Friday, May 31, 2013
That's right, law students now have an opportunity to add hands-on e-discovery training to their skill set. Surely, a first-of-its-kind program is being offered by one of the 200 ABA-accredited law schools struggling to adapt to a changing legal market, right?
Well, actually, no. It is being offered by Bryan University, which began life in 1940 in Los Angeles as a stenography school for court reporters. It subsequently evolved into Bryan College, which offered associates degrees in various vocational tracks. More recently, it has received accreditation as a university, with a masters degree in applied medical informatics and a cetificate program in e-discovery. Both are offered exclusively online.
The e-discovey certificate program has some interesting features (press release here).
- It's an actual graduate program. Enrollment is limited to law students who have completed a course in civil procedure (so, functionally, 2Ls and 3Ls) or, at most, completed their JD studies in 2013.
- It's real-world relevant. The program is organized around the Electronic Discovery Reference Model (EDRM), which is a detailed yet evolving set of industry standards that flow from nearly a decade of meetings involving literally hundreds of major and minor players in the litigation industry -- law firms, tech start-ups, Fortune 500 companies, consultants, etc. I have been at an EDRM meeting. Just learning the arcane, technology language of this massive subfield could itself a big value-add for students.
- Students learn how to use tools. The program is an immersion experience in which students will learn how to use high-end software related to predictive coding and machine learning; after that, they move to human review using another industry software suite. This event is supported by several legal vendors, mostly software providers, because they want their tools to become industry standards. Lexis and Westlaw used this same playbook 30 years ago.
- It's compact and efficient. The program meets online in real-time two hours a day, four days per week, for four weeks.
The faculty is comprised of practitioners and technicians in the e-discovery business, not full-time law professors. The tuition is $1,495 (very cheap if measured by contact hours), which can be paid online via credit card. Alas, May 30th was the last day of registration!
Signficance of the Bryan University program
Is the Bryan University e-discovery certificate program evidence of law's slide into vocationalism, or are 200+ ABA-accredited law schools missing the boat on the future of law? This may frame a provocative debate among academics, but it gets us quickly onto the wrong track.
Let's separate changes in the legal economy from debates over academic identity, which tend to arouse our emotions. In other words, let's respond to these circumstances like level-headed lawyers and acknowledge the substantial evidence that the world of lawyering is changing in dramatic ways. If this is true, by extension significant changes to legal education are likely on their way.
If we focus on facts, Exhibit #1 has to be access to justice. Resolution of disputes through state and federal courts --the paradigmatic work of lawyers -- has become prohibitively expensive for the vast majority of U.S. citizens. Further, it is now getting a too rich even for major corporations. Part of the problem is proliferation of electronically stored information (ESI). Finding and analyzing the law, it turns out, is the easy part. We teach that in law school. But in this permanently digital world, facts never get lost. Rather, they accumulate. This creates large problems for litigants.
Instead of redesigning our judical system to deal with this challenge -- something a conservative legal profession is loath to do without a decade or two of deliberation -- we are now witnessing the rise of a massive industry of legal vendors trying to make electronic discovery more efficient.
Exhibit #2 in our factfinding journey is that a huge proportion of these new legal vendors are owned and controlled by nonlawyers. See Henderson, Losing the Law Business. It turns out that the MR 5.4 ban on fee-splitting is, to a large extent, not much of a barrier at all. Virtually everything up until the courthouse door or the client-counseling moment can be disaggregated and turned into a process or product delivered by a nonlawyer vendor adept at technology and systems engineering. Because there is so much money to be made by the application of technology and process to legal problems, the nonlawyer genie is not going back into the bottle. It is time to accept that fact.
Below is a chart I use in a lot of presentations to law schools and bar associations.
The point of this chart is very simple. A legal services industry has arisen around the traditional legal profession. Now, increasingly, the word "service" is falling out because products and mechanized processes are taking their place, driving up quality, and driving down cost and cycle time. Society wins. Lawyers adapt.
So, at a practical level, what does all of this mean?
Let's start with the good news. Law is not going away. In a highly interconnected, complex globalized world, law is actually becoming more important.
But here is the realistic inner lining. Law is also suffering from a productivity imperative. The average citizen -- including the typical lawyer -- can't afford to engage the services of an artisan lawyer. And large firms filled with high-priced artisan lawyers are becoming a less attractive option for even large corporations. They want better, faster, and cheaper legal solutions.
So, for law professors anyway, here is the bad news: Training artisan lawyers -- what U.S. law schools do -- is indeed a mature industry. The U.S. economy can't fully absorp 45,000 law graduates per year, at least not doing traditional artisan-type legal work. So, if we want reliable employer demand for our graduates, some retooling needs to take place. Is the retooling process hard and complicated? Absolutely. Does this type of change occur in other industries? Yes, as reliably as the sun rising in the east. Now is our turn.
How do we retool?
The most difficult hurdle is just accepting the need to change. It's purely an emotional obstacle. The cheese has been moved. It's gone. It will not reappear. We need to find new cheese. Not familar with the reference? See Who Moved my Cheese.
The next step is just showing up to industry events and accepting the fact that we are not the smartest person in the room, at least when it comes to intersection of technology, process design, project management, knowledge management, big data analytics, machine learning, and modern law practice, etc. Instead, it is time to just soak and poke. Practically speaking, this means listening to others and trying to decipher patterns that simplify and unify what we are observing.
Third, with the help of some adjuncts we deputize along the way (both lawyers and nonlawyers), we design and offer some new courses that capture these new realities. Fumbling through a very crude version of this methodology, I taught project management back in 2010. Not only was it a lot of fun, I learned new skills, both as a problem solver and as a teacher, made dozens of industry connections that opened doors for my students, and obtained a more realistic view of the legal profession. In short, it changed my life -- for the better.
Fourth, a subset of the legal academy needs to really dive into the topic of institutional design. The rise of the e-discovery business is entirely a artifact of how our legal system is structured. Perhaps it is time to think about better ways to resolve disputes and facilitate transactions. See, e.g., Disputes in the credit care industry. To me, law schools are the exact right places to think about, and wrestle with, these critically important issues. These are mountains just waiting to be climbed by the next iteration of law schools and law professors.
Fifth, with some smaller victories under our belts, we need to collaborate with colleagues to begin the messy process of organizing our new insights into a coherent curriculum that produces graduates with the most valuable skills sets in the shortest supply. With a world ramping up in complexity, I doubt these will be vocational skills. That said, we are probably a decade or two away from a more settled law school curriculum. But we will get there, and when we do, we will be incredibly proud of what we have accomplished.
[posted by Bill Henderson]
Thursday, May 30, 2013
APPLICANTS -- In my November blog posting, I noted that for the three-year period from 2010-2012, the number of applicants in each admissions cycle represented an average of 92.9% of the tests administered in June/October. There were 63,003 June/October test-takers in 2012. I noted that if this admissions cycle results in 92.9% of June/October test-takers turning into applicants, law schools could anticipate there being roughly 58,530 applicants to law schools for fall 2013.
In January, that estimate seemed like it might be high, as LSAC projections were running more in the 53,000 to 54,000 range. LSAC’s January 25, 2013 Current Volume Summary showed 30,098 applicants at a point in the previous year when the applicant total represented 56% of the preliminary final applicant count. That projected to an applicant total of roughly 53,750. But the most recent LSAC Current Volume Summary dated May 17, 2013, shows 55,764 applicants, at a time in the cycle which last year represented 95% of the preliminary final applicant count. That means there has been an increase in applicants in recent weeks compared to the same period last year. If the present count truly represents 95% of likely applicants, we can expect roughly 58,700 applicants for fall 2013. If late applications continue to come in at numbers higher than last year, this number could go even higher. For purposes of these projections, however, I will assume 58,700 applicants.
ADMITTED APPLICANTS -- Of the projected 58,700 applicants for fall 2013, how many will be admitted? Notably, the LSAC Volume Summary shows that from 2003-2011, law schools never admitted fewer than 55,500 applicants, but also never admitted more than 71% of applicants. The LSAC has not posted the 2012 numbers, but it is likely that law schools only admitted approximately 52,000 of the 68,000 applicants, the smallest number in over a decade, but with the highest admit rate in over a decade -- an estimated admit rate of over 76%. (For the period from 2003-2011, an average of roughly 82% of admitted students became LSAC matriculants. If we assume enrollment declined 8% from fall 2011, that would result in roughly 42,500 LSAC matriculants in fall 2012. One reasonably could project that roughly 52,000 applicants were admitted to generate those 42,500 LSAC matriculants.)
What will the admit number and rate be for fall 2013? That is a great mystery. Even as many law schools move closer to open enrollment, the reality is that some percentage of applicants is truly inadmissible – with significant character and fitness issues and/or LSAT/GPA profiles that are just too low to believe the applicant can be successful in law school and on the bar exam. Perhaps 3% of applicants have significant character and fitness issues (between 2008 and 2011, at least 3% of applicants with an LSAT of 170 or higher were not admitted). In addition, several thousand applicants have an LSAT below 145, many with GPAs that are less than 3.0, resulting in indices that should be problematic for most law school admissions offices that are attentive to whether applicants can be successful in law school and on the bar exam.
If we assume that collectively law schools will find 10,000 applicants to be truly inadmissible, that would leave 48,700 applicants that might be admissible. Assuming everyone who is admissible is admitted somewhere, that would be a national admit rate of 83%. But what if the number of truly inadmissible applicants is more like 12,000? That means there would be only 46,700 applicants that might be admissible. Assuming everyone is admitted, that would be a national admit rate of just under 80%.
MATRICULANTS – As noted above, the average rate at which admitted students became LSAC matriculants between 2003 and 2011 was roughly 82%. If the admit-to-matriculant rate remains at 82% for fall 2013, then the 48,700 likely admitted applicants would translate into roughly 39,900 first-year students. If there were only 46,700 admitted students, with an admit-to-matriculant rate of 82%, then one could expect roughly 38,300 first-year students. If the assumptions about the numbers of admitted students set forth above are accurate, and if the assumption that the admit-to-matriculant rate remains at 82% remains is accurate, law schools should expect somewhere between 38,300 and 39,900 first-year students to enroll this fall, an enrollment decline of roughly 6-10% from the estimated 42,500 LSAC matriculants in fall 2012 noted above.
UNEVEN REDUCTIONS IN ENROLLMENT – The law schools ranked in the top 15 only saw an average decline in enrollment of roughly 5% between 2010 and 2012, while the alphabetical list of law schools saw an average decline in enrollment of roughly 18%. Law schools ranked 16-145 saw an average decline in enrollment of roughly 15% (14% for those 16-50, 15% for those 51-100, and 16% for those 101-145). If the fall 2013 LSAC matriculant number declines by 2,600-4,200 from fall 2012, one could anticipate that the decline once again would impact the law schools ranked in the top-15 only slightly, but would significantly impact a number of law schools ranked between 16 and 145, and even moreso, those ranked alphabetically.
Within each ranking category, however, there are likely to be some law schools hit harder than other law schools, as reflected in the information posted yesterday indicating that over 70 law schools saw first-year enrollment decline more than 20% between fall 2010 and fall 2012.
Moreover, the fall 2013 admissions cycle is the first admissions cycle in which the ABA’s school-specific employment outcomes data will have been available for prospective law students to make meaningful school by school comparisons. It also is the first admissions cycle in which law schools have had to publish scholarship retention information and include such information in scholarship award letters. It will be very interesting to see the extent to which those law schools with relatively poor employment outcomes for the Class of 2011 and/or Class of 2012 suffer greater declines in enrollment or in LSAT/GPA profile. It also will be very interesting to see the extent to which those law schools with relatively low scholarship retention rates suffer greater declines in enrollment or in LSAT/GPA profile.
FURTHER REDUCTIONS IN LSAT/GPA PROFILES – In November I noted that there are two competing tensions law schools must weigh in making admissions decisions in a declining market – revenue and profile. Some schools may have made conscious decisions in 2011 or 2012 to try to hold enrollment to generate revenue while taking a hit on profile or to take a hit on enrollment (and revenue) in an effort to hold profile, but as noted above, a significant number of law schools saw both a significant decline in enrollment (and revenue) AND a decline in profile.
Having taken hits on revenue over the last two years as a result of an overall 15% decline in first-year enrollment, with at least 73 law schools down more than 20% in enrollment, and facing a shrinking applicant pool again, many law schools are going to have to be focused largely on revenue, on simply trying to get as many students as possible in the door to minimize revenue shortfalls. As a result, LSAT/GPA profiles are likely to take significant hits across the board. (One exception might be Kansas, which recently announced that it likely will have only 120 students this fall and in the foreseeable future, down from a first-year class of 165 in 2010 (a decline of more than 27%), partly to right-size so that it can be more selective in the future. (In shrinking from 165 to 141 between 2010 and 2012, Kansas gave up a point at each LSAT indicator, but gained slight ground on each GPA indicator.))
Even law schools ranked in the top-50 are going to have profile challenges. In 2012 there likely were roughly 7800 first-year law students with LSATs of 165 or higher. (In previous years, roughly 85% of the applicants with LSATs of 165 or higher became first-year students. For fall 2012, there were roughly 9200 applicants with LSATs of 165 or higher, which would translate to roughly 7800 first-year students with LSATs of 165 or higher.) Of the 7800 who likely became first-year students in fall 2012, I would estimate that roughly 6800 might have found their way into top-50 law schools (based on an analysis of LSAT profiles for top-50 law schools).
Based on the current projections from LSAC for fall 2013, however, there likely will be only about 7600 applicants in the fall 2013 applicant pool with LSATs of 165 or higher, which might mean only about 6450 first-year students with LSATs of 165 or higher (if 85% become first-year students). That means there just are not going to be enough high LSAT students for every top-50 law school to hold its 2012 profile, even with a decline in enrollment. As these schools seek to fill their classes by taking applicants with slightly lower LSAT and GPA profiles, that is likely to have a cascading effect on profiles throughout the rankings.
When one looks more closely at the LSAC Current Volume Summary data, one discovers that 82% of the growth in applicants from January through May (21,041 of 25,666) has been from those applicants with LSATs below 160 and over 43% (11,124 of 25,666) has been from those applicants with LSATs below 150. In 2012, over 44,000 applicants had LSAT scores of 150 or higher. Present projections suggest that perhaps as few as 38,000-38,500 applicants will have LSAT scores of 150 or higher, some of whom will be inadmissible because of character and fitness issues or really low GPAs.
In yesterday’s blog posting, I noted the decline in average LSAT/GPA profile between 2010 and 2012 and noted that the number of law schools with a median LSAT in the 140s has more than doubled from 9 to 19 between 2010 and 2012. There are 17 more law schools in the list of alphabetical law schools with median LSATs of 150 or 151 in fall 2012 who could also slide into the 140s. It is possible that some law schools ranked 100-145 also will see their median LSAT slide to 149 or 148.
Fall 2013 is going to be another year in which many law schools see significant enrollment declines while most law schools see further declines in their LSAT and GPA profiles. This will be an admissions season in which “success” may be measured by not doing quite as poorly as others in terms of enrollment and profile.
And what about fall 2014? That is an even greater mystery that will have law school admissions personnel and law school deans and university presidents thinking long and hard about budgetary realities.
Wednesday, May 29, 2013
There has been a bit of a flutter recently regarding law school admissions in light of data from the LSAC Current Volume Summary for May 17, 2013, suggesting that the size of the applicant pool will be larger than earlier projections had suggested. It appears that a larger number of applicants are showing up later in the application cycle than last year. This has generated blog postings on TaxProf Blog, The Faculty Lounge and Lawyers, Guns & Money. While I will be posting my projections for the fall 2013 entering class on this blog in the next couple of days, I first wanted to recap (to the extent available data allows) the situation in which law schools have found themselves as of the fall 2012 entering class.
In November, I posted a preliminary, unofficial comparison of enrollment data for 140 law schools and profile data for 128 law schools that had such information posted on their websites as of November 15, 2012. Now, several months later, I have an updated analysis based on enrollment data from 188 law schools and profile data from 173 law schools that had published on their websites sufficient profile data on which to make meaningful year-to-year comparisons as of May 28, 2013. Please note that this data remains unofficial, having been taken from law school websites, not from any ABA publication. When the ABA posts the digital version of the Official Guide in the coming weeks, I will be able to run an official comparison across all schools.
DECLINING ENROLLMENT – Between 2010 and 2012, 147 of the 188 law schools with available enrollment information (roughly 78%) had a decline in enrollment of at least 5%. Of these 147 law schools down at least 5% in enrollment, nearly half – 73 --- were down 20% or more:
-52 of the 188 law schools with available enrollment information (nearly 39%) had a decline in enrollment of between 20% and 30%.
-21 of the 188 law schools with available enrollment information (roughly 11%) had a decline in enrollment of 30% or more, with 11 seeing a decline in enrollment between 30% and 40% and 10 seeing a decline in enrollment of more than 40%.
Notably, only 16 schools declined between 2% and 5%, only 16 schools were flat (a change between -2% and +2%) and only 9 schools had an increase in enrollment of at least 2%. Across these 188 schools, first-year enrollment declined from 47854 in 2010, to 44141 in 2011, to 40297 in 2012, an overall decline of 7557 or 15.8% between 2010 and 2012.
DECLINING PROFILES -- Among the 173 law schools with complete profile information available for their fall 2012 entering first-year class, the average LSAT profile has declined over the last two years, from a 160.6/158.3/155.4 to 159.8/157.2/153.8. The average GPA profile also has declined, from a 3.64/3.43/3.15 to 3.62/3.40/3.13. In addition, the number of law schools with a median LSAT in the 140s has more than doubled from 9 to 19 between 2010 and 2012.
DECLINING ENROLLMENT WITH DECLINING PROFILES – Perhaps most significantly, of the 73 law schools with declines in enrollment of 20% or more, 52 of those schools also saw a decline in their LSAT/GPA profiles between 2010 and 2012. That means roughly 30% of law schools with available enrollment and profile information for 2012 (52/173) had declines in enrollment of 20% or more and saw their LSAT/GPA profile decline. Notably, seven of these 52 law schools were in the 2012 USNews top-50, 13 were ranked between 51-100, 13 were ranked between 101-145 and 19 were in the alphabetical listing of schools. The declining interest in law school, therefore, is impacting law schools across the rankings, but is more dramatically impacting alphabetical schools than top-ranked schools.
As noted above, I am planning on posting a projection on fall 2013 first-year enrollment in the coming days. I also am planning on posting an analysis of scholarship retention information across all law schools sometime in the coming days.
Matt Bodie has noted my recent article in the National Law Journal, "The Calculus of University Presidents," and written a response that says, essentially, I am pushing the envelope too far. Matt cites a lot of shortcomings with my article. I will limit my response to three points:
- I was given a 1,000 words by the National Law Journal. So I am going to fail to address or consider a lot of relevant points, including many points cited by Matt. Oh well. See Parts II and II of my Blueprint of Change for a more serious treatment of this topic.
- I am closer to the financial conditions of law schools than most law school faculty, and the problems are indeed serious at many places. The 15% application drop and a $1.5 million budget shortfall were made up for the purposes of the essay. These figures are not critera, or my criteria, for anything, including the closure of law schools. That is all I am going to say about that.
- I have offered one possible response to the large scale structural change taking place -- I wrote it up in detail last fall because I felt it was irresponsible to write up the bleak news on law schools without offering at least one comprehensive action plan. See Legal Whiteboard, January 18, 2013. That's it. Other ideas are welcomed.
I grew up in Cleveland, Ohio during the 60s, 70s, 80s and witnessed the slowness of the region to accept that its industrial glory days were behind it. All people, including really smart people, have a hard time accepting large-scale institutional change--emotion obscures a reasoned analysis of the facts. This is why Who Moved by Cheese, My Iceberg is Melting, and other change management classics are written as fables. And yes, I see the same slowness to respond within the legal academy. That slowness has costs.
I am not the only academic who sees the world this way. One prominent law school dean tells the same story--often publicly--of his years as a youth growing up in Rochester, NY, home of now-bankrupt Eastman Kodak. The president of Eastman Kodak was on his paper route. When asked about the truthfulness of rumors that photographs could indeed be saved and displayed on a computer, the president brushed aside the question and instead waxed about the virtues of chemical film that built their bocolic neighborhood.
Truth be told, I probably did risk some reputational capital writing "The Calculus of University Presidents." But I am deeply worried about the future of legal education, and using the history of other industries as a guide, we are likely to underestimate the realities of the emerging legal landscape. See Richard Susskind, Tomorrow's Lawyers (discusing this future in intricate detail). So why not risk some of my reputational capital? I will make some people, like Matt, angry, but I might spur others to actions sooner rather than later. So be it. The purpose of tenure is to facilitate these judgment calls. I can live with that.
[posted by Bill Henderson]