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Support for Layered Legal Education
November 29th, 2013 / By Deborah J. Merritt
Since writing about multi-tiered legal education, including an undergraduate component, I have discovered several other scholars and practice experts with similar ideas. Here is a round up of proposals related to “layered” legal education with an undergraduate component. Please add to the collection by sending links to similar proposals.
Jordan Furlong’s BA plus MLP
Jordan Furlong, an internationally recognized expert on innovations in the legal market, proposed a BA/MA structure for legal education in 2010. As Jordan recognized, current JD programs do not effectively teach either professional skills or theoretical inquiry at the graduate level. Today’s law school offers a second bachelor’s degree masquerading as a professional or graduate degree.
Jordan, like me, proposes that we move much of the current JD program into the college curriculum: “Four years of undergraduate work would be enough to provide a healthy grounding in legal theory, legal history, aspects of justice, all the things that law schools now teach, in a mixture with Torts and Contracts and Business Associations and so forth.” Jordan also notes the positive impact of these courses for a wide range of students: “[A] a four-year Law undergrad would be a terrific grounding for any number of disciplines — don’t we always tell law students that a law degree opens up vast new career horizons to them? Better yet, students in other fields could minor in Law, or even take a handful of law electives. Think of the boost that would give to legal literacy among university graduates of all kinds, and to public legal education as a result.”
To prepare practicing lawyers, Jordan would establish “an MLP degree, a Masters of Legal Practice to mirror the Masters of Business Administration.” The master’s would build on the undergraduate degree, which would already have grounded students in “the theory and the basics.” The MLP would then “add business skills, professional responsibility training, client focus, project management, and the other hallmarks of a competent practitioner.” Sounds like a plan. (Jordan also notes the possibility of local bar associations creating training programs, perhaps jointly with private firms. That’s another excellent idea worth pursuing.)
Benjamin Barros’s Competency Exams
Benjamin Barros, Professor and Associate Dean for Faculty Research and Development at Widener Law School’s Harrisburg campus, has proposed a different mechanism for moving part of the JD curriculum to the undergraduate level. Rather than create a specific undergraduate major, Benjamin would allow prospective students to take competency exams in law school subjects. If a student achieved a sufficiently high score, the student would receive credit for the corresponding law school course.
As Benjamin notes, these exams would function much like Advanced Placement exams do at the college level. As with AP exams, Benjamin would allow students to develop their competency in any way they chose. Colleges, certainly, could offer courses preparing students for law competency exams; law schools might also enter that market. Students could also study on their own or use online courses. Test performance would offer feedback on the efficacy of these methods, while allowing students to choose methods suiting them best.
Benjamin, like Jordan and me, stresses multiple advantages of this system. Students could obtain a JD with less investment of time and money; a common path might include four years of college (including law-related courses) followed by two years of law school. Those law school years, meanwhile, could cover more sophisticated material. The nature of that more advanced material “might vary – it could be more practice oriented, more theory oriented, or remain doctrinal, but on a deeper level.” Whatever the content, JD students would obtain better preparation for their legal careers. College students would also benefit from law-related “AP” courses, even if they chose not to attend law school.
Benjamin first proposed a version of this idea in 2009. The original post, the more recent one, and the comments on both are well worth reading.
McGinnis and Mangas: BA Plus Apprenticeship
John O. McGinnis, a professor at Northwestern Law School, and Russell Mangas, a recent Northwestern grad practicing at Kirkland & Ellis, propose creating an undergraduate law degree that would include about 60 hours of legal study and 60 hours of general liberal arts courses. Like the other proposals discussed here, their approach would move traditional law school courses (including the first year) to the college curriculum.
McGinnis and Mangas would then require practicing lawyers to complete a year-long paid apprenticeship and pass the bar exam before qualifying for bar admission. Lawyers, therefore, could qualify for law practice after paying for just four years of education. They would devote a fifth year to qualifying, but receive income (rather than paying tuition) for that work.
McGinnis and Mangas, notably, would not eliminate current JD programs; they would maintain those programs alongside the new BA/apprenticeship track. Market choices by employers, clients, and students would determine the popularity of the two tracks.
McGinnis and Mangas, like others proposing layered legal education, note the financial advantages of their proposal. Students could qualify as lawyers with just five years of opportunity cost, four years of college tuition, and a paid apprenticeship. Even if apprenticeships paid low wages, new lawyers would carry much less debt than they do today–and might possess more professional skills.
Writing an article, rather than a blog post, McGinnis and Mangas develop the economic argument more fully. In particular, they contend that alternative educational paths would benefit consumers as well as new lawyers. A less expensive educational path should reduce the price of legal services; it might also enable services for markets that are currently underserved. The full McGinnis/Mangas article deserves a read.
The Kahn Plan
Douglas Kahn, of the University of Michigan Law School, advocates the boldest move toward the undergraduate curriculum. Kahn advocates moving the full three years of legal study to the undergraduate curriculum. Under his plan, students would begin law school after a freshman year of college. The law school curriculum would remain largely as it is today, but students would begin that study three years earlier.
Anticipating cries that his plan would sharply curtail liberal arts education, Kahn notes that law schools offer a good deal of that education within their three-year curricula. Most JD programs also allow students to take some courses from other disciplines, so students could assemble a well rounded education within the confines of a college degree that includes a JD.
Kahn does not advocate the addition of graduate education or apprenticeshps; he would allow students to qualify for the bar exam and law practice after just four years of higher education. His proposal thus moves more aggressively than any of the others discussed here, including my “four plus two” plan. Even if Kahn’s idea proves too radical for a consensus, he firmly supports the feasibility of beginning legal study during the college years.
A Plausible Path?
Each of these plans differs somewhat from the others, but all share a belief that we should begin legal education in college. Although constructing that path would require changes in state bar admission and ABA accreditation rules, these are changes well worth considering. I will continue to post on the practicalities, benefits, and costs of undergraduate “law school” courses and layered legal education.
Meanwhile, please forward links to other authors discussing these issues.
What Is a Liberal Education?
November 27th, 2013 / By Deborah J. Merritt
The Thanksgiving weekend is upon us. As you travel, feast, shop, give thanks, and draft exams, here are two questions to ponder:
1. What does a liberal education (also known by some as a “liberal arts” education) mean to you? See here for a distinction between the two phrases and a starter definition.
2. How does legal education fit within a liberal (or liberal arts) education?
Try these questions out on your friends and family members. Play Socrates with them and yourself: Don’t accept the first, most superficial, answers. Be concrete. See if people of different ages, genders, races, or social classes respond differently.
I welcome responses in the comments or by email (merritt52@gmail.com). I look forward to discussing those responses next week. Meanwhile, happy Thanksgiving!
What About the Bar Exam?
November 25th, 2013 / By Deborah J. Merritt
This post continues my earlier discussion of an educational framework that would shift the first 1-1/2 years of law school to the undergraduate curriculum. A two-year JD program, incorporating clinical education and advanced doctrinal work, would complement the undergraduate degree. As I wrote in my previous post, the undergraduate degree would not qualify students to practice law; as in our current system, only JDs would be eligible for bar admission.
In this framework, what would happen to the bar exam? The bar currently focuses on subjects covered during the first half of law school. If students completed that work in college, delaying the exam until after completion of a JD would be unsatisfactory. What’s the answer?
I can see several ways to address this issue, and I welcome suggestions from others. But here’s the answer that currently appeals to me: Divide the bar exam into two portions. The first portion would replace the LSAT as an entrance exam for JD programs. Rather than demonstrate their proficiency in logic games, future lawyers would show their competency in legal reasoning and basic legal doctrine. The second part of the exam, administered to JD’s, would focus on more advanced problem solving, counseling, and other practice skills. Both parts of the exam would include appropriate testing on professional responsibility.
A New Entry Exam
Law schools use the LSAT as an entry exam because we don’t have much else to rely upon. College grades offer one measure of potential success, but grading systems (and grade inflation) vary across colleges. Law schools set no prerequisites, so we can’t measure applicants’ success at mastering those fields. In theory, we could review applicants’ research and writing skills directly, but no one has much appetite for that. (And what would US News do to sell subscriptions if we abandoned a quantifiable admissions test?)
The MCAT, which informs medical school admissions, is quite different from the LSAT. The exam includes a section that probes reading comprehension and general reasoning, but two-thirds of the exam “tests for mastery of basic concepts in biology, general chemistry, organic chemistry, and physics.”
If students completed the first 1-1/2 years of legal study in college, we could devise a JD entrance exam that looked more like the MCAT. This exam would draw upon the current Multistate Bar Exam (MBE), Multistate Performance Test (MPT), and Multistate Professional Responsibility Exam (MPRE). A slimmed-down MBE would test basic knowledge and reasoning in foundational fields like Torts, Criminal Law, Property, and Constitutional Law. The MPT would examine analysis, reasoning, and writing as applied to basic legal issues. And an adapted version of the MPRE would cover basic principles of professional responsibility.
This type of exam would assure JD programs that applicants had mastered key principles during their undergraduate study. The exam would also demonstrate that proficiency to licensing bodies. Equally important, the exam could replace our obsession with LSAT scores. If we’re not willing to give up quantitative rankings and merit-based scholarships, we could at least reward new JD students for studying hard in college and mastering basic legal subjects.
Teaching to the Test
Would this new entrance exam require professors of undergraduate law courses to teach to the test? Would an undergraduate version of Property, for example, stress memorization rather than exploration of analysis and policy? That hasn’t happened in college science courses, despite the foreboding presence of the MCAT. Science professors, like law professors, realize that students can’t learn basic principles without also understanding how to apply them.
Undergraduate law courses, like our current 1L ones, would teach students basic doctrinal elements. They would also teach students how to apply those principles and reason with them. Students probably would reinforce their learning by taking review courses, just as they currently take LSAT prep courses and MCAT review ones. I’d rather see aspiring JD students pay for courses that review essential professional material than shell out money to learn tricks for beating the LSAT.
The entrance exam I envision, furthermore, would stress more basic principles than the current MBE. Currently, the MBE and MPT require 1-1/2 days of testing; the MPRE adds another 2 hours. I would create an entrance exam consuming six hours at most. The exam could cover all of the subjects currently included on the MBE (including Civil Procedure, scheduled to debut in February 2015), but coverage within each subject would be more limited. I would test only fundamental principles that students need to know by heart, not details that a reasonable lawyer would research. Similarly, I would include only some MPRE material on this exam, deferring other material to the post-JD test.
Post-JD Testing
So far I’ve proposed that aspiring lawyers would (a) complete a college major in law, encompassing the material we currently cover in the first 1-1/2 years of law school; (b) pass a modified version of the MBE-MPT-MPRE to enter law school; and (c) complete a 2-year JD program. Before gaining bar admission, these individuals would leap two more hurdles: They would (d) establish their good character, much as bar applicants do today, and (e) demonstrate their proficiency in legal analysis, reasoning, professional responsibility, and lawyering skills.
JD students would study some advanced doctrinal subjects in the 2-year program I envision, but I would not test those subjects for bar admission. Licensing focuses on minimum competency; we don’t test advanced doctrinal areas today, and we don’t need to add that testing to my proposed framework.
Instead, measures of post-JD proficiency could focus on legal analysis, reasoning, and professional responsibility–along with a healthy dose of lawyering skills. Adding a half year to legal study, as my four-plus-two program does, would allow better preparation in practice skills.
Licensing authorities could test those skills in one of two ways, or through a combination of the two. First, they could create their own tests of mastery. A written exam might include more sophisticated versions of the files used for the MPT. State supreme courts could also require students to complete live tests of client counseling, negotiation, and other skills. The medical profession has started using simulations to test graduates on their clinical skills; Step 2 CS of the licensing exam assesses performance through twelve simulated patient encounters. The legal profession could develop similar tests.
Alternatively, state supreme courts could require bar applicants to complete designated courses in these lawyering skills. Students would qualify for bar admission by successfully completing the required courses during their JD program. Courts and bar associations could assure quality in these courses by visiting and certifying them every few years.
Conclusion
It would be relatively easy to adapt the bar examination to a four-plus-two framework for legal education. Adaptation, in fact, could improve our licensing system by forcing us to reflect on the knowledge and skills that demonstrate basic competence in the legal profession. Step one of the bar, tested after college, would focus on basic legal doctrines, legal reasoning, analysis, and professional responsibility. Step two, assessed during or after the JD program, would further assess analytic skills while also examining key competencies for client representation.
ABA Blawg 100
November 25th, 2013 / By Deborah J. Merritt
The ABA Journal has recognized Law School Cafe in its Seventh Annual Blawg 100 list. Many thanks to our readers and commenters–we’re energized to continue the discussion about legal education and the profession. If you want to vote for us in the “Careers/Law Schools” category, here’s your link.
Declining Enrollments
November 24th, 2013 / By Deborah J. Merritt
On Friday I posted a projection of when the number of JD graduates might decline sufficiently to match available jobs. The calculations were very rough, based on assumptions tendered by others. However one varies the assumptions and calculations, though, one message is clear: Declining law school enrollments offer some hope to prospective lawyers, but bad news for law schools.
Successive Declines
First-year enrollment declined 7.2% between fall 2010 (52,488) and fall 2011 (48,697). The following year, in fall 2012, it declined another 8.7% to 44,481 students.
We don’t yet have statistics on the number of first-year students who matriculated this fall. We do know, however, that the number of applicants for the current 1L class declined to 59,426, a 12.3% decline from the previous year. Projecting an 8% decline in matriculants for this year, therefore, seems appropriately conservative. Using that estimate, about 40,923 1L’s are currently preparing for law school finals.
Three years of successive decline add up. In fall 2010, law schools were dreaming of revenues based on 52,488 entering students per year. Now we are looking at 40,923. That’s a decline of 22.0%–more than one-fifth in three years. Those empty seats, of course, generate no JD tuition.
To match graduates to available jobs, moreover, we still have a long way to go. The Class of 2012 found only 30,453 full-time, long-term jobs that required bar admission or benefited from a JD. Assuming a 10% attrition rate, as I did in Friday’s post, we could enroll an entering class of 33,837 JD students each year to generate an ongoing supply of 30,453 graduates per year.
That number of first-year seats represents a whopping 35.5% decline from our peak first-year enrollment in 2010. If the market is pushing law schools toward an equilibrium in which the number of graduates approximates the number of openings for full-time, long-term, law-related work, legal education faces a dramatic decline in JD enrollment.
Will It Really Be That Bad?
These calculations may be unduly pessimistic for at least two reasons. First, they assume that job openings stabilize at 2012 levels. Opportunities could increase; indeed, many legal educators hope that they will. I would be cautious, however, about assuming significant growth. The above calculations already include “JD advantage” jobs, which serve as fallback positions for at least some graduates. Even if the number of jobs for licensed lawyers increases, those jobs may simply substitute for JD advantage positions. That will be good news for the graduates taking those jobs, but it won’t change the overall number of law-related openings for graduates.
Second, law schools may continue to benefit from optimism bias among prospective students. Employment rates may not need to reach 100% for full-time, long-term, law-related jobs; applicants might return to law schools as those rates reach 70%, 80%, or 90%. Employment needs to rise only to the point at which individual applicants think that they will succeed.
Changes in the quality of law positions, however, may counterbalance any optimism bias. Staff attorneys, contract attorneys, and document reviewers have replaced many conventional associates. Law firms and clients have little reason to reverse that trend; these lower-paid, less secure workers perform their tasks quite adequately. The 2012 count of law-related jobs includes many of these positions, and numerous signs suggest that these jobs will continue to displace more secure ones. Even if the entry-level hiring market expands, applicants may not respond to a 70% chance of becoming a document reviewer.
No one can predict exactly when the number of law school graduates will match the number of entry-level jobs making use of those grads’ JD coursework. On balance, however, it seems that first-year enrollments will have to decline considerably more–perhaps to as few as 34,000 students–to reach that equilibrium. Law schools haven’t enrolled that few 1L’s since 1970, when there were 146 accredited law schools.
Could It Be Worse?
Could the numbers be even worse than the ones calculated above? Could the market push first-year enrollments even lower before the numbers stabilize? Sure. There are at least two ways in which my projections may be overly optimistic.
First, I include JD advantage positions in my count of jobs that will satisfy prospective law students. Although some students seek those jobs after law school, others take them only as placeholders. According to NALP’s 2011 Jobs & JDs report, 46.8% of graduates in JD advantage positions were seeking other work. [These reports are available only in hard copy, and I don’t have the 2012 report at hand, but the figure is likely similar.] As prospective students become more savvy about the legal job market, they may discount the availability of JD advantage jobs. Most of these jobs are open to BA’s. If a college senior wants to do compliance, paralegal, or human resource work, why not go directly into the job market?
Second, the entry-level job market may get worse. The last two years have produced some signs of minor improvement, but those years have also been marked by law schools funding their graduates, career services staff exerting heroic efforts, and alumni pitching in to hire graduates during the critical counting period. How much of the improvement in employment rates stems from those efforts? How long are those efforts sustainable?
Stiff competition, meanwhile, continues to characterize the market for legal services. Law schools have graduated a lot of un- and underemployed lawyers during the last five years. Those graduates continue to swell supply, allowing employers to pay lower wages and offer more contingent work. Competition from foreign lawyers, compliance managers, and other educated non-lawyers persists. Technology will continue to reduce the number of lawyers needed to complete many tasks.
Yes, we will always need to lawyers to perform both sophisticated work and in-person counseling. But there are already a lot of lawyers out there in the market. Being realistic about the current oversupply, together with ongoing trends, it’s possible that there will be fewer full-time, long-term positions for entry-level lawyers going forward.
Uncertainty cuts in both directions, and the current market for lawyers is very uncertain. It is possible that attractive entry-level employment for JDs will fall even below 2012 levels.
Implications
As prospective law students obtain more information about legal employment, the market is working for them: Some are seeking opportunities in other fields, leaving more jobs for their peers who are fully committed to law. This is good news for both the students who choose law school and those who pursue other paths. But for law schools, the prospects are sobering. Enrollments are unlikely to return to 2010 levels; indeed, they are most likely to continue falling. How should schools respond?
Some schools are expanding their LLM programs and targeting foreign students. Others are polishing their JD programs in ways that they hope will give them an edge over competing law schools. If some schools close or shrink enrollments, there will be more students for surviving institutions.
But this is also a good time to rethink the framework of legal education. As I have argued before, a three-year JD offers too much education (at too high a price) for many jobs. At the same time, it provides too little training for other positions. We need to unbundle legal education, much as lawyers have disaggregated legal services, to provide education that better matches workforce opportunities.
When Will Graduates = Jobs?
November 22nd, 2013 / By Deborah J. Merritt
* Updated to reflect sources
Professor Paula Young, of the Appalachian School of Law, predicts that the number of full-time jobs for law graduates will exceed the number of graduates by 2016. Excluding nonprofessional jobs from the tally, she calculates that sufficient full-time jobs will be available for JD grads by 2017. Are the calculations correct?
Unfortunately, no. The errors are somewhat understandable, because the ABA tables are hard to follow. The mistake is evident, however, because Professor Young reports the Class of 2012–rather than the Class of 2013–as the largest law school graduating class.
In this post I update Professor Young’s calculations, using the appropriate ABA data. I also, as Professor Young does, compare those forecasts with the number of jobs that were available for the Class of 2012. I then take her analysis one step further by making more realistic assumptions about the jobs that future graduates are likely to seek.
How Many JD Graduates?
The ABA reports annually both first-year enrollments in accredited JD programs and the degrees awarded by those programs. The table, as noted above, is awkward to read: Each line reports the first-year enrollment for that academic year, together with the degrees awarded during the prior academic year. This is a silly way to report data, but that’s what we have.
Using the ABA data, here are the first-year enrollment and graduation figures for the Classes of 2010 through 2012. Like Professor Young, I assume that all students graduate in three years–an assumption that does little to distort overall trends:
Class of 2010: 49,082 students entered; 44,258 graduated.
Class of 2011: 49,414 students entered; 44,495 graduated.
Class of 2012: 51,646 students entered; 46,478 graduated.
Note that the graduation rate for each of those classes was 90%, a little higher than the 88% that Professor Young estimates. I found the same rate for the classes of 2008 and 2009 (as far back as I checked), so I use a 90% rate when predicting future degree totals.
The ABA has already reported the number of students who entered law school for the graduating Classes of 2013 through 2015, but we don’t yet know the number who did (or will) receive degrees. Using the 90% graduation rate from recent classes, here are the predicted numbers of graduates:
Class of 2013: 52,488 students entered; predict 47,239 graduates.
Class of 2014: 48,697 students entered; predict 43,827 graduates.
Class of 2015: 44,481 students entered; predict 40,033 graduates.
Now let’s peer further into the future. Assuming, as Professor Young does, that entering classes will decrease steadily by 8% a year, while graduation rates will remain steady, I project the following numbers of JD graduates:
Class of 2016: 40,923 students entered; 36,264 will graduate.
Class of 2017: 37,649 students will enter; 33,884 will graduate.
Class of 2018: 34,637 students will enter; 31,173 will graduate.
Class of 2019: 31,866 students will enter; 28,679 will graduate.
Class of 2020: 29,317 students will enter; 26,385 will graduate.
Class of 2021: 26,972 students will enter; 24,275 will graduate.
My projected figures are about 9.4% higher than those calculated by Professor Young; the difference stems primarily from the fact that she attributed the all-time high enrollment of 52,488 students (who entered in the fall of 2010) to the Class of 2012 rather than the Class of 2013. If current trends in law school applications and admissions continue, the number of JDs will fall–but not quite as quickly as Professor Young predicts. Our current 1Ls will generate about 36,264 JDs in 2016, not the 33,145 that Professor Young calculatedd.
How will the number of graduates compare to the number of available jobs? Let’s take a look, using Professor Young’s assumption that future jobs will parallel the ones available to the Class of 2012.
Full-Time Jobs in 2012
NALP reports that members of the Class of 2012 held 33,759 full-time jobs nine months after graduation. That’s not enough jobs to employ the projected Class of 2016, which will include about 36,264 JDs. About 7% of that class–our current first-years–will lack full-time employment nine months after graduation.
Equally important, NALP’s full-time total masks several weaknesses in the job market. As Professor Young acknowledges, the total includes 330 nonprofessional jobs (such as retail sales) and 53 jobs of unknown character. If we exclude those jobs, the Class of 2012 secured 33,376 full-time jobs. That number won’t be enough to satisfy projected graduates in either 2016 or 2017.
But there’s more. Even the ABA omits “other professional” jobs from its summary of law school outcomes. Those jobs include elementary and secondary teachers, debt collectors, performing artists, and self-employed writers–all jobs that may satisfy the worker, but don’t draw upon a law degree or (in most cases) help repay the debt from that degree.
If we eliminate “other professional” jobs from consideration, the number of full-time jobs for the Class of 2012 falls to 31,606. For our current 1Ls, that means about 4,658 graduates (12.8% of the class) will lack full-time law-related employment nine months after graduation. For the Class of 2017, 2,278 graduates (6.7%) will fail to find full-time jobs related to their law degree. The jobs won’t match projected graduates until February of 2019, when the Class of 2018 reports its results.
Yet even that calculation is overly optimistic. “Full-time” jobs include short-term positions, those that will last for less than a year. Professionals don’t survive on temporary work; they aim to move on to full-time positions. When they do, however, they compete with students from the next graduating class. To match graduates to jobs, we need to look at full-time jobs that will last a year or more. The Class of 2012 found only 30,453 full-time, long-term jobs that drew upon their law degrees (either by requiring bar admission or offering a JD advantage).
That number of jobs won’t satisfy even a very slimmed-down Class of 2018. Even if law school enrollment continues to drop 8% per year, a daunting prospect for law school budgets, we won’t be able to celebrate a match between graduates and jobs until the spring of 2020, when the Class of 2019 registers its employment results.
Will JD Advantage Still Count?
All of the above calculations assume that future JDs will be satisfied with JD Advantage jobs. That seems like a dubious assumption. We know that recent graduates have not been satisfied with those jobs. Among 2011 graduates, 46.8% of those with JD Advantage jobs reported that they were seeking other work. (This figure comes from NALP surveys, although NALP does not publish the “seeking other work” figures online. For further discussion, see this post.) Graduates have been taking JD Advantage jobs to survive, but they are not satisfied with those positions.
In the future, this is even more likely to be true. As the cost of law school has mounted and the job market has tightened, pre-law advisers, the media, and even legal educators have advised students: “Go to law school only if you know you want to be a lawyer or have another well formulated plan for using a law degree.” That advice makes sense in the current climate–and it means that future graduates are even more likely than current ones to expect full-time, long-term positions that require bar admission.
The Class of 2012 found only 26,066 of those jobs. Assuming that law school enrollment continues to drop 8% a year, while jobs remain steady, when will all law school graduates be able to find full-time, long-term jobs that require bar admission?
2021.
Paralegal Perspective
November 20th, 2013 / By Deborah J. Merritt
Lydia Bailey, who writes for a site devoted to online paralegal degrees, sent me an infographic about changes in the legal profession. I don’t agree with every detail of the graphic, but it raises several interesting points.
Closed Markets
First, the graphic recognizes the closed market that lawyers enjoyed during the third quarter of the twentieth century. During those golden years, lawyers were the only source of legal assistance on most matters. Minimum fee schedules, advertising bans, in-state residency requirements, and other “ethical” rules bolstered prices within this market. Competition for clients was restrained, and technological advances benefited lawyers rather than clients.
The graphic portrays the closed market as persisting through the first decade of the 21st century. I differ on the timing; I think the walls protecting lawyers began to crumble in the 1980’s and 90’s, especially for solo and small-firm practitioners. The concept, however, is sound. When evaluating the current market for legal services, legal educators often forget the trade restraints that buoyed prices in earlier times. I agree with the graphic, moreover, that lawyers began to feel the loss of their closed market most strongly after 2005.
Deregulation and Competition
The graphic then details some of the many consequences of more vigorous competition in the legal services market. Clients are turning to outsourcing companies and nonlawyers. Technology is making lawyers more productive, but clients are reaping most of the gain as lawyers harness that productivity to lower prices. Market forces are pressing lawyers to provide services more efficiently and economically. Responding to those pressures, many services have become commoditized.
Richard Susskind and others have made these points for years, but this infographic lays them out in a easy-to-grasp manner. The graphic also acknowledges that some lawyers will continue to receive hefty salaries for high-stakes, sophisticated work. No one who studies the legal market doubts that proposition. The circle of highly compensated lawyers, however, will tighten as the market shifts as much work as possible to lower-paid workers.
The New Normal
The infographic closes with the especially sobering findings of a recent Altman Weil survey. The managing partners surveyed by Altman Weil overwhelmingly agreed that pressures for efficiency, price competition, commoditized work, and other markers of an open market are here to stay. This is a point that many legal educators miss: To the extent recent changes in the legal market stem from deregulation and increased competition, those changes are very unlikely to reverse themselves.
Why Do Future Paralegals Care?
The most notable point about this infographic is that it appears on a site devoted to recruiting future paralegals. Why do potential paralegals care about shifts in the market for licensed lawyers? Do they care that firms are making fewer equity partners and hiring more contract lawyers?
The sponsors of the site obviously think that potential paralegals will care, and I agree. As the infographic suggests, many law-related tasks are moving into uncharted employment territory. Licensed lawyers currently perform most document review, but will that remain true? Could experienced paralegals perform this work just as effectively, but at lower cost? Could paralegals with somewhat more education do the work? Could college graduates with minimal legal training compete in this field?
And what about the growing field of compliance? Currently, college graduates dominate that field. They possess experience (and sometimes degrees) in the regulated field, but no formal training in law. Could a paralegal with a BA in biology handle compliance work in health care or environmental science? Would a JD perform any better than the biologist-paraleegal?
The Lesson for Law Schools
Law schools need to think more about the law-related jobs created by the deregulation of the legal profession, unbundling of legal tasks, and commoditization of legal services. JDs still command a premium for some of these jobs, but that advantage is waning. As the market increasingly embraces non-JDs for law-related tasks, who will provide the education for those workers? Do law schools want a piece of that pie, or are we willing to cede those educational opportunities to colleges, paralegal programs, and other organizations?
Educating paralegals, document reviewers, and compliance officers may seem shockingly lowbrow to law schools, but remember that these are tasks that entry-level lawyers used to perform. These are also jobs that some of our current graduates take under the “JD advantage” label. As employers unbundle tasks in the workplace, perhaps we should unbundle our education to match workplace opportunities.
Committing to Law
November 19th, 2013 / By Deborah J. Merritt
I have proposed dividing legal education into an undergraduate major (which would include the 1L year plus one semester of electives) complemented by a two-year JD (which would focus on advanced doctrinal courses and clinical work). One practical question about this proposal is: What happens to students who pursue a non-law major in college but later decide that they want to practice law? There are several answers to this important question.
Complex Professions Require Extended Education
First, we should be realistic about the education that professional work requires. Professionals in other complex fields begin their preparation as early as middle school. Future doctors and engineers, for example, push ahead in the secondary math/science curriculum. In college, they take courses required for their major (engineering) or admission to medical school. No one doubts that these fields require extensive education acquired over numerous years.
The same is true of most academic fields outside of law. Respected graduate programs in history, philosophy, and other fields do not admit applicants who lack undergraduate preparation in those subjects. Programs sometimes admit students who majored in a different field, but those applicants must demonstrate other coursework that prepared them for graduate work in the subject. In addition to field-specific coursework, many graduate programs in the humanities require language proficiency; those in the social sciences may require languages, quantitative skills, or relevant research experience. A college senior who majored in classics can’t suddenly decide to pursue a PhD in psychology; nor can the psychology major abruptly switch to doctoral work in classics.
Law is one of the few post-baccalaureate programs that admits students without specifying any prerequisites other than a BA. This in itself should suggest that our initial coursework is designed for undergraduate majors rather than college graduates. The first year and a half of law school is introductory legal education that could–and should–be completed in college.
At the same time, our degree structure leaves too little time to prepare graduates for the complex work that genuinely requires a law license. Document review is not complex; a college graduate with a law major could perform that work. Prosecuting crimes, representing criminal defendants, arranging international real estate deals, or helping healthcare clients restructure operations to comply with the latest healthcare regulations is complex. Entry-level lawyers need more preparation–primarily in people, business, and clinical skills–to begin work in these fields.
Creating a law major recognizes that law is a complex field–just like medicine, engineering, philosophy, history, psychology, and other professions.
Career Changers
But what about the engineer who wants to become a lawyer? Or the historian who fails to find a tenure-track position and hopes to pursue law as a fallback? Or the well meaning student who did well in college but couldn’t quite decide on a path? How would any of those graduates find their way into the legal profession if they failed to major in law as college students?
There are many potential roads for these students, just as routes exist for college graduates who lack necessary preparation for medicine, engineering, and other fields. Some career-changers enroll as post-graduate or continuing education students to complete undergraduate coursework needed for their new path. Some universities have created special programs for these students. Johns Hopkins, for example, offers a “post-baccalaureate premedical” program that allows college graduates to take the coursework they need for medical school.
Graduates who want to pursue a PhD unrelated to their college major, similarly, may complete a Master’s degree in the field before gaining admission to a doctoral program. Others may gain conditional admission to the doctoral program, promising to complete necessary undergraduate courses during their first year in the program. These students don’t receive credit toward the PhD for those preparatory courses, but they are able to enroll in the courses and complete them.
Law schools could adopt options like these to accommodate college graduates who decide to pursue a legal degree without completing the necessary college courses. Those graduates probably could complete the 45 credits of an undergraduate major in a post-BA program encompassing a full calendar year. Alternatively, they could complete the work in a part-time program stretching over two or more years. Law schools undoubtedly could devise a variety of programs to accommodate these students, just as we have created special LLM programs for increasingly diverse audiences. I wager that the new programs would be more popular than many of the current LLM programs for nonlawyers; the proposed programs would give students a solid grounding in law and qualify them to move on to the JD.
With the degree structure I propose, even a career changer could qualify for a law license after just 3-1/2 academic years: 1-1/2 years to replace the pre-law major and 2 years for the JD. If the student paid undergraduate tuition for the first part of that education, she might pay less than she would today for a 3-year JD.
The College Minor
Where there are majors, there are minors. A college minor in law would also answer some concerns about late bloomers and career changers. Students with a possible interest in law might complete 15-20 credits of college work to qualify for a law minor. Those courses would cover roughly the first semester of law school. In addition to offering excellent insights to students pursuing a variety of careers, this coursework would give late-deciders a boost if they later chose to pursue a JD. These students would need to make up only 25-30 credits of pre-JD legal study before beginning the 2-year JD. In other words, they would devote 3 post-baccalaureate years to obtaining a JD, just as students do today.
The Other Side of the Coin
Dividing legal education into a college major and a 2-year professional degree need not deter career changers from entering law. Equally important, the shift would give many more students an opportunity to explore legal education and decide whether that path is right for them.
Plenty of college students change their majors or convert an intended major into a minor. Some students who begin a law major in college will decide that they prefer philosophy, accounting, chemistry, or other fields. More power to them! It is better for these students to recognize their talents and preferences in college, rather than after investing in an expensive professional degree.
Conversely, college students with little knowledge of law practice may learn about law from their roommates and other friends. If law intrigues these students, they will have a low-cost opportunity to explore the field. Some will decide that law is not for them; others will decide to apply a law BA to a business or compliance career; still others will pursue a JD and practice law.
Summer work and internships during college will help these students decide whether law is the right career for them. Today’s colleges offer many opportunities for this work. A college student who has combined legal coursework with an internship or summer job will have a better basis than today’s students do for deciding whether to pursue graduate legal study.
The BA in law, finally, creates an option that students may exercise at any time. Some law majors may proceed directly to law school. Others may opt for jobs unrelated to law. Still others will pursue positions in compliance, human relations, legal process work, and other law-related fields that do not require a law license. After experience in those fields, some graduates may continue that work, seeking opportunities for advancement within their chosen area. Others may decide to obtain a JD, becoming licensed lawyers. Still others may pursue a graduate degree in another field such as business, computer science, or health policy. Those graduates may determine that their foundational coursework in law, combined with graduate study in another field, gives them the best career prospects.
More Choices
The bottom line is that a law major, combined with a more focused JD program, will give students more choices rather than fewer ones. Creating those choices is consistent with our new economy, which requires flexibility and adaptation.
Four Plus Two
November 17th, 2013 / By Deborah J. Merritt
Practitioners and professors continue to explore new paths for legal education. Based on both pedagogy and market needs, I recommend this approach:
1. Move the first 1-1/2 years of law school into the undergraduate curriculum, creating a law major. Students who complete this curriculum will not be eligible to practice law, but they will benefit from a liberal arts education with a focus on thinking like a lawyer. These graduates will be able to apply their legal knowledge and critical thinking to business, public affairs, compliance, and a host of other careers. They will also be qualified to perform document review and other routine legal tasks that some JDs currently undertake.
2. Create a 2-year JD that builds upon the undergraduate degree and prepares graduates for law practice. Like other graduate departments, these programs will enroll fewer students than the undergraduate major. They will include substantial clinical and experiential work, as well as classes focused on advanced doctrinal and policy issues. Most students in these degree programs will focus on a particular field of law, although general practice will remain one of those options.
Here, briefly, are my rationales for this proposal. I hope to explore my reasoning at greater length in future posts.
Too Much Legal Education for Some
Our current JD curriculum offers too much education for many law-related workers. Compliance managers, human resource officers, and many other contemporary employees apply legal principles without ever attending law school. Most of these workers have only a bachelor’s degree. Some obtain certification from national organizations, and some earn a master’s degree in a field related to their compliance work. Very few, however, enroll in law school. Even one-year LLM programs have failed to attract a large number of these workers.
The hard truth is that these workers don’t need law school to learn how to interpret and apply legal principles. A strong liberal arts education–one that develops critical thinking and communication skills–is sufficient. These workers, in fact, often benefit from training in other fields such as finance, accounting, environmental science, chemistry, or biology. The “law” of environmental compliance is easier to understand than the biochemistry of that work.
The most sensible way for law schools to tap this flow of workers, which is growing steadily, is to enroll them in undergraduate programs. We shouldn’t, however, underestimate these students by teaching them dumbed-down versions of environmental law. Instead, offer future compliance managers our 1L curriculum–complete with development of critical thinking skills–followed by courses in environmental law, tax, securities, or other areas relevant to their interests.
Seven years of higher education is also too many for law graduates who perform document review and other routine legal tasks. Employers currently require a JD for this work, but that’s because they have no other option for workers with basic law skills. If we offered the first 1-1/2 years of law school as a college major, those classes would produce excellent document reviewers, contract managers, and other workers exercising routine legal skills. Once again, the undergraduate work that I envision would encompass all of the analytical skills we teach during the first year of law school, as well as the basic doctrine taught during that year.
Too Little Legal Education for Others
While our BA+JD system offers too much education for some law-related jobs, the combination offers too little for others. Most law graduates lack the specialized knowledge and clinical skills that employers now demand in new lawyers. As market forces have shifted routine legal work to non-lawyers, computers, and overseas workers, employers seek new lawyers who are ready to tackle more sophisticated tasks. The traditional JD curriculum does not serve those needs.
So far, law schools and employers have responded to this challenge by lengthening the training path for new lawyers. Some JDs are obtaining LLMs in specialized fields. Others are completing fellowships or low-paid apprenticeships to gather the experience they need for a full-fledged legal position.
A better answer would be to reduce the duplicate liberal arts education that these graduates receive in college and law school. Law school, for better or worse, adopts a liberal arts perspective. We educate students as generalists, not specialists. We stress critical reading, analysis, and writing, rather than narrow “technical” skills. We engage students in policy issues to prepare them for good citizenship and dynamic leadership. It’s hard to find a better “liberal arts education” than the first two years of law school.
Why, however, do we force future lawyers to take two doses of that liberal arts education, one in college and one in law school? Shouldn’t four years of a liberal arts education be enough? If students could major in law during college, they could develop critical thinking and communication skills in the context of legal materials. If they decided to become lawyers, they could then progress to a graduate program focused on more advanced doctrine, theory, and clinical practice.
If we moved the first 1-1/2 years of law school into the undergraduate curriculum, we could build a 2-year JD with more advanced offerings than we currently provide. Lawyers would devote only six years to higher education, but would emerge better educated than they are today.
Interdisciplinary Work
If college students are able to major in law, they will devote fewer college credits to history, political science, foreign languages, chemistry, and other subjects. The law major, however, would leave plenty of time for some study in those fields. Even if a law major consumed 45 credits (equivalent to 1-1/2 years of law school), that would leave 75 credits for other college courses–including general education classes and study in a minor field.
Students, moreover, would benefit from contemporaneous study of law and other subjects. Law students often struggle to apply college coursework to their law school classes. A freshman course in statistics seems very distant to a second-year law student; so does a sophomore class on economics or psychology. My proposal would allow students to combine legal study with work in other disciplines throughout a full six years of higher education. Integrating legal study with other work would foster more genuinely interdisciplinary understanding.
College and law graduates, finally, would have time to pursue other subjects if they chose to do so. My proposal would save lawyers a year of higher education. Students could use that time and tuition to complement their coursework with education in any other field.
Layered Law
For more than fifty years, lawyers have defended a unified profession and general degree. We have resisted efforts to create specialized law degrees or limited-purpose licenses. In part, we have feared the unappetizing specter of legal services divided along economic lines. Dividing the profession, we worried, might relegate low-income clients to cheaply trained lawyers–while corporations and the wealthy continued to benefit from better educated attorneys.
Note that my proposal does not slice law practice in that manner. I would not allow college graduates to represent either corporations or indigent defendants in court. Both of those tasks would require a law degree. Clients of all types, on the other hand, might benefit from some law-related work performed by college graduates.
The contemporary legal market has already generated several layers of law-related employment. Compliance managers interpret regulations with the benefit of only a college degree. Paralegals perform a wide variety of law-related tasks, sometimes with only an associate’s degree. Foreign-educated lawyers conduct document review and due diligence. Some JDs work in similarly limited positions.
Restructuring legal education would recognize these shifts, without compromising client interests. On the contrary, clients deserve the cost savings that have been achieved through the streamlining of legal services. At the same time, clients require the insights of highly educated lawyers. Expanding legal education to include both a rigorous college major and an advanced degree will serve all of those ends.
Derek Bok on Legal Education
October 7th, 2013 / By Deborah J. Merritt
Derek Bok served as dean of Harvard Law School from 1968-1971, a time of great challenges in higher education. Bok then took on the Harvard presidency, leading that institution for twenty years (1971-1991) with a reprise as interim president in 2006-2007. Over the years, Bok has drawn upon these experiences–together with prolific research–to write several insightful books on higher education.
Bok’s most recent book, Higher Education in America, offers a thoughtful overview of the problems and opportunities that face higher education. Bok neither glorifies universities nor deplores them; he offers pragmatic insights on a wide range of issues. Law schools receive a full chapter of Bok’s attention, and it is a chapter well worth reading. Bok does not plow new ground; he borrows from other scholars of legal education and the profession. Given Bok’s extensive experience and reputation in higher education, however, it is worth noting the points that he stresses.
[All quotes in the following sections are from chapter 13 of Higher Education in America. Working from an e-reader, I can’t give more specific page citations.]
The Employment Challenge
Bok is blunt about “the most serious problem facing law schools today.” “The crux of their predicament,” Bok states, “is that they are currently graduating far more students per year than the annual number of new legal jobs that are predicted to materialize through 2018 as a result of retirements and new openings.” The shortfall is not new: Bok notes that the economy produced 275,000 job openings for lawyers between 2000 and 2010, while “400,000 students graduated from law school.” During the current decade, he suggests, the gap will be even larger.
Some of these graduates, Bok acknowledges, will not want to practice law. “But enough of them will, based on past experience, to leave many of them unable to find a legal position even after the current recession ends, let alone a job with a high enough salary to allow them to repay their educational loans.” The inevitable result, Bok writes, is the one we are witnessing: college students are responding to the “dismal job market” in law by “abandoning their plans to enter law school.”
Bok makes short work of pleas to help students by liberalizing loan repayment programs: “such measures merely shift the financial burden to taxpayers while doing nothing to curb tuitions or to deter students from incurring excessive debts in the mistaken belief that they will somehow succeed in finding one of the coveted highly paid positions in a large law firm.” He also criticizes the inter-school competition that has “inflated faculty salaries, increased tuitions unnecessarily, and massively shifted financial aid from need-based grants to merit scholarships.”
The latter trends, Bok notes, have affected higher education more broadly; he criticizes inflated tuition and the decline of need-based scholarships throughout the academy. Law schools, however, seem to have increased tuition and reduced need-based aid more than other academic units–and are now suffering from a particularly severe employment crunch.
Pedagogy
In matters of pedagogy, Bok suggests that law schools may have been victims of their own early success. “Among the major professional schools, they were the first to discard the traditional lecture for a more active form of learning.” The case and “Socratic” method proved remarkably effective at introducing students to legal principles and critical thinking.
That success, however, “may have contributed to the lack of attention paid to other ways to foster effective teaching and learning.” As a result, law faculties have fallen behind their colleagues in other fields–including the arts and sciences–in both learning theory and practice. Bok criticizes law professors for their “constant” and “tedious” use of the case/Socratic method; harmful neglect of students’ self esteem; lack of feedback; and failure to require collaborative work.
Law schools, according to Bok, also “lag behind other faculties . . . in attempting to measure the extent to which their students are acquiring the knowledge or the competencies they need to perform effectively as lawyers.” When law schools do study those outcomes, the results are discouraging: One recent study shows that students make relatively small improvements in their legal reasoning ability after the first year. Their class preparation also drops markedly after that year. These findings, according to Bok, raise warning signs for legal education.
Clinics
Bok stresses the role that clinical education could play in improving legal education. In addition to adding necessary elements to the curriculum, clinical experiences could stimulate students’ flagging interest in the second and third years of law school. Bok also notes that clinical professors have led the way in stimulating innovative teaching at law schools. Those professors have pioneered a wide range of teaching methods and, along with professors of legal writing, have produced articles “discussing cognitive theory, . . . research on student learning, and their potential application to law teaching.”
As Bok concedes, clinicians don’t have it easy in the legal academy: “The principal impediment to achieving the full potential of clinical studies is the skepticism on the part of many members of the core faculty as to whether the training itself or those who provide it fully meet appropriate academic and intellectual standards.” Although Bok spent his faculty years as a doctrinal professor, he urges law school colleagues to shed this prejudice. “On balance,” he concludes, “the potential of clinical programs and their faculty to enrich legal education seems to justify a larger role than they are currently given in most law schools.”
And More
For further insights into legal education, I recommend the full book. Bok discusses the lack of legal services for low- and mid-income Americans, the difficulty of teaching professional ethics, and other key issues for legal educators. His exploration of other academic units is equally worthwhile. Bok’s views, based on a lifetime of experience and extensive scholarly study, deserve serious consideration.
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