The Faculty Lounge

Employers Requiring Facebook Passwords at Job Interviews

Some of my students recently made me aware of a practice by employers of asking job applicants to disclose Facebook passwords and usernames, or to actually log in to their Facebook accounts during a job interview and show prospective employers all their social networking information.  There are a few news stories here and here that suggest this practice has not become widespread, but my students' own experiences suggest a different story.  Is anyone aware how prevalent this practice is and whether there is any meaningful recourse against it? 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the meantime, a Happy New Year to all.

--Bernie

AAUP Seeks Staff Counsel

The AAUP is seeking a new Staff Counsel, its senior general counsel position.  The application deadline is short.  The full job listing is after the jump.

ABA’s Class of 2011 Employment Outcomes Data Show How Rough It Is Out There

Greetings.  I’ve been away attending to an illness in my family, and it’s good to return.  Thanks to both of you for your postcards; I had forgotten how majestic the Badlands could be this time of year.

What’s new?  Well, the ABA Section on Legal Education has kept its promise to disclose more detailed data on law-school employment outcomes, and to do so earlier.  In mid-June, the ABA released employment outcome data for the Class of 2011 at accredited law schools nine months after graduation.  Two things are new about these data:  (1) They are being released nine months earlier than usual (past practice would have seen them released in March 2013); and (2) The data gathered and disclosed are more detailed than prior years’.  Among other categories, school-funded, part-time and short-term positions are broken out.  The types of jobs are categorized by type and size of employer, as well as separated according to whether the job requires a law license, is “JD Advantaged,” “Other Professional,” “Nonprofessional,” or “Undetermined.” 

There is a great deal of information here.  Let’s start examining it by seeing what we can learn about the employment value of a law degree for the law school class of 2011.  In other words, for how many 2011 law grads did their time, effort, three years’ forgone income and advancement from other work, and expenditures on tuition, fees and books result in a certification that provided them real and substantial opportunities for employment not otherwise available to them? 

There are a number of ways this question could be addressed.  Here’s how I propose to take the first cut at it: 

Employment Outcomes VII: What’s Wrong With School-Funded Bridge Positions?

Among the many joys of having Judith Wegner as a colleague and a friend are that she is not only tireless in her thoughtful contributions to your work, she has the great gift of being able to see a complex situation clearly.  In response to my last post about how school-funded bridge positions are or could be paid for, Judith posted a Comment raising a number of very serious and legitimate concerns.  The issues Judith raises seem well worth further discussion, which I attempt here.

Are law schools funding bridge positions out of a desire to maintain their US News rankings and the prestige of their brands, rather than (or predominating over) a concern for the welfare of their students?  This is undoubtedly true for some of the schools that fund these positions, and quite possibly true for most or all of them.  Does that make school-funded bridge positions a bad idea?  In my view, not necessarily. 

Unlike any number of other tactics inspired by blind competition for US News rankings that are irrelevant or even inimical to the quality or value of the professional education a law school might offer, this is one that—properly administered (an important qualification discussed below)—could potentially complement the school's educational mission and directly enhance the value of a student's degree.  The fact that the school is engaging in the tactic for the sole or predominant purpose of improving its ranking may affect how the benefit is administered, which in turn may affect the degree to which the tactic actually benefits students.  But sometimes unintended consequences are good.

It does seem clear that private schools with more money are using some of that money to improve their placement numbers.  (See my earlier post here.)  But is this necessarily bad or invidiously unfair?  The fact is that richer schools can use their superior resources to benefit their students in all kinds of ways.  If they use those resources to fund postgraduate bridge positions, and those positions actually provide students with useful practice experience and improved entrée into a constricted job market, that’s a good use of resources.  And if a law school uses its superior resources effectively to provide greater benefits to its students, it deserves a higher ranking. 

Are students being forced to bear the cost of this benefit (assuming for the moment that it is a benefit, whether or not expressly so intended)?  In some sense they are.  Certainly if a school is spending (say) $1 million per year on postgraduate bridge fellowships, unless the money comes from a grant restricted to this purpose the school could spend that money on something else.  That something else could be reduced tuition across the board, or scholarships, or faculty salaries, or facilities improvements, or eggs benedict in the student lounge every morning.  But it's the dean's job to decide how to allocate the funds available to the benefits obtainable, and deciding to allocate this additional money to student placement and training (which is what the benefit is, assuming that there is one) is not inherently irrational or unfair. 

Okay, then, is it unfair that this benefit does not uniformly benefit all students at the school?  Not necessarily.  Nearly every educational benefit is consumed unevenly.  Some students use the library more than others; some use Career Services more than others.  Some students need the kind of special educational assistance programs most law schools provide, while others don't.  No one thinks it's “unfair” to provide this kind of extra help (often in the form of very expensive one-on-one tutoring) to only a relatively small portion of the class.  So to the extent that you could say that school-funded bridge programs are directly reflected in higher tuition (a doubtful proposition, as tuition reduction is only one alternative application of the funds at issue), neither the cost nor the distribution of the resulting benefit is obviously improvident.

Are school-funded bridge positions misleading to prospective law students who assume that high-priced or high-prestige schools offer better prospects for placement?  Quite possibly, at least up till now. And that’s a shame.  As an aside, I’d like to draw a distinction between schools that are high-prestige (which essentially reflects a reputation for quality in some general sense, often deserved) and those that are merely high-priced.  Many low-prestige law schools are as or nearly as expensive to attend as Harvard; and ironically it is the higher-prestige schools that disproportionately offer school-funded bridge positions to their recent graduates (see here). 

But back to the question—are school-funded bridge positions misleading prospective students?  US News has inexplicably treated holders of temporary school-funded positions as equivalently “employed” to those with full-time paying law jobs, while assigning 18% of its ranking to placement outcomes.  This has likely skewed those rankings, which are reportedly the single most influential factor affecting prospective students’ choices for application and attendance.  And while some schools reporting placement outcomes on their websites have expressly disclosed what proportion of their graduates hold school-funded positions, a number have not.  Starting next year, however, the ABA Section on Legal Education likely will require this disclosure, and US News has pledged to change the way it calculates the placement factor in its law school rankings (though it hasn’t said how yet).  All in all, the more we talk about it, the less misleading it gets.

All of which brings us down to the single most pragmatically important question:  Do these placements actually help students enough to be worth the candle?  The empirical data are incomplete, and I think the best we can fairly say is “maybe.”  As I’ve previously mentioned, we just don’t know how many of the recipients of bridge positions this year or last are finding long-term full-time law jobs, and it will be very difficult ever to determine how many would have gotten comparable jobs in a comparable time without the bridge positions.  Nor do we have very much detail regarding whether the existing programs are well administered, and thus as effective as they could be.  The positions need to be the right kinds of jobs, involving real supervised legal work (rather than mere clerical or administrative work, or cloistered research for academics).  The anecdotal data we have now suggest that many bridge positions are the right kind, but there is more to learn, and what we learn will likely suggest flaws in some programs.  The beneficiaries have to be the right kinds of students, generally those who will actually be materially more employable at the end of the placement than they were at the beginning.  We have very little data about this variable, but I would guess that a concern for selecting the graduates most likely to benefit from the bridge position is largely absent from most programs.

All told, then, an attitude of inquiry and even skepticism about this tactic is fairly merited.  But current educational and placement models are resulting in dispiriting and even disturbing outcomes.  Innovation is essential, and experimentation—with intelligent planning and due regard for the consequences of failure—should not be rejected out of hand.  And some of the best conceived experiments will fail.

--Bernie

Employment Outcomes VI: How Should Bridge Positions Be Paid For?

We’ve been discussing school-funded “bridge” positions (here, here, here, here and here).  Let’s pause for a moment to reflect on how these positions are, or could be, paid for. 

The usual suspects in an academic budget present themselves.  For those schools that have significant endowments, the money could come from endowment funds, or from alumni contributions given for unrestricted purposes or specifically for this purpose.  Conceivably there could be nonprofit grant money, particularly for the public interest and nonprofit positions that comprise many of the bridge positions (and to some degree this could occur “off-budget” by way of direct grants to students as opposed to grants to the law school).  At state schools, the cost could be part of the funds the state’s legislature contributes to the school’s operations.

Finally, the money could be funded by student tuition.  This is a much less silly idea than it might at first seem.  I’ve already suggested that the right positions offered on the right terms to the right people might well be a sound strategy for helping certain recent graduates ease into the job market.  This strategy won’t be as helpful to some graduates as others, but it appears that it can make, and is making, a real difference to some.  And at a time when law graduates’ preparation for practice is increasingly (and in my humble opinion, fairly) criticized as inadequate, the strategy provides students in a position to make use of it a short but potentially very helpful practical apprenticeship.

So why not fund a set of these positions, calculated to approximate the number for whom it seems likely to make a difference, out of a tuition increase?  Economically, this is just asking students to buy targeted unemployment insurance for the members of their class, including themselves.  And while nothing is cheap, this is probably cheaper than you think.  With full appreciation that this is a very coarse calculation that will vary from student to student based on resources and needs, and from region to region based on cost of living, suppose you conclude that about 10% of your graduating classes will not have jobs upon graduation, will not be able to support themselves without one, and would substantially benefit in the legal job market in the medium term from 6-12 months of subsidized employment post-graduation.  (You can target the value of this benefit further by awarding the fellowships according to need, so that students who are better off financially can study for the bar and work at unpaid positions subsidized by their own or family resources.)  $2,000 per month, while hardly extravagant, probably covers rent, food, bar expenses and taxes in most places outside the biggest cities; some folks in some parts of the country could eke it out on less. 

At the high end, that’s (say) $24,000 for the year-long stipend.  But only 10% of the class is going to get one of these grants, so that’s $2,400 per student.  And since it’s spread over three years, that’s a maximum of $800 per student per year.  And even that contribution is overstated, because some students will drop out or leave after a year or two, leaving their contribution in the “insurance pool” without retaining any ability to claim on it, and some others who need and get the benefit will not use the full year’s worth.  If the school graduates the grant according to need, average cost per student goes down further.  And if other sources of funding emerge (alumni gifts; other grants; other budgetary sources), that also reduces the need to fund through tuition.

What this amounts to is targeted unemployment insurance, or from a different point of view an opportunity for a short postgraduate apprenticeship in practice, for a few hundred dollars in tuition per student per year.  Yes, a few hundred dollars more in tuition is a lot, though it’s dwarfed by the $35,000 to $50,000 per year most students are already paying.

It becomes pretty complicated to figure out what the effects on the job markets might be if the tactic becomes more common or even just more recognized.  And as I stressed at the outset, this is clearly not an effective employment strategy for every person at every school still looking for work at graduation.  But at some schools, it might be a very good idea for some people.  And it may be more affordable than you think.

--Bernie

Employment Outcomes V: Some Speculation On Who Gets School-Funded Bridge Positions, And Whether They’re A Good Idea

We’ve been examining the phenomenon of law school-funded “bridge” positions—short-term jobs for recent graduates funded by the school, which apparently have become strikingly more common since the legal job market began its collapse in late 2008.  Are they a good idea?

In my view, whether bridge positions are a good idea depends on who’s getting them, and what they are.  For the most part, it seems safe to say that most of the people getting these positions are people who have not found a job by graduation.  (This may not be universally true:  In response to an earlier post in this series, a commenter who claimed to be a recent Yale Law graduate asserted that Yale’s “fellowship” program exists primarily not to help place students not otherwise employed, but rather to assist graduates who have existing employment options find the scarcer government and public interest jobs that they would prefer to the private-sector offers they already have.  The marked increase in school-funded bridge positions since the collapse of the legal job markets strongly suggests that, assuming the comment is accurate, the motivations and needs of Yale Law and its graduates are not typical.)

Why are these individuals not yet employed?  If we overgeneralize a bit, we can find some plausible reasons.  One group still unemployed at graduation is as employable—whatever that entails—as their classmates who already have positions, but seek (or are capable of promptly getting and will accept) jobs such as those in government, nonprofits and very small firms that often require bar passage before an offer, and sometimes even as a condition of an interview.  These students are doing fine, but are on a “glide path” that, because of the nature of the job they seek and will eventually obtain, is naturally somewhat longer than that for the recipients of some other positions. 

Now let’s focus on the students who are unemployed at graduation because they are less employable than their classmates.  Most likely they have one or a combination of three principal features:  (1) Suboptimal class standing; (2) Deficient interview or other interpersonal skills; and/or (3) Lack of motivation or work ethic.  My guess is that poor personal skills are largely independent of poor grades and poor motivation; that is, they accompany one of the other two more or less as often as they don’t.  Substandard grades and substandard motivation are probably somewhat correlated:  while some people with poor grades have worked hard but lacked some combination of the educational or cultural preparation and raw ability to do well, others have found that they dislike the material or dislike hard work (or both), and have not performed in school up to what some educators would call their “potential.”  To be clear, I appreciate that these are gross oversimplifications and omit all kinds of other plausible causes (e.g. substantial competing commitments such as single parenting; personal crises during school; etc.).  But because of the importance that most employers attribute to law school grades, poor class standing is a significant stumbling block more or less regardless of its cause.

For which of these students is a bridge position a good idea?  Simply put, it will be for those who will become materially more employable because of the experience, references or other qualifications the short-term position will provide them.  In part that will depend on the kind of bridge position they occupy.  Positions directly with the subsidizing law school will be largely unhelpful in this regard—most employers will not be impressed with students who have spent time since graduation shelving books in the law library, and will be only marginally more impressed with most work as an academic, administrative or research assistant.  Nor do many positions like these much help candidates slower to develop interpersonal and workplace survival skills learn how to fit in and get along.  Real legal work with a public interest or nonprofit organization, on the other hand, can provide actual hands-on workplace and practice experience that is easily generalizable to private or government practice, and a reference from an experienced practitioner who can speak to the candidate’s performance as a practicing lawyer.  And while hard quantities are scarce, it does appear that most of the bridge positions schools currently fund involve a monetary “fellowship” or “stipend” for recent graduates while they provide otherwise unpaid short-term assistance to public interest, nonprofit or government legal agencies.  In short, the limited and anecdotal evidence available suggests that quite a lot of these school-funded positions are the right kind to increase the graduates’ employability.

What’s more, in the current oversubscribed job markets, there appears to be a fair complement of less employable recent graduates for whom this experience makes a difference.  This is illustrated (if not measured) in the real world by the limited information we have about what happens to recipients of school-funded positions, which suggests that a fair number actually do find full-time paying law jobs.  How many of these students would have found jobs without the bridge position is anybody’s guess, of course, but it would not be unreasonable to guess that it’s fewer.

So, at least at present, we can hazard that the right kinds of positions for the right kinds of candidates can be helpful in easing transition into the legal job market for some of those less obviously or immediately attractive to legal employers. 

How can, or should, such positions be paid for?  I’ll address that in the next post.

--Bernie

Employment Outcomes IV: What The ABA Employment Outcomes Data Tell Us About The Prevalence and Distribution Of School-Funded “Bridge” Positions

Before the ABA Section on Legal Education disclosed the employment outcomes data for the Class of 2010 it had collected from accredited law schools, our knowledge regarding the prevalence and distribution of school-funded “bridge” positions was fairly limited. Regular readers of this space (and blessings in abundance on each and every one of you) will recall that only 22 of the top 50 US News-ranked schools publicly disclose whether they fund bridge positions, with 20 (or 40%) disclosing how many (see here), An inquiry into the second 50 US News-ranked schools that we began before the ABA stepped in (or out, as it were) showed that only nine of the second 50, or 18%, publicly disclose whether they fund bridge positions. (Heartfelt thanks for all this information is overdue to UNC Research Librarian Extraordinaire Leslie Street, and two of her tireless and meticulous research assistants, Emily Roscoe and Jonathan Rountree. Assistance with the ABA data has been provided with stamina and good cheer by my administrative assistant, Ashley Arthur.)

Now that the ABA has provided a more comprehensive dataset, we have a lot more to talk about. Let’s start with school-funded bridge positions. Of the 195 accredited law schools from which the ABA collected data, 82, or 42%, funded non-negligible numbers of bridge positions for the Class of 2010. (I have rather arbitrarily defined “negligible” as less than 2% of the graduating class, on the theory that this small a number of such positions is unlikely to reflect any real programmatic effort to assist students struggling to enter the workplace with a benefit of this kind. In counting bridge positions, I included school-funded positions that the schools characterized as “long-term” as well as “short-term,” on the theory that while “long-term” is defined as lasting a year or longer, any of these school-funded jobs is very likely to be limited in duration and temporary, and thus a “bridge” position of the kind we are discussing by any practical standard.)

 Bridge positions are not distributed evenly across all schools. If we divide the 195 schools into four groups by US News rank, some interesting trends emerge:



	Rank 1-50	Rank 51-100	Rank 101-145	Unranked
0%-2.0%	28%	50%	69%	86%
2.1%-5.0%	28%	22%	9%	8%
5.1%-10.0%	22%	20%	13%	0%
Over 10%	22%	8%	9%	6%
Mean	5.8%	3.6%	2.9%	1.5%
Median	4.8%	2.0%	0.7%	0.7%

 

The rows describe the portion of the class of 2010 occupying school-funded positions nine months after graduation; the columns divide all accredited law schools into four quartiles by US News rank.  (The author’s use of the US News rankings should not be viewed as his endorsement of their accuracy or fitness for any particular purpose other than as a coarse indication of relative prestige.  As regular readers know, he has leapt enthusiastically aboard the very crowded “US News, you lose” bandwagon.  Half-hearted apologies for the atrocious pun.)

What is striking about this breakdown is how strongly school-funded bridge positions are associated with greater school prestige.  Fully 72% of the US News top 50 fund non-negligible numbers of these positions, while only 50% of the next 50 do, and just 31% of the 46 after that.  86% of the least-prestigious, unranked schools fund no or negligible numbers of bridge positions for their unemployed graduates.

Why would less prestigious law schools offer far fewer of these positions than more prestigious ones?  It’s not because their graduates need them less.  To the contrary, as I hope to show in detail soon, a law school’s relative prestige appears to be well correlated with greater numbers of full-time legal jobs nine months after graduation, especially after factoring out the school-funded, short-term and nonlegal jobs as US News currently fails to do in calculating its rankings.  This is hardly surprising:  Legal employers widely recognize the prestige of the school that awarded a job candidate’s degree and the candidate’s class standing (grades) as the two most influential factors in their entry-level hiring decisions. 

So what is the reason?  The most plausible explanation for the association between greater numbers of school-funded bridge positions and school prestige is simply money—more prestigious schools likely have access to more funding for these positions than less prestigious ones.  In subsequent posts, I hope to explore when this might be a good use of school resources, and where such resources might come from.  Stay tuned.

--Bernie

From Prof to Prez

Pepperdine law professor Tim Perrin has been named the new president of Lubbock Christian University (where Perrin was an undergrad).  Story here.  Video here.

Didn't another Pepperdine academic recently become president of a Texas university?

A Few Ways NOT To Solve America's Unequal Access To Justice

“The very rich,” F. Scott Fitzgerald famously observed, “are not like you and me.”  True enough, Dorothy Parker reportedly quipped: “They have more money.”  Parker's remark also backhandedly lends some perspective on a genuinely serious contemporary problem receiving more currency than usual these days:  America's unequal access to justice.

We find ourselves at a sadly ironic moment in the history of the American bar.  After many years of increasing demand for lawyers, structural changes in the pricing and staffing of legal services that have been both exposed and amplified by the Great Recession have created a downdraft in the demand for new lawyers.  As a result, something like one-third of recent law school graduates have found it impossible to find or keep a job requiring or preferring a law license.  Some appreciable additional quantity of recent graduates have been able to find only episodic "legal process" piecework such as document review, often yielding relatively meager rewards, no security or benefits, and virtually no hope of meaningful training or advancement.  Talk about quiet desperation.

At the same time, for many years legal aid programs have been turning away substantial numbers of applicants for their services, not for ineligibility or lack of expertise, but simply for lack of the resources necessary to meet the poverty population's needs.  The recent slashes in the budget of the Legal Services Corporation (a congressionally created and funded entity that distributes money to programs providing legal services to the indigent), and plummeting revenues from states' IOLTA funds (Interest on Legal Trust Accounts, the funds many states derive by requiring depository institutions to remit the interest on lawyers' trust accounts to the state to fund legal services for the needy) resulting from swan-diving interest rates, have only made things worse.

The irony emerges when we lay these two points side by side:  There are currently tens of thousands of unemployed or underemployed recently-licensed lawyers, and hundreds of thousands of low- and moderate-income consumers in aching need of legal assistance with housing, employment, education, healthcare and government benefits issues (among other things).  Why, it would be fair to ask, has this excess supply not linked up with this excess demand?

One plausible explanation is simply the inverse of Dorothy Parker's rejoinder:  The poor are poor because they have no money.  As a result, an economist might easily conjecture, their needs provide a meager draw for the many lawyers in today's economy with no (or insufficient) work. 

Up to this point, I imagine that my readers (assuming one or the other of them isn't otherwise occupied) will consider this discussion obvious.  But it raises some potentially interesting implications:

First, a hat-tip to David Segal, the New York Times' cheerful basher of the legal academy and the organized bar with a striking knack for getting things almost exactly half-right, who in one of his recent jeremiads suggests that law schools' costs of meeting ABA accreditation standards have so raised the price of a legal education that graduates simply can't afford to serve the legal needs of the poor and middle class.  (Full disclosure:  I spoke with Segal at some length before his recent and widely remarked-upon New York Times piece about how law schools don’t teach “lawyering.”  The story completely ignored several issues with Segal’s perspective I had brought to his attention during our conversation that I thought he had agreed were worthy of consideration.  For the record, I am disappointed.)  Segal offers the alternative of the multi-tier system in the UK, in which there reportedly are different levels of licensure to practice law, with the most modest requiring only limited education at inexpensive institutions roughly equivalent to community colleges, and authorizing the holder to perform a correspondingly limited array of less complicated tasks.  I confess ignorance of the UK's professional licensing scheme (other than the existence of a mandatory two-year postgraduate apprenticeship for at least some practice certifications, which I take quite seriously); and I also confess that this multi-tier idea presents some genuinely interesting possibilities worth examining.  But the notion that it would make any significant dent in our current access to justice problems seems doubtful at best. 

Why?  To reiterate, the poor are poor because they have no money.  The hundreds of thousands of American families currently facing foreclosure can't afford to pay their mortgages.  Obviously they can't afford to pay attorneys, even if they could get them at minimum wage.  To put it slightly differently, if there were any paying market to provide legal services to low- or moderate-income consumers (outside legal aid, whose shrinking resources come from sources other than clients) thousands of recent law graduates would be rushing in to serve it.  In fact, what is striking about the current excess supply of lawyers is that it has not apparently found any substantial untapped lower-price market even among the middle class.

The obstacle is not that these new graduates have large student loans to pay.  Though many of them do, bear in mind that many recent government-funded student loans require the borrowers to pay only a percentage of whatever income they earn, rather than a fixed monthly amount.  More importantly, most unemployed law graduates understand that the best way to clear a path to a more satisfying and remunerative law job is to get actual experience doing legal work, even at subsistence wages; and that the surest way to make yourself less competitive and eventually unemployable in the legal job market is to lie fallow and do nothing (or to put food on the table with work that makes no use of the expensive diploma hanging over that unsightly crack in the wall).

Please understand that I am in no way suggesting that our unemployed law graduates are lazy, or stupid, or elitist.  In fact, I believe exactly the opposite--I think a great many are doing everything they can think of to address a terribly difficult situation, bringing tremendous effort, initiative and creativity to bear day after day after day.  Which is exactly why it ignores reality to recycle old suggestions that all we need to do to moderate the cost of legal services and meet currently unmet needs is lower the cost of entering practice.  (Examples include Segal’s New York Times article referred to above, and the buffoon at Brookings who recently enjoyed his fifteen minutes of fame advocating—as if it were a new idea—the abolition of any license to practice law.)  Excess capacity already exists and has effectively left those problems untouched; why would you want to create even more, even if it spawned none of the serious externalities these suggestions drag into the picture?  There may be other reasons to consider adjusting the barriers to entering the legal profession, but the ones most commonly advanced these days are refuted by current events.

--Bernie

Does the Economics of Law Practice Matter to Law Schools?

I return to the mysteries of law-firm economics after a hiatus to attend to three speaking engagements and complete the academic term (in other words, as an excuse to interrupt grading my Contracts exams).  A belated shout-out to my colleagues Anne Klinefelter and Andrew Chin, and to the editorial board and staff of the North Carolina Law Review, for an exceptionally well conceived and executed Symposium on Social Media (which was one of those speaking engagements)--watch for the Symposium issue of the NC L. Rev. coming this spring for some refreshingly novel and interesting takes on what is elsewhere becoming an overworked topic.  (You won't see a paper from me in that issue.  My topic at the conference, legal ethics in the social media environment, has already been admirably well explored in print and online by others.)

I want to stress how much these issues of practice economics actually matter to legal educators.  Virtually all of our students attend law school with the general aim of practicing law.  A great many end up in private law firms, large or small, or (usually a bit later in their careers) in corporate law departments.  The demand for lawyers in such positions (that is, for individual and corporate legal services) fundamentally affects our students' prospects for gainful employment. 

A bit more specifically, the overall demand for such services affects the overall availability of legal employment, and the distribution of that demand across different categories of work affects the availability of different kinds of legal jobs.  Thus when, as now, there is a significant contraction in at least one portion of the private sector--and here I'm referring to the large number of BigLaw layoffs in 2009 and 2010, and the contemporaneous and continuing substantial reduction in the rates of new hiring at larger firms--recent graduates with strong conventional qualifications who previously filled those BigLaw positions are now competing, and vigorously, for positions in smaller firms and government for which there was previously less such competition.

Put somewhat differently, there are fewer law jobs for recent graduates, and appreciably fewer such jobs at the higher end of the pay scale.  It's hardly rocket science to suggest that this affects the economic value of a law degree:  From behind the proverbial veil of ignorance, a student's chances of securing a job that supports the cost of three years' tuition, living expenses and forgone income and work experience are substantially less today than they were five years ago. 

This is by no means the whole story, of course.  Some prospective law students have far brighter economic prospects ex ante than others.  And economics is certainly not the only reason why people consider law school (though we have empirical data confirming the common-sense apprehension that a substantial number do weigh it as a substantial factor in their decision). 

But if the economic value of a law degree is falling overall (and I suggest to you that it is irresponsible to imagine otherwise), in a rational market you can expect fewer people to pay the rising cost to obtain it.  It is far too early to say "I told you so," but there have been double-digit decreases in law-school applications across the board this year over last (though we must bear in mind that last year saw record increases in law-school applications and LSAT administrations as college seniors confronted a horrific job market with an effort to settle into a three-year holding pattern). 

This is having some obvious effects on the legal academy.  The ability of law schools to continue to charge high tuitions--and continue to pay their faculties salaries far higher than those typical in the arts and sciences--depends on making the end product (the law degree) worth it.  Since many universities share in their law schools' economic surpluses, the universities care too.  Legal employers have been complaining  about the utility of the education with which their entry-level employees arrive for well over a generation, but for the first time in memory it would be fair to say that many law schools are listening, and questioning their mission.

One thing I am NOT suggesting is that legal employers know exactly what they need, and how we could be supplying it.  I'll try to explore in future posts why things are nowhere near this simple.  But that leaves everything up for grabs:  What questions should we be asking, and how should we be seeking the answers?  This is an obviously difficult inquiry, and I will try to suggest in future posts that it's even harder than it seems.  But make no mistake:  we are near the front end of a period that I believe will prove to be the most fraught with rapid change that the American legal profession has ever seen.

What a great time to be a part of things!

--Bernie

Adventures in Staffing: Are Junior Associates an Endangered Species?

The Wall St. Journal and WSJ Law Blog reported Monday that a survey conducted for the Journal by the Association of Corporate Counsel found that over 20% of the in-house law departments surveyed (over 350 of them) flat-out refused to pay for first- and second-year associates at large law firms.  This continues a trend that began several years ago, and accelerated considerably after the abrupt economic downturn in late 2008 as more in-house buyers of BigLaw services responded to sudden budgetary pressures by finally taking a hard look at what they had been paying for.

Above the Law responded to this data uncharacteristically by missing the point.  Elie Mystal, ordinarily a very acute observer of BigLaw, dismissed the in-house refuseniks as “stupid.”  He reasoned that clients’ refusal to pay overpriced junior associates for the “work that a conscientious high school student could perform” that is often their lot would simply force this work up the line to even more expensive midlevel associates.  He concluded:  “It’s entirely possible that 20% of clients don’t understand that having a midlevel do work more suitable for a trained monkey is actually worse than having a first-year do it.”

But of course clients do understand that, and so do the law firms they hire.  Clients who are unwilling to pay first-year associates’ rates for borderline clerical “legal process” work (loosely defined as the gathering, review and organization of documents and information) would certainly refuse to pay significantly higher rates for a fifth-year associate to provide the same services, and large law firms are smart enough not even to offer that as an alternative.  As discussed in detail in an article Prof. David McGowan and I posted in draft on SSRN a year and a half ago, and published in the Columbia Business Law Review last spring (2011 Colum. Bus. L. Rev. 1, available here), the result of clients’ heightening scrutiny of the staffing and pricing of legal process work has resulted in increasing volumes of that work being outsourced to much less expensive third-party services both abroad and domestically, and “downsourced” (a term McGowan and I believe we coined) within BigLaw to non-partnership-track “staff,” “discovery,” and contract attorneys paid much lower salaries or wages and billed out at much lower rates.  And since by 2007 legal process work had become a significant part of many junior associates’ workloads, the rapid reduction of the amount of that work available to associates billing at full freight has been a major factor in BigLaw’s unprecedented reductions in force and falling hiring rates from late 2008 through 2010.

The data are still coming in, but entering associate classes at AmLaw 200/NLJ 250 law firms this fall look like they will typically be 30%-50% smaller than they were in 2005-2007.  While a cyclical (recession-based) overall reduction in demand for high-end legal services explains part of this transformation, I believe that a significant and still growing part of the change is structural, and results from the change in the staffing and pricing of legal process work reflected in the trends discussed above.  What this means is that rates of hiring at larger law firms for highly compensated partnership-track associates are likely to remain much lower than they were in, say, 2007 for quite a long time.  While this is producing some wrenching short-term dislocations in the entry-level job market that are both tragic and widespread, it is at least as important to consider the possible longer-term effects not only on clients and law firms, but on prospective and current law students, law graduates, and law schools.

To keep this and future posts to a manageable length, I will consider these issues in a series of posts in the coming week or two, and dare to share some predictions.  Stay tuned.

Bernie

Hiring Snobbery

Brian Leiter has a post this week about the pedigree sensitivity in law school hiring.

Now comes a study suggesting that similar selectivity exists in Wall Street hiring.  The study, entitled Ivies, extracurriculars, and exclusion:  Elite employers' use of academic credentials, was published in the January 2011 issue of Research in Social Stratification and Mobility and is available here.  The author, Lauren A. Rivera, is a professor at Northwestern's Kellogg School of Management.  David Kaplan, writing for Fortune magazine, has a recent story on the study here.

Law Firm Hiring: There's an App for That!

The Benesch law firm has just released an app for iPhones and iPads to notify recent law grads and lawyers potentially interested in lateraling to the firm of upcoming job opportunities.  It will be interesting to see if this mode of recruitment takes off.  And, if it does, will recent grads be downloading multiple apps from multiple firms or will some entrepreneurial aggregator come along and offer a service of aggregating all available law firm jobs and making them available in an app format that notifies potentially interested applicants of job availability?  Is this the future of legal recruiting?

Promotion and Tenure Confidential

Folks thinking of going on the teaching market this year may be interested in taking a look at David Perlmutter's new book, Promotion and Tenure Confidential.  It may also be of interest to those on the tenure track.

While this book is not specifically geared towards law professors, many of the insights apply to those thinking of embarking on a law teaching career and those who have recently embarked on such careers.

One of the nice things about the book is that it's very up-to-date and has lots of great information about the impact of social networking (blogging, Facebook etc) on promotion and tenure prospects.  It also gives good advice on things like learning to write letters of recommendation for students and dealing with faculty politics generally.

There are also some good suggestions about time management in terms of balancing teaching, scholarship and service.  And some very good thoughts about dealing with students outside the classroom.

One interesting insight about teaching involved the importance of giving feedback to students during the semester if possible - which is of course difficult (or impossible) to the extent any course/professor is locked into an end of semester or end of year examination.  Two interesting suggestions Perlmutter makes on feedback (see pages 155-156) are:  (a)  have students complete their assessment before the end of the semester and require them to talk to you about their papers as the true "exit assignment" for the course; and, (b) ask students to critique their own work as an aspect of their assessment.  There are also useful insights on managing office hours and on dealing with the work/life balance.  It's a quick read (187 pages), and certainly worth a look.

 

 

Columbia Dept. Of Health Policy Seeks Law Faculty

This just in:

The Department of Health Policy and Management at the Mailman School of Public Health at Columbia University requests applications for the position of assistant or associate professor of law and health policy. This is a tenure-track position, with the academic rank to be determined in accordance with the successful candidate's record of research.  Candidates must possess a law degree.

The Department seeks applicants who have a strong research agenda, a record of (or potential for) receiving research funding, well- developed methodological skills, and the ability to teach health law to public health students. Graduate training in health policy, economics, politics, or a related social science discipline is desirable.

Please send a letter of application, including a statement of current and future research interests, a curriculum vitae, two sample publications or writing samples, and the names of three referees. Applicants should ask their three referees to submit their letters of recommendation directly and should address these to: Professor Michael Sparer, J.D., Ph.D. Chair, Department of Health Policy and Management Mailman School of Public Health Columbia University 722 West 168th Street New York, NY 10032.  Application review will begin on March 1 and the slot will remain open until filled.