Thursday, January 10, 2013

Answering my own question

No, of course this isn't the bottom.

The next step: Law schools themselves placing graduates in positions that require the graduate to pay a fee for the privilege of the experience, taking a cut of the fee from the employer, and then counting the graduates as being employed full-time in positions requiring bar admission.

A petition

The linked petition refers specifically to the present situation at Duke Law School, but could with very few changes be applied to almost any elite school.  (The situation at non-elite schools is of course almost invariably far worse).

I hope the petitioner succeeds in eliciting a conversation among members of the Duke law school community and its alumni regarding the state of the school. I also hope it helps inspire similar conversations at other law schools where the cost of the school's degree is now in a problematic relation to the benefits that degree confers -- which is to say at every law school in America.

Update:   The petition now includes a signature page.

A view from the bench

A federal judge has asked me to post the following comment on the state of legal academia and the legal profession: 



ON THE FAILURES OF LEGAL EDUCATION


        It is no secret that many lawyers are dissatisfied with their profession.  Of the million or so lawyers in the United States (more per capita by far than any other country) over half are said to be unhappy and giving serious consideration to leaving the practice of law.  A burgeoning industry of coaching, counseling, and career change assistance has developed to guide such people to new opportunities.  Facing declining applicant pools, law schools advertise that a legal education is worth its steep price irrespective of whether the graduate intends to practice law or engage in some other pursuit.  But a number of recent law graduates have sued their schools, alleging that the law schools misrepresent post-graduate employment opportunities, that few jobs as lawyers are available, and those jobs that are available pay substantially less than law schools have represented.  Indeed many law graduates are saddled with large student loan debts that place them in indentured servitude for years.  The average debt for recent graduates exceeds $100,000.00.

        Law professors are among the highest paid academics, and enjoy the newest buildings on ever-enlarging campuses.  Law schools employ many part-time adjuncts who teach large enrollment classes for meager fees, generating even more profits for the law school budget, and less teaching time for the tenured faculty.  Overhead costs for laboratories, equipment and floor space are nearly non-existent.  Yet the law schools are engaged in fierce competition for increased enrollment and that most elusive of goals:  academic prestige.  The annual ranking of law schools by U.S. News and World Report becomes the coveted benchmark.  Because law schools are profit centers for the universities, there is little external oversight of their operations.  The litany of ensuing dubious practices includes puffing up of enrollees' Law School Aptitude test scores and undergraduate GPAs, misleading and rigged graduate placement reports, and some not-so-subtle innovations such as paying stipends to recent graduates to work for free in courts, prosecutors' offices and private firms during the sampling period.

        A few brave and talented legal academics such as Paul Campos of the University of Colorado and Brian Tamanaha of Washington University St. Louis have risked becoming pariahs among their colleagues by exposing the failures and shortcomings of the law school institution.  Accused of failing to prepare graduates to enter the profession, the law schools attempt to address the issues through economic arguments.  Their students, they claim, are "practice ready," meaning law firms can shift their most basic investment in young associates from the corporate clients who are no longer willing to foot the bill back to the very institutions responsible for creating the glutted market.  In turn, graduates are forced to work long hours with less supervision on stultifying tasks at pay levels making service of their acquired debt nearly impossible, all for the promise of a partnership that has become a vanishing hope.  

        Recent accounts, such as Running From The Law by Deborah Arron assert that more than half of young lawyers leave the law knowing they have been lied to.  They have sought the law as a means of earning a comfortable and secure living.  They have been taught that academic standing in class increases one's job prospects.  The law schools have abandoned teaching that the most fundamental aspect of the profession is one of service.  When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee.

        Plato knew that people learn by example, and from demonstrations illustrating the lessons to be learned.  It is all well and good for law schools to offer courses in the substantive subjects of the law, but more fundamental to acquiring knowledge and forming character is the conduct of teachers and the institution they attend.  (Indeed the word "attend" literally means "to pay attention to.")  Just as bad parenting produces bad children who grow up to become bad parents, what the student sees and feels counts more than routines of "practice ready" performance.

        No wonder law students are learning to be materialistic and cynical, to consider the profession of law as gamesmanship, and merely a way to earn more money than the next person.  When law schools misrepresent LSAT scores and job opportunities, offer third year courses with little or no pedagogic purpose or value, engage in grade inflation and charge ever-increasing tuition and fees, students learn that fraud, dissimulation and ethical corner-cutting are acceptable standards of behavior.  When they learn of the gross separation in salaries and status and the relatively soft work schedules of the doctrinal faculty compared with clinical instructors with whom they have much closer personal contact, when they learn that adjunct faculty are paid pittances and used and abused as profit centers, when they see that school administrators outnumber scholars and that tenure is becoming obsolete, how can they not be expected to accept that this status quo is the criterion for the professional life?

        Law schools claim that pragmatism is the only way to address fierce competition.  To what end?  Making graduates "practice ready" is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student.  The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are "ready to commence to begin to start" to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives.  It is not to produce yet another cadre of cynical shysters grasping for more fees or a legion of those who flee the profession in despair. 



 

Wednesday, January 9, 2013

Cultural lag and personal responsibility

Somebody -- I think it may have been the most overrated philosopher of all time, J.S. Mill -- said that truth goes through three stages.  First it's mocked as absurd. Then it's declared to be against religion. Finally, it's said to be what everyone has believed all along.

I think we're getting to stage three in regard to the proposition that law school has turned out to be somewhere between a very risky proposition and a flat-out ripoff for the vast majority of people who are attending today and who have graduated in recent years.

This statement, which as little as three years ago would have been treated as either "crazy" or at the least a gross exaggeration by almost everybody in legal academia, is rapidly heading toward the status of conventional wisdom.  One sign of this is that a National Jurist poll of the most influential people in legal academia, which was conducted by surveying a group made up in large part of law school deans, has selected Brian Tamanaha as #1 on this list, with Bill Henderson as the first runner-up, should Brian for any reason not be able to fulfill his duties at some point during his reign.  (Modesty forbids me from pointing out that I won Mr. Congeniality).

Think about that: law school deans -- probably the single most status-quo regarding group within legal academia -- selected somebody who wrote a book arguing that the current model of legal education in America simply doesn't work any more, and is in need of radical reform, as the most influential person in the business.

In other words, the conventional wisdom about law school, both within higher education and in the culture at large, has been changing with lightening speed.  This is important to remember when people start reflexively victim-blaming recent grads and even current law students for not being more reasonably prudent rational maximizers of their own utility when they signed up for this thing of ours.

Consider, for example, the class that will be graduating this spring.  The class of 2013 applied to law school in the fall of 2009, which means that it is mostly made up of people who got serious about going to law school no later than 2008 or so, if not much earlier (it takes most people awhile to study for the LSAT, pull together letters of recommendation, etc.).

Think about what information was available to prospective law students five years ago about immediate outcomes for law graduates, let alone the long term career trajectories of aspiring lawyers.  Compared to today, there were almost no warnings about the fact that, because of the rising cost of law degrees and long-term trends in the market for attorneys, the net present value of a legal education had been declining for at least two decades, and was likely to continue to do so. Bill Henderson made his very first public observations about the bimodal salary distribution around this time. (This Tamanaha post at Balkinization, which is barely two and a half years old, indicates implicitly how little these trends had been recognized outside the still very underground world of scamblogging).

All of which is to say the extent to which responsibility for acting on what has suddenly become the "obvious" truth that law school is a high risk enterprise can be imputed to law graduates and even current law students is very limited.  Indeed the cultural lag time involved pushes me, at least, toward the conclusion that only people who enrolled in law school this year can be reasonably held responsible for having some realistic sense of what they are getting themselves into.


Monday, January 7, 2013

Diamonds in the rough

Over the past couple of years, the extent of the law school disaster has gradually become a matter of  public debate, and this fact is starting to hit law schools where it hurts. So some law school administrators and faculty have begun to fight back, by doing something other than posting anonymous comments on the internet.

They're putting their names to various arguments regarding why law school isn't really a bad investment after all, let alone -- heaven forbid! -- a "scam" (scare quotes required).  For this they should get some credit.  Unfortunately the quality of the arguments they're putting forth tends to confirm the harshest accusations of legal academia's most strident critics.

Check out these two train wreck threads, on JDU and TLS respectively, along with the thread I linked this weekend from the Faculty Lounge.  What we're seeing here is what happens when legal academics meet law school graduates and current law students on something resembling a level rhetorical playing field, as opposed the intensely hierarchical atmosphere inside law schools themselves.  The results aren't pretty.

A few general observations:

(1) Steve Diamond appears to be a big believer in "the market," which according to him is now self-correcting, as many fewer people apply to law school.  I can only imagine how exasperating these sorts of assertions must be to people like Kyle McEntee, Patrick Lynch, and Derek Tokaz, aka Law School Transparency.  The reason applications to law schools are collapsing is in no small part because LST has collectively invested literally thousands of hours of free labor in helping correct a massive market failure.  The market for law school seats has for decades suffered from increasingly severe distortions, many - although far from all -- a product of the lack of information transparency that has begun to be corrected over the past two years -- again, in considerable part because of McEntee's, Lynch's, and Tokaz's efforts.

And this market failure was hardly accidental: law schools were perfectly well aware that the easy availability of accurate employment and salary statistics would be a disaster for many of them, which is why they didn't disclose any more information than they were required to do by their "regulators" (i.e., themselves), which is to say almost none.  Shockingly, but not surprisingly, people like Diamond are now arguing that enough information was available for reasonably prudent applicants to figure out just how bad of investment a degree from his own law school was.

Leaving aside that the linked threads make clear that Prof. Diamond, J.D. Ph.D., seems quite incapable of figuring this out even now, this is pure revisionist history.  Until about 15 minutes ago there were no even vaguely reliable employment and salary statistics regarding outcomes for graduates of the vast majority of law schools.  That's one of the things that LST has worked so hard to change.  (There are still basically no reliable long-term data at all, although there's a lot of circumstantial evidence suggesting that long-term outcomes for graduates of schools like Diamond's are even worse than Santa Clara's dire NALP nine-month employment statistics).

(2) Given (1), what can one say about Diamond's assertion -- which he since tried unconvincingly to walk back as a joke -- that LST has been doing what they're doing for the money?  Note that he still won't shut up about LST filing an IRS Form 990, even though LST isn't required to do so, since the organization has essentially no income.

Speaking of jokes, Diamond's effort to play the martyr, on the basis of the claim that a throwaway line at the end of post at Constitutional Daily, suggesting that students not enroll in his classes in order to pressure SCU into getting rid of him, is one of the more preposterous things I've ever seem a legal academic try to get away with, which is saying something.

(3) Meanwhile Larry Mitchell doesn't seem to know how to quit when he's behind.  In the wake of his widely panned NYT op-ed on why "law school" (as opposed to, say, attending Case Western at the advertised rate) is supposedly still a good bargain, he doubled down in an interview with a skeptical journalist.  As helpfully transcribed and commented on by a TLS poster:

Interviewer: "The U.S. Bureau of Labor Statistics projects that there will be 74,000 new lawyer jobs opening up over the next decade. During that time, American law schools will graduate over 400,000 law graduates, so there's a massive oversupply problem."

Dean: "It's not clear to me there's an oversupply at all."

Interviewer: "Really, because that's like a 4-to-1 ratio."

Dean: "Well only 20% of the legal needs of poor people are being met. They should go [start firms that?] serve those people."

Interviewer: "But you can't do that if you're taking out six-figure debt."

Dean: "You know . . . you can and you can't. We've gotten into a situation where we measure the worth of higher eduction by the dollar return on the investment." [Goes on to talk about the value of doing what you love, and yes, the "versatility" of the JD.]
Oh my.  Note that Mitchell doesn't seem to have a good enough grasp of the statistics here to point out that the BLS estimate of oversupply is "only" 2-to-1, since the 74,000 figure doesn't include outflow from the profession.   Note too the extent to which he is properly savaged by just about every commenter at TLS, despite TLS being traditionally a far more genteel and establishment-defending venue than the shark tank at JDU, where Prof. Diamond being ripped to shreds was perfectly predictable.

If this is the best the defenders of the status quo can do, then we should all start polishing our resumes.*


*Joke#


#Sort of

Saturday, January 5, 2013

Various matters

I've been tied up this week by the latest flare-up in the fat wars (people who want to look at the data can find a long analysis here, a shorter, more technical one here, and the tl;dr version here), so this post is a quick round-up of some interesting developments over the last few days.

(1)  Recent law graduate Chris Fletcher has a very useful summation of the law school crisis in the Wall Street Journal.  Keep in mind that, as familiar as the statistics he's quoting are to regular readers of this blog, they remain only tenuously understood or largely invisible to many if not most prospective law students, so this sort of high-profile media exposure is crucial.

(2) This post by Bernie Burk at the Faculty Lounge generated a fascinating comment thread, in which regular ITLSS commenter Bored JD attempted to engage in consciousness-raising with a recalcitrant law professor.  I'm hardly a disinterested observer, but it seems to me the professor question could have benefited from an internet argument version of the mercy rule.

(In regard to Burk's OP I'm curious regarding his assertion that "there is no empirical evidence, and no coherent argument, that whatever you think law schools are doing wrong today made one-third or more of all entry-level law jobs suddenly disappear between 2008 and 2010."  NALP reports 28,890 graduates getting full-time jobs requiring bar admission in the class of 2008 and 25,654 graduates in the class of 2010.   Perhaps he means one third of big firm entry level jobs. Such jobs have always been a small minority of all entry level legal jobs, and the focus on that sector of the market tends to obscure that no more than two-thirds of all law graduates have been getting legal jobs of any kind -- and this number counts a significant number of what could more properly be termed "legal jobs" -- for at least a decade now.)

(3)  Also at the Faculty Lounge, Dan Filler says that the number of first-time takers of the December was down 16% from last year.  I don't know from where he's getting this number (LSAC makes total LSAT taker numbers public by month of administration, but doesn't to the best of my knowledge publish stratified data on first time takers versus repeaters per administration).  He also says October first-time takers were down 16.9% year over year (total administrations were down 16.4%).

(4)  I'd like to endorse to this comment from the always-insightful Dybbuk. 

Wednesday, January 2, 2013

Something new

From time to time, commenters ask for concrete proposals to change law schools--especially to reduce tuition costs. Professors and regulators are starting to ask the same question: What should we do about the problems confronting legal education?

On one level, the answers are easy: Lower tuition, reduce JD class size, embrace full transparency, and educate students effectively for the current workplace. But achieving those goals will require both discussion and specifics.

To support that discussion, I'm launching a new website called Law School Cafe. The site is a partner site to Law School Transparency, and Kyle McEntee (LST's Executive Director) is my co-moderator. We hope to have LawProf as a frequent contributor--and you'll have to put up with me continuing to contribute here. There's still a lot to criticize in legal education, even as we try to formulate some solutions.

I've designed the Cafe to be a cumulative resource, much as this blog has become. We're kicking off the site with a few proposals for discussion, and we'll add more on a regular basis. Our initial topics aren't necessarily the most important ones--or even the ones we personally care most about. They're just the sampler menu for the Cafe.

Please join us when you have a chance. I look forward to seeing you both here and in the Cafe.