With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that). The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.” Familiarity with my original post is not presupposed.

As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable. There is a good deal to admire. LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree. They believed that potential consumers of legal education would make better choices if they were better informed. They were pointed, patient and persistent in pressing for more and better disclosure. They were an instrumental part of the process that effected that change. And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).

So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)? Here’s a catalogue of my most serious concerns:

Don’t overdramatize. Don’t let your urge to be the center of attention distract from the ideas and their merits. To those of you who pointed out that this was a vice of my original post (most of you in the most understated and appropriate way): you were right, and thank you. This vice appears in “Disaster Planning” in the overused and overwrought rhetoric of crisis that pervades a certain class of commentary about the current state of the legal academy and the legal profession. LST’s title tells us its paper is all about “Disaster Planning” to address the “Crisis in Legal Education.” And indeed the word “disaster” appears three times in the first paragraph of the Abstract alone, with two “cris[e]s” thrown in for good measure. By the third page, “the law school disaster” has been erected as the foil against which the paper’s recommendations are defined.

Don’t allow hysterical language to mask a failure to define the issue you need to address. So what is “the law school disaster” according to LST? I scoured over forty pages without finding an answer. While “Disaster Planning” trots out various inventories of misfortune, it fundamentally fails to identify the “disaster” it’s “planning” for, leaving us facing down that “disaster” armed only with the queasy uncertainty that we won’t know when we’re ready for it, how effectively we weathered it, or when it might be over.

Am I suggesting that there is nothing amiss in the legal academy or the legal job market? Of course not. Law schools; their faculty, staff and administrators; law students; law graduates; lawyers and legal employers—and by far most importantly, clients—are all currently awash in real, serious and substantial difficulties of various kinds. But which are causes, and which are effects, and which are which for what? Or to put it slightly differently, it’s pretty much impossible to solve a problem you haven’t defined; in fact, it’s difficult to speak coherently about a problem you haven’t defined. You end up with exasperated generalizations on the order of “life sucks; then you die” (which, I might observe, leaves you with innumerable inconsistent avenues to explore concerning whether or how to make life suck less, or end quicker).

Some measure of how serious an obstacle this tactic is to sound analysis can be found in the responses I received to this point in my original post. Several of you (including Kyle McEntee himself in a very thoughtful and measured Comment for which I thank him) chastised me for quibbling with LST when it was perfectly obvious what the “disaster” was—and each of you identified different issues! Mr. McEntee believes that “the disaster would be if legal education's traditional and important role in American society is further delegitimized”; others of you identified the problem as the excessive cost of legal education (a subject I will discuss in an upcoming post); still others pointed to the genuinely tragic flotilla of unemployed law grads currently marooned in a sea of debt.

That’s why I have devoted (some might suggest squandered) so many words in this space considering “What Matters Most.” For those no longer keeping score at home, what I think Matters Most—that is, what is most fundamentally a direct or indirect cause of more current hardships, and what would be most difficult, and least likely, to change—is the fact that there are significantly more recent and imminent law graduates than there are entry-level law jobs. You are invited to review my empirical and logical bases for the conclusion that this is What Matters Most right now (e.g., here and here), and fault my reasons in any way your reason will permit. But for heaven’s sake, let’s have a coherent and common-sense discussion about causes and effects grounded in actual facts and practical realities, and leave Henny Penny in the barnyard.

Whether you agree with my assessment of What Matters Most or not, defining the problem you want to solve is utterly essential. Beyond insignificant and temporary adjustments on the margin, law schools don’t create law jobs, and they don’t destroy them. Legal employers and clients do that, driven by their own economic exigencies. Law schools have been making the same mistakes that LST and others identify today in one form or another for close to 40 years, during which time legal employment saw essentially uninterrupted and unprecedentedly rapid growth at rates far in excess of the greater economy’s. There is no empirical evidence, and no coherent argument, that whatever you think law schools are doing wrong today made one-third or more of all entry-level law jobs suddenly disappear between 2008 and 2010. There is no empirical evidence, and no coherent argument, that any change to the substance or method of legal education today would bring any material portion of those recently disappeared jobs back into the economy.

What this means is that, if you’re trying to relieve the oversupply of recent law graduates (or the undersupply of entry-level law jobs), tinkering with law-school curricula or instruction methods will not meaningfully touch the problem. Nor will simply lowering the cost of a law degree, which as I’ve already suggested in this space, seems more likely to increase the number of unemployable graduates as reduced price stimulates demand. This is not to say that I endorse the current economics of law school, but that’s no excuse not to think through the plausible consequences of your policy prescriptions.

So while I do not question the seriousness and good faith with which LST advances its proposals, I hope none of you will question the seriousness and good faith with which I suggest that some of the ideas in “Disaster Planning” deserve some further thought and refinement. To put my examples in context, two of the big ideas around which LST wants to build an experimental “modular” law school are (i) shorter-term class “modules” lasting only a few weeks apiece in lieu of most full-term courses (a Colorado College model for those familiar with it) (ii) taught predominantly by adjuncts at a cost far lower than permanent faculty. In the remainder of this post, I’ll try to illustrate some recurring errors in LST's article that we can all try to avoid in our next efforts.

Don’t ignore the implications of your justifications. A number of the explanations offered for LST’s specific proposals don’t respond to broadly held perceptions of what’s broke; don’t hang together, or just don’t make much sense. For example, the authors praise the compressed class “module” structure because it “encourage[s] exploration of topics that would otherwise be considered too narrow in a semester-long curriculum structure.” But overbreadth of particular class offerings is not a common view of the current deficiency in curricular selection; if anything, excessive and impractical narrowness is. This does not necessarily mean that shorter “modules” are a bad idea; but it does mean that how they are selected, structured and coordinated is quite important. Future discussion should bring this essential factor, which is not addressed in the current paper, into play. Similarly, LST touts its proposed structure because it allows faculty to respond nimbly and rapidly to the curricular “input” and “demands” of students. This is not altogether surprising given that the authors are all recent law-school graduates. But the premise is not unlike criticizing a physician for bad patient service because she did not provide the diagnosis or prescribe the therapy the patient thinks he prefers. Most students come to law school having no idea what they need to learn to prepare themselves for one of the innumerably varied careers they have not yet chosen. The fact that some of the doctors may be loopy or self-involved is no reason to put the patients in charge of the asylum.

Don’t ignore inconvenient facts. One of the greatest challenges in formulating coherent law-school reform proposals is (as a number of you pointed out in response to my original post) how little we actually know about what works or why. Experimentation should be undertaken advisedly, since the guinea pigs are people who are gambling huge amounts of money and their future on the experiments’ outcome. So when we actually have empirical data, we are duty-bound to make the most of it. In this particular instance, LST—ordinarily an outspoken champion of better information driving better decisions—refuses. Dean Erwin Chemerinsky, the authors note, has pointed out that one of the serious objections to a very small core of full-time faculty surrounded by a cloud of adjuncts who wander in for their three-week modules and then disappear until next year (or forever) is that adjuncts regularly receive materially less positive student evaluations of their teaching in the aggregate than permanent faculty. One likely reason, Dean Chemerinsky has argued, is that whatever else teaching involves, it is a skill that benefits from practice. LST’s response is a series of unsupported assertions that the student evaluations are somehow comprehensively wrong, and that most practitioner adjuncts are really better teachers, both in their practices and at school, than most permanent law faculty (something not entirely obvious to anyone who has ever worked in a law firm, which none of the authors has for any length of time). While greater use of adjuncts may present other advantages—which, while not in my view as self-evident as the authors apparently believe, seem to deserve exploration and testing—it is at the very least self-defeating to deny years of actual empirical observation and evaluation by the very student population the authors wish to serve. Let’s use the facts we have, not pretend they don’t exist.

Don’t assume away the problems you perceive; recognize and try to solve them. No proposal is perfect. Good policy involves identifying the weaknesses in your suggestions and figuring out ways to avoid or ameliorate them. Bad policy leaves the problems you know are out there for someone else to take responsibility for (so at least the program’s failure won’t be your fault). For example, the authors concede that “[t]he sheer number of adjuncts may accentuate the problem of finding, scheduling, evaluating, and filtering competent teachers.” Their solution: “The . . . faculty must be actively managed in a way that ABA-approved law schools are not presently doing.” Any suggestions about the quantitative or qualitative nature of the “problems” their novel structure creates, or what any of those currently nonexistent techniques of “active[] manage[ment]” might involve? Nah, these mere operational details are delegated to a “module coordination staff, focused on the challenges distinctive to the modular structure,” who will somehow do what such currently nonexistent people have never done before “ensuring a sound and affordable legal education.” Any solution involving the adjunct cloud that LST favors cannot be taken seriously without some very detailed prescriptions for how to manage this very significant challenge.

LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems. The execution leaves something to be desired for the reasons just discussed. But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible. We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new.

Next time, my promised response to the crisis-mongers.

In the meantime, a Happy New Year to all.

--Bernie