More Thoughts on Self-Delusion in the Legal Academy, and an Effort to Engage the AALS

Last week, I posted a short essay here on the reaction of the Modern Language Association and the American Historical Association to recent doctoral recipients’ difficulties in securing the tenure-track academic jobs for which their programs specifically prepare them.  I noted that the graduate academy’s reaction was startlingly similar to what inexplicably remains a widespread belief in the similarly constrained legal academy—namely, that the advanced degrees we sell are not being overproduced, but rather “underused,” prompting a distinguished committee of language and literature scholars to recommend that prospective degree candidates be encouraged to devote a median nine years of their lives to a Ph.D. in language or literature in order to teach (among other things) high school.

Among the various reactions I received was a comment on PrawfsBlawg by Northwestern Law Dean and AALS President Dan Rodriguez.  Dean Rodriguez dismisses my observations as an “angry” effort to “channel[] the irritated folks who pepper this post with ‘stick it to the man’ comments in a redundant and wholly predictable way.”  (He also calls me “clever[],” but I have a feeling he didn’t mean it the way I might have liked.)  I don’t think that’s a fair characterization of the post, but I’ll leave that judgment to you.  Much more disappointing is his reduction of the post to the contention that “law profs and administrators who counsel students to pursue non-traditional jobs”—even really good jobs that fully capitalize on the law degree—“are engaging in subterfuge and worse,” when that badly misstates the point I was trying to make.  Since Dean Rodriguez is a distinguished scholar and teacher (and by all reports a very nice guy besides), I need to consider the possibility this disconnect resulted from my own failure of clarity.  Thus it seems incumbent on me to try again:

There are essentially three ways you can think about the relationship between obtaining an advanced degree and any employment you may obtain afterwards.  One is to hold that, for you at least, there is no relationship between the two at all—that you wish or wished to obtain the advanced degree for the love of the discipline rather than for any instrumental purpose, and that you feel your life will be or has been so enriched by the course of study alone that no more mundane resulting benefit is necessary to justify your choice.  This is undoubtedly the case for some devotees of the liberal arts, but their preferences and needs can fairly be described as idiosyncratic.  The typical person thinks about graduate or professional education as substantive preparation for a career.  (Someone who chooses to pursue an advanced degree usually anticipates enjoying the subject matter too, but that alone is not enough to justify the course of study for the ordinary person—the degree must lead to something more than enlightenment, as heady and transformative as enlightenment may be.)

So a second way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterwards is to consider whether, ex ante, an ordinary rational person would have planned to pursue the relevant graduate or professional degree to obtain the job.  To be clear, on this view it isn’t essential that you end up in the job you may have planned for at the outset, just that you end up in a job that it would have been rational to seek the degree to obtain if you had planned it that way.  I explore this view at length in my forthcoming article on the employment market for new lawyers and conclude that it is one effective way of determining whether a law-school graduate has obtained entry-level employment justifying the course of study.  This means as a practical matter that either the postgraduate position must require the degree as a condition of employment (the ABA calls this a “Bar Passage Required” job), or that the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way (the ABA calls this a “JD Advantaged” job).  I will have more to say about this view and the kinds of jobs Dean Rodriguez and I each think it targets in a moment. 

A third way of thinking about the relationship between seeking an advanced degree and the employment you may obtain afterward is that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything.  Both Dean Rodriguez and I think this is an obviously bad description of a law degree.  Here’s what he says:

One argument in [Burk’s] post is unassailably right and important to make:  Even if one supposes that a law graduate has succeeded in finding a position for which the JD degree provides a clear advantage in the work required, it does not follow that law school was the right educational path or, relatedly, that the benefits of this JD degree outweighed the costs.  Of course.  Point well taken.

In other words, even though you will probably be a better high-school English teacher if you have a Ph.D. in English, and even though you will probably be a better high-school civics teacher (or, say, paralegal or legal secretary) if you have a JD, it would be irrational for the ordinary person to pursue those degrees as a path to those jobs, and obtaining those jobs after graduation provides no adequate practical justification for having pursued those degrees. 

But even though Dean Rodriguez and I think this is obvious, a great many people who really ought to know better apparently don’t.  Thus, as my original post bemoaned, a committee of the Modern Language Association charged with assessing graduates’ job prospects recently asserted that a 60% employment rate for Ph.D.s in language and literature somehow did not mean that there were too many doctoral students, but only that prospective students should be encouraged to enroll in doctoral programs in order to obtain jobs teaching high school, or to “put[ their] skills to use in the private sector” in unspecified positions “far from literature.”  (Just to be clear, teaching high school is a deeply admirable endeavor and a good job.  But it is not a job you would get a Ph.D. to obtain.  There are much quicker and easier ways to get there.)  The American Historical Association recently delivered itself of the similar view that Ph.D.s in history are currently not “overproduced but underused.”

And countless law-school apologists are still flogging the Smokin’ Bucketful of Awesome theory of legal education (known in more polite circles as the purported “versatility” of the JD degree) like door-to-door encyclopedia salesmen.  So as to the point on which Dean Rodriguez and I apparently agree, and apparently agree emphatically, I would hope that the future holds more opportunities for Dean Rodriguez to exploit the bully pulpit of the AALS Presidency and encourage deans and admissions officers to cabin their marketing pitches within fair and realistic limits that today are all too regularly transgressed.

Dean Rodriguez also complains that my post eschews any “careful engagement with the point made by many, including [him], that there are positions which ought to count . . . although a credential as a lawyer is not formally required.”  Again I seem to have failed to express myself adequately.  Of course I think there is such a thing as a JD Advantaged job; I never said I didn’t.  My forthcoming 30-year empirical study of the job market for new lawyers, referred to above, devotes considerable effort to discerning how you might know such jobs when you see them.  (See the discussion in Part II.)  But I also think (and I’m joined here by plenty of sober and thoughtful observers of the profession, including quite possibly Dean Rodriguez himself, though I’ll leave that to him to say) that in current usage the JD Advantaged category is concealing a multitude of sins, and that a lot of law schools are using any connection they can imagine (however tenuous or incidental) between a job’s responsibilities and some broad notion of legal reasoning to categorize a job as JD Advantaged in order to enjoy the benefits in placement statistics and US News rankings this categorization carries with it.  As a result, a great many law schools are probably reporting a great many more placements as JD Advantaged than any sensible definition could justify.  I have more to say about why this is likely, but this post is already very long, so watch this space for more discussion of this important topic another day.

In the meantime, although he apparently didn’t realize it, Dean Rodriguez and I agree on something else:  One good way to understand what people are doing with their law degrees is to have accredited schools disclose in much more detail the nature and responsibilities of the jobs they are reporting as JD Advantaged.  Nearly 12% of the Northwestern Class of 2013 currently holds such jobs, so Dean Rodriguez could make a strong start on this transparency initiative himself. 

Quite frankly, I’d bet that a lot of the Northwestern graduates with nontraditional jobs recently reported as JD Advantaged are making valuable uses of their law degrees that justify the investment students made to obtain them.  What I don’t think is that graduates of Northwestern Law are good examples of the body of recent law graduates as a whole.  Northwestern, a top-ranked law school, has the luxury of selecting its students out of the top few percent of the most qualified candidates in the nation.  (Its Class of 2013’s median LSAT was 170, the 97.4^th percentile.)  Those students are as much any employer’s dream when they leave Northwestern as when they got there, and the options available to them are far broader than the much more numerous law grads in the thicker parts of the bell curve.  Northwestern doesn’t have to persuade 20^th percentile students with dubious bar-passage prospects to borrow $150,000 in order to keep its lights on.  Necessity being the mother that it is, I’d also bet that the schools admitting the 140/2.5s are reporting plenty of JD Advantaged jobs among their recent graduates that no rational person would plan to spend three years and six figures to obtain.  And those jobs are not the “management strategy, human resources, regulatory compliance, [and] entrepreneurship” positions at “the growing interface among law-business-technology” that Dean Rodriguez’s graduates may very well be occupying.  But he’s right—we won’t know for sure without a lot more transparency.  A formal call for this kind of disclosure from AALS would go a long way.

 Bernie

Comments

[Jojo]

Smokin' Bucketful of Awesome is my new favorite phrase.

Bernie, you presume that the establishment care to hear your opinion and to treat it as legitimate. They do not.

Critics ranging from the brash (Campos) to the scholarly (Brian T. and bill Henderson) to the empathetic (d. Merritt) are dismissed as charlatans and scoundrels. Of course, they are not, but here you see why reformers are celebrated only in hindsight.

The law school establishment will not acknowledge its warts because to do so threatens its stature or even its existence. Keep up the good work though; change will make legal education and the profession better, cheaper, and stronger in the end.

[Jojo]

I also note that the reply from the establishment takes one of three paths, none of them noble. First, ad hominem attack. Second, nitpicking one tiny point and ignoring the whole. Third, acknowledging some nonspecific or misguided area for further study or possible reform.

Law faculty, right your ship or we'll do it for you. You won't like the outcome if we do it for you.

[Anon]

Who has dismissed Henderson or Merritt as a charlatan? And it's odd for someone calling for "noble paths" to include an empty threat as an invitation to dialogue.

[Steven Freedman (KU Law)]

@Bernie Burk. Could I suggest a fourth way to think about the relationship between seeking an advanced degree and the employment a student may obtain afterward?

I think many students see the versatility of the law degree as a form of risk insurance. Their intent in attending law school may be to practice law and they'd be disappointed not to. But if they don't find "traditional" legal employment, they still might be able to make use of their law degree. It's common to run into law graduates who have ended up outside of traditional legal practice, but in a field for which the JD has some benefit. Is it wrong to point to such outcomes?

I think this could be valid in the PhD realm too. I think for most people it would be foolish to pursue a history PhD if their primary goal was to become a high school history teacher. But is it helpful for the candidate to know that if they can't find a tenure track position at a university, that PhD may still be useful for a high school teacher to land a position at a higher paying school district, or become department head ahead of other faculty?

So while it may be overselling to say that a PhD is perfect for someone seeking to become a high school teacher, or a JD is perfect for someone looking to do compliance, I think it's fair to point out to prospective students that these degrees might be beneficial in ways that are not obvious.

[anon]

Steve

YOu are sort of becoming not only the master of rationalization, but a parody of an admission director: shifting from traditional interest in evaluating applications to admit the very best class possible to a blogger shamelessly excusing and selling, advocating and selling, disputing and selling, and selling, and selling and selling.

You seem to see your role as an admissions director as akin to a salesman: endlessly pitching and spinning.

The fundamental point here is that you appear to have absolutely zero interest in improving anything about legal education. I say "appear" to have no interest because you may have some interest in reforms that you are keeping very well hidden from your discourse here in the FL.

So, let's test the hypothesis. The principal subject under discussion, as I understand Bernie's thoughtful posts, is summarized as follows:

"(1) A ... great many law schools are probably reporting a great many more placements as JD Advantaged than any sensible definition could justify. ... (2) One good way to understand what people are doing with their law degrees is to have accredited schools disclose in much more detail the nature and responsibilities of the jobs they are reporting as JD Advantaged."

Steve, can you stop selling for just a moment and just state without equivocation and evasion:

Do you disagree with the two points quoted immediately above?

[anon]

I agree with all of this, though I think the continued myopia of entry-level jobs (though critical to our current graduates) is not telling of the lifelong value of a JD. I can't speak to PhDs for high school teaching - I don't know that market.

Of course a newly minted, 25 year old graduate won't be valued as a versatile bucket of awesome. But some of the lessons from law school can carry on to contribute to that in later life.

Of our largest donors, virtually all are not practicing law anymore and many never did. And yet they donate to the school and speak to our students about their experiences in school and beyond because they believe in the law school enterprise. Even if they had a hard time getting that first job.

So, it may be true that rational law students wouldn't go to law school for many jobs that they wind up getting. And that should be reported. But that doesn't mean that their rationality isn't bounded by risk aversion, incomplete information, and a short term rate of return.

[terry malloy]

Nice post, Prof. Burk.

Thoughtful and conscious of nuance an complexity.

Dean Freedman, you're posts should have a "law school advertising" disclaimer. You know what's beneficial in ways that aren't obvious? 150,000 in non- dischargeable debt.

I should know, 143,000 in non-dischargable debt from Brooklyn Law School helped me understand the predators and the prey in the law school ecosystem.

[twbb]

I think what Rodriguez and the rest of the pro-status-quo crowd is missing is that true JD-advantaged jobs are suitably rare, particularly in the lower-ranked schools, that they can't really be considered a structural advantage of law school.

[Anon]

Jojo - Ad hominem attacks, huh?

From your post on June 2: http://www.thefacultylounge.org/2014/06/law-school-applicants-plunge-rising-calls-for-reform.html

"You are horrible people, law faculty."

Not the way to win friends or supporters. Most of us who might have been interested in what you had to say stopped listening when all we got were the likes of the above.

We do agree on one point: Attacking people outright is not persuasive and gets us nowhere.

[Jeff Harrison]

thumbs up to jojo.

[HamSullivan]

Thanks Bernie for the thoughtful post. It is refreshing to see a current law professor acknowledge that the vast majority of students enroll in law school to be trained for careers as lawyers. For someone to borrow $100-200k and devote 3+ years of their life purely for personal enrichment or for some elusive, indefinable benefit to a non-legal career is economic suicide. People go to law school with the expectation that the education will enable them to work as lawyers. The employment statistics show that many law grads will be dissapointed. Law school professors and administrators defense of the status quo through arguing that JD-advantage jobs are some kind of cure-all is pure self-interested hogwash.

I look forward to your future posts.

[Anon]

Ham (and others),
Do the views of prospective law students matter as to what you think the vast majority of law students aspire to?

"As the employment landscape continues to struggle, 56% of pre-law students say they plan to use their future JD in a non-traditional legal field..."
http://press.kaptest.com/press-releases/kaplan-test-prep-survey-todays-pre-law-students-want-changes-in-legal-education-are-looking-for-nontraditional-employment-opportunities-favor-mandatory-pro-bono-work-and-value-racial-diver

Yes, it's a small sample; yes, it may be statistically unrepresentative; yes, pre-law students may be under-informed; and yes, their sentiments are likely driven by the continued weakness of the traditional legal job market. Note, however, that these are *entering* students stating that they plan to do something other than traditional legal practice, not graduating students unable to secure traditional legal jobs.

I regularly hear similar sentiments expressed by my current law students quite frequently. Should law schools take this into account at all, or should we adopt the view often expressed by critics that the only outcome that counts and the only one that we should seek to facilitate is employment in traditional legal practice?

In sum, I am no longer as sure that it remains true that the "vast majority" of students come to law school solely to secure jobs as practicing attorneys. Most? Sure. But it's no longer as cut-and-dried as it once was.

[anon]

Anon

Ok, fair enough. Let's stipulate that Kaplan is a good source for survey such as this.

Your highly selective, cherry picked quote is used to support an overall point that in my view is totally misleading and the sort of thing that gets law faculty in trouble. Advocacy can be presented in more sustainable terms.

Your point is this: "In sum, I am no longer as sure that it remains true that the "vast majority" of students come to law school solely to secure jobs as practicing attorneys."

Let's see if the cited evidence supports that point.

First, the press release from Kaplan repeatedly referred to aspiring LAWYERS, e.g., the FIRST SENTENCE, " A Kaplan Test Prep survey of 750 pre-law students* finds that tomorrow’s LAWYERS are advocates for change, have an altruistic side and are adapting to new career realities."

Not tomorrow's paralegals who may benefit from obtaining a JD, not tomorrow's Congressional staffers, not tomorrow's human resources clerks, not tomorrow's accountants, not tomorrow's "JD Advantaged" individuals- the press release presupposes without discussion that Kaplan prep pre-law course takers are tomorrow's LAWYERS.

Second, you fail to mention that the press release states as follows: "Legal Education Has to Change: It’s hard to find legally-minded individuals overwhelmingly in agreement on almost any subject, but 79% of pre-law students say that the U.S. legal education system needs 'to undergo significant changes to better prepare future attorneys for the changing employment landscape and legal profession.'”

LEGAL EDUCATION MUST CHANGE TO BETTER PREPARE FUTURE ATTORNEYS. You cite this article to prove that it is no longer true that a majority of pre-law students are planning to be lawyers. But, 79% agree that law school must be CHANGED to BETTER PREPARE FUTURE ATTORNEYS.

Anon, do you agree with the 79%? Many law profs have responded in these pages with derision and ridicule to the identical point. What's your stance, Anon. Must law school be changed to better prepare future ATTORNEYS?

Third, the article notes: "the American Bar Association, the organization that accredits law schools, agrees — it is currently preparing to make recommendations on how to address growing concerns about the cost of a law school education and its effectiveness in preparing graduates to actually practice law."

Oh boy. This is your evidence that a majority of pre-law students don't go to law school intending to practice law.

Anon, do you agree that the ABA must meaningfully consider and address concerns about the cost of a law school education? Do you agree that the ABA must meaningfully consider the effectiveness of law schools in preparing graduates to actually practice law? Is Kaplan a hysterical, fact free scam blogger? If so, why cite its press release?

Finally, and AS A RESULT OF THE FOREGOING (as the release makes clear) a bare majority of Kaplan prep course takers recognized these realities. These responders appeared to have at least considered whether other forms of LEGAL employment might be available after law school:

"As the employment landscape continues to struggle, 56% of pre-law students say they plan to use their future JD in a non-traditional LEGAL field – up from 50% in a February Kaplan survey. Of that 56%, 63% say the current job market for lawyers factored into this decision – up from 58% in February."

In other words, an overwhelming 63% of 56% of the pre-law Kaplan course takers that had considered non-traditional LEGAL work stated that the current job market factored into that consideration. These responders did not refer to work other than LEGAL work outside of the traditional legal practice, considered in light of the poor market for traditional law practice.

All in all, your citation to this survey not only does not prove your point; it undermines mostly all of the belligerent responses on this blog to those questioning the use of an ill-defined "category" denominated "JD Advantaged" by law schools to conceal dismal job prospects for graduates.

[Anon]

Anon who posted the Kaplan link here, responding to the other anon attacking that post:

(1) The subject of the thread is non-traditional JD jobs, not every other issue discussed in that survey. I do actually happen to agree with various (non-hysterical) critics of the cost, curriculum, pedagogy, and priorities of legal education, but that wasn't relevant to the discrete point I was responding to.

(2) Please re-read my post. I did not say "it is no longer true that a majority of pre-law students are planning to be lawyers." What I said was (a) I don't think it's any longer accurate to assume the "vast majority" are planning to practice law and (b) that I nonetheless do think that something more than a majority ("most"), but less than nearly all, students go to law school to become practicing lawyers. I think I would be in a position to have a reasonable sense of what law students go to law school to do, since I've been teaching them full time for nearly two decades and am well positioned to have seen the evolution in their thinking. Whether that evolution is good or bad was not the subject of my post.

[anonymous]

A foreshadowing of what is coming ...

http://www.nytimes.com/2014/06/27/business/Corinthian-Colleges-Falters-as-Federal-Cash-Wanes.html

You may have never heard of Corinthian, but it is a principal beneficiary of federal student loans, taking in $1.4 billion a year from the government. It operates schools under the names Heald, Everest and WyoTech. A week ago it said it would be unable to finance its operations past the end of this month and disclosed that the Education Department had slowed the flow of federal money, pointing to what it said was admitted fraud at Corinthian in reporting both grades and job placements...

... Corinthian is supposed to pick campuses that it plans to sell to others and those that it will close. That latter group will go into “teach out,” meaning the schools will continue to operate for students already enrolled, but no new students will be admitted. Details are supposed to be ironed out by Tuesday.

A suit filed by the California attorney general last year contended that Corinthian lied about the success of its former students as it focused on single mothers whose income was at or near the poverty line. The suit quoted internal Corinthian documents as describing its target audience as “isolated” and “impatient” individuals with “low self-esteem.” It said the company used high-pressure sales tactics and advertised on the Jerry Springer television show...

“This is truly an American tragedy,” said the consumer bureau’s director, Richard Cordray, in announcing the suit against ITT. “Students may think they are climbing a ladder to success when instead they are getting knocked down, crushed by student debt that does not help them gain a better job or a better life.”

[anon]

Anon

You say the subject of the post above was "non-traditional JD jobs." Wrong, Anon. The subject of the post was "Self-Delusion in the Legal Academy."

The referenced delusion concerns the nature of so-called "JD Advantaged" positions, and the use to which this putative category is put by law schools.

Among other things, the post stated: "(1) A ... great many law schools are probably reporting a great many more placements as JD Advantaged than any sensible definition could justify. ... (2) One good way to understand what people are doing with their law degrees is to have accredited schools disclose in much more detail the nature and responsibilities of the jobs they are reporting as JD Advantaged."

Also stated is this: "current usage the JD Advantaged category is concealing a multitude of sins, and that a lot of law schools are using any connection they can imagine (however tenuous or incidental) between a job’s responsibilities and some broad notion of legal reasoning to categorize a job as JD Advantaged in order to enjoy the benefits in placement statistics and US News rankings this categorization carries with it."

You say: "The subject of the thread is non-traditional JD jobs."

In fact, the category "JD Advantaged" typically includes many positions for which a JD is not even required. (The NALP: "Many law school graduates obtain positions for which Bar Passage, or even a JD, is not required, but their legal training is deemed to be an advantage or even necessary in the workplace.")

Perhaps you do not know that JD Advantaged is not a category that describes "non traditional JD jobs."

As for the goals and aspirations of law students, your point was "In sum, I am no longer as sure that it remains true that the "vast majority" of students come to law school solely to secure jobs as practicing attorneys."

The claim to your own authority may be actually a serious indictment of your experience. We can't evaluate your claim.

In any event, you cite a Kaplan press release. We can read it, if you don't mind, to see if it supported your point.

You cited this press release very badly. You lifted one quote out of context, claiming that the survey supported your point. But you failed to mention that the entirety of the release undermined in nearly every particular your central point. In court, that sort of argument would be labeled bad faith.

Nearly every point in the release you cited refuted your central point, which was "In sum, I am no longer as sure that it remains true that the "vast majority" of students come to law school solely to secure jobs as practicing attorneys."

[Former Editor]

Looking at the language of the press release, I'm wondering what the phrase "non-traditional legal field" means. I don't see any way to access the underlying data, but it seems to me that a prospective student who says that "they plan to use their future JD in a non-traditional legal field" could mean something very different from the statement that "they plan to pursue a JD Advantage job." Going off of what I would have considered a "traditional legal field" as an undergraduate, it would have meant working for a civil litigation firm, being a criminal lawyer, or the other sorts of law practice that you see on TV. In other words, these students could easily mean that they have every intention of practicing law, but that they want to do so in areas like patent, copyright, internet law, or the like.

[Steven Freedman (KU Law)]

I think if some of the commenters here were less accusatory and less extreme in their views, they might realize that faculty and administrators think about these issues too (Bernie's post here, as just one example). Is JD advantage well defined by NALP? Could it be better defined to exclude some positions like paralegal that probably don't belong in this category? Is there a way to make the data more transparent? To what extent should law schools promote the JD's use in non JD req'd careers? To what extent should law schools prepare law students for non JD req'd careers?

These are all good and valid questions. They don't need all caps to pose them.

[Kyle McEntee]

For the record, NALP did not define JD Advantage. The ABA did that. The ABA threw out NALP's category (and accompanying definition) for JD Preferred. JDP is defined from the employer's perspective; JDA is defined from the law school's perspective.

Now, whether this changed law school behavior at all is completely unknown to me. In theory it should have caused different results, but some schools may have always been using the JDA definition for JDP.

[anon]

Steve

As you are a commenter here, perhaps you can answer some of your own questions posed above, instead of constantly defending the status quo and selling law school it "as it is."

It is your steadfast determination to portray law schools as flawless vessels of excellence - in order to shamelessly self promote to satisfy your own ends as an admissions director - that is obvious and quite extreme. At least on this blog, it seems you are the only admissions director in the United States blogging in the manner that you do.

Are the numbers at KU that much better as a result?

If you were honestly engaged in the discussion about law school reforms, one would welcome and credit your contribution. Instead, you just seem determined to defend the status quo and hawk your wares.

Finally, one tends to think that, like some others who dwell on punctuation and capitalization and spacing, etc., you aren't really reading and thinking about comments on the merits, but rather skimming them while thinking about your next sales pitch in response.