Seven years ago, law Professor Tamar Frankel, in her book about the loss of trust and confidence in American business culture, wrote about the commodification of legal and medical services as one example of decline in trust in society generally.
Both the public and legal and medical professionals themselves see their professional role less and less as that of a trusted fiduciary providing a public service, and more as a business person providing goods for sale. For example, lawyers have been advertising for some time now. However, more recently that advertising has gone to another level with lawyers and law firms engaging in more serious branding with Facebook pages, Twitter accounts, blogs, and stylized and shortened firm names. Although many benefits to this trend exist, dangers undoubtedly do as well. As Professor Frankel notes, commodification puts the focus increasingly on making the sale and bringing in revenue; thus, potentially leading to a decrease in trust-based relationships. This debate has continued for years and will likely continue for years to come. But, recently, this idea of commodification of the legal profession seems strikingly relevant in considering the implications of the current "crisis in legal education."
This "crisis" is sometimes portrayed as a supply and demand issue. A few years ago, too many young college graduates wanted to become lawyers. As it turned out, law firms and other legal employers could not provide enough jobs for those lawyers. Now that the potential applicant pool has caught on and the number of applications for law schools has plummeted, law schools are worried about their growth model. They are asking whether they have enough students to fill their classes and support their financial needs.
Faculty meetings are about finding creative ways to employ graduates in order to encourage more applications, in order to be more selective, in order to raise status, in order to attract even more applicants. Some schools have even devised models to hire their own graduates to achieve the statistics they desire. Some schools are expanding their foreign LLM programs to bring in more revenue. In addition to selectivity, law schools are looking to brand themselves as focusing specific sectors, such as public interest law or compliance, so that they can attract employer interest and thus, more applicants.
The cinematic version of law school, as a place where students look to their left and then to their right fearing the rigor ahead of them and where law professors strike a fear into students’ hearts that propels them to do better, may be coming to an end. Law students are now hot commodities for whom law schools must now compete. In some cases, those same students later protest against their schools like angry shareholders of a company whose board of directors has failed to produce the necessary results. These changes are not anyone’s fault, and it is rather unlikely that the change is reversible, if that is even entirely desirable. It’s natural for schools to want to rise higher in the rankings and to do better for their students. It’s also natural for students to feel cheated when they were lured to a school with questionable employment statistics.
However, over the course of the next few years, when law schools and lawyers think about where we are going as a profession, it is not enough to think about "how can we grow?" It is necessary to ponder the deeper questions of "why should we be thinking in terms of growth at all" and "how, if at all, we should restrict the process of commodification" for the legal profession? Most importantly, to what extent does treating lawyers and their services like commodities hurt the quality of lawyers we train and the services they provide. It will benefit us all in the end if we approach these debates with a clear picture of the trajectory of history in mind and not merely with a focus on the crisis of the moment.•