January 07, 2014

Ellmann v. Leiter on the proposed clinical/experiential learning requirement

Following a post a few weeks back about a proposed ABA requirement for 15 required hours of "experiential" learning, I had an interesting e-mail exchange with Stephen Ellmann, who is Professor of Law and Director of the Office of Clinical and Experiential Learning at New York Law School.  I encouraged him to write up his thoughts on this issue, so that we might have a kind of public dialogue about these issues.  I post my reply to Professor Ellmann below, and I have opened comments for Prof. Ellmann to reply and for other readers to weigh in.

Remarks of Stephen Ellmann:

After Brian posted about the decision, by the Council of the ABA’s Section of Legal Education and Admission to the Bar, to circulate for comment a Clinical Legal Education Association proposal to require all law students to take 15 credits of experiential courses, he and I exchanged e-mails, and he proposed that we continue this discussion here. I thank him for this opportunity, and look forward to the discussion. 

It is certainly possible to debate some of the details of this proposal, but my purpose here is to defend its central proposition: that all law students should receive significant training in the practice of law before they graduate. This is one of those propositions that almost seems not to need defense: who would imagine a professional school that did not give its graduates training in how to practice their future profession? 

One might accept this proposition as I’ve stated it, and respond that regular law school classes are an engagement with practice. There is some force to this point. Socratic classrooms are much more engaged, I believe, than lectures. Langdell, as I understand it, aimed to teach students the skill of legal reasoning - and I certainly agree that's a practice  skill. 

But there are two major problems with the "regular coursework as engagement with practice" argument. First, the traditional study of legal reasoning is an engagement only with a fraction of the skills a lawyer needs. It includes no interviewing, no counseling, no trial skills (except a measure of advocacy training gained by some students from the give-and-take of class discussion), no negotiation - and actually not much training in legal research nor, in many courses, more than a final exam's worth of training in the many challenges of legal writing. Second, the sad truth is that the charm of this method wears off. Two years of Socratic dialogue does not make the third year of it more profoundly rewarding. Instead, it evidently leaves our students often deeply disengaged, as Mitu Gulati, Richard Sander & Robert Sockloskie have shown

I think that clinical legal educators have demonstrated over the past forty years that the other skills of legal practice are also, like legal reasoning and legal doctrine, susceptible of scholarly study and capable of being taught. Experiential courses, including clinics, externships and simulation classes, aim to do just that and so to add crucial depth to the practice preparation that law schools provide. 

One might accept the value of experiential learning too, and respond that law schools actually already do give students the experiential learning they need, by means other than course work. A commenter quoted in Brian’s post went so far as to argue that two summer jobs are “not dissimilar” to medical school clinical rotations. That position I think is untenable.  Not only is medical school clinical rotation much more extensive than two summers' worth of clerkship, but in addition medical school rotations are part of school - structured academic instruction - and summer jobs, as valuable as they surely are, aren't school.

One might also accept all this, but respond that the choice of what courses to take should belong to the students themselves. Certainly choice is important. But we teach in law schools, and it’s built in from the start in our schools that most of the courses students take must be law courses – rather than, say, political science or humanities. Even within the domain of law courses, many or most schools restrict student choice significantly – notably by prescribing most or all of the first-year curriculum and sometimes parts of the upper-year curriculum as well. I think the question is not whether we will limit students’ choices, but how much and for what reasons. And on that score, I wonder whether part of the sense that 15 credits of experiential learning is too much might arise from a perception of “skills” as a single subject, rather than as a very wide range of different competencies that get used in different ways in different settings. We routinely allocate 60 credits or more to teaching “doctrine” and the skill of legal reasoning; it does not seem too much to allocate 15 to other skills of practice. Within those 15 credits, I’d certainly hope that law schools will offer their students a substantial range of courses from which to choose. 

One last point on the question of “how much?” Bob Kuehn has compiled figures on the “practice-based and clinical education” requirements in a range of other professions: architecture, dentistry, medicine, nursing, pharmacy, social work, and veterinary. Each of these requires at least one quarter of students’ training to be in clinical settings; some require one third and, last but not least, medicine requires one half (and that doesn’t include the years of supervised post-graduate clinical training that follow receiving the M.D.) The CLEA proposal is that approximately one-sixth of law students’ training be in experiential courses. It seems to me that the burden is on those who disagree with this proposal to explain why law students, unlike their peers in other professions, do not need this level of experiential preparation for the work they will soon be doing.

Reply by Brian Leiter:

Stephen states very well the value of experiential learning in law school, and on that point, I have no dispute with him.  The only question concerns what should be required.  Most law schools already require most of one of the three years of study.  Although there is variation in what is and is not required in that first year (Chicago does not require constitutional law, Yale does not require property), it is apparent that almost all law schools require all students to take, in some form or other, the basic private law subjects (contracts, torts, property), substantive criminal law, civil procedure (the rules of court procedure outside the criminal context), and basic legal research and writing at the start of their education.  I have my own doubts about that particular mix of requirements, but I have no doubts (and I do not think Stephen does either) that some doctrinal requirements in the first year, along with the crucial legal research and writing, are the crucial foundations.  (I can recall entering practice roughly 25 years ago and finding that the knowledge and skills I needed most often came from first-year contracts, civil procedure, and legal research and writing.  My impression, in the form of lots of anecdata, is that my experience was not anomalous.)  The first-year requirements, whatever their precise mix, help students learn how to read judicial opinions, teach them core rules that govern our private and public interactions, expose them to reasoning by analogy, model and demand some dialectical engagement, and teach them how to research legal issues. 

Stephen and I are, I take it, in agreement about the value of those requirements, so the only question in debate is how much else should be required

The candidates for more requirements are always numerous.  Here, in no paritcular order, are some subjects I've heard passionate arguments for as requirements:  Accounting, Evidence, Statistics for Lawyers, Constitutional Law,  Legislation, International Law, and, yes, Jurisprudence.  (In Oxford, but also in many European and South American countries that I have visited, Jurisprudence is a required course; since it is typically an undergraduate degree, 18- or 19-year-olds are often required to read Kelsen, which, personally, I think should give rise to an action in tort.) 

I teach two of those subjects, and with respect to one (Jurisprudence), I would strongly oppose a requirement, even though I think it is undoubtedly the most important and profound subject in the curriculum (at least as I teach it!), but I also am quite confident that many excellent students graduate law school without taking it and go on to distinguished legal careers in the private and public sectors.  And so, too, with Evidence:  certainly it has the virtue of being a bar exam subject, and no doubt that is why almost all students take it.  But the reality is that many lawyers--tax lawyers, regulatory lawyers, estate lawyers--have no need to understand the Hearsay Rule and its three dozen exceptions.

As a general pedagogical matter, I favor choice.  I also think law schools and law professors have an obligation to provide guidance, since even after the first year, law students still need a lot of guidance.  But substantive guidance is one thing and more requirements is another.  And there is no reason to mandate as a blanket requirement 15 hours of experiential learning.

Law schools differ, in their student bodies, in their employment outcomes.  Law students differ, in their personal and professional goals, and in their intellectual interests.  There should be a very strong presumption against any proposal of the form that, "200 law schools, and 40,000 law students all must do X."  I have written letters of recommendation for and advised many students have gone on to the most competitive federal appellate court clerkships in the United States, both when I was at Texas and since moving to Chicago in 2008.  The judges often tell the students they hire in their second year what they expect them to do during their remaining time in law school.  Not once have I heard of a circuit court judge who demanded that the student take more "experiential learning" courses.  To the contrary, they want their clerks to take Federal Courts, Administrative Law, sometimes Criminal Procedure, sometimes Securities Regulation (it often depends on the circuit):  in other words, they want their students to have deeper and broader knowledge of legal doctrine.

So, too, with the former students who have gone on to the leading private law firms, both the Cravaths and Skaddens, as well as the Bartlit Becks and Susman Godfreys of the world.  What these employers want to know is:  how smart is this student?  how good is her writing?  In twenty years, no hiring partner ever asked me, "How many experiential courses did this student take?"

I have taught fabulous students over the last twenty years, and there is no reason legal education should be designed around them and their employers.  But there is also no reason legal education should be designed without regard for them.   Forcing most of these students do to fifteen hours of experiential classes would not have made any of them, I venture, worse, but it would not have given most of them any real benefit.  Some of them would have been forced to drop some of the advanced commercial law classes, or the advanced procedure classes they might have taken.  Those doing JD/PhDs--and, yes, they are students too!--would have had to take classes that would have contributed nothing to their academic work and careers.

And then there is the reality that no law school in the United States that I am aware of is actually equipped to offering "experiential" learning adequate to the full range of careers lawyers actually pursue.    Suppose a student wants to pursue a career in corporate and partnership tax.  How many law schools offer meaningful "experiential" learning for that?  Suppose some do; how many could realistically?  Suppose a student wants to go into high-stakes M&A litigation.  Which law schools offer meaningful experiential litigation to that end?  How many could outside those in a few major cities?  I have a relative who went to a top law school and works in a thriving field, health law, with a focus on regulatory compliance.  Her most valuable "experiential" course in law school was contract drafting, and there was no clinical offering that would have been of any use to her; I've yet to see a law school that was different.

There is no question that law schools should be allowed to require the kinds of education Stephen describes, based on their judgment either that their students all need it or their judgment that students should come to them if that's what they offer.  But I think it would be outrageous to demand that every student be saddled with another 15 hours of requirements based on the claim that some students might benefit from such courses. 

I am utterly unmoved by what schools for dentists, animal doctors, nurses, etc. require.  The comparison betrays a profound misunderstanding of the law.  Oxford's H.L.A. Hart, the greatest legal philosopher of the last century, noted that you can not understand law and legal systems unless you realize that they centrally involve  rules.  His critics, like the late legal philosopher Ronald Dworkin, drew attention to the fact that how lawyers reason and argue about rules is just as important.  Both Hart and Dworkin highlight the crucial fact about lawyering that distinguishes it from dentistry:  law is fundamentally a discursive discipline, dealing in norms, arguments, and reasons.  That is why legal education, in both the United States and Europe and every other democracy I am aware of, emphasizes learning legal rules and legal reasoning.  One needs a lot of knowledge to be a good dentist, to be sure, but a lot of good dentistry is not a matter of knowing rules and how to reason about them.

One theme in recent discussions about reforms to the ABA regulation of law schools--a theme to which I am sympathetic--is that we should permit more experimentation in models of legal education.  Experimentation means that individual law schools should, of course, be permitted to mandate the requirements that Stephen envisions.  But there is no reason to mandate that all law schools follow the same model.

Comments are open:  full name and valid e-mail address required.

Posted by Brian Leiter on January 7, 2014 in Legal Profession, Of Academic Interest, Professional Advice, Student Advice | Permalink | Comments (9)

November 18, 2013

The Dental School Analogy

Dean Gershon (Mississippi) calls our attention to the mid-80s crisis in dental education, in which some of the schools that closed were at major private research universities.  (For more on dental school closings, see also this article.)  Dean Gershon writes:

What is interesting is that among the universities choosing to shut down their dental programs were prestigious schools like Georgetown and Emory. My understanding is that those universities determined that their dental schools no longer attracted the types of students they wanted to have at their institutions. Like law schools, the greatest decline in dental school applications occurred at the top end of standardized scores and undergraduate GPA’s. Emory and Georgetown were concerned that the students in their dental schools would not reflect the high credentials of students in their other programs, so they decided that it was better to close the doors, than to allow the dental school to “dumb down” the university.

The assumption seems to be that it will most likely be fourth-tier schools that will close, if law schools close. Based on what happened to dental schools in an almost identical atmosphere, I am not sure that assumption is correct.

A few thoughts on these striking observations.  First, I am inclined to think that the most vulnerable schools are free-standing ones of relatively recent vintage, and those also happen to be overwhelmingly 4th-tier--but their "4th tier" status is not the primary explanation of their vulnerability, but rather one that just exacerbates their vulnerability to enrollment (and thus revenue) declines.  Second, there were some five dozen dental schools in the United States when schools began closing; I do not know where Georgetown's and Emory's were in the dental school hierarchy at the time, but that would probably be relevant to thinking about the import of the analogy.  Third, law schools, like medical schools, tend to have cross-disciplinary impact, in a way that dental schools (and veterinary schools) did not and do not (as best I can tell).   For a research university to close a law school is to lose an academic unit that, in all likelihood, interacts with political science, economics, philosophy, history, and/or medicine.   The number of leading research universities (excluding those with a STEM focus) without a law school is miniscule:  Princeton, Johns Hopkins, Brown.   Rightly or wrongly (mostly the former, but not always!), research universities have come to see a law school as a major part of their academic identity.  (UC Irvine spent years trying to get a law school, and during the same time period, UC Riverside and UC San Diego were also exploring options to start one.)

It is striking that many (indeed, most) of the leading dental schools that remain are located at state research universities (far more so than with law, probably for the reasons noted already).  But this  also suggests something which I expect in the case of law:  we will not see any state flagships closing their law schools (though many will no doubt contract a bit or a lot, depending on local economic conditions).

 

Posted by Brian Leiter on November 18, 2013 in Legal Profession, Of Academic Interest, Professional Advice, Rankings | Permalink

October 31, 2013

Another 10%+ decline in LSAT takers compared to last year

Blog Emperor Caron has links to the latest news.  (He also includes links to a chart about which majors do best on the LSAT--because they lump Philosophy with Theology, I'm sure that depresses the result for Philosophy majors, since those two majors are VERY different.)   [UPDATE:  Professor Filler's post and mine crossed paths in cyber-time!]

A couple of thoughts on this:

1.  People who don't get a JD still have to do something professionally.  What are they doing instead?  Getting an MBA?  Just entering the workforce in some other capacity?  Entering PhD programs?  We don't really know yet, and given the Simkovic & McIntyre research, it is likely that at least some of those not going to law school are making serious mistakes economically (if not professionally or personally).

2.  The likelihood that the 10%+ decline in LSAT takers will translate in to 10% fewer applicants is, of course, very high.  One things that means for those thinking about law teaching is that next year on the law teaching market will be as tight as this year, and this year is very tight indeed.  An uptick in applicants this year would have increased the likelihood of law schools waivering on whether to hire to jump into the market, but this newest development probably means that schools uncertain about tuition revenue and their budgets will err on the side of not hiring.

3.  While some schools are undergoing major contractions (e.g., the recent New England story), the reality is that lots of teaching positions for which schools have genuine needs are going unfilled currently due to budgetary uncertainties (schools are relying on adjuncts, short-term visitors, existing faculty teaching overloads or teaching outside their areas, etc.).  When the situation stabilizes in the next year or two (barring another economic collapse, of course), I expect we will see a dramatic uptick in academic hiring as schools try to meet the unfilled needs.

UPDATE:  I can not vouch that this comment is an accurate summary of Dean (soon-to-be President) Syverud's remarks, but the analysis sounds credible, and more-or-less consistent with what I've heard (though I can not vouch for the 175 number, below):

LSAC provided a graph showing that we have had similar cycles since the mid-1960s.  This one is a bit more dramatic because we came off all-time highs in hiring and applicants in 2007.

The Dean of Wash U Law School, Kent Syverud, gave a very compelling speech.  He says 175 of 202 law schools are operating at a substantial deficit, and the pain is being felt across the board, not just at so-called "marginal" law schools. Applicant numbers, by LSAT score, support that comment. 

He also says law schools will cut costs in the following ways (any errors in this summary or mine):

- Private universities may shut down associated law schools, as they did dental schools in an earlier era;
- Schools have let hiring of new faculty grind to a halt [BL COMMENT:  there were about 70 law schools at this year's hiring convention, less than half the number from two years ago; not all which attended will necessarily hire];
- Schools will not replace, with a tenure-track faculty member, any faculty member who successfully moves laterally or retires;
- Schools will cut tenured faculty via buy-outs, etc., and use instead much more affordable adjuncts;  Skills teachers could be especially hard-hit even at a time when the ABA and the profession are emphasizing skill development;
- Schools will cut staff;
- Schools will consolidate law libraries into main campus libraries;
- Schools will merge (like Texas Wesleyan); or
- Schools will sell out (like Charleston.

Posted by Brian Leiter on October 31, 2013 in Advice for Academic Job Seekers, Legal Profession, Professional Advice, Rankings | Permalink

October 21, 2013

How Long After "Meat Market" Before Candidates Hear from Schools?

MOVING TO FRONT FROM LAST YEAR (SINCE TIMELY AGAIN--AND MORE COMMENTS WELCOME--ORIGINALLY POSTED NOVEMBER 2007)

A rookie job seeker writes:

A question about the law teaching market, which I suspect will be of interest to a number of candidates who read your Law School Reports blog:  When can we expect to hear from hiring committees we spoke with at AALS?  Do the better schools tend to wait longer to make their calls?  And do schools tend to notify candidates that they *won't* be inviting them for a job talk, or do you only hear from them if they're interested?

If you think this is a worthwhile topic, perhaps you could open a post for comments so that hiring committee members could say what their procedure is.

My impression is that schools will contact the candidates they are most interested in within the first two weeks after the AALS hiring convention, and, more ofthen than not, within the first week.  Schools will often have some candidates "on hold" beyond this period of time:  e.g., because they are reading more work by the candidate, or collecting references, or waiting to see how they fare with their top choices.  So it is quite possible to get call-backs beyond the two-week window.  Schools tend to be much slower in notifying candidates they are no longer in contention (you might not hear for a month or more). 

Schools higher in the "food chain" in general do move at a somewhat more, shall we say, "leisurely" pace, and schools lower in the "food chain" are more likely to have tiers of candidates they remain interested in, on the theory that they are likely to lose their first-round choices.

Those, to repeat, are my impressions, based on a decent amount of anecdotal evidence.  But I invite others to post their impressions and/or information about their school's practices.  No anonymous postings.  Post only once, comments are moderated and may take awhile to appear.

Posted by Brian Leiter on October 21, 2013 in Advice for Academic Job Seekers, Professional Advice | Permalink | Comments (16) | TrackBack

October 10, 2013

Another a priori truth confirmed empirically...

...by Albert Yoon (Toronto):

[W]e find that, with few exceptions, law reviews publish more articles from faculty at their own institution than from faculty at other law schools. Law review publications of their own faculty are cited less frequently than publications of outside faculty. This disparity is more pronounced among higher-ranked law reviews, but occurs across the entire distribution of journals. We correspondingly find that law faculty publish their lesser-cited articles in their own law review relative to their articles published in other law reviews. These findings suggest that legal scholarship, in contrast to other academic disciplines, exhibits bias in article selection at the expense of lower quality.

I will counter this with one meaningless anecdote:  my best-cited law review article appeared in Texas Law Review when I was on the Texas faculty!

Posted by Brian Leiter on October 10, 2013 in Of Academic Interest, Professional Advice | Permalink

October 03, 2013

The Labor Market for Law Professors

This is an empirical study of one year of it (2007-08) by Tracey George (Vanderbilt) and Albert Yoon (Toronto).  It confirms mostly what I would have expected.   This may be particularly noteworthy:

Despite the ink spilled on race and gender in legal academic hiring, we find, with limited exceptions, these factors have little effect.  After controlling for credentials, gender and race do not improve a candidate's chance of getting a screening interview.  The only stage where we find that race and gender have statistically significant effects are at the intermediate call-back interview stage where women and non-whites are statistically significant more likely to be invited for a job talk interview.  But, women and non-whites are no more likely than similarly situated men and whites to get a job offer or, if they get an offer, for the offer to come from a more elite school.

Among the metrics of comparison they look at are publications, fellowships, PhDs, school graduated from, clerkships and so on.  They do err, I think, in taking U.S. News a bit too seriously in viewing one metric as "graduation from Yale, Harvard, Stanford," even though the evidence suggests that while Yale is in a class by itself for teaching placement, the other two are not.  I've urged Professor Yoon to include some data on Chicago, Columbia, and Michigan, at least.  (Of course, this was only one year, and it is possible that the data for this one year do support the grouping.  In any case, hopefully the final version of the paper will include more evidence in support of the grouping.)

Posted by Brian Leiter on October 3, 2013 in Advice for Academic Job Seekers, Legal Profession, Of Academic Interest, Professional Advice, Rankings, Student Advice | Permalink

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.

Posted by Brian Leiter on August 4, 2013 in Legal Profession, Of Academic Interest, Professional Advice, Rankings | Permalink

August 02, 2013

Working Paper by the ABA Task Force on Future of Legal Education

It'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.

Posted by Brian Leiter on August 2, 2013 in Legal Profession, Of Academic Interest, Professional Advice | Permalink

More on the Law School Transparency "shakedown" of law schools

A Dean at another law school writes:

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.

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!)

Posted by Brian Leiter on August 2, 2013 in Law in Cyberspace, Legal Profession, Of Academic Interest, Professional Advice, Rankings | Permalink

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.

Posted by Brian Leiter on July 30, 2013 in Legal Profession, Of Academic Interest, Professional Advice, Student Advice | Permalink