This is the second in a series of what I intend to be four posts on my new study of the entry-level Law-Jobs market. Part I laid out the current state of the job market, and you can find it here. The full paper is available here.
Today I’ll discuss so-called “JD Advantage” placements, what the job market is telling us about them, and what the available data is not telling us.
For those not entirely familiar, the ABA’s disclosure requirements call on reporting law schools to break down their recent graduates’ employment outcomes (among other ways) into four mutually exclusive categories: Bar Passage Required, JD Advantage, Professional Position, and Nonprofessional Position. The current definition of a JD Advantage position (see here at p.26) includes that its “duties . . . do not require passage of the bar exam or an active law license or involve practicing law”; but “[t]he possession of a JD by the graduate was sought by the employer, required by the employer, or provided a demonstrable advantage in either obtaining or performing the duties of the position from the perspective of the employer . . . .” (For a history of the evolution of this job category, see my earlier job-market study at 555-59.)
I’ll talk about the problems with this definition, and what we do and don’t know about its application, after the jump.
The problem of pliability. There are a number of problems with the JD Advantage category as defined. One is (or perhaps two are) its breadth and pliability. They almost certainly cause some outcomes to be reported as JD Advantage that it would make no sense ex ante to attend law school to obtain (because there are much cheaper and easier ways to achieve the same result), and thus should not be considered placement successes (in my terminology, Law Jobs). Worse, the definitional flexibility may inspire some administrators to stretch the category beyond any reasonable scope, rationalizing some “demonstrable advantage in either obtaining or performing the duties of the position,” in order to report an outcome they can claim as successful, especially in hard times.
For example, is paralegal or law clerk (not for a judge, but as an unlicensed assistant for other lawyers) a JD Advantage position? To be clear, there is nothing intrinsically wrong with these jobs; they are valuable, honest work, and skilled besides. But you sure wouldn’t plan to spend 3 years and $150,000 in law school in order to get these jobs—in fact, you can get a paralegal certification in one year at many inexpensive community colleges, and you don’t even need that to get an entry-level job as a paralegal. And yet the ABA’s 2019 Employment Protocols for the Class of 2019 provide that both paralegal and law clerk are presumed to be JD Advantage placements by dint of job title alone. (See here at pp. 26, 67.) In the same publication, the ABA says legal secretaries are presumed to hold a “Professional” rather than a JD Advantage position (here at p. 68), though (in my experience, at least) their work in many if not most cases is as highly skilled and law-related as paralegal work, especially at smaller firms.
This is probably because the ABA has over-focused on the law-relatedness of the work rather than the degree of practical utility of the JD degree for the job. But when you think about it, most jobs bear some relation to the law. Police officer? High school civics teacher? Heck, even flipping burgers at McDonald’s requires you to comply with myriad food-safety regulations. What all this tells us is that, by its current definition, the JD Advantage category includes outcomes that should not be viewed as a practically sensible use of a JD degree, and that its boundaries are poorly delineated.
What the job market is telling us. The job market is also telling us that the JD Advantage category is overbroad, and quite possibly too manipulable as well. How is the market telling us this? By the choices that sellers (new graduates) are making. Those choices indicate that many graduates don’t want a JD Advantage job, and that many of those who have to take one don’t like it, and immediately want to trade it for something else.
The JD Advantage category was instituted in reporting outcomes for the Class of 2001. But the number of such placements takes a giant leap—in fact, roughly doubles—after 2009, when Bar Passage Required jobs suddenly plummet into short supply. As Bar Passage Required jobs become more available (not because they increase in number, but because the number of graduates seeking them starts falling faster than the number of Law Jobs is falling), the number of JD Advantage placements begins to fall again. Here’s a picture:
The orange line in the graph is the Law-Jobs Ratio—that is, the percentage of the graduating class that got a Bar Passage Required Law Job within nine or ten months after graduation—and is a direct measure of how accessible Bar Passage Required jobs are to new graduates. Since the JD Advantage category was introduced in 2001, the number of JD Advantage placements has been inversely correlated to a statistically significant degree with the Law Jobs Ratio (r = -68%; p < .003)—that is, they tend to move in opposite directions. In addition, NALP and the ABA collect statistics on which new graduates are employed but seeking to change jobs. For the Class of 2017, the proportion of JD Advantage job holders who report that they are seeking other employment remains close to 40%, over four times the proportion of Bar Passage Required job holders looking to change jobs (8.8%).
In other words, the easier it is for new graduates to find a Bar Passage Required job, the less likely those graduates are to take a JD Advantage job; and a lot more JD Advantage job-holders than conventional Bar Passage Required job-holders are looking for a different (and presumably more directly law-related) job just 10 months after graduating.
Does this mean that all JD Advantage placements are failed outcomes? Clearly not. There are entry-level placements in numbers that shouldn’t be ignored that don’t require a law license but where the JD degree nevertheless provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way (part of my working definition of a Law Job). Working as a Patent Agent likely fits this bill. Many jobs in compliance in the health-care or securities industries probably do too. Arguably so does an entry-level job as an FBI agent, given the FBI’s policy favoring applicants with law degrees or CPAs because of the advantages these provide in performing the job’s duties. There are undoubtedly other good examples.
Okay, then what portion of JD Advantage placements should be considered Law Jobs (that is, a successful use of a law degree)? The truth is we don’t know, and that’s part of the problem. There is currently very limited visibility into what outcomes are being reported in this category, and in what proportions. The ABA data protocols (linked to above) provide a definition and a list of job titles that presumptively qualify as JD Advantage. Beyond that, I’m not aware of any publicly available data detailing the actual application of the category. The official definition and presumptively adequate job titles themselves, as well as the statistics discussed above, suggest that a significant portion of new JD Advantage jobs are not Law Jobs. How many is not entirely clear.
Consider the statistic that roughly 40% of the holders of new JD Advantage placements are still seeking employment. That means about 60% are not. Why would that be? Well, it seems likely that they are (for now) satisfied with the job they have, or at least satisfied that they can’t do better. But why? Some of them must have found JD Advantage Law Jobs that they like enough to stick with. But some of them may be sticking with a non-Law Job because they are among the approximately 25% of first-time takers who didn’t pass the bar exam, so a Bar Passage Required job is largely out of reach, at least for the time being. Others may have performed poorly in law school and thus be convinced (not without reason) that the job they have is the best one they can get for now, even if it’s not one they would have preferred. Neither of these should be viewed as a good outcome or an effective use of a law degree.
And some may have decided during their time in law school that they did not care for lawyering and did not want a conventional law-practice job. This is a complicated outcome to assess. Certainly it’s appropriate for these graduates not to take a job they don’t want, even if they could have gotten it. But these same people have just spent three years and likely a great deal of money and forgone income to prepare themselves for work they don’t like and don’t want. (Leave aside the small corps of highly talented and motivated outliers graduating with unconventional plans from super-elite institutions, who have the exceptional talent, perspective and drive to build their own personalized curricula and blaze their own trails. Let’s focus on the more typical students at more typical law schools who realize at some point that law practice is simply not for them.)
From that perspective, it’s apparent that people who learned in law school that they don’t want a conventional law practice position of any kind, and for that reason take something law-related to some lesser degree, are just making the best of a bad situation, and that this is not a successful or effective outcome of a legal education. Almost no one would plan to go to law school if they knew in advance they wouldn’t like legal practice, and learning that has come at a cost (economically and otherwise) grossly disproportionate to its value. As I once analogized in this space, you wouldn’t have bought that used car had you known it was going to break down soon after leaving the lot, and the fact that you can now sell it for scrap would never have been a selling point ex ante.
Add up all these categories of new graduates—(i) the people who took a JD Advantage position that is not a Law Job; (ii) the people who took a JD Advantage position that might (or might not) be a Law Job but don’t like it, and want to trade it for something more law-related; (iii) the people who can’t get a Law Job because they haven’t passed the bar or performed poorly enough in law school that legal employers prefer other candidates; and (iv) the people who don’t want a Law Job because they don’t want to do what law school most directly prepared them for. When you add them all up, I would guess (and, to be fair, it is only a guess) that it amounts to over half the holders of JD Advantage placements, quite possibly well over half. If that’s right, then excluding JD Advantage placements from Law Jobs (the placements that “count”) undercounts Law Jobs less than including them would overcount Law Jobs.
But what about the future? There are also persistent suggestions that the future of the profession lies predominantly in merely law-related work rather than in conventional law practice. Certainly that’s not true today—the graph above, and the consistently far greater number of Bar Passage Required over JD Advantage placements, shows it. In my view, any such future is so far off as to be out of view, and more likely will not materialize at all.
Coming from law-school administrators, the argument that the future of the profession lies in work not requiring a law license is a bit curious. After all, the one thing that a JD can get you that almost no other endeavor can is the right to sit for the examination leading to a law license. If you don’t need a law license to do the things that many or most law-school graduates are now being told in some quarters they should do or should expect to do someday, why would you squander all that time, money, and forgone income to get one?
And sure enough, dozens of law schools have now introduced one-year master’s degree programs designed to provide legal knowledge useful to various kinds of law-related careers. There is something to be said for this idea—thoughtfully constructed and realized, such programs can provide real value at a fraction of the cost of a JD, and alternative revenue streams for law schools leveraging expertise law faculties already possess. But be careful what you wish for—if the future of the profession is truly not in licensed activities (something I believe won’t happen), then the future of the legal academy may not be in 3-year JD degrees either. In other words, while the need for lawyers who must have a law license to do what they do may contract over time under the pressure of economic and technological forces beyond the profession’s control, it seems unlikely that those interested in the domain of unlicensed law-related activities will continue to pursue three-year JD degrees they don’t need to do the work they want to do.
This analysis has several implications:
- The JD Advantage category as currently defined is overbroad and may be prone to even more overbroad interpretation. The ABA should release data regarding how reporting law schools are actually applying the category to ground discussion about whether it should be redefined.
- For now, and until we have more reliable means of sorting out the JD Advantage placements that fairly are real Law Jobs, it is more accurate to exclude JD Advantage placements from the count of Law Jobs.
- Some law schools claim to be revising their JD curricula in the belief that they should prepare many or most students for a wide range of generally law-related careers with a three-year postgraduate degree. Most of these are probably on the wrong track. While thoughtfully constructed one-year postgraduate degrees concentrating in law-related careers or disciplines may prove to be a valuable addition to some law-school curricula, overwhelmingly students seek JDs to become lawyers, and that does not appear likely to change anytime soon. Accordingly, most JD programs should concentrate on preparing students for the world of law practice in all of its many forms rather than for imaginary hybrid vocations their administrators hypothesize may be lurking just over the horizon.
I am indebted to Jerry Organ of the University of St. Thomas School of Law for very helpful comments on an earlier draft of this post. For the record, I believe he may not fully agree with some of the conclusions set out above.
--Bernie
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