James Farmer


Are Our Law Schools Churning Out Too Many Lawyers?

Thursday, August 25, 2016
Let me answer this question up front.  Yes.

Along with other experienced practising lawyers, over the last several years I have willingly talked to many law graduates who have sought advice as to how and where they might find a job in legal practice.  In most instances, they have already spent several months trying without success.  The fact is that supply now far exceeds demand and, unless a graduate has a straight A Honours degree, the prospects of finding a job in a law firm, large, medium-sized or small, or in a set of Barristers’ Chambers, are not good.

Personally, I have found it depressing and concerning to see so many young lawyers who have devoted 5 years of their lives to full-time study with the expectation of being able to practise law once they have achieved a law degree disappointed and disillusioned that the opportunities for fulfilling their dreams are so limited.   No doubt in most cases they also have student loans to repay and ultimately they will be faced with having to take unskilled employment just to deal with that problem.

This is a phenomenon that is not restricted to New Zealand.  Last week the New York Times reported that the United States National Association for Law Placement had found that the number of positions available for graduates in 2015 was in total for the whole of the United States down by nearly 4000 compared with 2007 [NYT, 17 August 2016, Elizabeth Olson “2015 Law School Graduates Got Fewer Jobs in Private Practice”].   The reason given by the Association for this development, which was expected to continue and accelerate, was that law firms are incorporating “growing efficiencies created by technology and business systems and increased competition from non-traditional legal services providers”.   In this last respect, there is of course the widespread use now of legal executives for property transactions in particular and the abolition of the monopoly that lawyers once had in this area.

Across the Tasman, the Australian Minister of Education, Simon Birmingham, also protested this month that Australian Universities were enrolling “an excessive number of students in profitable courses such as law” [Sydney Morning Herald (Matthew Knott), 12 August 2016].   The Minister claimed that vice-chancellors had told him privately that “they use courses such as law – which have high fees but are popular and relatively cheap to teach – as ‘profit centres’ for their universities.”  Profits from these degrees, it was said, are used to subsidise research or to teach more expensive courses in other disciplines.

Law Talk, on 11 March 2016, reported that there are currently 1650 law graduates a year.  Another interesting statistic referred to there was that less than half of all lawyers admitted to the Bar since 1980 are still practising as at the beginning of this year, which suggests that apart from the problem of new graduates obtaining jobs there is also an issue about job retention.   There may of course be other causes for the high proportion of experienced lawyers leaving the profession including the increasing demands and stresses that are put on lawyers in legal practice and the hours that they work (as to which see previous commentary in this column on having a balanced life style).

New Zealand is reported to have one of the highest rates of lawyers per head of population in the world.   A 2016 Law Society Study reported that New Zealand currently has 12,100 practising lawyers, constituting one lawyer for every 383 people in the country and in Auckland one for every 299 people. Those numbers though represent a decline since 2008, although going back further it is of note that in 1986 the proportion was one for every 681.  In Australia the numbers of lawyers in practice have declined in the last 5 years but the number of law graduates seeking to enter the legal market has increased substantially (up 9% from 2014 to 2015).

It is therefore with considerable dismay and concern that one learns that this month the Vice Chancellor at the University of Auckland has proposed that the present entry numbers into Law School of 330 be increased next year and thereafter to 500.   That proposal not only runs against the market tide, as outlined above, but if adopted would constitute a fraud on incoming students wishing to study law unless the dismal facts as to the job prospects of the majority of them are disclosed to them at the outset.

In my view, it is no defence to the large number of law students currently studying in the law schools (let alone the large increase proposed at Auckland) to claim (if it be so claimed) that a law degree is a form of liberal arts study that is justified for that reason alone.  If that is put forward as a justification for increasing law student numbers, then I would disagree.   Of course there are some aspects of legal study that engender debate on the big issues in society that transcend rules of law.  Jurisprudence is the most obvious and perhaps Constitutional law.  There are also optional Law and Society type courses included in most law degrees.  

Nevertheless, there is no escaping the technical nature of law which is in essence a rule-based system, notwithstanding that there are values that underlie many of the legal rules.  Contract law, commercial law, company law, Evidence, Family law, Property law, etc etc – all the core courses that make up a law degree and involve the teaching and learning of law – are heavily textually and precedentially based.  Yes, the common law is developed by Judges but only incrementally and almost always by paying due deference to precedent decisions that may go back a century or more.  Liberal thinking plays little part in that no matter what may be claimed to the contrary.

I would allow that, on occasion, it can be said that the courts do respond creatively to new social problems – for example, the willingness of the Supreme Court to expand the scope of liability of local councils and product manufacturers to deal with the major social and economic problem of leaky buildings.  But that kind of Judge-led reform is very much the exception rather than the rule and has little, if anything to do with any liberal arts components in the law degree.   Judicial decision-making is inherently precedent bound and conservative.  Witness the fact that it was not until last year that a Judge (Heath J in the prisoners’ voting rights case) was prepared to make a declaration of inconsistency between a statute and Bill of Rights Act provisions despite the very many occasions when legislative instruments have been before the Courts (including the Supreme Court) and measured against the Bill of Rights Act.

There may or may not be a case for having a Bachelor of Legal Studies comprised essentially of law and society type courses as an alternative or supplement to a Bachelor of Arts but that would not be a law degree that would be accepted as equipping a graduate to apply for admission as a barrister and solicitor.

By way of conclusion to this piece, I would urge the Universities to include in their student prospectuses a clear warning of the current and probable future situation in the legal market and to do that now.  I would also go further and argue strongly against an increase in student numbers in the law schools.    Any other view is simply irresponsible.

25 August 2016

Jim Farmer

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