FIXING LAW SCHOOLS has been excerpted in the Chronicle of Higher Education. They even included a few of my graphs!

FIXING LAW SCHOOLS – Inside Higher Ed has a nice interview with me where I discuss my new book Fixing Law Schools.

MAKING LAW SCHOOL CHEAPER IS SUGGESTION NUMBER ONE – Fixing Law Schools spends a lot of time detailing the unconscionable run up in law school tuition and student debt over the last few decades and some ideas for how to reverse the trend. Paul Caron reports that Memphis Law School has cut its out-of-state tuition by 25% to $24,000, which is a nice step in the right direction by Glenn and my sister public law school across the state.

KITTEN’S GOT CLAWS: TaxProf Paul Caron reports that the ABA has found Louisville Law School out of compliance with its accreditation standards. The ABA has been a lot busier enforcing its standards in the last few years, but this latest move is especially notable. First, Louisville is not one of the usual suspects. Founded in 1846, Louisville is the oldest law school in Kentucky and one of the oldest in the country. It’s named after the great Justice Louis Brandeis and is a top-100 law school. Worse yet, Louisville has been dinged under ABA Standard 202, because “its current financial condition” may have “a negative and material effect” on the school’s ability to operate. YIKES! If the flood waters have reached Louisville, there’s likely an awful lot of law schools in financial trouble. On a related topic, Fixing Law Schools explains how this has happened and what law schools should do about it. Hint: the answer ISN’T higher tuition or more debt.

EXERCISE AND BEER CLOSELY LINKED – Researchers at Penn state have published a study that finds “an unequivocal correlation between exercising on any given day and subsequently drinking.”  The relationship “held true throughout all seasons of the year and whether someone was a man or a woman, a collegian or a retiree. Age and gender did not affect the results.”  Glenn and I regularly meet for a drink (usually whiskey or wine rather than beer, but still) after a Rippetoe style lifting session.  It helps with recovery and makes us more likely to do both activities again.  I’m guessing there me be some similar activities at Bullets & Bourbon this weekend.

THANKS SO MUCH TO GLENN, my co-guestbloggers, and to all of you for a great week.  I learned A LOT from the posts, your comments, and the experience.

Most notably I learned that this is even harder than it looks from the outside!  One possible explanation for the Blogfather’s excellence: Glenn is, in fact, a blogging cyborg.  He doesn’t eat.  He doesn’t sleep.  All he does is post awesome links with interesting commentary.  When he returns and finds that I have mocked his robot brethren I may be in some trouble. . . .

LEGALZOOM SUES NORTH CAROLINA BAR FOR ANTITRUST VIOLATIONS – In case you missed it, LegalZoom has sued the North Carolina Bar for antitrust violations.  Here’s the WSJ lawblog post and a copy of the complaint.  This is on top of LegalZoom’s ongoing North Carolina fight over whether online legal services are the unauthorized practice of law.  LegalZoom has had some success in South Carolina on this front and with more of a mixed result in Missouri.  The bottom line is that LegalZoom is still operating in all fifty states, which is how I count wins and losses in this sort of game.

An antitrust suit is a horse of a different color, however, since it challenges the very structure of American lawyer regulation.  S**t just got real.  In my book I talk a bunch about what a tight spot the ABA and state bars find themselves in.  They could try to shut down LegalZoom and Rocket Lawyer through new regulations or even prosecution for the unauthorized practice of law, but the public outcry would be LOUD and the downside risk – an antitrust suit or other attempts to strip lawyers of self-regulation – is very real.  Bar associations have been cursed to live in interesting times indeed.

AVOID DECISION FATIGUE – EAT THE SAME BREAKFAST EVERY DAY – I’ve had the same, relatively strange, breakfast (canned alaskan salmon on a rice cake, with a banana, and an apple on the side) every day for years.  One decision eliminated at the start of the day.

SLOWER PLEASE: Study Shows that 1 in 4 cancer research papers contain faked data.

CHINESE TOURISM AND LUXURY SPENDING SOARS – I’ve been a Fulbright Scholar in lovely Ljubljana, Slovenia this year and I’ve been visiting Europe since the 1980s and this trend is super noticeable on the ground here.  My last long trip to Europe was summer of 2011, and I don’t remember seeing swarms of Chinese tourists carrying Prada bags, and using selfie-sticks with iPhones that year or earlier.  I grew up in New York City in the 1970s and 1980s and there were lots of Chinese immigrants and virtually no Chinese tourists, because if you got out of China in those years you stayed out of China.

I actually take the tourism as a pretty good sign.  Better that the Chinese spend their money in freer and more democratic markets.  It is also good that they get a view of how the rest of the wealthy world lives, with cleaner air, louder political debates, free access to Google and Facebook, etc.  When growth runs at 10% or higher and lots of folks are making money, people are willing to put up with a lot of BS from their government.  Once people have some money and growth slows it’s a lot harder to keep that balance, especially if the middle and upper middle class is traveling elsewhere and taking notes (and pictures, lots and lots of pictures).

LIBERTARIAN TRIUMPH?  Since the beginning of Instapundit Glenn has called for married gay couples with closets of assault weapons and we’re basically there!  Now we just need to keep hustling for marijuana and prostitution and we’re getting somewhere.  In 2010 Glenn and I made the following wager: Will marijuana be legal in all fifty states before or after January 1, 2020?  Glenn took before (optimist!) and I took after.  A Chipotle burrito bowl (or steak tacos in Glenn’s case) awaits the winner, so the stakes are high.

HIGHER ED BUBBLE LAW SCHOOL EDITION – Taxprof reports that Cardozo Law School in New York has created a one year jobs program offering their unemployed graduates to small firms at the low, low, price of just $38,000 a year.  In an unrelated story, full tuition is $53,570, not including living expenses for New York City.

GLASS HALF FULL FINALE – So that’s the book in a nutshell.  I lay out a pretty comprehensive overview of the American market for legal services and law schools, and at the end it seems like times are grim indeed.  And yet, every time the American legal profession has appeared down for the count, it has come roaring back.  During the 19^th Century era of Jacksonian democracy every effort was made to break the hold of courts and lawyers.  The practice was virtually unregulated in a majority of states, state judicial elections became the norm, and legislatures passed new codes of civil procedure to further erode lawyer hegemony.   Times looked grim for the profession.

But lawyers responded by becoming irreplaceable partners with all levels of businesses, working hand in hand with the makers of the industrial revolution.  The great legal historian Lawrence Friedman describes the rebirth in the post-Civil War era thusly:

Nevertheless, the lawyers prospered.  The truth was that the profession was exceedingly nimble at finding new kinds of work and new ways to do it.  Its nimbleness was no doubt due to the character of the bar: open-ended, unrestricted, uninhibited, attractive to sharp, ambitious men.”

Lawyers again faced an existential threat during the Depression, when the economy crumbled and earnings collapsed.  Lawyers did even worse in the 1930s than the economy as a whole.  When World War II ended, however, lawyers started on a historic run that lasted until the 1980s, partially assisted depression-era restrictions on entry like the bar examination and the law school requirement.

Don’t forget that – for better or worse (and from the comments I know many of y’all think that it is worse) – America’s legal profession is utterly unique in the world.  It is bigger, richer, and more intertwined in civic life than anywhere else.  Lawyers founded this country.  Thirty-two of the fifty-five framers of the constitution and twenty-five of the fifty-six signers of the Declaration of Independence were trained or practicing lawyers.  Twenty-five out of forty-four American Presidents have been lawyers, including three of the first four, six of the first eight, ten of the first thirteen.  Lawyers have always been a dominant force in Congress and state legislatures.

America and its legal profession have been intertwined from the beginning, and lawyers – sharp-elbowed and ambitious – will find a new purchase in these changed times.  They have before and they will again.  Whether that is good news or bad news I will leave to you.

WHAT DOES JURASSIC WORLD’S BOX OFFICE DOMINATION MEAN?  Lots and lots more sequels and event blockbusters, that’s what.  That’s not necessarily bad news though.  I loved Fast and Furious 7. I saw the movie on opening night at a multiplex in Ljubljana, Slovenia.  One of my proudest moments as an American was when they dropped multiple cars out of a plane and then opened their parachutes.  The entire crowd gasped and then applauded and laughed.  Same deal when they jumped a sports car through  three different skyscrapers.  America baby!  This is what we do.

GLASS HALF FULL PART 3 – I’ve previously covered how the revolution in American law will benefit consumers and the legal profession.  Today I argue it will even help law schools.

The challenges law schools face are very real, but when we reach the other side of the tunnel the law school experience itself will be cheaper and better.  As fewer students apply to law school, there will be increased competition for students in terms of tuition and scholarships.  Today’s more clear-eyed students haggle over tuition and try to borrow less.

As some law schools focus less on U.S. News rankings and more on the serious business of staying open, the student experience may also improve.  There will be pressure to spend less on faculty scholarship and more on teaching practical skills.  Competition has already created some small innovations, like Northwestern’s two year program or Washington and Lee’s experiential third year of law school.  Any changes that break up the current, monolithic approach to law school will be a positive overall, even if some of the innovations are less successful or simply cost saving measures.

Happier law students should make for happier faculty.  But even if it does not, a correction in the salaries and perks for law school professors has been a long time coming.  Brian Tamanaha’s recent book Failing Law Schools is at its most powerful in its chapter on a law professor’s job (“Teaching Load Down, Salary Up”), precisely because legal academics have been so slow to recognize their own role in the trends of the last thirty years.  Law professors work less and are paid more than they used to be, and law school administration has grown exponentially, and yet we seem mystified over why tuition and debt loads have risen so precipitously.

Some law professors have a “let them eat cake” response to the suffering of recent law grads, noting that law has always been a competitive market and these graduates are just poorly suited to it.  Others think that the cost of law school is fair enough in a free market, conveniently forgetting that much of the “demand” for law school comes from the government requirement of graduation from an ABA accredited law school in order to take the bar.

These attitudes should fade somewhat as the pain in the legal market is shared by legal academia.  If it is true that the worst part about living a lie is wondering when everyone will find out, the hardest part is over for legal academia.  The law faculty that survives the retrenchment should, like the students who are happy to be employed, experience gratitude for what they have, rather than jealousy for what they do not.

OUR ROBOT OVERLORDS: Glenn loves to welcome them.  I prefer to mock them: here is a minute and thirteen second video compilation of robots falling over from the 2015 DARPA Robotics Competition.

GLASS HALF FULL PART 2 – Yesterday I made the easy case for optimism: Americans of all income levels will have more access to law and legal services in the twenty-first century.  Today I tackle the harder case: after a wrenching period of change the legal profession and law schools will be improved.

The profession will benefit greatly from smaller law classes filled with students with a realistic idea of what lawyers actually do and earn.  Current law students come in spite of a headwind, rather than because they are history majors with no other plans, and as such are much likelier to enjoy law school and law practice.  One of the hidden causes of rampant lawyer unhappiness is that too many lawyers were not thoughtful about coming to law school and are later disappointed with their choice.  The college graduates who do not go to law school will also be better off, pursuing careers for which they are better suited.  Fewer law graduates means less competition for the remaining jobs.

The actual job of being a lawyer will also improve.  The best of times for Big Law profits has been the worst of times for the lawyers themselves.  Big Law has led a boom in both remuneration and misery.  The changes ahead will force “alternative billing” for many projects, encouraging creativity and efficiency rather than the grind of maximizing hourly billing.  Much of the less interesting work will be computerized or outsourced, leaving only the most challenging and interesting work.

Competition from Axiom and other virtual law firms will allow creative lawyers flexibility in the terms and conditions of their employment, allowing some lawyers to do Big Law type work on their own schedules.  Surveys have regularly shown that Big Law lawyers would take less money in return for more free time and autonomy.

The same trends will make the small firm and solo practitioners who survive better off.  First, some portion of Big Law will separate from the most profitable firms and fall back to the pack, possibly rejoining what now resembles two separate professions (Big Law and everyone else).

Second, while much legal work will be lost, the work that remains will be more challenging and interesting.  At every level of the profession, entrepreneurialism and creativity will be required.  Lawyers will not be able to count on hanging a shingle and serving clients who have to see them.  Instead, the lawyers that survive will be the lawyers that can demonstrate the value of their insight and services.  This will be hard, but satisfying for the lawyers who make it.

It will be a galvanizing time for the profession and that will draw all lawyers together, putting other concerns into perspective.  It seems likely that in ten years the managing partners of large law firms and the deans of American law schools will gather over drinks to discuss with bemusement the rankings and other silliness that obsessed the profession during the 1990s and 2000s.

JEB BUSH PICKS WOODY JOHNSON AS FINANCE CHAIRMAN.  Am I the only one who thinks it is a bad idea to put the owner of the New York Jets in charge of stuff?

HAS APPLE JUMPED THE SHARK?  Early reactions to HomeKit and Apple’s new streaming service suggest the answer is “Yes.”

THE TELEGRAPH ASKS “IS RED WINE REALLY HEALTHY?”  Heh.  We readers of Instapundit have known the answer to that question for years.  Add coffee, chocolate, and a little Rippetoe and you’re on your way!

GLASS HALF FULL PART 1 – Wow, Ben, thanks SO much for your cheerful posts.  Law schools have failed their students, the good times are over for much of Big Law, small firm and solo lawyers have been losing ground for 25 years, and with computerization gearing up things will get worse for lawyers before they get better.  Glass half what?

Well first of all, the easiest glass half full case is to look at each of the trends above from the perspective of the American consumer, who are obvious beneficiaries.  Whatever else is coming in the future, it seems likely that legal services will be more widely available to more people and businesses at lower prices.  This trend starts at the top with corporate law firms and bubbles up from the bottom with LegalZoom and other forms providers.  Lawyers and legal fees are what economists call “transaction costs.”  When transaction costs fall, more transactions occur and goods and services are more likely to end up with their highest value users.

The benefits will be especially marked for the poor and middle class.  Most middle and low income Americans cannot afford to hire a lawyer.  This means that many Americans cannot afford to have a will or get divorced or change child custody arrangements or defend themselves in eviction/foreclosure proceedings.  Bar associations and advocates for the poor have argued for years that increased legal aid funding, required pro bono service or a civil Gideon right are the answers to these problems, i.e. more bespoke legal services by more government supported or volunteer lawyers.  These solutions are deeply backward looking, analogue, 1960s-era solutions to a very serious issue.

Fortunately, except for the in-court portion of the problem (which could be fixable with some pretty basic court reforms), computerization is on the verge of bypassing the legal profession altogether.  First generation online services may not be as good as a live lawyer (although everyone knows a lawyer whose work is already worse than what LegalZoom provides), but over time they will continue to improve.  LegalZoom and Rocketlawyer are already superior to nothing, which is all most poor and middle income Americans can afford.

Even in-court work will grow cheaper as lawyers take advantage of forms and virtual offices.  They will need to use these tools to survive, because more lawyers competing for less work will continue to drive prices down.  Between technology, outsourcing, the flood of new law graduates, and the displaced lawyers now willing/forced to work for lower salaries, customers will suddenly (and for the first time in recent history) be paying much less for legal services.  If you have enjoyed the digital revolution in music and photography, you will likewise enjoy the legal market in ten to twenty years.  Legal services will be cheaper, more accessible, AND better.  That’s bad for lawyers in the same way digital photography was bad for Kodak.  It is outstanding news for the country as a whole.

WHITHER LAW SCHOOLS? – No one has been better on the Higher Ed Bubble, law school edition than Glenn.  And he has been right on the money.  Main street lawyers have seen their incomes flatten or shrink since the 1980s.  Over the same period roughly 1 in 3 law graduates has not been able to find work as a lawyer.  Surely law schools reacted by lowering tuition or shrinking class sizes?  Everyone knew that not every American law graduate could make a fortune on Wall Street, right?

Hahahahahaha.  No.  From the 1980s forward law schools relentlessly raised tuition, accepted more students, and opened more schools.  Between 1987 and 2010, the number of ABA accredited law schools increased from 175 to 200 and total JD enrollment rose from 117,997 to 147,525.  Law school tuition rose over 1000 percent for in-state residents at public institutions and 400 percent at private institutions since 1985.  Student debt loads skyrocketed as well.  The higher ed bubble indeed.

In 2008 hard times for corporate law firms finally brought public attention to the employment numbers for law graduates, and applications and attendance at law schools have fallen steeply since 2010.  The downward trend is so marked that in 2015-16 fewer students may apply to law school than enrolled in 2010-11.

There have been predictions of mass law school closures (including from my inestimable host), and we have seen our first merger of two ABA accredited law schools, Hamline and William Mitchell in Minneapolis.  Charleston Law School, a relatively new, for-profit law school, suggested that they might not enroll a new class in Fall, 2015, before announcing the “good news” that seven professors would be fired and the school would attempt to survive with smaller classes and a slimmed down faculty.

Nevertheless, mass closures are unlikely.  Instead, troubled law schools will risk dis-accreditation by admitting anyone they can and radically cutting costs rather than actually closing the doors.  This may mean closing the law library altogether or replacing the bulk of the tenured faculty with adjuncts.  It is inexpensive to run a skeleton law school that has few administrators and is taught by adjunct faculty.  The question then shifts to what the American Bar Association (the law school accrediting body) would do.  The ABA has never dis-accredited a fully accredited American law school, and the legal and public relations ramifications of such a move are unclear.  And even if the ABA did try to dis-accredit a school there would be years of appeals, warnings, and legal wrangling.  These are law schools we are talking about!

Things sound grim, no?  Most analysis of these trends has been negative, but it has also been written by the parties most likely to suffer, law professors and lawyers.  By contrast, my book is entitled Glass Half Full: The Decline and Rebirth of the Legal Profession, and argues that after some rough sledding, the public, the profession, and the professoriate will all benefit.  More on that later.

SO WHAT IS AILING THE AMERICAN LAWYER?  In my new book I divide the causes into four different “deaths,” in homage to the late, great Larry Ribstein’s famous article “The Death of Big Law:” death from above, death from below, death from the state, and death from the side.

“Death from above” assesses the challenges facing Big Law.  Big Law grew exponentially in size, revenues and profits between 1950 and 2008.  But what goes up eventually goes down, and corporations grew tired of seeing the price of legal work outrun inflation.  Clients responded by pressing for more fixed price billing and using a combination of insourcing, outsourcing, and computerization for more straightforward legal work.

Paradoxically, clients have continued to pay more for true “bet the company” transactional and litigation work.  This is why the post-2011 uptick in revenues and profits have accrued almost exclusively to the richest, “best” firms: clients will pay ever more for specialized work (think of the Apple-Samsung litigation), but ever less for less complicated, more rote work.  Big Law is living out Matthew 25:29 – “For whoever has will be given more, and they will have an abundance.  Whoever does not have, even what they have will be taken from them.”

“Death from below” applies Clayton Christensen’s theory of disruptive technologies to describe how computerization is replacing bread and butter legal work.  LegalZoom, Rocket Lawyer, and others are horning in on traditional areas of practice like drafting incorporation papers and wills.  Websites offering free or very inexpensive legal advice have also proliferated.  So far, these websites are harvesting only the lowest hanging fruit, offering the equivalent of pre-made forms.  Over time increased volume and the feedback loop of the internet economy will make these products more sophisticated and an even bigger threat to lawyers.

“Death from the state” argues that courts and legislatures have successfully reined in litigation since the 1980s.  Regardless of whether you think this is great or bad policy, it is clear that tort reform has made tort law less lucrative for all the lawyers involved.

“Death from the side” tell us why there has been a thirty-year decline in solo practitioner earnings.  Duh, there are too many lawyers and too many law grads.  A recent comparison of the number of Juris Doctor holders, the number of licensed lawyers (not all of whom work as a lawyer), and the Bureau of Labor Statistics (“BLS”) estimate for the actual number of lawyers reveals that since the 1980s JD holders have vastly outnumbered practicing lawyers.  If the BLS count is right, almost half of the individuals who earned a JD in the last 40 years are not working as lawyers.  During the same period NALP data shows that roughly 1 in 3 law school graduates were unable to find work that required a JD.  And note that law school graduates who do not practice law earn less and are less satisfied with their careers than their lawyer counterparts, so don’t get me started on “you can do anything with a law degree.”

HIGHER ED BUBBLE AND LAWYERS FINALE – In my book I argue that legal practice in America has divided into two distinct categories – very wealthy corporate lawyers and everybody else.  Why does it matter?

It really matters for the higher ed bubble, law school edition.  Law schools, from Harvard to Thomas Jefferson Law School, are priced and run as if they are sending their graduates exclusively into corporate law and millions in earnings, when in fact they are sending most graduates to the 50k a year market.  Outside of the top 15 or 20 law schools in America only the top 5-10% of any given class will join a large law firm and receive a huge payday.

The small town lawyer used to loom large in the American psyche.  When an American of a certain age pictured a lawyer he thought of Abraham Lincoln, Atticus Finch, Perry Mason, or Matlock.

These lawyers were regular guys who took the business that walked in the door.  If you went to law school expecting to be Perry Mason or Matlock you were certainly disappointed by how boring your life was, but not by what you earned.

After L.A. Law and The Firm Americans stopped thinking of lawyers as solo practitioners and somehow decided that all lawyers were good looking, interesting, and super, extra rich.  This drew a whole new wave of confused history majors from college to law school, and floated a thirty year boom in the number of law schools, the number of law students, tuition, and profits.  This was awesome news for law schools, less so for everyone else.

The worm has turned since 2008 and there are fewer applicants and fewer students and they are haggling more over tuition.  Law schools have likely not hit bottom yet, but the correction is in full (and well-deserved) swing.  More on this later.

HIGHER ED BUBBLE AND LAWYERS PART 2 – In my book I spend a lot of time discussing the Winner Take All Economy and lawyers.  The comparative earnings of solo practitioners and law firm partners over the years displays the issue perfectly:

Look at how close the earnings of law firm partners and solo practitioners were in 1967.  The average law firm partner earned about twice what a solo practitioner did, and both types of lawyers earned more than the median household income.  In 1967 law could really be called one profession.  By 2012 law firm partners earned seven times what a solo practitioner did and there are clearly two completely separate professions – corporate lawyers and everyone else.

And note that the “law firm partner” category displayed above contains a number of relatively low-budget small partnerships.  If you use the average earnings of the equity partners at the fifty most profitable law firms (as ranked by Am Law) in 2012 the gap grows a lot more.  In 2012 the wealthiest American law firm partners earned $1.6 million, thirty-two times what a solo practitioner earned.

And let me cut anyone off at the pass who is thinking “$1.6 million sounds good.  Shouldn’t I go to law school?  There’s a visible uptick for partners in 2012!”  Is it a good time to go to law school?  Hardly.  First, note that there are (and have always been) way more solo practitioners than law firm partners.  So don’t go to a law school outside the top 10 unless you’re willing to work as a small firm lawyer, and earn what solos and small firm lawyers earn.

Second, while there has been a rebound in law firm growth, it has not been evenly distributed.  The top 25 most profitable firms have done best of all, the top 50 firms earn more than the next fifty and so on down the line.  So yes, growth has returned, but mostly at the tippetty top.  So if your question is, “How’s life at Cravath, Swaine and Moore?”, then the answer is peachy.  If your question is, “has the legal market recovered enough that it’s a good time to spend as much as 200k on a law degree?”, the answer is still no.

Glenn and I obviously ride or die with the University of Tennessee, which is consistently rated as a pretty good deal.  If you get into a top law school and receive a scholarship or a steep discount in tuition, go for it.  If you are going to pay in-state tuition at a school with a big alumni network and a history of getting their graduates jobs, fine.  But if you’re going to pay full freight (especially at an expensive and poorly ranked law school), because you’re pretty sure les bon temps will roulez again, the good times were never that good for most lawyers, and even those good times won’t be back any time soon.