You are currently browsing archives for May 2015.
ATL Law School Rankings
May 29th, 2015 / By Deborah J. Merritt
Above the Law (ATL) has released the third edition of its law school rankings. Writing about rankings is a little like talking about intestinal complaints: We’d rather they didn’t exist, and it’s best not to mention such things in polite company. Rankings, however, are here to stay–and we already devote an inordinate amount of time to talking about them. In that context, there are several points to make about Above the Law‘s ranking scheme.
In this post, I address an initial question: Who cares about the ATL rankings? Will anyone read them or follow them? In my next post, I’ll explore the metrics that ATL uses and the incentives they create. In a final post, I’ll make some suggestions to improve ATL’s rankings.
So who cares? And who doesn’t?
Prospective Students
I think potential law students are already paying attention to the ATL rankings. Top-Law-Schools.com, a source used by many 0Ls, displays the Above the Law rankings alongside the US News (USN) list. Prospective students refer to both ranking systems in the site’s discussion forum. If prospective students don’t already know about ATL and its rankings, they will soon.
If I were a prospective student, I would pay at least as much attention to the ATL rankings than the USN ones. Above the Law, after all, incorporates measures that affect students deeply (cost, job outcomes, and alumni satisfaction). US News includes factors that seem more esoteric to a potential student.
Also, let’s face it: Above the Law is much more fun to read than US News. Does anyone read US News for any purpose other than rankings? 0Ls read Above the Law for gossip about law schools and the profession. If you like a source and read it regularly, you’re likely to pay attention to its recommendations–including recommendations in the form of rankings.
Alumni
Deans report that their alumni care deeply about the school’s US News rank. Changes in that number may affect the value of a graduate’s degree. School rank also creates bragging rights among other lawyers. We don’t have football or basketball teams at law schools, so what other scores can we brag about?
I predict that alumni will start to pay a lot of attention to Above the Law‘s ranking scheme. Sure, ATL is the site we all love to hate: Alumni, like legal educators, cringe at the prospect of reading about their mistakes on the ever-vigilant ATL. But the important thing is that they do read the site–a lot. They laugh at the foibles of others, nod in agreement with some reports, and keep coming back for more. This builds a lot of good will for Above the Law.
Equally important, whenever Above the Law mentions a law school in a story, it appends information about the school’s ATL rank. For an example, see this recent story about Harvard Law School. (I purposely picked a positive story, so don’t get too excited about following the link.)
Whenever alumni read about their law school–or any law school–in Above the Law, they will see information about ATL’s ranking. This is true even for the 150 schools that are “not ranked” by Above the Law. For them, a box appears reporting that fact along with information about student credentials and graduate employment.
This is an ingenious (and perfectly appropriate) marketing scheme. Alumni who read Above the Law will constantly see references to ATL’s ranking scheme. Many will care about their school’s rank and will pester the school’s dean for improvement. At first, they may not want to admit publicly that they care about an ATL ranking, but that reservation will quickly disappear. US News is a failed magazine; Above the Law is a very successful website. Which one do you think will win in the end?
US News, moreover, has no way to combat this marketing strategy. We’ve already established that no one reads US News for any reason other than the rankings. So US News has no way to keep its rankings fresh in the public’s mind. Readers return to Above the Law week after week.
Law Professors
Law professors will not welcome the ATL rankings. We don’t like any rankings, because they remind us that we’re no longer first in the class. And we certainly don’t like Above the Law, which chronicles our peccadilloes.
Worst of all, ATL rankings don’t fit with our academic culture. We like to think of ourselves as serious-minded people, pursuing serious matters with great seriousness. How could we respect rankings published by a site that makes fun of us and all of our seriousness? Please, be serious.
Except…professors spent a long time ignoring the US News rankings. We finally had to pay attention when everyone else started putting so much weight on them. Law faculty are not leaders when it comes to rankings; we are followers. If students and alumni care about ATL’s rankings, we eventually will pay attention.
University Administrators
People outside academia may not realize how much credence university presidents, provosts, and trustees give the US News rankings. The Board of Trustees at my university has a scorecard for academic initiatives that includes these two factors: (1) rank among public colleges, as determined by USN, and (2) number of graduate or professional programs in the USN top 25. On the first, we aim to improve our rank from 18 to 10. On the second, we hope to increase the number of highly ranked departments from 49 to 65.
These rank-related goals are no longer implicit; they are quite explicit at universities. And, although academic leaders once eschewed US News as a ranking source, they now embrace the system.
Presidents and provosts are likely to laugh themselves silly if law schools clamor to be judged by Above the Law rather than US News. At least for the immediate future, this will restrain ATL’s power within academia.
On the other hand, I remember a time (in the late 1990’s) when presidents and provosts laughed at law schools for attempting to rely upon their US News rank. “Real” academic departments had fancier ranking schemes, like those developed by the National Research Council. But US News was the kudzu of academic rankings: It took over faster than anyone anticipated.
Who’s to say that the Above the Law rankings won’t have their day, at least within legal education?
Meanwhile
Even if US News retains its primary hold on academic rankings, Above the Law may have some immediate impact within law schools. High US News rank, after all, depends upon enrolling talented students. If prospective students pay attention to Above the Law–as I predict they will–then law schools will have to do the same. To maintain class size and student quality, we need to know what students want. For that, Above the Law offers essential information
Compliance at the University of St. Thomas
May 24th, 2015 / By Deborah J. Merritt
Joel Nichols, the Associate Dean for Academic Affairs at the University of St. Thomas School of Law, sent me some information about his school’s program in Organizational Ethics and Compliance. The program is still heavily centered in the law school, but it includes key collaboration with the university’s Opus College of Business. The program also offers several options to students, including a JD certificate, JD/LLM in Ethics and Compliance (which can be completed in seven semesters), MSL (for students without a JD), and LLM (for those who already hold the JD).
Perhaps most noteworthy, the program has a substantial advisory board of compliance professionals from outside the university. Creating an advisory board of this nature is an excellent idea. In addition to helping schools identify appropriate coursework, an expert board can advise schools on employment prospects, career pathways, and the relationship between formal education and workplace experience in this area.
Interesting next steps for the St. Thomas program might be (a) creation of an undergraduate major, (b) addition of more courses related to organizational psychology and social psychology, and (c) development of more coursework focused on health-care compliance. UST does not have a medical school, but that circumstance might lead to particularly innovative offerings in this area. Perhaps a member of the advisory board could create a course that includes significant hands-on work or shadowing?
Please feel free to send me information about other notable programs in the compliance area.
ExamSoft Settlement
May 20th, 2015 / By Deborah J. Merritt
A federal judge has tentatively approved settlement of consolidated class action lawsuits brought by July 2014 bar examinees against ExamSoft. The lawsuits arose out of the well known difficulties that test-takers experienced when they tried to upload their essay answers through ExamSoft’s software. I have written about this debacle, and its likely impact on bar scores, several times. For the most recent post in the series, see here.
Looking at this settlement, it’s hard to know what the class representatives were thinking. Last summer, examinees paid between $100 and $150 for the privilege of using ExamSoft software. When the uploads failed to work, they were unable to reach ExamSoft’s customer service lines. Many endured hours of anxiety as they tried to upload their exams or contact customer service. The snafu distracted them preparing for the next day’s exam or getting some much needed sleep.
What are the examinees who suffered through this “barmageddon” getting for their troubles? $90 apiece. That’s right, they’re not even getting a full refund on the fees they paid. The class action lawyers, meanwhile, will walk away with up to $600,000 in attorneys’ fees.
I understand that damages for emotional distress aren’t awarded in contract actions. I get that (and hopefully got that right on the MBE). But agreeing to a settlement that awards less than the amount exam takers paid for this shoddy service? ExamSoft clearly failed to perform its side of the bargain; the complaint stated a very straightforward claim for breach of contract. In addition, the plaintiffs invoked federal and state consumer laws that might have awarded other relief.
What were the class representatives thinking? Perhaps they used the lawsuit as a training ground to enter the apparently lucrative field of representing other plaintiffs in class action suits. Now that they know how to collect handsome fees, they’re not worried about the pocket change they paid to ExamSoft.
I believe in class actions–they’re a necessary procedure to enforce some claims, including the ones asserted in this case. But the field now suffers from so much abuse, with attorneys collecting the lions’ share of awards and class members receiving relatively little. It’s no wonder that the public, and some appellate courts, have become so cynical about class actions.
From that perspective, there’s a great irony in this settlement. People who wanted to be lawyers, and who suffered a compensable breach of contract while engaged in that quest, have now been shortchanged by the very professionals they seek to join.
Campbell on Compliance
May 20th, 2015 / By Deborah J. Merritt
Compliance is one of the “hot” alternative jobs that law schools are promoting for their graduates. Much of this discussion, unfortunately, pays little heed to the nature of compliance jobs and whether legal education really prepares students to do this work well. The two seem to fit. After all, compliance is all about obeying the law, and JDs know a lot of law. The equation, though, isn’t that simple.
Law and Compliance
Ray Worthy Campbell explores these issues as one part of a rewarding new paper, The End of Law Schools. Although the title is provocative, and Campbell warns law schools of continued upheaval in the profession, the paper’s thesis is forward looking and upbeat. Campbell urges law schools to reinvent themselves as “schools of the legal professions.”
As part of that analysis, Campbell offers the best discussion I’ve seen of the difference between compliance and traditional law practice. His insights parallel those I’ve heard from contemporary general counsels, which is not surprising since Campbell has extensive practice experience. Educators who are contemplating the addition of compliance courses to the law school curriculum, or who just want to understand this area, should read Campbell’s exposition carefully.
Lawyers, as Campbell explains, tend to assume that compliance requires simply “explaining what the law require[s], and leaving it up the client to hew to the law.” P. 48. But today’s compliance officers are more about the “hewing” than the “explaining.” Naturally, a compliance officer has to understand the legal requirements affecting a company. Legal education can help with that foundation although, as Campbell points out, law schools pay more attention to broad legal principles than to “chapter and verse” of tedious regulations.
More important, understanding the law is just the starting point for an effective compliance officer. Big corporate scandals don’t arise from misreading the law; they often stem from behavior that all participants know full well is illegal. Did Walmart executives mistakenly think it was legal to bribe foreign government officials–or to cover up the evidence of those acts? See p. 49. No one needed a law degree to figure that one out.
Compliance Essentials
Instead, effective compliance officers need a host of knowledge and skills that law schools don’t touch. Necessary background includes “an understanding of how individuals work within a corporate culture, how leaders in an organization can inspire compliance, and [how to] identify[] those points in a business process most likely to lead to risks.” P. 49. “[T]racking, documenting and motivating employee behavior” are also essential. Id.
In addition to these basics, which infuse all compliance work, a compliance officer needs to understand her company’s business. It’s hard to achieve environmental compliance if your last science class was in high school. Ditto for privacy without some knowledge of computer programming. Almost all of the compliance fields require good accounting and math skills. Law students with STEM-phobia are not good candidates for most compliance positions.
Thinking Like a Compliance Officer
Compliance officers thus need education in fields outside the legal mainstream. Too many traditional law classes, meanwhile, may create the wrong mindset for compliance. Law schools hubristically assume that “thinking like a lawyer” is the best mental tool for any task. Traditionally educated lawyers, however, take a surprisingly narrow approach to problems.
Faced with a regulation, a lawyer’s first instinct is to find loopholes–ways for the client to avoid any unnecessary burdens. If there are no loopholes, then the lawyer will consider challenging the regulation in court. Did the agency follow proper procedures when adopting the rule? Did Congress give the agency sufficient authority in this area? Does the regulation raise constitutional issues under the nondelegation doctrine?
These lawyerly questions are appropriate under some circumstances. Indeed, any company faced with a burdensome regulation might ask its lawyers to explore these possibilities. But that’s lawyer work, not compliance.
Compliance requires a very different mindset: Now that we’ve established the validity and scope of these regulations, how do we go about obeying them? A lay person would be surprised to learn that we rarely view the law from that perspective in law school. Yet, as Campbell’s discussion reveals, this is not surprising at all. Effective compliance requires close reading of regulations and (sometimes) cases, but many college graduates can accomplish that task. Once one knows what the law requires, compliance requires very little manipulation of legal principles.
Educating Compliance Officers
Given the differences between law and compliance, Campbell predicts that law schools will not dominate compliance work simply by graduating traditional JDs. Some JDs will find work (and satisfaction) in that field, but the conventional path is both expensive and unsuited for compliance work. Instead, other programs are emerging that focus specifically on compliance careers.
Some of these programs are in law schools, some are in other departments. Some offer degrees, others provide certificates. Some encompass a year or more of work, others span only a few days. Some are online, others are face-to-face. As compliance continues to spawn job opportunities, preparatory programs will blossom. To what extent should law schools participate in that growth?
Campbell notes that law schools cannot educate effective compliance officers by simply packaging part of the current curriculum. Creating meaningful compliance education will require schools to add new fields of study while reshaping conventional ones. That process, Campbell suggests, could form part of the rebirth and expansion of law schools into “schools of the legal professions.” He urges schools to follow that path.
I wholeheartedly agree with Campbell that law schools need new faculty, fields of study, and pedagogic approaches to teach compliance effectively. Excellent education in that field will not be cheap. It will also stray from the single-minded focus that law schools have maintained for generations: the study of appellate opinions as a way of preparing graduates to handle legal disputes.
Broadening the focus of law school would be healthy for many reasons. In addition to allowing schools to enter the compliance field, it would expand our notion of lawyering to encompass the many types of work our graduates already do. Campbell’s vision of a school of the legal professions is very appealing.
Independence or Collaboration?
On the other hand, refashioning law schools as Campbell suggests will be a daunting task. Rather than attempt to create these programs within existing colleges of law, perhaps we should forge truly collaborative degrees with other units on campus.
Academia has long depended upon silos. Degrees belong to particular units, who jealously guard both the stature and revenue generated by those degrees. Interdisciplinary work is painful, as deans are reluctant to share their faculty’s teaching and scholarly capital with others. Despite their rhetoric, provosts and presidents often structure the university’s budget to reward just this type of turf protection.
Recently, however, I’ve seen signs that the old ways may be relaxing. In areas like environmental protection, neuroscience, and data analytics, universities seem to be willing to create truly cross-college programs. Committees of faculty drawn from all participating units govern these programs, which seem more genuinely devoted to meeting student needs than engaging in the horse trades that marked earlier interdisciplinary efforts.
I haven’t participated personally in any of these ventures, so I don’t know how optimistic to be. Despite my recent pessimism about aspects of legal education and the profession, I have an innate tendency toward optimism. (Really. My son calls me Miss Enthusiasm.) Perhaps this type of academic collaboration is illusory. But the stories I’ve heard suggest that there may be a new attitude emerging on campuses.
If so, then a cross-campus collaboration could be the perfect way to create a highly regarded program in compliance. With participation by law, business, organizational psychology, medicine, sciences, and other units, universities might already have the capacity to create stellar programs in this area. No unit would reap as much revenue as it might from an in-house program, but no unit would bear all the costs of building and maintaining such a program.
Maybe it’s time for creative destruction, not just in legal education, but in university structure.
The Unhappiest Lawyers
May 16th, 2015 / By Deborah J. Merritt
The New York Times recently covered an excellent study by Lawrence Krieger and Ken Sheldon. I wrote about the study, which analyzes lawyer happiness, when it first appeared.
The research finds that “service” lawyers, who work as public defenders, government lawyers, legal aid attorneys, and in-house counsel to nonprofits, are happier than “prestige” lawyers (those who work primarily for firms with 100 or more lawyers). Based on decades of contact with law graduates, that result does not surprise me.
The article and media coverage, however, downplay a finding that is much more important to our graduates, the profession, and potential clients: The unhappiest lawyers are not the prestige ones. Instead, that dubious honor falls to the “other” lawyers, those who work in smaller law firms “in popular practice areas such as general practice, family law, private criminal defense, and many others not typically associated with either very high earnings or primary public service.” (P. 589)
Unfortunately, those “other” lawyers made up more than half (51.7%) of the sample surveyed by Krieger and Sheldon. What do we do about a profession in which some lawyers earn high income in “prestige” positions, while others secure well-being (and early loan forgiveness) in “service” jobs, but the majority obtain neither? How do we fulfill our responsibility to serve all of society’s legal needs when the greatest number of unmet needs fall in that “other” segment?
The Lawyer Drain
Krieger and Sheldon’s research helps explain why so many law graduates leave practice, while so many clients remain unserved. Our students are eager to secure prestige or service jobs. Some want just one of the two; others would be happy with either one. But those jobs won’t accommodate all of our graduates, either short-term or long-term. For those who enter practice, many will have to take jobs in small firms that serve individual clients.
Those graduates perceive the low prestige of these jobs, together with their modest pay and apparent lack of well being. Rather than accept work in these disfavored positions, some choose to leave law practice. They may find financial and personal rewards in those other positions, but they are not making full use of their legal education and law license. Some report ongoing regret that they were not able to fulfill their dream of law practice. Clients, meanwhile, continue to suffer lack of representation.
Underlying Causes
Is there a way to address this situation? Or is dissatisfaction with “other” law practice inevitable? That type of practice certainly offers plenty of frustrations: difficult clients, tedious courtroom waits, disappointing losses, and uncollected bills. But many of those factors mark “service” jobs as well. The work of a legal aid lawyer is not that different from the tasks of a family lawyer serving low- and mid-income clients. Nor does a public defender’s work differ much from that of a paid defense lawyer representing modest-income clients.
The primary difference between these categories lies in office management and bill collection. Those are tedious matters for many lawyers, but it doesn’t seem inevitable that they compromise well being. The “other” practice areas, meanwhile, offer some compensations that neither prestige nor service jobs as readily provide. Small-firm lawyers often have more autonomy than these other categories of lawyers. They may also have a greater chance of affecting their client’s lives positively than lawyers who work with the lowest income clients.
Part of the problem, I think, is that we have defined our professional categories to make this “other” work undesirable. Personal injury lawyers who represent the middle class are “ambulance chasers” rather than lawyers who serve mid-income clients who face devastating injuries, medical bills, and loss of earnings. Divorce lawyers working with the same clients are “sleazy” attorneys preying off clients’ emotional misfortune. And paid criminal defense lawyers are “hired guns” who make their living putting criminals back on the street.
Doing the same work for a government or nonprofit paycheck is honorable. Attempting to serve the same clients in private practice is not.
Can We Fix This?
Legal educators are in a special position to address this problem. We serve as the gateway to the profession, introducing students to both the law and their potential careers. We also provide three years of intense acculturation for students. They form their professional attitudes, as well as prejudices and presumptions, during their time with us.
Most law schools, I suspect, implicitly teach students that “other” law practice is exactly that–something you turn to when you can’t find a job in the prestige or service worlds. Very few full-time faculty worked in these “other” jobs, and our curriculum does not feature them. We teach Torts, Criminal Law, and Family Law, but these courses focus on the high-minded appellate development of principles, rather than the everyday work of private practitioners. Attempting to teach these courses from a more practice-oriented perspective can elicit cries of “proselytization” from students. They don’t want to become personal injury lawyers or identify with the victims in these cases.
Some recent changes in legal education may start to redress this imbalance. More law schools are teaching practice management courses, which are essential for new lawyers practicing in “other” areas and signal the school’s support of these careers. Post-graduate incubators serve a similar purpose: In addition to providing essential skills, they demonstrate the school’s recognition of these practice areas. Students planning to practice “other” law have some established pathways to follow.
Doing More
We need, however, to do much more than this. Doctors take pride in working in a service profession, no matter how much money they make from their practice. Law is also a service profession, but we have lost much of that aura. Recapturing that mission is essential, not only to guide our graduates into rewarding careers but to serve the clients who need us.
We talk about service in law school, but we rarely model it. I’m not talking here about pro bono efforts by faculty or students; those, again, suggest that the only true service is done for free. Instead, we need to recognize that the services lawyers provide are individualized ones to clients. Our constant focus on appellate decisionmaking tells students that the highest calling for lawyers is changing the law through appellate argument. Medical schools, in contrast, teach students from the first year how to serve by treating individual patients.
Law schools cannot give all of their graduates the high salaries that prestige lawyers command. Nor can we make every graduate happy; well being derives from a mixture of factors, including genetic ones. We can, however, try to recapture the honor that attaches to solving the ordinary problems of ordinary people. Doing that requires much more than simply adding experiential classes to law school. We need to rethink the way we teach the first year, the manner in which we structure our curriculum, and the implicit messages we send throughout law school.
Equally important, we need to make law school affordable for the students who will become “other” lawyers. These are the students who will not reap BigLaw salaries, nor will they qualify for public interest loan forgiveness. Their firms will not benefit from the government grants or private insurance that sustain most medical practices. If we want to recapture the service ideals of the legal profession, we need to make service affordable and honorable for all of the graduates who do this work.
Predictions and the Pace of Change
May 14th, 2015 / By Deborah J. Merritt
The consulting firm Altman Weil has been surveying managing partners of mid- to large-sized law firms (those with 50 or more lawyers) annually since 2009. The latest report offers some intriguing perspectives on how attitudes have shifted since 2009. Equally important, the report illustrates how staffing patterns have changed–despite a rebounding legal market.
Here’s What We Say
In 2009, only 25.5% of respondents thought that “more commoditized legal work will be a permanent trend going forward.” Today, 89.4% agree with that statement.
Similarly, in 2009 just 28.3% of the managing partners thought that “more contract lawyers will be a permanent trend going forward.” Today the figure is 72.4%.
Outsourcing was still a novelty in 2009: Just 11.5% of Altman Weil’s respondents thought it would be a permanent trend. Now 52.3% agree that outsourcing is here to stay.
In 2009, finally, firms thought they would soon restore the size of their pre-recession first-year classes. Only 11.4% thought “smaller first-year classes will be a permanent trend going forward.” Now a majority of responding firms (60.6%) endorse that statement.
Practices that seemed temporary in 2009 have become permanent by 2015. If so much could change in six years, what will happen over the next six? In that context, it is notable that 72.4% of the responding partners think that the pace of change is accelerating in the profession.
And Here’s What We Do
The firms’ actions seem to match their words. More than half the law firms (56.3%) use contract lawyers, while 44.4% rely on staff attorneys. The median (and modal) increase in the number of partnership-track associates was zero.
Nor are there signs that the number of associates or partners will surge any time soon. One-quarter of firms (26.6%) think their current associates still aren’t sufficiently busy. The problem of excess capacity is even greater at the income and equity partner levels: More than half of firms report that those lawyers do not have enough work to keep them busy.
Firms do not expect increased demand to cure this excess capacity. One-third of the firms (32.1%) say that demand for their services has already returned to pre-recession levels. Another quarter (25.3%) do not think demand for their services will return to that giddy level in the foreseeable future. More than half of the firms, in other words, have either returned to the boom days (in terms of demand) or do not expect those days to return for them. In either case, they have already adjusted staffing levels and continue to worry about excess capacity.
Now Watch How We Profit
For the fifth year in a row, more than half of the responding firms reported increases in revenue per lawyer and profit per equity partner. Profits at the top have increased sufficiently that the responding firms are newly optimistic that profits per equity partner (PPEP) will continue to grow handily. In 2013 and 2014, more than half of the responding partners thought that a slowdown in the growth of PPEP had become permanent. In 2015, the percentage endorsing that view fell 13.5 points to just 44.8% of respondents.
Perhaps most sobering, increased profits per equity partner showed a marked relationship to changed staffing patterns. Altman Weil reports that: “77% of law firms that changed their strategic approach to lawyer staffing reported an increase in PPEP from 2013 to 2014, compared to 56% of firms that had not made such a change – a 21-point difference.”
What Does It Mean?
What do we learn from these survey results? We learn first that managing partners, like other humans, adjust slowly to change. They initially view new practices as temporary accommodations, then grow to accept them as permanent. In this case, however, the firms that accepted the changes more readily have also profited from them. Those profits have solidified the changes and will attract other followers.
Shifts in the staffing of legal services resemble changes in other sectors of the economy. Indeed, law has lagged behind most other sectors in adopting contingent workers and classes of “permanent” employees with less security and potential for job advancement than the traditional class. Adjuncts and clinical professors appeared in academia decades before contract lawyers and staff attorneys emerged in law firms.
The most surprising feature of the legal field was the number of lawyers and academics who insisted that changes like these could not and would not happen in law practice. The resistance, both in practice and prediction, made the inevitable correction all the more harsh.
Now we need to ask ourselves: What’s next? What circumstances seem unlikely or temporary today, but will persist until 2021, when they will appear inevitable and permanent?
On the Bar Exam, My Graduates Are Your Graduates
May 12th, 2015 / By Deborah J. Merritt
It’s no secret that the qualifications of law students have declined since 2010. As applications fell, schools started dipping further into their applicant pools. LSAT scores offer one measure of this trend. Jerry Organ has summarized changes in those scores for the entering classes of 2010 through 2014. Based on Organ’s data, average LSAT scores for accredited law schools fell:
* 2.3 points at the 75th percentile
* 2.7 points at the median
* 3.4 points at the 25th percentile
Among other problems, this trend raises significant concerns about bar passage rates. Indeed, the President of the National Conference of Bar Examiners (NCBE) blamed the July 2014 drop in MBE scores on the fact that the Class of 2014 (which entered law school in 2011) was “less able” than earlier classes. I have suggested that the ExamSoft debacle contributed substantially to the score decline, but here I focus on the future. What will the drop in student quality mean for the bar exam?
Falling Bar Passage Rates
Most observers agree that bar passage rates are likely to fall over the coming years. Indeed, they may have already started that decline with the July 2014 and February 2015 exam administrations. I believe that the ExamSoft crisis and MBE content changes account for much of those slumps, but there is little doubt that bar passage rates will remain depressed and continue to fall.
A substantial part of the decline will stem from examinees with very low LSAT scores. Prior studies suggest that students with low scores (especially those with scores below 145) are at high risk of failing the bar. As the number of low-LSAT students increases at law schools, the number (and percentage) of bar failures probably will mount as well.
The impact, however, will not be limited just to those students. As I explained in a previous post, NCBE’s process of equating and scaling the MBE can drag down scores for all examinees when the group as a whole performs poorly. This occurs because the lower overall performance prompts NCBE to “scale down” MBE scores for all test-takers. Think of this as a kind of “reverse halo” effect, although it’s one that depends on mathematical formulas rather than subjective impressions.
State bar examiners, unfortunately, amplify the reverse-halo effect by the way in which they scale essay and MPT answers to MBE scores. I explain this process in a previous post. In brief, the MBE performance of each state’s examinees sets the curve for scoring other portions of the bar exam within that state. If Ohio’s 2015 examinees perform less well on the MBE than the 2013 group did, then the 2015 examinees will get lower essay and MPT scores as well.
The law schools that have admitted high-risk students, in sum, are not the only schools that will suffer lower bar passage rates. The processes of equating and scaling will depress scores for other examinees in the pool. The reductions may be small, but they will be enough to shift examinees near the passing score from one side to another. Test-takers who might have passed the bar in 2013 will not pass in 2015. In addition to taking a harder exam (i.e. a 7-subject MBE), these unfortunate examinees will suffer from the reverse-halo effect describe above.
On the bar exam, the performance of my graduates affects outcomes for your graduates. If my graduates perform less well than in previous years, fewer of your graduates will pass: my graduates are your graduates in this sense. The growing number of low-LSAT students attending Thomas Cooley and other schools will also affect the fate of our graduates. On the bar exam, Cooley’s graduates are our graduates.
Won’t NCBE Fix This?
NCBE should address this problem, but they have shown no signs of doing so. The equating/scaling process used by NCBE assumes that test-takers retain roughly the same proficiency from year to year. That assumption undergirds the equating process. Psychometricians recognize that, as abilities shift, equating becomes less reliable.* The recent decline in LSAT scores suggests that the proficiency of bar examinees will change markedly over the next few years. Under those circumstances, NCBE should not attempt to equate and scale raw scores; doing so risks the type of reverse-halo effect I have described.
The problem is particularly acute with the bar exam because scaling occurs at several points in the process. As proficiency declines, equating and scaling of MBE performance will inappropriately depress those scores. Those scores, in turn, will lower scores on the essay and MPT portions of the exam. The combined effect of these missteps is likely to produce noticeable–and undeserved–declines in scores for examinees who are just as qualified as those who passed the bar in previous years.
Remember that I’m not referring here to graduates who perform well below the passing score. If you believe that the bar exam is a proper measure of entry-level competence, then those test-takers deserve to fail. The problem is that an increased number of unqualified examinees will drag down scores for more able test-takers. Some of those scores will drop enough to push qualified examinees below the passing line.
Looking Ahead
NCBE, unfortunately, has not been responsive on issues related to their equating and scaling processes. It seems unlikely that the organization will address the problem described here. There is no doubt, meanwhile, that entry-level qualifications of law students have declined. If bar passage rates fall, as they almost surely will, it will be easy to blame all of the decline on less able graduates.
This leaves three avenues for concerned educators and policymakers:
1. Continue to press for more transparency and oversight of NCBE. Testing requires confidentiality, but safeguards are essential to protect individual examinees and public trust of the process.
2. Take a tougher stand against law schools with low bar passage rates. As professionals, we already have an obligation to protect aspirants to our ranks. Self interest adds a potent kick to that duty. As you view the qualifications of students matriculating at schools with low bar passage rates, remember: those matriculants will affect your school’s bar passage rate.
3. Push for alternative ways to measure attorney competence. New lawyers need to know basic doctrinal principles, and law schools should teach those principles. A closed-book, multiple-choice exam covering seven broad subject areas, however, is not a good measure of doctrinal knowledge. It is even worse when performance on that exam sets the curve for scores on other, more useful parts of the bar exam (such as the performance tests). And the situation is worse still when a single organization, with little oversight, controls scoring of that crucial multiple-choice exam.
I have some suggestions for how we might restructure the bar exam, but those ideas must wait for another post. For now, remember: On the bar exam, all graduates are your graduates.
* For a recent review of the literature on changing proficiencies, see Sonya Powers & Michael J. Kolen, Evaluating Equating Accuracy and Assumptions for Groups That Differ in Performance, 51 J. Educ. Measurement 39 (2014). A more reader-friendly overview is available in this online chapter (note particularly the statements on p. 274).
Professional Status
May 11th, 2015 / By Deborah J. Merritt
I wrote recently about the two hemispheres of law practice. Lawyers view some practice areas (like securities law) as considerably more prestigious than others (like divorce law). This division has several implications for law schools: (1) students prefer schools that will lead to high-prestige practices; (2) schools try to satisfy that preference, both to attract students and to enhance their own intra-professional prestige; (3) schools assiduously avoid any reputation of producing low-status practitioners.
Before exploring these implications in greater depth, let’s examine what factors contribute to status differences in law practice. In other words, what marks a practice area as high status?
I rely in this discussion on the work of several sociologists, including the Heinz and Laumann studies of Chicago lawyers in 1975 and 1995. I also found the work of Andrew Abbott, an expert on the sociology of the professions, particularly helpful. Like Heinz, Laumann, and Abbott, I focus here on characteristics of intraprofessional status–that is, the factors that elicit respect from other lawyers.
Income
Income shows a strong correlation with status in American society, and this is true within the legal profession. On average, securities lawyers earn more than divorce lawyers. A law graduate joining a BigLaw firm will earn a much higher starting salary than one joining a family law practice.
Money, however, only partly explains status differences in law. Judges hold high status, although they earn less than most BigLaw partners. Some personal injury and divorce lawyers earn very high incomes, but the profession accords them less respect than it gives more modestly paid corporate lawyers. Income counts, but it doesn’t tell the whole story.
Power
Power also correlates with prestige. The mega-deals handled by corporate lawyers can affect billions of dollars and millions of people. Judges have the power to decide all types of disputes, altering the fate of both individuals and organizations. Divorce lawyers, in contrast, usually affect the lives of a single family.
Once again, however, power doesn’t completely explain professional prestige. Corporate lawyers help big deals proceed or founder, but they largely follow their client’s bidding. The client, rather than the lawyer, holds the authority to determine the terms of the deal. A lobbyist, state legislator, or legislative aide may have more power than a judge to affect the course of the law, but the judge commands more respect among lawyers. Prosecutors are some of the most powerful lawyers, because of their unilateral power to drop, enhance, or settle criminal charges, but their professional status falls somewhere in the middle of the pack.
If neither income nor power fully explains professional prestige, what does?
Professional Purity
Abbott suggests that “professional purity” explains status distinctions in law, medicine, and other professions. By professional purity, he means the ability to resolve problems primarily through application of the profession’s own principles. The most prestigious professionals apply their knowledge to particular problems, but they do not grapple directly with messy facts or human emotions. Lower status professionals, in contrast, resolve problems that reflect a full range of “human complexity and difficulty.” (Andrew Abbott, Status and Status Strain in the Professions, 86 Am. J. Sociology 819, 823 (1981). Other cites in this post are from the same article.)
To me, this distinction explains quite a bit about status differences in law practice–as well as about the ways in which we support those distinctions in law schools. Appellate judges hold very high status because they deal purely with legal principles. The parties and trial judge have already sorted through the facts, and the rules of appellate review tell them which facts to assume. Professional norms, meanwhile, dictate that they should decide the case based on legal principles, not on personal predilections, public pressure, or other manifestations of “human complexity.”
Trial judges also hold high prestige. They’re exposed to more facts than their appellate colleagues, but legal principles (the rules of evidence) tell them how to sort those facts. The closer a trial judge comes to human messiness, as in municipal courts or family law dockets, the lower the judge’s prestige.
Legislators and their aides receive respect from the legal profession because of their ability to define legal principles. From a lawyer’s perspective, however, their work is not as prestigious as the work of judges: Legislators must balance the demands of constituents, donors, and lobbyists. That task is not as legally “pure” as the judge’s duty to assess different precedents.
Into the Trenches
The same considerations inform the professional status of practicing lawyers. We view corporate lawyers as manipulating legal principles to accomplish the client’s goal. Indeed, we assume that corporate lawyers do some of the most “legally” powerful work in the profession: They examine statutes, rules, and precedents to construct new, advantageous ways for the client to conduct its business. Although the corporate lawyer must understand the client’s interest, the lawyer works primarily with legal principles to further that interest. Note that when corporate clients complain about their lawyers, the complaint often focuses on the lawyer’s failure to “immerse herself in the facts of my business.” High prestige lawyers resist exactly that type of immersion.
When BigLaw firms must deal with messy facts, as in due diligence or discovery work, they increasingly delegate those tasks to low-status lawyers like staff attorneys, contract lawyers, and lawyers employed by outsourcing companies. These practices preserve the most prestigious, legally “pure” work for high-status attorneys in the firm.
Divorce lawyers, personal injury lawyers, and criminal defense lawyers, in contrast, are hopelessly immersed in the “muck of feelings,” facts, and extralegal considerations. Abbott, supra at 824. Students in my criminal defense clinic quickly learn that it is more important to persuade the client to find a job (which will impress the prosecutor and elicit a more favorable plea offer) than to draft a motion to exclude evidence on Fourth Amendment grounds (unless police conduct clearly was improper).
Divorce and personal injury lawyers, likewise, deal daily with the human drama of betrayal, lost love, accidents, and physical injuries. They use legal principles to pursue advantageous outcomes, and sometimes they argue for novel interpretations of the law. Most of their work, however, is highly fact dependent.
Looking Forward
I hope to use Abbott’s concept of “professional purity,” along with other status markers, to explore some of the ways in which we structure the law school curriculum. I also plan to draw upon this concept to examine the ongoing debate about the careers available to law school graduates. Meanwhile, I welcome your comments about status distinctions generally and Abbott’s concept in particular.
Many of us in the United States are uncomfortable talking about status, because we view ourselves as an egalitarian “class less” society. Yet it seems clear that there are status differences in the jobs that law graduates perform. Without talking about those differences, we can’t resolve some of the open issues in both the law school curriculum and career prospects for lawyers.
New York Adopts the Uniform Bar Exam
May 5th, 2015 / By Deborah J. Merritt
New York’s highest court announced today that it will begin administering the Uniform Bar Exam (UBE) in July 2016. In addition to passing the two-day UBE, applicants will have to complete an online course about NY law and pass an online exam based on that content.
New York’s move almost certainly will prompt other states to follow suit. Within a few years, we are likely to have a national bar exam. What will this mean for new lawyers? I offer some initial thoughts below.
Positives
1. The Uniform Bar Exam increases mobility for new lawyers. Passing the UBE in one state does not guarantee admission in a different state, because states can select different passing scores. States may also require applicants to complete a state-specific exam. The UBE, however, greatly eases interstate migration for newly admitted lawyers. This is particularly important in a tight job market.
[Adoption of the UBE doesn’t matter as much for experienced lawyers, because most states allow lawyers to “waive in” to their bar after five years of experience in another jurisdiction.]
2. This increased mobility is especially important to women lawyers. My study of new lawyers admitted to the Ohio bar in 2010 found that women were significantly more likely than men to move out of state within their first five years of practice. Almost one fifth of the women (18.4%) left Ohio after gaining bar admission, while just 14.1% of the men did so.
3. By testing general principles, rather than the law of a particular state, the UBE better fits the material that students cover in law school. Students may have to spend somewhat less time preparing for the bar. Even if a state tests separately on local law, as NY plans to do, that testing will occur at a different time.
4. The National Conference of Bar Examiners (NCBE), which creates all portions of the UBE, is a large organization with the resources to develop and pretest sensible questions. Its essay questions may be more fair than ones developed by state bar examiners.
Negatives
On the other hand, there are several drawbacks to the UBE. As a long-time supporter of a national bar exam, I am more troubled by these issues than I once thought I would be:
1. Although mobile lawyers will benefit from the UBE’s portability, those who remain in-state will have to jump more hurdles than ever to gain bar admission. On top of a two-day bar exam, they will have to complete an online course about NY law and pass a 50-question multiple-choice test on that law. Our school’s director of bar support, who has coached students taking the NY bar, says that the NY multiple-choice test is no picnic.
2. Bar passage could become even more onerous if NY adds an experiential component to its testing. The advisory committee that endorsed adoption of the UBE also recommended creation of a new “task force to study whether experiential learning may be quantified as a licensing requirement or whether some other demonstration of skills acquisition should be required for licensing.” I like the idea of measuring practice skills before bar admission, but I would replace some of our written exams with the experiential component. Adding yet another layer to proficiency testing imposes burdens on new lawyers that more senior ones did not face.
3. Multiple-choice questions make up half the UBE score, a higher proportion than some states currently allot to those questions. Multiple-choice questions have their place, but I would rather test new lawyers on performance tasks like those in the MPT. To me, the MBE is even further removed from practice realities than any law school exam. A closed-book exam covering seven different, very broad subject areas does little but test an applicant’s ability to cram large amounts of material into memory.
4. In addition to my general concern about multiple-choice bar exams, some bar studies find that women (on average) score slightly higher than men on essay questions and performance items, while men (on average) score slightly higher on the MBE. When the MBE accounts for 35% (California) or 40% (Texas) of the exam, these differences balance out, creating virtually identical pass rates for men and women. Is it appropriate to increase the weight accorded multiple-choice items if we know that this shift is likely to favor one gender?
5. NCBE was remarkably unresponsive in dealing with the possible impact of last summer’s ExamSoft meltdown. The organization has also become less transparent, withholding information (such as raw scores) that it used to disclose. Concentrating even more power in one organization is risky. Who will hold NCBE accountable? What pressure will it feel to maintain high-quality services?
Other Thoughts
I continue to consider the advantages and disadvantages of NY’s move to the UBE, and will update this post as other points emerge. Please add your own thoughts in the comments. A national bar exam seems long overdue, but aspects of this shift concern me. As other states react to NY’s move, can we find ways to preserve the advantages of a national bar exam while assuring that (a) the exam tests proficiencies and knowledge that matter; (b) the exam does not create additional burdens for bar applicants; and (c) there is appropriate oversight of the organization administering the exam?
More on Grade and Scholarship Quotas
May 5th, 2015 / By Deborah J. Merritt
In a response to this post, Michael Simkovic wonders if I believe “it is inherently immoral to limit ‘A’ grades to students whose academic performance is superior to most of their peers, since an ‘A’ is simply a data point and can be replicated and distributed to everyone at zero marginal cost.”
Not at all. I believe in matching grades to performance, and I don’t hesitate to do that–even when the performance is a failing one. Ironically, however, the mandatory grading curve produces results that are quite troubling for those of us who want grades to reflect performance. Constrained by that type of grading system, I have given A’s to students who performed worse than their peers. Let’s consider that problem and then return to the subject of conditional scholarships.
A Tale of Two Tort Classes
To accommodate institutional needs, I once taught two sections of the first-year Torts class. I used the same book and same lecture notes in both classes. We covered the same material in each class, and I drafted a single exam for the group. Following my practice at that time, it was a 4-hour essay exam with several questions.
I graded the exams as a single batch, without separating them into the two sections. Again following my usual practice, I used grading rubrics for each essay. I also rotated batches of essays so that no exam would always suffer (or benefit) from being in the first or last group graded. After I was done, I plotted all of the scores.
I discovered that, if I applied a single curve to both sections, all of the A grades would fall in one section. Our grading rules, however, required me to apply separate curves to each section. So some students in the “smart” section got B’s instead of the A’s they deserved. Some students in the other section got A’s instead of the B’s they deserved. When I discussed my problem with the Associate Dean, he did allow me to use the highest possible curve for the first section, and the lowest possible one for the other section; that ameliorated the problem to some extent. In the end, however, the letter grades did not match performance.
Several other professors have recounted similar experiences to me. It doesn’t happen often, because it is uncommon for a professor to teach two sections of a first-year class. But it does happen. In fact, when professors teach multiple sections of the same course, section differences seem common. If these differences occur when we can readily detect them (by teaching two sections), they probably occur under other circumstances as well.
I don’t think this drawback to mandatory curves rises to the level of immorality. Students understand the system and benefit from some of its facets. The curve forces professors to award similar grades across courses and sections, moderating both curmudgeons and sycophants. As Professor Simkovic notes, the system also restrains creeping grade inflation. A mandatory curve, finally, offers guidance to professors who lack an independent sense of what an A, B, or C exam looks like in their subject.
I tell this story to make clear that a mandatory curve does not necessarily reward achievement. On the contrary, a mandatory curve can give B’s to students “whose academic performance is superior to most of their peers” as measured through blind grading. I know it can happen–I’ve done it.
Commpetition
It feels silly to say this, given my position on deregulating the legal profession, but I do not believe (as Professor Simkovic suggests) that “competition for scarce and valuable resources is inherently immoral.” Competition within an open market usually leads to beneficial results. Competition within a tournament guild, on the other hand, leads to inefficiencies and other harms.
Back to Conditional Scholarships
Returning to our original point of disagreement, I think Professor Simkovic misconstrues college grading patterns–especially in STEM courses. Those courses are not, to my knowledge, graded on a mandatory curve. Instead, the grades correspond to the students’ demonstrated knowledge. The college woman I mention in the primary post was a STEM major; she was no stranger to tough grading. She, however, was accustomed to a field in which her efforts would be rewarded when measured against a rigorous external standard–not one in which only seven students would get an A even if eight performed at that level.
Once again, law school mandatory curves are not “inherently immoral.” They do, however, differ from those that are “routinely used by other educational institutions and state government programs.” Our particular grading practices change the operation of conditional scholarships in law school. At college, a student with a conditional scholarship competes against an external standard. If she reaches that goal, it doesn’t matter how many other students succeed along with her.
In law school, a student’s success depends as much on the efforts of other students as on her own work. If conditional scholarships were in effect when I taught those two sections of Torts, it is quite possible that a student from the “smart section,” who objectively outperformed a student from the “other section,” would have lost her scholarship–while the less able student from the “other section” would have kept her award. I do not think college students understand that perverse relationship between our grading system and conditional scholarships–and neither Professor Simkovic nor Professor Telman has cited any evidence that they do.
Let the Market Rule
As I stated in my previous post, the ABA’s rule has cured two of the ills previously associated with high-forfeiture conditional scholarships. Schools may continue to offer them, subject to that rule. It appears that schools differ widely in the operation of these programs. Some offer only a few conditional scholarships, with rare forfeitures. Others offer a large number, with many forfeitures. Still others lie in between.
The market will soon tell us which of these paths enhance student enrollment. Now that prospective students know more about how conditional scholarships work at law schools, will they continue to enroll at schools with high forfeiture rates? Time will tell.
About Law School Cafe
Cafe Manager & Co-Moderator
Deborah J. Merritt
Cafe Designer & Co-Moderator
Kyle McEntee
Law School Cafe is a resource for anyone interested in changes in legal education and the legal profession.
Around the Cafe
Subscribe
Categories
Recent Comments
- on Experiential Education
- on Scholarship Advice
- on ExamSoft: New Evidence from NCBE
- on COVID-19 and the Bar Exam
- on Women Law Students: Still Not Equal
Recent Posts
- Experiential Education
- The Bot Takes a Bow
- Fundamental Legal Concepts and Principles
- Lay Down the Law
- The Bot Updates the Bar Exam
Monthly Archives
Participate
Have something you think our audience would like to hear about? Interested in writing one or more guest posts? Send an email to the cafe manager at merritt52@gmail.com. We are interested in publishing posts from practitioners, students, faculty, and industry professionals.