Professional Status
May 11th, 2015 / By Deborah J. Merritt
I wrote recently about the two hemispheres of law practice. Lawyers view some practice areas (like securities law) as considerably more prestigious than others (like divorce law). This division has several implications for law schools: (1) students prefer schools that will lead to high-prestige practices; (2) schools try to satisfy that preference, both to attract students and to enhance their own intra-professional prestige; (3) schools assiduously avoid any reputation of producing low-status practitioners.
Before exploring these implications in greater depth, let’s examine what factors contribute to status differences in law practice. In other words, what marks a practice area as high status?
I rely in this discussion on the work of several sociologists, including the Heinz and Laumann studies of Chicago lawyers in 1975 and 1995. I also found the work of Andrew Abbott, an expert on the sociology of the professions, particularly helpful. Like Heinz, Laumann, and Abbott, I focus here on characteristics of intraprofessional status–that is, the factors that elicit respect from other lawyers.
Income
Income shows a strong correlation with status in American society, and this is true within the legal profession. On average, securities lawyers earn more than divorce lawyers. A law graduate joining a BigLaw firm will earn a much higher starting salary than one joining a family law practice.
Money, however, only partly explains status differences in law. Judges hold high status, although they earn less than most BigLaw partners. Some personal injury and divorce lawyers earn very high incomes, but the profession accords them less respect than it gives more modestly paid corporate lawyers. Income counts, but it doesn’t tell the whole story.
Power
Power also correlates with prestige. The mega-deals handled by corporate lawyers can affect billions of dollars and millions of people. Judges have the power to decide all types of disputes, altering the fate of both individuals and organizations. Divorce lawyers, in contrast, usually affect the lives of a single family.
Once again, however, power doesn’t completely explain professional prestige. Corporate lawyers help big deals proceed or founder, but they largely follow their client’s bidding. The client, rather than the lawyer, holds the authority to determine the terms of the deal. A lobbyist, state legislator, or legislative aide may have more power than a judge to affect the course of the law, but the judge commands more respect among lawyers. Prosecutors are some of the most powerful lawyers, because of their unilateral power to drop, enhance, or settle criminal charges, but their professional status falls somewhere in the middle of the pack.
If neither income nor power fully explains professional prestige, what does?
Professional Purity
Abbott suggests that “professional purity” explains status distinctions in law, medicine, and other professions. By professional purity, he means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981). Other cites in this post are from the same article.)
To me, this distinction explains quite a bit about status differences in law practice–as well as about the ways in which we support those distinctions in law schools. Appellate judges hold very high status because they deal purely with legal principles. The parties and trial judge have already sorted through the facts, and the rules of appellate review tell them which facts to assume. Professional norms, meanwhile, dictate that they should decide the case based on legal principles, not on personal predilections, public pressure, or other manifestations of “human complexity.”
Trial judges also hold high prestige. They’re exposed to more facts than their appellate colleagues, but legal principles (the rules of evidence) tell them how to sort those facts. The closer a trial judge comes to human messiness, as in municipal courts or family law dockets, the lower the judge’s prestige.
Legislators and their aides receive respect from the legal profession because of their ability to define legal principles. From a lawyer’s perspective, however, their work is not as prestigious as the work of judges: Legislators must balance the demands of constituents, donors, and lobbyists. That task is not as legally “pure” as the judge’s duty to assess different precedents.
Into the Trenches
The same considerations inform the professional status of practicing lawyers. We view corporate lawyers as manipulating legal principles to accomplish the client’s goal. Indeed, we assume that corporate lawyers do some of the most “legally” powerful work in the profession: They examine statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business. Although the corporate lawyer must understand the client’s interest, the lawyer works primarily with legal principles to further that interest. Note that when corporate clients complain about their lawyers, the complaint often focuses on the lawyer’s failure to “immerse herself in the facts of my business.” High prestige lawyers resist exactly that type of immersion.
When BigLaw firms must deal with messy facts, as in due diligence or discovery work, they increasingly delegate those tasks to low-status lawyers like staff attorneys, contract lawyers, and lawyers employed by outsourcing companies. These practices preserve the most prestigious, legally “pure” work for high-status attorneys in the firm.
Divorce lawyers, personal injury lawyers, and criminal defense lawyers, in contrast, are hopelessly immersed in the “muck of feelings,” facts, and extralegal considerations. Abbott, supra at 824. Students in my criminal defense clinic quickly learn that it is more important to persuade the client to find a job (which will impress the prosecutor and elicit a more favorable plea offer) than to draft a motion to exclude evidence on Fourth Amendment grounds (unless police conduct clearly was improper).
Divorce and personal injury lawyers, likewise, deal daily with the human drama of betrayal, lost love, accidents, and physical injuries. They use legal principles to pursue advantageous outcomes, and sometimes they argue for novel interpretations of the law. Most of their work, however, is highly fact dependent.
Looking Forward
I hope to use Abbott’s concept of “professional purity,” along with other status markers, to explore some of the ways in which we structure the law school curriculum. I also plan to draw upon this concept to examine the ongoing debate about the careers available to law school graduates. Meanwhile, I welcome your comments about status distinctions generally and Abbott’s concept in particular.
Many of us in the United States are uncomfortable talking about status, because we view ourselves as an egalitarian “class less” society. Yet it seems clear that there are status differences in the jobs that law graduates perform. Without talking about those differences, we can’t resolve some of the open issues in both the law school curriculum and career prospects for lawyers.
New York Adopts the Uniform Bar Exam
May 5th, 2015 / By Deborah J. Merritt
New York’s highest court announced today that it will begin administering the Uniform Bar Exam (UBE) in July 2016. In addition to passing the two-day UBE, applicants will have to complete an online course about NY law and pass an online exam based on that content.
New York’s move almost certainly will prompt other states to follow suit. Within a few years, we are likely to have a national bar exam. What will this mean for new lawyers? I offer some initial thoughts below.
Positives
1. The Uniform Bar Exam increases mobility for new lawyers. Passing the UBE in one state does not guarantee admission in a different state, because states can select different passing scores. States may also require applicants to complete a state-specific exam. The UBE, however, greatly eases interstate migration for newly admitted lawyers. This is particularly important in a tight job market.
[Adoption of the UBE doesn’t matter as much for experienced lawyers, because most states allow lawyers to “waive in” to their bar after five years of experience in another jurisdiction.]
2. This increased mobility is especially important to women lawyers. My study of new lawyers admitted to the Ohio bar in 2010 found that women were significantly more likely than men to move out of state within their first five years of practice. Almost one fifth of the women (18.4%) left Ohio after gaining bar admission, while just 14.1% of the men did so.
3. By testing general principles, rather than the law of a particular state, the UBE better fits the material that students cover in law school. Students may have to spend somewhat less time preparing for the bar. Even if a state tests separately on local law, as NY plans to do, that testing will occur at a different time.
4. The National Conference of Bar Examiners (NCBE), which creates all portions of the UBE, is a large organization with the resources to develop and pretest sensible questions. Its essay questions may be more fair than ones developed by state bar examiners.
Negatives
On the other hand, there are several drawbacks to the UBE. As a long-time supporter of a national bar exam, I am more troubled by these issues than I once thought I would be:
1. Although mobile lawyers will benefit from the UBE’s portability, those who remain in-state will have to jump more hurdles than ever to gain bar admission. On top of a two-day bar exam, they will have to complete an online course about NY law and pass a 50-question multiple-choice test on that law. Our school’s director of bar support, who has coached students taking the NY bar, says that the NY multiple-choice test is no picnic.
2. Bar passage could become even more onerous if NY adds an experiential component to its testing. The advisory committee that endorsed adoption of the UBE also recommended creation of a new “task force to study whether experiential learning may be quantified as a licensing requirement or whether some other demonstration of skills acquisition should be required for licensing.” I like the idea of measuring practice skills before bar admission, but I would replace some of our written exams with the experiential component. Adding yet another layer to proficiency testing imposes burdens on new lawyers that more senior ones did not face.
3. Multiple-choice questions make up half the UBE score, a higher proportion than some states currently allot to those questions. Multiple-choice questions have their place, but I would rather test new lawyers on performance tasks like those in the MPT. To me, the MBE is even further removed from practice realities than any law school exam. A closed-book exam covering seven different, very broad subject areas does little but test an applicant’s ability to cram large amounts of material into memory.
4. In addition to my general concern about multiple-choice bar exams, some bar studies find that women (on average) score slightly higher than men on essay questions and performance items, while men (on average) score slightly higher on the MBE. When the MBE accounts for 35% (California) or 40% (Texas) of the exam, these differences balance out, creating virtually identical pass rates for men and women. Is it appropriate to increase the weight accorded multiple-choice items if we know that this shift is likely to favor one gender?
5. NCBE was remarkably unresponsive in dealing with the possible impact of last summer’s ExamSoft meltdown. The organization has also become less transparent, withholding information (such as raw scores) that it used to disclose. Concentrating even more power in one organization is risky. Who will hold NCBE accountable? What pressure will it feel to maintain high-quality services?
Other Thoughts
I continue to consider the advantages and disadvantages of NY’s move to the UBE, and will update this post as other points emerge. Please add your own thoughts in the comments. A national bar exam seems long overdue, but aspects of this shift concern me. As other states react to NY’s move, can we find ways to preserve the advantages of a national bar exam while assuring that (a) the exam tests proficiencies and knowledge that matter; (b) the exam does not create additional burdens for bar applicants; and (c) there is appropriate oversight of the organization administering the exam?
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.
Comparisons
April 29th, 2015 / By Deborah J. Merritt
Michael Simkovic has posted some comments on my study of recent law graduates in Ohio. I had already benefited from his private comments, made some changes to my paper, and thanked him privately. When he reads the revised paper, posted several weeks ago, he’ll discover that I also thank him in the acknowledgement footnote–with the disclaimer that he and my other readers “sometimes disagree with one another, as well as with me, which made their comments even more helpful.”
For those who are interested, I note here my responses to the critiques that Professor Simkovic offers in his blogpost. Beyond these comments, I think readers can judge for themselves how much my study helps them understand the market for law school graduates in their part of the world. Some will find it relevant; others will not. As I’ve already noted, I hope that others will collect additional data to complement these findings.
Here and There
Professor Simkovic’s primary criticism is that the Ohio legal market is not representative. I discussed that issue in a previous post, so will add just a few thoughts. It is true that the wages for Ohio lawyers fall below the national average (both mean and median), but Ohio’s cost of living is also below average. Our index is 94.1 compared to 128.7 in California, 133.3 in New York, and 141.6 in the District of Columbia. On balance, I don’t see any reason to dismiss Ohio as a representative state for this reason.
Lawyers constitute a smaller percentage of the Ohio workforce than of the national one, but that is not a particularly meaningful indicator. Oklahoma, with 4.48 lawyers per 1,000 jobs, comes very close to the national average of 4.465, but that would not make Oklahoma the best choice for a study of new lawyers’ employment patterns.
Ohio has a disproportionate number of schools that rank low in the US News rankings: We have one school in the top 50, two in the second tier, three in the third tier, and four among the unranked schools. I discuss the implications of this in my study and show how law school rank affects employment patterns within the state. Like other studies, I find strong associations between law school rank and job type.
It is hard to know how this issue affects my overall findings. Professor Simkovic suggests that low-ranked schools create a sub-par job market with depressed outcomes for graduates. Just the opposite, however, could be true. Ohio individuals and businesses have the same legal needs as those in other states and, as noted above, we do not have as many lawyers per worker as some states. It is possible, therefore, that graduates of low-ranked schools have better employment opportunities than graduates of similar schools in other states. Similarly, the graduates of our first- and second-tier schools may fare better than graduates of similar schools in states with local T14 competitors.
The results of my Ohio study undoubtedly generalize better to some markets than to others. Similarly, the results may interest educators at some schools but not others. I doubt that my study will influence decisions at top-twenty law schools. At other schools, however, I think professors and deans should at least reflect upon the findings. Most of us graduated from elite law schools 10, 20, 30, or even 40 years ago. Our impressions of the employment market were molded by those experiences, and it is very hard to overcome that anchoring bias. I hope that my results at least provoke thought and further research.
Now and Then
Professor Simkovic and others also criticize my attempt to compare the 2014 Ohio data with national data gathered by NALP and the After the JD (AJD) study. I agree that those are far from perfect comparisons, and I note the limits in the paper. Unfortunately, we don’t have perfect data about employment patterns in the legal profession. In fact, we have surprisingly little data given the importance of our profession.
Some of the data we do have is out-of-date or badly skewed. Professor Simkovic and others, for example, cite results from the AJD study. That study tracks the Class of 2000, a group of graduates with experiences that almost certainly differ from those of more recent graduates. The Class of 2000’s history of debt repayment, for example, almost certainly will differ from that of the Class of 2010. In 2000, the average resident tuition at public law schools was $7,790–or $9,864 in 2010 dollars. By 2010, tuition had more than doubled to $20,238.
Rather than rely on outdated information, my study begins the process of providing more current data. (I don’t study tuition in particular; I note that example because Professor Simkovic uses AJD for that purpose in his post.) In providing that information, I also make comparisons to the baseline data we have. Although the prior data stem from different populations and use somewhat different methods, some of the differences are so large that they seem likely to reflect real changes rather than methodological artifacts.
AJD, for example, found that 62.1% of the class of 2000 worked in law firms three years after graduation. At a similar point (4.5 years post graduation), just 40.5% of my population held positions in firms. Some of that difference could stem from method. AJD relied upon survey responses, and the responses showed some bias toward graduates of highly ranked schools. AJD also examined a national sample of lawyers, while I looked only at Ohio. A national sample, however, is not a New York or California sample. AJD included lawyers from Tennessee, Oklahoma, Utah, and Oregon, as well as some from the larger markets. Ohio will not precisely mirror those averages, but I doubt the difference is large enough to account for the 20-point drop in law firm employment.
Assumptions About Non-Respondents
In my study, I tracked employment outcomes for all 1,214 new lawyers who were admitted to the Ohio bar after passing one of the 2010 exams. Using internet sources I was able to confirm a current (as of December 2014) job for 93.7% of the population members. For another 1.6% I found affirmative indications that the population member was not working. I.e., the person had noted online that s/he was jobseeking or that s/he had decided to leave the workforce to care for a family member.
That left 4.7% of the population for which I lacked information. For the reasons discussed on pp. 15-17 of the paper, I elected to treat this group as “not working.” There are some licensed lawyers who hold jobs without leaving any internet trace, but it’s a difficult task. For starters, Ohio’s Supreme Court requires all bar members to notify the court of their current office address and phone; the court then publishes that information online.
In addition, most working lawyers want to be found on the internet. With employer websites, LinkedIn, and Google searches, I found most of the population members very easily. The ones I couldn’t find became intriguing challenges; I returned to them repeatedly to see if I could find any traces of employment. The lack of any such evidence, combined with the factors cited in my paper, suggested that these individuals were not working.
It is quite possible, of course, that some of these individuals held jobs. Any bias toward understating employment outcomes, however, was likely outweighed by countervailing biases: (1) Some online references to jobs persist after an employee has left the position and is seeking other work. (2) My data collection could not distinguish part-time and full-time work, so I gave all jobs the same weight. (3) Some job titles may be polite masks for unemployment. A “solo practitioner,” for example, may not be actively handling cases or seeking clients. (4) My study included only law graduates who were admitted to the bar; it does not include the 10-12% of graduates who never take or pass the bar.
As I acknowledge in the paper, all of these biases could lead to overstating employment outcomes.
Salaries Within Job Categories
Professor Simkovic notes that my study does not account for salary increases within job categories. As I note in the paper, I gathered no data about salaries. I certainly hope that 2010 graduates received salary increases during the last five years! That, however, is a different question from whether employment patterns have shifted among new attorneys. Within the population I studied, I observed several features that differ from employment patterns reported in earlier studies of lawyers. These include the emergence of staff attorneys at BigLaw firms, a notable percentage of solo practitioners, a surprisingly low percentage of lawyers employed at law firms, and substantial percentage of recently licensed lawyers working in jobs that do not require bar admission.
Selection Bias
Professor Simkovic suggests that my study suffers from selection bias because the most talented Ohio graduates may have moved to other states to accept BigLaw offers. This would be a concern if I were trying to describe employment opportunities for a particular law school, but I am not doing that. Instead, I analyze the employment opportunities within a defined market. One can debate, as we have, how well Ohio represents outcomes in other markets. The study, however, is relatively free of selection bias within its defined population. Unlike AJD and many other studies, it does not depend upon subjects’ willingness to answer a lengthy survey.
For the record I’ll note that, although some of my school’s graduates move to other states for BigLaw jobs, the number is small. Like most law schools outside the top-ranked group, we place relatively few graduates at schools with more than 500 (or even more than 250) lawyers. My relatively informed, yet still anecdotal, impression is that our students who move out of state show a similar job distribution to those who remain in Ohio.
What Do We Know?
From my study, we know some things about the jobs held by lawyers who passed the Ohio bar exam in 2010. We don’t know about lawyers who passed the Ohio bar in other years, or about law graduates living in Ohio who have not been admitted to the bar. Nor do we know anything with certitude about lawyers in other states or at different times. But do the facts we know about one set of lawyers at one time provide insights into the experiences of other lawyers? Much social science research assumes that such insights are possible. The reach of those insights depends on the nature of the study.
Here, I think we gain some insight into employment patterns for recent graduates from many schools–at least for the 90% of schools ranked outside the US News top twenty. Some schools and some markets are very distinctive, but most of us are not as different as we first believe. Our first-hand impressions of our graduates’ job outcomes, meanwhile, are very skewed. After just a few years of teaching, we all have lots of former students. The ones we hear from or see at reunions almost certainly differ from those who drop out of sight. Research about Ohio won’t tell you everything you want to know about another market, but it may tell you more than you think.
Can we also gain insights about whether the job market for new lawyers has changed? That is a central claim of my study, buttressed by comparisons to previous data as well as information about why outcomes may have changed. Once again, I think the comparisons add to our knowledge. Personally, I don’t find the fact of change surprising. The legal employment market was different in the 1980s than in the 1950s, and both of those markets were different from the 1920s or 1890s. Why would we in 2015 be exempt from change?
The fact that change has occurred doesn’t mean that the demand for lawyers has evaporated; Richard Suskind’s provocative book title (The End of Lawyers?) has skewed discussions about change by creating a straw man. In the end, even Susskind doesn’t believe that lawyers are doomed to extinction. I think it’s important to know, however, that changes are occurring in the nature of legal employment. Staff attorneys, contract workers, and legal process outsourcers play a larger role today than they did ten years ago; an increasing number of new lawyers seem to establish solo practices; and junior positions in law firms seem to be declining. These and other changes are the ones I discuss in my paper. I hope that others will continue the exploration.
It’s Just Ohio
April 27th, 2015 / By Deborah J. Merritt
Today’s NY Times has an article that mentions my recent study of employment outcomes for the Class of 2010. Using official bar records, employer web sites, LinkedIn, and other internet sources, I tracked current employment outcomes for the 1,214 new lawyers who passed the Ohio bar in 2010. I found job information for 93.7% of the population.
The findings, as I explain in the paper, suggest that the Class of 2010 continues to face challenges in the job market–even almost five years after graduation. Although all members of the group I studied group were admitted to the bar, only three quarters hold a job that requires a law license. One-tenth of these recent graduates have gone into solo practice. The percentage working in law firms is just 40.4%–and a third of those lawyers work in firms with just 1-4 others.
These and other findings, of course, represent outcomes for newly admitted lawyers licensed in Ohio. Brian Galle at Prawfsblawg has questioned whether Ohio’s results represent outcomes in other parts of the nation. It’s a question that others undoubtedly will raise, so I offer some thoughts on that here.
Which Legal Profession?
When legal educators talk about the legal profession, discussion drifts toward BigLaw. This seems to happen even when we don’t realize it. Professor Galle, for example, states in a follow-up comment to his post that “the U.S. law market is concentrated in a few states.” That may be true for some types of corporate practice, but it’s not true for all of the other types of law that attorneys pursue.
Small and medium-sized businesses account for more than 99% of all business employers in the United States. These businesses, which populate every state, generate legal needs of all kinds: incorporation and partnership agreements, contracts with suppliers, tax disputes, employment suits, real estate deals, regulatory compliance, and tort claims. These clients do not hire BigLaw firms for their work.
Individuals in every state, meanwhile, need lawyers to handle divorces, criminal charges, real estate transactions, employment claims, immigration concerns, trusts and estates, civil lawsuits, and government disputes. Speaking of the latter, many more lawyers work for state and local governments than for the federal government. Whether you want to be a prosecutor, public defender, or agency lawyer, you’re more likely to work for a state, town, or county than for the feds.
If we want to think about employment outcomes for law graduates, we have to evaluate all parts of the legal profession–not just the BigLaw firms or government offices located inside the beltway. There’s a lot of law all over this land.
Why Look at a Single State?
If we agree that the legal profession is quite diverse, then how can we explore employment outcomes in that profession? National studies, like the After the JD project, offer one option. Averages taken across a diverse group, however, can offer a misleading picture. As statisticians have noted wryly, the average person has one testicle and one ovary.
Studying a specific city or state, on the other hand, imposes different limits. No two cites or states look exactly the same. Geographically targeted studies, however, can be quite informative. Two of the leading studies of our profession, Chicago Lawyers and its sequel Urban Lawyers, both focus exclusively on lawyers working within Chicago’s city limits.
I concluded that, given existing data on the legal profession (which is both fragmented and sparse), it would be most illuminating to develop a study of recent graduates licensed to practice in a large, but not dominant, legal market. In a private comment, one of my readers characterized Ohio as a “second tier legal market,” and I accept that label. That’s exactly what I was looking for: a market that would reflect the experiences of a wide range of law graduates, rather than those of an elite minority.
But Why Ohio?
In the paper, I offer considerable detail about why Ohio serves my purpose as a state that represents outcomes for a large band of new lawyers. Ohio is relatively large: it ranks ninth among all states for both the size of its licensed bar and the number of jobs provided recent law graduates. Two Ohio cities (Columbus and Cleveland) rank among the top 20 cities providing jobs to those graduates.
And yes, Ohio does have BigLaw firms: Jones Day, Baker & Hostetler, Squite Patton Boggs, and several others. It also has a client base that generates BigLaw issues: the three just-mentioned firms originated in Ohio and then spread globally.
NALP‘s employment reports on 9-month outcomes for the Class of 2010 suggest that Ohio’s legal market includes a representative mix of employers for entry-level lawyers. Other large states skew strongly toward private practice jobs (e.g., New York and California) or government positions (Washington DC). When I examined 9-month employment patterns for the ten largest states, only Ohio and Pennsylvania offered a representative mix.
Ohio, finally, has a fairly robust economy. In 2010, the state’s overall unemployment rate was worse than the national average but better than several states (California, Florida, and Illinois) that employ more lawyers. Equally important for measuring current employment outcomes, Ohio benefited from a strong recovery. In 2014, Ohio’s overall unemployment rate beat the national average and was considerably better than in legal powerhouse states like New York, California, Illinois, Florida, and Washington, D.C. See p. 13 of the paper.
Summing Up
No single study can capture a picture of employment outcomes that is true for all members of the Class of 2010–or of any other recent class. That’s partly because we have so few baseline studies to build on, and partly because the outcomes are so diverse. My study is incomplete in several ways. In addition to the geographic focus, I included only law graduates who were successfully admitted to the bar. The study tells us relatively little about careers of law school graduates who never take or pass the bar. That group, which comprises about 12% of all graduates (see page 40), would have different job outcomes than the ones I traced.
But we have to start somewhere. I chose to examine new lawyers in a state that, I believe, represents the type of employment outcomes achieved by a very large number of law graduates nationwide. As legal educators, we need to focus more on those outcomes–not just on the salaries and lifestyle at the largest law firms.
In making this start, I also developed a method that is easy to replicate. Ohio happens to have a particularly user-friendly bar directory, but most states have searchable directories online. Graduates, bar licensees, and other populations are easy to track through those directories, employer websites, LinkedIn, and other sources. If you’d like to study a different set of lawyers, feel free to contact me. I’d be happy to share all of my tips, including the best ways to track graduates who change their names. (Ok, I’ll offer that one without even requiring an email. If the state bar directory doesn’t allow searching by first and middle names, type the lawyer’s name plus the word “wedding” into google. You’ll most likely obtain a wedding announcement, gift registry site, or other leads.)
Note to Law Schools: Show Your Work on JD Advantage Jobs
April 23rd, 2015 / By Kyle McEntee
In a column in this week’s New York Law Journal, Jill Backer, assistant dean of career and professional development at Pace Law School, says it’s artificial to distinguish between jobs that require a law license and jobs where the JD confers an advantage. Backer contends that doing so through the ABA’s standardized employment reporting regime reinforces a perception that JD Advantage jobs are “less than” the Bar Passage Required jobs.
As it turns out, there’s strong evidence that many of these jobs are “less than.” But Backer does not address overwhelming evidence that JD Advantage jobs pay substantially less on average and leave graduates looking for new jobs shortly after starting them.
Additional information showing otherwise would be helpful, but law schools do not provide it. Instead schools hope we’ll trust their word that JD Advantage jobs are not only desirable, but worth pursuing through the JD-path instead of a shorter, less painfully expensive degree.
I will be the first to admit that there are many great JD Advantage jobs. For instance, my job as executive director of Law School Transparency would count as JD Advantage because my JD provides a “demonstrable advantage in . . . performing the job,” even if my job “does not itself require bar passage or an active law license or involve practicing law.” The same applies to the editors of Above the Law, the founders of Hire an Esquire, and federal agents.
The problem is that JD Advantage category is so broad that it loses meaning. Schools infuse meaning on the term through the occasional, sexy anecdote—just like the ones in my previous paragraph. Look no further than Baker’s column lede to see how these anecdotes are operationalized. Baker frames readers’ understanding of JD Advantage jobs by pointing out that the President of the United States holds a job for which the JD is an advantage.
But the definition does not even require the employer to care about the JD—the education merely needs to be helpful. A colorable argument can be made that a legal education helps with just about any job a law graduate would consider. How many jobs would you take that don’t require some measure of critical thinking or understanding of our legal system?
The category is so flimsy that paralegals and graduates in administrative positions at law firms count as JD Advantage. For example, at Baker’s own school, 14 class of 2013 graduates (or 13% of all graduates in firm jobs) were paralegals or administrators. Of the 14, five were “professional” jobs and nine were “JD Advantage.” Nobody pays $45,000 per year in law school tuition to become a paralegal. But nearly a quarter of Pace’s graduates in JD Advantage jobs were paralegals or administrators at law firms.
According to NALP, 41% of all class of 2013 graduates in JD Advantage jobs were still seeking another job nine months after graduation. Graduates in Bar Passage Required jobs were one-third as likely to indicate the same. According to data from law school graduates, JD Advantage jobs are not nearly as desirable as Baker would have readers (and prospective students) believe. Further, NALP reports that the average JD Advantage salary is 25% less than the average salary for graduates in bar-required jobs.
There are certainly people who attend law school with other aims, and they may find desirable work outside of the practice of law. (Note that there’s good reason to believe that non-legal employers are after people with legal experience, rather than a legal education.) Though I don’t speak for others, LST does not include non-legal jobs in the LST Employment Score for straightforward reasons. For people interested specifically in a non-legal career including these jobs in the LST Employment Score would not make the score more meaningful. Such a mixed score would be determined primarily by legal job placements. A mixed legal/non-legal score does not really tell prospective students about alternative job placement.
For people interested in only a legal career, the addition of non-legal jobs greatly depreciates the value of the score by including a number of jobs they are not interested in. The only group that would be well served by a mixed score is a group who would be okay with pretty much any job upon graduation. While there are third-year students and recent graduates scrambling for any job they can obtain, few people have such an attitude before entering law school.
If a school prides and sells itself on its ability to produce graduates primed for JD Advantage jobs, it ought to find another way to prove its graduates are different than the 41% of graduates in JD Advantage jobs looking for a different job just a few months after starting. I’d like to think schools in this category would want to do this. Regardless, the onus is on law schools to prove that their JD Advantage outcomes are desirable and worth pursuing a JD to obtain.
Northwestern University School of Law, for example, makes a persuasive attempt to do just that. On a page titled, “JD Advantage Employment,” Northwestern actively distinguishes itself from other schools through data and context. By request for this column, the school’s dean supplemented that information. Northwestern graduates from 2013 and 2014 are substantially less likely than the national average to be seeking another job with one in hand—an estimated 10% of JD Advantage and 3% Bar Passage Required job holders.
Law schools are in a position where they need to become more attractive to prospective students, especially the highest achieving ones. A school could legitimately position itself as a force for the new economy. Northwestern does this as well as anyone. If other schools want to show how they’re different, they need to do more than throw together a new program to sell to applicants and alumni or claim that their JD is the best path to these new economy jobs. It requires more than just bold claims and factless editorials. To schools like Pace hoping to carve out a new niche, show us your work in a meaningful way. The applicant market is listening.
ExamSoft Update
April 21st, 2015 / By Deborah J. Merritt
In a series of posts (here, here, and here) I’ve explained why I believe that ExamSoft’s massive computer glitch lowered performance on the July 2014 Multistate Bar Exam (MBE). I’ve also explained how NCBE’s equating and scaling process amplified the damage to produce a 5-point drop in the national bar passage rate.
We now have a final piece of evidence suggesting that something untoward happened on the July 2014 bar exam: The February 2015 MBE did not produce the same type of score drop. This February’s MBE was harder than any version of the test given over the last four decades; it covered seven subjects instead of six. Confronted with that challenge, the February scores declined somewhat from the previous year’s mark. The mean scaled score on the February 2015 MBE was 136.2, 1.8 points lower than the February 2014 mean scaled score of 138.0.
The contested July 2014 MBE, however, produced a drop of 2.8 points compared to the July 2013 test. That drop was 35.7% larger than the February drop. The July 2014 shift was also larger than any other year-to-year change (positive or negative) recorded during the last ten years. (I treat the February and July exams as separate categories, as NCBE and others do.)
The shift in February 2015 scores, on the other hand, is similar in magnitude to five other changes that occurred during the last decade. Scores dropped, but not nearly as much as in July–and that’s despite taking a harder version of the MBE. Why did the July 2014 examinees perform so poorly?
It can’t be a change in the quality of test takers, as NCBE’s president, Erica Moeser, has suggested in a series of communications to law deans and the profession. The February 2015 examinees started law school at about the same time as the July 2014 ones. As others have shown, law student credentials (as measured by LSAT scores) declined only modestly for students who entered law school in 2011.
We’re left with the conclusion that something very unusual happened in July 2014, and it’s not hard to find that unusual event: a software problem that occupied test-takers’ time, aggravated their stress, and interfered with their sleep.
On its own, my comparison of score drops does not show that the ExamSoft crisis caused the fall in July 2014 test performance. The other evidence I have already discussed is more persuasive. I offer this supplemental analysis for two reasons.
First, I want to forestall arguments that February’s performance proves that the July test-takers must have been less qualified than previous examinees. February’s mean scaled score did drop, compared to the previous February, but the drop was considerably less than the sharp July decline. The latter drop remains the largest score change during the last ten years. It clearly is an outlier that requires more explanation. (And this, of course, is without considering the increased difficulty of the February exam.)
Second, when combined with other evidence about the ExamSoft debacle, this comparison adds to the concerns. Why did scores fall so precipitously in July 2014? The answer seems to be ExamSoft, and we owe that answer to test-takers who failed the July 2014 bar exam.
One final note: Although I remain very concerned about both the handling of the ExamSoft problem and the equating of the new MBE to the old one, I am equally concerned about law schools that admit students who will struggle to pass a fairly administered bar exam. NCBE, state bar examiners, and law schools together stand as gatekeepers to the profession and we all owe a duty of fairness to those who seek to join the profession. More about that soon.
Overpromising
April 18th, 2015 / By Deborah J. Merritt
Earlier this week, I wrote about the progress that law schools have made in reporting helpful employment statistics. The National Association for Law Placement (NALP), unfortunately, has not made that type of progress. On Wednesday, NALP issued a press release that will confuse most readers; mislead many; and ultimately hurt law schools, prospective students, and the profession. It’s the muddled, the false, and the damaging.
The Muddled
Much of the press release discusses the status of $160,000 salaries for new lawyers. This discussion vacillates between good news (for the minority of graduates who might get these salaries) and bad news. On the one hand, the $160,000 starting salary still exists. On the other hand, the rate hasn’t increased since 2007, producing a decline of 11.7% in real dollars (although NALP doesn’t spell that out).
On the bright side, the percentage of large firm offices paying this salary has increased from 27% in 2014 to 39% this year. On the down side, that percentage still doesn’t approach the two-thirds of large-firm offices that paid $160,000 in 2009. It also looks like the percentage of offices offering $160,000 to this fall’s associates (“just over one-third”) will be slightly lower than the current percentage.
None of this discussion tells us very much. This NALP survey focused on law firms, not individuals, and it tabulated results by office rather than firm. The fact that 39% of offices associated with the largest law firms are paying $160,000 doesn’t tell us how many individuals are earning that salary (let alone what percentage of law school graduates are doing so). And, since NALP has changed its definition of the largest firms since 2009, it’s hard to know what to make of comparisons with previous years.
In the end, all we know is that some new lawyers are earning $160,000–a fact that has been true since 2007. We also know that this salary must be very, very important because NALP repeats the figure (“$160,000”) thirty-two times in a single press release.
The False
In a bolded heading, NALP tells us that its “Data Represent Broad-Based Reporting.” This is so far off the mark that it’s not even “misleading.” It’s downright false. As the press release notes, only 5% of the firms responding to the survey employed 50 lawyers or fewer. (The accompanying table suggests that the true percentage was just 3.5%, but I won’t quibble over that.)
That’s a laughable representation of small law firms, and NALP knows it. Last year, NALP reported that 57.5% of graduates who took jobs with law firms went to firms of 50 lawyers or less. Smaller firms tend to hire fewer associates than large ones, and they don’t hire at all in some years. The percentage of “small” firms (those with 50 or fewer lawyers) in the United States undoubtedly is greater than 57.5%–and not anywhere near 5%.
NALP’s false statements go beyond a single heading. The press release specifically assures readers that “The report thus sheds light on the breadth of salary differentials among law firms of varying sizes and in a wide range of geographic areas nationwide, from the largest metropolitan areas to much smaller cities.” I don’t know how anyone can make that claim with a straight face, given the lack of response from law firms that make up the majority of firms nationwide.
This would be simply absurd, except NALP also tells readers that “the overall national median first-year salary at firms of all sizes was $135,000,” and that the median for the smallest firms (those with 50 or fewer lawyers) was $121,500. There is some fuzzy language about the median moving up during the last year because of “relatively fewer responses from smaller firms,” but that refers simply to the incremental change. Last year’s survey was almost as distorted as this year’s, with just 9.8% of responses coming from firms with 50 or fewer lawyers.
More worrisome, there’s no caveat at all attached to the representation that the median starting salary in the smallest law firms is $121,500. If you think that the 16 responding firms in this category magically represented salaries of all firms with 50 or fewer lawyers, see below. Presentation of the data in this press release as “broad-based” and “shed[ding] light on the breadth of salary differentials” is just breathtakingly false.
The Damaging
NALP’s false statements damage almost everyone related to the legal profession. The media have reported some of the figures from the press release, and the public response is withering. Clients assume that firms must be bilking them; otherwise, how could so many law firms pay new lawyers so much? Remember that this survey claims a median starting salary of $121,500 even at the smallest firms. Would you approach a law firm to draft your will or handle your divorce if you thought your fees would have to support that type of salary for a brand-new lawyer?
Prospective students will also be hurt if they act on NALP’s misrepresentations. Why shouldn’t they believe an organization called the “National Association for Law Placement,” especially when the organization represents its data as “broad-based”?
Ironically, though, law schools may suffer the most. What happens when prospective students compare NALP’s pumped-up figures with the ones on most of our websites? Nationwide, the median salary for 2013 graduates working in firms of 2-10 lawyers was just $50,000. So far, reports about the Class of 2014 look comparable. (As I’ve explained before, the medians that NALP reports for small firms are probably overstated. But let’s go with the reported median for now.)
When prospective students look at most law school websites, they’re going to see that $50,000 median (or one close to it) for small firms. They’re also going to see that a lot of our graduates work in those small firms of 2-10 lawyers. Nationwide, 8,087 members of the Class of 2013 took a job with one of those firms. That’s twice as many small firm jobs as ones at firms employing 500+ lawyers (which hired 3,980 members of the Class of 2013).
How do we explain the fact that so many of our graduates work at small firms, when NALP claims that these firms represent such a small percentage of practice? And how do we explain that our graduates average only $50,000 in these small-firm jobs, while NALP reports a median of $121,500? And then how do we explain the small number of our graduates who earn this widely discussed salary of $160,000?
With figures like $160,000 and $121,500 dancing in their heads, prospective students will conclude that most law schools are losers. By “most” I mean the 90% of us who fall outside the top twenty schools. Why would a student attend a school that offers outcomes so inferior to ones reported by NALP?
Even if these prospective students have read scholarly analyses showing the historic value of a law degree, they’re going to worry about getting stuck with a lemon school. And compared to the “broad-based” salaries reported by NALP, most of us look pretty sour.
Law schools need to do two things. First, we need to stop NALP from making false statements–or even just badly skewed ones. Each of our institutions pays almost $1,000 per year for this type of reporting. We shouldn’t support an organization that engages in such deceptive statements.
Second, we really do need to stop talking about BigLaw and $160,000 salaries. If Michael Simkovic and Frank McIntyre are correct about the lifetime value of a law degree, then we should be able to illustrate that value with real careers and real salaries. What do prosecutors earn compared to other government workers, both entry-level and after 20 years of experience? How much of a premium do businesses pay for a compliance officer with a JD? We should be able to generate answers to those questions. If the answers are positive, and we can place students in the appropriate jobs, we’ll have no trouble recruiting applicants.
If the answers are negative, we need to know that as well. We need to figure out the value of our degree, for our students. Let’s get real. Stop NALP from disseminating falsehoods, stop talking about $16*,*** salaries, and start talking about outcomes we can deliver.
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.