The legal profession and legal education are navigating a changing legal services marketplace. For law schools this is a daunting challenge. As “academicunits” within universities, law schools have become havens for research and scholarship that attract J.D.-Ph.D.s with little or no experience as practicing lawyers. Lawschools, however, also remain the gateway to the legal profession and the primary context for formation of professional identity of their graduates. With this academic-professional duality increasingly shifting toward the academic and away from the professional, it was not surprising that the book Educating Lawyers: Preparation for the Profession of Law, identified shaping professional identity as the area in which legaleducation needs the most improvement. 1

Instilling a sense of professional identity is difficult, however, when law schools themselves fail to model behavior reflecting the highest standards of professionalism – a willingness to sacrifice self-interest in serving one’s clients. When communicating information to prospective students, law schools have fallen prey to the moral hazards associated with trying to climb the U.S. News rankings. Whether in describing employment and salary statistics of graduates in the most favorable light possible (sometimes even misleadingly), or in not disclosing the likelihood of non-renewal of acompetitive scholarship with GPA stipulations, law schools frequently have acted out of self-interest, modeling an approach to information disclosure (or nondisclosure) that hardly reflects the “professionalism” to which we hope our students will aspire as lawyers.

Because law schools have proven incapable of “making the right choice” in describing employment and salary statistics and the likelihood of non-renewal of competitive scholarships, the American Bar Association is increasingly getting pressure from several fronts to foster greater transparency with regard to employment and scholarship data.2 Over the last two years, some of my research has assisted in this effort toward increasing transparency and clarity. This essay briefly describes those research efforts and discusses where the increased emphasis on transparency likely will lead.

Better Information Needed to Frame Law School ‘Investment’ Decision

Since 1985, ever-increasing salaries for big-firm associates have been followed closely by ever-increasing tuition at law schools. When the decision whether to “invest” in law school was evaluated in the narrow context of the return on investment associated with the potential salary of a big-firm associate, the “investment” seemed to make sense: Investing/borrowing $100,000 or more for one’s legal education may not be economically irrational if one can graduate from law school and earn $150,000 or $160,000 per year. But investing/borrowing $100,000 or more for one’s legal education may not be as economically rational if one cannot find a legal job or if one can earn only $50,000 as a public defender or $60,000 in a smaller firm practice.

How hard can it be to find a legal job that pays fairly well after law school? Virtually every law school reflected in the U.S. News rankings in 2008 indicated better than 90 percent employment nine months after graduation. NALP’s 2008 Jobs and J.D.s also indicated that 89.9 percent of those reporting employment status nine months after graduating in May 2008 were employed and had an average salary of $92,009. Indeed, the bimodal salary chart published in the 2008 Jobs and J.D.s indicated that nearly one-quarter of full-time salaries was $160,000. 3 This would lead many prospective law students to conclude that the investment in law school might make economic sense because there is a good chance of getting a meaningful return on the investment.

At the same time, law schools greatly expanded merit scholarship programs in response to the U.S. News rankings, using scholarships to attract an entering class with the bestpossible objective criteria – LSATs and undergraduate GPAs. Because many of these scholarships are funded through tuition discounts, they also facilitated the significant increase in law school tuition over the last two decades. But, more importantly, at many schools these scholarship programs are designed to be non-sustainable. That is, many schools intentionally over-invest in first-year scholarships, knowing that GPA stipulations attached to the scholarships inevitably result in a significant number of students losing their scholarships after the first year of law school. But because law schools generally do not provide prospective students with any information regarding the percentage of first-year scholarships that are not renewed, they find it difficult to make meaningful comparisons among different scholarship offers.

My Research

Over the last two years, these two aspects of the law school “investment” decision – scholarship programs and employment and salary statistics – have been the focus of my research.

Research on Scholarship Programs

Over time, I came to understand the significance of UST’s distinctive scholarship program and its impact on the culture and community of the law school. Each spring, I would talk with Assistant Dean Cari Haaland about prospective students raising questions about scholarships – noting that other law schools were offering larger scholarships that almost always came with GPA- or class-rank stipulations. Haaland and I discussed the need to educate prospective students about the difference between our scholarship program (renewed provided the student maintains good academic standing (a GPA of 2.0)) and those at other schools (where renewal frequently is conditioned on maintaining a 3.0 or a 3.3 or being in the top-third of the class).

Wanting to better understand how distinctive our scholarship program is and how common the “competitive” scholarship programs are, I worked with three research assistants – Chris Duncan ’06, Steve Steffey ’07 and Nicolet Lyon ’09 – to find out more about the renewability of law school scholarships. We learned that there is little good information publicly available about law school scholarship programs. The NAPLA-SAPLA Book of Lists has a fairly cryptic section on scholarship programs and only has information on slightly more than half of the ABA-accredited law schools. The ABA-LSAC Guide has some scholarship information, but does not include anything on renewability, and reports aggregated data across the entire student body, making it impossible to determine the percentage of scholarships renewed. Even looking at law school Web pages is largely unhelpful. Across all these sources, we were able to classify 153 law schools as having “competitive” or “non-competitive” scholarship programs, of which 122 law schools, nearly 80 percent, have competitive scholarship programs, while only 31, just over 20 percent, have non-competitive scholarship programs. 4I began working on a law review article (forthcoming in the Journal of Legal Education this fall) highlighting that a school with a competitive scholarship program has the abilityto garner a first-year class with better objective criteria than a school with similar scholarship resources invested in a noncompetitive scholarship program. The article further emphasizes the lack of transparency among law schools regarding scholarship non-renewal and advocates for greater disclosure of the renewability rates on merit scholarships so that students considering merit scholarships can better assess the scholarship’s impact on their investment decision – discounting the value of the scholarships as necessary to reflect the likelihood of non-renewal (which varies widelyacross schools). The article further describes how the choice of scholarship program will almost certainly impact the law school culture and the learning community – with competitive scholarship programs fostering greater competition and less collaboration.

As we celebrate our 10th anniversary and reflect on how our distinctive mission has shaped the law school, the sense of community that we have been able to foster and sustain certainly has to be one of the hallmarks. This sense of community has been recognized by the Princeton Review’s rankings, in which UST has been ranked among the top five in “Quality of Life” for law students in five of the last six years. I have no doubt that the sense of community and quality of life for which we are recognized are largely attributable to our distinctive mission and our distinctive scholarship program.

Research on Employment and Salary Statistics

In spring 2010, I began looking more closely at law school employment and salary statistics and began to have concerns about the accuracy of the data. These concerns arose at a time when I increasingly came across “scam-bloggers” asserting that law school was a scam – a “bad” investment of time and money given the uncertain employment market for law school graduates.

I worked closely with Sarah Gillaspey ’11 analyzing NALP’s employment and salary data. That effort did not result in an “article” because I was more interested in improving NALP’s reporting of data than generating a law review article. Instead of publishing my analysis, I contacted NALP recommending that it revise its methods for reporting average salaries to make sure average salaries are weighted in a manner consistent with job distribution. I also encouraged NALP to explain clearly that the number of jobs on which salary data is based is different than the number of reported jobs. NALP agreed to both of these changes in the 2009 Jobs and J.D.’s, adding an “adjusted mean” salary (which is about 10 percent less than the mean salary) and noting carefully that the percentages of salaries of $160,000 in the bi-modal salary chart is not the percentage of jobs with those salaries. (NALP also was gracious enough to acknowledge my contributions.) 5

Regulatory Efforts

Last summer I was appointed to serve on the ABA Questionnaire Committee, something in which I was interested because of my desire to promote greater transparency in employment and scholarship data. The Questionnaire Committee has had several meetings and conference calls over the last year, including a “public hearing” to gather information from a variety of constituents about the reporting of employment and salary data.

The Questionnaire Committee recently made recommendations to the Council on Legal Education for a much more transparent approach to gathering and disseminating employment statistics which the council approved at its June meeting. 6 With this approval, the employment data for the class of 2010 presented in the ABA-LSAC Guide will have a much more detailed breakdown of the types of employment procured by graduates from each law school, including whether positions are short-term or long-term and part-time or full-time.

(Notably, the Standards Review Committee, which is reviewing the accreditation standards for law schools, also is considering revising Standard 509, dealing with consumer information, to make sure law schools are not presenting misleading employment or salary information on their Web pages.)

Increased Media Attention

In addition to the scam-blog commentary, mainstream media began paying attention to these issues this year. Some of the employment challenges of law school graduates were profiled in a January 2011 New York Times article by David Segal titled “Is Law School a Losing Game?” Segal also highlighted the challenges law students face at schools with competitive scholarship programs in a May 2001 New York Times article, “How Law Students Lose the Grant Game, and How Schools Win,” which featured quotes from me and from UST law professor Jennifer Wright. More recently, I was interviewed regarding law school scholarships by Bloomberg News. The interview is available on YouTube.

Conclusion

It would be nice if law schools made the “right choices” and modeled the professionalism to which we want our graduates to aspire. But with law schools lacking the moral courage to do the right thing themselves, ABA regulation seems to be necessary. I am hopeful that the council’s recent approval of the Questionnaire Committee’s recommendations for improved reporting of employment and salary statistics is a big step in the right direction toward greater transparency. With the attention generated by the N.Y. Times coverage of the employment issue and the scholarship issue, I also hope that the Questionnaire Committee and the Standards Review Committee will develop disclosure requirements that result in greater transparency regarding law school publication of employment statistics and scholarshiprenewal rates so that prospective law students can make meaningful comparisons of competing scholarship offers and have a more realistic understanding of the potential jobs and earning capacity they may have as lawyers.

 

Author: Jerry Organ is one of the founding faculty members of the University of St. Thomas School of Law. He teaches Property, Foundations of Justice and sections of the Mentor Externship course. His research and writing increasingly focus on law school culture and the formation of professional identity in law school and throughout one’s career.

NOTES

1 William M. Sullivan, et al., Educating Lawyers: Preparation for the Profession of Law 127-132 (Jossey-Bass 2007).

2 Two examples include the group Law School Transparency, founded by two students at Vanderbilt Law School, which has done a great deal to bring attention to issues of lack of transparency in employment statistics and in scholarships, see http://www.lawschooltransparency.com/, and the recent correspondence from Sen. Barbara Boxer to the ABA regarding the need for greater regulation of law schools with respect to employment statistics and scholarship data. See http://boxer.senate.gov/en/press/releases/052011.cfm

3 Jobs & JD’s Class of 2008, 12, 18-19 (NALP 2009).

4 Jerome M. Organ, The Impact of Scholarship Programs on the Culture of Law School, J. Legal Educ. (forthcoming 2011).

5 Jobs & JD’s Class of 2009, 2, 16-17 (NALP 2010).

6 See ABA Reforms Employment Outcome Disclosure, http://www.lawschooltransparency.com/2011/06/aba-reforms-disclosure/. Because of concerns that reporting of salary statistics on a school-by-school basis could be misleading, the Questionnaire Committee proposed publishing NALP’s aggregatedsalary data by job category on a state-by-state basis because NALP’s data is statistically more valid and reliable than any individual school’s data.

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