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Deborah Merritt is the John Deaver Drinko/Baker & Hostetler Chair in Law at The Ohio State University’s Moritz College of Law. She has received multiple teaching awards for her work in both clinical and podium courses. With Ric Simmons, she developed an “uncasebook” for teaching the basic evidence course. West Academic has adopted their template to create a series of texts that reduce the traditional focus on appellate opinions. Deborah writes frequently about changes in legal education and the legal profession.

Lawyering Jobs

November 21st, 2017 / By

I’ve written before about the Bureau of Labor Statistics’ Employment Projections program. Every other year, the statisticians associated with that program count the number of existing “lawyer” jobs as part of their work. This count is especially useful because it includes both salaried and self employed workers. The biennial counts thus include solo practitioners, law firm partners, and practicing lawyers who earn a salary from any source.

The counts offer an excellent opportunity to track the growth of lawyering jobs. Here are the number of “lawyer” jobs reported in selected years since 1978, when the program began:

  • 1978:   380,000
  • 1988:   582,000
  • 1998:   681,000
  • 2008:  759,200
  • 2010:  728,200
  • 2012:  759,800
  • 2014:  778,700

As I’ve written before, those figures show that the number of jobs for lawyers is still growing–but the pace of growth has slowed considerably. Between 2012 and 2014, the number of lawyering jobs increased by just 9,450 positions per year.

The Bureau of Labor Statistics recently released the figures for 2016, and the news is sobering. In 2016, the Bureau counted just 792,500 “lawyer” jobs in the economy. That’s an increase of only 13,800 positions since 2014–or just 6,900 positions per year. That’s better than the anemic growth between 2008 and 2014 (which included periods of job loss), but worse than growth in most other two-year periods.

These figures, unfortunately, coincide with ones released by the ABA for recent graduates. Since 2013, the number of “lawyer” jobs for new JDs has fallen each year, from 26,653 for the Class of 2013 to 22,930 for the Class of 2016. (Figures for the Class of 2017 won’t be available until next spring.) Graduating classes have been smaller, so the percentage of employed graduates has improved somewhat–but the number of jobs found by those graduates has declined.

To me, the BLS projections underscore the wisdom of creating programs that allow college graduates to perform some aspects of law practice. There is plenty of demand for legal services–just not at the price demanded by fully licensed JDs. Rather than continue producing JDs at rates the job market can’t absorb, schools would be wise to consider alternative programs.

These figures also counsel caution about recent upticks in LSAT takers. More students may be considering law school, but schools need to remain wary about the employment market. If we admit more students, will employment rates fall again?

* Note: The BLS statistics for “lawyer” jobs report only positions listed under that category. Some BLS tables also report small numbers of judges and law clerks, but I have eliminated those categories for simplicity.

 

 

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Civil War Generals

August 16th, 2017 / By

George Henry Thomas went to work as a law clerk in nineteenth century Virginia. Fortunately for the United States, he found that the work “lacked excitement” and he enrolled in the United States Military Academy at West Point. After Thomas gained field experience, he was invited back to West Point as an instructor. There, Thomas gained both the respect and friendship of the Academy’s commandant, Robert E. Lee.

Thomas and Lee later traveled to the southwest, serving on military missions and deepening their friendship. The two particularly shared a love of their homeland Virginia.

And then Virginia seceded from the Union.

We all know what happened to Lee. He declined a top post in the Union Command and renounced his oath to the United States. He led the confederate army for much of the Civil War, defending an economy and lifestyle based on white ownership of black slaves. He invaded the nation he had sworn to protect, killing more than 5,200 Union soldiers at Gettysburg and Antietam alone: that’s more deaths on American soil than the number who died during the homeland attacks on Pearl Harbor or the World Trade Center.

Overall, Americans suffered more casualties in the Civil War than in all other wars combined.

But what happened to Thomas? Despite his love of Virginia and family ties to that state, he refused to break his oath to the United States. The erstwhile law clerk commanded Union troops throughout the Civil War, from Mill Springs (where he gave the Union its first serious battlefield victory) to the March on Atlanta. Thomas’s family renounced him for remaining loyal to the United States; his confederate friends called for him to be hung as a traitor.

When the war ended, Thomas led troops overseeing Reconstruction. He helped defend freed slaves from local governments and the newborn Ku Klux Klan. In 1868, he warned about attempts to lionize the confederacy:

The greatest efforts made by the defeated insurgents since the close of the war have been to promulgate the idea that the cause of liberty, justice, humanity, equality, and all the calendar of the virtues of freedom, suffered violence and wrong when the effort for southern independence failed. This is, of course, intended as a species of political cant, whereby the crime of treason might be covered with a counterfeit varnish of patriotism.

How many statues have Americans erected to honor the man who kept his oath to his country, fought against slavery, and recognized the evils of romanticizing the confederacy? Just one (in Washington, D.C.).

How many statues have we erected to Lee, the man who broke his oath, defended slavery, invaded his former country, and led a war that killed more than half a million Americans? Too many.

We need not excoriate Lee today: reconciliation is part of ending conflict. But it’s long past time to take down all the statues, and we are sadly mistaken to honor him as a leader. We need to come to terms with the way in which Americans have romanticized the confederacy and its culture.

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Council, Please Shape Up

August 6th, 2017 / By

The Council of the ABA Section of Legal Education and Admissions to the Bar has weathered significant criticism over the last few years. Some of that criticism has been well founded; other attacks have been unfair. But now the Council is acting as its own worst enemy–pursuing a course that has already provoked significant criticism in the legal academy and probably will attract negative attention in the press.

As Jerry Organ explains in a detailed column, the Council voted in June to make several changes in the form used to report law school employment outcomes. The Council acted without any public notice, without following its usual processes, and without gathering input from anyone outside the Council. The lack of process is especially disturbing given: (a) some of the changes had previously provoked vigorous debate; (b) the Council had previously rejected some of the proposals in light of that debate; and (c) the Council–along with legal education more generally–has been accused of lacking transparency.

I am sure, as Council Chair Gregory Murphy has written, that the Council acted in good faith–believing that the changes would receive “universal, or near universal, acclamation.” But that’s the problem with disregarding process and input: a small group of decision makers can persuade themselves that they know best. This case is a good illustration of how even highly educated, well intentioned groups can fall prey to that fallacy.

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Law Schools Should Set Reasonable List Prices That Reflect Earnings Available to Their Graduates

July 21st, 2017 / By

The following was part of a series published by the National Law Journal called Law Schools Are Losing Smart Applicants. How Do They Lure Them Back?” The NLJ asked 11 people from inside and outside the legal academy for responses, including me and Kyle McEntee. His response has been republished here.

Law schools should set reasonable list prices that reflect the earnings available to their graduates. Our high sticker/discount system requires applicants to commit to legal education, invest significant time and money studying for the LSAT, and risk rejection from multiple schools—all before they learn the true cost of their legal education. That system discourages the type of careful thinkers and planners who once found law school attractive.

On campus, we should integrate much more hands-on work throughout the curriculum. Millennials like to do things, not just read about them. Employers, clients and cognitive scientists agree that “doing” is essential to develop professional expertise. Until we embrace that wisdom, we won’t attract talented students back to law school—or prepare them to serve their clients effectively.

Finally, we should replace mandatory grading curves with more nuanced assessments of student learning. Outcome-based assessment helps students focus on the specific knowledge and skills they need to master. Students learn more and employers receive more helpful information about a graduate’s abilities. An educational program that promises to foster expertise, rather than ranking students on a fixed curve, will draw more talented applicants.

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Provisional Accreditation for UNT-Dallas

June 6th, 2017 / By

The Council of the ABA Section of Legal Education and Admissions to the Bar has granted provisional accreditation to the University of North Texas at Dallas College of Law. As I wrote last fall, this innovative law school well deserved a chance to try its wings.

Here are some distinctive features of the school:

  • 51.4% of its students are minority students. National Jurist recently named the school the third most diverse law school in America.
  • The student body is notable for its diversity in age and prior work experience, in addition to race and gender.
  • Tuition for 2016-17 was $15,768 for full-time residents and $11,653 for part-time residents.
  • During 2016-17, more than half (51.8%) of students received scholarships, with a median grant of $1,250 (for both full-time and part-time students).
  • Entering scholarships depend upon academic record, socioeconomic background, first-generation status, and community service. There are no conditional scholarships.
  • The school requires completion of courses in accounting and finance for lawyers; interviewing and counseling; negotiation and conflict resolution; effective oral communication; and the business of law.
  • The school also requires students to complete two fully experiential courses (drawn from clinics, externships, or practicums)
  • Many upper-level courses incorporate writing, research, and/or skills segments. Students must complete multiple segments in each of these three categories (in addition to required writing, research, and skills courses)
  • Students must demonstrate proficiency in several practice-related technologies.

The first group of 74 graduates will receive their degrees this month–and those degrees are now from an ABA-accredited law school. Godspeed UNT-Dallas and grads!

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Bar Exam Scores and Lawyer Discipline

June 3rd, 2017 / By

Robert Anderson and Derek Muller have posted a provocative paper, The High Cost of Lowering the Bar, in which they argue that “bar exam score is significantly related to likelihood of State Bar discipline throughout a lawyer’s career.” Thus, they warn, “lowering the bar examination passing score,” as several California law deans have advocated, “will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.”

Anderson and Muller urge the state bar to collect more detailed data on the relationship between bar scores and lawyer discipline–and then to consider the possible impact on attorney misconduct if the Supreme Court lowers the passing score. “The data we have collected,” they conclude, “should raise serious concerns about the effect on consumers of lowering the passing score.”

What type of correlation did Anderson and Muller identify? Should it affect decisions about the passing score for the bar exam? Let’s take a closer look.

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More on the Bar Exam: Correlation and Competence

May 31st, 2017 / By

Derek Muller has identified an intriguing study of alternative ways to assess bar applicants. In 1980, the California bar examiners worked with a research team to explore the desirability of testing a wider range of lawyering skills on the bar exam. The researchers designed a two-day supplement to the bar exam and invited all July test-takers to participate in the supplemental exercise. More than 4,000 test-takers volunteered and, using appropriate sampling methods, the researchers chose 500 to participate. A few volunteers were unable to complete the exercise due to illness, so the final sample included 485 bar examinees.

These examinees completed the supplemental exercises in August 1980, shortly after taking the regular July exam. For two days, the examinees interviewed clients, drafted discovery plans, prepared letters, wrote trial briefs, cross-examined witnesses, and made arguments to mock juries. Each day’s work involved 5-6 tasks focused on a single client matter. Professional actors played the role of clients, and the researchers developed elaborate protocols for scoring the exercises.

How did results on the supplemental exam compare to those on the conventional test?

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Trends in Law Firm Staffing

May 28th, 2017 / By

Altman Weil has released its annual report on “Law Firms in Transition.” The report, based on a survey of managing partners of law firms with at least 50 lawyers, documents continued change in the way law firms staff their matters.

More than half of these law firms now use contract lawyers (57.1%) or part-time lawyers (52.7%). Almost half (41.8%) employ staff attorneys. Larger firms (those with at least 250 lawyers) are more likely than smaller firms to use these staffing strategies. Indeed, about three quarters of those larger firms use contract lawyers (77.0%), part-time lawyers (71.3%) or staff attorneys (78.2%). The numbers, however, are still significant at firms with 50-249 lawyers–especially for contract lawyers. More than half (50.4%) of the mid-sized firms use those lawyers.

Law firms have adopted these strategies because they increase profitability. Sixty-nine percent of the surveyed leaders indicated that “shifting work to contract/temporary lawyers” has resulted in a “significant improvement” in that metric. Almost half (49.5%) thought that “shifting work from lawyers to paraprofessionals” had the same salutary effect.

Law firms have also started to push the next frontier in staffing client matters: by using artificial intelligence (like IBM’s Watson) for some analyses. More than a third of law firms (36.3%) have started using those tools or “have begun to explore” those opportunities.

These results are not surprising to anyone who has followed law firm trends since the Great Recession. They underline, however, firms’ enthusiasm for these new staffing models.

H/t to TaxProf for noting the availability of Altman Weil’s report.

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Reflections of a Bar Exam Skeptic

May 26th, 2017 / By

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

Who Cares About the Bar Exam?

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

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

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What Do Students Do in Clinics?

May 17th, 2017 / By

Douglas Kahn has posted an article criticizing the “proliferation of clinical and other experiential courses” in legal education. These courses, he argues, reduce the number of “doctrinal” courses that students take, leaving them “ill-prepared to practice law as soon after graduation as law firms would like.” The TaxProf Blog posted a summary of the article, and a baker’s dozen of readers have offered pro and con comments.

It’s an old debate, one that has bristled for more than 50 years. The discussion doesn’t surprise me, but Professor Kahn’s ignorance of clinical education does. His bold assertions about clinics reveal little familiarity with the actual operation of those courses. Let’s examine some of Kahn’s claims.

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About Law School Cafe

Cafe Manager & Co-Moderator
Deborah J. Merritt

Cafe Designer & Co-Moderator
Kyle McEntee

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

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