Chronicle Publishes Law School Dean’s Argument From Authority

Via the ABA Journal, Katherine Mangan, “America’s Longest-Serving Law Dean Defends the Value of a Law Degree,” Chronicle of Higher Education.

The news is Rudy Hasl, the dean of Thomas Jefferson School of Law, whose former career services staff claimed under oath that she was told to juke graduate employment data, is stepping down after 32 years of law school deanery. To honor him, the Chronicle captures his parting thoughts because he’s a law school dean, which means anything he says should be taken with equal validity to what anyone who researches the issues says.

This has been a tumultuous period for law schools. It’s not that we haven’t gone through similar periods. It’s just that the trough is a little bit deeper and the issues are a little more difficult than they were in previous times when we reached those bottoming-out periods.

So the problems are quantitative, not qualitative. The fact that the applicant nosedive is occurring during a period of McJobbery for college graduates instead of high employment doesn’t faze the dean. However, we have to credit his gall for looking at employment data and saying, “BAH!”

I remind students that what law schools are providing is a set of skills that are valued in our society and that will ultimately lead to a meaningful employment opportunity. To try to measure that by what job you have on graduation, or even nine months later, doesn’t make sense.

In 2010, only 46.2 percent of TJSL’s graduates were employed long term; 19 percent were unknown. In 2011 that dropped to 37 percent and 3.4 percent, respectively, but don’t worry 31.4 percent of them were unemployed and seeking. While we should credit TJSL for doing a better job of finding its unemployed graduates for the purposes of the employment survey, it doesn’t look as though society values their skills much.

Whether legal education “leads to” a meaningful employment opportunity is a claim that’s difficult to substantiate. Those making it must demonstrate that (a) the graduate’s job requires a law degree, or (b) the substantive knowledge gained in law school is a substantial factor in the graduate’s employment. Contributions that supplemental knowledge like computer programming or chemical engineering adds to a job must be discounted as well. This does not bode well for law degree holders, which is not to say they’ll be unemployed forever (the economy has to recover someday, right?), just that many of them will find their earnings no higher than college graduates’. They’ll be IBR-ing away their law school loans while think tanks tell them that people in their positions should pay more because they’ve gotten a free lunch.

The good news for TJSL, though, is that under Dean Hasl’s stewardship the law school is solving the profession’s “diversity problem.”

The legal profession has been slow to respond to the increasing demand for diversity. Students of color made up 10 to 12 percent of the student body when I arrived here, at Thomas Jefferson School of Law, in 2005, and they’re a little over a third of our student body today. For me it’s an important social issue that we produce individuals who can work within their communities to provide service and develop leadership … I’m optimistic that we’re producing graduates who will be quite attractive to firms and have a great future ahead of them.

Tell that to all of TJSL’s unemployed graduates. They’re unlikely to ever work in firms, and in 2011 only 11 out of 236 graduates were employed full-time/long-term at law firms larger than 10 lawyers. A mere two of them were at firms larger than 50. Law school deans’ optimism is not valid grounds for future predictions, nor does it put food on graduates’ tables.

The we-need-more-minorities plea never fails to displease me. The idea that minorities are better off and can better serve their communities with mountains of law school debt is toxic garbage. Those interested in making the profession more accessible can do so by … making the profession more accessible: eliminating the three-year graduate education requirement, focusing licensing along practice lines rather than generalist lines. These policies would make it a lot easier for minorities, and everyone else, to become lawyers, and the only people who lose out are the handsomely compensated deans.

Speaking of which, Rudy Hasl did quite well for himself a-deaning. According to Guidestar, in 2011 TJSL paid him $366,514 in base compensation plus $51,332 in other compensation. If you think that’s too low for a law school dean, fret not, for TJSL also extended him a $977,179 loan for “housing assistance”—something I’ve never seen in my admittedly scant experience with Guidestar reports. Such a large loan for “housing assistance” suggests that he’s not living in the 21^st century’s answer to Pruitt-Igoe (a fucking depressing documentary I wholeheartedly recommend).

Maybe instead of allowing Dean Hasl to dictate an editorial with unsubstantiated claims to readers, the Chronicle should ask him how he intends to repay such a generous loan while in retirement.

New Am Law Daily Article: ‘A Tale of Two (California) Law Schools’

‘A Tale of Two (California) Law Schools’

I’ve written about the University of La Verne and UC-Irvine in the past; this article synthesizes them.

If you live in New York and have any sense in you, you’ll see Bob Mould at Williamsburg Park tonight.

Also, I’ve revised up to Michigan in the tuition increases page. Halfway there.

In the Dog Days of Global Warming Summer, the ABA Speaks

“ABA President Names Task Force on the Future of Legal Education,” ABA Now

Debra Cassens Weiss, “No Fudging: Revising Standards Bars Law Schools from Publishing Misleading Consumer Info,” ABA Journal

On reading government white papers, one of my graduate school professors said, “It’s not what they’re thinking, it’s what they want you to think they’re thinking.” This characterizes what happens in August when the ABA House of Delegates holds its annual meeting, but the ABA announced two things: (1) concurring with the Section of Legal Education on its revised transparency standards, with sanctions, and (2) a new task force on the future of legal education.

The new standards are what they are. I’ve looked through the data and am surprised that so few people didn’t return the surveys at all (<5%, but the real story is the Puerto Rican law schools that either haven’t reported to the ABA or put little effort in doing so). As I showed last week, there are some statistical tools one can use to determine if people who work at law firms tend to actually be licensed attorneys and not paralegals or janitors. The latter would probably pay well, but now I’m just being cynical. And “Business & Industry” is as worthless a category as it ever was.

As for the task force, its got its work cut out for it. We’ve seen the Massachusetts State Bar Association bend over backwards to avoid suggesting that any of the state’s law schools close, consolidate, or reduce their enrollment to meet the state’s needs. In the end, though, there’s still an unwillingness to cut losses, by which I mean talking straight to underemployed recent (and not-so-recent) graduates and conceding that their law degrees are pretty much worthless. They’re unlikely to work in professional white-collar jobs absent serious policy reform, and they can put their loans on Income-Based Repayment so they can just go away.

If I recall, I don’t think I believed the ABA could put together any transparency requirements, so that’s good for them. However, I doubt the task force will recommend state bar authorities simply require undergraduate legal education for licensing rather than the current graduate-level one, reforming or abolishing the Direct Loan Program, revising the bankruptcy code, and some kind of contrition regarding the consequences of its needlessly lax accreditation standards.

For example, over the weekend, the Oregonian jumped onto the law school-trashing bandwagon and it even got a quote from New England School of Law dean John O’Brien, whose mentality reflects the ABA’s:

“It’s not the ABA’s job to police the number of law schools,” O’Brien said. “Law schools are like other businesses. Ultimately, that’s what they are. If there are people who feel there is a void that needs to be filled around the country, the process is to apply for ABA approval. If you meet those standards, you get approved.”

Even though the ABA could tighten bar passage requirements to ensure that law schools weren’t frivolously enrolling students on government loans, they don’t have to because they’re businesses in the “unregulated” market. For instance, why the ABA re-provisionally accredited the University of La Verne when barely half of its graduates passed the California bar last year (less than half if you exclude graduates who took other states’ bars instead) is colossal regulatory failure. The aforementioned Puerto Rico law schools appear to be failure factories, not that they send data to the ABA.

Point is, if the task force is serious, it’s going to have to start by justifying the La Vernes of the system and why it keeps accrediting them. If they’re “businesses” then why should they profit on debt?

NPR’s Law School Coverage Disappoints Again; the NLJ’s Opinion Page Entertains

Wendy Kaufman, “Job, Tuition Woes A Drain On Law Schools,” KUHF Houston Public Radio

“The American Bar Association has revealed a bit of a secret: A huge number of law school graduates cannot find jobs as lawyers…”

Since when was this a secret? If it were, why did fewer people apply to law school in 2010 than in 2004?

Way to not research NPR. What’s next, an exposé on this new scamblog titled Big Debt Small Law?

But that’s not the actual adventure for today:

Erwin Chemerinsky, “You get what you pay for in legal education,” in the National Law Journal

Chemerinsky responds to Brian Tamanaha’s book, Failing Law Schools:

“[Professor Tamanaha] singles out for criticism me and the University of California, Irvine School of Law (UCI) for creating an “elite” law school rather than one charging students less than $20,000 a year. Although everyone wants legal education to be less expensive, he proposes a model that is economically impossible without dramatically decreasing the quality of legal education.”

I’m only partway through Failing Law Schools (I’m still mopping up A Short History of Byzantium by John Julius Norwich), and I’m not even going to reach for it to respond to Dean Chemerinsky’s opinion piece.

(1)  The UC system has abandoned its law schools. For instance at Berkeley, Davis, Hastings, and LA, in 2011 dollars in-state tuition in 2004 was only ~$25,000. In 2011 they were all over $40,000 with Berkeley crossing the finish line as the first “public” law school to charge state residents more than $50,000 a year to learn The Law. I’m sure Irvine’s founders knew their law school wouldn’t receive state funding by the time it needed to start charging tuition, yet they opened it anyway. Fortunately its inaugural class just finished with a free ride; its successors won’t be so fortunate.

(2)  I don’t think anyone else has pointed this out, but UC Hastings made a big splash when it announced it was shrinking its incoming classes starting 2012. One new public law school opens, another cuts its enrollment. Why didn’t anyone tell Irvine it should’ve taken one for the team as the newest and least necessary law school? Read on, brother.

(3)  UC Irvine is in California, which is loaded with state-accredited, unaccredited, and correspondence law schools of all stripes. Plenty of the people who attend those schools become lawyers, and they pay much less than the $40,000 or so ABA fare. Most fail the bar exam, but then again they probably didn’t have the aptitude to pass it in the first place. The LSAT is a high predictor of bar passage, so legal education can be less expensive without dramatically decreasing its quality. It’s quite surprising that Chemerinsky has nothing to say about California’s non-ABA system.

“[Tamanaha's] solution is to advocate much lower-cost law schools. But is it possible? Tuition at the University of California law schools is approximately $45,000 for in-state students and $55,000 for out-of-state students. This is comparable to the tuition at other elite public and private law schools. For public law schools, it reflects the dramatic decrease in state subsidies over recent years.”

(4)  Why do we need public law schools, much less elite-mimicking ones? The whole point of public law schools is to provide legal education cheaply so the profession can be accessible to the rabble. If they’re going to charge more than many private law schools then they no longer serve that purpose and might as well close.

“Tamanaha is correct that law professors are paid significantly more than university faculty in disciplines like English, philosophy and history. Imagine that a law school tried to pay at that level, say roughly half of current faculty salaries at top law schools. Who would come and teach at a school where they got paid half what other law schools would pay them, and who would stay there when other opportunities arose?”

(5)  Faculty at top law schools routinely make more than $200,000 per year. Plenty of people would show up for half that.

(6)  The ABA renegade Massachusetts School of Law hires lawyers and judges to teach its courses. Do they jump ship the first chance? Also, don’t, like, thousands of people show up to law school faculty hiring “meat markets” held in nice hotels? I’m sure plenty of people would be happy to teach law for $50,000 plus benefits, even six courses per year.

“About half of our budget is faculty salaries and benefits, but even slicing these in half wouldn’t save nearly enough for a tuition decrease like the one Tamanaha argues for. The only way to accomplish that would also be to cut the size of the faculty at least in half. Increasing the teaching load from an average of three to four courses won’t help much, since I and many on our faculty are already teaching four or more courses every year.”

(7)  And now, the moment of truth: a trip to UC Irvine’s Official Guide page … Student to faculty ratio: 6.9 to 1.

Ho~ly $@%#.

This cannot be right. I have to dumpster dive into some enrollment numbers… UC Irvine had 235 students in 2011 (89 1Ls, and its inaugural class started with 60, now 58; Give or take a few transfers, we’re looking at a 2L class of 88). Okay, given that it’s inaugural class was small than what it’ll be going forward, it’s full-time enrollment should be most similar to Maine’s, which had 270 full-time students in 2011. Maine has a student faculty ration of 14.3 to 1. Recall that an ABA law school can operate with as high a ratio as 30 to 1. Now I’m sure there are some scalability and flexibility issues here: Unless the law school wants students to have a rigid curriculum, it’s probably going to have to hire some more faculty and enroll more students to make up for it. Fair enough, but Maine has been doing this since 1962. Sure Maine has a cheaper cost of living than California, but something tells me its law school doesn’t strive for “elite” the way Irvine does and pays its faculty accordingly. Tuition there is $22,000 for residents, $33,000 for non-residents.

This is Irvine:

This is Maine:

Two schools that operate very differently.

I’m going to skip Chemerinsky’s arguments that full-time faculty teach better than part-timers and that reducing law school’s costs would eliminate clinical programs. I think the full-time faculty teaching ability issue is a non sequitur. It’s not that they need to be wholly eliminated, just pared back and paid less, and if part-time faculty don’t have time to answer students’ questions, fire them. As for clinical programs, we’ve had legal education without them and it’s not like lawyers of yesteryear were rampaging savages like Attila the Hun (There’s that Byzantium book again…).

The conclusion, though, is where you ought to be frolicking if the rest wasn’t to your liking:

“Tamanaha says that UCI Law School ‘squandered’ its opportunity, and that where we ‘went wrong was in setting out to create an elite law school.’ My goal, and that of my university, has been to create a top 20 law school from the outset … If we had followed Tamanaha’s advice, we would not have faculty remotely of this quality and then never could have attracted students of this caliber. We surely would have been a fourth-tier law school. It is ironic that he would be advocating that because so much of his book is about demonstrating the serious problems such schools face.”

(8)  The actual irony here is that the summer Irvine received its provisional accreditation, the “Inland Empire’s” University of La Verne lost it due to too many of its graduates failing the bar exam. Southern California apparently didn’t have room for another fourth-tier law school (not that it didn’t stop the ABA from re-provisionally accrediting La Verne last spring), but don’t let that or Dean Chemerinsky’s arguments fool you into thinking that UC Irvine’s decision to build a top-20 law school from scratch is somehow more responsible than opening another La Verne. There are only so many top-20-caliber applicants in each application cycle (to say nothing of the number of top-20 law schools), but Chemerinsky has given no reason for us to believe that Irvine adds more educational value than, say, Vanderbilt or Minnesota do for its cost. Indeed, Irvine’s 58 graduates would’ve received comparable legal educations from those schools had it not opened. Thus, by jumping into the rankings dogpile, Irvine does not meet any unmet demand and only reallocates existing resources to itself. It may not be a bottom-tier law school that Tamanaha criticizes, but by shifting its non-top-20 predecessors downward UC Irvine ipso facto creates one.

‘Clever Plans to Reform Legal Education Won’t Make Legal Services Any Cheaper’ up on Am Law Daily

It’s a revised version of my post from a couple weeks ago, “WSJ Op-Ed Reaches Acceptable Conclusion on False Premises.” Link is here:

“Clever Plans to Reform Legal Education Won’t Make Legal Services Any Cheaper“

Hopefully this will inspire better proposals from reformers.

FixUC Stumbles onto Human Capital Contracts

Nanette Asimov, “Plan Would Eliminate Tuition to UC’s Benefit,” in SFGate.com

Leanne Maxwell, “UC Considers Students’ ‘Delayed Tuition’ Proposal,” in sfist.com

News outlets are reporting on a proposal (PDF) produced by a student organization, FixUC, which operates out of University of California-Riverside. More importantly, the university is actually considering it. The proposal is essentially the kind of human capital contracts plan endorsed by economists from Richard Vedder to Robert Reich: instead of paying tuition up front, students pay after they graduate (or drop out). In this incarnation, graduates will pay 5 percent of their incomes over 20 years; FixUC argues that graduates earning $50,000 on average over 20 years will pay the current four-year tuition, $50,000, back to the university. Tuition, though, isn’t total cost of attendance, including living expenses, textbooks, etc.

As readers know, I’m a fan of these kinds of proposals. With good enforcement, they provide clear data on the value of specific degrees, encourage efficient education, and prevent the drain on college graduates’ incomes to interest payments on student debt. I’ve written in more detail on the potential benefits of human capital contracts before.

As of now, the proposal only applies to undergraduates, so UC will still be able to loot its law students’ future incomes at $40,000 – $50,000 per year to pay for other programs, excessive administrators, and pepper-spraying security. If it were applied to legal education, UC’s programs would be able to offer cheap national-level education, though it’s doubtful it’d still be worthwhile.

I have two concerns to write about:

(1)  From a practical standpoint, “graduates’ income” here isn’t defined. Is it gross income? Net income? Net income above the poverty line, which Income-Based Repayment uses? Much rests on the assumption that the premium of a college degree over a high school degree is sufficient to make the endeavor worthwhile for students, including forgoing four years of full-time income, which FixUC doesn’t discuss. If the premium of opportunity costs plus five percent more income plus one dollar doesn’t materialize, then it’s still a drain on the economy going to the university.

(2)  One point in the proposal reads:

“Campuses will be encouraged to refrain from giving preferential treatment to departments and majors that lead students to more traditionally lucrative careers.”

I fail to see the problem with investing in lucrative education. As much as I enjoyed reading Theaetetus, that doesn’t mean I think electrical engineers should subsidize it. Doing so promotes education as consumption rather than investment. People should take a Plato seminar because it’ll enrich them, not because someone else is paying for it.

As a caveat, I’ve written elsewhere that I’m acclimated to a worldview of downward mobility for young adults, but FixUC’s proposal boldly promises to be revenue positive for the university. Thing is, I’m not sure that on net UC’s college degrees are really worth $50,000 given the corruption EduBubble routinely accuses of UC. Human capital contracts are generally better than student loans, but while universities have an incentive to maximize graduates’ employment, they still get paid if graduates ultimately lose money in the long run. “Better than student loans” isn’t the same thing as “revenue positive for students” and society.

WSJ Op-Ed Reaches Acceptable Conclusion on False Premises

Distantly following the op-ed published by Clifford Winston and Robert W. Crandall that called for deregulating legal services entirely, the Wall Street Journal has now published an op-ed by a law professor and a lawyer, John O. McGinnis (Northwestern) and Russell D. Mangas (Kirkland & Ellis, Chicago), advocating allowing undergrads to sit for bar exams. This is a much better argument than Winston’s and Crandall’s, and certainly better than law school gimmicks of offering refunds or changing the law school tuition structure, but it’s still due a few criticisms. A more complete copy of the editorial, “First Thing We Do, Let’s Kill All the Law Schools,” can be at TaxProf Blog.

McGinnis and Mangas write:

“The high cost of graduate legal education limits the supply of lawyers and leads to higher legal fees … States should permit undergraduate colleges to offer majors in law that will entitle graduates to take the bar exam. If they want to add a practical requirement, states could also ask graduates to serve one-year apprenticeships before becoming eligible for admission to the bar … This option would reduce the law school tuition to zero. And the three years of students going without income would be replaced by a year of paid apprenticeship and two years earning a living as a lawyer.”

What’s this? A proposal I get to agree with? Ya~y! Instead of “pushing the string” of having people pay for graduate education and then letting the market decide if they get to use it, McGinnis and Mangas let the market make the first move (whether law as a college degree is still worth pursuing is obviously debatable). Good job. The problem, though, is that in a few important respects their plan has already been implemented in California, and the alleged benefit of cheaper lawyers hasn’t been documented.

First, the op-ed’s tagline, that the high cost of legal education is somehow limiting the number of attorneys is utterly false. There is no direct financial barrier to attending an ABA law school. Law students can take out student loans to pay the exorbitant tuition. That’s the problem. Indeed, the ABA collects data on the number of lawyers in the U.S., and it actually released this in the form of a spreadsheet on its Web site recently. By comparing its national lawyer count to the population, we find that there are more lawyers per capita than ever before, so high tuition has not created a shortage of able-bodied lawyers.

I have a lot more to say on how accurate this is, but that's for a different post.

Second, McGinnis and Mangas adopt the persistent, widespread belief that lawyers are passing their student loan payments onto their clients in the form of higher fees. This belief is untested and there’s good reason to believe that the opposite is in fact true, that the “incidence” of student debt falls on student debtors and not clients. To make things more confusing, towards the end McGinnis and Mangas abruptly change course:

“[T]he great benefit of the undergraduate option would be lowering the cost of legal education, thus increasing the supply of lawyers willing to charge lower fees.” [Emphasis LSTB]

The emphasized qualifier materially changes the argument, and the authors should have been more specific about what they were talking about from the beginning. Now it appears that McGinnis and Mangas believe that there are enough attorneys, but student debt is stymieing them from charging less. One wonders why they aren’t demanding the end of the Direct Loan program, restoring bankruptcy protections to student debtors, expanding income-based repayment programs for lawyers, or supporting a mass student debt write-down, as those would increase the “effective” number of lawyers far more quickly than their proposal would.

The issue, though, isn’t one of willingness to charge less but of incentive. If law graduates can make more money doing non-legal work, they typically will, irrespective of student loans. This is how labor markets work. It should not surprise anyone that lawyers would rather make more money than less, any more than plumbers, electricians, etc. The only question is whether those high-paying jobs are plentiful enough for people to be able to choose them. Ultimately, if lawyers can’t make a living serving the poor and have higher paying options, then we need to subsidize legal services, not legal education.

Returning to the problem, in principle, the incidence of student debt is much like that of a tax, which rests on the relative elasticities of demand and supply for the product. For legal services, this boils down to an empirical question: do clients have alternatives to lawyers with excessive student debt? Answer: Certainly. For the incidence of lawyers’ student debt to fall on clients, (nearly) all lawyers would have to be making the same payments on their student loans. Thus, the more unevenly distributed student debt is among lawyers, the more lawyers will have to eat their student loan payments to compete with those who have less debt. Here’s what we know about law school debt’s distribution.

(1)  About 15 percent of all ABA grads finish with zero law school debt.

(2)  Some law schools are cheaper than others, especially public law schools and those in Puerto Rico, so those who graduate with debt have varying amounts. (Notice that Professor McGinnis voices no concern that Northwestern’s graduates will be unemployable when Mr. Mangas’ firm decides to switch to hiring NIU or SIU grads to cut costs.)

(3)  Older lawyers often have less student debt than more recent grads, so their loan payments are smaller.

(4)  Some states allow graduates of cheaper, non-ABA schools to sit for their bar exams, or they allow people to forgo the legal education requirement altogether.

(4), here, is critical. California has scores of dirt-cheap state accredited, unaccredited, correspondence, and online law schools. This system is not new, either, yet no one has compared the cost structures of California’s legal sector to “ABA-only” states’. Surely by now there are more than enough non-ABA attorneys licensed in California to have made a qualitative difference in the cost of legal services as McGinnis and Mangas argue, yet California’s ABA law schools (including public ones) aren’t competing with the non-ABA ones in terms of price. They charge about $40,000 per year in tuition, and they increase it each year over inflation.

Why aren’t California’s more price sensitive firms hiring grads directly from the People’s College of Law in Los Angeles rather than from UCLA? Better yet, given non-ABA graduates’ higher bar failure rates, why aren’t firms sending associates to stand around outside LSAT test centers, handing people their business cards and saying, “Send us your LSAT score and your undergraduate transcript, and if we like you, we’ll give you a clerk position. If you like the work, we’ll pay half of your tuition for a correspondence degree, you’ll take the bar, and we’ll give you an associate position afterwards. The benefits: You get paid and trained now, and save money and time. We get to charge our clients less; and the only loser is the overpriced, middleman ABA law school.”

Better yet, they could simply hire people straight out of college (California doesn’t even require that much) and have them qualify for the bar by “reading the law,” which California allows. Firms could do this, but instead, they hire Stanford’s top5%mootcourtlawreviewrequired. Either California’s lawyers are all monumentally bad businesspeople, or student debt isn’t their problem.

On the contrary, debt is a fantastic, time-honored motivator, probably only a notch below holding a person’s loved ones hostage. The threat of financial ruin greatly benefits employers, providing them with willing debt peons who will eagerly overwork themselves to escape their condition. This is why student debt as a political issue is brought up by folks who identify with Occupy Wall Street and not Citizens United.

I don’t mean to close so critically; McGinnis’ and Mangas’ plan would save would-be lawyers’ time and money while probably providing better practical training for lawyers, which are good reasons for states to adopt it, but that’s all it does. The fact that the McGinnises and Mangases (to say nothing of the Winstons and Crandalls, etc.) of the world aren’t saying, “Let’s adopt the California model because it’s proven to make legal services cheaper,” leads me to conclude that they’re arguing from false premises. It will take a lot of courage for the profession to admit that noblesse oblige and low-cost education won’t entice lawyers to serve the destitute and student debt just reduces the standards of living of law school graduates, who have to work harder and pay more overhead to banks or ED to stay afloat, especially if they don’t work as lawyers.

Petitions and Protests

Here’re a few things for you activists to keep an eye on: two petitions and a protest.

There’s one petition going around the Internet asking the House of Representatives to pass a resolution favoring forgiving student loan debt per Michigan representative Hansen Clarke’s proposal (H. Res. 365). It’s close to getting the 90,000 signatures it’s asking for, but there’s room for more.

LawProf of Inside the Law School Scam has started his own petition. While it accepts signatures from all law students and graduates, it’s targeting law faculty and asking them to demand the ABA to require the law schools to provide transparent employment data. LawProf will submit it when one hundred faculty members sign it.

For those of you not into petitions or transparency and prefer direct action, a protest is in pipeline. On October 8, 2011, Dan, a 2009 law grad who operates Highest Education, will be leading a protest against excessive tuition and student loan debt. The venue is Thomas Jefferson School of Law (TJSL) in San Diego, California, because it’s the defendant in 2008 graduate Anna Alaburda’s lawsuit. Alaburda claims TJSL defrauded her, and she’s seeking class action certification. Here’s the link to Dan’s Facebook page, “Rally against The Education Industrial Complex.”

Quick Link: In Japan, Blame for Widespread Bar Exam Failure Placed on Exam, Not Scores of “La Vernes”

Before reading Miki Tanikawa’s New York Times piece, “A Japanese Legal Exam That Sets the Bar High,” you should read Takahiro Saito’s law review article, aptly titled, “The Tragedy of Japanese Legal Education: ‘American’ Law Schools,” in the Wisconsin International Law Journal (2006ish). Saito writes:

In 1985, about five hundred candidates, out of twenty-five thousand, passed the National Bar Examination in Japan. This low passage rate led to strong criticism by some that the examination was too difficult to attract able young people to the practice of law. This criticism sparked a very strange reform in Japanese legal education.

Until 2000, some believed that the best solution to the problem was to increase the number of successful applicants to the bar examination. However, the Japanese government decided instead to import the “American” legal education structure to address the low passage rate problem. The business community endorsed the reform plan because it wanted to increase competition in the lawyers’ market, and the mass media generally supported the reformers due to the endorsement by the business community.

Japan now has more than seventy newly established law schools, although all are still in the two-year preparatory stage. For the 2005 academic year, the number of applicants for most schools is far below that of the 2004 academic year, so some of these schools may close in the near future. The real victims, however, are not the law schools but their students. Most students will be forced to spend approximately four million Japanese yen (US $36,000) on tuition for three years of study. However, fewer than 40 percent of these students will be able to become legal practitioners… (197-198; pdf 1-2)

Before the reforms, like many civil law countries, Japan allowed students to study law during their undergraduate years—sort of like a political science degree in the U.S., people use it in business and other professions if not law—and then sit for the bar exam before going to the law institute. A civil law bar exam requires memorizing the civil code, which is much harder than any U.S. bar exam. As Saito points out, the passage rate was brutal, so some people complained that the bar was too hard, which led to the reforms. As to whether there was an attorney shortage, I’ve seen conflicting evidence, but the main point is that the reforms began due to people thinking the exam was too hard and not to address a shortage. I’m fairly sure that the reform was an outcome of administrative turf fights typical in Japanese politics. However, the Tanikawa piece quotes lawyers who believe there’s now a surplus of underemployed lawyers who are working for loan sharks.

The problem is that when scores of law schools opened, and many of their graduates did not (or could not) pass the bar, it looks really bad for the law schools with low passage rates. Unlike “employment at nine months,” bar passage rates are not stats law schools can juke. People began avoiding them. For whatever reason though, in the U.S. people enroll at institutions like the California’s disaccredited University of La Verne that have awful bar passage rates publicly available. Unlike La Verne, though, the criticism is aimed at the bar exam, not at the institutions for taking in too many students who lacked the aptitude to pass it, unless you talk to Japanese bar authorities.

I wish I could say there’s a moral to this story, besides a warning not to take comparisons between the Japanese and American legal education systems’ problems at face value. The only true commonality I see is that neither country is reforming its professional education system to match demand for professional services. The fact that they can’t even come up with a system that doesn’t fail large numbers of young people after years of study and money is shameful.

La Verne’s Lessons

[UPDATE: The National Law Journal reports that UC-Irvine received provisional accreditation while Elon University and Charlotte School of Law both received full accreditation from the ABA]

The news is in, and as predicted, the University of La Verne lost its provisional ABA accreditation. La Verne’s administrators argue that it was improving, for its first-time bar passage rates went from 34% in July 2009 to 53% in 2010. This is a substantial improvement, though La Verne couldn’t've been responsible for it since all these students graduated at the same time in May 2009. Also, the 53% refers to the 7 out of 12 first-time takers in February 2010 while more recently in July 2010, 46.7% (35/75 first-time takers) passed.The ABA’s accreditation standards are remarkably clear on the topic, and you can see its extensive rules in Interpretation 301-6 and Appendix 3. Since I don’t have data on the bar fates of all of La Verne’s graduates, I’m going to assume the ABA followed its standards, yet even if we ignored them and took La Verne’s claims at face value, this still isn’t a glass half-full story of the ABA following its own rules and holding a law school accountable for its poor performance. Rather, it’s a glass half-empty story of the indie California legal education system’s tolerance for widespread bar exam failure.

Consider the results table for the July 2010 CA Bar exam:

California’s own law schools do far worse than the ABA ones, and La Verne was a California law school; it was founded in the early 1970s and sought ABA status only in the last decade. It just kept behaving like a California school. Look at La Verne’s LSAC data. We can see its incoming students didn’t have the best LSAT scores, which resembled those of California’s least-regarded ABA law schools, but they did improve over time:

Incoming Class	75% LSAT	Median LSAT	25% LSAT
2005-2006	150	148	147
2006-2007	154	150	149
2007-2008	153	151	149
2008-2009	155	151	149

(I exclude GPA data because they’re a wash: in the age of grade inflation, we have no idea what La Verne’s students’ grades meant, especially when majors and institutions’ reputations differ so widely.)

You can criticize the LSAT for all sins under the sun: inaccurately prophesying law students’ potential (perhaps poor scorers have good business acumen or leadership skills), inaccurately assessing first-year performance (law school classes have narrow LSAT ranges and grade on curves), etc., but it’s safe to say that if you can sit for five hours and fill a few hundred bubbles on a Scantron sheet correctly, you’ll probably be able to do the same on the MBE portion of a bar exam. The eyeball correlation between California’s ABA law schools’ US News rankings and their bar passage rates bear this out, for US News leans heavily on LSAT scores to evaluate law schools (though admittedly bar passage rates factor in too so there is some feedback). Six of California’s ABA law schools had below average bar passage rates (<68.3%) in July 2010 for first-time takers, and all but San Diego report LSAT scores similar to La Verne’s.

Law School	’07-’08 75% LSAT	’07-’08 Median LSAT	’07-’08 25% LSAT	’07-’08 Enrollment	’05-’06 Enrollment
Golden Gate	155	153	151	654	759
Southwestern	157	155	153	1,011	964
Thomas Jefferson	152	149	147	792	770
Whittier	155	N/A	151	506	673
La Verne	153	151	149	354	265
Total				3,317	3,431

Ultimately, most of this was La Verne’s fault. Upon reaching provisional ABA status, La Verne’s enrollment went from 265 in 2005-2006 to 392 in 2008-2009, nearly 50% increase. Meanwhile, tuition for full-time students went from $30,810 to $36,320 (+17.9%). Neither of these moves was warranted: required bar passage rates are based on percentages not a headcount, and tuition inflation isn’t necessary because US News doesn’t rank provisionally accredited law schools.

So what went wrong for La Verne? The answer is obvious: The university expanded too quickly and took in too many students who didn’t have a good chance of passing the bar. At best, it would’ve achieved rates such as Golden Gate’s, Southwestern’s, Thomas Jefferson’s, and Whittier’s. The lessons to take from this are:

1. If California’s deregulated system is to offer an alternative to the ABA’s selective one, it has to show better results or change the metrics. That may mean moving from a generalized bar exam to multiple exams for specialized practice areas, or it may mean requiring universities to place an equity investment in their students to prevent enrolling applicants who have a low likelihood of obtaining a license, or it could even mean shifting even more heavily to an apprenticeship model than it already does. However, masquerading as ABA-lite with poorer performance on existing metrics is embarrassingly wasteful.
2. La Verne’s experience is a fluke that does not signify the end of ABA law schools as we know it. There may be too few people with bar exam aptitudes living in or willing to move to Ontario, CA, or it was competing in the wrong market, that is, against TJSL, Whittier, etc. Nonetheless, so long as proposed law schools entice small numbers of quality students over opening their doors to anyone who can pay increasing tuition, they’ll make the ABA’s cut. Expand after full accreditation, not before. Therefore, since UC-Irvine’s inaugural class has a median LSAT of 167, expect its students to pass the CA bar and for the school to receive ABA accreditation without worry. Unlike La Verne, Irvine’s strategy of siphoning off standardized test-savvy applicants from the California pool has a better chance of success than competing with the glutted 153 LSAT market. Although, we’ll see whether Irvine’s more recent classes that aren’t getting free rides are similar caliber. Whether any of them will have jobs on the other hand…
3. And now the rub: if LSAT performance correlates highly with bar exam performance, then, pray, what value does law school really add? Wasn’t the original point of law schools to train students to pass the bar? The term “law school” suggests that’s the case. Either the people who go to the best law schools could’ve just self-studied their way into passing the bar, or it doesn’t measure the value-added that law schools provide in which case we’d need a better exam. Regardless, if we’re going to keep our top-heavy legal education system as it is, rather than accredit law schools based on bar exams beyond their power and after occupying three years of their students’ lives, the ABA could just save everyone the trouble and require a minimum LSAT score for admission. Instead, the ABA is taking the opposite steps by allowing law schools to admit applicants who don’t take the LSAT.

La Verne, of course, plans to seek expedited reapproval for provisional accreditation, so this is not the last we will hear of the Inland Empire’s lone law school.