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Dealing with the crash, Pt. 4 (faculty hiring edition)

[ 35 ] October 9, 2013 |

This post is part of a series.

Next week Washington’s Wardman Park hotel will be invaded by 800 or so people looking for jobs as law professors, at the annual hiring conference put on by the Association of American Law Schools. “Experiential learning” is the buzz phrase of the moment in legal academia, as law schools deal with the latest wave of criticism that claims legal education doesn’t do enough to prepare graduates to actually practice law. (Such complaints from the profession are perennial: about every 15 years or so some commission or task force issues a call to make legal education more practical, which occasions a brief interlude of chin-scratching, and then is promptly forgotten).

Now the crisis of the American law school has almost nothing to do with the fact that law schools don’t produce “practice-ready” graduates, whatever that phrase is taken to mean. As I wrote elsewhere:

Producing “practice-ready” graduates (to the extent this could be done within the context of institutions that even loosely resemble current American law schools) does nothing about the problem that there aren’t nearly enough legal jobs that would allow those graduates to practice their newly-acquired skills, and even fewer legal jobs that pay enough to justify the current cost of legal education. And the only thing producing law graduates who are better prepared to practice law will do to the basic economics of the legal services industry (assuming this could somehow be done without raising the cost of legal education) is to make new lawyers slightly better off than they would otherwise be relative to experienced attorneys, while doing nothing for the economic circumstances of the profession as a whole.

It appears the great hope of at least some people who advocate a more practically useful legal academic curriculum is that turning out tens of thousands of new attorneys every year who are ready to “hit the ground running” will drive down the cost of legal services, thus creating new markets for those services, and thus more legal jobs. I don’t understand how this theory is supposed to work in practice. For one thing, it’s difficult to envision how moving law school toward a more experiential, practice-based, clinical model is going to make legal education less expensive, again at least within the confines of anything even vaguely resembling the contemporary American law school. Any reform that doesn’t make legal education less expensive while reducing the number of new attorneys is doing nothing about the real crisis, which is that law school costs far too much relative to the number of jobs available for attorneys.

After all, given the basic structure of American legal education, making that education more clinically intensive would be even more expensive than maintaining the present model, which remains centered on tenure-track law professors teaching relatively large classes. (The simplest way to drive down the cost of legal education would be to make the tenure-track faculty teach the same number of classes their predecessors were teaching in the 1970s. It’s true this might result in 5000 rather than 10,000 law review articles being published per year, but under the circumstances this might be a price worth paying).

Furthermore, there’s actually no evidence that legal employers — and especially the kinds of legal employers who pay enough to make the cost of law school an arguably rational investment — put any value at all on the relative practicality of graduates’ legal education. As Robert Condlin notes in a new article:

No one would dispute that the United States legal system has a labor market problem, but law schools cannot revive the labor market, or improve the employment prospects of their graduates, by providing a different type of instruction. Placing students in jobs is a function of a school’s academic reputation, not its curriculum, and the legal labor market will rebound only after the market as a whole has rebounded (and perhaps not then). The cause of the present troubles is a lack of jobs, not a lack of graduates (of any kind), and producing more “practice ready” graduates will have no effect on the supply of jobs. The proposal is a spectacular non sequitur to the present troubles.

Indeed it’s hardly an exaggeration to note that the extent to which law schools seem concerned about producing “practice-ready” graduates is almost perfectly inversely related to the employment prospects enjoyed by their graduates, at least if we measure this by who schools choose to hire onto their tenure-track faculties.

Despite the fact that almost every law school this side of New Haven is now slathering its web site and other promotional materials with claims that it provides an impeccably “practical” (as well as, of course, a sophisticated theoretical) legal education to its charges, the vast majority of schools continue to put no value — or indeed place what sometimes appears to be an actively negative value — on hiring faculty who have actually practiced law.

Consider the backgrounds of the people who took entry-level tenure track jobs at ABA-accredited law schools this year:

28.1% had no legal practice experience of any kind.

Nearly three out of five new law professors (58.2%) had between zero and three years of practice experience. Most people in this category who had practice experience had been junior associates with large law firms. (Being a junior associate in a large law firm is, from a perspective that cares about producing “practice-ready” law grads, about the worst legal job that a future legal academic could have. A new lawyer working in a DA’s office or as a public defender gets more practically useful litigation experience in his or her first six weeks on the job than the typical BigLaw associate gets in three years).

Only 13.5% of entry-level tenure-track legal academics had more than six years of legal practice experience, and only 7.3% had ten or more years of experience.

For all law schools, the mean amount of experience practicing law for new faculty hires was 3.6 years. This number declined dramatically among higher-ranked law schools: at top 25 schools, the median amount of practice time for new hires was one year, while the mean was 2.2 years.

If we define an experienced lawyer as someone with more than six years in the practice of law, then American law schools hired far more people this year with advanced degrees in the humanities and social sciences than experienced lawyers.

In sum, leaving aside whether it makes sense for law schools to dedicate more resources to attempting to produce “practice-ready” lawyers, it’s clear that the current tenure-track hiring practices of law schools provide no evidence that law schools are in fact doing so.

Comments (35)

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  1. Casual Observer says:

    There is a disconnect between the educators and the profession. We would never stand for a medical school where the majority of faculty had no connection to the practice of medicine. That’s not to say that academics have no place in professional school — they certainly do. But professional school is “professional” school because it prepares practitioners.

    Law faculty should ask themselves these questions to prove the point of how far off the rails we’ve gotten. Who teaches torts/contracts/employment/estates/family law/criminal law and procedure/real property/etc. at my school? Now ask yourself, suppose I was in a car accident/needed a contract/thought I was being retalliated against in employment/needed a will/needed a divorce and or custody agreement/got a DUI/or needed to close on a house. Would I hire any of those people to be my lawyer?

    I submit to you that the honest answer would be “No” in 90+ percent of the cases. And therein lies the problem.

    Academics love teaching conlaw, conflicts, jurisprudence, first amendment, and the “law and” courses because they like to consider themselves big thinkers. But law is a profession — and a profession that is practiced. Almost none of the faculty have the chops to make it as a practitioner in the substantive fields of law. How can they possibly teach practitioners to be good practitioners in these fields?

  2. Marek says:

    All true, but it is not the tenure-track profs who teach the practical courses, is it? In my limited experience, adjuncts are hired on the cheap to show 3Ls where the courthouse is.

  3. Law Student says:

    The idea that law school can produce “practice ready graduates” is a fantasy created by academia to take attention away from the real issue. That at many schools less than 50% of its graduates will get a legal job of any kind.

    • BH says:

      Academia did not create the fantasy of “practice ready graduates”. That phrase was coined by critics of law schools who decried law schools’ failure to bring that chimera into being.

  4. MacK says:

    This pretty well sums up a lot the problems. Most importantly, the US cannot absorb 40,000+ law graduates a year – the jobs don’t exist no matter how well trained they are.

    Lawyers have been griping for decades about legal education not equipping students for practice – they always will. However, I am quite dubious about the trend towards more clinics, mainly because I regard them as offering a cosmetic form of experience – “you did a clinic – whoop-de-doo. And what did you do at that clinic” “I drafted part of A complaint/document request/interrogatories” or “I explained A lease to someone.” Work in firm and you will be doing 2-10 of those every week or two – so how much does the clinical experience really mean?

    What matters to me when looking at a new law graduate is the comprehensiveness, practical orientation and quality of that law students education. I want to know that the new JD understands a wide amount of law – from criminal to basic labor law, intellectual property, antitrust, not just contract law but contract construction. That is what law schools have abandoned with the infamous “[insert professor’s non-legal current enthusiasm] & the law” courses and seminars – instead of say, a course in a substantive area of law. Inter alia, it is also the reason why I do not see it as a good idea to cut law school to 2 years from 3 – I would prefer instead to use the extra time wisely to make the education more comprehensive.

    Cost cutting is a different issue. I agree that getting professors to take on a decent teaching load would lower costs (if you laid off ½ the faculty too), but that alone will not solve the law schools or US academia’s cost problem. The big cost drivers at US colleges and universities are embedded in the culture and are noticeable to anyone who goes to a US college or university and also to non-US, such a Cambridge, Todai, Oxford, Imperial, Science-Po, etc. US colleges and universities simply have a culture of extravagance – marble where other have linoleum, hardwood where others have formica or plywood, custom architectural brass fixtures where others have standard off the shelf lights, etc. When I was a Georgetown 20+ years ago there was a minor scandal when someone leaked the invoices for the flowers ordered for a summer conference of law school deans – it was about $14,000 – close to a year’s tuition to beautify what was then somewhat of a bunker … but still a year’s tuition!!

    Tuition has soared at US law schools and in colleges and universities at a rate vastly more than the rate of inflation for decades because there has been no real culture of restraint, of asking whether something is really necessary to the mission of the institution, of trying to get good value, of trying to even control tuition. This is not something that is easy to change because it is engrained in the minds of most members of the institution.

    Changing that culture is going to be tough and it is going to hurt a lot

    • Law Student says:

      One reason cost will not go down is because IBR caps loan payments at a percentage of students income above the poverty level regardless of how much they borrowed. This makes how much a student borrows not that important to the student. And than the debt can be forgiven after 20 years. In other words, the rest will be picked up by the US taxpayer. So the real issue then becomes when does congress want to start pushing back against the academia. I think it will be quite a while.

      • MacK says:

        I don’t disagree. Concern about how the student loan system is driving costs is cross-party; it is also the case that academia is well connected with the Democratic party and less well connected (but still well connected) with the Republicans. That means that to clean up the student loan system it would require a bipartisan approach and one that eschews the usual shibboleths.

        The US student loan system is an ideological and practical mish-mash. It is statist in distributing money, but claims to be free-market with what schools do with it – it is neither a left wing system or a right wing system but a bizarre combination of the worst aspects of both.

        However, that student loan system, it very profligacy, is what has created the cost-indifferent culture in US academia … and cultures are hard to change.

        • Sooner says:

          The student loan issue essentially creates an inelastic demand (going back to econ undergrad here, so perhaps not completely accurate). Even with all the negative news, the fact there are still more applicants than seats, given the explosion in seats, backs this up. Costs, outcomes, a little more ‘transparency’; factors that are having some effect, but the pace of change is so much slower than it should be.
          This situation can be found anywhere a good is either a necessity, enjoys a protected guild of sorts, or the customer doesn’t pay directly, so that the true burden of cost isn’t felt. Energy, health (a mix), finance, defense, insurance, college, etc.; these industries all enjoy excess.
          The dream that we “shouldn’t focus on who gets how much of the economic pie, but concentrate on growing the pie” continues to permeate even after facts show that what little “pie growth” there has been over the last 30 years, the additional slices have all gone to the rich. When will people get it through there heads that barring some bizarre circumstance that somehow gives America an incredible competitive advantage, the economic pie will be growing at a very slow rate? So that there is only a certain amount of money to go around, and therefore public policy should have a say in how much goes to certain sectors of the economy that enjoy one of the protected categories mentioned above.
          It’s not the “market”, it’s selfish people being assholes.

      • RSP says:

        And what more students need to be aware of is that, under current rules at least, that forgiveness is not “free” to the debtor. She will have to pay income taxes on the forgiven amount.

        Personally I think that given the ridiculously high interest rate charged on federal loans, all forgiveness should be tax free but I don’t hold out much hope for that change.

        • PSP says:

          Unless they are balance sheet insolvent immediately prior to the forgiveness. The forgiveness of debt income may not be as big a problem as predicted.

          • Unemployed Northeastern says:

            Yeah, but if law school grads are balance sheet insolvent 25 years after graduation, then Simkovic’s “Million Dollar Degree” paper is wrong, so there’s that to contend with;-)

      • Unemployed Northeastern says:

        Yes, assuming:

        - the continuing availability of unlimited GradPLUS loans

        - the continuing eligibility of unlimited GradPLUS loans for IBR/PAYE

        - IBR & PAYE won’t be repealed (as a few in Congress are trying to do right now to PSLF)

        I wouldn’t consider it outside the realm of possibility for any or all of these things to occur well before anyone is eligible to have their student loans forgiven. Remember, it was not so long ago that law school student (with an assist from unscrupulous deans) were saying, “Well, in the worst case scenario, at least most of my loans are private and can be discharged in bankruptcy.” Until 2005, when suddenly they weren’t dischargeable anymore. Funny how law schools didn’t make a peep when that happened, despite the huge detriment it caused their students (remember, fewer than 70% of grads were landing FT, LT, JD-required jobs even during the good years). I wonder if the law schools’ silence had anything to do with the fact that they jointly owned the student lender Access Group, which was taking those private loans and bundling them into billions of dollars of SLABS (Student Loan Asset-Backed Securities)?

  5. Casual Observer says:

    I must say that I’m impressed with the clout that law faculty have. The ABA’s proposed reform includes more opportunities for nonlawyers to practice law — something that no one is advocating — while ignoring the output problem.

    How is the ABA that corrupt or oblivious? How do law faculty have that much pull to bury the issue and keep the federal loan fat flowing?

    • Unemployed Northeastern says:

      The ABA Section on Legal Education is perpetually inundated with fourth-tier law school deans. The fellow who nixed salary disclosures from the “new” ABA reporting regime back in 2011 was none other than Dean O’Brien of New England Law Boston. You know, the guy who gets paid $860,000/year to oversee a law school that costs >$200,000, has an acceptance rate just shy of 90%, and where barely 1 in 3 graduates finds a proverbial full-time, long-term, bar license-required job.

      In other words, the ABA is that corrupt and oblivious, and all of its pronouncements will ultimately only be for the good of law schools. Ignore the output/jobs problem = good for law schools. Allowing law schools to offer more non-JD course offerings for non-lawyers = good for law schools. Etc, etc, etc.

  6. Satan Mayo says:

    It appears the great hope of at least some people who advocate a more practically useful legal academic curriculum is that turning out tens of thousands of new attorneys every year who are ready to “hit the ground running” will drive down the cost of legal services, thus creating new markets for those services, and thus more legal jobs. I don’t understand how this theory is supposed to work in practice.

    This would work in practice if tuition at law school was $1000 per semester. There’s plenty of people out there who need legal advice.

    • Kyle C says:

      But what you need is plenty of people who are willing to pay a middle-class hourly rate for legal advice.

      • Satan Mayo says:

        It seems like a lot of people enter law school idealistically. Thinking “Surely if I just want to be a sort of social worker, I will be guaranteed a job doing THAT, right?” Which would be true if it was possible to be a social worker with law school debts.

        • Kyle C says:

          [I really meant "able" rather than "willing" above.]

          Definitely. And on top of the compensation gap, being a social-worker-type-lawyer is really, really hard, both in terms of the multiple, changing legal frameworks and ticky-tack rules you need to master and dealing with clients from the proverbial other walks of life.

  7. justme says:

    This is part of the larger phenomenon that teaching ability plays almost no part of the hiring and promotion of law faculty. What is most valued in legal education – scholarship and pedigree – have no value to the students who pay the salaries of the faculty.

  8. Curious says:

    Paul, I get the impression that “too much” practice experience is an affirmative strike against a candidate, even if s/he checks most of the other boxes (top school, clerkship, publications, etc.). Do you think that’s right? If so, why?

    • Paul Campos says:

      Yes it is, or to put it another way substantial practice experience is more often a negative than a positive.

      Law faculty with conventional backgrounds who acknowledge this will usually rationalize it as a form of skepticism regarding whether someone who has spent 10+ years as a lawyer is sufficiently “serious” about academic values, as opposed to bailing out of the strains of law practice into a soft landing spot.

      I suspect another driver of this preference is that all but the most arrogantly clueless legal academics who have conventional backgrounds (i.e., little or no practice experience) feel at least some semi-conscious anxiety that, in regard to their professional self-presentation as people who know a lot about being lawyers, they’re basically faking it.

  9. Richard Hershberger says:

    “Next week Washington’s Wardman Park hotel will be invaded by 800 or so people looking for jobs as law professors, at the annual hiring conference put on by the Association of American Law Schools.”

    How many positions are these bright-eyed aspirants competing for? I would think that law schools at this point would be eager to lose faculty by attrition, and wouldn’t be looking to fill those positions unless there absolutely was no one already on the faculty to fill the hole.

    • Paul Campos says:

      Before the crash, ABA schools were hiring around 150-160 entry level TT faculty per year. This declined last year to a little more than one hundred. Everyone expects it will be lower, perhaps much lower, this year.

      As to why schools are hiring at all right now, one reason is that in higher ed today administrators inhabit a culture in which success is largely measured by whether you spent more money this year than last year. So failure to expand, or even worse, actual contraction = failure.

      Some schools have no doubt worked out deals with their central administrators that they get to hire entry level people to the extent they can do so and still cut costs, which at least in the short term can be done by replacing senior with junior people — and lots of senior people are getting bought out right now with early retirement packages and the like.

      As for the long term, I suppose they’re taking Keynes’ most famous aphorism to heart.

  10. JM says:

    Paul, despite being famed for your cynicism, I am sometimes surprised by how naive you are.

    “Practice-ready” is nothing more than a marketing ploy implemented by schools with the goal of making law school seem like a more practical investment. You give them too much credit by suggesting it is sincere.

    Education and industry (or profession, I suppose) are totally separate and unrelated phenomena in law. That’s why there has been such a proliferation in internation law and human rights law. Stupidly, the prospectives and their parents think that because a school offers it, and it costs so much, that it must lead somewhere. They could not be more wrong.

  11. Kyle C says:

    Point, meet JM. JM, point.

  12. dybbuk says:

    It is extremely irritating that “practice-ready” has become the new buzzword, and that legal academics think that they can attempt to address practice-readiness in isolation from the far larger, and intertwined, problems of the tuition spiral and the lack of jobs.

    Still, there are a few things that appeal to me about practice-readiness:

    1) For probably the majority of lower-tier grads, their options have diminished to these: (a) do document review projects and low-bono to help defray some of the expenses of the JD and put food on the table; or (b) accept that the JD was a total wipeout, indeed a mark of shame on their resume, and make do as best they can.

    Given these dismal options, it probably would be nice if these grads at least have the training and local contacts to do, say, a foreclosure defense, or a drunk driving defense, or a contested divorce.

    2) Once the desirability of practice-ready grads is conceded, a radical question arises: why have law schools at all– at least outside the 14 or so that still offer a genuinely respected credential? The key to practice-readiness is learn-by-doing. Why can’t lawyers be trained, rather than taught, via some modified and updated version of the apprenticeship model that gave us Lincoln, Darrow, and Robert Jackson? (Cue Veblen: “[T]he law school belongs in the modern university no more than a school of fencing or dancing”).

    3) This is total conjecture– but I believe that nonlaw employers would at least respect a JD that represents identifiable skills. No employer despises skills, even if they are not immediately useable. However, they do despise a degree that signifies entitlement, rather than skills, and that seems to announce: “Reward me, for I am a member of a super-cerebral elect.”

    • MacK says:

      dybbuk:

      At the heart of the problem with the apprentice system (UK and Irish trainees) is why we decided as a policy so far not to take any. You can only learn by doing – by doing things. We have too narrow a practice to adequately train lawyers- we see this even to an extent with out juniors – they are very good at what our main practice is … but the lacunae in their legal knowledge are a vulnerability that requires supervision.

      Even Magic Circle and BigLaw alumni increasingly are weak at areas outside their narrow specialty. That may sound irrelevant until you have a case involving semiconductor fabrication in which employment law and misrepresentation, not to mention ultra vires acts have a major bearing, or a major project finance case with a side of environmental law and international arbitration, a patent case with big antitrust and regulatory issue, an employment case with international legal issues, etc. IP lawyers generally know nothing about TUPE transfers, but they can become very relevant… If you do not know this stuff it is hard to spot major issues intruding into a matter you are working on.

      That was one of the benefits of law school – it was supposed to be a comprehensive grounding in many subjects … it has ceased to be so.

      • dybbuk says:

        I take your point, MacK. But I did not assert, and do not really believe, that practical-skills training (or alleged training, such as “practicums”) provides grounding for the highly sophisticated and intricate sorts of representation you describe in your post, the kind of work that trusted Big Law associates do.

        Indeed, the experience of Washington & Lee and Indiana U. suggests that Big Law hiring partners are singularly unimpressed by (alleged) skills training.

        However, for the vast majority of law grads, there is barely any possibility that they will ever participate in major finance project cases, cases involving semiconductor fabrication, or the other matters you describe.

        What will happen to the grads of bottom-first, second, third, and fourth tier schools in light of the contraction of entry-level public sector law jobs, a contraction that has taken on a cast of permanence? These are the vast majority of grads, the ones who will never be interviewed by a Big Law or established boutique firm. If they do not receive the training, contacts, and confidence to perform legal grunt work where there is still a buck or two to be made– a contested divorce with a child custody issue, for example–then law school will be an utter, 100%, wipeout for them.

        • MacK says:

          Dybbuk:

          the vast majority of law grads still need a comprehensive legal education. They still need a good grounding in employment law, administrative law, statutory and contractual construction, family law, etc. Indeed the closer a lawyer is to solo practice the broader their knowledge of the law needs to be.

          Part of my gripe about the lack of practice experience of law professors is that experience is what teaches you the need to integrate so many areas of law into the advice you give a client – any client.

          Regards,

  13. Orin Kerr says:

    You probably link to this somewhere, but does practice experience count clerkships? Also, does the tenure-track figure include clinical professors on the tenure track? If so, I suspect that explains the higher-than-I-would-have-expected figure of 20% profs with more than 6 years of practice experience.

  14. [...] Campos at Lawyers, Guns and Money, raises the point: Next week Washington’s Wardman Park hotel will be invaded by 800 or so people [...]

  15. High Plains Lawyer says:

    In the good old days, when I graduated from law school, just about everyone got jobs. They might not have been great jobs. Most of them certainly did not pay well. But, then again, we did not have to service huge student loans because tuition was inexpensive.

    In those good old days, newly minted attorneys would go to work for law firms, where junior partners and senior associates would constantly yell at them for making dumb ass mistakes. This is how young lawyers learned how to practice law; by having older lawyers berate them for their incompetence.

    But, those good old days are long gone and half the people graduating from law school are not getting jobs with firms or public agencies. As a result, they do not have the good fortune of having senior lawyers criticizing their work and making them do things right. That is, no one is teaching them how to practice law.

    There are two ways a lawyer learns how to practice law. The first way is to have some one tell them. The second way is trial and error. The newly minted solo practitioner, who cannot find work with a firm, experiments on his clients, often making silly mistakes. If he is not disbarred for his incompetence, and not sued for malpractice, he will eventually learn how to practice law.

    All in all, it takes about a year or two of practice to learn the basics. I am not talking about how to be really good, but simply learning what is what and who is who, and not making stupid mistakes which will get one in trouble.

    Now, if law schools were to actually hire professors who knew how to practice law, and have those professors mentor students in real or pretend cases, those students could pick up experience comparable to being yelled at by a senior associate.

    Projects could include (1) drafting a complaint for dissolution of marriage, (2) drafting a deed, (3) drafting a will, (4) preparing a set of discovery requests for personal injury or real estate fraud, (5) preparing a set of bankruptcy paperwork, (6) taking a deposition, (7) doing basic hearings for (a) a suppression hearing, (b) a final orders hearing in a dissolution of marriage, (c) a shelter hearing in a child protection case, (d) a 341 hearing in bankruptcy.

    Advanced work would include doing evidentiary hearings in dissolution of marriage, drunk driving, child protection, and perhaps a basic consumer protection case. In other words, they would do exactly the type of work they would be called upon to do in everyday practice.

  16. [...] Campos, on the other hand, thinks in terms of well worn and at this point quite obsolete lawyer “employment” models.  Success is defined solely by obtaining “employment” with an income high enough to [...]

  17. Jaded says:

    This complicated problem stems from too many low quality law schools in the market, a fact that no one seems comfortable talking about in the open. The business models of these low end schools is to charge high tuition, bribe some smart students with scholarships for marketing purposes, and use profits to hire “professors” with Ivy League credentials but pitiful work experience again for marketing purposes. This entire charade is artificially propped up by federal loan subsidies. Students continue applying to these institutions because they’re chasing the dream of what used to be the prestige of being a lawyer. Every year they continue to fuel their revenues at the expense of that image, the profession sinks another few feet deeper into the mud. If lawyers and higher quality law schools do nothing, their profession will be left in shambles by the time these bottom feeders are done.

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