What is the future of ABA accreditation of law schools? (In short, fairly secure)

A recent announcement by the chair of the Federal Trade Commission with respect to the American Bar Association drew some attention. As announced:

Today, Federal Trade Commission Chairman Andrew N. Ferguson announced a new policy that prohibits FTC political appointees from holding leadership roles in the American Bar Association (ABA), participating in ABA events, or renewing their ABA memberships. Additionally, the FTC will no longer use its resources to support any employee's ABA membership or participation in ABA activities.

Although this missive is not related to the ABA’s role accrediting law schools, nevertheless the question arises: is there potential peril for the ABA’s role in accrediting law schools?

While the ABA has insisted for a long time that there is a significant wall of separation between its accrediting authority and its other activities, there is no question that its active political engagement as an organization, including, inter alia, claiming that the Equal Rights Amendment is currently the Twenty-Eighth Amendment to the United States Constitution, has drawn significant criticism. Formal separation or not, the appearance of political influence is enough to draw challenges.

But the ABA is no stranger to controversy with the federal government with respect to its role as accreditor. In the 1990s, it entered into a consent decree with the Department of Justice because its accreditation standards were, at the time, deemed too stringent. In 2016, the Department of Education came after the ABA for being too lax in its standards. It has hardly been a model accrediting body.

That said, to be an accrediting body of law schools can mean two things.

The first, and what the ABA’s troubles have reflected, is to be an accrediting body of an institution of higher education so that the institution is eligible for, among other things, federal loan disbursements. You can read the fairly generic statements in the CFR to see what an accreditor must do. There are many accreditors of higher education—the ABA is only one. Indeed, most law schools are twice accredited, because they are a part of a university, and that university is accredited by some other body (e.g., the Middle States Commission on Higher Education, the Higher Learning Commission, WASC, or some other entity).

Anyone can do this—anyone can form an organization that meets the CFR rules and start accrediting schools. Understandably, there haven’t been many making the effort to jump into this domain.

And so long as the ABA continues to meet the CFR rules—subject, of course, to oversight, as the DOJ in 1995 and Department of Education in 2016 made perfectly clear they are willing to do—they will continue to accredit schools.

The second, and what many separately discuss, is the role of ABA accreditation as a condition of admission to the bar. The vast majority of states require that bar admittees have attended an ABA-accredited law school and obtained a JD. There are a few notable exceptions, like California, which permits admission to the bar for those who attend a California-accredited school, or even an unaccredited school, if certain conditions are met.

For many years, I’ve wondered (somewhat rhetorically) why the ABA continues to accredit law schools. It used to be that it believed accreditation would improve the quality of lawyers admitted to the bar, by requiring a certain floor of education. It’s obvious over the years that the ABA, through various pressures (e.g., the 1995 consent decree), does not measure much on this domain. The ABA also focuses increasingly on outputs of law schools—e.g., how many of your students have passed the bar exam. If students pass the bar exam, which is the barrier to practice, then it seems that accreditation is a superfluous barrier to practice. Of course, there are consumer protection rationales for accreditation, but those are different measures that might be implemented more inexpensively than the full-scale ABA accreditation.

Likewise, the ABA continues to require more and more specific demands of law schools (in contravention of its own advice a decade ago) and fails to measure whether it is achieving its goals when it implements new standards that purport to achieve some desired end.

But for a state bar or state supreme court considering whether ABA accreditation is a worthy precursor to admission to the bar, states have precious little influence.

A state could, like California, open up admission to the bar to a larger group of individuals. That would diminish the ABA’s influence. But the experiment in California has not played out particularly well, in my view. The vast majority of non-ABA accredited schools are materially worse (but not all!) than the bulk of ABA schools. There is tremendous market pressure for prospective students to attend an ABA accredited school. These non-ABA accredited schools are typically cheaper, but the student quality tends to be much lower, and many will fail the bar exam and never ultimately practice law. It is a tradeoff to consider these risks.

So there is a way to dilute the influence of the ABA, but it does not seem particularly viable (at least, as seen in California so far).

States also have great challenges by thinking about in-state and out-of-state influence. A single state—say, New York or Texas—could insist that ABA accreditation is not a prerequisite to pass the bar exam. The state might require, say, attending any school that issues a JD. Of course, this is mostly going to be ABA accredited schools or California schools—and there might be much less oversight, if some unaccredited school opens and purports to issue a “JD.”

Likewise, a state could require a graduate attend any accredited school that issues a JD. That way, if the school is accredited by, say, WASC and issues a JD, it would count just as much as an ABA accredited JD. But few law schools would change their behavior. You’d need an ABA-accredited JD to get admitted to the other 49 states, so the incentive to skip ABA accreditation is quite low.

States, you see, have little leverage as individual states, at least in one direction, that of loosening standards. If one state relaxes its standards, schools won’t change. That’s because they really need to ensure they meet the most stringent jurisdiction’s requirements so their graduates can be admitted into any state. In California—a very large market—some schools have taken the leap to focus exclusively on one state at the expense of all others. But for many schools, it is not feasible to think they would change. It would take a critical mass of states to loosen standards—and even then, it’s not clear many schools would change.

A state could also tighten its standards with idiosyncratic additional rules (e.g., a requirement that all law school graduates take 15 units of “experiential learning”; that all law school graduates perform 50 hours of pro bono work before acceptance to the bar; etc.). California has attempted versions of these. In-state schools tend to react with robust programs. Mostly, however, it places significant costs on (often first-generation) law students at out-of-state schools who unwittingly learn about conditions to legal practice because most schools simply can’t provide bespoke accommodations to each state’s bar.

So a state bar could change who accredits or loosen the standards for who accredits, but it likely doesn’t affect many schools’ behavior (except, perhaps, attract a few more marginal players into the market, who might launch schools). A state bar could tighten the standards (e.g., require more than the ABA or something the ABA doesn’t require), but that tends to fall on individual out-of-state law students.

In short, the two functions of ABA accreditation—complying with the Department of Education regulations to unlock federal loans for students at those schools, and ensuring some minimum level of education as a condition for admission to the bar—appear to be fairly secure. True, the Department of Education could revoke the ABA’s accrediting authority, but it would need to explain why it’s failed existing CFR rules, and that seems unlikely at the moment. Likewise, it could suspend them from accrediting new schools (as it has temporarily done in the past), but that would really just preserve the status quo. Alternatively, it might develop new CFR rules for all accrediting bodies, not just the ABA, about what needs to go into accreditation (or what should not be a part of accreditation), but that seems a heavy future lift. And finally, it seems unlikely state bars are in a position to do much, unless a critical mass of them manage to free schools from ABA accreditation specifically and permit alternative accrediting bodies as permissible (and even then, the vast majority of law schools would still seek ABA accreditation so long as even one state requires ABA accreditation as a condition for bar admission).

But, of course, politics and administrative rules are a dynamic field, and things could change quickly. That said, I tend to anticipate the status quo will remain, and that’s my anticipation here, too.

Federal government hiring freeze could dramatically affect some law schools' employment outcomes

The reports are coming in from law schools around the country about law students, either about to graduate or set for summer employment, losing positions in the federal government as the result of a recently-initiated hiring freeze. Some of those positions may be made available again in the near future, as departments are staffed with political appointments and begin to make decisions about hiring. And it is not all federal positions: “This order does not apply to military personnel of the armed forces or to positions related to immigration enforcement, national security, or public safety.”

Law school employment metrics often look to “full weight” jobs—full-time, long-term, bar passage-required to JD-advantage jobs. And for some schools, the number of recent graduates placed into government jobs can vary dramatically from school to school. Some of the top schools for the Class of 2023:

Albany 27.9%

Dayton 25.4%

South Dakota 24.1%

Regent 22.6%

Northern Kentucky 22.4%

Florida A&M 22.3%

Syracuse 21.3%

Southern Illinois 20.5%

George Mason 20.2%

Catholic 20.2%

Pace 20.2%

Widener-Commonwealth 20.0%

Liberty 19.8%

McGeorge 19.8%

Florida State 19.7%

The ABA data do not separate state or local government jobs from federal government jobs. But it is probably fair to assume that for students at schools in the state capital (Albany, Florida State) or near the state capital (Dayton, Syracuse), many of these are state jobs. For schools in and around Washington, DC (e.g, Regent, Georgia Mason, Catholic), it is likely there are more federal jobs. These schools could be most affected by a hiring freeze, both in this metric and in any rankings that rely on this metric.

But a lot of school—including the vast majority of elite schools—send very few into government jobs (the vast majority end up in large law firms or judicial clerkships). Again for the Class of 2023:

Chicago 0.5%

Cornell 1.7%

Penn 2.0%

USC 2.2%

UCLA 2.2%

Duke 2.5%

NYU 3.2%

Virginia 3.2%

Northwestern 3.2%

Loyola Los Angeles 3.5%

Columbia 3.5%

Harvard 3.7%

Western State 3.7%

Stanford 3.8%

Michigan 3.9%

I’m interested to see if the aggregate jobs in government change when the Class of 2024 data is reported this spring. And I’m also interested to see if it disproportionately affects a subset of schools—or if those schools manage to find other outlets for their graduates. That said, most people who graduated months ago may be secure in their positions and it will affect relatively few. Perhaps more from the Class of 2025 will be affected—but they also have a longer window to secure positions.

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Latest ABA data shows a continuing decrease of Black men enrolled in law schools

Any discussion of race, sex, and legal education has its own challenges about how to approach or how to interpret the topic, but some recent trends are noteworthy enough to raise, which I do here, and leave some of the discussion of implications for others.

Total 1L enrollment of Black law students has been fairly steady at law schools in the last decade. Total 1L enrollment has been fairly stable, mostly between 37,000 and 38,500 with occasional forays above 40,000. For Black 1Ls, it’s been mostly between 2900 and 3500 1Ls. (For figures, see the statistics here.)

For 2024, Black 1L enrollment is 3066, up a tick from 2023’s 2969. Stories like this one at the New York Times focus on a few elite law schools, particularly Harvard, and its declining Black 1L enrollment after the Supreme Court’s decision in Students for Fair Admissions. It’s a fairly anecdotal story, though—the picture for legal education as a whole looks a little different than a deep dive on a handful of schools.

One fairly significant and underreported story for that bigger picture of legal education is the wide, and now widening, gender gap among Black law students.

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Let’s start with the overall portrait of sex and legal education. In 2016, women outnumbered men in the incoming 1L class for the first time. The total number of women has continued to climb, and the total number of men has continued to fall.

While men totaled around 18,000 to 19,000 of 1L enrollees about a decade ago, and even up until a few years ago, it’s down to around 16,000 now (16,679 for the incoming Class of 2024). Women enrolled rose both in absolute and relative numbers over the years, from 19,032 in that 2016 figure to 22,276 in 2024. Among men and women, women were 51% of the incoming class in 2016; they are more than 57% of the incoming class of 2024.

This is consistent with trends in higher education more generally, as men are increasingly eschewing college and women enroll at much higher rates. As the gap in undergraduate education widens, one would expect the gap in legal education to widen, too.

So, there is a story to tell in recent years about sex and legal education. But the interaction with race is a separate noteworthy development.

There are anecdotes about the gender gap between Black men and women in the legal profession in recent media. For instance, President Joe Biden recently appointed Embry Kidd to the federal court of appeals, and news outlets noted that it was the second Black man he appointed to the bench, compared to thirteen Black women. (At the district court level at the time of that story, it was 20 Black men and 25 Black women.)

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But 1L enrollment tells a story about the current and future state of the legal profession, too. As the gender gap has widened more generally in legal education, it has widened particularly acutely for Black men.

Back in 2016, there were 1198 Black men enrolled in the 1L class, and 2076 Black women. Women were 63% of the total of Black men and women 1L enrollees. In the last decade, the total number of Black men has fallen to 918 in 2024, about a 25% decline since 2016. (And in 2017, 1L Black men totaled 1281, so the fall to 918 is even more precipitous compared to that bench mark.) For Black women, 1L enrollment is up slightly since 2016, to 2103 1Ls in 2024 (some years climbing into the 2200 range). That moves the percentage of Black women up to almost 70%—more than a 2 to 1 ratio.

There are challenges with this, like any, data. This data set only includes those who identify as a man or a woman, not another gender identity or refuse to reveal their sex (although the ABA aggregates those, but they are a much smaller number, around 32 Black 1Ls total in 2023 and 45 in 2024, to give two examples). It also includes only those who identify as “Black of African-American” (the category the ABA uses), not those who refuse to disclose, or who identify as two or more races (although the ABA aggregates those, too). But for consistency, we can make the comparative approach over the last decade with the same kind of data limitations.

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In many respects, Black men have all but disappeared from legal education in many places. Consider the following statistics about the 918 Black men who make up the incoming 2024 1L class.

• About one-sixth of Black men enrolled as 1Ls (154) are concentrated at the five HBCU law schools.

• Another 13% (120) are concentrated at what might have historically been labeled “top 14” law schools.

• 27 law schools (about 14% of law schools) report zero Black men who are 1Ls.

• 51 law schools (about 26% of law schools) report one or two Black men who are 1Ls.

There are, of course, reasons for some schools to have such figures (e.g., lower racial diversity in some great plains or mountain west states and their affiliated law schools). But the figures are fairly noteworthy all the same.

In short, in the aggregate, Black 1Ls have been a fairly stable cohort in the entering 1L class over recent years, and the incoming 2024 admissions class is no exception. But there’s a deeper story to examine about race and sex when it comes to legal education.

As I opened this post, any discussion of race, sex, and legal education can be challenging. And presenting data always presents its own challenges, including what conclusions to draw or what implications the data offer. One could compare the current legal education picture to the legal profession as a whole. One could look at current trends and ask why certain trends are happening or what can or ought to be done about them. One could drill down to individual schools or cohorts of schools, by “prestige” or by geography. But there’s no question that the ABA data shows a continuing decrease of Black men enrolled in law schools, and the numbers are more stark than they’ve been in recent history.

Inside the USNWR law school rankings: when a median LSAT of 173 is better than a 174

The latest 509 data disclosed the LSAT medians of the entering 2024 students (Class of 2027) for law schools. Topping the list were Yale and Harvard, which each had a median LSAT of 174. Harvard’s 25th percentile was a 171, and Yale’s a 170. The next tranche of five schools had a median of 173—Chicago, Columbia, Cornell, Stanford and Washington University in St. Louis. Columbia had a 25th percentile of 170; Chicago, Cornell, and Stanford a 169; and Washington University a much lower 163 (for reasons why schools have significant 50th-25th percentile gaps, check out this post). Another band of schools below that has a 172 median.

For USNWR rankings purposes, you might look at this data and realize, well, first, it’s odd to only use the median LSAT rather than considering other bands (e.g., 75th and 25th percentiles) of admitted students. But if medians are used, it might look like Yale and Harvard are tied for first, and the next five schools tied for third.

But, very roughly, here’s what USNWR sees:

1. Chicago 0.9815

1. Washington University 0.9815

3. Harvard 0.9784

4. Columbia 0.9771

5. Cornell 0.9762

6. New York University 0.975

6. Penn 0.975

6. Virginia 0.975

9. Yale 0.9728

10. Stanford 0.9703

*

The first thing that USNWR does is measure the percentile equivalent of the LSAT score. Near the very top of the LSAT scores, there is a very high degree of compression. The increase of a median LSAT score from 173 to 174 is much less valuable than, say, the increase of a median score from 163 to 164. A 174 puts you higher than 98.66% of test-takers; a 173, higher than 98.15%. A small gap (0.51 percentage points), all things considered. Compare that to the 163-164 gap (83.08% to 85.58%, 2.5 points), or 153-154 (49.98%-53.87%, 3.89 points).

But there is now tremendous compression at the top of the law school rankings, so even small differences can mean a lot. And even though USNWR significantly devalued “inputs” (like admissions metrics—LSAT medians are just 5% of the overall rankings now), again, small changes can mean a lot.

In theory, Yale and Harvard should place first with a 0.9866 in the metric. But USNWR adds a caveat:

These are the combined median scores on the LSAT and GRE quantitative, verbal and analytical writing exams of all 2023 full- and part-time entrants to the J.D. program. Reported scores for each of the four exams, when applicable, were converted to 0-100 percentile scales. LSAT and GRE percentile scales were weighted by the proportions of test-takers submitting each exam. For example, if 85% of exams submitted were LSATs and 15% submitted were GREs, the LSAT percentile would be multiplied by 0.85 and the average percentile of the three GRE exams by 0.15 before summing the two values. This means GRE scores were never converted to LSAT scores or vice versa. If a school was not required to report GRE scores to the ABA for the disclosure requirements because a small number of incoming students reported these scores, they were not used in the rankings.

Many schools reports some number of students admitted with a GRE score. But you are only required to disclose the GRE scores of your students if you admit at least 10. Chicago (5) and Washington University (6) admit them in sufficiently small numbers that they do not need to disclose. But Harvard (43) and Yale (24), among others, do.

USNWR uses a nonsensical methodology for GRE scores. As I’ve chronicled here, the Educational Testing Service, which administers the GRE, has its own comparison tool to take GRE scores and offer a predicted LSAT score.

Let’s take Yale for a moment. Its 24 GRE enrollees have a median verbal score of 167 and a median quantitative score of 164. ETS predicts that to be a 172—quite close to the 174 median, and around the 97.5 percentile.

USNWR instead simply takes the percentile equivalents of three GRE sections (not just two), the verbal (for Yale, 167 is 97%); the quant (for Yale, 164, 66%), and the analytical (for Yale, 5.5, 98%). It appears USNWR weighs them equally, for an 87% score—not only much lower than 98.66% for the LSAT, but also lower than the ETS percentile equivalent of 97.5%.

More than 10% of Yale’s enrollees with an LSAT or GRE opted for the GRE (24 GRE, 204 LSAT), so that is factored into the Yale median LSAT score.

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You can see the total enrollees, and the enrollees with an LSAT score or a GRE score. It includes the medians for these scores, the average for the GRE scores, and an “LSAT equivalency” score at the end.

How significant is this decision? As you can see, a pure 173 LSAT median is more valuable than an LSAT median of 174 with a non-trivial GRE cohort that includes the average of the GRE percentiles, rather than the ETS measure of GRE-LSAT comparison.

And for Yale, the difference is so significant that, in my projected USNWR rankings, all else being equal, if Yale could simply rely on its 174 median instead of this GRE-LSAT composite metric, it would be tied for second rather than third.

Updated projected 2025-2026 USNWR law school rankings (to be released March 2025 or so)

The updated 509 data from the American Bar Association discloses a good deal of public information about law school admissions and law school faculty that is ultimately used in the USNWR law school rankings. We now have about 75% of the information that USNWR uses in its rankings and can do a pretty good job estimating it, subject to some methodological quirks that are hard to replicate and subject to the survey data that won’t be revealed until the spring (but that is notoriously sticky). It’s also possible USNWR modifies its methodology, of course. But I took the opportunity to update my projections from last spring now that we have even more data. I tried to add precision from the last go-around, so that can explain some changes; otherwise, changes to LSAT or UGPA medians, student-faculty or student-librarian ratios, or admissions rate may have moved schools around slightly. For more about (projected) changes in rankings to schools like NYU and Cornell, check out this blog post I wrote from last year about the changes in methodology. And one more note, the new methodology means more compression and volatility, so proceed with caution! Note: tied schools are not listed alphabetically, but by raw score—so that means there’s a higher likelihood that in a tier of tied schools that the top one could move up or the bottom one could move down depending on methodology tweaks or data errors.

School	Projected Rank	This Year's Rank
Stanford	1	1
Chicago	2	3
Yale	3	1
Virginia	4	4
Penn	4	4
Harvard	4	4
Duke	7	4
Michigan	7	9
Northwestern	7	9
NYU	10	9
Columbia	10	8
UCLA	12	13
Berkeley	13	12
Washington Univ.	14	16
Vanderbilt	14	19
Texas	16	16
Georgetown	16	14
North Carolina	16	20
Cornell	19	14
Notre Dame	20	20
Minnesota	21	16
Boston Univ.	22	24
Georgia	22	20
USC	24	20
Texas A&M	24	26
Wake Forest	24	25
Boston College	24	28
Ohio State	28	26
Florida State	28	48
William & Mary	28	36
BYU	28	28
Florida	28	28
George Mason	28	28
Alabama	28	33
Washington & Lee	28	33
George Washington	36	41
Irvine	36	42
Utah	38	28
Wisconsin	38	36
Iowa	38	36
Emory	38	42
Baylor	42	46
Fordham	42	33
SMU	42	42
Arizona State	45	36
Indiana-Bloomington	46	42
Colorado	46	48
Illinois	48	36
Villanova	48	48
Davis	48	55
Connecticut	48	55
Temple	48	54
Pepperdine	53	52
Kansas	54	46
Washington	54	48
Tennessee	54	52
San Diego	54	68
Missouri	58	61
Oklahoma	58	55
Arizona	60	55
Penn State-Dickinson	60	75
Maryland	62	55
Loyola-Los Angeles	62	61
Kentucky	62	61
Houston	65	68
South Carolina	65	66
Penn State Law	65	68
Cardozo	65	61
Wayne State	65	55
Pitt	65	91
Tulane	65	78
Cincinnati	65	78
UNLV	73	78
St. John's	73	68
Catholic	73	94
Seton Hall	73	61
Nebraska	73	82
Northeastern	73	68
Drexel	73	75
Marquette	80	68
Florida International	80	68
Richmond	80	66
LSU	80	91
Georgia State	84	75
Maine	84	120
Belmont	86	91
Loyola-Chicago	86	78
Miami	86	82
Texas Tech	86	82
Denver	90	89
UC Law-SF	90	82
Drake	90	82
Duquesne	90	94
Stetson	94	98
Oregon	94	82
Lewis & Clark	96	82
St. Louis	96	94
Chapman	96	108
Buffalo	96	108
Montana	100	103
Regent	100	108
Rutgers	100	103
American	100	98
Hawaii	100	127

Law school 1L JD, non-JD enrollment rebound from last year's decline

The 2024 law school enrollment figures have been released. They show an uptick in JD enrollment and a big rebound in non-JD enrollment. About 16% of law school enrollees are not enrolled in a JD program.

For nine of the last 11 years, 1L JD enrollment has been between 37,000 and 38,500, remarkable consistency. In 2021, it hit a recent high of 42,718, but it trended down for a couple of years. It’s back up to 40,650.

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Total JD enrollment sits at 115,410, down a bit from last year and well off the peak of 2010-2011 with 147,525.

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Non-JD enrollment has been more fickle in recent years. It ballooned to more than 24,000 students in 2022, good for more than 17% of all law school enrollees, but settled down to 21,966, 15.8% of all law school enrollees last year. It’s back up to 23,583 enrollees, good for 17% of total law school enrollment.

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Eleven schools have at least 40% of their total overall law school enrollment made up of non-JD students in 2024.

Some thoughts on the Ho-Thapar debate on federal judicial clerkship boycotts

Imagine this: you grew up in rural Texas to a lower-income family, and no one in your family attended college. But you’re attending college, as best you could figure out, and attend a nearby regional public university. You excel and thrive. You choose political science because you find it fascinating, and you’re interested in law school. There isn’t much of a pre-law program at your school. No one in your family has gone to law school, and outside a couple of family members who had brief encounters with the criminal justice system, you’ve never met a lawyer, to your knowledge.

But you study for the LSAT and score well—very well. You have a high GPA, too. And so you apply broadly. Not knowing much else, you look around for law school rankings, and the same schools are always at the top, so you apply to them. You are accepted at Yale, which offers generous financial aid given your socioeconomic status. Yale is very far from home, but you realize the opportunity means something. You attend. And very quickly, you hear people talking about “clerkships,” jobs that can really help you in your career and really outstanding experience.

After one semester at Yale, you learn that judges are already hiring. In something of a panic, you follow the lead of other students and start to apply. You’re from Texas, so you look to Texas. And you’re told, still learning, of course, that the federal courts of appeals—one step below the United States Supreme Court—are the most desirable. So you send out applications to some of those judges, including one particular federal appellate judge in Texas.

Sorry, the judge says in a reply letter, I won’t hire you, because I don’t hire from Yale because of some things that happened before you ever applied.

*

The background story is, in many respects, not unlike my own (but I did not attend Yale—for that, perhaps instead consider Clarence Thomas or JD Vance…), a first-gen law student who never traveled far from home and had little concept of the legal profession or “clerkships” before entering law school. And it’s here to highlight the significant student-oriented cost of any “boycott” that federal judges might impose on law schools.

I haven’t really weighed in on this debate, because it was playing out very publicly more than two years ago, and I didn’t know it would stretch very far or or last very long. I did note that the whole debate was focusing on a very narrow sliver of clerkships and would not affect very many people.

But it’s recently come back into the public consciousness, as Judge James Ho has given multiple talks in the last several days, including a recent Advisory Opinions podcast, in defense of the boycott—a boycott he initiated. His new tour takes aim at the critics, including, on the other side, Judge Amul Thapar, among others. I use them as the sides of this “debate,” but one could easily construct other ways of setting up the debate (and the debate is on quite amicable terms).

I do know I am adequately positioned to weigh in. I’ve worked at three law schools, including playing significant roles with clerkships institutionally at all three; I’ve had extensive examination of legal education and employment outcomes, and specific studies on federal judicial clerkships. This blog is filled with discussions of clerkship figures and statistics, along with the market of legal education and legal employment. So I can speak much more confidently about the overall economy of legal education and judicial clerkships.

To set the stage. From Sarah Isgur’s interview at Advisory Opinions with Judge Ho (around the 11:30 mark, lightly cleaned up):

Ho: The main argument that I’m hearing from some of the judges on your podcast, and Judge Thapar, his most recent remarks, is that, we shouldn’t do this, because it will hurt students. And with respect, I don’t understand that argument. And let me explain why. I would regard that as what I’ll call a “losing” attitude when we should have a “winning” attitude. And let me explain what I mean by that.

Every boycott throughout history, just the very concept, by definition, it’s people refraining from engaging in transactions they would otherwise want to because of some larger goal that they have in mind. So if you just assume, 100% chance it’s not going to work, it’s not going to change anything, then all you do is calculate the losses, the consequences. Under that theory, nobody would ever boycott, the word wouldn’t exist, nobody would every do this. I think you should have a winning attitude. What that means is, actually do what rational decisionmakers do, figure out the benefits of success, the costs of failure, and then measure that against the probability of a certain tactic succeeding or failing.

So let me ask you a simple question, I appreciate you quoting my earlier speech, when I talked about the customers of a big company, so I don’t have to go through that again. Just a very simply question. If a dozen, two dozen federal circuit judges, agree that, you know, this school is adding more toxicity to our future leading class, class of leaders in the future, if we decide we’re going to hire from other schools from now on, what would the law school do? Would they say, no sweat, we’ll just send our kids to other law firms, other employers, no big deal? Or would they change? Honestly, what do you think?

Isgur: I don’t know. It depends on the school.

Ho: That’s the first time I’ve heard that. Every time I’ve asked that question, everybody’s agreed, no, every school cares deeply about this.

Isgur: Ten years ago I would have agreed. Now I wonder if we’ve gotten to the point where—I don’t know, maybe they shoot themselves in the foot and just be like, well, you shouldn’t be around those bad people anyway.

. . .

Ho: What they’re saying is, what happened is terrible. We regret all this. Please keep hiring our students. You don’t need to do this. Et cetera et cetera. So they're not acting as if you know, no big deal. They don’t care.

Isgur: Will you give us an update on the boycott, like where it stands right now? What schools are included in your boycott? How effective do you think it’s been based on what you just said?

Ho: Sure, well, so I’ll tell you in terms of effectiveness, quick story justice, William Brennan. . . .

I don’t know what the future will hold. My hope is that they will change.

Isgur: Is Yale the only school you’re not hiring from right now?

Ho: Yale. A year later, there was an incident at Stanford that was, that was, that was, let’s say, universally described as has a bad development. And then, of course, Columbia, that became essentially ground zero for all the post October 7 intolerance. So those are the three schools we've talked about.

And so we’ll see, I mean compared to the three year boycott that Justice Brennan did, this is still in its infancy.

Respectfully, I think Judge Ho doesn’t quite grasp the current economy of law schools with respect to employment for their students, and the overall economy for judicial clerkships, especially in the present moment.

Let’s start with the “clerkship.” It’s true that a clerkship has long been deemed a valuable experience and an important part of a new lawyer’s entry in the profession, particularly for elite law schools, both as a credential and as a learning opportunity. For a wide variety of reasons—some of which are directly attributable to federal judges’ behavior—that is much less the case.

The market for federal judicial clerkship opportunities is quite large. Between 1100 and 1200 new graduates each year take a federal judicial clerkship. And there are many more positions filled by other graduates. And as that linked post shows, a generation ago, many more students took clerkships directly out of law school than today. Many judges prefer clerks with work experience, and now take them after a prior clerkship or after working. The value of the clerkship, in and of itself, has somewhat diminished. The clerkship is no longer the signaling or credentialing mechanism that it once was. It is still important, but less so.

Judge Ho suggests that a “dozen” or “two dozen” court of appeals judges could move the needle. I don’t think that’s quite right. The first, of course, is that there aren’t two dozen judges on the boycott. Those judges hold would, at most, around 90 of the more than 1500 positions (with caveats of multi-year clerkships, career clerks, and the ratio of judicial assistants and clerks in a chambers). It’s true that appellate clerkships are more coveted. But even there, there are 179 federal appellate judgeships, and many more senior status judges, for something like 700 or so clerkship positions.

This is a stark contrast to the anecdote involving Justice Brennan (an interesting choice of exemplar, to say the least), which involved (1) Supreme Court clerkships, which are more prestigious and far more scarce (~36/year); (2) withdrawal from one school for three years (Ho here suggests this boycott is in its “infancy”; and (3) the return to choosing Harvard clerks. But that’s really not the whole story—Justice Brennan used to hire exclusively Harvard clerks before his “boycott,” and after that he did hire clerks, but at a much lower rate than before. The damage was, essentially done.

There is quite obviously not the same leverage in these circumstances. And it’s quite clear that there’s a massive collective action problem. Judge Ho puts the terms of a “dozen” or “two dozen,” but in order to reach scale for effectiveness, you’d probably need a majority of federal appellate judges to even dent the clerkship economy market. Isolated actions will not alter the market in a meaningful way. (More on who it does affect in a moment.)

Another is the nebulous definition of “toxicity.” The ad hoc decisions to include Yale, Stanford, and Columbia [ed.: few Columbia law students pursue federal clerkships, anyway] do not seem particularly coherent. At Yale and Stanford, there were administrative problems at the law school; at Columbia, the university. The latter is much more problematic to manage from a boycott like this. Other schools, like UCLA had very public problems very similar to Columbia. Why is UCLA not included? I won’t pick on other schools (and there are many that could be named); I just mean to suggest, the categories of “toxicity” worthy of a boycott do not seem to track particularly helpful criteria.

It’s also not clear when the “end” will arrive for the boycotts or what that “end” game is. Take Yale. In recent months, it has hired Professors Keith Whittington and Garrett West, among others, and two faculty, I think, someone like Judge Ho would quite strongly approve of as reducing the “toxicity” of the faculty (again, to use his term). Why isn’t that enough to drop the boycott? What steps must the school take?

Regardless, it seems quite clear, to me, anyway, that the “boycott” has expanded to more schools, of indefinite time and scope, and that there are not particular actions any schools have yet taken that have assuaged the concerns of boycotting judges.

The ever-expanding list and non-responsiveness of schools suggests, I think, that the employment economy suggests a boycott will not be effective.

For rankings purposes, clerkships do not mean anything. A job is a job in those rankings. For career advancement, as I’ve mentioned, clerkships are less valuable. Additionally, the sheer enormity of the law firm salary makes clerking less attractive, even with a clerkship bonus—and the mere lack of opportunities will only mean more students earn more money. Indeed, we’ve seen stories about law students affirmatively failing to apply for clerkships because of a lack of interest. And more schools are appreciating the value of state court clerkships in ways they did not before.

So the market for clerkships is fairly large; there are high quality replacements for clerkships (i.e., a lucrative law firm salary); the opportunities are fairly fungible for students; and the schools do not suffer from employment-related or rankings-related metrics for a loss of clerkships.

In short, there are lots of reasons to think the market won’t particularly respond to a boycott—indeed, it has not.

But let’s get back to my opening anecdote. The burden here will fall on someone. There are intensity of preferences concerns that individual law students bear, but the school does not. A student greatly desires a particular clerkship; for the school, another clerkship will suffice, because, after all, clerkships are largely fungible, and the market can be idiosyncratic. A student wants to go back to Texas; for the school, there are other ways of getting there, or other desirable regions.

Maybe this student in my opening hypothetical will land on his feet. He’ll apply a little more and find the clerkship he wants. Or maybe he’ll skip the clerkship altogether. But the point is, I’m not sure the benefits, whatever they are, will be terrible measurable, and the tactics do not strike me as ones likely to succeed.

Let me close with this. Judge Ho in the interview notes, “What they’re saying is, what happened is terrible. We regret all this. Please keep hiring our students. You don’t need to do this. Et cetera et cetera. So they're not acting as if you know, no big deal.”

That’s assuredly right. Anytime someone has a very public rift with the school, especially somebody in a position of authority, the school’s reaction will naturally be—in private if not public—how can we fix this? They do care.

But “caring” is a very different matter from making major institutional choices in reaction to the boycott. I’m not convinced thing will change as a result of this boycott, as opposed to other institutional pressures (e.g., major donors threatening to withhold funding). And given that there appear to have been insufficient changes at these three boycotted schools in the last couple of years to appease the boycotting judges, so far, this view may end up being right.

It's time for the AALS to bring back the Faculty Recruitment Conference

The Association of American Law Schools’ annual Faculty Recruitment Conference—sometimes the “Meet Market” (or “Meat Market”)—was a longstanding complaint among legal academics. It took place at a now-demolished hotel in Washington, DC, known for its “towers” across the complex and challenging means for interviewees to race from interview to interview. It was an expensive endeavor for everyone involved. It was a draining experience. Covid disrupted the status quo—now, screening interviews could take place leisurely, over Zoom, with less cost and more flexibility.

But… it’s time to bring the FRC back.

I’ve run appointments on both sides of Covid, and I’ve seen the appointments process play out several times on both sides of it, too. There are major costs to the absence of the FRC.

Let’s start with how the process works for candidates now.

AALS sends out the Faculty Appointments Register to interested law schools in mid-August. Schools review candidates, then extend invitations to candidates to interview. Because of time zones, windows of opportunity may reasonably range from 5 am Pacific, to 9 pm Eastern, depending on one’s time zone. Suppose you secure an interview at 10 am on a Tuesday. You might need to cancel or move a class if you are currently teaching, or you might need to block out time on your work calendar. A 30-minute screening interview probably needs more than 30-minute block from you. You are preparing for that interview well before the interview—perhaps an hour before, and perhaps the night before. The brief screening interview becomes a fairly sprawling episode. And suppose your next interview is 9 am Friday. You do it all again a couple of days later.

These are early schools, calling in September. And one of them asks you to visit for a callback in late September. Great! But you still have screeners to juggle, one this week, another the next week. It’s possible that some schools are extending offers in mid-October—while others are still scheduling screening interviews. It becomes challenging to juggle a very drawn-out screening process over three months, in conjunction with offers extended and questions about timing of those offers in relation to other stages of the process. Candidates have no real knowledge of what a “normal” timeline is or how schools are behaving except by anecdote or rumor.

For law schools, it is likewise a drawn-out process, as rarely do schools schedule all interviews on a single day but have to stretch it out. That makes it more challenge to compare candidates head to head when they are taking place over a longer period of time. Likewise, it makes it a challenge to coordinate around candidates given time zones or the erratic nature of callback interviews.

(There are other soft advantages, too, like in-person interviews being a somewhat more meaningful way of interacting with a candidate, but I’ll put that to the side. There are other advantages I find better, like the informal conversations among candidates at receptions during the interview process, which I found very rewarding both as a candidate and as an interviewer, but I know that can be a high cost that is less appreciated.)

To me, this process is now needlessly prolonged and draining. The purported “efficiencies” from having a virtual set of screening interviews on an irregular timeline have not yielded the promised payoff. (As an addendum, it is not unlike some of the deficiencies in the law school clerkship hiring market, when federal judges went “off-plan” resulting in a dramatic reduction of information for candidates and a much longer window for hiring, rather than a limited couple of weeks with ample opportunities for comparison and for information for students; or the on-campus interview process for law firms, which now get ever-earlier with virtual screening interviews in an ever-sprawling timeline, rather than a condense fall 2L semester of comparison and information for students.)

I understand that returning to the FRC is a costly endeavor. But it should also help both candidates and faculty compress the “pain,” if you will, to a couple of days, with better comparisons of candidates, a more consistent timeline, and some of those other soft advantages.

I also know that no one can “force” schools to attend AALS. But it would be nice to see—even as simply as an AALS survey to hiring chairs!—if a critical mass of schools were interested in attending a scaled-down version of the FRC. It would not preclude schools from using Zoom interviews, either exclusively or to supplement in-person recruiting (e.g., for candidates with too few interviews to make the FRC trip economically feasible or with other commitments).

If the FRC were moved up to early October or late September—in the past, it was often mid- to late-October—it would also help the trend from schools to move hiring earlier when possible.

Professor Brian Leiter (no fan of the FRC!) offers some thoughts on the generalized trends in hiring here. It does seem quite spread out, and there is certainly a lack of information (see Professor Paul Horwitz’s comment) for candidates.

I’m sure there will be opponents to the FRC and prefer the status quo. That’s fine, but I just close with two reflections. The first is that while the FRC might be better for (some!) law school faculty, I’m not sure it’s better for (some!) candidates, and it’s worth reflecting on those tradeoffs in a meaningful way. The second is that a return to the FRC does not preclude some remote interview opportunities—even opponents might admit that the flexibility to format, in-person and remote, might allow different schools and candidates express different preferences in a way that (largely!) suits everyone. (The timeline is not mandatory, of course, to assuage any “antitrust” concerns; it is simply a coordinated and convenient activity run by the AALS for law schools.)