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The American Bar Association has long maintained accreditation rules governing law school admission and bar passage rates, but none of those regulations directly addresses law graduate employment.

Scott Norberg.

A former ABA insider now argues that it's time to add law jobs to the list of factors that determine whether a law school gets the organization's stamp of approval. Schools that send fewer than 60 percent of graduates into full-time jobs that require bar passage—or jobs for which a law degree offers an advantage—within 10 months of leaving campus should come under extra scrutiny and risk losing accreditation if they can't meet that threshold, argues Scott Norberg in his new article, “J.D.s and Jobs: The Case for an ABA Accreditation Standard on Employment Outcomes,” that appears in the Association of American Law School's Journal of Legal Education.

Norberg is no stranger to the complex world of entry-level legal employment. He helped the ABA revise its employment data collection process as deputy director of the ABA's Section of Legal Education and Admissions to the Bar from 2011 to 2014. He's now a professor at Florida International University College of Law.

Norberg's article makes the case that the current law school standards don't do enough to protect law students who spend $100,000 or more on a law degree to attend certain schools with very weak legal employment outcomes, and that taxpayers are heavily subsidizing these poor outcomes through the federal student loan system. His research shows that the number of graduates from ABA-accredited law schools has outpaced the number of full-time bar passage-required jobs by more than 30 percent every year since 2001. A cohort of 20 schools have consistently posted legal employment rates of 44 percent or lower over the past five years, and all but two have average student debt loads of $100,000 or more, a troublesome combination, according to Norberg.

Under his proposal, schools would need to meet that 60 percent employment threshold in at least two of the past five years. They could also meet the proposed new standard if 75 percent of students obtained either full-time bar passage-required jobs or jobs for which a J.D. offers an advantage within 22 months of graduation. The new standard would eliminate the need for a separate bar pass standard, since graduates would need to pass the bar to obtain the types of jobs required.

Law.com caught up with Norberg Wednesday to discuss his proposal and how he thinks law schools would react. His answers have been edited for length and clarity.

How long has this idea been kicking around? Is this a fresh concept, or is it something that people have been discussing for a long time? It's actually something that has been discussed very little. I don't think it's a radical new idea, but it's not an idea that has—to this point—gotten any serious consideration at the [ABA's Council of the Section of Legal Education].

Why do you think it hasn't come up before? It seems like an obvious area for the ABA to monitor, given that it already collects extensive employment data and, as you point out, a number of other accrediting bodies incorporate employment outcomes into their evaluation of programs. It's something that schools would instinctively resist. Maybe people had not been aware [of] the gap [in legal employment outcomes] that's there. The research I did brings out some data that may not have been previously noticed. There probably has been a sense that [ABA standards pertaining to] bar pass, attrition, and admissions effectively assure that graduates of schools are finding legal employment in sufficiently large numbers. But when you take a closer look at that data, you see there is a small but not insignificant group of schools with persistently very weak employment outcomes.

Tell me how you reached the 60 percent threshold for legal jobs. Why is that the magic number? I offer the draft standard as a starting point for discussion. I think if the [ABA Council] and legal education more broadly takes up the proposal and debates it, that's something that might be revised. Part of it has to do with looking across law schools today and seeing what the maximum employment rates are at the programs with the best outcomes, and looking back from that to account for the fact that historically only about 80 percent of students pass the bar on the first time. So there's some allowance for that, and for other sorts of conditions that lead some students not to get legal employment within 10 months after graduation. That's how I get to the minimum number. But it deserves a good bit of discussion before adopting a standard, if we get to that point.

Have you received much reaction to the article thus far? A number of people read the paper in draft form and commented on it. And I got comments from people in workshops. Almost all the reaction I have gotten has been positive.

There is a difference between a good idea and an idea that has a realistic shot at coming to fruition. The ABA has been trying to tweak its bar pass standard for something like five years now, and it still hasn't happened. This would be a far more significant change to the law school regulatory regime. What do you think its chances are? I put the proposal forward seriously. But I think even more importantly, my hope would be that it generates some conversation about doing things that will seriously address the profound problems that legal education faces right now with respect to cost, debt, employment prospects and return on investment. I get a sense right now—because we've seen an uptick in applications—that maybe people feel like, “Oh, now we're getting past the problems that followed the Great Recession and the precipitous decline in applications.” I think that would be a big mistake. I think the increase in applications only makes these problems more urgent, because nobody thinks the number of law jobs is going to increase appreciably in the next few years, even as law schools have taken advantage of the increase in applications to admit more students.