You are currently browsing the archives for Deborah J. Merritt.
The Unhappiest Lawyers
May 16th, 2015 / By Deborah J. Merritt
The New York Times recently covered an excellent study by Lawrence Krieger and Ken Sheldon. I wrote about the study, which analyzes lawyer happiness, when it first appeared.
The research finds that “service” lawyers, who work as public defenders, government lawyers, legal aid attorneys, and in-house counsel to nonprofits, are happier than “prestige” lawyers (those who work primarily for firms with 100 or more lawyers). Based on decades of contact with law graduates, that result does not surprise me.
The article and media coverage, however, downplay a finding that is much more important to our graduates, the profession, and potential clients: The unhappiest lawyers are not the prestige ones. Instead, that dubious honor falls to the “other” lawyers, those who work in smaller law firms “in popular practice areas such as general practice, family law, private criminal defense, and many others not typically associated with either very high earnings or primary public service.” (P. 589)
Unfortunately, those “other” lawyers made up more than half (51.7%) of the sample surveyed by Krieger and Sheldon. What do we do about a profession in which some lawyers earn high income in “prestige” positions, while others secure well-being (and early loan forgiveness) in “service” jobs, but the majority obtain neither? How do we fulfill our responsibility to serve all of society’s legal needs when the greatest number of unmet needs fall in that “other” segment?
The Lawyer Drain
Krieger and Sheldon’s research helps explain why so many law graduates leave practice, while so many clients remain unserved. Our students are eager to secure prestige or service jobs. Some want just one of the two; others would be happy with either one. But those jobs won’t accommodate all of our graduates, either short-term or long-term. For those who enter practice, many will have to take jobs in small firms that serve individual clients.
Those graduates perceive the low prestige of these jobs, together with their modest pay and apparent lack of well being. Rather than accept work in these disfavored positions, some choose to leave law practice. They may find financial and personal rewards in those other positions, but they are not making full use of their legal education and law license. Some report ongoing regret that they were not able to fulfill their dream of law practice. Clients, meanwhile, continue to suffer lack of representation.
Underlying Causes
Is there a way to address this situation? Or is dissatisfaction with “other” law practice inevitable? That type of practice certainly offers plenty of frustrations: difficult clients, tedious courtroom waits, disappointing losses, and uncollected bills. But many of those factors mark “service” jobs as well. The work of a legal aid lawyer is not that different from the tasks of a family lawyer serving low- and mid-income clients. Nor does a public defender’s work differ much from that of a paid defense lawyer representing modest-income clients.
The primary difference between these categories lies in office management and bill collection. Those are tedious matters for many lawyers, but it doesn’t seem inevitable that they compromise well being. The “other” practice areas, meanwhile, offer some compensations that neither prestige nor service jobs as readily provide. Small-firm lawyers often have more autonomy than these other categories of lawyers. They may also have a greater chance of affecting their client’s lives positively than lawyers who work with the lowest income clients.
Part of the problem, I think, is that we have defined our professional categories to make this “other” work undesirable. Personal injury lawyers who represent the middle class are “ambulance chasers” rather than lawyers who serve mid-income clients who face devastating injuries, medical bills, and loss of earnings. Divorce lawyers working with the same clients are “sleazy” attorneys preying off clients’ emotional misfortune. And paid criminal defense lawyers are “hired guns” who make their living putting criminals back on the street.
Doing the same work for a government or nonprofit paycheck is honorable. Attempting to serve the same clients in private practice is not.
Can We Fix This?
Legal educators are in a special position to address this problem. We serve as the gateway to the profession, introducing students to both the law and their potential careers. We also provide three years of intense acculturation for students. They form their professional attitudes, as well as prejudices and presumptions, during their time with us.
Most law schools, I suspect, implicitly teach students that “other” law practice is exactly that–something you turn to when you can’t find a job in the prestige or service worlds. Very few full-time faculty worked in these “other” jobs, and our curriculum does not feature them. We teach Torts, Criminal Law, and Family Law, but these courses focus on the high-minded appellate development of principles, rather than the everyday work of private practitioners. Attempting to teach these courses from a more practice-oriented perspective can elicit cries of “proselytization” from students. They don’t want to become personal injury lawyers or identify with the victims in these cases.
Some recent changes in legal education may start to redress this imbalance. More law schools are teaching practice management courses, which are essential for new lawyers practicing in “other” areas and signal the school’s support of these careers. Post-graduate incubators serve a similar purpose: In addition to providing essential skills, they demonstrate the school’s recognition of these practice areas. Students planning to practice “other” law have some established pathways to follow.
Doing More
We need, however, to do much more than this. Doctors take pride in working in a service profession, no matter how much money they make from their practice. Law is also a service profession, but we have lost much of that aura. Recapturing that mission is essential, not only to guide our graduates into rewarding careers but to serve the clients who need us.
We talk about service in law school, but we rarely model it. I’m not talking here about pro bono efforts by faculty or students; those, again, suggest that the only true service is done for free. Instead, we need to recognize that the services lawyers provide are individualized ones to clients. Our constant focus on appellate decisionmaking tells students that the highest calling for lawyers is changing the law through appellate argument. Medical schools, in contrast, teach students from the first year how to serve by treating individual patients.
Law schools cannot give all of their graduates the high salaries that prestige lawyers command. Nor can we make every graduate happy; well being derives from a mixture of factors, including genetic ones. We can, however, try to recapture the honor that attaches to solving the ordinary problems of ordinary people. Doing that requires much more than simply adding experiential classes to law school. We need to rethink the way we teach the first year, the manner in which we structure our curriculum, and the implicit messages we send throughout law school.
Equally important, we need to make law school affordable for the students who will become “other” lawyers. These are the students who will not reap BigLaw salaries, nor will they qualify for public interest loan forgiveness. Their firms will not benefit from the government grants or private insurance that sustain most medical practices. If we want to recapture the service ideals of the legal profession, we need to make service affordable and honorable for all of the graduates who do this work.
Predictions and the Pace of Change
May 14th, 2015 / By Deborah J. Merritt
The consulting firm Altman Weil has been surveying managing partners of mid- to large-sized law firms (those with 50 or more lawyers) annually since 2009. The latest report offers some intriguing perspectives on how attitudes have shifted since 2009. Equally important, the report illustrates how staffing patterns have changed–despite a rebounding legal market.
Here’s What We Say
In 2009, only 25.5% of respondents thought that “more commoditized legal work will be a permanent trend going forward.” Today, 89.4% agree with that statement.
Similarly, in 2009 just 28.3% of the managing partners thought that “more contract lawyers will be a permanent trend going forward.” Today the figure is 72.4%.
Outsourcing was still a novelty in 2009: Just 11.5% of Altman Weil’s respondents thought it would be a permanent trend. Now 52.3% agree that outsourcing is here to stay.
In 2009, finally, firms thought they would soon restore the size of their pre-recession first-year classes. Only 11.4% thought “smaller first-year classes will be a permanent trend going forward.” Now a majority of responding firms (60.6%) endorse that statement.
Practices that seemed temporary in 2009 have become permanent by 2015. If so much could change in six years, what will happen over the next six? In that context, it is notable that 72.4% of the responding partners think that the pace of change is accelerating in the profession.
And Here’s What We Do
The firms’ actions seem to match their words. More than half the law firms (56.3%) use contract lawyers, while 44.4% rely on staff attorneys. The median (and modal) increase in the number of partnership-track associates was zero.
Nor are there signs that the number of associates or partners will surge any time soon. One-quarter of firms (26.6%) think their current associates still aren’t sufficiently busy. The problem of excess capacity is even greater at the income and equity partner levels: More than half of firms report that those lawyers do not have enough work to keep them busy.
Firms do not expect increased demand to cure this excess capacity. One-third of the firms (32.1%) say that demand for their services has already returned to pre-recession levels. Another quarter (25.3%) do not think demand for their services will return to that giddy level in the foreseeable future. More than half of the firms, in other words, have either returned to the boom days (in terms of demand) or do not expect those days to return for them. In either case, they have already adjusted staffing levels and continue to worry about excess capacity.
Now Watch How We Profit
For the fifth year in a row, more than half of the responding firms reported increases in revenue per lawyer and profit per equity partner. Profits at the top have increased sufficiently that the responding firms are newly optimistic that profits per equity partner (PPEP) will continue to grow handily. In 2013 and 2014, more than half of the responding partners thought that a slowdown in the growth of PPEP had become permanent. In 2015, the percentage endorsing that view fell 13.5 points to just 44.8% of respondents.
Perhaps most sobering, increased profits per equity partner showed a marked relationship to changed staffing patterns. Altman Weil reports that: “77% of law firms that changed their strategic approach to lawyer staffing reported an increase in PPEP from 2013 to 2014, compared to 56% of firms that had not made such a change – a 21-point difference.”
What Does It Mean?
What do we learn from these survey results? We learn first that managing partners, like other humans, adjust slowly to change. They initially view new practices as temporary accommodations, then grow to accept them as permanent. In this case, however, the firms that accepted the changes more readily have also profited from them. Those profits have solidified the changes and will attract other followers.
Shifts in the staffing of legal services resemble changes in other sectors of the economy. Indeed, law has lagged behind most other sectors in adopting contingent workers and classes of “permanent” employees with less security and potential for job advancement than the traditional class. Adjuncts and clinical professors appeared in academia decades before contract lawyers and staff attorneys emerged in law firms.
The most surprising feature of the legal field was the number of lawyers and academics who insisted that changes like these could not and would not happen in law practice. The resistance, both in practice and prediction, made the inevitable correction all the more harsh.
Now we need to ask ourselves: What’s next? What circumstances seem unlikely or temporary today, but will persist until 2021, when they will appear inevitable and permanent?
On the Bar Exam, My Graduates Are Your Graduates
May 12th, 2015 / By Deborah J. Merritt
It’s no secret that the qualifications of law students have declined since 2010. As applications fell, schools started dipping further into their applicant pools. LSAT scores offer one measure of this trend. Jerry Organ has summarized changes in those scores for the entering classes of 2010 through 2014. Based on Organ’s data, average LSAT scores for accredited law schools fell:
* 2.3 points at the 75th percentile
* 2.7 points at the median
* 3.4 points at the 25th percentile
Among other problems, this trend raises significant concerns about bar passage rates. Indeed, the President of the National Conference of Bar Examiners (NCBE) blamed the July 2014 drop in MBE scores on the fact that the Class of 2014 (which entered law school in 2011) was “less able” than earlier classes. I have suggested that the ExamSoft debacle contributed substantially to the score decline, but here I focus on the future. What will the drop in student quality mean for the bar exam?
Falling Bar Passage Rates
Most observers agree that bar passage rates are likely to fall over the coming years. Indeed, they may have already started that decline with the July 2014 and February 2015 exam administrations. I believe that the ExamSoft crisis and MBE content changes account for much of those slumps, but there is little doubt that bar passage rates will remain depressed and continue to fall.
A substantial part of the decline will stem from examinees with very low LSAT scores. Prior studies suggest that students with low scores (especially those with scores below 145) are at high risk of failing the bar. As the number of low-LSAT students increases at law schools, the number (and percentage) of bar failures probably will mount as well.
The impact, however, will not be limited just to those students. As I explained in a previous post, NCBE’s process of equating and scaling the MBE can drag down scores for all examinees when the group as a whole performs poorly. This occurs because the lower overall performance prompts NCBE to “scale down” MBE scores for all test-takers. Think of this as a kind of “reverse halo” effect, although it’s one that depends on mathematical formulas rather than subjective impressions.
State bar examiners, unfortunately, amplify the reverse-halo effect by the way in which they scale essay and MPT answers to MBE scores. I explain this process in a previous post. In brief, the MBE performance of each state’s examinees sets the curve for scoring other portions of the bar exam within that state. If Ohio’s 2015 examinees perform less well on the MBE than the 2013 group did, then the 2015 examinees will get lower essay and MPT scores as well.
The law schools that have admitted high-risk students, in sum, are not the only schools that will suffer lower bar passage rates. The processes of equating and scaling will depress scores for other examinees in the pool. The reductions may be small, but they will be enough to shift examinees near the passing score from one side to another. Test-takers who might have passed the bar in 2013 will not pass in 2015. In addition to taking a harder exam (i.e. a 7-subject MBE), these unfortunate examinees will suffer from the reverse-halo effect describe above.
On the bar exam, the performance of my graduates affects outcomes for your graduates. If my graduates perform less well than in previous years, fewer of your graduates will pass: my graduates are your graduates in this sense. The growing number of low-LSAT students attending Thomas Cooley and other schools will also affect the fate of our graduates. On the bar exam, Cooley’s graduates are our graduates.
Won’t NCBE Fix This?
NCBE should address this problem, but they have shown no signs of doing so. The equating/scaling process used by NCBE assumes that test-takers retain roughly the same proficiency from year to year. That assumption undergirds the equating process. Psychometricians recognize that, as abilities shift, equating becomes less reliable.* The recent decline in LSAT scores suggests that the proficiency of bar examinees will change markedly over the next few years. Under those circumstances, NCBE should not attempt to equate and scale raw scores; doing so risks the type of reverse-halo effect I have described.
The problem is particularly acute with the bar exam because scaling occurs at several points in the process. As proficiency declines, equating and scaling of MBE performance will inappropriately depress those scores. Those scores, in turn, will lower scores on the essay and MPT portions of the exam. The combined effect of these missteps is likely to produce noticeable–and undeserved–declines in scores for examinees who are just as qualified as those who passed the bar in previous years.
Remember that I’m not referring here to graduates who perform well below the passing score. If you believe that the bar exam is a proper measure of entry-level competence, then those test-takers deserve to fail. The problem is that an increased number of unqualified examinees will drag down scores for more able test-takers. Some of those scores will drop enough to push qualified examinees below the passing line.
Looking Ahead
NCBE, unfortunately, has not been responsive on issues related to their equating and scaling processes. It seems unlikely that the organization will address the problem described here. There is no doubt, meanwhile, that entry-level qualifications of law students have declined. If bar passage rates fall, as they almost surely will, it will be easy to blame all of the decline on less able graduates.
This leaves three avenues for concerned educators and policymakers:
1. Continue to press for more transparency and oversight of NCBE. Testing requires confidentiality, but safeguards are essential to protect individual examinees and public trust of the process.
2. Take a tougher stand against law schools with low bar passage rates. As professionals, we already have an obligation to protect aspirants to our ranks. Self interest adds a potent kick to that duty. As you view the qualifications of students matriculating at schools with low bar passage rates, remember: those matriculants will affect your school’s bar passage rate.
3. Push for alternative ways to measure attorney competence. New lawyers need to know basic doctrinal principles, and law schools should teach those principles. A closed-book, multiple-choice exam covering seven broad subject areas, however, is not a good measure of doctrinal knowledge. It is even worse when performance on that exam sets the curve for scores on other, more useful parts of the bar exam (such as the performance tests). And the situation is worse still when a single organization, with little oversight, controls scoring of that crucial multiple-choice exam.
I have some suggestions for how we might restructure the bar exam, but those ideas must wait for another post. For now, remember: On the bar exam, all graduates are your graduates.
* For a recent review of the literature on changing proficiencies, see Sonya Powers & Michael J. Kolen, Evaluating Equating Accuracy and Assumptions for Groups That Differ in Performance, 51 J. Educ. Measurement 39 (2014). A more reader-friendly overview is available in this online chapter (note particularly the statements on p. 274).
Professional Status
May 11th, 2015 / By Deborah J. Merritt
I wrote recently about the two hemispheres of law practice. Lawyers view some practice areas (like securities law) as considerably more prestigious than others (like divorce law). This division has several implications for law schools: (1) students prefer schools that will lead to high-prestige practices; (2) schools try to satisfy that preference, both to attract students and to enhance their own intra-professional prestige; (3) schools assiduously avoid any reputation of producing low-status practitioners.
Before exploring these implications in greater depth, let’s examine what factors contribute to status differences in law practice. In other words, what marks a practice area as high status?
I rely in this discussion on the work of several sociologists, including the Heinz and Laumann studies of Chicago lawyers in 1975 and 1995. I also found the work of Andrew Abbott, an expert on the sociology of the professions, particularly helpful. Like Heinz, Laumann, and Abbott, I focus here on characteristics of intraprofessional status–that is, the factors that elicit respect from other lawyers.
Income
Income shows a strong correlation with status in American society, and this is true within the legal profession. On average, securities lawyers earn more than divorce lawyers. A law graduate joining a BigLaw firm will earn a much higher starting salary than one joining a family law practice.
Money, however, only partly explains status differences in law. Judges hold high status, although they earn less than most BigLaw partners. Some personal injury and divorce lawyers earn very high incomes, but the profession accords them less respect than it gives more modestly paid corporate lawyers. Income counts, but it doesn’t tell the whole story.
Power
Power also correlates with prestige. The mega-deals handled by corporate lawyers can affect billions of dollars and millions of people. Judges have the power to decide all types of disputes, altering the fate of both individuals and organizations. Divorce lawyers, in contrast, usually affect the lives of a single family.
Once again, however, power doesn’t completely explain professional prestige. Corporate lawyers help big deals proceed or founder, but they largely follow their client’s bidding. The client, rather than the lawyer, holds the authority to determine the terms of the deal. A lobbyist, state legislator, or legislative aide may have more power than a judge to affect the course of the law, but the judge commands more respect among lawyers. Prosecutors are some of the most powerful lawyers, because of their unilateral power to drop, enhance, or settle criminal charges, but their professional status falls somewhere in the middle of the pack.
If neither income nor power fully explains professional prestige, what does?
Professional Purity
Abbott suggests that “professional purity” explains status distinctions in law, medicine, and other professions. By professional purity, he means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981). Other cites in this post are from the same article.)
To me, this distinction explains quite a bit about status differences in law practice–as well as about the ways in which we support those distinctions in law schools. Appellate judges hold very high status because they deal purely with legal principles. The parties and trial judge have already sorted through the facts, and the rules of appellate review tell them which facts to assume. Professional norms, meanwhile, dictate that they should decide the case based on legal principles, not on personal predilections, public pressure, or other manifestations of “human complexity.”
Trial judges also hold high prestige. They’re exposed to more facts than their appellate colleagues, but legal principles (the rules of evidence) tell them how to sort those facts. The closer a trial judge comes to human messiness, as in municipal courts or family law dockets, the lower the judge’s prestige.
Legislators and their aides receive respect from the legal profession because of their ability to define legal principles. From a lawyer’s perspective, however, their work is not as prestigious as the work of judges: Legislators must balance the demands of constituents, donors, and lobbyists. That task is not as legally “pure” as the judge’s duty to assess different precedents.
Into the Trenches
The same considerations inform the professional status of practicing lawyers. We view corporate lawyers as manipulating legal principles to accomplish the client’s goal. Indeed, we assume that corporate lawyers do some of the most “legally” powerful work in the profession: They examine statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business. Although the corporate lawyer must understand the client’s interest, the lawyer works primarily with legal principles to further that interest. Note that when corporate clients complain about their lawyers, the complaint often focuses on the lawyer’s failure to “immerse herself in the facts of my business.” High prestige lawyers resist exactly that type of immersion.
When BigLaw firms must deal with messy facts, as in due diligence or discovery work, they increasingly delegate those tasks to low-status lawyers like staff attorneys, contract lawyers, and lawyers employed by outsourcing companies. These practices preserve the most prestigious, legally “pure” work for high-status attorneys in the firm.
Divorce lawyers, personal injury lawyers, and criminal defense lawyers, in contrast, are hopelessly immersed in the “muck of feelings,” facts, and extralegal considerations. Abbott, supra at 824. Students in my criminal defense clinic quickly learn that it is more important to persuade the client to find a job (which will impress the prosecutor and elicit a more favorable plea offer) than to draft a motion to exclude evidence on Fourth Amendment grounds (unless police conduct clearly was improper).
Divorce and personal injury lawyers, likewise, deal daily with the human drama of betrayal, lost love, accidents, and physical injuries. They use legal principles to pursue advantageous outcomes, and sometimes they argue for novel interpretations of the law. Most of their work, however, is highly fact dependent.
Looking Forward
I hope to use Abbott’s concept of “professional purity,” along with other status markers, to explore some of the ways in which we structure the law school curriculum. I also plan to draw upon this concept to examine the ongoing debate about the careers available to law school graduates. Meanwhile, I welcome your comments about status distinctions generally and Abbott’s concept in particular.
Many of us in the United States are uncomfortable talking about status, because we view ourselves as an egalitarian “class less” society. Yet it seems clear that there are status differences in the jobs that law graduates perform. Without talking about those differences, we can’t resolve some of the open issues in both the law school curriculum and career prospects for lawyers.
New York Adopts the Uniform Bar Exam
May 5th, 2015 / By Deborah J. Merritt
New York’s highest court announced today that it will begin administering the Uniform Bar Exam (UBE) in July 2016. In addition to passing the two-day UBE, applicants will have to complete an online course about NY law and pass an online exam based on that content.
New York’s move almost certainly will prompt other states to follow suit. Within a few years, we are likely to have a national bar exam. What will this mean for new lawyers? I offer some initial thoughts below.
Positives
1. The Uniform Bar Exam increases mobility for new lawyers. Passing the UBE in one state does not guarantee admission in a different state, because states can select different passing scores. States may also require applicants to complete a state-specific exam. The UBE, however, greatly eases interstate migration for newly admitted lawyers. This is particularly important in a tight job market.
[Adoption of the UBE doesn’t matter as much for experienced lawyers, because most states allow lawyers to “waive in” to their bar after five years of experience in another jurisdiction.]
2. This increased mobility is especially important to women lawyers. My study of new lawyers admitted to the Ohio bar in 2010 found that women were significantly more likely than men to move out of state within their first five years of practice. Almost one fifth of the women (18.4%) left Ohio after gaining bar admission, while just 14.1% of the men did so.
3. By testing general principles, rather than the law of a particular state, the UBE better fits the material that students cover in law school. Students may have to spend somewhat less time preparing for the bar. Even if a state tests separately on local law, as NY plans to do, that testing will occur at a different time.
4. The National Conference of Bar Examiners (NCBE), which creates all portions of the UBE, is a large organization with the resources to develop and pretest sensible questions. Its essay questions may be more fair than ones developed by state bar examiners.
Negatives
On the other hand, there are several drawbacks to the UBE. As a long-time supporter of a national bar exam, I am more troubled by these issues than I once thought I would be:
1. Although mobile lawyers will benefit from the UBE’s portability, those who remain in-state will have to jump more hurdles than ever to gain bar admission. On top of a two-day bar exam, they will have to complete an online course about NY law and pass a 50-question multiple-choice test on that law. Our school’s director of bar support, who has coached students taking the NY bar, says that the NY multiple-choice test is no picnic.
2. Bar passage could become even more onerous if NY adds an experiential component to its testing. The advisory committee that endorsed adoption of the UBE also recommended creation of a new “task force to study whether experiential learning may be quantified as a licensing requirement or whether some other demonstration of skills acquisition should be required for licensing.” I like the idea of measuring practice skills before bar admission, but I would replace some of our written exams with the experiential component. Adding yet another layer to proficiency testing imposes burdens on new lawyers that more senior ones did not face.
3. Multiple-choice questions make up half the UBE score, a higher proportion than some states currently allot to those questions. Multiple-choice questions have their place, but I would rather test new lawyers on performance tasks like those in the MPT. To me, the MBE is even further removed from practice realities than any law school exam. A closed-book exam covering seven different, very broad subject areas does little but test an applicant’s ability to cram large amounts of material into memory.
4. In addition to my general concern about multiple-choice bar exams, some bar studies find that women (on average) score slightly higher than men on essay questions and performance items, while men (on average) score slightly higher on the MBE. When the MBE accounts for 35% (California) or 40% (Texas) of the exam, these differences balance out, creating virtually identical pass rates for men and women. Is it appropriate to increase the weight accorded multiple-choice items if we know that this shift is likely to favor one gender?
5. NCBE was remarkably unresponsive in dealing with the possible impact of last summer’s ExamSoft meltdown. The organization has also become less transparent, withholding information (such as raw scores) that it used to disclose. Concentrating even more power in one organization is risky. Who will hold NCBE accountable? What pressure will it feel to maintain high-quality services?
Other Thoughts
I continue to consider the advantages and disadvantages of NY’s move to the UBE, and will update this post as other points emerge. Please add your own thoughts in the comments. A national bar exam seems long overdue, but aspects of this shift concern me. As other states react to NY’s move, can we find ways to preserve the advantages of a national bar exam while assuring that (a) the exam tests proficiencies and knowledge that matter; (b) the exam does not create additional burdens for bar applicants; and (c) there is appropriate oversight of the organization administering the exam?
More on Grade and Scholarship Quotas
May 5th, 2015 / By Deborah J. Merritt
In a response to this post, Michael Simkovic wonders if I believe “it is inherently immoral to limit ‘A’ grades to students whose academic performance is superior to most of their peers, since an ‘A’ is simply a data point and can be replicated and distributed to everyone at zero marginal cost.”
Not at all. I believe in matching grades to performance, and I don’t hesitate to do that–even when the performance is a failing one. Ironically, however, the mandatory grading curve produces results that are quite troubling for those of us who want grades to reflect performance. Constrained by that type of grading system, I have given A’s to students who performed worse than their peers. Let’s consider that problem and then return to the subject of conditional scholarships.
A Tale of Two Tort Classes
To accommodate institutional needs, I once taught two sections of the first-year Torts class. I used the same book and same lecture notes in both classes. We covered the same material in each class, and I drafted a single exam for the group. Following my practice at that time, it was a 4-hour essay exam with several questions.
I graded the exams as a single batch, without separating them into the two sections. Again following my usual practice, I used grading rubrics for each essay. I also rotated batches of essays so that no exam would always suffer (or benefit) from being in the first or last group graded. After I was done, I plotted all of the scores.
I discovered that, if I applied a single curve to both sections, all of the A grades would fall in one section. Our grading rules, however, required me to apply separate curves to each section. So some students in the “smart” section got B’s instead of the A’s they deserved. Some students in the other section got A’s instead of the B’s they deserved. When I discussed my problem with the Associate Dean, he did allow me to use the highest possible curve for the first section, and the lowest possible one for the other section; that ameliorated the problem to some extent. In the end, however, the letter grades did not match performance.
Several other professors have recounted similar experiences to me. It doesn’t happen often, because it is uncommon for a professor to teach two sections of a first-year class. But it does happen. In fact, when professors teach multiple sections of the same course, section differences seem common. If these differences occur when we can readily detect them (by teaching two sections), they probably occur under other circumstances as well.
I don’t think this drawback to mandatory curves rises to the level of immorality. Students understand the system and benefit from some of its facets. The curve forces professors to award similar grades across courses and sections, moderating both curmudgeons and sycophants. As Professor Simkovic notes, the system also restrains creeping grade inflation. A mandatory curve, finally, offers guidance to professors who lack an independent sense of what an A, B, or C exam looks like in their subject.
I tell this story to make clear that a mandatory curve does not necessarily reward achievement. On the contrary, a mandatory curve can give B’s to students “whose academic performance is superior to most of their peers” as measured through blind grading. I know it can happen–I’ve done it.
Commpetition
It feels silly to say this, given my position on deregulating the legal profession, but I do not believe (as Professor Simkovic suggests) that “competition for scarce and valuable resources is inherently immoral.” Competition within an open market usually leads to beneficial results. Competition within a tournament guild, on the other hand, leads to inefficiencies and other harms.
Back to Conditional Scholarships
Returning to our original point of disagreement, I think Professor Simkovic misconstrues college grading patterns–especially in STEM courses. Those courses are not, to my knowledge, graded on a mandatory curve. Instead, the grades correspond to the students’ demonstrated knowledge. The college woman I mention in the primary post was a STEM major; she was no stranger to tough grading. She, however, was accustomed to a field in which her efforts would be rewarded when measured against a rigorous external standard–not one in which only seven students would get an A even if eight performed at that level.
Once again, law school mandatory curves are not “inherently immoral.” They do, however, differ from those that are “routinely used by other educational institutions and state government programs.” Our particular grading practices change the operation of conditional scholarships in law school. At college, a student with a conditional scholarship competes against an external standard. If she reaches that goal, it doesn’t matter how many other students succeed along with her.
In law school, a student’s success depends as much on the efforts of other students as on her own work. If conditional scholarships were in effect when I taught those two sections of Torts, it is quite possible that a student from the “smart section,” who objectively outperformed a student from the “other section,” would have lost her scholarship–while the less able student from the “other section” would have kept her award. I do not think college students understand that perverse relationship between our grading system and conditional scholarships–and neither Professor Simkovic nor Professor Telman has cited any evidence that they do.
Let the Market Rule
As I stated in my previous post, the ABA’s rule has cured two of the ills previously associated with high-forfeiture conditional scholarships. Schools may continue to offer them, subject to that rule. It appears that schools differ widely in the operation of these programs. Some offer only a few conditional scholarships, with rare forfeitures. Others offer a large number, with many forfeitures. Still others lie in between.
The market will soon tell us which of these paths enhance student enrollment. Now that prospective students know more about how conditional scholarships work at law schools, will they continue to enroll at schools with high forfeiture rates? Time will tell.
Hunger Games
May 4th, 2015 / By Deborah J. Merritt
Professors Michael Simkovic and D.A. Jeremy Telman have both written posts (here and here) praising the use of conditional scholarships for law students. Neither opposes the ABA’s recent rule, which requires greater transparency about forfeiture rates for these scholarships, but neither sees much value in the rule. Telman doubts that disclosure will affect student decisions, while Simkovic suggests that any concern over conditional scholarships was “yet another example of critics applying a double standard to paint law schools in the worst possible light.”
In reaching these conclusions, the posts compare law school conditional scholarships to similar awards at the college level. In the latter context, conditional scholarships promote matriculation, academic achievement, and on-time graduation. Neither writer, however, acknowledges a key distinction between colleges and law schools that administer these awards. At most colleges, conditional scholarships encourage all recipients to succeed. It is possible for all scholarship students to obtain the GPA and credit hours required to maintain the scholarship–and the college hopes that they will.
Some law schools play a very different game with conditional scholarships. These schools impose conditions that, because of mandatory curves in required first-year courses, a significant percentage of recipients will fail to meet. It is mathematically impossible for all scholarship recipients to keep their awards at these schools, and the percentage who will fail is quite predictable to the schools. These are hunger-game scholarships.
How Many Losers?
According to the ABA’s website, 124 law schools awarded conditional scholarships in academic year 2013-14. Eight of those programs were quite small, awarding fewer than 10 conditional scholarships and imposing almost no forfeitures. Sixteen schools, however, showed both a substantial number of conditional scholarships and a forfeiture rate of 50% or higher. At another 26 schools, the forfeiture rate fell between one-third and one-half.
Did these schools do a “poor job predicting which admitted students would excel in law school,” as Telman suggests? Probably not, unless they are perpetually bad at predictions. Forfeiture rates were high at most of these schools in 2011-12 and 2012-13 as well as in 2013-14. The other possibility that Telman suggests seems much more likely: These “law schools were playing a US News game, trying to get higher LSATs into the door without having to offer them three-year scholarships.”
Is there anything wrong with that? I see three problems. Two of them have been alleviated by the ABA rule, but I describe them to underscore the importance of that rule.
Information Asymmetry
The ABA rule addressed a marked information asymmetry between applicants and law schools. As Telman and Simkovic note, many colleges operate conditional scholarship programs and students understand those programs. That, however, was part of the problem. Law school grading is very different from college grading, and many students didn’t understand the difference when they accepted conditional scholarships.
A few years ago, a bright college woman was part of a group of law students I encountered at a coffee shop. The college student was interested in attending law school, and all of us encouraged her ambitions. Then the college student raised a question: “I don’t understand why law school is so competitive,” she asked. “It’s not like there’s a quota on the number of A’s or anything.”
The rest of us inhaled deeply as we prepared to explain the facts of law school life to her. In fact, there is a quota on A’s in first-year (and many upper-level) courses. There’s also a quota on B’s. And because of those quotas, there’s an effective quota on the number of students who will be able to maintain conditional scholarships.
The law schools understand the mathematics of this quite well, but many college students don’t. They are more accustomed to objective grading scales (85% of correct answers merits a B, no matter how many students reach that score) or very loose curves. Even a student who read the Wikipedia entry on law school grading curves, which Telman touts, wouldn’t understand the intersection of the curve with an all-required first year and conditional scholarships. (And shouldn’t a good college education teach them to distrust Wikipedia?)
The ABA rule has greatly reduced this asymmetry. Will it make a difference to prospective students? Professor Telman thinks not, but I disagree. We’ll see how application and matriculation rates work out at schools with the highest scholarship forfeiture rates.
Hidden Agendas
The second defect in conditional scholarship programs is the extent to which they allow schools to claim they are serving students when they are really serving their own interests. The goals cited by Professors Telman and Simkovic (i.e., encouraging students to study hard and to finish their degrees on time) are largely irrelevant in law school. Our students already work hard and finish their degrees on time. Law review membership, academic prizes, and employer preferences provide plenty of motivation for those goals.
If law schools truly wanted to assure hard work in law school, they wouldn’t award conditional scholarships to first-years. Instead, they would save some of their scholarship money to hand out as graduation prizes for the students who earned the highest grades during their final “slack off” semester of law school.
Similarly, if law schools want to encourage students to try law school with little risk, there are better options than high-forfeiture conditional scholarships. We could, for example, award a master’s degree at the end of the first year. The promise of that degree, with its opt-out option, might draw more students to law school than conditional scholarships.
Conditional scholarship programs with high forfeiture rates have one overriding goal: to secure the highest possible revenue for the school, along with the best possible LSAT and UGPA profiles. This is a game in which the odds greatly favor the house and, as long as schools could hide their forfeiture rates, it was unlikely that bettors would properly estimate those odds.
The ABA’s disclosure rule, along with the discussion prompting it, has made clear that many law school conditional scholarship programs exist to benefit schools, not students. When academic institutions engage in self-interested behavior, they should be upfront about those motives–not paper over their goals with proclamations of student interest.
Promoting Competition
My final objection to high-forfeiture conditional scholarships is one that the ABA rule did not cure. These scholarships increase the stress and competitiveness of an already stressful environment. Stress is not something that we should just “get over” or that students should “[wo]man up to.” Stress makes people sick, angry, and prone to substance abuse or mental illness. It can also impair their professional judgment, hurting both clients and lawyers.
I serve on the board of directors of the Ohio Lawyers Assistance Program (OLAP). That’s an organization, similar to ones in most states, that provides confidential assistance to law students or lawyers with alcohol, drug, or mental health problems. The demand for OLAP’s services is high–and we only see the people who realize they have a problem and are willing to seek treatment.
Many aspects of law practice are stressful. Working long hours is stressful. Responding to unbalanced clients is stressful. Losing a dispute is stressful. Unpaid bills are stressful. We don’t need to add to these stresses by increasing the stress level in law school. Contrary to some popular conceptions, increased stress doesn’t improve your ability to handle stress; it just makes you more likely to fall apart.
Helping Ourselves
I see little indication that conditional scholarships help students. The same money distributed evenly among recipients probably would better serve student interests. I’m not sure that these scholarships will even continue to serve law school interests. Law school finished sixth in a recent ranking of graduate degrees, not because our salaries are lower than those in the top five fields but because our stress level is higher. Some very smart people don’t want to waste hours dealing with manufactured stress.
In fact, that college student I mentioned earlier? She decided to take her career ambitions and graduate tuition dollars elsewhere.
Two Hemispheres
May 2nd, 2015 / By Deborah J. Merritt
More than thirty years ago, John Heinz and Edward Laumann published a pivotal study of the legal profession. Their book, Chicago Lawyers, focused on lawyers working within Chicago’s city limits, but the findings were widely accepted as representative of the profession.
The study’s primary conclusion was simple, but insightful. Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.” P. 319.
In addition to highlighting this bifurcation of the legal profession, Heinz and Laumann noted the strong status differences between them. The hemispheres were not equal in status. Instead, lawyers viewed the “organizations” side of the profession as much more prestigious than the “individual” one.
Heinz and Laumann, joined by two other prominent sociologists, repeated their study in 1995. That research, titled Urban Lawyers, concluded that this status difference remained. Indeed, it had grown even sharper. Lawyers viewed securities law as the most prestigious practice area in both 1975 and 1995; divorce law was at or near the bottom in both years. The percentage of lawyers viewing securities law as at least “above average” in prestige, however, grew from 75% to 85% over those two decades. The percentage according that distinction to divorce law shrank from 9% to 4%.
That’s a tremendous gulf.
The Two Hemispheres Today
No one, to my knowledge, has replicated Heinz and Laumann’s study for the most recent generation of lawyers. The After the JD (AJD) project, for example, did not ask subjects about the perceived prestige of practice areas. Every indication, however, suggests that status differences are alive and well in our profession.
In a number of online forums, prospective law students discuss whether particular law schools will secure them BigLaw positions or leave them stranded in “shitlaw.” These are more colorful descriptors than the ones Heinz and Laumann used, but I suspect they reflect a similar categorization of practice fields.
Legal educators often reflect the same attitude–although, again, with more polite language. Even when we note the drawbacks of BigLaw practice, we tend to praise jobs in smaller firms that serve corporate clients. Or we tout public interest work, which employs very few attorneys and is not a realistic option for most law graduates. How many law professors talk enthusiastically about representing divorce clients, workers’ compensation claimants, personal injury plaintiffs, and criminal defendants?
Some of us might say, “but that’s not my field–I can’t praise those practice areas because I’m not familiar with them.” But that’s just as true of the corporate work done by BigLaw firms; many of us don’t teach in those areas either. Yet we can all make appropriate comments about BigLaw jobs, congratulate students on landing those positions, and discuss aspects of that market. Very few of us know what social security lawyers do or how much they earn.
Implications
The existence of these two hemispheres has implications for the profession, the public, and the legal academy. Heinz and Laumann noted one of the effects on the profession. They found that law was a less cohesive profession than other professions like medicine. Lawyers in each hemisphere tended to socialize with one another, rather than with lawyers from the other side of the profession. In addition, the two sides often had conflicting professional goals. Rules that would help one hemisphere often hurt the other.
Heinz and Laumann also speculated that the two hemispheres affected public perceptions of the legal system. The two very different “bars,” they suggested, promoted a public perception that corporations and the government receive a different type of justice than individuals do. This part of their work is speculative–they did not study public perceptions directly–but it is an interesting thought to pursue.
The implications for the legal academy are equally profound. I hope to explore those impacts in a series of posts. Here, though, are a few hints of my views on this:
1. Lawyers working in the two hemispheres may benefit from somewhat different types of education, but the differences are much smaller than many observers believe.
2. Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of “second hemisphere” lawyers is just as intellectually demanding as that for “first hemisphere” ones.
3. Thinking about the needs of second hemisphere clients will help us improve the educational experience for all lawyers. The most important changes we can make in law school, for all clients and lawyers, involve reducing our focus on appellate decision making and enhancing our attention to client interaction. This means much more than adding clinics to the third year; it involves reshaping even parts of the first year.
4. Second-hemisphere law supports just as much scholarship–including interdisciplinary and theoretical work–as first-hemisphere law. Embracing better educational opportunities for lawyers who serve individual clients does not mean abandoning scholarship.
5. Society needs law schools to educate students to serve the second hemisphere. It does not need law schools to educate students for JD advantage jobs.
6. On average, second-hemisphere jobs pay less than first-hemisphere ones. Legal educators have to be candid about this to themselves, applicants, students, and graduates. Law school tuition must take account of these differences, and we can do that without abandoning scholarship.
7. Lawyers, clients, and society would benefit from ending the sharp status lines that mark our profession. I’m not idealistic enough to think we can erase those lines entirely, but we should try to soften them. One way to do that is to reduce the status hierarchies we create within and between our own student bodies.
That’s a healthy agenda, but I’ll try to fulfill it.
Comparisons
April 29th, 2015 / By Deborah J. Merritt
Michael Simkovic has posted some comments on my study of recent law graduates in Ohio. I had already benefited from his private comments, made some changes to my paper, and thanked him privately. When he reads the revised paper, posted several weeks ago, he’ll discover that I also thank him in the acknowledgement footnote–with the disclaimer that he and my other readers “sometimes disagree with one another, as well as with me, which made their comments even more helpful.”
For those who are interested, I note here my responses to the critiques that Professor Simkovic offers in his blogpost. Beyond these comments, I think readers can judge for themselves how much my study helps them understand the market for law school graduates in their part of the world. Some will find it relevant; others will not. As I’ve already noted, I hope that others will collect additional data to complement these findings.
Here and There
Professor Simkovic’s primary criticism is that the Ohio legal market is not representative. I discussed that issue in a previous post, so will add just a few thoughts. It is true that the wages for Ohio lawyers fall below the national average (both mean and median), but Ohio’s cost of living is also below average. Our index is 94.1 compared to 128.7 in California, 133.3 in New York, and 141.6 in the District of Columbia. On balance, I don’t see any reason to dismiss Ohio as a representative state for this reason.
Lawyers constitute a smaller percentage of the Ohio workforce than of the national one, but that is not a particularly meaningful indicator. Oklahoma, with 4.48 lawyers per 1,000 jobs, comes very close to the national average of 4.465, but that would not make Oklahoma the best choice for a study of new lawyers’ employment patterns.
Ohio has a disproportionate number of schools that rank low in the US News rankings: We have one school in the top 50, two in the second tier, three in the third tier, and four among the unranked schools. I discuss the implications of this in my study and show how law school rank affects employment patterns within the state. Like other studies, I find strong associations between law school rank and job type.
It is hard to know how this issue affects my overall findings. Professor Simkovic suggests that low-ranked schools create a sub-par job market with depressed outcomes for graduates. Just the opposite, however, could be true. Ohio individuals and businesses have the same legal needs as those in other states and, as noted above, we do not have as many lawyers per worker as some states. It is possible, therefore, that graduates of low-ranked schools have better employment opportunities than graduates of similar schools in other states. Similarly, the graduates of our first- and second-tier schools may fare better than graduates of similar schools in states with local T14 competitors.
The results of my Ohio study undoubtedly generalize better to some markets than to others. Similarly, the results may interest educators at some schools but not others. I doubt that my study will influence decisions at top-twenty law schools. At other schools, however, I think professors and deans should at least reflect upon the findings. Most of us graduated from elite law schools 10, 20, 30, or even 40 years ago. Our impressions of the employment market were molded by those experiences, and it is very hard to overcome that anchoring bias. I hope that my results at least provoke thought and further research.
Now and Then
Professor Simkovic and others also criticize my attempt to compare the 2014 Ohio data with national data gathered by NALP and the After the JD (AJD) study. I agree that those are far from perfect comparisons, and I note the limits in the paper. Unfortunately, we don’t have perfect data about employment patterns in the legal profession. In fact, we have surprisingly little data given the importance of our profession.
Some of the data we do have is out-of-date or badly skewed. Professor Simkovic and others, for example, cite results from the AJD study. That study tracks the Class of 2000, a group of graduates with experiences that almost certainly differ from those of more recent graduates. The Class of 2000’s history of debt repayment, for example, almost certainly will differ from that of the Class of 2010. In 2000, the average resident tuition at public law schools was $7,790–or $9,864 in 2010 dollars. By 2010, tuition had more than doubled to $20,238.
Rather than rely on outdated information, my study begins the process of providing more current data. (I don’t study tuition in particular; I note that example because Professor Simkovic uses AJD for that purpose in his post.) In providing that information, I also make comparisons to the baseline data we have. Although the prior data stem from different populations and use somewhat different methods, some of the differences are so large that they seem likely to reflect real changes rather than methodological artifacts.
AJD, for example, found that 62.1% of the class of 2000 worked in law firms three years after graduation. At a similar point (4.5 years post graduation), just 40.5% of my population held positions in firms. Some of that difference could stem from method. AJD relied upon survey responses, and the responses showed some bias toward graduates of highly ranked schools. AJD also examined a national sample of lawyers, while I looked only at Ohio. A national sample, however, is not a New York or California sample. AJD included lawyers from Tennessee, Oklahoma, Utah, and Oregon, as well as some from the larger markets. Ohio will not precisely mirror those averages, but I doubt the difference is large enough to account for the 20-point drop in law firm employment.
Assumptions About Non-Respondents
In my study, I tracked employment outcomes for all 1,214 new lawyers who were admitted to the Ohio bar after passing one of the 2010 exams. Using internet sources I was able to confirm a current (as of December 2014) job for 93.7% of the population members. For another 1.6% I found affirmative indications that the population member was not working. I.e., the person had noted online that s/he was jobseeking or that s/he had decided to leave the workforce to care for a family member.
That left 4.7% of the population for which I lacked information. For the reasons discussed on pp. 15-17 of the paper, I elected to treat this group as “not working.” There are some licensed lawyers who hold jobs without leaving any internet trace, but it’s a difficult task. For starters, Ohio’s Supreme Court requires all bar members to notify the court of their current office address and phone; the court then publishes that information online.
In addition, most working lawyers want to be found on the internet. With employer websites, LinkedIn, and Google searches, I found most of the population members very easily. The ones I couldn’t find became intriguing challenges; I returned to them repeatedly to see if I could find any traces of employment. The lack of any such evidence, combined with the factors cited in my paper, suggested that these individuals were not working.
It is quite possible, of course, that some of these individuals held jobs. Any bias toward understating employment outcomes, however, was likely outweighed by countervailing biases: (1) Some online references to jobs persist after an employee has left the position and is seeking other work. (2) My data collection could not distinguish part-time and full-time work, so I gave all jobs the same weight. (3) Some job titles may be polite masks for unemployment. A “solo practitioner,” for example, may not be actively handling cases or seeking clients. (4) My study included only law graduates who were admitted to the bar; it does not include the 10-12% of graduates who never take or pass the bar.
As I acknowledge in the paper, all of these biases could lead to overstating employment outcomes.
Salaries Within Job Categories
Professor Simkovic notes that my study does not account for salary increases within job categories. As I note in the paper, I gathered no data about salaries. I certainly hope that 2010 graduates received salary increases during the last five years! That, however, is a different question from whether employment patterns have shifted among new attorneys. Within the population I studied, I observed several features that differ from employment patterns reported in earlier studies of lawyers. These include the emergence of staff attorneys at BigLaw firms, a notable percentage of solo practitioners, a surprisingly low percentage of lawyers employed at law firms, and substantial percentage of recently licensed lawyers working in jobs that do not require bar admission.
Selection Bias
Professor Simkovic suggests that my study suffers from selection bias because the most talented Ohio graduates may have moved to other states to accept BigLaw offers. This would be a concern if I were trying to describe employment opportunities for a particular law school, but I am not doing that. Instead, I analyze the employment opportunities within a defined market. One can debate, as we have, how well Ohio represents outcomes in other markets. The study, however, is relatively free of selection bias within its defined population. Unlike AJD and many other studies, it does not depend upon subjects’ willingness to answer a lengthy survey.
For the record I’ll note that, although some of my school’s graduates move to other states for BigLaw jobs, the number is small. Like most law schools outside the top-ranked group, we place relatively few graduates at schools with more than 500 (or even more than 250) lawyers. My relatively informed, yet still anecdotal, impression is that our students who move out of state show a similar job distribution to those who remain in Ohio.
What Do We Know?
From my study, we know some things about the jobs held by lawyers who passed the Ohio bar exam in 2010. We don’t know about lawyers who passed the Ohio bar in other years, or about law graduates living in Ohio who have not been admitted to the bar. Nor do we know anything with certitude about lawyers in other states or at different times. But do the facts we know about one set of lawyers at one time provide insights into the experiences of other lawyers? Much social science research assumes that such insights are possible. The reach of those insights depends on the nature of the study.
Here, I think we gain some insight into employment patterns for recent graduates from many schools–at least for the 90% of schools ranked outside the US News top twenty. Some schools and some markets are very distinctive, but most of us are not as different as we first believe. Our first-hand impressions of our graduates’ job outcomes, meanwhile, are very skewed. After just a few years of teaching, we all have lots of former students. The ones we hear from or see at reunions almost certainly differ from those who drop out of sight. Research about Ohio won’t tell you everything you want to know about another market, but it may tell you more than you think.
Can we also gain insights about whether the job market for new lawyers has changed? That is a central claim of my study, buttressed by comparisons to previous data as well as information about why outcomes may have changed. Once again, I think the comparisons add to our knowledge. Personally, I don’t find the fact of change surprising. The legal employment market was different in the 1980s than in the 1950s, and both of those markets were different from the 1920s or 1890s. Why would we in 2015 be exempt from change?
The fact that change has occurred doesn’t mean that the demand for lawyers has evaporated; Richard Suskind’s provocative book title (The End of Lawyers?) has skewed discussions about change by creating a straw man. In the end, even Susskind doesn’t believe that lawyers are doomed to extinction. I think it’s important to know, however, that changes are occurring in the nature of legal employment. Staff attorneys, contract workers, and legal process outsourcers play a larger role today than they did ten years ago; an increasing number of new lawyers seem to establish solo practices; and junior positions in law firms seem to be declining. These and other changes are the ones I discuss in my paper. I hope that others will continue the exploration.
It’s Just Ohio
April 27th, 2015 / By Deborah J. Merritt
Today’s NY Times has an article that mentions my recent study of employment outcomes for the Class of 2010. Using official bar records, employer web sites, LinkedIn, and other internet sources, I tracked current employment outcomes for the 1,214 new lawyers who passed the Ohio bar in 2010. I found job information for 93.7% of the population.
The findings, as I explain in the paper, suggest that the Class of 2010 continues to face challenges in the job market–even almost five years after graduation. Although all members of the group I studied group were admitted to the bar, only three quarters hold a job that requires a law license. One-tenth of these recent graduates have gone into solo practice. The percentage working in law firms is just 40.4%–and a third of those lawyers work in firms with just 1-4 others.
These and other findings, of course, represent outcomes for newly admitted lawyers licensed in Ohio. Brian Galle at Prawfsblawg has questioned whether Ohio’s results represent outcomes in other parts of the nation. It’s a question that others undoubtedly will raise, so I offer some thoughts on that here.
Which Legal Profession?
When legal educators talk about the legal profession, discussion drifts toward BigLaw. This seems to happen even when we don’t realize it. Professor Galle, for example, states in a follow-up comment to his post that “the U.S. law market is concentrated in a few states.” That may be true for some types of corporate practice, but it’s not true for all of the other types of law that attorneys pursue.
Small and medium-sized businesses account for more than 99% of all business employers in the United States. These businesses, which populate every state, generate legal needs of all kinds: incorporation and partnership agreements, contracts with suppliers, tax disputes, employment suits, real estate deals, regulatory compliance, and tort claims. These clients do not hire BigLaw firms for their work.
Individuals in every state, meanwhile, need lawyers to handle divorces, criminal charges, real estate transactions, employment claims, immigration concerns, trusts and estates, civil lawsuits, and government disputes. Speaking of the latter, many more lawyers work for state and local governments than for the federal government. Whether you want to be a prosecutor, public defender, or agency lawyer, you’re more likely to work for a state, town, or county than for the feds.
If we want to think about employment outcomes for law graduates, we have to evaluate all parts of the legal profession–not just the BigLaw firms or government offices located inside the beltway. There’s a lot of law all over this land.
Why Look at a Single State?
If we agree that the legal profession is quite diverse, then how can we explore employment outcomes in that profession? National studies, like the After the JD project, offer one option. Averages taken across a diverse group, however, can offer a misleading picture. As statisticians have noted wryly, the average person has one testicle and one ovary.
Studying a specific city or state, on the other hand, imposes different limits. No two cites or states look exactly the same. Geographically targeted studies, however, can be quite informative. Two of the leading studies of our profession, Chicago Lawyers and its sequel Urban Lawyers, both focus exclusively on lawyers working within Chicago’s city limits.
I concluded that, given existing data on the legal profession (which is both fragmented and sparse), it would be most illuminating to develop a study of recent graduates licensed to practice in a large, but not dominant, legal market. In a private comment, one of my readers characterized Ohio as a “second tier legal market,” and I accept that label. That’s exactly what I was looking for: a market that would reflect the experiences of a wide range of law graduates, rather than those of an elite minority.
But Why Ohio?
In the paper, I offer considerable detail about why Ohio serves my purpose as a state that represents outcomes for a large band of new lawyers. Ohio is relatively large: it ranks ninth among all states for both the size of its licensed bar and the number of jobs provided recent law graduates. Two Ohio cities (Columbus and Cleveland) rank among the top 20 cities providing jobs to those graduates.
And yes, Ohio does have BigLaw firms: Jones Day, Baker & Hostetler, Squite Patton Boggs, and several others. It also has a client base that generates BigLaw issues: the three just-mentioned firms originated in Ohio and then spread globally.
NALP‘s employment reports on 9-month outcomes for the Class of 2010 suggest that Ohio’s legal market includes a representative mix of employers for entry-level lawyers. Other large states skew strongly toward private practice jobs (e.g., New York and California) or government positions (Washington DC). When I examined 9-month employment patterns for the ten largest states, only Ohio and Pennsylvania offered a representative mix.
Ohio, finally, has a fairly robust economy. In 2010, the state’s overall unemployment rate was worse than the national average but better than several states (California, Florida, and Illinois) that employ more lawyers. Equally important for measuring current employment outcomes, Ohio benefited from a strong recovery. In 2014, Ohio’s overall unemployment rate beat the national average and was considerably better than in legal powerhouse states like New York, California, Illinois, Florida, and Washington, D.C. See p. 13 of the paper.
Summing Up
No single study can capture a picture of employment outcomes that is true for all members of the Class of 2010–or of any other recent class. That’s partly because we have so few baseline studies to build on, and partly because the outcomes are so diverse. My study is incomplete in several ways. In addition to the geographic focus, I included only law graduates who were successfully admitted to the bar. The study tells us relatively little about careers of law school graduates who never take or pass the bar. That group, which comprises about 12% of all graduates (see page 40), would have different job outcomes than the ones I traced.
But we have to start somewhere. I chose to examine new lawyers in a state that, I believe, represents the type of employment outcomes achieved by a very large number of law graduates nationwide. As legal educators, we need to focus more on those outcomes–not just on the salaries and lifestyle at the largest law firms.
In making this start, I also developed a method that is easy to replicate. Ohio happens to have a particularly user-friendly bar directory, but most states have searchable directories online. Graduates, bar licensees, and other populations are easy to track through those directories, employer websites, LinkedIn, and other sources. If you’d like to study a different set of lawyers, feel free to contact me. I’d be happy to share all of my tips, including the best ways to track graduates who change their names. (Ok, I’ll offer that one without even requiring an email. If the state bar directory doesn’t allow searching by first and middle names, type the lawyer’s name plus the word “wedding” into google. You’ll most likely obtain a wedding announcement, gift registry site, or other leads.)
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.