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

Comments

[Steve Diamond]

I remain somewhat mystified by the complaints coming from folks like LST. Over the course of more than four decades, the supply of lawyers has ebbed and flowed in pretty close sync with the ups and downs of the economy.

Each time the same correlation is apparent - as the economy turns upward college grads are more easily employable and, paradoxically perhaps, law school enrollment declines. During the dot com boom I had students drop out mid semester to join, against my advice, dot coms!

Then in the later stages of the upturn students come to law school as hiring in the outside peaks and then as the economy sputters they stay there hoping to wait out the storm. And then the cycle begins again.

There is no change in curriculum that can change this counter-cyclical relationship with the surrounding macro economy.

It is also the case that the legal job market is bi modal, with one cluster around the 75K point and a much smaller cluster around 160K. The latest boom/bubble caused the 160K cluster to grow slightly giving some second tier law school grads a greater opportunity for those jobs. Here in the Valley that cluster has always been slightly larger given the IP and high tech market, likely also the case in NYC.

Now with the downturn that 160K cluster has shrunk back in line with post-boom historical trends.

Again no structural changes inside law schools can change that relationship - except of course in cases of individual schools that want to move up the food chain.

There is one important aspect of the current situation that is different. The credit boom was larger and the downturn was more severe. And it is taking longer than other prior cycles to resolve itself. That is creating some pressure from clients to push back on how much they want to subsidize training of new lawyers. But it is extremely hard to imagine that law schools, which are primarily academic institutions (or should be) can, even in the most sophisticated clinical settings, mimic the kind of training that actual law practice provides.

Nor is it the comparative advantage of law schools. The academic training that law students get from faculty who actually conduct research in the field remains the most important value that law schools can provide. There is of course an important role for non-research faculty as there is in all professional schools. Nonetheless, students who do not have the benefit of genuinely academic faculty as their primary classroom instructors might be able to pass the bar, but their value over a career is likely far less.

Law schools that feel the pressure of law firms or the ABA that are vainly trying to cost shift should push back. Law schools have spent nearly 50 years establishing their value as academic institutions. They should not surrender their place now.

[BoredJD]

Steve Diamond-

The difference now is the astronomical increase in tuition at all levels of the law school chain. With the exception of a few schools (usually rural) state schools with regional placement, law school costs, all-in, between 150K and 250K per year, much of which is debt-financed.

Your own school, Santa Clara, costs $238,000 sticker price and could confirm only 15% of its recent graduates were in jobs making over $65,000 (numbers from LST). 24% of the class was unemployed. Those are dismal, dismal statistics.

The boom primarily helped first tier, but not elite, schools located near major metro areas. Now, less than 25% of the graduates of those schools will get six-figure jobs or A3 clerkships that are likely to lead to six-figure jobs. For the rest, their legal job prospects are likely to be on the second bump of the bimodal curve or unemployed/working for a school stipend. 200K and three years to get a job paying 40-60K is simply not a good deal on its face.

This is why applications are decreasing MUCH faster than the anemic job market for young college graduates is recovering - because of the cost issue. It makes sense to take that 30K job out of undergrad, when the alternative is to wait three years, take on 150K or more of debt, and perhaps end up at the same 30K job or in a job making 40-60K. Applications are also decreasing disproportionately among top scorers, people more likely to be from top UGs where their entry-level options are better.

This is not about the "value" of law schools as academic institutions. A school where professors stood on their heads while reading 50 Shades of Grey aloud to the class but placed as well as Yale or Harvard would attract more than enough qualified applicants.

[Steve Diamond]

Bored, I am not an expert in academic budgeting and cost structure but remain sceptical of an argument that the difference is the alleged outsized increase in law school tuition.

First I assume the figure you claim for SCU includes the cost of living. But the mythical creature who failed to fall for the law school scam would still have to pay for the cost of living.

Second keep in mind how salaries have changed over the last several decades. Starting first year associates when I started practice at big law earned 85K. So the bimodal distribution has shifte to the right just as dramatically as debt. (However there were quite a few of us leaving law school in the early nineties with more than 100K in debt. Some of us are stil paying that off at 9% interest rates that once looked attractive.)

Third while none of this is of much help when a hundred year storm hits the economy and jobs just disappear overnight. But this was true across the economy and certainly affected many other professional schools. Yet somehow it is law schools that have become the target of lawsuits and the New York Times not to mention internecine warfare.

Fourth with respect to the "dismal" employment prospects of second tier schools it should be kept in mind that cherry picking from the worst economic downturn in 70 years is hardly a rational approach. It may not make sense for any one individual to borrow the equivalent of 1-2 years starting salary to build a lifetime career but it is also not rational to reject such a path on the basis of what happened in 2008.

[Milan]

I too share a high regard for LST's work, but its new focus on curriculum reform strikes me as misguided. Yes, the cost of legal education is too high. The same could be said for the cost of college, business school, and medical school. But given the decline in law school applications (in no small part due to LST's dissemination of employment information), law schools are competing over a dwindling pool of qualified applicants. Consequently, most incoming law students are likely to end up paying less tuition than their immediate predecessors. There are also a variety of government programs such as PSLF and IBR that make law school more affordable (although reasonable people can disagree about the wisdom of such programs).

I have no doubt that law schools will be experimenting with different business models as revenues continue to fall. But under the heading of "Don't ignore inconvenient facts," I would add that, despite the difficult legal economy, most law school graduates are apparently quite pleased with the actual quality of the education that they receive. In the most recent survey of law student engagement, 83% of respondents rated their education as either "excellent" or "good." http://www.lssse.iub.edu/reports.cfm. This makes LST's call for radical curriculum reform all the more puzzling.

[BoredJD]

1) The issue is debt. The student at SCU is giving up three years in which they would be working and (even at Starbucks wage) making COL. ABA regulations and sometimes law school policies limit the number of hours a FT law student can work per week to 20, and it is unadvisable to work during your 1L because of the importance of grades to potential employers. Therefore, the student is debt-financing some portion of their COL.

If you like, subtract $20,000 per year for COL and you get $180,000. Still an astronomical amount, and greater than the first year salary+bonus paid by all but a handful of firms.

2) Again, we are not talking about biglaw, and we are not talking about Yale in the mid-90s. We are talking about the kinds of jobs and starting salaries that students of SLU are likely to get. Small law and local gov/PD did not follow Simpson Thacher down the rabbit hole.

Let's assume, although the numbers don't bear this out, that the "median" outcome for a SCU student is a $50,000 local government or small firm job. In 1994, that would be a starting salary of $33,000. Now, what was SCU's tuition in 1994? You could get that info easier than I could, but I'd bet it has increased much faster than inflation. In-state tuition at UC Hastings, another CA school, was $3100 annually in 1991. A 33K job for an investment of 9K + 3 years of COL? Sure. A 50K job for $138K (3x tuition at 46K) + COL? Not such a great deal.

3) Law schools and med schools are the two programs that regularly turn out graduates with mid to high six figure student debt loads. Med students do not have trouble finding doctor jobs because the AMA and the med schools keep residency spots more in line with student supply.

You are incorrect that law schools are being singled out. For-profit universities, culinary schools, and other vocational programs are regularly the target of private suits and state/federal investigations for “scamming” students. These schools are also the subject of policy debates over whether they are worth their exorbitant tuition or should receive federal loan dollars, although I suspect there are not as many dissenters within the Full Sail University faculty as there are within the legal academy.

That comparison should shock you. It should also tell you a) that the aspirations of law graduates are more vocational than some within the academy would like to admit, b) that law schools have behaved in ethically and morally (if not legally) shameful ways, or c) that legal education is simply not a good deal for many people.

4) I have yet to see sufficient proof that the employment situation for graduates of SCU or similarly ranked schools was much better even in the boomtimes. Any numbers from the era must be taken with a grain of salt for obvious reasons. But I am willing to concede that the downturn in entry-level hiring may very well be cyclical.

However, from the perspective of the rational student (I do not believe there is such a creature), it does not make sense to take on a very large, very certain amount of debt now for an uncertain chance of a hiring rebound of uncertain magnitude. When presented with the statistics I mentioned (15% of students confirmed in jobs making over 65K), the rational student would walk away from the transaction or negotiate a hefty discount in order to reduce their exposure in the event that rebounding growth in the sector does not materialize or does not translate into increased need for younger lawyers.

I am not a budgetary expert either, but when students are demanding a baseline "sticker price" much lower than usual, and the law school's budget is stretched very thin because of the needs of faculty or the demands of USNWR or what have you, this is going to create a problem.

[john]

Steve Diamond: "Over the course of more than four decades, the supply of lawyers has ebbed and flowed in pretty close sync with the ups and downs of the economy."

45,000 students graduating each year into a market of around 20-25,000 jobs (according to the BLS). Is that "in pretty close sync"?

"During the dot com boom I had students drop out mid semester to join, against my advice, dot coms!"

Presumably a bad outcome, because now they are out of a job. But 24% of the current graduating class is also out of job, and has significanlty more debt.

"It is also the case that the legal job market is bi modal, with one cluster around the 75K point and a much smaller cluster around 160K."

The lower group is clustered between 40-65K, and the upper group is increasingly regressing toward 140-145K.

"The academic training that law students get from faculty who actually conduct research in the field remains the most important value that law schools can provide."

Cite please.

"Yet somehow it is law schools that have become the target of lawsuits and the New York Times not to mention internecine warfare."

All of the lawsuits I am aware of are based on false or misleading employment and cost statistics provided by the schools being sued.

Steve, you agree in your posts that salaries are bi-modal, and that as a second-tier school, SCU is mostly sending people to the lower mode. As such, why does SCU charge the same as a top ranked school? If salaries are bi-modal, shouldn't tuition also be?

The problem is simple, really. We produce way more law graduates than we can actually employ, and we charge those graduates way too much money for the degree.

[john]

Milan: "There are also a variety of government programs such as PSLF and IBR that make law school more affordable (although reasonable people can disagree about the wisdom of such programs)."

Reasonable people can disagree about PSLF, reasonable people cannot disagree about IBR. The only way to qualify for IBR is to have an income so low and a debt so high that you are in financial hardship. This program involves a decades long tax on your income, a hit to your credit score during this period, and a potentially huge tax bill at the end.

Pretty much by definition, IBR means that the education wasn't worth the outcome.

[Steve Diamond]

There is a significant gap in tuition between SCU and Stanford but keep in mind Stanford tuition is artificially low because it can rely less on tuition revenue to function. In any case should students at SCU expect a lower quality educational experience just because they may end up working in the left hand distribution of the job market? I think our applicants are capable of deciding that for themselves.

[Milan]

John,

I did not claim that IBR makes law school "worth" the cost, only that it makes law school more affordable.

I am aware that many of law schools' harshest critics are opposed to IBR. But your comment suggests to me that you do not understand how IBR works, particularly with respect to the credit implications, and its treatment of "partial financial hardship."
IBR is certainly more favorable to indebted graduates than standard repayment, and the Obama administration has been publicizing debtor-friendly changes to the program: http://www.whitehouse.gov/blog/2012/06/07/income-based-repayment-everything-you-need-know

[john]

Steve Diamond: "There is a significant gap in tuition between SCU and Stanford"

According to US News, current tuition at Stanford is $49,179. Of course I couldn't get SCU's tuition from US News because your school engages in ridiculous "hide the ball" tactics by only offering per-credit tuition information. But from your website, SCU will cost $43,680 per year.

Let's put that in perspective:

3 years at Stanford -- $147,537
3 years at SCU -- 131,040

Significant?

"In any case should students at SCU expect a lower quality educational experience just because they may end up working in the left hand distribution of the job market?"

Is the implication that SCU students don't get a lower quality experience now? Because if it is, a few important groups of people would beg to differ:

1. Based on job stats (unemplyed at Stanford 1.6%, at SCU 24%), legal employers disagree.
2. Based on school rankings (#2 vs. #96), US News disagrees.
3. Based on scholarly impact (#4 vs. not even listed in the top 70), academia disagrees.

Now that is significant.

[Steve Diamond]

John,

If you have questions about the tuition or other aspects of a particular school I suggest you contact them directly. Of course, as a general matter large publicly funded research universities like Stanford have certain resource advantages that impact the USNWR rankings.

Nonetheless, I stand by my view that most law schools, including SCU, provide a quality legal education and that they should not be blamed ex post for the plight of the unfortunate students who got caught in a one hundred year macroeconomic storm.

In fact, most law students or prospective students seem to be far more rational about this than you suggest. In each of the three major downturns over the last 25 years the number of applicants dropped off when it became clear that supply outstripped demand. The same is happening now. And to me this makes perfect sense. To conclude otherwise would be to suggest that tens of thousands of our brightest college graduates were engaged in some kind of mass delusion about supply and demand curves.

It can't really be the case, can it, that these students contemplate spending 200K on their human capital, sometimes borrowing from third party creditors to do so, without inquiring whether or not this is a reasonable investment? To sustain your argument the information needed to fill out the supply and demand curves is somehow unavailable, yet you pointed yourself to the USNWR rankings and there are many other sources of information, from anecdotal to econometric that allow one to calculate rationally the likely outcome of going to Stanford v. Berkeley or finishing in the top 10% at one school over another. To suggest that brochures or other marketing material somehow obfuscates that calculation seems a bit far fetched, at least based on the actual behavior of college graduates now, in the post dot com period and in the wake of the real estate crash of the early 90s.

[john]

"It can't really be the case, can it, that these students contemplate spending 200K on their human capital, sometimes borrowing from third party creditors to do so, without inquiring whether or not this is a reasonable investment?"

A couple of points:

1. The information we have today is far better than just five years ago. And this informatin was only grudgingly given up by the law schools after pressure from the ABA (brought about by the lawsuits, the NY Times articles, the blogs, etc.)

2. Clearly it can be the case that students make such poor decisions. It's no secret of psychology that people can engage in self-delusion, even on a mass scale. And if you doubt it, just look at schools like Golden Gate or Whittier. Is their any rational reason to pay $100K + to go to one of those schools? No. Yet no shortage of applicants willing to serve as a conveyance for federal funds.

"In each of the three major downturns over the last 25 years the number of applicants dropped off when it became clear that supply outstripped demand"

Supply currently outstrips demand to the tune of 45,000 grads for 20-25,000 potential jobs. We have a long way to go before this whole thing starts to look like the actional of rational people.

[critic]

LST jumped the shark when they joined Anziska and Strauss on press conference calls promoting the lawsuits; which have been dismissed everywhere but California. LST also jumped the shark when its website has a tab promoting "LST recognition --brand reach." Why does LST need "brand reach?"

[Associatesmind]

"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!"

It would be one thing if everyone pointed to X as the problem. Then everyone could agree that something is a problem and needs to be addressed. It would then be an issue or a problem - not a disaster.

But the fact that commenters identified a range of issues does not negate the argument that a disaster exists - it bolsters it. That so many people can identify a swath of problems with law school, and the legal profession as a whole, should give you pause.

And as an aside, it shouldn't matter one way or the other how the hell they say it.

[BoredJD]

Steve-

If your students are getting a Stanford-quality education, then why aren’t they being hired by large firms, AIII judges, the federal government, and impact litigation organizations at the same rate as Stanford (or Yale) graduates? They are either 1) not getting the quality education you think they are, or 2) the quality of a law school education has little to do with job prospects. If the latter, is that something you would be willing to tell a prospective student? Are you confident that SCU’s enrollment numbers would hold up if a statement to this effect was prominently disclosed on the school’s marketing materials?

Your arguments seem to flow from the premise that students are rational. This simply isn't the case. Students are not spending their own money- they borrow it in huge amounts from a federal government who will authorize loans to people with no credit history, no documented income, and no documented ability to repay.

The decrease in applicants is taking place disproportionately among students with better LSAT/GPA scores, and while these people may not make better lawyers, they would certainly get into better law schools and as a result have better job prospects. Now, LSAT/GPA might correlate with better non-law job prospects, but this still 1) proves that the legal market is not recovering at the same pace as the wider entry-level job market, 2) is a very troubling sign that the profession no longer attracts "the best and the brightest."

Law students suffer from cognitive biases the same as anyone- they wildly overestimate their chances of finishing at the top of their class (optimism bias) and fail to seek out or process contradictory information to their initial hypothesis (confirmation bias). I'm not sure how going to college alters basic behavioral psychology. Browsing the forums at www.top-law-schools.com might fill you in on applicant psychology.

Finally, law schools seem to be following undergraduate schools as regards the "sticker price." See http://www.theatlantic.com/business/archive/2011/09/why-is-college-so-expensive/245839/. Simply, information asymmetry leads students to assume that higher price = better quality. The lawsuits and the emphasis on employment statistics show that law students associate quality with job prospects much more than your average undergraduate.

Attempting to define what constitutes a "quality" legal education is impossible because there is only one model of legal education. One can only evaluate how well a school pulls off the Socratic/casebook method, which does not answer the question of whether that is an effective teaching method in the universe of possible teaching methods. Asking students about it is even more pointless, since they have no comparison point. But that's a digression that avoids the main issue, as Bernie points out.

More to the point, I have yet to see evidence that the outcomes for SCU students were much better during the boomtimes, or that you cannot get a "quality" legal education for less than $40,000 per year. CUNY, which costs about $13,000 per year, offers employment statistics, bar passage rates, and a USNWR ranking not dissimilar to SCU. While CUNY is a state school, I don't think that the State of New York is subsidizing 2/3 of the school's budget.

Finally, your focus on an arms-length transaction between sophisticated students and their law schools ignores the interests of the taxpayer (who is ultimately lending, and increasingly on the hook for repaying, the money) and members of the profession.

[Sam]

The problems are simple:

1. American law schools are graduating at least 2x as many students as there are jobs.

2. The cost of law school is too high.

The curriculum needs reform, but if 1 & 3 weren't true everyone would put up with the status-quo.

Prof. Burk, do you not agree with 1 & 2?

[Grateful Pupil]

I think I can paraphrase Bored JD's arguments:

1. SCU and most other law schools are not worth attending.

2. The fact that some law students continue to attend these schools is a direct result of cognitive bias (citations to Campos's extensive research concerning law students omitted).

3. SCU and other schools should lower tuition, even though prospective law students irrationally associate higher price with higher quality.

4. No one can really assess educational quality anyway.

5. The taxpayer!!

[Andy]

Steve - the focus on hiring recent graduates for faculty positions means law faculty frequently lack the ability to generate useful scholarship, as can be seen in the rarity of law review article citation in modern jurisprudence. JD-only faculty are frequently only slightly more sophisticated than the students they teach and their research is by overall academic standards mediocre because of this.

Milan - a recent law graduate is unqualified to judge the quality of their legal education; they won't know for a while if they gained the appropriate skills needed in their career.

[Steve Diamond]

Andy,

I would contest the idea that hiring recent JD's is negatively correlated with strong research outcomes. In fact, the amount of publishing that junior applicants have already done prior to going on the market today is quite impressive. And many junior faculty have advanced degrees as well or have gone through a VAP program so have good teaching background as well.

In any case, this has long been the standard in law school hiring with the traditional route one of YHSCCh/clerkship/teaching position. I think this was true fifty years when legal scholarship had what might be considered a more jurisprudential bias as opposed to the social science orientation of today.

That said, I think there are certain fields where having a strong practice background is particularly helpful and I think most schools recognize this. (Hard to find a securities law professor without serious transactional or litigation background, I am certain.)

Bored,

I certainly support as much clarity as possible about all of the information needed for law school applicants and students. However, it appears to me you are making an argument about cognitively biased college graduates. And so I wonder how that is consistent with an argument for greater transparency. Isn't the point that cognitive biases are hard to correct with more data?

My own view is that, to paraphrase I believe Judge Frank, law students are not, in fact, "infants, idiots or drunken sailors" and are indeed capable of figuring out that graduating from SCU will not generate the same opportunities as graduating from Stanford, except for a relatively small percentage of the class.

But of course this has been true for at least thirty years. That these schools serve different markets was not caused by the credit crisis. In fact, I thought the LST argument was that even for Stanford students, well, at least for many top twenty schools, the job market basically disappeared for several years and we are left with a massive overhang.

My opinion is that a student accepted to both Stanford and SCU (there are several of these every year) would in my view get a quality legal education at either school. In certain areas they would get in essence the same legal education (I am pretty sure there is little difference between the way I explain risk factors in registration statements and the way Joe Grundfest explains them) and in some areas they would get a different approach.

The problem with comparing these two particular schools is that there is a distinct history at work here that may not apply to comparisons between, for example, Stanford and McGeorge or USF (though they may apply to Lewis and Clark).

SCU in its modern form set out to be the anti-Stanford - precisely in fact to break down the Kingsfield model that prevailed there well into the 70s and 80s. The conscious focus at SCU by a new generation of faculty was on public interest and social justice issues. Poverty law, labor law, education law, women's rights, immigration issues, human rights law - these were areas that several Stanford grads felt Stanford ignored and so they came to SCU to build a program that gave them greater emphasis.

So I think those that appreciate that approach will not be surprised or unhappy that the sources that contribute to USNWR for peer review do not know much about SCU - those are precisely the people the anti-Kingsfield group felt should be ignored. I do think however if you surveyed local and state wide judges, politicians, district attorneys, public defenders, class action and public interest lawyers you would hear a very different story about the nature of SCU. Just as an example, two of our faculty were recently tapped to serve on state wide bodies by the Governor and one to join the State Department working on war crimes.

Before I went to law school I spent several years in the trade union movement. I worked frequently with labor lawyers. Two of the best I ever encountered then or since had unusual backgrounds. One of the two never went to law school at all, he apprenticed with the general counsel of the Farm Workers Union and then took the bar. Now he heads up one of the state's most important union locals. The second was hired by the first to work for him at that union and she came from SCU where she was trained by a member of our faculty (now deceased) who was responsible for drafting the labor law that gave California farm workers the right to organize a union.

Of course, we do exist in Silicon Valley so the school has adapted over time and provides opportunities in IP and business law that provide some balance. But even here we think the spirit of the law school lives on - two of our corporate law people are much better known in the social responsibility arena than they are in law and economics. Most law schools don't have even one business law person in that area much less two. One more and we have an intellectual movement!

But what about CUNY - if they can provide a low cost model, why not SCU? Good question. I have a lot of respect for CUNY particularly since they have an equally strong commitment to public interest law. I am fairly sure they have other sources of funding not available to a private school.

In any case, it is very likely the case that the real story of American law schools is that it may indeed be more expensive to get an education oriented to public interest and social justice law than it is to get one in business law. Turns out, surprise surprise, that successful business persons in America have more money than the clients of social justice lawyers and some of them give it to law schools to train future lawyers for business people! (Hence, my point earlier that the published tuition number at Stanford is artificially low.) And of course fewer of these give their money to law schools that train public interest and social justice lawyers some of whom for some reason are not always enamored of capitalism. (In light of the damage done to so many by the credit crisis that provoked this whole debate, who can blame them?).

As the new semester approaches, I think it is time for me to return to my syllabus revisions and that one last paper I want to finish before the new term begins, so feel free to take the last shot and happy new year.

[BoredJD]

Transparency is an argument about the moral, ethical, and possibly legal duties of legal institutions towards their students. Transparency advocates generally feel that law schools and law professors, as non-profit educational institutions, and representatives of a (supposedly) learned profession, owe a duty of candor towards prospective students that is greater than a seller-consumer transaction, regardless of whether all or most of the students are able to act rationally on the information.

The argument about cognitive bias is one of policy. it is the same one that we are having (or need to have) with regard to for-profit educational institutions. Yes, a SCU student probably understands in the abstract that their class outcomes will not be as good as if they attended Stanford. But to them, this doesn't matter, because they'll be the student in the top 10% of the class who gets the good job. The idea that one should assume to finish at the median of the class, and make an investment based on that assumption, goes out the window. Given this reality, is it still "worth it" to fund or structure legal education in the way we do now? If we wait for the market to correct, which will only happen when the common wisdom surrounding education changes, what effect will this have on society?

The employment statistics do not seem to bear out that SCU is more "public interest" oriented than Stanford. Stanford's "government/public interest" placement rate is 13.6%. SCUs is a mere 7.8%. CUNY's is about 20%. So whatever you're doing, it ain't working, or your school's mission does not comport with the expectations of your students.

Yes, I'm sure some SCU grads will go on to do important things. I'm sure some Stanford grads will flame out of law. But a "rational consumer" would ask what the outcome is for the "median student"- and by no stretch of the imagination is a median student at SCU getting an outcome that justifies COA. If for every one graduate who becomes counsel to the AFL-CIO or ACLU staff attorney three are saddled with big debt and no legal job, this does a disservice to the cause you profess to champion. The best thing you could do to further the cause of public interest lawyering would be to run a law school that provides a JD for a minimal cost.

What I find troubling given the content of your posts is that I don't think you have really asked yourself the hard questions that law professors should be asking right now. You talk about Stanford's money and Stanford's donors and Stanford's placement, but you seem to assume you need to invest Stanford levels of money and provide the same educational experience as Stanford. Do employers care at all about how you provide legal education- or do they just care about the quality of student (as Justice Scalia said- can't turn a silk purse into a sow's ear). If the latter, then how does turning out graduates with so much debt serve the public interest? What would happen tomorrow if your school slashed tuition to 13K per year? Would the lower price make you a more attractive school for better ranked applicants or applicants from disadvantaged backgrounds? Would the employers you listed simply abandon a school filled with the same people they used to hire because the law professors aren't paid as much, there weren't as many administrators, and the alumni events aren't as swanky? Would it significantly hamper your ability to revise your syllabus or teach your classes?

Or would it simply mean you'd be paid less, perhaps have to teach more and do less writing, and have to take over some unwelcome administrative functions?