Steven Harper
Steven Harper (Karen Hoyt)

The current debate over the future of legal education is a critical one. That’s why it’s so important that it be based on a common understanding of indisputable facts. Perhaps UC-Irvine dean Erwin Chemerinsky and professor Carrie Menkel-Meadow just made an honest mistake in misreading the employment statistics upon which they relied in their April 14, 2014, New York Times op-ed, “Don’t Skimp on Legal Training.” If so, it was a bad one.

The offending paragraph in the piece comes early on in the pair’s effort to dismiss those who use the word “crisis”—the op-ed puts it in quotation marks—to describe the challenges facing the profession. Because the same word appears prominently in the subtitle of my latest book, I’ll take the bait.

Wrong From the Start

The authors support their “no crisis” argument with this:

“As recently as 2007, close to 92 percent of law school graduates reported being employed in a paid-full-time position nine months after law school. True, the employment figures had dropped by 2012, the most recent year for which data is [sic] available, but only to 84.7 percent.”

Of course, the good old pretransparency days of 2007 to which Chemerinsky and Menkel-Meadow refer are now six long years ago. But more importantly, the 2012 data they cite includes part-time, short-term, and law school–funded jobs—and only those graduates “for whom employment status was known.” And 2012 is not “the most recent year for which data are available,” either.

Facts Are Stubborn Things

Not until 2010 did the ABA begin requiring law schools to identify the types of jobs in which their graduates were working. The results have been startling, as the most recent ABA data, for the class of 2013 demonstrates:

• Nine months after graduation, only 57 percent of law school graduates had long-term full-time (LT-FT) jobs requiring bar passage. Another 5 percent held part-time or short-term positions requiring the same credential.

• Long-term full-time “JD Advantage” jobs were held by 10.1 percent of the 2013 graduates. Many of the graduates filling the positions included in this category includes positions—such as accountant, risk manager and human resources employee—are no doubt asking themselves whether law school was worth attending. Another 3.5 percent held short-term and/or part-time jobs in this category.

• Another 4 percent were working at law school–funded jobs.

• The proportion of graduates who were “unemployed/seeking jobs (of any kind)” increased to 11.2 percent, or more than 5,000 graduates from the class of 2013.

• As the Law School Admission Council reports, average law school debt for current law graduates exceeds $100,000. Am Law Daily contributor Matt Leichter has observed previously that the rate of tuition increase in law schools between 1998 and 2008 exceeded the rate for colleges and medical schools. (One reason: U.S. News’ ranking criteria reward expenditures without regard to whether they add value to a student’s education.)

For 33 of the nation’s 202 ABA-accredited law schools, the LT-FT JD-required employment rate was below 40 percent; for 13 schools, it was below 33 percent.

Meanwhile, federally backed student loans that survive bankruptcy help fuel a dysfunctional system that has allowed law schools to shirk accountability for their graduates’ poor employment outcomes. As constructed, the current system blocks the very “market mechanisms to weed out the weakest competitors” that Chemerinsky and Menkel-Meadow cite as providing the ultimate cure. As law school applications have plummeted, most schools have responded by admitting applicants at higher rates.

If all of that doesn’t add up to a crisis, what will it take?

The Importance of Credibility

The problem with the authors’ unfortunate attempt to minimize the situation is its power to undermine other points they make that are, in fact, worth considering.

For example, they note that job prospects “obviously depend on where a person went to school and how he or she performed.” True, but many law professors now touting the happy days ahead for anyone contemplating law school ignore that reality.

“The cost of higher education, and the amount of debt that students graduate with, should be of concern to all,” they write. True, but where are their proposals for a solution?

“Law schools specifically should do more to provide need-based financial aid to students—rather than what most law schools have been doing in recent years, which is to shift toward financial aid based primarily on merit in order to influence their rankings. This has amounted to ‘buying’ students who have higher grades and test scores.” True, but how many schools are changing their ways? Between 2005 and 2010, law schools increased need-based financial aid by only 20 percent—from $120 million to $143 million—while non-need-based aid nearly doubled—from $290 million to $520 million.

Like almost every law school dean in America, Chemerinsky has a choice. He can acknowledge the crisis for what it is and be part of the solution, or he can live in denial and remain part of the problem. Earlier this year, National Jurist named Chemerinsky its “Most Influential Person in Legal Education.” Now is the time for him to live up to the responsibilities that come with that title.

Steven J. Harper is an adjunct professor at Northwestern University and author of “The Lawyer Bubble: A Profession in Crisis” (Basic Books, April 2013) and other books. He retired as a partner at Kirkland & Ellis in 2008, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thebellyofthebeast.wordpress.com/. A version of the column above was first published on The Belly of the Beast.