The profession's in crisis, but law schools don't care. They're steeped in a toxic, hyper-capitalist worldview

The real reason law schools are raking in cash
The profession's in crisis, but the schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013

Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000. And although enrollment has declined slightly from its all-time peak of 52,488 new students in 2010, the general trend has been unmistakably positive.

But if you sought information about how law schools weathered the financial storm in the pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have faulted you for coming to the conclusion that they must be undergoing a major crisis. As these publications have tirelessly (and accurately) reported, the picture for law graduates is rather bleak. Student debt is astronomical, with some law students borrowing upwards of $200,000 to finance their educations, and employment prospects are dismal, with even well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.

As a straight value proposition, it seems, it is no longer clear that going to law school makes any sense. So, law schools, one might reasonably expect, surely must be feeling the pressure. College students, one could not be blamed for thinking, surely must be considering other careers. But it has not been thus.

Why? How, in other words, can we explain the fact that young people are still going to law school in droves? How are we to make sense of the fact that so many intelligent college graduates are, to all appearances, deciding to commit financial suicide? The accounting just does not add up.

A couple of answers suggest themselves. First, there is the fact that law school is uniquely positioned to exploit the ambitions of students whose majors do not lead obviously to a particular career. Economic choices, in other words, are not made in a vacuum; we can select only among the finite alternatives that precipitate from our actual pasts. For the upper-middle-class junior at Amherst whose parents are doctors or professors or – say – lawyers, but who always found herself more interested in 19th-century French painting than in computer programming or corporate accounting, law school may be the only way out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art history or some equally esoteric field, which – every sensible person she knows will tell her – is thoroughly useless and not very likely to get her a job. Yes, it is true – the various influences in her life will whisper – sadly in our society everyone must become a technician, but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality – certainly these are worth caring about? And don’t you want to make something of yourself?

Next, there is the fact that the sorts of people who want to go to law school tend to be exactly the sorts of people who think they can beat the odds. There are, in fact, many books on the market warning prospective students not to go to law school. These books bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law School.” They describe in gory detail the veritable intellectual, emotional and spiritual wringer into which students are about to voluntarily insert their heads. There is, for instance, the Socratic method – a mode of instruction whose sole discernible purpose is to torture students through the elaborate belaboring of obvious points. And there is, for another, the end-of-semester exam, a three-hour rite of passage that is graded anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s grade. But for a certain kind of person – the kind who found the coddling atmosphere at his private schools stultifying, the kind who positively lusts for real competition – it is difficult to imagine a better advertisement for law school. Indeed, the tacit message of these cautionary books might be paraphrased: Don’t go to law school… unless you are just the sort of exceptionally talented smart person who can succeed in a ruthless competition with other smart people.

But there is another obvious question about the discrepancy – the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates – that no one seems to be asking. The prevailing silence, I think, comes from an implicit recognition that to ask the question is to answer it – that to speak the words aloud is to break a very serious taboo. If we start talking about that, everyone seems to know, we will never be able to sleep at night. The monster has been shut away in the closet for good reason.

That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, aren’t the very ideals that law schools purport to teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the usual story of how our society has come to have meaningful civil rights, to have real restraints on abuses of government power, a story about pivotal triumphs in the legal system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law schools are selling an education in these values, the lamentable truth can only be that they have failed to practice what they preach.

It might be tempting simply to shrug one’s shoulders and say “Well, people like money.” And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-suited man on TV promising you “the settlement you deserve, and fast!” – exist for a reason. Is it really any surprise that law schools, composed as they are of lawyers, are happy to dip their cup in the river of cash that seems to be flowing their way?

Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school – one that, unfortunately for entering students and conveniently for law school administrators, requires attending it to fully comprehend. While most people probably have some vague sense of the peculiarities of the law classroom from cultural touchstones like ”The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably assume that these references are exaggerated and outdated. Which is true enough. But what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow (who wrote “One L”) – have missed is that law school’s indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.

Over the past several decades, by far the dominant intellectual trend among legal scholars has been one called, rather uncreatively, “law and economics” (or usually just “law and econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but powerful: The utility of legal rules should be analyzed in terms of their ability to promote economically efficient outcomes. And the question of law’s efficacy as a social force is, first and foremost, one of how well its systems of rules and regulations allow the market to function.

Initially only moderately influential, law and econ quickly gained traction when, in the early 1970s, an assertive law professor by the name of Richard Posner – who is now a judge for the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean comprehensiveness, offering an amateur economist’s take on each and every aspect of the American common-law system. Posner spoke with great eloquence about the efficiencies and inefficiencies of those parts of the legal system that form the groundwork of the first-year curriculum at literally every American law school: contracts, torts and property. Posner’s efforts were further buoyed by the work of legal scholar and political scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of economics on judicial thinking itself.

Posner’s underlying idea – that understanding why the rules are what they are is a matter of understanding whether they promote economic efficiency – is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is not presented as one among many possible theoretical orientations one could have toward the law, but as a set of truths to be memorized. Law professors recite chapter and verse from Posner and Epstein as though their conclusions represented objective, undeniable facts about how the world has to function if things are going to run smoothly. Rather than subjects for examination and discussion about which students are invited to take a position, the law-and-econ position about, say, contracts is presented as part of the “material” that students must ingest and eventually regurgitate. Posner has argued, for instance, that courts should choose rules for interpreting contracts by figuring out what approach maximizes financial rewards between the parties. In one of his tiresome articles, he even writes out a little “equation” for this purpose – to interpret the contract correctly, Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do not actually assign his writings will simply take his approach for granted. The implication is clear: The debate, if ever there was one, has ended, and the economists have won.

If you need proof of law and econ’s influence, just ask any weary twenty-something lugging around a needlessly expensive torts casebook. Most of the cases in that book are followed by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and propound overlong lists of citations to law review articles that no one – least of all the casebook authors – will ever read. Without fail, the questions will encourage you to wonder whether another rule might not lead to increased market efficiency. And invariably, many of the citations in those long lists will be to Posner or one of his many disciples – he is, in fact, the single most cited legal scholar of all time.

It is not as though there are no well-meaning liberals – and some holdout proponents of “Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools. There are plenty. But aside from the easily-memorized-and-parroted set of rules that comprise the actual law, and aside from some basic, practical skills about constructing a legal argument, what most students take from the first year of law school is that their intuitions about justice, fairness and equality are hopelessly naïve; that the relevant consideration is the smooth functioning of the market; and that the point of a life in the law is to oil the machine. Law school tells them that their beliefs about social justice are silly; their simplistic moral views untrustworthy; and their ways of talking insufficiently precise. And all of this is conveyed as though it represented some universally accepted, decidedly modern, and – indeed – scientific consensus about how we should think about legal systems. Students cannot help but perceive that, with the exceptions of a handful of reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be let in on the secret that law and econ is merely a modeling technique; that there are other ways to conceive of law’s influence and social possibilities; and that economic explanations like Posner’s rely on a heavily debated set of theoretical assumptions.

While it is true that today’s law schools are, by and large, nowhere near as bad anything in “The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is permitted endless liberties and students are expected to endure equally endless abuse, only serves to reinforce the core message: Things have to be more or less the way they are. Despite its arbitrariness, the market (like law school) picks winners and losers neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the rules that govern it. Our socioeconomic system (like law school) is basically meritocratic – or as nearly meritocratic as possible given the constraints of the real world. And the division of economic rewards that system generates are fundamentally just – or as nearly just as possible given the unfortunate realities of life in the marketplace.

The law curriculum, thus, does a double disservice: First, it obscures the workaday practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the best and easiest way to learn the skills of practice is simply to try them yourself. And second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead teaching students to uncritically accept the central premises of neoliberal economics as a somehow post-ideological social order. Students come away both unprepared for anything but apprenticeship at an established law firm, where they will come to understand what lawyers actually do, and disaffected and bored with theoretical discourse about law. As any law student knows, the “discussion” in most law classes is tedious and irrelevant – only the exam matters. Indeed, law students often get angry at their peers for evincing anything like genuine interest in a classroom conversation, since most people in the 100-person lecture hall are – quite justifiably – just wondering when it will finally end.

In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is that most of their professors have been disabused of their beliefs in justice, fairness and equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students do. They have accepted, instead, the law-and-econ formulation of these values: markets, efficiency and capitalism. It is a strange and frustrating situation: The only people who might have interesting thoughts about how law can function for the betterment of society are those who do not yet know enough about law to have an informed opinion.

I am not, of course, the first person to notice this terrible and distressing reality. In 1982, Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in revelatory detail, how every aspect of the law curriculum – down to the physical placement of seats in the lecture hall – is arranged to convey its conservative message about what law is and how it works. Despite the pretentions of objectivity and neutrality provided by the economists’ vernacular, Kennedy observes, law schools remain “intensely political places.” He so neatly summarize the entire situation today that it’s scary: “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand – all these are only part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” When I stumbled across these words during my own third year of law school, I found it physically impossible to stop my head from nodding in agreement. If you are young, smart and liberal, and are considering going to law school, read Kennedy’s piece first. It is as true today as the day it was written.

There is, however, a final question: Why aren’t the thousands of unemployed, over-indebted and disaffected young lawyers doing anything about the situation? Why, that is, have they not gone back to their law schools to seek relief, to demand recompense, or at the very least throw rocks? There have been some attempts to sue law schools for publishing misleading employment figures, and some attempts by the Bar to rein in overeager admissions offices, but these efforts were mostly ineffectual (in the case of the lawsuits, largely because they were ill-conceived). By and large, the response among young attorneys has been one of resignation and glum acceptance of their sorry fates.

Kennedy’s answer to my question is simple and compelling. For most students, the ideological training “takes” – like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems – at least at the present moment – not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing – if the plant has truly put down roots – the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.

I think, though, that there is another, simpler reason that law grads aren’t striking back. Lashing out at law school means admitting certain truths about their own lives that are too hard to face: That many of the people they trusted to provide them with meaningful, honest instruction about the law failed them. That the purpose of the harsh methods of instruction was not teach them the rigors of being a lawyer, but to rank and sort them ever more finely. That the ranking process then fulfilled the prophecies of the free-market ideology they absorbed, as the best-performing among them were rewarded, even in tough economic times, with clerkships, prestigious summer internships and – eventually – high-paying positions at big firms. That their own reasons for going to law school were less than completely altruistic – that they did, in fact, want to make something of themselves. That they still, despite their hand-wringing about the unfairness of it all, live in circumstances of enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and injustices of the very system that produced you. It means, in other words, turning against yourself. What is there to do, then, but stare blankly out the window of the downtown office over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds, and wonder what to do about the injustice?