How can we run fair and safe elections in the time of social distancing? Diane talks with Ohio State University election law professor Edward Foley.
Guest Host: Susan Page
In his new book, “The Lawyer Bubble”, former 30-year litigator Steven Harper says there are too many lawyers, too few jobs and too much emphasis on profits. He joins guest host Susan Page.
- Steven Harper Adjunct professor at Northwestern University School of Law and former litigator at the law firm Kirkland & Ellis LLP.
Read An Excerpt
Excerpt adapted with permission from “The Lawyer Bubble: A Profession in Crisis” by Steven J. Harper. Available from Basic Books, a member of The Perseus Books Group. Copyright © 2013.
MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. Diane is on a station visit at WCBU in Peoria, Ill. After a 30-year career as a senior partner with a big law firm, Steven Harper left for the halls of academia. He began teaching a course to undergraduates about the wide gap between the expectations and the reality of practicing law. He says the reality emphasizes profits over practice and is putting the entire industry at risk.
MS. SUSAN PAGESteven Harper joins me in the studio to talk about his new book "The Lawyer Bubble: A Profession in Crisis." Steven Harper, welcome to "The Diane Rehm Show."
MR. STEVEN HARPERThank you, thanks for having me here.
PAGEWe're going to invite our listeners, lawyers and otherwise, to join our conversation. You can call our toll-free line, 1-800-433-8850. Send us an email to email@example.com or find us on Facebook or Twitter. So "The Lawyer Bubble," what does that mean?
HARPERLet's talk about it in its simplest manifestation, which is too many lawyers and not enough jobs for them. The Bureau of Labor Statistics estimates that in the next ten years, there will be a need for about half as many law school graduates as law schools will generate.
HARPERLast year, we graduated 46,000, a record number of lawyers and there will be jobs, according to the most optimistic estimates over the next ten years, for about half of them that require a JD.
PAGESo what happens to the other half?
HARPERWell, some are unemployed. Some of them wind up in part-time jobs. Some of them wind up in short-term jobs. Some of them -- and you can be -- this is a very cynical thing to say, but it's absolutely true. Some of them have been hired for a short period of time by their law schools so that the law schools can boost their U.S. News employment ranking and count them as employed on February 15, which is the critical date for rankings' purposes.
HARPERSome of them go on to other things. Some of them leave the profession. There have been estimates that perhaps as many as 300,000 to 400,000 lawyers, currently out of 1.1 million, have simply left.
HARPERNow some go on to do other things. Some, you know, one thing that deans love to say is, gee, a law school is such great training. A law degree is such great training to go on and do other things. The problem is a lot of these kids -- and I call them kids because most of them are younger than my own kids, in their mid-20s are coming out of law school without a job that will even come close, remotely close, to repaying the six-figure debt that they're coming out with. They're graduating with a home mortgage, but without a house.
PAGEDo you think that some of these kids have gone to law school for the thing the law school deans are telling them, it's great training for critical thinking and other jobs? Are they going to law school with the idea that they want to work as a lawyer when they graduate?
HARPERThe answer is yes, both. It's a complex interaction that has created, in some ways, a kind of perfect storm. So you start with a typical prospective lawyer undergraduate and they have idealized images of what they think being a lawyer is going to be.
HARPERThey read "To Kill a Mockingbird." They've watched "Law and Order." I watched "Perry Mason" just to, you know, give you a historical sense of it. So one thing that happens is those images are very attractive. Who wouldn't want to grow up to be Alicia Florrik and spend the last ten minutes of every episode cross-examining a key witness at a trial and winning the case?
HARPERAnd then we find out this season, actually becoming an equity partner in a law firm after only four years, I mean, what a great life. The problem is that's not really what a lawyer's life is. So you start with the idealized image that many, many students, prospective law students have about what it means to be a lawyer and then you throw into the mix something that psychologists call confirmation bias, which is a tendency that we all have to embrace data that reinforces what we already want to believe and jettison anything that contradicts whatever it is that we want to believe.
HARPERAnd then the third thing you have, and this has been true for a long time for lots of students who are trying to figure out what to do with their lives in their early 20s, law school has become kind of a default solution. This was true even 30 years ago and it's always been true, but the costs are much higher and that analysis goes something like this.
HARPERI don't, you know, I need to be a professional. I would like to have some kind of something that gives me status and prestige. Medical school, that isn't going to work for me. I don't like the sciences or can't stand the sight of blood. Business school, oh, that's for people who just want to make money and I'm better than that, I think.
HARPERGraduate school and a degree are for somebody that wants to come back and teach college. My gosh, I'm just finishing that. I certainly don't want to enter that mess. So for many people, law school becomes, well, let's try this. Everybody says there are lots of things to do.
HARPERNow, added to that, that's sort of the one half of the equation. The dean half of the equation goes something like this. And this is a relatively recent phenomenon. The U.S. News rankings are really the critical short-term metric that the vast majority of deans have used since they first came out in 1987 to determine their own value.
HARPERIt is part of a cultural obsession we have with short-term metrics that compromise long-term values. But the problem is they wind up teaching to the methodology of the U.S. News metrics and what does that mean? Get your enrollments up, get your applications up, get your tuition up because one of the criteria is expenditures per student and if you're going to have expenditures per student that are high, you need to have lots of revenues coming in.
HARPERAnd universities discovered that they can make money on these things. You know, it used to be a lot cheaper to go to law school in terms of tuition than medical school. Not anymore. But there's no economic reason for that.
PAGEWell, do you think that the U.S. News ratings, in fact, reflect the best schools? Is it a smart way for somebody who wants to go to law school to look at the choices and decide on which is the most prestigious, the one that's best, the one that will give them the best credentials for getting a job afterwards?
HARPERIt's a terrible way to make that decision. And the problem, the reason it's so widely accepted, I think, is that most people don't understand how terrible the methodology is. I'll just give you one example.
HARPERForty percent of the U.S. News methodology comes from something called quality assessment. Well, you would think, wow, quality assessment. This must be really important. Well, quality assessment, it turns out, has two components.
HARPEROne component has to do with a survey that U.S. News sends out every year to four individuals at every ABA-accredited law school. And the four individuals are the dean, the dean of academic affairs, the most-recently tenured faculty member and the chairman of faculty appointments.
HARPERAnd each of those four people at every accredited law school, 200 is asked to rank from one to five every other law school in the country. You can respond, don't know, but we don't know how many people respond with, don't know. That's a quarter of a school's ranking.
HARPERThere's another piece, though, that's even more ridiculous and that, again, quality assessment, the other piece of quality assessment is the same survey that goes out to an undisclosed sample of judges and practicing lawyers and they are asked to do the same thing, rank all 200 law schools, 1 to 200 on a scale of one to five.
HARPERWell, the response rate most recently to that survey was about 9 percent. Last year, it was about 12 percent. So there you have almost half of the U.S. News ranking component going to so-called quality assessment. Which is it?
PAGEWell, if this is such a terrible way to assess law schools, is there pushback from law schools saying to not participate in the U.S. News ranking?
HARPERVirtually none. Initially there was an outcry and deans united in opposition with a couple of notable exceptions but in general, deans were very, very concerned about it and they wrote a letter in 1996 that essentially said to all law students, you rely on these sorts of things at your peril because trying to reduce the experience of choosing a law school to a single number is fraught with danger and you should take into account all sorts of other things.
HARPERAnd they were right. The problem is history took them in the other direction and so now I think many of them profess concern about the rankings, but at the end of the day, the vast, vast majority are pandering to them.
PAGEIf you are interested in law school and you're looking at schools and you agree with what you just said, that the U.S. News rankings aren't valid or are terribly flawed, what should you look at?
HARPERThat's a good question. And you know, whenever somebody says to me, well, and I have undergraduates do this all the time. Fortunately, these are the undergraduates before they take my class, not the ones afterwards. But they'll say to me something like -- because one of the things we do in my class is dissect the U.S. News methodology and they're invariably incredulous that anyone pays any attention to them by the time we're done examining them.
HARPERAnd they say to me before the class, some students have actually said, you know I have a friend who says if he gets into a school ranked number 22 and a school ranked number 26, he's going to go to school number 22 regardless of anything else.
HARPERSo I always ponder the question in the following way. How in the world did people ever decide how to go to law school before 1987? Because somehow we found ourselves -- and I think the answer is this. It's not that there aren't differences among law schools. Of course there are. But I think that they're the kind of differences that may lend themselves to broad categories as opposed to so-called precise rankings.
HARPERSo for example, if you ask me and just about anybody else who is a practicing lawyer or an academic, tell me which are the top law schools in the country? Virtually all of them or a very large number of them would say in some order, but the order doesn't really matter, Harvard, Yale and Stanford.
HARPERAnd then they would have another group that would sort of take you down. You can do kind of groupings, I think that make sense, but this notion that there's some precision that you can do that allows you to ferret out the differences between law school number 17 and law school number 26 is really silly and very misleading.
PAGEYou and I are both graduates of Northwestern. You teach a course there about the difference between the reality and the expectations for many lawyers. Do you convince a lot of members of your class who might have been thinking about going to law school not to do it?
HARPERAh, this may surprise you. The answer is no and the reason for that is twofold, I think. Number one, I make it clear to them -- because people may not even believe this, but it's true. I love being a lawyer.
HARPERI think it's a noble profession. I think it's a great thing to do if you're the right person for it. So invariably, the way the process works, in terms of the students who come out of my class, they wind up approaching it differently. And the reason they approach it differently is one of the things we spend some time on is assessing, what it is that goes into being a lawyer? And students, I think, spend some time in self-assessment, figuring out whether their personality fits that sort of thing.
HARPERBut the other thing they learn is that there is, in fact, great value in being a lawyer, but they also understand don't do it because you can't figure out something else to do. And most kids who wind up in my class have self-selected in -- because they already have some idea that they want to do it, but they want to be more informed about it.
PAGESteven Harper, he's author of "The Lawyer Bubble: A Profession in Crisis." He's a former partner at the law firm Kirkland & Ellis. He's currently an adjunct professor at Northwestern University. We're going to take a short break. When we come back, we'll go to the phones. 1-800-433-8850 is our toll-free number. Stay with us.
PAGEWelcome back. I'm Susan Page of USA Today, sitting in for Diane Rehm. We're talking with Steven Harper about his new book, "The Lawyer Bubble: A Profession in Crisis." Here's our question we've gotten from Facebook. Someone's posted: What's the issue in a supply and demand system? Wages will decrease, the field will be less attractive and less people will go to law school.
PAGEIs that right? Is that what we're seeing take place now with the number of too many law school graduates, not enough jobs? Or people just choosing not to go to law school?
HARPERNo, because the market is distorted. What better example can you have than the fact that in 2012 we graduated the most lawyers ever in the history of the United States. But the reason it's distorted is because two things are true. One, the information is incomplete. That is, for years, just to give you another example, deans, and the industry in general, could tout 93, 94, 95 percent employment rates.
HARPERWell, that sounds awfully attractive if you're in the middle of a great recession. What they now have to disclose starting with the class of 2011 but never had to disclose before is that employment includes part-time, short-term, greeter at Wal-Mart, waiting tables. The other reason the market is distorted is because in back of all of this is money that students can borrow virtually unlimited for education.
HARPERThey can't get rid of it in bankruptcy. It's not dischargeable in bankruptcy. There is no accountability that deans in law schools have had for graduates who are unemployed and can't pay back the money that they had to borrow in order to get through their law schools. So there's a fundamental disconnect between economic incentives and the behavior that's resulting. So, you know, there's been a lot of press lately about, oh, what about all the big decline in applications?
HARPERYou know, don't hold your breath on that. Applications still vastly outpace the number of law school places. We continue to build more law schools, despite the fact that there's no demand for lawyers. And I think we're not on a path, certainly not on a path to any prompt equilibrium. And I'm not an anarchist. I have a master's degree in economics. So I understand the concepts, but I just think that the market has become so distorted that it's -- got to change it.
PAGEThe New York Times had a story in January that said there were 100,000 applicants to law schools in 2004. This year there will likely be 54,000, which is admittedly a big drop. The LA Times had a story on Monday that talked about lawsuits that law school graduates are now filing against law schools on fraud charges. Basically saying they were -- they went to school, they borrowed all this money to pay their tuition and now they're out of school and there's no prospect, no realistic prospect for them getting the kind of job they expected.
HARPERRight. Those lawsuits started to be filed about 18 months ago. And by and large, they have not been particularly successful. The lower courts have generally dismissed them, although they're on appeal. They have survived motions to dismiss out in California. The courts that have dismissed the cases have generally said, hey, you know what, you undergraduates or unhappy lawyers, you're a sophisticated subset of consumers in the market.
HARPERIn fact, even of legal consumers, you're a sophisticated subset. And all I could say, I guess, to a judge who came to that conclusion is, spend some time in my class before you conclude how sophisticated what's happening in terms of the decision making really is. Because what else are you going to do?
PAGEWe've gotten emails from several people who found themselves in just the situation you're describing. Here's one of them from Sarah: I have been underemployed since I graduated from law school in 2008, just after the crash. I worked first for AmeriCorps in a non-law job as a part-time associate for $15 an hour. And now in a foreclosure mill for under $20 an hour. I have recently decided to look for non-law jobs.
PAGEAnd my law degree actually seems to be hurting my chances. Hiring managers seem to think attorneys now will have too high a salary requirement or over-qualified. We were told in law school that there were a million different things we could do with our degree. But unfortunately, I haven't found that to be the case. One of my fellow graduates still delivers pizza to my parents.
PAGEYou know, and I wonder about these law school graduates who came out in 2008, in 2009, in 2010, the worst of the Great Recession and that now they find themselves older than new graduates coming out and maybe in competition for those same entry-level jobs.
HARPERIt's a terrible situation. And it's getting worse if you believe the numbers. And there are so many students and young lawyers that are in the plight of the person who's message you just read that it's distressing. And, you know, there's a part of all this that's even a little more insidious. And that is I think there's an intergenerational antagonism to this. Because the people that run law schools and the people that are all anxious and eager to give student loans to students so they can pay their tuition bills and then never be able to pay it back, I mean, those are all my generation.
HARPERWe're the baby boomers. And the ones who are really who we're wreaking havoc on, I really fear, is the generations coming up, our kids. And, you know, for anyone who's concerned about long-term considerations, think about what it would be like to be in your 40s and begin thinking about how you're going to fund your own student -- child's education and still be in a position where you weren't even going to be able to get rid of your own student loans.
PAGESo what kind of debt does the average law school student graduate with?
HARPEREighty-five percent of graduates have more than $100,000 in law school debt. As I mentioned before, it's a home mortgage without the house.
PAGELet's go to the phones. Talk to Heddy, she's calling us from Miami. Hi, Heddy.
HEDDYHi. Can you guys hear me?
PAGEYes, we can. Please go ahead.
HEDDYWonderful. Okay. Mr. Harper, I agree with the point that you made in reference to law school. When I went to law school I thought that the law schools did not do a good job in terms of preparing me to practice law. However, I entered law school to seek -- I try to help people to seek justice. And in the practice that I'm in, I'm very, very happy with what I do. And, you know, the maturity of lawyers that I know who are the basically like me, solo practitioners or small law firms, they're also very happy with what they do.
PAGEAll right, thanks so much for your call, Heddy.
HARPERThat's a great point. And one of the things that's important to remember in all this is that the profession is not monolithic. There are -- and the data support the caller's own experience. The people who tend to be the happiest, that is the most satisfied in their careers as lawyers tend to be those who, paradoxically, are making the least amount of money. So if you go to the public sector, you go to public defenders, you go to even government prosecutors and so forth.
HARPERAnd then -- that's a relatively satisfied group. But then you work your way up into ultimately large law firms, which is the second part of my book. And you have people who are making enormous sums and relatively dissatisfied with their careers.
PAGEWell, interestingly, there was a survey done by the jobs website Career Bliss. It was reported in Forbes last week. And it ranked -- it had people ranked how happy they were in their jobs. And of 100 jobs, the number one most unhappy job was an associate attorney in a law firm. You'll be -- I was surprised by that. I was also surprised that the happiest, by the way, was to be a real estate agent.
PAGEBut why the associates in law firms, I think many of them make good salaries. They're working as lawyers. Why are they so unhappy?
HARPERI think it's a continuation of the same theme. So that the first problem is the expectations versus reality. In the first phase, the expectation is you'll get a job. And the reality is half of them don't. In the second phase, though, for those who get a job, what are the expectations. And by and large, and this is again a function of how the model -- the prevailing business model in most large law firms has evolved over the last 25 years.
HARPERAnd I have to qualify this by saying that there are exceptions. You'll find lots of people who are in big law firms who are very satisfied with their careers. They love what they do. And I was one of those people as well. But it's a different time from the time that I was an associate, you know, 20 years ago. The firm I joined, which is now still a very large firm, 1,500, 1,600 lawyers. At the time I joined, I think I was about the 150th lawyer.
HARPERAnd what came out at about the same time that I joined was a ranking system called the American Lawyer, Am Law 50. And those were the 50 biggest and most profitable law firms in the country. Well, this was a sort of information that was generally a very well-kept secret. You didn't talk about how much you made in polite company. And all of a sudden we now have this U.S. News-type ranking system that actually predated the U.S. News system for law schools that essentially ranked lawyers.
HARPERNow we're up to the Am Law 200, 1 to 200, profits per partner, revenues, biggest, most profitable and all that sort of thing. And the difficulty is that what that did, again, it fed into the same what I think is becoming a cultural obsession, which is trying to find some short-term metric that you could maximize for short-term profit but often at the expense of longer-term values. And in the case of associates, the longer-term values are mentoring.
HARPERIt's the kinds of opportunities that you think you went to law school to try to do. You didn't go to law school because you thought you're getting to sit in front of a computer screen for hour after hour after hour reviewing documents. You thought you'd get into court once in a while, maybe meet a client, maybe do a deal, be involved in a transaction in a significant way. But the way the law firm has evolved, the emphasis now is on metrics that create a much different experience for most associates.
HARPERThere are mandatory minimum billable hour requirements, because that's the way you maximize profits and revenues, for example.
PAGEHere's an email from James who asked us: Why should non-lawyers care about this? Should they?
HARPERThey should care because -- for two reasons, I think. One, the law is a really important profession. You know, there was a Bryan -- I forgotten his name. Equal Justice Initiative. Bryan Stevenson was on Bill Moyers last week talking about the irony that in a world where we have too many lawyers and not enough jobs for them, we also have the 50th anniversary of Gideon v Wainwright, which theoretically guaranteed everybody the right -- every criminal defendant the right to a lawyer.
HARPERUnfortunately, it didn't require anybody to make sure that there was actually money to pay those people. So, it's an empty constitutional right. But you should care about it because it's part of a larger cultural problem. It's part of a -- you could -- we could be having the same conversation about higher education and rankings. We could be having the same conversation about hospitals and rankings.
HARPERWe could have the same conversation about journalism and many forms of short-term thinking. It's a -- the problem is that the lawyer bubble is a slice of what's wrong with the country, in a way. It's what happens when you have a myopic focus on the short term at the expense of longer-term values that are difficult to measure.
PAGEI'm Susan Page, and you're listening to "The Diane Rehm Show." We're taking your calls, 1-800-433-8850 and reading your emails, firstname.lastname@example.org. Let's go to Margaret. She's calling us from Chapel Hill, NC. Margaret, hi.
MARGARETHi. Thanks so much for taking my call. And thanking you for addressing this topic. I'm about to graduate from law school. I'm lucky because I also have a master's degree to fall back on. But I am one of those students who really went to law school for all of the wrong reasons, for not knowing what to do and to please my family. And I went to multiple members of the faculty and staff and explained my situation, hoping that someone would give me approval to drop out.
MARGARETBut I kept getting the same line about you can do anything with a law degree. It will be valuable in the long term. And it made me realize that law schools really need some sort of guidance counselor role to be there for students who are like me, who are there for the wrong reasons and know it and can sit down with them and help them do the math and figure out this isn't a good investment for them.
PAGESo, Margaret, what do you plan to do when you graduate?
MARGARETWell, I have one more semester to finish my thesis before I have to start looking for a job. But I'll probably stay in communications because it's a much more -- it's got better prospects than the legal market right now. And it's where my background is.
PAGEAll right, Margaret, thanks for your call.
HARPERI'm sorry for your plight. But there's -- you're not alone. Not that there's any consolation in that. But it's a difficult problem. I do think that in response to what is now being labeled a crisis, that is this oversupply of lawyers that some law school deans are becoming a bit more responsive, not all of them. And they're becoming a bit more responsible, not all of them and not enough of them.
HARPERAnd frankly, when you see deans that take to the editorial pages touting about such propositions as, gee, this is a perfect time to go to law school because, look, applications are down. You'll get into a better one. And, you know, in the most recent numbers that came out for the class of 2012, the percentage of students, the 46,000 who graduated with law degrees, the percentage who wound up nine months later with full-time, long-term jobs, meaning more than a year, that required a legal degree was 56 percent.
HARPERSo I have no advice to offer you other than to just sort of hang in there and press ahead.
PAGEAll right, Margaret, thanks for your call. Let's go to Derek, calling us from Ellicott City, MD. Derek, you're on the air.
DEREKHello, good morning. Thanks for taking my call, Susan. I just wanted to disagree a little bit with the discussion so far. I do think that there -- what we'd need to happen is probably we need to redefine when we talk about working as a lawyer or a, quote-unquote, "practicing lawyer." I've had my law degree for both 13, 14 years now. And I went to school later, I started. But I consider myself a practicing lawyer, even though I don't work for a law firm.
DEREKI do a lot of contract with folks, developing contracts, advising folks on different aspects of the law. And I think that's one of the things in this society is that there is -- I can't think of an area where law is not involved and integral to getting that thing working. The young lady who just called and mentioned about going into communication. Well, even just on this radio station, there's a million of regulations through the FCC that requires a legal eye.
DEREKAnd maybe what will end up happening -- and I have a son who is a second year law student who is going through the same issues as are being discussed today. And one of the things is looking at that job where you can use an expertise that is probably not otherwise there, just as, you know, your guest mentioned he has a master's in economics. I have my first degree in economics. It still helps in what I'm doing in a way of analyzing issues and getting through problems.
DEREKAnd so I think there will be jobs out there, but just in that traditional sense of a law firm or, quote-unquote, "practicing lawyer" in a courtroom. Those are going to have to change. But I think -- I have a good friend who is, you mentioned real estate as one of the most satisfying jobs and he's a broker. And he has a JD from a good law school. And what he says is he probably -- is that JD in an expertise of being able to help his clients maneuver their leases.
PAGEDerek, thank you so much for your call.
HARPERTwo points, I would say. One, it's certainly true that lots of people wind up with law degrees and then land in positions that are not strictly law degree-required positions and have very successful careers. And more power to them. There's nothing wrong with that. But the second point is, at what price? And how many other people are out there with, as I say, home mortgages but no house?
HARPERYou know, back when Derek went to law school, according to his description, it cost about half as much, less than half as much as it costs now. Law school tuition has doubled in the last 10 years.
PAGEWell, here's an email from Dennis who says: Why does it cost so much? Why does it cost so much?
HARPERWell, because -- there are two reasons. Again, you have demand that exceeds supply, so you can continue to raise the praise. Because applications continue to outpace the number of available spots. And the second thing that happens is there's tremendous pressure that the U.S. News rankings exert to encourage behavior that maximizes costs. So just to give you an example on this quality assessment thing, well, that creates a desire to go out and hire at very prices, very expensive faculty people. So you can bump those prestige things up.
PAGEWe're talking to Steven Harper about his new book, "The Lawyer Bubble." We're going to take a short break. Stay with us.
PAGEWe've gotten several listeners talking about -- asking about the role of the American Bar Association in all this. Alex from Charlotte sends us an email. "The market for legal professionals is particularly unique. The ABA accredits law schools and simply opened too many at the wrong time." And here's one from Sue writing us from Washington, D.C. who says, "With the exorbitant amount of loans that law students must take out in order to meet constantly rising tuitions along with the glut of attorneys at the ABA's law school accreditation process has fed into the market does you guest see any reforms or audits or investigations into the practices of the ABA?" Now does the ABA have some responsibilities do here you think?
HARPERI think they do, but I think the fundamental responsibility is the pass that they were giving law schools for years, literally decades, in what they were able to disclose in terms of employment information. I think that's the real -- been the real crime here. When you can throughout the great recession of 2007, 2008, 2009, even 2010 report employment, so called employment rates for lawyers in excess of 90 percent when the truth is half of them have jobs that require a legal degree something is dramatically wrong.
HARPERNow in the last two years -- last two years they have taken steps to create greater transparency. I think it's been a begrudging -- they've done it begrudgingly, but there is greater transparency, which is how I know and am now able to tell you, for example, that for the class of 2012 56 percent had long term full time jobs requiring a JD. But they certainly have a responsibility in this and I think have been, I don't know, maybe aiding and abetting is too strong of a legal concept, but there's more that could and should have been done.
HARPERAnd they are continuing to accredit law schools. And they would tell you they have to because otherwise they're fearful of antitrust claims that law schools that aren't accredited might make against them and so forth. But there's a lot more they could do, including taking public positions that would lessen the cost of law school. They could take public positions that allowed students to discharge their educational debt in bankruptcy. They could do all sorts of things that would be very helpful to the profession.
PAGELet's talk to Jack. He's calling us from Florida. Jack, where are you in Florida?
JACKI'm in Palm Beach.
PAGEIn Palm Beach well, thanks for giving us a call.
JACKWell, thank you. As much as I respect your -- your guest and his brainpower and his good research I really disagree almost 100 percent with what he says. I just feel that I would recommend law school to anyone because it really does expand your thinking about what's possible. And, you know, what you can do. And you can do a million things. I think that the only reason these people don't have jobs is that there's a lack of imagination and they could create jobs.
JACKI mean if you just go to your local courthouse you can look at all the suits that are filed where people go unrepresented and it's just the idea that these lawyers think that they have to make $100,000 a year. But they could -- they could represent people at much less money and the world would still be a better place. And any job in management is always better represented if it has somebody with a JD degree.
PAGEAll right, Jack, thanks so much for your call.
HARPERSure. In my defense the six out of ten lawyers according to the most recent survey by the ABA have -- who have been practicing ten years or more, if asked by a young person, would affirmatively counsel them to stay away from law school, six out of ten. Now I don't -- I don't disagree at all with what the caller suggests about what is great about being a lawyer, what's noble about the profession, what is even essential about the profession. But the reality is, you know, representing people who can't afford -- who can't afford you and can't afford to pay anybody isn't really an option for a student who can't afford to pay his monthly loan repayment or his rent.
HARPERSo it's a real problem. And they're not asking for a $100,000 either. You know, the median salary for starting associates now is down to $60,000. Two years ago it was $72,000 so it's moving in the wrong direction in terms of anybody thinking they're going to make a lot of money at it. But it's still leaving them with enormous debt because law school tuition has continued to climb in the other direction.
PAGELet's go to Pittsburgh, Pennsylvania and talk to Caitlin. Caitlin, thanks for joining us on "The Diane Rehm Show."
PAGEYes, please go ahead.
CAITLINHi, since I wanted to call and thank Mr. Harper -- I actually am one of those mid-20's folks who decided not to pursue law school because of the economic situation for graduates. But I was calling and was interested if you had anything to say regarding the rapid development of the electronic discovery field within law. I, myself, actually work in a department of a large multi-national firm and it seems to be a trend for larger firms, in particular, to create in-house departments that work with document review and on the more technical side of the field. And I was wondering if he thought maybe, you know, electronic discovery was the redeeming field to help save the job market. And I thank you.
PAGEAll right, thanks so much for your call, Caitlin.
HARPERSure. There's no question technology is having enormous impact on the evolution of the practice of law, especially in larger firms, larger cases and so forth. The difficulty I suspect from the standpoint of lawyers is that it's not -- doesn't -- it doesn't seem like it's going to be something that's going to create more jobs for young lawyers. In fact, the probability is that it will create fewer of them because you wind up with electronic systems that take over the job, admittedly mundane, that young lawyer might have been doing at very high hour rates and at very decent salaries. And all of a sudden you're developing a technological way to do that more efficiently and more cheaply.
PAGEI wonder the degree to which the technological innovations we've seen with the internet have really contributed to a decline in these entry level legal jobs. I mean you talked about the ability to do research more easily. Research can be outsourced to other countries or to cheaper locales. We have these online legal resources. People can go online and draw up a will, for instance, if it's not too complicated. How big a factor has that been?
HARPERI think it's been an important factor. And, you know, related to that, too, there's another force that's been driving some of this as well. And that is some clients increasingly are saying, you know, I don't think I'm getting much for my $400 or $300 an hour that I'm paying for a first-year associate who just got out of law school and can't really do anything and doesn't even know how to file a document in court.
HARPERSo they're just -- many clients are just saying I'm not going to pay for that. So, you know, I'll pay for your more experienced people, which, of course, presses law firms in the direction of looking to the -- to other markets to find people who have a year or two of experience. But I think all of those things are, sort of, working in a tough direction for young lawyers.
PAGEHere's an email from Tiffany. She writes, "I've spent almost ten years as a CPA and I'm considering going to law school part time as I would eventually like to teach at the university level, but I don't want a PhD. I'd also like to expand my tax knowledge. Is there a better success rate for older students who attend law school after having already developed an area of specialization?
HARPERI don't know about success rate and I don't know how you would define a success rate, to be honest. There are some law schools that place a heavy premium -- Northwestern among them -- on having experience between college and law school, some kind of work experience and take that into account in the admissions decision.
HARPERThat's not a bad approach for a lot of people to take. You know, the one thing -- that would have driven me crazy. I wanted to go right from college to law school. I was pretty clear about what I wanted to do, but I think a lot of people do benefit from some time off. But I have no idea what the data would show in terms of a success rate for people who came back and did it later. And, again, it would boil down to the question of how you define success.
PAGEAnd Terry has sent us an email. Terry says that she's been a lawyer for 42 years and she says, "For my money the best measure of a law school is the bar exam passage rate. Those rates per law school are published by the law licensing agency of each state." We talked about how somebody interested in law school might go about deciding what is a good law school or where they'd want to go. Do you think this is a good measure?
HARPERTo be perfectly honest that's not one I would use. And the reason is because the bar exam, at least for me, and other people may have a different view, but for the bar exam for me was simply an ordeal that I had to live through. It involved cramming over a short period of time on state specific rules that were unrelated to the national, sort of, curriculum that I'd had in law school. And most national law schools, Harvard among them, don’t train people to take the bar exam.
HARPERIf you're looking at other schools that are principally, I would say, regional and where most graduates are going to wind up staying in the state and plan to stay in the state then you could say, sure, it makes sense. Why would you go someplace and spend three years there and then -- and not be able to practice. But the vast majority of people who practice have graduated from law schools -- wherever they've graduated wind up taking bar review courses. There's no substitute for them really. They cram this stuff into you. You take the bar exam and then you forget about it because the bar exam, frankly consists of a lot of stuff that you'll never use again.
PAGENow the dean of Northwestern has proposed making the third year of law school optional. What would be the reasoning behind that?
HARPERWell, I think his reasoning -- there's another professor, Brian Tamanaha, who has a similar suggestion. And I think the idea was it would make it -- there would be an expense saving, I suppose, by not having the third year. The difficulty with it is until you have revised the accreditation requirements of various states, people who go through only two years of law school won't have JD's. You'll have two years of law school. Northwestern also has an accelerated program where they cram three years of law school into two years, which I think is a bad idea for different reasons, but we don't need to go into them now.
HARPERSo I'm sort of skeptical about all of those sorts of proposals. In the absence of something that would say at the end of two years you get a JD. I'd be all for lopping off the third year of law school. The problem is that accreditation requirements won't permit it.
PAGEWhat about the idea that law schools should just say, hey, you know we're producing too many lawyers. We're going to have smaller classes and get more in line with the actual demand for lawyers?
HARPERA handful of schools have done that including Northwestern's new dean, actually, Dan Rodriguez, has just recently announced that they were going to reduce their entering class size. And, you know, probably half a dozen or so deans have done that. It's the responsible thing to do, frankly, should have done it a long time ago. The difficulty is that for every law school that does that there's going to be another law school further down the chain that's going to be more than happy to say, well, I'll just add more seats to my class and I'm not going to name them. They know who they are. The book names them. They'll take up the slack. So that's the difficulty with it.
PAGEWell, if you name them in the book it seems like you ought to be willing to tell our listeners.
HARPERWell, I should be, but this will encourage them to buy the book.
PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." We've got -- I think we've got a third year law school student waiting to talk to us. Max, hi, are you there?
MAXYes, I'm here. How are you?
PAGEMax is calling -- I'm good. Max is calling us from Lexington, Va. Go ahead, Max.
MAXActually I just wanted to make a quick correction. I'm actually a second-year law student at Washington and Lee University School of Law. And I wanted to thank Mr. Harper for coming and talking about this. This is obviously a very important issue for a lot of people, myself included. I have a lot to say on the topic, but I'm going to only say two things.
MAXIs that number one my school has taken an innovative approach to solve -- kind of solving the problem with the third year in law school. We have -- the students at my school have the ability of taking an experience-based third year program where they don't sit in formal classes. They gain practical experience through externships and practicums that are taught by actual practitioners.
MAXAnd the second point I wanted to say is that the economy and the way it has affected the legal profession has caused an incredible rise in the number of applications for the military judge advocate general positions. I'm going to be an intern this summer with the army judge advocate general corps. And I believe they had upwards around 3,000 applications or something in that amount for those positions because the army JAG Corps, among others, offers the ability for students or student graduates, actually, to gain legal experience almost immediately upon graduation.
PAGEAnd, Max, let me ask you why did you decide you wanted to go to law school and become a lawyer?
MAXWell, I actually came straight through to law school from undergrad. I was a legal studies major at my undergrad. It's something that I think is pretty much the only useful thing I can contribute to society and its' something that I really do enjoy. And I can't really say other than that, you know, just sometimes you feel it. And I think just like Mr. Harper did I'm just one that was excited about going to law school.
PAGEWell, Max, thanks very much for calling and congratulations on having that internship with the JAG Corps. Let's talk to Beth. She's calling us from Houston, Texas. Hi, Beth, you're on the air.
BETHHi, yeah, I was just going to say I totally agree with your expert that has the book out about it being -- the law schools not telling you the truth. 1993 is when my husband went and he -- that was in when the U.S. New and World Report was all the cool thing and so, you know, he looked at that. And we tried to go to the highest (word?) he could get into and -- which was pretty high. And after about a few months -- the main reason we did it is because we were living in a mobile home and he had two kids and he wanted to make more money. That was the main reason he went.
BETHAnd a few months afterwards he was trying to figure out, OK, what's the -- he'd already tried to figure out and they told him, oh, yeah, the graduation -- the hiring rate is really high. But then he realized they were part time jobs and he realized he'd been, you know, totally lied to. But so he just kept on getting high grades and then in 2006 I tried to go back to law school after five kids.
BETHAnd my husband said are you crazy we'll have to pay for it and he said that it skyrocketed and so I didn't go. And so the next three years he kept on showing me emails from Harvard grads or young grads wanting a job, but they weren't even going to interview them because they didn't have any positions. And I just want to say that this is totally true and right on and it's been like this for a long time and...
PAGEAnd is your husband working as a lawyer now?
BETHOh, yeah. He had to sell his soul. He's a corporate lawyer and he works a lot of hours and, but, yeah, he's played the game and, yeah, he's a corporate lawyer now.
PAGEAll right. Beth, thank you so much for your call. So Steve Harper tell us one -- how close is the lawyer bubble to popping and what do you think in the end will deflate it?
HARPERI don't know what will deflate it, but if I had to pick three things I would say number one money. If somebody could finally get around to allowing students to discharge educational loan in bankruptcy and then also figure out a way to connect the law schools to financial responsibility for students that wind up having to declare bankruptcy. I think it would change that process dramatically. It would change incentives dramatically.
HARPERTwo, transparency, the more people listen to your program -- programs like these and read what the newspapers are saying about what's happening is going to help. And then the other thing, too, though is the hardest part to get at. And that is the reality therapy. If people are willing to -- young people are willing to access and confront their own confirmation bias about what being a lawyer means before the start their way into that pipeline it'll make for a better decision, a more informed decision.
HARPERI don't think it's going to happen otherwise. I think it's going to have to be because the next generation decides their going to take a harder look at this. And meanwhile I think the lawyer bubble itself may continue to, sort of, hiss a little bit, but I don't know that -- you're not going to get a great big pop. It's just more of a slow leak.
PAGESteven Harper, his new book is called, "The Lawyer Bubble: A Profession in Crisis." Thank so much for being with us this hour.
HARPERThank you very much. I enjoyed it and thanks to your listeners.
PAGEI'm Susan Page of USA Today sitting in for Diane Rehm. Thanks for listening.
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