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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.

Professional Skills

May 2nd, 2018 / By

Robert Kuehn has written a thoughtful review of the history of professional skills education in legal education. As Bob notes, the ABA has been notably reluctant to require law schools to educate students on the skills they will use in law practice. Our accrediting body did not require any instruction in professional skills until 2005 and, even then, the accreditors required only “one solid credit” of that training. More recently, the ABA mandated six credits of experiential work for every law student–a total that still seems grudging for skills that lawyers use heavily in practice.

Students and some law schools have been more foresighted. As Bob documents, one-fifth of law schools now require all students to complete a clinic or externship; ninety percent have enough clinic or externship spots to accommodate all of their students. Students, meanwhile, show increasing interest in learning professional skills: enrollments in clinics, externships, and simulation courses have all climbed during the last decade.

This is a good news/bad news report. Student demand for professional training has increased, schools have shown an ability to meet that demand, and the ABA has finally imposed a meaningful requirement for experiential education. At the same time, tenure-track faculty continue to distance themselves from these educational experiences and the six-credit requirement is unrealistically light for students who will build their professional success on their skills.

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Salaries and Scholarship

January 13th, 2018 / By

Law professors teach a wide variety of subjects: Property, Civil Procedure, Legal Writing, Law & Economics, Business Associations,  Feminist Legal Theory, Law Clinics. Professors bring diverse backgrounds to this teaching. Some hold JDs, some hold PhDs, some hold both. Some have practiced law, while others have not. Some earned high salaries before joining a law faculty, while others drew more modest paychecks in government, legal aid, nonprofits, or other academic fields.

Despite this variety, there is one constant: professors who focus their teaching on legal writing or clinical courses earn significantly less money than those who teach other types of classes. This is true regardless of degrees, prior professional experience, or past salary level. What explains this pay gap? And what does the gap tell us about our values in legal education?

Before answering those questions, we have to understand the size of the gap. Academics shy away from salary discussions, but silence can hide inequity. To break that silence, I have been gathering information from salary databases released by public universities. I don’t have information on every public law school, but a surprising amount of data is available.

In this post, I will refer to salaries at one leading law school. US News ranks this school among the top 25 schools nationally, and it is a clear leader in legal education. The salaries at this school, which I’ll call the Myra Bradwell College of Law, do not reflect salaries at every law school. They do, however, illustrate the type of salary gap our schools maintain between professors who teach clinics/legal writing and those who teach other subjects.*

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The Market for Legal Writing and Clinical Professors

January 5th, 2018 / By

Why do professors who teach legal writing and clinics earn significantly less than professors who teach other courses? Why are the writing and clinical professors less likely to hold tenure-track status? And why, finally, are these lower-paid, lower-status professors disproportionately female?

A common answer is: the market. Applicants for legal writing and clinical positions are plentiful, the argument goes, so the market drives their salaries and status down. Professors who teach other courses are more scarce and have more lucrative options; law schools must pay more (and offer tenure-track status) to attract them. Law schools also demand scholarship from professors teaching those other courses, and the pool of people capable of outstanding scholarship and good teaching is very small indeed. Salaries and status must be generous to land those rare individuals–but not so generous for legal writing and clinical professors.

This explanation (which I’ll call the “market hypothesis”) has some initial appeal, but thoughtful examination reveals several flaws. The most striking defect is this one: The market hypothesis doesn’t explain the very high percentage of women teaching legal writing and clinical courses. 62% of the faculty teaching clinics or externship courses identify as women; 72% of those who teach legal writing do so. The pool of law school graduates, in contrast, includes roughly equal numbers of men and women. So why don’t the hiring nets for clinical and legal writing positions pull up a more equal number of male and female professors?

If the market hypothesis is correct, it has to explain why an abundant applicant pool yields such gendered results. I explore below four ways in which the market hypothesis might coexist with our disproportionately female writing and clinical faculties.

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The Second Class Among Us

January 4th, 2018 / By

Bob Kuehn has posted a sobering analysis of the status and salaries of clinical, externship, and legal writing faculty. It should be no surprise that most of these professors lack tenure–and that they earn significantly less than the faculty who teach courses without significant writing or clinical components. The size of the differences, however, may take some tenure-track faculty aback.

Who are the colleagues who suffer lower pay and status? Overwhelmingly, they are women. More than 70% of legal writing professors and externship supervisors are women; about 60% of clinical professors are female. These are striking differences in a profession that is still male dominated in many ways.

I will have more to say about these differences over the coming days. For now, take a look at Bob’s data and think about some new year’s resolutions.

Update: I did not mention professors who teach academic support or bar preparation courses in this post, because I do not have the type of national data Bob gathered for legal writing and clinical professors. Academic support and bar preparation are among the most essential courses we offer in law schools–yet the faculty teaching them are at best second class. I will write more about these key professors soon.

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New AALS Section: Empirical Study of Legal Education & the Legal Profession

January 2nd, 2018 / By

If you’re at the AALS meeting, don’t miss the inaugural session of the new Section on Empirical Study of Legal Education & the Legal Profession. Spearheaded by Judith Wegner, this Section welcomes colleagues who are interested in conducting or using empirical research relating to legal education and the legal profession. You don’t need to be a numbers person to benefit from this Section–just someone who is interested in studying what we do in law schools and the legal profession.

The inaugural panel discussion, which kicks off at 3:30 p.m. tomorrow (Wednesday, January 3) shows the breadth of this Section:

  • Raul Ruiz (Florida International University): Predicting Student Outcomes: Data Mining for Law Schools
  • Victor Quintinilla (Mauer School of Law, IU-Bloomington): Productive Mind-Set, the Power of Belonging, and Bar Passage
  • Bryant Garth (UC Irvine and formerly American Bar Foundation): Understanding the Changing Legal Profession
  • Kellye Testy (LSAC and formerly University of Washington): The LSAC’s Emerging Research Priorities
  • Aaron Taylor (Access Lex and St. Louis University): AccessLex’s Emerging Research Priorities

If that’s not enough to pique your interest, there will also be break-out groups discussing:

  • Conducting and Consuming Research: What tools, resources, or professional development do you need to conduct or use empirical studies?
  • Institutional Excellence and Assessment: How can law schools best assess programmatic and student learning outcomes? What methods and data management strategies apply?
  • Admissions and Academic Success: What are best practices in admissions and academic success programs for students with mixed indicators? How do we know?
  • Bar Exam Preparation & Licensing: What interventions work in preparing students to succeed on the bar exam? How can professional licensing strategies be improved?
  • Professional Identity and Satisfaction: What can be done to enhance students’ sense of professional identity? What factors affect lawyer satisfaction, success, and happiness?

This is the place to be at AALS on Wednesday afternoon. If you can’t make the session but want to connect with the Section, email Judith Wegner at Judith_wegner@unc.edu.

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New Year’s Resolutions for Law School Professors

January 1st, 2018 / By
  1. Keep your brain healthy by trying new types of mental exercise. Commit to learning at least one of these cognitive skills during the new year: fact gathering, client counseling, interviewing, or negotiating. Then help your students exercise their brains by teaching these kinds of cognition in the classroom.
  2. Cut back on fatty law review articles. The legal academy is showing dangerous signs of scholarly obesity. Writing law review articles is like eating chocolate cake: best done in moderation.
  3. Meet new people. Talk to practitioners and clients in the fields you teach. How do practitioners approach their clients’ problems? What matters most to the clients?
  4. Help the disadvantaged. Teach your students the doctrine and cognitive skills they need to serve low- and moderate-income clients.
  5. Challenge your biases–and those of your institution. Do you value some types of scholarship and teaching more than others? Does your institution award higher salaries and status to colleagues who teach case analysis rather than other types of cognitive expertise? How do those biases affect the provision of legal services?

Embrace change: This is the 6,576th day of the new millennium.

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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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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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