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Friday, September 20, 2013

Notice to all law faculty: Read this Report

According to the ABA Task Force Report released today, you prawfs out there need to "Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play an Effective Role in the Improvement of Legal Education at the Faculty Member’s School."  So get to it!  (However, in a separate statement, Task Force member and former OSU Law Dean Nancy Hardin Rogers "see[s] no need" for such a command.)

Having endeavored to follow the Task Force's directive, I was somewhat surprised with the lack of data in the Report combined with its willingness to make sweeping empirical observations and reforms.  I saw no specifics in the report about attorney employment rates, law student debt levels, or law school tuition rates, or any analysis about how these might have changed over time.  There is no data about faculty salaries, faculty workloads, or faculty scholarly productivity.  There is no real discussion about what kind of education might be needed to be a 21st-Century attorney, and how this might differ from the education currently being provided.  Instead, there are pronouncements such as these:

  • "Prevailing law faculty culture, and the prevailing faculty structure in a law school, reflect the model of a law school as primarily an academic enterprise, delivering a public good. This entrenched culture and structure has promoted declining classroom teaching loads and a high level of focus on traditional legal scholarship." (p. 26)
  • "Rankings of law schools strongly influence the behavior of applicants, law schools, and employers. Some ranking systems (in particular U.S. News) purport to supply objective consumer information. However, little of the information used in ranking formulas relates to educational outcomes or conventional measures of programmatic quality or value." (p. 9)
  • "Law schools price a J.D. education by reference to their cost of delivering it, less revenue from other sources (such as endowment income or state subsidies). In general, law schools do not take market price as given and seek to manage costs on the basis of that market price." (p. 10)
  • "What is not reasonably disputable, however, is that the [ABA] Standards do not encourage innovation, experimentation, and cost reduction on the part of law schools." (p. 11)
  • "The current market forces now require more drastic changes for law schools than they have faced in the memories of current law faculties or administrators. Universities are requiring law schools to become financially self-sustaining, and competition for students and tuition revenue has come to resemble competition in the non-education economy. Many, if not most, law schools lack the expertise or the organizational structure to deal with these new conditions; some constituencies in law schools resist dealing with them; and in some cases universities are unwilling or unable to support law schools as they attempt to make a transition to a new market-oriented way of conducting their affairs." (p. 13-14)
  • "People are generally risk-averse. Organizations, which are composed of people, tend to be conservative and to resist change. This tendency is strong in law schools (and higher education generally), where a substantial part of the organization consists of people who have sought out their positions because those posts reside largely outside market- and change-driven environments." (p. 15)
  • "There continues, and will continue, to be a need for professional generalists. However, there is today, and there will increasingly be in the future, a need for: (a) persons who are qualified to provide limited law-related services without the oversight of a lawyer; (b) a system for licensing of individuals competent to provide such services; and (c) educational programs that train individuals to provide those limited services." (p. 23)

I think all those involved in legal education can roughly agree on two things: (a) over the last five years, the available legal positions have fallen significantly lower than the number of new graduates; and (b) over the last decade, law school tuitions have increased to levels that create unsustainable debt for new graduates.  Although these points are contestable, I think one would find large consensus about them as well as data to support them.  However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work, or that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis.  To make these much more contestable claims, there needs to be data and analysis to back it up.

As anyone who has written a term paper or law review article knows, the policy recommendations are always the "fun" part.  But the work is largely in establishing the facts and principles that make those policy recommendations compelling.  The Task Force Report is an almost entirely normative document, proceeding from certain descriptive assumptions and value choices.  I wish it had spent more time establishing the factual assumptions and value choices before moving into its rather specific and contestable recommendations.

Posted by Matt Bodie on September 20, 2013 at 01:56 PM in Life of Law Schools | Permalink

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"However, there is not consensus that the content and quality of legal education has failed to educate attorneys for their work..."

Among law professors, maybe. Otherwise, it's hard to understand why two of five firms surveyed in 2010 by ALM Legal Intelligence reported that clients had expressed reluctance about having junior associates bill time on their matters, or why 20% of 366 in-house counsel surveyed by the WSJ in 2011 said that they had simply refused to pay for the time of first-year or second-year attorneys. Or, for that matter, why 45% of all new JDs in the last five years who didn't land full-time/bar-required positions didn't simply open firms en masse to compete with established firms because they had been prepared so well for that outcome by three years of law school.

"...that cutting tuition and enrollment numbers are not themselves the best way to address the current crisis."

Tuition is being cut because prospective students are now much more aware of how risky JDs are from a career standpoint, and are bargaining harder than before. Enrollment is being cut because most law schools still believe that maintenance of their relative standing in the U.S. News rankings is the key factor in attracting prospective students, and the LSAT pool has shrunk to an extent that it's hard for most law schools to recruit the same number of students without accepting lower median LSATs. Let's not pretend that law schools planned for this, or somehow find it more desirable than enrolling the same number of students or more at the same price or more from last year, just because some shocking number of their new graduates don't get to practice law.

Posted by: Morse Code for J | Sep 20, 2013 4:49:20 PM

So MC4J thinks that firms that "simply refused to pay for the time of first-year or second-year attorneys" did so out of an objective, incontestable analysis that law school prepared them poorly.

Has (s)he ever heard of Kim Bobo's work on wage theft? Of course firms with bargaining power are going to drive down the pay of workers. They'll do it every way possible---characterizing people as unqualified, lazy, etc.

This is a power play, pure and simple. Why are there calls for eliminating the third year of law school? The firms just want more free labor---they'll take students in as interns the third year, pay them nothing, teach them nothing, but fire the paralegals they used to pay for scut work, and have third years do it.

Posted by: Corporate ShillAlert | Sep 20, 2013 5:08:35 PM

I'm sure you can refute my take on this by reference to articles where AmLaw 100 hiring partners praised their incoming attorneys' preparation so highly that they scaled back or eliminated in-house training since 2007. Another good place to look for support would be any number of surveys conducted by law schools of their recent graduates, in an effort to pinpoint areas for improvement by speaking directly to graduates about areas where they felt unprepared by their legal education.

Maybe I have a citation for you somewhere here on my desk. It's a little hard to find, what with all of these uncashed checks from in-house counsel lying all over the place.

Posted by: Morse Code for J | Sep 20, 2013 5:30:12 PM

I think a lot of the discourse on law student debt still approaches the issue as if educational debt were like credit card debt or a mortgage. Law students can borrow the full cost of attendance and but only repay a reasonable low percentage of their discretionary income (10% or 15% with newer students eligible for the lower rate) - and for students who work at non-profits or for the government their debt will be forgiven in 10 years under the IBR and PAYE plans. This is not the crippling educational debt that people remember - at least for those sufficiently savvy to make use of these easy to enroll in programs (which should include all law graduates). And educational loans nonetheless make a profit for the federal government (high earners and people with low debts are not eligible). Its a reasonable system for paying for expensive education that makes it both affordable for students and profitable for the government. Maybe we should consider the possibility that the system is actually working.

Posted by: Anon | Sep 20, 2013 11:56:26 PM

@Anon/11:56 p.m.:

Maybe law schools should just start charging a million dollars for three years, if absolute student debt has no meaning in a post-IBR/PAYE environment.

Posted by: Morse Code for J | Sep 21, 2013 12:37:57 AM

Morse Code, you're drifting toward troll status. While tuition at a number of schools might be quite high, it's qualitatively different than a million dollars (paging Dr. Evil?). There's a lot that can be fixed about law schools, and I'm all in favor of professors taking a critical view at what they're doing right and wrong, and changing how they do things. But all this talk of law school reform amounts, in my view, to a lot of unrealistic demands. For example:

--Make students practice-ready. That's great, but it assumes that what professors are teaching students is not valuable in law practice. That's certainly the case sometimes, but making practice-ready students also means teaching "theory", whatever that is. In fact, many of our students will become judges, legislators, government executives. I want them to know not only how to draft a motion to suppress, but also why we have the exclusionary rule in the first place.

--Eliminate the third year. Great! But how do we do that while making our students practice-ready? In addition, a lot of valuable learning CAN take place in the third year. If students choose to check out, that's on them. But they can also take a lot of important, core electives in their third year. For those entering criminal law, that could include: appellate practice, sentencing, law and science, and any number of additional courses. They might also want to take evidence and lots of other courses that one can't pack into one 2L year of electives.

--Tuition is too damn high! Well, maybe, but not at all schools. There are plenty of affordable schools out there if (1) students don't go for the school's prestige factor, (2) students are realistic about post-graduation salaries, which have always averaged much lower than Big Law has offered, (3) students are smart shoppers, and (4) students are realistic about their prospects during and after law school, and their ultimate debt load. Certainly some schools engage in a bit of up-selling and shady dealing. But to a degree, caveat emptor: if a student is willing to pay a tuition, then that legal education is valued at that price.

--Professors can't teach practice, because they're stuck in the ivory tower. For many professors, that's just untrue, and they're doing a lot to teach to practice. Other professors can teach some practice. Still others truly are stuck in the ivory tower. But shouldn't first-upon-graduation employers take some of the responsibility, as they historically have? I think that law school-employer partnerships may be key here--not blaming law schools for being slow to transition out of a paradigm that has existed for decades. Law schools are changing, but to expect them to change on a dime means that we should expect other players in the system to do so as well. That includes employers, legislatures (who can provide tuition relief through loans and grants), and students (they also need to take ownership of every aspect of their education).

There is so much more. In the end, however, I look at law schools as part of a much larger system that includes students, employers, the economy, fiscal priorities, and so on. Right now the blame is being placed squarely on law schools. While some of the criticisms are accurate and well-placed, some of the criticism is really just scapegoating to avoid recognizing systemic paradigm shifts that we all have a role in responding to. If anyone has a criticism about law schools, I for one would like to hear them, but please also include in your criticism how other players in the system contributed to the new reality, how they can and should respond, and how we can all work together to produce a new system that serves everyone better.

Posted by: Steven R. Morrison | Sep 21, 2013 1:51:23 AM

"But to a degree, caveat emptor: if a student is willing to pay a tuition, then that legal education is valued at that price."

Students aren't paying the tuition when they borrow $150-200,000 from the government. And it was only until very recently, as in this year, where schools were required by the ABA to post non-misleading job placement figures, debt levels, and scholarship retention rates.

"While some of the criticisms are accurate and well-placed, some of the criticism is really just scapegoating to avoid recognizing systemic paradigm shifts that we all have a role in responding to."

And this is a scape-goating comment in itself.

Law schools charge too much and enroll too much. Even in pre-2007 times, many lower-ranked schools were riding/hiding on the coattails of schools with better employment figures, as they loaded up their students with debt and put them into the economy with toxic income-debt ratios.

You are right that we do need to look at other things that have contributed to the problem, and nothing has contributed more to worsen the situation than the unlimited amount of student loans that law students can qualify for.

It allows for too many schools to remain open, and it allows anyone with a pulse to borrow hundreds of thousands of student loan dollars.

In a sane student loan moarket, would a 23 year-old college graduate with a 145 on the LSAT be able to borrow $150,000 to attend Cooley law school? Not to mention tens of thousands of other people who attend schools who have a less than 50% chance of earning $45,000-60,000 as a lawyer 9 months of graduation.

Posted by: Anon | Sep 21, 2013 11:45:55 AM

@Steven:

When I read things like this...

-- "(IBR is) a reasonable system for paying for expensive education that makes it both affordable for students and profitable for the government. Maybe we should consider the possibility that the system is actually working."

-- "There are plenty of affordable schools out there if (1) students don't go for the school's prestige factor, (2) students are realistic about post-graduation salaries, which have always averaged much lower than Big Law has offered, (3) students are smart shoppers, and (4) students are realistic about their prospects during and after law school, and their ultimate debt load. Certainly some schools engage in a bit of up-selling and shady dealing."

-- "The average law degree will return ONE MILLION DOLLARS over the course of a lifetime!"

...then I know that someone's point of view demands ridicule, to better minimize future absurdity.

Current tuition levels are qualitatively similar to a million dollars in that they generate a debt that a majority of graduates cannot repay without federal loan assistance programs - even when those graduates obtain the sort of jobs they came to law school to get. About 85% of the class of 2012 in full-time/bar-required jobs made less than $100k and 50% made less than $60k, per NALP. Balanced against even implausibly low-sounding reports of average student indebtedness upon graduation ($125k average for private schools and $75k average for public schools in 2011, per ABA), it would seem that at least 85% of the most recent class of *JDs employed in the law* will begin in IBR - i.e., by definition unable to repay their loans with interest over the "standard" 10-year period without help or substantial hardship.

As far as NALP can tell, the group with jobs in the law is still financially better off than the group that doesn't have such jobs: 49.3% of the class of 2012, to include the approximate 16% that is actually unemployed nine months after graduating. When you add context like the rate at which the legal services market grew relative to the number of JDs produced over the last five years, BLS' estimates of lawyers' salaries or the state of the economy more generally, it's harder to argue that a majority of JDs won't have a long-term dependence on IBR going forward than the reverse. If anyone has a persuasive argument that the cost for producing JDs should be much higher than most of the "successful" JDs can pay over 10 years with interest, I'd love to hear it.

I would love to see just one law school overreact in response to this report or any of the facts above. It would give me hope for the rest that are just going to do as little of the right things as the market forces them to.

Posted by: Morse Code for J | Sep 21, 2013 9:40:11 PM

I apologize for editing the following remark poorly.

"Balanced against even implausibly low-sounding reports of average student indebtedness upon graduation ($125k average for private schools and $75k average for public schools in 2011, per ABA), it would seem that at least 85% of the most recent class of *JDs employed in the law* will begin in IBR - i.e., by definition unable to repay their loans with interest over the "standard" 10-year period without help or substantial hardship."

Change to read:

"Balanced against even implausibly low-sounding reports of average student indebtedness upon graduation ($125k average for private schools and $75k average for public schools in 2011, per ABA), it would seem very likely that a majority of the most recent class of *JDs employed in the law* will begin in IBR - i.e., by definition unable to repay their loans with interest over the "standard" 10-year period without help or substantial hardship."

Posted by: Morse Code for J | Sep 22, 2013 11:01:37 AM

It's funny that these "paradigm shifts" usually happen in a way that benefits the people already at the top. When did the academy adopt so much corporatespeak?

Look, paying 150K of debt down on a 55K salary without PAYE is impossible, as is paying 250K or 500K. With PAYE, it's possible, just extremely difficult. Any law school advising their students about PAYE as a pitch to get them to enroll, in my mind, has not learned much from the past few years. PAYE requires 20 years of payments. The balance of the debt will rise considerably during that time. There's a huge tax bomb at the end. It may not even be around in 10, 15 years, or it may not be around in a form that law students (as opposed to the typical UG borrower with 25 or 35K in debt) can take advantage of. You can say that the government is not going retroactively repeal the program for current borrowers, and you might be right. But in that argument you're fumbling around in the dark like the rest of us, except you need people buy your argument and keep paying your salaries, which gets back to the credibility problem that law schools have.

PAYE presents a substantial branding problem for law schools. People don't go to law school to be obscenely rich, but they don't go to be scraping by either. What law student wants to be told that they're going to law school to spend 20 years in a government program for people with "financial hardship?" Who wants to live with six figures of student loan debt for 20 years? Would any of you take that deal?

"Its a reasonable system for paying for expensive education that makes it both affordable for students and profitable for the government. Maybe we should consider the possibility that the system is actually working."

Yes, the government should be in business of trying to profit off broke middle and lower middle class people. And the fact that the education is so expensive had nothing to do with affirmative choices made by people running law schools. That those choices could be undone to make the system much more attractive to potential candidates, and the profession would be better off for it, is of course not even a part of the equation.

Posted by: BoredJD | Sep 23, 2013 10:42:36 AM

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