You may have heard that the situation for law school graduates is not so great. I haven’t blogged about it, since the subject probably isn’t that interesting to those who haven’t gone to law school. And in any event there are already plenty of folks out there raising a ruckus, Paul Campos being the most entertaining. But recently Harvard Law Professor Lawrence Lessig gave a commencement address to graduates of the John Marshall Law School that was so fantastically out of touch with reality that I feel compelled to at least dash off a short post in response.
Before I unload on Professor Lessig, let me preface this by saying that he seems like a pretty good guy. He means well. His heart’s in the right place. But his recent commencement address is further evidence that smart people can have profoundly stupid ideas.
Where to begin? His message to the graduates of John Marshall Law School was that lawyers should not forget real people – the “more pedestrian crowd” as he puts it:
[M]y point is to emphasize the importance of the other part of law. Not the “Inc.” part, but the part that touches real people with real problems. It’s the part that keeps a family in their home against an unjust demand for eviction. Or enforces a simple contract with a bank, to supply the credit for a coffee shop. Or protects a woman against her abusive husband. Or forces an insurance company to pay on a claim it rightly owes. Or defends a child in a foster home against the neglect of a distracted state.
Well, yes. So far so good. That other part of the law is important. The lack of affordable legal representation for ordinary people – “access to justice” as it’s called – is a national disgrace.
The system has convinced most of us that the law is for the rich, except that part of the law that involves the prisons.
We, all of us, have a duty to fix this, to make it better. We lawyers in particular have that duty. We fulfill it by practicing the law of real people, and through that practice, making that law better.
How exactly are unemployed lawyers supposed to “fix this” and “make it better”? Half of Americans are low income. If you practice “the law of real people” you’re working for people who can’t pay you. There’s a reason most people are convinced that the law is for the rich. It is.
When my nephew told me he wanted to give up his career in journalism, and his career as a racecar driver, to become a lawyer, I was skeptical.
Yes, considering that half of law school graduates will never find jobs as lawyers, some skepticism is probably in order.
But as I watched him grow through his years at this law school, I recognized that my skepticism was wrong. Never more than the day when he told me that he was thinking of simply hanging up a shingle after he left Atlanta’s John Marshall Law School and practicing the law of real people.
Face, meet palm.
Okay, so if this were the Daily Show and I were John Stewart, here’s where I’d clear my throat and ask Professor Lessig to “have a word with me at camera three”. Because the family facing eviction, the victim of domestic violence, the neglected child in the foster home – odds are pretty good that they don’t have a lot of money. And if your clients don’t have any money, and you don’t happen to be employed by a legal services organization that is paying your salary, then you can’t eat. See the problem?
But what about fee shifting? Can’t a lawyer practice “the law of real people” by making the bad guys pay? Practically speaking, probably not. Especially not as a new attorney with no experience, and even for an experienced attorney that’s going to be a tough roe to hoe. Here’s attorney Bernard Brown talking about the economics of fee shifting while practicing consumer protection law:
There you have it. A seasoned attorney speaking from experience describing a fee-shifting economic model as “laughable”. And this from someone who actually knows how to practice law. If you’re a lawyer with six figures of debt and no experience reduced to the desperate expedient of “going solo” straight out of law school, you probably don’t want to compound the damage by adopting a “laughable” business model. (And keep in mind that Attorney Brown is talking about representing people who have been ripped off, not people facing homelessness or trying to flee an abusive spouse.)
So Professor Lessig, please go and talk to some attorneys who work for legal aid and actually practice “the law of real people”. Ask them if it would be economically viable to do the work they do if they had no reliable income and had to eat what they kill. Or ask how many new attorneys their office has hired recently, and in the unlikely event they have hired someone, ask how many applications they received for the position. Or talk with Deborah Jones Merritt at Ohio State, who knows a few things about the economics of practicing law. But for god sake, don’t lecture heavily indebted students at a fourth-tier law school about the duty “we lawyers” have to fix a broken system. You don’t have to worry about rent and food and crushing student debt. Most of the graduates of John Marshall Law School will.