Letting Go of Old Ideas

By Henderson, William D. | Michigan Law Review, April 2014 | Go to article overview

Letting Go of Old Ideas


Henderson, William D., Michigan Law Review


LETTING GO OF OLD IDEAS

The Lawyer Bubble: A Profession in Crisis. By Steven J. Harper. New York: Basic Books. 2013. Pp. xvi, 208. $26.99.

Tomorrow's Lawyers: An Introduction to Your Future. By Richard Susskind. Oxford: Oxford University Press. 2013. Pp. ix, 165. $18.95.

Introduction

Two recently published books make the claim that the legal profession has changed (Steven Harper's The Lawyer Bubble: A Profession in Crisis1) or is changing (Richard Susskind's Tomorrow's Lawyers: An Introduction to Your Future2). The books are interesting because they discuss the types of changes that are broad, sweeping, and dramatic. In suitable lawyer fashion, both books are unfailingly analytical. They both also argue that the old order is collapsing. The Lawyer Bubble is backward looking and laments the legacy we have squandered, while Tomorrow's Lawyers is future oriented and offers fairly specific prescriptive advice, particularly to those lawyers entering the legal field at a time when the number of traditional (what I call "artisan") legal jobs is shrinking.

Many of us working in the legal industry are interested in this topic because we are facing business conditions with no familiar historical ana- logue. From my own vantage point as a law school professor, things look pretty bleak. As a result of the precipitous, multiyear decline in applicant rates and historical trends in admission and matriculation rates, the number of law students who enrolled as 1Ls in the fall of 2013 fell below 40,0003-a low-water mark not seen since the mid-1970s.4

It is certainly possible to rebound from a thirty-five-year low in entering enrollment, but the statistics are not promising: In 1977, there were 163 law schools accredited by the American Bar Association ("ABA").5 In 2013, there were 201,6 with even more in the accreditation pipeline.7 This represents a 23 percent increase in the bricks and mortar. Paying this increased overhead might have been sustainable when incoming 1L enrollment peaked at 52,000 in the fall of 2010.8 But since 39,675 students enrolled in fall 2013, law schools have experienced a 24 percent drop in incoming students over three short years. A decline this large and swift is an enormous financial blow to institutions that have high fixed costs (read: tenured faculty) and no experi- ence coping with large-scale change. Further, the pain is likely to increase as the comparatively larger incoming classes from fall 2011 and 2012 graduate and their tuition revenues leave the building.9

Perhaps we should have seen this change coming. Over the last several decades, the nature of legal practice has indeed changed. In 1975, scholars from the American Bar Foundation conducted a major study of the Chicago bar ("Chicago Lawyers I").10 One of the most salient findings of the Chicago Lawyers I study was that the legal profession had functionally divided into two "hemispheres," one serving individuals and small businesses and the other working for large organizational clients such as corporations.11 Which hemisphere a lawyer served turned out to be a remarkably accurate proxy for a lawyer's ethnicity, religion, law school, bar association and social club memberships, home zip code, and annual income.12 The Chicago Lawyers I study described these two groups as hemispheres not only because they were of roughly equal size but also because their professional interests and net- works seldom overlapped.13

In 1995, the same core group of researchers replicated this study ("Chi- cago Lawyers II").14 Over the intervening two decades, the organizational sphere had expanded dramatically due to the proliferating legal needs of corporate clients growing in size and geographic scope. The amount of time that lawyers devoted to organizational clients had increased to double that spent on personal and small-business clients.15 Thus, "hemisphere" was no longer an accurate description.

One laudable effect of this growth surge was that racial and class divi- sions between the two hemispheres began to crumble, as the corporate bar needed to recruit beyond a handful of elite law schools. …

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