August 04, 2013
The ABA Task Force Working Paper (WP) on "the Future of Legal Education": the Key Recommendations
Sections VII and VIII contain the key recommendations of the Task Force. Section VII is billed as "themes addressed to all parties," of which there are eight key ones (excluding the final recommendation that the Task Force's work be "institutionalized" within the ABA). Three strike me as excellent and overdue, namely:
*"There should be greater heterogeneity in law schools" (p. 23-24). That's certainly a theme I've mentioned in the past. There's heterogeneity not just in colleges and universities (of which there are many more), but also even in medical schools (a fact captured even by U.S. News, which ranks "research" schools separately from "teaching" schools [though the latter also do research]).
*"There should be greater heterogeneity in programs that deliver law-related education" (p. 25). This is part of a general and sensible theme in the WP, namely, that there need to be systems of certification for certain kinds of legal professionals "who are qualified to provide limited law-related services without the oversight of a lawyer" (p. 25).
*"The regulation and licensing of law-related services should support mobility and diversity of legal services" (p. 28). Again, there's no point in heterogeneity of law schools and law-related programs, if there isn't a change in regulation and licensing of those providing different kinds of legal services.
One other recommendation strikes me as sensible, but already widely recognized, namely that, "there should be clear recognition that law schools exist to teach people to provide law-related services" (p. 26). No evidence is adduced of who exactly doesn't recognize this. The Task Force should not visit the sins of, say, Yale Law School on the academy as the whole!
Two of the recommendations strikes me as sensible but largely empty as formulated:
*First, it would be great for the "financing of law-related education" to be "re-engineered," but the Task Force, by its own admission, does not really have any concrete proposals. It is true, for example, that the "current system of lending distances law schools from market considerations" and also facilitates "unfettered pursuit of status" (p. 23). But it doesn't completely eliminate market forces: schools still compete for students, for faculty, and for jobs for their graduates. Does the Task Force want to recommend no student lending for legal education? That would seem inconsistent with the idea that legal training is a public good (a theme I'll come back to in another post, but which the WP emphasizes). Here's a more tangible proposal the Task Force might adopt. Recall that it was Bush Senior's Justice Department that ended "collusion" among Ivy League schools on the nature and size of financial aid awards, which used to be overwhelmingly need-based. Perhaps it is time for the ABA to push to reverse that, to permit a bit of "collusion." There may still be perverse competition in "merit" awards by schools on the cusp of moving "up" to another peer cluster, but there would be far less of it within clusters of schools of similar stature, and thus fewer cases of the students with the weakest credentials (relative to others at a particular school) paying the most (a phenomenon Brian Tamanaha correctly diagnosed a number of years ago, and which the WP also notes).
*Second, it would surely be terrific for there to be "greater innovation in law schools and in programs that deliver law-related education" (p. 27), but that will only take place through some ABA deregulation that creates room for those innovative experiments. So this just seems like pointless exhortation, and otiose with respect to the real issue: the loosening of regulatory strictures on both the educational and licensing side of things.
Finally, two recommendations strike me as unclear or misguided.
*The suggestion that law schools need to emphasize "delivery of value to students" (pp. 25-26) is just mumbo-jumbo "management-speak," and nothing else. Law schools are well aware that they are "in the business of delivering legal education services," but they are also academic institutions, not the corner grocery. Regulatory loosening will create "competition" (the supposed panacea of all market enthusiasts), and then we will see what happens. But in an otherwise thoughtful WP, this section stands out as slightly ridiculous.
*It's hard to argue with the abstract proposition that "there should be constructive change in faculty culture and faculty work" (p. 28) But what the Task Force really seems to have in mind is that faculty should teach more and write less. The WP makes the dubious assertion that it is "entrenched [faculty] culture and structure that has led...to declining classroom teaching loads and a high level of focus on publishing and research" (p. 28). In fact, it is market competiton for faculty that has produced these trends, and if some of the changes recommended elsewhere in the report occur, perhaps this competition will abate. The WP seems largely enamored of "markets," and they should be clear that it is market forces that have reduced teaching loads. In that regard, the WP is right to recognize that "some, perhaps many, law schools will continue to operate under the current model" with respect to what the WP calls "faculty culture" (p. 28).
The "specific recommendations" of Section VIII pertain to implementation of the Section VII themes. Most seem pretty sensible (thoughsome fall into the category of mere 'exhortation'), and largely contribute to the strongest themes from Section VII. I'll just mention one where the Task Force should be cautious:
*If the Task Force would like to empower Deans who want to implement the WP's goals, then it will be a serious mistake to remove the requirement that Deans be tenured faculty. A Dean without tenure will be a Dean who can get very little done.
I do commend the Task Force for specifically noting (p. 34) the perverse effect that the use of "expenditures" data in the U.S. News rankings has had--the ABA should issue a strong statement condemning that practice. And a bold move would be for the ABA to produce its own metrics of law school quality, that would help loosen the grip that U.S. News has on many law school applicants.
In one or two follow-up posts, I'll have some more specific, critical comments about portions of the WP. But, as I said originally, this is a serious and thoughtful document, for which the Task Force deserves thanks.
UPDATE: Part II of my commentary.
August 02, 2013
Working Paper by the ABA Task Force on Future of Legal EducationIt's now out and available here. I'll have more detailed comments over the next few days, though having read it through once, I think it's clearly a serious and thoughtful piece of work, though some of it is, for reasons I will explain, misguided. Many of the concrete proposals are sensible ones, but again, I'll go into details over the next week or so.
More on the Law School Transparency "shakedown" of law schools
A Dean at another law school writes:
It is fair to say this was not a very good move on LST's part, and shatters whatever remaining credibility they had. (They've been in a bit of a downward spiral.) Now that the ABA (finally) mandates detailed reporting of employment outcomes, it's not really clear that LST serves a useful purpose any longer, and I will be astonished if any school actually ponies up for this nonsense "certification." (By the way, it is perhaps telling of what's happened to LST that the law professor who sent me the information about the certification shakedown did not want to write about it himself/herself for fear that LST would then go after that professor's school!)
Re the McEntee post: Yes, in fact, Kyle has sent out the following note to a number of deans:
...We're introducing a certification program for law schools.
The program has two purposes. First, we want to increase the quality and consistency of consumer information. Second, we want to help the schools that are transparent (as defined by us of course) signal that transparency. Law schools across the board are facing declining trust, even the good actors. I'm of the opinion that this is bad for the profession in the long run, and that a program like this can help instill a sense of trust where trust is deserved.
The short of what we'll do: Schools that meet our two reviews become "LST Certified," which entitles them to use a certification mark to signal their commitment to transparency. The mark provides assurance to prospective students, students, and the public that your school does things the right way. The fee for the first year is $1925. There will be audits for compliance throughout the year -- sometimes at a defined time, sometimes randomly.
One review is for Standard 509 compliance. The other review is for LST Best Practices. The latter requires that schools produce various consumer information (employment data, financial aid, etc) on their websites. Sometimes the Best Practices require a certain form; usually we just check that certain data or statements are present. Importantly, we require schools to centralize all consumer information for easy access and require that schools indicate info about definitions and methodologies used.
---end of quote from letter--
This is, of course, absolutely outrageous. One dean colleague said it smacks to him as a violation of the Hobbs Act (which prohibits extortion and such). This is, any way you slice it, an extraordinary effort at shaking down law schools by promising some version of “certification” at a price – this from a group which decries, among other things, the high costs of law schools. It is one thing for the deans to call Kyle out. I’d like to see where the scambloggers are in all this.
July 30, 2013
Reflections on "The Economic Value of a Law Degree" and the Response to It
It has been a curious two weeks in the legal academic blogosphere. Michael Simkovic, a law professor at Seton Hall (who, I learned, never went on the law teaching market, he was plucked out of practice at Davis Polk by a savvy hiring committee), and Frank McIntyre, a labor economist at the Rutgers Business School, produced a serious piece of empirical analysis of the economic outcomes for those earning a JD as opposed to those stopping with the BA. The result was hardly surprising: JDs do better, considerably better, at both the top and the bottom.
Although the result isn't surprising on reflection, it clearly created a problem for those heavily invested in the idea that it's stupid to go to law school. Predictable know-nothings--like Elie Mystal (a nice guy, I hasten to add, but out of his depth with respect to almost any serious topic) at the Above the Law cesspool--did scandalous hatchet jobs and obviously didn't read the article. All the bottom-feeders of cyberspace stick together, of course, so we find Matt Leichter, another benighted blogger, endorsing Mystal's mistakes and adding more of his own! The Dunning-Kruger Effect is alive and well! Certain familiar charlatans, like Paul Campos, were exposed once again as having no idea what they were talking about (we even had the remarkable spectacle of Campos, an actual academic fraud, calling an actual scholar (Stephen Diamond) an "academic fraud," even as both Simkovic and Bainbridge noted the correctness of Diamond's criticisms of Campos.)
Most disappointing, however, were Brian Tamanaha's badly confused interventions. As someone who endorsed Tamanaha's book originally, I've been embarrassed by the arrival of serious research on the topic. Tamanaha's work, in the areas where I have expert knowledge, has always been a bit notorious for its confusions and theoretical overreaching, especially in its desire to make startling claims, the evidence and the arguments be damned. I had thought his book on law schools was different. (I suppose I should have been given pause by the way in which Tamanaha repeatedly tried to legitimize some of the most disgusting and deranged "scam" blogs out there, even posting encouraging comments on some of them.) In any case, it now turns out that Failing Law Schools is consistent with the rest of his work, and I was mistaken in commending it.
Well, maybe not wholly mistaken, since Tamanaha has scaled back his claims in the wake of the Simkovic & McIntyre analysis (also here--and see this reply). It's not law schools, per se, that are failing, but just Thomas Jefferson, Phoenix, Southwestern, and a few others he singles out for calumny. To be honest, I don't even know that they are failing, it really depends on whether the long-term economic outcomes for their graduates fall well below the 25th-percentile in the Simkovic & McIntyre study--Tamanaha has no evidence on that, nor do I. As Stephen Diamond (Santa Clara) aptly put it in responding to another tissue of confusions about the paper: "The challenge for an individual law student is to determine where they are likely to fall along the distribution. I don’t think the Simkovic/McIntyre paper was intended to be a calculator for prospective law students and so criticizing them for that issue is unfair. However, the paper does provide concrete evidence that such a distribution actually exists and that for most points on the distribution the present value of the earnings premium associated with a JD is positive."
Tamanaha's response to the Simkovic & McIntyre article has been, in short, a spectacular intellectual embarrassment and travesty: the conclusion now seems inescapable that he has no idea what he is talking about. (Naturally, the Cato Institute hacks thought his intellectual mess was brilliant!) A colleague at another top law school put it to me aptly in an e-mail last week:
Tamanaha is embarrassing himself terribly. His responses have the feel of someone desperate to defend a profitable franchise, and they are manifestly deficient on the merits. Simkovic and McIntyre have comported themselves like true scholars. The contrast is striking.
Tamanaha should apologize in public and simply admit that he was wholly out of his depth. I certainly apologize to anyone who took Failing Law Schools seriously based on my opinion. It has some good anecdotes, and some interesting history of law school regulation, but I should have been more cautious. (I still agree with Tamanaha that the ABA ought to lighten up on regulation, to allow more models of legal education--that point is quite independent of the Simkovic & McIntyre analysis.)
So here's the amazing fact: not a single meritorious criticism of the paper was voiced in the blogosphere despite nearly two weeks of intense discussion.* It has all been careless, in some cases idiotic, mispresentations; technical and conceptual confusions; or irrelevant ranting by ignoramuses. It all reminds me why, as I said long ago, blogs are bad for legal scholarship, since they provide a voice, sometimes--as with the ATL cesspool--a loud voice for people who literally have nothing to say because they have no relevant competence or skill.
Here's what I think we know and don't know after the first serious scholarly intervention in the debate about an economic value of a law degree:
1. The vast majority of those who got a JD over the last two decades are better off, financially, than similar individuals who stopped with the BA.
2. We don't know if other post-graduate degrees are more worthwhile, financially, than the JD; Simkovic & McIntyre did not attempt to address that systematically.
3. We don't know if the economic pattern for JD-holders will hold for the future, though Simkovic & McIntyre adduce some evidence that it will. [BL EDIT: rather good evidence, I will add, in light of a recent dishonest misreading]
And that, I think, is a fair summary of where we are. The critics of law schools, it turns out, simply do not understand the basic math behind valuation--net present value. They think law school is a bad value because they apparently don't know how to value anything that pays off over time.
We have had a massive downturn in applications to law schools the last three years, primarily as a result of ABA-induced better reporting of employment outcomes and New York Times coverage of the bad job market for new JDs. That's fine, some of these individuals may have made the correct decision by foregoing law school. But we've also had an hysterical cyber-reaction by miscreants and charlatans (like Campos), as well as by unemployed law school graduates desperate for someone to blame for the latest crisis of capitalism. Journalists have generally done a poor job sorting the wheat from the chaff, though there have been honorable exceptions (I think especially of Debra Weiss at the ABA journal).
*Perhaps I missed an intelligent response to the Simkovic & McIntyre paper buried somewhere in the bowels of cyberspace.
UPDATE: Predictably, Brian Tamanaha was not happy with the preceding, but I'll try to be succinct: (1) it is false that he and I have "skirmished on various subjects over the past fifteen or so years"; the one time I engaged his work was in the review of his book three years ago (anyone interested in the actual objections should read the review essay); (2) he did not "challenge" my "interpretation of the formalists and realists"--on the formalists, because I have no views on the historical figures denominated formalists, and on the realists, because he did not engage seriously with either mine or Fred Schauer's readings of the Realists in his book; (3) he wholly misrepresents the contents of David Rabban's recent book and also misrepresents, by implication, Rabban's opinion of Tamanaha's book, which was the same as mine (Rabban agrees with me that Tamanaha stated a prima facie plausible case against the attribution of "vulgar" formalism to 19th-century writers, but that does nothing to resolve the issue of what other kinds of formalism were common in the 19th-century--again see my review essay); (4) anyone who reviews Tamanaha's postings can see how utterly ludicrous it is for him now to pretend that he acknowledged the evidence that Simkovic & McIntyre adduced in support of the proposition that the current recession in the legal market is well within the parameters of past economic cycles in the legal profession; (5) I am agnostic on Tamanaha's motives, and do not think my correspondent meant "profitable enterprise" literally. I do think his work, in both legal theory and on legal education, exemplifies a pattern of careless scholarship, which is why I noted my one discussion of the former by way of evidence.
ANOTHER: Apt comments by Frank Pasquale, also a blogger at the Balkinization site.
July 16, 2013
More schools shrinking their faculties (and their student bodies)
There is an informative piece (behind a paywall, however) in the WSJ about the elimination of faculty positions, mostly through retirements and buy-outs of existing faculty; besides Seton Hall and Vermont, other schools mentioned are:
Hamline University School of Law in St. Paul, Minn....has shrunk its full-time faculty about 18% since 2010, and the school is exploring ways to further scale back its head count. Ten faculty members have retired since the school began offering early-retirement incentives in 2011, and four more have accepted agreements and plan to retire in the coming academic year....
This year's entering class at Hamline is expected to be about 100 students, Mr. Lewis [the Dean] said—a 55% drop from 2010....
Earlier this year, 21 professors accepted buyout packages at Widener University School of Law, which operates campuses in Wilmington, Del., and Harrisburg, Pa. And last fall, the University of Dayton School of Law offered early-retirement packages to 14 professors, seven of whom took them....
At University of the Pacific's McGeorge School of Law in Sacramento, Calif....[s]everal professors have taken buyouts as the school rescales its JD program from 1,000 students to about 600, a size that Dean Jay Mootz said is better suited to the school's regional market....
The article also reports that George Mason, which had a 2012 entering class that was half the size of its 2010 class, is having faculty teach larger classes and not filling staff positions except when necessary.
July 15, 2013
June 2013 LSAT takers down almost 5% from prior year...
...my co-blogger Dan Filler reports. A couple of observations about this, especially for the benefit of those readers thinking about the academic job market:
1. The decline, though modest, indicates that we have probably not yet hit bottom on the significant decline in law school applications over the last three years. That decline, of course, followed upon two significant developments: the New York Times series on the recession in the legal employment market, and the pointed inquires by Senators Boxer and Coburn to the ABA about employment reporting, which led the ABA to revise the rules, thus forcing schools to disclose much more detailed (and often unflattering) employment outcomes for graduates.
2. We have already seen evidence of schools letting faculty go or simply not hiring new faculty, senior or junior. Until applicant volumes stabilize, and schools can make realistic budgetary plans going forward, this will not change and will probably get worse: faculty is the primary expense, and until schools can confidently predict a budget, they can not afford to add to that expense. The competitiveness of the market this coming year will be exacerbated by the fact that, for example, all the junior faculty at Seton Hall will presumably be on the job market this year, and so too will junior faculty at schools with less publicized financial problems.
3. Based on last year's applicant decline, I ventured that this year's rookie market would be even worse than last year's. A continuing decline in LSAT-takers (and thus presumably applicants) will just add to the uncertainty schools face, making them even more reluctant to hire.
4. There will be law schools hiring new faculty this year, and not only the richest law schools. The economic pain is not evenly distributed across law schools, and I know of many law schools, both state and private schools, that will be hiring this year, in part because they expect (no doubt correctly) to be able to make strong hires that would have been out of reach a few years ago.
5. Given all of the preceding, however, those thinking about pursuing careers in law teaching would be well-advised to postpone entering the teaching market if they can. 2013-14 is shaping up to be the worst year on the law teaching market ever in terms of the total number of positions that are likely to be available.