Will it play in Peoria?

James Shadid, a federal judge in Peoria, IL has a dream: He wants to start a new law school at Bradley University (h/t LSTB).  Now the state of Illinois already has nine law schools, and indeed the University of Illinois itself is a mere 90 miles from Peoria.  So it's not as if kids who grow up on the shores of the Illinois River have to undertake a heroic quest to reach their long-cherished goal of attendance at an actual ABA-accredited law school: a fairly short drive down I-74 will do the trick.

But it's true that Peoria itself (pop. 115,007) doesn't have a law school yet.  This troubles Judge Shadid, who graduated from Bradley 33 years ago, and John Marshall Law School shortly after that, and who exhibits severe symptoms of Baby Boomer Delusion Syndrome.  It also troubles Gary Roberts, dean of Indiana University-Indianapolis's law school, and another Bradley alum:

 [Roberts] says the absence of a law school in Peoria means not just inconvenience for local would-be students, but added expense in that they have to pay room and board to study law. And whereas wage-earners in other, bigger cities can earn law degrees at night, that's impossible in Peoria.

"There's this large lacuna in the middle of Illinois where people can't afford law school," Roberts says.Roberts says the study showed that U of I law grads tend to head to Chicago or out of state, often to seek high-paying jobs, to better pay off massive tuition loans. But if tuition were kept relatively low at a Peoria law school, grads would be less beholden to big loans and more apt to seek work hereabouts, Roberts says.

This brings to mind a headline from America's most trusted news source.

There's a large lacuna in the middle of Dean Roberts' analysis, namely any evidence that there are people ready, willing, and able to pay for legal services "hereabouts" who are having difficulty securing such services because of a shortage of lawyers in the greater Peoria metropolitan area.  This hypothesis is implausible in the extreme.

Another gap in the data that needs filling is the answer to the question of how many people who live in or near Peoria aren't going to law school because, if there were a law school in Peoria, the savings produced by not having to pay for room and board would convince them to do so. Let's do a little math here.  Approximately .1% of the US population lives within a 45-minute drive of downtown Peoria. Assume this population contains an average number of potential law students.  This means about 45 people who live within commuting distance of our hypothetical law school enroll in all ABA law schools in America, combined, each year.

According to Roberts, the marginal value generated by Bradley's law school would be generated largely by the fact that it would allow people who live within a reasonable drive of Peoria, who currently aren't enrolling in law school because of cost considerations, to choose to enroll at a new law school in Peoria because they wouldn't have to pay room and board. (Of course these people still have to incur expenses for room and board -- what Roberts means is that they won't have to borrow money for these expenses because they will be gifted to them by long-suffering parents, or shorter-suffering domestic partners).

On average, how many people per year are going to fit this description?  Three.  (This is an estimate. It might be five). So the theory is that these three people per year who aren't going to law school now because of cost will go to this new law school where they won't have to pay living expenses, and will subsequently get jobs as lawyers in or near Peoria, thereby ameliorating the lawyer shortage in the Peoria area.

The other justification for starting yet another law school is that this school will burst the shackles of Langdellian pedagogy, by sending its third year class off into the world of legal practice:

Instead of taking classes during the third and last year, students would be placed in legal settings - with private attorneys, with county prosecutors and public defenders, or with corporations' legal teams - to assist on real cases.

I'm no expert but I suspect it's illegal for students to work for private attorneys or corporations for free, and that it violates ABA rules to give academic credit for paid work.  Beyond that, this innovative idea is of course merely a more elaborate version of the growing trend all across legal academia to turn the third year into an outsourced apprenticeship while still collecting another year of tuition.

Now for whatever reason I'm feeling optimistic this morning, and I doubt this proposed law school is actually going to come into being.  What's interesting to me are the motivations of people like Shadid and Roberts.  They don't appear to be in any position to profit from this school, at least in any pecuniary sense. (Indeed as a dean at competing law school Roberts' straightforward economic interest, however tenuous, would be to oppose this project).

Rather I suspect their motivations are more benign, which in a sense makes those motivations more dangerous.  What's going on here, I think, is that these Bradley alums want their alma mater to benefit from the "prestige" of having a law school.  The benefits they would get from this project are psychic, which makes it easier for them to interpret their own motivations as genuinely altruistic.  They really believe they would be doing their university and its surrounding community a service by starting a law school.

This idea, which to those of us who have passed over to the other side of this implicit debate is obviously insane on its face, seems to them eminently sensible.  After all, look how well things have worked out for them personally.  In other words, they really believe their own propaganda, which is the mark of a fully internalized ideology.  And people like that are way more dangerous than self-conscious scam artists, because they have moral righteousness on their side.

Getting to two

A lot of people think that law school should be just two years. I see a lot of sense in that proposal, but the usual strategy for getting to two (lop off the third year) is hard to achieve. It's not just that law schools will jealously guard that third year of tuition, which they will. It's also that bar leaders want law graduates to have more training rather than less. A few years ago I participated in a statewide task force on legal education, convened by our state bar association. Many of the practitioners began the discussion favoring a two-year degree. But, after detailing the content of this degree, most of them concluded that what they really wanted was a  three-year degree that included a year of clinical rotations. That's a good model, but it won't reduce the cost of law school tuition; nor will it solve the problem of too many JDs for too few jobs requiring bar admission.

The better way to create a two-year degree, plus generate a more realistic number of graduates with that degree, is to work from the other end. The MA proposal I floated yesterday is part of a strategy to move toward a two-year JD. Here's how:

Lifeboats

Law schools have seen the water spilling over the deck. But, as LawProf wrote this morning, most are still shuffling their deck chairs. Some have thrown a few chairs overboard, while charging more for the remaining seats. Others are adding a whole new deck, urging graduates to cruise for a fourth year. Still others are sending students off to swab the decks of merchant ships, while continuing to collect full tuition for first-class seats on deck.

Forget the deck chairs, it's time to build lifeboats. Here's a boat that a nimble law school could assemble in less than a year.  It won't solve all of the problems in legal education, but it would help students immediately, cost schools very little, and lay the foundation for future innovation. It doesn't require ABA approval, and central administration is likely to go along.

The boat: Give a master's degree to every student who successfully completes the first year of law school. That's the model that many PhD programs follow; a student earns a master's degree on the way to securing the doctorate. The first year of law school doesn't qualify students to practice law, but it represents significant academic achievement. By recognizing that work, schools can help both students and themselves. (Law Office Computing suggested this approach in a summer comment; my proposal also draws upon an idea floated by Akhil Amar and Ian Ayres last year. Amar and Ayres suggested a partial tuition refund for students leaving after the first year; I propose an MA for somewhat similar purposes.)

The benefits for students: The MA would give law students a needed boost of confidence at the end of the first year. Whatever their class standing, they have completed a rigorous year of study--and they deserve recognition for that. More important, the degree would give students needed flexibility in today's workplace. Students could continue their studies immediately to earn the JD; leave law school after one year with an MA in hand; or work for a few years before returning for the JD. To accommodate the last option, I would give students up to three years to return with no questions asked; they could petition to return after that point.

Note that students would not have to choose between the MA and a JD; all students who successfully completed the first year would receive the MA. A student who knew by the end of finals period that she hated law school might decide immediately to leave with her MA  --but she could still return within three years to complete the JD. Another student might enroll for the second year but decide to withdraw after completing OCI; that student would still have the MA and a chance to return for the JD. Yet another student might receive an interesting job offer after his second summer; he could accept the offer, work for a few years, and return later to complete his JD if that made sense professionally.

The benefits for schools: We would help our students cope with a difficult, unpredictable job market. We would also help all of them feel some measure of success--and control over their professional lives--at the end of the first year. If those altruistic benefits aren't enough, here are a few more calculated ones:

1. Our upper-level students would have more focus and commitment; they would choose to pursue the JD over a plausible alternative. That commitment may pay off in both the classroom and the job market.

2. If some students depart after earning an MA, that relieves pressure on the JD job market--and on the school's placement office.

3. Some of the students who choose to leave with an MA may be ones who would have had particular trouble securing post-JD jobs. They, and the school's placement statistics, will fare better with good MA jobs instead of unattainable JD ones. Schools should disclose employment results for students who leave with an MA, but they could separate those results from the JD ones. A student who secures an HR position after a one-year MA will have a more attractive outcome than one who gets the same job--or none--after a three-year JD.

4. Students who leave with the MA, work for a few years, and then return to complete the JD would add useful perspectives to the classroom.

5. Prospective applicants, including some of the most talented ones, have started to shy away from the high-stakes law school lottery. An MA-JD path is less risky, and may tempt some of these talented students back to law school. (This is the part that makes me, personally, a little nervous. I don't want to oversell law school yet again. But I think the student options mitigate that concern.)

6. A school that implemented this program quickly would almost certainly reap a bonus in the qualifications of its admitted students. If you were deciding between two law schools, wouldn't you go to the one that offered you a free MA at the end of your first year--along with the flexibility that degree would provide? In a time of declining applications and credentials, even a small bonus could significantly affect a school's entering class profile.

The costs for schools: Implementing this proposal will take paperwork, and maybe some wrangling with the central university. But the in-course MA is standard in many PhD programs; central universities should find this type of proposal palatable. They might even take it as a sign that law schools have finally figured out the proper order of graduate degrees.

Law schools will, of course, worry about departing upper-level students and lost tuition. But this program is one that can adapt to student choices. Over time, if the MA works for students, law schools may enroll more first-year students and fewer upper-level ones. There's nothing wrong with that. One way or another, the structure of legal education is going to change. This is one way to grab hold of the reins and try to stay on top of the changes rather than trailing behind them.

Schools will also worry about uncertainty; it's harder to plan your upper-level courses if you're not sure how many students will return to campus. But uncertainty is a given in the new economy, and law schools are already learning to deal with that. How many schools had to adjust the size of 1L sections or writing classes after admitting a significantly smaller class this year? Will we offer as many Evidence and Business Associations sections next year, when the 2L class is correspondingly smaller? We can learn to deal with enrollment shifts, just as other businesses do.

Benefits for the future: This proposal is a modest one; it doesn't cure the deeper ills of legal education and the job market. But, in addition to the immediate benefits outlined above, I think this proposal would help law schools measure the value of their education (What does the first year accomplish? What do the upper-level years add?), probe the connection between their classes and the new job market, and begin adapting their degrees. We are far too wedded to the three-year JD, a degree that many segments of the economy no longer value. Creating an MA for successful 1Ls will shake up our assumptions and help us move in new directions.

Shuffling deck chairs

NYU has become the latest law school to announce a revamping of the third year.  Three quick observations:

(1) Doing an externship in Buenos Aires sounds fun, while spending a semester working for a DC agency sounds useful, but why exactly are NYU students supposed to pay $51,000 to NYU for the privilege of having the school outsource its educational function to various exotic outposts?  When I spoke at Stanford last spring several 3Ls expressed their aggravation trending toward outrage that they were being charged a massive sum to spend another nine months in technical residence, when in fact they were so busy with outside projects of various kinds -- some for academic credit, some not -- that their classroom experience was largely symbolic, if not wholly fictional.  (Note to the ABA: the more elite the school, the more your absurd rules requiring classroom attendance are flagrantly ignored).

(2)  Lots of law schools are obsessing on pedagogical reform at the moment because tweaking the curriculum is easy.  What's hard is creating an economic model of legal education that makes sense, given ongoing structural changes in the employment market for law school graduates.  Improving skills training and making law graduates more practice ready, assuming for the purposes of argument that law schools as currently constituted could even do this in a significant way, do nothing to create more jobs for lawyers. The focus on curricular reform is essentially an avoidance mechanism for dodging the hard issues.

(3)  Even a school as resource-rich as NYU will continue to sail into increasingly stormier seas if the BigLaw world keeps contracting.  In this regard see this Bloomberg Law interview with Bruce MacEwen, summarized here.

Update: Related thoughts from Scott Greenfield.

LLM programs

Three years ago the CU law faculty authorized a pilot LLM program, offering the degree in three different areas.  The program hasn't been marketed at all, and is at this point tiny (we have five LLM students this year).  We're being asked to reauthorize it for a couple of more years, with the understanding that the school will start marketing it aggressively to both current law students and mid-career professionals.

I spent some time yesterday researching the issue, and discovered the following, much of which will not be news to better-informed readers:

(1)  ABA law schools currently offer more than 300 different LLM degrees (Here's a partial list).  Total enrollment in such programs grew from 3,069 to 5,058 between 1999 and 2009.

(2)  The typical tuition cost for these degrees is equivalent to a year's tuition in a school's JD program.

(3) Obtaining an LLM qualifies a foreign lawyer to sit for the bar in California, New York, Alabama, New Hampshire, Virginia, and the independent republic of Palau.

(4) Neither the ABA nor NALP ask schools to report any statistics regarding employment outcomes for LLM graduates, and as far as I've been able to determine no such statistics exist.

(5)  The conventional wisdom regarding the value of LLM degrees for American law school graduates is reflected in this flowchart.  (See also this characteristically mordant thread from JDU).

Indeed, American lawyers who make hiring decisions express views on this matter that, to put it mildly, put the "value proposition" of an LLM into severe question:

In fact, [Steven John, a managing director at Major Lindsey] said, advanced degrees in law — with the exception of LL.M.s for foreign-trained attorneys and tax LL.M.s — can actually hurt job candidates, because they may signal uncertainty about their career paths or attempts to avoid the reality of a difficult job search. Also suspect is when candidates study in areas that do not dovetail with their practice experience.

John said he asked his fellow recruiters at Major Lindsey whether they ever had a client specifically request candidates with advanced degrees — with the exception of tax LL.M.s — or whether a candidate ever secured a job because of an advanced degree.

The answer to both questions was no.

“The market has never demanded it,” he said during a panel discussion. “Advanced degrees never come into the conversation.” In fact, he added, some of his colleagues advise job seekers to leave LL.M.s off their resumes.

Nevertheless, it appears that, in these days of sharply declining applicants to JD programs, LLM programs are coming to be considered something of a godsend by cash-strapped schools.  Here's a bemusing quote from a two-year-old NLJ article:

Administrators point out that per-student costs tend to be lower for advanced law degree programs because the curriculum largely consists of classes already offered to J.D. students - meaning there is little need to hire additional faculty. "Are these programs a cash cow? Yes and no," said Indiana University Maurer School of Law - Bloomington professor Carole Silver. "The school gets a year of tuition and the LL.M. students fill in the seats in classes that would otherwise be empty."

 If you're wondering if Prof. Silver then went on to explain the "no" part, the answer is she didn't, or at least the story omitted that aspect of her explanation.

A few months ago I got a fascinating email from a faculty member at a low ranked law school, who described how the school's budget was being kept in the black by the importation of a couple of dozen Saudi LLM students every year. These students, many of who have at best questionable English language skills, are the sons of various oil-enriched princelings, and are bundled off to American educational institutions in appropriately scenic and  fun-filled locations, so that they will at least putatively have something to do.

I myself have no compunction about putting the Kingdom of Saudi Arabia's resources to such uses, but on the available evidence, marketing LLM degrees to American law students and lawyers appears to be close to a straight up scam, and I will be (no doubt quite fruitlessly) expressing this view to my colleagues when we vote on the matter tomorrow.

Review of the literature

Andrew Morriss has a review of Brian Tamanaha's Failing Law Schools (h/t Taxprof), which, while generally favorable, criticizes the book for, among other things, not doing more to place the law school bubble in the context of the higher education bubble.  Morriss himself provides the most salient reply to this criticism when he notes that "reviewers must take care not to criticize authors for failing to write the book the reviewer would have written."

It's true that the crisis of the American law school is a part of a much larger, much more diverse, and ultimately more important crisis within American higher education, and that this larger crisis is itself merely one manifestation of a yet larger crisis within the American economic and social system. And that larger crisis is a part of the yet bigger trans-national crisis of what is sometimes still called "late capitalism," but which most people now to tend to think of as "the way things are."

We must however all cultivate our own gardens, and the immensely complex issues raised by these broader topics could not be touched on except in a very superficial way in a book dedicated to discussing what's wrong with law schools.  And what's wrong with law schools is sufficiently differentiated from what's wrong with higher education/the American social system/international late capitalism/the universe that it's certainly worth writing about independently.  (None of which is to deny the urgent need for more critiques by academics in particular of higher education in America in general, or for that matter of work that focuses on putting the law school crisis in a broader social context).

In any case, the law school crisis is different from related broader problems in higher education in a number of ways.  Here's a quick, non-comprehensive list:

(1)  The educational debt incurred by law graduates is immensely higher than that typically incurred by people who go through the American higher educational system.  A recent estimate claims that only 3% of Americans who carry educational debt have loan balances of $100,000 or more.  By contrast, I estimate that the current national 3L class will graduate with an average of around $150,000 in total educational debt, and that people currently applying to law school will have on average more than $200,000 in such debt when they graduate.

(2)  Law schools have a dismal record of making misleading and sometimes outright false claims regarding the supposed long-term economic value of the degrees they're marketing.

(3) Law school is, generally speaking, a pedagogical mess.  Law schools purport to train students to be lawyers, while at the same time expanding and enriching the liberal education they've already received.  They tend to be bad at both, for highly predictable reasons, i.e., because law faculty are for the most part neither real lawyers nor real academics.

(4) Legal scholarship is on average remarkably bad.  The social value of an immense proportion of it is limited to providing occasions for law students to learn blue book rules of citation.  This is another product of the factors mentioned in (3), supra.  (Morriss tiptoes toward suggesting something like in his review, although in the most delicate manner possible, which is ironic given his criticism of Tamanaha for pulling his punches).

Law schools, in short, have their own special set of problems, although again contextualizing these problems within a broader social critique is important work, which largely remains to be done.

The limits of transparency

This post should be read in conjunction with DJM's post yesterday regarding employment outcomes at higher-ranked schools. It provides a glimpse of how bad things are getting in the lower tier.  The Florida bar association maintains a particularly useful attorney search engine, that enables all kinds of interesting sorting of data. (Update: A commenter suggests there may be problems with the search engine, and that it isn't listing some Barry graduates who are members of the Florida bar).  Here I'm going to look at what's happening to graduates of Barry University's law school, and what light this throws on the successes and limits of the law school reform movement.

Low-ranked law schools are intensely regional: if a Barry grad is going to get a job as a lawyer, it's almost certainly going to be in Florida.  The ABA statistics for the 209 graduates in the class of 2011 reflect this: of those Barry graduates who were employed, 114 had jobs -- not necessarily legal jobs of course -- in Florida, while three were employed in New Jersey, and two in Illinois.  This means there was no more than one 2011 Barry grad was employed in any other state.  Here's another bit of evidence of how local Barry is: there are a total of six Barry graduates currently barred in California.

144 Barry graduates took the July 2011 Florida bar exam, and 104 passed. An additional 31 took the February 2012 exam, with 24 passing.  Now we don't know how many of these people were class of 2011 graduates, but it's likely that the vast majority were.

Alarmingly, as of seventeen months after the class's graduation, only 70 out of 209 class of 2011 Barry grads -- 33.5% -- are currently members of the Florida bar.  Given that only a handful of the members of this class are likely barred outside Florida this suggests that, a year and half after graduation, less than half of the graduating class is even barred, let alone actually practicing law.

When we look more closely at what the third of the class that has a license to practice law in the state where the vast majority of Barry grads who ever practice law will do so, the picture becomes even more dire.  Here's what these 70 people are doing per their current bar registration:

2-5 lawyer firm: 21
Solo practice:  11

No business address: 5

51-100 lawyer firm: 5

State and local DA: 5

6-10 lawyer firm: 4

Two 2011 grads forming two-person firm: 4

Clerking for a solo: 3

100+ lawyer firm: 2

In-house: 2

21-50 lawyer firm: 2

11-20 lawyer firm: 1

Clerking for two-person firm: 1

Local government attorney: 1

Public Defender: 1

Guardian ad Litem: 1

Criminal Conflict Civil Regional counsel: 1

Note that the 90% of Barry 2011 grads who graduated with law school debt had an average reported debt of $137,680 (Barry was one of at least a half dozen schools that initially misreported their graduates' debt, reporting it originally as being less than a third of the actual number).  The $137,680 figure doesn't include accrued interest, which means that when 2011 Barry grads with law school debt took the Florida bar they were actually carrying around $155,000 in such debt. Nor does it include undergraduate debt, which means the average Barry 2011 grad probably had at least $175,000 in educational debt.

When you look at these numbers, it ought to be incredible that anyone is reckless enough to continue to enroll in a school where perhaps ten to fifteen out of 209 graduates were making as much as the (fictional) "median" salary for the national class of 2011 of $60,000 as reported by NALP, and where almost all the class was carrying well into six figures of educational debt.

And here we run up against the limits of transparency.  Barry's entering class this fall (296) is 42% larger than its graduating class of 2011, and 10% larger than its entering class last year.  The school achieved this deplorable feat by slashing it's already bottom of the barrel admissions requirements to something very close to an open enrollment policy: The entering class this fall has a median LSAT in the 33rd percentile for all test takers (a quarter of the class is below the 26th percentile, which is perilously close to a random score), while the class's median GPA of 2.92 is well below the average GPA of current college students, let alone prospective law students.

Now there may be practical limits to this strategy, even without serious federal educational loan reform (which would of course shut down the school almost instantly).  More than a quarter of Barry grads are currently failing the Florida bar, and the school's increasingly flexible admissions policy seems certain to drive that number quite a bit higher, to the point where even the somnolent ABA may bestir itself to do something about this disgraceful operation.

But let's not be unfair to Barry: after all, the school's statistics are not notably worse than that of dozens of other fully "ABA-accredited" institutions. And here's the real stinger, which ties in directly with DJM's post: Barry's wretched employment stats have far more in common with those of many a "top tier" school than the latter school's employment stats have with Harvard's or Penn's (which as DJM points out aren't so great any more either).

So yes, Barry should be shut down today if not sooner, but Barry is much more like the "average" law school than the average law school is like the tiny handful of schools which produce acceptable outcomes for an acceptable percentage of their current graduates.