Written by Hazel Weiser
Here’s where I disagree with Professor Tamanaha. It’s not that SALT has been silent or callous about the rise of student debt. As Dean Van Cleave so passionately stated in her recent blog, to solve the economic problem the profession faces, we have to answer the hard and existential question of who lawyers are and what role we play within a democratic society.
Since its inception in 1974, SALT has been trying to change what it means to be a lawyer. We have tried by introducing more clinics, more jurisprudence focused on vulnerable populations, and an urgent sense that law can balance inequality. We have tried to transform the law schools where we teach to attract a new generation of students who will make it their task to increase access to justice. In seeing so much unemployment and underemployment among recent law graduates, loaded with student debt, while as much as 80% of legal needs of low and moderate income residents remain unmet, well, this is where we have failed. We haven’t connected getting graduates employed with this unmet need. Focusing only on a way to cut the cost of legal education seems shallow and ruthless; it turns law schools into businesses at the hands of acquiring hedge funds. Finding a way to use the resources of law schools to incubate new, cost-effective ways to provide legal serves to those in need, beyond the categorically poor, seems a visionary opportunity.
SALT has worked to change the culture of legal education by insisting upon a curriculum rich with a principled critique of our liberal democracy and an understanding that it is an attorney’s professional responsibility to improve the quality of the legal system and increase access to justice. For over twenty-five years, we have organized public interest retreats across the country, so that law school students can meet each other and regional public interest practitioners to reinforce a commitment to use the law as an instrument for social change. That battle over curricular content has not succeeded in striking down the pervasive myth, fueled by a culture of greed, that a career in law is the road to a Bentley, a Rolex, and a private jet.
Where is Atticus Finch! Law is a service profession. Somehow that has gotten lost. Consequently, as the popularity of law schools increased, as guaranteed student loans funded wild expansion of facilities, faculties, and student services, as U.S. News & World Report rankings fired up competition among law schools, progressive faculty were complacent, because we saw our influence working as the curriculum expanded to include our contributions and scholarship.
According to the most recent Lawyer Demographics, issued in April 2012, in 2011, there were 1,245,205 licensed attorneys in the United States. Big law has always been the exception not the prevalent mode of practice: only 1% of law firms have 101 or more attorneys. That percentage has remained consistent since at least 1980. Yet that setting became the centerpiece of too much marketing about what it means to be a lawyer. Mergers, technology and globalization have shifted where attorneys practice. Government and private industry have both seen decreases since 1980 in the percentage of lawyers practicing there. Private practice settings have risen from 68% in 1980 to 75% in 2005. Like everything else, the profession itself is morphing.
Solo practice consistently remains nearly half of the private bar. Smaller law firms are disappearing: in 1980, 22% of private practice lawyers were in firms with 2-5 lawyers, decreasing by over a third to 14% in 2005. Firms with 6-10 lawyers have fallen by a third as well, from 9% to 6% of the private bar. And mid-sized firms are disappearing, with firms of 51-100 members falling by almost a half from 7% in 1980 to just 4% in 2005. Median annual pay for a lawyer in May 2010 was $112, 762.
We have failed to stop our law schools from marketing themselves to prospective students as the way to become rich and famous. At SALT’s first B.A. to J.D. Pipeline event, held in November 2011 at St. John’s University School of Law, Sarah Redfield, now professor emeritus at University of New Hampshire School of Law, confronted Robert Morse, director of data research at U.S. News & World Report, and the man in charge of the annual college and law school rankings. She threw a pile of law school marketing materials intended to attract high performing students and improve the reputations of individual law schools into a waste basket and declared it was time for us to just say no to “law school porn.”
Turning our backs on those pernicious rankings is a lofty goal. Doing so is nearly impossible. Too often our hubris gets in the way. Most of us don’t teach at the top ten law schools. We teach at law schools where students can graduate with the skills and insights to serve local populations of ordinary people. Those U.S. News & World Report rankings, no matter how much we hate them, drive too much of each law school’s annual budget. So where we have been complacent is not fighting back as we saw the culture of our schools shift, no matter what tier, dangling a starting salary of $160,000 instead of desperately trying to attract students who might have an interest to open a community-serving practice. With student debt so high, and the economics of law practice evolving, that career path faded under the false promise of celebrity and riches.
Progressive faculty could not turn back the tide of the cost of law school as guaranteed student loans became so prominent. The cost of higher education has soared because of the availability of loans just as the cost of health care increased with the availability of insurance. That’s American capitalism at its worst. We could not have stopped our deans from hiring more administrative staff, development, and marketing folks to promote the school in the mad rush for recognition by U.S. News. We did continue to fight for justice by demanding more clinical education, more diversity jurisprudence, more opportunities for students to see that they could effect the quality of justice. We did continue to fight because SALT cares about who is admitted to law school, what is taught, and who is teaching. However, the economic reality caught up with all of us throughout higher education.
That’s why CUNY School of Law’s Incubator for Justice, conceived by Professor Fred Rooney (who is on a Fulbright this year) and the low bono model developed by Luz Herrera at Thomas Jefferson are examples of what law schools should be engaged in: developing new models for the delivery of legal services that allow students to work where they’re needed and qualify for the College Cost Reduction and Access Act of 2007, which includes loan forgiveness as a way of making law school affordable.
There is no better place than SALT to have this complex discussion about our responsibility to the profession and to our students. This isn’t just a discussion about cost. This requires an examination of what it means to be a lawyer, the role law plays in promoting democracy and fairness, and, yes, how the structure of law school and how reform, not just cost cutting, can improve the profession.