Thank you, Clay, (1) for the introduction. I also want to thank all of you for coining today.
It is a privilege to be asked to deliver a Farber Lecture, because I knew Dr. W. 0. Farber. I would like to tell you about the first time I saw Doc Farber, which was before I knew who he was.
In my first semester as dean of the Law School, back in the fall of 1993, I was at a campus-wide discussion on some topic I can't recall. The discussion had gone on for about an hour, which was half an hour longer than the topic deserved. At that point, a small man in the audience stood up and said something that made more sense--that was more insightful--than anything else that had been said in the previous hour. After the session ended, I found out that the small man with the insightful comment was Doc Farber.
Doc Farber had retired from the University of South Dakota ("USD") faculty in 1976, but he was still a force on campus. (2) In part, he was a force because of his history. Chairing a department--the Political Science department--for almost four decades earns you some measure of respect and credibility. But the main reason he was a force was because he had a combination of intelligence, experience, and dedication that was hard to match. It was a privilege to know him.
If you didn't know Doc Farber, please study the portrait of him on the wall to my right. It was painted by Bobby Penn, a great artist of American Indian heritage. (3) I have always admired the way in which Penn captured not only the likeness but also the spirit of Doc Farber.
I think Doc Farber would have enjoyed watching someone talk about a topic that reflects the difficulties facing the legal profession and legal education. Although many of his proteges became successful and prominent lawyers, Doc always seemed ambivalent about his students pursuing legal careers. He would have preferred that they get MPAs or PhDs and pursue careers in government or academia. So I always enjoyed letting him know when a Political Science graduate was doing well in Law School or that more of our students had majored in Political Science than any other subject.
The topic I agreed to talk about today is daunting for reasons other than Doc Farber's ambivalence about lawyers. I was involved with education policy, working for a governor of Tennessee, (4) before I went to law school. At the American Bar Association ("ABA"), where I worked for five years right after law school, I directed the Division of Professional Education. For the past thirty-two years, I have been a legal educator, including five years as an associate dean and eighteen years as a dean. I have devoted roughly 100,000 hours of my life to this topic or something related to it. It is a challenge to condense 100,000 hours down to a 40-minute lecture.
Another reason this topic is so difficult for me is that so much has changed in the last five or six years. This summer, I was talking with a friend (5) of mine who has been in legal education even longer than I have. He commented that he and I had experienced the "golden era" of legal education. We agreed that it was unlikely that legal education would ever again enjoy the prosperity we experienced.
As a former dean of this University's Law School, I do not want you to think that I mean by the use of the word "prosperity" that we had more money than we needed. When it comes to government services, no place values frugality more than South Dakota. I recall a national law deans' meeting many years ago during an earlier decline in law school applications, when deans from other schools were bemoaning the cuts they were having to make. I commented that this was not a problem in South Dakota, because you can't cut it if you never had it.
But although we were never flush here, the financial pressures I faced as dean were rarely as difficult as they are now for my successor. (6) There was one year when the legislature and Board of Regents, over my objections in which I pointed out that law school applications were declining nationally, made decisions that produced a 70% increase in our nonresident tuition rate. Our nonresident applications and projected enrollment dropped precipitously, and we estimated that our entering class would be two-thirds of its normal size. I went to President Abbott (7) and told him we could either lower our admissions standards or have a very small class. He told me not to lower our admissions standards, and we had an entering class of only 45 students as compared to our target of 75.
I had previously sectioned several of our first-year classes to improve the educational experience of the students, so these students spent their first year of law school mostly in classes with fewer than 25 students. As you may know, legal education is built around a model, especially in the first year, of intensive classroom instruction that includes calling on students randomly to discuss the cases assigned for the day. The typical class size of 75, or even 100-plus at some schools, is appreciated by students as decreasing the likelihood of being called on. The students in our classes of less than 25 had nowhere to hide. I doubt that any law students in the country could match them in the rigor of the education they received. Not surprisingly, the bar passage rate for that class was 100%.
Although there were some valleys among the peaks from the 1970s to the first years of this century, legal education had not experienced over those three decades a sustained decline in applications like that of the last decade. In 2004, law school applications exceeded 100,000. (8) By 2014, they were down to about 55,000. (9) Over the past four years alone, applications have decreased about 37%. (10)
The decline was a logical response of prospective students to the news of weakness in the job market for law graduates. Even before the new century, the market for legal services had begun to change. Clients were less willing to pay whatever law firms chose to charge. Some were hiring auditors to look behind the legal bills they received. (11) Technology also had an impact, making it easier to package legal services as commodities or even outsource legal research to India. (12)
Then came the "great recession" of 2008. The economic woes of the United States and the whole world caused law firms to reduce hiring and lay off lawyers as clients disappeared or reduced their demand for legal services. (13) Prospective openings for new graduates did not materialize, as older lawyers saw their retirement funds disappear and realized they no longer could afford to retire. (14)
Some in legal education initially thought that the demand for legal services and thus for law graduates would bounce back when the economy recovered. Others--and I was one of them--thought that this downturn was different than earlier ones. As the Georgetown Law Center for the Study of the Legal Profession stated in its 2013 Report on the State of the Legal Market:
[T]he market for legal services in the United States and throughout the world has changed in fundamental ways and ... even as we work our way out of the economic doldrums, the practice of law going forward is likely to be starkly different than in the pre-2008 period. (15) The Georgetown Center based its conclusion on solid economic data. My conclusion was based on more anecdotal evidence. When my son, who was working on his PhD in computer science at Stanford, told me he was studying Chinese, I was confronted with the economic realities of the United States and the world. I concluded that the economy of the United States--because of the new world economy--was unlikely to ever again produce the demand for legal services that drove the market for law graduates and the resulting abundance of law school applications and enrollment.
As the job market for law graduates weakened, the concerns of prospective students grew. This concern was heightened by stories of law schools overstating the placement rates of their graduates. The job market is now showing some signs of improvement as the economy slowly recovers from the 2008 recession, but prospective students are reluctant to believe the encouraging data, and rightly so.
The nation's economic downturn and its effects on the job market for law graduates were beyond the control of legal educators. So those of us in legal education can rightly consider ourselves victims of those events. But the deans and other administrators of some law schools were the perpetrators, not the victims, of the misleading information that caused prospective students to distrust reports that the job market is improving. From 2004 to 2010, I served on the ABA committee that collects this data, chairing it from 2007 to 2010. I tried, but failed, to convince others in the ABA leadership that there were problems with the collection and dissemination of this data. I regret that I was not more effective in making this case. Changes have now been made, and that data is more reliable and useful than it was. But the changes came only after the confidence of prospective students in the placement data--and perhaps in the integrity of legal educators--had been severely weakened. It will be a while before that confidence is restored.
Fueling prospective students' concern about the weak job market for new law...