The Faculty Lounge

An ABA Accreditation Standard on Employment Outcomes?

Thank you to Bernie for his introduction of my article, and for his comments and questions. Bernie’s reaction is similar to that of others who have read the manuscript: initial skepticism, followed by basic agreement with the argument, with some caveats and questions regarding important details. In this post, I will define the major problems facing legal education, and respond to one of Bernie’s comments in particular (and will respond to others as I lay out the rest of my argument in the next few posts).

In the article, I carefully describe the major problems facing legal education, and then make the case that an accreditation standard on employment outcomes is a viable response to those problems. It is abundantly clear that there are far more law school graduates than there are entry-level law jobs for those graduates, that entry-level salaries have been stagnant or declining for at least the past 16 years, and that the cost of a legal education and the resulting debt burdens are severe. (I would not describe the drop in applications and enrollments as a problem facing legal education; rather, they are a reflection of the job market and the high cost of a JD.) There has been a great deal of debate about how to address the crises, but to date, we have seen very little in the way of meaningful reform. The problems just continue to fester.

First, a bit of detail regarding the scope of the problems. The number of ABA-accredited law school graduates has exceeded the number of entry-level full-time (FT), long-term (LT) bar passage required (BPR) jobs by more than 30% in every year since 2001, ranging from a low of 30.7% (class of 2001) to a high of 45.1% (class of 2011). (2001 is when NALP began collecting and reporting law graduate employment outcomes in the current format.) The decline in FT, LT BPR employment has been substantially offset by an increase in the number and percentage of law school graduates employed in FT, LT J.D. Advantage (JDA) jobs – jobs for which the JD provides a significant advantage in either obtaining or performing the job. Counting JDA positions as law jobs somewhat reduces the oversupply of law graduates compared to law jobs, but the difference is still quite large. The number of graduates has exceeded the number of entry-level FT, LT BPR and JDA jobs combined by more than 25% for every class except one since 2001, ranging from a low of 23.7% (class of 2007) to a high of 37.0% (class of 2011).

Not surprisingly, the oversupply of law graduates has been accompanied by stagnation and deflation in entry-level salaries. Starting salaries declined in real terms between 2001 and 2015, and have been essentially flat since 2011, with a modest increase across the board for the class of 2015. The median salary has decreased by 12% between 2001 and 2015, and by 19% between 2009 and 2015, in inflation-adjusted dollars. The picture is similar for private practice and government salaries. The median private practice salary has decreased by 17% since 2001, and by 30% between 2009 and 2015. Government salaries appear to have fallen from their pre-recession high of just over $65,000 for the class of 2007 to less than $55,000 for the class of 2015.

The legal employment rate varies greatly across ABA schools. The following chart tells the story. At the 10^th percentile (21 schools) fewer than 40% of graduates in the class of 2016 were employed in LT, FT BPR jobs at 10 months after graduation; and just over 50% were employed in LT, FT BPR and JDA jobs combined.

 Range of Employment Rates Across Schools, Graduating Class of 2016

Percentiles	LT, FT BPR	LT, FT BPR+JDA
5th	32.9%	45.1%
10th	36.4%	52.0%
25th	50.0%	62.5%
50th	62.6%	74.3%
75th	71.0%	81.3%
90th	77.2%	86.7%
Range	0%-93.5%	0%-95.7%

At the same time, the cost of a legal education and the resulting debt burdens for graduates have continued to increase at a rate much higher than inflation. The following table summarizes the data on graduate debt for the class of 2015.

Average Amount Borrowed, Class of 2015 Graduates

Type of School	Schools Accounted For	Average Debt Per Student (% of all graduates borrowing)
Private (Non-Profit)	104/115 (90.4%)	$131,162 (77.6%)
Public	77/80 (96.3%)	$94,342 (76.6%)
Private (For Profit)	3/6 (50%)	$153,509 (82.8%)
All	184/201 (91.5%)	$118,230 (77.4%)

Of course, there is also considerable variation in the average amount of debt incurred by students at different law schools due to variations in tuition, cost of living, and perhaps other factors.

 Average Amount Borrowed Across Law Schools, Class of 2015

Percentile	Average Amount Borrowed
10th	$74,890
25th	$90,065
50th	$114,725
75th	$132,245
90th	$146,288

Having described these critical problems, my next post will take a close look at how schools with the very weakest employment outcomes appear to have responded to the problems – or not.

For now, I conclude by responding to one of Bernie’s comments in particular, that to address the critical problems in legal education with a minimum employment rate standard is to say that the legal academy should shrink even more than it already has. I believe that with an employment rate standard in place, most underperforming schools will make the adjustments necessary to comply with the standard. For some, that may very well mean reducing class sizes. For others, it may mean more expertly tailoring their academic programs to the employment market. Likely, schools will adapt in a variety of ways. Any new standard should have a phase-in period.

When I served as deputy managing director of the ABA Section of Legal Education from 2011 to 2014, which coincided with the precipitous drop in law school applications, which itself was likely a result of the sharp drop in law graduate employment outcomes in 2008-2011, I would often get this question from academics and practitioners alike: “What in the world is the ABA doing continuing to accredit new law schools?” Aside from the obvious answer that the anti-trust laws would not allow us to limit the number of school in order to limit competition, I would usually note that a 25% reduction in law school enrollments across schools was the equivalent of closing 50 law schools, although no individual school had closed at that point, but with the benefit to students of greater competition among the (now mostly smaller) schools to innovate, reduce costs, and improve outcomes, while complying with all accreditation requirements. The same is true with the introduction of an employment rate standard. Schools may focus their efforts on fewer students, among other changes or innovations, but an employment outcomes standard is not intended to eliminate schools nor does it necessarily lead to that end.

Thoughts On Scott Norberg’s Article Advocating An Accreditation Standard Based On Postgraduate Employment Outcomes

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:

More On What Stanford Wasn't Thinking

Constant reader (and professional responsibility maven) Doug Richmond and fellow blogger (and professional responsibility maven) John Steele offer many Comments in this space that are deeply thoughtful and thought-provoking, and the ones they offered on my original post concerning Stanford’s retaliation against attorney Crystal Riggins for criticizing the University’s Title IX dispute-resolution procedures are no exception.  For the most part, I don’t disagree with the points either of them make (actually, I do disagree with Doug on a few of his, but only a few), but I’d like to suggest that neither of them has given adequate attention to my principal concern.

My main disagreement with Doug Richmond’s Comment is with his leadoff assertion that Crystal Riggins “was not punished for doing her job.”  That can’t be right.  There’s no serious question whether Stanford punished her (by which I mean penalized her in retaliation for criticizing Stanford’s Title IX dispute-resolution rules), and I don’t think Doug disagrees.  So our disagreement comes down to whether what she was punished for was “doing her job.”  Her job was to act as the attorney for students seeking to have Stanford’s Title IX system recognize and remedy disputed claims of sexual violence.  It cannot seriously be contended that it was either legally or ethically improper, or outside the legitimate scope of her engagement, to criticize and seek to change the rules of Stanford’s Title IX procedures that she contended (well within the realm of rational argumentation, whether you agree with her or not) were unfair to her clients.  Period.  So she was doing her job, just in a way that Stanford—who Ms. Riggins correctly and pointedly observed was not her client—disagreed with (and more to the point appears to have found embarrassing).

Doug’s Comment analogizes to attorneys who remain liable for defamation for statements outside official proceedings or for ethical violations for improper pretrial publicity.  Both are bad analogies, as they depend on the attorney’s doing something legally or ethically prohibited.  Ms. Riggins did neither. 

John Steele takes a different tack, and points out that it’s hard to isolate a legal theory under which what Stanford did was either unlawful or unethical (in the sense of violating attorney disciplinary rules).  I agree, and was careful in my post to emphasize all the legal norms Stanford most likely did not violate.  The closest I could get to a legal wrong on Stanford’s part is a possible violation of Title IX (either in its procedural rules themselves or their application in particular cases), but I conceded that it's debatable. 

I didn’t consider attorney disciplinary violations on Stanford’s part, mainly because I was focused on how proper and ethical Ms. Riggins’ conduct was.  But that’s worth a moment’s consideration.  Let’s start with the observation that the Stanford officer in charge of these policies (and who excluded Ms. Riggins from the referral list), is Senior Associate Vice Provost Lauren Schoenthaler, who formerly served in Stanford’s University Counsel’s office and is a licensed California attorney. 

Bearing in mind that Stanford was never Ms. Riggins’ client, and only recommended her and obligated itself to pay for a certain number of hours of her services, one way to look at what Stanford did was to seek to define a limited scope of engagement for its referral counsel’s representation of aggrieved or accused students that does not include challenging or criticizing Stanford’s procedural rules, even if that would be in the represented student’s interest.  Remember that the ethical rules cited in my original post require an attorney (here, Ms. Riggins) whose services are being paid for by someone other than the client (here, Stanford) to ensure that the attorney remains independent of the payor’s influence and loyal exclusively to the client.  It could be argued that Ms. Schoenthaler, who bears the same ethical obligations that every lawyer in California does, sought to induce Ms. Riggins and other referral attorneys to violate their duties of loyalty to their student clients in violation of Cal. R. Prof. Cond 1-120 (see also Model Rule 8.4(a) to the same effect).  The problem here (if you can call it that) is that the effort failed, and Ms. Riggins refused to compromise her loyalty to her clients. 

It also could be argued that Ms. Schoenthaler caused Stanford to make or offer an agreement limiting a lawyer’s practice in violation of Cal. R. Prof. Cond. 1-500, specifically the agreement to recommend and help pay for client services so long as the panel lawyer does not in the course of those services criticize Stanford’s rules.  (Model Rule 5.6(b) limits this prohibition to such agreements as part of settlements of “a client controversy,” but California’s Rule specifically disclaims that limitation.) 

And it could be argued that Ms. Schoenthaler caused Stanford to improperly demand something of value in return for a referral, specifically a limitation on what panel lawyers would do for their clients, in violation of disciplinary and other rules limiting referral fees, capping and running.  Again, this may seem a stretch, but the facts reported in the press can be seen to fit some of those prohibitions pretty literally. 

I confess I have not done any detailed research to see how any of these disciplinary rules may have been applied in similar contexts, and I have my doubts about whether the State Bar of California would pursue any of them for any number of reasons.  I also question whether they could be machined into some kind of civil claim if Ms. Riggins felt so inclined (though California’s broadly capacious Unfair Practices Act, Bus. & Prof. Code §§ 17200 et seq., is a candidate worth watching). 

But ultimately none of this is the point. 

The point I was trying to make, quaint though it may seem to an audience of lawyers, is that whether or not Stanford’s efforts to marginalize Ms. Riggins are enforceably unlawful or unethical, they are certainly unethical in the broader, moral sense:  Stanford acted badly, and ought to be ashamed.  On this, I think both Messrs. Richmond and Steele agree with me (John perhaps a little more strongly than Doug), and I’m glad for the company. 

Speaking only for myself, I think that Stanford’s conduct especially deserves public condemnation (and voluntary reversal) for two reasons.  One reason is that, in this context, Stanford’s interests as adjudicator may be colored if not tainted by other institutional interests.  One such interest may be the desire to present itself to the public as a safe space free from sexual violence, making determinations of such violence an evil to be avoided as much as the actual assaults themselves.  Another may be the desire to avoid criticism regarding both student conduct and the processes by which it is judged that could lead to serious sanction from the Department of Education.

The other reason that Stanford deserves condemnation is the one I emphasized in my original post:  Stanford is not an ordinary commercial actor whose conduct ought to be judged merely by the morals of the marketplace.  As a great university, it is infused with a public interest to act in exemplary fashion, to show the world how to Do Right under difficult and ambiguous circumstances.  The failure to live up to that duty may not create a cause of action, but it ought to create a cause for remorse.

--Bernie

Announcing "Tax Jazz: The Tax Literacy Project"

Marjorie Kornhauser (Tulane) has launched a new project that seeks to provide non-partisan, non-technical and accessible tax information for the general public.  The project is called "Tax Jazz: The Tax Literacy Project." The website is here. It has easy-to-understand materials and excellent posts on topics like, "How do we define a fair tax?" Although the site is not designed with law students specifically in mind, there are some good materials that would be helpful in an introductory income tax class. I look forward to seeing how this project grows, because there is definitely a need for more basic economic and tax literacy.

What Could Stanford Have Been Thinking?

I find myself reluctantly gesturing toward one of the third rails of public discourse—sexual assault.  Substantively, of course, there is very little disagreement:  No one speaks out in favor of sexual assault.  (Jokes about whether the President is an exception can be made in another forum.)  But in the lawyer’s wheelhouse of procedure—especially procedure that influences outcome (which, let’s face it, is just a wordier name for procedure)—there are deeply held and pointedly variant views. 

One such issue came to a head recently.  Stanford University did something that, at least based on what I can glean from the mainstream media, seems incomprehensibly ill-considered.  I’m hoping there’s something the New York Times isn’t reporting that explains things more fully.  (Full disclosure:  I attended Stanford Law School in the early 1980s.  I loved my time there, and remain immeasurably grateful for the outstanding education I was privileged to enjoy.  So far as I know, the events related here don’t involve the Law School, its faculty, or its administration.  The University, however, ought to know better.)

A quick primer:  Because the formality and procedural complexity of the criminal justice system in this country is largely fixed, a certain amount of debate in recent years concerning how to address sexual violence has focused on an alternative remedial system in force in places where a substantial amount of sexual violence occurs—Title IX.  Title IX is part of the Education Amendments of 1972 to the Civil Rights Act, and prohibits discrimination “on the basis of sex” at any educational institution that receives federal funds.  20 U.S.C. § 1681.  Among other things, this means that Title IX applies to any college or university that receives any federal money for any purpose, and that’s most of them.  And though administrative enforcement of Title IX was for many years sparse at best, beginning in 2011 with what is widely known because of its charmingly informal salutation as the “Dear Colleague” Letter, the Office of Civil Rights (“OCR”) in the Obama Department of Education took a series of strong positions that sexual harassment or sexual violence that affects a student’s education—including individualized student-on-student conduct—is discrimination on the basis of sex that violates Title IX.  The OCR further opined that any federally assisted educational institution has an obligation both to try to prevent such conduct and to remediate it if it happens, on pain of losing the federal funding that has become integral to most of their budgets.  (It remains to be seen how this policy will fare under Donald Trump’s and Betsy DeVos’s stewardship.)

The “Dear Colleague” Letter suggested a range of strategies to discourage, determine and remedy violations, but left the details up to the educational institutions.  Very few had devoted anything close to the levels of attention and resources the OCR seemed to expect, and it soon called out a substantial list of colleges and universities, including many elite ones, that it considered out of compliance.  What followed was a national scramble to develop policies and practices consistent with notice and enforcement standards that were in many important respects explicitly and deliberately vague.  (More disclosure:  While I was on the faculty at the University of North Carolina, I served on University committees charged with Title IX compliance and enforcement issues, and as a Title IX hearing officer in disputes concerning sexual harassment and assault.  I have real admiration for UNC’s efforts to meet regulatory standards, and heaven knows we took our duties seriously when we served as hearing officers.  But no, I can’t and won’t discuss any of that.)

Stanford has been one of the universities subject to OCR’s Title IX scrutiny, and there are differences of opinion over how effective its efforts to discourage and remedy sexual violence have been.  Stanford has chosen to put unresolved disputes over whether a student-on-student violation occurred to a three-person hearing panel, with a finding of a violation requiring the unanimous concurrence of all three panelists.  Convening a hearing panel to resolve disputed facts is not unusual, but requiring a unanimous finding of a violation is. To make the process more accessible to the students invoking the hearing process, Stanford also took the unusual step of providing them a choice from a list of knowledgeable local lawyers, apparently at the University’s expense for the first nine hours of service, and at a reduced rate of $200 per hour paid by the student after that.  (Students were also free to choose their own counsel at their own expense.)

Crystal Riggins was one of the “Stanford-sponsored Title IX attorneys” on Stanford’s referral list, and represented exclusively students seeking recognition and remedy of sexual wrongs.  By all reports, Ms. Riggins is an able and experienced lawyer who served the students who chose her with zeal and fidelity.  Stanford nevertheless recently removed her from its referral list because it found her lacking in loyalty—to Stanford. 

Those of you steeped in the lawyer’s duty of loyalty to her client should just have snapped to attention.  Surely you can’t mean what you just said, Bernie.  But at least according to the Times, that seems to be what happened.  Ms. Riggins considered some aspects of Stanford’s hearing process unfair to her clients, particularly its unusual requirement of panel unanimity to find a violation.  This is hardly a fringe position (not that it should have mattered if it were).  She criticized the policy publicly in the New York Times.  (See here and here.) 

Retribution was swift.  Lauren Schoenthaler, Stanford’s Senior Associate Vice Provost for Institutional Equity and Access, promptly wrote Ms. Riggins that her comments were “disappointing” and indicated “a lack of faith in Stanford’s Title IX Process.”  “Given your stated lack of confidence,” Ms. Schoenthaler continued, “it does not make sense for the university to continue to refer our students to you.”  So much for Institutional Equity and Access, I guess.

Crystal Riggins’ response was precisely the one the Rules of Professional Conduct demanded of her:  “As a zealous advocate, my only duty is to the student-parties that I represent.”  Damn right.  See ABA Model Rule of Professional Conduct 5.4(c) (“A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services”).  The ethics rule in California (Cal. R. Prof. Cond. 3-310(F)) is differently worded, but to similar effect.

Let me start by making clear some things that are not wrong with Stanford’s actions.  This is not a First Amendment issue:  Stanford is a private university.  This is not an employment wrong:  Ms. Riggins is not Stanford’s employee.  This doesn’t really meet the requirements of any of the interference torts.  Is it a violation of Title IX?  That’s debatable, but given the change in administration it’s a debate that may never occur, at least not in any formally enforceable context.  I don’t know, of course, but I find myself forced to wonder whether Ms. Riggins would still be on Stanford’s referral list had the recent election come out the other way, so that no change in Education Department policy might have been expected.

The point here is not whether you agree or disagree with Crystal Riggins’ criticisms of Stanford’s Title IX dispute-resolution system.  The point is that Stanford made Ms. Riggins’ services more expensive and less accessible to the students participating in that dispute-resolution system precisely because she criticized the system’s procedural rules, and advocated what she viewed as improvements.  She was punished for doing her job.  Imagine the outcry if a governor had fired a public defender for publicly advocating what she considered fairer rules of criminal procedure than the ones that state had in effect.  Yes, there’s a difference because the defender is a public employee (and required to be part of the criminal justice system by the Sixth Amendment), but don’t dodge the larger point.

The Preamble to the Model Rules of Professional Conduct begins:  “A lawyer, as a member of the legal profession, is . . . a public citizen having special responsibility for the quality of justice.”  It later elaborates:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.”  I learned that at Stanford.  Stanford seems to have forgotten it.

Perhaps naively, I have always felt that Stanford distinguished itself as one of the truly great modern universities that, while private, fully embraced its public moral duty to lead by open and fearless inquiry into whether its own governance of its awesome intellectual and financial resources exemplified the Right Way to Do Things.   But compare Stanford’s reaction here with the recent report of Yale’s “Committee to Establish Principles on Renaming” University facilities, some of which bear the names of slavery apologists and white supremacists.  Yale’s report was unstintingly open-minded in its confrontation of the difficult questions presented, and courageously self-critical on issues that are every bit as fraught, divisive and publicly contested as these.  Stanford’s gesture is by contrast censorious, closed-minded, mean-spirited, fearful, and small.  Shame.

--Bernie

Why and How Law Schools Should Engage With Students About Social Media and Blogging

I recently attended a swearing-in ceremony for newly-minted lawyers who passed the July 2016 bar exam. The ceremony was nice, complete with several speakers, introductions of numerous city and state bar group leaders, and a reception afterward. During the ceremony, an accomplished lawyer provided remarks about professionalism and the practice of law. Among her remarks were some strong sentiments about internet usage – she encouraged each new lawyer to cultivate a strong presence online through blogging, active engagement on social media, and other public legal writing. I immediately wondered whether this was the first time these new lawyers had gotten this advice. I also wondered how law schools currently educate and advise students about curating content in their online profiles, and whether law schools should do this at all. 

Writing publicly online, whether through social media, blogs, or otherwise, plays a role in how lawyers interact with both the public and each another. Above the Law reported recently that a majority of Americans – 54 percent – say they would be likely to hire a lawyer who is active on social media. Among Americans aged 18-44, this number increases to 69 percent. A U.S. News article has suggested that law students use social media for career development because of the rapidly changing legal landscape.

The legal profession was initially skeptical of the internet and social media, but this has changed in recent years. The American Bar Association's 2016 Legal Technology Survey Report indicates that nearly 90 percent of law firms have a website. Since 2013, roughly 26 percent of law firms have maintained a blog, though this number is much higher for larger firms. Among lawyers who maintain a law-based blog, 42 percent say that they have had clients retain them because of their blogging.

Source: ABA 2016 Legal Technology Survey Report

 

With 13th, Netflix May Be Relaxing Its Streaming Policy a Little, Which is Good for Educators

Hi - I'm excited to be guest blogging this month about a few topics that I find engaging. I hope they are also relevant to many of you. Thank you to the moderators for this opportunity.  

Like many people, I scroll through Twitter looking for comments and articles about things that interest me. Last week, I saw the following exchange between film director extraordinaire Ava DuVernay and Alex Lauth, an employee of Villanova Law School:

@AVAETC I work at Villanova Law School and we want to have a showing of #The13th for students in our MLK programming week. Is that allowed?

— Alex Lauth (@AlexLauth) November 29, 2016

Yes. Public screenings of @13THFilm are allowed by Netflix in a first-of-its-kind general waiver ever made by the company. Show + share. ✊🏾 https://t.co/PnpSIefBiU

— Ava DuVernay (@ava) November 29, 2016

 

My interest was immediately piqued for several reasons. First, as a law professor committed to social justice, it is encouraging to read that law schools around the country are providing space to screen 13th, the Netflix documentary film directed by DuVernay centering on racial inequities in the American criminal justice system.

Second, I’ve been planning a January 2017 screening of 13th at my own law school, outside of my standard classes, that I'd like to be open to the full campus. I have a Netflix membership and could easily stream the film from my personal account. One of the items on my to-do list has been to figure out whether such an approach is permissible under both Netflix policy and current copyright law. This proved to be more challenging than I thought, so DuVernay’s announcement was quite timely.

I had experienced some difficulty determining Netflix’s full policy on streaming films for educational purposes, either inside or outside of the classroom. The Netflix terms of use state that the service is for personal use only, and users “agree not to use the service for public performances.” A public performance is basically a showing open to anyone other than family or a small group of friends. As the copyright owner of 13th, Netflix can limit how members use its service to watch the film and restrict larger performances. Section 106 of the Copyright Act gives copyright owners the exclusive right to, among other things, display and perform (show) films publicly. This arguably means that streaming for educational purposes is prohibited by Netflix's terms of use.

The Law School Industry: Dean, Associate/Assistant Dean Positions 2015-2016

The data included in the excel spread sheet and attached brief pdf summary (downloaded attachement is provided via link on tab 'files') provides information from the 2015-2016 academic year on the composition of dean positions in the US Law School industry.

The appointments are organized alphabetically by state, and within each state, by school, with a list of the Head Dean and any Assistant and Associate Deans. In addition, profile links, email addresses and background degree information is provided. Certain information is color-coded to help identify specific factors (e.g., female deans, post-graduate degrees). We specifically focused on questions of gender, pedigree and level of degrees in relation to state geographies, and we have included some overview of our findings below.

There are, of course, a substantial number of additional factors that could be incorporated into the study, and might influence how the data is interpreted: e.g., questions of age, disability, race, sexual orientation, socio-economic conditions, and so forth. The data was compiled from the 2015-2016 academic year, so there may be some more recent updates that are not incorporated into this study. We apologize for any errors, hope the document is of interest, and grateful for any corrections.

 

 

First Year Feedback And Law Student Performance

Daniel Schwarcz and Dion Farganis, both of University of Minnesota Law School, have posted a new article to SSRN that will interest many Lounge readers, The Impact of Individualized Feedback on Law Student Performance

Here’s the abstract:

For well over a century, first-year law students have typically not received any individualized feedback in their core "doctrinal" classes other than their final exam grades. Although this pedagogical model has long been assailed by critics, remarkably limited empirical evidence exists regarding the extent to which enhanced feedback improves law students' outcomes. This Article helps fill this gap by focusing on a natural experiment at the University of Minnesota Law School. The natural experiment arises from the random assignment of first-year law students to sections that take a common slate of classes, only some of which provide individualized feedback. Meanwhile, students in two different sections are occasionally grouped together into a "double section" first-year class. In these double section classes, students in sections that have previously or concurrently had a class providing individualized feedback consistently outperform students in sections that have not received any such feedback. The effect is both statistically significant and hardly trivial in magnitude, approaching about 1/3 of a grade increment even after controlling for students’ LSAT scores, undergraduate GPA, gender, race, and country of birth. The positive impact of feedback also appears to be stronger among lower-performing students. These findings substantially advance the literature on law school pedagogy, demonstrating that individualized feedback in a single class during the first-year of law school can improve law students' performance in all of their other classes. Against the background of the broader literature on the importance of formative feedback in effective teaching, these findings also have a clear normative implication: law schools should systematically provide first-year law students with individualized feedback in at least one “core” doctrinal first-year class.

I’m traveling at the moment and so don’t have time to say more about this paper right now, but expect it to generate some discussion. 

Update: Mike Simkovic has an analysis here.

The Law School Industry - Veteran Emphasis in US Based Law Schools

This analysis provides an excel based study of how the law school industry approaches military veterans, especially who are students at the school but also more broadly. The title is, Veteran Emphasis in US Oriented Law Schools: Part 1, as we will be continuing with this study to contact every entry to develop a better understanding of current challenges, developing practices, and new innovations (note: you will have to download the document for it to view correctly as in excel format).

The information is organized alphabetically by state, and within each state by law school, and includes website links and contact details. A number of factors were taking into account, including law reviews, clinics and externships, associations and organizations, classes, and other miscellaneous innovations. The 'classes' data is somewhat fuzzy as we did not develop a clear metric about what counted as a veteran oriented class and instead went for classes that would be specifically of a military nature. The 'miscellaneous' factor includes a number of interesting innovations, which might be better located under a different classification but we've situated together - e.g., Yellow Ribbon Programs, Outreach Centers, Recruitment Innovations.

A surface read of the information reveals some potentially interesting takeaways. First, while there are considerable number of 'military' or 'national security' law school courses (approximately 120), there are less than 10 classes specifically addressing veteran law (and only one LLM). Second, there are approximately 30 Veteran clinics at US law schools, and while about 115 organizations, only a little more than 1/2 that are specifically focused on veterans (e.g., many instead are more generalist, such as Military Justice Society). Third, there is a significant need for law journals specifically dedicated to veteran conditions (this is not to say there are not special issues or articles that come up in other contexts or other non-scholarship networks). Fourth, while many states will have law schools that offer some focus on veterans, often the emphasis is a more generalist class or a student society. In fact, a number of states have no emphasis on veterans in regards to any of the dynamics (e.g., Montana, Nevada, New Hampshire, Oklahoma, Oregon). Other states only offer some class, but do not offer any additional emphasis or support (e.g., Indiana). Other states have very strong innovations at play (e.g., California, Florida, Michigan, New York, Ohio). There is so much more to be studied here, but we hope this provides some useful information for those interested to better address veteran considerations. At the very least, there seems to be considerable energy at the student level to create community, which may be a valuable resource for future innovations. The relative lack of clinics and more over explicit information on law school websites suggests that this may be an area for more institutionalized veteran-oriented support, and which might also be a valuable opportunity for building a niche market for student recruitment and career placement.

This part of the study was completed with Mr. James Russell Dumas, and with helpful input from Prof. Evan Seamone, Prof Richard Meyer, and a number of MC School of Law veterans. Moving forward with the studies will be in collaboration with Prof. Evan Seamone.

Gordon and Hedlund On Financial Aid And Rising College Tuition

Over at Marginal Revolution, Alex Tabarrok discusses a new NBER paper, Accounting for the Rise in College Tuition, by Grey Gordon and Aaron Hedlund:

Grey Gordon and Aaron Hedlund create a sophisticated model of the college market and find that a large fraction of the increase in tuition can be explained by increases in subsidies.

With all factors present, net tuition increases from $6,100 to $12,559. As column 4 demonstrates, the demand shocks— which consist mostly of changes in financial aid—account for the lion’s share of the higher tuition. Specifically, with demand shocks alone, equilibrium tuition rises by 102%, almost fully matching the 106% from the benchmark. By contrast, with all factors present except the demand shocks (column 7), net tuition only rises by 16%.

These results accord strongly with the Bennett hypothesis, which asserts that colleges respond to expansions of financial aid by increasing tuition. Remarkably, so much of the subsidy is translated into higher tuition that enrollment doesn’t increase! What does happen is that students take on more debt, which many of them can’t pay.

In fact, the tuition response completely crowds out any additional enrollment that the financial aid expansion would otherwise induce, resulting instead in an enrollment decline from 33% to 27% in the new equilibrium with only demand shocks. Furthermore, the students who do enroll take out $6,876 in loans compared to $4,663 in the initial steady state….Lastly, the model predicts that demand shocks in isolation generate a surge in the default rate from 17% to 32%. Essentially, demand shocks lead to higher college costs and more debt, and in the absence of higher labor market returns, more loan default inevitably occurs.

Read the whole post, along with some caveats on the results, here. And the full paper here.

Drafting Lessons

 It all started with the committee assignment from hell.  When my dean asked me co-chair the Strategic Planning Committee a few years ago, neither of us could know that it would transform  my own teaching and scholarship, nor how. 

For at least a decade I intended to add drafting exercises into my Commercial Law and Contracts courses, but getting my book Love’s Promises out the door and other teaching and administrative obligations kept it on the back burner.  It took the relentless talk about curricular and other reforms in those weekly Strategic Planning meetings to overpower my worries about the steep learning curve and crowding-out of other scholarly and teaching projects. 

I little guessed that it was not a zero sum game.  Instead, learning to teach students how to create the documents that memorialize a commercial transaction changed my scholarship and other teaching in profound and positive ways. 

At the same time that I came to see the de-lamination of my notes as an ethical imperative, the ABA and the California Bar were cooking up new course requirements.  Accredited schools must offer 6 credits of transition-to-practice coursework and admission to the California Bar requires 15 credits that include topics like negotiation and drafting of contracts and other legal instruments. 

Professors across the curriculum are busy figuring out how to meet these requirements, each of us working within our fields of expertise and from our own backgrounds in practice.  I’ve teaching been Contracts and  Commercial Law (mostly Secured Transactions) for two decades, and before that I was in the Credit Recovery department of a big firm.  Sitting on the Appointments Committee over the years, I’ve noticed that most of us tenured and tenure-track come from litigation backgrounds, and for all but the junior faculty that was a while ago.  The question is how we who have not practiced in decades can help our students enter that arena.

One option is to give up before we start.   I spent much of my first decade teaching a lot like my professors taught me in the 1980s, and as their professors taught them in the 1950s and ‘60s, and so forth, all the way back to Langdell.  Top-tier law schools with big endowments may be able to hire a staff of legal drafting instructors on contracts, a parallel to the non-tenure-track faculty who teach students to write memos during their first year.  But the 2008 financial crisis and declining enrollments put this option out of reach for most of us.  

Another option is for us middle aged dogs to learn a few new drafting tricks.  I did, and am here to say that learning to teach contract drafting required me to adopt new ways of thinking that those insights have only enriched both my doctrinal teaching and my scholarship. 

But a paradox stands in the way for many so-called podium teachers.  Some think that learning to teach drafting and its increased grading is too hard.  Others, in contrast, see it as too easy, mere ministerial scrivener’s work that is unworthy of a true scholar’s attention.  In my experience both of these views are mistaken.  As Kwame Anthony Appiah put it in the NY Times magazine Education issue, universities can, should, and do focus on both utility and utopia.  Our students take on monumental debt both to earn a living and to practice a profession that protects sacred values like justice.  

How Drafting Lessons Helped my Scholarship

Figuring out how to teach drafting helped me think more precisely about writing for particular readers by shaping a voice, format and substance.  That new focus helped me to write a trade book that aims to get a distilled version of the law review articles I’ve written about family agreements out to non-lawyers who could benefit from knowing a few things about assisted reproduction, adoption, cohabitation and marriage agreements.  (A 3-minute video demonstrates that voice and format.) 

These changes happened incrementally.  First I taught a three-credit drafting seminar with Olivia Farrar of Howard University Law School, who also teaches a drafting boot camp here at the University of Maryland.    We created a hypo that required students to negotiate and complete the documentation for forming an LLC that purchased a medivac helicopter with seller financing.  That course taught me much more than how to translate a business deal to contractual concepts and then to words on the page.  In addition to learning that aircraft owners have to be US citizens, I discovered that my casebook did not convey crucial information that students need.  For example, few of them realize that messing up some clauses is fatal – and likely malpractice – nor the ways that doctrine dictates which clauses are core provisions.  (Although Secured Transactions was a pre-req for the course, only a handful of students understood that failing to define an “obligation” secured by collateral meant that the whole effort was not worth the paper it was written on.)  

Drunk on that Kool-aid, I added a 1-credit drafting workshop to my Secured Transactions course.  As with the seminar, students created a portfolio of documents that would memorialize a financed sale transaction, though the workshop syllabus was considerably slimmer than the seminar one.  The workshop is open to students in my class, and about half sign on each time I teach it.   

Fortunately, I teach at the University of Maryland law school, which has long been a leader in clinical education and other experiential pedagogy.    The administration backed my efforts to learn the ropes of contract drafting by giving full teaching credit for team –teaching that first seminar, hiring a Teaching Assistant to hold office hours with students and help with administrative matters like electronic submission of assignments, and letting me add an extra credit to my Secured Transactions class.

But not every professor is as evangelical about drafting.  Nor does every law school have the resources to support faculty in devising curricular reforms from scratch.

I’m writing a book to make it easy for people like me: doctrinal professors who want to add some transactional drafting exercises to reinforce doctrinal and theoretical materials and send students into their job search with a transactional writing sample and into practice knowing the difference between a representation and a covenant.  The exercises are modular so that professors can start with one and then add more in future semesters.  For enthusiasts I’m including exercises that can be ratcheted up to mirror complexities of practice.

What Do Law Professors Want?

Now that I know to tailor a book to reach a particular group of readers, I’m using this guest blogging gig at Faculty Lounge to solicit your thoughts about what would work in your classroom.

--  Would you prefer to add on a 1-credit drafting workshop, or to integrate materials into the casebook material you already cover?

 -- Would it be helpful to get tips about reducing time grading, such as having students negotiate as teams and turn in an assignment together?

 -- How many hours in a semester do you anticipate being willing to grade transactional exercises as part of your existing course?  As a 1-credit add-on workshop?

     --   Ten?  Twenty?  As many as 40?

-- Are you likely to direct your students to on-line multiple-choice questions on drafting if it reduces time you spend explaining the concepts?

 -- What else should I include (or exclude) to make this book user-friendly?

If you’d like to communicate with me directly about your own experiences teaching drafting, don’t be shy.  My email is [email protected]. 

I look forward to drafting on your thoughts and experiences.

The Law School Industry - Institutional Considerations for Military Veterans

From movies to policy debates, veterans are a perennial image in the American psyche. At the law school, the most notable presence of the military are recruiting officers (e.g., JAG), and to a lesser extent, student organizations (e.g., student veterans organizations, military justice societies) and the occasional veteran clinic. There is, however, no comprehensive in-depth study of how law schools accommodate veterans or how various institutional platforms operate (in the next few months, I will post an excel-based study mapping all these initiatives at law schools with some brief comments). While researching this topic and speaking with student veteran groups, military personnel and therapists, certain themes have emerged that might provide law school administrations with some guide for developing 'best practices' towards students serving or having served in the military. 

The core challenge seems to be that there tends to be a lack of awareness by law school admission offices about the psychological and social challenges that veterans face, in civilian life or at school in particular. Below is a brief list of some common blind spots and potential reforms.

The Law School Industry - International Programs

Institutional efforts within the law school industry are a hot topic, and one relatively new area of movement in US legal education increasingly addressed is the attempt to establish a more 'global' presence through 'international' offerings for US law students. The ABA, for instance, provides a list of current foreign summer abroad programs, intersession courses and semester abroad programs, and a quick google search turns up a number of other websites offering links to foreign program opportunities for students. At the same time, these lists tend to be incomplete (the ABA's semester abroad program list does not include a number of programs, and more generally does not provide any details about the types of study abroad programs being offered) or not directly relevant for students seeking to earn credit towards their legal degrees. The missed opportunity with more comprehensive data on international program innovations at US law schools is that it not only makes it difficult to share 'best practices' among law school administrations, but it obscures a valuable source of information about specific attitudes and trends within legal education. 

US Law School International Programs (Study Abroad and Semester Exchanges) provides an excel-based study to address some of these deficiencies, with the goal to provide administrations and scholars empirical data concerning new trends in study abroad and semester exchange programs in US law schools (note: click 'download' for the excel form of the study). The study was compiled over the last year, and is organized by state to include every US based program, and includes information concerning the type of programs (e.g., study abroad programs linked to foreign universities versus independent sites), links to the individual programs, and some summary information. 

Looking at the data, a few trends emerge. First, where originally only the remit of upper-tier schools, these programs are becoming staples of US law schools. Second, there is an increasing prevalence for schools to offer study abroad programs based at foreign institutions, rather than simply renting out space to host abroad programs. Third, the move to base study abroad programs at foreign institutions corresponds with an increase in offerings of LLM degrees for foreign students (and sometimes domestic students) and providing opportunities for semester exchanges. The relative lack of research or other scholarly activity at International and Comparative Law Centers suggests that these innovations are largely tailored to increase law school revenue as opposed to any significant shift of emphasis to engaging international legal policy and scholarship. Also, certain geographic locations are privileged - London, popular European city destination points, some programs in Latin America and Asia - but virtually no opportunities in Eastern Europe, Central Asia or Africa.

A lot of questions remain. For example, a number of factors are not taken into account in the study, including the actual professors running the courses, the classes being taught on these programs, and the numbers for student enrollment. It also remains to be seen where the key locations will be to attract foreign students (e.g., China, India, certain Arab speaking countries) or to base future programs (e.g., is the UK/Europe over-saturated or do the rising student fees in the UK mean opportunities to set up programs there to then attract UK students that otherwise would not be interested in a US legal education). 

 

Law School Clinics and Employment, Revisited

School has started, and I have woken from my summer slumber. Unlike many colleagues, I get a lot less work done in the summer (when the kids are out of school) than I do during the school year. They haven't thrown me out of the lounge yet, so I thought I would post about a few things in the coming weeks.

First up: clinics and employment. I discussed Jason Yackee's paper on the topic in February. Now, Robert Kuehn (Wash. U. - St. Louis) is publishing an essay that refutes the paper (in the Wisconsin L. Rev., where Yackee teaches, which I found interesting).

Here is the abstract:

This Article examines evidence of a possible link between learning opportunities in law school and J.D. employment outcomes. It responds to a paper by Jason Yackee that finds, using 2013 data from top 100 ranked schools, “not much evidence” that law clinic opportunities are likely to improve a school’s graduates’ employment outcomes and suggesting that those opportunities may even harm employment prospects.

The Article reexamines Yackee’s methodological approach and then looks beyond both law clinics and his statistical models. The expanded empirical analysis finds it is not possible to draw any reliable conclusion from his models about the likely effects of law clinic courses, or other activities like law journal and interschool skills competitions, on employment outcomes, and surely not any negative suggestion about clinic opportunities or participation. The most realistic conclusion from available data is that nationwide models provide inconclusive results, as they do not achieve statistical significance and yield both positive and inverse relationships depending on the year of graduation, control variables, and outliers. In fact, other evidence shows that law clinic experiences are important to potential employers and do aid some students in securing employment.

To put it mildly, this is about as thorough a critic of an empirical work as I've seen, going after the data, the methodology, and the results on a point by point basis. 

Of particular interest is that if you replace "clinics" with "law review" or "moot court" you also find that schools with more participation do not lead to more employment. While I think this is a helpful test of Yackee's methodoloty, I don't think it undercuts Yackee's findings as much as Kuehn does. Even if law review improves job chances intra-school (which it surely must), there's no obvious reason why it should make a difference inter-school. That is, more law review participants at school 100 need not necessarily mean more employment than fewer law review participants at school 10 if rankings really are driving employment outcomes. Remember that we are measuring employment for the class as a whole, not just for those on law review. Thus, even if employers are looking for it, law review participation might just wind up being a non-significant factor when compared to ranking in the aggregate.

Kuehn might say that this is not evidence against law reviews. Yackee would say that money might be better spent trying to move from from 100 to 10. If you believed that you could move your rankings like that (which I don't), then both would be right. (UPDATE: to note that Kuehn's application of the model to law review is consistent with my posited world -- that ranking  may make a difference if there is a big jump, and that the model does not tell us much about the value of law review, even though it should).

The better way to answer the question about employment value of clinics -- which I suspect both would agree with --  is to look at data at the individual level. Unfortunately, collecting that kind of data is pretty difficult.

In all events, I suggest this paper as a refresher on dealing with thorny but relatively easy to digest empirical issues and methods.

Interpreting Fiorina's Comments on Vaccination Law

I've started writing for Forbes as a regular contributor. My first piece, Carly Fiorina Says Her Views On Vaccines Are Unremarkable; For Better Or Worse, She's Right, analyzes GOP presidential candidate Carly Fiorina's recent ad hoc remarks on the relative rights of parents and schools with respect to vaccinations and to some of the hyperbolic reactions to those remarks. Fiorina's remarks are ambiguous, in ways that I discuss. But, as the title of the article suggests, and for better or worse, I think that the best interpretation of them places her stance squarely in the mainstream of current U.S. vaccination law. I end with a call for minimally charitable interpretations of others' views, especially on contentious issues like vaccination.

The Making of a Lawyer, 1878 Version

With law school graduation season winding down and bar review about to start up, it seemed an appropriate time to think a bit about the making of lawyers.

Recently I was sent an unpublished autobiography of Volney Howard, who practiced law out of Virginia beginning in 1878 until near his death in the 1930s. His path to the bar was sufficiently typical of his times – yet sufficiently different from today’s model – that I thought it was worth sharing.

Howard was born in rural southside Virginia in the years before the Civil War.

His early education was, at best, scattered and scanty.

“When the war ended with Gen Rob’t E. Lee’s surrender on April 5, 1865, I was 11 years old. I had never been to school of any sort.

Heat vs. Light IV: On Conditional Law-School Scholarships and Judging Conduct “Good” or “Bad,” Broadway and Hollywood Edition

The texts for today’s homily are from Guys and Dolls and The Little Mermaid.  Our first subject is Big Jule (alternatively pronounced, depending on the production, "jool" or "julie"), the enormous and imposing gangster from Chicago.  Big Jule has come to town, flush, looking for a high-stakes crap game.  Near the end of the musical, that game comes to a climax in the local sewer.  After some unfortunate early losses, Big Jule has removed his coat and, with his revolver gleaming in plain view in his shoulder holster, pulls from his pocket his special “lucky dice.”  These dice appear to everyone else to have blank faces because, Big Jule reveals, they have spots that only he can see.  Miraculously, Big Jule’s luck turns, and he wins several big bets. When some of the other gamblers complain, Harry the Horse helpfully explains that “Big Jule cannot win if he plays with honest dice.”

Later that evening, disarmed and on the losing end of an unconventional bet with Sky Masterson, Big Jule finds himself obligated to attend a revival meeting at the Save A Soul Mission.  Compelled by his bet to participate in the meeting and confess his sins, Big Jule makes a clean breast of it:  “I used to be bad when I was a kid.  But ever since then I gone straight, as I can prove by my record — 33 arrests and no convictions.”  The prayer meeting is, improbably, a success; lovers are united; and everyone lives happily ever after.  Big Jule presumably returns to Chicago to resume his blameless life.   

I hope you’re smiling.  Now I’m going to ruin everything by explaining why this wonderful story is funny.  (A quick editorial aside before we begin:  Guys and Dolls is not timeless in every respect, of course.  It includes gender stereotyping and other cultural assumptions that, from our 21^st-Century vantage, seem not-all-that-quaintly anachronistic.  But the features of the story that I have excerpted above seem sufficiently salient to the matter at hand that I think we can make good use of them here.)  Once again, the heavy lifting begins after the jump.

Heat vs. Light III: A Call for Some Clear Thinking and Clear Talk About Law-Graduate Employment Reporting

When I wrote my most recent post in this series, I thought its subjects—“what [law-graduate] employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation”—were settled, and peripheral to the broader topic of the series.  (Those keeping score at home will recall that the broader topic of the series is the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent scholarship on the value and purpose of legal education.  The first post is here; the second and more recent one is here.)  Unfortunately and surprisingly, my previous post has proved much more contentious than I anticipated, spawning dozens of Comments here and at least two posts on other blogs (Mike Simkovic on the Leiter blog here, and Brian Galle on Prawfsblawg here). 

As is so often the case, the contention seems to spring from a few basic but important confusions.   Actual common ground having proved too scarce to hope for, in the interest of mutual comprehension I attempt here to untangle the skeins that the combatants seem to be throwing past one another.  I hope to clarify where and how we disagree, and why I hold the views I do.  If you agree with me, that’s nice too.  If you disagree, I invite you to explain clearly how and why.

Advance warning:  This post is a bit longer than usual (around 2,800 words).  The public discourse on these issues is so mixed up that it takes some doing to untangle it.  I beg your indulgence, and thank those who make it to the end for their dedication and patience.   The heavy lifting begins after the jump.

Call for Papers: Shutting Down the School to Prison Pipeline

Posting at the request of the organizers:

Nova Southeastern University Shepard Broad Law Center and the Nova Law Review seek submissions for the Nova Law Review Symposium being held on September 18, 2015, entitled “Shutting Down the School to Prison Pipeline,” and co-sponsored by Gwen S. Cherry Black Women Lawyer’s Association, American Civil Liberties Union, Miami Dade Public Defender Office, and the Anti-Defamation League.

Abstracts are due June 1, 2015. Download more details here.