You are currently browsing the archives for Deborah J. Merritt.
Fee Shifting
June 14th, 2015 / By Deborah J. Merritt
I recently interviewed Pete Barry, a lawyer who represents plaintiffs suing debt collection agencies for violations of the Fair Debt Collections Act (FDCA). You can listen to the interview in this “I Am the Law” podcast.
Pete is quick to acknowledge that his clients should pay their debts; he’s not in the business of shielding deadbeats. At the same time, Congress found that abusive debt collection causes job losses, marital breakups, and bankruptcies–all events that hinder debt repayment. To prevent these outcomes, Congress outlawed some debt collection practices.
Rather than create an agency to police debt collection, Congress chose to rely upon private enforcement. When a plaintiff establishes an FDCA violation, she recovers actual damages, court-ordered compensation of up to $1,000, court costs, and an attorney’s fee.
The fee shifting produces some eye-opening results. As Pete explains in the podcast, many defendants know that they’ve crossed the line and are willing to settle. Unless the plaintiff has provable actual damages, she may recoup only $1,000 through settlement. Pete’s court-approved hourly rate, however, is $450. He tracks his time carefully and defendants pay those bills when they settle. Even an easy case can generate $4,500 in attorney’s fees.
Did You Learn This in Law School?
Pete’s practice intrigues me because of its business model. Rather than rely upon clients to pay his bills, Pete built his practice around a federal fee-shifting statute. He notes that there are many such statutes, and that too many lawyers overlook them when designing a practice.
After talking to Pete, I realized that law schools also overlook these statutes. Some fee-shifting laws, particularly those related to civil rights, appear in the law school curriculum. Even courses teaching those statutes, however, tend to focus on substantive rules rather than the potential for attorney’s fees.
When we do talk about attorney’s fees in law school, we usually discuss the policies surrounding fee shifting. We may use noble language like “creating private attorneys general,” but we rarely analyze the potential for these statutes to create a viable law practice.
Vindicating Congressional Policies
Congress didn’t create fee-shifting statutes to support lawyers. Instead, these statutes protect important interests–primarily ones held by the poor and middle class. Potential plaintiffs have suffered from our lack of attention to these statutes.
Imagine if the required 1L year included a course on fee-shifting statutes. That course would deepen students’ knowledge of statutory law, highlight rights that Congress (or state legislatures) considered important enough to enforce through attorney’s fees, and expose students to injuries that disproportionately affect poor, middle class, and minority clients. The course would also remind students that legal remedies aren’t free and most lawyers earn their living from private clients.
I doubt that many law schools (if any) would add my proposed course to the first-year curriculum. Just imagining such a course, however, helps me see the distortions in the current curriculum. Our traditional courses help students master fundamental legal concepts, like negligence or breach of contract. I suspect, however, that we could teach the same concepts through modern statutes–and perhaps give students better grounding in the statutory remedies that define most contemporary legal rights.
At the same time, we would focus students on a fact that is fundamental to both the rule of law and their future as practicing attorneys: Lawyers can’t promote justice unless someone pays their bills. If law schools paid closer attention to this truth, including the business side of law practice, we might widen the scope of legal services.
The Appellate Classroom
June 12th, 2015 / By Deborah J. Merritt
Critics of legal education often note the primacy of appellate law in law school classrooms. Our doctrinal courses, after all, rest primarily on appellate opinions. But the focus on appellate advocacy is even more pervasive than this: Our “Socratic” questioning follows the cadence of an appellate argument.
The professor stands at the front of the room, often on an elevated platform. She poses a question, which a single student addresses. Some questions involve the facts of the underlying case; others address application of the legal principle to other alternative fact patterns. After the student answers, the professor poses another question.
If you doubt the similarity to an appellate argument, try this experiment: Attend an appellate argument in a local courthouse, then witness a traditional law school class later the same day. I once did this, entirely by accident, and I was astounded by the similarities.
Preparation for Lawyering
Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns.
Some of my colleagues argue that the latter task prepares students for other types of practice. We may, for example, ask a student: “How would you counsel your client to respond to this decision?” Or, “what if you advised a client to do X? Would that fall within the court’s holding here?”
These questions, however, are like the ones that appellate judges ask as they probe the doctrinal reach of a possible holding. The substance is the same as questions asking “if I accept your argument, how would that affect individuals who do X?” Or, “how will clients change their practices if we adopt your interpretation of the statute?”
These questions about “advising clients” do not give students practice in client counseling. If a lawyer were representing a real client, the answer to the above classroom questions would be something like: “It depends how much the client has to spend, both on legal representation and on modifications to her business. It also depends on how much the client cares about Y rather than Z. I’d also need to ask the client about potential alternatives.”
Experiential Education
It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose.
Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice.
Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client outside of that setting? That question lies at the root of constructive pedagogic change.
Paid Externships
June 8th, 2015 / By Deborah J. Merritt
The ABA’s Council of the Section of Legal Education and Admissions to the Bar has agreed to hold hearings on a proposal that would allow law schools to grant academic credit for paid externships. I favor the proposal because it might encourage the development of innovative partnerships between employers and the academy. I also hope the proposal would ease the financial burden on law students although, as I explain below, this is unlikely to happen. Instead, law schools need to consider other options for reducing that burden.
Employers and Externships
Advocates of paid externships have urged that, given the high cost of law school tuition, students shouldn’t have to choose between paid jobs and unpaid externships. I agree that students shouldn’t have to make this choice, and that we should do as much as possible to lower law school tuition. Unfortunately, however, the proposed ABA rule change will create few paid externships.
The problem is that employers have no incentive to turn paid positions into externships. Creating and maintaining an externship imposes administrative burdens on employers. Some employers will accept those burdens in return for free labor; they hope that the externship rubric and university participation will create an exemption from the minimum wage laws. But if an employer is already complying with those laws by paying a law student for her work, what incentive does the employer have to submit to a law school’s oversight through an externship program?
There may be some employers that are willing to do this; that’s why I support the proposed change in law school accreditation standards. That change, however, offers no guarantee that employers will embrace paid externships. I suspect that relatively few will do so.
Alternative Paths
If we want to lower the cost of attending law school and/or give students more experiential learning opportunities, law schools have other choices. One option is to “decelerate” law school by allowing students to attend school part-time for the same total cost they would pay as full-time students. Currently, most part-time programs cost more overall than a full-time program would. Even summer credits cost more than academic-year ones at some schools. These pricing schemes penalize students for their need (or desire) to combine work and study.
Another option for many law schools is simply to reduce the number of credits required for graduation. ABA Standard 311 requires that students complete at least 83 credit hours to earn the JD. A quick google search, however, reveals that many law schools require more hours than that minimum. Schools that want to ease their students’ ability to work part-time for pay could simply reduce the credits they require for graduation. While they’re at it, they could reduce tuition to reflect the reduced demand on teaching resources.
Law schools could pursue either of these options today, without waiting for ABA hearings or rule changes. We could also develop other approaches to restraining the cost of legal education and enhancing its value. Don’t get me wrong: permitting paid externships is a worthwhile change. But I predict that the change will have little impact on the cost of legal education. If we want to lower those costs, we have to do the work ourselves.
ATL Rankings: The Bad and the Maybe
June 5th, 2015 / By Deborah J. Merritt
I’ve already discussed the positive aspects of Above the Law (ATL)’s law school rankings. Here I address the poorly constructed parts of the ranking scheme. Once again, I use ATL to provoke further thought about all law school rankings.
Quality Jobs Score
ATL complements its overall employment score, which is one of the scheme’s positive features, with a “quality jobs score.” The latter counts only “placement with the country’s largest and best-paying law firms (using the National Law Journal’s “NLJ 250”) and the percentage of graduates embarking on federal judicial clerkships.”
I agree with ATL’s decision to give extra weight to some jobs; even among jobs requiring bar admission, some are more rewarding to graduates than others. This category, however, is unnecessarily narrow–and too slanted towards private practice.
Using ATL’s own justification for the category’s definition (counting careers that best support repayment of law school debt), it would be easy to make this a more useful category. Government and public interest jobs, which grant full loan forgiveness after ten years, also enable repayment of student loans. Given the short tenure of many BigLaw associates, the government/public interest route may be more reliable than the BigLaw one.
I would expand this category to include all government and public interest jobs that qualify graduates for loan forgiveness at the ten-year mark, excluding only those that are school financed. Although ATL properly excludes JD-advantage jobs from its general employment score, I would include them here–as long as the jobs qualify for public-service loan forgiveness. A government job requiring bar admission, in other words, would count toward both employment measures, while a JD-advantage government position would count just once.
Making this change would reduce this factor’s bias toward private practice, while incorporating information that matters to a wider range of prospective students.
SCOTUS Clerks and Federal Judges
Many observers have criticized this component, which counts “a school’s graduates as a percentage of (1) all U.S. Supreme Court clerks (since 2010) and (2) currently sitting Article III judges.” For both of these, ATL adjusts the score for the size of the school. What’s up with that?
ATL defends the criterion as useful for students “who want to be [federal] judges and academics.” But that’s just silly. These jobs constitute such a small slice of the job market that they shouldn’t appear in a ranking designed to be useful for a large group of users. If ATL really embraces the latter goal, there’s an appropriate way to modify this factor.
First, get rid of the SCOTUS clerk count. That specialized information is available elsewhere (including on ATL) for prospective students who think that’s relevant to their choice of law school. Second, expand the count of sitting Article III judges to include counts of (a) current members of Congress; (b) the President and Cabinet members; and (c) CEO’s and General Counsel at all Fortune 500 companies. Finally, don’t adjust the counts for school size.
These changes would produce a measure of national influence in four key areas: the judiciary, executive branch, legislature, and corporate world. Only a small percentage of graduates will ever hold these very prestigious jobs, but the jobholders improve their school’s standing and influence. That’s why I wouldn’t adjust the counts for school size. If you’re measuring the power that a school exerts through alumni in these positions, the absolute number matters more than the percentage.
Leaders in private law firms, state governments, and public interest organizations also enhance a school’s alumni network–and one could imagine adding those to this component. Those organizations, however, already receive recognition in the two factors that measure immediate graduate employment. It seems more important to add legislative, executive, and corporate influence to the rankings. As a first step, therefore, I would try to modify this component as I’ve outlined here.
Component Sorting
A major flaw in ATL’s scheme is that it doesn’t allow users to sort schools by component scores. The editors have published the top five schools in most categories, but that falls far short of full sorting. Focused-purpose rankings are most useful if readers can sort schools based on each component. One reader may value alumni ratings above all other factors, while another reader cares about quality jobs. Adding a full-sort feature to the ranking would be an important step.
Why Rank?
Like many educators, I dislike rankings. The negative incentives created by US News far outweigh the limited value it offers prospective students. Rankings can also mislead students into making decisions based solely on those schemes, rather than using rank as one tool in a broader decisionmaking process. Even if modified in the ways I suggest here, both of these drawbacks may affect the ATL rankings.
As Law School Transparency has shown, it is possible to give prospective students useful information about law schools without adding the baggage of rankings. Above the Law could perform a greater public service by publishing its data as an information set rather than as an integrated ranking.
But rankings draw attention and generate revenue; they are unlikely to disappear. If we’re going to have rankings, then it’s good to have more than one. Comparing schemes may help us see the flaws in all ranking systems; perhaps eventually we’ll reject rankings in favor of other ways to organize information.
ATL Rankings: The Good, the Bad, and the Maybe
June 4th, 2015 / By Deborah J. Merritt
In my last post I used Above the Law (ATL)’s law school rankings to explore three types of ranking schemes. Now it’s time to assess the good, bad, and maybe of ATL’s system. In this column I explore the good; posts on the bad and maybe will follow shortly. ATL’s metrics are worth considering both to assess that system and to reflect on all ranking schemes.
Employment Score
ATL’s ranking gives substantial weight to employment outcomes, a factor that clearly matters to students. I agree with ATL that “full-time, long-term jobs requiring bar passage (excluding solos and school-funded positions)” offer the best measure for an employment score. Surveys show that these are the jobs that most graduates want immediately after law school. Equally important, these are the jobs that allow law schools to charge a tuition premium for entry to a restricted profession. Since schools reap the premium, they should be measured on their ability to deliver the outcome.
For a focused-purpose ranking, finally, simple metrics make the most sense. Prospective law students who don’t want to practice can ignore or adjust the ATL rankings (which assume practice as a desired outcome). A student admitted to Northwestern’s JD-MBA program, for example, will care more about that program’s attributes than about the ATL rank. For most students, ATL’s employment score offers a useful starting point.
Alumni Rating
This metric, like the previous one, gives useful information to prospective students. If alumni like an institution’s program, culture, and outcomes, prospective students may feel the same. Happy alumni also provide stronger networks for career support. The alumni rating, finally, may provide a bulwark against schools gaming other parts of the scheme. If a school mischaracterizes jobs, for example, alumni may respond negatively.
It’s notable that ATL surveys alumni, while US News derives reputation scores from a general pool of academics, lawyers, and judges. The former offers particularly useful information to prospective students, while the latter focuses more directly on prestige.
Debt Per Job
This is a nice way of incorporating two elements (cost and employment) that matter to students. The measure may also suggest how closely the institution focuses on student welfare. A school that keeps student costs low, while providing good outcomes, is one that probably cares about students. Even a wealthy student might prefer that institution over one with a worse ratio of debt to jobs.
The best part of this metric is that it gives law schools an incentive to award need-based scholarships. Sure, schools could try to improve this measure by admitting lots of wealthy students–but there just aren’t that many of those students to go around. Most schools have already invested in improving employment outcomes, so the best way to further improve the “debt per job” measure is for the school to award scholarships to students who would otherwise borrow the most.
Over the last twenty years, US News has pushed schools from need-based scholarships to LSAT-based ones. What a refreshing change if a ranking scheme led us back to need-based aid.
Education Cost
Cost is another key factor for 0Ls considering law schools and, under the current state of the market, I support ATL’s decision to use list-price tuition for this measure. Many students negotiate discounts from list price, but schools don’t publish their net tuition levels. The whole negotiation system, meanwhile, is repugnant. Why are schools forcing young adults to test their bargaining skills in a high-stakes negotiation that will affect their financial status for up to a quarter century?
We know that in other contexts, race and gender affect negotiation outcomes. (These are just two of many possible citations.) How sure are we that these factors don’t affect negotiations for tuition discounts? Most of the biases that taint negotiations are unconscious rather than conscious. And even if law school administrators act with scrupulous fairness, these biases affect the students seeking aid: Race and gender influence a student’s willingness to ask for more.
In addition to these biases, it seems likely that students from disadvantaged backgrounds know less about tuition negotiation than students who have well educated helicopter parents. It’s no answer to say that economically disadvantaged students get some tuition discounts; the question is whether they would have gotten bigger discounts if they were armed with more information and better negotiating skills.
Negotiation over tuition is one of the most unsavory parts of our current academic world. I favor any component of a ranking scheme that pushes schools away from that practice. If schools don’t want to be ranked based on an inflated list-price tuition, then they can lower that tuition (and stop negotiating) or publish their average net tuition. My co-moderator made the same point last year, and it’s just as valid today.
The Bad and Maybe
Those are four strengths of the ATL rankings. Next up, the weaknesses.
More on Rankings: Three Purposes
June 1st, 2015 / By Deborah J. Merritt
I want to continue my discussion of the law school rankings published by Above the Law (ATL). But before I do, let’s think more generally about the purpose of law school rankings. Who uses these rankings, and for what reason? Rankings may serve one or more of three purposes:
1. Focused-Purpose Rankings
Rankings in this first category help users make a specific decision. A government agency, for example, might rate academic institutions based on their research productivity; this ranking could the guide the award of research dollars. A private foundation aiming to reward innovative teaching might develop a ranking scheme more focused on teaching prowess.
US News and Above the Law advertise their rankings as focused-purpose ones: Both are designed to help prospective students choose a law school. One way to assess these rankings, accordingly, is to consider how well they perform this function.
Note that focused-purpose rankings can be simple or complex. Some students might choose a law school based solely on the percentage of graduates who secure jobs with the largest law firms. For those students, NLJ’s annual list of go-to law schools is the only ranking they need.
Most prospective students, however, consider a wider range of factors when choosing a law school. The same is true of people who use other types of focused-purpose rankings. The key function of these rankings is that they combine relevant information in a way that helps a user sort that information. Without assistance, a user could focus on only a few bits of information at a time. Focused-purpose rankings overcome that limit by aggregating some of the relevant data.
This doesn’t mean that users should (or will) make decisions based solely on a ranking scheme. Although a good scheme combines lots of relevant data, the scheme is unlikely to align precisely with each user’s preferences. Most people who look at rankings use them as a starting point. The individual adds relevant information omitted by the ranking scheme, or adjusts the weight given to particular components, before making a final decision.
A good ranking scheme in the “focused purpose” category supports this process through four features. The scheme (a) incorporates factors that matter to most users; (b) omits other, irrelevant data; (c) uses unambiguous metrics as components; and (d) allows users to disaggregate the components.
2. Prestige Rankings
Some rankings explicitly measure prestige. Others implicitly offer that information, although they claim another purpose. In either case, the need for “prestige” rankings is somewhat curious. Prestige does not inhere in institutions; it stems from the esteem that others confer upon the institution. Why do we need a ranking system to tell us what we already believe?
One reason is that our nation is very large. People from the West Coast may not know the prestige accorded Midwestern institutions. Newcomers to a profession may also seek information about institutional prestige. Some college students know very little about the prestige of different law schools.
For reasons like these, prestige rankings persist. It is important to recognize, however, that prestige rankings differ from the focused-purpose schemes discussed above. Prestige often relates to one of those focused purposes: A law school’s prestige, for example, almost certainly affects the employability of its graduates. A ranking of schools based on prestige, however, is different than a ranking that incorporates factors that prospective students find important in selecting a school.
Prestige rankings are more nebulous than focused-purpose ones. The ranking may depend simply on a survey of the relevant audience. Alternatively, the scheme may incorporate factors that traditionally reflect an institution’s prestige. For academic institutions, these include the selectivity of its admissions, the qualifications of its entering class, and the institution’s wealth.
3. Competition Rankings
Competition rankings have a single purpose: to confer honor. A competition ranking awards gold, silver, bronze, and other medals according to specific criteria. These rankings differ from the previous categories because their sole purpose is to accord honor for winning the competition.
Many athletic honors fall into this category. We honor Olympic gold medalists because they were the best at their event on a particular day, even if their prowess diminishes thereafter.
Competition rankings are most common in athletics and the arts, although they occasionally occur in academia. More commonly, as I discuss below, people misinterpret focused-purpose rankings as if they were competition ones.
US News
As noted above, US News promotes its law school ranking for a focused purpose: to help prospective students choose among law schools. Over time, however, the ranking has acquired aspects of both a prestige scheme and a competition one. These characteristics diminish the rankings’ use for potential students; they also contribute to much of the mischief surrounding the rankings.
Many professors, academic administrators, and alumni view their school’s US News rank as a general measure of prestige, not simply as a tool for prospective students to use when comparing law schools. Some of the US News metrics contribute to this perception. Academic reputation, for example, conveys relatively little useful information to potential students. It is much more relevant to measuring an institution’s overall prestige.
Even more troublesome, some of these audiences have started to treat the US News rankings as a competition score. Like Olympic athletes, schools claim honor simply for achieving a particular rank. Breaking into the top fourteen, top twenty, or top fifty becomes cause for excessive celebration.
If the US News ranking existed simply to aid students in selecting a law school, they would cause much less grief. Imagine, for example, if deans could reassure anxious alumni by saying something like: “Look, these rankings are just a tool for students to use when comparing law schools. And they’re not the only information that these prospective students use. We supplement the rankings by pointing to special features of our program that the rankings don’t capture. We have plenty of students who choose our school over ones ranked somewhat above us because they value X, Y, and Z.”
Deans can’t offer that particular reassurance, and listeners won’t accept it, because we have all given the US News rankings the status of prestige or competition scores. It may not matter much if a school is number 40 or 45 on a yardstick that 0Ls use as one reference in choosing a law school. Losing 5 prestige points, on the other hand, ruins everyone’s day.
Above the Law
I’ll offer a more detailed analysis of the ATL rankings in a future post. But to give you a preview: One advantage of these rankings over US News is that they focus very closely on the particular purpose of aiding prospective students. That focus makes the rankings more useful for their intended audience; it also avoids the prestige and competition auras that permeate the US News product.
ATL Law School Rankings
May 29th, 2015 / By Deborah J. Merritt
Above the Law (ATL) has released the third edition of its law school rankings. Writing about rankings is a little like talking about intestinal complaints: We’d rather they didn’t exist, and it’s best not to mention such things in polite company. Rankings, however, are here to stay–and we already devote an inordinate amount of time to talking about them. In that context, there are several points to make about Above the Law‘s ranking scheme.
In this post, I address an initial question: Who cares about the ATL rankings? Will anyone read them or follow them? In my next post, I’ll explore the metrics that ATL uses and the incentives they create. In a final post, I’ll make some suggestions to improve ATL’s rankings.
So who cares? And who doesn’t?
Prospective Students
I think potential law students are already paying attention to the ATL rankings. Top-Law-Schools.com, a source used by many 0Ls, displays the Above the Law rankings alongside the US News (USN) list. Prospective students refer to both ranking systems in the site’s discussion forum. If prospective students don’t already know about ATL and its rankings, they will soon.
If I were a prospective student, I would pay at least as much attention to the ATL rankings than the USN ones. Above the Law, after all, incorporates measures that affect students deeply (cost, job outcomes, and alumni satisfaction). US News includes factors that seem more esoteric to a potential student.
Also, let’s face it: Above the Law is much more fun to read than US News. Does anyone read US News for any purpose other than rankings? 0Ls read Above the Law for gossip about law schools and the profession. If you like a source and read it regularly, you’re likely to pay attention to its recommendations–including recommendations in the form of rankings.
Alumni
Deans report that their alumni care deeply about the school’s US News rank. Changes in that number may affect the value of a graduate’s degree. School rank also creates bragging rights among other lawyers. We don’t have football or basketball teams at law schools, so what other scores can we brag about?
I predict that alumni will start to pay a lot of attention to Above the Law‘s ranking scheme. Sure, ATL is the site we all love to hate: Alumni, like legal educators, cringe at the prospect of reading about their mistakes on the ever-vigilant ATL. But the important thing is that they do read the site–a lot. They laugh at the foibles of others, nod in agreement with some reports, and keep coming back for more. This builds a lot of good will for Above the Law.
Equally important, whenever Above the Law mentions a law school in a story, it appends information about the school’s ATL rank. For an example, see this recent story about Harvard Law School. (I purposely picked a positive story, so don’t get too excited about following the link.)
Whenever alumni read about their law school–or any law school–in Above the Law, they will see information about ATL’s ranking. This is true even for the 150 schools that are “not ranked” by Above the Law. For them, a box appears reporting that fact along with information about student credentials and graduate employment.
This is an ingenious (and perfectly appropriate) marketing scheme. Alumni who read Above the Law will constantly see references to ATL’s ranking scheme. Many will care about their school’s rank and will pester the school’s dean for improvement. At first, they may not want to admit publicly that they care about an ATL ranking, but that reservation will quickly disappear. US News is a failed magazine; Above the Law is a very successful website. Which one do you think will win in the end?
US News, moreover, has no way to combat this marketing strategy. We’ve already established that no one reads US News for any reason other than the rankings. So US News has no way to keep its rankings fresh in the public’s mind. Readers return to Above the Law week after week.
Law Professors
Law professors will not welcome the ATL rankings. We don’t like any rankings, because they remind us that we’re no longer first in the class. And we certainly don’t like Above the Law, which chronicles our peccadilloes.
Worst of all, ATL rankings don’t fit with our academic culture. We like to think of ourselves as serious-minded people, pursuing serious matters with great seriousness. How could we respect rankings published by a site that makes fun of us and all of our seriousness? Please, be serious.
Except…professors spent a long time ignoring the US News rankings. We finally had to pay attention when everyone else started putting so much weight on them. Law faculty are not leaders when it comes to rankings; we are followers. If students and alumni care about ATL’s rankings, we eventually will pay attention.
University Administrators
People outside academia may not realize how much credence university presidents, provosts, and trustees give the US News rankings. The Board of Trustees at my university has a scorecard for academic initiatives that includes these two factors: (1) rank among public colleges, as determined by USN, and (2) number of graduate or professional programs in the USN top 25. On the first, we aim to improve our rank from 18 to 10. On the second, we hope to increase the number of highly ranked departments from 49 to 65.
These rank-related goals are no longer implicit; they are quite explicit at universities. And, although academic leaders once eschewed US News as a ranking source, they now embrace the system.
Presidents and provosts are likely to laugh themselves silly if law schools clamor to be judged by Above the Law rather than US News. At least for the immediate future, this will restrain ATL’s power within academia.
On the other hand, I remember a time (in the late 1990’s) when presidents and provosts laughed at law schools for attempting to rely upon their US News rank. “Real” academic departments had fancier ranking schemes, like those developed by the National Research Council. But US News was the kudzu of academic rankings: It took over faster than anyone anticipated.
Who’s to say that the Above the Law rankings won’t have their day, at least within legal education?
Meanwhile
Even if US News retains its primary hold on academic rankings, Above the Law may have some immediate impact within law schools. High US News rank, after all, depends upon enrolling talented students. If prospective students pay attention to Above the Law–as I predict they will–then law schools will have to do the same. To maintain class size and student quality, we need to know what students want. For that, Above the Law offers essential information
Compliance at the University of St. Thomas
May 24th, 2015 / By Deborah J. Merritt
Joel Nichols, the Associate Dean for Academic Affairs at the University of St. Thomas School of Law, sent me some information about his school’s program in Organizational Ethics and Compliance. The program is still heavily centered in the law school, but it includes key collaboration with the university’s Opus College of Business. The program also offers several options to students, including a JD certificate, JD/LLM in Ethics and Compliance (which can be completed in seven semesters), MSL (for students without a JD), and LLM (for those who already hold the JD).
Perhaps most noteworthy, the program has a substantial advisory board of compliance professionals from outside the university. Creating an advisory board of this nature is an excellent idea. In addition to helping schools identify appropriate coursework, an expert board can advise schools on employment prospects, career pathways, and the relationship between formal education and workplace experience in this area.
Interesting next steps for the St. Thomas program might be (a) creation of an undergraduate major, (b) addition of more courses related to organizational psychology and social psychology, and (c) development of more coursework focused on health-care compliance. UST does not have a medical school, but that circumstance might lead to particularly innovative offerings in this area. Perhaps a member of the advisory board could create a course that includes significant hands-on work or shadowing?
Please feel free to send me information about other notable programs in the compliance area.
ExamSoft Settlement
May 20th, 2015 / By Deborah J. Merritt
A federal judge has tentatively approved settlement of consolidated class action lawsuits brought by July 2014 bar examinees against ExamSoft. The lawsuits arose out of the well known difficulties that test-takers experienced when they tried to upload their essay answers through ExamSoft’s software. I have written about this debacle, and its likely impact on bar scores, several times. For the most recent post in the series, see here.
Looking at this settlement, it’s hard to know what the class representatives were thinking. Last summer, examinees paid between $100 and $150 for the privilege of using ExamSoft software. When the uploads failed to work, they were unable to reach ExamSoft’s customer service lines. Many endured hours of anxiety as they tried to upload their exams or contact customer service. The snafu distracted them preparing for the next day’s exam or getting some much needed sleep.
What are the examinees who suffered through this “barmageddon” getting for their troubles? $90 apiece. That’s right, they’re not even getting a full refund on the fees they paid. The class action lawyers, meanwhile, will walk away with up to $600,000 in attorneys’ fees.
I understand that damages for emotional distress aren’t awarded in contract actions. I get that (and hopefully got that right on the MBE). But agreeing to a settlement that awards less than the amount exam takers paid for this shoddy service? ExamSoft clearly failed to perform its side of the bargain; the complaint stated a very straightforward claim for breach of contract. In addition, the plaintiffs invoked federal and state consumer laws that might have awarded other relief.
What were the class representatives thinking? Perhaps they used the lawsuit as a training ground to enter the apparently lucrative field of representing other plaintiffs in class action suits. Now that they know how to collect handsome fees, they’re not worried about the pocket change they paid to ExamSoft.
I believe in class actions–they’re a necessary procedure to enforce some claims, including the ones asserted in this case. But the field now suffers from so much abuse, with attorneys collecting the lions’ share of awards and class members receiving relatively little. It’s no wonder that the public, and some appellate courts, have become so cynical about class actions.
From that perspective, there’s a great irony in this settlement. People who wanted to be lawyers, and who suffered a compensable breach of contract while engaged in that quest, have now been shortchanged by the very professionals they seek to join.
Campbell on Compliance
May 20th, 2015 / By Deborah J. Merritt
Compliance is one of the “hot” alternative jobs that law schools are promoting for their graduates. Much of this discussion, unfortunately, pays little heed to the nature of compliance jobs and whether legal education really prepares students to do this work well. The two seem to fit. After all, compliance is all about obeying the law, and JDs know a lot of law. The equation, though, isn’t that simple.
Law and Compliance
Ray Worthy Campbell explores these issues as one part of a rewarding new paper, The End of Law Schools. Although the title is provocative, and Campbell warns law schools of continued upheaval in the profession, the paper’s thesis is forward looking and upbeat. Campbell urges law schools to reinvent themselves as “schools of the legal professions.”
As part of that analysis, Campbell offers the best discussion I’ve seen of the difference between compliance and traditional law practice. His insights parallel those I’ve heard from contemporary general counsels, which is not surprising since Campbell has extensive practice experience. Educators who are contemplating the addition of compliance courses to the law school curriculum, or who just want to understand this area, should read Campbell’s exposition carefully.
Lawyers, as Campbell explains, tend to assume that compliance requires simply “explaining what the law require[s], and leaving it up the client to hew to the law.” P. 48. But today’s compliance officers are more about the “hewing” than the “explaining.” Naturally, a compliance officer has to understand the legal requirements affecting a company. Legal education can help with that foundation although, as Campbell points out, law schools pay more attention to broad legal principles than to “chapter and verse” of tedious regulations.
More important, understanding the law is just the starting point for an effective compliance officer. Big corporate scandals don’t arise from misreading the law; they often stem from behavior that all participants know full well is illegal. Did Walmart executives mistakenly think it was legal to bribe foreign government officials–or to cover up the evidence of those acts? See p. 49. No one needed a law degree to figure that one out.
Compliance Essentials
Instead, effective compliance officers need a host of knowledge and skills that law schools don’t touch. Necessary background includes “an understanding of how individuals work within a corporate culture, how leaders in an organization can inspire compliance, and [how to] identify[] those points in a business process most likely to lead to risks.” P. 49. “[T]racking, documenting and motivating employee behavior” are also essential. Id.
In addition to these basics, which infuse all compliance work, a compliance officer needs to understand her company’s business. It’s hard to achieve environmental compliance if your last science class was in high school. Ditto for privacy without some knowledge of computer programming. Almost all of the compliance fields require good accounting and math skills. Law students with STEM-phobia are not good candidates for most compliance positions.
Thinking Like a Compliance Officer
Compliance officers thus need education in fields outside the legal mainstream. Too many traditional law classes, meanwhile, may create the wrong mindset for compliance. Law schools hubristically assume that “thinking like a lawyer” is the best mental tool for any task. Traditionally educated lawyers, however, take a surprisingly narrow approach to problems.
Faced with a regulation, a lawyer’s first instinct is to find loopholes–ways for the client to avoid any unnecessary burdens. If there are no loopholes, then the lawyer will consider challenging the regulation in court. Did the agency follow proper procedures when adopting the rule? Did Congress give the agency sufficient authority in this area? Does the regulation raise constitutional issues under the nondelegation doctrine?
These lawyerly questions are appropriate under some circumstances. Indeed, any company faced with a burdensome regulation might ask its lawyers to explore these possibilities. But that’s lawyer work, not compliance.
Compliance requires a very different mindset: Now that we’ve established the validity and scope of these regulations, how do we go about obeying them? A lay person would be surprised to learn that we rarely view the law from that perspective in law school. Yet, as Campbell’s discussion reveals, this is not surprising at all. Effective compliance requires close reading of regulations and (sometimes) cases, but many college graduates can accomplish that task. Once one knows what the law requires, compliance requires very little manipulation of legal principles.
Educating Compliance Officers
Given the differences between law and compliance, Campbell predicts that law schools will not dominate compliance work simply by graduating traditional JDs. Some JDs will find work (and satisfaction) in that field, but the conventional path is both expensive and unsuited for compliance work. Instead, other programs are emerging that focus specifically on compliance careers.
Some of these programs are in law schools, some are in other departments. Some offer degrees, others provide certificates. Some encompass a year or more of work, others span only a few days. Some are online, others are face-to-face. As compliance continues to spawn job opportunities, preparatory programs will blossom. To what extent should law schools participate in that growth?
Campbell notes that law schools cannot educate effective compliance officers by simply packaging part of the current curriculum. Creating meaningful compliance education will require schools to add new fields of study while reshaping conventional ones. That process, Campbell suggests, could form part of the rebirth and expansion of law schools into “schools of the legal professions.” He urges schools to follow that path.
I wholeheartedly agree with Campbell that law schools need new faculty, fields of study, and pedagogic approaches to teach compliance effectively. Excellent education in that field will not be cheap. It will also stray from the single-minded focus that law schools have maintained for generations: the study of appellate opinions as a way of preparing graduates to handle legal disputes.
Broadening the focus of law school would be healthy for many reasons. In addition to allowing schools to enter the compliance field, it would expand our notion of lawyering to encompass the many types of work our graduates already do. Campbell’s vision of a school of the legal professions is very appealing.
Independence or Collaboration?
On the other hand, refashioning law schools as Campbell suggests will be a daunting task. Rather than attempt to create these programs within existing colleges of law, perhaps we should forge truly collaborative degrees with other units on campus.
Academia has long depended upon silos. Degrees belong to particular units, who jealously guard both the stature and revenue generated by those degrees. Interdisciplinary work is painful, as deans are reluctant to share their faculty’s teaching and scholarly capital with others. Despite their rhetoric, provosts and presidents often structure the university’s budget to reward just this type of turf protection.
Recently, however, I’ve seen signs that the old ways may be relaxing. In areas like environmental protection, neuroscience, and data analytics, universities seem to be willing to create truly cross-college programs. Committees of faculty drawn from all participating units govern these programs, which seem more genuinely devoted to meeting student needs than engaging in the horse trades that marked earlier interdisciplinary efforts.
I haven’t participated personally in any of these ventures, so I don’t know how optimistic to be. Despite my recent pessimism about aspects of legal education and the profession, I have an innate tendency toward optimism. (Really. My son calls me Miss Enthusiasm.) Perhaps this type of academic collaboration is illusory. But the stories I’ve heard suggest that there may be a new attitude emerging on campuses.
If so, then a cross-campus collaboration could be the perfect way to create a highly regarded program in compliance. With participation by law, business, organizational psychology, medicine, sciences, and other units, universities might already have the capacity to create stellar programs in this area. No unit would reap as much revenue as it might from an in-house program, but no unit would bear all the costs of building and maintaining such a program.
Maybe it’s time for creative destruction, not just in legal education, but in university structure.
About Law School Cafe
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
Law School Cafe is a resource for anyone interested in changes in legal education and the legal profession.
Around the Cafe
Subscribe
Categories
Recent Comments
- on Scholarship Advice
- on ExamSoft: New Evidence from NCBE
- on COVID-19 and the Bar Exam
- on Women Law Students: Still Not Equal
- on Ranking Academic Impact
Recent Posts
- The Bot Takes a Bow
- Fundamental Legal Concepts and Principles
- Lay Down the Law
- The Bot Updates the Bar Exam
- GPT-4 Beats the Bar Exam
Monthly Archives
Participate
Have something you think our audience would like to hear about? Interested in writing one or more guest posts? Send an email to the cafe manager at merritt52@gmail.com. We are interested in publishing posts from practitioners, students, faculty, and industry professionals.