If you are at this point persuaded that, at least in theory, an employment outcomes accreditation standard is an intelligent response to the crises of too many law graduates, too few law jobs, and too much law graduate debt, then the challenge becomes crafting a reasonable and workable standard.
An important threshold matter is how to define “law jobs” for purposes of the standard. The toughest question here is whether to include JDA jobs as qualifying jobs. In my article, I propose to include full-time, long-term bar passage required (BPR) as well as JD advantage (JDA) jobs, but to cap JD advantage jobs that count toward to minimum law job employment rate at 15% of the school’s graduating class. I also propose excluding short-term, part-time jobs, law school funded jobs, and solo practice jobs; these jobs, I submit, are not the sort of jobs that the great majority of law students spend three or four years and tens of thousands of dollars to get.
In his post introducing me as a guest blogger, Bernie Burk expressed concern about including JDA jobs as law jobs. I see the concern, and could still be persuaded. Indeed, my first draft of the article did not include JDA jobs as qualifying jobs for purposes of a standard. There are sensible arguments on either side.
On the side of including JDA jobs, law school is often viewed as a “graduate degree in critical thinking” that prepares graduates for a wide range of careers beyond the practice of law, even if the typical applicant envisions practicing law for at least some stretch of time following graduation. Further, NALP data indicate that a majority of graduates in JDA positions are not seeking other jobs at 10 months after graduation, suggesting that most are satisfied with the utility of their legal education in the position. While this does not establish that law students ex ante would rationally decide to attend law school to obtain these positions, it does tend to support that proposition. Further, the likelihood that some students who matriculated with the intention of obtaining a BPR job will develop an interest in JDA employment during the course of their legal education should not be ignored. Moreover, many JDA jobs pay just as well (or poorly) as law jobs.
On the other side, there are good reasons to be skeptical of whether most jobs classified as JDA jobs are jobs that a rational law student would attend law school to obtain. The number and percentage of graduates taking JDA jobs has doubled in the wake of the Great Recession of 2007-2009, from 2,156 and 4.9% for the class of 2009 to 3,993 and 10.8% for the class of 2016 (excluding law school funded positions). The size and timing of the increase strongly suggest that some graduates are taking JDA jobs because BPR jobs are not available. This is generally confirmed by the fact that lower-tier law schools tend to report higher percentages of graduates in JDA positions, and further by the NALP data that 43% of graduates in JDA jobs were looking for other employment within ten months of graduation, compared to 15% of graduates in BPR jobs. Indeed, the ABA and NALP definition of JDA positions in large part describes employment for which one-year post-baccalaureate Master of Laws degrees are designed to prepare students. Also, as Bernie pointed out, the definition of JDA is less than precise – the line between JDA and Other Professional jobs is open to interpretation – and therefore reporting is subject to manipulation.
It would be interesting to know what others think. I came down on the side of counting JDA jobs as qualifying employment outcomes, provided that the current definition is narrowed to eliminate placements for which students would qualify with a Master of Law degree. It is hard to justify three years of time and expense for a J.D. degree where one year for the Masters is sufficient to prepare a student for the job. Having said that, perhaps it will be too difficult to tighten the definition and it therefore would be preferable to limit qualifying jobs to FT, LT BPR jobs, while setting the minimum employment rate somewhat lower to take account of the fact that there are some non-BPR jobs for which the JD degree really matters, as Bernie suggested.
As a starting point for discussion, here is what I propose for an ABA employment outcomes standard. It could be adopted in addition to or in lieu of the bar passage standard.
Standard XXX. Graduate Employment Outcomes
(a) A law school must demonstrate that for two or more of each of the last five graduating classes:
(1) at least 60% of the graduates were employed in full-time, long-term, bar-passage-required or J.D. advantage jobs as of March 15 of the year following graduation; or
(2) if the requirement of subsection (a)(1) is not met, at least 75% of the graduates were employed in either full-time, long-term, bar-passage-required or J.D. advantage jobs as of March 15 of the second year following graduation.
No more that 15% of graduates employed in full-time, long-term J.D. advantage jobs may be counted towards the percentage rates specified in subparagraphs (1) and (2) of this paragraph.
(b) A law school that fails to comply with subsection (a)(1) of this Standard with respect to any graduating class must promptly submit a detailed plan for how it will remain in compliance with the Standard.
(c) As used in this Standard,
(1) “graduating class” is defined as a cohort of graduates who graduated between September 1 and August 30 of the following year, and includes graduates whose employment status is unknown, but excludes graduates who are pursuing a graduate degree full time;
(2) the terms, “full-time,” “part-time,” “long-term,” “short-term,” “bar passaged required,” and “JD advantage,” are as defined in the Definitions and Instructions accompanying the ABA Employment Questionnaire, except, however, that graduates employed as solo practitioners shall not be counted as employed; and
(3) the term, “average amount borrowed,” is as defined in the Instructions accompanying the ABA Annual Questionnaire.
In setting the legal employment rate, I started by estimating the generally attainable maximum legal employment rate at 10 months after graduation. Historically, about 20% of graduates have not passed the bar on the first try. While a large proportion of these graduates pass the bar on a subsequent attempt, they often do not obtain legal employment until after the 10-month measurement date. In addition, some graduates decide to pursue a graduate degree full-time even though they have the option of legal employment; and a small percentage of graduates likely decide not to take legal employment for reasons other than the absence of opportunity, or are unemployable due to mental health or character and fitness issues, or because they interview poorly. Taking account of these factors, a reasonable estimate of the generally attainable maximum LT, FT BPR employment rate for law graduates at 10 months after graduation is about 75%. This estimate is borne out by the employment reports from schools with the very highest legal employment rates. At the schools with law job placement rates in the top decile, slightly more than 75% of graduates obtained FT, LT BPR jobs within 10 months after graduation.
At the schools with law job placement rates in the top decile, slightly less than 85% obtain FT, LT BPR and JDA jobs combined. So, 85% would be the combined maximum attainable FT, LT BPR and JDA combined employment rate.
The maximum attainable rate should be discounted to some degree to take account of the 10-month measuring point under the ABA’s current employment data reporting system. The 10-month measuring point likely obscures a number of positive employment outcomes. On the one hand, the large majority of law students attend law school with an expectation of having a law job within 10 months of graduation (at least assuming they pass the bar on the first attempt), and so no allowance for positive outcomes beyond 10 months is appropriate given the purpose of the employment rate standard to assure that program outcomes align with program objectives. (The fact that about 20% of graduates do not pass the bar on the first attempt and therefore do not land a law job until after 10 months after graduation is already baked into the generally attainable maximum law job placement rate discussed above.) Further, employment prospects likely diminish over time after passing the bar, and especially when the graduate must compete with the next year’s graduates for legal employment. On the other hand, positive outcomes may be delayed for a variety of reasons and regardless of the reason should be credited to the school.
The draft standard requires compliance with the minimum legal employment rate for two out of five years in order to ensure that temporary dips in employment rate caused by an economic downturn do not lead to loss of accreditation. A school would be in jeopardy if fewer than 60% of graduates obtained law jobs (defined to include JDA jobs) for four consecutive years. This is subject to the qualification, however, that if a school fell below the minimum legal employment rate in any one year, it would have to submit a plan for how it will remain in compliance with the standard, and the Accreditation Committee could find that the plan is not reliable.
Finally, the number of JDA jobs that could count toward the minimum standard is capped at 15% consistent with the premise that the great majority of law students attend law school to be lawyers. As mentioned above, the room for manipulation in employment reporting under the current standard should be narrowed by better defining JDA to exclude jobs for which a post-baccalaureate Master of Laws degree will qualify a student.
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