You are currently browsing archives for the Jobs category.
An Employment Puzzle
June 18th, 2013 / By Deborah J. Merritt
Pedagogically and professionally, it makes sense for law schools to teach practical skills along with theory and doctrine. New lawyers should know how to interview clients, file simple legal documents, and analyze real-world problems, just as new doctors should know how to interview patients, use a stethoscope, and offer a diagnosis. Hands-on work can also deepen knowledge received in the classroom. Law students who apply classroom theories to real or simulated clients develop stronger intellectual skills, as well as new practical ones.
Employers say they are eager to hire these better-trained, more rounded, more “practice ready” lawyers–and they should be. That’s why the employment results for Washington & Lee’s School of Law are so troubling. Washington & Lee pioneered an experiential third-year program that has won accolades from many observers. Bill Henderson called Washington & Lee’s program the “biggest legal education story of 2013.” The National Jurist named the school’s faculty as among the twenty-five most influential people in legal education. Surely graduates of this widely praised program are reaping success in the job market?
Sadly, the statistics say otherwise. Washington & Lee’s recent employment outcomes are worse than those of similarly ranked schools. The results are troubling for advocates of experiential learning. They should also force employers to reflect on their own behavior: Does the rhetoric of “practice ready” graduates align with the reality of legal hiring? Let’s look at what’s happening with Washington & Lee graduates.
Employment Outcomes
I used the law-job calculator developed by Educating Tomorrow’s Lawyers to compare Washington & Lee’s employment outcomes with those of other schools. Drawing upon ABA data that reports job outcomes nine months after graduation, the calculator allows users to choose their own formulas for measuring outcomes. I chose two formulas that I believe resonate with many observers:
(a) The number of full-time, long-term jobs requiring bar admission, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
(b) The number of full-time, long-term jobs requiring bar admission or for which the JD provided an advantage, minus (i) any of those jobs funded by the law school and (ii) any solo positions; all divided by the total number of graduates.
[Note: These are not the only formulas for measuring job outcomes; other formulas may be appropriate in other contexts. These formulas work here because they allow the most straightforward comparison of employment outcomes across schools. These formulas also make the best case for Washington & Lee’s outcomes, because that school did not report any long-term, full-time solos or school-funded jobs in 2011 or 2012.]
Using those two measures, Washington and Lee’s employment outcomes for 2011 were noticeably mediocre. By nine months after graduation, only 55.0% of the school’s graduates had obtained full-time, long-term jobs that required bar admission. That percentage placed Washington & Lee 76th among ABA-accredited schools for job outcomes. Using the second, broader metric, 64.3% of Washington & Lee’s class secured full-time, long-term positions. But that only nudged the school up a few spots compared to other schools–to 73rd place.
In 2012, the numbers were even worse. Only 49.2% of Washington & Lee’s 2012 graduates obtained full-time, long-term jobs that required a law license, ranking the school 119th compared to other accredited schools. Including JD Advantage jobs raised the percentage to 57.7%, but lowered Washington & Lee’s comparative rank to 127th.
These numbers are depressing by any measure; they are startling when we remember that Washington & Lee currently is tied for twenty-sixth place in the US News ranking. Other schools of similar rank fare much better on employment outcomes.
The University of Iowa, for example, holds the same US News rank as Washington & Lee and suffers from a similarly rural location. Yet Iowa placed 70.8% of its 2012 graduates in full-time, long-term jobs requiring bar admission–more than twenty percentage points better than Washington & Lee. The College of William & Mary ranks a bit below Washington & Lee in US News (at 33rd) and operates in the same state. After excluding solos and school-funded positions (as my formula requires), William & Mary placed 55.9% of its 2012 graduates in full-time, long-term jobs requiring bar admission–significantly better than Washington & Lee’s results.
What’s the Explanation?
Law school employment outcomes vary substantially. Geography, school size, and local competition all seem to play a role. But Washington & Lee’s outcomes are puzzling given both the prominence of its third-year program and the stridency of practitioner calls for more practical training. Just last week, California’s Task Force on Admissions Regulation Reform suggested: “If, in the future, new lawyers come into the profession more practice-ready than they are today, more jobs will be available and new lawyers will be better equipped to compete for those jobs.” (p. 14) If that’s true, why isn’t the formula working for Washington & Lee?
I think we need to explore at least four possibilities. First and most important, the connection between practical training and jobs is much smaller than practitioners and bar associations assert. Employers like practice-ready graduates because those new lawyers are cheaper to train; an employer thus might be more likely to hire a practice-ready graduate than a clueless one. Most of those hiring decisions, however, involve choosing among applicants, not creating new positions. A few employers might hire a practice-ready graduate when they wouldn’t have otherwise hired any lawyer, but those job-market gains are likely to be small.
Practice-readiness can even reduce the number of available jobs. If a practice-ready lawyer handles more work than a less-experienced one, her employer may need fewer entry-level lawyers. Even the best-trained new lawyer is unlikely to grow the client base immediately. The number of legal jobs depends much more on client demand and employer entrepreneurship than on the experience that new graduates possess. Maybe the employers recruiting at Washington & Lee have recognized that truth.
Second, even when allocating existing jobs, employers may care less about practical training than they claim. Law school clinicians have noted for years that legal employers rarely demand “clinical experience” as a prerequisite for on-campus interviews. Instead, their campus interviewing forms are more likely to list “top ten percent” or “law review.” Old habits die hard. Employers have maintained for the last few years that “this time we really mean it when we ask for practical skills,” but maybe they don’t.
Third, employers may care about experience, but want to see that experience in the area for which they’re hiring. This possibility is particularly troubling for law schools that are trying to expand clinical and other client-centered offerings. As a professor who teaches both a criminal defense clinic and a prosecution one, I can see the ways in which these experiences apply to other practice areas. A student who learns to discern the client’s individual needs, as our defense lawyers do, can transport that lesson to any practice area. A student who weighs competing interests in deciding whether to prosecute can apply similar skills for any employer.
Unfortunately, however, I don’t think employers always share my impression. Over the years, I’ve had the sense that students from the criminal defense clinic are stereotyped as public defenders, do-gooders, or (worse) anti-establishment radicals–even if they took the clinic for the client counseling, negotiation, and representation experience. Prosecution students don’t encounter the same negative images, but they sometimes have trouble persuading law firms and corporations that they’re serious about practicing corporate law.
No matter how many clinics and simulations a law school offers–and Washington & Lee provides a lot–each student can only schedule a few of these experiences. If a student chooses experiential work in entertainment law and intellectual property, does the student diminish her prospects of finding work in banking or family law? Does working in the Black Lung Legal Clinic create a black mark against a student applying to work later for corporate clients?
I wonder, in other words, if the menu of clinical choices we offer students actually operates against them. Would it be better to cycle all students through a series of required clinical experiences? That’s the way that medical school rotations work. Under that system, would employers better understand that all clinical experience has value for a new lawyer? Would they be less likely to lock graduates into particular career paths based on the clinical experiences they chose? These are questions we need to pursue as we expand experiential education in law schools.
A fourth possible explanation for Washington & Lee’s disappointing employment outcomes is that the students themselves may have developed higher or more specialized career ambitions than their peers at other schools. Some students may have been so excited by their clinical work that they were unwilling to accept jobs in other areas. Others, buoyed by employers’ enthusiasm for practice-ready graduates, may have held out for the most attractive positions on the market. If this explanation has power, then Washington & Lee’s graduates may fare better as more months pass. Maybe practice-ready graduates get better jobs, and perform better for their employers, but the matches take longer to make.
What Do We Learn?
What lessons should we take from Washington & Lee’s 2011 and 2012 employment outcomes? First, the school still deserves substantial credit for its willingness to innovate–as well as for the particular program it chose. If law school remains a three-year, graduate program, then experiential work should occupy a larger segment of the curriculum than it has at most schools in the past. That makes pedagogic sense and, even if experiential learning doesn’t expand the job market, it should produce more thoughtful, well rounded attorneys.
Second, legal employers should take a hard look at the factors they actually value in hiring. What role does clinical experience really play? Do grades and law review membership still count more? Are employers discounting clinical work done outside their practice area? Are they even holding that work against a candidate? Law schools are engaging in significant introspection about the education they provide; it is time for employers to critically examine their own actions and hiring assumptions.
Third, law schools and employers should work together to design the best type of experiential education–one that prepares graduates for immediate employment as well as long-term success. If employers value a 4-credit externship with their own organization more than 12 credits of clinical work in a different area, we need to grapple with that fact. Schools might decide not to accommodate that desire; we might worry that externships are too narrow (or too exploitative of students) and encourage employers to value other clinical training more highly. On the other hand, we might agree that the best experiential education relates directly to a student’s post-graduate job. Unless we work together, we won’t figure out either the hurdles or the solutions.
Washington & Lee’s employment outcomes are a puzzle that we all need to confront. Graduates from most law schools, even high-ranking ones, are struggling to find good jobs. Experiential education can work pedagogic magic and prepare better lawyers, but it’s not a silver bullet for employment woes or heavy debt. On those two issues, we need to push much harder for remedies.
Hippocrates and the Law
June 15th, 2013 / By Deborah J. Merritt
As readers of this blog know, I advocate many changes in legal education. Law schools, however, are not my only source of concern; practitioners and bar associations have also neglected their obligations to new lawyers and under-served clients. On that score, I’m pretty fed up with state bar reports that deplore a loss of “professionalism” and then burden aspiring lawyers with mandatory skills training, apprenticeships, and pro bono service. When are senior lawyers going to take responsibility for unmet legal needs and untrained junior lawyers?
I’ll leave unmet legal needs for another post; this one is about training. Car salesmen have no duty to train other salesmen. Restaurant owners have no obligation to tutor the next generation of restauranteurs. In businesses governed by the free market, newcomers must find (or purchase) education where they can. Professions, however, are different. Because we claim the right to govern ourselves, we assume a responsibility to educate our junior colleagues. That obligation is part of what distinguishes us as professionals.
Hippocrates, a father of professionalism as well as medicine, understood this. The Hippocratic Oath binds a doctor to “impart a knowledge of the art to my own sons, and those of my teachers, and to students bound by this contract and having sworn this Oath to the law of medicine . . . .” A more modern version, recited by many medical school graduates, states: “I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.”
This intergenerational commitment lies at the heart of professionalism. Unfortunately, however, I don’t hear that commitment from many lawyers today. Instead, I hear that “clients will no longer pay for training.” Clients ultimately pay for everything we do, including the huge sums we spend on legal education, but that’s not the point. The lawyers who blame miserly clients are really saying “I won’t realize as much profit if I spend time training new lawyers, so I’m not going to do it–unless, maybe, the lawyers have to work free for me.” That’s a repudiation of their professional duties.
Look, for example, at this week’s report from the California Bar’s Task Force on Admissions Regulation Reform. The report opens with noble language recognizing that the training of new lawyers “must involve a collaborative effort in which the law school community, practicing lawyers, and the Bar each have a role.” (p. 2) Similarly, the report acknowledges that educating new lawyers “must be a shared endeavor in which burdens are shared and responsibility is shared as well.” (id.)
What, however, will make the practicing bar shoulder these burdens–a task that professionalism already mandates? The report rather artfully squirms around this issue. It notes first that “clients no longer want to pay for that training and are refusing to do so.” (p. 5) “Changes in the economics of the profession,” therefore, “are making it more and more difficult for new lawyers to find the training, hands-on guidance and mentoring that is necessary for a successful transition into practice.” (id.) Senior lawyers, in other words, aren’t willing to compromise profits in order to offer the same levels of training that they received as newcomers to the profession.
Faced with this reality, the California task force doesn’t require senior lawyers to mentor their junior colleagues. Instead, it suggests that “the right incentives and support from the State Bar” might support development of voluntary mentoring programs. (p. 7) In particular, the task force recommends offering CLE credit to mentors as a “potentially valuable tool to incent their participation.” (id.)
If we have to “incent” lawyers to mentor junior colleagues, are we still a profession? Isn’t mentoring a responsibility that complements the “privilege of holding a law license”? (id.) The California task force, like similar committees in other states, is very eager for new lawyers to receive “orientation in the values of professionalism.” (id.) But how is that possible when senior lawyers are not voluntarily shouldering their own professional obligation to train their junior colleagues?
In addition to discussing these incentives, the California report focuses on the “administrative capacity” that the bar will need to oversee training, apprenticeship, and other programs imposed on new lawyers. (p. 15) The report says very little about how the bar will train the senior lawyers to do a more effective job training the new ones. One of the problems we have in our profession is that many senior lawyers don’t know how to mentor. When a new lawyer fails to do exactly what the senior lawyer wanted–but may have failed to convey–the senior lawyer often gets exasperated, decides it’s easier to do the task herself, and labels the junior lawyer “worthless.”
For this, I do blame law schools–not because we neglect to train students fully for practice, but because we fail to provide adequate models for professional training. The Socratic method may have some uses in the classroom, but it’s useless in practice. Yet that is the primary model we give our graduates:
Senior Lawyer: Ms. Newbie, file an answer to this complaint!
Newbie: Of course, Mr. Senior. Just tell me, how would I go about doing that?
Senior Lawyer: How do you think you should do it, Ms. Newbie? I’m not going to spoonfeed you.
Newbie: Oh, I see. This is just like law school. I’ll get right on it, sir. [Newbie goes on desperate search for an appropriate nutshell or tips from a slightly more experienced lawyer.]
If we’re going to preserve law as a profession, then we all have to act as professionals. Legal educators must recognize their obligation to train future members of a profession: we must give graduates foundational training in a full range of skills, as well as the ability to mentor themselves and others. Practicing lawyers, meanwhile, must meet their responsibilities to continue that training, even if clients won’t pay directly for the work. That intergenerational compact is essential to any profession. Without it, we’re simply businesses hiding behind anti-competitive restraints of trade.
Council Declines to Act
June 7th, 2013 / By Deborah J. Merritt
The ABA Section of Legal Education’s Council voted unanimously today to defer any action on the Data Committee’s proposal to push back the date on which the ABA measures JD employment outcomes. We expressed our disapproval of this proposal over the last two days. Now others will have a chance to express their views to the Council before its August meeting. Measuring employment outcomes is important for schools, students, prospective students, graduates, and scholars who study the legal market. Any change from the current date requires careful evaluation–and, given the value of comparing outcomes over time, should have to overcome a strong presumption against change.
Data on the Proposed Date Change
June 6th, 2013 / By Deborah J. Merritt
Kyle wrote yesterday about a proposal to push back the date on which law schools calculate their employment outcomes. Schools currently measure those outcomes on February 15 of each year, nine months after graduation. The proposal would nudge that date to March 15, ten months after graduation. The proposal comes from the Data Policy and Collection Committee of the ABA’s Section of Legal Education and Admissions to the Bar. The Section’s Council will consider the recommendation tomorrow.
Kyle explained how the committee’s report overlooks the needs of prospective law students, focusing instead on accommodating the interests of law schools. I agree with that critique and return to it below. First, however, I want to focus on some mistakes in the committee’s interpretation of the data provided to them by committee member Jerry Organ. Professor Organ was kind enough to share his spreadsheets with me, so I did not have to duplicate his work. He did an excellent job generating raw data for the committee but, as I explain here, the numbers cited by the committee do not support its recommendation. Indeed, they provide some evidence to the contrary.
The Committee’s Rationale and Data
The committee bases its recommendation on the facts that New York and California report bar results later than many other states, and that this hampers students seeking legal jobs in those markets. New York and California law schools, in turn, may have unduly depressed employment outcomes because their newly licensed graduates have less time to find jobs before February 15.
To substantiate this theory, the committee notes that “for graduates in the years 2011 and 2012, 18 of the bottom 37 schools in reported employment rates for the ‘Bar Passage Required, JD Advantage and Other Professional’ categories were located in New York and California.” This statistic is true for 2011, but not quite true for 2012: In 2012, the number is 15 out of 37 schools. But that’s a minor quibble. The bigger problem is that separating the results for California and New York creates a different picture.
California law schools are, in fact, disproportionately represented among the schools that perform worst on the employment metric cited by the committee. The committee examined 2011 employment statistics for 196 law schools and 2012 statistics for 198 schools. California accounted for twenty of the schools in 2011 (10.2%) and twenty-one of them in 2012 (10.6%). In contrast, the bottom 37 schools included 14 California schools in 2011 (37.8%) and 13 California schools in 2012 (35.1%). That’s a pretty large difference.
The New York law schools, on the other hand, are not disproportionately represented among the schools that performed worst on the committee’s reported metric. Fifteen of the examined schools (7.7% in 2011, 7.6% in 2012) are in New York state. The 37 schools that scored lowest on the employment metric, however, include only four New York schools in 2011 (10.8%) and two in 2012 (5.4%). One year is a little higher than we might predict based on the total number of NY schools; the other is a little lower.
Using the committee’s rudimentary analysis, in other words, the data show that one late-reporting state (California) is disproportionately represented among the bottom 37 schools, but another late-reporting state (New York) is not. That evidence actually cuts against the committee’s conclusion. If the timing of bar results accounts for the poor showing among California schools, then we should see a similar effect for New York schools. To compound this NY error, the committee mistakenly names Cardozo and Brooklyn as law schools that fall among the 37 lowest performing schools on the employment metric. Neither of those schools falls in that 37-school category in either year.
It’s possible that a different measure would show a disproportionate impact in New York. I haven’t had time to conduct other analyses; I simply repeated the one that the committee cites. Even if other analyses could show a discrepancy in New York, the committee’s reported data don’t line up with its conclusion. That’s a sloppy basis to support any action by the Section’s Council.
Better Analyses
If the committee (or Council) wants to explore the relationship between bar-result timing and employment outcomes, there are better ways to analyze the data provided by Professor Organ. This issue calls out for regression analysis: that technique could examine more closely the relationship between bar-result timing and employment outcomes, while controlling for factors like each school’s median LSAT, a measure of each school’s reputation, and the state’s bar passage rate. Regression is a routine tool used by many legal educators; it would be easy for the committee to supplement the dataset and conduct the analysis. That would be the best way to discern any relationship between the timing of bar results and employment outcomes.
But I have good news for the committee: There’s no need to improve the data analysis, because we already know enough to reject the proposed timing change.
What Really Matters?
Although the committee’s analysis is weak, I personally have no doubt that the timing of bar admission has some quantifiable relationship with employment outcomes. As the months roll on, more graduates find full-time, long-term professional employment (the outcome examined by the committee). In addition to the simple passage of time, we can all postulate that bar passage helps applicants secure jobs that require bar admission! The question isn’t whether there is some relationship between the timing of bar admission and employment outcomes. Even if that’s true, the questions for a policy-making committee are:
(a) How big is that effect compared to other effects?
(b) How much would a shift from February 15 to March 15 alter that effect?
(c) What negative impacts would that shift have?
(d) Do the costs outweigh the benefits?
Let’s take a look at each question.
How Big Is the Timing Effect?
We could answer this first question pretty precisely by doing the regression analysis outlined above. Without doing the additional data collection or math, I predict the following outcomes: First, median LSAT or law school reputation will show the greatest correlation with employment outcomes. In other words, each of those variables will correlate significantly with employment outcomes after controlling for other variables, and each of them will account for more variance in employment outcomes than any other variable in the equation. Second, bar passage rates will also have a significant impact on employment outcomes (again while controlling for other factors). Third, other factors (like measures of the strength of the entry-level legal market in each state) will also play a role in predicting employment outcomes. After controlling for factors like these, I predict that the timing of bar admission would show a statistically significant relationship with employment outcomes–but that it would be far from the weightiest factor.
I mentioned an important factor in that last paragraph, one that the committee report does not mention: bar passage rates. States have very different bar passage rates, ranging from 68.23% in Louisiana to 93.08% in South Dakota. (Both of those links will take you to Robert Anderson’s excellent analysis of bar exam difficulty. For purposes of this discussion, look at the far right-hand column, which gives actual pass rates.) When talking about employment outcomes, I suspect that differences in bar passage rates are far more important than differences in the timing of bar results. Waiting for bar results can slow down job offers, but flunking the bar hurts a lot more. People who fail the bar, in fact, may lose jobs they had already lined up.
California has the second lowest pass rate in the nation, second only to Louisiana (a state that is distinctive in many ways). Even graduates of ABA-accredited schools in California have a relatively low pass rate (76.9% for first-timers in July 2012) compared to exam-takers in other states. I suspect that much of the “California effect” detected by the ABA committee stems from the state’s high bar failure rate rather than its late reporting of bar results. Bar passage rates alone won’t fully explain differences in employment outcomes; I would perform a full regression analysis if I wanted to explore the factors related to those outcomes. But consider the relative impact of late results and poor results: Graduates who find out in November that they passed the bar may be a few weeks behind graduates in other states when seeking jobs. But graduates who find out in November that they failed the July bar have a whole different problem. Those graduates won’t be working on February 15, because they’ll be studying for the February bar.
California schools and graduates may face a bar timing problem, but they face a much larger bar passage problem. If we’re concerned with leveling the playing field for law schools, that’s a pretty rough terrain to tackle. As I suggest further below, moreover, the Data Committee shouldn’t worry about leveling the field for inter-school competition; after all, the ABA and its Section of Legal Education explicitly repudiate rankings. The committee should focus on the important task of gathering thoughtful data that informs accreditation and protects the public (including potential law students).
How Much Would the Date Shift Help?
Even if California (and maybe NY) schools have a problem related to the timing of bar results, how much would the proposed remedy help? Not very much. As Kyle pointed out yesterday, the date shift will give every school’s graduates an extra month to obtain full-time, long-term employment. Employment rates will go up for all schools, but will any difference between NY/California schools and other schools diminish? The committee actually could address that question with existing data, because there are several states that release bar results considerably earlier than other states. Do schools in those “early release” states have an employment advantage over other schools during October and November? If so, when does the advantage dissipate? A more refined regression analysis could suggest how much difference the proposed change would actually make.
I am relatively confident, meanwhile, that shifting the employment measurement date to March 15 would not address the bar-passage discrepancy I discuss above. The February bar exam occurs during the last week of the month. If low employment rates for California schools stem partly from a disproportionate number of graduates taking the February exam, a March 15 employment date doesn’t help much. Two weeks, give or take a day or two, isn’t much time to recover from the exam, apply for jobs, persuade an employer that you probably passed the exam you just took, and start work.
Negatives
What about downsides to the committee’s proposal? Kyle ably articulated four substantial ones yesterday. First, prospective students will receive employment information a month later, and this is a month that matters. Many law schools require seat deposits by May 1, and admitted students are actively weighing offers throughout April. Providing employment data in late April, rather than by March 31 (the current standard), leaves students waiting too long for important information. We should be striving to give prospective students information earlier in the spring, not later.
In fact, the committee’s report contains a helpful suggestion on this score: It indicates that law schools could submit March 15 employment data by April 7. If that’s true, then schools should be able to submit February 15 data by March 7–allowing the ABA to publish employment information a full week earlier than it currently does. Again, that’s a key week for students considering law school acceptances.
Second, the nine-month measurement day is already three months later than the day that would make most sense to prospective students and graduates. The grace period for repayment of direct unsubsidized loans ends six months after graduation; deferral of repayment for PLUS loans ends at the same time. For prospective students, a very important question is: What are the chances that I’ll have a full-time job when I have to start repaying my loans? We don’t currently answer that question for students. Instead, we tell them how many graduates of each law school have full-time jobs (and other types of jobs) three months after they’ve had to start repaying loans. If we’re going to change the reporting date for employment outcomes, we should move to six months–not ten. Schools could complement the six-month information with nine-month, ten-month, one-year, two-year, or any other measures. Employment rates at six months, however, would be most meaningful to prospective law students.
Third, changing the measurement day impedes comparisons over time. Partly for that reason, I haven’t advocated for a change to the six-month measure–although if change is on the table, I will definitely advocate for the six-month frame. The employment rates collected by the ABA allow comparison over time, as well as among schools. If schools begin reporting 10-month employment rates for the class of 2013, that class’s employment rate almost certainly will be higher than the class of 2012’s nine-month rate. But will the increase be due to improvements in the job market or to the shift in measurement date? If we want to comprehend changes in the job market, and that understanding is as important for schools as it is for students and graduates, there’s a strong reason to keep the measurement constant.
Finally, changing to a ten-month measurement date will make law schools–and their accrediting body–look bad. The committee’s report shows a great concern for “the particular hardship on law schools located in late bar results states,” the “current penalty on law schools who suffer from late bar results,” and the need for “a more level playing field” among those schools. There’s scant mention of the graduates who actually take these exams, wait for the results, search for jobs, remain unemployed nine months after graduation, and begin repaying loans before that date.
Prospective students, current students, graduates, and other law school critics will notice that focus–they really will. Why do law schools suddenly need to report employment outcomes after 10 months rather than nine? Is it because the information will be more timely for prospective students? Or because the information will be more accurate? No, it’s because some schools are suffering a hardship.
The Data Committee and Council need to pay more attention to the needs of students. From the student perspective, the “hardship” or “penalty” that some schools suffer is actually one that their graduates endure. If it takes longer to get a full-time lawyering job in NY or California than in North Carolina or New Mexico, that’s a distinction that matters to the graduates, not just the schools. It’s the graduates that will be carrying very large loans, with ever accumulating interest, for that extra month or two.
Similarly, if the real “penalty” stems from bar passage rates, that’s a difference that matters a lot to prospective students. It’s harder to pass the bar exam in California than in forty-eight other states and the District of Columbia. If you can’t pass the bar on your first try, your chances of working as a lawyer nine months after graduation fall significantly. Those are facts that affect graduates in the first instance, not law schools. They’re facts that prospective students need to know, not ones that we should in any way smooth over by creating a “level playing field” in which all graduates eventually obtain jobs.
Striking the Balance
The committee’s case for the proposed change is weak: the cited data don’t support the recommendation, the method of analyzing the data is simplistic, and the report doesn’t discuss costs of the proposal. Worse, law students and graduates will read the report’s reasoning as focused on the reputation of law schools, rather than as concerned about providing helpful, timely information to the people who we hope will work in our legal system. The committee could improve its analyses and reasoning, but the better move would be to reject the proposal and focus on more important matters.
The Bleak House of Loan Repayment
May 26th, 2013 / By Deborah J. Merritt
Kyle wrote last week about the billions of dollars that the federal government invests in legal education. On the same day his post appeared, the Court of Appeals for the Ninth Circuit issued an opinion that illustrates the long shadow cast by these loans. Here’s what happened to one law school graduate, Michael Hedlund.
Michael grew up in Klamath Falls, Oregon, a small town in the scenic Northwest. He earned a BS in business administration from the University of Oregon, but had trouble finding a job when he graduated into the 1992 recession. Michael decided to obtain a law degree, hoping he might join the practice his father and brother had established in Klamath Falls. He enrolled in Willamette University’s College of Law and graduated in 1997, ranked in the middle of his class. Michael took a bar review course, sat for the July 1997 exam, and obtained work as a legal intern in the Klamath County District Attorney’s office. The DA promised him a full-time position once he obtained his law license.
Unfortunately, Michael failed his first two attempts to pass the bar. On his third try, he suffered the type of mishap usually reserved for television scripts: Mike stopped for coffee on his way to the July 1998 bar exam, locked his keys inside the car, and was unable to get to the exam on time. The DA’s office hired a different attorney, and Michael decided to end his legal career.
Despite these setbacks, Michael Hedlund obtained a good “JD Advantage” job. He became a counselor for the Klamath County Juvenile Department. In that position, Michael “reviews police records, meets with accused juveniles and their parents, recommends whether or not they need to be on probation, appears in court, at least in preliminary matters in juvenile cases, and supervises juveniles to ensure compliance with any probation order (p. 11).” Michael started working full-time for the Department in 1998 and still works there today.
Michael married in 2000 and became a father in 2001. According to his facebook page, his third child was born in 2009. Michael’s facebook profile shows him proudly posing with one of his daughters. The young family lives in the town where Michael grew up; grandparents and other relatives live nearby.
The only dark clouds in this sunny small-town sky were Michael Hedlund’s law school loans.
The Loans
When Michael Hedlund started law school in 1994, Willamette’s annual cost of attendance was $24,500. By his third year, the cost was $27,170. (Those figures appear on the original loan agreements.) Michael financed most of this cost through federally guaranteed loans.
Interest started to accumulate on some of the loans during law school; more interest accrued when Michael obtained deferrals while trying to pass the bar. Even after landing his full-time counseling job, Michael had trouble making payments. By 2003, Michael owed $85,246 to one loan servicing company (the Pennsylvania Higher Education Assistance Authority or “PHEAA”) and $18,755 to a second servicer (The Educational Resources Institute or “TERI”). When both servicers garnished his wages simultaneously, leaving Michael’s family unable to pay for necessities, he petitioned for bankruptcy.
TERI quickly settled with Michael, agreeing to accept $50 per month to pay down the loan. PHEAA offered to amortize its loan over thirty years, requiring Michael to make monthly payments of $417.67. It also offered to reduce payments to $307.43 per month during the early years, with higher payments later in the repayment course. Michael refused both of these options, maintaining that he couldn’t afford either one.
Why couldn’t Michael Hedlund make monthly payments of just a few hundred dollars a month? Even with his full-time, JD advantage job, he was earning just $19.17 per hour at the time of the 2003 bankruptcy hearing. After taxes and other deductions, Michael netted $2,317 per month. His wife worked a few hours a week but, with no college degree and a baby at home, she didn’t contribute much. $28,000 per year of net income for a family of three isn’t much. In fact, if Michael qualified for the Department of Education’s new “Pay As You Earn” program, he would pay no more than $90 per month on both the PHEAA and TERI loans. Unfortunately for Michael, that program didn’t exist in 2003, when PHEAA was demanding repayment.
Court Decisions
Since Michael and PHEAA couldn’t work out a repayment plan, the bankruptcy court conducted a trial in December 2003. The court made an oral ruling a few days later, finding that Michael could not afford to pay more than $225 per month to PHEAA. After examining the loan balance, remaining life of the loan (15 years), and interest rate (4.22%), the judge discharged the portion of Michael’s debt over $30,000.
PHEAA appealed, and a bankruptcy appellate panel reversed. Michael, in turn, appealed to the Ninth Circuit. The case languished in the court of appeals for almost six years. The court devoted some of that time to finding a pro bono attorney for Hedlund (who had appealed pro se) and to encouraging mediation between the parties, but other years just passed. In 2010, the court finally ruled that the bankruptcy judge had not made sufficient findings; it vacated the lower court decisions and sent the case back to the original judge. 2010 WL 737641 (CA9 2010).
The parties elected to proceed with the original 2003 record on remand. Judge Radcliffe, who rendered the original decision, died before he could issue a new ruling. The substitute judge, Judge Brandt, delivered his decision in summer 2011. Brandt’s ruling was virtually identical to the one delivered by Judge Radcliffe eight years earlier: He concluded that Michael could afford to pay $240 per month to PHEAA for fifteen years. He accordingly discharged all but $32,080 of Michael’s debt to PHEAA.
PHEAA appealed to the district court, which reversed the bankruptcy judge and reinstated Michael’s full debt. Michael appealed once again to the Ninth Circuit, which ruled for him last week. Barring a successful appeal to the Supreme Court, Michael Hedlund’s debt to PHEAA has been reduced. Where does that leave him? And what does the outcome tell us about educational loans, repayment plans, and the financial status of law school graduates?
Michael Hedlund Today
Michael Hedlund won partial discharge of his debt to PHEAA, but his financial status remains modest. If his salary from the Klamath County Juvenile Department kept pace with inflation–a dubious assumption for many state and local government jobs–he’s earning about $50,390 today. He’ll pay $240 per month to PHEAA, plus $50 per month to TERI, for a total of $3,480 per year. That’s almost 7% of his gross income devoted to repayment of law school loans, even after a partial discharge.
And, although Michael’s county job appeared secure ten years ago, Klamath County now faces a serious budget crisis. The county recently cut the Juvenile Department’s budget by 10.8%, and the department is transitioning to a “new, revenue-generating rehabilitation program.” Either of those changes might affect Michael’s job or salary.
Is Michael an Outlier?
It’s tempting to view Michael Hedlund as an unusual law graduate, one of the few who failed the bar and was unable to secure high-paying employment. Michael, however, is far from alone in his struggles.
Graduates of low-ranking law schools frequently fail the bar. ABA statistics, available in hard copy, show that Willamette’s bar passage rate for first-time takers was just 65% for the July 1997 Oregon bar, when Michael Hedlund first took the exam. Michael was one of 34 Willamette graduates to fail the Oregon bar on their first try that summer. The school’s most recent statistics show that 27.4% of its first-time takers fail the Oregon bar. According to data collected by US News, bar passage rates are even lower for at least 22 other law schools. Going to law school doesn’t guarantee a law license, as numerous graduates discover each year.
Nor is Michael Hedlund’s salary unusually low. Even if his wife cares full-time for their children, generating no outside income, Michael’s estimated salary almost exactly matches our country’s median household income of $50,502 in 2011. An occupational expert testified at Michael’s trial that “he was well-placed for his skills, that his wages and benefits were excellent for the Klamath Falls area, there were no higher paying jobs available to him, and that the area’s employment situation was unlikely to change in the near future (p. 16).” Even if Michael relocated, which he was willing to do, the expert concluded that increased living costs would outweigh any higher salary. This was true, not only because of the low cost of living in Klamath Falls, but because Michael benefited from free child care and subsidized housing provided by family members in that town.
What if Michael had persevered in his quest to become a lawyer? If he had passed the bar and found a lawyering job, both significant hurdles, he probably would be earning more today than in his JD advantage job as a juvenile counselor. But not that much more. A 2012 Economic Survey by the Oregon State Bar found that 25% of attorneys in Southern Oregon (where Michael lives) earn $63,000 a year or less (p. 15). It would be hard to stretch even $63,000 to pay back Michael’s loans while supporting his family.
The Klamath County District Attorney’s office, meanwhile, is facing the same budget crisis that is hurting the Juvenile Department. Attorneys in the DA’s office will take pay cuts of 5-14% during the coming year, just the first step in addressing an ongoing fiscal crisis.
The sobering fact is that some JD advantage jobs–and even some attorney positions–pay only $50,000 to $60,000 per year for experienced workers. For graduates who land in those jobs, law school loans are financially devastating.
What About IBR or PAYE?
Income Based Repayment and Pay As You Earn, two current programs for managing student loans, did not exist when Michael petitioned for bankruptcy in 2003. The government did, however, offer the Income Contingent Repayment Plan (ICRP). Both of the bankruptcy judges who reviewed Michael’s case concluded that ICRP would not give him sufficient relief. That plan would have demanded payments of more than $300 per month, more than the judges believed Michael could afford.
Judge Brandt, furthermore, suggested that no debtor should have to accept a program like ICRP. That program, Brandt declared, “simply is going to substitute a nondischargeable tax debt based on loan forgiveness for the student loan debt. And that tax debt is going to hit as much as 25 years further out, even when young debtors are likely to be dealing with their own children needing help with college or as they’re getting ready for retirement or hoping to get ready for retirement or potentially both (p. 31).” The ICRP solution, therefore, was no solution at all.
The government’s most recent loan restructuring program, Pay As You Earn, would have treated Michael much more favorably. As indicated above, he would have paid no more than $90 per month with a $40,000 salary and 3-person family. With a 5-person family and $50,000 salary–Michael’s likely situation today–he would pay no more than $72 per month. Of course, as Judge Brandt noted, Michael would owe taxes on the forgiven portion of his loan–a liability that would hit just as Michael and his wife prepared to send their daughters to college. More important, PAYE simply isn’t available to Michael: Congress limited access to graduates who obtained their first educational loans after October 1, 2007.
If Michael hadn’t defaulted on his loans, he would qualify for today’s Income-Based Repayment Plan and Public Service Loan Forgiveness Program. For the latter program, Michael wouldn’t be able to count any of the thirteen years he has already spent counseling juvenile offenders. He could, however, make reduced payments (currently about $108 per month, based on his income and family size) while working for another ten years in public service, then obtain full loan forgiveness. Those benefits, however, aren’t available to debtors who defaulted or settled with creditors under earlier, harsher loan programs.
Bleak House
This is Michael Hedlund’s Bleak House: Loan repayment plans that stretched more than thirty years past his law school graduation, ten years of bankruptcy-related litigation, and a partial discharge that will likely require payments until at least 2028–thirty-one years after Michael received his JD.
It is a bleak outcome for taxpayers and the economy as well. Here is a healthy, well educated father of three who lives modestly and has no addictions (p. 32). He is providing his family with the country’s median household income, while living in a low-cost town with other family nearby. Yet he is swimming in student debt, even after a partial discharge from the bankruptcy court. He won’t repay all of his federally guaranteed loans. Nor will he and his family buy the cars, dishwashers, ipods, and other goods that keep our economy healthy.
What can we learn from this story? First, large law school loans and unmanageable debt are not new phenomena. Michael Hedlund graduated from law school in 1997, more than a decade before the current downturn in legal employment. Law school was expensive even then; Michael’s total cost of attendance for three years at Willamette was $77,140. Given the school’s low bar passage rate, together with the salaries available for attorneys and JD advantage workers in Oregon, the price was simply too high.
Second, the changing tides of loan repayment programs have left some graduates–like Michael Hedlund–stranded on the beach. When Michael petitioned for bankruptcy, the government offered a repayment plan (ICRP) with payments that were too high for Michael to meet. Today, he would qualify for plans that would allow payments well below what he is paying under his partial discharge. Michael graduated at a bad time: law school tuition was already high, but loan repayment plans were still stringent. Politics, however, rarely looks backward to help those who are already in trouble.
Third, the very different repayment plans demonstrate the aimlessness of our loan repayment policies. After reviewing Michael Hedlund’s individual circumstances, two bankruptcy judges concluded that Michael could afford to pay no more than $290 per month (including the $50 owed to TERI) on his student loans. ICRP, the government program in effect in 2003, would have required payments of about $340 per month. Those payments would have paid off Michael’s loan, plus interest, in just over twenty years–but the payments were more than Michael could afford.
The repayment terms offered today, in contrast, would have allowed Michael to pay $92 (PAYE) or $134 (IBR) per month in 2003, based on his income and family size at that time. With his larger family and current salary he would pay only $72 (PAYE) or $108 (IBR) per month. These amounts are all less than half the amount that the bankruptcy court calculated Michael could afford–although they carry the prospect of significant tax liability at the end of the repayment period. A public servant like Michael, though, could avoid even that burden through today’s Public Service Loan Forgiveness program.
Where does the truth lie? Can Michael afford to pay $72 per month, $134 per month, $290 per month, or $340 per month? Do the lower amounts, offered by today’s repayment plans, represent thoughtful subsidies, political manna, bets that the economy will improve, or reckless accounting? Was ICRP too harsh or was the bankruptcy court too generous? What policies are driving these government programs and where are they taking us?
Finally, it is clear that law school was too expensive in 1997 for students like Michael Hedlund, and it is even more costly today. When law schools set tuition and admissions policies, they need to focus on the bottom quarter of their future graduates–not just the top quarter or even the median. Before classes start, of course, we don’t know who will fall into that bottom quarter. Class rank, furthermore, doesn’t correlate precisely with outcome; Mike Hedlund graduated in the middle of his class but may have obtained less than the median outcome.
Still, we know there will be law graduates who fail the bar, graduates who choose (or resign themselves to) JD advantage jobs, and graduates who earn less than $60,000 after years of experience. Law schools owe a duty to these graduates as well as to the more financially successful ones.
That reminder is especially important today, with law school applications significantly depressed. As schools struggle to maintain enrollments and budgets, will they admit more students at risk of failing the bar? How much will those students pay? Even with tuition discounts, many students pay more today than Michael Hedlund did. And with tighter job markets and inflation, entry-level salaries are lower–even for licensed lawyers. IBR, PAYE, and Public Service Loan Forgiveness offer tempting lifelines, but how long will those programs endure? Too many of our law graduates are living in bleak houses of bankruptcy, loan repayment, and underemployment.
Wide World
May 11th, 2013 / By Deborah J. Merritt
QS, a British company that supports international study, has published a ranking of law schools worldwide. Like all other rankings, this one undoubtedly has flaws. The method, however, seems at least as plausible as the one used by U.S. News for our domestic rankings. The QS ranking for subjects like law focuses on academic reputation surveys, employer surveys, and measures of scholarly productivity and impact. Let’s see what the results of the survey tell us about the place of U.S. schools in the wide world of law.
First some good news for our home team: Harvard Law School tops the QS list, and four other U.S. schools (Yale, NYU, Columbia, and Stanford) appear among the top ten. These United States similarly dominate the top fifty, with fourteen American schools in that group. The United Kingdom is our closest competitor, with nine schools listed among the top fifty. Next comes plucky Australia, with six law schools in the top fifty. If this were the Olympics, we would win; we have the most medals and that’s that.
American students and professors, however, may be surprised to find the glory spread among schools from so many different nations. In addition to the U.K. and Australian schools, the top fifty includes law schools from France, New Zealand, Hong Kong, Canada, Singapore, Belgium, the Netherlands, Germany, Japan, China, Chile, and Italy. The top U.S. schools have a strong global reputation, but so do schools from many other nations.
Some of our dominance, furthermore, stems from our size. The United States has a population of 313.9 million residents. The United Kingdom is just one-fifth our size, with a population of 62.6 million. Australia is even smaller, with a population of just 22.6 million. A nation our size has many more educational institutions–and more opportunities to make a top-fifty list–than smaller countries do.
To adjust in a very rough way for size, we can compare the QS showing for California, with a population of 38 million residents, to both the United Kingdom and Australia. California’s population is about three-fifths as large as the population of the United Kingdom. Puny Australia, in turn, is about three-fifths the size of California.
California fares quite nicely on QS’s ranking of law schools: It has one school (Stanford) in the top ten and two others (Berkeley and UCLA) among the top fifty law schools worldwide. But the United Kingdom triples that showing, with three schools in the top ten and six others among the top fifty. The U.K. achieves that record with a population that is less than double California’s size. Tiny Australia, meanwhile, trounces California: It has two schools in the top ten and four others among the top fifty. That’s double California’s performance at just over half its size.
What does this mean for U.S. law schools and their graduates? The most lucrative forms of practice, serving corporate and financial clients, are now global practices. U.S. law matters, but so does the law of the European Union, China, and dozens of other nations. Large corporations obtain counsel from lawyers around the world, and many of those lawyers received their training outside of the United States.
To get a sense of this, scan the lawyers associated with Baker & McKenzie. For 2012, the latest year available, Baker grossed more money than any other law firm in the world. Baker is headquartered in the United States and it hires plenty of U.S. law school graduates. According to a search box on the firm’s site, it employed forty-six Harvard Law School graduates to help accomplish that end. The firm, however, also employed twenty-three lawyers educated at the University of Melbourne. Nor did those Melbourne lawyers stick to Baker’s Australian offices; they also practice in Chicago, Washington, DC, London, Hong Kong, Shanghai, Singapore, and Kuala Lumpur.
Examine the leading law firms headquartered outside of the United States, and you’ll find even more lawyers from all of those non-U.S. schools on the QS list. Clifford Chance, the U.K. mega-firm, has thirty lawyers in its Hong Kong office. Only two of those thirty have a law degree from a U.S. school, and one of those is an LLM earned to complement a Hong Kong degree. United Kingdom degrees predominate at Clifford Chance, but degrees from Hong Kong, Switzerland, Singapore, and Australia also appear among the Clifford Chance lawyers in Hong Kong.
Graduates of U.S. schools, in other words, are competing against a wide world of lawyers. That competition is one of the forces reducing the number of BigLaw positions for graduates of our schools. Corporate clients hire law firms located in many parts of the world. Those firms, in turn, hire lawyers from many countries–and often show little interest in U.S.-educated lawyers. As BigLaw positions contract, displaced U.S. lawyers move into positions more focused on the domestic market, placing pressure on those positions as well.
The United States enjoyed such global dominance during the last half of the twentieth century, that I fear many legal educators, law students, and prospective students don’t grasp the impact of global competition on jobs in our profession. BigLaw is no longer our playground; it’s a busy marketplace that we share with the rest of the world.
Finnegan’s Way
May 1st, 2013 / By Deborah J. Merritt
Finnegan, one of the world’s largest IP firms, is willing to invest in future lawyers. The firm is paying 100% of law school tuition for staff members who want to earn a law degree. The staff members work as part-time “student associates” while in law school; the firm bills their time at lower rates.
A visit to Finnegan’s site reveals that the firm currently employs thirty-eight of these student associates. I didn’t check every bio, but most of the future lawyers have science degrees and currently work on patent applications. They are enrolled in every D.C. law school (where Finnegan is headquartered), as well as at a range of schools in other cities that host Finnegan offices. Those include Boston, Atlanta, and San Francisco.
Finnegan’s program has two important implications for law schools. First, of course, it’s welcome news that talented professionals are enrolling in law school; it’s even more striking that an employer is paying for their legal education. Finnegan’s investment lends support to the idea that legal training could have special value for professionals employed in related fields–especially if they are able to keep working while in law school.
I’ve suggested before that law schools should implement more flexible degree programs, ones that support concurrent professional employment. The Finnegan policy seems to support that idea. Even if other employers aren’t willing to pay for their employees’ law school tuition, they might be willing to adapt that employee’s work schedule to accommodate law school classes. Professionals in law-related fields may be a modestly growing source of students for law schools.
Second, however, Finnegan’s approach may place further pressure on the traditional college-to-law-school-to-firm route of entering corporate law practice. Finnegan has 38 of its talented scientists, who have already worked with the firm’s lawyers and clients, enrolled in law school. With that type of talent in the pipeline, will the firm continue hiring as many conventional associates?
Equally important, what if corporate clients adopt Finnegan’s way for themselves? Companies could send senior compliance managers, financial analysts, and others to law school, hoping that a cadre of law-trained managers will reduce their need for outside counsel. These managers would provide a new pool of promising law students, but might further reduce hiring at the companies’ outside law firms.
It’s hard to predict the math on this, but I would take Finnegan’s program as a useful signal for law schools. To keep up with the twenty-first century market, law schools may need to focus more heavily on educating professionals who work in related fields and who continue that work throughout law school. If we value those students and accommodate them, we might tap a new pool of applicants. And, if legal work continues to shift from law firms to corporations, we would at least keep up with that movement.
Is BigLaw Reviving?
April 29th, 2013 / By Deborah J. Merritt
The American Lawyer has published the Am Law 100, its annual list of America’s highest revenue generating law firms. The accompanying article, titled “Spring Awakening,” suggests that BigLaw may have turned the tide to better times. The subtitle, in fact, states: “The Am Law 100’s modest gains hint that a fundamental recovery is taking root.”
BigLaw may be stabilizing, but the numbers don’t suggest any recovery in hiring levels for new associates. Revenue increases are modest, and headcount rose a miserly 0.8% over the last year. A detailed analysis of firm billing, meanwhile, declares that “[t]he most endangered species in The Am Law 100 appears to be the junior associate.”
Revenues
Gross revenue among the Am Law 100 increased 3.4% in 2012. Inflation, however, was 1.7%, which accounts for half of the increase. Average revenue per lawyer, meanwhile, increased just 2.6%, not much faster than inflation.
Profits per partner, notably, rose more than any other indicator. Those profits increased an average of 4.2%. Those increases make partners happy but, when partners take more than their share of gross revenue, there’s less money for hiring or compensating new lawyers.
Junior Associates
The day after publishing its Am Law 100 list, The American Lawyer released details of a study underscoring the decline of junior lawyers at those firms. The study analyzed a sample of bills submitted to BigLaw clients over the last three years. In 2010, those bills included hours billed by 3,322 junior lawyers (those with less than three years of experience). In 2012, the number of timekeepers in that category was just 2,327–a thirty percent decline.
The report notes that BigLaw clients have resisted paying for junior lawyers’ time, but finds that fact an unlikely explanation for a decline of this size. An associate would appear in this study even if the firm billed just a single hour of her time. It’s unlikely that any firm wrote off an entire year of work by a junior associate. The junior associates who did appear in the billing records, moreover, billed more time than midlevel or senior associates.
Instead, the most likely explanation for the decline is that firms have not been replacing entry-level lawyers. They are shifting work to staff attorneys, contract attorneys, and outsourcing firms. Or, when they hire new associates, they may be seeking ones who already have three years of experience.
Client Demand
The analysis of billing records reveals another grim fact: The large clients represented in the study hired BigLaw firms for fewer hours in 2012 than in 2011. In 2011 these clients bought 4.4 million hours from the studied firms; in 2012, they purchased just 4.3 million. That’s still significantly higher than the 3.7 million hours billed in 2010, but a dip between 2011 and 2012 does not bode well–especially for law students seeking associate positions at these firms. BigLaw clients may be handling more work in-house, solving problems through other means, hiring smaller firms, and turning directly to legal process outsourcers.
Conclusion
Most BigLaw firms are still vibrant, handling large amounts of work, and increasing profits for their partners. Business may have stabilized somewhat since the worst days of the recession. For law schools and new lawyers, however, any BigLaw recovery seems modest at best. At worst, in the words of The American Lawyer‘s columnist, junior associates are an “endangered species” in BigLaw.
Straight Talk About JD Advantage Jobs
April 28th, 2013 / By Deborah J. Merritt
Earlier this month, I expressed my concern about NALP‘s aggressive marketing of JD Advantage jobs to pre-law students. Last week NALP posted additional information about these jobs on its website. Although some of the data are interesting, NALP is still withholding key information it possesses about JD Advantage jobs: law graduates are much less satisfied with these jobs than with ones that require bar admission.
The omission is both regrettable and deceptive. NALP has published much of the data it collects on JD Advantage jobs, while ignoring some of the most negative–and relevant–information in its possession. This biased disclosure reflects poorly on NALP, but it also embarrasses us as legal educators and professionals. NALP is a membership organization composed of law schools and legal employers, so it speaks for us. The last thing that law schools need, after years of bad press about distorted job statistics, is publication of more misleading data.
As educators, we care about both our graduates’ welfare and the accuracy of data. NALP’s dissembling with respect to JD Advantage jobs raises real questions about whether it is capable of continuing to represent our interests. Perhaps it is time for law schools to create a different organization–or work solely with the ABA–to collect and publish unbiased data about the careers of law school graduates. We need that information, not only to advise prospective and current students, but to guide our own decisions about how to reshape legal education. Feel-good presentations that omit key facts will not help us confront the ongoing challenges to our schools and profession.
I summarize here some of the information we currently have about JD Advantage jobs, including the data omitted by NALP. I also suggest ways that we could begin collecting more objective data about these jobs. If JD Advantage jobs are going to play an important role in the future of legal education, we have to get serious about examining these positions.
Looking Back
There have always been law graduates who pursued careers outside of law practice. The information we have, however, suggests that most of those graduates embraced alternative careers after practicing law for at least a few years. An earlier statement by NALP, for example, acknowledges: “It is certainly true that people with JD degrees work in a wide variety of alternative careers. However, while that may be true down the road, lawyers most often choose a non-traditional path after practicing law for at least a few years.” (This statement still appears on the NALP website, but it is not connected to the pages promoting JD Advantage jobs as entry-level positions.)
This distinction is important. Graduates who take JD Advantage jobs after practicing law differ from those who seek these jobs immediately after law school. The historical record suggests that some employers value the JD plus law practice experience for certain jobs; the record tells us very little about the value of the JD alone for those career paths. When we advise current and prospective students about the value of JD Advantage jobs, we have to be careful to distinguish graduates who used their degrees plus practice from those who attempted to secure JD Advantage jobs immediately after law school. A graduate who takes a job in “compliance” right after graduation has a very different job from one who moves in-house to do compliance work after three years in a regulatory law practice. Their long-term career trajectories may also differ; we have little available information on that score.
Earlier graduates in non-traditional positions offer an important resource for gathering information about JD Advantage jobs and, if those jobs seem promising, developing career paths for current graduates. We have to seek that information, however, in a serious way. It’s not enough simply to talk with these graduates at reunions. We need to map law-related opportunities more systematically, seek feedback on which law school experiences are particularly valuable for those jobs, and analyze objectively how much a JD contributes to graduates obtaining those positions and advancing in them.
JD Advantage Today
As entry-level jobs in law practice have contracted and shifted to less attractive positions, law graduates have looked to alternative fields. NALP’s Detailed Analysis of JD Advantage Jobs shows how important those jobs have become. Among 2011 graduates who reported their job status, 12.5% took JD Advantage jobs. That represents one out of every eight graduates. As a percentage of all graduates, including those who did not report their job status, graduates in JD Advantage positions accounted for 11.7% of the class.
According to recently released ABA figures, the percentage went up for the class of 2012. Among those who reported their employment status, 13.2% held JD Advantage jobs. As a percentage of the full graduating class, these jobs accounted for 12.9% of graduates.
Those percentages are substantially higher than the rates reported during the century’s first decade. For the class of 2001, 5.9% of graduates reporting their employment status indicated that they held “JD Preferred” jobs; that category was the precursor for the contemporary “JD Advantage” one. For the class of 2004, the figure was 7.5%, and in 2007, it was also 7.5%. The percentage edged up to 7.8% for the class of 2008, then began jumping noticeably each year: to 8.8% for the class of 2009, 10.2% for the class of 2010, 12.5% for the class of 2011, and 13.2% for the class of 2012.
This pattern in itself suggests that law graduates are turning to JD Advantage jobs as a “Plan B” when they cannot find jobs in law practice. Interest in these jobs has not been “growing steadily” since 2001, as NALP suggests in its recent analysis. Instead, interest jumped significantly after the recession hit the legal market in 2009. We need to look seriously at graduates’ satisfaction with JD Advantage jobs. Do recent graduates hope to build a career in this work? Or are they using JD Advantage jobs as place-holders while looking for work in law practice? If the latter, how well can graduates make that transition?
Job Satisfaction
NALP already has data on some of these questions. As part of its annual survey of law graduates, NALP asks employed graduates whether they are “seeking a job other than the one” reported to their Career Services Office. The answers to this question shed important light on a graduate’s job satisfaction. Graduates answer this survey within nine months of law school graduation. If they are seeking another job that quickly after graduation, the reported job either lacks permanence or holds little appeal.
Responses to this question consistently suggest that law graduates prefer jobs that require bar admission over JD Advantage ones. In 2001, just 6.7% of graduates working in lawyering jobs (those that required a law license) were looking for other work; a full third (33.3%) of those with JD Preferred jobs were actively seeking another job. In 2004, the percentages were 8.5% (for those in jobs requiring bar admission) and 37.0% (for JD Preferred jobs). Three years later, in 2007, the percentages were virtually identical to the 2004 ones: 8.7% of graduates with lawyering jobs were seeking other work, while 37.7% of those with JD Preferred positions were on the job market.
NALP’s latest figures, from 2011, show the same pattern. With a tighter market and more ad hoc jobs, the percentages have risen in both categories. 16.5% of graduates with lawyering jobs were seeking other work, and 46.8% of those with JD Advantage jobs were doing so. For graduates with other types of professional employment, the percentage was even higher: more than half (52.1%) of those graduates were sufficiently dissatisfied with their jobs to be seeking a different one.
These figures further suggest that JD Advantage positions are fallback jobs, rather than affirmative career decisions, for many graduates. Some graduates may eagerly pursue jobs in this category, but a large number do not. Almost half are seeking other work as soon as they begin these positions. Even among JD Advantage workers who have temporarily withdrawn from the job market, at least some may hope to move into law practice eventually.
This is essential information to know about the job market, but you won’t find the data on NALP’s web page offering a “Detailed Analysis of JD Advantage Jobs.” A prospective law student or interested law professor would have to purchase NALP’s $90 book on Jobs and JDs to find that information. The student or professor, of course, would also have to know that the additional data exist.
We need to grapple with negative information about JD Advantage jobs, not selectively ignore those data. Which graduates are satisfied with JD Advantage jobs and why? What work are the other graduates doing? Will that work help them secure jobs that better fulfill their career ambitions?
Toward Better Data
As noted above, I’m not sure that NALP is the best organization to collect more data on JD Advantage jobs or other evolving facets of the job market. The organization’s recent treatment of JD Advantage jobs suggests that it is spinning data rather than providing objective information. The ABA might serve as a better resource for ongoing career information. That professional group is providing data more quickly than NALP, and it is publishing the data in both summary and detailed form. Law School Transparency is also offering rapidly updated, objective career information through its Score Reports.
Whatever organizations we work with in the future, here are some questions that we need to address about JD Advantage jobs:
1. What are these jobs? Both NALP and the ABA allow graduates and their schools to decide whether a job qualifies for this category. It is very easy for a JD graduate or a JD-granting institution to conclude that their degree confers a “demonstrable advantage in obtaining or performing” a particular job. These decisions, however, may overstate the value of the JD. Is a job as a substitute middle school teacher a “JD Advantage” one? What about a job as a police officer? Law graduates in these jobs probably would draw upon their legal training, but are these the type of jobs we envision as “JD Advantage” ones?
There’s no reason to debate these questions in the abstract. We should simply require schools to list the jobs they have counted as “JD Advantage” ones. The ABA could publish that information, both for individual schools and in the aggregate. Some students may find positions as middle school teachers or police officers attractive; others may decide that the JD is not the best route to those positions. By publishing the data, we can inform both students and ourselves about possible career paths for law graduates.
2. How many students take different types of JD Advantage jobs? Law schools count paralegal positions as “JD Advantage” ones, but they rarely tout those jobs. Instead, websites tend to refer to policy analysts and investment bankers. Following the previous suggestion would allow us to advise students (and ourselves) about the prevalence of graduates in these very different JD Advantage positions.
3. How do other degrees and experiences contribute to graduates’ success in pursuing JD Advantage positions? A JD offers an advantage for some accounting positions, but it is very unlikely that a law graduate could obtain an accounting job without also holding a degree in accounting. Similarly, some JDs in business hold an MBA along with the JD. To give our students good counsel, as well as to enhance our own understanding of legal education, we need to collect more granular data about the relationship of JD Advantage jobs to other degrees. This research might suggest that other degrees shoulder much of the weight in securing some “JD Advantage” positions. Alternatively, it might identify particular joint degrees as especially useful for law students. The research might also suggest that we could benefit our students by incorporating elements of other degree programs in the JD curriculum.
4. How do law graduates fare in fields dominated by graduates with college or master’s degrees? According to the Department of Labor, only 20% of arbitrators, mediators, and conciliators hold a professional or doctoral degree; both BA and MA degrees are more common in this field. The Department does not even mention the JD as an educational prerequisite for a Human Resources Manager; 73% of those workers have just an associate’s or bachelor’s degree, while 27% possess a master’s degree. What do we mean, then, when we say that the JD provides an advantage for these positions? Do law graduates enter these fields at higher levels of responsibility than graduates with other preparation? Do they advance further? Based on anecdotal information, my sense is that the answer to both of these questions is “no.” The JD plus practice experience gives graduates an advantage in these fields, but the JD alone may not. But that’s just an impression; we need hard data on this issue.
Answering questions like these will help us advise prospective and current law students. Equally important, this information will inform our own decisions about the future of legal education. Is a three-year necessary for these JD Advantage jobs? Would a one- or two-year degree serve equally well? What elements of legal education contribute to these jobs? Is it critical thinking skills? Knowledge of legal doctrine? Both? How large are the contributions? We have to be willing to ask these questions as researchers and to interpret the answers objectively. Armed with that information, we can make responsible and productive decisions about how to improve the value of legal education.
Decelerated Degrees
April 16th, 2013 / By Deborah J. Merritt
Accelerated degree programs, which allow students to obtain a JD in two calendar years, are starting to spread. Law schools offering these programs include Northwestern, Vermont, Arizona State, and Regent. Students generally pay as much tuition as they would for a three-year JD, but they join the workforce a year earlier and save a year of living expenses. For some students, two-year programs offer a way to reduce the cost of a JD.
What about the opposite approach? What if students could spread their classwork over four or five years, while paying no more than they would for a three-year program? Students in a “decelerated degree program” could work year-round, defraying at least some living expenses and perhaps securing more meaningful work. Law schools could create these programs with relative ease; deceleration doesn’t require establishing a formal night program, making major curricular changes, or obtaining ABA approval. Deceleration just requires thinking about the JD from a different perspective.
Outdated Assumptions
Most law schools assume that it’s best for students to complete the JD in three full-time academic years. The standard three-year track promotes camaraderie; supports conventional moot court and law review programs; and moves students relatively quickly into the workplace. In the late twentieth century, the three-year model also gave students adequate opportunities to gain workplace experience and offset their expenses: they could work full-time over two summers, plus part-time in the second and third year.
Changes in the legal market, however, have sharply curtailed job opportunities for law students. The shifts haven’t just undercut post-graduate employment; they’ve affected summer and part-time work as well. Fewer paid jobs are available and, when they exist, employers have little interest in accommodating student schedules. Employees who work only 10-15 hours a week offer little value to most employers. The headaches of training, supervising, and scheduling such “low-time” workers quickly outweigh the benefits. As a result, students tell me that their employers press them to work 20 or more hours per week.
The ABA caps employment at 20 hours per week for students enrolled in more than twelve class hours. Even 20 hours, though, is challenging for students to juggle if they are taking a full load of classes and participating in co-curricular activities such as a journal or moot court. Some students have asked me why they can’t stretch their legal education out for an extra year–or take summer courses–without paying extra tuition for the degree.
The answer is that they can–if we let them.
Deceleration
Decelerating the JD is simple: we allow students to spread their degree work over as much as six years, paying for their classes by the credit. We also remove the obstacles (petitions to the academic affairs committee, special permission from the associate dean) that discourage students from extending their work in this manner. Students can choose the best way to integrate their classes with workplace opportunities.
One student might complete the first year full-time, then stretch the remaining two years over three part-time years while working 30-40 hours a week year round. Another might complete her degree in the standard three years by taking summer classes and a reduced academic-year load, while working 25 hours a week. Another might take a semester’s leave to work full-time for an employer, then continue working 30-40 hours a week with a reduced load.
We can even extend deceleration to the first year. Although we think of first-year courses as an integrated block of learning, the courses are less integrated than we assume. My school regularly accepts transfer students who have completed a different first-year curriculum; they make up the missing courses as 2Ls sitting in our first-year classes. We also allow academically challenged students to lightload during the first year; again, they make up the missing classes during the second year. We could offer this kind of schedule to more students, allowing them to split the first year into two halves–or into a 3/4 chunk followed by a few remaining classes integrated with upper-level offerings.
Deceleration Versus Night Programs
How does deceleration differ from traditional part-time or night programs? There are three major differences: (1) Deceleration does not require creation of a separate schedule or set of classes. Students who choose to decelerate enroll in the same curriculum as students who remain on the full-time track. (2) There is no separate admissions process. Deceleration is an option for all students in the JD program. (3) Students may change their course over time. A student might attend school full-time for a year, decelerate for a year and a half, and return to full-time study. The program adjusts to the student’s needs.
Deceleration depends upon a key assumption about today’s workplace: Employers want employees who can work more than 15 hours a week, but they are increasingly flexible about when and where those employees work. Students who decelerate to work may need some early morning, late afternoon, or evening classes, but they will not depend upon them to the same extent that part-time students have in the past.
Advantages
What’s the point of a program like this? As explained above, deceleration would give more students an opportunity to work during law school. Some students might keep the jobs they held before applying to law school; others might find new work while in school. Either way, students who can work 20 or more hours a week are likely to find better opportunities than those with less flexibility.
Those jobs could pay off in at least three ways. First, students will be able to pay some of their expenses, reducing the amount they borrow for law school. Second, serious jobs (those that require 20 or more hours per week) are more likely to lead to post-graduate employment. Finally, those jobs can complement classroom work by giving students the hands-on experience we used to expect from summer clerkships.
Based on my reading of ABA rules, deceleration raises no accreditation issues. ABA Standard 304 requires students to complete a minimum number of instructional hours in residence, but deceleration simply spreads those hours over more time. The same standard requires students to complete their degree within 84 months (7 calendar years); the deceleration I have proposed fits well within that time frame. ABA Interpretation 301-5, finally, requires schools “providing more than one enrollment or scheduling option” to give all students “reasonably comparable” educational and co-curricular opportunities. Deceleration programs would satisfy that requirement because all students could choose from any classes or activities.
Deceleration, finally, should not affect most students’ elibility for federal loans. The Direct Loan program requires students to register at least half- time, but the definition of half-time is very liberal for professional and graduate students. Students, however, would need special counseling if they dropped below half-time status; under those circumstances, they would lose both loan eligibility and deferment.
Negatives
What are the drawbacks? First and most important, deceleration doesn’t solve the major issues confronting law students today. It won’t create more jobs, and it won’t lower tuition below the cost of a standard six-semester program. Deceleration might give some students an advantage in finding available jobs, and it might help some students cope with the high cost of law school, but it doesn’t solve either of those serious systemic problems.
Second, the approach might help only a small number of students. There may be relatively few employers who are interested in hiring law students, even if those students can devote substantial time to the job. Students themselves may not be interested in prolonging the agony of law school. Three years and out may be better than four years and more.
Third, deceleration might raise the cost of law school for some students. Although students would pay by the credit, rather than the year, tuition has been rising faster than inflation. If that trend continues, students will pay more for credits earned later in their law school careers. Delaying entry into the full-time workplace can also be costly. A student who is confident of securing a high-paying job after bar admission has a financial incentive to secure that job as quickly as possible.
Finally, deceleration will work best if schools are willing to change some of their course offerings. The concept doesn’t require night courses, but some evening and night courses would help students pursuing this option. Schools might also need to beef up their summer programs to meet the needs of students spreading work and classes more evenly over the full calendar year. Those changes take administrative time–and may not appeal to some faculty.
Conclusion
Deceleration is a small change, but it’s an option that might appeal to some students, reduce their debt, and improve their job prospects. The approach also complements the growth of externships, distance learning, and other new modes of legal education. The contemporary workplace is in flux, but it seems to be moving toward an era in which individuals integrate education and work more flexibly than in the past. Decelerated JDs might be part of that evolution.
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.