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December 11, 2015

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Michael Risch

"Some comments here and on other websites intimate that law schools should feel free to admit any student willing to pay tuition--perhaps with a bit of disclosure about risks of bar failure."

This seems an awful lot like a straw person argument to me. Can you point me to such a comment/post? I've read an awful lot in this area and never seen such an argument, though I'm willing to concede that I might have missed them.

What I HAVE seen is a real, deeply contentious disagreement about what it is that 501(b) requires and just what the odds of bar passage must be (and how we can tell what those odds are in advance) in order to satisfy this rule and/or be "fair" or "transparent" to students. I look forward to seeing your views on this matter in future posts.

Anonx

Do professionals have an obligation to interfere in the businesses of other professionals? Why don't we trust the faculty at Whittier or FCL to defend professional standards? Perhaps OSU has so few problems the faculty there feel the need to wander to warmer climes and cause trouble?

when

My impression is that professionals regulate one another. That's what bar associations do, that's what the ABA section of legal education is supposed to do. That's what accreditation is supposed to do. "Anonx's" (but we all know who is is from his previous comment) comment is nonsensical.

Deborah Merritt

Michael, I think you may have missed the op-ed by Noah Feldman, Harvard's Felix Frankfurter Professor of Law; I've updated the post to link to his op-ed. Others have made similar comments, but Feldman's is probably the most eloquent and direct.

To quote some bits from Feldman: "Who should decide whether you get to go to law school? It seems pretty clear to me that if you can do the work, the decision to take a risk on legal education should be yours. . . . Those who think law schools shouldn't admit students with low test scores are reflecting, whether they know it or not, a culture of paternalism that verges on infantilization."

I wish I'd remembered this language before I made the post--if I had, I would have titled the post "Paternalism or Professionalism." That contrast gets to the crux of the matter, not just on this issue but on a host of questions surrounding the legal profession.

Some people would say that a doctor who refuses to prescribe medication that a patient seeks is acting paternalistically; some might say the same about a lawyer who refuses to file a lawsuit she deems frivolous. But the concept of professionalism clearly embraces a form of paternalism: the professional acts in another person's interest because the professional has expertise that the other lacks. This includes legal educators, who know more about an applicant's potential for success in law school and on the bar exam than the applicant does.

Anyway, enjoy the Feldman piece. It nicely establishes the paternalism-or-professionalism question.

Deborah Merritt

Anonx, professionals absolutely "have an obligation to interfere in the businesses of other professionals." That's part of what distinguishes a profession from a business.

Dave Babbe

Anonx: I don't know what you mean by "interfere in the business of other professionals," but legal and medical professionals generally do have an obligation to report violations of ethical and professional standards by their peers. See e.g. ABA Model Rule 8.3; AMA Opinion 9.031.

Sy Ablelman

It would appear that law schools can't regulate themselves with a few exceptions. You guys make some good points, but the language is sort of complex for a simpleton schmoo solo attorney like me. Let me hit you with numbers. Illinois has 92,000 registered lawyers. My unemployed lawyer buddy out over 30 years attended a jobs networking event in an upscale suburb. There were a total of five attorneys there among a group of fifteen to twenty people, most only with some college. My Schedule C has stood at 37-40K for the last few years. I can't get out of the rut no matter how hard I hustle and network.

Anonx

Precisely so join the ABA fer crissakes and quit this random belly aching which is obviously aimed at weaker schools for god know what reason.

when

Ok. Brian Leiter doesn't like Paul Campos and has nothing to contribute to conversations about legal education. Profound revelations. Everyone can go back to ignoring him again. But nice to know you're still alive and kicking over there, BL.

[M][@][c][K]

"separating the student who will struggle but succeed from the one who is doomed to fail" and "charging law school tuition to students who will fail the bar."

At the heart of this problem is moral hazard. It really is not that difficult to identify law students who will not succeed as lawyers (and those from the unsuccessful as lawyers who nonetheless can flee to the professoriate.) It is not that the lower ranked schools cannot do this, it is that they do not want to. Making the choice to reject such a student means giving up $120,000 to $150,000 in tuition. Worse still, telling such an applicant in terms he/she will understand that they have little chance of succeeding might also mean forgoing that tuition money.

What the debate over the last 3+ years has revealed is that appealing to principle, morality, the public interest - at least as far as law schools are concerned is a "mugs game." The vast majority of law professors seem willing to hide from the issue, the next large group defend the indefensible (with an near complete absence of ethics) - and when that fails play the race card - and a small number ask hard questions (and find themselves stalked by various people, including Brian "my wife is a lawyer.")

Probably the only solution will be changes to the Federal student loan program. The problem is that such changes will almost certainly be very far reaching and involve not change for law schools, but outright catastrophe. But therein lies the issue - law schools and the ABA can change themselves voluntarily, but if they don't, the growing scandal as bar failures soar, stories of impoverished graduates circulate will lead to change.

Hmmm

I used to think "scam" was a hyperbolic label for the problem, but the nonsense about the lack of link between lsat performance and bar passage is astounding. Suggestion that the worst schools, who until recently were selective, now should be celebrated for enrolling minority racial groups is shameful. Any data blurb that is not fully awful, is cheered by the insiders as though nothing is wrong with legal Ed.

Much is good about the profession, and there are things to like about law school. There are many problems with both in 2015. Ask any practicing lawyer in any firm of less than 10 people and you will learn that the field is glutted and it is a struggle for good and experienced lawyers to earn $50k without benefits. (There is no shortage of people who want free legal advice, though). This unfortunately is not hyperbole. It is that bad for practicing lawyers now. No one in legal academia dares to mention it, but the bar associations sure do. For all the talk of the coming boomer retirements, let me inform you how it works in small law. 70 year old practioners merely "cut back" and cherry pick easy referrals or pi cases. They work until 80, making $25k per year doing it. They stay on bar committees or on the bench. There is not a lot of turnover.

I'd venture a guess that all but a handful of profs would admit in hushed voice that the aggregate output of American law schools from 2005 to 2015 was too high. Few of them entered mr Simkovic's data set, and most of them still are with us. Why, pray tell, should the bar tolerate income based repayment that effectively subsidizes the cost of entering a glutted market? Why should the quality schools tolerate the brand damage and problems brought by the elimination of academic selectivity that pumps objective worse graduates into a glutted field?

[M][@][c][K]

Hmmmm,

Boomer retirements is one of the fantasies that law school boosters think will rescue the recent graduates. However, this is based on the presumption that many boomers can afford to retire - which for many lawyers in private small and mid-law practice is simply not the case. Nothing I think illustrates the gap in awareness and understanding of so many law professors of the profession as this issue. If you are a tenured law professor you are almost always part of a pension plan, TIAA-CREF or some other such scheme; Federal Judges have a similarly generous pension system where they get to retire on full salary; BigLaw partners (who law professors fondly imagine they would have been) appear to enjoy a decade or two of solid earnings - and it is easy to assume that this happy situation applies to all lawyers.

It does not. Most lawyers in small and mid-law are entirely responsible for their pension arrangements - if they want more than social security, they need to work it out themselves. The problem is that most of the baby boomers who are lawyers never attained that sort of savings - it's often not that they don't want to retire, but that they can't. As a group those lawyers also offer much more value to clients, experience being important in the profession.

And that leads to the other issue that law professors don't seem to get - if a graduate fails to launch within the year after graduation, who is not in an associate position, clerking, in house or in government or a PDs office. Someone who has not been employed in some capacity as a lawyer 1 year after graduating is almost certainly out of the profession; by 18 months the situation is even worse, 2 years out it is pretty hopeless. Anyone who thinks that something is going to soak up the 2005-2014 not-legally-employed graduates simply does not understand the profession. This is a depressing reality - if the JD does not launch in the 12 months after graduation they won't.

So waiting for the boomers to retire - well, it will not create that much demand; you'd be better to wait for them to die or become (very) obviously senile. But even then, that will create small gaps of opportunity for new graduates. It is more lily though that all it will do is raise incomes for some of those in the profession, allow them to bill more work.

anon

Claims such as the "boomer retirements will free up jobs one" is yet further evidence that many are out of touch with the realities of the legal profession.

Sy Ablelman

The big claim is UNDERSERVED. To bolster that claim, academics cite to Pro Se Litigants at court houses. First, us neighborhood Solos have represented the UNDERSERVED for years now. We are the bulwark of the law to ordinary folks. We represent their kids in Juvenile Court, Dad with his DUI and Mom on her soft tissue rear ender. Second, the Pro Se Litigants are typically folks who demand FREE legal representation. (I will appear in court for as little as $100) They tend to be oppositional with anger management issues and many are adherents of the Sovereign Citizen Movement. Still others are waiting for overwhelmed prosecutors (gub'mints not hiring is a related issue) to "drop the charges."

Bernie Burk

Deborah,

Thank you for another thoughtful and responsibly nuanced post about some difficult topics. A couple of perspectives drawing on the post and some comments:

Mike Risch, It's been awhile since any vocal commentator took the "caveat emptor" approach to law school, but Deborah is right that it has in fact been a viewpoint expressed as this debate evolved (by a small minority of people with big enough soapboxes to ensure they were heard, the cited Op-Ed being an example).

One way of looking at the problem is to say that if law school administrators insist on marketing law degrees with limited or no regard for the prospective student's (that is, the consumer's) need for or prospects of achieving the degree, they should expect to be regulated far more aggressively, given the asymmetry of knowledge, sophistication and judgment between seller and buyer (and the tendency of the consumers to make bad decisions even on good information because of cognitive biases such as the optimism bias). Or as I put it in a post some time ago, "if you behave like a door-to-door encyclopedia salesman, you should expect to be treated like one."

But it's important to bear in mind that, for the time being, the "paternalism vs. professionalism" decision has been made by the incumbent regulator, and the neoclassical libertarian view is out. ABA Standard 501 doesn't allow law schools to leave the decision whether a prospective student should risk the investment of three years and six figures to the student alone. That could change, of course, but the great weight in the debate favors imposing duties of greater "professionalism" on admissions officers, and requiring them to turn away more candidates with more self-esteem than judgment and money to burn.

MacK--with all respect, you're wrong when you say "it really is not that difficult to identify law students who will not succeed as lawyers." When you make that judgment at the margin--which is where it is usually made--it is VERY difficult to pick out the prospective students who will struggle through law school and barely pass a bar exam from those who barely won't. Now, you may be saying that we should deny admission to law school to anyone who will not excel and find themselves in a highly lucrative and complex practice of the kind you enjoy. You're welcome to that view if you want it, but it sure isn't mine, and it would exclude about 80% of those currently make a perfectly honorable living competently practicing law in all kinds of environments quite different from yours.

Deborah is undoubtedly correct that, even if you are focused on the "right" admissions question, no matter how hard and faithfully you try you will get that judgment wrong sometimes. Some of your matriculants won't finish, and some of your graduates won't pass the bar. That's true at even the most elite and selective institutions; and it's true in greater measure at schools focusing on the part of the applicant distribution where those judgments are much tougher. The problem is that, at some law schools today--despite those institutions' protests to the contrary--the "right" admissions question is not the question that's really being asked.

My overall point this would be a very different debate if we were really discussing better ways to make fine distinctions between barely adequate candidates and barely inadequate candidates. There are lots of law schools for which this is essentially not an issue (elite and near-elite ones for the most part), and lots more law schools for which this very much is the issue, but they are genuinely trying to do it as well as they can, and achieving a reasonable measure of success. But there are a number of law schools that claim they're making this judgment but (judging from their results) are not, or are doing so quite incompetently, and some who may not even be trying to make that judgment, whatever they publicly protest. It's this group--which I would characterize as a significant minority--that is driving and at the same time skewing this debate.

Bernie

Michael Risch

Deborah - I read that op-ed when it came out. I guess I don't think it says what you think it says. Even the quote you put in your comment: "if you can do the work" implies that this is a debate about whether a particular student will succeed. Also: "If all law students were passing the bar, it would be a sign that law schools weren't taking a chance on students at the margin of the capacity to succeed."

So, I get that you disagree with this philosophy of education, and that it's costly for students (especially those who fail or who can't get a job). I'm not denying the debate about that or even saying I disagree with your viewpoint on it. But I do take issue with the broad brush that somehow you or LST or anyone else knows what the right LSAT number is any anyone who disagrees with it must simply be in it for the money. This is what the debate is about.

terry malloy

@michael risch,

You really have to stand on one foot and squint your eyes to not read cavaet emptor in that op ed.

As for the money. . . so. . . are you saying that infilaw is not, at its core, in it for the money? They are 'for-profit,' which i understand to mean 'in it for the money.' is there some other interpretation of their mission that I'm missing/?

Deborah Merritt

Michael, I will be posting soon about how I would use the LSAT figures compiled by LST. I don't think the debate is about identifying a "right" LSAT score and then saying schools with x number of students scoring below that level are just in it for the money. Some critics of LST have framed the debate that way, but it's not the way I see either the LST report or the larger ethical issues.

Instead, I see it this way: When a school suddenly starts admitting 25% or more of its class with LSAT scores that put those students at very high risk of failing the bar, and that shift occurs in response to falling applications and budget challenges, that combination (in my mind) requires further investigation of the school's approach. Does the school have other indicators with a demonstrated record of predicting success? Is it applying those indicators individually to applicants? Are there special academic support programs with a record of success for students with low predictors? Did the faculty engage in discussion of the risks faced by these students before deciding to admit them? Was there considered weighing of the pros and cons, or just a move to fill the class with the next available students?

As I've tried to point out in my first two posts, all professionals have to make judgments that implicate their self-interest along with the interests of others. We have special duties to favor the latter interests, and we should have processes for assuring that we do that. That's what I think the debate is about.

Anon

"I don't think the debate is about identifying a "right" LSAT score and then saying schools with x number of students scoring below that level are just in it for the money. Some critics of LST have framed the debate that way...."

Actually, LST (and certainly LST's most vocal supporters and board members) has indeed framed it that way themselves. They've identified what they think is the "right" LSAT score (above a 150) and then repeatedly stated that schools admitting students with scores below that are reprehensible and unethical because their motivations are venal. I didn't think they were being particularly shy about making those points. Perhaps they're even right, but I don't think we should act as if they haven't made those points.

Kyle McEntee

Anon, that is not a fair or accurate characterization of what I have said, or anybody associated with LST for that matter. Here are some excerpts from the report:

"The framework represents only a starting point for assessing the risk of bar failure. A student with a low LSAT score but very high undergraduate GPA, for example, has less risk of failing the bar than a student with the same LSAT score and a very low UGPA. Some law schools have also been more successful than others in helping students with low LSAT scores succeed on the bar exam. Where the student takes the bar exam matters as well.

"On average, however, students with LSAT test scores in each band are more likely to experience academic attrition and/or bar exam failure than students in the next higher band. If a school dips into lower LSAT bands to fill its class, the risk of bar failure at that school increases. This framework, therefore, offers a useful tool for analyzing which schools are enrolling a significant number of students who face genuine risk of not finishing school or passing the bar. Importantly, this framework shows when relative change in incoming student credentials matters.

...

"An at-risk student who takes an 'easy' bar exam has a better chance of passing the bar than one who takes the exam in a more demanding state. Conversely, even lower risk students may face a significant chance of failing the California bar, which is consistently rated as one of the hardest in the nation. Since many schools feed a regional market, the same trends affect schools.

...

"At least on average, serious risk law schools did not mitigate the decline in LSAT with their GPA profiles. But as we mention above, some schools did increase GPA at one or more quartile marks."


------

There's plenty more:lawschooltransparency.com/reform/projects/investigations/2015/analysis/

The point is that we have not called for action against all 74 schools. Those are just the schools whose 25th percentile student is in the high risk category. It's not about drawing a hard line. It's about using this as a starting point to figure out which schools are exploitative, and which are taking more modest risks.

If you can point to a place where we have identified 150 as the right score threshold, please share. I will be happy to clarify ambiguity if needed.

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