Larry Ribstein (who I consider a friend, and it’s mutual) has written “A response to LawProf and MacEwen” and LawProf has in turn written “Markets and failure: A response to Larry Ribstein.”
This pretty much makes it incumbent on me to chime in.
Even though Larry’s piece gives me a hard time in spots (“my response will focus on markets (something I would think one who adopts the “Adam Smith” moniker would have been more attentive to)”), perhaps unexpectedly my first response is one of great delight.
What I called for in my original piece was, if nothing else, some kind of response from the Academy to LawProf and Larry has at least planted a flag. This is a constructive start.
It looks as though the three of us agree on a few other fundamentals:
- “the rising cost of legal education today is out of sync with its expected value;”
- “this market failure is at least to some extent a product of bad information, which in turn is a product of behavior on the part of law schools that ranges from the disingenuous to outright fraud;”
- US News rankings are deeply implicated in the “collective action” problem we face before meaningful change is possible;
- increased transparency would be a fast, cheap, and necessary–but far from sufficient–step in the right direction; and
- what law schools teach today does not–for all but those students heading straight to federal clerkships–prepare graduates for practice.
Where Larry strays into assuming LawProf and I must have taken unstated positions which I know I didn’t intend and which LawProf denies he intended is when it comes to a prescription for fixing this situation. Larry thinks LawProf and I would counsel greater “practice-orienta[tion]” by law schools:
Assuming legal education should be changed, what should law schools do now, or be allowed to do in a deregulated regime? MacEwen and LawProf are both absolutely sure about the irrelevance of modern legal education to the job market. Presumably they would want law schools to be more practice-oriented.
But MacEwen/LawProf are stunningly over-confident about their ability to see where legal education should go in a world in which the market for law-related jobs is rapidly and fundamentally changing.
LawProf quotes exactly the language I do and responds:
I certainly do not want legal education to become “more practice-oriented” as that phrase is currently understood in the legal academy, for, among other reasons, the very ones that Ribstein goes on to emphasize (the market for legal services is changing so rapidly that a “practice-oriented” legal education, as conventionally understood, is likely to soon be obsolete).
I would echo him: I don’t know what the Law School of the Future should look like–and far from being “supremely confident” “about what law schools should do,” the far simpler truth is that I didn’t even hazard a wild guess in my original piece.
But one thing I would not recommend under any circumstances is putting the burden of teaching a “practice-oriented” curriculum in the hands of people who at best have practiced very briefly and at quite junior levels. No offense, but I wouldn’t want the most gifted Corporate Law professor in the country to counsel me on drafting a MAC clause in a merger agreement.
It’s not just that we can’t foresee the future (Larry, LawProf, and I agree warmly on this), it’s worse than that: The future is almost certain to unfold in ways that will mock any scenario we could come up with. The answer is not to impose a one-size-fits-all top-down “reform,” but to permit bottom-up experimentation (as Larry seems to endorse vis-a-vis the plethora of business school models). The twin straitjackets of ABA accreditation requirements and a seemingly unshakable faith in rigid notions of prestige are daunting obstacles to any meaningful experimentation.
“Rigid notions of prestige?”
LawProf puts it best:
But of course there’s a wealth of evidence that law firms are in fact just as much in thrall to the rankings as law schools. […] The whole problem, on one level, is that law is an extremely hierarchical profession in which any deviation from what the authorities declare to be the legitimate hierarchy tends to be frowned on at best, if not treated with outright horror. In other words, the power of the rankings is a product of the obsession with the rankings, rather than the other way around.
This exacerbates–entrenches, extends–the market failure we began by talking about.
Larry proposes the counterfactual of a decidedly nonconformist law school thumbing its nose at the US News rankings and delivering superior value:
[W]hy would informed law students reject a sound choice just because US News implicitly advises them to? Why wouldn’t law schools compete by being different from the herd? If a law school can deliver a super-normal return on the job market, wouldn’t applicants go there regardless of ranking? Isn’t that the whole reason for disclosing these statistics?Maybe the argument is that law schools must bow to the ratings god because law firms bow too and will only hire from top ranked schools. So US News has covered the eyes not only of law students but of savvy, market-conscious employers. In other words, the “collective action problem” requires us to ignore the possibility of an efficient market where both buyers and sellers are sophisticated.
Much as Larry seems to resist this possibility–that a market of sophisticated buyers and sellers alike could have “their eyes covered”–that is very much today’s reality.
Firms fear that if they don’t hire “the best and the brightest,” their work product will suffer, the firm’s reputation will plummet, clients will shun them, talented partners will flee, and the parade of horribles marches off to the horizon. (They won’t say this but that’s what they’re thinking.)
Even Supreme Court Justices rely on law school pedigrees to “brand the beef.”
Breaking a collective action impasse like this takes concerted action led, typically, from the top. LawProf’s great service is in providing a credible voice for some of these issues, and Larry’s contribution has been in providing at least a first response from the academy.
Compared to them, yours truly is just a bystander, albeit an extremely interested one hoping to nudge the conversation in productive directions (and yes, with my own dog in a related hunt).
