Unbottling Legal Education
January 23rd, 2013 / By Deborah J. Merritt
The JD is a terrific degree, but it’s an expensive one. Most students take three full years out of the workforce to earn a law degree; they also pay significant tuition for their education. The shrinking job market has reduced the immediate return on that investment, and no one knows what today’s graduates will face five or ten years from now. A JD costs more, but promises less, than it did a generation ago. College students are responding to that equation; many fewer of them are applying to law school.
Law schools will adopt several strategies to respond to this market shift. Some are increasing scholarship aid, effectively reducing tuition. Others are cutting class size. Still others are increasing the number of foreign LLM students they enroll. Many schools may pursue all three paths.
Relatively few schools, however, have considered “unbottling” legal education. In today’s economy, more workers than ever apply legal rules. Law is so pervasive in our society that it has ceased to be the exclusive province of lawyers. Compliance officers, HR managers, architects, engineers, insurance agents, realtors, mediators, and workers in dozens of other categories use the law. They all need to “think like a lawyer” at least some of the time.
We are legal educators, but we do not try to educate any of these workers. Instead, we deliver legal education in a single, tightly corked bottle: the JD. We do offer LLMs for domestic and foreign students, but most of those programs target students who have already consumed their first law degree. Why don’t we unbottle our legal education and serve some of it to other types of students? Here are five reasons why schools might not have done this in the past, but why we should consider doing so now:
1. We will undermine the demand for JDs. For better or worse, it’s far too late to worry about this now. At one time, lawyers may have been able to restrict the activities of realtors, accountants, HR managers, and other people who use the law, but those barriers fell long ago. As one of many signs of the times, a district court recently rejected the IRS’s attempt to regulate “tax return preparers.” From individual citizens who probate wills with court-published guides, to corporations with hundreds of HR workers, our society is full of people who use the law without lawyers.
Rather than resist this trend (which is irresistible, given the extent of legal regulation today), why not embrace it? Why not provide courses for undergraduates who will work as compliance officers or HR managers? Why not educate citizens on how to complete basic legal transactions? Why not offer specialized courses for engineers, architects, computer software designers, and others who use the law?
2. Thinking about the law is complicated; you can’t teach it in less than three years. If this is true, we’re in trouble as a society. Almost everyone in our law-driven society has to think about the law. Who are we to say that non-JDs are incapable of engaging with the law at any level? There’s no need for every engineer, small business owner, intestate heir, or compliance administrator to synthesize cases or argue before the Supreme Court. But all of these citizens can benefit from some basic education in legal principles and thinking like a lawyer.
We will still educate JDs to analyze the finest points of law, pursue new regulations, and reconcile policies with legal principles. But the market is telling us that today’s society needs fewer JDs and more citizens with some grasp of the law. If we don’t fill the latter need, someone else eventually will. If we’re true educators, we can find ways to teach people what they need to know.
3. Faculty don’t want to do it. This is probably true. Law professors are accustomed to teaching JD students and they like teaching those students. A few hanker to teach undergraduates, but they probably don’t want to teach those students the basics of banking regulation. Soon, though, at least some faculty won’t have a choice. If we want to keep our institutions in operation, if we want to teach any students and do any scholarship, we may need to broaden our educational base.
4. Faculty won’t know how to do it. This is probably also true. For most of these new audiences, the case method and socratic questioning won’t do the trick. Don’t get me wrong: I don’t envision teaching non-lawyers to memorize a few black-letter principles. In any job, the best workers understand why particular rules apply; they know the origin of the rules and their intended purpose; they also have the capacity to identify new situations that fall outside of a prior rule. As legal educators, we should develop those facilities in all students we teach. But we may have to develop new methods and pedagogies for teaching non-JDs.
On the upside, faculty who are willing to invest in these new methods will realize two gains. First, we will educate a much broader base of students–benefiting both those students and our own institutions. Second, we almost certainly will improve the teaching methods we use for our JD students. Although there are many innovators in law schools, we are still quite complacent about our basic pedagogy. Teaching new audiences will challenge us to think about how we teach law and legal reasoning to any audience.
5. The bottle may be emptier than we thought. What if we uncork our JD bottle, look inside, and discover that there’s less in the bottle than we were claiming? What if “thinking like a lawyer” isn’t as distinctive as it was fifty years ago? What if other types of thinking are as important–or more so–in today’s economy? What if it doesn’t really take three years to learn how to think like a lawyer?
These are realistic fears. When I went to law school in the late 1970’s, I thought legal reasoning was pretty impressive. But it wasn’t the only rigorous analysis I learned. As a college senior, I took an economic policy course from Thomas Schelling. That course blew me away; thirty-five years later, I still remember the thought exercises from Schelling’s class. More recently, I’ve been reading the work of psychologists and management theorists. Those experts have some pretty impressive thought systems as well.
As legal educators, our own bottle is far from empty. But today’s market won’t allow us to be arrogant about what we provide. We need to look inside the bottle, candidly analyze the contents, and explore how legal education could serve the needs of students outside the traditional JD class.
Modules: Flexibility
January 22nd, 2013 / By Deborah J. Merritt
Full-time professors tend to like traditional semester courses. Give us a classroom (preferably with a podium and a blackboard at the front); an audience of full-time students; 3-4 credit hours; fourteen weeks of class meetings; and a final exam or paper. Now that’s education!
There’s no doubt that this structure works well for some professors, students, and material. The old-fashioned semester-long course may even provide a useful anchor for education. Perhaps at the beginning of a degree program, such as the first year of law school, students should take some traditional, full-semester courses to build a foundation for more individualized work. There’s also something to be said for students developing a relationship with a few professors over a full semester of class meetings.
But I’m also confident that the traditional structure does not work well for every subject taught in law school. Some insightful instructors are not available three times a week for fourteen weeks out of the year. Some subjects benefit from intense study over a compressed period. Some material just doesn’t generate lively discussion; students can learn it more effectively on their own. In law schools, we try too hard to fit everything into the framework of a full-semester course.
A modular law school would throw off the semester shackles. Some educational experiences might last a full semester–or even a full year. The modular school, however, would assume a different timeframe for most courses. Courses would meet at a large variety of times and places, using many different schedules. Students would assemble their coursework in many more configurations than they do today.
Why would we invite that type of mayhem? I outline some of the pros and cons, focusing on schedule flexibility, below. This post is the second in a series of posts discussing the concept of a more modular law school. For the initial, introductory post in the series, see here. Future posts will discuss modular content; assessments and feedback; cost; and other issues.
Advantages of Modular Scheduling
1. We live in an unbundled, on-demand world. This is a world in which people choose playlists; they don’t listen to songs in the order dictated by an album or radio station. We watch movies and tv programs at the times we find most convenient. We search instantaneously for information when we need it. We read our favorite columnists from multiple media sources rather than subscribing to a single daily paper.
These changes have occurred because customers want them. We value individual control and choice when consuming entertainment and information. The same tastes apply to education. Like it or not, students will increasingly demand more control and choice within their legal education. They will come to law school expecting more nuanced choices than we currently offer, because that is what they are accustomed to receiving elsewhere. To senior faculty, an upper-level curriculum with few requirements may offer boundless choice. For students growing up in today’s world, four courses that each meet for fourteen weeks will increasingly feel like a strait jacket.
2. A modular schedule, as I’ll explore in future posts, may deliver better learning. Modules will require more frequent assessment than semester-long courses, and are likely to provide more feedback. Both assessment and feedback promote learning. Modules will also focus professors on the value of each course component. We’ll have to ask questions like: “Do students really benefit from this three-week portion of my fourteen-week course? Even if they do, would they learn the material better in a stand-alone module, or through a different pedagogy? How do the different parts of my course advance doctrinal learning, thinking like a lawyer, and other practice skills?” Answering questions like these can improve teaching.
I will address modular content more thoroughly in a separate post, but it’s important to note that flexible scheduling need not impair learning; if done properly, it can improve learning.
3. Modular schedules would allow us to draw upon many more instructors. Practicing lawyers rarely have fourteen weeks of quality time to commit to a course–especially when we demand that those weeks correspond exactly to our semesters. Professors in other disciplines may not be able to commit a full semester of time to teaching law students. Many law schools have already recognized this fact and have created “short courses” to accommodate practitioners or professors in other disciplines. A modular schedule would make these courses far more common; in fact, they would become the norm rather than an aberration.
4. Modules could capitalize on learning experiences that don’t fit the traditional semester. Clinics and externships often struggle with the semester framework. Some client matters take less than fourteen weeks; others take much more. Legislatures, courts, and clients operate on different calendars than we do: Their problems don’t emerge neatly in August and conclude just after Thanksgiving. A more flexible schedule would allow law schools to design experiential courses around the experiences themselves.
5. Modular schedules can help students integrate classwork with part-time jobs or externships. The latter experiences are increasingly important for students to finance their legal education or gain workplace experience. The best experiences, however, may conflict with the bulk of law school classes. A modular schedule might allow a student to work full-time in September and October, when an employer has an opening. The student might pursue a single module at night during that time, then stock up on more modules later in the academic year.
6. Similarly, modules could help students who need to attend school part-time. The cost of living accounts for a significant part of law school debt; if students could work during law school, they might graduate with less debt. Even part-time programs are relatively rigid, following semester schedules and often providing much less course choice than the full-time program. A modular schedule would allow employed students to customize their schedule for their particular job. One job might impose heavy demands in April, while another requires extra hours in December. Under a modular schedule, students could choose modules to accommodate those demands.
7. Modular classes can include new types of students. With JD applications falling, law schools are likely to create new certificate, degree, and continuing education programs. Those programs will be most efficient if schools can integrate them with JD classes. Combining different student groups can also pay off for the students: JD students and practitioners, for example, might enroll in a common module. Those students would benefit from the practitioners’ insights, as well as from networking opportunities. The practitioners, conversely, might find that full-time students are stimulating classmates and prospective employees.
Drawbacks of Modular Scheduling
1. Modular scheduling is harder than semester scheduling; it adds pieces to the academic puzzle. Will all professors want to teach Monday through Wednesday during September and April? Will all practitioners prefer to teach on Tuesday evenings in October? Those are nightmares that, as a former associate dean, I can understand. But airlines and other businesses engage in much more complicated scheduling than we do at universities; I suspect we can produce a modular schedule. We may even find that modular scheduling creates fewer conflicts than semester scheduling does. Lots of professors like to teach at 11 a.m. M-W, but they may prefer different months of the year. As we spread the schedule over more hours, days, and months–and engage more different types of instructors–the conflicts may diminish.
2. Full-time, tenured faculty won’t like it. We are all creatures of habit, and full-time tenured faculty rarely have to alter their workplace habits. Changing course schedules, teaching times, and other expectations may be wildly unpopular. Forced change, of course, can be a good thing: In addition to accommodating student demand (or satisfying other institutional objectives), it may encourage faculty to re-examine silent assumptions underlying their courses and pedagogies. But full-time, tenured faculty are unlikely to applaud significant changes in the academic schedule.
3. Some modules won’t generate enough student interest. To accommodate both scheduling and subject preferences, schools may have to offer a large number of modules. Some of these modules will attract only a few students, requiring a decision about whether to cancel the module. Cancellation imposes costs on the students who anticipated that module; it can also impose institutional costs if the school committed to pay the instructor (or to credit a full-time professor for that module). Even if the instructor agrees to teach a different module or at a different time, time is wasted making those arrangements.
4. Expectations may overload students. If modules start at different times and extend for varying periods, instructors won’t know the demands imposed in other modules. What happens if four different modules schedule exams on the same day or during the same week? This happens with semester courses, and both students and professors complain about it. Expectation clashes may be more frequent with modular scheduling–and more complicated because students will enroll in different patterns of modules.
5. Universities may have to adjust their tuition schedules. Some universities charge by the course, others charge by the credit. Modules may not fit comfortably within either framework. If other parts of the university offer traditional semester courses, it may be particularly difficult for law schools to negotiate an appropriate price for their modules.
There is much more, both positive and negative, to say about modules. Stay tuned as I continue to explore this educational framework.
Chief Judge Lippman Wants to Hear More
January 22nd, 2013 / By Deborah J. Merritt
NYU sponsored a public discussion of Estreicher’s “Optional Third Year” plan on January 18. New York’s Chief Judge Lippman, among others, expressed interest in the idea. For a summary of the discussion, see this article in the New York Law Journal.
Modules: An Introduction
January 21st, 2013 / By Deborah J. Merritt
A “modular” education is one in which (1) the institution delivers education in discrete courses; (2) those courses are independent of one another, although some advanced courses may carry prerequisites; (3) teachers assess students at the end of every course; (4) students have significant choice in electing courses; (5) the student earns a degree by passing a specified number of courses, sometimes with particular distribution and other requirements; and (6) a student often may apply credits from one institution toward the degree awarded by another institution.
Sound familiar? It should. Modular education has long been the norm at U.S. universities, including law schools. Universities in other countries, including the United Kingdom, embraced modular education much more recently–with significant culture shock and gnashing of teeth. [For a discussion of that transition, see the interesting article by David Billing, Review of Modular Implementation in a University, at 50 Higher Education Quarterly 1 (1996).]
So what’s the big deal about moving law schools to a more modular system? In a recent paper, Kyle McEntee, Patrick Lynch, and Derek Tokaz advocate a new model of legal education called the “Modular Law School.” Their proposal would make law school more modular by introducing greater flexibility in the length and scheduling of coursework. Modules could last a week, a month, or a semester–although most would last no more than seven weeks. Similarly, modules could meet one hour a week or ten hours a week; schedules would vary to accommodate the nature of the material, the pedagogy, and the instructor’s availability.
Many law schools have already moved in a modular direction. They offer “short courses” ranging from a week to a half-semester; they also schedule courses in different formats. The Modular Law School (“MLS”) builds on these approaches to create a more fully modular system. What are the pros and cons of an MLS?
There is a lot to say about the costs and benefits of a more modular education; so much, in fact, that I’ve decided to create a series of posts on this issue. In upcoming posts, I’ll consider these aspects of a more modular law school:
* Assessments and Feedback
* Curricular Content
* Delivery Methods
* Costs
* Customization
* Coherence
* Experiential Education
* Continuous Improvement
If you’re interested in other topics related to modular education, please let me know. My discussion is modular, so I can easily add to it!
Take This Job and Count It
January 19th, 2013 / By Deborah J. Merritt
In an article in the Journal of Legal Metrics, two Law School Transparency team members outline LST’s methodology for the LST Score Reports, an online tool designed to improve decisions by prospective law students. LST uses employment outcomes, projected costs, and admissions stats to help prospective students navigate their law school options.
Kyle McEntee and Derek Tokaz, the authors of both this paper and the online tool, resist the urge to rank schools on a national scale. Instead, they sort schools by where their graduates work post-graduation, allowing applicants to consider schools by geographic profile. The reports then use reader-friendly terms, like the percentage of graduates who secured full-time legal jobs, to help prospective students make educated decisions about which schools, if any, can meet their needs.
McEntee and Tokaz designed the reports to help prospective law students, but this article has important information for legal educators as well. The U.S. News rankings won’t disappear any time soon, but I think prospective students will begin looking at LST’s Score Reports in addition to the rankings. The reports contain more nuanced information, which prospective applicants will value; they also try to direct applicants into deeper exploration of their law school options.
As McEntee and Tokaz show, employment scores correlate imperfectly with U.S. News rank. As applicants begin to consider these scores, together with more transparent employment information on the schools’ websites, some schools will benefit while others suffer. Schools that under-perform their U.S. News score in job placement may want to explore why. Prospective students certainly will.
The other lesson for educators is that the vast majority of legal hiring is local. Students tend to stay in the city, state, and general region where they earned their law degree. As employers increasingly demand internships and unpaid apprenticeships, this trend may become even more dominant. It is hard to work part-time for a firm in one city while attending class in another. It’s far from impossible these days, with internet commuting, but students who lack face-time with prospective employers will be at a disadvantage. It’s also daunting to relocate after law school without a job in hand.
Law schools may find this information discouraging; most schools cherish their “national reputation” and want to extend it. It’s important to recognize, however, that the best job opportunities for graduates may be local ones. Time that a school spends promoting its national brand may deliver less return for graduates than time spent at local bar meetings.
On the bright side, schools should understand that a “national reputation” can co-exist with primarily local placement rates. That, in fact, is the reality for a vast number of law schools today. People around the country have heard about many law schools, even when those schools place most of their graduates locally. National reputation takes many forms and can pay off in many ways–even for graduates in later years. One lesson that I take from McEntee and Tokaz’s paper, however, is that schools should focus more diligently on their local, state, and regional reputations. That’s where the majority of job opportunities for graduates will lie.
Business Education in Law School
January 18th, 2013 / By Deborah J. Merritt
Robert Rhee, the Marbury Research Professor of Law at the University of Maryland’s law school, is well qualified to write about the relationship of legal and business education. Rhee holds both a JD and an MBA; he has worked as a government lawyer, a law firm partner, and an investment banker; he co-directs Maryland’s Business Law Program; and he authored a book (Essential Concepts of Business for Lawyers) that introduces law students to key business principles.
Rhee’s most recent paper on legal education proposes creation of a “JD/MBL” curriculum. The “MBL” stands for “Masters of Business Law” but, as Rhee quickly explains, this is simply an “idea tag.” The name reflects a focused, interdisciplinary group of business courses pursued as part of the JD program. Candidates completing this work might receive a certificate, but they would not necessarily qualify for a separate master’s degree. Rhee uses the “MBL” name as a handy reference for the program he proposes.
The Program
Rhee’s proposed “MBL” includes (1) most of the traditional first-year courses; (2) Administrative Law, Evidence, and Professional Responsibility; (3) a full range of business-related law courses (Corporations; Partnerships; Income Tax; Securities Regulation; Corporate Finance Law; Partnership or Corporate Tax; Intellectual Property); (4) a set of business courses taught either at the business school or law school (Math & Excel Camp; Management; Financial Accounting; Corporate Finance; Business Communication; Litigation & Management; Managerial Economics; Early Stage Business Advising: Mature Stage Business Advising; Entrepreneurship; Leadership & Teamwork; Strategy); and (5) a few electives.
The curriculum is intense. In fact, my first response was “wow, no wonder business people are disappointed with their lawyers. There’s a lot we don’t know.” I still don’t know enough about practicing or teaching business law to comment on the specifics of Rhee’s proposed curriculum. But as Rhee explores his proposal, he offers a number of other insights that legal educators may find interesting. I summarize those, as well as some of my own reactions, below. Law schools considering the integration of law and business perspectives may find Rhee’s insights useful even if his specific proposal fails to serve their needs.
Integrating Business and Law: Insights
1. Rhee harpoons the notion that a standard JD prepares graduates for careers as corporate executives, investment bankers, management consultants, entrepreneurs, or other “business” people. Some JDs transition into those positions, Rhee acknowledges, but those outcomes stem from very adaptive lawyers who capitalize on unusual circumstances. If law school really prepared students for careers in business, why wouldn’t corporations, investment banks, and management consulting firms regularly recruit at law schools for their business positions? And why wouldn’t more BigLaw associates move into business (rather than in-house legal) positions when winnowed from their firms?
These points sound persuasive to me. A standard law degree might be useful for a student who planned to return to his family business–although, even there, it seems to provide more law and less business training than optimal. But why would a generalist law degree prepare students particularly to work in corporate management or investment banking positions? Those professionals make complex decisions based on bodies of knowledge as specialized as (but different from) the material we teach in law school.
If you have any doubts about Rhee’s argument on this score, take a look at his business-proficiency quiz on pp. 11-12. Answering these questions correctly wouldn’t qualify a student to work as an investment banker or management consultant; a good score would merely make a new lawyer conversant with business terms. Yet a large proportion of law graduates, I suspect, would fail even this basic quiz. Rhee’s rejection of law as a general-purpose degree that prepares graduates for today’s business world is an informed, and useful, counterpoint to generous claims about the versatility of the JD.
2. Rhee, notably, also rejects the utility of a joint JD/MBA for most graduates. The joint degree, he argues, offers too much business for a student who will practice law and too much law for one who will pursue business. A joint degree program can preserve options for a student who isn’t sure which path she will pursue, but it is an expensive option-saver. It is more efficient to develop programs that deliver useful business concepts to future business lawyers, without requiring those students to obtain a full MBA.
Rhee, by the way, notes that he did not obtain his two degrees in a joint program. He first earned his JD, clerked for a federal appellate judge, and worked in the Justice Department Honors Program. He left government for an MBA program precisely because he could not transition into business with a JD alone. Having changed his career goals, he needed a different degree.
3. The most effective way to train business lawyers, Rhee suggests, is through a three-year JD program that includes a heavy dose of business courses. That is his “MBL” model outlined above. This “Goldilocks” model aims to give business lawyers just the amount of business education that they need to gain an advantage in the workplace.
4. Rhee’s article is refreshingly candid in acknowledging that a specialized business program–no matter how artfully designed–cannot trump all other hiring considerations. He acknowledges that his proposal is not the silver bullet that will guarantee business law employment for all graduates. A BigLaw firm’s corporate department probably will hire a Harvard Law graduate over a Maryland one, even if the latter student has more focused business coursework. The proposal, Rhee suggests, will improve education, and may improve initial job placement at the margins. The student who completes an MBL-like program may win an entry-level job away from a peer at a similarly ranked school without such a program; an MBL school should not expect (or promise) more.
5. Rhee notes, however, that MBL courses may prepare a student to outperform peers after securing that first job. A JD with focused business preparation may impress clients and bosses, and may find a more secure workplace niche. This advantage could be useful in today’s workplace, where employers more frequently use apprentices, interns, and fellows; the MBL graduate may stand out in that type of position–as well as in more traditional associate jobs that rely upon the survival of the fittest.
Equally important, the MBL will give the graduate more ability to jump to business positions. The standard JD, in Rhee’s opinion, does not confer the type of business versatility that law schools claim. But a JD that incorporates a significant portion of the MBA curriculum may serve that purpose.
These points strike me as important in evaluating curricular changes at law schools. The job market will be volatile for the foreseeable future; volatility may be a constant for our future graduates. Rather than claim that the conventional JD is versatile, schools could explore how they can make their degree more versatile. No degree can be all things to all people in today’s world. But a JD with a business focus might give graduates options that neither the JD nor MBA alone can deliver.
6. Even for schools with no interest in developing an MBL-like program, Rhee’s review of the potential courses in that program is quite informative. As Rhee points out, most law students have little business, management, or financial competence. Those skills apply to many areas of law practice, not just to serving corporate clients. Almost any lawyer today, furthermore, will benefit from basic competence in these areas just to manage her own practice–or to understand how her organization is managed. Educational reformers of all types may find some of Rhee’s proposed courses useful.
Final Thoughts
There is more in Rhee’s article than the points I’ve outlined here. He discusses, for example, different ways of financing MBL courses, as well as some of the “sacred JD cows” that might have to be sacrificed for students taking part in his program. On the sacred cow side, I’ll note that although I currently teach Evidence (which Rhee would keep for his MBL students) rather than Constitutional Law (which he jettisons), I’m troubled by the idea of students earning a law degree with no knowledge of Constitutional Law. I understand that some schools overdo the Marbury stuff for future business lawyers, but surely we could find 2 credits for some basic constitutional principles?
On the grander scale, Rhee’s paper is useful for law school innovators because of the approach it adopts. Rhee takes a hard look at what the current JD curriculum delivers and what it doesn’t offer. He draws upon his experiences in law practice and business to formulate a specific proposal about how schools might educate students more effectively for careers that span business and law. He’s not afraid to get concrete, even about the elimination of Constitutional Law. And he doesn’t over promise what an MBL track could achieve.
I’d like to see similar proposals for other areas of law practice. What would a JD with a labor/employment, intellectual property, or other focus look like?
Earn the Third Year
January 18th, 2013 / By Deborah J. Merritt
Samuel Estreicher and Daniel Rodriguez published an op-ed in the New York Times discussing Estreicher’s idea of an optional third year of law school.
Useful Data: JD Starting Salaries Over Time
January 17th, 2013 / By Deborah J. Merritt
The National Association for Law Placement (NALP) has just published two graphs illustrating the progression of starting salaries for JD graduates over the last twenty-six years.
First some background information for readers who have not used NALP data: NALP gathers employment and salary information from all ABA-accredited law schools. Schools report the jobs and salaries that their graduates hold nine months after graduation. Salaries reported by 2011 graduates, therefore, were their salaries in February 2012. NALP publishes salary data only for graduates employed full-time in jobs that will last for at least one year; salary figures do not include unemployed graduates, part-time workers, or temporary job-holders.
NALP and the law schools rely primarily upon self-reported salary information from graduates. Schools, however, may supplement reported salaries with ones that are publicly available. In general, the publicly available salaries are from large law firms and federal government positions. Those salaries (especially the ones from large firms) represent the high end of entry-level law salaries. For that reason, NALP cautions that its reported salaries skew high.
Those caveats, however, are less important when comparing salaries over time. Although the median reported salary may be higher than the true median each year, that distortion probably doesn’t change much over time. That’s one reason that NALP’s graphs of salary trends are so interesting.
As the second graph on this page shows, median reported salaries have fluctuated over the last twenty-five years when recorded in constant dollars (i.e., after controlling for inflation). The dotted line, which represents the median for all salaries, peaked in 2002 and–after a slight dip–again in 2009. But the current median is virtually the same as the median back in 1985.
Analyzing median salary by sector is also instructive. The solid black line, at the top of the graph, represents private practice jobs. That median rose sharply between 1996 and 2001, receded somewhat between 2001 and 2004, and rose again to its all-time peak in 2009. The latter rise was so steep that the median reported salary for graduates in private practice almost doubled–in constant dollars–between 1996 and 2009. That heady rise undoubtedly fueled the assumption that law was a golden career with high salaries.
Even during that period, of course, the median masked a great deal of variation. 2009 was the peak year for entry-level salaries, with graduates at firms of 251+ lawyers reporting a median salary of $160,000. But only 6,624 graduates (15.1% of the class) obtained those jobs. A similar number of graduates (6,749) joined firms of 2-10 lawyers. Less than 40% of those graduates reported their salaries, and the ones who did generated a median of just $50,000. (These facts all appear in the chart linked earlier in this paragraph.)
Returning to the graphs showing median salary over time, median reported salaries in private practice have dropped sharply since 2009. The median in private practice, when measured in real dollars, has fallen closer to 1985 levels than to its 2009 peak.
Meanwhile, the same graph shows that median reported salaries for public interest, clerkship, and government jobs have been flat since 1985 in real dollars. The trend line for business jobs is more uneven, but median salaries there have also returned to close to 1985 levels (after controlling for inflation).
Stagnant entry-level salaries might not be surprising in a stable industry. New workers contribute a set value, which doesn’t shift much over time. The pattern is more surprising in an industry like law, which has experienced significant increases in productivity due to technology. Why aren’t new lawyers today, armed with laptops and smart phones, worth more than they were twenty-five years ago?
One answer is that either supervisors or clients are taking that value for themselves. Another is that the new lawyers actually aren’t more valuable: technology and outsourcing have eliminated some of the jobs that new lawyers used to do while they learned more sophisticated skills on the job. If that’s true, and I think there is evidence to support that, then new lawyers are worth less to employers today than they were twenty-five years ago. Those lawyers need to be trained, which costs money, are there aren’t enough profitable tasks for them to do until they are trained.
Whatever the reasons for these salary trends, the marketplace is telling us that today’s law graduates are worth no more than graduates were twenty-five years ago. That’s a sobering message for law schools. We are charging students much more today than we did in 1985. The resulting gap between educational investment and workplace return is driving much of the recent disenchantment with law schools.
he NALP graphs, furthermore, suggest that the gap does not stem solely from the recent recession. For some areas of law practice, salaries for new lawyers have been flat over the full twenty-six years. For most others, salaries have varied modestly and returned to 1985 levels. Only at the largest firms, which provide a declining percentage of jobs, did salaries rise sharply–and, even there, salaries are dropping back toward 1985 levels. Can we figure out how to address this gap between students’ investment and return?
I have posted a permanent link to the NALP graphs on our Useful Data page.
Optional Third Year
January 15th, 2013 / By Deborah J. Merritt
What if law students could take the bar exam after just two years of law school? That was the rule in New York until 1911: Franklin D. Roosevelt, Benjamin Cardozo, and many other eminent lawyers skipped the third year of law school after they passed the bar. This Friday, New York judges and legal educators will discuss whether to revive the “Roosevelt-Cardozo” option, allowing law students to qualify for the bar after their second year.
Samuel Estreicher, the Dwight D. Opperman Professor of Law at New York University, provoked interest in this option through a paper published last year. Estreicher argues that the option would (1) reduce the cost of gaining bar admission and (2) encourage law schools to develop more useful third-year courses that would keep students in school. Practitioners might also step up, creating apprenticeships targeted at students who had passed the bar after two years of law school.
What are the pros and cons of the Estreicher proposal? Here are a few thoughts, building on those shared by Sam and others who have commented publicly:
Advantages
1. As Estreicher argues, allowing students to gain bar admission after just two years of law school would reduce the costs of obtaining a law license. In addition to saving a year of tuition, students could find paying work to cover living expenses and begin repaying loans.
2. Many students complain about boredom during the third year; many professors notice a significant decline in student engagement. If students find little benefit in their third year, and are able to pass the bar exam without those classes, why not let them start practicing?
3. The bar exam is designed to measure minimum competence. If students can pass the exam after the second year, then they have demonstrated that competence. Conversely, the exam will keep out students who need more time to master legal basics.
4. Law schools have been slow to respond to changes in the marketplace. If the third year of law school becomes optional, schools will have strong market incentives to develop programs that deliver real value to third-year students.
5. Practitioners and bar associations may also attempt to develop programs attractive to students who have passed the bar exam after just two years of law school. Even if employers are reluctant to hire these students for full-time positions, they may accept them into apprenticeships that offer more value than the current third year of law school.
Disadvantages
1. New lawyers who have completed only two years of law school will be even less “practice ready” than lawyers with three years of JD training. In particular, students are less likely to complete clinics or supervised externships during just two years of law school.
2. Under current accreditation rules, students who leave law school after two years will not earn a JD (unless their school offers a special accelerated program). ABA Standard 304 requires students to complete 58,000 minutes of instruction to earn the JD. Students who have completed two years of law school instruction may become lawyers (if states allow that), but they will not be JDs.
3. Law practice is much more complex than in the days of Roosevelt or Brandeis. Two years of instruction might have sufficed to produce a lawyer in 1911, but can the same amount of education produce a competent lawyer today?
4. Employers may not be willing to hire lawyers with only two years of law school training and no JD. If students pursue this option and fail to obtain employment, they may waste the time and money invested in both their legal education and bar study. If these students ultimately return to law school, they will find the third year even more frustrating–and will also have wasted a semester or two in a fruitless job search (although they will have already secured bar admission).
5. If just one state adopts this course, it is not clear how other states will respond. Will other states allow lawyers without a JD to waive into their jurisdictions? If not, these “two year” lawyers will suffer further disadvantages.
What do you think? I’m particularly curious about how potential employers view this proposal. Would you hire a lawyer who had completed just two years of law school but passed the bar exam? Would it matter that the lawyer lacked a JD?
Three/three
January 13th, 2013 / By Deborah J. Merritt
The ABA allows law schools to admit students who have completed just three years of college. Standard 502(a) provides that “A law school shall require for admission to its J.D. degree program a bachelor’s degree, or successful completion of three-fourths of the work acceptable for a bachelor’s degree, from an institution that is accredited by an accrediting agency recognized by the Department of Education.” This rule allows law schools to create “three/three” programs that admit students after three years of college. Students in these programs complete the normal three-year JD program, with their college applying one year of the JD study toward a BA degree. Students thus earn a BA and JD in a total of six years rather than seven.
According to a recent paper by Kyle McEntee, Patrick Lynch, and Derek Tokaz, thirteen law schools currrently advertise three/three programs. Those programs are:
Albany Law/Sage College
Chicago-Kent Law/Shimer College
Columbia University (scroll down)
Creighton University
Fordham University
Georgia State University
Florida Coastal Law/Jacksonville University
Hofstra University
Rutgers University-Camden
Seton Hall Law/NJ Institute of Technology
Southwestern Law/Cal State University
St. Thomas University
Willamette University (scroll down)
Many of the existing programs have strict limits. Creighton offers the option only to business students; Columbia chooses only one or two students a year. All thirteen of these programs, furthermore, reflect partnerships between a single college and a single law school–often under the same university umbrella. In this form, three/three programs serve very few students.
Should law schools expand three/three programs to encompass more students and schools? Here are some pros and cons:
Advantages of Three/Three Programs
1. For students, the programs reduce the cost of becoming a lawyer. Students devote just six years of higher education, rather than seven, to qualifying for the bar. They save a year of tuition and opportunity costs.
2. In most other countries, law is an undergraduate degree. From a systemic perspective, three/three programs could move the United States closer to parity with other nations. If U.S. students and new lawyers are disadvantaged by our longer education track, this change would assist them.
3. From a law school’s perspective, three/three programs may attract students who are otherwise reluctant to invest in law school.
4. Again from the school’s perspective, three/three programs may offer a way to “lock in” attendance by especially talented undergraduates at a partner school.
Disadvantages of Three/Three Programs
1. The programs do nothing to reduce the cost of legal education. As McEntee and his coauthors note in the paper cited above, three/three programs try to solve the problem of soaring law school tuition by cutting a year from college. Former law school dean and university president Gene Nichol sounded a similar theme while speaking at this year’s AALS meeting. Would it be healthier for law schools to address their costs more directly?
2. Unless three/three programs become dominant, the programs may do little to solve the problem of declining law school applications and enrollment. College seniors and graduates won’t care that a few other students saved money by enrolling in a three/three program; these potential applicants will continue to compare the cost of legal education to other graduate and workplace options. If high tuition and a diminished job market are discouraging students from attending law school, then schools need to find a way to address those problems for the bulk of their applicants–not just for a small number who matriculate through a three/three option.
3. The fourth year of college provides significant pedagogic value for many students. College seniors write undergraduate theses, pursue research projects with professors, and study abroad. Students who pursue three/three programs may miss these opportunities, hampering their personal development as well as the contributions they make to law schools and the workplace.
4. The students who would benefit most economically from three/three programs, those with few financial resources, may be the students who most need four years of college. Students from affluent backgrounds have the chance to take college-level courses in high school, travel abroad with their parents, and pursue other special programs before they set foot on a college campus. Less fortunate students only begin to catch up with these opportunities during college. Three/three programs may either give a bonus to wealthy students (who are educationally ready for law school after just three years of college) or further penalize disadvantaged students (who feel financially pressured to combine college and law school).
5. In a three/three program, the student saves a year of college tuition rather than one of law school tuition. If the student attends a low-cost college or has a substantial undergrad scholarship, the tuition savings may be small.
6. Although the ABA allows three/three programs, at least one state (Ohio) severely restricts the ability of these students to take the bar. Ohio’s Supreme Court Rule I.1(B) requires bar applicants to earn a bachelor’s degree (i) before beginning law school or (ii) “through completion of courses and credits other than those received in law school.” This rule precludes three/three applicants from gaining bar admission in Ohio unless their law school is willing to let them take a full year of credits outside the law school. I have not found any other state with this restrictive a rule, but schools or students considering three/three programs should look carefully at bar admission rules. For a quick guide to each state’s rules, check the Directory of Bar Admission Offices on the home page for the National Conference of Bar Examiners.
7. Current three/three programs offer students few, if any, choices among law schools. At least for now, the programs pair a single college and law school. A student who enrolls in one of these programs may sacrifice the opportunity to attend a more prestigious law school, one that would have offered a larger scholarship, or one with other attractions. The narrow focus of these programs similarly limits their utility to law schools. If a law school can strike a three/three partnership with only a few colleges, the number of students admitted under the three/three umbrella will be small.
8. Colleges may resist establishment of three/three programs because they (a) interfere with the liberal arts mission, and (b) reduce undergraduate revenues. Unless colleges are willing to endorse these programs, and to accept credits from a large number of law schools, the programs will remain small.
Unknowns
How will employers react to three/three graduates? Will they treat these students identically to other law students? Or will they find that three/three’s lack maturity or useful educational background? Some law students find jobs by combining undergraduate experiences–gained through externships, part-time jobs, or special study programs–with their law school degree. Will three/three students lack some of these opportunities?
On Balance
A three/three program may offer a useful option for a small number of students; my father obtained his Columbia BA and JD through a three/three program. But these programs seem unlikely to address the larger issues of cost associated with law school attendance. They may even interfere with full preparation of students for the workplace. Developing and administering any program takes time and money from a law school budget. Given the limited pay-off of three/three programs for schools and students, other innovations seem more promising than this one. But what do you think? What other costs and benefits have I missed?
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