University of North Carolina Professor Bernard Burk (Photo by Steve Exum)
Some of my previous posts challenged law school deans, admissions officers and faculty members who live in denial about the crisis in legal education. This time, I celebrate a law professor who sees things as they are and isn’t afraid to speak truth to power.
Before joining the faculty at the University of North Carolina, professor Bernard Burk was an academic fellow at Stanford. Prior to that, he spent 25 years in private practice at a firm that eventually merged with Arnold & Porter. We don’t agree on everything, but Burk’s three-part series published on the Faculty Lounge blog about law, culture and academia culminates in a June 30, 2014, post that earns him my latest “Commendable Comment Award.”
The “Versatility” Sales Pitch
Burk analyzes the “versatility of a legal degree” argument. It’s often cited to counter some law schools’ dismal employment outcomes for graduates seeking jobs that actually require a J.D. More specifically, the ABA allows schools to soften their self-reported and unaudited employment results with a loosey-goosey category: “J.D.-Advantage” positions. To be sure, some are good jobs; but many aren’t. The problem is that schools don’t have to disclose any information about any of them.
The ABA’s definition of J.D.-Advantage includes a range of examples so broad that it demonstrates the potential for gaming the numbers: corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, risk manager, accountant, journalist, human resources employee, law firm professional development worker and almost anyone working at a law school in any capacity—from admissions to career services. And even that list isn’t exclusive.
Schools following the ABA’s honor system of reporting don’t need much imagination to dump lots of recent graduates into the J.D.-Advantage category. Perhaps that’s one reason that the category is growing so dramatically. For the class of 2013, more than 6,300 graduates had what their schools called J.D.-Advantage jobs, a significant increase from 5,200 for the class of 2011, the first year the category was introduced.
Admissions Deans as Used Car Salesmen
Burk compares law schools relying on undifferentiated J.D.-Advantage jobs to used car salesmen. Both assure you that what they have is what you need. But used car salesmen never say, “No worries, pal. You should buy this car because even if the engine implodes the minute you drive off the lot, the smoking pile of scrap that’s left will have measurable salvage value.”
“We generally don’t buy cars for their salvage value,” Burk notes, “especially when any car you buy will have salvage value if it can’t serve the purpose you actually bought it for.”
But some—not all—J.D.-Advantage jobs look more like the realization of a legal degree’s salvage value for those who have them. That doesn’t mean a legal education lacks intrinsic value. As Burk observes, some prospective students might view what they learn in law school as valuable for its own sake, regardless of whether it leads to a career in the law or enhances their earning power. But three years and $150,000 in tuition is more than most people are willing to spend on such a personal enrichment exercise alone.
A more thoughtful approach is what Burk calls the “Practical Justification Test.” Like the prospective used car purchaser, the prelaw student asks (or should ask), will a law degree actually take me where I want to go? For this group, full-time long-term J.D.-required employment upon graduation is the most meaningful outcome because law schools exist to produce lawyers. Distinctions based on that criterion should be critical in deciding whether and where to attend law school.
Hope vs. Reality
A third rationale for law school involves magical thinking. That’s where some deans, faculty and admissions officers have now staked their claims. Burk describes the premise of this argument as follows: “The course of study transforms you into such a Smokin’ Bucketful of Awesome that the degree alone routinely opens doors to countless jobs unrelated to the course of study that would otherwise be closed to you or that you will be so much better at whatever you do that the degree is a Rocket to Success at almost anything.”
In response to Burk’s categories, University of Kansas assistant dean for admissions Steven Freedman (the subject of one of my earlier posts) offers a fourth category: “Many students see the versatility of the law degree as form of risk insurance.”
Freedman’s comment (also on the Faculty Lounge blog) generated lines from Burk that earn him my latest “Commendable Comment Award”:
“Touting the salvage value of a law degree as ‘a form of risk insurance’ without offering a clear-eyed assessment of how likely it is that the risk insurance will be needed, what its coverage limits are and how cheaply you could get the same benefit another way is inexcusably incomplete. It’s a failure to accept the difference between a Smokin’ Bucketful of Awesome and smoking pile of scrap.”
There’s an easy fix. The ABA could require law schools to disclose in detail what their graduates are actually doing in J.D.-Advantage jobs or, at a minimum, how much they’re earning in such positions. Until that happens, prospective students would be wise to assume that, for most schools, the category includes a lot of scrap.
Steven J. Harper is an adjunct professor at Northwestern University and author of “The Lawyer Bubble: A Profession in Crisis” (Basic Books, April 2013) and other books. He retired as a partner at Kirkland & Ellis in 2008 after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at http://thelawyerbubble.com/. A version of the column above was first published on The Belly of the Beast.