The Washington PostDemocracy Dies in Darkness

Law schools are in a death spiral. Maybe now they’ll finally change.

JD programs are facing dwindling applicants and a lousy job market for their grads.

Joel van Houdt for The Washington Post)

“March madness” holds a different meaning in the legal world. While most of the country looks forward to fast breaks and Cinderella upsets, law schools are bracing themselves for another type of madness: the annual carnage left by the U.S. News & World Report rankings.

This year’s rankings drop on March 10, to be followed by the usual chaos. Deans at highly placed law schools will issue news releases; deans with less fortunate rankings will have their already hectic lives turned upside down. The lucky ones will get fired. The unlucky ones will have to deal with the fallout. A flood of e-mails. Emergency faculty meetings. Ad Hoc Committees on Law School Progress in U.S. News Rankings. (That is an actual committee.) Adding to the insanity is that all law schools will be the same the day after the ranking as they were the day before. Law schools are in trouble, but not in a way that the U.S. News rankings can signal.

No law school has figured out how to handle the new normal of legal education: the lowest number of applicants in four decades; fewer legal jobs for graduates, and, according to Moody’s, “no relief in sight.”

While some argue that going to law school is still a safe bet, little evidence exists to support this position. The most elite law schools — the top 1 percent —  will thrive. The other 99 percent: not so much.

Law schools are currently in a bidding war for the students with the highest LSATs and GPAs because U.S. News heavily emphasizes those factors in its rankings. Students with higher LSATs tend to have a higher socioeconomic status; poorer law students lose out on scholarships and end up paying full tuition, financed through student loans, subsidizing their richer classmates. And law schools are still struggling to break even. Most JD programs are hoping their central administrators will remember a not-too-distant past when law schools subsidized the greater university.

At the same time, the legal profession has had a seismic shift in the way it does business. Employers have downsized and outsourced work, and used technology to cut salary costs — computer programs can search through volumes of documents, eliminating the need to pay a lawyer to do it. Partner profits at elite law firms are at record highs; firms are getting by with less, and they’ve figured out how to make a lot more money doing so. Newly minted graduates face dwindling job prospects.

While law firms can fire lawyers, law schools cannot cut their largest expense: faculty. Most faculty have tenure, which equals lifetime job protection — as long as the school remains open. While faculty could be part of the solution to legal education’s woes, we are actually the problem.

Legal scholarship is in a terrible state, with counter-intuitive incentives for faculty. Status comes with publishing, but more publishing means less teaching and interacting with fewer students. In the legal academy, second- and third-year law students select which law professors’ articles to publish; while my second and third years are brilliant, they cannot select for quality the same way experts would. But even if you think the student-run system is fine, the value of legal scholarship, which is rarely read, has its skeptics, among them Chief Justice John Roberts. Scholars at the University of Florida argue in a recent study that very few articles are cited for their ideas. This broken system is also subsidized disproportionately by the tuition dollars of poorer law students.

Questioning the value of legal scholarship is heresy inside the legal academy – which is why I am grateful that I have tenure. Law schools are run by the faculty for the faculty. A former colleague once put it like this: “If we could run this law school without students, this place would be perfect.” He happened to be the dean. Such a system is unlikely to be changed from within.

But while faculty cannot be terminated, their summer research stipends can be. Other disciplines require faculty to obtain external funding to support their work. Law schools should take a similar approach. For all who argue that legal scholarship has merit, let the market decide. This won’t solve all of a law school’s financial woes, but it could be a place to start right now. My 20 years as a legal academic causes me to predict that no serious change will occur until a cataclysmic event occurs. My prediction: In three years, a top law school will close. Then watch how quickly things change.