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No More Summer Associates?
June 30th, 2015 / By Deborah J. Merritt
Quinn Emanuel, one of the nation’s “superrich” law firms, is cutting most of its summer program. Rather than employ 50 summer associates, as it has in recent years, the firm will hire just 5-10. According to a memo from name partner John Quinn, the move will reduce expenses (with savings redirected toward signing bonuses for associates joining the firm on a full-time basis) and avoid the “unrealistic” nature of summer programs.
Quinn told Bloomberg BNA that he didn’t expect other law firms to follow suit; some members of the profession view Quinn Emanuel as “quirky.” On the other hand, he stressed the strong rationales for dumping summer associate programs: firms spend a lot on them, it is difficult to integrate students into the firm’s workload, students thus get an unrealistic view of firm life, and clients no longer want to pay for summer associate work (even at discounted rates). If firms took a hard look at summer programs, Quinn suggested, they would conclude that these programs don’t “make[] any sense.”
What will happen if other BigLaw firms follow the Quinn Emanuel lead? Here are some preliminary thoughts. I limit my discussion in this post to BigLaw firms. If the idea spread to smaller firms, that would have additional repercussions.
Elitism
Summer programs are one way–usually the only way–that students from lower ranked schools can demonstrate their worth. If firms eliminate summer try-outs, then how will they make permanent hiring decisions? I predict that they’ll recruit even more heavily from the most elite schools. A partner from a T50-but-not-T14 school may be able to persuade the hiring committee to take a summer associate from her alma mater. That’s a harder sell for a full-time associate position.
Quinn Emanuel’s retention of a very small summer program signals this shift to more concentrated elitism. The firm plans to continue hiring 5-10 summer associates each year who will be able to share their personal experiences with classmates. I think I can guess which 5-10 campuses will get those positions.
Money
Many law students rely upon summer money to pay living expenses and reduce reliance upon loans. For those who work at BigLaw firms, the money is substantial. According to the NALP Directory, the going rate for 2L summer associates at NY BigLaw firms is about $3,067/week this summer. That comes to $24,608 for an 8-week summer. Students owe taxes on that amount, but summer salaries still make a substantial contribution to student finances.
If other BigLaw firms follow Quinn Emanuel’s lead, the effective cost of attending law school will rise. Successful students may earn that money back during their careers, but the upfront investment will grow.
Hands-On Education
Summer associate programs play a useful role in exposing students to real-world law practice. Students return from these summers talking about their enhanced understanding of litigation (“I’ve seen a set of interrogatories!”), corporate work, and other practice areas. Some even meet a client or attend a legal proceeding.
At most law schools, BigLaw firms employ only a small percentage of students during the summer. Other firms, government agencies, corporations, and nonprofits offer as good–or better–practical experience to students. Still, it is worth asking what will happen if paid summer jobs start to decline. Where will students get the experiences that complement their classroom learning? Are law schools prepared to fill the gap?
Entry-Level Hiring
With its spare summer program, Quinn Emanuel plans to focus entry-level hiring on third-years and judicial law clerks. It’s easy to imagine the lean summer program, however, as the first step toward an emphasis on lateral and/or contract hiring. Will the Quinn Emanuel partners be willing to hire completely untested associates–or those trained only by judicial clerkships? Or will the current break with tradition lead to other changes?
Even if not at Quinn, what about other firms? One can imagine firms pruning both summer programs and first-year associate ranks. Most BigLaw firms are already fat around with middle, with a large number of income partners. Rather than hire more new associates, perhaps we will see a shift toward hiring laterals and contract lawyers.
Change
The most important implication of Quinn’s move is the fact of change itself. Six years after the Great Recession, firms are experimenting more–not less. They are continuing to ask “does this tradition make sense?” And they seem increasingly willing to change those traditions.
Law firms are notoriously slow to change but, when they do pursue a new course, law schools have to play catch-up. Quinn Emanuel hasn’t announced a proposal that a committee will study over the next academic year, ultimately proposing formation of a new committee to study the idea further. Quinn might have mooted this idea internally for some time, but change will follow quickly on the heels of the public announcement.
Quinn’s change will affect a small number of students at a small number of law schools. But what other changes are brewing, in BigLaw and elsewhere?
Honoring Obergefell
June 28th, 2015 / By Deborah J. Merritt
I’m elated by the Supreme Court’s decision in Obergefell. The decision affirms so many things I value: marriage, human bonds, tolerance, and constitutional principle. The decision also demonstrates the role that law plays in pushing us to examine prejudices; it gives me hope for further progress.
I value even the negative reactions to the opinion: they remind us that courts and legislatures maintain a delicate balance in a democracy like ours. I believe that the Obergefell majority properly interpreted and applied the Constitution but, to borrow a word from a different inspiring source, raucous discussion of our constitutional process is an essential part of that process.
Obergefell, of course, will jump into the law school curriculum. Professors and students will debate the majority’s reasoning, as well as the dissents’ attacks. They will explore Obergefell‘s implications for tax, family law, and other subjects. Even my Evidence book will include Obergefell in its summer supplement; it’s time to update the discussion of marital privileges.
All of this is as it should be. I challenge law schools, however, to take another, more difficult step in honor of Obergefell: to use this occasion to recognize how poorly we serve clients in the family law field.
Legal Needs
Marriage, as Obergefell recognizes, is one of our most important legal institutions. Marital status affects rights and duties related to “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation.”
Couples need legal assistance to maintain this key status, to implement it, and (if necessary) to dissolve it. Yet hundreds of thousands of individuals cannot obtain that legal assistance. For many, the assistance is too expensive. For others, it is cumbersome or intimidating to obtain. Studies of the family law system reveal shocking gaps in legal assistance: In Milwaukee, 70% of family law litigants lack counsel. In California, 80% of family law cases include at least one pro se litigant. In Philadelphia, 89% of child custody litigants proceed without counsel. No city or state has produced a report showing that its residents are able to satisfy their legal needs in family-related cases.
Whose Problem Is It?
We’ve talked for decades about addressing these legal needs through increased legal aid funding or enhanced pro bono efforts. But governments are already struggling to balance budgets, and taxpayers show little inclination to raise taxes. Lawyers praise pro bono, but our efforts chronically fall far short of our rhetoric. Many of us lack the skills and experience needed for effective family law representation.
To solve the legal crisis affecting families, we need to start in law school. We need to champion the importance of representing individuals with family-related legal needs. Divorce, child custody, and other domestic relations work have languished at the bottom of the status heap in law practice. If we believe in Obergefell, it’s time to change that.
We have to teach students the skills they need for success in family law practices. This is a tough practice area, with particularly challenging issues of client counseling, negotiation, and ethical responsibilities. Doctrine matters in this area, but so do skills. Family law practitioners are already struggling to serve their clients and make ends meet; we can’t rely on them to educate law graduates on the skills they missed in law school.
Equally important, we need to devise systems that deliver these essential legal services more efficiently and economically. Researchers, educators, and practitioners should work together to design new systems and test their impact. Unbundled services? Limited license professionals? Online resources? Prepaid plans? What combination of these approaches–and others–will best meet the needs of potential clients?
Professional Responsibility
Lawyers own the legal profession. We control entry, education, and practice. Society allows us to bar others from performing our work. That ownership confers a responsibility: to operate the profession in a manner that assures access to needed services.
Legal educators sometimes stand apart from the profession, forgetting our key gatekeeper role–and the financial benefits we derive from that status. We are the ones who choose potential lawyers and chart their course of study. We also have the resources to research new methods of delivering legal services. We, along with other lawyers, bear responsibility for persistent flaws in the legal system. It’s time to act on that responsibility.
Access to Justice
It may seem odd to honor Obergefell by discussing a practice area that reflects the heartaches of marriage more often than its joys. I hope that none of the couples who marry in the coming months will ever separate, fight over their children, or suffer domestic abuse. But at least some of them, both same-sex and opposite-sex, will.
The legal system recognizes grand ideals of justice, but it also acknowledges our human weaknesses. We make mistakes. We commit crimes. We break contracts. We abandon our partners and fight over our children. Sometimes we even abuse the people we love most.
Laws exist to cope with all of our mistakes. In the family law system, a good attorney can help change personal tragedy to a new beginning. At the very least, an attorney can mitigate the damage. But today, a majority of Americans face these personal and legal tragedies without sufficient guidance. It’s up to us–the gatekeepers, educators, and researchers of the legal system–to design a better system.
The Challenge
I challenge every law school to create a clinic or post-graduate firm focused on family law issues. If you already have one, make it better. Encourage faculty to work with practitioners, designing and testing new systems of delivering legal services. If none of your current professors are interested in improving the delivery of legal services, hire one who is. Teach students that family law is an essential area of law practice, and help them create sustainable practices. Enforce the promise of justice for everyone who has ever been part of a family.
Fee Shifting
June 14th, 2015 / By Deborah J. Merritt
I recently interviewed Pete Barry, a lawyer who represents plaintiffs suing debt collection agencies for violations of the Fair Debt Collections Act (FDCA). You can listen to the interview in this “I Am the Law” podcast.
Pete is quick to acknowledge that his clients should pay their debts; he’s not in the business of shielding deadbeats. At the same time, Congress found that abusive debt collection causes job losses, marital breakups, and bankruptcies–all events that hinder debt repayment. To prevent these outcomes, Congress outlawed some debt collection practices.
Rather than create an agency to police debt collection, Congress chose to rely upon private enforcement. When a plaintiff establishes an FDCA violation, she recovers actual damages, court-ordered compensation of up to $1,000, court costs, and an attorney’s fee.
The fee shifting produces some eye-opening results. As Pete explains in the podcast, many defendants know that they’ve crossed the line and are willing to settle. Unless the plaintiff has provable actual damages, she may recoup only $1,000 through settlement. Pete’s court-approved hourly rate, however, is $450. He tracks his time carefully and defendants pay those bills when they settle. Even an easy case can generate $4,500 in attorney’s fees.
Did You Learn This in Law School?
Pete’s practice intrigues me because of its business model. Rather than rely upon clients to pay his bills, Pete built his practice around a federal fee-shifting statute. He notes that there are many such statutes, and that too many lawyers overlook them when designing a practice.
After talking to Pete, I realized that law schools also overlook these statutes. Some fee-shifting laws, particularly those related to civil rights, appear in the law school curriculum. Even courses teaching those statutes, however, tend to focus on substantive rules rather than the potential for attorney’s fees.
When we do talk about attorney’s fees in law school, we usually discuss the policies surrounding fee shifting. We may use noble language like “creating private attorneys general,” but we rarely analyze the potential for these statutes to create a viable law practice.
Vindicating Congressional Policies
Congress didn’t create fee-shifting statutes to support lawyers. Instead, these statutes protect important interests–primarily ones held by the poor and middle class. Potential plaintiffs have suffered from our lack of attention to these statutes.
Imagine if the required 1L year included a course on fee-shifting statutes. That course would deepen students’ knowledge of statutory law, highlight rights that Congress (or state legislatures) considered important enough to enforce through attorney’s fees, and expose students to injuries that disproportionately affect poor, middle class, and minority clients. The course would also remind students that legal remedies aren’t free and most lawyers earn their living from private clients.
I doubt that many law schools (if any) would add my proposed course to the first-year curriculum. Just imagining such a course, however, helps me see the distortions in the current curriculum. Our traditional courses help students master fundamental legal concepts, like negligence or breach of contract. I suspect, however, that we could teach the same concepts through modern statutes–and perhaps give students better grounding in the statutory remedies that define most contemporary legal rights.
At the same time, we would focus students on a fact that is fundamental to both the rule of law and their future as practicing attorneys: Lawyers can’t promote justice unless someone pays their bills. If law schools paid closer attention to this truth, including the business side of law practice, we might widen the scope of legal services.
The Appellate Classroom
June 12th, 2015 / By Deborah J. Merritt
Critics of legal education often note the primacy of appellate law in law school classrooms. Our doctrinal courses, after all, rest primarily on appellate opinions. But the focus on appellate advocacy is even more pervasive than this: Our “Socratic” questioning follows the cadence of an appellate argument.
The professor stands at the front of the room, often on an elevated platform. She poses a question, which a single student addresses. Some questions involve the facts of the underlying case; others address application of the legal principle to other alternative fact patterns. After the student answers, the professor poses another question.
If you doubt the similarity to an appellate argument, try this experiment: Attend an appellate argument in a local courthouse, then witness a traditional law school class later the same day. I once did this, entirely by accident, and I was astounded by the similarities.
Preparation for Lawyering
Our doctrinal courses thus give students repeated practice for appellate lawyering. Their raw materials are appellate cases, and classroom discussion resembles oral argument. The legal reasoning conducted in doctrinal classes consists of reconciling precedents and applying them to new fact patterns.
Some of my colleagues argue that the latter task prepares students for other types of practice. We may, for example, ask a student: “How would you counsel your client to respond to this decision?” Or, “what if you advised a client to do X? Would that fall within the court’s holding here?”
These questions, however, are like the ones that appellate judges ask as they probe the doctrinal reach of a possible holding. The substance is the same as questions asking “if I accept your argument, how would that affect individuals who do X?” Or, “how will clients change their practices if we adopt your interpretation of the statute?”
These questions about “advising clients” do not give students practice in client counseling. If a lawyer were representing a real client, the answer to the above classroom questions would be something like: “It depends how much the client has to spend, both on legal representation and on modifications to her business. It also depends on how much the client cares about Y rather than Z. I’d also need to ask the client about potential alternatives.”
Experiential Education
It’s essential to recognize these facts about doctrinal classes as law schools embrace more experiential types of learning. Many types of experiential learning aid doctrinal understanding; I use simulations and other exercises in my Evidence course for just that purpose.
Most of these exercises, however, do not redress the appellate tilt in our classrooms. We need much more fundamental shifts in doctrinal courses to accomplish that. Alternatively, we need to expand the time devoted to simulations and clinics that focus on lawyering outside the appellate practice.
Very few law school graduates find work as appellate lawyers. Most clients need other types of assistance. In order to serve both those students and their clients, legal educators need to reduce the dominance of appellate lawyering in our curriculum. How do lawyers use doctrine and interact with client outside of that setting? That question lies at the root of constructive pedagogic change.
Paid Externships
June 8th, 2015 / By Deborah J. Merritt
The ABA’s Council of the Section of Legal Education and Admissions to the Bar has agreed to hold hearings on a proposal that would allow law schools to grant academic credit for paid externships. I favor the proposal because it might encourage the development of innovative partnerships between employers and the academy. I also hope the proposal would ease the financial burden on law students although, as I explain below, this is unlikely to happen. Instead, law schools need to consider other options for reducing that burden.
Employers and Externships
Advocates of paid externships have urged that, given the high cost of law school tuition, students shouldn’t have to choose between paid jobs and unpaid externships. I agree that students shouldn’t have to make this choice, and that we should do as much as possible to lower law school tuition. Unfortunately, however, the proposed ABA rule change will create few paid externships.
The problem is that employers have no incentive to turn paid positions into externships. Creating and maintaining an externship imposes administrative burdens on employers. Some employers will accept those burdens in return for free labor; they hope that the externship rubric and university participation will create an exemption from the minimum wage laws. But if an employer is already complying with those laws by paying a law student for her work, what incentive does the employer have to submit to a law school’s oversight through an externship program?
There may be some employers that are willing to do this; that’s why I support the proposed change in law school accreditation standards. That change, however, offers no guarantee that employers will embrace paid externships. I suspect that relatively few will do so.
Alternative Paths
If we want to lower the cost of attending law school and/or give students more experiential learning opportunities, law schools have other choices. One option is to “decelerate” law school by allowing students to attend school part-time for the same total cost they would pay as full-time students. Currently, most part-time programs cost more overall than a full-time program would. Even summer credits cost more than academic-year ones at some schools. These pricing schemes penalize students for their need (or desire) to combine work and study.
Another option for many law schools is simply to reduce the number of credits required for graduation. ABA Standard 311 requires that students complete at least 83 credit hours to earn the JD. A quick google search, however, reveals that many law schools require more hours than that minimum. Schools that want to ease their students’ ability to work part-time for pay could simply reduce the credits they require for graduation. While they’re at it, they could reduce tuition to reflect the reduced demand on teaching resources.
Law schools could pursue either of these options today, without waiting for ABA hearings or rule changes. We could also develop other approaches to restraining the cost of legal education and enhancing its value. Don’t get me wrong: permitting paid externships is a worthwhile change. But I predict that the change will have little impact on the cost of legal education. If we want to lower those costs, we have to do the work ourselves.
ATL Rankings: The Bad and the Maybe
June 5th, 2015 / By Deborah J. Merritt
I’ve already discussed the positive aspects of Above the Law (ATL)’s law school rankings. Here I address the poorly constructed parts of the ranking scheme. Once again, I use ATL to provoke further thought about all law school rankings.
Quality Jobs Score
ATL complements its overall employment score, which is one of the scheme’s positive features, with a “quality jobs score.” The latter counts only “placement with the country’s largest and best-paying law firms (using the National Law Journal’s “NLJ 250”) and the percentage of graduates embarking on federal judicial clerkships.”
I agree with ATL’s decision to give extra weight to some jobs; even among jobs requiring bar admission, some are more rewarding to graduates than others. This category, however, is unnecessarily narrow–and too slanted towards private practice.
Using ATL’s own justification for the category’s definition (counting careers that best support repayment of law school debt), it would be easy to make this a more useful category. Government and public interest jobs, which grant full loan forgiveness after ten years, also enable repayment of student loans. Given the short tenure of many BigLaw associates, the government/public interest route may be more reliable than the BigLaw one.
I would expand this category to include all government and public interest jobs that qualify graduates for loan forgiveness at the ten-year mark, excluding only those that are school financed. Although ATL properly excludes JD-advantage jobs from its general employment score, I would include them here–as long as the jobs qualify for public-service loan forgiveness. A government job requiring bar admission, in other words, would count toward both employment measures, while a JD-advantage government position would count just once.
Making this change would reduce this factor’s bias toward private practice, while incorporating information that matters to a wider range of prospective students.
SCOTUS Clerks and Federal Judges
Many observers have criticized this component, which counts “a school’s graduates as a percentage of (1) all U.S. Supreme Court clerks (since 2010) and (2) currently sitting Article III judges.” For both of these, ATL adjusts the score for the size of the school. What’s up with that?
ATL defends the criterion as useful for students “who want to be [federal] judges and academics.” But that’s just silly. These jobs constitute such a small slice of the job market that they shouldn’t appear in a ranking designed to be useful for a large group of users. If ATL really embraces the latter goal, there’s an appropriate way to modify this factor.
First, get rid of the SCOTUS clerk count. That specialized information is available elsewhere (including on ATL) for prospective students who think that’s relevant to their choice of law school. Second, expand the count of sitting Article III judges to include counts of (a) current members of Congress; (b) the President and Cabinet members; and (c) CEO’s and General Counsel at all Fortune 500 companies. Finally, don’t adjust the counts for school size.
These changes would produce a measure of national influence in four key areas: the judiciary, executive branch, legislature, and corporate world. Only a small percentage of graduates will ever hold these very prestigious jobs, but the jobholders improve their school’s standing and influence. That’s why I wouldn’t adjust the counts for school size. If you’re measuring the power that a school exerts through alumni in these positions, the absolute number matters more than the percentage.
Leaders in private law firms, state governments, and public interest organizations also enhance a school’s alumni network–and one could imagine adding those to this component. Those organizations, however, already receive recognition in the two factors that measure immediate graduate employment. It seems more important to add legislative, executive, and corporate influence to the rankings. As a first step, therefore, I would try to modify this component as I’ve outlined here.
Component Sorting
A major flaw in ATL’s scheme is that it doesn’t allow users to sort schools by component scores. The editors have published the top five schools in most categories, but that falls far short of full sorting. Focused-purpose rankings are most useful if readers can sort schools based on each component. One reader may value alumni ratings above all other factors, while another reader cares about quality jobs. Adding a full-sort feature to the ranking would be an important step.
Why Rank?
Like many educators, I dislike rankings. The negative incentives created by US News far outweigh the limited value it offers prospective students. Rankings can also mislead students into making decisions based solely on those schemes, rather than using rank as one tool in a broader decisionmaking process. Even if modified in the ways I suggest here, both of these drawbacks may affect the ATL rankings.
As Law School Transparency has shown, it is possible to give prospective students useful information about law schools without adding the baggage of rankings. Above the Law could perform a greater public service by publishing its data as an information set rather than as an integrated ranking.
But rankings draw attention and generate revenue; they are unlikely to disappear. If we’re going to have rankings, then it’s good to have more than one. Comparing schemes may help us see the flaws in all ranking systems; perhaps eventually we’ll reject rankings in favor of other ways to organize information.
ATL Rankings: The Good, the Bad, and the Maybe
June 4th, 2015 / By Deborah J. Merritt
In my last post I used Above the Law (ATL)’s law school rankings to explore three types of ranking schemes. Now it’s time to assess the good, bad, and maybe of ATL’s system. In this column I explore the good; posts on the bad and maybe will follow shortly. ATL’s metrics are worth considering both to assess that system and to reflect on all ranking schemes.
Employment Score
ATL’s ranking gives substantial weight to employment outcomes, a factor that clearly matters to students. I agree with ATL that “full-time, long-term jobs requiring bar passage (excluding solos and school-funded positions)” offer the best measure for an employment score. Surveys show that these are the jobs that most graduates want immediately after law school. Equally important, these are the jobs that allow law schools to charge a tuition premium for entry to a restricted profession. Since schools reap the premium, they should be measured on their ability to deliver the outcome.
For a focused-purpose ranking, finally, simple metrics make the most sense. Prospective law students who don’t want to practice can ignore or adjust the ATL rankings (which assume practice as a desired outcome). A student admitted to Northwestern’s JD-MBA program, for example, will care more about that program’s attributes than about the ATL rank. For most students, ATL’s employment score offers a useful starting point.
Alumni Rating
This metric, like the previous one, gives useful information to prospective students. If alumni like an institution’s program, culture, and outcomes, prospective students may feel the same. Happy alumni also provide stronger networks for career support. The alumni rating, finally, may provide a bulwark against schools gaming other parts of the scheme. If a school mischaracterizes jobs, for example, alumni may respond negatively.
It’s notable that ATL surveys alumni, while US News derives reputation scores from a general pool of academics, lawyers, and judges. The former offers particularly useful information to prospective students, while the latter focuses more directly on prestige.
Debt Per Job
This is a nice way of incorporating two elements (cost and employment) that matter to students. The measure may also suggest how closely the institution focuses on student welfare. A school that keeps student costs low, while providing good outcomes, is one that probably cares about students. Even a wealthy student might prefer that institution over one with a worse ratio of debt to jobs.
The best part of this metric is that it gives law schools an incentive to award need-based scholarships. Sure, schools could try to improve this measure by admitting lots of wealthy students–but there just aren’t that many of those students to go around. Most schools have already invested in improving employment outcomes, so the best way to further improve the “debt per job” measure is for the school to award scholarships to students who would otherwise borrow the most.
Over the last twenty years, US News has pushed schools from need-based scholarships to LSAT-based ones. What a refreshing change if a ranking scheme led us back to need-based aid.
Education Cost
Cost is another key factor for 0Ls considering law schools and, under the current state of the market, I support ATL’s decision to use list-price tuition for this measure. Many students negotiate discounts from list price, but schools don’t publish their net tuition levels. The whole negotiation system, meanwhile, is repugnant. Why are schools forcing young adults to test their bargaining skills in a high-stakes negotiation that will affect their financial status for up to a quarter century?
We know that in other contexts, race and gender affect negotiation outcomes. (These are just two of many possible citations.) How sure are we that these factors don’t affect negotiations for tuition discounts? Most of the biases that taint negotiations are unconscious rather than conscious. And even if law school administrators act with scrupulous fairness, these biases affect the students seeking aid: Race and gender influence a student’s willingness to ask for more.
In addition to these biases, it seems likely that students from disadvantaged backgrounds know less about tuition negotiation than students who have well educated helicopter parents. It’s no answer to say that economically disadvantaged students get some tuition discounts; the question is whether they would have gotten bigger discounts if they were armed with more information and better negotiating skills.
Negotiation over tuition is one of the most unsavory parts of our current academic world. I favor any component of a ranking scheme that pushes schools away from that practice. If schools don’t want to be ranked based on an inflated list-price tuition, then they can lower that tuition (and stop negotiating) or publish their average net tuition. My co-moderator made the same point last year, and it’s just as valid today.
The Bad and Maybe
Those are four strengths of the ATL rankings. Next up, the weaknesses.
More on Rankings: Three Purposes
June 1st, 2015 / By Deborah J. Merritt
I want to continue my discussion of the law school rankings published by Above the Law (ATL). But before I do, let’s think more generally about the purpose of law school rankings. Who uses these rankings, and for what reason? Rankings may serve one or more of three purposes:
1. Focused-Purpose Rankings
Rankings in this first category help users make a specific decision. A government agency, for example, might rate academic institutions based on their research productivity; this ranking could the guide the award of research dollars. A private foundation aiming to reward innovative teaching might develop a ranking scheme more focused on teaching prowess.
US News and Above the Law advertise their rankings as focused-purpose ones: Both are designed to help prospective students choose a law school. One way to assess these rankings, accordingly, is to consider how well they perform this function.
Note that focused-purpose rankings can be simple or complex. Some students might choose a law school based solely on the percentage of graduates who secure jobs with the largest law firms. For those students, NLJ’s annual list of go-to law schools is the only ranking they need.
Most prospective students, however, consider a wider range of factors when choosing a law school. The same is true of people who use other types of focused-purpose rankings. The key function of these rankings is that they combine relevant information in a way that helps a user sort that information. Without assistance, a user could focus on only a few bits of information at a time. Focused-purpose rankings overcome that limit by aggregating some of the relevant data.
This doesn’t mean that users should (or will) make decisions based solely on a ranking scheme. Although a good scheme combines lots of relevant data, the scheme is unlikely to align precisely with each user’s preferences. Most people who look at rankings use them as a starting point. The individual adds relevant information omitted by the ranking scheme, or adjusts the weight given to particular components, before making a final decision.
A good ranking scheme in the “focused purpose” category supports this process through four features. The scheme (a) incorporates factors that matter to most users; (b) omits other, irrelevant data; (c) uses unambiguous metrics as components; and (d) allows users to disaggregate the components.
2. Prestige Rankings
Some rankings explicitly measure prestige. Others implicitly offer that information, although they claim another purpose. In either case, the need for “prestige” rankings is somewhat curious. Prestige does not inhere in institutions; it stems from the esteem that others confer upon the institution. Why do we need a ranking system to tell us what we already believe?
One reason is that our nation is very large. People from the West Coast may not know the prestige accorded Midwestern institutions. Newcomers to a profession may also seek information about institutional prestige. Some college students know very little about the prestige of different law schools.
For reasons like these, prestige rankings persist. It is important to recognize, however, that prestige rankings differ from the focused-purpose schemes discussed above. Prestige often relates to one of those focused purposes: A law school’s prestige, for example, almost certainly affects the employability of its graduates. A ranking of schools based on prestige, however, is different than a ranking that incorporates factors that prospective students find important in selecting a school.
Prestige rankings are more nebulous than focused-purpose ones. The ranking may depend simply on a survey of the relevant audience. Alternatively, the scheme may incorporate factors that traditionally reflect an institution’s prestige. For academic institutions, these include the selectivity of its admissions, the qualifications of its entering class, and the institution’s wealth.
3. Competition Rankings
Competition rankings have a single purpose: to confer honor. A competition ranking awards gold, silver, bronze, and other medals according to specific criteria. These rankings differ from the previous categories because their sole purpose is to accord honor for winning the competition.
Many athletic honors fall into this category. We honor Olympic gold medalists because they were the best at their event on a particular day, even if their prowess diminishes thereafter.
Competition rankings are most common in athletics and the arts, although they occasionally occur in academia. More commonly, as I discuss below, people misinterpret focused-purpose rankings as if they were competition ones.
US News
As noted above, US News promotes its law school ranking for a focused purpose: to help prospective students choose among law schools. Over time, however, the ranking has acquired aspects of both a prestige scheme and a competition one. These characteristics diminish the rankings’ use for potential students; they also contribute to much of the mischief surrounding the rankings.
Many professors, academic administrators, and alumni view their school’s US News rank as a general measure of prestige, not simply as a tool for prospective students to use when comparing law schools. Some of the US News metrics contribute to this perception. Academic reputation, for example, conveys relatively little useful information to potential students. It is much more relevant to measuring an institution’s overall prestige.
Even more troublesome, some of these audiences have started to treat the US News rankings as a competition score. Like Olympic athletes, schools claim honor simply for achieving a particular rank. Breaking into the top fourteen, top twenty, or top fifty becomes cause for excessive celebration.
If the US News ranking existed simply to aid students in selecting a law school, they would cause much less grief. Imagine, for example, if deans could reassure anxious alumni by saying something like: “Look, these rankings are just a tool for students to use when comparing law schools. And they’re not the only information that these prospective students use. We supplement the rankings by pointing to special features of our program that the rankings don’t capture. We have plenty of students who choose our school over ones ranked somewhat above us because they value X, Y, and Z.”
Deans can’t offer that particular reassurance, and listeners won’t accept it, because we have all given the US News rankings the status of prestige or competition scores. It may not matter much if a school is number 40 or 45 on a yardstick that 0Ls use as one reference in choosing a law school. Losing 5 prestige points, on the other hand, ruins everyone’s day.
Above the Law
I’ll offer a more detailed analysis of the ATL rankings in a future post. But to give you a preview: One advantage of these rankings over US News is that they focus very closely on the particular purpose of aiding prospective students. That focus makes the rankings more useful for their intended audience; it also avoids the prestige and competition auras that permeate the US News product.
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