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Wednesday, April 22, 2015

A (very) brief note on law employment statistics

You, reader, are in the wrong place for the debate over how law schools should present employment data.  Mike Simkovic has a long series of posts (I link here just to the latest, which in turn includes links to the earlier work), and Bernie Burk has weighed in here and here.  To digest, Mike says that it is reasonable for law schools to report "unemployment" figures using standard BLS definitions, which include part-time workers and workers employed outside law as employed.  Bernie says this is potentially misleading, since applicants probably also would like to know what share of the employed are full-time or in JD-required jobs.  Mike notes that the definition of unemployment can be googled (probably by an 8th-grader, but he says "by a college graduate") pretty easily -- a step, I might add, that might reasonably be expected of someone who is relying on data to decide how to spend 3 years of their life.  

I write this post, though, because for whatever reason Mike hides his best response to Bernie's point at the bottom of a long post: "There is a distinction between the potential for additional information to be useful and the stronger claim that summary information is inherently misleading."

Posted by BDG on April 22, 2015 at 09:41 AM in Current Affairs | Permalink

Comments

I would add the other best response that's hidden at the bottom, namely that we might ALSO find value in presenting additional or more granulated data in a non-confusing way, but that doesn't mean we should abandon standardization, which allows for comparison.

Posted by: Michael Risch | Apr 22, 2015 9:57:44 AM

OK, I suppose that's similar to the quote in the main post...

Posted by: Michael Risch | Apr 22, 2015 9:58:34 AM

There is also a distinction between saying the information "is not inherently misleading" because prospective students can figure out the full picture with diligent investigation, versus saying the information is "forthcoming in a way that meets high ethical standards."

On the latter point, here is a passage from Judge Quist's opinion dismissing the misrepresentation law suit against Cooley (echoed by other judges in lawsuits against law schools):

"The bottom line is that the statistics provided by Cooley and other law schools in a format required by the ABA were so vague and incomplete as to be meaningless and could not reasonably be relied upon. But, as put in the phrase we lawyers learn early in law school--caveat emptor."

That is hardly a vindication of law school employment reporting practices. The real issue here is whether law schools believe "caveat emptor" is the correct standard, or whether as academic and professional institutions we are obligated to meet a higher standard.

Thanks to new reporting requirements, much more information is available today than five years ago. Meanwhile, however, our credibility has taken a severe hit. This will not be repaired until law schools across the board strive to be completely forthcoming and about employment results. That is the standard Burk advocates.

Posted by: Brian Tamanaha | Apr 22, 2015 11:19:40 AM

The "it's just business" defense is pretty hard to swallow from an industry that receives enormous direct and indirect public subsidies. Similarly while labor economics is a perfectly valid field of study, it is hard to see how it ties into the scholarly mission of the legal academy. The business mission, sure, but I didn't think professors were generally paid through the PR office.

Posted by: John Ericson | Apr 22, 2015 11:50:36 AM

I can't believe this needs be repeated:

If you believe that the manner in which law schools were presenting graduate employment outcomes prior to approximately 2010 was reasonable and not misleading, you have a future in scientific research regarding the connection between smoking and lung cancer.

The legal academy has coasted on the cultural understanding of lawyers as successful middle class citizens. The marketing . . . I mean admissions department has misled a generation of graduates into 100s of thousands of dollars of non-dischargable debt in exchange for non-legal jobs or no jobs at all.

This is why law schools are losing smart applicants and gaining rubes.

If you're not trying to stop schools from monetizing the cognitive errors of 22 year olds, you should feel deeply ashamed of yourself.

Posted by: terry malloy | Apr 22, 2015 1:01:18 PM

Dear commenters: this is a mature discussion. Anonymous comments, in my view, are often not conducive to maintaining a tone of reasonable debate. Where comments are both anonymous and fail to maintain a reasonable tone, I will delete them. And yes, I reserve the right to determine "reasonable." In that spirit, I will warn BT and "JoJo" that you can identify yourselves or I will delete your comments.

I also don't think that "Terry Malloy"'s comments are especially fair, but I am a grownup and can take 'em. Our question is whether it is reasonable to present a statistic for "employment" that is based on a definition widely used by government and academic researchers. I don't think there is prima facie evidence for the proposition that the term is or was widely misunderstood, given the very ready availability of that definition. Whether one could say the same about all the data that are or have been presented -- e.g. mean salaries -- is another question. And I certainly agree with my fellow Brian that we should strive to present the most comprehensive and useful set of data we can, rather than just relying on the googling powers of our applicants.

But neither of these points is contrary to the simpler argument in my post, and in Simkovic's, which is that one can believe all these things without also claiming that the use of the BLS definition of "employment" is misleading.

Posted by: BDG | Apr 22, 2015 1:15:58 PM

BT

It is truly disheartening to see a law professor accuse me of "willfully lying" and suggest that I should be "brought up on charges of academic misconduct." I know that I am despised by certain circles of law professors, but your assertions are ridiculous. I invite you to put your case against me together and submit it to my dean (with your name attached of course).

You are correct that nearly all of the law suits have been dismissed. The grounds for the dismissal, as the quote from Judge Quist states, is that prospective students could not "reasonably rely" on the incomplete information provided and with more investigation could have figured out the true employment picture. For this reason the litigants could not satisfy the elements of misrepresentation and fraud.

I am not questioning the legal judgments in these suits. The point I raised is about the standards of disclosure law schools should hold themselves to. In my view, we should meet a high standard of transparency and fully forthcoming disclosure (which we are doing better at with the new ABA rules). You are free to disagree with my position, of course.

Posted by: Brian Tamanaha | Apr 22, 2015 1:32:15 PM

I never understood why professors of law - - a profession defined by conflict - - have such thin skins, always complaining about "tone" and "reasonableness of debate;" Especially in this kind of environment where the losers are saddled with hundreds of thousands of dollars in debt with little financial recourse, yet the professoriate is concerned about tone. To further cite "caveat emptor" with respect to employment statistics, but still complain about civil tone online further boggles the mind.

Personally, I would gladly trade an inconsiderate anonymous commenter's wrath for debt forgiveness. Otherwise, perhaps everyone should toughen up, as no one here is a naive 22 year old.

- Stan

Posted by: Stan | Apr 22, 2015 1:33:49 PM

For all practical purposes, the Thomas Jefferson suit is dead.
http://www.abajournal.com/news/article/judge_denies_motion_for_class_certification_in_job_stats_suit_against_law_s
http://www.abajournal.com/files/Order_Denying_Class_Certification.pdf

No class certification, because the evidence that students cared about the supposedly misleading employment statistics was too thin. Most of the students said they went to TJ to be in San Diego (location was the biggest factor cited) while they studied law or because they got a scholarship, not because of employment statistics.
No reliance, no causation, no class damages.

Posted by: TJ | Apr 22, 2015 1:56:48 PM

Well, there's a lot of lack of understanding going around, because I don't understand how the fact that there are larger issues in life means that it is improper to be concerned about civility. And given that you can be sanctioned for uncivil conduct in litigation, I don't think the concern of law professors in that regard is really atypical.

Posted by: Bruce Boyden | Apr 22, 2015 2:20:08 PM

Bruce, if you think any of the comments here have risen to a sanctionable level, well I don't really know what to tell you other than you're wrong. This is a debate about competing livelihoods: students who are choosing to do other things than study law and professors who depend on those students to pay their salaries. That things get heated in this decidedly zero sum game should surprise no-one.

Posted by: Stan | Apr 22, 2015 2:26:05 PM

BT, Wash U Policy, I don't get it. What, specifically, is the alleged misconduct?

Posted by: Orin Kerr | Apr 22, 2015 3:14:39 PM

This thread will remain "reasonable" because the purpose of the thread is to have a reasoned discussion. The purpose is not to offer a forum for nameless grievance-holders to air their grievances; I recommend your festivus pole for that. The norm of academia is that we treat each other and each others' ideas with respect. If you can't abide by that norm, you're not part of the community. And by tolerating your norm-breaking, I help to undermine the norm. That I will not do.

I have removed the comments that, in my view, failed to show a basic minimum level of respect for other participants.

Posted by: BDG | Apr 22, 2015 3:44:08 PM

Let me just add that this has nothing to with thin skin. It's about the terms of the debate and the nature of this forum. I am perfectly willing to tolerate comments that use logic, data, or other accepted tools of reasoned discussion to show that I am an idiot. Indeed, if I deleted all the postings that revealed my shortcomings, I would have to remove many of my own.

There may be issues for which loud and emotional outbursts are sometimes called for. Maybe this is even one of them. But not here.

Posted by: BDG | Apr 22, 2015 3:48:34 PM

Stan, just to clarify in case it's really required, I didn't say or imply that the standards for sanctionable conduct and inappropriate blog comments are the same, and I didn't say anything about being surprised, nor has anyone else.

Posted by: Bruce Boyden | Apr 22, 2015 3:54:25 PM

BDG,

Since you've spoken to the definition being readily available, would you mind saying what would indicate to a prospective student that the BLS definition is the relevant definition to use?

After all, there are many different definitions out there. What signals to students that a specific definition is being used (rather than a more fuzzy colloquial usage), and that it is the BLS definition, rather than Merriam-Webster's or the ABA's?

Posted by: Derek Tokaz | Apr 22, 2015 4:15:28 PM

The dictionary definition of employment is the same as the BLS definition. Employment = any paid work. The dictionary, BLS, and colloquial definitions are all the same, and if students didn't know and cared, they would have asked rather than making assumptions.

Posted by: BT | Apr 22, 2015 4:38:04 PM

"The "it's just business" defense is pretty hard to swallow from an industry that receives enormous direct and indirect public subsidies. "

That would be every industry in the country. Finance, real estate, energy, healthcare, aerospace, pharma, tech, construction. The amount of money the government is actually spending on healthcare and the military dwarfs anything they spend on higher education, not to mention the financial services bailouts and tax expenditures that go to help oil exploration.

So if our criteria is the bigger the subsidy, the higher the ethical standards, law schools and universities (except medical schols) are entitld to have lower ethical standards than most.

Posted by: BT | Apr 22, 2015 4:41:35 PM

BDG, can you really say with a straight face that the average 22 year olds or 25 year old applying to law school would somehow think to check whether the definition of employment, in the context of a professional school's disclosure materials, comported with the BLS's definition of employment used in statistical studies?

In fact, do you honestly think that the average 22 year old college graduate knows what "BLS" refers to?

I'm not trying to be facetious here, I'm legitimately curious as to whether you or any other professor remembers what your own thought process was when you applied to law school, because the level of initiative that you seem to credit prospective students with is just so beyond my own anecdotal experience.

Posted by: BoredJD | Apr 22, 2015 4:59:15 PM

I think the real issue is about the context of the communication. Maybe using the BLS definition without explicitly explaining as much is not precisely misleading, but (as pretty much every court in these cases has observed and everyone reasonable seems to admit) it is not exactly the clearest way of communicating the information given the context.

As the court in Harrish held (when denying a motion to dismiss the case against Widener by the by) it's not irrational for prospective student z when being handed a bunch of materials about how going to x law school will do y things for his/her legal career to assume that the employment numbers in those materials represent legal employment. I think many applicants, because of that context, assumed just that. Even if (as other courts have held) a reasonably prudent applicant would not make that assumption, it was certainly foreseeable to the schools disseminating the information that some applicants would read "employment" as "legal employment" given the surrounding context. A footnote with a sentence explaining "employment" meant any employment would have easily avoided this foreseeable, if not reasonably prudent, assumption on the part of those applicants. Yet, there was no footnote in many school's materials.

Thus, the real criticism is not with the BLS methodology in the abstract, but that using it in its context without further explanation is something that law schools should have known had the potential to confuse some portion of their applicants. If, as the court reminded NYLS in Gomez-Jimenez, law schools do in fact "have at least an ethical obligation of absolute candor to their prospective students," then schools not doing their best to avoid confusing their applicants was a failure to meet their ethical obligations to those prospective students. That's why, even if the way the information as conveyed met the standard of "barebones compliance with their legal obligations," using the BLS methodology in the way it was used was wrong and has been subject to such criticism.

Posted by: Former Editor | Apr 22, 2015 5:36:06 PM

BT, someone certifies every year to the IRS that the institution exists for some purpose other than maximizing the welfare of a cadre of senior employees. Defense contractors make no such certification.

We expect defense contractors and wall street banks to be rapacious, we should not expect the same from corporations organized as charities.

Posted by: John Ericson | Apr 22, 2015 5:38:10 PM

I agree with Brian T. and would go one step further: it's not just a question of what standards we're obligated to meet as academics and professionals, it's a question of what standards we choose to meet. How do we choose to communicate with prospective students? How do we want them and the public to view us?

Context matters. If a scholar cites employment rates in an article, she could assume that readers would apply the BLS definition (unless she advised them otherwise). When a law school puts a headline on its site reading "98% employed 9 months after graduation!" what does the law school assume readers will think?

If schools assumed that applicants would apply the BLS definition, the claim was laughably weak. Why were we bragging that, a full nine months after graduation, 98% of students who were actively seeking jobs had persuaded someone to hire them for at least one hour a week? Especially when the "someone" could be the law school itself?

The claims were literally true, but schools shouldn't have made them in the manner that some did. Why did we want to communicate with potential students in that flim-flam sales manner? I note, by the way, that schools differed greatly in how they portrayed employment statistics. Some were flamboyant, others were more moderate. But why are we spending time now defending these practices, especially since the defense seems to approve the most extreme of prior practices?

Posted by: Deborah Merritt | Apr 22, 2015 6:24:58 PM


Does anyone know of a tally of all the suits? It was my recollection, last I heard, that one or two suits might have survived but nearly all had been dismissed, often at the pleading stage. It’s also my recollection that more than one was dismissed on the element of reasonable reliance rather than on the objective truth of the law schools’ statements.

As for the notion that all the suits were rejected “emphatically” as “baseless,” that just ain’t so. For example, the decision in Gomez-Jimenez v New York Law Sch., 36 Misc 3d 230, declares, “We are not unsympathetic to plaintiffs' concerns” and finished with: “As such, "[t]his Court does not necessarily agree [with Supreme Court] that [all] college graduates are particularly sophisticated in making career or business decisions" (MacDonald, 880 F Supp 2d at 797). As a result, prospective students can make decisions to yoke themselves and their spouses and/or their children to a crushing burden of student loan debt, sometimes because the schools have made less than complete representations giving the impression that a full-time job is easily obtainable, when, in fact, it is not. [¶] Given this reality, it is important to remember that the practice of law is a noble profession that takes pride in its high ethical standards. Indeed, in order to join and continue to enjoy the privilege of being an active member of the legal profession, every prospective and active member of the profession is called upon to demonstrate candor and honesty in their practice. This requirement is not a trivial one. For the profession to continue to ensure that its members remain candid and honest public servants, all segments of the profession must work in concert to instill the importance of those values. "In the last analysis, the law is what the lawyers are. And the law and lawyers are what the law schools make them." Defendant and its peers owe prospective students more than just barebones compliance with their legal obligations. Defendant and its peers are educational not-for-profit institutions. They should be dedicated to advancing the public welfare. In that vein, defendant and its peers have at least an ethical obligation of absolute candor to their prospective students.”

And some of the law school practices that people found misleading were never tested in suits, as far as I know. For example, one school labeled inexplicably huge numbers of its grads as unemployed and not seeking employment and thereby reported stellar rates of employment for its grads—until their technique was widely derided. They stopped using the technique without explanation. The fact that no one sued doesn’t mean that the technique was honest.

Posted by: John Steele | Apr 22, 2015 6:58:24 PM

Merritt writes: "When a law school puts a headline on its site reading "98% employed 9 months after graduation!" what does the law school assume readers will think?"

Please identify a single example when this occurred? Or is it more exaggeration? What academic standard are you meeting with such a remark?

Posted by: Anon | Apr 22, 2015 9:29:39 PM

Only 16 members (out of 111 declarations gathered) of the purported TJSL plaintiffs class cited employment stats as the reason they applied to TJSL. The denial of class cert highlights the potential problems with the kind of highly tailored disclosures the critics bay on about and point to the advantage of standard classifications as advocated by Simkovic.

Posted by: Anon | Apr 22, 2015 9:35:41 PM

University of Iowa Career Services, 2008, claimed 99.02% employed in bold.

Loyola, 2010 - “97%+ within nine months of graduation.”

University of Miami 2010 - “Our most recent statistics show that 98 percent of UM Law graduates seeking employment obtained positions or pursued further graduate studies within nine months of graduation.”

that took 5 minutes to find.

Posted by: terry malloy | Apr 22, 2015 9:56:13 PM

it was 7% weighted average cost of capital, and the payback was 1,660 per month after taxes.

that's just shy of 20,000 per year in after tax money.

I made about 40,000 after taxes from my job, so I had 20,000 to pay rent, eat, and . . . wait I didn't have health insurance, or have the ability to save any money, or do anything but work all the time.

I assure you the anxiety disorder was and is very real.

I have a pretty good non-lawyer job now, and have managed to pay things off doing all those things you sai, but I'm flat broke in my late thirties.

Where is the entry point in the housing market for a guy with zero dollars?

I could have children, I mean, people had children in the ice age. It just isn't a financial sound decision.

I'm doing better than those poor folks in syria.

However, law school duped me and I'm not going to go quietly.

Posted by: terry malloy | Apr 22, 2015 10:11:54 PM

30 seconds with the Wayback Machine finds Santa Clara Law School featuring the following headline in its 2009 Viewbook (the primary internet recruiting device aimed at prospective students), published at the height of the Great Recession:

OUR GRADUATES ARE IN HIGH DEMAND. MORE
THAN 95 PERCENT OF SANTA CLARA LAW GRADUATES
ARE EMPLOYED WITHIN 9 MONTHS.

In 2012 the ABA started requiring schools to publish employment data (of a sort), which revealed that 20% of Santa Clara's 2010 class -- the earliest class for which statistics were required to be published -- was completely unemployed nine months after graduation, while only 42% of the class had full-time long-term legal work.


Posted by: Paul Campos | Apr 22, 2015 10:15:51 PM

"Only 16 members (out of 111 declarations gathered) of the purported TJSL plaintiffs class cited employment stats as the reason they applied to TJSL. The denial of class cert highlights the potential problems with the kind of highly tailored disclosures the critics bay on about and point to the advantage of standard classifications as advocated by Simkovic."

Why would students rely on any single school's salary statistics if every single school was claiming the same mid-to-high 90's employment figures (as the above posts show)?

And how does the fact students weren't taking employment stats into account back when school used the "standard classifications" creates a potential problem with the use of more detailed classifications? If you want to compare schools by "number of people employed according to the BLS definition of employment," instead of, say, "number of people employed at firms with over 100 lawyers" - is anything stopping you?

Posted by: BoredJD | Apr 22, 2015 10:18:49 PM

I think that many of the commenters make valid points, and that we're talking past each other. In the post, I used the present tense: it makes sense to me, prospectively, to report employment statistics using a definition that allows applicants to compare those data meaningfully to those reported everywhere else. And, of course, we should provide as much other data as we can, in the clearest way we can. I'd love to see schools display a CDF graph of salary outcomes, for example, since that would communicate the range of possibilities much more clearly and viscerally than medians or modes.

My own intuition is that the BLS definition of unemployment is not especially counter-intuitive, even if it appears in the context of materials addressing a future in law. The original post, I have to admit, probably aired that intuition a little too colorfully, and that probably has contributed to commenters' misreadings. But I certainly am not opposed to disclosing, clearly and prominently, the definitions of "employment" and other important terms.

To say this even more clearly, I have no interest in defending any school's past data-reporting practices, I didn't do that in the post, and I'm not planning to write another post that does so.

Posted by: BDG | Apr 22, 2015 10:27:37 PM

BDG,

I will admit to being a bit confused by your position. It is of course, true *as a general matter*, as you and Mike Simkovic point out, that "There is a distinction between the potential for additional information to be useful and the stronger claim that summary information is inherently misleading." But if the argument is that the value of summary information is that it allows for comparison across institutions, one still has to argue that *in this context,* summary information allows for useful comparisons. I am not sure it is compelling to point out that prospective law students could have looked up the dictionary definition of "employed" to realize that the summary information provided by many law schools obscured differences between kinds of employment that any reasonable person would have cared about. It still does not establish that the summary information provided is actually useful for the comparison you suggest -- and between two choices (providing the summary information versus breaking the data down even a little bit), it seems pretty obvious to me that the latter is more useful for the purpose you propose (i.e., making comparisons across institutions), and the former is not particularly useful but is potentially misleading. Of course, there are some occasions when making data more granular reduces the overall value of reporting the data -- it just does not strike me that this is one of those occasions. And if we truly are engaged in a discussion of what we should be doing going forward, not judging what people did in the past, I am not convinced that there is much value to the reporting of the summary statistics, to the exclusion of the slightly more granular data. Disclosing definitions but not the additional data, as you propose, does not really cut it, in my view. Put differently, if you (as in, you, the actual BDG) were looking at two law schools, both reporting 90% employment rates (and both clearly indicating that they meant the BLS definition of the word "employed"), would you conclude that their graduates experienced similar employment outcomes or would you ask for a breakdown?

Posted by: Alex Reinert | Apr 22, 2015 11:21:12 PM

I am not sure why the statistics for SCU are now part of this debate but the earliest data I can find on the official ABA site show for the Class of 2011 at SCU 79% employed in full time positions. Long term is not broken out for that year. Fwiw, the rate for Colorado, a tier one research university which owns its local market, was 82%.

Unfortunately our employment rate has not been as robust as I think it could be in the years since but I am not sure how that has anything to do with the debate being carried on here.

Posted by: Steve Diamond | Apr 23, 2015 1:31:44 AM

Currently, America's unemployment rate is 5.5 percent. Doesn't it strike everyone as a little absurd and misleading for a professional grad school to tout "employment numbers" that effectively mean little more than "our graduates join the labor force and participate in paid labor in roughly the same percentages as other Americans?"

Posted by: Jojo | Apr 23, 2015 7:03:51 AM

BT writes "The dictionary definition of employment is the same as the BLS definition. Employment = any paid work. The dictionary, BLS, and colloquial definitions are all the same"

BDG writes "the BLS definition of unemployment is not especially counter-intuitive"

The BLS counts you as employed if you did any work at all for pay or profit during the survey period.

Merriam-Webster defines unemployment as not having a job. I believe this is closer to the colloquial usage. This is quite different from BLS.

If you have gone 6 months without any paid work, then earn $30 watching your neighbor's kids for the evening, according to BLS you are employed. But, I don't think most of us would consider a one-off gig to be a "job" or "employment." (Merriam-Webster defines a job as "the work that a person does regularly in order to earn money," and a one-off gig is not regular.)

This distinction probably becomes most clear if you're actually collecting unemployment benefits. If you get a $30 babysitting gig while collecting unemployment, your benefits don't go away (at least not in some states). Instead, your benefits are reduced. You are thus employed for BLS purposes, yet still collecting unemployment benefits. That ought to signal to anyone that the definitions are quite different.

Another interesting little paradox are adjunct professors. If it's May and you just finished teaching, and you have a contract for classes starting in September, then in the summer you're unemployed for BLS purposes, yet you still have a job.

Also, there are people who fail the bar on their first try, and then do not take a job so they have more time to study for their second attempt. IIRC, either the ABA or NALP (or both) counts them as "Unemployed-Seeking." But, they wouldn't meet the BLS definition of seeking work, and would be counted as being outside of the labor force.

So, BDG, I'll restate my question. If prospective students were supposed to refer to the BLS definition of unemployment in order to understand law school employment data, what signals to them that this is the relevant definition to refer to?

Posted by: Derek Tokaz | Apr 23, 2015 8:20:55 AM

BDG,

That's a fair position but I think it merits a little bit of discussion about the subjectivity of intuitive judgments when evaluating the ethical conveyance of employment information to prospective law students.

You, Prof. Simkovic, and most law faculty members are extremely bright individuals educated at schools, undergraduate and graduate, of national and international academic renown. Most prospective law students, while bright and driven, simply do not have the same profile in terms of natural gifts and education. As a result, I don't think it particularly likely that what "is not especially counter-intuitive" to those with a profile like your own (or my own for that matter) is going to map very well to the intuitions of most prospective applicants to law school, particularly those who are likely to matriculate at a low-ranked school without a large scholarship to offset their risk. If we want to communicate clearly to that audience, which I think we all agree law schools have an ethical obligation to do, then the intuitions we need to be concerned about are not our own but those of the prospective law students who may not have the same gifts and training that we do. In fact, we need to be concerned with those most dissimilar to us in that group if we really want to be sure that what we are communicating is clear. And, given the magnitude of the decision our information is supposed to assist, we should be sure.

To use an admittedly trite example, if you, I, or Prof. Simkovic saw a sign in an exhibition hall that read "This Way To the Egress" with an arrow pointing to a door we would know immediately that it was the exit. But we should also know that some, perhaps large, portion of those who read the sign would think that on the other side of the door was something called an "Egress" and that the sign, although intuitive to us and factually accurate, has the potential to confuse a portion of its intended audience. If the sign-writer had an ethical duty of total candor to his readers, the sign would obviously fall short of that duty. I think that it would fall short even if the only people allowed to attend the exhibition had graduated from college and had dictionaries on their smartphones.

Now, I'm not accusing law schools of being like P.T. Barnum (who was actively trying to confuse his audience) but there is still a lesson here about how employment information should be presented to prospective students going forward (and how it should have been in the past). If the goal is to convey information in the way most clear, rather than simply to avoid conveying information in a way that meets our intuitions of "not inherently misleading," then the distinction you highlight in the original post seems to me to be a distinction without a meaningful difference, at least in terms of how we should frame our communications going forward.

When, in his recent series of posts, Prof. Simkovic writes "I do not agree that presenting standard summary statistics is inherently misleading or unethical" he seems to be arguing that the line for the ethical conveyance of employment information to prospective students is somewhere above "inherently misleading" to those who he assumes to have a similar profile to his own ("the sophisticated audience using the data —college educated, internet savvy adults") but below "as useful as we can make it" to the least savvy and sophisticated prospective student. In other words, the position he seems to advocate is that doing better than "not inherently misleading" is a good thing, but not an ethical requirement. I, and I think many of the other posters here, think "as useful as we can make it to the least savvy prospective student" is the ethical line and anything below it is a ethical failure. That distinction is why, I think, we seem to have been talking past each other. You appeared to agree with Prof. Simkovic's position on where the ethical line is drawn in the original post. Do you?

Posted by: Former Editor | Apr 23, 2015 9:07:01 AM

This is silly. I resist Derek's hypothetical, for reasons I'll explain in a second. But no one, certainly not me, and I am equally sure not Simkovic, would argue that we shouldn't clearly disclose the definition of "employment" if there is a chance it would be non-obvious to some readers. That is why I was so surprised by Bernie's comments. It's an incredibly innocuous position that Mike was taking. If you want to extend it back in time to defend the undefined use of the term, then it's not as innocuous, but I'm not doing that and neither were Mike's posts, as I read them.

Still, because I am the kind of person who could be arguing in his spare time, let me say that I think Derek's argument is very implausible. I concede that it is possible to construct scenarios in which some of the inputs into the BLS data don't fit with ordinary intuitions about "employment," as Derek does. But are those scenarios empirically significant? In other words, how much does it really move the number to include those who worked one hour during the survey period? If you show me that it's 15%, I will pay attention. If it's 1.5%, really, why are you wasting our time? Would it really change someone's decision about law school to know that, by the definition they intuit, employment rates are 73%, not 74.5%? And since *all* part-time work is less than 15%, in most cases, I doubt there are significant numbers of very low-hour workers in the BLS law employment number. But I am open to being shown I am wrong about that.

Posted by: BDG | Apr 23, 2015 10:37:35 AM

BDG,

We of course don't have granular enough data to tell for certain, but we do have at least one employment category that is highly suspect: jobs that are both part time and short term. I'm going to grab a few schools here as examples. The percentages are percent of total employed (not total grads):

Whittier: 5.2%
Golden Gate: 9.9%
Cal Western: 8.6%
Cal Hastings: 6.4%
Cooley: 5.3%
Valparaiso: 5.7%
UDC: 12.1%
Northeastern: 20.0%
CUNY: 24.3%
Penn State: 6.9%
DePaul: 6.2%
Washington and Lee: 12.8%
Hofstra: 8.0%
Santa Clara: 8.4%
NYLS: 4.0%
Villanova: 4.6%
UCLA: 4.6%
New Mexico: 5.5%
UC-Davis: 13.4%
Colorado: 6.9%
Boston U: 11.9%
Florida: 6.3%
USC: 7.1%
Boston College: 6.3%
Fordham: 10.6%
BYU: 6.7%
Memphis: 6.8%
Case Western: 10.7%
Nova Southeastern: 5.7%
Vermont: 6.2%

Perhaps you'll disagree, but this looks pretty empirically significant.

Posted by: Derek Tokaz | Apr 23, 2015 11:13:40 AM

BDG,

I think we must be reading Prof. Simkovic's 4/21 post quite differently. To my reading, he is clearly advocating that it is ethically permissible for law schools not to include an explanation of the term "employment" in their materials so long as the definition being used to calculate the figure presented is the "international standard definition" which includes all types of employment. What else can the sentence whose footnote you quote in the original post possibly mean? That sentence reads: "Similarly it is not necessary to explain to college graduates contemplating law school what employment means when using the international standard definition of employment."

I'll give you that Prof. Simkovic would probably not be opposed to including the definition in those materials but the concern here (and that part of his post) is about whether including the definition of "employment" in law school promotional materials is ethically required when using the BLS definition. It's equally clear that he does not believe that disclosing the definition in those materials is, in fact, ethically necessary even if that standard definition is unknown to the reader when he is looking over what the law school has published. He writes, immediately after the sentence quoted above, "College educated individuals who are unfamiliar with standard terminology can easily look up or inquire about the relevant definitions, and once they have learned, can begin to understand a world of data."

I can understand if you don't want to take his position and I'm open to being convinced that he means something else, but I just don't see what that could possibly be.

Posted by: Former Editor | Apr 23, 2015 11:46:59 AM

The NY Supreme Court already laid waste to the argument about this kind of data emphasizing the subjective nature of the requests for more breakdowns as being problematic. Why are we wasting time re-litigating this now? Presumably the only form of disclosure that will be satisfactory to the critics is the one that makes money for LST. How much should future students have to pay LST for this service?

Here is a helpful excerpt from the Brooklyn Law School opinion dismissing the complaint:

[T]his court concludes that the challenged statements are not objectively deceptive, and therefore, BLS's conduct does not violate GBL §§ 349 and 350. At the outset, it must be noted that nowhere in the Complaint do plaintiffs allege that the aggregated statistics were literally false. Rather, plaintiffs claim that it was misleading for BLS to report aggregate results (though truthful on their face), both because BLS did not disclose that the employment data included temporary, part time and non-legal jobs, and because, with respect to salary data, BLS did not reveal that the limited number of graduates who responded were targeted because of their success.

"However, the exhibits attached to the Complaint as evidence of BLS's duplicity appear to give more information than plaintiffs acknowledge. While BLS does report, as plaintiffs allege, an overall employment rate, BLS further breaks out the employment data into 6 employer types, including, Law Firm, Judicial Clerkship, Corporation, Government, Public Interest and Academia, and provides the percentage of responding graduates who were employed in each of these six categories….

"With the exception of Law Firm and Judicial Clerkship, however, the court does not see why plaintiffs assumed that the remaining categories excluded positions other than those for which a JD is required.

"Indeed, it has long been conventional wisdom that a law degree affords its owner much greater flexibility than most other graduate degrees and that many people pursue a law degree without ever intending to practice law, a consideration for which plaintiffs' narrow interpretation of the aggregated statistic makes no allowance.

"Another New York court, faced with similar allegations against a law school, has gone further, criticizing those plaintiffs' definition of "employment" as too "subjective" and observing that "it is difficult to envision how [plaintiffs] could reasonably have expected any single published statistic to comport with all of their assumptions and expectations regarding legal employment." See Austin v Albany Law Sch. of Union Univer., 2013 NY Slip Op 23000, 957 NYS2d 833, 841 (Sup Ct, Albany County 2013).

"Putting aside this consideration, the interpretation that plaintiffs attribute to a generalized employment statistic, which does not differentiate among legal and non-legal and full-time and temporary positions, has been ruled as unreasonable as a matter of law. See Gomez-Jimenez v New York Law Sch., 103 AD3d 13, 17 (1st Dept 2012) (affirming dismissal of similar GBL §§ 349 and 350 claims against law school because, in part, "defendant made no express representations as to whether the work was full-time or part-time"), lv denied 2013 NY Slip Op 68698 (Mar 28, 2013); see also Andre Strishak & Assoc., P.C. v Hewlett Packard Co., 300 AD2d 608, 609-10 (2d Dept 2002) (manufacturer's switch from large-size to economy-size ink cartridges was not a deceptive act when box containing printer simply stated, without further details, that an ink cartridge was included). To the contrary, "basic deductive reasoning, informs a reasonable person that the employment statistic includes all employed graduates, not just those who obtained or started full-time legal positions." MacDonald v Thomas M. Cooley Law Sch., 880 F Supp 2d 785, 794 (WD Mich 2012)…."

Posted by: Steve Diamond | Apr 23, 2015 12:11:18 PM

The forms of disclosure LST most strongly calls for are ABA and NALP reports. Posting the data costs schools no additional money, nor does it generate revenue for LST.

Posted by: Derek Tokaz | Apr 23, 2015 12:45:37 PM

If it doesn't literally violate the law it must ethical, amiright Steve Diamond? Do you also by any chance sell used cars?

Posted by: John Ericson | Apr 23, 2015 1:16:34 PM

BDG, Mike's recent posts on this issue open with the statement: "The moral critique against law schools comes down to this: The law schools used the same standard method of reporting data as the U.S. Government." He clearly was defending past practices like the Santa Clara viewbook mentioned by Paul.

It's possible that Mike has never seen examples like that one and never imagined that schools would publish something quite that PT-Barnum like. But they did, and Mike's post was clearly retrospective. In fact, he cited me--not Bernie--as someone who had unfairly accused schools of being unethical.

I'm not sure why Mike decided to reopen an issue that law schools settled years ago, but he did. And he clearly argues that there was no ethical concern in publishing data in the form that schools used at that time. Groups develop their ethical standards from the stories they tell about their own past and present behavior, so I find this re-telling of the past troubling.

Posted by: Deborah Merritt | Apr 23, 2015 1:34:44 PM

John,

You miss the point (perhaps on purpose since it is perfectly clear). Two NY courts agreed that given the multitude of subjective interests any law school applicant may have in the possible career impact of a JD there is no way to provide tailored disclosure that would match all applicants. That is why Mike Simkovic's defense of using a single standard approach is perfectly sensible and no doubt why it has incurred such derisive attacks here and elsewhere. Of course, that good sense happens to threaten the livelihood of LST and the handful of law faculty who now make their living attacking law schools.

Posted by: Steve Diamond | Apr 23, 2015 2:43:11 PM

Steve,

Who currently makes their living attacking law schools?

Posted by: Derek Tokaz | Apr 23, 2015 3:06:11 PM

Moving forward, law school stats should be fairly reliable. But as long as we're stating (or re-stating) the historical record, people might want to read Ben Trachtenberg's "Law School Marketing and Legal Ethics" for detailed examples of what was going on.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192694

Posted by: John Steele | Apr 23, 2015 3:17:21 PM

No, no, no you don't understand. Some people are independently wealthy and want to go to law school for the sheer intellectual joy of it. The existence of such unicorns totally justifies misleading the rest of potential applicant pool.

All the law schools acted ethically, more than ethically saintly, at all times. It is the dastardly critics with their supposed money making schemes that are the unethical actors here.

Posted by: John Ericson | Apr 23, 2015 4:04:05 PM

Derek, Who drums up hits to his website by calling for the dismissal of law professor for expressing an opinion?

Posted by: Steve Diamond | Apr 23, 2015 4:27:18 PM

Steve, will you donate to LST so that I can take a salary from it? I would love to make money for doing this work!

You've been corrected over and over about these matters. At this point, I can only gather you're intentionally forgetting.

Posted by: Kyle McEntee | Apr 23, 2015 5:07:11 PM

Steve,

First, my own blogging activity is separate and distinct from LST.

Second, let's not beat around the bush here; the law professor you're referring to is yourself. The posts criticizing you amount to about 0.2% of the site's total traffic. That ain't much of a drum.

Third, my blog doesn't come remotely close to earning me a living. If I increased blog revenue by 1000%, it would be enough to just barely clear the poverty line. But I suppose if you prorated the hits, the posts about you amount to something like $7.50. Thanks Steve, I can almost buy a Chipotle burrito (no guac though).

So let me repeat the question: Who currently makes their living attacking law schools? And allow me to pose a second question: Are they hiring?

Posted by: Derek Tokaz | Apr 23, 2015 5:44:00 PM

Well I am glad to see the folks from LST admit they get paid next to nothing as in my view they add next to nothing of value for prospective law students. (Of course, they remain remarkably untransparent themselves - still no full disclosure of their 990s or their ties to plaintiffs' counsel suing law schools.)

Prospective law students are far better off talking directly to law faculty, practicing lawyers and the professional staff of law schools than relying on third party sources. They should also, of course, absorb the data provided by Simkovic and McIntyre in their latest paper, Timing Law School, which makes clear that all the hoopla about law school from the critics is largely irrelevant.

Posted by: Steve Diamond | Apr 23, 2015 6:17:04 PM

Steve, the only people in any forum advocating for more students to matriculate to law school are faculty such as yourself. And given the unmitigated disaster that is SCU's employment prospects, I suggest that you refrain from encouraging anyone to attend law school, unless your goal is literally to destroy their life as law school has done to mine.

This are real people with real lives that are ruined by $200k in non-dischargeable debt. I will never have a house or afford to raise children because of my choice to attend law school, a school that has far better outcomes than your institution I might add.

Just be quiet. The more you speak the uglier you make this once noble profession seem. Stop causing harm.

Posted by: Stan | Apr 23, 2015 6:27:03 PM

Finally, Stan, an honest law school critic willing to admit that your goal is to just, well, get us all to "shut up." Thank you.

Posted by: Steve Diamond | Apr 23, 2015 6:53:20 PM

I can only hope that others, like Steve Diamond, will contribute to LST based on what they perceive as the value it has provided.

Posted by: Derek Tokaz | Apr 23, 2015 7:15:18 PM

Stan,
Unfortunately you can't get those 3 years or the tuition dollars back. However, the more Professor Diamond speaks, the less likely it is people will enroll in law school, especially those comparably ranked to where he teaches. In fact some of his arguments are so laughable that I wonder if he's a stealth scam blogger.

"Prospective law students are far better off talking directly to law faculty, practicing lawyers, and the professional staff of law schools"

Right- those thinking of enrolling in law school should listen to those who stand to benefit financially from getting a prospective applicant to enroll. This explains, in a nutshel, the pathetically weaker credentials of today's incoming law students (outside of the top law schools) versus a decade ago, because anybody who'd fall for that pitch clearly lacks critical thinking (or thinking) ability.

Professor Diamond, care to explain why someone should enroll at Santa Clara Law over say Yale Law or Boalt Hall? I look forward to your response Professor.

Posted by: Cent Rieker | Apr 23, 2015 7:16:37 PM

Good point. You'll also notice that Santa Clara law doesn't hire Santa Clara graduates to teach there. Wonder why that is?

Posted by: artful | Apr 23, 2015 7:50:25 PM

Stan: "I never understood why professors of law - - a profession defined by conflict - - have such thin skins, always complaining about "tone" and "reasonableness of debate;" Especially in this kind of environment where the losers are saddled with hundreds of thousands of dollars in debt with little financial recourse, yet the professoriate is concerned about tone. To further cite "caveat emptor" with respect to employment statistics, but still complain about civil tone online further boggles the mind.

Personally, I would gladly trade an inconsiderate anonymous commenter's wrath for debt forgiveness. Otherwise, perhaps everyone should toughen up, as no one here is a naive 22 year old."

I'm not going to accuse anybody here, or anybody whose work is under discussion, of being dishonest, but I do believe that dishonest people tend to fall back on'civility' when the truth hurts.

Steve Diamond's law school classified a ridiculous percentage of recent grads as 'unemployed and not seeking work', right up until the ABA stop letting law schools get away with that. The next year, that percentage declined precipitously.
That's a very, very odd thing if his law school was honest, but exctly what was to be expected if his school was dishonest.

Posted by: Barry | Apr 24, 2015 7:49:12 AM

To remind: I am happy to leave up comments that make tough but substantive points. I will not leave up comments that engage in personal attacks, or that otherwise fail reasonably to respect other conversants as real people with views that, while different from ours, are worth engaging. And I certainly will not leave up such posts if they are anonymous. Further, I won't be shamed into retreating from this position by implications that professors are using "civility" to protect ourselves from criticism. Please, criticize. I will note that I have taken down comments both attacking and defending law schools.

Posted by: BDG | Apr 24, 2015 11:00:32 AM

BDG - you deleted one of my comments in which I outline the real effects of a legal education on my life. At no point was I impolite, did I use course language, or otherwise engage in "out of bounds behavior." In fact, all I did was ask Steven Diamond to stop causing harm, yet you deleted it.

Please re-post it for your readers to decide (it is included below). If it is in poor taste, that will do nothing besides make me look bad.

- Stanley Golding

---
Steve, the only people in any forum advocating for more students to matriculate to law school are faculty such as yourself. And given the unmitigated disaster that is SCU's employment prospects, I suggest that you refrain from encouraging anyone to attend law school, unless your goal is literally to destroy their life as law school has done to mine.

This are real people with real lives that are ruined by $200k in non-dischargeable debt. I will never have a house or afford to raise children because of my choice to attend law school, a school that has far better outcomes than your institution I might add.

Just be quiet. The more you speak the uglier you make this once noble profession seem. Stop causing harm.

Posted by: Stan | Apr 24, 2015 11:13:23 AM

These personal attacks and irrelevant arguments have all been carefully and exhaustively answered on my blog (see LUN) and elsewhere. Please take the time to read them and then consider whether it is worth going through this stage of your life associating yourself with folks like LST or Professor Campos. They are leading you down a dark alley. My personal advice is that your energy would be better spent elsewhere.

Posted by: Steve Diamond | Apr 24, 2015 11:36:35 AM

Steve, has there been an explanation of (1) Santa Clara's use of the "not looking for work" category that resulted in its having a better employment rate than Harvard; and (2) being in the top ten of the scholarship non-retention rates?

As you know, I've taught legal ethics there as an adjunct many times and I have tried to find out the story behind those two matters. My students were well aware of them and considered both of them highly deceptive. It eroded trust, to the say the least. So what are the facts behind those policies?

Posted by: John Steele | Apr 24, 2015 11:48:31 AM

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