during the next decade. Consider just the dislocation that will occur from driver-less cars, a technology that may secure significant success during the next decade.
The economists interviewed by the AP researchers offered three possible scenarios for evolution of the U.S. economy in the face of continuing technological change. The most positive of these, provided by Nobel Prize winner Joseph Stiglitz, is that information technology will cause the same dramatic upheavals that the industrial revolution generated in the nineteenth and early twentieth centuries. Those dislocations could culminate in a cataclysmic collapse similar to the Great Depression. Stiglitz’s forecast is optimistic only because he sees the economy eventually returning to health, just as the U.S. and other advanced economies did after World War II. He’s clear, though, that we may remain in the current “doldrums for half a decade, for a decade, or for longer.”
Andrew McAfee, a principal research scientist at MIT’s Sloan School of Management, offers a gloomier prediction. McAfee suggests that technology will fuel the growing gap between top-paying jobs and low-skilled ones. Technology will allow a small number of workers to reap greater returns, but it will relegate an increasing number to low-paid jobs or unemployment. That’s bad for the bulk of workers, and it’s bad for the economy as well. Without a large, prosperous middle class, how will the economy keep growing?
The gloomiest prediction comes from former Treasury Secretary Lawrence Summers and software entrepreneur Martin Ford. They envision a future in which a majority of citizens cannot find productive work. Technology will produce wonderful benefits, but humans won’t be able to earn enough to consume those fruits.
Whichever scenario you prefer, the next five to ten years offer lots of economic risk. Some parts of the economy may rebound, but there is likely to be significant economic turmoil. That turmoil will keep corporate employers cautious, pushing all parts of their workforce for greater productivity at less cost. Lawyers are part of that workforce, so we’re unlikely to see any return to the boom times of corporate spending.
Legal Work
The AP series doesn’t focus on lawyers, but technology is affecting our workplaces as much as any other. A lawyer equipped with a computer, internet, electronic databases, and cell phone can work much more quickly than one with yellow pads and a row of hard bound books. For a while, lawyers were able to retain the extra profit generated by those increases in productivity. We could charge our clients more for the same minutes, because we did so much more during those minutes.
But market competition, especially the intense competition spurred by the forces outlined above, has shifted the technology bonus to the consumers of legal services. We now produce much of our legal work more quickly and efficiently–but we must offer it at the same or lower prices. With lawyers doing more in less time, we don’t need as many lawyers. The oversupply of lawyers has further pushed price competition, reinforcing the cycle.
The changes we’ve seen so far, furthermore, are just the beginning. Predictive coding is poised to replace armies of lawyers who now conduct document review. Document automation makes drafting legal instruments quicker and smarter–while requiring fewer attorneys. Richard Susskind’s latest book outlines many of the other changes that technology will bring to the legal community during the next decade.
Conclusion
General economic trends offer little refuge for lawyers or legal educators hoping for a rebound in our own job market. Middle-class clients and small businesses are likely to support fewer lawyers during the coming years. The economy as a whole faces great challenges, so corporate clients will continue to demand more value for money. And technology will do an increasing variety of legal work, displacing more lawyers.
If a computer can make a left turn against oncoming traffic, what other feats can it accomplish? You may think that it’s harder to think like a lawyer than like a driver, but consider the number of datapoints a computer must weigh to make that left-hand turn. Legal judgments depend on identifying data and recognizing patterns; computers have shown their skill at both of those tasks.
I’m not a Luddite: I love computers and all that they have done for us. I wouldn’t halt the march of technology for a minute, and I can’t wait to get one of those driver-less cars. But if we want to plan seriously for the future of law schools and the legal profession, we have to consider the trends documented in the AP study. Through the lens of history, it’s easy to see all of the changes that the industrial revolution wrought. It may be harder to see broad socio-economic forces as we live through them.
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