The Faculty Lounge

Heat vs. Light II: It Matters Who Counts and Who Cares

This is the second in what I intend to be a short series of posts on the importance and limitations of Mike Simkovic’s and Frank McIntyre’s recent contributions to the literature on the purpose and value of a legal education.  (The first is here.)

I’ll devote this post to setting aside what I think is a peripheral issue that has occupied some of the resurgent debate spawned by Mike Simkovic’s series of posts on Brian Leiter’s blog.  In recent exchanges, this issue has emerged as a series of accusations and assumptions about what employment and earnings data ought generally to be presented, and whether the way such data are generally understood makes their presentation subject to misinterpretation.  A lot of the recent controversy has focused on whether, when a law school reports its graduates’ employment numbers, “employed” should or should not include part-time, short-term or non-law-related employment; and whether “unemployed” should include only those actively seeking work, excluding the category the ABA collects as “unemployed—not seeking.”  Similar disagreements persist over how to count school-funded positions, and what qualifies as law-related employment, though these are not front-and-center in the recent exchanges I’m writing about here.

Mike’s recent posts have taken the strong and categorical view that law schools, NALP and the ABA ought to report law-graduate employment the same way the U.S. government reports on employment generally, and that any other view is ignorant or misinformed.  Board of Labor Statistics and Census data (among others) report people as “employed” if they have any kind of work at all, including work that is part-time, short-term, or (in the case of law-school graduates) entirely unrelated to their legal education; and as "unemployed" only those who are actively looking for work.  The widely articulated criticism “that law schools behaved unethically or even committed fraud . . . by presenting their employment statistics in a misleading way,” says Simkovic, “comes down to this:  The law schools used the same standard method of reporting data as the U.S. Government.”  Any contrary view, he argues, is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . ,” a point he not infrequently expresses as an impatience for those who would be influenced by near-term results resembling the ones they might desire for themselves rather than more dispassionately considering lifelong outcomes of the JD population as a whole to assess their prospects.

Not so fast.  It matters who counts, and who cares.  As for who counts, there is a very significant issue in equating the accuracy and reliability of statistics gathered and disseminated by disinterested government employees with those gathered and disseminated by self-reporting law schools, especially in an environment in which both rankings and prospective law student decisions essential to the welfare of the reporting school are often based on what it reports.   I have no doubt that many schools are meticulous and unstintingly honest in their self-reporting.  But we already have several documented incidents of motivated or flatly dishonest reporting, and my regretful suspicion is that such discrepancies will prove to be more common than anyone would hope as the ABA starts auditing.

As for who cares, my modest proposal is that people should get the information they want in the terms they are most likely to understand.  I would guess that a libertarian economist like my friend Mike Simkovic agrees, in which case his arguments on these issues don’t square with our apparently shared principles in at least two important respects. 

First, with respect to the proposition that people should get information in the form they are most likely to understand:  It is demeaning and more importantly inaccurate to argue that everyone understands—or any “reasonable” person should—that law schools reported employment statistics the same way the government does.  In fact many if not most people relying on US News rankings and law-school statistics (among others, tens of thousands of prospective law students and their families each year) didn’t understand that at all, which is why the ABA stepped in to change the reporting requirements in 2010.  I personally was stunned when I first learned that law schools’ “employment” rates reported before 2011 included part-time, short-term and non-law-related work.  I am not, as I have previously cautioned all of you, a social scientist, but I daresay I’m no more stupid or ignorant than the next guy.  Countless others have expressed the same surprise, and even greater surprise at the discrepancies between “employment” as reported before 2011 and the more granular information reported afterwards.  We needed more detailed and explicit reporting for the same reason that just about every state has consumer-protection legislation governing the form and content of disclosures regarding common consumer transactions:  You take your audience as you find them. 

Second, with respect to giving people the information they want:  Simkovic and McIntyre are free to argue (as they do) that any prospective law student’s interest in the nature or duration of near-term post-graduate employment is “based on an incorrect belief that law school only benefits the subset of graduates who practice law . . . .” And they have in fact presented significant empirical evidence suggesting that it is possible for some people to overemphasize these near-term details at the expense of best-informed decisionmaking.  As I will discuss in future posts, that doesn’t mean that these conclusions should immediately be uncritically accepted as immutable laws of the universe, and it especially doesn’t mean that they are true for all of the people all of the time.  And I assume that, even if they are fully convinced of the truth and immutability of their conclusions (a conviction I suggest is premature), they are not arguing we should withhold information from people so that they can make decisions that the authors consider “better.”

Just as importantly, Simkovic and McIntyre’s studies attempt to quantify the effect of a JD degree on career earnings, and offer suggested courses of action some might choose to take if their goal is to make as much money as they can over a lifetime.  No one could claim that this is an irrelevant perspective, but it is hardly the only one we see:  While it certainly isn’t true of everyone, many people actually go to law school because they want to be lawyers.  Some crave the drama of the courtroom; some have specific social or political purposes in mind; some (and there is at least one study suggesting that this may be particularly true of some who attend lower-ranked law schools with less robust employment prospects and are among the first in their families to seek higher education) enjoy satisfaction from the prestige of being a professional.  Even the most doctrinaire neoclassical economist would not presume to argue with a consumer’s utility preferences—which is just econo-speak for there’s no accounting for taste.  For the population—and I will suggest that it is a significant one—that specifically wants to be lawyers, statistics about any old job held by JDs are not very helpful. And if you’re still thinking that this doesn’t reflect the real thoughts of real people in the real world, consult the recent exhortation posted by the dean of Cooley Law School—an institution that, with all respect, has an uninspiring recent track record in placing its graduates in lawyer jobs—proclaiming “Now Is the Time to Fulfill Your Dream of Becoming a Lawyer!”

So let’s talk about what information people might want, and let’s talk about how they ought to consider using it.  I think Mike Simkovic’s recent posts on the Leiter Blog focus predominantly on just that, and hats off to him for doing so.  Let the discussion continue. 

But I do want to close by taking issue with one of those posts, which I view as a cautionary tale about the temptations of partisanship.  On March 31, a Berkeley Law professor published an op-ed in the New York Times entitled “Law Schools and Industry Show Signs of Life, Despite Forecasts of Doom.”  The first paragraph poses the question “is now a good time to go to law school?” and the balance of the op-ed argues hell yes, focusing on (among other things) the employment prospects of recent graduates of Georgetown Law, and on the growth of “quite profitable” large law firms and in-house law departments to argue future need for “lawyers, and plenty of them.”  Kyle McEntee (of Law School Transparency) and Steven Harper (of Belly of the Beast) both took strong issue with these arguments on a number of grounds, principally that they were inexcusably sloppy and cherry-picked statistics misleadingly—for example choosing one of the top law schools’ employment outcomes for an example when scores of them have much worse results; suggesting that large firms are hiring aggressively when in fact they are hiring about 30% fewer new lawyers than they did seven years ago; and using part-time, short-term and non-law-related employment outcomes to argue that we could anticipate lots of future demand for lawyers.

One of Mike’s posts not only defended the op-ed uncritically, but did so in terms and in tone that (I hope he’ll forgive me for saying) fall well below the standards I have come to know him for.  “Mr. McEntee’s problem,” Mike wrote, “is not that The New York Times got the facts wrong.  His problem is that The New York Times got too many of the facts right.  Mr. McEntee simply dislikes the facts.”  With all respect to Mike Simkovic, that’s really quite unfair.  In my own view, McEntee and Harper both nailed it.  The op-ed author used cherry-picked statistics including non-lawyer employment and lawyer underemployment to predict (among other things) the future demand for lawyers.  That’s misleading.  And the entire thrust of the op-ed—“is now a good time to go to law school?” and can those who apply to law school now expect to work as lawyers?—is antithetical to Simkovic’s and McIntyre’s hypotheses, which are that it’s a bad idea to ask whether now is a good time to go to law school (because you can’t know, and any one time is as a matter of prediction as good as any other), and an even worse idea to worry about whether you’re going to be a lawyer when you’re done (because that could distract you from the long-term earnings enhancements that they believe JDs offer most comers).  Mike should have lambasted the editorial for citing his work while missing his point.

Next time we’ll talk more about Mike’s points, including both their valuable insights, and those insights’ potential limits.

--Bernie

 

Maimonides had it Right: Law Schools Must Teach Students to Fish

According to a 2012 report from the ABA, approximately 70% of lawyers in the U.S. in private practice are in solo or small firm settings (including one lawyer to 10 in a firm).  While we know the number of jobs in large firms, government and corporate law office settings has decreased, we also know that we have a serious access to justice gap.  It is not that we have too many lawyers it is that we are not thinking about how to educate law students in a manner that will enable them from a value proposition and training standpoint to be community-based solo and small firm lawyers if they so desire.  Very few would disagree that upon graduation from law school and licensure following shortly thereafter, that the vast majority of new lawyers are not best prepared to hang out their own shingle and practice law. This may be an economic necessity for some, and yet well-planned and supported, it could present an opportunity for community-based legal services that could assist in helping to shrink the justice gap. There have been many creative programs designed to address post-JD employment challenges such as Lawyers for America  founded by UC Hastings School of Law and Legal Corps at Miami School of Law, and programs designed in this vein to also help underserved populations such as those who reside in rural areas.  

There is an oft quoted phrase from Maimonides, “Give a man a fish and you feed him for a day; teach a man to fish and you feed him for a lifetime.”  So, how should law schools respond and teach students to fish in the new normal? One of the most intriguing movements to accomplish this while instilling an access to justice ethic is the law school-based incubator program.  Through this effort, about three dozen law schools are providing curricular and/or shared office space arrangements for graduates to learn how to start, manage and build a law practice.  The second annual conference on Enhancing Social Justice Through the Development of Incubator and Residency Programs is scheduled for later this month at Cal Western Law School. The first conference was hosted at Touro Law Center.  The ABA is tracking the latest news on law school incubators. There are many related developments addressing infusion of more business related courses in law school and blogs and virtual mentoring and advice for those starting their own practice.  The business of law practice, well beyond the traditional law office economics course, is quickly becoming an important part of the law school curriculum.  As the law-school based/supported incubators begin to sprout new law firms (and, by the way, some of the incubators are supported by bar associations such as the Chicago Bar), it will be important to conduct a longitudinal study that benchmarks and assesses both new lawyer preparedness to be successful in this space and the impact of such efforts on access to justice.

You've Never Had a Job Talk Go This Badly

Image credit: Flickr (cropped)

In April, Dan wrote about the Florida Coastal dean search where the candidate was asked to leave in the middle of his job talk (under threat of a security escort out of the building) after his presentation turned a critical eye towards the school's admissions standards and bar passage rates.

Now Paul Campos fleshes out some of the details in this Atlantic piece, which he uses to launch a longer discussion about the Infilaw suite of schools and the crisis in higher education generally.

Still More Thoughts on Self-Delusion in the Legal Academy; Or, Accepting the Difference Between a Smokin’ Bucketful of Awesome and a Smoking Pile of Scrap

Recently I offered a post that tried to clarify some important misunderstandings of my earlier June 20 post.  The June 20 post had remarked on how the graduate academy in the liberal arts had fallen prey to the same motivated perception to which some in the legal academy have also succumbed—namely, that the tens of thousands of recent law grads unable to get a genuinely law-related job were just not making proper use of their law degrees (or alternatively really were making proper use of their degrees but didn’t know it).  The moral of the story, I suppose, is self-interest’s insidious power to quietly overwhelm any bulwark we try to erect against it, not least reason, good intentions, education, and most if not all of the Ten Commandments.

I explained in my last post that there are essentially three ways to think about the relationship between a course of graduate or professional study and any employment the prospective student may obtain after graduation.  One way is to posit that, for you, there is no relationship, and you are pursuing the course of study for its own sake without expectation of any practical benefit when you’re done beyond whatever enlightenment the education may confer.  This is perfectly valid, but highly personal and idiosyncratic, and not typical of the ordinary person.  The second way of thinking about the relationship between professional study and postgraduate employment is that there must be a relationship between the two such that the education is justified by the worldly benefits that it creates.  I suggested (based on analysis in my forthcoming empirical study of the job market for new lawyers) that this Practical Justification Test is met if either the postgraduate position requires the degree as a condition of employment, or the course of study provides dramatic and substantial advantages in obtaining or performing the job not more easily obtainable or substitutable (whether in nature or extent) another way.  If the job doesn’t meet this test, then there is a quicker or easier way to achieve the same or equivalent benefits, and the course of study wasn’t worth it. 

The third way of thinking about the relationship between graduate or professional study and postgraduate employment is, as I put it yesterday, that the course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you, or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything.  That is a palpably unrealistic description of a law degree (or pretty much any other graduate or professional degree) that nevertheless can be heard among some law deans and admissions officers today.

In response to the post, I received a comment from an admissions officer at a good Midwestern law school that deserves serious consideration and a detailed response.  The admissions officer suggests, in addition to the three ways I advanced, “a fourth way to think about the relationship between seeking an advanced degree and the employment a student may obtain afterward”:

I think many students see the versatility of the law degree as a form of risk insurance. Their intent in attending law school may be to practice law and they'd be disappointed not to. But if they don't find “traditional” legal employment, they still might be able to make use of their law degree. It's common to run into law graduates who have ended up outside of traditional legal practice, but in a field for which the JD has some benefit. Is it wrong to point to such outcomes?  I think this could be valid in the PhD realm too. I think for most people it would be foolish to pursue a history PhD if their primary goal was to become a high school history teacher. But is it helpful for the candidate to know that if they can't find a tenure track position at a university, that PhD may still be useful for a high school teacher to land a position at a higher paying school district, or become department head ahead of other faculty?  So while it may be overselling to say that a PhD is perfect for someone seeking to become a high school teacher, or a JD is perfect for someone looking to do compliance, I think it's fair to point out to prospective students that these degrees might be beneficial in ways that are not obvious.  [Paragraph breaks omitted.]

Because this comment cogently describes a view not uncommon in the legal academy today, it deserves careful assessment.  Is this “fourth way” a constructive perspective on whether to pursue a law degree?  With all respect to everyone involved, as proposed above and typically presented it is an unacceptably incomplete and often misleading portrayal.

Let me explain why.  In broadest (dare I say philosophical) perspective, the path you walk from where you stand right now can go any number of different ways.  Having gone a ways down whatever path you choose, you will gain a perspective that you didn’t have at the time you chose the path that got you there.  Sometimes that perspective will be one you anticipated when you chose the path; sometimes it won’t.  This is really just another way of saying that most of us get wiser as we get older simply because we have the benefit of more experience over time. 

To be sure, some of us make better use of our experience than others, but pretty much no matter what path you choose, you will reach a vantage point for which you will discover uses that you might not have enjoyed if you had chosen a different path.  And this is true even if you make bad choices.  Our prisons contain fair numbers of people who, having made very bad choices, will tell you quite genuinely that they have learned a lot as a result (and I don’t mean this in any ironic or cynical sense; sometimes the lessons we are forced to learn the hard way are the ones that teach us the most).  This is not, of course, a reason for anyone to start committing felonies; it’s simply an illustration of the fact that it is quintessentially human to learn and grow.  Thus, for anyone open to the benefits of experience—and that describes most of us much of the time—even the worst life choices we make usually teach us lessons with real value.  Or as some of my older Yiddish-speaking relatives were prone to remark in times of failure or disappointment, “It shouldn’t be a total loss.”

Let’s apply this insight (assuming you can dignify it with that title) to the decision whether to buy a particular car, a decision many of us have faced at one time or another.  The used-car salesman is touting the value and utility of the car, assuring you it has everything you need to take you where you want to go.  You are understandably worried that the car may not live up to your needs.  One thing that the used-car salesman does not say is, “No worries, pal.  You should buy this car because, even if the engine implodes the minute you drive off the lot, the smoking pile of scrap that’s left will have measurable salvage value.”  We generally don’t buy cars for their salvage value, especially when any car you buy will have salvage value if it can’t serve the purpose you actually bought it for. 

I’m hoping an analogy to the decision whether to attend law school is emerging.  If you have your wits about you, you consider whether to go to law school taking into account the likelihood that the degree will take you where you want to go—at the very least, a job that justifies that course of study under the Practical Justification Test set out above (and that includes both Bar Passage Required and, properly defined, JD Advantaged jobs as far as I’m concerned).  But what if the car (degree) blows up the minute you drive it off the lot (graduate)?  And what if the car costs $150,000, and there’s a 50-50 chance (or worse) that’s it’s going to blow up as soon as you hit the open road?  What’s the value of what’s left?  Should you buy a law degree for its salvage value?  (And to anticipate an objection to the car-buying analogy, yes, we sometimes do consider resale rather than salvage value when we buy cars.  But when we do, we are assuming that the car under consideration, like the other cars we might buy instead, will serve its intended purpose and take us where we want to go for as long as we want to keep it, thus assuring that it actually has resale value.  When a law degree fails to get us a job that really meets the Practical Justification Test, that’s a car-wreck, and salvage value is all that’s available.  Put slightly differently, you can’t resell your law degree, though some have tried; if it fails of its essential purpose, all you can do is salvage your career.)

The more subtle student of the dismal science would point out that whether you buy a law degree for its salvage value should ultimately depend on (a) the likelihood the car will actually blow up when you leave the lot; and (b) what that salvage value is relative to the return you could get from investments of your time and money other than buying the car.  Fair enough.  There are some serious uncertainty and measurement problems in addressing these questions, but we do know something. 

Considering first the odds of an immediate car-wreck:  Based on the empirical analysis in my forthcoming article, the average student starting law school last fall has perhaps a 60% chance of getting any job upon graduation that meets the Practical Justification Test described above.  Of course, that chance varies quite substantially depending on the student:  A highly qualified student attending a highly prestigious institution has more than a 90% chance of getting a job that justifies the course of study.  A marginally qualified student at an unranked law school in a saturated market might have a 30% chance or less.  So a realistic assessment of your prospects—based on hard, objective evidence like the placement statistics at the school you’re considering, your LSAT, and your undergraduate GPA—is essential.  Law school is a much better bet for some than it is for others.

What about salvage value?  Here is where the wish is all too often father to the thought.  Law-school apologists assume very high salvage value for a law degree.  They express this assumption by positing both a broad range of non-law-related jobs for which the degree provides access not available without it, and a broad range of invaluable practical and performance-related benefits that the critical reasoning skills we teach in law school provide in almost any job.  Unfortunately, there is simply no empirical evidence that either of these assumed benefits exists for the typical person in any measure substantially greater than could be achieved by paths other than law school that require much less time and money.  If you’re going to be unemployed (as a double-digit percentage of recent law graduates are), you’re probably better off unemployed without three wasted years and $150,000 in debt.  If you get a job you could pretty much as likely have gotten without the law degree (high-school civics teacher; paralegal), you need to think about the difference between what you would learn in three years on that job without any education expense compared to where you are just starting that same job after a very expensive three years.

So does a law degree have any salvage value?  Undoubtedly.  Is that salvage value materially greater than what you could get (and the costs you could avoid) doing something else for three years instead of law school?  There’s no evidence that it is for many if not most people.  And to make things worse, it stands to reason that precisely those law graduates who are most likely to find their law degree failing its essential purpose (which is getting them genuinely law-related jobs) are least likely to achieve good salvage values.

But the key point here is that it’s not enough to say that a law degree has some salvage value.  You need to compare that salvage value with how well off you might be if you did something else, or nothing.  And that’s where the serious problem with our Midwestern admission officer’s justification emerges in high relief.  Slip a generic law-school admissions officer into our hypothetical in place of the used-car salesman.  One thing you won’t hear the admissions officer say is:

No worries, pal.  It’s true that, considering our school and your credentials, you have less than a 50% chance of obtaining a job for which your law degree will be a necessary or a very important and directly applicable qualification.  But you will learn things, and from time to time you’ll find some of those things relevant or even useful in some job unrelated to your education.  Of course, I can’t promise you that what you might learn doing something other than law school—something for which an employer might pay you instead of you paying us tuition—wouldn’t prove to be roughly as relevant or useful.  So are you in?

In other words, touting the salvage value of a law degree as “a form of risk insurance” without offering a clear-eyed assessment of how likely it is that the risk insurance will be needed, what its coverage limits are, and how cheaply you could get the same benefit another way is inexcusably incomplete.  It’s a failure to accept the difference between a Smokin’ Bucketful of Awesome and smoking pile of scrap.

 Bernie

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

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

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

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

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

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

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

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

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

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

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

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

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

 Bernie

Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 2)

In Part I of this little series, I laid out some of the statistics regarding the scope of the problem of depression and anxiety among lawyers and law students.  Before I tell my story, I want to spend a little time talking about why these diseases are so prevalent among lawyers.    

One of the more eloquent “whys” for the high incidence of depression among lawyers was contained in an opinion piece by Patrick Krill (a lawyer, clinician and board-certified counselor) that accompanied the CNN article on lawyer suicides.  As Patrick put it, “lawyers are both the guardians of your most precious liberties and the butts of your harshest jokes[; i]nhabiting the unique role of both hero and villain in our cultural imagination….”  Patrick explained that the high incidence of depression (and substance abuse, which is another huge problem) was due to a number of factors but that “the rampant, multidimensional stress of the profession is certainly a factor.”  Further, “there are also some personality traits common among lawyers — self-reliance, ambition, perfectionism and competitiveness -- that aren't always consistent with healthy coping skills and the type of emotional elasticity necessary to endure the unrelenting pressures and unexpected disappointments that a career in the law can bring.” 

Patrick’s discussion of this issue really stuck a cord with me.  Practicing law is hard.  The law part is not that hard (that was the fun part for me), but the business side of law is a bear.  Finding clients, billing time, and collecting money, are just a few aspects of the business of law of which I was not a big fan.  Keeping tasks and deadlines in dozens (or hundreds) of cases straight and getting everything done well and on time is a constant challenge.  The fear of letting one of those balls drop can be terrifying, especially for the type A perfectionist who is always terrified of making a mistake or doing a less than perfect job.  Forget work-life balance.  Forget vacations.  Every day out of the office is another day you are behind. 

Plus, as a lawyer (and especially as a litigator), no matter how good a job you do, sometimes you lose.  That inevitable loss is made worse by the emotion that the lawyer often takes on from his or her client.  Almost no client is excited to call her lawyer.  Clients only call, of course, when they have problems.  Those problems can range from the mild (for example, a traffic ticket) to the profound (like a capital murder charge).  But whatever the problem, the client is counting on the lawyer to fix it.  Every lawyer I know takes that expectation and responsibility very seriously.  As much as you try not to get emotionally invested in your client’s case or problem, you often do.  When that happens, losing hurts.  Letting your client down hurts.  This pain leads to reliving the case and thinking about all of the things you could have done better.  This then leads to increased vigilance in the next case.  While this is not necessarily a bad thing, for some lawyers this leads to a constant fear of making mistakes, then a constant spike of stress hormones that, eventually, wear the lawyer down.  The impact of this constant bombardment of stress hormones can be to trigger a change in brain chemistry that, over time, leads to major depression.    

Depression is a subtle and insidious disease.  By the time you are sick enough to recognize that you have a problem, your ability to engage in accurate self-evaluation is significantly impaired.  It is a strange thing to know, deep down, that something is wrong with you but to not be able to recognize the massive changes in yourself.  Helping yourself at that point is often impossible.  Unfortunately, those suffering from depression become expert actors who are extremely adept at hiding their problems and building a façade of normalcy.  Eventually, it takes all of your energy to maintain this façade.  The façade becomes the only thing there is.   

Depression is not a character flaw.  It is not a weakness.  It is not a moral failing.  You cannot “just get over it.”  No amount of will-power, determination or intestinal fortitude will cure it.  Depression is a disease caused (in very basic and general terms) by an imbalance and/or insufficiency of two neurotransmitters in the brain: serotonin and norepinephrine.  In this way, it is biologically similar to diabetes, which is caused by the insufficiency of insulin in the body.  As a disease, depression can be treated – and treated very effectively.  But it takes time and it takes help – personal help and professional help.

And now we get to the personal part.  Don’t say I didn’t warn you.

Law Professors, Law Students and Depression . . . A Story of Coming Out (Part 1)

Back in January, CNN ran a piece entitled “Why Are Lawyers Killing Themselves.”  In general, the piece focused on a spate of lawyer suicides in Kentucky and other states over the last several years.  Most of the suicides (15 since 2010) in Kentucky were seemingly successful lawyers.  One was a relatively young (37) and popular adjunct professor at NKU’s Chase College of Law. 

Outside of Kentucky, another prominent lawyer suicide was Mark Levy, the chair of Kilpatrick Stockton’s Supreme Court and Appellate Litigation Practice in D.C.  Mr. Levy was a top Supreme Court advocate, having argued 16 times before the Court and, in January 2009, won a 9-0 victory for DuPont in an important ERISA case (Kennedy v. Plan Administrator, 555 U.S. 285 (2009)).  However, in April 2009, as the economy tanked, Kilpatrick Stockton informed Mr. Levy that his services were no longer needed.  So, Mr. Levy came to work on April 30, 2009, sat down at his desk, activated the “out of office” auto-reply feature on his email account and shot himself in the head.  Chillingly, the “out of office” message Mr. Levy activated that morning was as follows:  “As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. If it concerns a personal matter, please contact my wife.”  (See Richard B. Schmitt, “A Death in the Office,” ABA Journal, Nov. 2009, at 30-31). 

Here in North Carolina, one of the founders of King & Spalding’s Charlotte office, who was profoundly successful; a prominent litigator in McGuireWood’s Raleigh, N.C. office; and numerous quietly successful small town lawyers have committed suicide in recent years.

The common thread running through most of these suicides?  Clinical Depression (a/k/a “major depressive disorder”). 

According to the American Psychiatric Association and numerous other sources, depression is the most likely trigger for suicide.  Lawyers, as a group, are 3.6 times more likely to suffer from depression than the average person.  Of 104 occupations, lawyers were the most likely to suffer depression.  (Both of these statistics are from a Johns Hopkins University study to which I cannot find a link). 

Further, according to a two-year study completed in 1997, suicide accounted for 10.8% of all deaths among lawyers in the United States and Canada and was the third leading cause of death.  Of more importance was the suicide rate among lawyers, which was 69.3 suicide deaths per 100,000 individuals, as compared to 10 to 14 suicide deaths per 100,000 individuals in the general population.  In short, the rate of death by suicide for lawyers was nearly six times the suicide rate in the general population.  

A quality of life survey by the North Carolina Bar Association in the early 1990s, revealed that almost 26% of respondents exhibited symptoms of clinical depression, and almost 12% said they contemplated suicide at least once a month.  Studies in other states have found similar results.  In recent years, several states have been averaging one lawyer suicide a month. 

What is worse is the state of our students.  According to a study by Prof. Andy Benjamin (U. Wash.), by the spring of their 1L year, 32% of law students are clinically depressed, despite being no more depressed than the general public (about 8%) when they entered law school.  By graduation, this number had risen to 40%.  While this percentage dropped to 17% two years after graduation, the rate of depression was still double that of the general public.  (See http://www.lawyerswithdepression.com/law-school-depression/). 

These statistics, which likely have not improved in recent years, are terrifying.

In the months since CNN ran its story, I have (unsuccessfully) tried to shake the feeling that we (as lawyers, law professors and the mentors of a generation of law students) missed out on a valuable opportunity to more fully address an issue that is critical to the legal profession.  So, when the opportunity to post here came along, I decided to revisit this issue and to do so in a personal way. 

I will admit to being a bit nervous about even raising this topic.  (Given the nature of many anonymous internet commenters, I think most people would be hesitant to bare even a minute portion of their souls online and attempt to engage with a very serious subject, only to be subject to snarky or mean-spirited attacks.)  Plus, mental illness and suicide are not comfortable subjects for most people.  There remains a very real stigma attached to mental illness.  Many people believe that suffering from clinical depression, anxiety disorder, bipolar disorder, or a host of other mental illnesses is a character flaw or a weakness.  Having one of these diseases has been seen as something of which the sufferer should be ashamed.  This attitude has been in place for too long for people to easily change their perceptions and opinions. 

However, as lawyers and law professors, we must to do more.  It is clear that our students need us to do more.  When you are depressed, you feel so terribly alone.  You feel different.  You feel ashamed.  You feel weak.  You feel like you will never feel better and that you can never be the person you want to be. 

If 40% of our students feel this way, we must do more.  They look up to us.  They see us as role models and mentors.  They see us as strong and successful and confident.  They need to see that suffering from depression or anxiety or bipolar disorder will not curse them for all time and destroy their lives.  These are treatable diseases, not character flaws.  They need us to be brave and be honest. 

A few law professors have publically “come out” (so to speak) about their struggles with mental illnesses: Prof. Elyn Saks at Southern Cal (schizophrenia, via The Center Cannot Hold: My Journey Through Madness (2007)); Prof. Lisa McElroy at Drexel (anxiety disorder, via an article on Slate); and Prof. James Jones at Louisville (bipolar disorder, via an article in Journal of Legal Ed.).  They were all tenured when they did so.  

And then there is me: an untenured, assistant professor with five kids, who left a generally successful practice career to teach at Charlotte School of Law.  So, anonymous internet commentators be damned . . .

My name is Brian Clarke.  I am a father, a husband, a lawyer and a law professor.  And I suffer from major depressive disorder and generalized anxiety disorder. 

So there you have it.  While I have been “out” at Charlotte Law and have spoken publicly about my disease, this is the most wide-open forum in which I have come out. 

In my next post, I will share my story (a piece of public soul baring that you should not miss!).  In the third (and mercifully final) post in this little serial adventure, I will discuss the role my struggles with depression and anxiety have played (and continue to play) in the classroom. 

[FYI, as this is a serious topic, I will moderate any comments to this post and delete anything I deem inappropriate or off topic.]

Is Vermont Law School Merging with the University of Vermont?

Last fall, when the University of Vermont (UVM), located in Burlington, and Vermont Law School (VLS), located in Royalton, announced that they were developing a joint degree program, UVM's Vice President for Administration and University Relations explicitly denied that a merger was on the table: "It’s not on the table at all. We're not talking about a merger." But concerns about a merger and relocation—which Royalton residents say would adversely affect the local economy—have nevertheless persisted, and indeed have been rekindled this year. In January, the UVM Board of Trustees convened an ad hoc work group, which last met in closed door session on February 27, "to explore the university’s relationship with VLS." According to Vermont Public Radio, "at least three UVM trustees [who declined to go on the record] have confirmed that the possibility of UVM acquiring VLS outright is one of many scenarios the work group is examining."

Those three trustees presumably do not include Vermont Rep. Sarah Buxton, D-Tunbridge, who cited the possibility of a merger in her decision to resign her position as a member of the UVM Board of Trustees on February 20 after serving just one year of a six-year term. Buxton felt that she faced a potential conflict of interest between her role as trustee, should UVM decide that absorbing and relocating the law school was in its interest, and the role she has held since 2010 as state legislator, where she represents the Royalton residents who are increasingly uneasy about rumors of a merger. Incidentally, Buxton is a 2010 graduate of the law school and, until May of 2013, also held a fulltime position there as assistant director of community relations and alumni affairs. That position, however, which accommodated her annual four-month stint at the state house, was eliminated in May as part of the law school's various layoffs and buyouts amid declining enrollments and Buxton was forced to file for unemployment while she searched for a similarly accommodating job elsewhere. (It's unclear from her Wikipedia page whether she has been successful in her job search.)

In response to the upsurge of merger rumors following Buxton's resignation, UVM President Thomas Sullivan and VLS President and Dean Marc Mihaly released a joint statement implicitly denying that a merger is on the table. They said that "programmatic and academic opportunities between the institutions," including joint degrees and clinical and research collaborations, "represent[] the full extent of what the two institutions are exploring and discussing." Asked for a more explicit statement about whether a merger and relocation is a possibility, law school spokesperson Peter Glenshaw was somewhat more circumspect than UVM's Vice President for Administration and University Relations had been last fall. "At this time," Glenshaw said, "there is no plan to relocate, and we intend to continue building our strategic academic partnerships with UVM."

Photo source: Jared C. Benedict/Wikimedia Commons

Rankings and Employment Data

The state of the market for entry-level legal employment is important to current law students, and to potential applicants for admission to law school. As Al Brophy, and others, have discussed, the number of applicants for the Fall 2014 entering class continues its free fall. Before long, the ABA (and NALP) will be releasing the employment report for the Class of 2013. That report may well influence decisions about applying to law school at all, and the law schools to which applicants might apply, or enroll.

Given that, I was not entirely surprised by an inquiry from one of the editors of a Wikipedia entry on law-schools, or on recent graduate employment. Last year, when the Class of 2012 ABA employment data was released, I focused on one crucial slice of the overall data, the percentage of graduates employed in positions (i) requiring admission to the Bar that were both (ii) full-time and (ii) long-term. In my initial post, Bar-Admission Required, Full-Time, Long-Term: First Look, I discussed the general distribution of Class-of-2012 law-graduate employment rates. I also listed the 20 schools reporting employment rates in such positions of at least 75%.

Given our national obsession with rankings, and requests from commenters, I folllowed up with Full Rankings: Bar Admission Required, Full-Time, Long Term, which

• posted the Class of 2012 ABA Employment rates in that category for all 197 law schools (i) located in the continental United States and (ii) reporting employment statistics, and
• ranked the law schools from highest to lowest reported rates.

Thus, the inevitable question: is it better to focus on reported employment rates (percentages), or on rankings?

What I Saw at the Counter-Revolution

Snowbound in Chapel Hill over the weekend, I had a moment’s leisure to contemplate the many excellent programs and panels I attended at the AALS Conference last month.  There were so many that were so thoughtful they defy mention, but one in particular was exceptionally informative and (in the best possible way) provocative.  That was the presentation from Bryant Garth, Joyce Sterling and Ronit Dinovitzer of the preliminary results of their “Third Wave” of data from the “After the JD” (AJD) project.

Many people missed this master class, principally because it was held early Friday morning (the first session on the first day of the Conference), when a combination of weather delays and late arrivals (it was snowing then too) prevented numerous well-intentioned observers from attending.  You missed something important.

For those not familiar with the AJD study, Profs. Garth, Sterling, Dinovitzer and others undertook shortly after the turn of the century to address the paucity of longitudinal data regarding lawyer-career trajectories by tracking the progress of the law school class of 2000.  They created a large random sample of those graduates, and surveyed them on a variety of subjects regarding their lives, careers and career satisfaction in 2003, 2007 and again most recently in 2012—the so-called “Third Wave” inquiry that was the subject of their presentation at AALS.  The presentation was preliminary, as they are still testing and truing their findings; thus very little of the data is published right now.  As a result, I’ll need to report to you as my memory serves, and if I bobble some of the numbers, you have my apologies.  (You can read a limited summary of some of the preliminary data here.)

First and foremost, deep admiration for the investigators.  This is first-rate social science, conducted so far as I can tell carefully, thoroughly, thoughtfully and rigorously; and intelligently braced against all the competing winds of expedience eager to co-opt the implications.  Everyone should be looking forward to the publication of the entire dataset, which I understand to be a condition of the American Bar Foundation/NALP Foundation grant that funded the work. 

There was a great deal of information presented in that short hour at AALS, most of the details of which I can’t repeat with confidence.  But one observation that emerges from the preliminary Third Wave data is that the Law School Class of 2000 is, by and large, OK.  As I recall, twelve years out the overwhelming majority were employed, with less than 25% of them in jobs not practicing law.  Most of them were making a decent or better living (median salary as best I can recall in the low six figures).  And substantial majorities were satisfied or very satisfied with their jobs, and with their decision a dozen years before to attend law school.  That’s a big deal:  Broader workplace studies generally find that on the order of 70% of American workers are not satisfied with their jobs.  See, e.g., here and here. 

So this is good news, and from the apparent rigor of the study I am inclined to believe (contrary to some Pandemoniasts, a word I used in a post last year to describe those who are inclined to confuse hard times with end times) that it is a fair portrayal of the cohort studied.

What happened in the session’s Q&A, however, was rather disconcerting.  The overwhelming response of those in the audience who commented amounted to a public sigh of relief that here at last was the proof that everything had always been, as they had always really known, just fine.  One senior administrator at a major university announced that the AJD data refuted the “hysteria” about JD-Advantaged jobs.  More than one prominent faculty member from respected law schools asserted that the study proved that the academy needed to reform its curriculum to prepare for these JD-Advantaged positions.  Several attendees insisted that the AALS immediately deploy the study as a “countermessage” to the “sharpshooters and assassins” (in the actual and apparently widely approved words of one audience member) who, we now had proof, had been misrepresenting the prospects of recent law graduates.  (None of this, I should add, was endorsed—or for that matter rejected—by the principal investigators of the study or most of the other panelists, who addressed all comments from the audience with carefully appropriate neutrality.)

Personally, I’m skeptical.  In a forthcoming paper I have up on SSRN (here), I try to create a normalized measure of the strength of the employment market for new lawyers since the early 1980s.  What the study unsurprisingly shows (see the graph on page 24) is that, even with the tech-bubble recession of the early 2000s, the law school class of 2000 graduated into the most robust entry-level legal job market in decades.  The classes of 2008-2013, by contrast, graduated into pretty much the worst job market we know of.  (Those who scrutinize my graph and are tempted to argue that the measure of employment-market strength depicted is comparably poor in the 1980s need to know that the employment data from the 1980s were skewed very low by low levels of reporting during that time; see pages 25-28.)   

Importantly, the AJD investigators also reported that the typical member of the Class of 2000 had changed jobs 3 times in the twelve years since graduating.  One fair reading of the data is that the Class of 2000 was fortunate to graduate into a market rich with a range of job opportunities; when they found themselves dissatisfied with their jobs, they were able to try new and different legal work until they found a comfortable fit.  Small wonder large numbers of them are satisfied with their careers today.  By contrast, recent law graduates were cast adrift in an employment market that presented many of them with limited or no legal job opportunities—remember that not many more than half of the law students who graduated in 2011 and 2012 were able to get a job practicing law within nine months of graduation.  And with no or limited entry-level legal experience, it is not unreasonable to infer that it becomes increasingly difficult later to explore other or different law jobs that require some measure of practice experience.  Not to mention the fact that the last fifteen years has seen an unprecedented run-up in tuition levels at law schools nationwide far in excess of any increases in average salaries—tuition has more than doubled during this period, while average salaries have increased only about 20% (a characteristically detailed and thoughtful exploration of these trends by my friend Jerry Organ can be found here).   Recent law graduates thus face economic constraints both more widespread and more limiting than most of the Class of 2000 ever had to cope with.

As for JD Advantaged jobs, I’ll have more to say about them in a future post.  For now, I’ll just express my puzzlement at the joy some observers seem to be taking in the AJD Third-Wave data on that account.  What curricular reforms should be implemented to “prepare” people for a job not practicing law twelve years after they graduate?  And how much attention should that choice command given that less than 25% of the class had chosen such jobs by that point—especially given that less than 10% were not practicing law three years out of school (see here)?  How do we reconcile the chorus of demands for “practice-ready” graduates with the chorus advocating law school as preparation not to practice?

Bernie

3L Nuggets: How can lawyers be happy? (Holiday Edition)

Is happiness is a niche practice?

    A couple of nights ago, I played the mega millions with my wife. We discussed what would happen if we won (spoiler alert: we didn’t). She, a dentist, and I, both knew that our respective careers would endure. That was a good sign that the kinds of law I was writing about and considering practicing made me happy.

    I recognize that the legal field is so competitive and the legal economy so uncertain that it would be a great privilege to be able to align one’s personal interests with one’s career. The job market for graduating law students is brutal enough that even considering the pursuit of happiness in a legal career must take a backseat to the more urgent priority of securing employment.

    Nevertheless, the holiday season might be a particularly apt one for considering the question of the happy lawyer. Is he or she a chimera?

    For a student nearing the end of the law school, it can help  to start visualizing the kind of career you want. When you find something you think would survive a win in the lottery, you are nearing the right answer. And you’ve given yourself a goal worth pursuing.

See The Happy Lawyer: Making a Good Life in the Law

    Of course, we cannot always be so lucky. School loans and the realities of buying a home, starting a family, etc. make making money important. Sometimes the job you take is the job you can get. But finding a career that is sustainable in the long term seems much easier if you can find a job you like. This becomes quite clear over three years in law school, when you find out how much better you can do in a class when you actually enjoy the subject. Some classes helped me realize the kind of law I did not want to practice.

    As hard as it might be to believe for some, there are tax lawyers, M&A lawyers, real estate lawyers, et al. who enjoy their work, and likewise would really not enjoy doing another kind of law. The practice of law is not a monolith.

    Unhappy lawyers might share feelings of being underpaid and/or overworked. Many of my friends and family worried when I told them I was going to law school; “aren’t lawyers miserable?” they asked.

    But surely there is a spectrum of happiness among lawyers. Those toward the higher end of that range appear to believe their brand of law suits them best.  Just as all happy families might be alike (hat tip: Tolstoy), have all happy lawyers found their niche?

    Faculty Lounge readers, what say you about the niche/happiness nexus? Have you practiced law in a niche you did not like and then found contentment in another?

    Have a great holiday! 

 

3L Nuggets: 2. Are typos the enemy?

The legal profession takes a strong stand against typos.

I will admit that as a history graduate student, I thought the research and the writing would speak for themselves. The occasional typo or style slipup, while I would try to catch them when I proofread, would not faze me too much.

For more than two years now I have seen hawkeyed professors and firm partners find even the smallest typographical error with a kind of typo omniscience that puts the fear of the almighty into law students everywhere.

This is especially the case when it comes to legal citation, when a misplaced apostrophe or comma is an easy sin to commit.

Indeed, legal professionals can make a strong argument when pressed on the importance of eliminating even the smallest typos:  Lawyers need to care about such things because they have clients to represent and judges to persuade.

Clients see carelessness that ignores how important the case is to them and how much money they are spending on your services. Judges see an insouciance that keeps them from trusting you. How can they be sure you are citing cases properly and advancing credible arguments when you reference a “squid pro quo” exchange?

I will say that I read and reread what I write many more times and much more carefully than I did before law school. Will I catch everything? Maybe not. Maybe there's a typo in this very post! But if I don’t, at least at this point it won’t be because I don’t care. This is another area where law school successfully indoctrinates the law student.

Can you spot the difference between the italicized and regular period? . .

Anyone out there want to defend the occasional typo? One argument I can think of is that spending hours checking for typos can increase legal costs and make law less efficient. 

Nuggets of Wisdom from a 3L: 1. How do I "think like a lawyer"?

After my 1L Year, I guest-blogged on another fantastic site, the Legal History Blog. I prepared a top ten list for students with graduate training in history making the transition to law school. Now that I’m nearing my last semester, I thought it would be enjoyable to add three nuggets of wisdom I have gathered about being a law student and a soon-to-be lawyer.

Foremost, I am beginning to feel more like a lawyer than a law student. What does this mean? I will post my reflections in three parts. 

The Village Lawyer, c. 1621, by Pieter Brueghel the Younger

1. “Thinking like a lawyer” isn’t just about analytical skills.

    Going in, I knew law school would emphasize a new way of thinking and analyzing problems. I would learn how to "think like a lawyer." Well, this much is definitely true. But I also think a good law school experience will help budding lawyers accept the heightened responsibility that comes with that skillset.

    Experiences in my first two and half years of law school have helped me realize how important it is for lawyers to feel a sense of duty to others. Lawyers, put simply, have a certain wherewithal that lay people do not. During my past two summers, writing research memos for cases related to national security or the financial crisis, I realized how much could ride on a lawyer’s work. Likewise, when I field legal questions from friends and family, I see the personal responsibility that will come with becoming a lawyer.

    What might seem oversentimental to cynical or jaded practitioners appears essential and basic to an enthusiastic law student. It helps, I think, for students just out of law school to start their careers with that sense of purpose. It will keep members of the bar from forgetting just how much rides on what they do and the advice they give.

More on L'Affaire Adler and "Risky Teaching"

An update to my previous update: The Boulder Daily Camera reports that on Wednesday, CU-Boulder administrators met with faculty in a 70-minute, closed-door meeting to discuss L’Affaire Adler and its broader ramifications for academic freedom, and then spoke to reporters afterwards. At the presser, the arts and sciences dean said—for the first time—that the “main concern” with Adler’s course was that “maybe there are cell phone videos being taken or other kinds of videos that would put students in a position where we didn't have consent on these issues.” He explained that “[w]ith any course involving something unusual, like photographing students, we ask for consent forms to be signed. For example, when we photograph someone in a theater rehearsal, they have to sign consent forms for this.” If so, the administration’s decision to send its Office of Discrimination and Harassment to sit in on Adler’s lecture (the Office found the skit to be a “risk” to the university) and the administration’s subsequent statements about the skit possibly constituting a hostile learning environment seem a bit odd, as does its decision to cancel the course for the spring.

Still, this explanation, if we credit it, partly explains why the skit would be of more concern today (and perhaps in recent years) than it was 20 years ago when Adler began teaching the course. The problem (today, at least) is not so much the “post-Penn State” world as the post-iPhone/Instagram world.

As if to prove the administration’s concerns about the dangers that modern technology poses for privacy, someone in the closed-door meeting leaked an audio of it to the Daily Camera, in which associate sociology professor Leslie Irvine called for the provost to resign for falsely “insinuat[ing] that professor Adler is under investigation for sexual harassment” in his Monday email.

During the same not-so-closed-door meeting, administrators told faculty that, “What we know based on our discussion with sociology is that there have been concerns expressed over the years, and unfortunately these concerns have not been dealt with in an effective manner.” The provost said he had (in the Daily Camera’s words) “concrete evidence of complaints from more than one student,” but would not say how many complaints when pushed by faculty.

Yet, despite this allegation of ineffective handling of student complaints about the course by the sociology department, the dean acknowledged that, the previous day, the administration had “reversed course” on its decision to preclude Adler from teaching the course this spring and had instead decided to leave that decision in the hands of…the sociology department. In order to “abide by the rules of self-governance and allow the sociology department to handle the issue internally,” the administration now says that the course can proceed if Adler agrees to a review of her course “by a group of her peers in sociology or perhaps by her sociology colleagues joined by other faculty colleagues from CU-Boulder.” The sociology department apparently voted to review the course if Adler requests it.

The Daily Camera reports that Adler hasn't yet decided whether to sign her retirement contract (due, she says, by Jan. 6) or allow the sociology department to review her course.

IRB Mission Creep on Steroids (UPDATED)

Update: Inside Higher Ed now reports that UC-Boulder has backed down from its suggestion that controversial teaching be prospectively approved by the university's IRB. On Monday, Provost Russell L. Moore sent the following email to faculty (emphasis mine):

Many of you are raising concerns about comments by our campus spokesperson Mark Miller published today in Inside Higher Ed.... I want to make it clear to you that this was a question raised by CU Arts & Sciences Dean Steve Leigh – whether or not the use of student TAs as actors in a skit presented in a class should be accorded a review by the IRB. I want to make clear that this was not a declaration of a policy, or an expansion of IRB’s role. Inherent in Dean Leigh’s question from the beginning was whether or not some consent form, comparable to what might be required by IRB, would be appropriate. Our campus policies reveal that this is not an area in which IRB would become involved, as it only deals with human subjects used in the research process, not material used for teaching.

In a second email IHE describes as having been sent by the provost to "campus," he explained (again, emphasis mine):

A number of you have raised concerns about academic freedom and how it may connect to this situation. Academic freedom protects faculty who teach controversial and uncomfortable/ unpopular subjects. However, academic freedom does not allow faculty members to violate the university’s sexual harassment policy by creating a hostile environment for their teaching assistants, or for their students attending the class. . . . In this case, university administrators heard from a number of concerned students about Professor Adler’s 'prostitution' skit, the way it was presented, and the environment it created for both students in the class and for teaching assistants. Student assistants made it clear to administrators that they felt there would be negative consequences for anyone who refused to participate in the skit. None of them wished to be publicly identified.

Yes, of course academic freedom does not protect "sexual harassment" — any more than it protects pedagogy that lacks any "legitimate educational basis" (which was the earlier version of the administration's concerns about the lecture) or the behavior for which Sandusky was convicted. (I offer no comment here on whether Adler's class exercise, details of which are somewhat sketchy, rises to the level of a hostile work/learning environment.) The issue is how to regulate the risk of a hostile learning environment: ex post, through investigations and, as appropriate, subsequent proceedings that bear at least the hallmarks of an adversarial process and due process — or ex ante, by a group that tends to speculate about (rather than rely on data to assess) possible future harms and benefits, that has stronger incentives to avoid Type II than Type I errors, that operate with virtually no transparency and no representation for the teacher during the decision-making process or for the students at all, and from whose unfavorable decision neither teacher nor students has any possibility of appeal? I'm glad that UC-Boulder appears to have rejected prospective group review of "risky" teaching.

 

On the other hand, if UC-Boulder is truly worried about sexual harrassment, then the administration's explanation for what it really finds appealing about the IRB process as applied to the teaching context is bizarre. UC-Boulder wants to regulate the risk of hostile learning environments by requiring (edgy? all?) teachers to obtain the voluntary, informed consent of students? The same students it suggests would experience "negative consequences" if they "refused to participate in the skit"? The signing of a consent form would certainly complicate a student-plaintiff's burden of showing "unwelcomeness" in a subsequent hostile environment lawsuit, but it's hardly guaranteed to defeat the suit. Successful plaintiffs may first give, then rescind, consent, and in any case, the consent must be voluntary, not the product of "coerced submission."

 

We've heard from the provost, the dean of arts and sciences, and the university spokesperson. Maybe it's time to hear from university counsel.

 

Original post below the fold.

Not so Fast

    The pressure seems to be on to convert our system of higher education into an online form, whether it be by moving standard classes online, “flipping” them, or converting them into MOOCs. The various praises for teaching courses this way seem to promise educational Nirvana for those who are brave enough join the online revolution and suggesting that those not in support have missed the boat. See, e.g., MoocGuide.

    Those eager to replace the standard education model might want to examine an article by Ferris Jabr in the November issue of Scientific American, Why the Brain Prefers Paper. This article summarizes the scientific literature on the differences in brain functioning between reading material on paper and reading it from a screen (of any kind). Of most relevance to the effectiveness of moocs and online education was the distinction described between “remembering” and “knowing” something. While remembering includes the datum itself as well as the context in which it was learned, knowing includes placing that datum into the context of a field of knowledge. It seems obvious that we seek to provide our students with knowledge of the law, not just a memorized set of data points. Consequently, we should seek out techniques that result in our students knowing what we have taught.

    What does this have to do with moocs? The article describes the results of studies that establish that

[s]tudents who had read study material on a screen relied much more on remembering than on knowing, whereas students who read on paper depended equally on the two forms of memory. [S]tudents who read on paper learned the study material more thoroughly more quickly; they did not have to spend a lot of time searching their mind for information from the text — they often just knew the answer.

Sci. Amer. at 53.

    As many of you know, my background before law school was in computer science. I do, indeed, have a propeller on my cap (and silicon in my blood). Nevertheless, I intend to maintain my current approach — have my students read materials in a book first and then help them contextualize it into the field of knowledge that is the law.

Are Tenure Track Professors Better Teachers?

Figlio, Schapiro and Soter asked that question in their study of Northwestern University undergraduates.  Their answer:

Our findings suggest that non-tenure track faculty at Northwestern not only induce students to take more classes in a given subject than do tenure line professors, but also lead the students to do better in subsequent coursework than do their tenure track/tenured colleagues.

The Chronicle discusses the study here.

Hidden Gems: Community Law Schools Part of the Solution - Part V

Changing the classroom experience. Why are traditional faculty threatened by discussions about adding practice skills to the law school classroom? 

On one side of the argument are the academic puritans. They defend the casebook and Socratic Method as if they were handed down from Christopher Columbus Langdell in 1890 on stone tablets and ancient scrolls. As the argument goes, it worked for our professors, it worked for our mentors, it worked for us . . . and therefore it must work for current and future students as well. To challenge the status quo is characterized as suggesting that legal education be reduced to a trade school model akin to training auto mechanics and commercial truck drivers.

On the other side of the argument are the practical realists. They look at the job requirements and practice skills needed by today's new lawyers, the escalating cost of law school, and the declining job market. They foreshadow the shuttering of law schools that fail to transition to what is characterized as a more relevant relationship between education and practice.

But why are we allowing the extreme positions to dominate this discussion? This polemic debate between righteous advocates may be great blog fodder, but it fails to acknowledge that examples of legal education evolution are already underway. Perhaps greater focus on what "is" vs. what "isn't" changing would encourage a more constructive dialogue.

At a recent faculty meeting at our law school, there were some simple, but interesting questions posed. Why don't students draft contracts in Contracts? Why aren't they given the chance to present evidence in Evidence? Why don't they form a corporation in Corporations? Draft a lease in Real Property . . . present a motion in Civil Procedure? Once we got started, we realized that we could ask a similar question for virtually every substantive course in law school.

As our faculty engaged in a thoughtful discussion about these questions, it was never once suggested that we throw casebooks and the Socratic Method out the window. The discussion centered on how to reduce reading assignments without losing substance. Would it be OK to skip sections of a casebook that place too much emphasis on obscure aspects of the law? How many case briefs in class are enough? How can we better allocate class time between lectures and student discussions? 

The discussion started with the traditional concern that there is simply too much material to cover in too little time. How could anything new be considered? However, as the discussion progressed, it became clear that with small alterations, time for more practical exercises could be created . . . without diminishing the coverage of the substantive content. Of course, it would require altering syllabi, re-reading case books to create more selective reading assignments, and creating new classroom exercises to replace well-rehearsed lectures.

The next question was how to accomplish these changes, particularly in a program like ours that relies on adjunct faculty who are working full time while teaching evening courses.

It is too early to report success, but I can share what we put in place this year to support these changes. First, we hired part-time teaching fellows to provide support for any faculty member who was interested in adding practice-oriented exercises to their courses. Second, our Asst. Dean for Academic Support began working with faculty to identify and collect examples of existing resources for subject specific practice exercises. Third, a former dean and senior faculty member who serves as our Distinguished Professor of Academic Excellence began scheduling time with individual faculty members to brainstorm on creative ways to engage students in practical applications of their respective substantive content. Finally, to get things started, all of the above activities are considered an "opt-in" program for faculty, not mandatory. I was pleased that we immediately had enough "early adopters" to begin experimenting this semester across selected classes in first-year, as well as upper-division courses.

None of these initiatives are "rocket science" or particularly innovative in their own right. However, taken as a whole, these changes reflect an evolution in the culture of our law school. Expectations about the type of education we wish to provide are changing without being threatening. It has already brought a new energy into the law school . . . and into the classrooms. We realize that change will not happen overnight, but through small, constructive steps we are fostering an environment that is directly addressing the current challenges in legal education, not merely arguing about them.

I would love to hear comments about other examples of these types of changes that are underway . . . 

Hidden Gems: Community Law Schools Part of the Solution - Part IV

You've got to think about big things while you're doing small things, so that all the small things go in the right direction. Alvin Toffler

     Thinking small in the future of legal education. Amidst the many concerns for the future of legal education is the discussion about whether we will begin to see law school closures due to the changing economics of the education cost/job availability ratio in the legal industry. For the moment, I will avoid wading into the there are too many lawyers because of too many law schools debate. In a previous post, I pointed out that from the perspective of a regional, non-urban law school, there appears to be a consistent demand for new LocalLaw (vs. BigLaw) practitioners. This certainly is the case along the Central Coast of California where Monterey College of Law exclusively serves a tri-county area that ranges from the wealthy enclave of Carmel-by-the-Sea and Pebble Beach, to the migrant worker agricultural communities of south Monterey County.

     In previous posts, I reflected on what I consider MCLs success through utilizing adjunct practitioner faculty, shifting academic focus towards clinical practice, and emphasizing education over selection. However, MCL is a very small law school, with a law school enrollment that has intentionally remained about 115 to 120 students over the past several years. It is perfectly reasonable to question whether our program model can be replicated in a larger law school.

     But what if that is the wrong question? Perhaps the better question is not whether there should be law school closures, but whether there should be smaller law schools . . . re-designed to be boutique educational programs specifically tailored to meet the educational and practice needs of their community. Perhaps it is time for our regulatory and accreditation system to move away from a rigid, assembly-line curriculum that has the sole purpose of producing fungible law graduates?

     The regional communities served by our law school need future DAs, public defenders, and a host of solos and "mom-and-pop" law firms to support small business owners, divorces, wills, immigration papers, criminal defense, etc. Their's is an honorable profession . . . serving the community. I suspect that from this standpoint that we are not really unique. There must be many more communities across the country that need lawyers from this type of law school . . . than there are communities that need programs expanding around the myth of BigLaw, prestigious federal clerkships, and an academy of elite legal theorists.

     "Thinking small" would mean bringing the cost of legal education down to reflect the salaries of the local legal community. For example, MCL's current tuition and fees are less than $70,000 for a J.D. program that includes a comprehensive (non-credit) bar review program as part of the tuition. Our average student debt at graduation is lower than the average starting lawyer salaries in the community ($50,000). 

     I suggest that this might not be a bad metric to use in pricing legal education. What if student law school debt is not allowed to be greater than the average starting lawyer salaries in the market area served by the law school. A true market-based pricing system that could also support the transition to smaller, boutique educational programs that would be tailored to the specific educational and practice needs of the community. "Thinking small" in the future of legal education could bring about a big change.

On Being Misinterpreted (Or, Elie Mystal Thinks I’m An Idiot On Account Of Things I Didn’t Say; Now What?)

It’s always fascinating to see what others make of your ideas.  Sometimes your readers find them a window into a world they hadn’t fully explored, which is ineffably gratifying.  Sometimes your readers make them into strange lenses that refract things into exactly what they thought they already knew, which is rather less gratifying.  Three journalists (well, two journalists and a full-time blogger) took a look at my new article, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21^st Century,” described in my last post.  Karen Sloan of the National Law Journal provided a fair and balanced summary of the paper’s content, but concentrated on the aspects of the analysis predicting that the number of entry-level Law Jobs will remain depressed for the foreseeable future.  Jacob Gershman of the Wall Street Journal provided an equally fair and balanced summary, but focused on the paper’s additional and somewhat counterintuitive conclusion that, because poor job prospects are driving down the number of new law students, there will eventually be fewer law graduates seeking more or less the same number of jobs, which should make life somewhat easier for the fewer graduates on the job market some years from now.  Elie Mystal of Above the Law treated us to one of his breathless, spittle-on-the-corners-of-his-mouth rants, and pronounced me a Don’t-Worry-Be-Happy academic apologist vying with purportedly like minds for the “neatest bit of sophistry in defense of going to law school.”

Poor Elie.  It can’t be three weeks since he indulged in a similar surge of fury at Michael Simkovic and Frank McIntyre of Seton Hall concerning their study on “The Economic Value of a Law Degree,” and savaged the work for errors that even a casual reader would have appreciated simply weren’t there.  (To be clear, I think there is plenty to argue with in the Simkovic-McIntyre analysis; unfortunately, almost none of it could be found in Elie’s landmark post “Another Garbage Study Offering Misleading Statistics On The Value Of A Law Degree.”  This had the perverse effect of deflecting attention from a range of more subtle concerns with the paper, which I doubt was the intended effect of the attempted beat-down.)   Since I am a teacher, I can’t help but notice that there appears to be lesson emerging here:  Read before you rage. 

So let’s see if we can straighten this out for anyone else in danger of confusion.  Anyone who knows anything about my work (and to be clear, Elie Mystal is not to blame if he doesn’t) knows that I have argued explicitly and repeatedly that there currently are far too many seats in far too many law schools given the number of law-related jobs available; that this mismatch has visited tragic and incalculable misery on tens of thousands of aspiring lawyers, and that anyone who tries to assert otherwise is either grievously mistaken or contemptibly dishonest.  Look here and here, for example.

Far from being “sophistry in defense of going to law school,” then, the “New Normal” paper (here) provides detailed empirical support for the propositions just described  (with which, ironically enough, Elie apparently agrees).  The paper shows that the entry-level Law Jobs market is currently poor and has been for the last five years (pages 24-25, 28); that reductions in BigLaw hiring are responsible for a disproportionate amount of that change for the worse (pages 30-35); and that there are strong objective reasons to believe that entry-level BigLaw hiring, and thus the entry-level Law Jobs market in general, will remain depressed below pre-recessionary levels for the foreseeable future (pages 35-54). 

So far, it would appear that Elie and I are in complete agreement.  The paper goes on to reason that if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs.  Elie doesn’t fight the logic (you can’t); instead, he pronounces the prediction of a shrinking academy “almost certainly wrong” because he believes there is no way that the number of law graduates will fall.  What is the empirical basis for this prognostication?  He says the executive director of the National Association for Law Placement, James Leipold, told him so.  Now, I have no idea what Jim Leipold told Elie Mystal, but I do know the facts.  Here are a few of them:  The largest first-year class in history entered law schools across the country in the fall of 2010; it was about 52,500 people.  The first-year class that started in the fall of 2012 is estimated at about 42,500, a drop of about 20% in two years.  [Update:  LSAC reports an entering class of about 44,500 in 2012, only a 15% drop in two years.  Others estimate the 2012 first-year class at less.  Hat-tip to Paul Campos for pointing this out.]  Last year, over half the accredited law schools in the United States shrank their entering classes by 10% or more.  We don’t have entering class numbers for this fall yet, but there are reports –particularly among the schools that have had the worst placement records in recent years—of 30%, 40% and even 50% reductions in entering class sizes.  The number of applicants to law school has shrunk by a third just between 2010 and 2013, and the number of applicants for the first-year class that will be starting soon is at levels not seen since Ronald Reagan was president.  And remember that, historically, about 10% of each aggregate entering class drops out before graduation.  So the number of new graduates we can expect to see three to five years from now will necessarily be much smaller than it was just three years ago, and it’s still looking for its bottom.  In other words, what Elie thinks is impossible is actually happening already.  By the way, all of this information is prominently presented in my paper.  See pages 54-56. 

So yes, for the much smaller number of law school graduates we’ll be seeing three to five to seven years down the line, I do think it will be easier to get a law-related job, so long as the number of such jobs at worst stays at about the same seriously depressed levels we see today (which I think is a good bet, and probably a little conservative).  But that is true only because there are currently way too many seats in way too many law schools, and only because a lot of people who might have considered applying to law school are already choosing not to do so, and even more in the future will continue to stay away. 

What that means as a practical matter should be obvious:  You need to figure out if you’re one of the many potential law-school applicants who ought to stay away for your own good.  Nothing in my paper (or anything else I've ever written) should be read as suggesting that no matter who you are, things are going to be great for you if you start law school in the next few years. Things will improve only if more people avoid law school unless they are good bets to succeed.  So unless you have a coherent and plausible plan for the use you’re going to make of your law degree that is rationally justified by your LSAT and undergraduate grades, don’t go to law school.  If the only law schools you get into are ones with an acceptance rate north of 50%, don’t go.

If that makes me an idiot, I can live with it.  When all is said and done, though, I do have one thing to thank Elie for.  As Oscar Wilde memorably remarked, the only thing worse than being talked about is not being talked about.  I thank Above the Law for subjecting me to the lesser of the two evils. 

Bernie