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Just Because We All Take it for Granted…

4:21 pm 2011 August 12
by Bruce

…Doesn’t mean it makes any more sense than it ever did.

This comes to mind apropos The Wall Street Journal reporting  with a mixture of just-the-facts and incredulity that “thousands of interviews for jobs at law firms are taking place now” as top law schools all race to be at “the front of the line,” as Keith Wetmore, Chair of Morrison & Foerster put it.

Is this really something new?  Above the Law certainly doesn’t think so.  The Journal does report that in 2000 only seven law schools held interviews in August, but by 2009 it was more than 70 and this year “the figure will top 100.”

Whether or not it’s new is, to our minds, a bit beside the point.  There’s no question it’s the reality we’re all living with, and this is the perverse logic behind it:

During the market crash of 2008, both Harvard and Yale law schools “went essentially last” in the recruiting season, with their interview weeks in September and October. “Their students did get hurt, and got fewer offers,” said James G. Leipold, executive director of NALP. “Our students still had great jobs, but you do even better when you’re at the beginning of the [recruiting] process than the end,” Harvard’s [director of career services Mark] Weber said. A spokeswoman for Yale Law School said she couldn’t comment.

In economic terms, you could characterize this as either (or both) an example of the inexorable logic of the “Tragedy of the Commons” in action, or as an example of the extremely high barriers to “Collective Action.”

Econ 101 Timeout:

The Tragedy of the Commons is the familiar phenomenon where a shared resource (the “commons”), which is owned by no one, is grossly over-utilized, as where farmers all let their sheep loose on the commons to graze with the predictable result it’s soon bare ground.  Although the analogy is far from rigorous or precise, how is this similar?  Early interview slots are clearly a desirable “resource” in the eyes of law schools, but since they’re “free” to the schools (never mind the cost they impose on the firms who have to deploy cadres of partners all over the country all at the same time–that’s not a cost the schools bear), everyone piles on.

You could also think of it as exhibiting the same (il)logic of people standing up at a stadium to get a better view, prompting those behind them to stand up, and immediately everyone is standing but no one’s view has improved.

Or as an arm’s race, where an enhancement by one side is promptly matched by the other, leaving no one safer or more secure (but real resources having been expended in the meantime).

What’s the solution?

That’s where the challenge of “collective action” comes in.

Simply put, the dilemma is that the self-interest of each actor (each law school) is to try to be first, but when everyone acts on their self-interest, everyone ends up worse off.

“Worse off” how? you may be asking.  Isn’t it just the proverbial “level playing field” if everyone is interviewing in August instead of, say, October or (just imagine!) next January?

Yes, everyone – most especially including students – is worse off because firms have only one piece of information from students’ law school experience to go on, and that’s first-year grades and class rank.

There’s been a sudden eruption, in fact, of articles suggesting if your first year grades – even your first semester/first year grades – are sub-par, you should pull the plug then and there and bail out of law school, including in the comments to the WSJ article and on the Volokh Conspiracy.

If nothing else, these reveal the hugely disproportionate weight put on first year performance – before most students have any clue what they might actually want to specialize in (since 1L curriculum is so rigidly prescribed).

If we could wait until later in the fall or even, imagine, after second year/first semester students might have had a fighting chance to begin to figure out what they really want to do.  Using myself as an example, I didn’t take any securities law until my 2L year, yet I ended up being a securities lawyer (and by and large loving it).  Wouldn’t it have been useful for me – and my potential firm employer – to know of my interest?



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