When the levee breaks

Last year there was a bit of kerfuffle over the AALS's decision not to approval even one "Hot Topics" panel -- apparently more than one proposal was put forward -- on the crisis in legal education at the organization's annual meeting.  This year's meeting is in New Orleans, recently the site of the biggest natural disaster in modern American history.

The potential symbolism of the location seems to have been lost on the prosaic minds of the people who organize these kinds of things, who have put together a program that if anything pays even less attention to the fact that the house is on fire, and prefers to focus on whether the living room decor truly captures the spirit of Mid-Century Modern.

I've perused this 192-page document so you don't have to, and here's a complete list of everything in it that even alludes to the perilous state of legal education (perilous from the perspective of the people who pay the bills, of course. As Brian Tamanaha pointed out awhile ago, most law schools are still to external appearances doing "just fine" -- although not nearly as fine as they were doing a couple of years ago, before all the unpleasantness began):

Improving Student Well-Being Inside and Outside the Classroom

Moderator and Speaker: Robert P. Schuwerk, University of Houston Law Center
Speakers: Ken Brummel-Smith, M.D., Charlotte Edwards Maguire
Professor and Chair, Department of Geriatrics, The Florida State U U University College of Medicine, Tallahassee, FL
Susan S. Daicoff, Florida Coastal School of Law
Lawrence S. Krieger, Florida State University College of Law
Todd D. Peterson, The George Washington University Law School
Corie L. Rosen, Arizona State University Sandra Day O’Connor College of Law
Robin S. Wellford-Slocum, Chapman University School of Law

One or more presenters to be selected from Call for Papers.

This is a watershed moment for legal education. Law applicants, students and graduates confront a troubled legal market. Law schools, themselves targets of criticism, operate in atmospheres of hostility and distrust. Faculties, faced with declining law school applications and the budgetary constraints they impose, reassess the structure and value of their programs. This confluence of factors, albeit posing a challenge, also presents opportunity. If we were to reimagine legal education, what might we do to alleviate students’ well-documented distress, while at the same time better prepare them to navigate a changing legal marketplace?

Deaning in the “New Normal”

Moderator: David N. Yellen, Loyola University, Chicago, School of Law
Speakers: John Y. Gotanda, Villanova University School of Law
Wendy C. Perdue, The University of Richmond School of Law
Jennifer L. Rosato, Northern Illinois University College of Law
Frank H. Wu, University of California, Hastings College of the Law

Serving as a dean today is quite a different experience than it has been for most of the past two decades. To cite a few of today’s challenges:
1. Applications have declined considerably for two years
2. The job market remains weak, with some experts suggesting that this reflects not just
lingering effects of the recession, but rather a systematic restructuring of the profession
3. Law schools have received an unprecedented amount of negative publicity, on issues
including expense, the relevance of legal scholarship, and the quality of the training
we provide our students
4. A number of law schools have been sued, with more suits apparently planned
5. The U.S. News & World Report rankings continue to have a number of pernicious effects
In these circumstances, and with great changes in legal education potentially on the horizon, what does it mean to serve  What are reasonable goals and expectations for someone considering a deanship?
Business Meeting at Program Conclusion.

AALS Presidential Program
2:00 - 3:45 PM
[6315] Presidential Program
Law Schools and Their Critics
Law schools face intense criticism. The panel will examine the critiques and discuss what they mean for the legal academy.

Reignite and Renew: How to Rebuild Your Brand in a Down
Economy and Bad Press

Moderator: Michelle Allison, Thomas Jefferson School of Law
Speaker: Angela Dalfen, Golden Gate University School of Law

Standing out from other law schools has always been a primary marketing focus of most law schools. With a little over two hundred ABA-approved law schools from which prospective students may choose, distinguishing your school as “unique” is not always easy. Doing so can be more challenging when your school is faced with the reality of a struggling economy, less than optimal employment opportunities for your graduates and a barrage of bad publicity. This panel of law school professionals will discuss the impact these and other factors have had on the prospective student pool, their current student body morale and will discuss ways their school has retooled and revamped their image.

That's it.  The conference features dozens of programs, and hundreds of speakers, but apparently no formal discussion of: the state of the job market for law graduates, the student debt crisis, the financial structure of legal education, the fight for transparency within the ABA, the ongoing collapse of applications to law school, or anything else that, as Sam Johnson observed, would tend to concentrate an attendee's mind  (There is, to be fair, this stray sentence in the introduction to the day-long Presidential Program, which is dedicated to discussing "globalization:"  "These choices [to focus on "globalization"] have rightly raised questions about the relevance to our students and to the practice of law of such undertakings as well as issues of resource allocation when law schools should worry about the rising cost of legal education and student debt." This is the only mention of student debt in the entire conference program).

Of course it's possible these things will be discussed in the ominously blank "Presidential Program" dedicated to the topic of law schools and their critics (I will be curious to find out if any critics will actually be participating in this discussion).  And one would think they will inevitably come up in other sessions.  But as it stands, this glossy program and the multi-million dollar conference it advertises are both monuments to the remarkable level of denial that still marks much of legal academia, especially in its most official bureaucratic self-representations.

I take it there will be another call for "hot topic" panels in the next few weeks, and although organizing that kind of thing (or anything else) isn't my strong suit I think I'm going to put together a proposal.  It could be called -- just thinking out loud here -- Category Five.

Don't Go To Law School (Unless)

Several people have suggested that I write an e-book that prospective law students, their families, and current law students could consult in the process of deciding whether law school was a good idea.  DON'T GO TO LAW SCHOOL (UNLESS) was published today at Amazon (a print edition will be available soon as well).

As the acknowledgements recognize, the commenters at this site (who have collectively left more than 30,000 comments in the 13 months of its existence) contributed significantly to the book's genesis and composition.

Here's a National Law Journal article regarding it.

Over the past year I've spoken to many people who wanted advice regarding law school, and I'll continue to do so.  I hope they and others like them find this book useful.

Do you have any questions for us?

 "Yes -- how do you plan to keep your doors open, all things considered?"

This weekend Arizona State's law school hosted a conference for aspiring law professors, which featured Prawfsblawg's Paul Horwitz, along with 15 other law faculty, mostly from ASU and Arizona.  One topic which I've been told came up quite a bit in the discussions is how to handle the potential awkwardness of questions regarding the crisis in legal education.

Should a candidate doing screening interviews at the annual DC hiring conference raise the issue in that context, or even allude to it?  This is a tough issue, pragmatically speaking, given that there's a pretty compelling argument that half the schools at the conference ought to be closing their doors rather than hiring yet more faculty.

Take a look at this spreadsheet, which gives a very fragmentary glimpse into what various hiring committees are looking to do this year.  Chapman -- a massively overpriced law school with horrible placement statistics located in the middle of the most saturated legal market in the country -- is looking to hire three more professors.  Suffolk is looking for a few good men (or women).  Hofstra wants to fill two or three junior slots. And so forth.

It would be interesting to know what advice aspiring legal academics were given on this obviously touchy subject, especially since, law faculties being what they are, it's likely that many hiring committees include some people who remain in partial to complete denial on the subject (It's arguable that some level of denial regarding the future of legal education would almost be a prerequisite for being on most law school hiring committees at this point).

Anyway perhaps someone who was there can help shed light on this topic.

On a related note:

I'm an attorney practicing trusts and estates law in Oakland.

I need someone who can be available from time to time when I meet with clients to execute instruments. Your job will be to act as a "witness." Days and times are flexible, generally.

No pay. You won't have any duties other than to show up and bear witness to what's happening, so. . . yeah, no pay.

I offer more than nothing, though. Although now I'm a solo doing trusts and estates, I used to be at a firm doing complex civil litigation for big scary financial service industry clients. I can probably answer any questions you might have about practicing law in the real world. I can help you with your writing, and give you edits and suggestions on stuff you've written.

Also, if all goes well, you can use me as a professional reference, and I'll speak glowingly about you to prospective employers.

Email if you're interested. Thanks.

Polar bears

I talked to a 2009 graduate yesterday, a very talented lawyer from a top-50 law school. He has been working the document review circuit, which he described this way:  "I feel like a polar bear faced with global warming. Each job is an ice floe melting below my feet. I swim from one chunk of ice to the next, but the chunks are melting faster and the swims are getting longer. There are no bridges from here to dry land."

When he mentions his job to former professors, this lawyer told me, they often congratulate him on "getting good experience." These professors are clueless about how document review works, how temp agencies operate, and how difficult it is for lawyers to move from document review to other positions. For those who don't understand, here are the cold facts of life for a legal polar bear:

• Document reviewers develop expertise using computer programs to review documents. That expertise translates into nothing except using the same programs to review still more documents.
• Law firms hire outsourcing companies to staff their document review projects. A standard arrangement is for the law firm to bill clients $100/hour for this work and to pocket half; the firm pays the outsourcing company $50/hour; and the company pays the document review attorney no more than $25/hour.
• This financial arrangement is somewhat like the way in which firms leverage the work of associates--except for the very important fact that the document review lawyer has no way of moving up in the hierarchy. Under the conventional firm structure, the partners collect one-third of the associate's billings as compensation for training the associate and giving her access to client business. In document review, the firm collects one-half of the junior lawyer's billings, but with no interest in giving the reviewer advanced training, access to clients, or promotion opportunities.
• Even when reviewers impress the law firms they are servicing, they have little chance to move into full-time staff positions. The reviewer's contract with the outsourcing company contains a clause prohibiting the reviewer from working for any of the company's law firm clients for a full year after the temp job ends--unless the law firm pays the outsourcing company a stiff fee. Even a very talented document reviewer will not impress a law firm enough to justify that premium price, especially when the firm can continue profiting so handsomely from temporary workers. 
• The ice floes are melting faster because the computer software is getting slicker. Fewer attorneys are needed to supervise the latest programs. As fewer bears fit on each ice floe, more are left swimming in the sea.  
• Temp work does not, as some professors romantically assume, offer workers a "more relaxed lifestyle." The polar bears work 8-10 hours a day on relaxed projects; 10-12 hours a day on more stressful ones. Law firm associates may struggle to get time off for a friend's wedding, family illness, or other commitment, but it's even harder for the polar bears. The temp agency has no investment in its bears' professional development or well-being. If this bear won't produce on schedule, there are plenty of other bears swimming in that cold sea.

Legal educators may denounce the law firms and temp agencies for their unprofessional behavior: As members of a profession, shouldn't more senior lawyers be willing to mentor junior lawyers? Shouldn't they create jobs that offer training, professional development, and a chance for advancement--rather than simply the greatest profit for the outsourcing company and firms' partners?

If we're serious about the idea of a profession, rather than a business cartel, then of course they should.   But the same criticism applies to law schools. We, too, are part of the legal profession. We shouldn't be admitting the most students we can entice, for the highest tuition we can gouge, only to release our graduates into a workplace that we know offers many of them just polar bear jobs--or no jobs at all. The economy will support only so many legal jobs with the possibility for advancement.

The real polar bears are not faring well. Neither are the legal polar bears, even the ones from top-50 habitats.

Sunday papers

Updated below

In one of those remarkably smooth mental transitions that people whose salaries depend on not understanding something are adept at performing, the law school scam has been transformed almost overnight from something that didn't even exist, into something that was so obvious that those who fell for it should be blamed for their willful blindness (the key phrase here is "personal responsibility.").

This being legal academia, such claims tend to be made without the benefit of supporting evidence of any kind.   Therefore I did a Nexis search of the ALLNEWS database, to try to get a little data regarding the question of how much discussion there's been in the mainstream media of law school graduates facing employment difficulties.  I used a query designed to call up stories exploring the issue of whether law school was worth its cost, with the following results:

Stories in the English language mainstream media pulled up by this search making any mention of the possibility that law school might cost too much, given employment prospects for graduates:

2001: 0
2002: 0
2003: 0
2004: 0
2005: 0
2006: 1 
2007: 0
2008: 1
2009: 2
2010: 3
2011: 12
2012: 14  (so far)

At no time in the last decade have any less than three out of ten law graduates failed to get a legal job within nine months after graduation, meaning, of course, that at perhaps half of all law schools the ratio between graduates who got legal jobs and those who didn't was more in the neighborhood of one to one, even in the "best" of times:

Here are the percentages of graduates of ABA-accredited law schools who, according to the annual NALP survey, were employed in full-time positions requiring a law degree nine months after graduation in each year since 2001:

2001: 68.3 percent

2002: 67.0 percent

2003: 65.5 percent

2004: 65.1 percent

2005: 66.7 percent

2006: 68.3 percent

2007: 70.7 percent

2008: 67.2 percent

2009: 62.5 percent

2010: 59.9 percent

2011: 57.9 percent

Note that these percentages include temporary positions, including temporary positions created by law schools for their otherwise unemployed graduates.  They also exclude from the denominator the roughly six percent of each national class whose status was unknown.  In other words, even using an extremely generous definition of what constitutes obtaining a legal job, fully one-third of ABA law school graduates were not obtaining such jobs prior to the recent recession.

Of course it's true that law school tuition has increased fairly drastically over this decade, so a bad situation has become much worse.  But it also couldn't be more obvious that, to the extent prospective law students are somewhat better informed of the risks they're undertaking than they would have been even two (let alone five) years ago, this is a product of information regarding employment and salary prospects being made public, in the wake of media/political pressure that has required "the ABA" (again, in this context "the ABA" means the deans of low-ranked law schools who control the Section of Legal Education) and individual law schools to reveal data that simply wasn't available to the public until the last year or so.

Anyway it's striking how quickly the narrative inside legal academia has moved from "it's outrageous to call law school a scam" to "it's not our fault you believed our lies, because in retrospect they were so obvious."

Update:  This comment sums up the entire division of responsibility issue very well:

Enough with the binary thinking about which side is responsible. It should be obvious to anybody that both the law schools and the law students share responsibility. I don't know any law school graduate, including myself, who doesn't agree that we should have known better, should have done more research, should not have been so confident, should not have developed special snowflake syndrome, etc. These were hard lessons learned, but they were learned.

Now there are two types of taking responsibility in this world. There's saying that you take responsibility, and then there's actually paying the price for something. Right now, even though the blame should be shared between the law students and the law schools, the law students are the only ones paying the price. The students ARE taking responsibility, in the literal sense (as will the taxpayers eventually). The schools are not.

That's why the focus on this blog and in these comments is so heavily focused on the law school's culpability and what can/should be done about it. Not because they are the only ones to blame, but because they the ones who have yet to take any responsibility for their role in this. The students sure as hell have, and pay the price for their mistake every month.

 

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Hope and Change, Cook County Circuit Court Edition

Yesterday Cook County Circuit Court Judge Neil Cohen granted DePaul's motion to dismiss a class action suit brought by several DePaul graduates, who enrolled at the law school between 2003 and 2008, incurred massive student loan debt (one now has an outstanding balance of more than $300,000), and were either unable to get any legal jobs at all, or are doing very low-paid legal work that doesn't allow them to pay their loans in a timely manner.

The essence of Judge Cohen's ruling can be boiled down to this:

How many people are getting real legal jobs?

Real legal job = Full-time non-temp position requiring bar admission.

As a baseline, we can start with DJM's calculation that, according to the stats schools reported to the ABA and NALP, 59.8% of the class of 2011 whose employment status was known got full-time jobs requiring bar admission.  But it's clear the real number is far lower than that.

Factors that lower it:

(1) Six percent of the class had an unknown employment status.  It would be optimistic to assume that a third of those people got real legal jobs.

(2)  The default assumptions used by career service offices when they have incomplete data regarding employment status (which is often) is that the missing data is positive.  In other words, when there's ambiguity about whether a graduate is working full-time, or is in a long-term or bar required position, that graduate's job will be coded as full-time long-term bar-required.  This significantly overstates the number of graduates who have real legal jobs.  These assumptions are especially dangerous when applied to jobs with firms of 2-10 attorneys, which accounted for more than two out of every five law firm jobs class of 2011 graduates reported getting. Some unknown percentage of these jobs are law clerk positions, eat what you kill arrangements, or two or three new graduates sharing office space.  These distinctions are especially likely not to be made on NALP forms.

(3)  Evidence of employment is treated cumulatively.  Evidence of unemployment is not.  What this means is that a graduate who reports a positive employment status at any point between the spring of the graduate's 3L year and nine months after graduation is treated as employed, period. Graduates who report not being employed will have their status re-checked to see if it has changed.

(4) What counts as non-temporary (long-term) employment by ABA and NALP definitions doesn't actually track with a real-world definition of a non-temp job.  A job is considered long-term under these definitions if it has a duration of at least one year.  This means judicial clerkships are treated as real legal jobs, even though most of these positions are state district court clerkships, which in palmier days were often reasonable launching pads for legal careers, especially in regard to government jobs, but which under present conditions have morphed for most graduates into one-year way stations on the road to legal unemployment.

Note too that a certain number of "big law" positions in the NALP stats aren't really big law jobs at all.  A law professor writes:

At [mid first tier school], we have quite a number of 2009-2011 grads working with Baker & Hostetler.  Those are one-year contract positions, with the possibility of renewal, paying $75,000 per year for document work--but with benefits and a real office.  No one knows yet where--if anywhere--those jobs will lead.  Yet those are better than average in terms of salary!  (And they go into both our BigLaw counts and our salary averages.)

And then there are the folks going to the back offices of WilmerHale (Dayton Ohio) and Orrick (Wheeling W Va).  They're permanent, indefinite term jobs with starting salaries of $55-60,000 and benefits.  But where do those jobs possibly lead?  One can't be a discovery lawyer forever--and even discovery is getting more automated.

How many of the 4,767 jobs (10.7% of all law graduates) that law schools reported graduates of the class of 2011 got with firms of more than 100 attorneys were in this category? Nobody knows. (It says a lot that most current law graduates would consider these "premium" document review positions -- which at least feature one-year contracts, benefits, and offices -- to be "good" jobs).

Also, several hundred "full-time long-term jobs requiring bar admission" were one-year law school funded "jobs" designed to pump up NALP stats at places like Columbia and Virginia.

(5) 2.5% of the class of 2011 reported starting solo practices.  This counts as a real legal job if you're shilling for Cooley et. al. Otherwise not so much.

(6) Intentional misreporting on the part of law schools.  Confirming whether a school has been lying about the entering credentials of its students is easy, assuming someone bothers to check at some point.  Yet a couple of schools have been caught doing just that. Confirming that a school has been intentionally misreporting the employment status of its graduates would be difficult to do, even if the data reported by schools to the ABA and NALP were subjected to some kind of auditing, which they aren't.

All this adds up to the conclusion that, while we don't know what percentage of graduates are getting real legal jobs, it's far less than three out of five.  My back of the envelope estimate would be 35% to 40%.