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Myths of Sisyphus

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Last spring I participated in a “debate” with Martin Katz, dean of the University of Denver’s law school, at a bar association event. It turned out not to be much of a debate: I presented the argument I published subsequently in my article The Crisis of the American School, and Katz, who had read a draft of the article, said he basically agreed with that argument.

I don’t actually know Katz, but from the few encounters I’ve had with him over the years, he seems like a very bright guy, as well as a pleasant, charming person. These qualities naturally made me want to think well of him. On the other hand, because I realize such qualities are useful if you’re a politician, or a university administrator, or an investment banker, or a serial killer, etc., I’m also aware that as a rational matter being smart and pleasant and charming has exactly nothing to do with one’s character, or lack thereof.

So reading this made me both sad and angry. It should make everyone who cares about reforming legal education both sad and angry, because it’s really bad stuff. (A distinguished colleague from a distinguished law school located outside the great state of Colorado reacted to it thus: “This is insane–so many misstatements and omissions . . . Their selective reporting violates any reasonable standard of professional ethics or academic integrity. Wow.”)

Reading it also made me realize that, for those of us in legal academia trying to do something about the mess we’ve collectively created, every morning our rock awaits us. I don’t have the patience to go through the whole thing line by line, although practically every sentence in Katz’s argument features some sort of statistical sleight of hand or methodological chicanery that does him no credit. To put it bluntly, becoming a law school dean has either destroyed Marty Katz’s reasoning skills, or his willingness to put intellectual integrity ahead of the felt necessities of the time.

Here I’ll focus on Katz’s treatment of DU’s employment and salary data for the class of 2011. Katz argues that legal employment opportunities for new law graduates are on average much better in Colorado than in the country as a whole:

The math in Denver and Colorado is very different. Here the Colorado Department of Labor and Employment projects that there will be roughly 550 lawyer job openings per year over the next few years.[13] This figure understates the job opportunities for JDs in the state, since it only counts jobs for which bar passage is required. (While some critics scoff at jobs that do not require bar passage, many law school graduates seek and enjoy such jobs. Even during the boom years, when law graduates had fewer constraints, roughly 16% selected jobs for which bar passage was not required.[14]) But even counting only the 550 bar-passage-required jobs projected each year in Colorado, the situation looks good. When you consider that our state’s two law schools, the primary suppliers for Colorado’s legal market, produce fewer than 450 new law graduates per year, the math here looks favorable – more than one lawyer job for every law graduate in Colorado. And most of those jobs are in Denver.

Of course lawyers move across state lines. So a comparison of in-state law job openings to in-state law graduates may not fully capture the available jobs situation. Because Denver is such a desirable place to live and practice law, graduates from out of state law schools come here for jobs as well. In 2012, roughly 1,000 people passed the Colorado bar exam. However, because of our strong networks in the Denver legal community (roughly half of the practicing lawyers are our graduates) and our strategic plan designed to produce practice-ready lawyers, our graduates have a strong advantage in competing for jobs in this market.

This argument is weak well past the point of disingenuousness. Presently about 1100 people pass the Colorado bar each year, so the ratio of available legal jobs to annual bar passers is two to one. That figure should daunt the most special of snowflakes, but the actual situation is far more problematic than that ratio suggests.

First, lawyers from nearly 40 states can waive into the Colorado bar if they’ve been practicing for at least five of the last seven years, so the out of state competition for available jobs is hardly limited to out of state people who pass the bar exam. (Recently, I wrote a letter of recommendation for a 2011 CU grad who was trying to get an “entry-level” DA job. The only entry-level feature of the job turned out to be the pay — $48,000 – as it ended up going to a lawyer who had been a DA in a Midwestern state since 2005, and who of course didn’t have to take the Colorado bar to get the job).

And newly available legal jobs don’t just go to experienced lawyers from other states. Some portion of those approximately 550 new jobs for lawyers this year will go to licensed Colorado attorneys who are not currently practicing law, and who have enormous advantages over new graduates in the struggle for scarce positions (For one thing they have actually practiced law, as opposed to being – supposedly — “practice-ready”). In other words, the phrase “new jobs for lawyers” is far from synonymous with “jobs for new lawyers.”

As for the claim that “many law graduates seek and enjoy” non-law jobs, there’s an easy way to test this proposition, which is to look at the employment statistics at a law school where almost all graduates have the choice of taking a job that requires bar admission, and seeing how many choose a “JD preferred” or completely non-legal position instead. For example, in the Stanford class of 2011 a total of nine people took JD preferred jobs, while one took a non-legally related professional position, and no one took a non-professional job. By contrast at DU, 82 graduates took such jobs (the percentages for the respective classes at the two schools who took non-bar required jobs are 5.2% and 28.6%).

With the occasional exception of the person who enrolls in law school to study international sports law in order to become Leo Messi’s agent, people go to law school to be lawyers. Perhaps the most troubling aspect of Katz’s argument is that, as he’s well aware, there’s no need to compare the total number of available legal jobs in Colorado to the total number of DU and CU law grads in order to speculate about how many local law graduates get such jobs. He knows the answer to that question: in the class of 2011 140 of 287 DU graduates got full-time “long-term” — meaning with a term of at least year, so this counts state district court judicial clerkships and the like — jobs requiring bar admission. (Almost everyone else in the class who was listed as holding a bar-required job nine months after graduation was in a short-term part-time position funded by the school itself).

Katz’s discussion of the “average” salary of DU law graduates is also problematic. Katz asserts that the average salary of 2011 DU grads nine months after graduation was $70,922. He even gives the impression that he’s being conservative about this, since he then makes the same adjustment NALP now makes with its salary data, which attempts to correct for the higher reporting rates for high salaried positions, and asserts that with this adjustment the average salary becomes $66,713 (What NALP does to create its “adjusted mean” salary figure is to assume that, for example, everyone working for firms of two to ten lawyers is making the same average salary as the 35% of people working for such firms who do report their salaries. This is supposed to correct for the skewing of salary averages that takes place because, by contrast to small firms, 93% of big firm salaries are reported. Needless to say a lot of can openers are being assumed in all this, as there’s every reason to believe that the reported salaries within cohorts are not representative of the non-reported salaries within those cohorts).

But how many 2011 DU law graduates were actually making $71K or $67K in February of 2012? We can’t know the exact answer, but we can make a pretty close approximation. 39% of the class had a salary reported, with a median of $57,500, so we could begin by observing that 19.5% of the class was reported to have a salary of $57,500 or more. Looking at the available data in more detail, the following graduates almost certainly weren’t being paid what Dean Katz characterizes as the “average” salary:

19 unemployed graduates.

3 graduates whose employment status was unknown.

5 graduates who went back to school.

4 graduates who started solo practices.

46 graduates working for firms of two to ten attorneys. (In Colorado these jobs usually pay between $35,000 and $50,000).

73 graduates working in various public positions (the 75th percentile for the 39 reported salaries in this group was $53,000).

28 graduates working in “academia” (26 of these jobs were both short-term and part-time).

59 graduates working in “business and industry.” (It’s rare for a new law graduate to get an in-house legal job, and even rarer for such a graduate to get a high-paying non-legal job. Again for comparison purposes a total of nine 2011 Stanford graduates took “business and industry” jobs, and Stanford is one of a tiny handful of schools that does place a few graduates each year in high-paying consulting jobs and the like).

This leaves the 32 graduates working for law firms of more than ten attorneys. How many of these people were making what Dean Katz is characterizing as the “average” salary of a 2011 DU graduate? We can assume that the 14 graduates working for firms of more than 50 attorneys were. Nine graduates were working for firms of 11-25 lawyers, and nine others got jobs with firms of 26-50. Using NALP national averages for the class of 2011, we can estimate that three people in the former group and six in the latter were making at least $70,000.

So, by this estimate, it’s likely that somewhere around 23 of DU’s 287 graduates (8% of the class) were making $70,000 or more. Now this estimate might be incorrect. It might be 10% of the class. It could conceivably be 12%, if for example one assumes that a dozen of the “business and industry” jobs paid at least $70,000 (This is extremely unlikely in my view. Note that one graduate reported a salary of $350,000 – a figure that by itself raises the “average” reported salary for the class by nearly $4,000, and which suggests none of these figures should be considered models of scientific accuracy).

But by no conceivable stretch can $70,000 be characterized as an “average” – if by average one means in any way typical – salary for 2011 graduates of Dean Katz’s law school.

The saddest part of all this is that Dean Katz knows full well how misleading his presentation of these statistics is. This wouldn’t necessarily be the case with every legal academic: there are people on law school faculties who don’t know the difference between a mean and median, and who believe that salary data regarding graduates are comprehensive and reliable. Whatever else one might say about him Katz –who was a partner at a big Denver law firm before becoming a legal academic — isn’t a blissfully clueless idiot.

What he is, I’m guessing, is increasingly desperate. And desperate people do desperate things.

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