Law Schools’ Four Billion Dollar Collective Action Problem (Michael Simkovic)

Earlier this month, I charted the overwhelmingly negative press coverage of law schools and the legal profession over the last 5 years and discussed the disconnect between the news slant and economic reality.  To the extent that news coverage dissuaded individuals from attending law school for financial reasons, or caused them to delay attending law school, newspapers will on average have cost each prospective law students tens of thousands, or even hundreds of thousands of dollars. The total economic harm across all prospective law students could easily be in the low billions of dollars.*

What can we learn from this?

Accurate, informed, and balanced news coverage does not happen of its own volition, particularly in a world where sensationalism and negativity attract eyeballs and sell advertising.  

The national press is powerful.  Many journalists mean well, but they lack deep expertise and often face tight deadlines and financial pressures. Sometimes editors and journalists use their power irresponsibly. Whereas many industries have trade associations that employ professionals to work with journalists and help them provide more accurate, informed, and fair news coverage, law schools were unprepared to interact with the press in ways that would encourage more responsible and accurate coverage.  

Law schools remained silent, but other individuals and groups were actively working to plant negative stories with the specific goal of driving down law school enrollments. They believed driving down enrollments would reduce competition for legal work.  (One of the leaders of Law School Transparency explained his efforts to pitch negative news stories in specific parts of the country where he thought law school enrollments were too high and competition for jobs was too intense.) (PDF here). Some practitioners may be hostile to new entrants for similar protectionist reasons. Unlike law schools, law school critics were prepared to speak out, even if it meant appearing self-interested.  

Collective action problems precluded any individual law school from acting unilaterally to correct the record and from bearing all of the associated costs for a small fraction of the benefits.  The few deans and professors who did speak out, like Martin Katz, Larry Mitchell, or Stephen Diamond, became lightning rods for criticism.  Critics targeted them and their institutions for retaliation.  In addition, a number of law schools were subjected to lawsuits which thus far have been dismissed on the merits or denied class certification.  Nevertheless, the threat of suit may have had a chilling effect.  Intimidation tactics worked.  The overwhelming majority of law school deans chose to remain silent.  This failure to respond created the false impression that no response was possible, even though the data clearly showed that the critics were fundamentally wrong about the value and affordability of legal education.

Worse yet, some law schools unwittingly contributed to the press’s anti-law school excesses.  When wealthy institutions attacked schools that were resource-constrained for offering competitive merit scholarships, and resource-constrained institutions attacked wealthier rivals for funding bridge-to-practice jobs, the aggregate effect was that a variety of well-intentioned efforts to help law students made law schools collectively appear dishonest.  The press stirred the pot, taking quotes out of context, stripping away nuance and exaggerating conflict.

Law schools are competitors, but they need not compete in ways that are mutually destructive.  Competition should drive progress, innovation, and value, not mud slinging. Law schools have a great deal in common, make important contributions to society, and can and should pursue shared goals and values together.

Pursuit of the common good is the purpose for which associations exist.  An association of law schools need not fear a retaliatory smear campaign, because standing up to a smear campaign with facts and data will only increase the regard in which the association is held by its members. Trade associations are generally better informed than industry critics, and, notwithstanding the obvious fact that they speak for their members, play an important role in informing public dialogue. Public-service-oriented law schools may see themselves as fundamentally different from the financial services or pharmaceutical industry, but they face similar challenges and collective action problems when it comes to explaining their value to the press and the public.

Perhaps the closest thing in the law school world to a trade association is the Association of American Law Schools (AALS), although it historically has not acted like one.  For years, misinformation accelerated while the AALS failed to respond effectively.  It had six standing committees, none of which were responsible for public outreach.  Few of its long-time staffers had much experience in journalism or public relations.  Responding to slanted press coverage was not an institutional priority.  According to the AALS’s public disclosures, in 2013 it spent $1.2 million on communications, but this consisted almost exclusively of communications directed at law schools and their employees.

The AALS now has new leadership with new priorities and there have been welcome signs of progress. These include new hires with communications experience, a redesign of the website to be more outward facing, and greater engagement with journalists, regulators, and other members of the public. (See below for details).**  

Are the AALS efforts translating into better-informed press coverage?  Direct face-to-face interactions with journalists appear to be helping, at least on the margin.  However, there is still a great deal of work to be done.  Relatively few of the AALS social media followers are journalists, or for that matter anyone outside the law school world.  Traffic on its website is light.*** A Google search for “law school” or “law school news” does not show the AALS website in the first 20 pages of results—well behind many individual law school websites, law school ranking websites, several obscure organizations, and blogs of questionable repute. 

The AALS is too obscure to make a dent by passively posting stories and tweets and then waiting for a journalist to find the few that happen to be interesting or relevant to them.  A more active approach is needed. The AALS needs to monitor press coverage, engage with individual journalists who cover law and higher education issues through individualized emails, phone calls, and in person meetings and deliver personally tailored content that each journalist is particularly likely to find relevant and interesting based on their past coverage and the stories they are currently researching. 

The AALS should also rapidly correct inaccuracies (within hours), respond with clear and well-supported facts and data, and connect journalists with experts who can speak with authority about particular issues.  This should not be a low priority task fobbed off on volunteers or low paid student interns—it should be a fulltime job for experienced professional staffers, who regularly engage with AALS senior leadership.

In sum, the AALS needs to become a valuable resource for journalists, helping them provide higher quality coverage and guiding them toward greater accuracy when they err.

If this effort is to succeed, it will require more resources.  The AALS’s funding sources have been constrained in recent years: membership dues are tied to declining law school enrollments, and conference fees have been impacted by reductions in law school travel budgets.  The AALS’s new communications efforts have been financed with deficits and rely on volunteers and low-cost approaches that are of limited effectiveness.

Many law schools, facing deficits of their own, may feel as if they cannot afford to invest in a collective communications effort.  But law schools cannot afford to wait longer to make this investment.  As time goes by, resources will become even more constrained, and misunderstandings will become more entrenched. Law school budgets may be tight, but that is all the more reason to use limited resources prudently. 

I propose the following:

1)     The AALS should commit to shifting as many of its own resources as possible from less pressing needs to focus on public outreach efforts

2)     Member schools should temporarily provide additional funds earmarked specifically for public outreach efforts

3)     These efforts could be funded by a 50% to 100% increase in annual dues (roughly $5,000 to $10,000 for the smallest law schools and $15,000 to $30,000 for the largest) for the next 3 years.

A few thousand dollars extra per year per AALS member school—the equivalent of a few hundred dollars per faculty member and administrator—could fund several highly qualified fulltime communications professionals.

In case the AALS’s communication efforts prove slow or ineffective, or law schools are too divided to agree on a communications strategy, law schools might also wish to consider forming smaller, more nimble associations that can act swiftly in the common good.  Many industries have multiple trade associations that often work together, but do not always share the same priorities.

Providing more accurate information to the public could benefit law schools, but the greatest beneficiaries would be the students whose lives law school can change for the better.  For many college graduates, the $30,000 to $60,000 extra per year that they can typically earn with a law degree will mean the difference between living in a safe and clean neighborhood or one that is dangerous and polluted.  The expected boost to earnings can improve the healthfulness of their food, the quality of their healthcare, and the quality of education they can afford to provide for their own children.  For most law graduates, the extra earnings will affect when and whether they can afford to retire.  One of the best things law schools can do to help the middle class is to educate more of them.****

Contrary to popular belief, there is little evidence that larger law school graduating class sizes predict worse outcomes for law school graduates, nor is there evidence that smaller graduating class sizes predict better outcomes—at least not within the range of changes in class sizes we’ve seen over the last 50 years.*****  

Artificially driving down law school class sizes through misinformation, in the hope that smaller classes will have better outcomes, is misguided.  Moreover, misrepresenting law school as high-risk provides fodder for those who wish to scale back federal student loan programs, reduce protections for those unlucky few individuals who do have poor outcomes, and drive up the costs of financing higher education.

Many attacks on law schools are thinly veiled attacks on the legal profession itself—on the quality of the training lawyers receive, on their intelligence and their ethics. If these attacks turn good people away from attending law school, and if the legal academy and the legal profession fail to respond effectively, they risk the critique becoming a self-fulfilling prophecy.

 

*   Assuming 40,000 prospective law students from 2010-2015 who delayed law school and worked with a bachelor’s degree or chose to enter the labor force with just a bachelor’s degree, and an average financial harm to each student of $100,000, the total harm would be $4 billion.  As I noted previously, the harm from each year of delaying law school is typically more than $30,000, even after taking into account the potential benefits of graduating into a better economy.  $100,000 per student would represent a delay of slightly more than 3 years for each student, or about one out of 10 students deciding to enter the labor force with a bachelor’s degree instead of completing law school or a comparably beneficial graduate program.  40,000 students represents the sum of the differences between first year enrollments in 2010 and in each of the subsequent 5 years.

** I spoke with Judith Areen, the new Executive Director of the AALS and former Dean of Georgetown University Law Center, and James Greif, the AALS’s new Director of Communications about developments at AALS.  In late 2013, AALS’s executive committee voted to expanded AALS’s mission to provide a more accurate characterization of legal education to the public.  In early 2014 and 2015, AALS held press briefings at its Annual Meetings and connected journalists with relevant programs.  These efforts contributed to relatively balanced coverage in the Chronicle of Higher Education. 

Within the last year, the AALS hired an experienced director of communications, added two full time communications staff, and several part-time student communications interns. The AALS shares law school stories on its website and through social media (Twitter, Facebook, LinkedIn and YouTube).  Of the AALS’s roughly 1,000 twitter followers, most appear to be affiliated with law schools, but at least a handful are journalists.

According to Dean Areen, AALS’s senior officers, who include current and former law school deans, also meet with reporters and editors individually. In late 2014, AALS redesigned its website for outside audiences, posting law school news, highlighting innovative programs at law schools, and providing a platform for opinion pieces about timely topics in legal education.  The AALS’s Deans’ Steering Committee commented on the California Bar’s proposal to require 15 credits of experiential learning—engagement with regulators that attracted considerable press attention.  The views of the Steering Committee were not universally shared among law schools, and the AALS also publicized dissenting viewpoints.

*** As of August 22, 2015, Alexa ranks the AALS website 154,000 in the United States,  (To put this into context, Paul Caron’s Taxprof blog is ranked 36,000, and the AAUP is ranked 73,000).

****  At least those who resemble previous cohorts of law students, for whom law school provided substantial benefits.  The effects of law school on individuals who are very different from past law students might be different from the effects on past law students.  

***** This may be due to changes in law school resources and quality of education, or changes in law school selectivity, that typically accompany changes in cohort size and push in different directions.