“Mentoring” versus “Scamming”
posted by Dave Hoffman
In law school teaching, as in dance competitions, it's important to know when to spin on a dime.
Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968). In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise. She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement. She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.
It’s a good teaching case. But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry. Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.2 But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.” Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)
But how far, I mused outloud in class, does this argument run? Let’s say a student comes to your office hours early in the Fall semester. They are lost. Really, desperately, lost. They are working all the time, but they can’t see the forest, the trees, the continent, the planet. Law’s greek to them. What to do? One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.
I have had this discussion with a handful of students over the last seven years, though always after the first semester and usually after a pretty lengthy exploration of their goals, resources and capabilities. But, to be honest, I am never sure if the talk is a good idea, let alone morally compelled. Putting aside Bar passage – and at Temple, I have that luxury as almost every student passes on their first try – I know that I have very little information early in a student’s career that will meaningfully predict if they can earn a living as a lawyer. I will know something after the first semester about if they’ll get a job at a large law firm. But that’s a narrow slice of jobs for all law school graduates outside of all but 10-15 schools (or, more precisely 5-10% of law school graduates). What I don’t know about students is their motivation; their people skills; their social connections; their ability to bounce back. In short, I know almost nothing about their human capital. And nothing in my training or teaching has made me particularly good at making snap judgments about that really hard to measure set of attributes. In fact, I know that I tend to overvalue a certain set of skills – intellectual, verbal, etc. – and discount social ones. This problem of mis-prediction is particularly acute early in the first semester. Many confused students turn it around. Some don’t. I have never been able to predict which will be which.3
So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades. (True, if success means money earned.) I tell them that I felt confused in my first semester. (True, and it’s also true that Contracts was my least favorite, and least understood, class.) I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace. (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.) I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role. In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.
Should I feel bad that I encourage people who may not succeed? Should I start every conversation with a Vokesian disclaimer that is brutally frank about their current level of skill? I just don’t see it. That’s not, I think, what an educational institution is supposed to be about. We’re selling the possibility of self-improvement, and economic and social momentum. People need to believe in that possibility if they are to realize it: optimism actually makes people better, more competent, and more satisfied with their lives. There’s a corrosive cynicism in the “scamblogs” which would, I think, turn that idea on its head.4 We owe our students more.
Notes:
1. Is she a 51 year old widow? Or was she 51 years a widow? It’s not just Cardozo who can write lyrical sentences that are hard to parse.
2. That something is expensive doesn’t mean it’s a bad idea. But I fear that too often reformers in legal education (and elsewhere, of course) don’t think clearly or well about trade-offs. Making law school more expensive would be good for current incumbent lawyers. It would be bad for prospective lawyers and current clients. I’d prefer that law schools be regulated less, and for them to compete on price, disclosure, internal governance, and educational program. For those that say “why don’t they do so now,” the answer is “because the ABA doesn’t let them.”
3. Not knowing whether someone is going to succeed as a lawyer isn’t the same as not knowing how they are doing as a student, or the claim – obviously silly – that we can’t evaluate relative merit at some kinds of lawyer-relevant tasks. Law school sorts students by grades, and I’m committed to making grades pretty good reflections of how well students exercise legal judgment. The point is merely this: we ought to be humble in our predictions of how well our students will do once let loose in the world. We provide a knowledge base. The Bar Exam licenses. Neither guarantees success, happiness or wisdom. Even lawyers with fantastic legal judgment might not rake in cash.
4. Nothing in the above discussion at all approves lying about data. Or increasing tuition above inflation yearly. Or teaching the same thing as we did last year simply because …well…because we did it. Or being a nitwit, a bore, an ideologue, a lazybones, or a sociopath, unable to see the pain of students who can’t find jobs. I’m against being bad at your job, and I think that being good at your job means realizing that we are teaching people to be lawyers, and our students rightly expect that we set them up to succeed.
November 22, 2011 at 11:27 pm
Posted in: Contract Law & Beyond, Law School, Law School (Scholarship), Law School (Teaching), Law Student Discussions
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Responses (40)
paean - November 23, 2011 at 3:34 am
Professor Campos is arguing that the costs of becoming a lawyer are too high, largely in the form of law schools charging their students tuition far in excess of what their degrees are actually worth on the market. How does that translate to advocating higher barriers to entry?
Make no mistake; the problem with the proliferation of law schools is not that they produce more lawyers per se; the problem is that they expect to produce more lawyers who charge staggering rates.
And the question isn’t whether your students can eventually earn a living as a lawyer. It’s whether they can escape the black hole of debt having jumped into it with zero job prospects at the most important stage in their lives, career-wise.
Dan - November 23, 2011 at 1:58 pm
For those that say “why don’t they do so now,” the answer is “because the ABA doesn’t let them.”
If the ABA is comprised mostly of deans and administrators, doesn’t this sort of nullify this justification? It seems to me that most schools, via the ABA, are operating within a self-regulating system.
Scott Fruehwald - November 23, 2011 at 2:58 pm
When I was in law school, I had a friend who did poorly her first year. The last two years, however, she had the highest G.P.A. in the class. After law school, she got a job with one of the top law firms in Louisville.
Barbara Seville - November 23, 2011 at 3:36 pm
Thanks for that highly probative 20 year old anecdote.
bitter lemon - November 23, 2011 at 3:54 pm
So really you just lie to students?
Glad I had Mehra for contracts then.
Quinine - November 23, 2011 at 4:02 pm
Your argument, Mr. Hoffman, is that you do not have the data to know how well a particular student will do once he graduates. In other words, when the student comes to you to ask for advice, you can’t give him any advice because you don’t have the information required to know how well he will do if he stays in law school, or if he leaves.
That’s not true. Schools know how their students do. They have the data to properly advise the student, and to properly advise prospective students.
However, they do not use this data. They hide it from the student. Not only do they hide it from the student, but in its place they publish fraudulent and misleading data. They claim a 99% employment rate, when that includes part time and non-legal jobs. They claim a median starting salary of $135,000 by intentionally using only salary data from an unrepresentative sample. This is as heinous and opportunistic a form of fraud as exists.
Who pays?
1. The student who is deceived by the fraud into attending a program that he would have been better off avoiding. They lose their one shot at a worthwhile education.
2. Competitor academic programs, whose honesty, whose honest career placement numbers, just can’t compete with the fraud pumped out by law schools. Who would want to go to physical therapist school when Temple Law Grads have a median private sector starting salary of $135,000? (Mr. Hoffman teaches at Temple and I assure you that figure is a damned lie). They lose students and tuition revenue.
3. The nation’s economy who loses responsible and hard working youth to the black ooze of legal education.
4. Most importantly, the taxpayers, who will have to pick up the bill when the graduates can’t find jobs and so are unable to pay their federally guaranteed student loans.
Shame on you Mr. Hoffman. Shame on you.
Barbara Seville - November 23, 2011 at 4:07 pm
“I tell them that the Law School’s most successful graduates got bad grades. (True, if success means money earned.)”
Can you provide meaningful statistics demonstrating that this is true?
dave hoffman - November 23, 2011 at 4:29 pm
Barbara. I’m not sure if you will accept this as a “meaningful statistic.” I’m reporting on the knowledge I have from talking to some of the law school’s more successful alumni. (Defined, again, as earning money). Now, that’s not of course to say that average earnings over a career aren’t correlated with grades. Of course they are! But my point (which Quinine I think missed) is that grades are a predictor of whether you will get a law firm job, but not whether you will be a successful lawyer. Law schools simply don’t have long-term systematic data on their alumni. Maybe they ought to (though, to be fair to schools, that’d be a very expensive undertaking). But in the absence of that data, and without knowing the kind of factors I talked about in my post (social capital) I don’t see how we can predict success. All we can do is tell you brute statistics for a year or two out of school. We can, and should, reveal those statistics in useful ways. Maybe you haven’t read what I’ve been writing on this topic for the last several years. But I’ll just say this: if you think that the only successful lawyers are those who did well in law school, I don’t think you have talked to many practicing lawyers.
I’m sorry that Paul Campos, and his readers, don’t want to engage what I’m saying on the merits. I’m also sorry to have to remind folks that this blog, unlike his blog, isn’t an open forum. Please post under your own name, or be civil. I’d prefer both.
Gilman Grundy (AKA FOARP) - November 23, 2011 at 5:06 pm
“I sometimes tell them they are improving though they aren’t”
What do you call a professional who, when asked for truthful advice, tells you what you want to hear, rather than the truth?
CHS - November 23, 2011 at 5:28 pm
It is a difficult question that Campos does not really engage. So-called Big Law is the fixation both because It is seen as the only way to get enough money to pay back loans, and because of its perceived glamour. So I suppose the argument is that unless you have the grades to work in a top 100 firm, you should drop out of law school. I took you to be saying that because some among the number of students who have not had top grades can have good careers how do you know, unless the person is near failing, which specific ones to tell to leave? We deal with abstractions on blogs –”the student who comes to your office”. When it is a flesh and blood,say, B/B+student who is not heading to a big firm, do you say, “Just quit.” His commenters would say that, calling themselves tough- minded. But this is the same crew who when he asked for volunteers to go on CBS to tell their stories, pretty much faded. He had a tough time getting anyone to step up. He went pleading to another law school discussion site for volunteers. He has people now after what, from his comments, was a real concerted effort.
Bruce Boyden - November 23, 2011 at 5:31 pm
Perhaps we should end every lecture, Cicero-like, with “Law school must be destroyed.”
LaVonna - November 23, 2011 at 5:43 pm
Professor Hoffman: Grades matter. They matter oh so much, and not just for BigLaw, or firm jobs in general.
I’ve been out of law school for more than a decade, and guess what? My law school grades still matter. Can’t emphasize that enough. Employers are asking for “excellent academic credentials” for positions that require years of specific experience (when you’d think that those years of specific experience and stellar references would do the trick). Not to mention the jobs that require BigLaw experience, and of course you won’t have had the opportunity for that BigLaw experience without excellent grades. Same for in-house positions that require previous in-house experience that would have been a natural off-shoot of a BigLaw position. Even small-time (low pay/prestige) positions are demanding people at the top of their classes. Of course, this is all a reflection of how unbelievably saturated the market is. (And yet law schools keep admitting the same number of students! It’s strange.)
I fondly remember when we got back from winter break as 1Ls, first semester grades in hand, our contracts professor tried to reassure our section that “grades only matter for your first job.” I’m not sure that was the case then, and it’s certainly not the case now.
I’m sure you will want to continue to keep abreast of this fun and exciting wrinkle in the legal job market, so you can even better advise the students who come to your office seeking advice on whether to drop out of law school.
Gilman Grundy (AKA FOARP) - November 23, 2011 at 5:45 pm
@CHS -
You make several points about Campos that I don’t remember him ever actually saying. I don’t remember him saying that only Big Law paid enough to repay loans. I don’t remember him ever saying that only people who are going to get in to top 100 firms should stay. Perhaps you would like to provide links to where he has said these things?
As for “the difficult question that Campos does not really engage” with – I am amazed that you put it in these terms. If the question really is “why shouldn’t I lie to students, or at least refrain from admitting that I don’t know the answers to their questions”, the question really is why anyone has so lost hold of their moral compass as to think this is an issue over which there should be any debate.
As for “who knows” how certain students are going to fare, since you are (I am presuming here) working for an educational establishment that collects data on student employment prospects, but which chooses not to make available data that would allow better assessment of student employment prospects, perhaps you should see this as an action point?
As for the rest – his commenters are mainly the unemployed. I do not know whether you have ever been unemployed or not, but the first concern of the unemployed is to find work. It is not surprising that few are willing to take what might seem like risks. And, as far as I know, he has managed to collect enough volunteers for the CBS piece. Good news eh? I’m sure you’ll be the first to congratulate him.
Gilman Grundy (AKA FOARP) - November 23, 2011 at 5:54 pm
@Bruce Boyden – If you think that’s necessary. Why don’t you ask your ex-students what they think? Say, an entire class of them three years after graduation – including the large percentage (~50% perhaps?) who never even managed to properly enter the legal profession?
CHS - November 23, 2011 at 6:20 pm
@Gilman Grundy — I was not answering your specific question. I was speaking about the general subject of the original post– under what circumstances do you tell people to get out? No, I would not tell someone they were improving if they were not.
Campos is a law professor. I have no reason to think he is fixated on Big Law. The comment sections of his blog and other scam blogs devote a lot of energy to Big Law. And that makes sense in one particular regard: having a high paying job helps people pay back loans. Who pays beginners 160k per year but Big Law. All the talk about the need to report
salary information stems from the desire to know whether you can get a job that helps pay off loans.
You presume wrongly.
I think it is great that he has people who want to talk. You misunderstood my point. I know it would be difficult to come forward. Who knows how journalists will spin the story and edit the piece? And it is not likely that many folks will be sympathetic to lawyers. Other students burdened by debt, maybe. I was merely contrasting the bravado of many of the comments with the response to his request. I remember visiting the site during one period that a commenter who was dubbed “Steroid Guy”, or something like that, was taunting the others saying they they would be afraid to confront people about their complaints.
Fred Smith - November 23, 2011 at 6:41 pm
It’s hard to predict the fate of any one specific law student, yes, but its easy to predict the fates of large number of nonspecific ones. We know that the system, as currently instituted, sets up large numbers of graduates for failure. We know that everybody can’t be in the top 10% and we know that X number of new legal jobs are created each year for the 2X or 3X of new graduates.
At the risk of misunderstanding you, it sounds like you are trying to use the difficulty in predicting specific outcomes as an excuse for taking no action to prevent the entirely predictable nonspecific outcomes. I think we should all accept that the critical moment is enrolling in law school to begin with. After that point, it is very hard to save a law student from himself. Law schools could do a lot to save potential students from ever enrolling, and law professors could play a big role in providing the moral support for such reform efforts. That is what Paul Campos is doing.
CHS - November 23, 2011 at 6:53 pm
You are right. People should be encouraged to think hard before they make the decision to go to law school,and they should be given the tools to help them do that. But once they are they are there, which this post was about, which ones (besides people who may be barely hanging on) do you counsel to leave. You acknowledge the difference between the pre-enrollment and post-enrollment situations.
Bernard Jones - November 23, 2011 at 6:56 pm
Here’s a useful little something to keep in mind: the course of your career in the first three years after graduation is generally predictive of your entire career. So if you’re a student with top grades/prestige/honors, chances are you’ll land a valuable clerkships or biglaw position, which will sets you up for a career in another large firms, first run government jobs, or if you’re incompetent, legal academia. The ticket is written, you just have to market it.
But if you’re unemployed/underemployed at the gate, you’ll have a much harder time moving up the ranks. A new grad who has to settle for temp doc review, no fault, landlord-tenant practice for the first year or two of their career will likely never practice anything else because (surprise) they have no training in another area of law and their current position lacks the prestige to get them into another field of practice.
Likewise, somebody who opens up a solo practice is unlikely to join an established firm. Statistically, people who end up having to take the solo route never get back on track. This is before you factor in the quarter mil of debt some of these kids had.
That’s what you’re dooming your students too, and that’s the reason Campos and everyone else gets so worked up. And sadly, even the people who settle for the lower rungs are the lucky ones, since 50-60% of JDs never even get the chance to practice law in the first place but are squeezed out of the market. Of course, you’re convinced that even unsuccessful students make the big bucks because you’re ignoring the graveyard effect (that is, you don’t hear about/see the grads that totally struck out and are ostensibly off the market).
And it’s not just the recession. There was once a blog called Wicked Words written by a Temple alum. Poor girl basically documented how screwed she was after graduating from your heap in 2007. Was she one of the few you “saved”?
LaVonna - November 23, 2011 at 6:56 pm
@Gilman Grundy: You make an excellent point about why unemployed recent graduates are reluctant to come forward. It’s a terrifying time to be unemployed, especially with such huge debt burdens hanging over you.
I agree that many readers of/commenters on Campos’s blog are unemployed. At the same time, many readers/commenters are employed (or at least “underemployed”), are frankly horrified and disgusted by what’s happening to the legal profession–especially the nonexistent job prospects for such a huge percentage of the recent, and heavily indebted, graduates–and can’t understand why the “legal academy” isn’t up in arms over the whole sorry state of affairs.
“[T]he question really is why anyone has so lost hold of their moral compass as to think this is an issue over which there should be any debate.” Indeed, and well said, Grundy.
CHS - November 23, 2011 at 7:17 pm
@BJ, what studies are you relying on for your first statement?
paean - November 23, 2011 at 7:36 pm
@CHS
Campos did make the more important claim that law school tuition has quadrupled in real dollars over the past thirty years. (link) Irrespective of his opinions on whether that money is spent wisely, the debt load on students has increased proportionately. So it doesn’t take a Biglaw salary to pay off your loans–as long as you don’t mind taking twenty years to do so.
For example, that letter he published from two married Michigan ’07 grads, both employed, who started with a combined $340K in debt and still have $96K to pay off. And they graduated in 2007; imagine how crazy these numbers are going to get for the Lost Generation.
Bernard Jones - November 23, 2011 at 7:45 pm
@ CHS: a few law review articles have examined the ROI on a law degree for high performers. That and the general understanding that those with best grades/schools tend to land the type of prestigious trappings that lead to more prestigious trappings
CHS - November 23, 2011 at 8:12 pm
@Paean–It would not be irrational to prefer to get a job that allows for paying the loans off more easily and before 20 years.
@BJ –it was such a specific statement, with a stated time period (3 years), that I had to ask. To talk about about predicting the course of careers, and tying it to things that happened in the first three years, would require some sort of longitudinal study.
Morse Code for J - November 23, 2011 at 9:10 pm
It is false to say that a “more rigorous disclosure regime” is “very, very expensive.” The regime itself will cost almost nothing to implement. The cost to law schools whose tuition is not justified by their employment outcomes may be enormous, but that has nothing to do with implementing the regime. As it happens, law schools already collect and provide most of the information to NALP, although law schools and the ABA do their best to round off whatever sharp edges might protrude from the NALP’s collation and analysis.
NALP already collects the following information in its survey:
I would also point out that NALP reports salary data back to the schools at the 25th, 50th and 75th percentile levels, even though the schools publish average or median starting salaries to cancel out the low salaries in the bimodal salary distribution curve common to law graduates. Again, for no more resources than are currently being spent, law schools could provide incoming students with a far more honest view of what they can expect to earn out there. They could certainly indicate how many people aren’t reporting salaries at all, which also tells prospective students something about a law school. Needless to say, law schools aren’t racing to meet any standard approaching full disclosure, unless they’re being sued in federal court for fraud.
In the future, try dismissing transparency reform for some reason other than its expense. It won’t make the dismissal more intellectually honest, but at least it won’t make you sound willfully uninformed.
Dave Hoffman - November 23, 2011 at 10:08 pm
All,
Fred Smith, who I hope is writing under his own name, makes a useful point. I do think that law schools ought to enroll fewer students in recessionary times. (And perhaps for the foreseeable future.) But note: (1) this is in the interests of incumbent practitioners; (2) this is not in the interests of members of the public who want more supply of lawyers and thus cheaper prices; (3) this is not in the interests of undergraduate students, whose tuitions are partially subsidized at some universities by law students. (Indeed, at many law schools, the university determines the size of the class, with little or no input from the law school faculty, dean, or alumni).
Morse Code for J (who, I imagine, isn’t writing under his or her name). I have talked to law school career counselors at several schools who assure me that there are enormous costs – opportunity and otherwise – to some of the kinds of changes that the ABA (and LST) is proposing. Some schools will feel those costs acutely, especially those with particularly small career services offices. I guess the question becomes this: who am I to believe, the people who are actually doing the work and will be responsible for compliance, or an anonymous internet commentator?
Again, that’s not at all to say that law schools current information disclosure regimes are optimal. I don’t think they are. I think we’re in a badly regulated market – and it’s only going to get worse. What I’d prefer to see is competition on disclosure, with the ABA auditing the data for accuracy. Law schools should try to give students as good a sense as possible of the static and long-term “job market”, the kinds of credentials that different employers seek, and the historic performance of graduates. And, yes, I’m advocating for better data visualization too.
p.s.: As I wrote earlier, I’m pruning this thread of comments that are, in my opinion, off-topic, uncivil, repetitive, or (most importantly) defamatory. If you want to know why your comment was removed, email me.
LaVonna - November 23, 2011 at 11:04 pm
Professor Hoffman:
Enrolling fewer law students “is not in the interests of members of the public who want more supply of lawyers and thus cheaper prices”? Please do elaborate.
Right now in this country we’ve got lots and lots of un/underemployed attorneys, as well many JD holders who have left the legal profession, either because they never had a chance to get started in it or because of the lack of opportunities to make a decent living. (And notice I said decent, not extravagent.)
How, exactly, is continuing to dump more and more JDs into this environment–especially when they are burdened with such huge student debt loads–going to result in cheaper services to the American public? I am genuinely curious.
Dave Hoffman - November 23, 2011 at 11:16 pm
LaVonna,
Thanks for your question.
More entering lawyers means more competition for jobs, with predictable effects on lawyer salaries (static to declining) and thus downward pressure on how much clients pay for legal services. This will occur at the high-end of the market. With more competition for each slot, firms can experiment by offering lower salaries. Take Drinker, the subject of the NYT article. They cut their entering and associate-stream salaries significantly, and (I hear, but haven’t confirmed) reduced their billable rates. The same is true for several smaller “boutique” firms I know about in the region. In a world where each firm’s bonus announcement was breathlessly awaited by the blogs, I don’t think these strategies would fly.
Excess supply will also influence the “cheaper” end of the market. Just as a for-instance, more students will put out their own shingles, and attempt to solicit work that previously they wouldn’t have wanted to take — perhaps, for example, very cheap representation for traffic tickets, real estate closings, T&E for the poor. These are classically underserved legal practices, because you have to work very, very hard to make even a decent living. (It’s commoditized work for poorer people, after all.)
A world where more lawyers make less money and can’t bill their clients at rates that at least keep up with inflation is a bad future for me. It’s a bad future for my students. It’s a bad future for many of my closest friends who are practicing lawyers. I don’t want that future, but I figured it worth mentioning that prospective clients might actually prefer it.
Deborah J Merritt - November 23, 2011 at 11:27 pm
Dave, check the NALP presentation that “Morse Code for J” linked in his comment. Here’s a link to the full presentation:
http://www.nalp.org/uploads/blogs/JLeipoldABARemarks_12_13_2010.pdf
NALP’s executive director made this presentation to an ABA committee almost a year ago. In it, he explains NALP’s data collection process–which has been going on since 1974, and is well understood by law school career offices. All of the necessary data are already available at every law school: Each school collects reports from individual students and transmits that information to NALP. NALP then tabulates the data and sends it back to each law school. The schools don’t even have to do the calculations.
So schools could disclose these data today with no work other than posting the information. It would be extremely simple, for example, for schools to disclose how many of their employed graduates worked only part-time. The schools have already collected that information and sent it to NALP. NALP has done the counting (if the school hasn’t itself–it’s pretty simple tabulations) and sent the information back to the school.
Last year’s presentation also revealed that NALP was already making “best practices” recommendations that schools were disregarding. NALP, for example, specifically improved its data collection to allow publication of 25/50/75 percentile salary numbers–and it made clear to schools that it would be better to publish all of those percentiles (calculated by NALP for each school) rather than just the median. But many, perhaps most, schools continued to post just the highly misleading median (given the bimodal distribution of salaries in the entry law market)–in the face of NALP’s recommendations.
The NALP director did acknowledge that career services officers spend an inordinate amount of time collecting employment information, and that this detracts from other important work they could be doing. *But* he makes clear that the CS folks are already devoting this time–they do it largely so that they can report the highest possible numbers to US News and on the school’s website. “Missing” graduates don’t count as employed (or, in some formulations, they count as only a fraction of employed). All of this work has been going on for years and is well entrenched in law school CS offices. Unless we can ditch US News, it’s hard to imagine that schools will stop making this herculean effort.
Finally, as the NALP director stressed several times in his presentation last year, all of the requests from law school transparency advocates can be answered with data already collected by NALP. Career services directors may be unhappy about disclosing the data, if they think their school will make a poor showing, but it is hard to see how disclosure of existing data would create a lot more work. In fact, the CS offices already spend time massaging and redacting the data to create the information currently published on many websites.
Here’s something you could do given the interests you express in this post: Ask your dean about the NALP data for your school, and ask to have that information revealed to the faculty for discussion. The data for 2010 recently became available. Shouldn’t the faculty at least know the full data on graduates’ employment? As you point out, faculty do a lot of mentoring and ad hoc career advising. As professors, wouldn’t we do a better job counseling students if we knew the data that our CS offices already collect?
Then the next step is disclosing that information in usable form to students and prospective students. Our law school is already planning to do that, with expanded 2010 information going up next week. Will your law school do the same? I agree that disclosure is a point on which law schools may be able to compete. Schools that disclose more data will be able to say to admitted applicants over the next few months: “If you’re weighing an offer from another school, ask to see their “comps” for the data we disclose. If they don’t tell you, be very, very wary.”
One final thought: The most difficult part of collecting data centers on obtaining salary info. There are holes in those data. I see that you, like me, have done some empirical work. So we know that there are ways to improve collection of that information. E.g., collect salary data in completely anonymous form–rather than on the identified forms currently used. You might have other ideas. That would be a good topic for a future post: How to improve collection and dissemination of this information from an empiricist’s perspective. That could offer some very useful insights. I look forward to checking some of your earlier posts on this subject–I’m a new reader of this blog. Best regards, Debby
A.J. Sutter - November 23, 2011 at 11:27 pm
@Bruce Boyden #11 – you mean M. Porcius Cato Major, a/k/a/ Cato the Elder, who held various offices in the Roman republic during the 3rd and 2nd Centuries BCE. Carthage had already been destroyed for about 40 years by the time Cicero was born. BTW, its inhabitants were sold off into slavery: not sure how far you want to push the analogy …
More generally: Sorry, Dave, but despite your good intentions in advising someone that he or she is improving when that’s not the case, it’s bad advice. OTOH, some commenters seem to miss the point that the role of a teacher is to inspire, not just to provide factual disclosure. Better would be to tell students that one can improve, and that other people have managed to do it. But also to tell the students that they have to look into their hearts and see if this is something that they’re sincerely interested in and enjoy — because without those factors, they won’t have the necessary oomph to do better. Lack of improvement doesn’t necessarily mean lack of intelligence, but maybe that the student really would be happier doing something else.
Telling law students they should study their casebooks (and, presumably lecture notes) super-hard can also be bad advice when they’ll only be tested on material covered in commercial outlines. My profs all advised us to avoid outlines like the plague. I believed this my first year, and got mostly Bs. My grades shot up the next year when I started skipping most lectures, and preparing from outlines almost exclusively, reading only the most famous cases. If you’re testing students in a bar subject like Contracts on stuff that isn’t in outlines, the question is, why? How will that help them pass the bar exam? Outlines also helped me in non-bar courses like IP, Article 9 and tax. A seminar or “law and…” elective is of course a different matter.
Where the analogy to Vokes gets shaky, I think, has to do with the issue of reliance on allegedly superior knowledge. Yes, law schools should be more forthright about graduate statistics. But when a student asks a professor for career advice, is it really reasonable to expect the prof to know much? Most profs never worked in a law firm beyond mid-level associate stage, if that; most never participated in hiring decisions, very few ever worked in-house, much less in alternative careers where a law degree was helpful; probably none were ever unemployed.
Some commenters seem to believe that, as someone once advised me many financial cycles ago, “If you’re good, you’ve got nothing to worry about.” But this is false, even for people who do get Big Law jobs right out of law school. I’m not denying that the determinism LaVonna describes in #12 often applies; and you can even add to it that if you’ve ever been unemployed, Big Law experience on your resume can help you bounce back from it in better shape. But as people get older this career track becomes more like a track drawn in 2D perspective: it gets narrower, almost triangular. More and more people fall outside the edges. Especially once you hit 50 — or possibly sooner, if you’re jobless or trapped in an awful job, have more than 10 years’ experience, but don’t have a $multi-million book of portable business.
BTW, my law school knows nothing about the vicissitudes of my career. I’ve had two periods of unemployment, as well as unanticipated self-employment. One of the periods of unemployment lasted just shy of 3 years; I had some self-employed income, but would never have made it without the patience of an incredibly kind landlord. I’ve also had several more successful phases (esp. after that 3-year desert), not all of which involved law practice, but where my law background was useful.
Obviously, people who enter law school in a good economy will be sandbagged if things go south during the subsequent few years. But while the current cycle looks particularly awful, financial cycles are nothing new. Prospective and current law students would do well to speak with both older and younger practicing lawyers before taking on so much debt, instead of relying on their professors’ advice and on US News. And law schools and law professors should be honest about how little they really know about legal careers.
Especially to those who are unemployed now, my best wishes for a happy Thanksgiving, and for a happier one next year.
LaVonna - November 23, 2011 at 11:59 pm
Professor Hoffman:
Excess supply has already influenced the “cheaper” end of the market. Here’s what I see happening again and again in the market where I practice:
New grads can’t find any paying position, so they hang out their own proverbial shingle. (This, despite the fact that, after graduating, they know nothing or next to nothing about the actual practice of law.) These new grads I see aren’t entitled in any way, a criticism I often hear. On the contrary, they want to do any kind of work to be an actual lawyer, because that’s why they went through three years of rigorous “training” and took on a huge amount of student loan debt. (I admire their optimism and resolve!)
But they have to pay the costs of having a practice–rent, liability insurance, advertising if possible–as I’m sure you are aware, having a law practice costs money. They also have to make enormous student loan payments. And, even more fun, they have to compete with solos who have been doing this kind of “cheaper end” work for years and already have the skills, advertising and referral sources in place. People tell me that the rates they charge for this kind of work have gone about as low as they can go already, and the market of potential customers for this work, even at these low rates, isn’t unlimited.
Some of these new solos will succeed; many of them will not. Some will take jobs bartending and waitressing to help tide things over while they try desparately to build their solo practices. I don’t see how the vast majority of them will ever get out from under their student loans.
I’d be willing to bet that at least a handful of your former graduates are in this exact situation. Going solo and doing “commoditized work for poorer people” in a saturated market is really a long shot, and, in my opinion, not in the public interest at all.
Deborah J Merritt - November 24, 2011 at 1:51 am
Dave, I’m intrigued now by your blog (as I said, I’m a new reader) and I think your reply to LaVonna overlooks three key points:
1. The market for legal services, of course, isn’t an open one; it’s tightly controlled by state supreme courts. Those courts, after consulting with bar associations, define the “practice of law” and require bar admission to engage in any of those defined activities. Lawyers, acting through the supreme courts, have been remarkably successful at limiting even very routine tasks to licensed lawyers. And bar associations vigorously defend those limits–witness all of the litigation over LegalZoom and other challengers to low-end legal services.
2. This might not matter much if it were relatively cheap to qualify for bar admission. Then there would be lots of competition to provide those low-end services. But almost every state requires a JD and, as we know, that’s expensive. And the people who earn JDs are qualified to perform many other jobs (including ones that they could have performed based just on their BA). When the profit from serving the low-end of the legal market dips below the salary that could be earned in other BA-eligible fields, lawyers rationally desert law practice for other work. That’s especially true when the legal work is routine and lacks other career satisfactions.
There are some extremely noble souls who labor for legal aid or otherwise serve low- and moderate-income clients for less money than they could earn in other jobs for which they qualify, but it’s easy to see why so many law grads desert law if their only option is work that pays much less than the non-law jobs they could perform.
3. An additional key fact is that state supreme courts in all but DC (and maybe soon North Carolina–I’ve lost track of that development) forbid lawyers from partnering economically with nonlawyers. So lawyers can’t get outside investment to kickstart a new practice. A lawyer can apply for a bank loan, but the lawyer can’t say to an investor, “I really will be a star. Bankroll my office expenses, liability insurance, etc for a year and I’ll give you 10% of my profits forever.”
On the large scale, this ethical restraint deprives law practice of the kind of entrepreneurship that might make low-end legal services more viable. On the small scale, it makes it very difficult for the individual graduates we’re talking about to start up a practice–as LaVonna so eloquently explains. Banks are unlikely to loan money to these new lawyers–they’re already over their eyeballs in debt through student loans. And if they seek other forms of investment, they’ll be disbarred.
These three factors create the market situation we’ve had for decades, but that is intensifying: Law school graduates who can’t find paying work, paired with clients who can’t find lawyers. The real help for clients will come, not from graduating more lawyers, but from (a) modifying our ethical rules to loosen the definition of law practice (allowing competition on low-end tasks) and (b) allowing entrepreneurial investment in law practices. The UK is ahead of us on both fronts, and other countries may follow suit.
Until the profession sorts out this mess, what should law faculty do? Well, at least some of us should help sort out the mess; we’re the part of the profession that has the ivory-tower luxury to think creatively, propose solutions, and press bar associations for reform without having to worry about getting client referrals from the people we press.
Meanwhile, it seems that we should all understand the market forces affecting our graduates as well as we can. I think each faculty should review its graduates’ employment numbers and indebtedness stats every year, before determining the size of the entering class and the following year’s tuition. We have the power to keep enrolling students, even though we know a large number will not be able to make a living practicing law–and that this surplus will do nothing to expand legal services–but that seems irresponsible.
Irresponsible not just in a moral sense but in a fiscal one. As far as I can tell, law schools have been able to maintain their current enrollments because of the easy availability of federal student loans. But is it right to ratchet up government spending that way?
Gilman Grundy (AKA FOARP) - November 24, 2011 at 2:11 am
“I have talked to law school career counselors at several schools who assure me that there are enormous costs – opportunity and otherwise – to some of the kinds of changes that the ABA (and LST) is proposing. Some schools will feel those costs acutely, especially those with particularly small career services offices. I guess the question becomes this: who am I to believe, the people who are actually doing the work and will be responsible for compliance, or an anonymous internet commentator?”
As an additional point to what has already been said about the viability of greater transparency in Debby’s excellent comment, and forgive me if I am misreading your sentence quoted above, but the people behind the LST project are very open about their identities. These can be seen here:
http://www.lawschooltransparency.com/about/team/
Also, since you have required real name usage on this thread – something likely top discourage the unemployed from commenting – are we also anonymous?
[I haven't required real name usage, I just prefer it, to encourage people to make reasoned arguments, like this one. I had an exchange or two with the LST folks, including a Q&A, on this blog. I think Debbie and they make very useful points, but I remain unconvinced that the new ABA collection procedures are the same as NALP's. And, as Debbie points out, the procedures are (right now) incredibly time consuming for individual schools to bear, and those burdens are felt disproportionately. Why not have an ABA run system of data collection, so we can share the costs across the entire profession? -Dave.]
Gilman Grundy (AKA FOARP) - November 24, 2011 at 9:48 am
Since Hoffman would be correct, based on the commenting policies on this website, to delete the above comment, let me rephrase it in different terms:
“I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.”
What you say above may well be true. What I think concerns people is that:
- If you tell people who, realistically speaking, don’t have the tools (even though they may be smart people) to get good grades just to work harder, and they rely on your advice, you’re essentially wasting their time.
- You risk appearing to blame lack of success of otherwise smart people entirely on their looks/lack of social graces.
- The apparent lack of any clear sign of introspection on your part as to the outcomes that your students experience from their education might increase the likelihood that people would draw such a conclusion.
Gilman Grundy (AKA FOARP) - November 24, 2011 at 9:55 am
“the procedures are (right now) incredibly time consuming for individual schools to bear, and those burdens are felt disproportionately. Why not have an ABA run system of data collection, so we can share the costs across the entire profession?”
Why not indeed? But since the LST proposals can be implemented without any further significant effort, the argument that they will lead to addditional costs is what falls flat here.
PS – “the above comment” referred to in 33 has already been deleted.
Dave Hoffman - November 24, 2011 at 10:01 am
Mr. Grundy,
It’s basically impossible to predict the lifetime expected earnings of a law student based on my contacts in the first semester. Even when the students get grades, and thus are in the running for particular jobs, it’s not particularly simple. The richest lawyers I know are not, and never were, lawyers are large defense-side firms. The poorest working lawyers I know are really, really smart and hard working. (Some are choosing the path, others aren’t.)
For some people, unfortunately, back luck and lack of social connections will hurt their ability to pay off their loans. That’s not blame – that’s just a sad reality. We don’t live in a society that rewards hard work, alone, nor smarts, alone. And legal practice is not an exception. I advise students to work on their social connections, their networking, to buy suits and polish up, etc. But that’s no guarantee. I think we’re not in disagreement about this basic reality.
But I’m confused, then, about the next sentence. What is this post if it isn’t a “sign of introspection…?” The fact that I can’t clearly predict the course of a students career is why I encourage them to persevere if I think they meet some minimal threshold of competency. I think that’s not an easy decision, because I recognize the stakes and the risks. I tell students all the time about the job market, though they often know about it. But I have a bigger role as a teacher than merely to disclose bad outcomes. I’m supposed to be a mentor too.
Bernard Jones - November 24, 2011 at 11:18 am
So your solution is let the market be flooded, the high quality students will still get jobs (but get paid less) and the rest can hang shingles and cannibalize each other like wolf spiders, all the while law schools continue to get their money for doing the same thing in the same way.
Way to go Dave
[DH: No, that's not my "solution." I think law schools ought to reduce their class sizes. Please do me the courtesy of reading what I write before you respond, or take your snark elsewhere. My point is that there are trade-offs here, and higher lawyer (and law professor) salaries take money, ultimately, from clients. Lawyers as a group make more money than they would if we didn't restrict entry to the profession, and didn't sue people who wanted to do lawyer-like work without a degree. That's why I agree with Debbie that over the long(er) term, law schools admissions practices are not as significant as what happens to OUP and profit-sharing rules.]
Gilman Grundy (AKA FOARP) - November 24, 2011 at 1:42 pm
Prof. Hoffman,
My outlook on mentoring, because of the situation in which I work (in-house IP), and, perhaps, the different levels of information available, is different.
I know that people who come in will have to be trained. I also know that, by the time their probationary periods are up, they should be in a position by which we can clearly see that they will be able in the not-too-distant future to do the job asked of them. I also know that keeping them in place when I believe that’s not the case wastes both my time and theirs. I also know that the earlier the intervention comes, the better.
I’ve also been in the position where I was working under people who weren’t giving an honest appraisal of the chances of myself and my colleagues. I saw colleagues be told that their jobs were safe one day, and get fired (with no notice – gotta love probationary at-will employment) the next by the same people. The people I was working under were simply telling us what they thought we wanted to hear. This was not mentoring, but pandering, and really a purgatory for us, who had our futures held in the hands of people who when push came to shove just weren’t being straight with us. After that experience, I swore I would never do the same to other people.
Now, perhaps you’re going to say that by the end of the first semester you do not have enough information to make such a judgement. Let us pass over the fact that the student-faculty ratio at Temple is 12.8, meaning that it’s not exactly as if there are so many students that it is impossible for you to make such an appraisal. Let us instead simply say that students who come to you for advice on whether to stay are not, as you yourself point out, very numerous. I would say that a lack of knowledge as to the particulars of a particular student should only be seen as an action point. That an exploration of their situation should be followed up by full and frank advice on at least what they can do to improve their grades, what targets they should be aiming for if they want to reach their goals, and to what degree those goals are realistic. The fact that there are exceptions to the rule should not stop you from saying what you believe the rule to be.
Put simply: optimism is not merely engendered by putting a positive spin on existing data. Optimism is created by showing a viable way ahead.
CHS - November 24, 2011 at 2:22 pm
I do not think the situations you are describing really compare to the circumstances of most law profs and students. Sure, in a department that is specialized, it should be easy to tell if a person seeking to rise through the ranks in that place, or industry, has what it takes. That is not so easy in a place where the mentees may not know what field they wish to pursue. I have several friends who began practice certain that they wanted to do X, and would never do Y, and ended up enthusiastically doing Y. Sometimes it is a field they had never considered.
If you think the situations are apposite, what would you say to a B student at a middling school about what he or she should do? What should be on the mentor checklist?
CHS - November 24, 2011 at 2:43 pm
I ask because the implicit message of some of the earlier comments was that people who are not going to get the prestigious jobs right out of law school should be counseled to quit because their career prospects would be dim.
Dave Hoffman - November 24, 2011 at 11:49 pm
Hi
Having come back from thanksgiving dinner to find 5-6 more anonymous messages from various people whose would rather insult me than contribute to a discussion about how to mentor troubled students in law school, I think it’s about time to shut down this comment thread. Sorry folks — life’s too short to spend family time baby-sitting this blog!
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