Monday, March 26, 2012
New York Law School's "Victory" Was a Defeat for Law Schools--And Why the ABA Transparency Rules Will Fail
When the fraud lawsuit against New York Law School was dismissed last week, the school proclaimed vindication. It was anything but that. What Judge Schweitzer ruled is that no reasonable consumer would have relied upon the obviously inflated employment percentages and salary numbers posted by the school.
I just looked at two top fifteen schools, Harvard and Stanford. Harvard reports a drop in employment in 2010 over the previous years. Stanford seems to have an increase, but the school is smaller than Yale. The number would seem to be within a normal variation.
You are right. I meant the remaining top 15 schools reported employment percentages "higher than Yale's," not "higher than last year." I clarified the wording.
I'm reminded of some recent defenses by the tobacco industry, more or less of the form: "of course we lied but it's your fault because you should have known we were lying".
If the law school doesn't like being compared to Philip Morris, it shouldn't act like Philip Morris.
Brian Tamanaha wrote: "It’s not clear how the number of students in “JD required” jobs can exceed the number of students who passed the bar, since the latter is necessary for the former."
It used to be that law firms would allow recent graduates at least two tries to pass the bar before letting them go. For example, I worked in the US practice of a large London law firm. One of my colleagues failed the bar exam on her first try in July but passed in on her second in Feb.(and so kept her job). U.S. News only considers the passage rate for "first time" bar exam takers when doing their calculations. So someone like my former colleague would be counted as employed in a JD required job but also someone who failed the bar exam on her first try. If there are a lot of similarly situated graduates, then the bar passage rate could be lower than the number of graduates in jobs that require a JD.
jpk's comment reminds me of a joke- what's the difference between Phillip Morris and a law school? One produces a toxic product that is harmful to society and the other one . . . well, you get the drift.
"It’s not clear how the number of students in “JD required” jobs can exceed the number of students who passed the bar, since the latter is necessary for the former."
Since when is it required to pass the bar to gain a JD? I was under the impression that graduating from an accredited law school was sufficient to earn a JD. Taking the bar comes after graduation and after the JD is earned. A company could conceivably require an employee to have a JD regardless of whether he has passed the bar. The statistic may be unusual, but not inexplicable.
the problem for schools like Wash U is that they continue to hold themselves out as a "national" law school; one that can regularly place students at BigLaw firms. and that is where the recession has hit hardest. the mid level schools, whose employment rates brian finds so puzzling, may actually be placing grads in government or small firm jobs, just as they have always done. eventually the impact will trickle down to these schools as well, but i don't think its hard to see why wash u would suffer disproportionately as its grads initially fail to come to terms with the changing BigLaw reality.
and, just as side note, some of the schools brian whose numbers brian implicitly calls into question, have received an A+ transparency grade from the national jurist based on data collected by the law school transparency project. wash u didn't make the top 25...
Your explanation is not supported by the data, which shows that employment in "JD required" jobs falls off in sync with ranking. You can see the details here: http://balkin.blogspot.com/2011/09/sobering-numbers-law-graduates-who-do.html
In other words, contrary to your assertion, the impact of the recession has already "trickled down" to mid ranked law schools, and did so at least three years ago. More to the point, schools have been having trouble placing their graduates for a decade, at least, since about a third of law graduates have not found lawyer jobs during this period.
Nor does your account explain how schools like George Mason, UNLV, and those other mid and low ranked law schools placed better than or equal to Yale. Nothing you say about Wash. U. addresses that implausible result.
On the issue of "transparency"--in my view the transparency grading system used by LST is fine and schools should be criticized for not posting results (including my own). But you missed the point of my post. The numbers themselves are often dubious, so schools that post (in the name of transparency) them are merely advertising dubious numbers.
Of course, I do not know whether any particular school is fudging. My post merely points out anomalies which raise the very questions Judge Schweitzer said should put people on notice that something is fishy about the numbers that requires further investigation.
If your assertion is that your law school's numbers are reliable (and I assume you verified this), then good for your school. My point is that there are plenty of oddities in the employment numbers out there than cannot be easily explained away.
I am only pointing out that those who actually look at these numbers seriously--rather than just speculate about causation and correlation based on how Yale should place relative to other schools--seem to think that several lower schools are being very transparent about their placement numbers. If you are implying that these numbers are fabricated, I think you have to do more than just point to how Yale places and say everyone else should do worse--that is, if you're interested in more than innuendo.
This is especially true when there are numerous alternative explanations out there. Despite your "data" point (which I confess I fail to understand, may just be me), I did address how some mid level schools continue to get "Yale comparable" job numbers. They are filling local employment positions, some in cities where the legal job market is actually quite good (due to recession created legal jobs like foreclosures etc...) Higher ranked schools may still be graduating those with "greater" aspirations, or may be trying to serve legal markets with more law schools, or whose legal markets suffered more from the recession.
I don't have any "data" to support this, I am simply positing an alternative explanation for the numbers you seem to find so suspicious. In the interest of some charity you might stop to think about such alternatives before jumping straight to an implication of bad behavior/lying on the part of others. I simply fail to see how the numbers you have pointed to justify the kind of indictments you've made. But, again, maybe that's just me...
I am for the principle of charity, but at some point you must question what is going on. Let's focus on a number provided by NALP based upon data it gathered: 64% of 2010 graduates obtained full time lawyer jobs.
If you compare this with the posted employment rates, many in the 90% range, there is ample reason to wonder if something "funny" is going on.
Your suppositions about local markets as the explanation for anomalies cannot be the answer to the huge employment advantage claimed by ASU over Arizona--in the same market!--when they are equivalent and the latter had a much higher bar pass rate. And don't ignore the fact that, as I revealed (based upon information), 11% of ASU's jobs are part time compared to less than 2% for Arizona.
You argue that law schools deserve charity--I think (given what has been going on) prospective students deserve employment numbers that are not misleading.
For example, your defense of the integrity of law schools cannot ignore the well known fact that folks employed as "academics" are graduates temporarily put on the payroll (typically at low pay in part time positions) by law schools to help boost their employment rate. This is only one technique among others we have used.
If my questions offend law schools (or you), that is regrettable, and when we get this sorry episode behind us it won't be necessary.
Meanwhile, let me again remind you of the judge's decision: numbers that seem implausible cannot be relied upon and require further investigation. You appear to be asserting that there is no basis to doubt these numbers and we should take law schools at their word until I have "direct evidence" of fudging. How am I supposed to get this (short of an inside whistle-blower like what happened at Illinois)?
If that is your position, then law schools cannot be challenged at all about these numbers. Perhaps that is your position, but I cannot agree.
Doesn't this argue for going back to the pre-1996 situation when people chose schools based upon other things than schools representations, which you seem to think will always be misleading?
Alright, Brian. I will, after a last point, let it go.
I am not trying to say that no school has ever fudged its numbers. I am simply saying that the data you point to is not terribly persuasive on that count. There are, as I have said, a number of alternative explanations, even in the case of Ariz and ASU (they can still have grads who seek different jobs/markets, class sizes can vary, etc). Although you are certainly right that we should be vigilant and suspicious moving forward, I'm not sure that pointing to other witches is a good way to go at this moment in time.
As to the "offense" I have taken, I hope you can understand that I don't like being called a liar (even by association)--particularly based on the kind of evidence you've given. If I come to believe that those whom I associate with HAVE lied, you can believe my indignation and anger with them will be far greater. At this point, I simply have no reason to believe that, and those external groups that have studied our numbers seem to agree.
And one last thing, I admittedly did not read Judge Schweitzer's opinion as carefully as you did, but I didn't remember it quite the same. I don't recall him saying that NYLS had blatantly lied about its numbers, and that only a gullible candidate wouldn't recognize the fraud. I thought the conclusion was (1) that NYLS did not present the information in a very transparent way--particularly regarding the percentages of salaries surveyed--and the plaintiffs should have been more active sifting the data; and (2) that the job market changed dramatically after the plaintiffs enrolled, so that the earlier numbers might have been accurate but should not have been taken as a promise of future performance. Again, maybe I skipped the parts I didn't like, but I didn't see the opinion as quite such a condemnation of the academy.
And I do apologize for being snotty about Wash U in the first comment, I think I just reacted to your seeming to hold out your institution out as an honest victim in all this...
The complain by Ian Bartrum:-
"I don't like being called a liar (even by association)--particularly based on the kind of evidence you've given. If I come to believe that those whom I associate with HAVE lied, you can believe my indignation and anger with them will be far greater. At this point, I simply have no reason to believe that, and those external groups that have studied our numbers seem to agree."
Is essentially a complaint about Prof. Tamamha's pointing up of UNLV employment data. Bartrum's argument is that the surprising performance of schools such as his could be explained by some sort of local factors in hiring. However, it would be considerably more convincing if the local factors led on to think that a law school in Las Vegas is somehow in a "hot market." But, other than the actual climate, the economic facts about Las Vegas would lead on to expect a disastrous 4-5 years for UNLV. For the last few years Las Vegas has one of the worst performing metropolitan economies in any modern country - at the peak of the recession Las Vegas was ranked only ahead of Athen's Greece (not Georgia)
To be blunt, if anything the local factors in Las Vegas would lead to a strong inference that UNLV should have some of the worst employment data of any law school - but it's doing better than Yale. The mind boggles......
What is bad for a "metropolitan economy" may actually be good for legal jobs; someone has to clean up the mess. And if you can point to any credible evidence that UNLV grads are competing directly with Yale grads for jobs I'd be interested to see it. We have very few in our market, and very few of our grads head to NYC. I hope that helps unboggle your mind.
We are all being called "liars" (directly and by association). Read Above the Law (not to mention the New York Times). Remember Villanova and Illinois--and there are many other examples (which I detail in my forthcoming book). Our belated push for transparency, and the new ABA rules, is an effort to regain our lost credibility.
By raising the questions I do in this post, I am only making explicit what many are already saying about these numbers.
Like you, I do not enjoy being called a liar (or manipulator, or gamer, or fudger). And my proposal--eliminate everything but "JD required"--is designed to regain our collective credibility by eliminating gaming opportunities.
If we are to solve this problem, it is essential for individual faculty members to take responsibility for the numbers posted by law school administrations (in our name). If we don't like being snickered at by others for seemingly inflated numbers, we can check ourselves to verify what our own schools post. Up until now, most law professors (including me) have ignored or avoided this, asserting that it is not our responsibility.
We can't have it both ways--saying it's not our responsibility, then getting mad when people point out that our numbers seem dubious. (I'm not now talking about UNLV in particular, as I accept your assertion that your school's numbers are legitimate.)
If we don't want to be seen as liars (individually and collectively), we must make an effort to police ourselves. It's too bad that law schools are in this position, but we brought it on ourselves.
Law teaching was an honorable profession when I started 17 years ago and it was seen as such by the general public--I fervently hope we are able to regain that. That is why I am writing these posts, fully aware that they create discomfort and unhappiness (and outrage) among fellow law professors.
On the good side, I also receive many supportive emails from law professors. Many of us dislike being seen as liars and those that do want this situation to get cleaned.
Professor T, what do you mean by "eliminate everything but JD required" ? Do you mean that this is all schools should have to report? Or do you just mean in the categories of jobs?
"Here is a list of the top 100 schools with the largest gap between their reported employment rates and their bar pass rates:..."
Following the colon are the names of 18 schools. Maybe the author should mast basic verbal expression before getting too critical of so many educational institutions.
I don't disagree at all with your proposal re "JD required", so perhaps I can exit the discussion on a point of accord. I look forward to the book.
My proposal is that only one statistic should be reported by law schools (and counted in the ranking): What percentage of the graduating class obtained full time "JD required" jobs. This basically means what percentage of the class landed jobs as lawyers (and judicial law clerks).
At some law schools this will only be 30% of the class--at other law schools 90%. This number will give prospective students a good sense of the strength of their credential in the job market (even if they might not want a lawyer job).
All other employment categories ("academic," "business,"...) should not be reported or counted.
These categories are where the gaming comes in. Some of these are real jobs, but others are not. And we cannot tell the difference from the outside.
Thanks for the answer. Is this a change in view? I seem to remember an earlier exchange in which I suggested that schools should not have to post the kind of information that they do now. If I remember correctly you disagreed, saying that the expectations for reporting were such that that was not a viable idea. I could be wrong in my memory of this.
In any event, your idea is intriguing. The potential for gaming is a problem, but it takes two to tango. It seems clear that this information is being taken, or people are encouraging people to take, this consumer information as a form of a contract. Students often see what they want to see. If 160k appears anywhere on the page, it will be taken as the salary the student wants to have and should have if they want it. There is no way to fight against that. Your idea may be a good one to combat this tendency. Good luck after the sustained effort by LST and others to demand information about everything, as if that were the answer.
Ian Bartrum -
My mind remains firmly boggled. What I see is a UNLV professor trying to come up with unsupported explanations of how UNLV could somehow be turning in astonishingly successful job placement statistics for first year lawyers, when it is not by any stretch of the imagination a highly regarded national law school. Moreover, Las Vegas is the epicenter of the recession and unless you are suggesting that the UNLV graduates were hired by foreclosure mills, the job claims have to be treated with considerable incredulity.
I am sure that you regularly suggest that your students "think like a lawyer." I am a lawyer, a litigator, who for 20+ has challenged economic evidence regularly, almost always with success. An economic "expert" making the argument that the could be some "fairy in the sky" reason why their law school is that special little place, even though every observable factor leads to an opposite conclusion would in every forum I have seen be a "greasy spot on the pavement" when it was over.
I do not think you see how ludicrous your arguments are. But I do think you need to consider that as a lawyer and as an educator you have ethical obligations - you should see yourself as having a fiduciary duty to your students - one that demands the highest level of honesty - and that includes not making or supporting unsubstantiable claims and making a reasonable enquiry as to their substance.
Frankly, what your posting shows is a sort of foetal crouch - a member of the UNLV faculty muttering "say it ain't so" "maybe there is pie in the sky" maybe there is some bizarre and unlikely plot twist. Ask yourself - when you went to law school, young and hopefully idealistic, did you ever see yourself postulating what you have done for several postings here. Professor Tamanaha has raised some inescapable issues about UNLV employment data - you have responded with "precious" cries of wounded innocence, absurd and unsupported suggestions that UNLV may be a "special snowflake", but no hard questions for the institution you are connected with.
Think about what that says..
I have not studied the numbers and have no bottom line conclusions, but I would like to note that one factual assumption Brian makes, in his comparison of the U of A and ASU, is probably incorrect. That is the two schools operate in the same employment market. ASU is in the Phoenix metropolitan area, with a population of over 4 million, and the U of A is in Tucson, with a population of about a 500,000. Phoenix is the state capital as well as the business and financial center; Tucson has the university and some military installations. Many students at ASU develop relationships with potential employers while in law school. It is not at all implausible to think their proximity to where the local jobs are gives them an advantage in securing those jobs.
Brian suggests that Arizona will be “sorely tempted” next year to resort to some “…expedient to raise its employment to approximate ASU’s. ASU’s aggressive gaming thus puts pressure on Arizona to aggressively game. ”
For the record, we have not succumbed to that pressure or changed in any fashion the way in which we report our employment data. Our employment statistics for the Class of 2011 can be found here. http://www.law.arizona.edu/Admissions/documents/2011piecharts2.pdf.
Dean, University of Arizona James E. Rogers College of Law
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