Considering the various motivations and the marginal satisfaction of attendance, there are certainly not too many law students.¹

But what of student expectations? Recent statistics indicate the difficulty of finding a position for graduates of middle and lower tier law schools², the crushing burden of debt carried by some³ perhaps precluding modest paying career choices such as service to the lower and low middle economic classes or in the euphemistically titled "public interest law" practice. Such choices nevertheless are made or forced upon many graduates, particularly those from one of the non-elite law schools. Taking a low pay position is forcing a sizable number of lawyers to take a second position⁴ in order to pay law school debt. The current downward pressure on starting salaries, lack of job opportunities, and the precipitous drop in law school applications⁵ implies that the discipline of the free market is working in response to the fact of too many lawyers⁶. But how many is too many?

Lawyers Helping Lawyers

The law schools, with teaching almost solely based on the casebook method, persist in considering themselves educational institutions while paying lip service to the moral, ethical, instrumental and philosophical basis of law. Whatever the merits of the casebook method, a glaring moral weakness is implicit. The law is reduced to a contest between two attorneys with the most creative or clever winning. The typical casebook emphasizes the essential lawlessness (unpredictability or manipulability) of the legal process rather than the law as a morally or even an instrumentally grounded set of rules.

Lawyering for Social Change

When the parties and interests to be affected by the laws were known, the inclination of the law makers would inevitably attach to one side or the other; and where there were neither any fixed rules to regulate their determinations, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without constant laws, that is, without any known preestablished rules of adjudication whatever; or under laws made for particular persons, and partaking of the contradictions and iniquity of the motives to which they owed their origin.⁹

Why not, therefore, run any theory up the flagpole to see if some judge will salute it? If anything goes, then it is true that any lawyer worth his salt can create enough work to keep at least one other lawyer busy. And we can characterize much of this as advocating for social change. Of course, if a lawyer can be unprincipled when advocating for social change, he can be unprincipled when advocating for one's client.¹⁰

Nowadays, a key function of a lawyer (not you, of course) is to instruct the client in the fine arts of welching and blaming others and convincing some besotted judge or lottery loving jury and sometimes both to go along. More cleverness produces more welching or blame shifting which leads to more litigation necessitating more lawyers. Certainty is not part of the modern legal lexicon.

Lawyers become judges. Trained to be clever and manipulative, with no anchor but their own judgment, why be surprised when judges are arbitrary¹¹, inconsistent¹² and unpredictable¹³. You may object that they can't get away with it; there are legislatures, higher courts, and there is the U.S. Supreme Court. But, of course, if the Supreme Court itself is without principles and legislatures abdicate their legislative responsibilities, lower courts get a green light. Equity rules. It no longer follows the law but swallows the law. And "Equity is measured by the Chancellor's foot."¹⁴ But is the Supreme Court lawless? No less an icon than former Justice William Brennen answered that question.

We current justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be their measure to the vision of their time. ¹⁵

Society needs lots of attorneys to be that creative. Since the Best and the Brightest¹⁶, largely from Harvard, Yale, Columbia, Stanford, and Chicago, among other "elite" institutions, become the professors, high court judges and even presidents, their sense of social justice becomes law. Edmund Burke warned about this sort of law making.

Political arrangement, as it is a work for social ends, is to be only wrought by social means. There mind must conspire with mind. Time is required to produce that union of minds which alone can produce all good we aim at. Our patience will achieve more than our force. If legislative justice requires this, the work itself requires the aid of more minds than one age can furnish. ¹⁷

Law Schools Attacking The Law

Consider the following sample of courses now being taught at law schools. The courses offered at Yale Law School include Feminist Theory Workshop, and Feminist and Critical Race Theory. At Harvard Law School, courses include Lawyering for Poor People, and Law, Sex, and Identity. Consider, too, the statement of Dean Guido Calabresi expressing the wish that "troublesome judges" be "graduates of our school".²⁰

No question that manipulating the judicial process (with the help of troublesome judges) all the way to the Supreme Court is the preferred legislative method of the advocates of our ever expanding victim groups. But such a career is for the few. How many lawyers are hired by the American Civil Liberties Union, National Lawyers Guild, the Children's Defense Fund and other such pursuers of political agendas masked as social justice. Law school professors hardly ever mention that perhaps the best a good and ethical lawyer can do is to make his little corner of the world a little better. Not at all glamorous, is it? In so-far as the typical law student believes he can manipulate the system to establish social justice, he is being conned. He is being conned by (with few exceptions) unproductive professors with unrealized goals desperately trying to be important and compassionate. J. Budziszewski put it well.

The desperationist acts to relieve his own; the pain of pity, the pain of impotence, the pain of indignation. He is like a man who beats on a foggy television screen with a pipe wrench, not because the wrench will fix the picture but because it is handy and feels good to use.²¹

It just feels good to use the students to relieve the pain. But, of course, the students won't and can't relieve the pain. Perfection is not part of the human condition. "As it is written, there is none righteous, no, not one . . ."²²

In so far as the typical law student believes he can change the world or establish social justice through the imposition of his views by being the modern version of a philosopher King, he is being conned. It is a false dream of his professors.

Are there then too many law students? No, they will decide that for themselves, although it would be beneficial to urge some to take up more remunerative work like head mechanic at NTW or more productive work like math teacher. In so far as the typical law student believes he can immediately enter a world of affluence, he is being conned. He is being conned by the Image law schools like to project to justify their high costs. He is being conned by law school recruiters eager to justify their existence hence the existence of their employer. In any case, the market is working to reduce their numbers.

Back to Question One

Back to Question Two

Juridical politics is "winner take all" built on an adversarial model. Someone is "guilty" and loses. Someone else is "innocent" and wins. This zero-sum game model spurs direct mail and other mass membership organizations whose primary goal is to give no quarter in the matter that is of direct interest to them.

By guaranteeing that the forces on either side of hotly disputed issues (such as abortion or highly controversial mandated remedies to enforce racial or gender equity) need never debate directly with each other through deliberative processes and legislatures, juridical pre-emption deepened citizen frustration and fueled what I call a politics of resentment. This politics of resentment tends to reduce legislators to agents of single-issue lobbies and mass-mail overkill, thereby deepening the social mistrust that helps to give rise to such efforts in the first place.

This is a tragedy.²³

A good start in dealing with too many law schools would be to close Harvard, where faculty is so busy thinking great and clever thoughts that they have little time to teach or reflect on the consequences of their cleverness. How much more productive would Harvard's students be as educated engineers, scientists, or businessmen. Teach them math. And while we are at it, close Yale, thereby reducing the number of troublesome judges and Michigan, Stanford and Berkeley Law Schools too. All these lawyers creating work for all these other lawyers would start to disappear. Instead of 178 expensively run ABA accredited law schools, we might do with 60 ranging from inexpensive to expensive, from outright vocational institutions to research institutions. Innovations will be in teaching, training and reforming the legal process rather than techniques and arguments for imposing one's own agenda on an uncomprehending but increasingly hostile populace.

We as legal educators must take truth in education further even than the ABA recent proposal for such a Standard applicable to ABA accredited law schools. Students need to know that paying off student loans is not easy, that good paying jobs are not guaranteed, that the median lawyer income is "only" $37,000 ²⁴, that legislation through judicial opinions has its dangers, that lawyering can be dull and paper intensive, and that nothing gives a lawyer a better perspective than a liberal education.

The true and achievable dream is the dream of service to individuals with individual problems and aspirations. A little more modesty by the law schools would go a long way.