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How To Fix The U.S. News Law School Rankings
January 13th, 2016 / By Kyle McEntee
This was originally published on Above the Law.
To put it mildly, I’m not a fan of the U.S. News law school rankings. They poison the decision-making process for law students and law schools alike. For students, they cause irrational choices about where to attend or how much to pay. For schools, they produce a host of incentives that do not align with the goal of providing an accessible, affordable legal education.
Because of their undeniable influence, it makes sense to seek methodological changes that nudge schools in a better direction.
» Read the full text for How To Fix The U.S. News Law School Rankings
No More Summer Associates?
June 30th, 2015 / By Deborah J. Merritt
Quinn Emanuel, one of the nation’s “superrich” law firms, is cutting most of its summer program. Rather than employ 50 summer associates, as it has in recent years, the firm will hire just 5-10. According to a memo from name partner John Quinn, the move will reduce expenses (with savings redirected toward signing bonuses for associates joining the firm on a full-time basis) and avoid the “unrealistic” nature of summer programs.
Quinn told Bloomberg BNA that he didn’t expect other law firms to follow suit; some members of the profession view Quinn Emanuel as “quirky.” On the other hand, he stressed the strong rationales for dumping summer associate programs: firms spend a lot on them, it is difficult to integrate students into the firm’s workload, students thus get an unrealistic view of firm life, and clients no longer want to pay for summer associate work (even at discounted rates). If firms took a hard look at summer programs, Quinn suggested, they would conclude that these programs don’t “make[] any sense.”
What will happen if other BigLaw firms follow the Quinn Emanuel lead? Here are some preliminary thoughts. I limit my discussion in this post to BigLaw firms. If the idea spread to smaller firms, that would have additional repercussions.
Elitism
Summer programs are one way–usually the only way–that students from lower ranked schools can demonstrate their worth. If firms eliminate summer try-outs, then how will they make permanent hiring decisions? I predict that they’ll recruit even more heavily from the most elite schools. A partner from a T50-but-not-T14 school may be able to persuade the hiring committee to take a summer associate from her alma mater. That’s a harder sell for a full-time associate position.
Quinn Emanuel’s retention of a very small summer program signals this shift to more concentrated elitism. The firm plans to continue hiring 5-10 summer associates each year who will be able to share their personal experiences with classmates. I think I can guess which 5-10 campuses will get those positions.
Money
Many law students rely upon summer money to pay living expenses and reduce reliance upon loans. For those who work at BigLaw firms, the money is substantial. According to the NALP Directory, the going rate for 2L summer associates at NY BigLaw firms is about $3,067/week this summer. That comes to $24,608 for an 8-week summer. Students owe taxes on that amount, but summer salaries still make a substantial contribution to student finances.
If other BigLaw firms follow Quinn Emanuel’s lead, the effective cost of attending law school will rise. Successful students may earn that money back during their careers, but the upfront investment will grow.
Hands-On Education
Summer associate programs play a useful role in exposing students to real-world law practice. Students return from these summers talking about their enhanced understanding of litigation (“I’ve seen a set of interrogatories!”), corporate work, and other practice areas. Some even meet a client or attend a legal proceeding.
At most law schools, BigLaw firms employ only a small percentage of students during the summer. Other firms, government agencies, corporations, and nonprofits offer as good–or better–practical experience to students. Still, it is worth asking what will happen if paid summer jobs start to decline. Where will students get the experiences that complement their classroom learning? Are law schools prepared to fill the gap?
Entry-Level Hiring
With its spare summer program, Quinn Emanuel plans to focus entry-level hiring on third-years and judicial law clerks. It’s easy to imagine the lean summer program, however, as the first step toward an emphasis on lateral and/or contract hiring. Will the Quinn Emanuel partners be willing to hire completely untested associates–or those trained only by judicial clerkships? Or will the current break with tradition lead to other changes?
Even if not at Quinn, what about other firms? One can imagine firms pruning both summer programs and first-year associate ranks. Most BigLaw firms are already fat around with middle, with a large number of income partners. Rather than hire more new associates, perhaps we will see a shift toward hiring laterals and contract lawyers.
Change
The most important implication of Quinn’s move is the fact of change itself. Six years after the Great Recession, firms are experimenting more–not less. They are continuing to ask “does this tradition make sense?” And they seem increasingly willing to change those traditions.
Law firms are notoriously slow to change but, when they do pursue a new course, law schools have to play catch-up. Quinn Emanuel hasn’t announced a proposal that a committee will study over the next academic year, ultimately proposing formation of a new committee to study the idea further. Quinn might have mooted this idea internally for some time, but change will follow quickly on the heels of the public announcement.
Quinn’s change will affect a small number of students at a small number of law schools. But what other changes are brewing, in BigLaw and elsewhere?
Paid Externships
June 8th, 2015 / By Deborah J. Merritt
The ABA’s Council of the Section of Legal Education and Admissions to the Bar has agreed to hold hearings on a proposal that would allow law schools to grant academic credit for paid externships. I favor the proposal because it might encourage the development of innovative partnerships between employers and the academy. I also hope the proposal would ease the financial burden on law students although, as I explain below, this is unlikely to happen. Instead, law schools need to consider other options for reducing that burden.
Employers and Externships
Advocates of paid externships have urged that, given the high cost of law school tuition, students shouldn’t have to choose between paid jobs and unpaid externships. I agree that students shouldn’t have to make this choice, and that we should do as much as possible to lower law school tuition. Unfortunately, however, the proposed ABA rule change will create few paid externships.
The problem is that employers have no incentive to turn paid positions into externships. Creating and maintaining an externship imposes administrative burdens on employers. Some employers will accept those burdens in return for free labor; they hope that the externship rubric and university participation will create an exemption from the minimum wage laws. But if an employer is already complying with those laws by paying a law student for her work, what incentive does the employer have to submit to a law school’s oversight through an externship program?
There may be some employers that are willing to do this; that’s why I support the proposed change in law school accreditation standards. That change, however, offers no guarantee that employers will embrace paid externships. I suspect that relatively few will do so.
Alternative Paths
If we want to lower the cost of attending law school and/or give students more experiential learning opportunities, law schools have other choices. One option is to “decelerate” law school by allowing students to attend school part-time for the same total cost they would pay as full-time students. Currently, most part-time programs cost more overall than a full-time program would. Even summer credits cost more than academic-year ones at some schools. These pricing schemes penalize students for their need (or desire) to combine work and study.
Another option for many law schools is simply to reduce the number of credits required for graduation. ABA Standard 311 requires that students complete at least 83 credit hours to earn the JD. A quick google search, however, reveals that many law schools require more hours than that minimum. Schools that want to ease their students’ ability to work part-time for pay could simply reduce the credits they require for graduation. While they’re at it, they could reduce tuition to reflect the reduced demand on teaching resources.
Law schools could pursue either of these options today, without waiting for ABA hearings or rule changes. We could also develop other approaches to restraining the cost of legal education and enhancing its value. Don’t get me wrong: permitting paid externships is a worthwhile change. But I predict that the change will have little impact on the cost of legal education. If we want to lower those costs, we have to do the work ourselves.
ATL Rankings: The Good, the Bad, and the Maybe
June 4th, 2015 / By Deborah J. Merritt
In my last post I used Above the Law (ATL)’s law school rankings to explore three types of ranking schemes. Now it’s time to assess the good, bad, and maybe of ATL’s system. In this column I explore the good; posts on the bad and maybe will follow shortly. ATL’s metrics are worth considering both to assess that system and to reflect on all ranking schemes.
Employment Score
ATL’s ranking gives substantial weight to employment outcomes, a factor that clearly matters to students. I agree with ATL that “full-time, long-term jobs requiring bar passage (excluding solos and school-funded positions)” offer the best measure for an employment score. Surveys show that these are the jobs that most graduates want immediately after law school. Equally important, these are the jobs that allow law schools to charge a tuition premium for entry to a restricted profession. Since schools reap the premium, they should be measured on their ability to deliver the outcome.
For a focused-purpose ranking, finally, simple metrics make the most sense. Prospective law students who don’t want to practice can ignore or adjust the ATL rankings (which assume practice as a desired outcome). A student admitted to Northwestern’s JD-MBA program, for example, will care more about that program’s attributes than about the ATL rank. For most students, ATL’s employment score offers a useful starting point.
Alumni Rating
This metric, like the previous one, gives useful information to prospective students. If alumni like an institution’s program, culture, and outcomes, prospective students may feel the same. Happy alumni also provide stronger networks for career support. The alumni rating, finally, may provide a bulwark against schools gaming other parts of the scheme. If a school mischaracterizes jobs, for example, alumni may respond negatively.
It’s notable that ATL surveys alumni, while US News derives reputation scores from a general pool of academics, lawyers, and judges. The former offers particularly useful information to prospective students, while the latter focuses more directly on prestige.
Debt Per Job
This is a nice way of incorporating two elements (cost and employment) that matter to students. The measure may also suggest how closely the institution focuses on student welfare. A school that keeps student costs low, while providing good outcomes, is one that probably cares about students. Even a wealthy student might prefer that institution over one with a worse ratio of debt to jobs.
The best part of this metric is that it gives law schools an incentive to award need-based scholarships. Sure, schools could try to improve this measure by admitting lots of wealthy students–but there just aren’t that many of those students to go around. Most schools have already invested in improving employment outcomes, so the best way to further improve the “debt per job” measure is for the school to award scholarships to students who would otherwise borrow the most.
Over the last twenty years, US News has pushed schools from need-based scholarships to LSAT-based ones. What a refreshing change if a ranking scheme led us back to need-based aid.
Education Cost
Cost is another key factor for 0Ls considering law schools and, under the current state of the market, I support ATL’s decision to use list-price tuition for this measure. Many students negotiate discounts from list price, but schools don’t publish their net tuition levels. The whole negotiation system, meanwhile, is repugnant. Why are schools forcing young adults to test their bargaining skills in a high-stakes negotiation that will affect their financial status for up to a quarter century?
We know that in other contexts, race and gender affect negotiation outcomes. (These are just two of many possible citations.) How sure are we that these factors don’t affect negotiations for tuition discounts? Most of the biases that taint negotiations are unconscious rather than conscious. And even if law school administrators act with scrupulous fairness, these biases affect the students seeking aid: Race and gender influence a student’s willingness to ask for more.
In addition to these biases, it seems likely that students from disadvantaged backgrounds know less about tuition negotiation than students who have well educated helicopter parents. It’s no answer to say that economically disadvantaged students get some tuition discounts; the question is whether they would have gotten bigger discounts if they were armed with more information and better negotiating skills.
Negotiation over tuition is one of the most unsavory parts of our current academic world. I favor any component of a ranking scheme that pushes schools away from that practice. If schools don’t want to be ranked based on an inflated list-price tuition, then they can lower that tuition (and stop negotiating) or publish their average net tuition. My co-moderator made the same point last year, and it’s just as valid today.
The Bad and Maybe
Those are four strengths of the ATL rankings. Next up, the weaknesses.
ATL Law School Rankings
May 29th, 2015 / By Deborah J. Merritt
Above the Law (ATL) has released the third edition of its law school rankings. Writing about rankings is a little like talking about intestinal complaints: We’d rather they didn’t exist, and it’s best not to mention such things in polite company. Rankings, however, are here to stay–and we already devote an inordinate amount of time to talking about them. In that context, there are several points to make about Above the Law‘s ranking scheme.
In this post, I address an initial question: Who cares about the ATL rankings? Will anyone read them or follow them? In my next post, I’ll explore the metrics that ATL uses and the incentives they create. In a final post, I’ll make some suggestions to improve ATL’s rankings.
So who cares? And who doesn’t?
Prospective Students
I think potential law students are already paying attention to the ATL rankings. Top-Law-Schools.com, a source used by many 0Ls, displays the Above the Law rankings alongside the US News (USN) list. Prospective students refer to both ranking systems in the site’s discussion forum. If prospective students don’t already know about ATL and its rankings, they will soon.
If I were a prospective student, I would pay at least as much attention to the ATL rankings than the USN ones. Above the Law, after all, incorporates measures that affect students deeply (cost, job outcomes, and alumni satisfaction). US News includes factors that seem more esoteric to a potential student.
Also, let’s face it: Above the Law is much more fun to read than US News. Does anyone read US News for any purpose other than rankings? 0Ls read Above the Law for gossip about law schools and the profession. If you like a source and read it regularly, you’re likely to pay attention to its recommendations–including recommendations in the form of rankings.
Alumni
Deans report that their alumni care deeply about the school’s US News rank. Changes in that number may affect the value of a graduate’s degree. School rank also creates bragging rights among other lawyers. We don’t have football or basketball teams at law schools, so what other scores can we brag about?
I predict that alumni will start to pay a lot of attention to Above the Law‘s ranking scheme. Sure, ATL is the site we all love to hate: Alumni, like legal educators, cringe at the prospect of reading about their mistakes on the ever-vigilant ATL. But the important thing is that they do read the site–a lot. They laugh at the foibles of others, nod in agreement with some reports, and keep coming back for more. This builds a lot of good will for Above the Law.
Equally important, whenever Above the Law mentions a law school in a story, it appends information about the school’s ATL rank. For an example, see this recent story about Harvard Law School. (I purposely picked a positive story, so don’t get too excited about following the link.)
Whenever alumni read about their law school–or any law school–in Above the Law, they will see information about ATL’s ranking. This is true even for the 150 schools that are “not ranked” by Above the Law. For them, a box appears reporting that fact along with information about student credentials and graduate employment.
This is an ingenious (and perfectly appropriate) marketing scheme. Alumni who read Above the Law will constantly see references to ATL’s ranking scheme. Many will care about their school’s rank and will pester the school’s dean for improvement. At first, they may not want to admit publicly that they care about an ATL ranking, but that reservation will quickly disappear. US News is a failed magazine; Above the Law is a very successful website. Which one do you think will win in the end?
US News, moreover, has no way to combat this marketing strategy. We’ve already established that no one reads US News for any reason other than the rankings. So US News has no way to keep its rankings fresh in the public’s mind. Readers return to Above the Law week after week.
Law Professors
Law professors will not welcome the ATL rankings. We don’t like any rankings, because they remind us that we’re no longer first in the class. And we certainly don’t like Above the Law, which chronicles our peccadilloes.
Worst of all, ATL rankings don’t fit with our academic culture. We like to think of ourselves as serious-minded people, pursuing serious matters with great seriousness. How could we respect rankings published by a site that makes fun of us and all of our seriousness? Please, be serious.
Except…professors spent a long time ignoring the US News rankings. We finally had to pay attention when everyone else started putting so much weight on them. Law faculty are not leaders when it comes to rankings; we are followers. If students and alumni care about ATL’s rankings, we eventually will pay attention.
University Administrators
People outside academia may not realize how much credence university presidents, provosts, and trustees give the US News rankings. The Board of Trustees at my university has a scorecard for academic initiatives that includes these two factors: (1) rank among public colleges, as determined by USN, and (2) number of graduate or professional programs in the USN top 25. On the first, we aim to improve our rank from 18 to 10. On the second, we hope to increase the number of highly ranked departments from 49 to 65.
These rank-related goals are no longer implicit; they are quite explicit at universities. And, although academic leaders once eschewed US News as a ranking source, they now embrace the system.
Presidents and provosts are likely to laugh themselves silly if law schools clamor to be judged by Above the Law rather than US News. At least for the immediate future, this will restrain ATL’s power within academia.
On the other hand, I remember a time (in the late 1990’s) when presidents and provosts laughed at law schools for attempting to rely upon their US News rank. “Real” academic departments had fancier ranking schemes, like those developed by the National Research Council. But US News was the kudzu of academic rankings: It took over faster than anyone anticipated.
Who’s to say that the Above the Law rankings won’t have their day, at least within legal education?
Meanwhile
Even if US News retains its primary hold on academic rankings, Above the Law may have some immediate impact within law schools. High US News rank, after all, depends upon enrolling talented students. If prospective students pay attention to Above the Law–as I predict they will–then law schools will have to do the same. To maintain class size and student quality, we need to know what students want. For that, Above the Law offers essential information
More on Grade and Scholarship Quotas
May 5th, 2015 / By Deborah J. Merritt
In a response to this post, Michael Simkovic wonders if I believe “it is inherently immoral to limit ‘A’ grades to students whose academic performance is superior to most of their peers, since an ‘A’ is simply a data point and can be replicated and distributed to everyone at zero marginal cost.”
Not at all. I believe in matching grades to performance, and I don’t hesitate to do that–even when the performance is a failing one. Ironically, however, the mandatory grading curve produces results that are quite troubling for those of us who want grades to reflect performance. Constrained by that type of grading system, I have given A’s to students who performed worse than their peers. Let’s consider that problem and then return to the subject of conditional scholarships.
A Tale of Two Tort Classes
To accommodate institutional needs, I once taught two sections of the first-year Torts class. I used the same book and same lecture notes in both classes. We covered the same material in each class, and I drafted a single exam for the group. Following my practice at that time, it was a 4-hour essay exam with several questions.
I graded the exams as a single batch, without separating them into the two sections. Again following my usual practice, I used grading rubrics for each essay. I also rotated batches of essays so that no exam would always suffer (or benefit) from being in the first or last group graded. After I was done, I plotted all of the scores.
I discovered that, if I applied a single curve to both sections, all of the A grades would fall in one section. Our grading rules, however, required me to apply separate curves to each section. So some students in the “smart” section got B’s instead of the A’s they deserved. Some students in the other section got A’s instead of the B’s they deserved. When I discussed my problem with the Associate Dean, he did allow me to use the highest possible curve for the first section, and the lowest possible one for the other section; that ameliorated the problem to some extent. In the end, however, the letter grades did not match performance.
Several other professors have recounted similar experiences to me. It doesn’t happen often, because it is uncommon for a professor to teach two sections of a first-year class. But it does happen. In fact, when professors teach multiple sections of the same course, section differences seem common. If these differences occur when we can readily detect them (by teaching two sections), they probably occur under other circumstances as well.
I don’t think this drawback to mandatory curves rises to the level of immorality. Students understand the system and benefit from some of its facets. The curve forces professors to award similar grades across courses and sections, moderating both curmudgeons and sycophants. As Professor Simkovic notes, the system also restrains creeping grade inflation. A mandatory curve, finally, offers guidance to professors who lack an independent sense of what an A, B, or C exam looks like in their subject.
I tell this story to make clear that a mandatory curve does not necessarily reward achievement. On the contrary, a mandatory curve can give B’s to students “whose academic performance is superior to most of their peers” as measured through blind grading. I know it can happen–I’ve done it.
Commpetition
It feels silly to say this, given my position on deregulating the legal profession, but I do not believe (as Professor Simkovic suggests) that “competition for scarce and valuable resources is inherently immoral.” Competition within an open market usually leads to beneficial results. Competition within a tournament guild, on the other hand, leads to inefficiencies and other harms.
Back to Conditional Scholarships
Returning to our original point of disagreement, I think Professor Simkovic misconstrues college grading patterns–especially in STEM courses. Those courses are not, to my knowledge, graded on a mandatory curve. Instead, the grades correspond to the students’ demonstrated knowledge. The college woman I mention in the primary post was a STEM major; she was no stranger to tough grading. She, however, was accustomed to a field in which her efforts would be rewarded when measured against a rigorous external standard–not one in which only seven students would get an A even if eight performed at that level.
Once again, law school mandatory curves are not “inherently immoral.” They do, however, differ from those that are “routinely used by other educational institutions and state government programs.” Our particular grading practices change the operation of conditional scholarships in law school. At college, a student with a conditional scholarship competes against an external standard. If she reaches that goal, it doesn’t matter how many other students succeed along with her.
In law school, a student’s success depends as much on the efforts of other students as on her own work. If conditional scholarships were in effect when I taught those two sections of Torts, it is quite possible that a student from the “smart section,” who objectively outperformed a student from the “other section,” would have lost her scholarship–while the less able student from the “other section” would have kept her award. I do not think college students understand that perverse relationship between our grading system and conditional scholarships–and neither Professor Simkovic nor Professor Telman has cited any evidence that they do.
Let the Market Rule
As I stated in my previous post, the ABA’s rule has cured two of the ills previously associated with high-forfeiture conditional scholarships. Schools may continue to offer them, subject to that rule. It appears that schools differ widely in the operation of these programs. Some offer only a few conditional scholarships, with rare forfeitures. Others offer a large number, with many forfeitures. Still others lie in between.
The market will soon tell us which of these paths enhance student enrollment. Now that prospective students know more about how conditional scholarships work at law schools, will they continue to enroll at schools with high forfeiture rates? Time will tell.
Hunger Games
May 4th, 2015 / By Deborah J. Merritt
Professors Michael Simkovic and D.A. Jeremy Telman have both written posts (here and here) praising the use of conditional scholarships for law students. Neither opposes the ABA’s recent rule, which requires greater transparency about forfeiture rates for these scholarships, but neither sees much value in the rule. Telman doubts that disclosure will affect student decisions, while Simkovic suggests that any concern over conditional scholarships was “yet another example of critics applying a double standard to paint law schools in the worst possible light.”
In reaching these conclusions, the posts compare law school conditional scholarships to similar awards at the college level. In the latter context, conditional scholarships promote matriculation, academic achievement, and on-time graduation. Neither writer, however, acknowledges a key distinction between colleges and law schools that administer these awards. At most colleges, conditional scholarships encourage all recipients to succeed. It is possible for all scholarship students to obtain the GPA and credit hours required to maintain the scholarship–and the college hopes that they will.
Some law schools play a very different game with conditional scholarships. These schools impose conditions that, because of mandatory curves in required first-year courses, a significant percentage of recipients will fail to meet. It is mathematically impossible for all scholarship recipients to keep their awards at these schools, and the percentage who will fail is quite predictable to the schools. These are hunger-game scholarships.
How Many Losers?
According to the ABA’s website, 124 law schools awarded conditional scholarships in academic year 2013-14. Eight of those programs were quite small, awarding fewer than 10 conditional scholarships and imposing almost no forfeitures. Sixteen schools, however, showed both a substantial number of conditional scholarships and a forfeiture rate of 50% or higher. At another 26 schools, the forfeiture rate fell between one-third and one-half.
Did these schools do a “poor job predicting which admitted students would excel in law school,” as Telman suggests? Probably not, unless they are perpetually bad at predictions. Forfeiture rates were high at most of these schools in 2011-12 and 2012-13 as well as in 2013-14. The other possibility that Telman suggests seems much more likely: These “law schools were playing a US News game, trying to get higher LSATs into the door without having to offer them three-year scholarships.”
Is there anything wrong with that? I see three problems. Two of them have been alleviated by the ABA rule, but I describe them to underscore the importance of that rule.
Information Asymmetry
The ABA rule addressed a marked information asymmetry between applicants and law schools. As Telman and Simkovic note, many colleges operate conditional scholarship programs and students understand those programs. That, however, was part of the problem. Law school grading is very different from college grading, and many students didn’t understand the difference when they accepted conditional scholarships.
A few years ago, a bright college woman was part of a group of law students I encountered at a coffee shop. The college student was interested in attending law school, and all of us encouraged her ambitions. Then the college student raised a question: “I don’t understand why law school is so competitive,” she asked. “It’s not like there’s a quota on the number of A’s or anything.”
The rest of us inhaled deeply as we prepared to explain the facts of law school life to her. In fact, there is a quota on A’s in first-year (and many upper-level) courses. There’s also a quota on B’s. And because of those quotas, there’s an effective quota on the number of students who will be able to maintain conditional scholarships.
The law schools understand the mathematics of this quite well, but many college students don’t. They are more accustomed to objective grading scales (85% of correct answers merits a B, no matter how many students reach that score) or very loose curves. Even a student who read the Wikipedia entry on law school grading curves, which Telman touts, wouldn’t understand the intersection of the curve with an all-required first year and conditional scholarships. (And shouldn’t a good college education teach them to distrust Wikipedia?)
The ABA rule has greatly reduced this asymmetry. Will it make a difference to prospective students? Professor Telman thinks not, but I disagree. We’ll see how application and matriculation rates work out at schools with the highest scholarship forfeiture rates.
Hidden Agendas
The second defect in conditional scholarship programs is the extent to which they allow schools to claim they are serving students when they are really serving their own interests. The goals cited by Professors Telman and Simkovic (i.e., encouraging students to study hard and to finish their degrees on time) are largely irrelevant in law school. Our students already work hard and finish their degrees on time. Law review membership, academic prizes, and employer preferences provide plenty of motivation for those goals.
If law schools truly wanted to assure hard work in law school, they wouldn’t award conditional scholarships to first-years. Instead, they would save some of their scholarship money to hand out as graduation prizes for the students who earned the highest grades during their final “slack off” semester of law school.
Similarly, if law schools want to encourage students to try law school with little risk, there are better options than high-forfeiture conditional scholarships. We could, for example, award a master’s degree at the end of the first year. The promise of that degree, with its opt-out option, might draw more students to law school than conditional scholarships.
Conditional scholarship programs with high forfeiture rates have one overriding goal: to secure the highest possible revenue for the school, along with the best possible LSAT and UGPA profiles. This is a game in which the odds greatly favor the house and, as long as schools could hide their forfeiture rates, it was unlikely that bettors would properly estimate those odds.
The ABA’s disclosure rule, along with the discussion prompting it, has made clear that many law school conditional scholarship programs exist to benefit schools, not students. When academic institutions engage in self-interested behavior, they should be upfront about those motives–not paper over their goals with proclamations of student interest.
Promoting Competition
My final objection to high-forfeiture conditional scholarships is one that the ABA rule did not cure. These scholarships increase the stress and competitiveness of an already stressful environment. Stress is not something that we should just “get over” or that students should “[wo]man up to.” Stress makes people sick, angry, and prone to substance abuse or mental illness. It can also impair their professional judgment, hurting both clients and lawyers.
I serve on the board of directors of the Ohio Lawyers Assistance Program (OLAP). That’s an organization, similar to ones in most states, that provides confidential assistance to law students or lawyers with alcohol, drug, or mental health problems. The demand for OLAP’s services is high–and we only see the people who realize they have a problem and are willing to seek treatment.
Many aspects of law practice are stressful. Working long hours is stressful. Responding to unbalanced clients is stressful. Losing a dispute is stressful. Unpaid bills are stressful. We don’t need to add to these stresses by increasing the stress level in law school. Contrary to some popular conceptions, increased stress doesn’t improve your ability to handle stress; it just makes you more likely to fall apart.
Helping Ourselves
I see little indication that conditional scholarships help students. The same money distributed evenly among recipients probably would better serve student interests. I’m not sure that these scholarships will even continue to serve law school interests. Law school finished sixth in a recent ranking of graduate degrees, not because our salaries are lower than those in the top five fields but because our stress level is higher. Some very smart people don’t want to waste hours dealing with manufactured stress.
In fact, that college student I mentioned earlier? She decided to take her career ambitions and graduate tuition dollars elsewhere.
Two Hemispheres
May 2nd, 2015 / By Deborah J. Merritt
More than thirty years ago, John Heinz and Edward Laumann published a pivotal study of the legal profession. Their book, Chicago Lawyers, focused on lawyers working within Chicago’s city limits, but the findings were widely accepted as representative of the profession.
The study’s primary conclusion was simple, but insightful. Heinz and Laumann concluded that a “fundamental distinction” divided lawyers into “two hemispheres.” One group of lawyers “represent[ed] large organizations (corporations, labor unions, or government),” while the other “work[ed] for individuals and small businesses.” The division between these two was so sharp that “[m]ost lawyers reside exclusively in one hemisphere or the other and seldom, if ever, cross the equator.” P. 319.
In addition to highlighting this bifurcation of the legal profession, Heinz and Laumann noted the strong status differences between them. The hemispheres were not equal in status. Instead, lawyers viewed the “organizations” side of the profession as much more prestigious than the “individual” one.
Heinz and Laumann, joined by two other prominent sociologists, repeated their study in 1995. That research, titled Urban Lawyers, concluded that this status difference remained. Indeed, it had grown even sharper. Lawyers viewed securities law as the most prestigious practice area in both 1975 and 1995; divorce law was at or near the bottom in both years. The percentage of lawyers viewing securities law as at least “above average” in prestige, however, grew from 75% to 85% over those two decades. The percentage according that distinction to divorce law shrank from 9% to 4%.
That’s a tremendous gulf.
The Two Hemispheres Today
No one, to my knowledge, has replicated Heinz and Laumann’s study for the most recent generation of lawyers. The After the JD (AJD) project, for example, did not ask subjects about the perceived prestige of practice areas. Every indication, however, suggests that status differences are alive and well in our profession.
In a number of online forums, prospective law students discuss whether particular law schools will secure them BigLaw positions or leave them stranded in “shitlaw.” These are more colorful descriptors than the ones Heinz and Laumann used, but I suspect they reflect a similar categorization of practice fields.
Legal educators often reflect the same attitude–although, again, with more polite language. Even when we note the drawbacks of BigLaw practice, we tend to praise jobs in smaller firms that serve corporate clients. Or we tout public interest work, which employs very few attorneys and is not a realistic option for most law graduates. How many law professors talk enthusiastically about representing divorce clients, workers’ compensation claimants, personal injury plaintiffs, and criminal defendants?
Some of us might say, “but that’s not my field–I can’t praise those practice areas because I’m not familiar with them.” But that’s just as true of the corporate work done by BigLaw firms; many of us don’t teach in those areas either. Yet we can all make appropriate comments about BigLaw jobs, congratulate students on landing those positions, and discuss aspects of that market. Very few of us know what social security lawyers do or how much they earn.
Implications
The existence of these two hemispheres has implications for the profession, the public, and the legal academy. Heinz and Laumann noted one of the effects on the profession. They found that law was a less cohesive profession than other professions like medicine. Lawyers in each hemisphere tended to socialize with one another, rather than with lawyers from the other side of the profession. In addition, the two sides often had conflicting professional goals. Rules that would help one hemisphere often hurt the other.
Heinz and Laumann also speculated that the two hemispheres affected public perceptions of the legal system. The two very different “bars,” they suggested, promoted a public perception that corporations and the government receive a different type of justice than individuals do. This part of their work is speculative–they did not study public perceptions directly–but it is an interesting thought to pursue.
The implications for the legal academy are equally profound. I hope to explore those impacts in a series of posts. Here, though, are a few hints of my views on this:
1. Lawyers working in the two hemispheres may benefit from somewhat different types of education, but the differences are much smaller than many observers believe.
2. Both hemispheres involve mundane, repetitive tasks, as well as intellectually challenging work. Similarly, effective education of “second hemisphere” lawyers is just as intellectually demanding as that for “first hemisphere” ones.
3. Thinking about the needs of second hemisphere clients will help us improve the educational experience for all lawyers. The most important changes we can make in law school, for all clients and lawyers, involve reducing our focus on appellate decision making and enhancing our attention to client interaction. This means much more than adding clinics to the third year; it involves reshaping even parts of the first year.
4. Second-hemisphere law supports just as much scholarship–including interdisciplinary and theoretical work–as first-hemisphere law. Embracing better educational opportunities for lawyers who serve individual clients does not mean abandoning scholarship.
5. Society needs law schools to educate students to serve the second hemisphere. It does not need law schools to educate students for JD advantage jobs.
6. On average, second-hemisphere jobs pay less than first-hemisphere ones. Legal educators have to be candid about this to themselves, applicants, students, and graduates. Law school tuition must take account of these differences, and we can do that without abandoning scholarship.
7. Lawyers, clients, and society would benefit from ending the sharp status lines that mark our profession. I’m not idealistic enough to think we can erase those lines entirely, but we should try to soften them. One way to do that is to reduce the status hierarchies we create within and between our own student bodies.
That’s a healthy agenda, but I’ll try to fulfill it.
Needing Law Schools
March 22nd, 2015 / By Deborah J. Merritt
I agree entirely with Noah Feldman that society needs law schools. He couldn’t have said it better. This, however, is exactly why law schools need to fix their financial model. Most schools lack the big endowments of Harvard and other elite schools. Students, meanwhile, are increasingly unwilling to pay so much more tuition than Feldman did in the 1990’s or I did in the 1970’s. We need to keep asking: Why does it cost so much more today to learn what the law “can be”?
I learned a lot about what the law can be from Ruth Bader Ginsburg, my constitutional law professor at Columbia in 1979. I also learned from Herbert Wechsler, author of the much-cited article on “neutral principles” in constitutional law; William Carey, one of the New Deal architects and an early chair of the SEC; E. Allan Farnsworth, Reporter for the Restatement (Second) of Contracts; Maurice Rosenberg, one of the earliest legal scholars to apply social science research to legal problems; and many others. Why were all of these luminaries able to teach me and my classmates for so much less tuition than Columbia and other schools demand today?
In part, they earned less. I know that, because I am the daughter of yet another Columbia professor from that era: William K. (“Ken”) Jones. Our family did just fine financially, but we didn’t have the affluence that law professors enjoy today. Another explanation rests on the enormous number of staff members that law schools now need to operate. Communications staff, admissions staff, development staff, student services staff . . . . Each seems indispensable in the modern law school, but how many contribute to our mission of teaching students and others what the law can be?
I doubt that it’s possible to unwind the contemporary law school, to dismiss all of the staff, and go back to an earlier, simple world. Although it’s a charming notion, isn’t it? We could simply post our lower tuition, admit students who apply (without spending time marketing to them), teach them, and send them into the world knowing something about both what the law is and what it can be. Meanwhile, we would publish and engage in law reform efforts–as Ginsburg, Wechsler, Carey, and the others did–while teaching four courses a year.
I know that’s unlikely to happen, so we’ve got to find other ways to fix the financial model. Shifting the first year of law school to the undergraduate curriculum makes sense to me. Let’s teach more people about both the power of law and what it can be. Meanwhile, let’s lower tuition for those who will actually practice law. We, as professors, can teach people what the law can be–but our graduates are essential to make those changes happen.
Scholarship: Cost and Value
March 12th, 2015 / By Deborah J. Merritt
Critics of legal education raise two key questions about our scholarship: (1) How much value does it offer? And, (2) do law schools have to spend so much money to produce that value?
The answer to the second question is easy: No. We used to produce plenty of superb scholarship with typewriters and four-course teaching loads. Now that we have laptops, tablets, high-powered statistical software, and 24/7 online libraries, our productivity has leaped. Law schools could easily restore teaching loads to four courses a year while still facilitating plenty of good research. The resulting reduction in faculty size could help fund scholarships and reduce tuition.
The answer to the value question is harder. Do we mean immediate pay-off or long term influence? Do we care about value to judges, legislators, practicing attorneys, clients, teachers, students, or some other group? Does each article have to demonstrate value? Or do we recognize that trial and error is part of scholarship as well as other endeavors?
Those are difficult questions and they deserve a series of posts. For now, I’ll limit my discussion to a recent paper by Jeffrey Harrison and Amy Mashburn, which has already provoked considerable commentary. I agree with some of Harrison and Mashburn’s observations, but the empirical part of their paper goes badly astray. Without better method, their conclusions can’t stand. In fact, as I note below, some of their findings seem at odds with their recommendations.
Measuring Citation Strength
Harrison and Mashburn decided to measure the strength of citations to scholarly work, rather than simply count the number of citations. That was an excellent idea; scholars in other fields have done this for decades. There’s a good review of that earlier work in Bornmann & Daniel, Do Citation Counts Measure? A Review of Studies on Citing Behavior, 64 Journal of Documentation 45 (2008). (By the way, isn’t that an amazing name for a journal?)
If Harrison and Mashburn had consulted this literature, they would have found some good guideposts for their own approach. Instead, the paper’s method will make any social scientist cringe. There’s a “control group” that is nothing of the sort, and the method used for choosing articles in that group is badly flawed.* There is little explanation of how they developed or applied their typology (written protocol? inter-rater agreement? training periods?). Harrison and Mashburn tell us only that the distinctions were “highly subjective,” the lines were “difficult to draw,” and “even a second analysis by the current researchers could result in a different count.” Ouch.
Is it possible to make qualitative decisions about citation strength in a thoughtful, documented way? Absolutely. Here’s an example of a recent study of citation types that articulates a rigorous method: Stefan Stremersch, et al., Unraveling Scientific Impact: Citation Types in Marketing Journals, 32 Int’l Journal of Research in Marketing 64 (2015). Harrison and Mashburn might choose a different design than previous scholars, but they need to develop their parameters, articulate them to others, and apply them in a controlled way.
Influence and Usefulness
Harrison and Mashburn conclude that most legal scholarship “is not regarded as useful.” Even when a judge or scholar cites an article, they find, most of the cited articles “serve no useful function in helping the citing author advance or articulate a new idea, theory or insight.” Application of this standard, however, leads to some troubling results.
The authors point, for example, to an article by John Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257 (2003). A court cited this article for the seemingly banal fact that “the federal government, the military, and thirty-three of the thirty-eight states with the death penalty have authorized the use of victim impact evidence in capital sentencing.” Harrison and Mashburn dismiss this citation as “solely to the descriptive elements of the article.”
That’s true in a way, but this particular “description” didn’t exist until Blume researched all of that state and federal law to create it. The court wanted to know the state of the law, and Blume provided the answer. This answer may not have “advance[d] . . . a new idea, theory or insight,” but most cases don’t require that level of theory. Disputes do require information about the existing state of the law and Blume assembled information that helped advance resolution of this dispute. Why isn’t that a worthwhile type of influence?
I suspect that judges and practitioners appreciate the type of survey that Blume provided; analyzing the law of 40 jurisdictions requires both time and professional judgment. Blume, of course, did more than just survey the law: he also pointed out crevices and problems in the existing law. But dismissing a citation to the survey portion of his article seems contrary to the authors’ desire to create scholarship that will be more useful.
A reworked method might well distinguish citations to descriptive/survey research from those that adopt a scholar’s new theory. Asking scholars to limit their work to the latter, however, seems counter productive. A lot of people need to know what the law is, not just what it might be.
Judges and Scholars
One statistic in the Harrison and Mashburn article blew me away. On page 25, they note that 73 out of 198 articles from their “top 100” group of journals were cited by courts. That’s more than a third (36.9%) of the articles! I find that a phenomenally high citation rate. I know from personal experience that judges do pay attention to law review articles. When I clerked for Justice O’Connor, for example, she asked us to give her a shelf of law review articles for each of the bench memos we wrote. She didn’t want just our summaries of the articles–she wanted the articles themselves.
But I never would have guessed that the judicial citation rate was as high as 36.9% for professional articles, even for journals from the top 100 schools. At least in judicial circles, there’s a big drop-off between learning from an article and citing the article. Most judges try to keep their opinions lean, and there’s no cultural pressure to cite scholarly works.
I’m not sure how to mesh the judicial citation statistic with the tone of Harrison and Mashburn’s article. More than a third sounds like a high citation rate to me–as does the one quarter figure for journals in the 15-100 group.
Ongoing Discussion
Harrison and Mashburn urge critical debate over the value and funding of legal scholarship, and I back them all the way on that. I wrote this post in that spirit. As I note above, I don’t think law schools need to spend as much money as they do to produce strong levels of excellent scholarship. I also applaud efforts to replace citation counting with more nuanced measures of scholarly value. But we need much stronger empirical work to examine claims like the ones advanced in this paper. Are Harrison and Mashburn right that most legal scholarship “is not regarded as useful”? I don’t know, but I was put off by strong statements with weak empirical evidence.
__________________________
* Harrison and Mashburn chose the first article from each volume. That’s a textbook example of non-random selection: the first article in a volume almost certainly differs, on average, from other articles.
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