Search the Lounge

« The Resurrection of Nat Turner | Main | A CFPB Poison Pill? »

February 08, 2013

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00e54f871a9c8833017d40d4012d970c

Listed below are links to weblogs that reference The Changing Law School Learning Experience:

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

anon

What you are describing is archetypal of what's wrong with ABA accreditation.

There's almost no evidence of what works in legal education, unlike K-12 for example. While it certainly seems like experiential learning is a good thing, the ABA can't know that 1) it is a good thing and 2) it is worth the cost.

ABA accreditation confuses what is good with what should be required. Even without evidence, I'll concede a larger library is better than a smaller one. But, does that mean the ABA should require a larger library? Does $1 spent at the library return a benefit larger than $1 on clinics?

Since the ABA doesn't know (and probably can't know), accreditation should not dictate how legal education is provided. Instead, the ABA should set a bar passage standard and let schools decide how to meet that.

P.S. I don't like writing a post this critical. You seem to have the best intentions and I enjoy your blogging. But, the ABA accreditation process is nuts.

Concerned Lawyer

I am skeptical of the oft-repeated statement that legal education does not sufficiently prepare students for practice. It often seems like a cop-out for asking more difficult questions about what truly ails legal education.

As you seem to acknowledge, employers -- who are ostensibly grousing about graduates not being practice-prepared -- are not moving toward competency-based hiring. Neither the ABA nor law school faculty are in a position to get employers to change their mind. We should, I think, study employer behavior more closely. I would suggest a data-driven study that uses widely available data (hat tip to the ABA for that) identifying schools that are producing a high percentage of students who are not securing full-time bar-passage-required work after graduation. Is there a statistical correlation between the poor-employment outcome schools and the availability of clinical education? More to the point, is there a statistical correlation between the poor-employment outcome students and whether those students took a clinic?

I believe that study is important because of the crisis in the cost of legal education and the fact that clinical education is a contributor to the rising costs of law school in real dollars. To illustrate this point, consider Michigan law school. In 1985, the cost of legal education at that institution, adjusted for inflation, was $15,438. In 2011, it was $39,496. I am sure that Michigan has plenty of fine clinics and I am sure that most Michigan students will find a way to pay for their education over the course of their careers. But substitute a third-tier law school for Michigan, where the cost of legal education is not tremendously lower but where the employment prospects are bleak and ask yourself: do we really want to force this school to offer (or retain) a costly clinic?

Concerned Lawyer

I should add that I believe your proposal for establishing and measuring educational outcomes could be a good thing. That said, a vague assessment, would in practice devolve into no assessment at all. A concrete assessment, such as one that measured employment outcomes for graduates, would probably be a useful tool for forcing faculty at a third tier school to focus on the issue that is most important to their students. I am not sure what kind of rigorous assessment a top-tier school would want to put in place but it might not be a bad exercise for the faculty to undertake.

David Yellen

Anon and Concerned,
Thanks for your thoughtful comments. I believe that the ABA Standards are far too intrusive. I will elaborate in a future post.

MacK

I think that the ABA standards need to be amended with respect to law schools to provide that law schools shall treat their students as if they were a lawyers clients - that they have a fiduciary duty at all times to act in the best interests of their students, that they have a duty of candor towards their students.

I cannot describe the nausea that the defences that law schools have presented in some of the scam cases has led me to feel - that students being "informed consumers" presenting false information by the law school was harmless. No lawyer would get away with the arguments that law schools have presented before a state licensing board - law schools should not either.

We need to reform the accreditation standards to impose a brutally severe ethical regime on law schools relations with their students, including their status through financial aid offices as loan originators/agents - and we need to impose the same sort of professional death on deans and professors that is imposed on lawyers - breaches of the ethics rules will result in a bar on any ABA Accredited school employing someone in any capacity as well as a loss of any right to a law license.

I think law schools deans need to see the situation - they stand disgraced at this point. It is time for steps to be taken to make it clear - ethics rules do apply to law schools and their administrations and faculty. That is the biggest change the accreditation rules needs. That is the most important thing to restore confidence.


anons

"I think that the ABA standards need to be amended with respect to law schools to provide that law schools shall treat their students as if they were a lawyers clients - that they have a fiduciary duty at all times to act in the best interests of their students, that they have a duty of candor towards their students."

This idea is certainly appealing in principle. However, shouldn't law schools be concerned with constituencies other than just their students? For example, shouldn't law schools at least act somewhat as gatekeepers to the profession in order the protect the quality of legal representation? This strikes me as inconsistent with the notion of law schools as fiduciaries.

The post above would also seem to suggest that law schools should have fiduciary duties to potential and prospective law students. But lawyers have no such duties to potential clients and only limited ones to prospective clients.

MacK

Frankly, anon that is horsepuckey-

First, all lawyers have a duty as officers of the court as well as to their clients. I see no conflict between the idea that law schools have a duty to be honest with law students and to act as gatekeepers to the profession. If someone is not suited to the practice of law, then the law school should say so. The situation is similar to that of a lawyer preventing fraud on the court.

Moreover, we do have duties to clients and to avoid actions that have a negative impact on the reputation of the profession. Lawyers have been disciplined for holding themselves out as having expertise they do not possess.

So look to rule 71. of the DC rules (based on ABA standards.)

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
(2) contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.

[1] This rule governs all communications about a lawyer’s services, including advertising. It is especially important that statements about a lawyer or the lawyer’s services be accurate, since many members of the public lack detailed knowledge of legal matters. Certain advertisements such as those that describe the amount of a damage award, the lawyer’s record in obtaining favorable verdicts, or those containing client endorsements, unless suitably qualified, have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others. Advertisements comparing the lawyer’s services with those of other lawyers are false or misleading if the claims made cannot be substantiated.

It seems to me that analogous rules should apply to law schools. Seriously, it is time to crucify a dean or two, pour encourager les autres.

anons

My understanding of your argument was that law schools should act as fiduciaries to their students (and perhaps potential and prospective students). This encompasses far more than candor. What does always acting in the students' interest mean in practical terms? And do law schools act on the basis of their articulated interests even those interests might be at odds with greater societal interests?

Stop the madness

At Anons 5:25:

"For example, shouldn't law schools at least act somewhat as gatekeepers to the profession in order the protect the quality of legal representation? This strikes me as inconsistent with the notion of law schools as fiduciaries."

Your argument being: we need to protect the public, because they are part of the law school constituency, and if we graduate bad lawyers we harm them because the bad lawyers would give them bad representation. Owing a fiduciary duty to our students and prospective students would prohibit us from weeding out the bad eggs.

Counter-(1) law schools fail miserably at training lawyers to be lawyers, so if you believe that the public is your constituency, you are failing them by not training lawyers to properly represent it; (2) law schools graduate far too many lawyers, which dilutes the value of a JD degree, floods the market with desperate lawyers (who are poorly trained), which inevitably results in a race to the bottom approach of practicing and obtaining/retaining clients (trust me, I live in Cooleyville, USA); (3) law schools (higher ed in general, too) suck blood out of the public because a large number of law students are currently in default on their student loans, and a good deal of these students loans will be eventually erased under IBR, placing the burden squarely on the taxpayers (i.e. the public, i.e. your constituency). Of course, this assumes the students in default or on IBR don't off themselves in the interim or that Congress doesn't do away with IBR. I wouldn't count on either; (4) let's see how many bad eggs you weed out now that the number of applicants has dropped so low; when the **** hits the fan--and it will--let's see if the profs and deans choose between protecting their precious constituency from terrible lawyers or raking in the federal dollars that these poor (below average) students bring in.

And in the end, you don't need to owe a fiduciary duty to someone--or some group--to disclose important information to them or to refrain from misleading them. A fiduciary duty is merely a legal obligation. And frankly, it has already been decided in the courts that you all can do basically whatever your want because your claims are to ridiculous to be relied upon by reasonable people. The fact that you would argue against the imposition of a fiduciary duty betrays your obvious intent to act in a manner inconsistent with such a duty.

How about just doing the right thing because it's right?

Stop the madness

"And do law schools act on the basis of their articulated interests even those interests might be at odds with greater societal interests?"

Please describe to us all: what is the "greater societal interest" that law schools are serving? How does graduating 2X the amount of students than can actually find work serve this great societal intersts. How does this great societal interest outweigh the duty owed to former students, current students, and prospective students? Is there ANY duty owed by law schools--legal, moral, fiduciary. or otherwise--due to the fact that they pay your salaries? If so, what is it?

John Thompson

Employers may say they expect new lawyers to being able to "hit the ground running," but I don't see them really constructing their hiring practices on that basis. There is some movement towards competency based hiring, but many employers continue to rely very heavily on school status and grades in screening applicants."

Maybe this is because employers have no faith in law schools' ability to make a more finished product of their graduates than employers are used to seeing, or because employers see law schools primarily as sorting boxes for certain quantifiable measures of talent, e.g., Justice Antonin Scalia (http://www.abajournal.com/news/article/justice_scalia_tells_law_student_why_she_wont_be_his_law_clerk/). Certainly, your bigger firms won't pay a lot of attention.

In 2011, 1.6% of your school's graduates reported jobs as an Article III clerk, and 9.2% reported jobs working as associates in firms of more than 100 attorneys. As a useful contrast, about 31% of your school's 2011 graduates were working in firms of 25 or fewer attorneys, and 33% of them were counted by Law School Transparency as "under-employed" (i.e., in short-term or part-time jobs, pursuing other degrees, and/or unemployed and seeking). If you got a billion-dollar grant to hire Larry Tribe to teach constitutional law and John Paul Stevens to teach a seminar on Supreme Court jurisprudence, you would be unlikely to move the needle on those statistics by a statistically significant amount.

This is not to pick on Loyola/Chicago. There are a lot more schools like yours than Harvard or Yale. Few of your peers are thinking about how to serve a generation of law graduates who will have to learn it for themselves without much in the way of mentorship. Would it really be so crazy to focus on the needs of the majority of graduates, instead of the graduates you wish the majority could be?

lolzskoolzbclozing

Curriculum reform doesn't get at the underlying issue of a massive glut of attorneys: close to 1/2 of recent grads end up in the proverbial breadline. Word is out and the fresh-scrubbed faces will cease applying in appreciable numbers to your institutions until the law job economy turns around (assuming it ever does). It seem that in the near term, the changing law school experience undoubtedly will entail a scaling down: fewer law schools, smaller faculties, a paring down rather than a ramping up of programs. But this shouldn't be news to you.

Winter is coming.

MacK

"My understanding of your argument was that law schools should act as fiduciaries to their students (and perhaps potential and prospective students). This encompasses far more than candor. What does always acting in the students' interest mean in practical terms? And do law schools act on the basis of their articulated interests even those interests might be at odds with greater societal interests?"

To be blunt, I think your position is that we should have no duties.

The legal profession (as opposed preening ethics professors) has been wrestling with the different imperatives present in the lawyer and entrepreneur and fiduciary since almost the inception of ethics rules. It has dealt with the problem. Law schools have demonstrated an utter lack of any sense of duty to anyone, the profession, their students, the government as guarantor of loans. That is has taken the view o legal academia to a point where the automatic reaction to your post was to see you with a headbubble "ethics, they want ethics rules to aply to us, quick thing of an argument, any argument - sheeesh"

I just demonstrated by reference to existing ethics rules that something you though was not a breach for a lawyer, in fact WAS! Your response - to whine "but it's complicated"

No it is not. Enforce the rules, subject a few exemplary deans to professional death - no law school may associate with them (as often is the case for a disbarred lawyer) and disbar them. Wash, repeat until the legal academy "gets it." The games are over... We just saw the Dean of Denver Law publish a disgraceful article with cooked numbers - start with him. Then the Dean of Cooley, Vanderbilt "wash, repeat" Ban, disbar - professional death. It happens to lawyers - why should it not happen to law school deans and professors?

MacK

Autocorrect is a very annoying feature

Felange

i think what MacK is missing in his analogy is that lawyers are not forced to reveal how many of their clients had successful outcomes in the past, and then sued or disciplined if they reveal that information in the same format and using the same standards as every other lawyer, but that someone thinks the industry standard is deceptive. A lawyer who has lost 100 cases in a row is not disciplined because he failed to reveal that fact to his 101st client. No, the disciplinary rules allow a lawyer to remain silent about past outcomes. So you are proposing a much, much higher standard for law schools than for lawyers.

MacK

No I am not - I am proposing for example that law schools may not present "the [law school's] record in obtaining favorable [employment outcomes], or those containing [alumni] endorsements, unless suitably qualified [by for example saying that this outcome was only for 1, 5 or 10 or a minority of a class], have a capacity to mislead by creating an unjustified expectation that similar results can be obtained for others." Lawyers are generally prohibited form cherry picking successes to give the impression that they win all their cases - the rule is that you do not get to use good outcomes unless you admit bad ones.

That Felange - who I presume is a law professor does not know and understand this rule illustrates why the profession thinks most law professors are unfit to teach.

So for example "an assertion about the lawyer or the lawyer’s services that cannot be substantiated" would include that the median pay for graduates is $160,000, or holding forth the sole graduate to have obtained such a job in a given year as in that category, or not mentioning that many graduates did not report their employment outcomes, or counting interning for the school as employed at 9 months, etc. Many law schools have done these things.

We need to be brutal with the law schools. We should hold them to a higher standard than lawyers - but not we hold them to no standard at all - which is why some of the scam-suits have been dismissed.

I am not kidding when I say that we need professional death to fall on some current deans and administrators and the odd faculty member to - as in no law school may employ and they lose their law licenses. That is the only thing that will restore confidence.

However, what I see in responses here is "umm .... hang on a second .. let's fond a quibble ... lets come up with nonsensical arguments ... no way ... ethics - we teach it, don't make us practice it. The ABA needs to impose professional death on several law schools deans and administrators - there really is no alternative."

Lawyers would not have the remotest chance of getting away with what law schools have done over the last decade. Why should law schools, who are supposed to train lawyers be a special exception. Hell, lawyers need to take an ethics exam - lets have one for the entire law school faculty - a series of pop-quizes - fail - tenure goes.

Anon-X

The New York Appellate Division has already reminded law schools of their duty of candor to law students but they said it was a moral duty not a legal one and they did so in the context of dismissing any idea that law schools had any responsibility for misleading students about job prospects. Students, too, must engage in appropriate diligence to determine potential outcomes.

BoredJD

Anon X- I'm surprised you don't read the first half of that sentence as a direct contradiction of the second half. Even if the "industry standard" (designed by the accreditation body controlled by lower ranked law school deans) is misleading and deceptive does not give a school license to present numbers they know are misleading and deceptive.

MacK

Anon-X

And you find the statement you quoted satisfactory - that being honest with students is "a moral duty not a legal one and they did so in the context of dismissing any idea that law schools had any responsibility for misleading students about job prospects." Are you a dean or professor.

I want the rules to state that law schools have a duty to present only honest information - and discipline to flow that can be a professional death. Moreover, I think it needs to be a strict liability rule - not "oops" arguments. False information, up on ethics charges, no excuses.

I do find it remarkable that so many academics are so pleased with "a moral duty not a legal one," that they are enthused that a law school gets to make that argument - that they think it is just jim-dandy. Wow!

The comments to this entry are closed.

Bloggers Emereti

Blog powered by Typepad