You are currently browsing archives for the Jobs category.
Why Has Law Practice Changed?
December 8th, 2013 / By Deborah J. Merritt
When legal educators talk about changes in the legal market, we focus on the Great Recession, the slow recovery, globalization, technology, and the routinization of some legal services. These trends undoubtedly are shaping contemporary law practice, but they’re not the root cause of our graduates’ ills. The force that rules law practice today is competition: To comprehend the profession’s economic trajectory, we have to understand the tremendous rise in market competition for legal services.
The Post-WWII Years
During the third quarter of the twentieth century, the legal profession benefited from a remarkable number of trade restraints:
1. Bar associations maintained minimum fee schedules, which bolstered the price of routine legal work.
2. Professional regulations forbid advertising, which restrained competition among lawyers and prevented consumers from identifying cost-effective service providers.
3. Courts strictly enforced rules prohibiting the unauthorized practice of law, which helped lawyers maintain their monopoly over a wide range of services.
4. Professional regulations greatly restricted practice across state lines, requiring clients to hire new attorneys or local counsel for many matters.
In addition to maintaining these protections, the legal profession welcomed relatively few new lawyers each year. College enrollments were lower then than now; few women or minority men considered attending law school, and they encountered formidable obstacles if they did; and many law students left school before completing the degree. In 1963, just 9,638 students graduated from accredited law schools.
The Tide Turns
During the final quarter of the twentieth century, the legal profession’s protections began to fall. The Supreme Court struck down minimum fee schedules in 1975, making clear that antitrust prohibitions encompass the legal profession. Two years later, the Court initiated a series of decisions striking down restrictions on attorney advertising.
At the same time, state supreme courts and legislatures opened doors for non-lawyers to perform tasks that lawyers had once claimed for themselves. Accountants and title agents replaced lawyers in some roles. A new class of paralegals emerged to assist–and then replace–junior lawyers on some of their work. Companies began generating do-it-yourself forms for individuals with simple legal needs.
Barriers to interstate practice also diminished. States began to repeal residence requirements, and the Supreme Court declared those rules unconstitutional in 1985. As law firms expanded across state lines, and as corporate clients demanded more fluid legal counsel, states eased restrictions on interstate legal assistance.
As the profession’s economic protections diminished, its numbers swelled. Accredited law schools graduated 27,756 JD students in 1973, almost three times the number that had earned degrees ten years earlier. By 1983, the number hit 36,389, almost four times the number who graduated in 1963. During the last eight years of the century, each class exceeded 39,000 graduates–and two topped 40,000.
First Impact
These momentous changes in the legal profession first affected solo practitioners and others who served individuals and small businesses. Those lawyers were the ones who handled many of the matters taken over by non-lawyers; they also benefited most from minimum fee schedules. Between 1975 and 1995, the median, inflation-adjusted income of Chicago solo practitioners fell by almost 50%. For lawyers at the smallest Chicago firms, median income fell by 25%. Both of those figures come from the groundbreaking study conducted by John P. Heinz and his colleagues, Urban Lawyers (p. 163). That study, published in 2005, remains one of the best analyses we have of the legal profession.
Notably, Heinz and his team found that the median income of government lawyers fell during the same period. In 1995, median income for those lawyers was $45,000. Twenty years earlier, it had been $70,828 (in 1995 dollars). Government pay doesn’t depend directly on minimum fee schedules, advertising restrictions, and similar market restraints, but it probably does respond to compensation in the private sector. As solo and small-firm attorneys earned less, government was able to offer lower salaries to attract those lawyers.
The New Century
Since 2000, technology has greatly intensified the changes that began during the last quarter of the twentieth century. Advertising in phone books and on billboards promoted the fortunes of some lawyers, but internet advertising is much cheaper and it reaches more potential clients. The internet has also fed aggressive price competition: consumers can now compare prices for many legal services before they contact their first lawyer.
Computers have made do-it-yourself legal forms more sophisticated, user-friendly, and accessible. One online company, LegalZoom, has generated legal documents for more than 2 million clients since 2000. An online law firm, LegalForce RAPC Worldwide, declares that it “protects more intellectual property as patents or trademarks per year than any other law firm on the planet” and that it secures this protection “for a fraction of the cost” charged by conventional firms.
These technological tools have moved well up the ranks of law practice. Major law firms and corporations use computers to conduct discovery, draft legal documents, comply with government regulations, and perform other professional tasks. Technology has also enabled these organizations to tap lower-wage workers abroad; countries with rising economies have improved their education and infrastructure to meet that demand.
Technology and globalization then prompted innovative lawyers to restructure other parts of their practice. These lawyers reduced prices and secured new clients by unbundling legal tasks and routinizing some of their services. Having successfully shifted routine work to computer programs and offshore workers, these lawyers moved other tasks to staff attorneys and contract lawyers.
The recession and slow recovery exacerbated all of these trends. Even the wealthiest clients wanted price cuts, and they were vocal about their needs. Technology allowed them to track their legal bills more closely than before, to solicit bids from competing firms, and to press for lower prices. Globalization permitted them to look abroad for both high-level legal counsel and routine support work. Well versed in the benefits of efficient production and commoditization, corporations hired law firms that endorsed those approaches.
By now, we’re all familiar with this part of the story. We tend to forget, however, that these changes are occurring in a legal market that is vastly more competitive than it was in earlier years. Today’s market reflects the pro-competitive changes implemented during the late twentieth century. Those changes, moreover, continue to unfold. Courts and bar associations are still discarding rules that restrain competition; non-lawyers are taking on still more law-related tasks; and the largest JD class in history graduated in 2013. Even if graduating classes now contract, we have already flooded an increasingly competitive market with new lawyers.
The Market’s Triumph
Competitive market forces are the most important characteristic of today’s legal market. Technology, globalization, and commoditization are key trends, but their impact depends on the economic context. If the legal profession still enjoyed the protections it held during the 1970s, today’s technology and globalization might have produced more jobs and higher salaries for lawyers. In today’s competitive market, on the other hand, these trends are pushing inexorably on the bottom line. Clients are tracking prices and seeking competitive bids; law firms are employing efficient technologies and low-cost workers to meet client demands; and non-lawyers are continuing to take over legal work.
These competitive forces are highly favorable for clients. The law practice I knew in the 1980s was remarkably inefficient. Highly paid associates proofread briefs, reviewed documents, and continuously reinvented the wheel. Clients of all types paid more for legal services than they should have; they had no other options. A competitive market has given clients more choices, reduced prices, and (despite the protestations of some lawyers) caused no apparent loss in quality. Indeed, competition may have spurred some lawyers to provide higher quality services.
This competition would have forced 21st-century lawyers to make their practices more efficient, even if technology and globalization had remained stable. Rapid advances in the latter forces, however, compounded the impact of a newly competitive market. These changes offered significant efficiencies that the competitive market insisted we adopt. Rather than enduring a simple shift from protectionism to market competition, which would have been dramatic in itself, the legal profession had to adapt to open competition and new efficiencies at the same time.
This combination explains why law graduates will continue to face a daunting job market–and may not earn as much during their lifetimes as recent generations of lawyers did. The legal market is not rotating through a cycle; it is tumbling out of protectionism. Even when the economy booms again, corporate clients will not pay first-year associates to do work that overseas lawyers can handle. Nor will mom-and-pop clients pay for customized wills and leases, when standardized documents serve their purposes. The efficiencies and cost economies that we have achieved in law practice are here to stay.
The new market, of course, will create opportunities for some lawyers. Technology-savvy JDs will profit by developing attractive software programs marketed to others. Lawyers with strong management skills will earn extra pay by coordinating interdisciplinary teams spread across the globe. Some law firms will prosper by identifying new practice areas and assembling the right combination of lawyers, other professionals, support staff, and technology to efficiently address those needs. As always, the market will reward lawyers with unusual legal knowledge, skills, or client connections.
For most lawyers, however, competition will reduce the financial rewards that recent generations captured. That’s what deregulation does. As we project the economic future of the legal profession, we have to remember our loss of market protections over the last forty years. Those changes have accumulated over time, and many of them acquired greater force with the emergence of new technologies and globalization.
The public, including the large corporations that pay our heftiest bills, is unlikely to restore the protections that favored 20th-century lawyers. Instead, our graduates will practice in a world of accelerating competition. Recent graduates are competing with more peers than ever before. Lawyers of all ages are vying with lawyers in distant cities, states, and countries. Lawyers everywhere face competition from computers and non-lawyers. Competition is the new hallmark–and driving force–of the U.S. legal profession.
Assumptions About JD Advantage Jobs
December 5th, 2013 / By Deborah J. Merritt
In a recent post, Professor Paula Young writes that she “hate[s] to make too many assumptions about graduates holding JD Advantage jobs.”
I wholeheartedly agree.
Ironically, we don’t need to make assumptions about these jobs: Law schools already have considerable data about them. Schools, however, are not disclosing the information they possess. Neither is NALP, which aggregates data nationally. I have written about this information gap before, encouraging schools and NALP to disclose more of the data they collect.
Here is a brief summary of what we know and don’t know, as well as what we publish and don’t publish, about JD Advantage jobs. We could eliminate much of the debate and mystery surrounding these jobs–simply by disclosing the data we already have about them.
What Are JD Advantage Jobs?
Career Services Offices do not simply gather information about whether a graduate is employed and, if so, whether the job is “JD Advantage,” “Bar Admission Required,” or some other category. In most cases, the office obtains the specific job title. Law schools, in other words, know whether their JD Advantage grads are compliance officers, investment bankers, accountants, land men, research assistants, paralegals, etc. They do not report those titles to NALP, but schools know them.
It would be quite easy for a law school to post a list of the JD Advantage jobs taken by their graduates each year, together with the number of graduates in each category. Compiling this information would take very little time at most schools. According to the ABA’s spreadsheet of 2012 job outcomes, half of all law schools had 25 or fewer graduates in JD Advantage jobs. Extracting those titles from existing spreadsheets and symplicity reports is straightforward: I hereby offer to do the work for any school that wants to send me their redacted data! This offer applies even to Thomas M. Cooley, the school with the highest number of JD Advantage jobs (161) among the Class of 2012.
Given the amount of ink that has been spilled over JD Advantage jobs, I don’t know why schools haven’t already published this information. There are some excellent JD Advantage jobs, and some schools have very positive stories to tell. Where the stories aren’t as positive, applicants deserve to have that information–and faculty members should be aware of the full spectrum of jobs taken by their graduates.
I hope it goes without saying that these disclosures should cover all JD Advantage jobs secured by a school’s graduates. Highlighting just a few jobs tempts cherry-picking.
Salaries
When it comes to salaries, we have less information about JD Advantage jobs than some of our publications suggest. Law schools request salary information from all employed graduates, and they report those figures to NALP. Graduates in JD Advantage positions, however, are substantially less likely to report their salaries than are graduates with jobs that require bar admission.
NALP does not publish all of the relevant salary information on the web, so I rely here on NALP’s hard copy book, Jobs & JDs, for the Class of 2011. In that class, 27,224 graduates reported jobs that required bar passage, while 5,214 reported positions for which the JD was an advantage. Among the first group, 15,999 disclosed their salaries; among the latter, just 1,771 did. NALP, in other words, knows the salaries for 58.8% of graduates who took jobs that required bar admission–but it knows those salaries for just 34.0% of the graduates who secured JD Advantage positions.
That’s a very large difference, almost 25 percentage points. NALP acknowledges that reported salaries are “biased upwards.” This is a problem for all salaries reported by NALP, but it creates special difficulties when comparing salaries across categories with different reporting rates.
NALP, for example, reports that the median salary for JD Advantage jobs among the Class of 2011 was $59,000. The median salary that year for jobs requiring bar passage was $61,500–which seems quite close. The comparison, however, does not take into account the much greater underreporting for JD Advantage jobs. Some individual law schools make the same mistake, comparing salary information for JD Advantage and Bar Admission Required jobs without noting the very different response rates in those categories.
When it comes to salaries for JD Advantage jobs, we need to do two things: (a) disclose clearly that we have less information about this category than about jobs that require bar admission; and (b) try to collect more information. If this employment category is important to our schools and graduates, we should devote more resources to understanding it.
Still Seeking Other Work
NALP’s employment questionnaire, used by almost all ABA-accredited law schools, asks a little-publicized question. The survey asks each employed graduate to check one of two boxes:
__ I continue to seek a job other than that described here.
__ I am not seeking a job other than that describe here.
NALP tabulates these responses by job category, but it does not publish the information anywhere on its website. Instead, the data are available only in NALP’s $95 annual report on jobs.
For the Class of 2011, here are the percentages of graduates in different job categories who were still seeking other work:
Bar Admission Required: 16.5% still seeking
JD Advantage: 46.8% still seeking
Other Professional: 52.1% still seeking
Non-Professional: 85.9% still seeking
These figures, of course, only approximate job satisfaction. Some ambitious graduates may always be seeking a better position, no matter how attractive their current job. Others may be dissatisfied with their work, but not actively seeking a new position. The relative percentages, however, are striking: law school graduates who hold JD Advantage, Other Professional, and Non-Professional jobs nine months after graduation are much more likely to be seeking other work than are graduates who hold jobs requiring bar admission.
As I wrote in a previous post, this pattern holds over time. Yes, some graduates are very satisfied with JD Advantage jobs. But for as long as NALP has collected the information, graduates in that category (or its predecessor, JD Preferred) have shown significantly higher rates of job seeking than their colleagues who obtained work requiring bar admission.
This information, as noted above, does not appear anywhere on NALP’s website–even though NALP has created an extensive page related to JD Advantage jobs, accompanied by a “detailed research analysis” of those jobs. Nor, to my knowledge, does any law school share this information about their graduates–although they all collect it. We could, if we wanted, publish the percentage of our employed graduates who are still seeking other work nine months after graduation. We could also break that percentage down by job category, revealing how many of our graduates in JD Advantage, Other Professional, and Non-Professional positions are seeking other jobs.
The information we collect about job seeking is at least as reliable as much of the other employment data we collect and publish. I have asked NALP, both through posts on this blog and direct emails, to add the job-seeking data to their site. They have not, unfortunately, done so. This type of omission contributes to ongoing distrust of law schools: We and our national placement organization are still disclosing data selectively. Applicants need to trust us to inform them, not merely to market to them.
Conclusion
We already know quite a bit about JD Advantage jobs. If every law school published the information at its disposal, applicants would understand the kind of JD Advantage jobs taken by that school’s graduates. Faculty members would also gain insights into those jobs. With disclosures from individual schools, scholars could aggregate data to build a more complete national picture of JD Advantage positions. We don’t need to make assumptions about these jobs; we have data about them. Let’s commit to disclosing and analyzing that information.
Applicants and Aspirations
December 2nd, 2013 / By Deborah J. Merritt
What will draw more students back to law school? Several writers have suggested that declining class sizes will attract more JD applicants. Smaller classes mean fewer graduates: If graduates decline, while jobs hold steady, then employment rates will improve. College graduates will take note and turn their attention back to law school.
Jacob Gershman, writing in the Wall Street Journal Law Blog, notes that if entering class sizes decline for just one more year, then the Class of 2017 may enjoy better employment rates than the Class of 2007 did. That sounds pretty promising, especially since Gershman limits his calculation to full-time jobs requiring bar passage. Will that degree of improvement attract more law school applicants?
It almost certainly will: An employment rate of 79.4% for the Class of 2017, using Gershman’s figures, is much more attractive than the 58.6% achieved by the Class of 2012. Several factors, however, counsel that applications will not rebound as far as employment rates. Here are three reasons why, all caveats that law schools should consider when planning strategically for the future.
Greater Transparency
Law schools published employment information in 2007, but not with the same transparency that the ABA and applicants require today. Many people are shocked to learn that, nine months after graduation, no more than 72% of the class of 2007 had obtained full-time jobs requiring bar admission. More than 10% of the class was unemployed, unaccounted for, or working in nonprofessional jobs like retail. Most of the remainder had secured “JD preferred” or “other professional” positions, but a substantial minority of that group was unhappy with their employment. 37.7% of the former group, and 39.6% of the latter, were seeking other jobs.
Those figures were available to applicants and professors who pressed for details in 2007, but we didn’t talk about the job market as frankly then as we do today. When projecting the behavior of future applicants, we have to remember that they operate in a world of more transparent employment figures. We have to ask: If applicants know that ten percent of them will be un- or under-employed with their JD, while another 18% will take jobs that do not require bar admission, how many will choose to attend law school?
Rising employment rates, in other words, will shed light on how much transparency matters. Did students flock to law school last decade because they were impressed with the actual employment rates of the period? Or did they misconstrue their odds in the employment market? I don’t know, and I don’t think anyone can know, but I think that improved transparency will depress applications at least somewhat. 2017 will not be 2007.
Different Jobs
Today’s transparency includes, not just employment figures, but detailed information about the kind of positions that law graduates obtain. Those positions have changed significantly since 2007, and potential applicants know about the shifts. Indeed, applicants may know more than the average law professor; we need to catch up with that knowledge if we’re going to plan effectively for the future.
In 2007, the largest law firms (those employing more than 500 lawyers) hired more than 4,745 new JD’s within nine months after graduation. For the Class of 2008, the number reached more than 5,193. I say “more than” for both of those years because several law schools, including BigLaw feeder Columbia, did not participate in NALP surveys at that time.
For the Class of 2012, these largest firms hired only 3,636 JD’s within nine months after graduation. That smaller number seems likely to persist. Corporate clients are handling more legal work in-house, while BigLaw firms are hiring outsourcers and contract attorneys for substantial portions of their routine work. Even some of those 3,636 BigLaw positions are no longer associate jobs; some are staff attorney positions. Market forces strongly suggest that these trends will continue.
Those trends, of course, create other job opportunities. In-house positions, document review work, and staff attorney jobs often require bar admission, so these are new “bar admission required” jobs. The jobs, however, are different from the ones available to the Class of 2007–and applicants will know that. Some applicants may find some of these jobs desirable, although the salaries are much lower. Others will not be interested in a “79% employment” rate that includes a significant number of part-time, short-term, or staff attorney positions. Once again, it’s hard to quantify the impact of these changes, but they almost certainly will reduce applications to some extent.
Constrained Choices
For at least a generation, the most attractive aspect of a JD may have been our promise of many employment options. Graduates could work for large firms or small ones; they could choose government or public interest work; they could apply their JD to politics, business, or other endeavors. Law school applicants tended to be high achievers with uncertain career goals; they were people who liked to maximize their options–and law school seemed like the greatest option maximizer of all.
For many graduates, these options proved elusive. Students at the top schools, or at the top of their class elsewhere, might have been able to choose from a full menu of careers. But most students at most schools faced more limited options. A student in the bottom half of the class never had the option of working as an associate at a BigLaw firm–unless the student attended one of the top law schools, had a strong personal connection, or possessed non-law experience that was both highly desirable and rare.
Regional firms were also picky; most students couldn’t simply “choose” to work at them. Government and public interest jobs were more available, but students often had to begin working in those positions early in law school; they couldn’t wait until graduation to discover an interest in prosecution or environmental policy work. I’ve taught at two top-50 law schools during the last 30 years; even during boom years, I knew students who struggled to find a single job–any job. They did not choose among a variety of positions.
The changing job market has narrowed choices further. At more than half of accredited law schools, associate positions in BigLaw are virtually unattainable. In 2012, 45 schools placed 0 graduates in the largest firms–not even in staff attorney positions. Another 67 schools placed 1-5 graduates in those firms, with an unknown number of those graduates taking staff-attorney or paralegal positions. (These figures derive from the ABA’s 2012 employment spreadsheet, which is available here. I do not include any of the Puerto Rico schools in my counts.).
Competition for jobs in all other categories is stiff. To secure those jobs, students often have to chart a careful course starting at the end of their first year. Working part-time for a future employer while gathering related experience in courses, externships, and clinics, often provides the best shot at a full-time job. Many students are happy with these jobs, but they do not choose from a wide menu of options.
Today’s law school applicants understand both these narrowed choices and how those choices are distributed among students at different law schools. This may be the greatest impact of transparency: Most law schools have lost their reputation as “choice maximizers.” A handful of top law schools can credibly offer their students a wide range of employment options. At most schools, however, the options are more constrained and students need to specialize early in their law school careers.
Swallowing the Pill
This truth, about narrowed options, may be the hardest pill for legal educators to swallow. Choice is deeply ingrained in our culture, and has been one of the most attractive selling points for law school. For many applicants, I suspect, the promise of choice mattered even more than high salaries. We all like the power to steer our own destiny.
As professors, our experience tends to perpetuate the notion that law school graduates choose among many career options. Most of us personally enjoyed a very wide range of entry-level job choices and career paths. We also see the overall employment patterns for our graduates, which suggest a large menu of jobs. The employment reports show so many different outcomes! It’s easy for us to believe that each of those graduates chose his or her job over all of the competing options.
Contacts with graduates who enjoy their work buttresses these beliefs. Former students rarely call to say, “I really wanted to do commercial litigation for a mid-sized firm, but the only work I could get was with a solo doing personal injury work”–although those calls and blog posts are becoming somewhat more common. Students are more likely to call when they are satisfied, or to describe their work as a chosen path. Unless we listen closely, we risk missing a key fact about today’s job market.
These trends–transparency, new jobs, and reduced options–mean that law schools cannot simply wait for applications to rise. We need to grapple with the forces that are reducing interest in legal education. What, specifically, should we do? I have a few ideas, which I’ll describe in my next post.
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.
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.
About Law School Cafe
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
Law School Cafe is a resource for anyone interested in changes in legal education and the legal profession.
Around the Cafe
Subscribe
Categories
Recent Comments
- on Scholarship Advice
- on ExamSoft: New Evidence from NCBE
- on COVID-19 and the Bar Exam
- on Women Law Students: Still Not Equal
- on Ranking Academic Impact
Recent Posts
- The Bot Takes a Bow
- Fundamental Legal Concepts and Principles
- Lay Down the Law
- The Bot Updates the Bar Exam
- GPT-4 Beats the Bar Exam
Monthly Archives
Participate
Have something you think our audience would like to hear about? Interested in writing one or more guest posts? Send an email to the cafe manager at merritt52@gmail.com. We are interested in publishing posts from practitioners, students, faculty, and industry professionals.