Each week brings a new proposal to reform legal education. In a recent New York Times op-ed, John J. Farmer Jr., the dean of the Rutgers School of Law in Newark, offered his suggestion: two-year apprenticeships.
Most deans operate in good faith and are genuinely concerned about the current state of the profession. In fact, a core element of Farmer’s idea is quite sound. Hands-on training was a good idea when Clarence Darrow studied under the tutelage of a practicing attorney, and it still is. The British placement system of training contracts has kept the U.K’s lawyer bubble smaller than ours.
But Darrow began his apprenticeship after one year of classes. Farmer’s suggestion of a two-year residency following three years of law school misses the mark, as do his predictions about what it would accomplish.
Problems of Mysterious Origin
Farmer begins where he must: a collapsing job market; the role of law school deception in creating the oversupply of lawyers; record-high levels of tuition and student debt. But he ignores an important question: How did those things happen? The answer: a flawed law school business model.
Consider Farmer’s point about law school deception. For years, his school joined most others in reporting A 90-plus percent employment rate for its most recent graduates. In the 2008 Official Law School Guide [ PDF], Rutgers-Newark showed a 93.3 percent employment rate; as recently as the 2012 Official Guide [ 2013 Official Guide reports that in 2011, Rutgers-Newark received only 2,218 applicants to its full-time program for the class that will graduate in 2014. Yet the school still matriculated 174 new students. In other words, since 2007, the number of applicants has dropped by 800 (26 percent), but first-year enrollment has declined by only eight students (4 percent).
Farmer also laments the record levels of tuition and the resulting debt with which today’s students must contend. The 2008 Official Guide listed Rutgers-Newark’s full-time nonresident tuition and fees at $27,976; New Jersey residents paid $19,623. Today, nonresident tuition at the school exceeds $37,000—a 33 percent jump. Resident tuition has increased by almost 30 percent to more than $25,000.
Choosing to ignore the role of law schools in creating the current crisis leads Farmer to a proposal that won’t eliminate it. He suggests scrapping the system whereby big firms “hire graduates from a few select schools, paying them exorbitantly.” In its place, he wants a residency program that would allow law firms “to hire more lawyers, at lower rates, and give talented graduates of less prestigious institutions a chance to shine.”
During this proposed two-year apprenticeship, students would work for minimal wages (“repaying their debts could be suspended, as it is for medical residents”). At the end of the period, firms “could then select whom to keep.” For the losers in that contest, job searches would start anew.
Not Gonna Happen
Apart from retaining the flawed law school business model that has taken the profession to its current state, Farmer’s plan requires a remarkable leap of faith in big-law behavior. In particular, he hopes that firms would charge lower hourly rates for new associates and, as a result, hire more of them.
Unlike many law school deans, Farmer has extensive experience as a practicing lawyer, including a stint as a partner at K&L Gates. But when he tries to predict the behavior of big-law leaders, he enters dangerous terrain.
The prevailing law firm business model perverts the definition of productivity to mean total billable hours, rather than the efficiency with which a lawyer’s work produces results for clients. The current model emphasizes the metrics of near-term profits at the expense of longer-run values. Those who employ it would view reducing associate labor costs as a godsend to their bottom lines, not as a reason to spread the same amount of existing work among more lawyers.
Farmer doesn’t suggest reducing tuition, enrollment, or the duration of law school itself. Such steps would challenge the law school business model directly. “Legal education," he suggests, "has not so much failed the profession as mirrored it.” Actually, it’s done both.
That’s the real lesson of his op-ed: Until deans revisit their roles in creating the current mess, their proposed solutions are likely to be inadequate.
Steven J. Harper is an adjunct professor at Northwestern University and author of the forthcoming The Lawyer Bubble: A Profession in Crisis (Basic Books, April 2, 2013). 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.