The Happy Charade: An Empirical Examination of the Third Year of Law School

Journal of Legal Education

Volumn 51, Issue 2, 2001, Pages 235-266

  Gulati, Mitu ^a   Sander, Richard ^a   Sockloskie, Robert ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0035562030     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (67)

1. We are indebted for this history to the excellent recent article by Christopher Cunniffe and to our colleague Bill Klein, who served as associate director of the 1971 Carrington Report on legal education. See Christopher T. Cunniffe, The Case for the Alternative Third-Year Program, 61 Alb. L. Rev. 85, 91 (2000).
2. The first report, directed by Paul Carrington, was funded by the Ford Foundation and published by the AALS in 1971. It was reprinted with the second (1972) report, which was funded by the Carnegie Commission on Higher Education; see Herbert L. Packer & Thomas Ehrlich, New Directions in Legal Education (New York, 1972).
3. We began our survey project with two key goals: aiming to trace the extent and nature of any gender gap in the performance and difficulties men and women experienced in law school, and seeking to understand how third-year law students perceived their future careers as lawyers and whether some students self-selected out of parts of the curriculum. See Richard Sander & Kristine Knaplund, Through the Gender Gap (unpublished draft, on file with authors); See also Charles T. Cullen, St. George Tucker and Law in Virginia, 1772-1804 at 120 (New York, 1987).
4. For example, Tucker explained that the American Revolution had "produced a corresponding revolution not only in the principles of our government, but in the laws which relate to property, and a variety of other [laws] irreconcilable to the principles contained in the Commentaries." Michael Grossberg, Citizens and Families: A Jeffersonian Vision of Domestic Relations and Generational Change, in Jefferson and Education, supra note 5, at 19. David B. Wilkins & G. Mitu Gulati, What Law Students Think They Know About Elite Law Firms: Preliminary Results of a Survey of Third-Year Law Students, 69 U. Cin. L. Rev. _ (forthcoming, 2001).
5. Among the more prominent articulations of The Bleak Story are the following: Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy and Unethical Profession, 52 Vand. L. Rev. 871 (1999);
6. Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 Minn. L. Rev. 705 (1998);
7. Graham C. Lilly, Law School Without Lawyers, 81 Va. L. Rev. 1421 (1995);
8. Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge, Mass., 1993);
9. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992). For a recent article that describes the literature on American legal education and the bleak story that dominates it,
10. see Kirsten Edwards, Found! The Lost Lawyer, 70 Fordham L. Rev. 37 (2001) (positing an increased focus on clinical education as a solution).
11. The timing for judicial clerkships is remarkably similar, with mostjudges making their hiring decisions early in the job applicant's second year of law school. These judges, like many of the employers, appear to think that a law student's first-year performance provides them with an adequate amount of information to make a hiring decision for two years hence. Put differently, they do not appear to think that information about a student's performance in the second and third year is important enough for them to wait to analyze it.
12. By implication, then, course selection doesn't matter throughout law school, since the first-year curriculum is generally fixed.
13. This study is described in Linda F. Wightman, LSAC National Longitudinal Bar Passage Study, LSAC Research Report (Newtown, 1998).
14. See also Linda F. Wightman, Are Other Things Essentially Equal? An Empirical Investigation of the Consequences of Including Race as a Factor in Law School Admission, 28 Sw. U. L. Rev. 1 (1998);
15. Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. Rev. 1 (1997);
16. and Linda F. Wightman, Women in Legal Education: A Comparison of Law School Performance and Law School Experiences of Women and Men, LSAC Research Report (Newtown, 1996)[hereinafter Women in Legal Education].
17. LSAC was particularly concerned to learn these rates for minority students, who were feared to have (and turned out to have) significantly higher failure rates than their white peers.
18. See Linda F. Wightman, User's Guide: LSAC National Longitudinal Data File 1-18 (Newtown, 1999).
19. Id.
20. See, e.g., Legal Education at the Close of the Twentieth Century: Descriptions and Analyses of Students, Financing, and Professional Expectations and Attitudes, LSAC Research Report (Newtown, 1995);
21. Letter from William Short to Greenbury Ridgely (Dec. 11, 1816), in To Practice Law, supra note 120, at 349-50. One former student wrote Tucker in 1802 about his frustration with practice in the county courts of Virginia: "I feel myself very much unprovided with that kind of teaching, which alone seems useful in county courts. And though I may be in possession of some uncoined ore, which may hereafter be valuable, and which great labor has extracted from the mines of Coke and Sheppard yet the current half-pence, in possession of every pettifogger, gives them a . . . superiority, which I cannot relish." Letter from Chapman Johnson to St. George Tucker (May 29, 1802), in Tucker-Coleman Papers, supra note 114. Wightman, Women in Legal Education, supra note 7.
22. Sander's coauthors were Kris Knaplund, senior lecturer in law, and Kit Winter, a member of the law school's class of 1997.
23. A copy of this survey instrument (and the subsequent third-year survey instrument) can be found at the ERG Web site; see 〈http://www.law.ucla.edu/erg〉.
24. We had funding of $5,500 from the dean of our law school and subsequently got $34,500 from LSAC for analysis. In contrast, the BPS had a budget in the millions. The success of the 1995 study was overwhelmingly due to the exceptional interest and cooperation of key people at each of the participating schools.
25. These colleagues included Pauline Kim, Deborah Merritt, and David Wilkins.
26. Five of these eleven schools did not, for logistical reasons, actually administer the survey until the spring of 1999.
27. But note that at no school using the in-class method did we survey classes that even potentially reached 100 percent of the third-year class. This proved too difficult logistically. Our main goal was to at least sample representative pools.
28. This was difficult, though, because virtually all courses with third-years also have a number of second-year students, who would of course not complete the survey, and it would be hard to keep track of which third-year students left class when surveys were passed out.
29. See 〈hltp://www.law.ucla.edu/erg〉. Researchers may also access the full database if they contact us and are willing to execute the appropriate confidentiality agreements.
30. Since most state bars require that students not only earn credits at law school but actually attend a certain minimum number of hours of instruction, many of the graduates who sit for the bar are technically not qualified to do so. Law schools are complicit in this fraud since they routinely certify that students have attended all the hours of course work for which they were scheduled unless they receive affirmative evidence from an instructor that the student has not attended class. In this sense, our use of the term charade to describe the third year is more than metaphorical.
31. The six statements, and the percentage agreeing with each, were as follows. 1. There has not been enough clinical training available for students. (26%) 2. The third year of law school is largely superfluous. (43%) 3. The school's placement services do a good job of assisting students to achieve their career goals. (32%) 4. The school places too much emphasis on "diversity" in legal education. (17%) 5. The curriculum as a whole does not provide adequate opportunities to develop business skills. (34%) 6. Most of my courses show how legal doctrines work in institutions and real-world settings. (17%) As throughout the survey, we attempted in this question to balance positive and negative probes and to avoid suggesting that any implicit answer was the "right" one. We would not have predicted in advance that, of these six statements, the second would elicit by far the strongest agreement.
32. And students who say this tend to act as though they mean it: agreeing with this statement is correlated with preparing less for class. At the high-response school, Omega, 44 percent agreed with this statement.
33. Students who have had at least one clinical course report spending a tiny amount more time on course work, though the difference is barely significant statistically. One cannot conclude much from this since many of these students are not taking clinical courses during the period for which they are reporting study time.
34. Although this gets ahead of our story, we discuss in part IV (and provide some support for this) the possibility that clinical education makes a difference in student satisfaction and engagement, but only if the clinical program is well developed and has curricular depth.
35. The BPS results also contain a bias in that there was an oversampling of minority students in the followup surveys. But this does not cause a problem for our test/rejection of The Bleak Story. According to The Bleak Story, an oversampling of minority students should cause satisfaction levels to go down because these are supposedly the most dissatisfied of the students. Hence the bias in the data would only cause the real satisfaction levels to be even higher.
36. Of the remaining 21 percent, about one quarter had not secured jobs - a moderately significant correlation. Note, too, that the optimism levels for both men and women are roughly the same - an odd result given the literature on the difficulties that women have in advancing in corporate law firms.
37. And the employer category employing the largest fraction of these students (40%) is that of the large and elite firms - the employers who are most often cast as the villains in The Bleak Story. For data on the employer breakdowns, see Wilkins & Gulati, supra note 3. Indeed, students going to large law firms were somewhat more optimistic about having satisfying careers than other students.
38. Our purpose in reporting these particular results is not to deconstruct and analyze student perceptions of the job market; that is the task for a different paper. We report them because these results belie the notion of cynical or despairing students that is so common to the imagery of law school.
39. The survey asked students to score a variety of factors according to their perceived importance for advancement at the type of employer they were planning to work for. The options were very important, important, marginal, somewhat irrelevant, and irrelevant. Our sister paper reports on these results in greater detail and breaks out the results according to employer type. See Wilkins & Gulati, supra note 3.
40. The results mentioned in this paragraph of the text are described and analyzed in detail in our sister paper. See id.
41. See National Institute of Mental Health, Mental Disorders in America (Washington, 2001), available at the NIMH Web site, 〈http://www.nimh.nih.gov/publicat/numbers.clin〉.
42. If the correlation of nonattendance and depression were as high as .3, this would imply a third-year rate of serious depression of only around 7 percent (i.e., still significantly less than the first-year rate). Note, too, that the same pattern occurs at the high-response Omega Law School: students reporting that they felt depressed "most of the time" fell from 9.2 percent in the first year to 2.6 percent in the third year.
43. In the BPS, it is 45.3 percent for women and 46.3 percent for men.
44. In technical terms, the factor loadings for the eight variables ranged from .22 to .44, with six of the eight factor loadings higher than .32. The correlations between each dichotomous variable and the general gloominess scale are all higher than .40. The Cronback coefficient Alpha is .51 - not a particularly high value, indicating that we have not created a complete measure of alienation, but one quite good for our limited purposes.
45. As with the earlier questions, we did not find significant gender gaps on the responses to the overwhelming majority of these questions. But there were a few large and interesting gaps. Among the few significant gender gaps was one on the importance attached to personality as a hiring criterion. Women students perceived the candidate's personality as significantly more important than did their male counterparts. For a discussion of the possible implications of this result, see Wilkins & Gulati, supra note 3.
46. These results are reported in detail (and broken down by employer type) in id.
47. In a regression on the 858 students at 10 schools for whom we have complete information, in which the dependent variable was the four-tier satisfaction question reported in Table 4, higher law school grades were strongly associated with higher satisfaction (t-statistic 6.19), as was having a definite job lined up (t-statistic 7.06). Our three-tier scale of eliteness (top 5, top 20, and all others) was not significant at all (t-statistic-.19). LSAT score, standardized for each school, had a weak negative association with satisfaction (t-statistic 1.75). Note, however, that the overall explanatory power of the model was relatively low (adjusted r-squared = .10).
48. See Wilkins & Gulati, supra note 3.
49. When we deleted it (in order to check whether the numbers for this one school were driving things), eliteness still did not correlate positively with satisfaction.
50. Some law schools - including one of the eleven in our third-year sample - actually require that upper-level law students perform pro bono work. Interestingly, we found that pro bono activity by third-years was not statistically different at this school than at others in our sample. It goes without saying, then, that school requirements do not explain the first- to third-year increase we observe.
51. There is an extensive literature on proposals to reform legal education. What is missing in much of this literature, however, is a link to rigorous research on what exactly the problems with law school are. For examples of recent reform proposals by some prominent commentators, see Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education? 6 Harv. Negot. L. Rev. 97 (2001);
52. Richard A. Posner, The Problematics of Moral and Legal Theory 286-95 (Cambridge, Mass., 1999);
53. John Sexton, The Law School's Global Presence, NYU Law Magazine, Autumn 2000, at 44-71.
54. The student speeches can sometimes stand in stark contrast to The Official Story. For example, the student speaker at the UCLA law school's 2000 graduation spent a considerable portion of his speech talking about how he and his fellow students had hardly attended any classes in their third year and had to struggle to find "course outlines" to be able to prepare for their exams at the end. While the students laughed uproariously at their classmate's stories about his search for outlines, many of our colleagues were noticeably silent.
55. Among science and social science departments, for example, a leading and distinguished approach to ranking came from the National Research Council, Research-Doctorate Programs in the United States: Continuity and Change, eds. Marvin L. Goldberger et al. (Washington, 1995).
56. The AALS commissioned a report to examine the validity of the U.S. News and World Report ranking system; it was released in 1998. As best we know, its impact has been negligible. For the report, see 〈http://www.aals.org/validity.html〉. There have also been some attempts to rank law schools using other measures, such as those by Brian Leiter of the University of Texas at Austin and Thomas E. Brennan, a former justice on the Michigan Supreme Court. Nevertheless, we are confident that it is the U.S. News rankings that capture most of the attention of students, academics, and employers. For more on the Leiter and Brennan rankings,
57. see Brian Leiter, Measuring the Academic Distinction of Law Faculties, 29 J. Legal Stud. 451 (2000);
58. Thomas E. Brennan. Judging the Law Schools (East Lansing, 1996);
59. see also 〈http://www.law.faculty.bleiter〉; 〈http://www.ilrg.com/rankings〉.
60. Clinical courses, of course, do not have to be litigation oriented. At UCLA, for example, the faculty has recently put in place a Business Law Specialization Program that has as an integral part a requirement that students take a minimal number of business transactional courses that are referred to as "clinical" and are oriented toward teaching students about the structuring of business deals.
61. Northeastern law students have to successfully complete multiple externship quarters - each supervised by a lawyer or a judge - in order to graduate. See Daniel J. Givelber et al., Learning Through Work: An Empirical Study of Legal Internship, 45 J. Legal Educ. 1 (1995).
62. The UCLA law school is currently pursuing funding from government sources to establish an "incubator" of community law practices, aimed at providing both curricular settings for student experience and training, and a mechanism for launching new public-serving law practices. The medical-school-type program that we sketch is different from the Rutgers program, which keeps in place the existing law school model but appends a practice component after the three years are completed. See Andrew J. Rothman, Preparing Law School Graduates for Practice: A Blueprint for Professional Education Following the Medical Profession Example, 51 Rutgers L. Rev. 1512 (1999). This difference is, of course, a function of the data that show that law students are largely uninterested in what goes on in the third year of law school.
63. Vanderbilt Law School, for example, has set up a series of law-and-business classes that are jointly run by law and business school faculty and use many aspects of the business school teaching model. Early reports on this program from Randall Thomas and Robert Thompson suggest that the third-year students are much more engaged than they are in the traditional upper-level business courses. Along similar lines, Ronald Gilson (Columbia and Stanford), Victor Goldberg (Columbia), William Klein (UCLA), William Allen (NYU), and Eric Zolt (UCLA and Harvard), teach what are often referred to "deals courses" at their respective institutions. These are courses that use the model of teaching students through an exposure to a variety of business deals. As with the Vanderbilt courses, the deals courses also borrow much from the business schools in terms of teaching methodologies. And, once again, the courses are reputed to be hugely successful in keeping the attention of third-year law students.
64. We are aware of similar courses at four other top business schools: Influence, Power, and Transformational Leadership at the Wharton School, Power and Negotiation at MIT, Power and Influence in Organizations at Chicago, and Power and Politics in Organizations at Stanford.
65. Address at the University of Cincinnati Symposium on Corporate Law (March 2001).
66. A version of this broader perspective has been urged by our colleague Lynn Lopucki. See Lynn Lopucki & Walter O. Weyrauch, A Theory of Legal Strategy, 49 Duke L.J. 1405 (2000).
67. See Sander & Knaplund, supra note 3.