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August 26, 2011


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The old (pre~1938, at least at Harvard) model was to admit more and fail more. It was phased out in no small part because it costs students (time and tuition) and schools (overhead) too much to admit and accommodate students who do not graduate. The solution: increased standards for admission to exclude those with qualifications of a sort that experience suggested they would not likely succeed and increased support in the first year to help those who did get in. However, as Gary notes, success, then as now was a function of graduation rates, not direct practice success. This interpretation of success opens the door to a market for schools with lower admissions and corresponding graduation standards. Closing the gap between graduation-as-success and employment-as-success (however defined) in some way seems to be a logical solution, with schools admitting under-qualified candidates (determined as a function of the gap) meriting most of the attention in this discussion. As a (highly imperfect) thought experiment in locating where graduation-as-success and employment-as-success intersect, how high up the rankings of admissions standards would we have to go before a law school would be willing to warrant employment outcomes by, e.g., waiving tuition for graduates who did not secure high-paying jobs? Yale's COAP, Harvard's LIPP, and others might be examples of this. Not sure, however, which school is the cut off. Just some thoughts.

Doug B.

Berman here, Gary. The quoted language of Standard 303(c) --- especially the command that a "law school shall not continue the enrollment of a student ... [when it would] constitute economic exploitation" --- would seem to actually to call upon law schools to fail out, say, the bottom 10% of its class at the end of the 1L year if/when it has been clear based on employment data from, say, the prior 5 years that nearly all of the bottom 25% of the graduating class is unable to secure any form of legal employment.

Indeed, the core claim and complaint by all the so-called scam-bloggers is that they are being economically exploited by lower-ranked law schools that happily charge them 50K/year when a large percentage of the graduates of these schools are now unable to get decent legal jobs.

That all said, Gary, I do not follow the ABA process enough to know if a fail-out rate of 10% or more will cause trouble, nor do I mean to suggest that an ideal solution to the tight legal employment market is to fail out more students. But, especially because I know there are (many?) folks who might be cut out from smaller 1L classes who can and do actually perform quite well during the 1L year despite low "predictors," I am not sold on tighter admissions as the only or the ideal way to reduce the ranks of law graduates each year.

In any event, I appreciate the follow-up and would also like to here your thoughts on the challenges facing law school and recent law grads these days.

Michael Lewyn

The problem with this line of argument is that it assumes that the current state of the market will be the state of the market forever. Absent time travel, I don't see how anyone can know this.


While it is hard to predict the future, many believe that we are in a secular, rather than a cyclical, bear market for legal services, that the BigLaw model, with high salaries for recent graduates, is not sustainable.

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