Tuesday, December 3, 2013

The ABA Is Speaking. Will Law Schools Listen?

The ABA, as many of you know, is currently studying the future of legal education and is attempting to determine a way to save law school administrators' and professors' jobs improve the current state of legal education. There is a lot in this report that seems to be lip service to mollify scam bloggers and other critics. Let's look at some of the juicier bits of the draft report. Their words are in bold, mine are normal text.

P. 3: 
"Broader Delivery of Law Related Services:
This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education."
While the law schools are still pumping out almost twice as many graduates as there are jobs available, this proposal would cannibalize potential job opportunities. In the excellent book, Con Law, my fellow blog mate Charles Cooper writes about new grads who are forced to become solos chasing an ever more despicable and low grade clientele. Introducing more competition into the current climate works directly against law grads' interests. Good job, ABA.

P. 8
"[Online] criticism is diminishing public confidence in law schools and legal education and it adversely affects attitudes of prospective law students.
" Boo hoo. Law schools are stealing billions of dollars a year and enriching law school administrators and professors. Any criticism is warranted and richly deserved.

P. 11 
"What the ABA Standards [for Approval of Law Schools] do encourage is a continued increase in the quality of the  J.D. educational program. The pursuit of quality by law schools has unquestionably led to a strong system for training lawyers, and the ABA Standards have played a key role. But “quality of legal education” is an abstract notion as to which there is no objective metric for progress or achievement." Let me suggest a metric: student employment in a job requiring a bar license within a reasonable time after graduation. I know it's crazy, but let's give it a shot.

P. 12
"In some rural areas, for example, there are few lawyers and it is difficult for communities to encourage new ones to set up practice, either because of low prospective return on investment or lack of interest in small town or rural life." The "all the jobs are in rural Nebraska" argument is a red herring. There is a dearth of lawyers in these communities because there just isn't all that much work in most of these places to allow a lawyer to service her debt and live the American Dream. I live in a state with a large rural population. Many areas have one attorney for a three or four county area, because the low population, lack of disposable income and low demand will simply not support more than that.

P. 13: 
"There is wide disagreement about the purpose of law schools. For example, a commonly stated purpose of law schools is to train lawyers, but there is no consensus about what this means." Tamanaha and others have advocated a bifurcated approach to legal education. Certain schools (probably the elite ones like Harvard) can remain dedicated to developing leaders and teaching students how to "think like lawyers". All the others can teach students how to do what most attorneys do: draft wills and contracts, file a divorce, and how to litigate a case. This approach would help settle this "disagreement". The Report explores this idea more in depth on P. 22-23.

P. 21:
"To begin, there is relatively little scholarship funding or discounting provided to students on the basis of financial need. Rather, the widespread practice is for a school to announce nominal tuition rates and then use extensive discounting to build class profiles it finds desirable. In particular, schools pursue students with high LSAT scores and high GPA’s. Students who do not
contribute positively to the desired class profile receive little if any benefit from discounting and must rely extensively on borrowing to finance their education."Chasing prestige is a problem endemic to the legal profession. The legal profession's aristocratic ambitions need to be disabused before we can make law a truly meritocratic enterprise.

P. 25:
"Law schools have a societal role: to prepare individuals to provide law related services." Don't tell this to law profs. The majority of them are so out of touch that they think drivel like Nancy Leong's law and pop culture study is a worthwhile pursuit.

P. 26:
"But for law schools that choose to pursue other models, faculty culture and faculty role may have to change to support them. These changes may relate to: accountability for outcomes; scope of decision-making authority; responsibilities for teaching, internal service, external service, and scholarly work; career expectations; modes of compensation; interdependence; scope of the category “faculty” and internal classifications within that category; and a host of other factors." The majority of the law professorate will fight this type of change tooth and nail. After all, why would they want to give up the most highly paid part time job in America and possibly the world?

The suggestions in this report have some merit, which is why they will almost certainly be ignored by all the major stakeholders involved. Until law schools are subjected to some sort of system where employment outcomes are tied to the amount of student loans available to its students. Without that type of accountability, law schools will continue to abdicate their duty to actually teach students how to practice law in favor of producing ever more esoteric and useless "legal scholarship".

36 comments:

  1. The law school pigs will always shriek when meaningful change is proposed. This is why the bastards prefer "reform" - since their fellow swine will control the amount of change to the point of pointlessness.

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  2. No need to engage in this hand-wringing over law schools. SImply make two disclosures.

    One, law school merely confers a law degree if completed successfully. A law degree no more makes you a lawyer than a history degree makes you a historian, than an English Lit degree makes you a writer, than a Poli-Sci degree makes you a politician, than a Economics major makes you an economist and so on. It's an add-on to a liberal arts degree. Pay no more for it than you would to study history, and be prepared to be disappointed in that you're really not learning much about substantive law or the context of law generally.

    Two. The sleight of hand occurs in that 95%+ of people with law degrees "take the bar" and then receive the title "Lawyer." To most people, "lawyer" means a job practicing law or a person profitably engaged in the practice of law. However, the title itself does not guarantee either. The money-earning aspect of being a lawyer --which is why most people go to law school-- wholly depends on market forces. And these are taking a lethal toll on the legal marketplace.

    For the foreseeable future, we have (a) the effects of a decade or more of tort reform, (b) the cummulative effect of decades of wild, mass overproduction of lawyers, (c) the inevitable lingering in the marketplace of older lawyers who would have otherwise retired, (d) the effects of growing offshoring and increasing automation, (e) the withering of the low-end market brought about by Internet-available materials, and (f) an economy in steady decline and receding into a post-professional era.

    The law schools control none of this. Revamping the course of study is but rearranging deck chairs. Information will set you free.

    Students instinctively understand that a degree in Medieval Studies ain't marketable: "What are ya gonna do with that, anyway?," flows trippingly from the tongue. Law should engender the same response.

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  3. Germany is worth studying. Proportional to population it cranks out about as many new lawyers a year but its profession is not a train wreck. For one thing, 43 of its 44 law schools are public universities - there is no growth in TTTs trying to be cash cows for parent universities and they can limit enrollment without running afoul of anti-trust laws. Things have changed but there are strict loser-pays laws that discourage litigation. On the other hand laws require that certain things be done only by lawyers so you've got less self-help and a protected base of business. The trade off to the clients is regulated legal fees.

    I know, Americans are obsessed with Abe Lincoln finding Blackstone's Commentaries in a barrel and starting to read it while German lawyering has always been highly regulated. I think, however, that the difference is that in Germany the government controls entry into a highly regulated profession so there is a balance that benefits all concerned. In America there is a disconnect between the law schools, most of which now are just money-making rackets, and the profession. The schools just spew out graduates into the world and tell the profession: "They're your problem now."

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  4. P. 3:
    "Broader Delivery of Law Related Services:
    This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education." While the law schools are still pumping out almost twice as many graduates as there are jobs available, this proposal would cannibalize potential job opportunities."

    I'm a cynic, so my response to this proposal, is that perhaps the ABA is correct. Perhaps the market for small time legal work should be shifted into the hands of paralegals if the ABA's goal is to produce legal services for a cheaper price. (I'll omit a discussion of how if you think lawyer quality is uneven, paralegal quality is even more inconsistant IMO)

    But if this is the ABA's goal, logically they should not be pursuing broader delivery of legal services without simultanously advocating the substantial reduction of the number of law students.

    Once again the ABA candyasses its way through a study, refusing to acknowledge even the implications of their recommendations.

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    1. It already is in the hands of paralegals. This has been small (and Big) law's way of increasing its ROI in a continually deterioriating market. This is similar to the health care delivery model where you get to see a physician's assistant (PA) and the cost to the patient is the same. The only difference in the legal model as promote dby the ABA, if I interpret it correctly, is that these scriveners, paralegals, boilerplate populators will be making the ultimate legal decision(s) for their clients and as such they will need to bear the ramifications of screwing up. I can see it now, all those paralegals purchasing office space and malpractice insurance. As above, this idea is plain stupid and just adds injury to insult with respect to lawyer overproduction. However, these fools want to obfuscate the issues - when the answer is clear: There are too many damn lawyers in this country relative to the available legal work to sustain a middle class lifestyle, no amount of curriculum rigging is going to amount to a hill of beans of the jobs are not there (and they aren't). Reduce the supply of lawyers, reduce the costs of attendance, quit allowing every LLM wannabe into the bar, quit outsourcing legal work to foreign countries, mandate that law schools must not increase their tuitions above a certain threshold else none of their students will be eligible for government student aid. That's just for starters...

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    2. I'm reading this as a rent-seeking grab for law schools to bring paralegal training and paralegal-type training under the legal education umbrella. In all university paralegal education and training programs I'm aware of, the program is not under the direction of the law school but under the liberal arts or continuing education departments. The ABA would like to change this.......

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    3. Interesting point about the ABA wanting to expand the power of paralegals, the underlying reason being that the ABA (and state bar associations) could make inroads into regulation of that industry and this draw fees. And you know that law schools would all then open up lucrative paralegal programs, making what was once a low-cost community college associates degree into a high-cost BA or masters. Imagine the revenue stream for struggling law schools if they could expand in an undergrad direction instead of an LLM direction.

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    4. The best thing about the proposal to allow people to become lawyers without a law degree is that it takes the law schools out of the loop entirely. If what they are teaching isn't relevant (or, isn't worth $200,000) then they get nothing.

      However, it's a huge slap in the face to grads from the last 5-10 years who are saddled with that debt.

      The great hope in such a plan is that it will close down the third tier schools. Harvard et al won't be affected, but it may be that people will skip Cooley if they can just sit for the bar. Not sure if that is realistic, though. Law school is basically a sorting process that flags people with school pedigree and class rank, so employers don't have to work too hard to screen candidates. It's unclear whether employers will look outside that model.

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    5. Cutting out the wasteful middleman - law schools - would be perfect, and would no doubt spawn a sub industry of bar-review type courses that extend far beyond mere bar review and essentially act as cheap online or distance learning law schools without the stigma of having gone to law school in such a manner.

      The hard part would be convincing students who would attend low ranked schools that they should skip the JD because their chances of employment post-JD would be the same as they would be if they bypassed the JD. But law schools will undoubtedly redouble their efforts to manipulate their employment data to make it look like a JD was a sure fire way to get a job.

      It's a kick in the nuts for recent JD grads, but it would be a kick I'd happily spread my legs for. At this point my goal in life is to live to see undeserving law schools fail. Anything that speeds up that process is a friend of mine, be it student loan reform or allowing bar takers to skip the JD. The end justifies the means.

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    6. As other commenters here point out, this is probably a way for law schools to capture the paralegal accreditation market. If they the ABA got their way you bet they would make paralegal accreditation require an expensive 4-year Bachelors degree - only available from ABA law schools of course.

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    7. I'm guessing that the accredited !aw schoo!s are going to piggyback on Obama's speech and propose a 2-year, post-BA para!ega! degree as the new standard. At enormous cost to the student, of course.

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  5. Meanwhile, at the University of Colorado School of Law, the dean is starting a career development committee focusing on “non-traditional legal jobs.”

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    1. This actually sounds like a good idea to me. It is an acknowledgement that the attorney job market is flooded with JDs and because so many of them will not get traditional attorney jobs, they need to look at and try to develop other options. It will be interesting to see what, if anything, comes of it.

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    2. Rearranging deck chairs.

      I wonder if a Professor Campos will participate in this, of if he will dismiss it as superficial and failing to address the bigger problems.

      There is no need for committees. It's time for action. The problems are well known.

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    3. I have to agree with BabBam. If law schools really wanted to expand the job opportunities for the large group of graduates who do not get bar passage required jobs, they need to start working towards expanding the type of positions that are hospitable to their JD's. Perhaps it is the subject of a future post for me.

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    4. They have to "expanding the type of positions that are hospitable to their JD's". That sounds nice, but how do you do this? Law schools can't create (permanent, quality) jobs from thin air. At best, they need to sell their graduates to industry.

      BUT they are competing with the engineering, economics, MBA, history, education, etc. departments in selling their grads to industry. What does a law grad have to offer an advertising firm or a soda company that the education or engineering grad does not? Law school is LAW school for a reason, right? They are not engineering or history schools. Law school does not teach thinkin' any better than the philosophy or engineering programs, no matter how much Law profs might squawk that their thinkin' is better or different than anyone else's. What do they have to offer industry, that is so different and special as to be worth their enormous price tag?

      There are already other schools that offer what non-law industries are looking for. Their faculty and staffs have established relationships with companies looking for new hires. They have alumni at these companies who return to their departments to recruit. These other programs have the network, the information, and the skills. And law schools want to jump in and compete with these established programs? Foolish and wasteful. Better to just defund the law schools and give the money to the departments with a proven track-record of success in non-law training.

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  6. "The pursuit of quality by law schools has unquestionably led to a strong system for training lawyers, and the ABA Standards have played a key role."

    Not quite. Under the ABA standards, law schools provide a legal education; they do not train law students. Yes, some law students receive some practical training in legal clinics, but there is no actual training required in order to receive a law degree. In fact, a law student could go through the entire three years and graduate with a JD without even speaking with a practicing attorney. This would not be possible in most other countries and this is a serious problem with US legal education.

    Secondly, if it were true that "the pursuit of quality by law schools has unquestionably led to a strong system for training lawyers" then why have law schools only recently become so eager to make their graduates "practice ready?" The reality is that law deans and administrators understand that for most of their graduates, the tight market has seriously eroded the value of a law degree with a 100% education component. Furthermore, most students are not receiving practical training through law firms as the availability of summer clerkships have declined. The growth in legal clinics at law schools is a tacit admission that legal education should have a practical component and that students who have some practical training through a clerkship or legal clinic have an advantage in the job market. This has nothing to do with ABA requirements. The problem is that these clinics are expensive to run and the cost is reflected in the staggering tuition charged by law schools.

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  7. Proposed Definition of Legal Training


    "Legal training means work accomplished under the supervision of an experienced and licensed attorney on issues in dispute, under negotiation, or in progress, or standards for which compliance is required or recommended."

    ABA please feel free to use this definition.

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  8. Wasn't there another professor whose claim to fame is a worthless study of how Hip Hop music influences legal anslysis which will never, ever, ever get cited or referenced in any opinion or treatise or bar journal ever!???? What the hell kind of legal scholarship exactly are law schools contributing to the greater society...total joke ABA.

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    1. So-called full-time (6 hours of class per week, max) law professors willingly participate in the Scam that the ABA has allowed the field of law to become. They'll accredit pretty much any institution. The need for new law schools ended, I would say, sometime circa 1967 or thereabouts. At least certainly for private law schools.

      Isn't the goal of teaching for the student to surpass the teacher?

      In law, this can NEVER happen. Law is (Word for the Day kids!) "stratified".

      Clowns from the T10-T6 schools go and become law profs at lower-ranked law schools. They get their Ticket punched and it's punched on the backs of their students. If they are full-time (6 hours per week, max) with no other outside employment, then that's how they make their living.

      Many of The "Best and Brightest", rather than face the grind / Grinder of law practice daily, instead choose to retreat to academia where they have a cushy ride, easy work, a bully pulpit for their meaningless scholarship, and plenty of boot-licking students to play mental games with.

      A student at a T50 school is NEVER going to surpass her T6-T10 law prof. Ever. She'll never have a shot at a cushy teaching job, unless it's at some community college or maybe, if she's lucky, she can re-tool and go teach 5th-grade History somewhere after getting her Masters in Ed.

      And the prof gets to see her sent out at graduation into the Grinder - something they don't do - and won't do - themselves. A new batch comes in, and it's another Day in Paradise for our Academic Heroes.

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    2. 9:26am - yes, you may be referring to our good friend andre douglas pond cummings. The ever so progressive white dude who has found a niche in not using capitals.

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    3. I think the hip hop article prof was female.

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  9. Those poor Cravath Attorneys. Bonuses only as 2012 levels and average profit per partner only 3.43 million .http://online.wsj.com/news/articles/SB10001424052702304355104579234532878565404

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  10. Issue spotting101- Can you spot the conflict in these two statements?

    1. "The pursuit of quality by law schools has unquestionably led to a strong system for training lawyers, and the ABA Standards have played a key role...."

    and

    2. "[A] commonly stated purpose of law schools is to train lawyers, but there is no consensus about what this means."

    Jesus H. Christ, ABA, how can you say that ABA standards have contributed to something and then state that there is no consensus as to what that something is?

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  11. I still don't see it. Even if it were a great deal, practice ready grads, quality education, etc., why in the world would anyone sign up to pay $1,650/month for 20 years?

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  12. Calvin Coolidge (the President that DIDN'T start a war), practiced law by going to college, then working as a law clerk for 18 months, and passing the bar. How about that for legal education you mincing bastards....

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  13. The hip-hop scholar is Folami at Hofstra. Take a look at her ratings on Rate my Professor. They are terrible.

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    1. Hofstra students are getting real value from Folami's scholarship. I bet she will get a lot of cites from courts.

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    2. Damn it- I took a swipe at the great andre douglas pond cummings and was wrong. He is a crafty guy.

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    3. There's two hip hop law scholars? Fuck me, there must be a lot of hip hop law issues to support two entire scholars!

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    4. With professors like this, no wonder hofstra dropped 24 places in u.s. news this year.

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  14. "The pursuit of quality by law schools has unquestionably led to a strong system for training lawyers, and the ABA Standards have played a key role."

    Oh, yes. Law schools pursue quality by admitting people with LSAT scores deep in the 130s. The ABA's standards play a key role by accrediting new toilets all the time and entrenching the hackademic professoriate. A fat lot of good that does for quality.

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    1. This is a great point. My own tier 2 has seen a 5 point drop in the medium lsat in the last few years in a losing effort to keep enrollment stable. Many aba accredited schools have open admissions now and the aba just whistles through the graveyard of the profession.

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  15. If it's unquestionable, why are there thousands of people who question it?

    If it's unquestionable, why is there an ABA task force attempting to propose fixes to it?

    If it's unquestionable, why is it a truth universally acknowledged that law school does not actually train lawyers?

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