Scott Norberg’s article, “The Case for an ABA Accreditation Standard on Employment Outcomes,” is available on SSRN here. If you’re interested in the recent demographic, economic, and regulatory evolution in the legal academy, you should read it. It’s a valuable contribution to the literature—clearly written, thoughtfully reasoned, and empirically grounded. For what it’s worth, I confess I was initially skeptical about whether it was useful or appropriate to make minimum employment outcomes a condition of accreditation, but I ended up persuaded it was an appropriate and regrettably necessary use of the accreditation power in the current environment. You should see whether you agree.
The article’s basic argument is straightforward, and broadly proceeds in four steps: (1) most people go to law school aspiring to work as lawyers or in closely law-related careers, and the ABA’s standards explicitly make preparation for admission to the bar and the practice of law a condition of law-school accreditation; (2) when an inadequate proportion of those graduating from a JD program succeed in achieving a law job within a reasonable time after graduation, that is an indicium of failure in the content or administration of the program and with respect to this accreditation standard; and (3) a significant minority of law schools show seriously inadequate postgraduate success in the law job market (and persist in admission policies that seem destined to make both bar exam and employment outcomes even worse); so (4) the accrediting agency, namely the ABA, should do something about it by adopting an accreditation standard focused on employment outcomes, either in addition to or instead of a standard based on bar passage. The standard Prof. Norberg suggests “as a starting point for discussion” is either (a) placement of 60% of a school’s graduates in full-time, long-term Bar-Passage Required or JD-Advantaged employment (as those term are used in current Standard 509 reporting) within 10 months after graduation, or (b) placement of 75% of graduates in such jobs within 22 months of graduation.
Some more detailed thoughts and comments after the jump:
If you’re interested in data regarding the academy or the legal job market, the article does a very nice job of gathering a lot of information in an orderly fashion.
One fairly debatable feature of the argument is whether it is appropriate for the ABA to impose accreditation standards for law schools based on employment outcomes. This question implicates a range of contestable and contested policy issues, not least of which is the likely disproportionate effects of the article’s suggested policy on low-income and minority aspirants to law practice. To his credit, Scott airs arguments on both sides of these difficult questions open-mindedly, and without the dog-whistles to the right or the left that all too often obscure the issues. You can find that discussion in Scott’s article at pages 23-29. These are hard questions, but they’re not going away anytime soon, and we would be wise to address them calmly and on their merits.
If you overcome the hurdle just discussed and conclude that some kind of employment-outcome-based accreditation standard is a good idea, then you have to wrestle with how to set that standard. Reasonable people can differ, of course, but bear with me while I look at one feature of the mechanics: Scott’s proposed standard is based on combined Bar-Passage Required (BPR) and JD-Advantaged (JDA) jobs within 10 and 22 months after graduation. My own view is that JD Advantaged is a useless if not misleading category, and should be eliminated from the standard. The reason is simple: No one has a clear idea of what qualifies as a JD-Advantaged job, and in addition to honest differences of opinion reflected in current Standard 509 reporting, what I fear is already a disturbing degree of opportunistically aggressive use of the category will likely get even worse if accreditation is on the line. (You can see more discussion of this issue in Scott’s article at pages 35-36, and in a paper of mine at pages 555-59.) For this reason, if we’re going to add an employment-outcome-based standard, I would urge that it be based on Bar-Passage Required jobs, with some additional room left in the standard (that is, the floor acceptable law-jobs number should be lowered) to account for the graduates who end up with the modest number of non-BPR jobs for which a law degree really, really matters.
I also want to take a moment to applaud Scott’s attention to 22-month postgraduation employment outcomes. There has been a lot of debate about how much uptake into legal jobs improves during the year after the year after graduation, with very little data gathered to answer the question. This is especially important because, historically, approximately 20% of all first-time bar takers nationwide fail the exam on the first try, and that result obviously interferes with securing a law job for those who suffer it. (Decent data about how many of those first-try failers ultimately pass a bar exam is extremely hard to find—feel free to cite in the Comments any I’ve missed—but it probably would not be a terrible guess to suggest that, historically at least, roughly half of those nationwide who fail on the first try eventually pass, and almost all of those pass within another two or three administrations of the exam after the first failure, leading to a roughly 90% pass-rate overall within a couple of years after graduation. How this will be affected by the dropping pass rates we have seen in the last two years and can expect for the next several remains to be seen.)
In fact, it might be a strong first step toward consideration of an employment-based accreditation standard to broaden Standard 509 reporting to include both 9-10 and 21-22 month reporting. I would urge this as a first step if the ABA is hesitant to take the larger jump.
There are also quite a few things to be said about where to set the minimum acceptable law-job employment percentage. I’d like to encourage further conversation about this topic.
In sum, what kinds of concerns one takes into account in setting the standard, and how much each concern should drive it, is a challenging set of questions that I would hope to see addressed in the Comments and by Scott.
I close my introductory observations and cede the floor to Scott and the readers of this space with one big-picture comment: Ultimately, to conclude that an employment-based accreditation standard is needed is to conclude that, one way or another, the legal academy should shrink even more than it already has. That follows inevitably from the fact that there are considerably more graduates than law jobs (and let’s face it, that’s not going to change anytime soon). Obviously that contraction would not be distributed evenly across the academy for the same reasons that quite a few law schools have no, or only relatively minor, placement problems. Scott has identified slightly fewer than 20 law schools with persistently terrible employment results as a justification for his proposed accreditation standard, and correlatively as the institutions most likely to meet the bleeding edge of that standard. How many of these institutions would disappear altogether out of inability to comply, and how much the pressure of the standard would be more widely distributed across the academy, affecting a greater number of schools to a somewhat lesser degree, remains to be seen. But my commentary ends, and I hope other commentary begins, with the reality that a growing chorus of thoughtful and conscientious voices in the academy are suggesting that some institutions, and not just ones operated for profit, have become so irresponsible or self-interested that we need regulatory intervention to protect the public. Sigh.
--Bernie
Here's one paper on bar failers: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1443541 (Obvious disclosure: married to the author.)
Posted by: Derek Bambauer | August 01, 2017 at 04:51 PM