November 3, 2011 5:19 PM

Dear Prospective Law Students, Do Not "Reasonably Rely" on Cooley's "Report One"

Posted by Matt Leichter

This year, graduates from three law schools decided to serve their alma maters with summonses and complaints instead of giving them donations. Among the defendants stands Lansing, Michigan's Thomas M. Cooley Law School, which filed a motion to dismiss the case against it on October 20.

By my understanding, the law school argues that it has adhered to the American Bar Association's graduate employment standards, while the plaintiffs allege that the actual statements the law school made to them concerning their potential employment prospects constitute fraud. The U.S. District Court for the Western District of Michigan will ultimately decide which party is right.

Cooley, though, is not like its peer defendants, Thomas Jefferson School of Law and New York Law School. In the last decade, Cooley built three branch campuses in Michigan and is opening a fourth in Florida, and for the 2010–2011 academic year its 3,931 students comprised 2.7 percent of all ABA J.D. candidates.

For its efforts, in addition to being sued, Cooley has been hit hard with attacks from so-called scambloggers. The school has even sued the author of one scamblog, Thomas M. Cooley Law School Scam, alleging defamation. On top of these headaches, applicants started avoiding it three years ago as the graph below illustrates.

Last year Cooley accepted 83.3 percent of all applicants and 84.4 percent of full-time applicants, higher than the ABA's average "applicant yield." Given the near double-digit law school applicant nosedive in 2011, more than most law schools, the data suggest that Cooley will not fare well going forward.

With this context of heightened criticism and dwindling applications in mind, it's unfortunate that commentators have missed an amusing irony: Mere weeks before the alumni filed the lawsuit, Cooley released "Report One: National Employment," which uses U.S. Bureau of Labor Statistics (BLS) data to vigorously contest claims that there's anything wrong with the employability of law graduates as lawyers generally. I say "ironic" because Report One contains plenty of bold statements that I would not make if I were a law school now facing fraud allegations. Its third paragraph informs us of its goals:

"The purpose of Report One is to insert the nation's most authoritative employment data into the public dialogue about the national legal employment picture. Since the onset of the recession and during the slow recovery, this public dialogue has been dominated by bloggers and a small element within the media. According to their posts and stories, lawyers are largely unemployed, law school graduates have no hope for employment, and the investment in law school is not worthwhile. They assert that attending law school is a bad decision because of the lack of jobs, given the cost of legal education. Most of these assertions are anecdotal, unbalanced, lacking in factual support, and as Report One reveals, contrary to official U.S. employment data." (1)

As a blogger who tries to refrain from using evidence that is "anecdotal, unbalanced, and lacking in factual support" to show that "the investment in law school is not worthwhile," I will, as a courtesy to law schools fearing lawsuits, inform all the prospective law students out there that they should not "reasonably rely" on Report One when deciding to apply to law school. Cooley's effort is unconvincing, but blessedly its hostility toward "the bloggers and media" is sure to entertain readers.

Low Lawyer Unemployment!

Cooley's argument rests on "unemployment by occupation" data from the BLS's Current Population Survey (CPS). Specifically, in 2010 the unemployment rate for lawyers held at a very low 1.5 percent; for all legal occupations it was 2.7 percent, and the national unemployment rate was 9.6 percent. The unemployment rate for lawyers was lower than those of all other occupations except dentists, physicians, and veterinarians. Report One then sneers, "Both rates contradict the claims of high unemployment in the legal profession asserted by the bloggers and media."

So excited are legal education defenders by Cooley's discovered datum that Saint Louis University School of Law professor Aaron N. Taylor deploys it in a National Jurist guest editorial titled, "Why law school is still worth it." Taylor writes, "There has been a lot of negative talk about law school lately, but the facts belie the hype. The legal profession has low unemployment rates, lawyers earn high salaries and loans are manageable." Clearly elements in the legal academy are pushing back against legal education critics, and their arguments go beyond sighing over the need for more transparency in graduate survey data.

So has the legal academy found its magic bullet against scambloggers? More like fool's gold.

A Deeply Flawed Methodology

First of all, verifying the number of "unemployed lawyers" is difficult because the BLS's Web site does not provide the data in the CPS tables, and Report One links to none. I did manage to corroborate it via a Wall Street Journal article that uses it as a primary source. The CPS does provide the seasonally adjusted unemployment rate for "legal occupations" in Table 25 (archives available), and the unemployment rate for legal occupations also correspond to Report One's numbers. So why should we remain unconvinced?

There are two conceptual problems with Report One that precede discussions on its data.

(1) Fallacy of equivocation. If you read large-scale studies on the value of higher education that include law degrees—such as the Pew Center's "Is College Worth It?" and Georgetown University's Center on Education and the Workforce's "The College Payoff"—you'll find that researchers tend to conflate holding a law degree with employment as an attorney. The two concepts are readily distinguishable: one can easily hold a J.D. and work outside the legal profession, and there are rare instances of lawyers who didn't attend law school. Furthermore, one would think that a law school pondering the value of legal education would have an idea of how many of its graduates are working as lawyers. Are all but a handful of Cooley grads over the last 30-some years meaningfully employed as attorneys even though the University of Texas recently calculated that no less than one-third of its living graduates are using their law degrees in completely unrelated fields, such as dog trainers, skydivers, and wind farm employees?

(2) Definition of unemployment. The BLS's definition of unemployment centers on concepts of people earning no income while actively searching for a job. It does not say anything about previous employment. This raises a host of additional questions. Is someone who never found work as a lawyer an unemployed lawyer? What about those who never obtain a license? Isn't every unemployed lawyer really a solo practitioner without clients? How often do "unemployed lawyers" find work again as attorneys? How many J.D. holders are employed in nonlegal positions such as Texas's graduates? How do we distinguish between those whose legal educations substantively benefit their current work (the "versatile J.D." myth) and those who could never find meaningful entry into the profession? Are document reviewers counted as employed lawyers or as clerical workers for a temp agency? You can see how difficult it is to prove the value of legal education from a negative concept such as unemployment. This should explain to the authors of Report One why the lawyer unemployment rate is "absent in the public dialogue about the national legal employment picture": It is useless. (1)

What the BLS Really Says about Lawyer Employment

Readers of Report One who visit the BLS's Web site may be shocked to find that its analyses explicitly contradict Report One's conclusions to such an extent that they may question the report's authors' diligence and competence. In fact, the BLS indicates that entering the legal profession carries a significant employment risk, though it doesn't mention the concomitant student debt burden.

(1) The 2010–11 edition of the BLS's Occupational Outlook Handbook (OOH) clearly states that America's law schools are overenrolled.

"Job prospects. Competition for job openings should continue to be keen because of the large number of students graduating from law school each year. Graduates with superior academic records from highly regarded law schools will have the best job opportunities. Perhaps as a result of competition for attorney positions, lawyers are increasingly finding work in less traditional areas for which legal training is an asset, but not normally a requirement—for example, administrative, managerial, and business positions in banks, insurance firms, real estate companies, government agencies, and other organizations. Employment opportunities are expected to continue to arise in these organizations at a growing rate.

As in the past, some graduates may have to accept positions outside of their field of interest or for which they feel overqualified."

Curious readers will discover that the OOH has stated this in every single edition going back to at least 1996–97, when it stated:

"During the 1970s, the annual number of law school graduates more than doubled, outpacing the rapid growth of jobs. Growth in the yearly number of law school graduates tapered off during the 1980s, but again increased in the early 1990s. The high number of graduates will strain the economy's capacity to absorb them."

Has the ABA or any law school ever been so candid? Wait, if the government has known for years that law schools are overenrolled, why does it continue to subsidize them with nondischargeable debt? (Whoa, let's not get ahead of ourselves; that's for another post.)

(2) There are far more law degree holders than employed lawyers.

The CPS tables and the OOH do track the number of employed lawyers, though they differ by about 25 percent. I include both because the OOH numbers are the ones the BLS uses to project future lawyer employment. We can compare these to the number of ABA law school graduates over the previous 35 years (2010 grads, page 871), a measure used to gauge the number of available attorneys.

From 1996 to 2010, the economy created 146,000 lawyer jobs according to the CPS. In the same time period 614,089 people graduated from ABA law schools. For all graduates to be employed as lawyers, the lawyer attrition rate would need to be so massive that entry wouldn't be worthwhile in the long run. For the OOH, the attrition rate would be even higher due to only 103,200 jobs created.

(3) The BLS Projects Grotesque J.D. Overproduction

The OOH publishes employment projections for ten years from 2008. These projections assume the economy will return to full employment by then. Between 2008 and 2018 the economy will produce 240,400 lawyer jobs from growth and replacement. In 2010 alone, 44,258 people graduated from an ABA–accredited law school. Even if that number holds, in the ten-year projection period, around 45 percent of ABA law school graduates will not work as lawyers according to the OOH, and this excludes those who graduate from non-ABA-accredited law schools or who enter the profession unconventionally.

Conclusion

The "nation's most authoritative employment data" explicitly and implicitly state that the legal education system is overbuilt, and vast numbers of today's law students—to say nothing of yesterday's—will never meaningfully enter the profession. Report One disagrees.

"In sum, the data shows that the blogs and media segment have it almost completely wrong. Unbiased national data from the past ten years establishes that the legal profession has one of the lowest unemployment rates, one of the most stable job markets, and is one of the least susceptible to the effects of economic recession, making the legal profession one of the best career choices." (7)

BLS data and common sense tell us that Report One is completely wrong and is either willfully designed to mislead readers into believing the legal profession will provide jobs for law students, or its authors are irresponsibly ignorant.

If you or someone you know is considering law school, do not "reasonably rely" on Report One, and before you file your fraud lawsuit against Cooley or any other law school that unwisely republishes its findings, know now that you were warned.

Matt Leichter is an attorney licensed in Wisconsin and New York, and he holds a masters in International Affairs from Marquette University. He operates The Law School Tuition Bubble, which archives, chronicles, and analyzes the deteriorating American legal education system. It is also a platform for higher education and student debt reform.



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