The ABA Task Force working paper has many interesting ideas in it.* But it also has several points of weakness, glossing over critical perspectives and insufficiently supporting important factual claims. We can hope that a footnoted final draft will take care of the latter issue. But the lack of acknowledgment of critical perspectives is a deeper problem, and one I hope participants at this Saturday’s meeting will raise. Questions could include:
1) When clients refuse to pay for the work of recent law school graduates, do they say, “We’re not paying for first or second year attorneys,” or “We’re not paying for attorneys without the following ‘practice ready’ skill set”?
If it’s the former, isn’t the problem more one of bargaining power than one of inadequate education? If it’s the latter, shouldn’t the ABA solicit some critical mass of major clients to articulate the skills that need to be trained, and to pledge to pay those who possess them?
2) Why are (certain types of) law jobs in decline?
The Task Force strongly believes that there are “structural changes” in legal employment. The “structural vs. cyclical” dispute over the causes of unemployment is deeply ideological. A conservative economist may characterize the great recession as a “great vacation” of people unwilling to work (or learn new skills). Paul Krugman and Mike Konczal challenge the structural story generally, and Mike Simkovic & Frank McIntyre give us some reason to doubt it in the case of attorneys. They believe that the “data does not support” the view that “law continues to be depressed while the rest of the labor market has recovered.” Many other types of professionals are also faring worse than they have in the past. For every “death of biglaw” story, there’s a skeptic who’s heard it all before.
I have no doubt that certain types of law jobs are in decline. But this raises a deeper question: why is this happening? Let’s think outside the BigLaw box, and consider, say, elder abuse attorneys. Stipulate, for purposes of this discussion, that there has been some decline in the number of attorneys specialized in the regulation of assisted living and nursing home facilities (and tort lawsuits for neglect and abuse). Why might that occur?