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?

Building on Best Practices and the Clinical Theory Workshop

Thought-provoking discussion at the NYLS Clinical Theory Workshop on Friday.

Definitions. Carrie Kaas reported on the “definitions” project of an Alliance for Experiential Education Committee chaired by Cindy Adcock of Charlotte. That committee is attempting to generate a common vocabulary around experiential learning — a set of common definitions for the overlapping and inconsistently used terms now in use. The Building on Best Practices project will need to decide whether to adopt that vocabulary, or not.

One of the most interesting, and challenging, tasks is to decide what differentiates an in-house clinic from an externship. Is it geography? Who pays the supervisor? A distinction rooted in pedagogy? Degree of independent role assumption? Or perhaps the distinction is no longer useful & and is ready to be junked?

I lean towards pedagogy & intensity of supervision, and degree of independent role assumption. Except when I lean towards junking the terminology and recognizing that we’re dealing with a continuum on multiple dimensions, as argued in Revision Quest: A Law School Guide to Designing Experiential Courses Involving Real Lawyering.

Sequencing. Cynthia Batt from Stetson presented her draft article on curriculum sequencing that is one of several independent articles spawned by the Building on Best Practices book project. Arguing for what I have termed the “layer cake” curriculum model, she conceded that the model is not necessarily the “only” or “best” model. But, she suggested, at schools where significant numbers of faculty are resistant to integrating experiential education throughout the curriculum, whether due to insecurity about lack of practice experience, fear of change, or other reasons, it is one that might have the best chance of implementation. Fair enough. A reminder to me that I’m at a school with relatively little resistance to experiential education.

Under the Radar Creativity. Cynthia made another comment that I’ve been pondering: “I am so impressed with my colleagues’ creativity, the kinds of work they are having students do that no one else knew about. Why are people so reluctant to talk about experiential education embedded in ‘traditional’ doctrinal education?”

That creativity certainly permeates my own law school. Based on a survey last spring, my colleagues are integrating experiential exercises into over 50 doctrinal courses. And they’ve created a long list of very creative simulation oriented courses, ranging from Venture Capital Deals to Supreme Court Decision Making to International Contracting.

So much of this creativity operates pretty “under the radar screen”. But I’m not sure it’s reluctance exactly. Lack of time? Lack of an appropriate forum? Understated, we-don’t-blow-our-own-horn Seattle manners?

I don’t know. But if our two schools at opposite corners of the country are representative, perhaps legal education has changed more than we know. Are we approaching a tipping point?

NY Chief Judge Lippman Announces Pro Bono Scholars Program For Final Semester of Law School

Chief Judge Jonathan Lippman of New York State’s highest court (the NYS Court of Appeals)  announced today the creation of a Pro Bono Scholars Program in which certain qualified law students may sit for the February Bar Exam during their third year of law school and then spend from March to May of their third year performing 500 or more hours of pro bono legal services. He made this announcement  as part of his  2014 “State of the Judiciary” address.  During what the Chief Judge describes as a “challenging economic environment and legal job market” for new law grads,  the Pro Bono Scholars Program is intended to facilitate “quality mentoring relationships” and provide “adequate practical training” under the direct supervision of a practicing lawyer, while “helping those who cannot afford legal services.” It also “builds upon New York’s 50 hours pro bono admissions requirement.”

Judge Lippman noted

“In New York, we are so fortunate to have stellar law schools, with innovative clinical programs and well-crafted curricula.”

The NYS Board of Law Examiners (BOLE) has already approved the initiative which “will be offered to all of New York’s 15 law schools, as well as other schools that wish to participate.”   Judge Lippman also noted that the supervision will “take place through educational programs developed by law schools and their clinics, and in partnerships with legal service providers, corporations and law firms.”

Senior Associate Judge Victoria A. Graffeo will head an Advisory Committee composed of law school deans from around the state to address “the logistics of an expanded February bar exam, ensure compliance with ABA standards, and develop a more precise timetable for the implementation of the various aspects of the Program.”  Judge Lippman praised Graffeo’s “tremendous expertise and formidable organizational and managerial skills” in ensuring a “smooth transition for the new protocols,” noting that Graffeo used the same strengths in leading the 50 hour pro bono requirement.

For an audio webcastand transcript of the address see:

http://www.nycourts.gov/ctapps/soj.htm

SRC voted to eliminate Interpretation 305-3 which distinguishes paid employment from academic field placements

American Bar Association Accreditation Standard 305  addresses “study outside the classroom” and, in particular, field placement courses.  Interpretation 305-3 states:

A law school may not grant credit to a student for participation in a field placement program for which the student receives compensation. This Interpretation does not preclude reimbursement of reasonable out-of-pocket expenses related to the field placement.

The written submission by the Clinical Legal Education Association (CLEA) filed January 31, 2014 (found here or on ABA site) argues

To revoke this regulation would give employers in paid field placements significantly more power both to control student work and to minimize the employer’s supervisory role, and would significantly reduce externship faculty control over the educational benefit of the placement.

This is a real concern. When I directed Albany’s field placement program, I often had to discuss with supervisors the difference between their treatment of academic interns and paid clerks. For example, throwing an inexperienced student into night court without direct attorney supervision may free up the evening of the harried assistant public defender or assistant prosecutor but it fails to teach the intern the constitutional way to practice law. And, if you pay the interns you may well be entitled to assign them to pick up your dry cleaning or walk your dog because your time is more valuable, however those activities are hardly educational. These were actual issues I addressed and was able to resolve in favor of the students educational experience because the employer had no money in the pot and needed to follow the requirements of the law school. That leverage will be undercut if interpretation 305(3) is removed.

I also agree with CLEA’s position that

……nothing suggests that field placement courses are displacing a large volume of paid part-time work for law students. To the contrary, pervasive anecdotal evidence suggests that employers are unable to pay and would prefer that students work without pay. Field placement directors (and placement offices) routinely field requests from employers who seek to offer unpaid work through a field placement experience. Nothing suggests an increased demand by employers to pay students who are also getting credit.

If anything, during difficult economic times, law students need the negotiating power of an experienced attorney and faculty member even more, since they are more vulnerable to exploitation by employers. I urge the Council to keep Interpretation 305 (3) in place to protect the educational quality of field placements. As discussed in another earlier post, during Thursday’s public hearing before Council members, Interpretation 305 (3) was discussed, including the applicability of the Fair Labor Standards Act, possible exploitation of students, and the problem of differing expectations regarding treatment of paid and unpaid interns. These issues are complicated and deserve further attention. With the SRC members deciding to complete the comprehensive review at the February meeting and leave issues which need more data and input for another day, it was surprising, in my opinion, to observe them move so quickly on the proposal to remove 305-3 without a more informed vetting of the issues.

Disclosure: I was recently elected co-vice president of CLEA. However, I was not responsible for the CLEA position letter on this interpretation. When writing on this blog, I do not represent CLEA.

Evidence Based Experiential Learning?

Over on the Legal Whiteboard, Bill Henderson has an interesting post noting that despite the current call for more experiential education, we lack evidence to answer two key questions:

“(1) Among experiential teaching methods, which ones are the most effective at accelerating professional development? And (2) among these options, how much does each cost to operate? Quality and cost must be assessed simultaneously.”

Henderson is the principal researcher on Northeastern Law’s Outcomes Assessment Project (OAP) that is attempting to answer the question “Does Northeastern’s legal education model accelerate the development of law graduates who are ready to practice and to serve clients?” As Henderson notes, selection effectsmake these challenging questions to answer given Northeastern’s distinctive characteristics, including a progressive, public interest tradition, and a student body with high numbers of women and LGBT students decades before the rest of legal education.

If the OAP project shows that Northeastern’s legal education model does accelerate the development of its graduates, here’s an interesting follow-up question: Will that result be due to the co-op model specifically, or simply to the greater integration of exposure to practice into their students’ education than is typical. In other words, would a different version of a “marble cake” curriculum model have the same benefits?

Standards Review Committee Says “Our Work is Done” on Skills Requirement and Tenure and Security of Position: It’s in Council’s Hands Now

I am sitting in the lovely and warm Conrad Ballroom of the Conrad Hotel in windy, freezing Chicago. So far today, the Standards Review Committee (SRC) of the ABA Section on Legal Education has decided to leave some major issues in the hands of the Council on Legal Education. (As you know from my earlier post, the Council yesterday held the last of its public hearings on the proposed revisions posted for notice and comment.) The overall theme of today’s session appeared, at least to this observer, to be an urgency to finish the comprehensive view (which began in 2008) as soon as possible so that the Council can finish its work by June and the ABA House of Delegates can vote in August. Many times, it was noted that issues not currently resolved in this comprehensive review can be considered carefully by the committee going forward.

First, in previous meetings the SRC had voted to send up to the Council a proposed revision that require each student to take six credits of experiential courses. Last December, the Council decided to post for notice and comment an alternative proposal made by CLEA that would require 15 experience-based credits. Today, the Standards Review Committee decided not to further discuss the 15-credit proposal but to leave the choice to the Council without any revised recommendation from the SRC.

Similarly, with respect to security of position and tenure, the SRC decided that the very robust and interesting comments on the issue should be considered directly by the Council. SRC member and Southwestern Professor Catherine Carpenter in presenting a review of the recent comments noted the helpful law review article submitted on tenure and said that two interesting themes emerged from the recent comments: 1) whether academic freedom can truly be secured by any framework other than tenure; and 2) whether a time of financial exigency is the best time to change the rules of the game. The SRC and the Council members present agreed that the Council is in the best position to review the recent submissions and comments and take action.

With respect to Bar Passage revisions, the working committee reported that the continued resistance of some states to reporting individual pass results to law schools counseled against taking action at this time. In addition, they did not feel that they currently possessed all the data on state cut rates, pass rates and other “meta data” to create a properly informed recommendation. It was underscored that there are several important issues regarding bar passage that must be revised and/ or clarified before the standard should be amended. The committee will take up the matter again after the summer.

There were some changes made which I will report on later.

Council Hears Testimony on 405, experiential credits and pro bono

The past two days in frigid Chicago, members of the Council on Legal Education heard testimony from almost 20 speakers deeply interested in the  future of legal education and the education of future law students.  I was fortunate  to make it out of icy New Yorkto be able to attend yesterdays morning session.  I was impressed with the speakers’ deep knowledge of legal education and  their mastery of the intricacies of each of the multiple versions of proposed revisions.  Several speakers advocated strengthening the pro bono requirements of the standards.  Even more  argued in support of the proposal to require 15 credits of experiential courses.

The issue of whether students could receive academic credit for paid employment received serious attention.   DePaul Law Student Matthew Kerbis of the ABA’s Law Student Division requested that the Council change the standards to allow students to receive both credit and pay, while Professor Kate Kruse  of the Clinical Legal Education Association urged that the current rules properly acknowledge that paid employment and a properly structured academic experience involve different sets of goals, legal frameworks and expectations.  Judge Solomon Oliver, Chair of the Council,  asked about possible exploitation of  law students by employers.

SALT representative and University of Minnesota Professor Carol Chomsky,  American University’s Professor Ann Shalleck and Hamline’s Professor Kate Kruse, all tenured professors, each argued against the two alternatives to 405 now before the Council, which effectively eliminate tenure and security of position for future teachers.  They all agreed that the Council should support tenure and 405(c) security  of position so that legal educators may continue to exercise academic freedom,  to contribute educational perspectives to institutional governance, and to transform the outdated Langdellian model and integrate the professional development  of law students’ practical lawyering and reflective judgment into American Legal education. As American clinical faculty became more secure under tenure and 405 (c), they took risks in teaching, pioneering a pedagogy which has become a model nationally and internationally. However, for those without tenure, Kruse argued supported by a chart CLEA submitted, there is a demonstrable absence of meaningful participation.

The President of the Association for Legal Writing Directors, Anthony Niedwiecki argued in a similar vein  for the need to provide security of position and meaningful participation in governance to  legal writing professors.  In his testimony, Professor  Niedwiecki referred to a recent survey of legal writing faculty which ironically shows attacks on LRW professors at the very moment that the profession and accreditors are demanding law schools provide the multiple assessments and hands on skills development LRW professors do best.

In my experience, at my school, the warnings of Kruse, Shalleck, Chomsky and Niedwicki are not speculative. We are experiencing those attacks now.

For written comments (including my own) submitted to Standards Review see http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/council_reports_and_resolutions/20130906_notice_comment_chs_1_3_4_s203b_s603d.authcheckdam.pdf

Tune in later today for a report on the Standard Review Deliberations.

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