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Reframing the Two-Year Debate
October 5th, 2013 / By Deborah J. Merritt
The debate continues over the virtues and drawbacks of a two-year JD. Much of the discussion has raised useful questions about the goals we try to achieve within the JD program. What purpose does the first year serve? How do the second and third years build on those objectives? How do students best learn the doctrine, policy, analytic skills, and problem-solving capacities they need to become effective lawyers? Can it be done in two years?
Most comments, however, have focused narrowly on the JD program itself. Few participants have addressed the skills that students learn (or could learn) in college; the ones they gather in the workplace before, during, and after law school; or the academic study they might complete after graduation in a world of MOOCs and other online instruction. If we want to provide the best possible legal education–an education that serves graduates, clients, and society–we need to think of law school as part of a much larger educational system.
A recent essay by my co-moderator, Kyle McEntee, begins to add that perspective. Kyle argues that a two-year JD is plausible if we expand the notion of legal education beyond the law school walls. Most professional and graduate programs require students to complete prerequisites in college. If law schools followed that lead, we could deliver more focused, sophisticated content from the first day of classes. Similarly, law schools might address the need for specialized doctrinal training by creating post-graduate on-line courses for practicing attorneys.
These suggestions carry significant force. Could we, in fact, construct a worthy two-year JD if we better integrated that degree with the education that precedes and follows it? That question deserves further examination. Rather than pursue it today, however, I’d like to use Kyle’s insights to reframe the discussion.
A New Frame
I suggest reframing our discussion of legal education by asking four fundamental questions: (1) What does law school currently teach? (2) Which members of our society would benefit from all or part of that education? (3) Does our society need new types of law-related education? (4) How can our educational system most efficiently and effectively address the educational needs identified in response to these three questions?
Exploring these questions could take legal education in many directions. We might identify new ways to address our nation’s need for cost-effective legal assistance. We might also contribute to better workforce preparation among non-lawyers. We might even find ways to enhance high school education. For today, I’ll outline just one proposal that has emerged from my own pursuit of these questions: Create an undergraduate major based on the first two years of law school.
Law as an Undergraduate Major
This major would not be a “pre-law” one; nor would it be law school lite. I propose literally transferring the first two years of law school to the undergraduate curriculum. Like our current 1L and 2L years, the major would include a large number of required courses along with some electives. Undergraduates could share some of the electives with post-BA law students, just as undergraduates in other fields share some electives with graduate students.
Undergraduate law majors would complete several writing projects, just as today’s law students do in the second and third years. They might complete a law-related internship during the summer between their junior and senior years, again following the practice of today’s 1Ls. To graduate with honors, law majors would write a publishable law review note–analogous to the senior thesis required for honors in other undergraduate fields.
This new LLB would not qualify graduates to take the bar exam or practice law. To obtain a license, LLB’s would have to complete additional work in classrooms and workplaces; I plan to examine that work in future posts. The LLB, however, would serve many purposes short of admitting students to law practice. The law major would educate students in the critical thinking and problem solving that we teach during the first two years of law school. The major would also introduce students to the basic principles of our legal system, and it would give them experience interpreting cases, statutes, and other legal materials.
Like other liberal arts degrees, the law major would accomplish four related functions: It would develop the type of critical thinking that prepares graduates for citizenship, it would lay an intellectual foundation for work in many fields, it would give students intermediate-level knowledge in a particular field, and it would prepare students for graduate study in that field.
This proposal follows quite naturally from the four questions I posed above.
The Four Questions
1. What do we teach in law schools? Among other matters, we teach critical thinking, problem solving, and the use of policies and precedents to address complex social issues. We also teach fundamental principles of the legal system (torts, contracts, criminal law, civil procedure, business associations, etc.) and the basics of legal writing. We teach students how to find and interpret judicial opinions, statutes, constitutions, regulations, and other legal materials. We teach them how to relate legal issues to principles of economics, critical theory, philosophy, social work, and other fields of study.
Notably, we do much of this work during the first two years of law school. We continue this education during the third year, but most students make significant progress toward these educational goals during the first two years. Even interdisciplinary perspectives arise frequently in basic courses; we no longer save these insights for advanced seminars.
Law schools teach other material as well. We provide at least some education in client counseling, negotiation, drafting, and clinical representation. We expand upon the doctrinal and interdisciplinary insights of the first two years. We also offer a wide range of courses in advanced legal doctrine. These, like the subjects noted above, are essential parts of lawyer preparation. I omit them from further discussion here, because my current focus rests on the first two years of law school.
2. Who benefits from the education that occurs during the first two years of law school? Future lawyers undoubtedly do, and I would not eliminate any of these elements from legal education. But other citizens and workers would also benefit from this education. We have always recognized that fact in law school, noting the benefits of our degree program for business people, government officials, nonprofit leaders, and citizens of all types.
3. Does our society need new types of law-related education? Undoubtedly it does. Citizens lack representation in life-changing matters, including criminal prosecutions and child custody disputes. We need either to educate citizens to represent themselves or to educate more lawyers who will assist them. Regulation, meanwhile, is so ubiquitous that workers in many fields regularly address legal issues. Businesses can’t afford to hire lawyers for all of these matters; we need to educate other professionals to handle many of them.
If we consider critical thinking, creative problem solving, and clear writing as “law-related” skills, then our society needs even more types of law-related education. These skills are fundamental to today’s workplace; they appear at the top of most employer’s wish lists.
4. How can our educational system as a whole efficiently and effectively address these needs? Law school is effective in teaching 1L and 2L content to future lawyers, but it is not particularly efficient at the task. Students don’t encounter this material until they have attended (and paid for) four years of college; often, they also pay more per credit for this law school instruction than they do for college courses.
Why is this delay and extra expense necessary? Undergraduate majors in astrophysics, biochemistry, linguistics, comparative literature, neuroscience, and other fields master very complex material during their third and fourth years of college. They often receive that instruction in small classes taught by renowned scholars. Professors teaching in some of these fields could earn higher salaries in industry, just as some law professors could earn higher salaries in practice. If colleges can educate students in these fields, as part of the normal college program, why can’t we match that performance in law?
Future lawyers could learn the basics of critical thinking, legal reasoning, and legal doctrine in their last two years of college. They would still be able to devote at least half of their college credits to other fields, including subjects that would complement their legal education. Is it better to take introductory economics four years before studying Torts and Contracts, or just two years earlier? Wouldn’t it be beneficial to take economics and contracts from professors who are colleagues within the same college of arts and sciences? We could teach the first two years of law school just as effectively–perhaps even more effectively–in college as in law school. We certainly could reduce student costs by doing so.
Meanwhile, creating a rigorous law major would address some educational needs that go unmet today. Law schools have created one-year LLM’s for non-lawyers, but these programs are both expensive and unwieldy. The HR professional would benefit more from an undergraduate major in law than from a one-year master’s in the same subject. The latter costs more and delivers less. Compliance officers, similarly, would benefit from undergraduate legal education. So would some social workers, scientists, entrepreneurs, and software engineers.
It remains to be seen whether an undergraduate law major would help us meet the legal needs of low- and middle-income Americans, but it might. Creating an undergraduate law degree might spawn new ideas about educating professionals to meet these needs. At the very least, shortening the path to a law license would reduce costs for lawyers hoping to serve the under-served.
Conclusion
Legal education faces significant challenges, but so do colleges, workplaces, and the economy. We’ll reach the best solutions by thinking broadly. What do we teach? Who would benefit from that education? What other law-related education does our society need? How can we address all of those needs most effectively and efficiently?
Lessons from MIT
October 1st, 2013 / By Deborah J. Merritt
Challenges in legal education, as others have noted, are part of deeper trends in higher education and the economy. My current work on a university-wide committee has taken me away from this blog, but it has increased my knowledge of other parts of higher education. Colleagues in many fields are struggling with “Robin Hood” tuition/scholarship practices; the growing gap between well-paid professors and low-paid teaching staff; and a new interface between the academy and workplace. Solutions are elusive, but these issues are provoking serious study.
In 2010, MIT President Susan Hockfield established MIT’s Production in the Innovation Economy (PIE) research group. Hockfield asked the group to study the decline of U.S. manufacturing, and to identify factors that might restore a more vibrant economy. The group conducted extensive research in the United States and abroad, produced a preview report, just released one book, and has a second book due in January.
What does any of this have to do with legal education or law practice? I’m struck by two points made in the preview report.
Products, Services, and Bundles
We used to divide the economy into products and services. Citing Harvard economist Richard Freeman, the MIT report notes that products are things we can drop on our feet. Services are less likely to hurt your feet, although they may mess with your mind.
Today, however, “the traditional line between ‘manufacturing’ and ‘services’ has become so blurred that it no longer serves to distinguish separable and distinct activities or end products.” (P. 10) Our economy still produces plenty of goods and services, but the economic “activities that create most value, that is, the ones that are most difficult for others to replicate, are bundles [of goods and services].” (Id.) Apple doesn’t just manufacture iPods; it sells a suite of goods and services that have changed the ways we listen to music, exercise, and learn.
Lawyers think of themselves as service providers, but many of our traditional services are quite product-like. You can, in fact, drop a contract, take-over agreement, or divorce decree on your foot. A box of documents, produced in response to a discovery request, could definitely stub your toe. These “products” result from intellectual work, but that’s true of any engineered item.
During the last decade, lawyers have been dismayed to see their services mutate more clearly into products. Want the paperwork for a simple divorce? You can buy it online or in a bookstore. Want to incorporate your small business? Those forms are available as well. E-discovery lawyers, working away at their basement computers, look more like assembly-line workers than professional service providers.
While lamenting this shift, legal educators and bar leaders have missed a key point: The most successful legal service providers have recognized that law is a bundle of products and services. We won’t get anywhere protesting the commodification of law practice. We have always produced commodities; form leases and form pleadings existed decades ago, and lawyers tweaked them for individual clients. Law has always included products.
Instead, we need to focus on the services that we can provide to accompany the products. “Service” doesn’t mean charging a lot of money to tweak the form pleading; it means providing the additional advice that clients actually want from their lawyers. To provide those services, the ones that will sustain lawyers during the next generation, we need to know much more about what today’s clients want. We also need to educate students in ways that focus on interacting with clients, determining what those clients need, and providing those services. Too much of today’s legal education still focuses on our products.
The concept of bundled goods and services can guide our way in legal education. Take a hard look at our curriculum. Which classes focus on products (the legal content we deliver to clients)? Which ones help students master services (listening to clients, responding to their needs, providing assistance that reaches beyond the legal product)? “Legal reasoning” and “thinking like a lawyer” don’t count as services in this rubric: those are necessary skills, but they are ones that lawyers use to design their product.
In the new economy, clients won’t pay much for legal products–they can purchase those at ever-declining cost. Instead, how do we educate students to provide the bundled service? Do we in legal education even know what those bundled services are?
Innovation and Production
The MIT report also stresses the feedback loops between innovation and production. Those forces have always depended on one another: R&D departments communicated with their production departments to refine concepts and perfect them for the market. “That’s because,” the MIT research group observes, “much learning takes place as companies move their ideas beyond prototypes and demonstration and through the stages of commercialization. Learning takes place as engineers and technicians on the factory floor come back with their problems to the design engineers and struggle with them to find better resolutions; learning takes place as users come back with problems.”
Over the last two decades, however, companies have separated these two functions. They have closed R&D departments, relying upon universities to provide innovation. At the same time, they have outsourced production to workers in other countries, placing research and production on separate continents. This trend toward separation, the MIT researchers contend, is one cause of America’s troubled economy. Companies in countries like Germany and China are moving ahead of us–in innovation as well as production–because they maintain close links between those functions.
Again, there is a lesson here for lawyers and legal educators. We have also increasingly separated innovation and production. I know some scholars who regularly test their ideas with practicing lawyers and clients, but I know many more who rely exclusively on academic workshops and conferences. Practicing lawyers contribute their share to this gap: many are too busy, or too focused on the short term, to spend time reflecting on new ideas.
Closing this gap could provide new energy for legal scholarship, as well as new products and services for lawyers to sell. Connecting research and practice doesn’t mean that all research will become client-specific, applied work. Other industries support plenty of basic scientific research because they know that basic research powers innovation. In law, we need to build the same infrastructure that other U.S. industries once had, and that MIT urges them to rebuild: collaborations that allow innovators and producers to learn from one another.
Symposium on the University Presidency
August 25th, 2013 / By Deborah J. Merritt
I haven’t had much time to post during the last two months, because my university asked me to take a leadership role on our presidential search committee. Our search, however, is connected to an upcoming event that may interest some of you: this Symposium on the University Presidency.
Ohio State’s Board of Trustees had the innovative idea of framing the university’s search by convening a panel of current and former presidents to discuss the presidential role in a modern university. If you’ll be in Columbus, Ohio, this Friday afternoon, you’re welcome to stop by. If you’ll be anywhere else in the world, you can follow the proceedings by live webcast; web information will appear soon on the page linked above.
The symposium includes Teresa Sullivan, the President of the University of Virginia who clashed famously with her university’s Board of Visitors. Scott Cowen, the Tulane University President who helped his campus survive Hurricane Katrina, will also speak–along with three other articulate and knowledgeable presidents.
The Protectionism Premium
August 18th, 2013 / By Deborah J. Merritt
Brian Sheppard of Seton Hall Law School has raised an interesting point about any financial premium associated with the JD: How much of that premium rests on the legal profession’s restrictions to entry? At the end of his post, Sheppard suggests that an “empirical study of the effects of various protectionist measures would be a worthwhile” endeavor.
I know about one such analysis, conducted by Mario Pagliero. Pagliero, an economics professor at the University of Turin, explored the relationship between bar exam difficulty and entry-level salaries for U.S. lawyers. Pagliero’s study relies on the circumstance that most of our states administer a common set of bar questions (the Multistate Bar Exam or MBE), while establishing very different passing scores. States have also changed their passing scores over the last few decades, offering a robust dataset of passing scores that vary by state and time.
Pagliero compares these passing scores with entry-level salaries reported by NALP for corresponding states and times. In this way, he explores whether exam difficulty (as measured by passing score) bears any relationship to entry-level salary.
In an initial paper, Pagliero reports a clear relationship between the two: more difficult bar exams correlate with higher entry-level salaries. He also finds that lower pass-rates correspond with higher salaries, suggesting that the first correlation relates to supply rather than quality. More difficult bar exams, in other words, reduce the supply of lawyers. Reduced supply, in turn, raises entry-level salaries. By Pagliero’s calculation, a 1% increase in bar exam difficulty corresponds with a 1.7% increase in starting salaries.
In a second paper, Pagliero uses the same data to examine a frequently debated policy question: Do licensing standards help consumers by reducing information asymmetries (in other words, by providing information about quality that consumers cannot readily obtain on their own)? Or do the standards primarily serve the profession, by restricting entry and raising salaries? Based on the data and his modeling, Pagliero concludes that, for the U.S. legal profession, “licensing, as implemented, increases salaries and decreases the availability of lawyers, thus significantly reducing consumer welfare.” (p. 481)
This isn’t terribly surprising. The legal profession enjoys significant barriers to entry: applicants must master (and pay for) four years of college, three years of law school, and the bar exam. Increasingly, they must also devote time to low-paid or volunteer apprenticeships. These substantial barriers reduce competition, allowing lawyers to charge a premium for their services.
How can this premium persist in the face of under- and unemployed lawyers? It is difficult for many of those lawyers to compete against established firms. Ethics rules prohibit lawyers from using outside investments to build a practice; lawyers may take loans, but may not share profits with nonlawyers. New lawyers also lack access to adequate supervision unless they obtain jobs with existing firms. Law graduates who fail to obtain jobs at prevailing wages may seek work in other fields rather than attempting to undercut fees.
If at least some lawyer income stems from protectionism, that raises at least two important questions. First, is protectionism good policy? Pagliero’s model suggests that US courts protect lawyers, rather than the public, by limiting access to the profession. Based on these results, other authors have called for deregulation of the profession. As individuals struggle to obtain affordable legal services, and courts flounder in a growing sea of pro se litigants, calls to deregulate the profession will continue.
Second, even without formal deregulation, the work reserved exclusively for licensed lawyers is shrinking. Companies like Legalzoom and RocketLawyer, which provide low-cost legal documents to individuals and small businesses, are flourishing. Software like WillMaker is even cheaper. My husband and I produced a full set of wills, powers of attorney, and living wills for less than $25.
These services cannibalize the work available to lawyers serving individuals and small businesses. Corporate firms, meanwhile, are losing business to in-house compliance officers, HR officials, and others who administer complex regulations for their companies. Within BigLaw, US-licensed lawyers have lost jobs to software and overseas attorneys.
The biggest threat to lawyers’ historic livelihood comes, not from technology or globalization alone, but from the way in which those forces encroach upon work that once belonged exclusively to lawyers. Lawyers, like other workers, are seeing some of their jobs lost to computers or overseas workers. For us, however, the loss may be greater than for those in unregulated fields. To the extent our incomes depended partly on a protectionism premium, we may lose a significant part of that premium as consumers find ways to address legal needs without direct representation by lawyers.
10-9 for Nine to Ten
August 10th, 2013 / By Deborah J. Merritt
By a narrow vote of 10-9, the ABA’s Legal Education Council has approved a proposal to move back the reporting date for new-graduate employment–from nine months after graduation to ten months after earning a degree. Kyle and I have each written about this proposal, and we each submitted comments opposing the change. The decision, I think, tells prospective students and the public two things.
First, the date change loudly signals that the entry-level job market remains very difficult for recent graduates, and that law schools anticipate those challenges continuing for the foreseeable future. This was the rationale for the proposal, that large firms are hiring “far fewer entry level graduates,” that “there is a distinct tendency of judges” to seek experienced clerks, and that other employers are reluctant to hire graduates until they have been admitted to the bar.
The schools saw these forces as ones that were unfairly, and perhaps unevenly, affecting their employment rates; they wanted to make clear that their educational programs were as sound as ever. From a prospective student’s viewpoint, however, the source of job-market changes doesn’t matter. An expensive degree that leads to heavy debt, ten months of unemployment, and the need to purchase still more tutoring for the bar, is not an attractive degree. Students know that the long-term pay-off, in job satisfaction or compensation, may be high for some graduates. But this is an uncertain time in both the general economy and the regulation of law practice; early-career prospects matter to prospective students with choices.
Second, and more disappointing to me, the Council’s vote suggests a concern with the comparative status of law schools, rather than with the very real changes occurring in the profession. The ABA’s Task Force on the Future of Legal Education has just issued a working paper that calls upon law faculty to “reduce the role given to status as a measure of personal and institutional success.” That’s a hard goal to reach without leadership from the top.
Given widespread acknowledgement that the proposal to shift the reporting date stemmed from changes in the US News methodology, we aren’t getting that leadership. Nor are we getting leadership on giving students the information they need, when they need it. This is another black eye for legal education.
Assuring Transparency
August 3rd, 2013 / By Deborah J. Merritt
Law School Transparency (LST) made news last week when several blogs reported that the organization had designed a certification program for law schools. For an annual fee, LST is offering to vet a school’s website and marketing materials for consistency with ABA standards and other best practices; create user-friendly graphics that would inform potential applicants; and certify the school’s transparency to those applicants. The proposal evoked charges that LST was operating a Mafia-like protection scheme, and even violating the Hobbs Act.
Really? Let’s revisit the history behind LST’s proposal.
ABA Requirements
In August 2012, the ABA’s Section of Legal Education and Admissions to the Bar adopted new standards governing law school disclosure of employment outcomes and scholarship retention rates. The Section explained these requirements in a memo distributed to all schools, and directed schools to comply with the mandates by October 5, 2012. Schools already possessed the information required by the new standard; they needed only to publish the data. To make that task as easy as possible, the ABA gave schools two simple templates for displaying data.
In late December of 2012 and early January of 2013, LST’s executive director (Kyle McEntee) and research director (Derek Tokaz) checked compliance with these requirements and issued a report. Despite the ABA’s clear mandate–and the ease of complying with those requirements–LST found that only one-third of accredited law schools had complied. Three months after the mandate took effect, 65.3% of schools had failed to publish at least one of the required tables. One in five schools (20.6%) had not published either chart.
The required charts were not mindless boilerplate. The ABA designed them to offer prospective students (1) key information about the percentage of students retaining conditional scholarships, and (2) basic employment outcomes for recent graduates. The information was essential to balance claims schools were making about scholarships and employment outcomes. Despite widespread recognition of the need for increased transparency, two-thirds of law schools failed to meet the ABA’s minimum standards.
After gathering this disheartening information, McEntee sent customized information to the dean, career services office, and admissions office of each accredited school. Those memos indicated whether the school had posted the ABA-required charts, whether other potentially misleading information appeared on the school’s site, and whether the school “went above and beyond the minimum regulatory standards” by publishing additional accurate, useful data for prospective students. After receiving this information, individuals from 102 different law schools communicated with McEntee, requesting more information about their school’s compliance or counseling on how to improve transparency. [You can find all of these details in the LST report cited above.]
After LST’s feedback, the percentage of schools complying with the ABA requirement doubled. Ninety percent (90.5%) of schools published at least one of the charts required by the ABA, while two-thirds (65.3%) provided both. Numerous schools improved other aspects of their communications with potential students, adopting some or all of the best practices suggested by LST.
In sum:
1. Despite frequent protestations of their improved transparency in communicating with potential applicants, two-thirds of accredited law schools had not complied with the ABA’s minimal disclosure requirements by early January of 2013.
2. Intervention by LST substantially improved compliance.
3. Even after that intervention, one-third of schools still failed to provide basic, required consumer information to law students.
How Do We Secure More Compliance?
As a legal educator, I find that lack of compliance astounding. How could so many law schools fail to comply with the ABA’s minimum transparency standards? These issues aren’t new. The press began spotlighting disclosure gaps in spring 2011, more than a year before the ABA issued its simple requirements. Law deans had vowed adherence to a new era of transparency, suggesting quick compliance with the new standards.
Some schools matched deeds to these words, but a majority did not. The foot dragging hurts the reputation of all law schools, but it hurts compliant schools more than the careless ones. We can’t regain the public’s trust, or recruit students to our programs, if we don’t adhere to our own accreditation standards governing transparency. Rules and lip service aren’t enough; we need compliance.
Who is going to take responsibility for achieving compliance? Do we as faculty have to police law school websites, sending polite notes to deans, admissions directors, and career services directors about omissions? If our own schools are in compliance, will we hound colleagues and deans at other schools about their failures? As scholars, we care about data integrity; as legal educators, we care about the reputation of our community. But how much time are we going to spend vetting the communications of 200 law schools?
LST proposed a solution: It would check transparency on law school websites, assuring consistency with ABA requirements as well as best practices in presenting data. Schools that followed those practices would receive a certification signaling their compliance with LST standards, which would be clearly identified to schools and the public. LST would charge for its time doing this work. That’s not a surprise: Most of us charge for our time when we work. The only surprise was that LST performed this work for free over the last few years.
This solution also addressed a request that LST had received from several deans. After receiving a high rating on LST’s transparency index, some deans asked if LST would give them a letter attesting to their transparency. Others blogged, tweeted, or posted about their success (see footnote 23 of this review). Schools clearly wanted to demonstrate their commitment to transparency, a desire that LST could fulfill–as long as someone was willing to pay for their time.
LST’s certification program is designed to fill the above needs. The price, $1,925 for the first year, would cover modest salaries for the individuals doing this work. For a price comparison, consider that the ABA is paying $75,000 for an advisory firm simply to design a protocol for reviewing the integrity of data generated by law schools (a somewhat different need than the one LST proposes addressing). That $75,000 fee won’t cover any actual reviews; it will support only design of a protocol. LST has already created its protocol–for free. With $75,000, it could apply the protocol to assure that thirty-nine different law schools are providing accurate, transparent data to prospective students.
What Now?
Will LST’s certification program go forward? Fortified by a few negative blog posts, law deans may decide to forego certification and the best practices it requires. If they do, I hope that faculty at their schools will be willing to pick up the slack. Slipshod practices in reporting data are embarrassing to all of us. For years, I shook my head at the way schools reported salary information without noting response rates. We wouldn’t tolerate those practices in scholarly papers; they’re even less appropriate when urging potential students to attend our schools.
I hope some deans will embrace LST’s certification process. It’s a good way to move forward, demonstrate a real commitment to transparency, and give prospective students the information they need.
Personal Disclosure
LST doesn’t have investors; it’s a nonprofit without shares to sell. It does, however, have some donors and I am one. I gave the organization $500 in 2012 and $5,000 earlier this year; the latter is a bit less than the amount I have been giving each year to the law school where I teach (with that money going to summer fellowships for students). In addition to my financial gifts, I have served as an unpaid adviser to LST.
What do I get for my donations and free advice to LST? No football tickets, mugs, stickers, or expectations of profit. All I “get” is the satisfaction that potential law students will receive the information they need to make good decisions about their careers–and that law schools themselves, encouraged by LST, will volunteer that information more freely.
LST never solicited me for my donations. I was impressed with their work and offered the support I could afford. I am paid well for the work I do, and I think LST deserves to be paid for their work. They have done much to create needed transparency at law schools and to serve prospective law students. I wish other law professors would support LST, even at much lower levels than I have provided. With more donations, LST would not need to charge for the transparency work that it does.
I was sufficiently impressed with Kyle McEntee that I invited him to moderate this blog with me. I don’t agree with everything he writes (and he doesn’t agree with everything I write), but I thought it was important to include a recent graduate’s perspective in a blog about legal education. There are blogs written by professors, and blogs written by recent graduates, but I believe we are one of the few sites trying to combine those perspectives.
And, yes, this blog is “as purely non-profit as the driven snow.” It’s not just non-profit; it’s non-income. No advertising, no trinkets for sale, just ideas to discuss.
Small Samples
August 1st, 2013 / By Deborah J. Merritt
I haven’t been surprised by the extensive discussion of the recent paper by Michael Simkovic and Frank McIntyre. The paper deserves attention from many readers. I have been surprised, however, by the number of scholars who endorse the paper–and even scorn skeptics–while acknowledging that they don’t understand the methods underlying Simkovic and McIntyre’s results. An empirical paper is only as good as its method; it’s essential for scholars to engage with that method.
I’ll discuss one methodological issue here: the small sample sizes underlying some of Simkovic and McIntyre’s results. Those sample sizes undercut the strength of some claims that Simkovic and McIntyre make in the current draft of the paper.
What Is the Sample in Simkovic & McIntyre?
Simkovic and McIntyre draw their data from the Survey of Income and Program Participation, a very large survey of U.S. households. The authors, however, don’t use all of the data in the survey; they focus on (a) college graduates whose highest degree is the BA, and (b) JD graduates. SIPP provides a large sample of the former group: Each of the four panels yielded information on 6,238 to 9,359 college graduates, for a total of 31,556 BAs in the sample. (I obtained these numbers, as well as the ones for JD graduates, from Frank McIntyre. He and Mike Simkovic have been very gracious in answering my questions.)
The sample of JD graduates, however, is much smaller. Those totals range from 282 to 409 for the four panels, yielding a total of 1,342 law school graduates. That’s still a substantial sample size, but Simkovic and McIntyre need to examine subsets of the sample to support their analyses. To chart changes in the financial premium generated by a law degree, for example, they need to examine reported incomes for each of the sixteen years in the sample. Those small groupings generate the uncertainty I discuss here.
Confidence Intervals
Statisticians deal with small sample sizes by generating confidence intervals. The confidence interval, sometimes referred to as a “margin of error,” does two things. First, it reminds us that numbers plucked from samples are just estimates; they are not precise reflections of the underlying population. If we collect income data from 1,342 law school graduates, as SIPP did, we can then calculate the means, medians, and other statistics about those incomes. The median income for the 1,342 JDs in the Simkovic & McIntyre study, for example, was $82,400 in 2012 dollars. That doesn’t mean that the median income for all JDs was exactly $82,400; the sample offers an estimate.
Second, the confidence interval gives us a range in which the true number (the one for the underlying population) is likely to fall. The confidence interval for JD income, for example, might be plus-or-minus $5,000. If that were the confidence interval for the median given above, then we could be relatively sure that the true median lay somewhere between $77,400 and $87,400. ($5,000 is a ballpark estimate of the confidence interval, used here for illustrative purposes; it is not the precise interval.)
Small samples generate large confidence intervals, while larger samples produce smaller ones. That makes intuitive sense: the larger our sample, the more precisely it will reflect patterns in the underlying population. We have to exercise particular caution when interpreting small samples, because they are more likely to offer a distorted view of the population we’re trying to understand. Confidence intervals make sure we exercise that caution.
Our brains, unfortunately, are not wired for confidence intervals. When someone reports the estimate from a sample, we tend to focus on that particular reported number–while ignoring the confidence interval. Considering the confidence interval, however, is essential. If a political poll reports that Dewey is leading Truman, 51% to 49%, with a 3% margin of error, then the race is too close to call. Based on this poll, actual support for Dewey could be as low as 48% (3 points lower than the reported value) or as high as 54% (3 points higher than the reported value). Dewey might win decisively, the result might be a squeaker, or Truman might win.
Is the Earnings Premium Cyclical?
Now let’s look at Figure 5 in the Simkovic and McIntyre paper. This figure shows the earnings premium for a JD compared to a BA over a range of 16 years. The shape of the solid line is somewhat cyclical, leading to the Simkovic/McIntyre suggestion that “[t]he law degree earnings premium is cyclical,” together with their observation that recent changes in income levels are due to “ordinary cyclicality.” (pp. 49, 32)
But what lies behind that somewhat cyclical solid line in Figure 5? The line ties together sixteen points, each of which represents the estimated premium for a single year. Each point draws upon the incomes of a few hundred graduates, a relatively small group. Those small sample sizes produce relatively large confidence intervals around each estimate. Simkovic & McIntyre show those confidence intervals with dotted lines above and below the solid line. The estimated premium for 1996, for example, is about .54, but the confidence interval stretches from about .42 to about .66. We can be quite confident that JD graduates, on average, enjoyed a financial premium over BAs in 1996, but we’re much less certain about the size of the premium. The coefficient for this premium could be as low as .42 or as high as .66.
So what? As long as the premiums were positive, how much do we care about their size? Remember that Simkovic and McIntyre suggest that the earnings premium is cyclical. They rely on that cyclicality, in turn, to suggest that any recent downturns in earnings are part of an ordinary cycle.
The results reported in Figure 5, however, cannot confirm cyclicality. The specific estimates look cyclical, but the confidence intervals urge caution. Figure 5 shows those intervals as lines that parallel the estimated values, but the confidence intervals belong to each point–not to the line as a whole. The real premium for each year most likely falls somewhere within the confidence interval for each year, but we can’t say where.
Simkovic and McIntyre could supplement their analysis by testing the relationship among these estimates; it’s possible that, statistically, they could reject the hypothesis that the earnings premium was stable. They might even be able to establish cyclicality with more certainty. We can’t reach those conclusions from Figure 5 and the currently reported analyses, however; the confidence intervals are too wide for certain interpretation. All of the internet discussion of the cyclicality of the earnings premium has been premature.
Recent Graduates
Similar problems affect Simkovic and McIntyre’s statements about recent graduates. In Figure 6, they depict the earnings premium for law school graduates aged 25-29 in four different time periods. The gray bars show the estimated premium for each time period, with the vertical lines indicating the confidence interval. Notice how long those confidence intervals are: The interval for 1996-1999 stretches from about 0.04 through about 0.54. The other periods show similarly extended intervals.
Those large confidence intervals reflect very small sample sizes. The 1996 panel offered income information on just sixteen JD graduates aged 25-29; the 2001 panel included twenty-five of those graduates; the 2004 panel, seventeen; and the 2008 panel twenty-six graduates. With such small samples, we have very little confidence (in both the every day and statistical senses) that the premium estimates are correct.
It seems likely that the premium was positive throughout this period–although the very small sample sizes and possible bimodality of incomes could undermine even that conclusion. We can’t, however, say much more than that. If we take confidence intervals into account, the premium might have declined steadily throughout this period, from about 0.54 in the earliest period to 0.33 in the most recent one. Or it might have risen, from a very modest 0.05 in the first period to a robust 0.80 more recently. Again, we just don’t know.
It would be useful for Simkovic and McIntyre to acknowledge the small number of recent law school graduates in their sample; that would help ground readers in the data. When writing a paper like this, especially for an interdisciplinary audience, it’s difficult to anticipate what kind of information the audience may need. I’m surprised that so many legal scholars enthusiastically endorsed these results without noting the large confidence intervals.
Onward
There has been much talk during the last two weeks about Kardashians, charlatans, and even the Mafia. I’m not sure any legal academic leads quite that exciting a life; I know I don’t. As a professor who has taught Law and Social Science, I think the critics of the Simkovic/McIntyre paper raised many good questions. Empirical analyses need testing, and it is especially important to examine the assumptions that lie behind a quantitative study.
The questions weren’t all good. Nor, I’m afraid, were all of the questions I’ve heard about other papers over the years. That’s the nature of academic debate and refining hypotheses: sometimes we have to ask questions just to figure out what we don’t know.
Endorsements of the paper, similarly, spanned a spectrum. Some were thoughtful, others seemed reflexive. I was disappointed at how few of the paper’s supporters engaged fully in the paper’s method, asking questions like the ones I have raised about sample size and confidence intervals.
I hope to write a bit more on the Simkovic and McIntyre paper; there are more questions to raise about their conclusions. I may also try to offer some summaries of other research that has been done on the career paths of law school graduates and lawyers. We don’t have nearly enough research in the field, but there are some other studies worth knowing.
Financial Returns to Legal Education
July 21st, 2013 / By Deborah J. Merritt
I was busy with several projects this week, so didn’t have a chance to comment on the new paper by Michael Simkovic and Frank McIntyre. With the luxury of weekend time, I have some praise, some caveats, and some criticism for the paper.
First, in the praise category, this is a useful contribution to both the literature and the policy debates surrounding the value of a law degree. Simkovic and McIntyre are not the first to analyze the financial rewards of law school–or to examine other aspects of the market for law-related services–but their paper adds to this growing body of work.
Second, Simkovic and McIntyre have done all of us a great service by drawing attention to the Survey of Income and Program Participation. This is a rich dataset that can inform many explorations, including other studies related to legal education. The survey, for example, includes questions about grants, loans, and other assistance used to finance higher education. (See pp. 307-08 of this outline.) I hope to find time to work with this dataset, and I hope others will as well.
Now I move to some caveats and criticisms.
Sixteen Years Is Not the Long Term
Simkovic and McIntyre frequently refer to their results as representing “long-term” outcomes or “historic norms.” A central claim of the study, for example, is that the earnings premium from a law degree “is stable over the long term, with short term cyclical fluctuations.” (See slide 26 of the powerpoint overview.) These representations, however, rest on a “term” of just sixteen years, from 1996-2011. Sixteen years is less than half the span of a typical law graduate’s career; it is too short a period to embody long-term trends.
This is a different caveat from the one that Simkovic and McIntyre express, that we can’t know whether contemporary changes in the legal market will disrupt the trends they’ve identified. We can’t, in other words, know that the period from 2012-2027 will look like the one from 1996-2011. Equally important, however, the study doesn’t tell us anything about the years before 1996. Did the period from 1980-1995 look like the one from 1996-2011? What about the period from 1964-1979? Or 1948-1963?
The SIPP data can’t tell us about those periods. The survey began during the 1980s, but the instrument changed substantially in 1996. Nor do other surveys, to my knowledge, give us the type of information we need to perform those historical analyses. Simkovic and McIntyre didn’t overlook relevant data, but they claim too much from the data they do have.
Note that SIPP does contain data about law graduates of all ages. This is one of the strengths of the database, and of the Simkovic/McIntyre analysis. This study shows us the earnings of law graduates who have been practicing for decades, not just those of recent graduates. That analysis, however, occurs entirely within the sixteen-year window of 1996-2011. Putting aside other flaws or caveats for now, Simkovic and McIntyre are able to describe the earnings premium for law graduates of all ages during that sixteen-year window. They can say, as they do, that the premium has fluctuated within a particular band over that period. That statement, however, is very different than saying that the premium has been stable over the “long term” or that this period sets “historic norms.” To measure the long term, we’d want to know about a longer period of time.
This matters, because saying something has been “stable over the long term” sounds very reassuring. Sixteen years, however, is less than half the span of a typical law graduate’s career. It’s less, even, than the time that many graduates will devote to repaying their law school loans. The widely touted Pay As You Earn program extends payments over twenty years, while other plans structure payments over twenty-five years. Simkovic and McIntyre’s references to the “long term” suggest a stability that their sixteen years of data can’t support.
What would a graph of truly long-term trends show? We can’t know for sure without better data. The data might show the same pattern that Simkovic and McIntyre found for recent years. On the other hand, historic data might reveal periods when the economic premium from a law degree was small or declining. A study of long-term trends might also identify times when the JD premium was rising or higher than the one identified by Simkovic and McIntyre. A lot has changed in higher education, legal education, and the legal profession over the last 25, 50, or 100 years. That past may or may not inform the future, but it’s important to recognize that Simkovic and McIntyre tell us only about the recent past–a period that most recognize as particularly prosperous for lawyers–not about the long term.
Structural Shifts
Simkovic and McIntyre discount predictions that the legal market is undergoing a structural shift that will change lawyer earnings, the JD earnings premium, or other aspects of the labor market. Their skepticism does not stem from examination of particular workplace trends; instead it rests largely on the data they compiled. This is where Simkovic and McIntyre’s claim of stability “over the long term” becomes most dangerous.
On pp. 36-37, for example, Simkovic and McIntyre list a number of technological changes that have affected law practice, from “introduction of the typewriter” to “computerized and modular legal research through Lexis and Westlaw; word processing; electronic citation software; electronic document storage and filing systems; automated document comparison; electronic document search; email; photocopying; desktop publishing; standardized legal forms; will-making and tax-preparing software.” They then conclude (on p. 37) that “[t]hrough it all, the law degree has continued to offer a large earnings premium.”
That’s clearly hyperbole: We have no idea, based on the Simkovic and McIntyre analysis, how most of these technological changes affected the value of a law degree. Today’s JD, based on a three-year curriculum, didn’t exist when the typewriter pioneered. Lexis, WestLaw, and word processing have been around since the 1970s; photocopying dates further back than that. A study of earnings between 1996 and 2011 can’t tell us much about how those innovations affected the earnings of law graduates.
It is true (again, assuming for now no other flaws in the analysis) that legal education delivered an earnings premium during the period 1996-2011, which occurred after all of these technologies had entered the workforce. Neither typewriters nor word processors destroyed the earnings that law graduates, on average, enjoyed during those sixteen years. That is different, however, from saying that these technologies had no structural effect on lawyers’ earnings.
The Tale of the Typewriter
The lowly typewriter, in fact, may have contributed to a major structural shift in the legal market: the creation of three-year law schools and formal schooling requirements for bar admission. Simkovic and McIntyre (at fn 84) quote a 1901 statement that sounds like a melodramatic indictment of the typewriter’s impact on law practice. Francis Miles Finch, the Dean of Cornell Law School and President of the New York State Bar Association, told the bar association in 1901 that “current conditions are widely and radically different from those existing fifty years ago . . . the student in the law office copies nothing and sees nothing. The stenographer and the typewriter have monopolized what was his work . . . and he sits outside of the business tide.”
Finch, however, was not wringing his hands over new technology or the imminent demise of the legal profession; he was pointing out that law office apprentices no longer had the opportunity to absorb legal principles by copying the pleadings, briefs, letters, and other work of practicing lawyers. Finch used this change in office practices to support his argument for new licensing requirements: He proposed that every lawyer should finish four years of high school, as well as three years of law school or four years of apprenticeship, before qualifying to take the bar. These were novel requirements at the turn of the last century, although a movement was building in that direction. After Finch’s speech, the NY bar association unanimously endorsed his proposal.
Did the typewriter single-handedly lead to the creation of three-year law schools and academic prerequisites for the bar examination? Of course not. But the changing conditions of apprentice work, which grew partly from changes in technology, contributed to that shift. This structural shift, in turn, almost certainly affected the earnings of aspiring lawyers.
Some would-be lawyers, especially those of limited economic means, may not have been able to delay paid employment long enough to satisfy the requirements. Those aspirants wouldn’t have become lawyers, losing whatever financial advantage the profession might have conferred. Those who complied with the new requirements, meanwhile, lost several years of earning potential. If they attended law school, they also transferred some of their future earnings to the school by paying tuition. In these ways, the requirements reduced earnings for potential lawyers.
On the other hand, by raising barriers to entry, the requirements may have increased earnings for those already in the profession–as well as for those who succeeded in joining. Finch explicitly noted in his speech that “the profession is becoming overcrowded” and it would be a “benefit” if the educational requirements reduced the number of lawyers. (P. 102.)
The structural change, in other words, probably created winners and losers. It may also have widened the gap between those two groups. It is difficult, more than a century later, to trace the full financial effects of the educational requirements that our profession adopted during the first third of the twentieth century. I would not, however, be as quick as Simkovic and McIntyre to dismiss structural changes or their complex economic impacts.
Summary
I’ve outlined here both my praise for Simkovic and McIntyre’s article and my first two criticisms. The article adds to a much needed literature on the economics of legal education and the legal profession; it also highlights a particularly rich dataset for other scholars to explore. On the other hand, the article claims too much by referring to long-term trends and historic norms; this article examines labor market returns for law school graduates during a relatively short (and perhaps distinctive) recent period of sixteen years. The article also dismisses too quickly the impact of structural shifts. That is not really Simkovic and McIntyre’s focus, as they concede. Their data, however, do not provide the type of long-term record that would refute the possibility of structural shifts.
My next post related to this article will pick up where I left off, with winners and losers. My policy concerns with legal education and the legal profession focus primarily on the distribution of earnings, rather than on the profession’s potential to remain profitable overall. Why did law school tuition climb aggressively from 1996 through 2011, if the earnings premium was stable during that period? Why, in other words, do law schools reap a greater share of the premium today than they did in earlier decades?
Which students, meanwhile, don’t attend law school at all, forgoing any share in law school’s possible premium? For those who do attend, how is that premium distributed? Are those patterns shifting? I’ll explore these questions of winners and losers, including what we can learn about the issues from Simkovic and McIntyre, in a future post.
.
New Salary Data: Arkansas Law Schools
July 15th, 2013 / By Deborah J. Merritt
I wrote last week about a group of states that are using a “linked-records” method to collect detailed salary information for graduates of higher education. The method has some flaws, but it is improving rapidly. The databases, meanwhile, already contain information about graduates of fifteen law schools spread over five states. Let’s take a look, starting alphabetically with Arkansas.
Arkansas has two ABA-accredited law schools: the University of Arkansas at Fayetteville and the University of Arkansas at Little Rock. Both schools place a substantial majority of their graduates with employers in Arkansas, making them excellent candidates for the linked-records system. For the class of 2012, according to ABA data, 81 of Fayetteville’s 119 employed graduates (68.1%) took their first jobs in Arkansas. For the Little Rock campus, the figure was 85.3% (93 out of 109 employed graduates).
Average Salaries in Law
What salaries did those graduates earn? The College Measures database doesn’t have figures yet for 2012 graduates–or even for 2011 ones in Arkansas. But it does report the average first-year earnings of graduates from the classes of 2006 through 2010 who stayed in-state to work. For the Fayetteville campus, the average was $45,745, and for the Little Rock campus it was $47,060.
Those averages come with all of the caveats I mentioned in my earlier post: They exclude graduates working out of state, graduates holding federal jobs, and self-employed graduates. Perhaps most important, those averages include the legal market’s boom years of 2006 through 2009, along with just one down year. When the database incorporates salaries for the classes of 2011 through 2013, the averages may be lower.
Comparisons with Other Programs
Even including those boom years, however, the salaries of Arkansas law graduates suffer in comparison to starting salaries in other advanced degree programs. The Little Rock campus collected sufficient salary data from three different PhD programs: higher education administration, educational leadership, and physical sciences. The average starting salary in each of those programs was higher than in law, ranging from $52,726 in physical sciences to $72,134 in educational leadership.
To be fair, doctoral candidates in educational leadership or higher education administration often have significant workplace experience; they’re less likely than law students to move directly from college to graduate school. The salaries for these PhD’s, therefore, may partly reflect their workplace experience–not just the value of the degree. Still, eight of Little Rock’s undergraduate programs produced higher starting salaries than its law school did, topping out at $65,978 for registered nurses.
The story is similar at the Fayetteville main campus. There, five of seven doctoral programs produced higher starting salaries than law–and a sixth came within $500 of of law. I was surprised to see that the starting salaries of Arkansas law graduates compare unfavorably with those of graduates holding doctorates in adult and continuing education (average starting salary of $58,013), educational leadership ($85,245), and public policy analysis ($68,425). Even a master’s degree in political science produced an average starting salary ($44,202), within shouting distance of a law salary.
Equally depressing comparisons come from the University of Arkansas’s medical sciences campus. Dental hygienists with just an associate’s degree averaged higher starting salaries ($49,644) than law graduates from either Arkansas campus. A master’s in public health garnered, on average, $56,074. And doctors of pharmacy out-earned almost everyone with an average starting salary of $104,977.
Some of these careers, of course, may reach salary plateaus; it’s possible that Arkansas’s law graduates will earn more as their experience mounts. Even at the entry level, an Arkansas law degree continues to produce higher earnings than most undergraduate degrees. College graduates from the Fayetteville campus averaged just $33,956 during their first year in the workforce.
NALP Data
How do the linked-records salaries compare to ones reported to NALP? I couldn’t find salary information on either Arkansas law school’s website, but NALP’s Jobs and JDs book, available in hard cover, offers some interesting data. In 2007, law graduates working full-time in Arkansas reported an average salary of $49,966. That’s higher than the rolling averages compiled through the linked-records method, but not too far off. (Note that the NALP figures refer to all law graduates working in Arkansas, while the linked-records data include all Arkansas law graduates working in Arkansas. The salary pools, however, should be comparable.)
For 2011, on the other hand, NALP’s reported salaries seem quite high for Arkansas jobs. The reported mean is $52,806–more than six thousand dollars higher than the linked-records average for the boom years. It’s possible that the highest paying legal jobs in Arkansas are going to graduates of out-of-state schools. But it’s also quite likely, as NALP and law schools acknowledge, that the NALP-reported salaries skew high. That’s a good reason to support continued development of other methods for tracking salaries.
Below Minimum Wage
The last piece of information from the Arkansas linked-records database is particularly interesting. When calculating average salaries, Arkansas excluded any graduates who earned less than $13,195 per year, which is the state’s minimum wage threshold. Most employees earning less than that threshold are part-time or temporary workers. Including those salaries in a calculation of average full-time earnings would unfairly depress the average, so the researchers excluded these “below minimum wage” workers from the calculations.
Arkansas, however, does report the number of these “below minimum wage” workers for each degree program. Those numbers are depressingly high for the two law schools. Fifty-two of Little Rock’s graduates, 8.4% of all students who graduated between 2006 and 2010, earned less than $13,195 for the year that started six months after their graduation date. The percentage was the same for the Fayetteville campus: fifty-five graduates, or 8.4% of those who graduated between 2006 and 2010, earned less than minimum wage once they entered the workforce. That’s one in every twelve law graduates.
A few of these graduates may have worked in Arkansas for a few months and then moved to another state; that would produce a small amount of earnings in the Arkansas database. Others may have worked part-time for employers to supplement a solo practice or freelance work. The one in twelve figure, on the other hand, doesn’t include graduates who subsisted entirely on freelance wages or who found no paying work at all; those graduates don’t appear at all in the linked-records database.
Observations
What do we make of these data? The linked-records databases, like other sources of employment information, are incomplete. It is particularly difficult to distinguish unemployed graduates from those who have moved to other states–or to determine salary levels for the latter group of graduates. If researchers ultimately link databases across states, those connections would greatly improve the available information.
This brief examination of Arkansas data, meanwhile, illustrates the kind of comparisons facilitated by linked-records databases. Starting salaries for law graduates exceed those for most (although not all) college majors, but they lag behind salaries for many other advanced-degree holders. As we continue to debate reforms in legal education, we have to remember the options available to prospective students. Starting salaries are an important element in that calculus, one that students will be able to track more easily with databases like the ones available through College Measures.
More on the ABA Questionnaire
July 9th, 2013 / By Deborah J. Merritt
Legal educators on several blogs have been discussing the ABA’s decision to eliminate expenditure data from the annual questionnaire completed by law schools. I called Scott Norberg, Deputy Consultant to the ABA’s Section of Legal Education and Admissions to the Bar, to find out more about the change.
Professor Norberg noted that the expenditure elimination is part of a larger project to slim down the annual questionnaire. Most of the changes went into effect last year, but the Section’s Council waited a year to implement elimination of the expenditure section. No objections arose to the proposed change, so the Council adopted it for this fall’s questionnaire.
Although the annual questionnaire will no longer ask explicitly about expenditures, it does request information about a law school’s reserve funds and debt (p. 7). These questions will allow the ABA to identify schools that may be in financial trouble, without needing more detailed expenditure data every year.
That’s a relief from a consumer protection perspective. But do we have to worry now that US News will incorporate financial reserves or debt level into its ranking scheme? I’m not sure I even want to think about that one.
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