Wednesday, October 19, 2016
[by Rick Bales]
Current ABA accreditation standards have attracted widespread public criticism for being toothless in the face of predatory law schools granting admission (and charging hefty tuition) to students with little or no chance of passing a bar exam. In response, proposed ABA standards would create a new 75% rule. As Daniel Rodriguez (Northwestern) and Craig Boise (Syracuse) explain in the National Law Journal (cross-posted without subscription requirement at TaxProf Blog):
The American Bar Association's Section of Legal Education and Admissions to the Bar has proposed tightening up its regulation of those law schools with a significant percentage of graduates who have failed their state's bar exam. Under the proposed new accreditation standard, law schools must ensure that at least three-quarters of their graduates pass the bar after two attempts, rather than five, as is the case under the current standards. As with any numerical benchmark, the measure is imperfect, yet its purpose is a sound one.
Yet before the ink is even dry on the proposed rule, at least one school has found a way to circumvent it. Arizona Summit (formerly Phoenix Law School), the same school that paid its low-GPA graduates not to take the bar exam yet still had an overall July 2016 pass rate of 19.7%, has created a new requirement that each student with a GPA below 3.33 must pass the school’s mock bar exam as a prerequisite to graduating. Theoretically, Arizona Summit could set the mock-bar pass rate at 10%, meaning that only the top-10% would qualify to sit for a bar exam. That would virtually guarantee technical compliance with the ABA’s 75% rule. Meanwhile, 90% of the school’s students would have paid $136,062 in tuition (plus expenses, lost opportunity costs, etc.) for a degree that does not qualify them to sit for any bar.
Note that Arizona Summit’s mock bar is not analogous to the “baby bar” required at unaccredited California law schools. The baby bar is given after the first year, so students with no realistic chance of passing the California bar exit early. Arizona Summit’s mock bar is a graduation requirement, so the school will get three full years of tuition before students are required to exit. Moreover, tuition at most unaccredited California law schools is relatively low. Arizona Summit’s is $45,354 per year.
One possible response might be for the ABA to go back to the drawing board and create a bar-pass threshold requirement for matriculants, not just graduates. But that would exacerbate a problem that HBCUs and others already have identified with the 75% rule – it may have a disproportionate effect on minorities, and it penalizes legitimate opportunity-based law schools that admit at-risk (but potentially successful) students, give them an opportunity to prove themselves, then then have an early-exit mechanism for students who don’t. Moreover, if the ABA plugs this hole in the dike, predatory schools like Arizona Summit will just find another weakness to exploit.
Better, I think, to draft a standard that looks at admissions, academic support, early v. late attrition, and bar pass, and gives the ABA considerable discretion within that framework to deny or withdraw accreditation. Simultaneously, we would need to ensure that the folks doing the (un)accrediting have both the backbone, and support from above and below, to make difficult decisions which may well result in litigation.
Rigid rules are easy to circumvent. But it’s not rocket science to spot a predator.
Over at TaxProf Blog, Paul Caron calls attention to Clayton Christensen's new book Competing Against Luck: The Story of Innovation and Customer Choice (HarperBusiness 2016). Here's a very brief excerpt from Philip Delves Broughton's review in the Wall Street Journal:
Disruption, in Mr. Christensen’s formulation, is not caused simply by anything new or clever. It arrives in the form of “minuscule threats” at the bottom of the market. The studios and networks treated Netflix as a minor player when it mailed DVDs, not seeing that the move to online streaming would turn it into a formidable competitor.
Similarly, grand universities right now see no threat from grubby online courses. But over time students and parents may wonder why they should pay all that money for sports facilities they don’t use and professors who don’t teach. Meanwhile, employers start to ask potential employees what they can do rather than where they went to school. And maybe the whole structure of higher education shifts.
If Christensen is right, I would expect economic pressure at many "teaching" schools to disaggregate scholarship from teaching, so that cost savings can be passed along to students thus giving those schools a price advantage. Look for a further bifurcation of research universities from teaching universities, and perhaps for a spill-over into law schools.
Sunday, October 16, 2016
[by Rick Bales] Law schools have responded to the changing marketplace for legal education in a wide variety of ways designed to add revenue streams or improve the quality of education. Here’s a list of some of those innovations; comments adding to the list are welcome.
- Non-J.D. Master’s programs, especially in subject areas that involve regulatory compliance such as health care. These programs often are mostly or entirely online.
- Online law courses and hybrid-online courses. ABA Standard 306 restricts distance education, but within those restrictions there is plenty of room for online legal education.
- Niche LL.M. programs. LL.M. programs that provide little more than what a student could have obtained in her J.D. degree do not seem to have attracted substantial enrollment, but many niche and value-added programs are performing strongly.
- J.D. programs for international lawyers. These programs typically give credit for previous study and allow the J.D. to be completed in about two years.
- Flexible or alternative course scheduling, such as allowing a J.D. to be completed in two years, or on weekends.
- Classroom and teaching innovations, such as flipped classrooms, new forms of experiential learning, expanded use and varieties of formative assessment, and the like.
- Academic and bar-pass support. Not just more, but better: many AS programs use principles of cognitive psychology to enhance learning, retention, and application. Other AS programs have become integrated into doctrinal, writing, and experiential courses.
- Certificates, concentrations, and guided pathways.
- Unbundling the J.D. “package” and marketing the pieces to target audiences – e.g., “contracts for businesspeople”.
- Teaching law-themed courses for, or in conjunction with, other university programs. Examples include “Intellectual Property Law for Scientists”, “Election Law” for political science students, and creating an undergraduate Legal Studies major or minor.
- Incubators and other programs to help graduates transition from law school to practice. These programs vary from well-designed programs to fairly naked attempts to game placement statistics.
- Third-year curricular changes, such as full-year simulation courses , nontraditional externship programs, and a semester of study and practice in D.C.
- Satellite campuses, especially in a state capital or major metropolitan area if the law school is geographically isolated.
- Using diagnostic tests to identify student strengths and weaknesses (e.g., in reading speed and comprehension) at both individual and aggregate levels, and using online training programs to remedy those weaknesses.
- Using data (beyond simple measures like first-year GPA) to identify at-risk students at both individual and aggregate levels, to calculate the efficacy of curricular and programmatic changes, and to measure educational outcomes.
Friday, October 7, 2016
[by Rick Bales] As the U.S.’s 200-odd ABA-accredited law schools endure a sixth year of admissions and enrollment pain, their response to the market downturn has not been what one would expect in an efficient market. In an efficient market, one would expect to see some combination of the following from oversupply, weak demand, and a plethora of suppliers:
- Innovation and Differentiation. Considerable market differentiation should result as schools try to find a niche in which they can command a premium price, because chasing a declining demand is, in the long term, a losing proposition. However, except for some tinkering at the LL.M. and Master’s-level margins, law schools still look remarkably the same.
- Budget Cuts. Most affected law schools have cut their budgets, but not necessarily in ways that efficient markets would predict. Companies experiencing a sustained downturn in demand tend to make the first cuts to high-cost areas that are unlikely to affect future survival. In higher education, personnel costs are the biggest expense, but instead of focusing on efficiency or cutting across the board, most law schools have cut staff first, then non-tenure-track faculty, then tenure-track-but-not-yet-tenured faculty. Staff cuts (especially to admissions, placement, and academic support) and the elimination of junior faculty through hiring freezes and layoffs may have been politically palatable, but amount to eating the seed corn.
- Closures and Consolidation. An industry with 200+ market participants experiencing a 50% sustained decline in demand should expect some – probably many – of the weakest firms to close, but that hasn’t happened with law schools. Likewise, one would expect industry consolidation, as the strongest schools jostle for market share and the middling schools seek efficiency through growth. Again, that hasn’t happened.
- Realignment of Supply with Demand. In a world where Blackberry has gone from market leader to obsolescence in a few years, six years is more than enough time for law schools to have adjusted to the new normal. Instead, many if not most schools are still operating at half capacity and a significant financial loss, and are nominally charging (but also discounting) twice the tuition that the market is willing to pay.
- ABA accreditation requirements and faculty tenure impede internal restructuring. ABA accreditation requirements and the importance of reputation in a conservative industry make law schools loath to be the first mover on any sort of innovation outside the norm, such as online education. At many schools, tenured faculty cannot be laid off for economic reasons without declaring a university-wide fiscal emergency; making such a declaration would be a self-fulfilling prophecy. Firing underperforming faculty is culturally taboo and internally painful.
- Financial insulation from market discipline. Existing student loan programs help ensure that there is always some prospective student – even if an unqualified one – available to fill a law school seat. Endowments and university subsidies allow financially bleeding schools to stay on life support much longer than they would if they had to be consistently self-supporting.
- University leadership is overcautious and rewarded for programmatic growth rather than sound business decisions. A faculty member once remarked to me that he belonged to the only institution in the world more resistant to change than North Korea – American higher education. University leadership is exceptionally risk-averse. Unlike the private sector, no university leader every got fired for being too cautious, and it is exceptionally rare for a university to close for being too slow to adapt to market changes. Moreover, university presidents are reputationally rewarded for growth (in enrollment, programs, budget), not for strategic realignment. Most presidents are accustomed to having some programs subsidize others, and would consider it a huge black eye for a law school to close on their watch. Finally, the prestige of having a law school may prevent some closures, but presumably at some point the price tag becomes too high.
So what is the take-away? In part, this helps explain why law schools have not closed/merged/differentiated as one might expect given the sustained down-market for legal education. More importantly, it indicates that there are significant rewards yet to be distributed to the market players who recognize and are able to capitalize on existing market inefficiencies.
Friday, September 30, 2016
[by Rick Bales] I've heard from faculty members at two law schools just this week who report (not for attribution) that their law schools either are laying off a substantial number of faculty (the faculty member's word was "bloodletting") or that buy-out offers have been made to all faculty. These are respectable schools, and the downsizings I am referring to have not yet been reported in the blogosphere as best I know. That probably means there are many more occurring than we know about.
I've also had occasion to browse recently the faculty bio pages of several law schools. Given the paucity of hiring over the last several years, it comes as no surprise that many schools are top-heavy, but the extent of this at some schools is astounding. It appears that at some schools, there is almost no one on the tenure-track faculty within a full generation of the average age of the students we are trying to attract.
Given the dramatic downturn in admissions, faculty downsizing is not unexpected and at many schools inevitable. But equally unsurprisingly, the pain has not been evenly distributed. Staff were cut first, then non-tenure-track faculty, then tenure-track but not-yet-tenured faculty....
We seem to be in the process of losing a full generation of faculty. This does not bode well for the future of law teaching, legal scholarship, or law school leadership. I think we would be wise to begin planning for this generation gap now.
Tuesday, June 21, 2016
[by Rick Bales]
As the headline in the post immediately below points out, 3/4 of U.S. law deans supported University of Arizona Law's bid to use the GRE as an alternative to the LSAT. That does not imply support for the school's advert containing misleading employment statistics.
Thursday, May 5, 2016
Monday, May 2, 2016
As reported by the National Law Journal, the Law School Admissions Council is contemplating expelling the University of Arizona Rogers College of Law from LSAC membership. This is in response to Arizona's decision to offer applicants the option of submitting a GRE score instead of an LSAT score. Apparently, there is a rule in the LSAC by-laws (of which I, and I assume almost all law school deans, have been ignorant) requiring “that substantially all of [member schools'] applicants for admission take the Law School Admission Test.”
This strikes me as a terrible rule. I urge LSAC to suspend enforcement of the rule and to immediately and promptly consider its repeal.
There are many problems with LSAC's threat against Arizona, but I will simply mention three:
- I am no antitrust expert, but this rule sure smells bad.
- Why has LSAC not previously enforced this rule against schools that obtained LSAT waivers from the ABA, or admitted students from their own institutions without LSAT scores under the now-defunct "10% Rule"?
- I cannot think of a rationalization for this rule that is in the interests of legal education and the law schools that make up the membership of LSAC.
Let me elaborate on that last point a bit. LSAC is not a for-profit entity with an inherent interest in preserving its market share. It exists to, and generally does, act in the public interest as it relates to legal education. The result of requiring members to use the LSAT exclusively would be to stifle needed innovation. Arizona, one of the innovative law schools in the country today, decided to allow applicants to use GRE scores after a careful, thoughtful process. Although some commentators think it has to do with gaming US News (there might be a short-lived advantage to Arizona here, but not a great one), their purpose is to make applying to law school easier, cheaper and more readily available to a diverse group of prospective students. They commissioned a study, which apparently has demonstrated the GRE's validity as a predictor of law school success. By what reasoning (other than LSAC seeking a monopoly-like position), should this experiment be punished?
The ABA is alone among US accrediting bodies in requiring any kind of standardized test for admissions. What if the ABA reverses this policy? Would LSAC attempt to expel any school that went test-optional? Law schools are LSAC, and we should not allow this to happen.
At the same time, the ABA should probably repeal the rules requiring the use of an admissions test. The ABA is properly moving towards more of a focus on outcomes. Schools should be assessed based on the learning of their students, and their success on the bar examination and in gaining meaningful employment. Whether and how to use an admissions test should be up to the schools (just as it is for all medical, business, engineering, architecture, etc., schools). We should be concerned with schools taking advantage of applicants who have little chance of success. But this is better dealt with through outcomes standards with real teeth, combined with rigorous disclosure rules.
Wednesday, March 16, 2016
[by Rick Bales]
Michele Pistone and Michael Horn have just posted, on the publications page of the Clayton Christensen Institute for Disruptive Innovation, their white paper Disrupting Law School: How Disruptive Innovation Will Revolutionize the Legal World.
The take-away: just as the business of legal services is changing rapidly and radically, so too is the demand for legal education. Either law schools will redefine themselves to capture new markets or they will replaced by other institutions that will.
Here's a portion of the executive summary; the rest follows the page break. Hat tip: Rob Kleine.
Facing dramatic declines in enrollment, revenue, and student quality at the same time that their cost structure continues to rise and public support has waned, law schools are in crisis. A key driver of the crisis is shrinking employment opportunities for recent graduates, which stem in part from the disruption of the traditional business model for the provision of legal services.
Although this root problem will soon choke off the financial viability of many schools, most law schools remain unable or unwilling to address this existential problem in more than a marginal way, as they instead prefer to maintain the status quo and hope that the job market soon improves. In reaction to the growing crisis, most law schools have accordingly continued to focus their attention and energies on maintaining their existing status within the legacy model used to rank and compare law schools: the U.S. News & World Report’s annual law school rankings. In the face of the crisis, the dominant focus of law schools and their administrators has been to retain their school’s ranking so that their school can outlast competitor law schools—some of which, the argument goes, may have to shut their doors—until, in the long run they hope, the market evens out and everything returns to the pre-crisis status quo.
This is a strategy of attrition. By fixing their gaze on maintaining prestige in their juris doctor (JD) degree programs, law schools and their administrators run the risk of overlooking the longer-term impact that the disruption of traditional legal services businesses will have on the provision of legal services and, in turn, on law schools themselves. This is happening at the same time as disruption is primed to take place in legal education itself. As we have seen in industry after industry, disruptive innovations change sectors in ways that do not allow for a return to the status quo. Instead, the changes that disruptive innovations bring are so fundamental that entire products or services are marginalized or, in some cases, even displaced, never to return again.
Wednesday, February 24, 2016
[by Rick Bales]
Tim Fisher, Kathleen Boozang, Craig Boise, and I each attended the CASE Development for Deans program in San Francisco early this week. I found the conference useful, and will be curious to see how much overlap there is with the ABA's Law School Development Conference. At both, deans are encouraged to attend with their development directors. Though the ABA conference obviously focuses on development for law schools, there was something to be gained by looking at development through the somewhat wider lens of higher education more generally.
Sunday, February 14, 2016
[by Rick Bales]
Why is the cost of attending law school high relative to lawyer starting salaries, and rising relative to inflation? Here are three reasons that the scambloggers never seem to mention.
The first is Baumol’s Cost Disease. The idea here is that in certain labor-intensive industries (such as education), there is little productivity growth over time. Car manufacturers automate; farmers have better equipment and pest-resistant seeds; but law school is still taught much the same way it was 50 years ago. Unless and until we see widespread adoption of online learning technology or other types of teaching-efficiency enhancements, the cost of higher education likely will continue to increase more than rate of inflation.
The second is increased reporting requirements. Twenty years ago law schools gave some basic data to the ABA and that was it. Today we collect and give a lot more data to the ABA, and then we format it exactly like they want it for our website, and we do the same for U.S. News, and the transparency movement wants still more. Many law schools now have a full-time data-reporting officer. Our Career Services Director spends almost as much time tracking student outcomes as she does helping students find jobs. Transparency is great in the abstract, and abuses in the past make today’s demands for more transparency reasonable. But all this data collection and dissemination isn’t free – it comes at a cost that ultimately must be paid from student tuition. And the fixed costs of compliance weighs particularly heavily on small law schools that are unable to distribute the costs among a large student body.
The third factor contributing to higher costs is that faculty (and decanal) salaries are influenced by the anomalous bi-modal wage distribution of starting salaries for lawyers. As this chart makes clear, lawyer salaries follow more-or-less a normal bell curve in the $45,000-85,000 range, then spike strongly in the $155,000-165,000 range. The problem for law schools is that many of the faculty we want to hire (especially the folks who can teach corporate, tax, and estate planning law) are in that right-hand spike, and to attract them we need to be at least in-the-ballpark competitive. Even so, although law faculty may earn modestly more than the average (mean, median) starting salary of a practicing lawyer, they earn far less than the lawyers on the bigfirm partnership track.
Saturday, February 6, 2016
[by Rick Bales]
Congratulations to dean extraordinaire (and Law Deans blogger) David Yellen on his appointment, announced today, as President of Marist College in Poughkeepsie, New York. Here's the Marist press release. Marist is a prestigious college on the Hudson River, halfway between Albany and Manhattan, known for its leadership in the use of technology to enhance the teaching and learning process.
David attended Cornell Law School (where he met his wife Leslie), and taught and deaned at Hofstra before becoming dean at Loyola-Chicago where he has served for 11 years. The deans will miss his leadership, wisdom, and wit, as I know will his colleagues at Loyola.
Michael Kaufman (Professor and Associate Dean for Academic Affairs, Director of Education Law and Policy Institute, Director of Institute for Investor Protection) will serve at Loyola as interim dean.
[by Rick Bales]
[A] lot of stellar undergraduates are choosing not to apply to law school (and not to take the LSAT)... [M]any of them are taking the GRE and going to a different graduate program. If you could get that cohort to apply to law school easily, then you might be able to persuade them that law is still a great career path... In addition, recruiting folks already in graduate programs or who have completed graduate school to apply may be easier if they don't have to take a different test. Even trying to recruit someone who has taken neither test to apply to law school would be easier if they could take the GRE. The GRE is given on a rolling, year-wide basis around the world and even on your own computer. I just looked online, and I could take the GRE as early as Monday (less than a week from now) a few miles from here or even sooner if I drove 30-45 minutes. I would have my scores in 10-15 days.
Friday, February 5, 2016
[by Rick Bales]
The president of Mount Saint Mary College apparently told some faculty members they need to change the way they think about struggling students, saying “This is hard for you because you think of the students as cuddly bunnies, but you can’t. You just have to drown the bunnies … put a Glock to their heads.” The quote went viral and the president has caught a lot of flak.
But what he’s describing isn’t uncommon in higher education – he was trying to game his college’s numbers by encouraging struggling students to leave before they affected the college’s retention rate. And as bar pass rates drop (at least in part because of declining admissions and entering-student credentials), pressure will increase on law schools to attrit the students most at risk of failing the bar exam before they have a chance to affect the school’s bar-pass numbers. This can be accomplished by dropping the grading curve or by raising the minimum GPA required for continued enrollment.
A reasonable rate of academic attrition is the price of providing opportunities to applicants on the application bubble and enforcing high expectations on current students. But the danger is in using the “opportunity” label to self-interestedly admit students who have little chance of success so the school can fill an entering class. The “opportunity school” approach may have been appropriate 50 years ago when the cost of legal education was, in real terms, much lower than it is today. But asking students to take on mortgage-sized debt for a low-percentage “opportunity” is a different matter entirely. And disclosure doesn’t cure, because every applicant is confident she will outperform her predictors.
Friday, January 29, 2016
[by Rick Bales]
I found this chart from a recent article in The Economist surprising -- the U.S. significantly lags Australia, Britain, and Canada in the percentage of higher-education students hailing from foreign countries -- and this despite the fact that Britain is actively discouraging foreign students from coming to Britain.
The problem in the U.S. is our visa system. The Economist explains that the U.S. "visa rules are needlessly strict and stress keeping out terrorists rather than wooing talent. It is hard for students to work, either part-time while studying or for a year or two after graduation."
Our system of legal education is widely seen as the gold standard throughout the world. Our law schools need more students. Perhaps this is an area where Access Group can lobby Congress to help ease student visa restrictions and grow the pie for American law schools and all of American higher education.
Tuesday, January 12, 2016
Kyle McEntee of Law School Transparency has an interesting post today at Above the Law. It discusses a letter he, Bill Henderson and former Chief Justice of the Indiana Supreme Court Randall Shepard (who was also the Chair of the ABA's Task Force on the Future of Legal Education) sent to US News in 2014 proposing some changes to the rankings methodology.
They would get rid of the "faculty resources" factors (the parentheticals are the weight currently given in the rankings to each factor):
- Expenditures per Student (9.75%): The amount spent on instruction, library and supporting services divided into total J.D. student enrollment.
- Modified Expenditures per Student (1.5%): The amount spent on instruction, library and supporting services, plus financial aid, divided into total J.D. student enrollment.
- Student-Faculty Ratio (3%): The ratio of students to faculty members, according to the ABA definition.
- Library Resources (0.75%): The total number of volumes and titles in the school's law library.
In their place, they suggest that US News use either:
- Expenditures per High-Quality Job; or
- Tuition Revenue per High-Quality Job
Expenditures are a very poor measure of any type of academic quality. Worse, over the years, this factor has undoubtedly contributed to tuition increases, since spending more money on anything marginally helps in the rankings. My preference would be to get rid of any factor related to expenditures at all. But given the reality that US News likes to appear "scientific" and probably wants to keep some form of expenditure data, a link between expenditures and job outcomes, however imperfect, would probably be an improvement.
Monday, January 11, 2016
That is the important question raised by a new report from the Center for the Study of the Legal Profession at the Georgetown University Law Center. There are important forces at work - globalization and technology in particular - which will shape the legal profession and legal education in the decades ahead. We in legal education have a real stake in law firms' success. We need a more productive dialogue than has generally been taking place.
Friday, January 8, 2016
I cannot believe it is January already, and that the AALS annual meeting is in full-force. While I have been a critic of the AALS in the past, I am happy to see the progress Judith Areen has made with the organization, since she took over as executive director. The organization has finally embraced technology under her leadership, and she seems genuinely interested in listening to, and working with the member schools. Furthermore, the organization is actively trying to reduce the expenses of those attending the meeting this year. SEALS has always been aggressive in its negotiations with conference hotels, and this year is the first year I felt that AALS negotiated on behalf of its membership.
Some other observations:
- It is heartening to see that this year's conference has broadened participation by those new to legal education, and that the panels seem to be more inclusive than ever.
- The publishing companies and other vendors in the exhibition hall have definitely scaled back on their promotional items, and their receptions for authors have been scaled back, as well.
- The publishing companies are much more focused on electronic access, than on hard-copy publication. They have unveiled new products to help law schools with the formative assessment now required by the ABA.
- CALI continues to be the leader in providing free casebooks, with a goal of cutting student costs. CALI has been the voice in the wilderness for many years.
- UC Irvine was granted membership in the AALS on January 7. Congratulations to that school for its continued success during challenging times.
Monday, January 4, 2016
Jerry has posted another interesting analysis, this time of changes in the prevalence of conditional scholarships since the ABA began requiring disclosure of renewal rates. Again, I would ask you to consider how common this approach to scholarship assistance would be if it were not for U.S. News? Still, it is a good thing that prospective students now have information about the renewal rate at each school, so they can make more informed decisions.
Tuesday, December 29, 2015