Monday, February 27, 2012

You cannot be serious

I've been reading Brian Tamanaha's forthcoming book, Failing Law Schools. It does an excellent job of describing how and why American law schools are a mess, and of detailing the historical process by which we got to where we are today.  One of the many things I've learned from it is that a number of the criticisms being leveled at legal education are literally more than a century old, as are the responses to those criticisms.

For example, even at the beginning of the 20th century a lot of people were arguing that a third year of law school was unnecessary. In fact at that time many law school programs were two years; the AALS, which was formed in 1900, pushed successfully to require a third year as a condition of membership. Keep in mind that at that time few law schools required an undergraduate degree as a prerequisite for enrolling, so in effect over the course of the first couple of decades of the 20th century the ABA and the AALS managed to increase the number of post-high school years of schooling necessary to become a lawyer from two to seven. (A key justification for this sudden creation of much higher regulatory barriers was to make it more difficult for "undesirables," i.e., men from working class backgrounds, recent immigrants, Jews, etc. to become lawyers).

In any case the arguments about the third year of law school have hardly changed since then.  People point out that the third year in particular adds almost no value in regard to preparing people to become lawyers, and defenders of this enhanced revenue stream educational requirement respond that we're not just or even primarily teaching people to practice law:

Some assume that the goal of a legal education should be to teach people practical skills so that when they leave law school, they can start practicing law like a pro. I don’t agree. . . .We are training people who will be in profound positions of power—future lawyers, judges, politicians, policymakers, and so on. It is important for all of society that these individuals be given a legal education that consists of more than just taking a few key classes and rushing off into the practice of law. Law school is, for many, one of the few times that they reflect more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system. It is a chance to learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more. I believe that these things make students be better lawyers—wiser, more creative, more well-rounded. When we train lawyers, we’re training people who will be shaping our society, and I think it is imperative that their legal education be a robust extension of a liberal arts education, not simply a trade school education.
Back in the day, I used to love to watch John McEnroe play tennis. Besides being a genius with a racket, McEnroe was prone to spectacular explosions of bad temper whenever he believed a bad call had cost him a key point. On one infamous occasion he threw a tantrum on the hallowed grounds of Wimbledon's Centre Court. You cannot be serious, he screamed at whatever prim and proper linesman had earned his wrath.

I sometimes toy with the idea of putting together a collection of quotes from legal academics under that title.

Really, what is the point of detailing what's wrong with this kind of thing?  As Louis Armstrong is supposed to have said when asked what jazz was, "if you gotta ask, you ain't gonna know."

What the heck:

(1)  The overwhelming majority of lawyers never come anywhere near "profound positions of power," even if (absurdly) one counts everyone in a judicial or political or other policy making position in that category.

(2) Very few people spend much if any time in law school "reflecting more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system."  They spend their time trying to learn how to run largely irrational bureaucratic mazes, in the form of arbitrary testing regimes that feature zero feedback and don't test what anyone has learned about the efficacy or justice of the legal system.


(3) Nor, with rare exceptions, do law students "learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more."  They learn some (again largely arbitrary) gobbets of legal doctrine, with a farcical patina of something called "policy analysis" thrown in.  Yes I'm sure Stanley Fish's Yale Law School seminar on the history of the first amendment is an intellectually serious enterprise. I'm also sure that seminar has about as much to do with the typical law school class room as Warren Buffet's tax return has to to with mine.


(4)  It's possible, though far from self-evident, that a legal educational program dedicated to a serious inquiry into the sociology, philosophy, economics, literary aesthetics etc. etc. of law (all in three years; if you act now you'll also get this handy paring knife) would "make students be better lawyers."  Since law school has almost nothing to do with any of that the proposition hasn't been tested.


(5) "When we train lawyers, we’re training people who will be shaping our society."  This belief is the root of almost unlimited nonsense of all kinds.  I had the unfortunate experience recently of re-reading the joint plurality opinion in Planned Parenthood v. Casey, and was once again reminded of what law school actually produces is megalomaniac grandiosity among our legal elites.  For those who haven't read it, that opinion -- which occasioned veritable ecstasies of praise from all sorts of legal academics at the time -- asserts (I am not making this up) that Americans need to stop arguing about whether abortion should be legal, because the Supreme Court has resolved the issue. Furthermore, it has resolved the issue by figuring out the answer to the following question (I quote almost at random -- this is far from the most ridiculous thing in the opinion):


Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.
If you can read Casey without noticing that it's nothing but a rhetorically unhinged exercise in begging the question, or that you have to be at least a little bit crazy to believe that you, personally, are morally and intellectually qualified to "define the liberty of all" then I suppose you have what Thurman Arnold referred to sardonically as "a legal mind."

And what's more than a little bit crazy is to believe that law school, of all things, has qualified you to perform this impressive feat. Indeed an opinion like Casey reads like a parody of traditional law school classroom discourse, with its pseudo-oracular pomposity, its authority-based question begging masquerading as "reasoned argument," and most of all its willingness to "speak extensively about matters about which one is to some degree ignorant."

At the root of the absurd structure of legal education is the idea that "we" are training people to be future Supreme Court justices and the like, and that our training adequately prepares these people to do things such as "define the liberty of all" in regard to the most profound moral quandaries.  Which of these beliefs is more delusional is a matter of institutional context (if you teach at Harvard or Yale the latter clearly takes the cake), but they're both, at bottom, basically nuts.  And the problem, as Tamanaha's book so clearly demonstrates, is that maintaining these delusions has become in every sense far too expensive.

87 comments:

  1. LawProf, who are you quoting in the passage beginning "Some assume..."? The perpetrator of this arrogance needs to be called out by name.

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  2. And, I'd feel a better about being forced to become "wiser, more creative, more well-rounded" if the classes in which such edification allegedly occurs didn't feel so much like left-wing indoctrination camps.

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  3. Even if law school doesn't prepare you be an actual lawyer, they could at least do you the service of training you to pass the bar in the 3rd year.

    Spending 5k on BarBri after I received my JD was probably the hardest check I had to write.

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  4. @6:59,

    That is the ultimate slap in the face. Then again, having the school send you a donation request at the commencement ceremony - and every couple of months afterward - is also beyond disgusting.

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  5. So, Law Prof, you agree: we really do need different types of law schools for different students?

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  6. You hardly need "different types of law schools". You just need law school - an 18-to-24 month vocational training program that gets you ready to pass the bar and handle the basics of pleadings, motions, yadda yadda.

    All that extra shit can be put back where it belongs: social science PhD programs.

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  7. No, other people want more than that. Different types of schools would take account of different people's aspirations. Why does everything have to be all or nothing-- all research oriented institutions or all vocational training?

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  8. Law school is a professional school. It makes sense to have some academic background, and a year's worth of subject matter. But it is a practical discipline. And if the schools disagree, then why do they make any effort at practical courses (procedure and evidence are required many places). They recognize that the emperor has no clothes, and cling to the case method so they don't lose their meal ticket.

    I second the social science PhD program. I couldn't believe the amount of useless naval gazing that went on in the academy. Being an Article Editor for the law review exposed me to thousands of pages of the most useless rhetorical b.s. that ever wasted a tree. If you want to do that, get a phd. but that analysis doesn't write a pleading.

    Hint to the academy: the only articles that practitioners actually read are summaries of supreme court decisions or statutes, or articles that focus on specialized topics as a great resource to get an overview and collect cases.

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  9. Don't recognize the quote but it sounds like the reincarnated progressive era dean of either Yale or Harvard LS.

    RPL

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  10. I wonder if the faculty could actually pass the bar.

    When Dean Sullivan flunked the California bar a few years ago, everyone in the academy whined about the bar exam. My reaction was the opposite. Why can't the dean of a law school have enough mastery of the law to pass the bar exam? And if she doesn't have that mastery, what's going on here?

    Does anyone really think that medical faculty, who mostly are part timers and full time practitioners, would not be able to pass the boards with minor refreshers? The emperor is naked, fat, and useless.

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  11. None of this answers the question why we can't have different kinds of schools for people who want different things. If you don't want the navel gazing PhD stuff, don't go to a school that does navel gazing PhD stuff. Why insist that no schools like that should exist? In a new world, with different types of schools, prospective students will know in advance what to avoid. We're talking about going forward, not just rehashing what happened in the past. What's the program for the future?

    It's dictatorial to insist that people do exactly what you would do, value only the things you value. You can't get upset because people make certain choices in a world where you have an opportunity to choose something else for yourself.

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  12. 10:13 cont., the problem that Tamanaha and, I thought, today's post address is the tyranny of the elite school model that has driven up costs across the board. The thought is that if schools that are not elite stopped following that model, they could deliver lower cost law degrees to students and relieve the burden of student debt. I doubt if this part will happen, but the thinking is that graduates could then afford to provide the kind of legal services that non-wealthy people need. If that were to actually happen, it would be a bonus onto the lessening of the debt burden.

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  13. 10:13: I think there are two related but not identical problems.

    (1) The legal requirement in almost every state that people attend (or at least pay for) seven years of post high school education before they can take the bar exam.

    (2) The structural factors that have led almost all law schools to at least superficially mimic the practices of elite schools.

    The second problem is not caused by the first: it would be possible (and indeed until relatively recently it was commonplace) for law schools to operate with essentially none of the academic pretensions of the elites.

    No one as far as I know is saying that Yale Law School shouldn't be free as a legal matter to turn its JD program into a five-year $250K course of study if that's what it wants to do. The problem is that law schools are to a certain extent legally and to a greater extent culturally required to ape whatever HYS does.

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  14. I don't think you need to have "legal mastery" to pass the bar. You do need to have taken Barbri or a similar course and memorized as much as you can. I'm sure the dean felt he didn't need to do any of that, and that is why he failed. I went to a top tier school that has an optional alternative curriculum for first year that is interdisciplinary and goes into the philosophy of law, etc. (fine, it's Georgetown), so I didn't really learn much black-letter law my first year that would have helped me on the bar. Basically I learned most of that in Barbri. I still passed. Cramming all that junk into my head at the last minute sucked, but I enjoyed my first year a lot more than I probably would have taking the standard curriculum. Of course, maybe if I had hated it more I would have dropped out then and saved myself the pain of a lifetime practicing law. Hmmm...

    Anyway, law school is three years, so I don't see why the first two years can't be substance and legal theory and the third year be more practically-oriented courses. I think Trial Practice was one of the more useful classes I took, but I also learned a lot in the substantive law classes like Con Law and Labor Law, etc. It doesn't have to be one or the other.

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  15. Well, changing the structural factors-- US News, as one of them-- that make schools feel compelled to follow the elite model should be the goal. I don't think it makes sense to argue for destruction of the elite model so that other schools won't be tempted to follow it. Yes, of course, Yale can do what it wants. And that is how it should be. If people don't want to go there, they won't. No one HAS to have a Yale legal education.

    In some states, people don't have to attend law school to take the bar exam. There are alternative routes. California, a very big state, is one of them. As you say, there are others. We can ask what their examples say about all of this. But even in a world without the requirement, there will be a need and demand for elite schools. The bigger problem is the belief that there should be a one size fits all approach based upon the elite model. Isn't that the logical conclusion to draw from your post and from Tamanaha's work.

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  16. @10:46 Dean Sullivan is a she.

    Given the demonstrated sexism of many who comment on this blog, your assumption is hardly surprising, unfortunately.

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  17. I agree that, as currently constituted, 3 years of law school are unnecessary. But just cutting off a year, or even creating two tiers of law schools, won't solve the problems. It's not trade school v. academic seminar, as some of the commenters suggest; excellent professional preparation is something different from either.

    The law schools have some clues to real professional preparation, through clinical programs and some newer pedagogies (like the ones Gillian Hadfield discusses for teaching Contracts)--but there is still great resistance among academics to expanding those. The practitioners used to dabble in training, but have largely abandoned that role. (Although I could cite a few good counter examples, like the program at Frost Brown Todd and programs in some prosecutors' or public defenders' offices.)

    To me, law is neither an academic exercise nor a vocation; it's a profession in the best sense of the word. By that I mean that law is practical (used to assist real clients with real problems) but also complex. BreezyWheeze, you can't be a practitioner (or a very good practitioner) if you think that helping clients requires only bar knowledge plus the basics of pleadings and motions.

    Real law practice requires all types of complicated cognitive and emotional work: What is the client's story? What is the other side's story? Which are the exaggerations and lies--you can be almost positive that everyone is lying or exaggerating to some extent, whatever the context. (Clients and their adversaries are actually no more noble than law professors!) What options does the law offer your client? Are there creative options beyond the obvious to explore? Are there non-legal options that will better serve your client? E.g., is this really a commercial problem that can be solved by refocusing the parties on the best way to work together as businesses? Or is it truly a legal problem?

    And that's just scratching the surface. There are also the skills of adapting advice as the facts change (they almost always do in the real world), negotiating effectively with all sorts of people, knowing who you can talk to and who you're not allowed to approach, knowing who you can represent, knowing how to get paid....

    Law school currently teaches very little of these professional skills, but neither do most practice settings. It's tragic that we charge students so much without giving them what they need to practice law. And then practitioners make money off new lawyers without giving them the feedback and skills they need.

    But the tragedy is equally great for clients who need to rely upon poorly trained lawyers. I think a large number of lawyers actually are in "profound positions of power," but it's not the power that the defenders of the status quo are thinking about. Just wait until you're advising a battered woman who is afraid she can't get herself and her children safely away from the spouse: the safety of those children will depend on your advice. Or wait until your criminal defendant client is offered a plea for 4-6 years in the penitentiary but would get at least 10 if he loses at trial. The client inevitably will ask, "What would you do?" What will you respond? The client will listen to you; you are literally taking years of another person's life into your hands. To me, that's a position of "profound power."

    Law is so much more than a trade or an intellectual exercise--it really matters to clients on a daily basis! How do we prepare lawyers to perform those roles? We actually know a lot about that--not just from some examples within law schools and law practice, but from a broad cognitive science literature on effective training of professionals. Both academics and practitioners need to get back to the basic fact that we're professionals and we have an obligation to train the next generation of professionals--using the best available knowledge.

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  18. 10:46 here, I'm a she too, actually. No sexism implied or practiced. Just didn't know. Although I am a bit sleepy, and my brain probably stupidly thought of "Dean" as the person's first name, which could be why I typed that, which is quite embarrassing.

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  19. Assuming that the author who mistakenly assumed Dean = Male is also sexist.

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  20. I think that calling out someone for being sexist is sexist.

    I think we need a consciousness raising event.

    I'll bring the vegan macaroons.

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  21. @ DJM--I see no evidence of resistance in elite schools to clinical education or expanding real world experiences for students. Students are exposed to way more of the things you are talking about than they were in the past, even with more PhDs on the faculty. Students at HYS have clients, write briefs, do interviewing, all the kind of stuff you are talking-- and they have high-falutin' seminars, too. And they love to take them, too.

    People on this site keep talking about "the faculty" as if that were one monolithic thing. Then "law school" does not teach this or that. Or "academics" are resistant to this or that. DJM, your experience is evidently very different from mine. I have not encountered academics who are resistant to transforming pedagogy to give students more real world experience. That has been a serious mission at the schools with which I am familiar for many years now, and with a great deal of success for students who want those experiences.

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  22. 10:57, you hit it right on the head. A perfect primer for every new law graduate who casually tosses around the word "shitlaw."

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  23. 11:30 here, I agree with Gregg Smith about the parts of your message that explain the duties of lawyers. You are exactly right.

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  24. I also agree with DJM that lawyers do, as a practical matter, often have a real kind of social power -- it's just not the kind of power people who obsess on SCOTUS opinions or federal statutes or administrative law rulings are thinking about.

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  25. Lawprof, can you do a post on required courses?

    I thought it was pretty ridiculous when I learned that after my 1L year, there were only TWO required courses left before I earned my JD.

    This was at a T20 school.

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  26. Law Prof, what does the phrase after the bracket mean?

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  27. I don't know what you mean by after the bracket.

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  28. I'm sorry, after the dash. The phrase that begins "it's just not the kind of power..."

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  29. I meant that I agree with DJM that lawyers can have a lot of power at the kind of micro-social level she's talking about. Their ability to "shape public policy" is far more limited, but legal academics spend vastly more time on teaching and writing about the latter rather than the former (there are exceptions of course).

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  30. Oh, I see. Yes. But, as your parenthetical indicates,it depends on where you are and what you mean by influence. If you are teaching people who will go on to be judges--federal and state--including SCOTUS justices-- or people who will help set policy in or run administrative agencies, you would think of this in a different way.

    But DJM's basic point is sound.

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  31. No comments this time except to point out that this is consistently a wonderful, refreshing blog that deals with the problems of law school in a sane, intelligent, and practical manner. This is the blog that sets the standard for the scamblog movement, and the sooner journalists realize this and stop pushing the stupid, immature, and insane blogs like that awful painter blog (the guy is clearly clinically insane) and the one with the toilet pictures (great information presented in a wholly inappropriate manner), the better. Perhaps then this issue might become mainstream instead of a freak show that occasionally makes the news, and which makes us all look stupid. Just sayin...

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  32. DJM is definitely not teaching future Supreme Court Justices. An Ohio State JD commands exactly zero respect in the legal job market. It will invite conversation about football, however.

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  33. 1:40 here. Whether she is doing that or not, we do know that she is teaching people who will go on to do important work handing the lives of clients who come to them for help. That is a critical, basic, function.

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  34. @10:46 - Georgtown - is Wasserstrom still touring the 1Ls? He was pretty notorious when I was there.

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  35. It's a good thing Abraham Lincoln had the benefit of seven years higher education to enlighten him as to the profound moral problems of his time. Imagine what would have happenned if he'd been a mere backwoods peasant without access to formal schooling. Imagine, a man unschooled by academic elites grappling with a major social problem.

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  36. 3:34, I don't know about Wasserstrom, I graduated 10 years ago and have had no contact with the place since then.

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  37. I don't think that we need two tiers of law schools. But I do think it would be very interesting if the straitjacket of accreditation was changed so that some schools could focus on very practical training - very focused on the knowledge and skills that lawyers actually need. Anything I have ever published has been aimed at practice and practitioners, not legal "scholarship."

    My suspicion is that while it would take a few years for the results to show - a very practice orientated school might find that its graduates are in more demand that HYS - or at least Yale. I also do think that you could spend 3 years teaching serious skills - contract drafting for one - and that you could pack the last year of law school with a large array of subjects that are often not covered, basic employment rights, OSHA law, real conflict of laws (as opposed to professorial intellectual masturbation) ... there is a lot of law that you do not really have the credits to cover in two/three years that would have been useful to me as a practitioner, but I had to pick it up as I went later.

    MacK

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  38. 3:45 - I graduated earlier - maybe Areen finally got embarrassed and told him to stop...

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  39. Well, after a few years of schools who focused on teaching so-called practical skills, we would have two tiers. Schools would be known for doing one thing or another, attracting one kind of student or another. Graduates of schools that were more practice oriented would be in demand for certain kinds of jobs. But big law firms, federal judges, more prestigious government offices, consulting firms, would continue to go to the places they have always gone to find employees.

    Doing away with the demands of accreditation is about providing lower cost alternatives to people who aren't interested in the traditional model.

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  40. Prof: I'm a big fan of your blog, but I do think that you understate the value of a legal education. First, even if the method of getting the knowledge is indirect and inefficient, we all still leave with some basic knowlege about contracts, torts, criminal law etc. Plus, analytical thinking may come naturally for you as it did for me, but I think after 3 semesters, people who were more imaginative picked up some analytical skills that they wouldn't have otherwise had.

    Sure this crap this other guy wrote about literature and what not making us better lawyers was bogus. But your earlier post was really more to the point and the only point that needs to be made: THERE ARE NO JOBS.

    It wouldn't matter what the hell was taught in law school or for how long or for how much if we were able to get jobs that allowed us to pay back the loans we took out. That is the only point that need be made. And the converse is true, it doesn't matter how much policy, law & lit or whatever that we take in, we'll never be lawyers if there aren't jobs (and especially when we're supposed to learn the practical skills from our fist mentor).

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  41. @4:06

    "Graduates of schools that were more practice oriented would be in demand for certain kinds of jobs. But big law firms, federal judges, more prestigious government offices, consulting firms, would continue to go to the places they have always gone to find employees."

    I am not sure you are right about that. It really depends on what schools go for the more practice orientated, legal knowledge and less theory approach. If some T14 schools tried it it is quite likely that big firms and government offices (US Attorney, DA, etc.) would tend to seek those graduates out - and this is the group from which judges tend to get picked. Federal judges too, and least at the District Level want knowledge in clerks a lot ... in short the market could more in the direction of the more practice orientated school and was from the "[insert issue/group subject] & the law" type courses such as say Yale seems to specialize in. The way the current accreditation rules are written, they seem to demand that this sort of "scholarship" form a big chunk of the curriculum ... not the market or the students, but the professoriate.

    MacK

    MacK

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  42. Mack,
    I think underlying 4:06's point is that it's unlikely a T-14 school will pioneer this approach. Why take the risk and jeopardize cash flow for a marginal gain? It's more likely to start from a TTT hoping to gain an edge in the market. In that case, you're still working with the same raw materials.

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  43. @4:46 - some of the T14 schools are not doing that well on placement - any school in fact placing less than 40% should think about it - and say Georgetown and Cornell have the size to implement both approaches in a single school. It would really make sense for schools like GW and Fordham. It would also mean getting much more experienced faculty - more adjuncts and more retired from practice lawyers, but that might be cheaper than current faculty.

    MacK

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  44. Or, why take the risk and jeopardize a reputation for a marginal gain? Or why take the risk if you don't think it's right for your school because your school has other things to offer that people want. Not all schools will want to, or have to, sell themselves in that way.

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  45. "Retired from practice lawyers..."

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  46. Just to be clear, I definitely would change the accreditation rules to allow law schools to structure themselves in different ways. If those changes create several tiers of law schools addressing different needs, that's great. I just don't urge two tiers as the a priori answer to our problems.

    I also am afraid that those type of accreditation changes won't address the basic problems as so well identified by LawProf: Tuition is too high, and there are not enough jobs. Changing some of the accreditation standards (libraries, tenured faculty, restrictions on part-time programs) might help with the former, but those changes won't address the latter. And I think existing law schools are unlikely to change much, even with the "two-tier" type of accreditation changes. There will still be a lot of law schools charging too much to educate students for jobs that don't exist.

    To address the latter, I would try to design an accreditation standard that links debt-load to earning power for *every* school's graduates. E.g., the school must show that 75% of its graduates have a starting salary that equals the average amount of law school debt. I don't know what the right numbers and details would be, but I think we need something that directly addresses tuition (through the back end of debt) related to earning power. Others here have talked sometimes about that kind of standard, I think? Or perhaps LawProf has posted on it before?

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  47. @DJM -

    I am inclined to agree with you. I think that that the bar exam should be made more rigorous in most states and act as the main filter to entry to the profession - but that schools' accreditation should be heavily dependent on bar passage rates and your "75% of its graduates have a starting salary that equals the average amount of law school debt" rule. However, I might modify that rule to be "75% of its graduates have a starting salary income that equals 50% of the total tuition for attendance," which is essentially the same but takes account of the fact that some students need to borrow less, some more. I also broadly think that federally insured student loans should limited so as to not be available for an annual level of tuition that exceeds the average US income - that cap may have to be phased in by a no increases for any school over the annual income rule immediately. And finally, I would end the bankruptcy exception or at least put a limit on it (say it expires if the loan is unpaid and then the loan can be restructured in Chapter 13 (instead of Chapter 7.)) Indeed given the recent changes to Chapter 7, I fail to see any sense in the continued exclusion of student loans from bankruptcy (it did not make sense before really) and I think they should always have allowed under Chapter 13.

    MacK

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  48. Can somebody please convince me how a two-tier system would have a positive effect on the current legal educational structure?

    (1) It doesn't solve (at all) the asymmetry between available legal jobs and law graduates.

    (2) The current legal model already demonstrates that law schools have no market incentives to lower the cost of education, regardless of their hierarchy, i.e. ranking, in legal academia. As long as students have easy access to non-dischargeable government loans, Cooley can charge the same as HYS and vice versa. If there was a true market advantage to a lower-priced law school, there would already be successful models in existence. None exist.

    (3) A two-tiered legal system stratifies an upper and lower class of legal professionals, which undercuts the perceived prestige of the profession and deincentivizes law school applications. Much of the law school scam relies upon the irrational 0L. If you take away the possibility of upward mobility, you deincentivize what a large portion of law students will not outwardly acknowledge - that law school is their ticket to prestige and riches.

    (4) The two-tiered system is premised on the fallacy that there are many lower-income clients who are willing to pay moderate money for legal representation, but just can't afford a high-priced lawyer. Unfortunately, these client's needs are already being met by large firms that cater to lower-end clients or computer software. Further, these types of so-called "shitlaw" jobs are already easily filled. Don't even mention state government, public defender, and legal aid programs as they're virtually bankrupt.

    (5) Requiring an alternative to more theoretically-based programs, just avoids the main issue that we should require formal education of any kind. Those who are competent and able to pass a state bar exam should be licensed attorneys. This makes much more sense then segregating law schools.

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  49. The two tier school argument is a red herring. Why not allow students to take the bar exam as an option after the first or second year, and if you want to waste time studying the law and how it relates to 12th century gay and lesbian Mayan basketweaving, you can have the option to "study" another year?

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  50. @ 5:58--I thought people wanted to create disincentives to people applying to law school.

    Calling it two tier system is loaded. The concept is not a red herring. The suggestion is just that not all schools try to follow the HYS model. The argument has been that doing that has raised costs. So, as the old joke goes, "Don't do that."

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  51. @2:25. I wouldn't be too sure about no Buckeye ever serving on the Supreme Court. Jeffrey Sutton (CA6, OSU 1990) appears on many short lists of prospective GOP nominees. Wouldn't that drive the elitists crazy?

    Seriously, I'm not sure any law professor should worry much about teaching future Supreme Court Justices. Even at Harvard, what are the odds you will significantly affect a future S Ct Justice? I clerked for two of the Justices (Ginsburg on the DC Circuit and O'Connor on the Supreme Court) and I never had the sense that either was channeling their law school professors. Although, come to think of it, there was one event at HLS that Ginsburg describes frequently to audiences: During her first year, the Harvard Dean summoned Ginsburg and the few other 1L women to a special meeting. He then made each of them explain why she felt entitled to be taking a seat that could have been given to a man with a family to support. I wonder if the Harvard Dean realized he was speaking to a future Supreme Court Justice?

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  52. No, they aren't worrying about that. But HYS does teach lots of clerks and send lots of people to administrations in DC. I think it would hard to say definitively who or what the Justices are channeling.

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  53. DJM writes:

    ******
    I clerked for two of the Justices (Ginsburg on the DC Circuit and O'Connor on the Supreme Court) and I never had the sense that either was channeling their law school professors.
    ******

    But see:

    *******
    If you want to know what a Supreme Court justice thinks, find out what his law professors thought 40 years earlier, [Justice] Breyer suggested, and gave a nod to those who influenced him including former HLS professor Clark Byse
    *******

    http://www.law.harvard.edu/news/spotlight/alumni-pursuits/breyer-and-souter-reminisce.html

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  54. @ 6:12 - touche. It would be nice to have less applicants, which is the way it is trending due to increased costs of admission and diminished job prospects. The point is that saying "don't do that," is obviously not going to work practically speaking.

    BTW, multiple people have referred to a two-tiered system. If you are not one of those people, my apologies. If you are, please tell me, how your solution resolves any of my original points?

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  55. Interesting, Professor Campos, that you pick on Casey. My personal favorite is another O'Connor gem, this time co written with Harry Blackmun. That is, the Plurality opinion in Allegheny v. ACLU, where those noted experts in the Jewish faith, O'Connor and Blackmun opine that while a creche is a religious symbol, a Menorah, when displayed next to a Christmas tree is not. Who knew attending law school makes you more knowledgable about the Jewish faith than generations of rabbis.

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  56. Campos:

    You've been cited:

    http://taxprof.typepad.com/taxprof_blog/2012/02/cloud-shepherd-.html

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  57. Legal Scholarship at its finest:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990746

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  58. Legal Scholarship at its finest:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990746

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  59. MacK, I agree with many of your suggestions above, but probably not making the bar more rigorous. States have steadily been making the bar much harder to pass over the last 25 years (usually in response to economic downturns); it's a pretty difficult barrier at this point.

    I've published some analyses of the bar exam (talk about obscure!); the basic problem is that states can't afford to implement an exam that really tests lawyerly competence. Any type of individualized assessment of client counseling, negotiation, problem solving, or other skills is very expensive to conduct. The best the states can do is a souped up law school exam: multiple choice combined with essays graded by rubric.

    In that context, there are two ways to make the bar harder: Include more subjects or raise the passing score (total number of points you have to accumulate). The net result of both is that test takers have to memorize more material and, while some memorization helps lawyering, more extensive memorization (beyond what the bar already requires) is unlikely to produce better lawyers. This cartoon, I think, sums up this problem with the bar exam: http://www.courtoons.net/2009/03/02/bar-exam-2/

    (Courtoons, generally, is a great site)

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  60. What incredible hubris:

    "We are training people who will be in profound positions of power—future lawyers, judges, politicians, policymakers, and so on. It is important for all of society that these individuals be given a legal education that consists of more than just taking a few key classes and rushing off into the practice of law."

    Can you imagine if medical schools boasted about how they were offering their graduates positions of power....in some situations literally the power to effect life and death?

    This type of thinking has infected those "postitions of power" which used to be and should still be "positions of service."

    No wonder Congress (crawling with law school graduates) fancies themselves our ruling class as opposed to what they really were designed to be...our servants, carrying out the will of the people. Instead of sacrificing a few years for the common good, they ensconce themselves in gilded sinecures.


    "Doctors and Lawyers" used to be joined at the hip as noble professions.

    We used to be Atticus Finch to the public.

    Now we're Lionel Hutz, or his local real-life counterpart.

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  61. I think many of us are missing the real reason that law schools don't use a more practical approach.

    It doesn't benefit full-time, tenure track faculty....and that, more than any thing else, is ultimately the tipping point for any question about what a law school should do.

    I got lucky. After my second summer was spent in a local D.A.'s office as opposed to a law firm, I realized that I learned more about the law in twelve weeks there than I had in two years in the class room. I immediately filled my third year schedule with classes taught by adjuncts. A Federal judge, law partners in local firms, and the clincal director, and I promptly learned quite a bit more in those classes than I had in previous years.

    I wondered why more law school classes were not taught by these wonderful professionals, well versed in theory but could also tell you what happens when theory meets practice.

    It seemed to make so much sense. Law schools and law students could get more with less. Less full-time faculty in favor of more practicing attorneys, most of which were happy to spend three hours a week mentoring future lawyers.

    Less full-time faculty means lower tuition, as well, but of course those words were the very reason it would never happen.

    Less tenure track faculty positions. Competition would get really fierce for those fewer positons, one would have to really justify one's work, and rather than having a colleague that will swoon over trendy but pointless "scholarship" in the faculty lounge, instead one might have a colleague that insists said research isn't very helpful to the profession at all. In short, life of a law professor might be burdened in many of the same ways of the law practitioner. Can't have that, now can we?

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  62. @5:58 "Can somebody please convince me how a two-tier system would have a positive effect on the current legal educational structure?

    (1) It doesn't solve (at all) the asymmetry between available legal jobs and law graduates."

    Hear hear! I couldn't agree more. There are already about 75% as many JD holders not working as lawyers as there are JD holders working in some capacity as lawyers. If there really is some market that could be served by new graduates of a second tier of law schools, I cannot believe that this alleged market would not already be served by these approximately 575K JD holders (or some percentage of these 575K JD holders) who are not working as lawyers and who have already graduated from the standard one tier law schools. Many of these 575K have years of practical experience from real practice, from the courts, from law firms, from corporations, etc., not just law school practicals, training programs, and seminars. Considering the statistics, the numbers, it is all too clear to me that the only way to address the catastrophe is to drastically reduce the number of seats at law schools, period.

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  63. "Surely, you can't be serious."

    "I am serious. And, don't call me Shirley."

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  64. Law school takes three years to teach (poorly) what a bar review course teaches in seven weeks. How is such staggering inefficiency even possible?

    It is possible because the inefficiency is by design. The law school scam really, really, wants your tuition money--three full years of it. So they play hide the ball-- they assign a bookful of 80 page appellate decisions from which the student really only needs to learn one sentence per case plus a few analytical tests per course -- but the students aren't told that. And the cases in the book are generally the seminal Supreme Court cases where a particular test was formulated for the first time--so the Court is doing logical flips and pirouttes and is barely coherent. (It would be better to assign lower court appellate decisions that came down 10 years after the test was adopted, when the law was well-settled.)

    Of course, the classroom bullying sessions are meant to make the whole thing seem even more complex and mysterious, and waste more time. Not like an undergrad course where the professor guides you through the thickets.

    I would junk the whole caselaw/Socratic model and return to the venerable apprenticeship model, updated for these more complicated times. Law is a learn-by-doing profession. Therefore, law school should kick off with a semester long bar-review-type crash course plus a course or two in legal writing and research. Following that, there should be a two-year-long series of clinics and externships to train students to try a case, write an appeal, run an office, and represent clients in several practice areas of the student's choice. These clinics and externships should be taught or supervised by adjunct practitioners paid by the course-- not by tenured professors who have not seen the inside of a courtroom in 20 years, if ever.

    As for the liberal arts stuff, I truly believe that law students who are receiving real training in how to practice law would also seek out opportunities to sharpen their wits and deepen their understanding of their profession. They could walk over to the undergrad side and audit philosophy, history, and literature courses that bear on the law. They could organize reading and discussion groups on these topics.

    The apprenticeship model produced Abraham Lincoln, Clarence Darrow, and Justice Robert Jackson. Maybe the 19th century has a few lessons to teach us.

    dybbuk

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  65. @7:11 - that is a remarkable law journal article - one of the few I have read in any recent years that was worth reading. The last section explained something I had long wondered about - how USNWR rankings for law schools and law firms had such a mis-match between my personal knowledge of views in the legal community and their rankings. It turns out that their surveys capture the views of a tiny group and of the surveyed the response rate is lower than 20%, often much lower. Thus for a long time in Washington DC my experience of legal hiring and broad lawyer views of law schools would have ranked Catholic University above American University, but yet Catholic barely moved nor did AU - similarly law firms who most lawyers held in so-so regard - say Howrey (they never recovered from screwing a bunch of their partners early in the life of the firm) ranked very high, while a number of the very high end DC boutiques never rated a mention. The reason was that the survey methodology never met any sort of sensible criteria for reliability.

    I would add that yet again I have received one of those "Best Law Firm Surveys" which inter alia also solicited us for 1/4 page, 1/2 page and full page advertisements - I round filed it - so I think we won't rank again (sob.) One of the biggest publishers of these surveys approached me years ago to be GC - I'm afraid my describing them as a "vanity press" probably scuppered my chances.

    MacK

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  66. Sorry - that was not a law journal article - it is an article that no law school journal has risked publishing - I suppose the title "Law School Deans in Jail" not to mention its contents put them off.... but is is pretty meticulous work by two Emory Professors - I am quoting the abstract so everyone can see why it is a "must read":

    LAW DEANS IN JAIL
    Morgan Cloud* and George Shepherd**

    A most unlikely collection of suspects - law schools, their deans, U.S. News & World Report and its employees - may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents' crimes. Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores. U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990746

    MacK

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  67. The commenter at 5:22 urges as policy, the full dischargibility in bankruptcy of student loans. That certainly eliminates the burdon of payment for recent law graduates. But what law graduates would use bankruptcy to extinguish their law school indebtedness? The average school loans for law school graduates is almost $100,000. Somewhere near 50% of law graduates never get a job as a lawyer. So 50% of graduates, say 22,500, would quickly file for bankruptcy protection and be discharged. The 35% of of graduates that get some job in law but not biglaw (government, PI, midlaw and below and contract attornies) usually get between $30,000 and $65,000 a year. How many of them would continue to pay $10k-$15k per year for 20+ years when they have an alternative?
    The biglaw associates with their $160,000 salaries, would they pay the $30k-$50k that it takes to pay off their law school debts during the normal five year tenure at biglaw? Would the 85% of biglaw associates who do not get a partnership continue to pay on their loans or opt for bankruptcy and a quick discharge? And then there is the Sucker Issue. How many student loan borrowers who would otherwise be inclined to pay their loans, would look around themselves, feel that they were being had and that only fools paid their loans? How long would it be before the cultural meme would be; you go to law school, you graduate, you pass the bar and you discharge your law school loans in bankruptcy? I happened to be briefly practicing bankruptcy law after the enactment of the 1978 Bankruptcy Code when student loans could be discharged and there was a mini gold rush before the loophole was closed. Another question, if a considerable portion of the $4.5 billion in law school loans were immediately being discharged after graduation, how long would congress/the public continue to support loans for law school? How long would they continue to support their dischargibility? If the norm for dealing with student debt became bankruptcy, law school is free. How many students then would go to law school; the current 45,000, 75,000, 100,000, more? What effect would this have on the practice of law? On it's economics? Would the J.D. become the terminal degree for the liberal arts? William Ockham

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  68. One of the comments on TaxProf said that the authors of the piece somehow left out their own school, Emory, when discussing schools that have reported that over 90 percent of their grads had employment after 9 months. Why talk about other schools but not your own? You would think that that is where they would start.

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  69. Okay, forget the word "tier", which sends the wrong message. I've used it in this discussion, and I should not have. The idea is that law schools should be allowed to experiment with different forms. What people seem most interested in is having schools that focus more on teaching people what some have called "practical skills". The faculty at these types of schools would be comprised of some combination of adjunct practitioners and profs. who would be focused on teaching instead of scholarship. Although I think the estimates of the cost of law review scholarship are bogus, focusing on scholarship does have some cost. Also, it would be interesting to see how much the pool of practitioner-adjuncts could be expanded without, at some point, raising costs. But, in any event, the thinking is that removing those costs, and the cost of small specialized seminars, and other features of research oriented schools, will bring down tuition in those schools. Students who have no interest in traditional model will have a lower cost choice.

    That does not mean that non-traditional schools will be "bad" schools. The elite schools will keep doing what they do, which includes changing their curricula, partnering with law firms and other employers, and providing clinical opportunities. It just means that all other schools will not be forced to try to mimic them.

    No, it won't create more jobs for graduates. But this proposal does not address that issue, and does not purport to. It addresses the issue of costs, which is a legitimate concern. The fact is people can speculate all they want. We don't know what will happen with the job situation. In the coming years it could be better, or it could be much, much worse. Several years back, people looking at the numbers could have said ( and would have said if they had an incentive to be overly optimistic) , "Isn't it grand! This is likely to go on forever." And some people thought that, and they were wrong. We could be reversing that story now. Things will decline until there are only 25 legal jobs in the country.
    There are multiple issues about legal education that need to be addressed. Just because one solution does not solve them all at once, does not mean it's not worthy of consideration.

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  70. @3:31yes, I did suggest full dischargeability under the current Chapter 7 (which does not make it easy) but also suggested that at least Chapter 13, which usually means no-full-discharge but a restructuring with a haircut for the lender certainly makes sense.

    MacK

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  71. This comment has been removed by a blog administrator.

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  72. @ 4:24pm when you say:

    "the authors of the piece somehow left out their own school, Emory, when discussing schools that have reported that over 90 percent of their grads had employment after 9 months. Why talk about other schools but not your own? You would think that that is where they would start."

    You are not being very sensible. What you are asking is for two authors who, like Professor Campos here, are already taking a big risk professionally by writing the article (which incidentally no Emory law journal has published) to take the step from a brave move to a literally suicidal move. I am pretty sure that that if they called for the Dean of Emory law school to be jailed - or Professors Campos, Merrit (aka DJM) or Tamanaha called for the Deans of their schools, that would probably be a sufficient disciplinary offence to get them fired, tenure or not. Indeed I suspect there are anti-disparagement provisions in their employment terms. As it is they are "skating close to the edge of the ice"

    Let me put it another way - why is your posting anonymous ...

    Were these two professors to be fired or Professors Campos, Tamahana and Merrit would it help or hinder the need for law school reform. Don't confuse backing a cause with suicidal fanaticism.

    MacK

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  73. @ MacK As to your question, for not any reason that has to do with employment.

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  74. @6:00AM - but you still find it s judicious course of action,

    MacK

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  75. I am commenting on a blog along with other comments that are not in my control, not publishing an article.

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  76. Well, I'm afraid they are serious- the "incompetent turds"!

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  77. Bankruptcy is not a magic wand. The idea that biglawyers and others making 100K will be able to game the system is laughable- even people making 60K probably wouldn't be able to. It's basically more "welfare queen" rhetoric- screw the massive numbers of people who would be helped by a program because of a few people who exploit it.

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  78. This comment has been removed by a blog administrator.

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  79. Do you mean Dan? Neil? Paul? Any of the other people who actually hate you? But why are you protecting dybbuk? He's a sicko. What if he hurts someone?

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    Replies
    1. http://leiterlawschool.typepad.com/leiter/2012/10/post-tenure-review-moves-slowly-at-coloradoor-whatever-happened-to-paul-campos.html

      Delete
  80. You really are an obsessive little freak.

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  81. I remember my 3rdyear of law school fondly. I rarely went to class. I played a lot of cards during the day in the student locker room. At night I went to the many public houses around campus, meet many fine ladies with interests that coincided with mine, and spent many memorable evenings with them. Ah sweet bird of youth.

    OTOH, I would have been perfectly willing to save a years tuition.

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