The folks in the Touro Law Library have posted a document titled Legal Education Reform Bibliography on SSRN. It's here.
Let me clear what I am talking about here.
I’m looking for methodologies that pretty much all successful lawyers use as a core part of their practice. In a larger sense, I’m looking to generalize away from Langdell’s definition of lawyering as mastery of certain core principles and doctrines (modified and carried forward as ‘thinking like a lawyer’), and get to a more complete view of what lawyering involves in all its diverse settings. I’m looking for methodologies comparable to the different clubs in a real golfer’s bag besides the putter, such as the driver, the long iron, and the pitching wedge. In identifying core methodologies, I’m looking to move toward a conception of lawyering that is richer than Langdell’s view of mastering legal principles much in the same way a view of golfing as it occurs with a whole bag of clubs will be richer than a view of golfing as putting.
I’m also looking for methodologies that I think are fit for academic study – methodologies that I think an academic institution concerned with both the occupation of lawyering and society’s need for legal services ought to be thinking about from an academic perspective.
I don’t mean to make a list of useful, or even essential, specialty specific skills (drafting a complaint, writing a contract). I don’t mean to suggest those don’t belong in a fully rounded JD curriculum, but here I am looking at generalizable and worthy of academic study methodologies that can be used to break down diverse problems across diverse settings.
I’m also not looking for providing an understanding of what other occupations do, so that lawyers can converse knowledgeably with them, but that are not in and of themselves part of the work product of lawyers (e.g., creating balance sheets or econometric models). Again, these have a place in a modern curriculum, and all good lawyers need to understand the goals of their clients, but it’s not the current inquiry.
There are functions that I think all lawyers engage in – for example, discovering and evaluating ‘facts’ – but I’m unable to describe a useful methodology that fits in an academic setting. I’m also looking at methodologies that can be taught at at least an introductory level within the constraints of a three year J.D. curriculum – methodologies that would require a separate master’s or Ph.D. track seem beyond the achievable scope.
With regard to the kind of generalizable methodologies core to all the diverse kinds of law practices, I’m pretty sure I don’t have the complete list. I also think that to do this right someone is going to need to do field research, observing what successful lawyers actually do (not just what they think they do). I do have four methodologies, aside from legal analysis of all kinds and legal writing/speaking, that I think pretty much all lawyers use and that are fully worthy of academic study.
If there is one thing all US law schools teach, it is how to ‘think like a lawyer.’
Edward Rubin, in his penetrating article Why Law Schools Do Not Teach Contracts and What Socioeconomics Can Do About It, identifies what law schools teach pursuant to Langdell’s approach as a ‘methodology.’ He explains why methodologies matter in academic institutions:
To teach a body of information as an academic subject, one needs a generalized methodology of some sort. This is not necessarily a theory, and certainly not a theory in the sense of a complete explanation that predicts future occurrences, like quantum electrodynamics. Rather, it is a unified approach to the subject matter that enables students to answer a set of evaluative questions.
He doesn’t say it, but for professional education the methodology and the evaluative questions have to be relevant to the kind of reflective practice that marks the professions – it has to be an approach that professionals can draw on in the context rich, unique situations where they are asked to solve particular problems. Rubin explains how methodologies work in these settings:
Confronted with a narrative of past occurrences, history students using the methodology they have been taught can discuss the nature and reliability of the account, the political, social, and economic causes of the event it describes, and the effects of that event on subsequent events.
Langdell’s pedagogy, even its most narrow original form, provides such a methodology. As Rubin notes:
Confronted with a judicial decision, law students using the methodology they have been taught can identify the facts of the case, its holding and dicta, the doctrine on which the judge’s decision is based, and the extent to which the decision is consistent with other decisions based on the same doctrine.
For all the weaknesses of Langdell’s approach, the methodology implicit in his method has proved powerful and useful. It’s not the whole toolbox, but, like putting in golf, it’s essential.
A methodology is something more than a skill or a competency. I don’t think either of those concepts involve an underlying, explanatory theory. To get back to golf, teachers of a skill might tell a golfer to keep his knees bent when teeing off. Someone evaluating or training for competency might look to see how far and straight the ball goes and give appropriate guidance about what should be happening and some ideas on how to improve performance. Academic scholars of a methodology would try to understand the mechanics of a golf swing and try to share a theory and methodology for deconstructing and improving golf swings with students, a theory and methodology they could draw on throughout their careers if problems emerged in their swing.
An important element of a methodology is that it’s not just a collection of practical tips for those in practice. Neither is it limited to the immediate task at hand. It requires a theory, and thinking about that theory. Langdell’s original pedagogy was tied intrinsically to his theory that law study was a kind of science, with the reading of cases being like the examination of botanical or biological specimens. Scholars could spend their lives immersed in exploring the theory, and students could apply the theory and the methodology to diverse situations throughout a lifetime of practice.
Langdell’s method was tied to his view of what mattered in law, all of which he felt could be found in the reported cases. Even for ‘thinking like a lawyer’ law schools have recognized that his approach is incomplete, if for no other reason it does not really engage with other sources of law such as statutes and regulations. Beyond that, the originating theory – that law is some kind of science – has long ago been tossed overboard.
To a remarkable, even ludicrous, degree, Langdell’s view of what law is about (appellate cases) and what lawyers do (think about the law) has remained dominant in American law schools, despite occasional flashes of recognition (legal realism, law and society) that something else is going on. The Langdellian focus on trying to understand and sort out doctrine continues to hold center stage in both law school teaching and scholarship, and as a result, continues to distort academic understanding of what methodologies practicing lawyers need to know.
I think there are other methodologies applied by successful lawyers of all kinds, and that many of these are as worthy of academic study and thoughtful training as how to think like a lawyer. A few of these methodologies, in fact, are pretty well entrenched in the scholarship and the elective curriculum, while others remain conspicuous by their absence. Some are found in other schools at the university, such as business schools, but can be effectively taught to law students and studied by law professors. A complete professional training would equip students with the full range of core methodologies.
To really set out a proper list of methodologies are used by practicing lawyers, we need to know more about what lawyers do. Someone needs to sit in lawyers’ offices, as John Flood did back in the 1980s, attuned to this question, and try to sort out what methodologies are being used. It’s slow and expensive work, I suppose, but as a foundation for a +-$2 billion annual educational enterprise supporting a +-$150 million a year service industry, it would seem that someone should be willing to fund it.
In the meantime, I have some ideas. Some of these derive from the lengthy experiential learning experience I went through by virtue of being a practicing lawyer and founder of a start up company. Others I have developed unscientifically by polling a few lawyer friends via Facebook and email. Some rely on scholarship in the area. In my next post I will go through a few, and then later dig in more detail to one or two. In the meantime, feel free to weigh in with your own nominations in the comments – I promise to steal all the good ones.
If I were the dean of a law school struggling to define its educational mission with regard to training lawyers in these changing times, I would get past doctrine, skills and competencies, and start with this idea of methodologies. Situation specific skills and competencies come and go, and have an uneasy relationship with the academy. Methodologies for professional practice are generalized and durable, and justify academic thought. (Again, this is not to diminish clinical and experiential education, which obviously can play a key role in teaching methodologies, but rather to fix their role in a broader framework).
Leaving school with the same kind of grasp of other core methodologies that most students have of ‘thinking like a lawyer’ may not, I acknowledge, help students get better first jobs. Based on my experiential learning experience, however, I think being trained in the relevant methodologies will help them be better and happier lawyers, which I view as worthwhile in its own right.
Yesterday, my colleagues and I received very good news. Philadelphia attorney Tom Kline has given the law school a $50 million naming gift. The school will now be called the Drexel University Thomas R. Kline School of Law. Details here.
In addition to supporting existing programs, the gift will also be used to establish a new trial advocacy center.
What do lawyers do? What do lawyers need to do well in order to succeed? These are pretty key questions for legal educators, I think.
The amazing thing is, we know far too little about what lawyers do. In her foreword to the Kindle edition of John Flood’s look at the day to day life of a mid-sized Chicago law firm, What Do Lawyers Do: An Ethnography of a Corporate Law Firm, Lynn Mather notes that the question has “not been systematically explored.”
The lack of information astounds all the more when you stop to think about how large an industry law is. Back when Michael Kelly wrote Lives of the Lawyers Revisited, he noted that law was already a 150 billion dollar a year industry in the US alone, and I don’t think the figures he relied on were able to include all the places lawyers work. By my rough reckoning, just US legal education, which aims to prepare law students for whatever it is lawyers do, takes in somewhere between $1 billion and $3 billion annually in tuition alone.
Flood’s look at a midsize Chicago firm in the 1980s provides some of the answer. As he concludes, “In the practice of law one finds very little law.” What lawyers do instead, it seems, is talk, and mostly to each other. Flood’s ethnographic look, taken by sitting quietly amidst practicing lawyers as if he were investigating an Amazonian tribe with access to somewhat better restaurants, makes clear that as lawyers progress through their careers legal research and writing becomes less and less important.
Recently, Scott Fruehwald of the Legal Skills Profs Blog directed me in a comment here to an article by Neil Hamilton that looks at lawyer competencies. Law firm human resources departments, like human resources departments everywhere, have started using competency matrices in staff reviews. Hamilton looks at the forms used by 14 firms in Minnesota and then combines those with earlier studies going back decades to see what people think lawyers ought to be good at. He argues, in short, that law schools should move to a competency oriented curriculum based on what employers value, with a well-developed sense of professional identity as the envelope containing the individual competencies.
It’s difficult if not impossible to force rank the competencies, because different firms and different studies use different terms to describe similar or overlapping competencies, but a look at some of the most frequently used competencies gives sufficient sense of what firms think young to early-mid-career lawyers should achieve.
It seems curious today, but Christopher Columbus Langdell viewed his method of teaching law as intensely practical. He had, after all, practiced for what today seems a long time, fifteen years, and while he did not for an instant believe that practice experience was essential to or even helpful for law teaching, his own practice experience did inform his view of what lawyers needed. The method he put in place at Harvard – the structured multi-year curriculum, the case method, Socratic questioning, examinations based on hypotheticals rather than reciting back doctrine – was designed to prepare law students for practice better than the lecture and recitation method that had preceded it.
The method took for granted that the core to being a successful lawyer was mastering an esoteric body of knowledge. As Langdell put it in his casebook on Contracts:
[Law] considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.
That Langdell saw mastering a common body of knowledge and knowing how to apply it as the core of professional practice should not seem exceptional. Sociologists routinely define professions as involving the application of a common body of specialized knowledge.
What's more, the goal of learning all the important law was an achievable task for students. As late at 1897 Holmes declared mastering the “finite body of dogma” a task that could be achieved within a “reasonable time.”
Learning doctrine, of course, was not the only selling point for Langdell's method. The case method, by forcing students to experience the formation of rules directly and develop their own ways to categorize and organize doctrine, was also seen as getting students closer to what lawyers did. Armed with the law they needed and facile at applying it, graduates were equipped for practice, a generalized practice that still bore more similarities lawyer to lawyer and office to office than not.
As time went on, the importance of the common body of knowledge faded from defenses of the case method and the importance of knowing how to think about legal issues gained prominence – by 1907, Langdell’s acolyte James Barr Ames was justifying Harvard’s approach on the grounds of teaching “legal reasoning.” That justification – that law schools teach students to ‘think like a lawyer’ – has stayed with us to the present day.
As my last post considered, law practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.
Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.
An eminent member of the bar, carrying all the intellectual prestige of one who has led a venerated Ivy League institution, trained in the time when lawyer-statesmen walked the earth like giants, stood before his audience. Change was afoot, and a valued tradition was about to be lost. This is what he said:
Lawyers . . . have become experts in some special technical field. They do not practise law. They do not handle the general, miscellaneous interests of society. They are not general counsellors of right and obligation. . . . Lawyers are specialists, like all other men around them. . . . [This] necessarily separates them from the dwindling body of general practitioners who used to be our statesmen.
The time: 1910. The speaker: Woodrow Wilson.
In this, as in so many things, Wilson may have been ahead of his time.
Today is Teacher's Day in China. That meant I got flowers and a card signed by the students in my Civ Pro class, plus emails from students past and present thanking me for being their teacher. To put it mildly, this is not behavior I engaged in when a student, and it always surprises and delights me. I hope your Teacher's Day goes as well.
Imagine that once there was a famous golf school, the dean of which believed that everything that needed to be known about golf could be learned on the putting green. Being the head of a famous school, the dean was able to put into place a theory of instruction based on just that theory. Students arrived, were handed a putter, and were told that they were learning to think like a golfer.
To be fair, when the dean launched his method golf schools were in a bad state. The primary method of instruction before he introduced the putting method was lectures, where old golfers would stand before a classroom in their knickers (American meaning), holding their mashies and niblicks, and expounding on the science of golf. By comparison, the putting method was positively experiential.
Each year I spend the first few minutes of my Civ Pro class, as I expect so many other profs must do, showing my students the death cage match from Mad Max Beyond Thunderdome. The battle between the “man with no name” and the baby-faced giant, all to decide who really owns a vehicle, sets up a lively discussion about procedural justice and modes of dispute resolution.
The second day I turn away from no-holds-barred adversarial battles and towards topics that are less traditional for Civ Pro classes. For reasons that at first clearly perplex my students, we take our second day in Civ Pro to discuss a book called The Geography of Thought, written by a psychology professor named Richard Nisbett. The book collects the results of decades of research by Nisbett and others, in which experiments are run on the cognitive styles of different cultures. In particular, he contrasts the cognitive style of east Asians – such as my students – with the cognitive styles of Europeans and Americans, such as myself.
The first interesting thing about Nisbett’s results is that cognitive differences are notable in very early childhood. They are in no way genetic – Chinese Americans, for example, test as Americans after a generation or two – but they are sufficiently deeply rooted in cultures that they show up before philosophies or dogmas can be taught with any sophistication.
It may well be that there are too many law schools in the country. Clearly, the number of law school graduates in recent years has exceeded the number of jobs for new lawyers. But it is equally clear that few law schools are likely to close down voluntarily. No university administration wants to shutter an institution that employs dozens of professionals and staff, has a loyal alumni base and has a profitable history. Rather, law schools will seek to endure the cyclical drop in applications through some combination of lower admission standards, reduction of class size, shrinkage of faculty and the institution of other cost-cutting measures until the legal job market improves and applications rebound.
The weakness of the legal employment market and the skyrocketing cost of legal education has led to an historic decline in law school applications. This reduction of the applicant pool has put the greatest pressure on what I will call “opportunity” schools – law schools which, by virtue of their mission or the market niche they occupy, traditionally admit a substantial number of at-risk students. For the purposes of this essay, I am defining at-risk students as those at the 40th percentile (149) or lower on the LSAT, although students slightly above that are still at some risk of failure (See the chart in my previous post.) With law schools above them in the pecking order admitting students who, in more prosperous times, might have had no choice but to attend an opportunity school, these schools may be forced to admit an even higher percentage of marginal applicants in order to stay in business. Of course, schools can go too far in lowering admission standards (see my discussion of InfiLaw’s recent admission practices in my previous post), but I believe it is possible for a law school to admit a substantial number of at-risk students without running afoul of ABA standards or ethical business practices.
Whatever one’s view on the appropriateness of admitting at-risk students, I think we should all be able to agree that a law school, having admitted such students, owes them a duty to provide the greatest possible chance of success in realizing the
In April, Dan wrote about the Florida Coastal dean search where the candidate was asked to leave in the middle of his job talk (under threat of a security escort out of the building) after his presentation turned a critical eye towards the school's admissions standards and bar passage rates.
Now Paul Campos fleshes out some of the details in this Atlantic piece, which he uses to launch a longer discussion about the Infilaw suite of schools and the crisis in higher education generally.
Thank you to Professors Brophy and Filler for inviting me to the lounge -- I’m looking forward to sharing a bit of the pre-law advisor perspective with you all. (And I especially appreciate the image Prof. Brophy shared of our W.E.B. DuBois Library here at UMass Amherst, for its metaphoric aptness: an imposing edifice of learning with a troubled history, and whose myths are often more entertaining than the truth.)
In this first post, I’d like to just provide some additional context for what will follow. My perspective on pre-law advising, legal education, and the profession is shaped in part by my almost 10 years of practicing law prior to entering academia. The first two of those years were spent in constitutional litigation at what’s now called the Center for Reproductive Rights in New York City. The balance was at what’s now called Community Legal Aid (and formerly Western Massachusetts Legal Services) in Springfield, Mass., where I represented indigent survivors of domestic violence in family law proceedings. My practice experience informs my teaching and advising in myriad ways, but also my perspective on how we can best prepare new lawyers, and my persistent belief in a collective professional obligation to serve others. I teach and advise at a large non-elite flagship university, whose law school aspirants mirror almost exactly the numerical profiles of applicants nationwide (except, I can't help noting, our outcomes are better). I should also note that while by happy accident I teach in a Political Science Department, I am not a political scientist nor even much of a scholar, except to the extent necessary to support my primary roles as a teacher and advisor.
This last is typical of a good portion of the broader community of pre-law advisors to which I belong. I’m a member of the Northeast Association of Pre-Law Advisors (NAPLA), which is one of several such regional associations gathered under the PLANC (Pre-Law Advisors National Council) umbrella. Members come at this work from at least three overlapping perspectives: there are professors (mostly in Political Science and/or Law & Society departments, but also in business, paralegal certification programs, and others); university career development professionals; and lawyers in second careers, often finding ourselves in overlapping Venn circles with one of the other two groups. (The associations for now include only university- and college-based advisors, not the private pre-law advisors, about which I’ll say more in a future post.) We communicate a fair amount via our list-servs, LinkedIn groups, websites and conferences, and we’re generally a pretty collegial bunch.
If you find yourself chuckling at the idea of a professional association for pre-law advisors, you’re in good company – I still smile self-consciously sometimes as well. Like many of my generation, it never crossed my mind to even ask whether there was a pre-law advisor at my undergrad institution when I applied to law school in the early 90s, and, as a non-traditional aged applicant, I probably wouldn’t have taken advantage anyway. What was there to know? You took the LSAT, if you did well you applied, and then you attended the “best school you got into.” That’s what every lawyer told you to do (after they got past reflexively telling you not to go to law school at all). And you figured out what you were going to do with that law degree during the three years of law school, or maybe later. Debt? Feh, worry about that later. It’ll all work out.
Professor Raymond Ku and Case Western Reserve University have settled their differences. Ku, a professor at Case Law, sued the University claiming that then-Dean Lawrence Mitchell retaliated against Ku for reporting Mitchell's alleged acts of sexual harassment. Ku will become the Director of the newly created Center for Cyberspace Law and Policy.
The statement regarding the settlement, which oddly includes a bit of puffery about the law school, is here.
It's been about a month since the LSAC last updated their data on applicants for fall 2014. They are now reporting that "As of 7/04/14, there are 347,967 fall 2014 applications submitted by 53,104 applicants. Applicants are down 7.4% and applications are down 8.6% from 2013. Last year at this time, we had 97% of the preliminary final applicant count." If this year's applicants follow last year's pattern, we'll have approximately 54,746 total applicants for the class entering in fall 2014. Dan Filler has some historical data on the first year enrollment from 1964 to 2012 here. I link to some more comprehensive data (going back to the 1940s) here.
My last post in this series is here.
This is newsworthy, but hardly the big news some people initially suggested. Thomas Cooley Law, a school with five campuses in two states, has announced that it will not matriculate any 1L's this fall to its Ann Arbor shop. Students admitted to Ann Arbor are welcome to attend Cooley at one of its other four campuses. The school has also announced faculty and staff layoffs and other cutbacks. The school does not have a present plan to shutter the Ann Arbor campus.
In 2013, Cooley had a total of 2,334 students enrolled. It had 907 1L's last fall with a median LSAT of 145. The school's total size has dropped significantly over the past few years. In 2010-11, the school enrolled a total of 3,931 JD students.
This announcement will have very real implications for faculty and staff who lose their jobs, and it may change the overall Cooley environment. But for people watching closely to see a law school close, keep moving. I suspect that several other schools have been even more aggressive than this in their efforts to reduce costs.
Recently I offered a post that tried to clarify some important misunderstandings of my earlier June 20 post. The June 20 post had remarked on how the graduate academy in the liberal arts had fallen prey to the same motivated perception to which some in the legal academy have also succumbed—namely, that the tens of thousands of recent law grads unable to get a genuinely law-related job were just not making proper use of their law degrees (or alternatively really were making proper use of their degrees but didn’t know it). The moral of the story, I suppose, is self-interest’s insidious power to quietly overwhelm any bulwark we try to erect against it, not least reason, good intentions, education, and most if not all of the Ten Commandments.
I explained in my last post that there are essentially three ways to think about the relationship between a course of graduate or professional study and any employment the prospective student may obtain after graduation. One way is to posit that, for you, there is no relationship, and you are pursuing the course of study for its own sake without expectation of any practical benefit when you’re done beyond whatever enlightenment the education may confer. This is perfectly valid, but highly personal and idiosyncratic, and not typical of the ordinary person. The second way of thinking about the relationship between professional study and postgraduate employment is that there must be a relationship between the two such that the education is justified by the worldly benefits that it creates. I suggested (based on analysis in my forthcoming empirical study of the job market for new lawyers) that this Practical Justification Test is met if either the postgraduate position requires the degree as a condition of employment, or the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way. If the job doesn’t meet this test, then there is a quicker or easier way to achieve the same or equivalent benefits, and the course of study wasn’t worth it.
The third way of thinking about the relationship between graduate or professional study and postgraduate employment is, as I put it yesterday, that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything. That is a palpably unrealistic description of a law degree (or pretty much any other graduate or professional degree) that nevertheless can be heard among some law deans and admissions officers today.
In response to the post, I received a comment from an admissions officer at a good Midwestern law school that deserves serious consideration and a detailed response. The admissions officer suggests, in addition to the three ways I advanced, “a fourth way to think about the relationship between seeking an advanced degree and the employment a student may obtain afterward”:
I think many students see the versatility of the law degree as a form of risk insurance. Their intent in attending law school may be to practice law and they'd be disappointed not to. But if they don't find “traditional” legal employment, they still might be able to make use of their law degree. It's common to run into law graduates who have ended up outside of traditional legal practice, but in a field for which the JD has some benefit. Is it wrong to point to such outcomes? I think this could be valid in the PhD realm too. I think for most people it would be foolish to pursue a history PhD if their primary goal was to become a high school history teacher. But is it helpful for the candidate to know that if they can't find a tenure track position at a university, that PhD may still be useful for a high school teacher to land a position at a higher paying school district, or become department head ahead of other faculty? So while it may be overselling to say that a PhD is perfect for someone seeking to become a high school teacher, or a JD is perfect for someone looking to do compliance, I think it's fair to point out to prospective students that these degrees might be beneficial in ways that are not obvious. [Paragraph breaks omitted.]
Because this comment cogently describes a view not uncommon in the legal academy today, it deserves careful assessment. Is this “fourth way” a constructive perspective on whether to pursue a law degree? With all respect to everyone involved, as proposed above and typically presented it is an unacceptably incomplete and often misleading portrayal.
Let me explain why. In broadest (dare I say philosophical) perspective, the path you walk from where you stand right now can go any number of different ways. Having gone a ways down whatever path you choose, you will gain a perspective that you didn’t have at the time you chose the path that got you there. Sometimes that perspective will be one you anticipated when you chose the path; sometimes it won’t. This is really just another way of saying that most of us get wiser as we get older simply because we have the benefit of more experience over time.
To be sure, some of us make better use of our experience than others, but pretty much no matter what path you choose, you will reach a vantage point for which you will discover uses that you might not have enjoyed if you had chosen a different path. And this is true even if you make bad choices. Our prisons contain fair numbers of people who, having made very bad choices, will tell you quite genuinely that they have learned a lot as a result (and I don’t mean this in any ironic or cynical sense; sometimes the lessons we are forced to learn the hard way are the ones that teach us the most). This is not, of course, a reason for anyone to start committing felonies; it’s simply an illustration of the fact that it is quintessentially human to learn and grow. Thus, for anyone open to the benefits of experience—and that describes most of us much of the time—even the worst life choices we make usually teach us lessons with real value. Or as some of my older Yiddish-speaking relatives were prone to remark in times of failure or disappointment, “It shouldn’t be a total loss.”
Let’s apply this insight (assuming you can dignify it with that title) to the decision whether to buy a particular car, a decision many of us have faced at one time or another. The used-car salesman is touting the value and utility of the car, assuring you it has everything you need to take you where you want to go. You are understandably worried that the car may not live up to your needs. One thing that the used-car salesman does not say is, “No worries, pal. You should buy this car because, even if the engine implodes the minute you drive off the lot, the smoking pile of scrap that’s left will have measurable salvage value.” We generally don’t buy cars for their salvage value, especially when any car you buy will have salvage value if it can’t serve the purpose you actually bought it for.
I’m hoping an analogy to the decision whether to attend law school is emerging. If you have your wits about you, you consider whether to go to law school taking into account the likelihood that the degree will take you where you want to go—at the very least, a job that justifies that course of study under the Practical Justification Test set out above (and that includes both Bar Passage Required and, properly defined, JD Advantaged jobs as far as I’m concerned). But what if the car (degree) blows up the minute you drive it off the lot (graduate)? And what if the car costs $150,000, and there’s a 50-50 chance (or worse) that’s it’s going to blow up as soon as you hit the open road? What’s the value of what’s left? Should you buy a law degree for its salvage value? (And to anticipate an objection to the car-buying analogy, yes, we sometimes do consider resale rather than salvage value when we buy cars. But when we do, we are assuming that the car under consideration, like the other cars we might buy instead, will serve its intended purpose and take us where we want to go for as long as we want to keep it, thus assuring that it actually has resale value. When a law degree fails to get us a job that really meets the Practical Justification Test, that’s a car-wreck, and salvage value is all that’s available. Put slightly differently, you can’t resell your law degree, though some have tried; if it fails of its essential purpose, all you can do is salvage your career.)
The more subtle student of the dismal science would point out that whether you buy a law degree for its salvage value should ultimately depend on (a) the likelihood the car will actually blow up when you leave the lot; and (b) what that salvage value is relative to the return you could get from investments of your time and money other than buying the car. Fair enough. There are some serious uncertainty and measurement problems in addressing these questions, but we do know something.
Considering first the odds of an immediate car-wreck: Based on the empirical analysis in my forthcoming article, the average student starting law school last fall has perhaps a 60% chance of getting any job upon graduation that meets the Practical Justification Test described above. Of course, that chance varies quite substantially depending on the student: A highly qualified student attending a highly prestigious institution has more than a 90% chance of getting a job that justifies the course of study. A marginally qualified student at an unranked law school in a saturated market might have a 30% chance or less. So a realistic assessment of your prospects—based on hard, objective evidence like the placement statistics at the school you’re considering, your LSAT, and your undergraduate GPA—is essential. Law school is a much better bet for some than it is for others.
What about salvage value? Here is where the wish is all too often father to the thought. Law-school apologists assume very high salvage value for a law degree. They express this assumption by positing both a broad range of non-law-related jobs for which the degree provides access not available without it, and a broad range of invaluable practical and performance-related benefits that the critical reasoning skills we teach in law school provide in almost any job. Unfortunately, there is simply no empirical evidence that either of these assumed benefits exists for the typical person in any measure substantially greater than could be achieved by paths other than law school that require much less time and money. If you’re going to be unemployed (as a double-digit percentage of recent law graduates are), you’re probably better off unemployed without three wasted years and $150,000 in debt. If you get a job you could pretty much as likely have gotten without the law degree (high-school civics teacher; paralegal), you need to think about the difference between what you would learn in three years on that job without any education expense compared to where you are just starting that same job after a very expensive three years.
So does a law degree have any salvage value? Undoubtedly. Is that salvage value materially greater than what you could get (and the costs you could avoid) doing something else for three years instead of law school? There’s no evidence that it is for many if not most people. And to make things worse, it stands to reason that precisely those law graduates who are most likely to find their law degree failing its essential purpose (which is getting them genuinely law-related jobs) are least likely to achieve good salvage values.
But the key point here is that it’s not enough to say that a law degree has some salvage value. You need to compare that salvage value with how well off you might be if you did something else, or nothing. And that’s where the serious problem with our Midwestern admission officer’s justification emerges in high relief. Slip a generic law-school admissions officer into our hypothetical in place of the used-car salesman. One thing you won’t hear the admissions officer say is:
No worries, pal. It’s true that, considering our school and your credentials, you have less than a 50% chance of obtaining a job for which your law degree will be a necessary or a very important and directly applicable qualification. But you will learn things, and from time to time you’ll find some of those things relevant or even useful in some job unrelated to your education. Of course, I can’t promise you that what you might learn doing something other than law school—something for which an employer might pay you instead of you paying us tuition—wouldn’t prove to be roughly as relevant or useful. So are you in?
In other words, touting the salvage value of a law degree as “a form of risk insurance” without offering a clear-eyed assessment of how likely it is that the risk insurance will be needed, what its coverage limits are, and how cheaply you could get the same benefit another way is inexcusably incomplete. It’s a failure to accept the difference between a Smokin’ Bucketful of Awesome and smoking pile of scrap.
A couple of weeks back I wrote about a brief study that ranks schools based on their rank on median LSAT score of the class entering in fall 2013, employment outcome for the class of 2013, and citations to their main law review. I have now done two things with this paper -- first, expanded the analysis to all 194 law schools that U.S. News included in its March 2014 rankings (what it calls the 2015 law school rankings). Previously I dealt only with the 147 schools that U.S. News provided ranks for; now I include the additional 47 that U.S. News called "unranked." Second, in response to suggestions by readers, I have used two different measures of employment. The initial study used the percentage of the class of 2013 employed nine months out at full-time, permanent JD required jobs and this study provides a ranking using that measure. I now provide a separate table that uses a modified employment score (full-time, permanent JD required jobs minus school-funded positions and solo practitioners).
The exclusion of school-funded and solo practitioners causes some schools to fall rather dramatically and a few schools rise a little. One of the tables in the paper reports the schools that have the highest percentage of those positions (Emory tops the list at 21.9%; William and Mary is close behind at 20.7%; the University of Virginia is third at 15.9%). The final table in the paper reports the schools' three variable rank using the "traditional" measure of employment and the three variable rank using the modified employment measure and the differences between those two ranks.
As before, there is a high correlation between the U.S. News' rank of the top 147 schools and the three variable rank presented here. That in some ways validates U.S. News and maybe they validate the rankings here. But importantly, there are significant differences between the U.S. News rank and those presented here, which suggests that prospective students should look very carefully at each school to see how it performs on factors that they care about. Some schools' ranks in U.S. News seem to be supported by strong reputation scores that may or may not reflect current realities and some schools are performing significantly better (or in some cases worse) in areas like graduates' employment rates than their U.S. News ranks would suggest.
Anyway, the expanded version of the paper is now up on ssrn. For those looking for the bottom line (i.e., faculty, administrators, students, prospective students, and alumni curious about how your school fares), tables 4 and 11 are the ones you'll want to turn to. Table 4 provides the ranking of all 194 schools based on the rank of median LSAT for the class entering in fall 2013, percentage of the class of 2013 employed in full-time, permanent JD required jobs, and citations to the schools' main law review from 2006 to 2013. Table 11 ranks all 194 schools based on rank on those 3 variables, but using the modified employment variable that excludes school-funded positions and solo practitioners.
Update: Lawschooli.com has some commentary on this. Also, Laura Stantoski over at most strongly supported discusses the rankings methodlogy extensively. Ms. Stantoski picked up the story from a post I had at law.com about the new rankings.
Last week, I posted a short essay here on the reaction of the Modern Language Association and the American Historical Association to recent doctoral recipients’ difficulties in securing the tenure-track academic jobs for which their programs specifically prepare them. I noted that the graduate academy’s reaction was startlingly similar to what inexplicably remains a widespread belief in the similarly constrained legal academy—namely, that the advanced degrees we sell are not being overproduced, but rather “underused,” prompting a distinguished committee of language and literature scholars to recommend that prospective degree candidates be encouraged to devote a median nine years of their lives to a Ph.D. in language or literature in order to teach (among other things) high school.
Among the various reactions I received was a comment on PrawfsBlawg by Northwestern Law Dean and AALS President Dan Rodriguez. Dean Rodriguez dismisses my observations as an “angry” effort to “channel the irritated folks who pepper this post with ‘stick it to the man’ comments in a redundant and wholly predictable way.” (He also calls me “clever,” but I have a feeling he didn’t mean it the way I might have liked.) I don’t think that’s a fair characterization of the post, but I’ll leave that judgment to you. Much more disappointing is his reduction of the post to the contention that “law profs and administrators who counsel students to pursue non-traditional jobs”—even really good jobs that fully capitalize on the law degree—“are engaging in subterfuge and worse,” when that badly misstates the point I was trying to make. Since Dean Rodriguez is a distinguished scholar and teacher (and by all reports a very nice guy besides), I need to consider the possibility this disconnect resulted from my own failure of clarity. Thus it seems incumbent on me to try again:
There are essentially three ways you can think about the relationship between obtaining an advanced degree and any employment you may obtain afterwards. One is to hold that, for you at least, there is no relationship between the two at all—that you wish or wished to obtain the advanced degree for the love of the discipline rather than for any instrumental purpose, and that you feel your life will be or has been so enriched by the course of study alone that no more mundane resulting benefit is necessary to justify your choice. This is undoubtedly the case for some devotees of the liberal arts, but their preferences and needs can fairly be described as idiosyncratic. The typical person thinks about graduate or professional education as substantive preparation for a career. (Someone who chooses to pursue an advanced degree usually anticipates enjoying the subject matter too, but that alone is not enough to justify the course of study for the ordinary person—the degree must lead to something more than enlightenment, as heady and transformative as enlightenment may be.)
So a second way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterwards is to consider whether, ex ante, an ordinary rational person would have planned to pursue the relevant graduate or professional degree to obtain the job. To be clear, on this view it isn’t essential that you end up in the job you may have planned for at the outset, just that you end up in a job that it would have been rational to seek the degree to obtain if you had planned it that way. I explore this view at length in my forthcoming article on the employment market for new lawyers and conclude that it is one effective way of determining whether a law-school graduate has obtained entry-level employment justifying the course of study. This means as a practical matter that either the postgraduate position must require the degree as a condition of employment (the ABA calls this a “Bar Passage Required” job), or that the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way (the ABA calls this a “JD Advantaged” job). I will have more to say about this view and the kinds of jobs Dean Rodriguez and I each think it targets in a moment.
A third way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterward is that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything. Both Dean Rodriguez and I think this is an obviously bad description of a law degree. Here’s what he says:
One argument in [Burk’s] post is unassailably right and important to make: Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs. Of course. Point well taken.
In other words, even though you will probably be a better high-school English teacher if you have a Ph.D. in English, and even though you will probably be a better high-school civics teacher (or, say, paralegal or legal secretary) if you have a JD, it would be irrational for the ordinary person to pursue those degrees as a path to those jobs, and obtaining those jobs after graduation provides no adequate practical justification for having pursued those degrees.
But even though Dean Rodriguez and I think this is obvious, a great many people who really ought to know better apparently don’t. Thus, as my original post bemoaned, a committee of the Modern Language Association charged with assessing graduates’ job prospects recently asserted that a 60% employment rate for Ph.D.s in language and literature somehow did not mean that there were too many doctoral students, but only that prospective students should be encouraged to enroll in doctoral programs in order to obtain jobs teaching high school, or to “put[ their] skills to use in the private sector” in unspecified positions “far from literature.” (Just to be clear, teaching high school is a deeply admirable endeavor and a good job. But it is not a job you would get a Ph.D. to obtain. There are much quicker and easier ways to get there.) The American Historical Association recently delivered itself of the similar view that Ph.D.s in history are currently not “overproduced but underused.”
And countless law-school apologists are still flogging the Smokin’ Bucketful of Awesome theory of legal education (known in more polite circles as the purported “versatility” of the JD degree) like door-to-door encyclopedia salesmen. So as to the point on which Dean Rodriguez and I apparently agree, and apparently agree emphatically, I would hope that the future holds more opportunities for Dean Rodriguez to exploit the bully pulpit of the AALS Presidency and encourage deans and admissions officers to cabin their marketing pitches within fair and realistic limits that today are all too regularly transgressed.
Dean Rodriguez also complains that my post eschews any “careful engagement with the point made by many, including [him], that there are positions which ought to count . . . although a credential as a lawyer is not formally required.” Again I seem to have failed to express myself adequately. Of course I think there is such a thing as a JD Advantaged job; I never said I didn’t. My forthcoming 30-year empirical study of the job market for new lawyers, referred to above, devotes considerable effort to discerning how you might know such jobs when you see them. (See the discussion in Part II.) But I also think (and I’m joined here by plenty of sober and thoughtful observers of the profession, including quite possibly Dean Rodriguez himself, though I’ll leave that to him to say) that in current usage the JD Advantaged category is concealing a multitude of sins, and that a lot of law schools are using any connection they can imagine (however tenuous or incidental) between a job’s responsibilities and some broad notion of legal reasoning to categorize a job as JD Advantaged in order to enjoy the benefits in placement statistics and US News rankings this categorization carries with it. As a result, a great many law schools are probably reporting a great many more placements as JD Advantaged than any sensible definition could justify. I have more to say about why this is likely, but this post is already very long, so watch this space for more discussion of this important topic another day.
In the meantime, although he apparently didn’t realize it, Dean Rodriguez and I agree on something else: One good way to understand what people are doing with their law degrees is to have accredited schools disclose in much more detail the nature and responsibilities of the jobs they are reporting as JD Advantaged. Nearly 12% of the Northwestern Class of 2013 currently holds such jobs, so Dean Rodriguez could make a strong start on this transparency initiative himself.
Quite frankly, I’d bet that a lot of the Northwestern graduates with nontraditional jobs recently reported as JD Advantaged are making valuable uses of their law degrees that justify the investment students made to obtain them. What I don’t think is that graduates of Northwestern Law are good examples of the body of recent law graduates as a whole. Northwestern, a top-ranked law school, has the luxury of selecting its students out of the top few percent of the most qualified candidates in the nation. (Its Class of 2013’s median LSAT was 170, the 97.4th percentile.) Those students are as much any employer’s dream when they leave Northwestern as when they got there, and the options available to them are far broader than the much more numerous law grads in the thicker parts of the bell curve. Northwestern doesn’t have to persuade 20th percentile students with dubious bar-passage prospects to borrow $150,000 in order to keep its lights on. Necessity being the mother that it is, I’d also bet that the schools admitting the 140/2.5s are reporting plenty of JD Advantaged jobs among their recent graduates that no rational person would plan to spend three years and six figures to obtain. And those jobs are not the “management strategy, human resources, regulatory compliance, [and] entrepreneurship” positions at “the growing interface among law-business-technology” that Dean Rodriguez’s graduates may very well be occupying. But he’s right—we won’t know for sure without a lot more transparency. A formal call for this kind of disclosure from AALS would go a long way.
Discussions at faculty meetings can get heated, for sure, but they are nothing like the Uruguay vs. Italy match in today's World Cup. Uruguay's Luis Suarez [thanks, anon] appears to have bitten Italy's Giorgio Chiellini. Although the ref didn't seem to see the incident, there are some pretty conclusive photos circulating around the internet (see, e.g., here). And apparently it's not Suarez's first biting incident (see here). Folks are now waiting to see if (or for how long) FIFA bars Suarez from future games.