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Reflections of a Bar Exam Skeptic

May 26th, 2017 / By

Robert Anderson has posted a thoughtful comment on the bar exam in which he dubs me a “bar exam skeptic.” I accept the label with pride: I have been deeply skeptical of the bar exam for years. I first wrote about the exam in 2001, when the national pass rate for first-time takers was a relatively high 77% (see p. 23). My skepticism today, with a national pass rate of 69%, is no greater or smaller. As I wrote recently, it’s time to convene a National Task Force to examine our bar admissions process.

Who Cares About the Bar Exam?

As Professor Anderson rightly observes, decanal concerns about the bar exam have risen as pass rates have fallen. That’s human nature. The content and scoring of the bar exam are boring subjects for alumni gatherings, graduation speeches, or law review submissions. Few legal educators spontaneously write about setting cut scores, scaling essay questions, or equating test scores over time. The bar exam is like plumbing: most people take it for granted until something goes wrong.

But now the bar exam pipes are leaking and people are paying attention. The leak doesn’t mean we should patch things up just to revive pass rates; the bar exam should measure competence, not admit a predetermined number of lawyers. But now that people are paying attention, this is a good time to consider whether we’re using the right type of filter and piping in our rather antiquated system.

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Clinics and Costs

May 6th, 2017 / By

Bob Kuehn has written an incisive article about the relationship between law school tuition and clinical education. Contrary to many educators’ assumptions, Bob finds that there is no statistically significant relationship between the tuition charged by schools that require a clinical experience and schools that do not. Requiring students to complete a clinic before graduation, in other words, does not correspond with increased tuition.

Similarly, schools that guarantee students a clinical experience–should they choose to take one–do not charge significantly higher tuition than schools without that guarantee. Accounting for tuition discounts did not change these results: Schools with clinical requirements or guarantees did not acquire significantly more tuition revenue per student than those without those requirements or guarantees.

The same story emerged when Bob analyzed clinical course availability (rather than requirements or guarantees). Enhanced clinical opportunities never correlated significantly with higher tuition (either list price or discounted). On the contrary, several analyses found a significant relationship between clinical opportunities and lower tuition rates. Bob summarizes the results of his research in a post on the Best Practices for Legal Education blog.

How could this be? Aren’t clinics incredibly expensive to run? Well, yes and no. As Bob explains, the availability of clinical education depends more on the choices that law schools make than on the direct cost of clinics.

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Accreditation

July 31st, 2016 / By

Earlier this summer, a federal panel recommended suspending the ABA’s power to accredit new law schools for one year. The transcript for that meeting has now been published, so we can examine in detail what happened. It’s clear that the panel intended its action to “send a signal” to the ABA Council that accredits law schools. All of us in legal education need to hear that signal: It affects the standards we adopt for accrediting law schools, as well as the eligibility of our students to take the bar exam.

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The View from Minnesota: A Profession on Edge

July 25th, 2016 / By

Wood R. Foster, Jr., a Minneapolis lawyer and former president of the Minnesota State Bar Association, has written a striking review of recent changes in the legal profession. Foster spent his career as a commercial litigator with Siegel Brill, a small Minneapolis firm. Relatively few lawyers from that background have written about changes in the legal profession, and Foster does so eloquently.

Foster covers the growing surplus of lawyers, which he dates to 2000; fracturing of the profession; stalled diversity efforts; the high cost of legal education; BigLaw and its equally big shadow; and the impact of technology.

With some irony, Foster quotes a column that he wrote in 2000 after holding a series of focus groups with lawyers. “I have found,” he wrote then, “that lawyers are generally reluctant to visualize the profession’s future.” The future, however, arrived anyway. Today, he reflects, “a good argument can be made that the legal profession has changed more in the last 15 years than it did in the 150 years from 1849 to 1999.”

Foster’s views echo those I hear from many practitioners in their 60s and 70s. While academics continue to debate the existence of change, these lawyers have lived it. Their vantage point makes them particularly sympathetic to the newest generation of lawyers. “There really can be no doubt,” Foster concludes, “that it has been a rough ride for lawyers graduating from law school since 2000. . . . [The facts] add up to an unflattering picture of why so many young lawyers are finding it so hard to get the kind of start in their chosen profession that older lawyers like me were able to take for granted during the last half of the twentieth century.”

Give Foster a read. His featured series of articles absorbs much of this issue of Minnesota’s Bench and Bar journal.

 

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Alternative Publishing Models For Cost-Conscious Professors

July 13th, 2016 / By

Casebooks are shockingly expensive. The latest edition of Stone, Seidman, Sunstein, Tushnet, and Karlan’s Constitutional Law has a list price of $242. It’s even more shocking when you consider where the money goes. Not to pay for the cases and other primary materials that make up most of a casebook’s contents: they’re public domain and free to all. Mostly not to cover printing costs: the paperback edition of The Power Broker (to pick a book with the same word count and heft as a casebook) has a list price of $26, and you can buy it on Amazon for $18. Mostly not to authors: royalty rates are typically 10% to 20%. No, most of that money ends up in the pockets of the casebook publishers and other middlemen in the casebook chain. This is a tax on legal education, sucking money from law students and from the taxpayers underwriting their student loans.

In a perceptive and persuasive recent essay, Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books, Ben Trachtenberg runs through these numbers and reaches the obvious conclusion: law schools shouldn’t be asking students to shell out the big bucks to read public-domain legal materials. Casebooks should be cheap or free.

Trachtenberg’s preferred solution is that law schools, alone or together, fund the creation of “top-quality casebooks” which could then be made available to students for the cost of printing. Here at Law School Cafe, Kyle McEntee endorsed Trachtenberg’s suggestion and added that “it may make more sense to do this through an external organization funded through grants” to save students even more.
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Law Books For The Price Of Printing?

June 30th, 2016 / By

Originally published on Above The Law.

library w bookLaw students spend between $3,000 and $4,000 on books during law school. For those that borrow, add another $1,000 on the 10-year plan or $2,000 on the 20-year plan. While a drop in the bucket compared to tuition and living expenses, $4,000 to $6,000 for books is not insignificant.

Shaving these costs down to the cost of printing is a common suggestion, but it does not appear to have been done at scale. In a new article in the Saint Louis University Law Journal, Professor Ben Trachtenberg from the University of Missouri School of Law outlines how to actually do it with the goal of encouraging action.

The question is: will it happen?
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Caveat Venditor: Empty Threats From Notorious For-Profit Law Schools

May 27th, 2016 / By

Closeup of a pile of caution tape
This piece was originally published on Above the Law.

Welcome to Caveat Venditor, a new series that assesses claims made by law schools to separate truth from fiction. This week, we look at a threatening letter sent to a documentary film maker by Tom Clare, a lawyer for The Infilaw System.

InfiLaw owns three law schools — Arizona Summit, Charlotte School of Law, and Florida Coastal — and several legal education-related management companies. These are three of six total for-profit law schools approved by the ABA, although two of the other three are transitioning to non-profit status. InfiLaw also tried and failed to purchase Charleston School of Law after faculty, alumni, students, and the local legal community revolted.

Hat tip to Paul Campos for the full text of the letter:

I write on behalf of my client, The InfiLaw System (“InfiLaw”), regarding your inquiry into interviews with Florida Coastal School of Law officials for a documentary you are making. I write to caution you as you proceed with fact-finding and information gathering associated with your planned documentary.

Prior reporting on the issues you plan to address, including law school attrition rates and student success, has been plagued by gross misinformation, factual errors, and a general misuse and distortion of available data and analysis. This is especially true as they have been applied to InfiLaw schools such as Florida Coastal. Individuals, such as Paul Campos, have distorted facts and data and engaged in nefarious and inappropriate investigative tactics in order to accomplish a false agenda attacking law school admissions and career advancement policies. As such, I caution you to carefully assess any information and facts you gather from Mr. Campos and any other purported “authorities” on law school success metrics and the risks and rewards of attending law school in this day and age. InfiLaw and its affiliated schools will carefully analyze and assess any statements made about them and will not be afraid to pursue legal recourse to protect its reputation against any false and reckless statements.

In addition, InfiLaw requests that you notify me immediately upon any decisions to include any references to or subject matter about InfiLaw or any of its affiliate schools in your documentary, and provide InfiLaw the opportunity to review and comment on them prior to any public dissemination.

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Prices and Priorities

May 11th, 2016 / By

Bob Kuehn has written a terrific essay refuting the notion that clinical courses are too expensive for law schools to offer. His online piece includes plenty of hard data; some he gathered and some he drew from other sources.

Kuehn’s essay reminds me of a conversation I had a few years ago with a member of my university’s board of trustees. I alluded to the challenges that public universities like ours face with reduced tax support for higher education. He responded differently than most trustees or administrators, who are happy to bemoan losses of public support. “There’s plenty of money,” he said. “It’s just a question of your priorities in spending it.”

And, of course, he was right. For the current fiscal year, my university predicted revenues of $6.1 billion dollars and expenditures of $5.5 billion. Even if revenues fell to match expenditures, that’s a lot of money to distribute.

Most universities, let alone law schools, are considerably smaller than Ohio State. About half of our budget, furthermore, stems from the medical school and health care center. (This is an interesting fact about many university budgets, that health care research and delivery is matching or exceeding other educational expenses.) Still, my board member’s comment is apt: Law schools operate sizable budgets and they have considerable discretion in allocating that money.

We don’t favor LSAT scholarships over need-based ones because budgets force us to do so; we make that choice to pursue higher rankings. Similarly, we don’t cater to the demands of tenured research faculty, rather than expanding clinical education, because our budgets are limited. We make that choice because it suits us (the tenured faculty) and because we hope, once again, that our choice will propel higher rankings.

Bob provides a welcome antidote to these ingrained choices. Expanding clinical education wouldn’t actually raise tuition; it would simply require faculties to change their priorities. And even those changes would be relatively small. We have to ask ourselves: What is the real root of our resistance to clinical education?

H/T to TaxProf for also featuring Bob’s essay today.

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Race, Debt, and Opportunity

March 10th, 2016 / By

Education opens doors. In law schools, we have tried for decades to open one particular door: the one that welcomes more minority graduates into the profession. In some ways, we have succeeded admirably. The percentage of minority law graduates almost tripled between 1983 and 2012, from 8.6% to 24.2%. The absolute number of those graduates rose almost four-fold during the same years, from 3,169 per year to 11,951 annually.

Today, all of us can name successful minority lawyers, judges, and law professors–as well as minority business people, nonprofit directors, and policymakers with law degrees. Legal education can even point with pride to the first African American President of the United States.

Just as the doors started to open, however, new obstacles emerged. Research shows that minority students earn lower law school grades than white students–even after controlling for entering credentials. We have also dramatically raised the cost of legal education as our student bodies diversified. And, perhaps most disturbing, we now know that these high costs fall disproportionately on Black and Latino/a students. New data from the Law School Survey of Student Engagement (LSSSE) show that these students assume substantially more law school debt than their white and Asian American classmates. That debt gap is new–and growing.

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LSAT, Bar Failure, and Debt

March 6th, 2016 / By

Last fall, Law School Transparency (LST) released a detailed study of declining LSAT scores among entering law students. Drawing upon data from several sources, the report warned that students with LSAT scores below 150 suffer increasing risks of failing the bar exam. For students with scores below 145, the risk is extreme. One school, for example, reported that only 16% of graduates in that category passed the bar on their first attempt. The eventual pass rate for those students was just 36%.

LST also offered evidence that these high-risk students are paying more for their legal education than students with a better chance of becoming lawyers. Schools that admit a substantial number of high-risk students offer fewer tuition discounts than other schools. Scholarships at high-risk schools are also more likely to be conditional (and forfeited) than scholarships at schools admitting lower risk students.

The highly regarded Law School Survey of Student Engagement (LSSSE) just added an alarming data point to this analysis. LSSSE reports that 52% of law students with the lowest LSAT scores (145 or less) expect to incur over $120,000 of debt for their legal education. In contrast, only 20% of students with LSATs above 155 will owe that much.

The highest risk students are assuming very heavy debt loads for their legal education. Equally disturbing, the difference between those students and their classmates has grown substantially since the great recession. In 2006, LSSSE notes, debt loads did not differ much by LSAT score. Sixteen percent of students who scored above 155 expected to owe more than $120,000 for their legal education; for students scoring at that cut-off or below, the percentage was the same.

In 2011, the gap was much wider. A third (33%) of students scoring at 155 or below anticipated law school debt over $120,000. For higher scoring students, the percentage was just 24%. This year, the gap has widened even more. Only one-fifth (20%) of higher-scoring students expect to owe over $120,000 for their legal education. Among those students, the percentage amassing high debt levels has decreased–despite rising tuition levels and modest inflation.

Students with LSAT scores of 155 or below, on the other hand, are even more likely than in the past to assume high debt levels. Thirty-seven percent of those students now anticipate owing more than $120,000 for their legal education. And, as reported above, the percentage is even higher for those with the lowest LSAT scores: More than half of students with LSAT scores below 146 will owe over $120,000 for their law school degrees. Those are the very students at very high risk of failing the bar.

LSSSE’s public report doesn’t distinguish among law schools, so we can’t tell if this disparity reflects admissions and financial aid decisions at a large number of law schools–or whether it stems from the actions of a small number of schools. LST’s report suggests that the latter is true: A few dozen law schools are admitting a substantial number of students at high risk of failing the bar. The same schools may also be responsible for the high debt load assumed by those students.

But whether it’s a few schools or most schools, this is an issue that affects all ABA-accredited law schools. We all participate in a system of accreditation that signals quality and fairness to applicants. Do we want to perpetuate a system in which an increasing number of high-risk students take on the heaviest debt loads?

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Cafe Manager & Co-Moderator
Deborah J. Merritt

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ABA Journal Blawg 100 HonoreeLaw School Cafe is a resource for anyone interested in changes in legal education and the legal profession.

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