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Tuesday, November 01, 2011

Chemerinsky on Law and Social Change

I'm glad someone has already put up a link to Law School Review: A Forum on Legal Education, a very fine blog from the National Law Journal that has run some excellent pieces on legal education.  I am not surprised that the contribution from Erwin Chemerinsky has provoked some angry responses.  Here is most of his piece:

Over 35 years ago, I decided to apply to law school because I was convinced that law was the most powerful tool for social change.  Never once have I regretted my decision. . . . 

There are an infinite array of paths that one can pursue with a law degree.  It can open the door to a life of interesting work whether in government, private practice, business, public interest settings, or elsewhere.  It offers the chance to do many different things over the course of a long career.   Most importantly, it offers the chance to make a difference, in people’s lives and in society. . . .

I am often asked by prospective law students and their parents about the market for lawyers.  The reality is that there always will be a demand for excellent lawyers and a legal education is terrific training no matter what path a person pursues.  But I also always ask, “Compared to what?”   Most prospective law students are not choosing between law school and medical school.   Would going to graduate school provide better odds of employment?   Would going to business school offer more assurance of fulfilling employment?

I do not underestimate the costs of law school or the uncertainties in the market for attorneys.   But I also continue to believe that if a person is interested in a career as a lawyer, law school is a wise and wonderful investment.

I think one might start with some charity of interpretation.

 I assume Chemerinsky is quite sincere in saying he doesn't underestimate law school's costs or the uncertainties in the job market.  And it is true that a law degree can enhance one's work in a variety of areas--although, given the costs involved in doing so and the possibility that one can learn some of those skills on one's own on the job, it's far less clear that it makes more sense to go to law school for the sake of being a better government employee or public interest worker than to just plunge right into those fields.  

I do question what exactly Chemerinsky means by his rousing words about law being "the most powerful tool for social change."  Does he mean it in the macro sense (changes in "society"), in the micro sense (changes in "people's lives"), or either or both when it suits him?  So few lawyers effect social change at a macro level that this is not a totally convincing reason to attend law school, especially given that it is also quite possible (and equally rare) to effect social change at a macro level without a law degree.  At a micro level, of course it is possible to help invidivuals immensely through legal practice, and I fully expect many of my students to do just that, the more so because few of them will end up at BigLaw.  But it's also possible to effect micro-change through countless other jobs (and charitable involvements apart from one's job).

Chemerinsky says that few students are choosing between law school and medical school.  It's a good thing for his argument, because I don't doubt in the slightest that it's vastly more possible to help people significantly on an individual level through medicine than law.  But there are two other problems with that argument.  First, why not choose instead between law and social work?  Or small-business entrepreneurialism?  Or K-12 teaching?  Or the ministry?  Or countless other alternative careers that are not as removed from the skill set of potential lawyers than medicine?  Second, perhaps we should think about changing the focus on particular skill sets that lead people to apply to law schools without medicine being a meaningful alternative choice: perhaps we should be doing more to steer students at an earlier level to the sciences and medicine/nursing, engineering, and countless other professions that might lead to more net social change than encouraging a set of skill sets that lead them to things like law.  In other words, there's no good reason to simply start with the assumption that the relevant time to think about is the moment before a student is considering law school.  We might think about changing our incentives and educational emphases so that more students have the tools to consider other fields besides law, including medicine, that have a greater capacity to help individual lives.

One last point: I am sure Chemerinsky has never regretted his decision to go to law school (although tuitions were far smaller 35 years ago!).  But he ended up very quickly (about two years after graduation) in the legal academy.  And certainly in terms of macro changes in society or large-scale social change, the legal academy is not at all a likely place to achieve those goals.  At a micro level it may be different, because we train lawyers who may actually go out and help individual lives, by drafting wills, defending small-scale criminal charges, helping couples get divorced and deal with the care of their children, etc.  (Of course, working on mergers or other corporate issues can also help people's lives, although if you want a tangible sense of helping others, then those small-bore tasks will be more satisfying.)  Even there, though, it's less than clear to me that if you want to achieve micro-level social change, you should go into law teaching rather than, say, going into practice and doing adjunct teaching.  At a macro level, though, achieving social change as a law professor is a long-shot--and not just coincidentally: as Posner has argued, the skill set involved in being an academic may actually make it less likely that one becomes a moral entrepreneur or social change agent.

There are many good reasons to love being a legal academic, and many of them aren't selfish.  But if you seriously want to change the world, and still want to become a lawyer, there are many better ways to do it than by becoming a legal academic.  Whether law is "the most powerful tool for social change" or not--and I doubt it is--it is certainly true that legal academia is not.          

Posted by Paul Horwitz on November 1, 2011 at 10:27 AM in Paul Horwitz | Permalink


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Although I am not an HLS graduate, from pursuing the website it appears that private sector employment qualifies so long as it is full time and law related.

While many law school graduates have a problem finding any sort of legal employment at all, there would certainly be more possibilities if being able to pay student loans back were not such a critical factor. This practical salary floor for new graduates also has deleterious effect of acting as a floor on the price of legal services.

So and and all I think the introduction of Harvard's LIPP to every school in the country would go a long way to fixing what ails the legal education market and part of the way towards fixing what ails the legal market in general.

Perhaps the ABA should look into it ...

Posted by: Brad | Nov 3, 2011 2:19:50 PM

Prof. Horwitz, I'd also point out that you're engaging in an ad hominem and attacking a straw man, insofar as you are indicting Chemerinsky for going into legal academia, and arguing that legal academia is not an avenue for social change. Whether or not you're correct in your assertion, who cares? That's not Chemerinsky's argument.

You say that "if you seriously want to change the world, and still want to become a lawyer, there are many better ways to do it than by becoming a legal academic." Let's adapt this statement to actually address Chemerinsky's argument, and make your claim "if you seriously want to change the world, there are many better ways to do it than by going to law school."

Can you please elaborate? What specific ways are we talking about? Let's talk about two scenarios: first, the person who has every option (YLS, Wharton MBA, Kennedy School of Govt, Chicago PhD for Econ) open to them, and second, the person with very limited options (2nd/3rd tier law school, 2nd/3rd tier b-school, 2nd/3rd tier masters degree programs). I don't think I agree with your assertion, but I'd at least like to hear it.

Posted by: anotherduda | Nov 2, 2011 4:04:28 PM

As an HLS grad with a business degree who has spent my career in a mix of practice and public policy, I think this piece misses Chemerinsky's point, which is that a law degree provides its holders with a large degree of flexibility in their careers, a flexibility that is easily wielded for public service.

The fact is that in our society, in many jobs, one needs a post-graduate degree to advance beyond a certain level. People in that situation are typically weighing between a MBA, law degree, or maybe a masters in public policy or a specific subject area (economics, etc.). Of those, I'd argue that a law degree is by far the most valuable and also the most flexible. MPPs and the like are very limiting, and MBAs are imho the most worthless degree one can acquire, with the main benefits of this degree being the degree itself (which impresses some folks for no apparent reason), and of course the great networking that can occur at the better b-schools.

Also, while recognizing that most people are not going to go HLS or YLS or the like, I'd still argue that a 2nd tier law school is far more valuable than a 2nd tier business school or 2nd tier masters program, which provide essentially no value as far as I can tell for employability or salary.

Understanding that there are a lot of $hitty law schools out there, we should also recognize that there are a lot $hitty business schools and masters programs as well.

Posted by: anotherduda | Nov 2, 2011 3:58:37 PM

Brad, one caveat about HLS LIPP (the debt repayment program) that means that its universal adoption would not end the scamblog phenomenon. LIPP generally requires you to have a paying public interest or public sector position in order to receive its benefits. As we all know, very few of those positions are currently open, far fewer than biglaw. HLS itself has some very hardcore, dedicated public interest-minded grads who are volunteering full-time in the hope of receiving a paid public interest position. And there's the rub: LIPP will not cover your loans if you are doing full-time public interest legal volunteering. I made inquiries about this possibility prior to (fortunately) finding a paid public interest position. I was told that if I wanted/needed to volunteer, I would have to defer my loans or make graduated payments, thus letting interest accrue.

Given this, it seems that the scambloggers' alma maters would need to a loan repayment program even more generous than HLS's in order to assuage the anger of their alums: one that would repay the loans of full-time legal volunteers. Even then, people who lacked the funds to volunteer full-time would not qualify and would still be angry. I think you're envisioning a low-income repayment plan that would just make loan payments for people without jobs, and I don't know of any school that has an option like that.

Posted by: HLS | Nov 2, 2011 3:35:03 PM

Brad: HLS '06 alum here. And yes, I don't regret having gone to HLS. I know very few of my classmates who do. The few people whom I can think of who fall into that category honestly were humanities majors (usually from Harvard College, Yale, or similar) who were perfectly good students. They just failed to identify any concrete reason for wanting to attend law school prior to attending - and now, five years later, have been unable to do so. But even they are not angry at Harvard as the scam bloggers are angry at their schools, because they have enjoyed multiple years of solid six-figure income due to the value of their HLS JDs. They mostly recognize as their own responsibility their failure to find full-time work that appeals more to them than biglaw.

For those of us who have looked for something other than biglaw, we've mostly found it. HLS is a solid, gold-star investment: there's no two ways about that.

Posted by: anon | Nov 2, 2011 2:49:56 AM

As a math/phil major planning to go to law school, the "if a person is interested in a career as a lawyer" bit was good to see. Too much of the law school discussion, IMO, has focused on "rational actors," profit maximization, and opportunity cost. There are careers I could go into that would probably have a much better ROI than law, but I still want to go to law school because I want to be a lawyer.

I'm sure this is partially upper-middle class luxury speaking, but too much attention paid to the numbers seems like it can undermine the vocational aspects of careers that make life more than a race to the grave.

Which is not to say, of course, that there shouldn't be a serious discussion about the ROI for law school.

Posted by: Andrew MacKie-Mason | Nov 1, 2011 8:39:12 PM

Chemerinsky went to Harvard Law School. I don't think there are many people of any age who regret having gone to Harvard Law School. In addition to the more obvious reasons, it has a debt repayment program that, were every school in the country to adopt it, would immediately and irrevocably end the phenonomon of 'scamblogging'.

Link: http://www.law.harvard.edu/current/sfs/basics/publicservice/lipp.html

Posted by: Brad | Nov 1, 2011 5:08:32 PM

It is rare to find a defense of law schools that does not at least acknowledge that law schools have been behaving quite badly. But I think Chem is right to note that whatever one's concerns about the over-supply of lawyers, it is not as though there are tons of better options for the liberal arts majors that populate the halls of the nation's law schools. Paul's suggestion to consider K-12 education or social work strikes me as bad advice given the widespread teacher layoffs and cuts to social services budgets since the financial crisis. Obviously most small businesses fail and in this economy likely won't be able to secure start-up loans. A rational actor might well look at such options and determine that a law degree is worth the investment, even with the accompanying massive debt (or might be inclined to attend a less prestigious school on scholarship).

Perhaps society should "steer" students towards engineering and alike but that would require re-thinking the whole model of liberal arts education.

Posted by: SA | Nov 1, 2011 3:09:58 PM

I suspect that most people go to law school (or engage in other pursuits) with the goal of macro change. They then discover that micro change is the best they can do but learn to appreciate its importance.

I'm a big believer in micro change, because I think the macro change that so many want is a bad idea and focused on one's personal philosophy, not actual human beings.

Posted by: frankcross | Nov 1, 2011 2:30:58 PM

Hi, Paul. So I'm not as pie-eyed as Chem about law school, but neither am I as much a pessimist as this post seems to express. A couple quick points.

First, "I don't doubt in the slightest that it's vastly more possible to help people significantly on an individual level through medicine than law"? Not sure I'm buying this. I suspect more docs than lawyers do help people on an individual level. But it's certainly _possible_ to help people as much or even more as a lawyer than a doc. Poverty lawyers who guide people through divorces or evictions do great work and help lots of people in serious need. Criminal defense lawyers provide individualized assistance to many people facing the ruination of their lives. These strike me as vastly more helpful endeavors than, for example, doing botox on bored housewives. And the longshot of making social change happen on a macro level via, say, impact litigation illustrates that lawyers have a capacity (though it's a remote chance) for making sweeping change that relatively few doctors do. Thurgood Marshalls are rare, but so are Jonas Salks.

Second, Chem says he went to law school because he thought law was the most powerful tool for social change, not because he thought being a legal academic is a powerful tool for social change. What attracted him to law school initially may not have been what ultimately drove his career decision at the end of his time in law school (as is often the case). But even so, he's actually had a pretty significant influence on the world from his post as a legal academic, from helping countless law students understand that there are (some) clear principles in con law, to starting a new law school with a strong public service mission. He's the exception to the rule among academics (and lawyers, too) in this respect, but I think his take on the issue is legit given what he's accomplished.

Posted by: Dave | Nov 1, 2011 12:37:04 PM

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