The claim about “ordinary folk” is even stranger [than the one about big corporations], but it’s one that’s being made a lot these days by legal academics desperately searching for a raison d’ paycheck. The argument goes something like this:
(1) Many people in this country who could benefit from legal services aren’t getting those services because they’re too expensive.
(2) Those services are too expensive because law school costs too much.
(3) If future lawyers could go to law school without incurring so much debt, they could afford to offer legal services at a price that far more people could afford to pay.
(1) is certainly true. (2) and (3) are just wrong, and obviously so.
Big corporations have stopped paying for innocently incompetent and innocently but grossly overpriced junior associates because they’re finally behaving rationally. They have discovered a combination of things: That non-lawyers can do some of that work, that software can do some of that work, that some of that work needn’t be done in the first place, and that even if some of it is to be done by junior lawyers at BigLaw, they don’t have to pay anything close to what they used to pay. That’s the easy case. Please note: Nothing whatsoever in this analysis has anything to do with the price of law school. In fact, I challenge you to relate the price of law school to this analysis in any way. That’s market #1: BigCorps hiring BigLaw.
As for “ordinary folk[s],” Prof. Hadfield makes the same analytic error, inserting the price of law school into the argument in a superficially plausible way, but which dissolves on a moment’s thought.
Explain to me how what ordinary folks will pay a lawyer to handle their “mortgage or divorce” has anything to do with the sunk cost of tuition at that lawyer’s school? Nothing, is the answer.
The price for handling a residential mortgage or a divorce is, well, the price—set by the market, with all the attendant implications, such as its being less in Bentonville, Arkansas than in Manhattan. While the experience and relative specialization of the practitioner might be an element going into the price, the cost of that lawyer’s long-ago JD degree is as irrelevant as whether it’s spring or fall, rainy or sunny. That’s market #2: Folks needing SmallLaw.
This demonstrates a larger truth: Clients don’t care about your costs.
This brings us to market #3: Prospective students evaluating to-JD-or-not-to-JD, a/k/a the market for a law school education.
The vacuity of Hadfield’s argument, by the way, is no different in structure or concept from that of law school grads who might be tempted to think they “have to” earn $160,000/year to start because they have a boatload of student debt. I’m sorry (and I truly am heartbroken at the human toll), but that’s not the way the market works. I might as well tell my boss I need a raise because I bought a second home in the south of France. Income does not expand to match expenses, nor does the price the market will bear for your services conveniently match what it takes for you to meet your past costs.
Which is another way of underscoring the point that if law schools don’t realign their price with the value of what they deliver, the lines on that graph at the top of the article will continue downwards. Without regard to the implications for law schools’ making their budgets.
Sorry, but my theory about what BigLaw’s lawyer composition may look like must await another column.