The Faculty Lounge

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.

Reconsidering the Conventional Wisdom on the Legal Job Market - Part II

This is the second of three posts on the current state of the legal job market.  The first discussed the preliminary results of a study I did of employment of recent graduates from my law school and explained why nine-month job data does not tell the whole story on employment.  This post discusses the idea that the market for legal services is undergoing a profound structural change.  The next post will discuss the Bureau of Labor Statistics projections for lawyer employment.  [Update - the third post is here.]  The whole series is collected in this document.

The Structural Change Issue. 

Another piece of the current conventional wisdom is the argument, generally associated (at least in US law circles) with Bill Henderson, that the legal job market is undergoing profound structural change.  My reaction to this argument has taken an interesting trajectory.  I was initially deeply skeptical of the argument.  The more I thought about it, the more I started to think that there was something to the structural change idea.  My current thinking is that some structural change is occurring in the legal job market, but that this change has been gradually occurring for many years.  I therefore think that this structural change is something that legal educators should think deeply about, and I agree with some of what Professor Henderson has to say about the subject.  I am skeptical, however, that the structural change has much, if anything, to do with the current state of the legal job market.  I am also a bit skeptical of how deeply the structural change will penetrate into law practice.  Professor Henderson has written a lot on this subject that deserves a more thorough analysis than I can give it in this post.  For now, I want to focus on these last two points – whether structural change is responsible for the current state of the job market, and how deeply structural change will impact law practice.

The structural change argument has a few components to it, but for me the most interesting part of it is the claim that technology, specialization, and process engineering are making legal work increasingly standardized and systematized.  Professor Henderson, discussing the work of Richard Susskind, writes that “Susskind asserts that legal work is gradually migrating from bespoke (e.g., court room practice), to standardized (e.g., form documents for a merger), to systematized (e.g., a document-assembly system for estate planning), to packaged (e.g., a turn-key regulatory compliance program), to commoditized (e.g., any IT based legal product that is undifferentiated in a market with many competitors).”  (Blueprint for Change, at 479).  As legal practice becomes more routine and commoditized, compensation for lawyers will come under pressure.  The structure of legal services will change as well, with lawyers (or, more broadly, legal service providers) working for specialized firms that look more like service providers in other industries than contemporary law firms.

Although I think it has limits, I think it is true that at least some change of this kind is occurring in the legal industry.  I do not think, however, that it is particularly new.  One example of this kind of change discussed by Professor Henderson is the rise of firms that provide contract attorneys for discovery work.  My first big assignment as a law firm associate in 1997 was to supervise a major document review and coding projects (ah, the glories of Biglaw!).  At one point, I had 60 contract attorneys working for me. We were using technology to make the review process more efficient.  This technology has improved over time, but technological change has also created a dramatic increase in document review work.  Even in 1997, the increased use of e-mail was creating many more documents for review than had been created in the past when written communication was exclusively on paper.  In the document review world, technological change has probably created more work in the last 20 years (by exponentially increasing the number of documents to be reviewed) than it has eliminated (by automating parts of the process).  It is also worth noting that while certain aspects of document review can be performed by trained monkeys (and thus can be automated), other parts require the work of human beings exercising judgment.   More importantly to the subject of this particular post, I don’t see change in the document review world in the last few years that is different in kind than change that had occurred in the prior 15, making it unlikely that any changes in this area are the cause of the present relatively poor job market.

Reconsidering the Conventional Wisdom on the Legal Job Market - Part I

Over the past year or so, a conventional wisdom has developed about the status of the legal job market.  This conventional wisdom has at least three components:   (1) Recent graduates are getting law jobs at distressingly low levels.  (2) The legal job market is undergoing a profound structural change.  (3) The lousy job market is a reflection of these long-term changes, and is not just a product of a recession and slow recovery.

In this and subsequent posts, I will push back against certain aspects of this conventional wisdom.  At the outset, however, I want to be very clear about what I am NOT arguing.  I am not arguing that the current legal job market is great – it is not.  I am also not arguing in defense of the status quo in legal education – as I’ve explained in prior posts (here, here, here, and here), I worry about many facets of legal education, not least the student debt problems caused by ever-increasing tuition.

In this post, I will argue that it is highly likely that more recent graduates throughout the country are getting law jobs than the conventional wisdom assumes.  My argument will be based on data about what graduates from my school actually are doing now.  In my next post, I will briefly discuss the claim that the poor job market is due to structural changes in the legal job market.  [Update:  the second post is here].  I will explain why I am skeptical that the structural changes in the legal job market are significantly different than those that have occurred in the past, and why I am therefore skeptical that the current anemic state of the legal job market is the result of structural, rather than economic, factors.  In my third post, I will briefly discuss Bureau of Labor Statistics data on the legal job market, and will explain why caution must be used in interpreting this data in discussion of legal employment.  [Update:  the third post is here].

If you want to see the entire series of blog posts now, I have collected them in this document.  The rest of the first post is below the fold.

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.

New Law School Rankings: Employment Data Cleaned Of School Funded Jobs

I've taken the same data that Gary Rosin used in this post (which ranked schools by percentage employed in full-time, long-term jobs requiring a JD) and cleaned the list...by excluding all such positions that were funded by the law school.  

One concern I have about Gary's list - similar to concerns about US News rankings - is that once you eliminate the top schools, an ordinal ranking suggests large distinctions between schools with small acutal differences.  Thus, the gap in Gary's list from the #1 school (Penn) to the #31 school (Georgia) is 25 percentage points; Penn placed 94.4% of its students and Georgia placed 69.4%.  But the gap between Georgia and the school 30 places down the list - #61 FIU (which placed 63.6 of its students) - was only 5.8 percentage points.  A law school candidate might be agnostic as between Georgia and FIU, based on placement, but not between Penn and Georgia.  

I am going to publish my list from number 1 to 197, but a savvy reader would be well advised to consider schools in clusters.  For example, this time using my list, schools 1 to 6 place over 85% of their grads in legit L/T, F/T JD required jobs.  Call that cluster 1.  Schools 7-19 place over 75%.  Schools 20-52 place over 65%.  Schools 53-98 place over 55%.  And so on.

Even this clustering obscures important facts for anyone comparing law schools, the primary one of which is this: outside of a few elite schools, most grads with jobs are working somewhere geographically close to their law school.  So a graduate of #34 Campbell University has a comparatively good shot at a job; it's probably going to be in North Carolina.  Ditto #28 South Texas College of Law.  And if your goal is Big Law, particularly in $160K-ville, you'd best take that #17 Northwestern offer (even if you did get into #16 LSU or #15 West Virginia.)  I do love Alabama - after all, it was my first academic home - but if I had an offer from #14 Yale and #13 Alabama...well, you know where this is going.

And a close reader might consider whether a particular school claims a very high number of graduates going into solo practice.  While solos are treated the same as associates at Wilmer Hale, for statitstical purpose, the average solo is probably going to earn less during her first few years than she would have made in a non-JD job.  You can go here and and sort through all sorts of these issues. 

Are there any notable distinctions between my list and Gary's?  That is, did some schools hire a big chunk of their grads in long-term, full-time JD required positions?  A few.  Virginia falls from #2 to #11  - or almost 15 percentage points.  A bunch of schools - Chicago, NYU, Columbia, and others - showed distinctly weaker placement numbers, though they remained quite strong, comparatively.  And then there was George Washington which fell from 14 to 76 or from 81% employed to 60.35%.  This is an admirable form of back-end financial aid for unemployed grads, and phenomenally expensive, but it does confound the rankings a bit.

My chart is after the jump.  If you want to compare Gary's ranking which includes law school funded jobs, it's here. 

Clark on SLU

I think faculty lounge readers will be very interested in Annette Clark's thoughtful and thought-provoking reflection on the events surrounding her departure as dean at SLU, "Postscript to a Deanship," which appeared recently in the Toledo Law Review.   There is a lot in the article that's worthy of comment and reflection.  The article reminds me that I should have said something last year when my friend and former colleague Phil Pucillo was blogging about about SLU here at the faculty lounge.  Some people questioned why Phil, who's not a SLU faculty member, was blogging about this -- and I guess that was related to his urging faculty members to speak out.  Phil is one of my heroes for having taken a stand in favor of faculty governance when he was on the Ave Maria faculty.  His stand for faculty governance makes him an ideal person to comment on the situation at SLU and also to give some perspective on the likely consequences for everyone involved -- and the reasons why faculty might remain silent, as well as why they might speak out.

By the way, many congratulations to the Seattle University law school's community on recruitng Annette Clark as their dean.

Law-School Funded Jobs

To fund or not to fund? Who would have thought that that was a question? The recent ABA Employment Report for the Class of 2012 shows that, for law schools located in the continental United States, a total of 1799 graduates (3.9%) were employed in law-school funded positions.

The first table shows that the bulk of the law-school funded positions were Bar-passage required, or JD advantage, positions:

Full Rankings: Bar Admission Required, Full-Time, Long Term

Some of you have asked for the complete rankings of  the Class of 2012 rates for graduates employed in full-time. long-term positions requiring Bar admission for reporting law schools located in the continental United States.

Bar-Admission Required, Full-Time, Long-Term: First Look

The ABA recently reported that 56.2% of the 2012 graduates from ABA-approved law schools were employed in full-time, long-term positions required admission to the Bar.

According to my analysis of the data for the Class of 2012, for graduates of the 197 reporting law schools located in the continental United States, 56.9% were employed in such positions. As you might expect, those graduates are not equally distributed across those law schools. The employment rates at those schools ranged from a low of 21.5% to a high of 94.5%. The 25th, 50th and 75th percentiles were

25th	50th	75th
46.7%	54.8%	66.2%

The following chart shows the distribution of law-school employment rates in full-time, long term positions with Bar-admission required:

New 2012 Law School Employment Statistics

Thanks to Gary Rosin for pointing out that the summary of the new ABA law school employment data release is here.  School by school statistics can be found, individually, here.

These are the overall numbers (click to enlarge):

 

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.

University of Texas Regents Order Investigation Into Flow Of Law Foundation Money

In a split 4 to 3 vote, the UT regents authorized an external review of the flow of fund-raised money through the University of Texas Law Foundation.  Board members were continuing to react to the revelation over a year ago that the Foundation provided forgivable loans to law faculty.  Opponents of the review argue that it is part of a broader effort to oust UT President, and former law dean, Bill Powers.

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?

The phenomonology of choosing to go to law school

There is a really interesting post over at Crooked Timber, What you Can't Expect when you're Expecting about the difficulty in treating a decision about whether to have a child as a purely rational (let alone economically rational) decision; you cannot really know what it is like until you do it, at which point (at least for most responsible people) it is too late to change your mind. Certainly once you've done it, if it doesn't turn out to match all of your dreams, it can be fairly devasting for all concerned, parents and children both. Happily, (or so it seems) a goodly number of people either find that being a parent does meet their dreams or they adjust their dreams accordingly.

In reading this piece I was struck by the parallels between the phenomonological problem described - i.e., that the experience of being a parent is something virtually impossible to "know" or convey before you experience it and thus makes rational choice difficult - and the decision to go to law school. And now that decision is more fraught than ever.

When I graduated from law school in 1991 we were in the midst of something of a recession and jobs were harder to get than they had been for some of our predecessors.  It was perhaps worse in Miami because so many people came from out of state and wanted to stay in Florida. I don't know how many of my peers ended up working as lawyers, but I suspect most of them did, even though it was such a tough market that even classmates on law review had trouble getting jobs. I do know though that some of my classmates found they hated practicing law, or at least they hated the big law firm form of practicing. And while the debt to earning potential was not as dire then as it is now, it was pretty significant and potentially life-altering, even then.  (Twenty some odd years later I am still paying on my students loans although I have a lot of complicating factors, not the least of which was an additional year at Harvard Law School getting an LL.M.) 

So what do we do with that particular insight? Should we tell potential students: "You know a lot of people find they don't like practicing law, especially in the sector in which the compensation makes it most likely for you to be able to comfortably handle your student loan debt."?

There is no doubt that many people decide to go to law school as a purely economic investment in what they image to be a lucrative career. And it is still is for some. But there is also no question that the debt/earning power problem has intensified the risk of the decision on whether to go to law school. And indeed some have suggested that these two questions - whether to go to law school and whether to have children have converged such that choosing one may rule out the other. 

But are these simply market driven decisions, or are there emotional and deeply personal value issues at play as well, ones that cannot be reduced to weighing the financial costs? And how do these two interact? Unclear. I think when you factor in these personal issues the decision is not so clear cut as many make it out. The bottom line seems to be that the only reason to go to law school is that you really want to either be a lawyer or have that credential for some reason related to your personal circumstances.  And if you want to be a lawyer it does not seem that evaluating this decision solely in market terms captures all that that means.

NOTE: A word about comments. I am going to delete what I deem to be abusive comments.  In particular, commentors whose anonymity does not seem to be predicated on a fear of professional repurcussions but merely a desire to throw brickbats without any accountability are going to be deleted. This is not TFL, this is me.  Civil commentary made anonymously will be accepted.

Law school: Are the wrong people being discouraged?

Brian Leiter has this interesting bit about an apparent slight uptick in applications to law schoools. Applications to Law Schools.  A curious aspect appears to be that the group seeing the largest decline may well be those for whom law school would likely be a good (or at least better) risk.

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.

More on VAPS

Regular FL blogger Eric Muller posed a very interesting and thoughtful question in this post Are We Sustaining a VAP Trap? He did not argue that there was a "VAP trap"; he was inviting thoughful inquiry and perhaps reconsideration of whether, all things considered, it makes sense (at least for some)  to have such programs or to enter such programs in the current job market.

Here is a great post from Christine Hurt over at The Conglomerate which I think sums up the issue very well. The VAP Debate. The bottom line is that doing a VAP has always entailed uncertainty and is going to be more of a risk in a down market. And it is a down market right now, particularly since so many schools are doing precisely what so many of the critics of the status quo think they ought to do - to wit, downsizing their classes and thus  not hiring new faculty. 

Professor Hurt reports a few things that bear repeating: law schools pay VAPs, not the other way around, so this is NOT like being a student and not necessarily a cost savings for the school since, although VAPs are paid more than adjuncts, they are typically paid less than regular faculty and do not do any of the associated service faculty are expected to do and sometimes teach fewer courses (programs vary). Most school could get adjuncts to teach the same classes for less money. So the cheap labor thing just doesn't wash.

In the current environment, it may well be that some schools will cut back or eliminate their VAP programs.  We will have to wait and see.  As many have already observed, not all programs are the same. Some provide more opportunities to workshop papers, more mentoring, etc. than others.  The Bigelow at Chicago is a well-known example.

At any rate, go to the Conglomerate to read Prof. Hurt's take on this issue.

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.

Critical Race Conference at Yale

Gerald Torres and Lani Guinier (above) led the opening session for the Critical Race Theory:  From the Academy to the Community conference at Yale Law School on Sat. Feb. 9, 2013.  The students who organized this conference (from left to right) Christopher Lapinig,  Jamelia Morgan and Marbre Stahly-Butts, did a wonderful job under extremely adverse circumstances - the snow storm of the century hitting the New Haven area smack dab in the middle of the conference - and it was a smashing success for attendees. Alas, over 500 people had registered for the conference - students and faculty from law and graduate programs all over the country (and, in at least one case, from overseas) but the attendance was terribly suppressed by the horrible travel conditions.  Still, about 150 brave souls made their way through the snowy streets to attend an abbreviated version of the conference originally planned. Speakers in attendance included Kimberle Crenshaw (UCLA/Columbia), Darren Hutchinson (American), Tanya Hernandez (Fordham), Priscilla Ocen (Loyola Law School), Ezra Rosser (American) and Charles Lawrence (Hawaii) (Although Professor Lawrence had to participate by phone because he had become snowed in only a mile away!).  This is only a partial list and the attendees' contributions were a key part of what made the conference work. The participation and enthusiasm shown by participants makes clear there is a thirst out there for more courses involving CRT topics and methodology, and perhaps critical theory generally.  This was a student driven effort and it drew students from around the country. A particularly terrific crowd of students came from Northeastern Law School, others came from various graduate and even undergraduate programs,  and they and many others were eager to find ways to put their ideas into practice in making a difference in their communities. Given the outpouring of demand and the unfortunate weather circumstances that resulted in a shorter version of the conference than originally planned, the students informed participants that a second conference at Yale is planned for  late spring or early fall of 2014. So stay tuned.  Those interested in information about the conference you can email the organizers at crt.conference@yale.edu. 

The Ex Ante/Ex Post distinction

Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post.  (These would be extreme ends of the spectrum).

But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are.  Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.

In contrast,  a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out."  And that is one of the problems raised in an earlier post on the value of  scholarship.  How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff.  And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which  may defy easy calculation in market terms. 

There is an analog to this problem in advertising circles. The old joke goes:  "I know that 50 % of my advertising budget is wasted. I just don't know which half!"  For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully.  The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.

For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue.  Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal.