To many, late October signals nothing more than fall in full swing, pumpkins, or costumes. In late May, we look forward to the Memorial Day holiday and long weekends. Yet, the last weekend of every October and May, Georgia bar takers anxiously await exam results. Some stalk the postman. Most spend the day refreshing a webpage, hoping and praying their name appears on the public pass list.
The stages of grief—denial, anger, bargaining, depression, and acceptance—are experienced by one who fails a state bar exam. Imagine discovering that a family member is alive after grieving their death for ten months. This week, 90 Georgia bar takers—45 from July 2015 and 45 from February 2016—were informed that the thing they grieved was, in fact, alive. Though their names failed to appear on that very public pass list, they indeed passed the Georgia bar exam.
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.
Clearly, Simkovic and McIntyre’s article has given new life to those who would defend the status quo. However, even assuming the statistical methodology is sound (which I do, as I have no reason to believe otherwise and no time to recreate it), the study suffers from a number of crucial weaknesses.
First, Part IV makes the assumption that current market challenges reflect no more than the historically cyclical nature of the legal market. If you do not agree with this assumption (and I do not–I think Susskind’s view on this issue is far more sound), then the entire study is fundamentally flawed. However, even if you buy this assumption, there remain further issues with the study.
The title itself, the “Million-Dollar Law Degree” is misleading at best. This million dollar figure reflects the mean value, where the mean is skewed significantly higher than the median. Thus, it overstates the value for significantly more than half of all JD grads. It also reflects “pre-tax” value, a point that the authors do not address until near the end of the article at Part V.C. There, the authors acknowledge that their calculated benefit must be divided between private “after-tax” earnings and public tax revenues.
Interestingly, the authors’ IRR numbers are calculated only on pre-tax value, and are not provided for after-tax value. However, the authors do acknowledge on page 44 that “[e]ven at the 25th percentile and after subtracting federal taxes, the value of a law degree will still typically exceed its cost, although the private returns are substantially reduced.” In fact, one can easily see a “loss” at the 25th percentile, when considering typical costs at institutions charging more than $40,000 per year tuition (and the well documented “reverse Robin Hood” effect insures that the weaker students will typically pay the highest tuition amounts)–even under this vigorous defense of the status quo.
The 25th percentile purportedly realizes an increase in pre-tax value of $350,000. The authors assume a 25% federal tax rate for this group, but magically assume away state or city taxes, as equal to corresponding private benefits–an assumption I am guessing prospective law students don’t share. Let’s add 5% state income tax for a hypothetical student from NY, for an average tax rate of 30%. $350,000 is now $245,000. It’s pretty easy to imagine total law school debt, plus interest, paid out over 30 years, significantly exceeding $245,000. Perhaps that’s why the authors avoid this detailed analysis.
Again, I am not saying I buy the most basic assumption made by the authors with respect to the future of the market for legal services. However, I find it remarkable that, even this vigorous defense of the status quo, leaves at least a quarter of JD students with what is likely a losing proposition over the long haul.
UPDATE: For further analysis of the educational “cost” of generating the purported $245,000 after-tax value of a JD at the 25th percentile, see Paul Campos, If I had a million dollars, here. He analyzes the median after-tax gross value of $420,000 and calculates a net gain of $109,000, thus employing a cost (appropriately discounted to NPV, as is the value generated) of $311,000. Using this same cost at the 25th percentile, we get a net loss of $66,000 based on the total after-tax value of $245,000. Paul’s after-tax number is actually a bit more generous than mine, as he ignores the effect of state or local taxes. My assumption of a 5% state tax would reduce Paul’s gain to a little less than $90,000. Thus, one might suggest, as a “rough cut,” a “break even” point at around the 33rd percentile. While a 2 to 1 likelihood of making money on a conservatively evaluated purely financial investment might be a good bet, a 1 in 3 chance of losing money on a legal education is a huge risk—especially in view of the authors’ almost certainly flawed assumption of “business as usual” for the legal market going forward.
Professor Jack Graves teaches Contracts, Business Law, and Arbitration (domestic and international) at Touro Law Center in New York. His writing and speaking on the need for major reform in legal education include, An Essay on Rebuilding and Renewal in American Legal Education, 29 Touro L. Rev. 375 (2013), available online here; and A More Cost Effective Model for Legal Education, __ N.Y.L.J. __ (September 2013) (to be published as part of a special issue on legal education and admission to the bar). A complete bio and CV is available here.
[We are pleased to present a guest post by Ruth Colker, Distinguished University Professor and Heck-Faust Chair in Constitutional Law, Moritz College of Law, The Ohio State University. This discussion is cross-posted from Professor Colker’s blog.]
What can a law school admissions officer learn from a close reading of Fisher v. University of Texas? A bit.
Top Ten Percent Plan
Fisher is a paradoxical case to resolve the constitutionality of a law school admissions program, because its race-conscious plan is quite different from the mechanisms used by most law schools to attain diversity. Thus, it is important to understand the facts in Fisher to understand its applicability to law school admissions.
At the time of the Fisher litigation, the University of Texas (“UT”) used the Top Ten Percent plan to admit all students who ranked in the top ten percent of their class at Texas high schools. In 2008, the Top Ten Percent plan resulted in 5,114 students being enrolled at UT. Of those 5,114 students, 302 (6%) were African-American and 1164 (23%) were Hispanic. See the profile here.
UT, however, was not satisfied with admitting its entire class through the Top Ten Percent plan. It sought to be more academically selective (as measured by test scores) and regionally diverse by admitting some students who did not rank in the top ten percent of a Texas high school class. In 2008, UT allocated 1,601 of 6,715 spaces in the class to students who were not admitted through the Top Ten Percent program.
So, UT had to create an alternative mechanism to fill those 1,601 spaces. It chose to fill the remainder of the class through a combination of a student’s Academic Index (AI) and Personal Achievement Index (PAI). The AI was a combination of GPA and test scores. The PAI sought to measure a student’s leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s background, including race. The admissions committee would plot the student’s AI on the x-axis and the student’s PAI on the y-axis. A line was drawn on a grid to determine who was above and below the admissions requirements to fill those remaining 1601 spaces.
A problem faced by UT was that this alternative mechanism diluted the diversity of the class that was otherwise achieved through the Top Ten Percent plan, because it placed considerable weight on standardized test scores. This problem can be easily seen for Hispanics, the largest minority group in Texas. In 2008, Hispanics were 23% of enrolled students under the Top Ten Percent plan. (Hispanics were 36% of the Texas population in 2008.) But Hispanics were only 11% of enrolled students under the alternative plan, even with a race-conscious factor in the PAI, bringing the overall percentile of Hispanics who were enrolled as students down to 20%. If Hispanics were not given the benefit of a race-conscious factor in calculating their PAI, the overall percentile of Hispanics who enrolled as students could have dropped as low as 17%.
The alternative mechanism did succeed in increasing academic selectivity as measured by test scores. While the median SAT score for the Top Ten Percent group was in the 1200-1290 band in 2008, the median SAT score for the alternative group was in the 1300-1390 band in 2008, even with the use of a race-conscious factor for the alternative group. And the use of the alternative mechanism’s race conscious factor caused the overall percentage of Hispanics to decline from 23% to 20% but avoid declining all the way down to 17%.
UT’s alternative mechanism was also clever in the way it was race-conscious. The admissions committee did not know a student’s race when making an individual admissions decision. Decisions were made on the basis of the AI and PAI scores, exclusively.
Contrast with Law School Admissions
UT’s admissions program is quite different from the typical law school admissions program at a selective university. Law schools often use a modified grid (with GPA on the x-axis and LSAT score on the y-axis) to admit most of their class. That method of admission usually results in little racial diversity. They then use a more subjective system to increase racial diversity beyond the diversity achieved through their regular admissions process. By contrast, UT achieved considerable diversity through its regular admissions process–-the Top Ten Percent plan. Its alternative admissions process diluted the diversity attained through its regular admissions program. UT added race as a factor to the alternative admissions process to avoid excessively diluting the racial diversity that was otherwise attained through the Top Ten Percent plan.
UT’s program is also unusual in the way that admissions decisions are made with the final reviewer not even knowing the race of the admitted student. By contrast, the admissions officer at the University of Michigan Law School program at issue in Grutter v. Bolinger was well aware of the applicant’s race at the time of decision. In fact, Justice Kennedy dissented in Grutter, in large part, because he was upset with the race-conscious aspects of the Michigan admissions process. “The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself.” (Grutter, 539 U.S. at 392). The Fisher decision brings into question the constitutionality validity of those daily reports.
Three Legal Principles Established by Fisher
So let us now turn to the legal principles established by Fisher.
First, it is important to note that the lower courts decided Fisher on a summary judgment motion. Grutter was decided after a full trial at which admissions officers testified. Kennedy emphasizes that the lower courts decided Fisher on a summary judgment motion and hints that UT could only offer “sufficient evidence” to justify its program after a full trial. (Slip opinion, p. 13.) Thus, Fisher possibly means that more of these kinds of cases will go to trial rather than be decided on summary judgment.
Second, it is important to remember that Justice Kennedy has never found an affirmative action program that he can conclude is constitutional. In Grutter, he dissented. In Parents Involved in Community Schools v. Seattle School District No. 1, he concurred separately to conclude the diversity plans were unconstitutional. And, in Fisher, he refrained from affirming the Fifth Circuit. More importantly, one may understand his opinion in Fisher as elevating his dissenting opinion in Grutter to a majority opinion.
Third, the Fisher opinion provides two important principles that should be considered on remand: (a) that the university treated each person as an individual, and (b) that the university can demonstrate it could not attain diversity through a race-neutral alternative.
With respect to treating each person as an individual, the Fisher opinion says, quoting Grutter, that a race-conscious admissions program must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” (Slip opinion, p. 7, quoting Grutter, 539 U.S. at 337.) Admissions officers cannot, for example, pull one student off the waiting list in August merely because that student would add diversity to the class.
With respect to race-neutral alternatives, Fisher emphasizes that the court should engage in “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” (Slip opinion, p. 10.) And, at this stage of the inquiry, the Court should “not defer to” the university’s “serious, good faith consideration of workable race-neutral alternatives.” The second quotation comes from Grutter (539 U.S. at 339-340). But the “not defer to” language cannot be found in the majority opinion in Grutter.
The “not defer to” language can be found, instead, in Kennedy’s dissent in Grutter where he says: “The Court confuses deference to a university’s definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued.” (Grutter, 539 U.S. at 388.)
Which of these two factors is likely to be important on remand in Fisher? It is hard to see how UT does not pass muster under the first factor, because the admissions officer did not even know the applicant’s race at the time the offer of admission was made.
The race-neutral alternative requirement, however, is likely to prove more challenging on remand. In 2008, UT enrolled 20% Hispanics through a combination of Top Ten Percent plan (23% Hispanic) and Alternative admissions (11% Hispanic). The alternative program dropped the Hispanic percentage from 23% to 20%. Had no Hispanics been admitted through the alternative program, the Hispanic percentage would have dropped to 17%. Can UT justify a race-conscious element to the alternative program in order to avoid risking enrolling an incoming class that is 17% Hispanic rather than 20% Hispanic?
Unfortunately, the rule governing this issue is ambiguous. The Fisher Court tells us that it is appropriate to defer to a university’s “educational judgment that such diversity is essential to its education mission.” (Slip opinion, p. 9, quoting Grutter, 539 U.S. at 328.) But at the means step of the inquiry, “the University receives no deference.” (Slip opinion, p. 10.)
The “sufficient diversity” rule, however, is a combination of ends and means. If UT receives deference in defining how much diversity it should be able to attain, then the court, on remand, would have to accept the 20% figure as an appropriate diversity goal. If that goal is accepted, UT can presumably demonstrate that it cannot achieve that goal (while also valuing selectivity) without using a race-conscious factor in the alternative admissions process.
But if UT merely needs to demonstrate that it could not achieve its diversity goal without a race-conscious element in the alternative plan, I don’t see why a remand is necessary. The factual record with regard to the credentials of candidates is in the record. The Supreme Court could have done the math on its own.
But if UT must demonstrate why it needs to enroll 20% Hispanics rather than 17% Hispanics, then a remand is necessary. That remand would especially be necessary if the Court is not willing to defer at all to UT’s articulation of how much diversity it needs. I therefore worry that the Court has devised a new hurdle — requiring universities to justify exactly what level of diversity is necessary to attain “sufficient diversity.”
So, what would I advise law school admissions officers? They should prepared to argue:
(1) We did not even know the race of an applicant at the point in the process in which we made the admissions decision.
(2) We had available no race-neutral means to attain racial diversity.
(3) We have an empirical basis for concluding that X amount of diversity is necessary to fulfill our educational mission.
The remand in Fisher may give us further insight into how these arguments are considered. But, if I were an admissions officer, I wouldn’t wait another four years to revise my program. To the extent possible, I would be immediately devising a program that could meet those three criteria.
And, yes, I am very happy not to be an admissions officer!
At Washington & Lee, as at most schools right now, we would prefer that our students were more successful in obtaining employment. But the 2012 employment figures, unfortunate as they are, say nothing about our our curricular reform. It is simply too early, . . . much too early.
The 2012 numbers refer to the first full class to pass through the reformed third year curriculum. Ours is a slow-to-change profession. Employers as a group do not change their settled practices on a dime. Nothing in the employment numbers that we see for the next 3 to five years should be seen as reflecting on the reception given to the curriculum reform. No curricular reform I know of, including Langdell’s, changed settled practices of others overnight.
We are confident in the reform and the value it adds to our students. The reform has become reasonably well-known within legal education, but we have considerable work yet to do to make it known and understood to the
employing-branch of the legal profession.
The education a W&L student receives today is more rigorous than was the education received by their predecessors. The first year, with added requirements of administrative law and transnational law and professional responsibility, continues to be taught with the techniques and materials that have made the first year a legal education success story. The second year, too, is largely unchanged in its methodology. But in the reformed third year, students are challenged in ways they are not challenged in the traditional third year. Students must study and adopt the analytical practices of sophisticated lawyers. They must write more than their predecessors in the traditional third year. They must problem solve more. They must work as teams. They must progress in the mastery of the complex mental processes of sophisticated lawyers. The data gathered by the Law Student Survey of Student Engagement shows that our third year students are more actively involved in their education than both their W&L predecessors and current students at our peer schools.
And, too, students in the new curriculum continue to learn law, but they learn it as lawyers do rather than as students do. In a course, for example, such as The Lawyer for Failing Businesses, the students learn bankruptcy and creditor law. But they learn it to solve a client’s problem or engage in other representation activities: they learn the law to use it instead of to pass a 3 hour exam on it. They begin to form the mental pathways of lawyers, who analyze and act on client needs by weighing a wide variety of factors beyond the law itself. Business interests, reputational interests, client risk-comfort levels and a wide variety of other factors weigh into that advice and work of sophisticated lawyers. Students in the reformed curriculum begin to develop those critical sensibilities.
I fully agree that it is incumbent on employers to “buy” what they have implored law schools to do to prepare students for the rigors of sophisticated practice. Time will tell. Employers’ behavior is long- entrenched and employers are being especially cautious due to the financial crisis, but eventually we remain confident that these reforms, adopted in the midst of the most turbulent market in legal services in modern history, will bear fruit for all constituencies. The employment success of the very first class through a curriculum reform comes far too early to launch speculation about its connections with the reform.
I crunched the numbers on the NLJ 250 law firm hires for 2012. The total number of new graduates hired by NLJ 250 law firms is 4,457. This constitutes about 10% of the entire graduating law school class of 2012. (more…)
UTX was my moment of epiphany, the “oh my” moment when cogent thought on the legal profession came in a flash. Admittedly, prior to learning of UTX (not that long ago), I didn’t really know much about the economics of the legal profession other than the obvious fact that the financial crisis of 2008-2009 must have inflicted significant pain on the industry, thus my prior assumption of only a cyclical downturn. I write this blog post for the benefit of those colleagues in the academy who may have a sense that the legal profession is having difficulties but can’t quite see the larger picture beyond anecdotes of layoffs and a very difficult hiring market. I hope to provide a concrete example of the economic stress on the legal profession, which obviously has trickle down effects on the economics of law schools and the value of the law degree. (more…)
The law school admissions process is odd. Among the major professional schools, law school has the lowest barrier to entry in terms of personal commitment to the profession. A student does not choose medical school as a “default” option. A student cannot get into a credible business school unless she has significant work experience. Law schools require only a GPA and an LSAT score. Many law schools may not even ask the most important question, “Why do you want to be a lawyer?” The typical law student is probably 22-23 years old. She may never have worked a regular job, worked on a project where others depended on her, filed a tax return, or bought a car or house. This profile has important implications for curriculum.
Let me digress a bit here. Two weeks ago, I was in California for a symposium on legal education, and this gave me a chance to see some old friends from business school. One of my friends has a spouse who is in her spring 3L at a Top Ten law school (she does not have a job yet and the worst case plan is to work a year for free on the hopes of a job opening in her desired career). He is very involved in her world of law school, and sometimes even attends her classes and socializes with her law school friends. So we naturally got around to talking about law schools and one avenue of conversation was whether law students were smarter than our Wharton classmates.
My friend, a very smart guy having graduated near the top of our class (he carried a hapless lawyer (me) on our Learning Team during our first year B-school), observed that law students from his wife’s Top Ten school were intellectually sharper than our Wharton peers. But while their analytical abilities were “amazing,” he agreed with me fairly quickly that law students would be very limited in their capabilities coming out of school. While our business school peers were less intellectually oriented in their thinking process, they were smart enough to do complex tasks, more rounded in worldly experience, and had problem solving abilities. Present a real world problem and they would try to figure it out, and most of the time they would come up with a solution: How can we sell more hotdogs? What is the best way to maximize the efficiency of cranberry collection and packaging? How should this acquisition be financed? What are the pros and cons of this business model? Sure, these questions seem mundane, but to someone out there in the real world, a client or a principal, their answers are extremely important. The business school did a pretty good job of selecting and educating problem-solvers who would populate the middle and upper management ranks of businesses.
The limitation of the law school admissions policy is important. I’m not suggesting that law schools start to dramatically change admissions policies (that would bring on a catastrophe upon misfortune). But we have to realize that the law school admissions policy is odd, and we should fully account for it in how we teach and train. Medical students really want to be doctors (Organic Chemistry and Calculus have a way of screening out “default” doctor wannabes), and business schools have fewer “I’m here by default” or “I’m here because of a TV show about business” because if they hated working in business they wouldn’t go back to school to learn more. Law schools have young inexperienced students who don’t really know much about work in general or the legal profession specifically. Even if they have genuine noble intentions of doing social good, making a difference in the public sphere, and becoming the conscience of society, they do not come to law school with concrete or realistic plans on how to pursue a career following their noble passion, including such things as paying off debt.
Law school is also different from medical and business schools in that after 1L, we let these young inexperienced students essentially roam the 2L and 3L curriculum. Most law schools have a “big menu” curriculum and a bias toward student choice, and the curriculum is the student’s (and the faculty’s) mind candy. So let me ask this: Does anyone seriously think that typical 22- to 23-year-old students know what is in their best interest in terms of structuring a curriculum? This may explain the fact that 3L is characterized by student disengagement. After two years of edited appellate cases and the Socratic method, 3Ls probably do “think like a lawyer” on some level; otherwise it is a damning indictment that law faculties cannot even teach this one skill in two years.
Let me return to B-school again. The first year was largely required courses in management, accounting, finance, operations, marketing, ethics, leadership, and strategy (a general background in major facets of business operations). In the second year, students selected a major and they largely took courses in their major. If you selected marketing, it meant that you were selecting a career path in the marketing department of a corporation; you self-selected yourself out of a job in investment banking and maybe management consulting too. If finance, you were shooting for a career in investment banking, the finance department of a corporation, or management consulting; you self-selected yourself out of a job in marketing, etc. Even at one of the most elite B-schools, it simply was not true that the world was our oyster in terms of all possibilities.
In that fairly large school (almost 800 students per class), students sorted out in noticeable patterns very early: there were the investment bankers, the management consultants, the corporate managers, the entrepreneurs and the techies. Career decisions had to be made fairly quickly because business school moved fairly quickly in two years. Moreover, by having only one year to concentrate in a field, the courses were fairly standard and core. For me, it was Corporate Finance, Securities Analysis, Speculative Markets (derivatives), International Finance, M&A Accounting, and Investment Banking, among other courses. I can’t think of a quirky course and, since business schools take market input very seriously, a curriculum that has too many quirky courses would suffer in reputation and employment outcomes. Corporations, investment banks, and management consulting firms want their recruits ready to work from day one. Increasingly the market is imposing this discipline on the legal profession as well by rejecting their invoices and denying engagements.
In light of the limitation of the law school admissions policy, and the fact that entering law students don’t know very much, including what lawyers really do and legal career paths, it might make sense to use 1L to provide as much information as possible on legal careers and options. This could be done through formal programmatic partnerships with the profession: speakers, mentorship, “shadowing” and day visit programs, “meet and greets,” presentations on the “anatomy” of a deal or case, etc. Law schools need this sort of activitiy far more than business schools because of the experience gap.
This concerted effort would require institutional commitment and structure beyond the always-maligned career development office and the sporadic efforts of student organizations. It would require mobilization of a network of alumni and professionals in the furtherance of education and training. The pay-off is that systematic professionalization at a fairly early stage might prepare students to be more focused and directed in 2L and 3L.
What about the upper level curriculum? It might make sense to provide more rigid curricular “tracks” in 2L and 3L for students who want a formalized education and training in a particular field of law. Cover 90% of what students would do in practice really well, and we can go home and celebrate for a job well done. Many schools have “concentrations” and “certificate” programs, but many (but not all) such programs are probably more glitz, brochures, and Facebook pages than real substance. Sports law, really? Let’s consider a real concentration in Civil Litigation (something that is bread and butter, something that a great many of our students would do upon graduation). What would a real program look like? As a bare minimum, I would think that such a program in the 2L and 3L would include (italics indicating experiential or simulation courses): Insurance Law, Federal Courts, Complex Litigation, Employment Law, Alternative Dispute Resolution, Pretrial Practice, Commercial Law, Business Associations, Evidence, Business Concepts for Lawyers, Professional Responsibility, Negotiations, Trial Advocacy, Judicial Internship, Appellate Advocacy, and Litigation Clinic. As luxuries, one could throw in a few doctrinal courses such as Securities Regulation, Advanced Torts, Family Law, or Consumer Law.
Note that all of these courses are standard, core courses and not some flimsy practicum based on a practitioner’s “war stories” or teaching ministerial tasks like how to file documents and the local rules on signature blocks, etc. In terms of non-credit curricular activities, students should see a certain minimum number of trials in the local courts along with a personal journal on observations and critique; they should do a minimum number of hours in litigation-oriented pro bono work supervised by an attorney or faculty member; and they should have real experience or simulations in negotiating. At the end of three years, my guess is that this 26-year-old graduate can probably handle herself with pleadings, depositions, and in the courtroom with some degree of confidence, competence and usefulness to others (she might even be pretty darn good from the get-go!).
Can there be much room left for interesting electives or curricular roaming? Given a single choice, is a student who really wants to be a civil litigator better off with (1) a course in Insurance Law where she will learn to read and understand esoteric nuances of insurance contracts that allocate risk and liability, or (2) a course in an esoteric topic where she will no doubt have intellectually interesting seminar discussions? Why not room for both classes? Of course it’s feasible for any given student’s schedule and I’m not suggesting mutual exclusivity. The suggestion is simply an irrefutable fact of life as sure as death and taxes: All choices have opportunity cost. Time and money are not infinite resources. We can’t have our curricular cake and eat it too, and that’s the dilemma and the hand-wringing angst.
Lastly, here’s a prediction (I admit it may not be particularly insightful or courageous): if the current trends in the legal profession and legal education are structural and not cyclical, and if there is increasing outcome-based differentiation in hiring as markets rationally try to figure out how to do it beyond reliance on rankings and prestige as heuristics (just as the market is now rationalizing legal services), in the longterm the schools that best balance these competing tensions within their own competitive landscape will stand on a firmer foundation because 0Ls and the public in general are becoming more sensitive to outcome-based, economic criteria in making their decisions both to attend and to select the law school.
The fact that 0Ls this 2013 application season are rejecting law school in startling application numbers does not bode well for the health of the legal education sector. There may be some tipping point in the future where a financial calculator and employment outcomes may be more important to a larger segment of the applicant pool than the U.S. News rankings. My guess is that 0Ls are already figuring out that an additional $15,000 off sticker price tuition in a geographically preferable school with comparable employment data may be better than x number of rungs in the U.S. News rankings in a faraway state with higher sticker tuition (in a financial crunch, cash is king . . . always). As employment data increase in quality under the glare of public scrutiny and with the work of groups like Law School Transparency, the financial calculator may provide the ultimate ranking in the era of the internet, blogs, Facebook, twitter, and smartphones.
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