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Monday, December 31, 2012

Has Law School Transparency Jumped the Shark?

Kyle P. McEntee, Patrick J. Lynch & Derek Michael Tokaz (all of Law School Transparency), The Crisis in Legal Education: Dabbling in Disaster Planning, 46 U. Mich. J.L. Reform 225 (2012):

The legal education crisis has already struck for many recent law school graduates, signaling potential disaster for law schools already struggling with their own economic challenges. Law schools have high fixed costs caused by competition between schools, the unchecked expansion of federal loan programs, a widely exploited information asymmetry about graduate employment outcomes, and a lack of financial discipline masquerading as innovation. As a result, tuition is up, jobs are down, and skepticism of the value of a J.D. has never been higher. If these trends do not reverse course, droves of students will continue to graduate with debt that greatly reduces their ability to fulfill the law school graduate’s traditional and important role in American society. The point at which the law school crisis becomes a disaster for legal education is debatable, but the importance of preparing for and forestalling this disaster is not.

This article serves two forward-looking purposes that stem from the premise that American legal education requires structural change to reduce the cost of obtaining a legal education. First, we set a framework for thinking about reforms to the method of delivering legal education. Second, we examine three blueprints for structural reform: one that has already been implemented and is ineffective, and two that set the discussion on the right track. These blueprints reject mere tinkering in favor of refocusing the attention of legal education stakeholders on the drastic structural changes needed to provide quality, affordable legal education.

While we provide only a starting point for considering how the two new models could work in principle, they serve as an intellectual blueprint that can pave the way for new and better ideas about legal education. It is clear that cost reform is necessary, and it is likely that substantial reform is coming. The shape of this reform depends on who gets involved, which we hope includes actors beyond those who have set legal education on a path toward disaster.

Bernard A. Burk (North Carolina), Law School Transparency Jumps the Rails (Or, Why Do So Many Worthy People Check Their Common Sense at the Door When They Start Talking About Law-School Reform?):

I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable.  There is a good deal to admire.  LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree.  They believed that potential consumers of legal education would make better choices if they were better informed.  They were pointed, patient and persistent in pressing for more and better disclosure.  They were an instrumental part of the process that effected that change.  And they’ve offered a number of thoughtful and useful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported thought that went into them).

So I was intrigued to look into the latest contribution to the law-school reform discussion authored by LST’s co-founders and its research director ... What a disappointment.  Commentators with the public stature of Law School Transparency should not “dabble.”

I do not mean to say that three twenty-somethings who have essentially never practiced or taught law have no place explaining how to assemble a curriculum or run a law school so that its graduates will be both prepared to practice and attractive to legal employers in the most difficult legal job market in American history.  I do mean to say that, if you don’t know how to do it and you don’t know how to teach it, you really ought to do your homework so that your prescriptions are meticulously grounded in empirical experience and coherent argument.  Sadly, you won’t find much of either here....

Q: Then why are you being so harsh with LST?  You’ve really been kind of a jerk, you know.
A: Well, I am being harsh.  Here’s why: LST has (in my opinion) distinguished itself since it came upon the scene by its mostly measured and thoughtful idiom, and its basic confidence in the power of information to influence rational behavior and level the playing field.  The article I just criticized is an abrupt and in my opinion unwelcome departure from a style of public discourse that I genuinely admire, not only because it is predominantly engaged and positive (though it is), but because it is—again, in my opinion—effective.   Tossing around the rhetoric of “disaster” and “crisis” without meaningful effort to define the threat, couched in empirically vacuous and occasionally self-contradictory pronouncements, reverts to the toxic style of discourse sadly prevalent in current affairs, and doesn’t advance anything other than perhaps LST’s public profile.  There are more wholesome and productive ways to achieve that end.  In my opinion, LST should hold itself to the same standards of data-driven rationality and full disclosure to which it rightly holds the institutions it criticizes.

Update #1:  Bernie Burk has taken down his post (Google cache version here, via Brian Leiter), as he explains in Law School Transparency Jumps the Rails:

Some friends and colleagues who read my lengthy post on Law School Transparency's recent article on law-school reform gently suggested that I should stop publicly haranguing myself on the bus before people began to worry about my stability (those who read the post will understand the reference).  Kyle McEntee of LST also contributed a measured and thoughtful Comment of the kind that I had come to value and respect from him and his organization, for which I thank him. 

I remain uncomfortable with both the form and the substance of LST's proposals, but I also recognize the merit of the friendly advice I've received that there are more constructive ways to contribute to this important discussion than the one I chose.  So I'll work on it and try again in a few days.

Update #2:  Bernie Burk refashioned his post on 7:20 p.m. on New Year's Eve (yes, I have no life) as Law School Transparency Jumps the Rails (Or, Why I’m Still Disappointed with LST’s Latest Contribution to the Discussion on Law-School Reform):

With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that).  The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education:  Dabbling in Disaster Planning.”  Familiarity with my original post is not presupposed.

As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable.  There is a good deal to admire.  LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree.  They believed that potential consumers of legal education would make better choices if they were better informed.  They were pointed, patient and persistent in pressing for more and better disclosure.  They were an instrumental part of the process that effected that change.  And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).

So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)?  Here’s a catalogue of my most serious concerns:

  • Don’t overdramatize
  • Don’t allow hysterical language to mask a failure to define the issue you need to address
  • Don’t ignore the implications of your justifications
  • Don’t ignore inconvenient facts
  • Don’t assume away the problems you perceive; recognize and try to solve them

LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems. The execution leaves something to be desired for the reasons just discussed. But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible. We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new. 

(Hat Tip: Greg McNeal.)

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Comments

LST's solutions sound like the solutions of a younger generation that has seen reality TV and cable TV challenge the networks. Cheap, short module programming, which anyone who has a camera can do, and does not need to appeal to a huge audience to succeed. Occasionally, cable and reality TV produces some gems to rival or exceed the networks. They also produce more than their share of worthless junk. Of course, you can just ignore the worthless junk and go to the gems because there are a lot of choices. You may not be able to as easily avoid the worthless junk taught by some adjuncts in law school.

Posted by: JDEsq | Dec 31, 2012 10:15:47 AM

I responded to Bernie before he deleted his post and the comments:

Bernie,

I appreciate that you took the time to write this, as well as your kind words. We have worked hard to be a reasoned, balanced advocate for accountability. As such, I take very seriously suggestions that we're off the rails.

You are right to point out that, on one reading, the abstract implies causation between mismanagement and the jobs decline. (The intro does no such thing.) But that is so wildly implausible, as you point out, that I'd hope your description of our efforts to date would give us the benefit of the doubt. What _is_ down is the jobs rate, and it is in large part because law school enrollment has risen without regard to available jobs. We're not talking about relative change over the past few years, but the absolute disparity between enrollments and legal jobs. The problem extends back before the recession. Arguably long before.

Jason hit the nail on the head re: our purposes. It's to generate discussion by many parties, not just those who share responsibility for putting legal education in such disarray. The legal profession is early in the process for achieving cost reform at law schools -- the stage where some people acknowledge it and some people bury their heads in the sand about the pain that follows from solutions. What are the next research steps? Where should we collect empirical data? The answers to these questions don't begin, necessarily, with empirical data. We think they should begin with thought experiments. We're dabbling because we're early in the process. As you point out, empirical support is as-of-yet unavailable to put together an actual disaster plan. As we point out in the conclusion, schools have a wealth of data they could make public to help reform along. We both know they will not do so willingly.

But what crisis? What disaster? You are right that we did not discuss these terms in great detail. It was purposeful. We did not want to spend precious space repeating what Brian Tamanaha and others have done so well already. Instead, we chose to start with the premise that American legal education requires structural change to reduce the cost of obtaining a legal education. The treatment for crisis/disaster happens in paragraph 1 and paragraph 2.

Just to be clear, the disaster would be if legal education's traditional and important role in American society is further delegitimized. This is awful for our profession, future and current students/graduates, taxpayers, and anybody concerned with a reputable legal system. (Just to be clear, I am not saying that the legal system is in jeopardy. I am saying that legal education is the gateway to the profession, and that if law schools cannot get their act together, people will (continue to) stop going and the perception of the profession will continue to worsen.) Again, as we said in the paper, we can argue when this happens if you want, but I'd rather spend my time identifying problems and facilitating solutions. LST has prioritized cost reform (which, you say, isn't What Matters Most) and this paper is the next step in achieving it.

Signing off for now.

Kyle McEntee
Law School Transparency

Posted by: Kyle | Dec 31, 2012 10:38:40 AM

Lucille Jewel's article "I Can Has Lawyer? The Conflict between the Participatory Culture of the Internet and the Legal Profession," 33 Hastings Comm. & Ent. L.J. 341 (2011) (also at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1640090) pretty effectively demolishes the argument against tone.

Posted by: Jim Milles | Dec 31, 2012 2:46:21 PM

I addressed the question, "What is the law school disaster?" after reading the above.

http://associatesmind.com/2012/12/31/what-is-the-law-school-disaster/

I think the picture about sums it up.

Posted by: Keith Lee | Dec 31, 2012 2:48:54 PM

The whole idea that students are entitled to some kind of fat income as a result of mediocre performances at mediocre law schools is ridiculous.

Posted by: michael livingston | Jan 1, 2013 8:04:11 AM

"The whole idea that students are entitled to some kind of fat income as a result of mediocre performances at mediocre law schools is ridiculous."

And just where do you suppose students got that idea? Its the mediocre law schools that have been misleadingly promoting this idea to attract applicants for years. From what I have seen, all the LST group are after is is honest, transparent, and complete disclosure. I assume they would be in total agreement with you that a potential applicant shouldn't expect a fat income as a result of mediocre performance at a mediocre law school.

Posted by: john | Jan 1, 2013 4:00:27 PM

Yup, total agreement.

Posted by: Kyle | Jan 1, 2013 5:01:04 PM

Professor Burk says he cannot understand what the authors mean by crisis and disaster. The definition of crisis and potential disaster are discussed at the start of their article:

“While the American legal academy and others discuss the looming ‘crisis’ of legal education, for many law school graduates, the crisis is here. In recent years, tens of thousands of graduates have struggled to enter the legal marketplace and find professional jobs with salaries that permit servicing student loan debt. High interest rates exacerbate enormous debt loads, with all non-payment risk falling to American taxpayers due to federal loan and hardship programs. Meanwhile, young and highly educated professionals contemplate whether marriage, children, and home purchases will ever be possible or responsible choices.”

“The personal disasters faced by recent graduates may be precursors to an industry-wide institutional disaster for legal education, as law schools struggle with their own economic challenges. Law schools have high fixed costs brought about by school-on-school competition, unchecked federal loan money, a widely exploited information asymmetry about graduate employment outcomes, and a lack of fiscal discipline masked by assertions of innovation. Tuition continues to rise at alarming rates, while both the number of legal jobs available and the salaries for those jobs decline Skepticism about the value of a J.D. has also never been higher; law schools have already begun to see a drop in applications and enrollment. If these trends do not reverse course, droves of students will continue to graduate with unsustainable student loan debt that greatly reduces their ability to fulfill traditional, important roles in American society. Programs unable to fall back on large endowments, fundraising, non-traditional sources of revenue, and other budgetary maneuvering may face a very rapid collapse. The exact point at which the law school crisis turns into a disaster for legal education is debatable, but the importance of preparation for it is not.”

Notice that when it comes to the “disaster” rhetoric, the article’s abstract uses the phrase, “potential disaster,” the article talks about signs that “may be precursors” to disaster, and the authors suggest that the disaster could come “if these trends do not reverse course.” Notice, too, that the title of the piece is “Disaster Planning.” People quite sensibly do disaster planning even when there is no current disaster and when imagined disasters may never come about.

I hope that so far we’re all on the same page here and that the nature of the crisis and potential disaster aren't hard to grasp. There's no need to scour the article and remain mystified about what the terms mean, but just to be sure, let’s see if this usage is well understood in the public discussions of law schools.

The use of the word “crisis” is hardly novel. The NYT journalist Lincoln Caplan recently wrote about “An Existential Crisis for Law Schools. Dean Victor Gold recently wrote about “Crises in Legal Education.” Dean David Yellen recently wrote, “Current Crisis Reshapes Legal Education.” Dean Philip Closius wrote, “American law schools in crisis: Focus on students is the only way for non-elite schools to survive.” Professor Mary Lynch wrote, “Redeeming Law Schools: How the Crisis in Legal Education Can Revitalize Our Profession and Save Its Soul.” One could cite literally dozens of similar examples, even without citing Professor Campos.

Even the academics who deny that the crisis exists can still readily grasp what we’re talking about. Dean Bryant Garth titled his recent paper, “Crises, Crisis Rhetoric, and Competition in Legal Education: A Sociological Perspective on the (Latest) Crisis of the Legal Profession and Legal Education.” Professor Jay Silver, offering an argument contra Tamanaha, begins with this straight forward definition: “The current crisis in legal education—with debt-laden law graduates not finding work and law school applications plummeting—has generated proposals to reduce law school tuition by trimming faculty salaries, curtailing tenure, substituting an increased course load for time previously devoted to research and writing, and replacing the third year of classroom instruction with apprenticeships.” Silver himself invokes the notion of disaster, although he sees it coming from the other direction: “The radical overhaul of legal education espoused in Professor Brian Tamanaha’s new, widely read book, Failing Law Schools, would represent a disastrous step backward in legal education.”

Posted by: attended law school | Jan 1, 2013 5:12:57 PM

Is that the same Bernie Burk who was claiming in Carolina Law Magazine (the magazine for alumni of/donors to UNC-CH Law School) in the Spring/Summer 2012 that while "[r]ight now, large firms are hiring 20 to 60 percent fewer entry-evel associates than they were in 2007," "[m]any more prestigious schools, including Carolina, still see nearly all their graduates employed within nine months after graduation."

http://www.law.unc.edu/news/publications/default.aspx - "A New Normal" - Page

LST puts 2011 UNC-CH employment at about 67 percent, far short of "nearly all".

Posted by: None | Jan 3, 2013 8:17:20 PM