The Faculty Lounge

Proliferation of Pre-JD Master’s Programs Casts Doubt on the Value of “JD Advantaged” Employment

Much in the news the last few days are reports of a growing number of law schools offering one-year full-time or two-year part-time pre-JD master’s degrees in law.  Apparently nearly 30 institutions offer or soon will offer a degree of this kind.  Coverage in the National Law Journal can be found here; Wall St. Journal (subscr. req’d) here; Above the Law here.  The degree is variously denominated a “Master in Legal Studies” (MLS), “Master of Studies in Law” (MSL), “Juris Master” (JM), “Master of Jurisprudence” (MJ) or “Master of Science in Legal Studies” (MS). 

So many acronyms.  Is this just another case of More Universities that Like to Collect Tuition (MULCT)?  Let’s look at the early evidence. 

The NLJ quotes the view of one senior faculty member at Indiana University at Indianapolis that “[t]his is about finding a different pool of potential students.”  While this is a refreshingly candid reflection on why the program might be good for law schools, particularly those with rapidly diminishing JD enrollments, it does raise certain questions about the degree’s utility for potential students.

On this question, the NLJ quotes Frank Wu, dean at UC Hastings, and in my own opinion one of the genuinely thoughtful, constructive and creative law-school administrators navigating these difficult times:

“Many lawyers work in human resources, but you don't have to have a J.D.  It’s the same thing with compliance officers in banks and hospitals. There are all these jobs in law — criminal justice jobs, law firm management jobs, consultants — where a J.D. makes no sense but some legal training is useful.”

Fair enough.  But wait a second.  Those familiar with the dreary tidings that the ABA and NALP employment outcome figures have borne in recent years know that these days law graduates’ reportable employment successes come in two principal categories—positions that require a law license; and “JD Advantage” positions that do not require a law license but for which the law degree provides “a demonstrable advantage in obtaining or performing the job.”  The ABA Section on Legal Education defines “JD Advantage” positions in part like this:

“A position in this category is one for which . . . the JD provided a demonstrable advantage in obtaining or performing the job, but itself does not require bar passage, an active law license, or involve practicing law.  Examples of positions for which a JD is an advantage include a corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, and accountant.  Also included might be jobs in personnel or human resources, jobs with investment banks, jobs with consulting firms, jobs doing compliance work in business and industry, jobs in law firm professional development, and jobs in law school career services offices, admissions offices, or other law school administrative offices.  Doctors or nurses who plan to work in a litigation, insurance, or risk management setting, or as expert witnesses, would fall into this category, as would journalists and teachers (in a higher education setting) of law and law related topics.” 

These “JD Advantage” jobs  are counted (at least in part) as employment successes by US News in determining the employment component of its rankings, and are touted by various Panglosses (like this one) and Polyannas (e.g., the second comment to this post) in the legal academy as a consummation devoutly to be wished and an independently sufficient justification to seek a JD.  But the very positions offered to justify a one-year master’s “where a J.D. makes no sense”—“human resources,” “compliance officers,” ”criminal justice jobs,” “consultants”—are specifically enumerated examples of “JD Advantage” positions in the ABA definition.  Oops.

Of course, this doesn’t prove that there is no position not requiring a law license for which a JD provides advantages so irreplaceably substantial that it justifies three years’ time and tuition.  Undoubtedly some such positions exist.  But what it strongly suggests is that many of the jobs conventionally offered as examples of such positions really aren’t, and that overall there are vastly fewer genuinely JD-Advantaged positions than some law schools’ self-reporting or a sensible definition of the category might imply.  Put slightly differently, the broader the population for which a one-year master’s degree makes sense, the narrower the range of “JD Advantaged” positions for which pursuit of a JD provides any cost-justified advantage.  This also suggests that this novel marketing tactic may prove self-defeating, as the wider availability of one-year masters’ programs persuades larger numbers of potential JD seekers that there is a shorter, cheaper path to a range of law-related work.

Those of you who are kind enough to follow my posts on this site will recall my repeated insistence that What Matters Most right now is that there are substantially more seats in law schools than there are law jobs for graduates.  (E.g., here, here and here.)  How many of you seriously believe that the solution to this problem is to find more butts—that “[t]his is about finding a different pool of potential students”?

If you think that the solution to the legal academy’s excess supply is to develop “products” that can be “marketed” to a broader range of “consumers,” then the law-school scam brigade is right that you should be regarded, and treated, like a door-to-door encyclopedia salesman.  If, on the other hand, you view the master’s degree as an innovation designed to regulate the proportionality of the cost and extent of legal education to its utility in particular circumstances (and from his comments I would put Dean Wu in this camp), you may be on to the beginning of something interesting. 

--Bernie

Cost of a Legal Education — Accreditation Overhead

    There has been a lot of discussion recently, both in the Lounge and other less important places ☺, about the costs of legal education. Obviously, both market forces and the pursuit of a higher U.S. News ranking contribute significantly to raising the cost of providing a legal education. Likewise, qualifying for either ABA or AALS accreditation have significant costs whether in the form of needing significantly investments in faculty size and type, in the operation of multiple clinics, in expecting more from each faculty member than just teaching, or in the other expenses directly associated with delivering a legal education of the type mandated by the ABA and AALS. To date, however, a smaller, but still significant cost imposed on law schools has not been considered — the cost of complying with the ABA’s demands for data about each law school’s program. In other words, the cost of establishing to the satisfaction of the ABA that the school satisfies the ABA’s Standards is expensive.

    This is a picture of the statistical data we have provided to the ABA for our initial application and our limited site visit:




In case you cannot see the ruler clearly, this is 9½ inches of data. To a certain extent, if you measure the quantity of data in the inches of paper necessary to report it, you know that it is massive.

    Effectively, to generate this data, one full-time, mid-level administrative employee-equivalent has been needed in each of the last two years (and will be needed for the foreseeable future). In fact, this probably underestimates the amount of time needed to generate the data as the rest of us, from the Dean on down, have had to spend weeks worth of time on the project. You have to look up from the Dean’s Office, too, to capture the efforts of the various university-level administrators who were involved. If you put all of this time together, this has been the functional equivalent of dropping our enrollment by three or four students each year. Please understand that this is not a cost to run an accredited institution, it is merely the cost of trying to establish that you are running one.

    To focus on just one statistic, consider the way the ABA measures the bar passage rate of each law school. The goal is to determine exactly how many students both took and past the bar. Consequently, each school has to spend a lot of time and effort to track down how each student did. Of course, this is not a local matter as students take bar examinations throughout the country. Some jurisdictions make obtaining this data an easy process, but many do not. The school must follow up with the other jurisdictions or, worse, with the individual students. Of course a failure to track sufficient students has draconian effects as it becomes impossible to establish compliance with the standards.

    It does not have to be this way. For those of us who do empirical research about the law, we commonly build statistical models for what we are studying. My current research effort, for example, involves patent quality. For the vast majority of patents, there is no direct measurement of quality. Consequently, I will be looking at a variety of other factors that I hope to establish can successfully predicts quality. Bar passage can be handled the same way.

    While it might be nice to have a precise measurement of every student’s performance on the bar examination, we may be able to do as well by just measuring the domestic bar exam. You would think that if a school’s students do well on its home-state’s bar, they would do well elsewhere, too. If, for example, law schools that have an acceptable overall bar passage rate (however the ABA wishes to define this) consistently show a passage rate of X or more on the domestic bar, why not dramatically lower the cost of accreditation compliance by only requiring X to be reported?

    To be fair, I do not know that there is such a relationship, but this is, at a minimum, an easily testable hypothesis. If confirmed, it could dramatically lower the cost of establishing compliance as could other similar statistical measurements.

Why do the Initials Matter so Much?

    Recently, there was a discussion on the IPProfs board about why more IP law professors fail to join the American Intellectual Property Law Association (AIPLA). Most who commented on why they were not members seemed to be concerned with the positions AIPLA has taken on issues arising in IP law, finding that the organization, at best, lacked transparency on how the positions advocated were developed. But for me, the reason I am no longer a member is the requisite for academic membership in AIPLA. To qualify for membership from the academy, you have to teach at an AALS approved institution. In other words, anyone who teaches at an institution that has only ABA or state accreditation is not a “real” IP law professor.

    Of course, the AIPLA is not the only organization that does this. The AALS also has rules that prevent active participation at AALS events if your school is not an AALS member. Many of my colleagues used to be active with the AALS. They were interested in presenting papers and panels at the meeting, but were also willing to do scut work that goes with running an academic organization. With the exclusionary system now in place, faculty from non-AALS schools need not try to present papers as their work is automatically rejected. Even those of us who are willing to roll up our sleeves to do the behind the scenes work are excluded.

    This limitation on participation is unjustifiable. Great scholarship can come from anywhere in the legal academy (or, dare we admit it, from those outside of the academy). As an example, think of Dean Erwin Chemerinsky of U.C. Irvine. If we follow the standards being used by the AALS, he was a great scholar when he was at Duke as it has both ABA and AALS recognition, but when he became the founding Dean at U.C. Irvine, he immediately became worthless as a scholar as it did not have either ABA or AALS accreditation when he joined. Even today, his scholarship is apparently substandard to the AALS as his institution, like my own, is only provisionally approved by the ABA and is years away from being eligible for AALS membership.

    If the AALS (or AIPLA) are intent on being true academic societies, the “no one does it as well as our members” snobbery needs to go (except for the few elected officer positions where membership may be appropriately required). If the AALS is truly a “learned societ[y]” as its web site suggests, it needs to start acting like an academic-based organization  — one that is open to all scholars who produce quality work.

Barry Currier Named New Head Of Accreditation And Legal Education At ABA

The American Bar Association announced today that Barry Currier will be the ABA's new managing director of accreditation and legal education.  This is a new title, replacing the former positionof Consultant on Legal Education.  (Currier currently holds that post on an interim basis.)  

According to the press release, the title change "reflects the increasing importance and scope of the section’s regulatory role. The title change will not affect the variety of activities and programs that the section offers to support the work of law schools and their faculties and administrators."

Currier has a deep and varied history in legal education, having been dean at Cumberland and Concord Law Schools as well as the Deputy Consultant on Legal Education (from 2000-04). Once upon a time he was also a plain-old-law-professor at the University of Florida.  He holds a JD from the University of Southern California.

 

Update: typo in title has been corrected.

Shifting the Burden of Persuasion in Law School Regulatory Change

In my last two posts, I have talked about proposed changes to the regulation of law schools.  In the first, I talked about the possibility of moving some of legal education to the undergraduate level.  In the second, I talked about allowing students to take the bar exam after their second year of law school.

In this post, I want to address some of the practical impediments to achieving change in the system that regulates law schools.  The law school regulation system has two basic parts.  The ABA Section on Legal Education provides national-level accreditation standards.  State bar regulators provide state-level admission standards that law school graduates have to meet to practice law.  The two parts are typically linked together by state bar regulations that require graduation from an ABA accredited school to be admitted to practice.

It is impossible to achieve significant changes in legal education without making changes to this regulatory system.  Any proposed change to the regulatory system, however, would face at least one tremendous obstacle – it is a change, and people - including law school regulators - don’t like change.  The status quo therefore has a built-in advantage.

In some ways this aversion to change is perfectly appropriate – we don’t want to change just for change’s sake.  There are often many proposed changes, and the proposals often conflict with each other.  Many proposed changes are deeply flawed.  We don’t want the process of change to be too easy.  On the other hand, too much aversion to change would lock us into a status quo that is imperfect at best.

I think we could make some tangible progress towards a better system of regulation if the regulators of legal education made a shift in the burden of justifying a regulatory change.  Currently, any regulatory change faces a heavy burden of justification.  If there are any doubts about the proposed change, the status quo stays in place. 

It would be better, I think, if regulators put the status quo to the same searching inquiry that is applied to proposed changes.  Proposed changes are often rejected because of hypothetical harms that could result from their enactment.  The status quo often results in concrete harms.  A good analysis of the status quo against a proposed alternative would measure the advantages and disadvantages of each.  Too often, the analysis never proceeds beyond the hypothetical negatives of the proposed alternative. 

It makes sense to have the initial burden of persuasion on the proponents of change.  If these proponents can show that the current system has substantial problems, then the burden should be shifted.  Perhaps the new burden should not be on the status quo, but at a minimum the burden should no longer be against the change.

Of course, I’m not talking about formal burdens of proof and justification here.  My point is that we should look as hard at the status quo as we do at proposed changes.  If the status quo is flawed, we should not be hesitant to at least try changes. 

Many regulatory changes could be made on a trial basis.  Fear of the unknown is a related obstacle for changes in legal education.  If we could try a proposed alternative on a trial basis, we could then have an informed basis about whether to keep, modify, or scratch the new regulatory approach.

The current system of bar examination timing is an example.  I’ve argued that the current system has serious flaws, and that moving the exam to the second year summer would have a number of advantages.  A state wanting to test the alternative method could try it for a few years.  Arizona recently did just this in allowing students to take the bar exam during their third year of school.  If it works, great.  If it doesn’t, they can reconsider.  Either way, they will have some actual experience to go on, and will not have let inertia prevent them from trying something new.

Keefe Steps Down as Interim Dean at SLU Law

According to various reports (including here, here, and here), Tom Keefe, who was appointed last August to serve as the interim dean at St. Louis University School of Law for the 2012-13 academic year, has resigned from that position.

Last fall, I argued here that Keefe could not legitimately serve as interim dean at SLU Law for three separate reasons: (1) he was maintaining his full-time law practice while serving as interim dean; (2) he was serving as a member of the SLU University Board of Trustees while serving as interim dean; and most importantly (3) the SLU Law faculty played no role in his selection as interim dean.  Apparently, however, Keefe's resignation was not prompted by a concern over violations of basic norms of institutional governance and ABA standards, but instead by complaints regarding a number of offensive comments that he has made.

Several of the comments that Keefe has acknowledged making (or maybe making) are so over the top that I won't reprint them in this post.  But you can read about them here and here.

It is regrettable for the folks at SLU Law (faculty, students, staff, and alumni) that it has come to this.  At the same time, the episode provides a splendid example of how things can go wrong when a university administrator disregards the appropriate role of the faculty regarding a decision of enormous importance to a law school.  The administator in question (SLU President Lawrence Biondi) ought to be taken to task.

Any chance that Tom Keefe will encourage his fellow Trustees to issue Biondi an appropriate reprimand for the poor judgment that Biondi exercised in hiring Keefe as interim dean?

Moving Part of Legal Education to the Undergraduate Level - Advanced Placement for Law Schools

Legal education, and higher education more generally, is facing a cost crisis.  As I will explain in subsequent posts, I’m not sure that the legal industry is facing a long-term shift in employment patterns.  Regardless of patterns in employment outcomes, however, law schools (and other higher education programs) cannot continue to increase real tuition costs at above the rate of inflation.  More broadly, we need to take a hard look at how we can reduce the costs of legal education.

One way of reducing costs would be to move part of legal education to the undergraduate level.  In our current system, students have to pay in full for both their undergraduate and law degrees.  If we could move some of legal to the undergraduate level, we could make graduate legal education less expensive.

In this post, I want to propose a mechanism for moving part of legal education to the undergraduate level.  The heart of the proposal is a set of competency exams that students could take before going to law school.  If a student received a sufficiently high score, the student would get law school credit and would place out of a required law school class.  Think Advanced Placement for law schools.  

The rest of this post is a slightly modified version of a post that I made in 2009 at the PropertyProf blog.  That post had a fairly extensive comment thread that might be of interest to readers of this one.  The ABA appears to be have some interest in considering radical ideas, so it seems like it may be a good time to revisit this issue.

Legal education faces a quandary.  On the one hand, law school costs a lot of money and takes a lot of time.  The tuition that can easily leave students with over $100,000 in debt is the most obvious cost of law school, but the opportunity costs of lost income over three years are also substantial.  On the other hand, a reasonable case can be made that three years is not enough to provide students with a full legal education.  Surprising as this may sound to students grousing about the purported uselessness of the third year of law school, the ABA Out of the Box Committee recently [in 2009] suggested that law school should be four years for regular division students.  As its name suggests, the Out of the Box Committee is designed to make provocative suggestions.  The Committee was cognizant of the problem of cost, but argued that three years is not sufficient time to fully prepare law students for the practice of law.  What you think of the idea probably turns on what you think the purpose of law school should be.  To be clear, an additional year of law school does not necessarily mean another year of doctrinal coursework.  It could be argued that four years are needed to provide law students with both the doctrinal knowledge and the skills training necessary to thrive as a practicing lawyer.  Think medical school, and you get the basic idea.

Even if you buy the Out of the Box Committee’s basic premise, concerns about cost make an additional year of graduate-level law school untenable.  If some component of legal education could be pushed to the undergraduate level, though, we might be able to have the best of both worlds.  Students already have to pay for undergraduate tuition, and if they came to graduate-level law school with some specified quantity of legal knowledge, then graduate-level law school could be devoted to more advanced topics.  If a sufficient amount of legal education was achieved at the undergraduate stage, then graduate-level law school might be shortened to two years while the overall amount of legal education received by students might actually increase.

What we teach in law school can be roughly divided into two components:  stuff and skills.  In its current incarnation, legal education is largely focused on teaching stuff – the basic doctrinal rules, and related policy issues, of various areas of law.  There is a reasonable amount of legal analytic skill that is taught in your typical casebook course, especially in the first year.  But most of what we teach is stuff – basic knowledge of one sort or another.  Some types of stuff are more complex than others, but most of the basics really aren’t that hard.  I’m pretty confident that undergraduates would be able to handle most of the basics of property law, and of any other legal area.

If students came into graduate-level law school with a decent introduction to the law of property, then we could do so much more with them.  What this more might be might vary – it could be more practice oriented, more theory oriented, or remain doctrinal, but on a deeper level.  Students wouldn’t need to enter with the same knowledge base that we expect them to have at the end of the first-year course.  Just a basic understanding of the fundamental areas of property law would suffice.

Presuming that it is desirable to shift some legal education to the undergraduate level, how do we get there?  My proposal is to create an advanced placement system for law school.  High school students can take advanced placement tests in a wide range of subject areas.  If they score well enough, they are given college credit and can place out of some introductory college courses.  The same thing could be done with legal education.  Exams could be offered in a number of doctrinal areas.  If students score well enough, they would be given law school credit and could place out of the introductory course in that subject (or could take an abbreviated version of that course).

One advantage of using placement exams as a vehicle is that it would let the market decide how best to promote undergraduate legal education.  If the ABA approves the tests, and allows accredited law schools to give placement credit for them, then it wouldn’t matter how students are prepared for the tests.  All that will matter is student performance.  Most of the basics of legal subjects could be taught well on-line, or through distance learning.  Kaplan, the Princeton Review, etc. might offer prep tests.  So long as students display a basic level of competency, it shouldn’t matter how that competency is achieved.  I would imagine (and hope) that undergraduate institutions would start to offer law majors, but students could prepare for the tests any way they like.  Initially, the tests would allow some students to gain some law school credit before starting law school, making it easier for them to get a J.D. in two years.  Over time, the tests might morph into law boards that all students are expected to take before admission to graduate-level law school. 

Moving to this system would have advantages for everyone involved.  For students, it would allow them to get the J.D. in two years.  If enough material was moved to the undergraduate level, then students might end up with the equivalent of four years of graduate legal education for less money and overall time.  If a lot of the basics were moved to the undergraduate level, graduate-level law school could focus on more complex and creative course offerings, better preparing students for practice.  Having a part of legal education done at the undergraduate level would also lead to more people getting some legal education.  Not everyone who studied law at the undergraduate level would go on to graduate law school to become a practicing lawyer.  Students with some undergraduate legal education would hopefully be able to make better-informed decisions about whether to get a graduate education in law or to pursue another career.  Students who decide that they want to go school late could take intensive programs like those designed for people who want to go to medical school but who have not completed the prerequisites.  Or, law schools could continue to offer full programs for those students who don't have an undergraduate legal education.

An objection, which is sometimes raised about European systems that have an undergraduate component to legal education, is that students end up knowing law but nothing else.  This could be called the liberal arts objection.  I'm a huge fan of liberal arts education, so this objection has a lot of resonance with me.  My initial response to it has a few parts.  First, an undergraduate legal education doesn't have to be as doctrine-focused as current law school programs.  If I was designing an undergraduate law program, I would require basic courses in logic and economics, and would highly recommend other courses in history, philosophy, and political science.  Second, students can and should take courses as undergraduates outside of their major.  Third, if someone was to object that it is a problem for lawyers to only know law, a logical response would be to ask what, exactly, lawyers should know in addition to law.  Students come to law school with such a wide range of undergraduate (and graduate) backgrounds that most have little exposure to any given subject area.

Shifting some legal education to the undergraduate level would change existing law schools, but would not hurt them.  So long as the graduate law degree – the J.D. – is the one required for practice, law schools are secure.  The placement exams would give graduate law schools a much-improved data set to use for admissions decisions – performance on actual law-related standardized exams would seem to me to be the best possible predictor of law school success.  (The LSAC folks shouldn’t be threatened – they’d be good candidates to administer the exams, and the LSAT wouldn't go away in any event.  US News would have a new data point for rankings, and this one (unlike many of their current ones) would actually be relevant and hard to game.).  Law schools might expand, becoming legal education centers providing both graduate and undergraduate offerings (alone or in joint ventures with undergraduate institutions) in law.  If the J.D. program was only two years, it might become common for students to do a specialized LL.M.  Law schools could compete in LL.M. specialization.  If you’re thinking about going to graduate school in philosophy, you would pick Pitt over NYU if you were interested in philosophy of science, but would pick NYU over Pitt if you wanted to study moral philosophy.  So, too, you might pick NYU over George Washington for an LL.M. in tax, but George Washington over NYU for an LL.M. in intellectual property.

The shift would also be good for law professors.  To begin with, there would be a lot more of them if undergraduate institutions started offering programs in law.  Those teaching at graduate law schools would have more freedom to be creative with their courses, and would be able to spend more time on complex issues rather than the basics.  I personally would love to try teaching Property to undergraduates.  I would also love the opportunity to teach more advanced Property issues to my law school students.  Even with six credits to teach Property, I can only scratch the surface of most issues.  If students had a basic background in, say, the law of servitudes, then I could spend more time on some important issues that I currently don't have time to cover.

It seems to me that moving to an advanced placement system for law school would be a win for everyone.  It would, however, involve change.  Academics and the regulators of legal education are typically adverse to change.  I am interested to see whether in the current environment people are willing to move outside of their comfort level.

David Segal Trains His Haggler's Eye on Vet Schools

This story from the New York Time's Sunday business section should give some pause to those who think that law students' debt plight is unique to law students. High Debt and Falling Demand Trap New Vets. Maybe no one that thinks that, but at times, judging from some of the commentary, it sure has seemed that way.

Now I bring this up, not as a kind of "things are tough all over," so there's no problem, get over it. Far from it. But if things are tough all over, at least debt-wise, in higher education, which they seem to be (and we haven't  yet talked about the situation for graduate students in disciplines like English, Philosophy, History, etc.) then perhaps we should consider whether this is a systemic problem, especially since the Times also reports that at least in some quarters a 4 year degree is the new entry level standard previously represented by a high school degree.  It Takes A B.A. to Find a Job as a File Clerk

If it is true that at least part of the law school debt problem is a reflection of wider social forces, that suggests it is one that is not necessarily going to be solved by tweaks of the law school curriculum (and let me just say here that I assume that it is always a good idea to be open to continuous revision and reform in light of new information and conditions, as long as we also try not to reflexively discard valuable practices which may be good) or changes in accreditation practices.  Nevertheless, one aspect of this article stands out for me - the role played by the for-profit vet school.  Could it be that the combination of a federal student loan program designed and launched before the era of for-profit higher education and the emergence of these institutions has driven some of the problem by saturating the market? Or could it be that a general faith in for-profit entities and identification with market-based analogies and imagery has infected higher ed in a way that has been harmful to students? Bemonaing the corporatization of higher education Don't know. And it would probably be hard to prove a connection. But it is food for thought.

Update on the ABA Standards

Yesterday, I wrote critically of the ABA Standards.  Coincidentally, today the Council of the Section of Legal Education released for Notice and Comment, proposed revisions to the chapters of the Standards dealing with libraries and facilities.  The Council has apparently rejected the proposal of the Standards Review Committee that the Standards require an individual faculty office;  instead, the Council would simply require that office space for faculty research, class preparation and meetings with students be "suitable and sufficient."  I am glad that they have avoided the embarassment of requiring individual offices.

More importantly, the proposed revisions to the library chapter would give law school much needed flexibility.  The Standards Review Committee has proposed shifting from concern with law school ownership of materials, to a focus on "access".  If adopted, this will enable schools to rely more on databases and electronic materials, and will facilitate schools sharing resources.  This could lead to major savings in library budgets.  The SRC and the Council should be applauded for this.

The Changing Law School Learning Experience

When I first started as a law school dean in 2001, I heard a counterpart at a top school advise new deans to stay out of the business of curriculum reform.  Our legacies, she said, would be based on the money we raise and the faculty we hire.  Curriculum reform efforts would take a long time and lots of energy, and in the end the faculty would probably just opt to tinker with the first year, which works the best anyway.  At the time, that was probably pretty good advice.

Much has changed since then.  Law faculties around the country are involved in modernizing and improving legal education.  The last decade may have been the most fertile period for innovation in the history of American legal education.  Catherine Carpenter's terrific survey provides rich detail of this trend.  More students than ever are now benefitting from experiential learning, whether clinics, simulations, externships or other models.  Hands-on learning in the transactional area, virtually nonexistent a generation ago, is growing rapidly.  There are new consortiums like Educating Tomorrow's Lawyers, incubator programs for students opening their own practices and many other innovations.   My friend Bill Henderson is developing a Blueprint For Change that has great potential.  In sum, legal education is much better than a generation ago in what and how students learn.

Of course, legal education still does not approach medical education in fully preparing students for practice.  This is the result of our unique history (for an excellent look at critiques of legal education over time, see this great article by Benjamin Spencer) and the massive governmental involvement in and funding of the health care system.  But the trend in experiential learning in law schools has been clearly and strongly upward.

In my previous post, I acknowleged one of the ways that rankings and competitveness pressures affects our behavior.  I think that the emphasis on experiential learning opportunities reflects something different:  our commitment to doing what is right for our students even if the market does not reward us for it.  Nothing in the U.S. News rankings really attempts to measure educational quality.  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.  I know that Bill Henderson is trying to demonstrate that there is a real competitive advantage in being an educational leader.  I hope he is right, but it is speculative at this point. 

My biggest concern is that the momentum in experiential learning could be lost as law schools enter an era of austerity.  Good experiential learning programs cost more than traditional law school classes, because they are labor-intensive.  In recent years, schools have been able to provide more of these opportunities, even as many of our traditional faculty members taught less and researched more, by hiring more clinical, visiting and adjunct faculty and by using nonfaculty administrators to assist in these efforts.  With smaller incoming classes, most schools will have to make budget cuts, and they will not generally come from the ranks of tenured doctrinal faculty.  We will have to work hard and develop creative partnerships to keep things moving in the right direction.

The ABA Section of Legal Education can play an important role in ensuring that this happens.  The Standards Review Committee is considering two proposals that should be adopted.  One would require that every student have at least one experiential course:  either a live client clinic, a simulation based course, or an externship.  My school and several others have adopted this type of requirement.  Imposing it on all law schools would be a manageable burden that would be good for our students.  The other is a proposal to require schools to engage in rigorous assessment of student learning outcomes.  Schools would be required to:  1) identify the learning outcomes they intend their students to achieve;  2) align their curriculums with those goals;  3) use multiple formative assessments throughout the curriculum (although not necessarily in each course); and 4) periodically review their goals and progress towards reaching them.  This kind of thing can be heavy-handed or overly bureaucratic.  But I think the current proposal strikes a good balance.

Unfortunately, the Standards Review Committee is not seriously considering other possibilities to encourage better student learning.  An old debate has recently reemerged about whether law school should be two years instead of three.  I don't expect the ABA to take up that idea now.  But they should be considering whether to lift restrictions on nonclassroom learning.  The third year of law school, as long as it continues to be required, should be a laboratory for experimentation.  The Standards should not limit the use of adequately supervised field placements, as they do now.  More generally, the central focus of the Section should be to remove all impediments to reasonable experimentation from the Standards.  We owe it to our students.

What Has Happened to Law School Attrition?

    I have been following the recent conversation started by David Yellen with much interest. Some of this, I’m sure, is because I work at a law school that will probably be 207 on the list when we obtain our full accreditation. Needless to say, when you are about to join what is an undeniably crowded market, you have to pay attention to whether there is going to be a market.

    One thing I noted about the discussion is everyone is talking about the number of students who are being admitted to law school. My first thought is that the number who are graduating are of more direct interest. After all, if law schools are admitting 40,000 students this year, but only 25,000 of them graduate, the number of new lawyers being trained would seem to match the market demand for new attorneys.

    What flashed through my mind at this point was the old statement supposedly from the orientation of a typical law school, “Look to your left. Look to your right. One of these two people will not be graduating with you.” If this truism is accurate, only about 27,000 of the 40,000 would graduate and things are not as out-of-balance as we thought.

    I looked at the table of data that the ABA maintains (with thanks to Brian Tamanaha for giving us the link). I have downloaded the data and converted them into a spreadsheet. I then did a back-of-the-envelope calculation of the attrition rate. To do this, I had to make an assumption about how long it would take a student to complete the program (any student we admit this year will not graduate for two to six years, after all). Consequently, for my rough calculation, I assumed that all students are full-time students who take exactly three years to finish law school.

    When I did this, an interesting transformation can be seen (Download ABA attrition data). For law school graduating classes through 1974, the approximate attrition was more than 20% with the high for the period being 1966 at 45%. (If I were going to take these calculations off of the envelope, I would want to try to find out whether the Vietnam War was having an effect here of artificially raising the rate of law school drop-outs or push-outs). For many of these years, the “look left, look right” adage is fairly accurate.

    Starting in 1975, however, the attrition rate drops and never goes above 20% again. More recently, it is even lower. As an approximation, since 1994, law school attrition is around 10%, far below the 33% predicted by the adage.

    What this suggests is that our collective focus on entering class may be inappropriate. Are the students of today much better than the students of the 1960s and 70s? If not, why are they finishing law school? Maybe our focus should be on whether our academic standards have become too lax. Raising academic standards could cure two problems, after all, over enrollment and another burning issue with the ABA  — bar passage rates.

Still More on What Matters Most (Or, A Guided Tour of Pandaemonium)

As I have previously observed, if you think there is no oversupply of recent and imminent law graduates, you live in a fantasy world.  If you think that every underemployed law graduate in America is just too lazy, too stupid or too greedy to take one of the countless paying jobs just waiting out there to meet the legal needs of the poor (who have no money to pay you, despite their substantial and serious needs), you live in a fantasy world.  If you think that there are untold thousands of wonderful, remunerative jobs that don’t require a law degree but that instantly become available to law graduates just because they have one, you live in a fantasy world.  We have lots of data measuring the differences between what’s going on here on Earth, and what you think you see from Planet Pangloss.

But there is an equally corrosive rhetoric at the other extreme in this discussion, and it is just as pernicious and misleading.  For example, this recent quote from Paul Campos in Fortune:  “[I]t's like the subprime mortgage scandal without securitization. When people realize it's a worthless degree, the system is going to collapse.”  Lest anyone accuse me of being a hater, let me be clear that I think Prof. Campos has done us all a great service in raising and focusing public discourse on a number of extremely serious and important issues regarding the current state of legal education, and has regularly contributed to the discussion with reasoned and empirically-based arguments about where we are and where we might be headed.  My concern is his tendency to lapse into self-loathing (such as in this inaugural post on his blog and much of the rest of what he posted there that month) and hyperbole (such as the remark I just quoted), and the rage and panic it excites in many of his followers. 

In a recent post, I called those indulging these rhetorical extremes “Pandemoniasts.”  I was thinking of Milton’s Paradise Lost, and the prospect of Hell presented to the fallen angels from the site of the city they will build there, Pandaemonium, which sounds for all the world like this crew’s prospect of all life after law school:

The dismal Situation waste and wild,
A Dungeon horrible, on all sides round
As one great Furnace flamed, yet from those flames
No light, but rather darkness visible
Served only to discover sights of woe,
Regions of sorrow, doleful shades, where peace
And rest can never dwell, hope never comes
That comes to all; but torture without end . . . . 

(Book I, lines 60-67, spelling modernized) 

Before those on the waiting list for anger management start to pile on, let’s all be clear that there is in fact loads of misery in the post-law-school world.  There are literally tens of thousands of recent law-school graduates who made six-figure investments in their legal educations, many of them incurring huge nondischargeable loans to do so, who cannot find full-time, long-term employment making any substantial use of what they paid so dearly in time and treasure to acquire.  This distress is by no means evenly distributed across the graduates of all law schools, but it is having real and significant effects at almost all of them, including many very well and thoughtfully administered institutions such as the one where I am fortunate to work.  This is nothing short of tragic, and of course it has to be addressed to reduce the numbers of future victims of this misfortune.  (And we should never forget that prospective reform of the kind currently under discussion in many quarters does little for those already caught in the riptide of the shrinking law-job market.  Disaster relief for those already swept out to sea will be the subject of a future post, and is something we should all be thinking about as well.)

That’s why I’ve argued that What Matters Most right now is that there are not enough law jobs for the recent and imminent law grads entering the workforce:  Responding to precisely these circumstances, the relevant markets are already bringing powerful forces to bear.  What happens when you make more of something (here, entry-level lawyers) than the market wants?  Supply contracts and price falls until the market clears.  And that’s exactly what’s going on right now.  Law-school applications are down precipitously again this year (hat-tip to Dan Filler for the latest numbers) as more prospective law students conclude that the investment of time and money in a JD is not justified.  The first-year class that started this past fall is smaller than the previous year’s by at least 10% at roughly half the accredited law schools in the United States.  Many schools will shrink, and some will simply fail when they cannot attract enough of what they consider the right kind of applicants.  Similarly, price competition among law schools for desirable matriculants is already increasing, right now mostly in the form of price-discounting through offers of financial aid, but with a few institutions freezing and reportedly considering reducing their tuitions.

Judging from the oversupply revealed by the employment numbers gathered and disseminated by the ABA Section on Legal Education, my relatively unscientific guess is that we can expect the number of seats in accredited law schools to shrink somewhere between 20% and 40% from its high in the class entering in the fall of 2010.  My equally unscientific guess is that we can expect to see the reduction fairly quickly (on an academic timescale)—perhaps within the next 3-5 years.

This correction, which is obviously substantial, will create more dislocation and hardship.  That is deeply regrettable.  Students at institutions forced to close will have their studies disrupted, and perhaps terminated (with concomitant loss of their investment) if they cannot find an institution willing to accept them as transfers.  The faculty and staff of those failed institutions will lose their jobs, and finding similar jobs elsewhere will be very difficult as many of the schools remaining downsize their own faculty and staff to serve reduced student bodies.  (The difficulties I am hearing about from very accomplished and talented applicants for law-teaching jobs this year are just a small harbinger of things to come.)  Schools that choose to compete by reducing price, either by selective awards of financial aid that allow them to price-discriminate more effectively, or by reducing nominal tuition rates across the board, will undoubtedly require their faculties to teach more and get paid less.

These hardships will not fall equally on every law school.  The really interesting questions are which schools are going to be most quickly and profoundly affected and why.  I have some thoughts about that, which I’ll share in a post soon to come.  Readers’ predictions in the Comments are solicited.  In the meantime, some schools are embracing the inevitable proactively (props to Dean Frank Wu at Hastings, for example, who decided last spring to reduce his census by 20% even though he could still fill 100% of his existing seats, thus seizing the opportunity to manage into and through the change), while others will undoubtedly be dragged down in price or numbers kicking and screaming (and denying and denying some more).

Those in the Schadenfreude brigade who take some joy in these prospects should be ashamed.  When markets contract, many people suffer.  But is this the end of the world as we know it?  Is “the system” going to “collapse”?  Don’t be ridiculous.

The legal profession is still an indispensable handmaiden to the American economy.  Even with a deeply depressed economy and critical structural changes reducing the staffing and pricing of legal services, there are still countless disputes of all kinds to be resolved, still deals to be done, and more regulations than ever to comply with.  There is an interesting debate to be had about whether, in the medium or longer term, the traditional model of conventionally defined legal services provided by guild-licensed professionals will survive (Gillian Hadfield and Richard Susskind, among others, think—with apologies to Prof. Hadfield for oversimplifying her complex and nuanced views—perhaps not).  But right now, and for the foreseeable future, there is no responsible argument that every law degree is “worthless” or that “the system” is on the verge of “collapse.”  Over 23,000 of the law students who graduated in 2011 had long-term, full-time jobs requiring a law license within nine months, and some modest (and I stress “modest”) complement on top of that found work towards which their law degrees made a real and significant difference.  That’s a lot fewer than the 43,000+ who graduated that year, and some of those who succeeded in the job market are making only a marginal living.  Those are very significant problems that have resulted in real and serious loss, disruption and pain to many thousands of disappointed graduates.  But to suggest that soon no one will be attending law school because there are, or will be, no economically viable entry-level law jobs is absurd.

Bottom line:  The legal academy is already shrinking, and that’s going to accelerate for a while—but it will slow and then stop.  We have the choice to face the forces driving these changes thoughtfully and proactively, or to be dragged along willy-nilly.  What we can’t do is resist them, and those who try will do so at their peril.  When it’s done, we will likely be sadder, hopefully wiser, and certainly more modest in our dominion.  “Better to reign in Hell than to serve in Heaven”?  You tell me.   

--Bernie

California Tightens State Law School Accreditation. A Little.

The California State Bar Committee of Bar Examiners must be listening in on all the noise about ABA accredited schools.  It announced last week that it was tightening the minimum pass rate for California accredited law schools.  Going forward, in order to maintain state accreditation, a school must maintain a cumulative pass rate of 40%.  That is, over a five year period, 40% of all graduates who take the bar one or more times must pass the bar at some point....even if it takes ten attempts.  

According to the California Bar Journal:

During the most recent public comment period before the committee approved the change, Southern California Institute of Law Dean Stanislaus Pulle called it “draconian.”  

Southern California Institute of Law charges $370 per credit for its 84 credit JD program - $31,800 total (or as SCIL puts it in their FAQ's  "a little over $29,000").  At that price, a rational actor might well think the risk worthwhile...until she discovers that in July 2012, 43 SCIL grads sat for the state bar (including first timers and retakers.)  Zero passed. 

Law School Transparency Jumps the Rails (Or, Why I’m Still Disappointed with LST’s Latest Contribution to the Discussion on Law-School Reform)

With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that).  The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education:  Dabbling in Disaster Planning.”  Familiarity with my original post is not presupposed.

As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable.  There is a good deal to admire.  LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree.  They believed that potential consumers of legal education would make better choices if they were better informed.  They were pointed, patient and persistent in pressing for more and better disclosure.  They were an instrumental part of the process that effected that change.  And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).

So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)?  Here’s a catalogue of my most serious concerns:

Don’t overdramatize.  Don’t let your urge to be the center of attention distract from the ideas and their merits.  To those of you who pointed out that this was a vice of my original post (most of you in the most understated and appropriate way): you were right, and thank you.  This vice appears in “Disaster Planning” in the overused and overwrought rhetoric of crisis that pervades a certain class of commentary about the current state of the legal academy and the legal profession.  LST’s title tells us its paper is all about “Disaster Planning” to address the “Crisis in Legal Education.”  And indeed the word “disaster” appears three times in the first paragraph of the Abstract alone, with two “cris[e]s” thrown in for good measure.  By the third page, “the law school disaster” has been erected as the foil against which the paper’s recommendations are defined. 

Don’t allow hysterical language to mask a failure to define the issue you need to address.  So what is “the law school disaster” according to LST? I scoured over forty pages without finding an answer.  While “Disaster Planning” trots out various inventories of misfortune, it fundamentally fails to identify the “disaster” it’s “planning” for, leaving us facing down that “disaster” armed only with the queasy uncertainty that we won’t know when we’re ready for it, how effectively we weathered it, or when it might be over.

Am I suggesting that there is nothing amiss in the legal academy or the legal job market?  Of course not.  Law schools; their faculty, staff and administrators; law students; law graduates; lawyers and legal employers—and by far most importantly, clients—are all currently awash in real, serious and substantial difficulties of various kinds.  But which are causes, and which are effects, and which are which for what?  Or to put it slightly differently, it’s pretty much impossible to solve a problem you haven’t defined; in fact, it’s difficult to speak coherently about a problem you haven’t defined.  You end up with exasperated generalizations on the order of “life sucks; then you die” (which, I might observe, leaves you with innumerable inconsistent avenues to explore concerning whether or how to make life suck less, or end quicker).

Some measure of how serious an obstacle this tactic is to sound analysis can be found in the responses I received to this point in my original post.  Several of you (including Kyle McEntee himself in a very thoughtful and measured Comment for which I thank him) chastised me for quibbling with LST when it was perfectly obvious what the “disaster” was—and each of you identified different issues!  Mr. McEntee believes that “the disaster would be if legal education's traditional and important role in American society is further delegitimized”; others of you identified the problem as the excessive cost of legal education (a subject I will discuss in an upcoming post); still others pointed to the genuinely tragic flotilla of unemployed law grads currently marooned in a sea of debt. 

That’s why I have devoted (some might suggest squandered) so many words in this space considering “What Matters Most.”  For those no longer keeping score at home, what I think Matters Most—that is, what is most fundamentally a direct or indirect cause of more current hardships, and what would be most difficult, and least likely, to change—is the fact that there are significantly more recent and imminent law graduates than there are entry-level law jobs.  You are invited to review my empirical and logical bases for the conclusion that this is What Matters Most right now (e.g., here and here), and fault my reasons in any way your reason will permit.  But for heaven’s sake, let’s have a coherent and common-sense discussion about causes and effects grounded in actual facts and practical realities, and leave Henny Penny in the barnyard.

Whether you agree with my assessment of What Matters Most or not, defining the problem you want to solve is utterly essential.  Beyond insignificant and temporary adjustments on the margin, law schools don’t create law jobs, and they don’t destroy them.  Legal employers and clients do that, driven by their own economic exigencies.  Law schools have been making the same mistakes that LST and others identify today in one form or another for close to 40 years, during which time legal employment saw essentially uninterrupted and unprecedentedly rapid growth at rates far in excess of the greater economy’s.  There is no empirical evidence, and no coherent argument, that whatever you think law schools are doing wrong today made one-third or more of all entry-level law jobs suddenly disappear between 2008 and 2010.  There is no empirical evidence, and no coherent argument, that any change to the substance or method of legal education today would bring any material portion of those recently disappeared jobs back into the economy. 

What this means is that, if you’re trying to relieve the oversupply of recent law graduates (or the undersupply of entry-level law jobs), tinkering with law-school curricula or instruction methods will not meaningfully touch the problem.  Nor will simply lowering the cost of a law degree, which as I’ve already suggested in this space, seems more likely to increase the number of unemployable graduates as reduced price stimulates demand.  This is not to say that I endorse the current economics of law school, but that’s no excuse not to think through the plausible consequences of your policy prescriptions.

So while I do not question the seriousness and good faith with which LST advances its proposals, I hope none of you will question the seriousness and good faith with which I suggest that some of the ideas in “Disaster Planning” deserve some further thought and refinement.  To put my examples in context, two of the big ideas around which LST wants to build an experimental “modular” law school are (i) shorter-term class “modules” lasting only a few weeks apiece in lieu of most full-term courses (a Colorado College model for those familiar with it) (ii) taught predominantly by adjuncts at a cost far lower than permanent faculty.  In the remainder of this post, I’ll try to illustrate some recurring errors in LST's article that we can all try to avoid in our next efforts.

Don’t ignore the implications of your justifications.  A number of the explanations offered for LST’s specific proposals don’t respond to broadly held perceptions of what’s broke; don’t hang together, or just don’t make much sense.  For example, the authors praise the compressed class “module” structure because it “encourage[s] exploration of topics that would otherwise be considered too narrow in a semester-long curriculum structure.”  But overbreadth of particular class offerings is not a common view of the current deficiency in curricular selection; if anything, excessive and impractical narrowness is.  This does not necessarily mean that shorter “modules” are a bad idea; but it does mean that how they are selected, structured and coordinated is quite important.  Future discussion should bring this essential factor, which is not addressed in the current paper, into play.  Similarly, LST touts its proposed structure because it allows faculty to respond nimbly and rapidly to the curricular “input” and “demands” of students.  This is not altogether surprising given that the authors are all recent law-school graduates.  But the premise is not unlike criticizing a physician for bad patient service because she did not provide the diagnosis or prescribe the therapy the patient thinks he prefers.  Most students come to law school having no idea what they need to learn to prepare themselves for one of the innumerably varied careers they have not yet chosen.  The fact that some of the doctors may be loopy or self-involved is no reason to put the patients in charge of the asylum. 

Don’t ignore inconvenient facts.  One of the greatest challenges in formulating coherent law-school reform proposals is (as a number of you pointed out in response to my original post) how little we actually know about what works or why.  Experimentation should be undertaken advisedly, since the guinea pigs are people who are gambling huge amounts of money and their future on the experiments’ outcome.  So when we actually have empirical data, we are duty-bound to make the most of it.  In this particular instance, LST—ordinarily an outspoken champion of better information driving better decisions—refuses.  Dean Erwin Chemerinsky, the authors note, has pointed out that one of the serious objections to a very small core of full-time faculty surrounded by a cloud of adjuncts who wander in for their three-week modules and then disappear until next year (or forever) is that adjuncts regularly receive materially less positive student evaluations of their teaching in the aggregate than permanent faculty.  One likely reason, Dean Chemerinsky has argued, is that whatever else teaching involves, it is a skill that benefits from practice.  LST’s response is a series of unsupported assertions that the student evaluations are somehow comprehensively wrong, and that most practitioner adjuncts are really better teachers, both in their practices and at school, than most permanent law faculty (something not entirely obvious to anyone who has ever worked in a law firm, which none of the authors has for any length of time).  While greater use of adjuncts may present other advantages—which, while not in my view as self-evident as the authors apparently believe, seem to deserve exploration and testing—it is at the very least self-defeating to deny years of actual empirical observation and evaluation by the very student population the authors wish to serve.  Let’s use the facts we have, not pretend they don’t exist. 

Don’t assume away the problems you perceive; recognize and try to solve them.  No proposal is perfect.  Good policy involves identifying the weaknesses in your suggestions and figuring out ways to avoid or ameliorate them.  Bad policy leaves the problems you know are out there for someone else to take responsibility for (so at least the program’s failure won’t be your fault).  For example, the authors concede that “[t]he sheer number of adjuncts may accentuate the problem of finding, scheduling, evaluating, and filtering competent teachers.”   Their solution: “The . . . faculty must be actively managed in a way that ABA-approved law schools are not presently doing.” Any suggestions about the quantitative or qualitative nature of the “problems” their novel structure creates, or what any of those currently nonexistent techniques of “active[] manage[ment]” might involve?  Nah, these mere operational details are delegated to a “module coordination staff, focused on the challenges distinctive to the modular structure,” who will somehow do what such currently nonexistent people have never done before “ensuring a sound and affordable legal education.”  Any solution involving the adjunct cloud that LST favors cannot be taken seriously without some very detailed prescriptions for how to manage this very significant challenge.   

LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems.  The execution leaves something to be desired for the reasons just discussed.  But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible.  We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new.

Next time, my promised response to the crisis-mongers.

In the meantime, a Happy New Year to all.

--Bernie

AALS Sanctions Villanova Law

The AALS has placed Villanova on two years of probation for reporting false admissions data to the ABA.  This is just further fallout from the story that surfaced almost two years ago.  More details are at Leiter.  

More On What Matters Most (Or, Paging Dr. Pangloss)

Change is hard.  Big changes are underway in the economics of the legal profession, and they are driving equally big changes in legal education.  These changes have imposed genuinely tragic hardships, most immediately and directly on the aspiring lawyers trapped in their cross-currents.  Those who entered law school in 2005 and later implicitly or explicitly made rational (or as time went on, at least not entirely irrational) assumptions that the legal economy would continue, mutatis mutandis, as it had for the last forty years or more, an endlessly rising tide lifting even the leakier and more crudely-finished boats.  Sadly, and through little fault of their own, they were wrong, and at great personal cost—in time, in money and in life plans gone awry.

Change is scary.  The fear is palpable among those speaking to current circumstances out of the academy, and has produced the two results that such fear predictably spawns:  Rank denial and frank hysteria.  Neither is merited.  Today, prompted by yesterday’s much-downloaded op-ed in the New York Times, I speak to the Panglossians; my next post in this space will address the Pandemoniasts.

My message to Dr. Pangloss is simple:  Stop and think.  Please.  You can’t whistle “Don’t Worry, Be Happy” loud enough to drown out the anxiety that is prompting this forced insouciance.  And you are wasting valuable time and energy not only denying the existence of important questions you ought to be addressing, but potentially confusing others who will make errors they could have avoided and lose opportunities they could have claimed. 

Those of you who remember my post on “What Matters Most (in legal ed these days)” (and blessings be upon you if you do) will recall that I suggested that by far the most salient feature of the legal education landscape today is that there are too many law graduates and too few law jobs.  The Panglossians deny that this is true, or argue that it doesn’t matter if it is.  In doing so, they depend almost entirely on wishful thinking masquerading as empirical assertion.  While we would all be very interested in any meaningful empirical evidence supporting the Panglossian view, I haven’t seen any to date.  And I have seen lots to the contrary.

Some of the Panglossian commentary is downright meanspirited, and takes the basic form that there are in fact lots of law jobs out there, but recent graduates are too lazy, too stupid, too greedy, or too ill-prepared by their law schools to claim them.  When any evidence of the existence of this sea of unclaimed jobs is offered, it is generally either the fact that there is substantial unmet need for legal services among the poor and middle class; or that Nolo Press and Legal Zoom are still in business.  Let’s be clear:  There are now tens of thousands of unemployed or underemployed recent law graduates out there dying to make some use of their legal education.  If they could make a living starting a practice at very low rates, they would do so.  That’s how labor markets work.  But as I have commented in this space previously, the poor are poor because they have no money; and the middle class have very little disposable income to devote to legal services not covered by insurance or contingent fees.  As for Nolo Press and Legal Zoom, they are successful in the marketplace precisely because they offer very basic legal services at prices that are cheaper than virtually any practitioner can manage to charge and continue to eat regularly.  Even still, there are plenty of ads for dirt-cheap flat-fee incorporations and uncontested divorces in your local yellow pages.  The low-price market is saturated.  Stop blaming the victims of a rapid and significant contraction in the entry-level legal job market for something they didn’t create and can’t overcome—which is what you're doing if you deny there are significantly too few law jobs, whether you do it by attacking recent law grads directly or by the tactics I turn to now.

Many Panglossian apologists suggest that everything is still just fine because a law degree has innumerable profitable uses beyond qualifying its recipient to get a license to practice.  An example can be found in a well-respected law professor’s comment on Dan Filler’s recent post on the plummeting numbers of LSAT takers.  This argument takes a range of forms that range from the (always unsupported) assertion that “lots” of the speaker’s graduates get “wonderful” jobs that make great use of a law degree but don’t require a law license, to the (equally unsupported) assertions that a law degree is ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates.

I would be delighted to see any empirical evidence supporting these assertions, but unfortunately there isn’t any of which I’m aware.  Recent ABA employment outcome statistics devote a segregated category, called “JD Advantaged,” to jobs that do not require a law degree but for which the degree “provides a demonstrable advantage in obtaining or performing the job.”  This is an overinclusive definition, because what we really ought to be looking for are the jobs for which a JD provides a sufficiently substantial advantage in hiring, retention or advancement that the holder’s investment in the degree is justified.  After all, the fact that you get a job after graduating from law school, even one to which your legal knowledge is somehow relevant, does not necessarily mean that the job made the time and tuition worth it—especially if that job does not require a law license or even a law degree.  But in all events, what the ABA employment statistics show is that this “JD Advantaged” category of jobs is, for most schools, a small proportion of what anyone might call placement success.  Moreover, the number of such jobs for a law school’s graduates is significantly negatively correlated with that school’s prestige as measured by its US News ranking.  In other words, at the schools where graduates have the most employment options, they choose significantly fewer of these “wonderful” jobs, further suggesting that they are second-best (or considerably worse) outcomes.  As for the argument that law school somehow makes you so much better at everything that it’s worth whatever someone wants to charge you for it, I assume that requires no further discussion.

Finally, a few words about yesterday’s New York Times op-ed from the new dean at Case Western, unapologetically entitled “Law School Is Worth the Money.”  There are several postings already online pointing out astonishing deficiencies in this Panglossian effort’s coherence and empirical support (which I borrow from as well as add to below; three pretty devastating ones are here, here and here), but I want to dwell briefly on two particularly egregious examples. 

The op-ed argues that things are actually good for law grads today because the median law-job salary figure for 2011 graduates is $61,500.  But unless you look closely, you won’t see that this is the median salary only among those who actually have law jobs in the first place.  (The op-ed, and I, rely on statistics from NALP.)  In other words, the op-ed’s median salary number doesn’t appear to take into account the pay (if any) of those graduates who have no law job, or no job at all.  All told, that median is based on only the 36% of 2011 graduates who both had law jobs and reported their salaries.  And what that means is that only 18% of the class of 2011 (half of the 36% on which the median is based) were confirmed to have had JD-required jobs that paid more than $61,500.  In other words, the data on which the op-ed relies show that a randomly selected 2011 law grad had less than a one-in-five chance of getting a job as a lawyer that paid more than the $61,500 "median" salary that the op-ed offers as proof of a prospective law grad’s excellent prospects.

Similarly, the op-ed makes a great deal out of a comparison between a percentage of graduates who took jobs in private firms in 1998 (55%) vs. 2011 (50%), arguing that this shows that things are only a little worse now than they were at another time law-firm hiring was a relatively low portion of all law hiring.  It fails to mention that the cited fraction is not the portion of all graduates who got private firm jobs, but rather only the percentage of students who got law jobs in the first place and whose jobs were at private firms. And according to NALP, a much greater percentage of law graduates in 1998 got full-time law jobs in the first place (something like 80% of all graduates, or perhaps more depending on how you count), while approximately 55% of all 2011 graduates got jobs requiring a law degree.  In fact only 41% of law grads whose employment outcomes were reported to NALP got jobs at law firms.  And some of those jobs—after three years and $200,000 worth of law school!—apparently were as secretaries, paralegals or clerks, or were only part-time.  Take those out along with cases where a new grad is practicing as a solo (which is “getting a job” in name only), and less than 30% of the class of 2011 whose employment outcomes are known were employed at private law firms nine months after graduation.  So this statistic compares most of an apple with a very thin slice of orange. (Not to mention that it is a meaningless thing to worry about in the first place, as there are many excellent law jobs in government and nonprofits, and many low-salary and low-satisfaction jobs in private law firms.)

One other frankly bizarre assertion in the Times needs brief mention.  The op-ed argues that, even if entry-level hiring is at historic lows relative to number of graduates (which is likely the case even though the rest of the piece apparently tries to suggest otherwise), that doesn’t matter because first jobs don’t matter; it’s the subsequent positions that the law degree assertedly allows you to obtain later in life that really matter.  Of course, we have no longitudinal data on the future job prospects of initially unemployed or underemployed law graduates because there has never been anything close to so many at once before.  But does anyone seriously believe these folks are going to get a great second or third legal job without ever having had a first one?  Or that any discriminating legal employer is going to see two years of flipping burgers, stocking store shelves or selling jeans as good preparation for law practice?

I could go on, but others already have.  If a student turned in a paper with arguments like these in a class I was teaching on the legal profession, I know what grade I would give it.  I encourage you to draw your own conclusions.

I close this post by reiterating my initial point:  While none of this proves that the sky is as clear and cloudless as the Panglossian deniers would have you believe, none of it proves the sky is falling either.  The Pandemoniast view I will discuss next time is, in my view, just as overwrought and undersupported as the Panglossian one.  In the meantime, it’s time for the “Don’t Worry, Be Happy” crowd to impose on themselves the commitment to thoughtful and honest data-driven argument that I hope and assume they regularly urge on their students.  Dr. Pangloss, heed thyself. 

 --Bernie

Law Deans Serving on University Boards: An Unavoidable Conflict of Interest?

About six weeks after Saint Louis University President Lawrence Biondi appointed Tom Keefe as SLU Law's dean for the 2012-13 academic year, it was announced that Keefe had been elected to the SLU Board of Trustees.  Accordingly, Keefe now serves on the governing board of a university while serving as the dean of a law school that is part of that university.

The ABA Standards for Approval of Law Schools do not speak directly to this sort of arrangement.  Relatedly, Intepretation 204-1 expressly envisions that a law dean will serve on the governing board of an independent law school.  If a law dean's service on the board of an independent law school poses no problem--at least as far as ABA standards are concerned--why might it be a problem for a law dean to serve on the governing board of a university of which that law school is a part?

This question brings us back to the brewing situation at SLU.  It is clear from his prior actions and statements that President Biondi believes that he has unilateral authority to hire and/or fire whomever is serving as the dean of SLU Law.  Presently, that person is Keefe.  But, as noted above, Keefe is also serving as a member of the SLU Board of Trustees.

Here's where it gets interesting: in late October, the SLU Faculty Senate overwhelmingly passed a vote of no confidence regarding Biondi.  So did the SLU Student Government Association.  The matter is now being investigated by a committee of the Board of Trustees.  Presumably, the full Board at some point in the not-so-distant future will squarely address the matter.  The big question is whether Keefe will deem it appropriate to participate in the determination of whether Biondi gets to keep his job, notwithstanding that Biondi gave Keefe his job as law dean and--so long as Biondi remains President--may to take it away from Keefe for any reason.

We can only hope that the plainly obvious conflict of interest here will be apparent to Keefe, and that he will not be involved in any discussion or decision on the matter.  The same would hold true for any Board matter that directly implicates the terms and conditions of Biondi's employment with SLU.  But would it go even further than that?  What if Biondi brought before the Board a proposal about which he was so enthusiastic that he could barely contain himself?  Would Keefe be obligated to refrain from considering that matter as well?

My view is that Keefe should not be in a position to have to consider these questions.  That is, after accepting the appointment as law dean, thereby becoming an at-will creature of Biondi (at least as far as Biondi is concerned), he should not have accepted membership on the Board of Trustees until his time as law dean had concluded.  If Keefe wants to remain as a member of the Board, he should participate fully as a member of the Board by resigning his post as law dean.

I'm curious as to what Lounge readers have to say on the situation.  Perhaps, as a general matter, it's appropriate for a law dean to serve on a university board, assuming that appropriate measures are taken to ensure against the law dean's participation when the issue at hand presents an obvious conflict of interest.  But if it's not appropriate, it seems to me that the ABA ought to enact a Standard (or an interpretation to an existing Standard) proscribing such an arrangement.

Faculty Buyouts (Or, How Much Is Tenure Worth?)

Vermont Law School announced yesterday that it would be offering “buyouts” to staff (and possibly, faculty) in an attempt to weather the sharp drop in law school applicants and LSAT takers and a $3.3 million budget shortfall.  As a stand-alone institution, VLS perceives itself (and rightfully so) as more vulnerable to these market shifts than university-affiliated law schools.

Other media outlets (and blawgs) have devoted ample space to the “crisis,” so I won’t repeat these arguments here.  I will note, though, that the idea of “buyouts” for faculty is an interesting (and potentially troublesome) one.  Universities have been offering tenure buyouts for years – public institutions, especially, have seen their budgets slashed by state legislatures desperate over shortfalls not unlike the one facing VLS.  Buyouts are not without controversy – for example, tenure rules frequently limit the types of buyouts that can be offered (and to whom such buyouts can be extended).  Moreover, schools must be careful with their doomsday predictions when making buyout offers.  Case in point:  Whittier offered buyouts to certain tenured law faculty back in 2007 and found itself on the receiving end of a lawsuit; faculty claimed that the school’s representations regarding frozen salaries and 50% increases in courseloads (in the event that the buyouts were not agreed to) were fraudulent.  Whittier had offered the buyouts on the heels of the ABA putting the school on probation; after students’ bar exam pass rates improved, the school took steps to raise faculty salaries and maintain existing faculty workloads.

It remains to be seen whether Vermont is headed toward faculty buyouts, but if this is a sign of a trend, we should all be paying close attention (at every level).  What is tenure worth?  Can it be assigned a dollar value?  Is there some idiosyncratic or personal value attached to this form of property (see my earlier post on personality theory)?  Is it fungible?  Can partner buyouts at underperforming law firms be a model for these initiatives?  I look forward to your thoughts on this.

What Matters Most (in legal ed these days)

For those of you who noticed I hadn’t posted here lately, thanks for noticing.  I’ve been listening and thinking, two virtues we all too often honor in the breach.  What I’ve mostly been listening to and thinking about is the swelling threnody bemoaning—or in some cases celebrating—the impending Demise of Legal Education As We Know It.

What all this shouting about Fraud, Failure, Exsanguination, Plague and Death has given me is an appetite for some perspective.  (My favorite Thanksgiving side dish, inexplicably not served in many American homes these days.  Go figure.) 

What kind of perspective?  Let’s start with some clear thinking about What Matters Most in legal education’s current circumstances.  What I mean by this is that we ought to start our discussion about What’s Broke and How To Fix It by isolating, among the many matters of legitimate concern at this time of profound and rapid change, which ones are the most fundamental—the ones that provide the necessary backdrop and context for the rest.

I’m going to start that effort here. I’m working on a longer piece that will explore these issues at greater length and with some effort at empirical support, but as the lamentations swell, I’ve become increasingly concerned that this question is getting drowned out, and at some considerable expense to clear thinking.  In my efforts to isolate What Matters Most, I imagine I will exasperate quite a few of you who are understandably preoccupied with issues that I don’t think Matter Most.  So let me be clear:  The issues that I don’t think Matter Most are still very important, and deserve concerted attention.  But those issues are not are the ones that necessarily define the context for plausible definitions of problems and solutions.  First things first.

There are roughly three categories of contumely being heaped on the legal academy these days.  Two of them have received disproportionate attention, and what’s striking is that they are pretty clearly not the ones that Matter Most.  Those two are arrays of related contentions (1) that law school fails to prepare students for practice; and (2) that law school costs too much.  Let me say again before readers start calling me names in the Comments that these concerns are, in one formulation or another, both quite important and quite well taken.  But they’re not What Matters Most. 

What Matters Most is that there are today significantly more seats in accredited American law schools than there are entry-level law jobs for the emerging graduates.  This is obviously neither an original nor a novel observation; lots of people in addition to me have written about it.  But its fundamental importance has received surprisingly little attention. 

To appreciate why it’s important, let’s refine the observation a little.  You can argue about how big the overproduction of law graduates is right now.  Numerous commentators have focused on ABA employment statistics counting the number of law graduates who have found full-time, long-term jobs requiring a law license within nine months of graduation to argue that something like half of all recent law graduates are “unemployed” or “underemployed.”  For reasons I have elaborated on previously in this space, I think this overcounts the number of law graduates unable to make good use of their law degrees in the job market.  But however you count it, the overproduction is currently very substantial.  I’m still working with the data, but I would estimate overproduction of law graduates today at about 1 in 3—that is, that roughly 1/3 of recent law graduates cannot get a job that makes good use of their law degrees. 

You can also argue about how long the overproduction will last—that is, how much of this overproduction is cyclical, caused by depressed demand for legal services resulting from our depressed economy; and how much is structural, resulting from changes in the provision, staffing and pricing of legal services driven by changes in technology and business practices.  The difference is critical, because cyclical forces should largely resolve themselves as the economy eventually improves, while structural forces should force long-term reduction in the demand for young lawyers regardless of the pace of economic recovery.  I was on record early with the view that the changes we are observing in recent years are much more structural than cyclical in origin, and what has happened since has only confirmed that the sudden reductions in law jobs that have emerged since the economy crashed have resulted predominantly from pent-up structural forces that had been building for years. 

If that’s right, What Matters Most is the current and foreseeable future overproduction of law graduates.  Period.  This matters more than law schools’ pervasive failures to prepare their students adequately for practice—failures that, by the way, have persisted for at least a generation and probably two during which demand for young lawyers grew rapidly and consistently.  Why?  Because the reason that substantial numbers of recent law graduates cannot get a law-related job is not for lack of practical training.  It is for lack of jobs.  Schools that improve their practical preparation may help their graduates seize a marginally greater share of the limited law jobs available, but they will not materially expand the job market.  While my friends in the Crisis Chorus would probably liken this to improving your chances at Musical Deck-Chairs on the Professional Titanic, I reject this metaphor, but only because I deny the analogy to the Titanic, not the very apt analogy to musical chairs.  Again, this is not to say that curricular reform is not very important and long overdue, but it is not What Matters Most.

Similarly, overproduction of law graduates matters more than the excessive cost of a law degree (and the indiscriminate availability of government lending to fuel its increase).  Why?  Because the reason that substantial numbers of recent law graduates can’t get a law-related job, or a law-related job that pays enough to service their student loan debt or economically justify the cost of their professional degree, is not mainly because they are overburdened with debt.  It is because they are undersupplied with jobs.  If there were any more law-related jobs available, even at very low pay, the unemployed and underemployed recent law graduates extant today would be swarming to fill them.  But they don’t exist.  And lowering the price of a law degree will not create more law jobs.  In most markets, if you lower price, demand rises.  So if you lower the price of a law degree, on the margin you will induce more people to apply to law school (lower cost; lower risk; why not see how I do?), and create an even greater oversupply of law graduates.  Is this wise?  Yet again, I am not suggesting that there is much good to say about the manner in which legal education is currently priced and funded.  Nor am I suggesting that every law school should remain as expensive as it is.  But I am suggesting that, if the markets want cheaper law degrees, ordinary price competition (with some interference from regulatory forces such as accreditation and licensure standards that may need attention) should help provide solutions.  Watch for it in the next 12-24 months.  But with all respect to Jimmy McMillan, I’m not prepared to join The Rent Is Too Damn High Party.

I’ll have more to say about this in coming months, but this post is already long enough.  The long and the short of it is that What Matters Most is that there are too many law-school seats and not enough law-grad jobs.  In most markets, what happens when there is an oversupply is that production and price fall until the market clears.  That’s already happening today.  Prospective law students have become aware of the undersupply of law jobs, and law-school applications are falling significantly.  Many law schools appreciably reduced the size of their entering classes this fall in response to the falling number of qualified applicants.  Price competition on tuition (right now predominantly through the tactical use of financial aid) is being reported.  Many schools will shrink, and some will fail.  Many will experiment with curricular, placement and financial innovations to meet the demands of the times and attract more and more-qualified applicants.  Critically, all of this will be driven by the applicant pool’s perceptions about what kinds of value a law degree will furnish by the time you’re done getting one.  And that’s why the oversupply of law-grad production and the undersupply of entry-level jobs are What Matters Most right now.  The really interesting questions are which schools are going to be most and most quickly affected by these forces and how. 

Stay tuned.

--Bernie 

Don't Like ABA Law School Standards? New New York Regs Hint At The Future

For years, certain critics of the American Bar Association's regulation of U.S. law schools have argued that schools should have the freedom to design their own programs, on their own terms, and let the market decide which models survive.  These folks tend to object to things like tenure rules, detailed curricular requirements, and the like.  

We could debate whether some of these critiques are fair, but any assessment can't be done in a vaccum.  We can't assume that if the ABA deregulates law schools, states won't step in.   One of the greatest virtues of having the ABA involved in law school accreditation is that it deters state by state regulation.  Local regulation carries additional costs to law schools and create a big hassle for students.  

The New York bar is doing us all a favor by foreshadowing this reality.  In an updated section 520.3 of  Court of Appeals' Rules of the Court for the Admission of Attorneys, New York sets out its own mini-version of law school accreditation rules: any law grad seeking admission to the New York Bar must meet certain requirements that are somewhat different from the ABA considers sufficient for accreditation.  

For example, while the ABA is silent about the classroom component of a clinic that counts toward the "in-class" course requirement, the New York Bar requires that: " the course includes adequate classroom meetings or seminars during the same semester in which the clinical work is completed in order to ensure contemporaneous discussion, review and evaluation of the clinical experience "  Most law schools have this already - but what if they don't?  And is New York planning on sending out accreditation teams to evaluate compliance with the subjective component of the requirement?"  (Think: a New York Bar summarian.)  Then there is the rule that says you have to complete law school in 60 months - fully two years sooner than required by the ABA.

Then there's the matter of online courses.  The ABA  is not a big fan and limits them to 12 credits out of the required 83 units.  New York limits them to...ZERO.  (Strictly speaking, online courses are OK with New York as along as they are sychronous.  But that's not a normal online course.)

What's next?  Some states might start requiring two professional skill courses or two semesters of ethics.  (Wait!  Indiana already does the latter.)   It's easy to imagine one state after another demanding   3 credit's of [fill in the state] Practice and Procedure.  

 These would not be impossible hurdles, but they would increase the cost of legal education - by having to advise students on individual state curricular rules and having to provide low-enrollment specialty courses for diverse jurisdictions.  content for particular jurisdictions.   In some cases, it could even mean changing the substance or method of delivery of particular courses.

The New York story suggests that critics of the current system ought to beware of what they wish for.  It will be no great achievement to banish ABA regulations only to have them reappear, in varied and mutated form, in a variety of states.