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]

Ah, Bored, somehow I knew you would not let sleeping dogs lie.

At SCU we have already committed, and have been committed for several decades, to all of the things you suggest - lower salaries, more teaching, more administrative work by faculty and lower tuition than is the norm at schools like Stanford. The result is that we serve a different market, a conscious choice made by the School decades ago. I think the students who come to SCU understand this.

At some point of course if a school moves in a certain direction it ends up as a bar review school which is fine for students who attend those schools but we chose to be a different kind of school. Stanford decided, several decades ago, to go in a different direction. CUNY uses a combination of public funding and fundraising to be able to offer its 22K tuition and be the kind of school it is.

We constantly debate those choices and try to find the right balance - which has included in the last few years decisions to freeze salaries, not raise tuition and increase administrative work for faculty. I happen to be someone on the faculty who thinks we should focus more heavily on intellectual development and research. Others argue for more clinical experience. I think one of the problems of the LST crowd is that they think law schools are not capable of or interested in making changes to be more responsive as needed. In my experience, however, law school faculty debate these changes with their deans and administrations as often and as vigorously as anything I have seen in the private sector.

We could work for free of course and then you could have gone to law school for free and I think you would have gotten a law school education worth precisely what you paid.

[john]

Steve Diamond: "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."

Keep your promise.

[Robiul]

Great article.Should i learn more information about this?albany remodeling

[BoredJD]

Well Steve, unless I misread I thought you graciously gave me the last shot. I suppose you still had one in the chamber.

I'm not sure what direction your school is going in. Despite apparently being not a public interest oriented school, Stanford places students in public interest positions at almost twice the rate of SCU. Again, how do you explain this in the context of a quality public interest oriented education?

You misread the LST/reform movement. Reformers are interested in MEANINGFUL change. Slowing growth is not meaningful change. Tweaks are not meaningful change.

As a general example, assume there is a school with 50% students who aren’t getting lawyer jobs. A meaningful change might be for this school to cut class size by 20%, so fewer students are competing for the same jobs. What usually happens is that the school retools and beefs up its Career Services department because it's not fair that the school's career services department only has six people and the elite school downtown has 15! Nobody stops to ask the simple question of whether elite school students get jobs because of or in spite of well-funded career services departments. I could run this kind of analysis for a dozen or more different programs.

Law professors show an unwillingness to engage in the kind of rigorous analysis that first-year law students must engage in as part and parcel of their exams. "We charge a lot of money because we need to provide a quality legal education" is fraught with unanswered questions. Does a quality education necessarily require large tuition outlays? When does each dollar spent on educational quality result in diminishing marginal returns? What the hell is a "quality" law school education? Do employers care about the quality of the law school education as opposed to the entering credentials of students? Do students care about the quality of a law school education in and of itself, as a signaling factor in the job market, or do they not care at all? Is there a way to provide a quality education with a completely different structure, conceptually, as found at the top tier schools (with much lower cost)?

I hardly see how cutting tuition will force your school to move towards the bar prep model of legal education. It does not require you to teach only black letter law courses. It may require you to make sacrifices in other areas, but if the school and professors truly believe that intellectual, theoretical classes produce better lawyers, nothing prevents you from teaching what you like.

As to your claims on tuition: http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1899:santa-clara-prof-just-making-up-tuition-facts&catid=42:news&Itemid=71

[Steve Diamond]

My guess is that LST is really interested in making money not in any serious change, hence its interest in brand recognition. No doubt it will be offering law school applicants some kind of software package that will only add to the cost of going to law school. If it were interested in serious change at law schools it would not engage in false accusations (the suggestion that you repeat here that I was making up the statement that our faculty blocked a proposed tuition increase) about the very people it wants to change. As a business law professor, I feel badly that I have trampled in the way of your marketing campaign! Good luck to you.

[john]

Steve Diamond: "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."

Keep your promise.

[Kyle McEntee]

"My guess is that LST is really interested in making money not in any serious change, hence its interest in brand recognition. No doubt it will be offering law school applicants some kind of software package that will only add to the cost of going to law school. If it were interested in serious change at law schools it would not engage in false accusations (the suggestion that you repeat here that I was making up the statement that our faculty blocked a proposed tuition increase) about the very people it wants to change. As a business law professor, I feel badly that I have trampled in the way of your marketing campaign! Good luck to you."

I take great offense at your "guess" about my organization's real interests. LST is a nonprofit that Patrick Lynch and I incorporated in 2009. My team has worked thousands and thousands of hours for free since that time. I could not be prouder of their and my work.

Nobody has never taken a salary for work with LST, though I do hope to take a small salary this year (probably $750 per month) when I move to doing LST part time. (I had to find another job to afford my loans and to live.)My total income since starting LST is $18,000 -- all from a school-funded fellowship to work for another nonprofit -- though two years were during law school . No less, I have foregone income (my last paycheck was August) as long as possible in order continue working passionately and effectively for something I believe in. But yeah, this is just a long con so I can make money.

[Kyle McEntee]

Oops, should say "nobody has ever taken a salary."

[Steve Diamond]

Kyle, Where can individuals interested in transparency find LST's annual reports and Form 990s?

[john]

Steve Diamond: "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."

Keep your promise.

[Kip]

Kyle -- I wonder if you can address some of the substance of Bernie Burk's original post. That is, what do you believe your expertise is in the area of law school curricular reform, as you indicate you have never practiced, held only one part time job for a short period of time, and have not taught?

That is, now that you have seemingly achieved your goal of having all law schools post detailed employment statistics on their website, why are you still here?

[BoredJD]

"If it were interested in serious change at law schools it would not engage in false accusations (the suggestion that you repeat here that I was making up the statement that our faculty blocked a proposed tuition increase) about the very people it wants to change."

I don't work for LST if that's what you think. If you want to know about my motives you only have to ask.

The link to ConDaily, a separate blog from LST, was attempting to provide context to your statements. That you froze tuition one year is a good thing. That tuition rose by $8,000 from 2007-2012 is not so good. That's about twice the rate of inflation. The school seems to have an insatiable need for tuition revenue and a prospective student might reasonably wonder if you will not make up your tuition freeze in another year.

Statements like "if you want free law school, you get what you pay for" are bad arguments. Your last comment was bizarre in the context of this conversation. You so offhandedly attribute ulterior, profit-seeking motives to LST, an organization that offers no paid products and survives on donations and time. Law professors and deans, however, could never be concerned with their own bottom line first and foremost.

[Deborah J Merritt]

Steve, your allegation about LST's motives is malicious and, as far as I can tell, completely unfounded. In court, an attorney needs a good faith belief before asking a witness a question like this. Attorneys can't just ask things like "isn't it true that you embezzled money from your employer?" or "isn't it true that you're really interested in making money from prospective students, thus increasing their cost of attending law school, rather than effectuating serious change?" without a good faith belief in the accusation.

I'm disappointed both in your professionalism and in the integrity of this site. Why didn't the moderators remove this comment? The comment points to no basis for for a very malicious accusation. Is this a site that allows any statement, no matter how unprofessional?

[Really?]

"The comment points to no basis for for a very malicious accusation. Is this a site that allows any statement, no matter how unprofessional?"

No, that would be ITLSS.

[Steve Diamond]

Deborah,

If I recall correctly, the suggestion that LST might be engaged in an effort to start a business was implied at the outset by Bernie when he pointed to their recent "brand recognition" tab on their website. At least, that is why I even thought about that possibility. In addition, there was the suggestion that LST has had some relationship to the law suits now filed around this issue.

In any case, why is it malicious to suggest someone is starting a business? I actually think LST could be a very good - and useful - business! I support full transparency from law schools. And just as in the private sector the existence of third party providers of disclosure and other information is very useful. I sat on the advisory board of a company that did this very thing for the financial sector. It now focuses on executive pay packages. It provides an important service.

I do think however that the obsession with nominal tuition numbers is not helpful, a point I have now made here and on ConstitutionalDaily exhaustively. That this blatantly obvious and rational conclusion is ignored by LST and others suggests that there is another agenda here. Kyle and LST have still not made their annual reports or Form 990s available so that they too can be checked for accuracy.

And since you are anxious about my professionalism would you mind taking a minute and going over to ConstitutionalDaily.com and tell them that you oppose their public effort to have me fired for participating in this debate?

Or are you too more interested in yelling fire in a crowded theater than having a rational discussion?

(And please give my class mate Dan Tokaji my best when you see him).

[Steve Diamond]

Bored: Although John will tell me I should keep quiet, allow me to respond to one point you made:

"The link to ConDaily, a separate blog from LST, was attempting to provide context to your statements. That you froze tuition one year is a good thing. That tuition rose by $8,000 from 2007-2012 is not so good. That's about twice the rate of inflation. The school seems to have an insatiable need for tuition revenue and a prospective student might reasonably wonder if you will not make up your tuition freeze in another year."

We did not freeze tuition. The school did not make two proposed structural changes in tuition that would have increased school revenue. The nominal number has increased as reported to the ABA.

I continue to believe that discussions of the nature legal education that focus on nominal tuition are not meaningful because they do not reflect the actual cost/revenue basis on which law schools are managed. Again this is not my area of expertise but as an example out of 11 California schools our tuition ranks 8th, below Pepperdine, Davis, etc.

Interestingly, USC, Davis and Berkeley (using in state resident tuition for the UCs) ranks ahead of Stanford. If this then is all about the correlation between nominal tuition and USNWR then I would think the students at USC Davis and Berkeley should be howling. But I would give them the same answer as I have here - the experience is different, the schools serve different markets, the cultures vary. Having recently advised a family friend to go to USC, for example, I think she made a great choice, is having a great experience and will make a terrific lawyer. She had several other choices.

Of course, it looks like she will be graduating at a time when the economy remains sluggish. This is a serious problem but it is not one caused by law schools. It is distressing to me to see so many in our profession ready to eat their young.

[Carlos Rosario]

Professor Diamond,

As a former SBA president at SCU, and a former co-worker of Kyle McEntee, I can say with a great deal of confidence that LST is not looking to make money off of their project.

In the many conversations I have had with Kyle, including talks with Kyle and Dean Polden in the Adobe Lodge, all that was ever discussed was how to provide a service where fewer of our former classmates and friends become part-time servers after their law school career ends.

Kyle's goal is altruistic. - Just my 2 cents.

[Steve Diamond]

Thank you for that perspective, Carlos.

In your view has the service provided by LST or Kyle helped law students get jobs? I am not sure how that works because I cannot see any connection between the information they provide - which is readily available elsewhere and has been for years - and the likelihood of employment. I made an assumption based on their site and the discussion here that they have a political viewpoint (given the argument of their paper) or a marketing viewpoint (given their attempt to create "brand recognition" and to move to a salaried business model for staff.

Again nothing wrong with either of these goals. Or with trying to help law students get work. But it would be nice to have some, well, transparency about this.

[Stan]

SCU's bar passage rate for California is 15th of 22. Stanford came in 2nd. I guess there is something to be said for Joe Grundfest after all.

http://abovethelaw.com/2013/01/california-bar-exam-results-by-law-school-open-thread/

[Case Update]

There was a decision today dismissing the employment stats case against Albany Law School. Here is a key quote from the ruling:

"Given the elaborate and somewhat subjective nature of plaintiffs' definition of 'employment,' it is difficult to envision how they could reasonably have expected any single published statistic to comport with all of their assumptions and expectations regarding legal employment," Platkin wrote.