What price is right? Law School Education and Paul Campos

What is a poor law student to do?  Paul Campos has yet again set his sights on what he considers is the bain of legal education- for-profit law schools.  Campos details how how a Chicago-based private equity firm got into the business of law schools.  Summit Partners created InfiLaw and began to become legal educators by first purchasing Florida Coastal Law School and later adding Phoenix School of Law and Charlotte School of Law.  The results while good for Summit Partners who receive their profits upfront according to Campos, left the InfiLaw graduates the big losers in long run.  Campos noted that the average Infilaw graduate accumulated over $200,000 in debt while only 36% of the Class of 2013 had actual legal employment.   This follows an overall trend in higher education where undergraduates and graduate students alike are funding their education with high-interest private loans that will take a life-long career of work to discharge.  I pose a question that Prof. Bill Whitford taught me in my Contracts class at the University of WIsconsin more than a few years ago.  What if the high costs of a legal education is not unconscionable as Campos suggests but the price a population of specialized students are willing to pay to gain access to a legal education that still has some social capital?

I am not a free market guru who will chant the mantra of law students paying for what the market determines is a valuable education.  But there is a grain of truth in arguing that students who would not be accepted at traditional law schools are being given an opportunity to have a traditional law school experience.  I do not know the statistics for the Infilaw students but I have a hunch that many of these students are first generation attorneys who come from modest working class or disadvantaged backgrounds. They are willing to take a chance on themselves and make a life-time investment that may not pay off in the long run.  The forecast is not good for Infilaw students.  Will they pass the bar on the first attempt?  Will they acquire a level of employment or income that will erase their debts?  Paul Campos says no and statistics will back up his claims.  But do we shut out a group of over-achievers because only a small number will gain what legal scholars would deem success?

In my contracts class those many, many years ago, Prof. Whitford explained that there is a population that businesses are willing to take a chance on who have no credit or bad credit and who are willing to take on high interest rates to obtain merchandise.  There is a good chance that this poor-credit/no-credit population would default on credit and be unable continue payments.  The businesses knew and took the chance but built in the loss upfront with high-interest rates.  The buyers knew they were paying far beyond the value of the merchandise just to be able to obtain the merchandise.  Were the merchants unconscionable Prof. Whitford asked?  In a consumer culture that is awash with the  creation and cultivation of desire and consumption, how could anyone resist?  Even those with poor or no credit.   Didn’t we risk becoming paternalistic in determing who deserved what?  Prof. Whitford posed provocative questions to my first year class.

I am not a proponent of for-profit law schools.  I am the product of the  Chicago Public School and the public university systems.  I obtained a quality, low cost education that no longer exists.  Campos’ article is a condemnation of the for-profit law school system that seeks to prey on a certain population.  I agree.  But we have no alternative.  States are seeking to strip affirmative action programs from the law school admissions process.  The University of Texas Law School buttresses for annual attacks on it’s admissions process.  First generation law students, economically disadvantaged law students and law students of color have no viable alternatives.  If these students are willing to take on the debt, derision and scorn of being a product of a low-tiered, for-profit system, I will not discourage them.  They attend with full knowledge but want to become attorneys no matter what the costs.  This is not a free market economist argument of caveat emptor but a lawyer who has loved the practice and teaching of law for over 20 years and does not wish to see it closed to those who desire the same experiences-no matter the costs

The Baby Has Finally Been Birthed!

Comprehensive revisions passed

The ABA House of Delegates passed the comprehensve revisions with “minimal  fuss” according to the ABA Journal linked  above.  One area, however, garnered  significant attention and also resulted in  an odd, though perhaps meaningless ,  procedural move.  The House voted  to send back to the Section on Legal Education for further consideration the comment to standard 305 which prohibits payment to students for credit-based courses.

What does this mean? Law schools which have not already done so must start identifying, articulating publicly and assessing student learning out outcomes, providing every student six  credits of clinic or clinic-like experiential courses and requiring students to take two credit hours worth of professional responsibility coursework.

Well, it’s a start……

Transferring Best Practices to a Domestic Violence Agency–i.e. the real world

On February 1, 2014 I left the ivory tower of a law school I had loved for 27 years to become the executive director of Enlace Comunitario, a non-profit agency focused on eliminating domestic violence in Latino immigrant communities through intervention services such as case management, counseling and legal services and prevention activities such as leadership development, education and outreach.   This was a big transition for me, but I am loving it!  And, my long time involvement with Best Practices for Legal Education has paid off in this context.  How, you might ask, are the skills transferable?  Well I will give some examples in my next few posts…but I will share immediately that I am working to create a teaching and learning culture at my agency.   Specifically, my goal is to build the capacity of folks in the agency so that when I step down one or several of the staff members will feel ready to take on the helm. And, of course, I will want staff members to step up to take their place. Already, we are training a counselor to become a counselor supervisor and we are training a former receptionist to become a case manager. I love seeing my staff take on the teaching role! And, they are good at it.

So…one of the foundational principles of best practices is to work to develop learning objectives for your students.  Well, it is not a stretch to work with staff members and develop learning objectives with them!  And, creating evaluations that fit the job duties and the learning objectives was fun:  Each job criteria or learning objective is evaluated as follows:  “in training”, “needs improvement” “good work” or “awesome, can teach this knowledge, skill or value”.   So far the staff has responded positively to the new evaluation process.  We will finish up this month!  I will let you know how it goes!

TEACHING RESILIENCE AND BEING RESILIENT : Filling Our Tanks This Summer

About a month ago, I had the pleasure of attending the annual AALS clinical conference held  in Chicago.   The conference focused on achieving happiness and resilience at a time of challenge in legal education while exploring methods for becoming “better” clinical teachers.  Clin14BookletWeb

The Keynote opening presentation by Professor Nancy Levit from the University of Missouri-Kansas City School of Law outlined research about happiness,  lawyers and legal careers.   Professor Levit’s  book with Doug Linder, The Happy Lawyer: Making a Good Life in the Law, was published by Oxford University Press in 2010. Their sequel, The Good Lawyer: Seeking Quality in the Practice of Law is now available.  The Levit and Linder research helps answer questions for our students and ourselves about how and why lawyers find a  legal career rewarding.   Much of the research reveals that simple truths about happiness – such as feeling valued or being part of a community – bears repetition.   The presentation was informative and the research can be used in advising our students, supporting our colleagues and caring for ourselves.

After her keynote, panelists Professor Calvin Pang (University of Hawaii, William S. Richardson School of Law)  and Professor Joanna Woolman (William Mitchell College of Law) with moderator American University Professor Brenda Smith presented a few clips from a very realistic “role play” focused on a “devastating” day in court and the responses  of a clinical teacher, clinical student, and non-clinical colleague.    (The film will be available after the conference – I believe at the AALS site – for those who want to use it in their home schools.)  In the film, the law student  faces a surprising negative court ruling and then experiences his client yelling at him outside the courtroom.   In conversation with the clinical professor, the student expresses anger with his client and believes he should just “drop” clinic.  The clinical professor listens to the student and also explores other aspects of the student’s current anger and despair including his having received a number of employment rejections during this same time period.

The film was provocative and engendered good discussion about the role of law professors .  Many of us have experienced with our students or in our own professional lives the coinciding emotional burdens of dealing with difficult emotions in client’s cases and receiving negative news on the home or career front.   Managing and coping with all those emotions and burdens is a never-ending part of professional development and law schools can and should play a significant role in preparing students with appropriate skills, appreciation of professional values and coping tools.

In a final exercise, the entire room of about 500+ created word trees on three questions:

1.  What do you do as a teacher to “fill your tank.?”

2. What do you do to encourage your students to adopt habits to make themselves whole?

3. What are the barriers and obstacles to the first two?

In asking myself these questions and watching the hundreds of others eagerly participate, I reflected on the particular importance of the resilience, holistic, and happiness theme at this moment in time.   Students and recent grads need our positive support.  Institutions need our creative, optimistic energy.   But providing that energy and support can be personally tolling.

Student-centered faculty – and in particular clinical faculty with summer burdens or untenured faculty with heavy writing demands – must  carve out some real off time or vacation in order to be effective in the long term.  Their institutions must support their need for renewal.  Filling  our personal “tanks” with sunsets, summer treats (ice cream for me!), some  relaxing days, renewed commitment to exercise or getting outside, and time vacationing with loved ones helps form the foundation for resilience in the academic year.  We need to do this not only to support our own resilience but to equip ourselves with the experience-based wisdom that will be needed in great quantities in the coming semesters.  In order  to assist our students and our institutions at this precarious time for law schools, we need to nurture our whole selves now.

Economic Value of a Legal Education

Readers may be interested in Populist Outrage, Reckless Empirics: A Review of Failing Law Schools, a recent blog post by Michael Simkovic & Frank McIntyre drawing on their article The Economic Value of a Law Degree .

Simkovic & McIntyre challenge the empirical analysis underlying Brian Tamanaha’s claim that legal education is no longer a good value given current law school tuition levels. They point out numerous ways in which Tamanaha’s argument rested on apples to oranges statistical comparisons, and note flaws in other studies he relied on.

Key conclusions: “[T]he value of a law degree typically exceeds its costs by hundreds of thousands of dollars. Even at the twenty-fifth percentile, a law degree is typically a profitable investment. At current price levels, law degrees generally provide an attractive double-digit pretax rate of return.Legal education is profitable both for students and for the federal government as tax collector and lender.”

For me the most provocative idea in the post was one from Tamanaha — supported by Simkovic & McIntyre — that I hadn’t remembered: Law students are good enough loan repayment risks that law schools might consider providing loans directly to their students at lower interest rates than are currently available. A new best practice, perhaps?

The Task Force Speaks!

By: Margaret Martin Barry

I suspect that like many others in legal education, I turned to the final word from the Task Force on the Future of Legal Education with interest and hope.  After all, it has become the poster child for the growing crisis in higher education.  We recognize that there is high personal and public value in an educated populous.  That accounts for our investment in elementary and secondary education. However, unlike many of our Western counterparts, we limit our investment in higher education to loans, program-based grants and ever diminishing contributions to state schools.  What the report describes as the tension between the public and private value of legal education is not so much a tension between these two values as a lack of collective will to invest in our future through education.

This does not mean that higher education, including law schools, is off the hook with regard to  addressing costs.  There is evidence that law schools have gone to task in doing just this. However, it is unrealistic to look back to a day when law schools were less expensive and conclude failure if the earlier benchmark is illusive.  Higher education costs more today.  Similar to others in higher education, law students need and expect access to technology, high quality education that expands and refines their thinking and effectively prepares them for the work they hope to do, academic support, career support, and support for extracurricular activities that nourish their academic and professional development.  To produce this costs money.

Central to the production costs is having faculties that are dedicated to meeting educational needs, needs that are part of the public and private bundle of values the Task Force references.  While one may question the historic inflexibility of law school faculties in the face of critique of their educational priorities, I know I have, the inflexibility has been essentially born of a fundamental disagreement with regard to what constitutes high quality in legal education and priorities in maintaining that quality.

As the Task Force points out, the decibel level of criticism coupled with uncertainty about the market for legal services has induced a “climate receptive to change”.  Many law schools have engaged in cost cutting measures and curricular redesign.  Support for teaching is no longer limited to the broader support for scholarship, and the trajectory towards reduced teaching loads to support increased production of scholarship is halting, or at least being reconsidered.

Law schools and their faculties are also less certain that their task is sufficiently achieved if legal education is limited to the exercise of covering a body of doctrine and learning to think and write in a certain way.  Other skills that are part of the value a legal education should provide are making their way into the core goals for providing a quality legal education.  Slowly, the old dichotomy between what the 2007 Carnegie Report described as “knowledge” and the other competencies that a legal education suggests, which Carnegie referred to as “skills and values” is breaking down.  Yet the Task Force identifies dichotomy without recognizing its limited value or acknowledging its growing irrelevance:

“…[I]t is commonly stated that the basic purpose of law schools is to train lawyers, but there is no consensus about what this means.  It matters greatly whether, for example, one takes a view of lawyers as deliverers of technical services requiring a certain skill or expertise, or as persons who are broad-based problem solvers and societal leaders.”

Can one seriously deny that lawyers deliver technical services requiring not a certain skill but a range of them?   Are problem-solving and leadership skills somehow relegated to another strata that can be disaggregated from the professional role?  The Task Force goes on to correctly point out that a law school’s “views about purpose may not be reflected well in the curriculum”.  However, this is not because of such a narrow view of what lawyers do but a limited, though evolving, view about the extent of law school’s role in preparing them to do it.

To move law schools along the path of change, the Task Force speaks much about heterogeneity.  I certainly value diversity, but when it comes to what law schools should offer, there are considerations not specifically addressed by the Task Force that should be expressly understood before we get too far down the path.  Society, including the law student, has an interest in knowing that a graduate of a law school has a working foundation in the work that lawyers do.  We can discuss whether this expectation is realistic, whether indeed clinical legal education is the answer or post law apprenticeships are inevitable or legal education should train specialists instead of generalists, but legal education has for some time promised more than we produce.  Now that the cover provided by the law firms and agencies that provided post graduate training is eroding, the reality of the limitations of traditional legal education is more apparent.  Expansion of clinical offerings and outreach to the bar are manifestations of this recognition.

Connected to its assessment of the financial burden of law school, the Task Force speaks of the need for more limited training that would allow for greater service to those who cannot afford the debt laden lawyer.  It referenced the Limited License Legal Technician provisions that Washington State has been rolling out.  Limited licensing may well be inevitable for a variety of reasons, though without specific funding for the services they would provide, it may not do much more than what lawyers offering unbundled services and pro bono legal services are currently seeking to do for those unable to otherwise afford legal service.

The Task Force proposes several new entities within the ABA to address cost, debt burden and assessment and improvement of legal education.  It does not discuss where these entities should fit in relation to the existing Section of Legal Education and Admissions to the Bar.   However, it does goes on to list a number of Accreditation Standards and Interpretations of Standards that the Council of that section should “eliminate or substantially moderate”.   I believe it is fair to say that several have been under significant reevaluation for the past several years.  What I found of concern from a Task Force that took a year to produce its report is the fact that it listed the Standards and Interpretations without connecting their existence or elimination to goals for the quality of legal education, or even directly to cost reduction.

For example, while one might argue that the current detail in interpretations 402-1 and 402-2 are byzantine and not directly related to ratios in a given classroom, is it enough to say that a law school must have “a sufficient number of full-time faculty to fulfill the requirements of the Standards and meet the goals of its educational program”, which is what would be left if the interpretations are eliminated (something that is currently proposed by the Sections Standards Review Committee, by the way)?  Once we identify full-time faculty as a basis for developing a student faculty ratio, what do we do about administrators and those full-time teachers that a law school might not identify as faculty?  What benchmark do we have for enforcing this indicator of quality?  If we are responding to concerns about costs, should classes of 300 students be acceptable because it is cheaper and arguably meets educational goals that can be identified?

Similarly, if we throw out Standard 405, and 206(c) and 603, what are we saying about leadership in law schools?  Why, at the core, does higher education value security of position?  It has long been understood that such security attracts those who value legal education and want to dedicate themselves to the teaching, scholarship and service that is expected to maintain and improve law schools that have, for all the flaws identified and assessment in progress, managed to provide significant educational value.  The idea that tenure is dragging law schools down ignores not only the dedication of many law professors, but their ability to speak to the educational mission they serve instead of being ignored or dismissed by administrators who may be more focused on a bottom line than balancing the equally significant institutional purpose.

The report also spends time discussing generally the need for greater ability to innovate, suggesting that the ABA Standards inhibit heterogeneity.   While I agree that the variance process should be made more transparent and that successful innovations should lead to appropriate regulatory modifications, it is worth reminding ourselves that not that many schools have innovated within what is currently consistent with and arguably encouraged by the existing Standards, much less sought variances to go beyond them.  It may well be that far more than underscoring differences, we first need to be more certain than we are about what constitutes a sound legal education, at any institution.   The end result may not be as homogenous as the Task Force fears, but it should provide greater assurance of reliable preparation for the profession.

All this said, I am grateful to the Task Force for undertaking this project.  I know it reflects a lot of work over and above busy schedules.  Given the membership and some of the input entertained – indeed, given the waves of criticism that legal education is facing coupled with uncertainty about legal service market, I dared to hope for something more than additional committees, cursory comments on accreditation standards that have already been the source of significant discussion, and a call for law schools to reduce costs and other steps the vast majority are already undertaking.  Maybe the message is that there is nothing new to add, we will continue to mull it all over, propelled relentlessly by evolving markets and minimal public commitment to the value of higher education.

The Role of Tenure: The Virginia Experience

The AALS Presidential Workshop on Tomorrow’s Law Schools included a session on effective participation in faculty governance.  Much of the discussion centered around the summer 2012 kerfluffle in which the governing board of the Univ. of Virginia abruptly ousted University President Teresa Sullivan — and then rehired her after the faculty protested en masse.  Prof. George Cohen (chair of the faculty senate at the time, I gathered, having missed the introductions) acknowledged the importance of tenure in giving the university’s faculty the courage to speak up. He noted that lacking tenure the university’s administrators felt unable to do so.  I was struck by the importance of tenure to the privileged faculty at an elite university in such a situation.  Reinforces the impact of the stories from less privileged and more vulnerable faculty relayed in yesterday’s post by Mary Lynch from testimony presented on proposed changes to accreditation standard.

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