Thursday, May 31, 2012

There was a silence in heaven

Reprinted with permission:
Dear Professor Campos:

I am currently at a tier 2 University.

I have been admitted into [Top 20 school] as a transfer student and I will be leaving my present school because the school is regional and the market here is dead, and I have some connections [there]. I do not have my spring semester grades, but I would like to transfer into a better and smaller school than [the one that's already accepted my transfer] if possible.

I wanted to let you know that the "law school scam" does not end with admissions and the schools have a strategic interest in maintaining the facade through the duration of the first year in order to keep their best students from transferring

My negative encounter with an "anti transfer pitch" actually resulted from being rewarded for strong first semester grades(placing me in the top 10%). I was invited to lunch with the Dean, Dean of Faculty, and Dean of Career services. The Dean began by stating that if we transfer we are traitors, and employers will not hire us because they will view us as just using them as a stepping stone. This naturally confused me because [my current school] accepts a handful of transfer students and this would be very unethical if he was allowing the school to recruit a handful of people who he strongly believed could not get jobs and are traitors. The Dean of Career services then went on to outline all of the great opportunities employers were providing to grads of this school (a lie). The Dean said that we should be bound together by our poor US News ranking and seemed kinda angry.

My anti transfer experience was relatively minor, but there is a host of stories out there. Such as schools making students pay absurd fees for letters of good standing, or sending email to faculty prohibiting them from writing letters of recommendation to students.

Do you believe that transferring law schools is in a student's best interest and what do you think of the transfer game?
I happen to know the dean in question here, and the funny part (not ha ha funny) is that unlike 98.44% of legal academics he has very extensive practice experience, so there's a zero per cent chance that his remarks regarding treason could be a product of some sort of self-serving carefully cultivated ignorance regarding the attitude law firms actually have toward transfers. (In other words he's lying rather than bullshitting).

This vignette has more than a whiff of desperation on both sides, as the top 20 school isn't even waiting for half the 1L's grades before gratefully accepting his money, while the second tier school's administration abases itself with transparent lies in an attempt to hold onto its better students.

I wrote about the transfer game a few months ago, and I wouldn't be surprised if the next month features an unusually wide open scramble, as some schools try to patch big revenue holes opened up by their failure to fill their first-year classes, and others try to avoid an unusually large number of transfers for the same reason (of course some schools will be dealing with both problems at once).  Any rising 2L on the transfer market who happens to be reading this should take this general situation into account, and should approach potential transfer schools not as a supplicant, but rather as a seller of a valuable commodity. Think of yourself as a former Dewey partner with a particularly big book of business (sorry Dean X!).

Other signs of the impeding opening of the Seventh Seal:

(1) Chicago hired 12% of its 2011 class into one-year school funded fellowships.  These numbers are somewhat hidden on a separate click-through page rather than on the main employment statistics page so they're easy to miss.  Note that all but one of these positions are counted as permanent full-time legal employment for NALP purposes, since the fellowships last one year (the minimum criterion for long-term employment per NALP's definitions).

Chicago's stats are full of indications of how badly the top end of the law school graduate employment market is doing. The percentage of its grads getting jobs with law firms has fallen from 81.6% to 58.8% over the past four years, and the drop is even sharper when you consider that in 2008 exactly one grad took a job with a firm of 2-10 attorneys while in 2011 six per cent of its grads going to law firms went into such positions.  (The percentage of graduates going to firms of 50 lawyers or less tripled between 2008 and 2011).

The percentage of Chicago people going into public interest work has zoomed from one (!) graduate in 2008 to 31 in 2011. Most of these of course are the law-school funded fellows, which hints at the extent to which these fellowships are simply stopgaps for people who couldn't get law firm jobs rather than a new institutional response to the freezing up of the market for PI work (The extent to which there have been no PI jobs for some time now is reflected by the 2008 class stats, as surely there must have been several people in that class who took law firm jobs because they couldn't get PI positions).

The percentage of graduates going into "business and industry" has risen from 3.0% (comparable to the typical HYS numbers in this category) to 7.5%, suggesting that the majority of those positions are something other than consulting gigs with McKinsey.   Given that the number of grads going into "academia" has gone from zero to nine we can safely assume that "academia" likely doesn't represent a good result either.

All in all it appears that roughly 30% of the 2011 Chicago class ended up with facially bad outcomes nine months after graduation, which raises the serious question of whether for the modal applicant Chicago at sticker is a good idea.  And if that question can now be raised legitimately about the country's fifth-ranked law school . . .

(2) I've heard from various sources that a certain fourth-tier law school is in fairly imminent danger of being shuttered by the central administration of the university where it's located.  It seems dropping the admissions bar to the floor and saturation email bombardments offering "scholarships" to anybody with a current LSAT score are falling well short of filling this fall's class.

(3)  A couple of high-priced low-ranked schools are apparently cutting (not freezing but cutting) faculty salaries.  A little bit more of that sort of thing and American legal education is suddenly going to have a crisis on its hands.

Wednesday, May 30, 2012

The art of necessity

University of Tennessee law professor Glenn Reynolds has a piece in the New York Post about the student debt crisis, in law school and more generally.  It's obviously a good thing that this issue is beginning to get some real traction in the media, and we can hope will translate into among other things more attention for Brian Tamanaha's terrific new book Failing Law Schools, which Reynolds cites.

As for immediate practical questions, Reynolds, like most of our generation, has a weakness for Polonius-like platitudes:

For students, piece of advice No. 1 is: Don’t go into debt. When I went to law school, back in the ’80s, I turned down free rides at a couple of excellent schools to go to Yale Law School, even though it meant taking on a lot of student-loan debt. I’m not sure I’d advise anyone to do the same thing today, even to go to Yale Law, the undisputed king of the law-school rankings — and I’m positive I wouldn’t make a similar tradeoff for many other places, even Harvard Law.

Debt is what gets people into trouble in bubbles: They borrow heavily because they think the value of what they’re buying, whether it’s a house or a tulip, will go up. When it stops going up, they’re sunk.
Today, the value of an education isn’t going up, but the price is. That’s a bad combination. So don’t borrow heavily.
This sounds suspiciously like a classic bit of baby boomer/one per center wisdom, i.e., take that Hamilton scholarship to Columbia over the sticker price Yale admit and you'll do just fine kids.
Responding to my critique of Special Snowflake Syndrome, some correspondents have pointed out that SSS is in part a predictable product of something like simple desperation:
Imagine that you’re a 21 year old kid with a 3.2 in Political Science, History or English, you’re one year away from graduating into a crap economy, and your Mom and Dad are not the kind of people with the business connections that can help you land a job. What do you? Move home with Mom and Dad and go to work at Starbucks, or enroll in law school?
Bored JD points out that until very recently the approved cultural response to this dilemma was "who cares?"

When confronted with this scenario, the prevailing mentality in this country until 2007 was quite simply, "fuck that guy. If he is too stupid to make rational decisions, let him get buried under the weight of his own poor choices." Then the bubble popped. And a whole load of people who never took out subprime mortgages, refinanced their houses to buy expensive consumer goods, or authorized bad home loans suffered. My father was laid off three times in four years because of a crappy economy. He's always lived within his means, never purchased anything gaudy or expensive with home equity. His home value took a bath and he will now probably lose money on his house. A guy who worked hard for many years and made what most people would consider good decisions. 
Another correspondent emphasizes that neither middle-aged boomers nor Kids Today have yet adjusted to an increasingly grim new normal, in which the wave of economic devastation that swept over much of the American working class in the 1970s and 1980s has now reached well up into the professional middle and upper middle classes:

I think something far more powerful at work than SSS is the now outmoded notion of “doing everything right” in America. It used to be that getting a graduate degree, especially a JD or PhD, really was a golden ticket of sorts. That time is now not only gone it has if anything passed through the looking glass into bizarro land, where having such a degree is a black mark. Making all the right choices no longer grant access to anything more assured than massive amounts of debt.

It’s hard to fault people for failing to come to terms with something that was heretofore inconceivable, especially among the striving middle classes, without their insider knowledge of hedge funds and how to place one’s knife and fork on the plate at the end of a seven course meal.
One thing I haven't sufficiently emphasized in my writing on this topic up until now is the extent to which the law school scam is both a product of and ultimately dependent on the slow motion collapse of an economic system which generated reasonable returns on investments in human capital for a much broader class of people than our modal prospective law student, hesitating between Yale at sticker or a full-ride at another top ten school.
People get scammed so easily by legal education because they don't have good options, so they turn law school into a "good option" out of sheer psychological necessity.
Perhaps the most disgusting bit of cynicism I've encountered in this business over the course of the last year has been the response of those in legal academia who, when contemplating the looming disaster of six figure debt and no real job facing something like a majority of current law grads, shrug their shoulders and remark that it's not like these people had better options.  In many cases this isn't even true -- law school has in fact made a bad situation worse for huge percentages of our students -- but even when it is, what sort of justification is that for the continual self-dealing that characterizes the behavior of the contemporary law school faculty and administration?
That the law school crisis is embedded in a much larger social crisis is rather all the more reason to stop eating our young.

Tuesday, May 29, 2012

Special Snowflake Syndrome and the spirit of capitalism

Among other things,the site Top Law Schools offers a fascinating glimpse into the psychology of prospective law students, aka 0Ls.  A common affliction among 0Ls is what the more perceptive law students and recent graduates who post on the site refer to as "special snowflake syndrome."  The classic symptoms of SSS tend to be exhibited by 0Ls who ask for advice regarding questions such as this, which is literally the first post I read on the site this morning:

So I've been accepted to Hofstra law as well as California Western. California Western is going to give me a 45,000 scholarship for the three years that I attend. I have two questions:

1st- Would I be better off moving from California to New York to attend Hofstra (tier 2 school) or stay in California to attend Cal Western ( tier 4 school). Basically is it a smart idea to move for a tier 2 school.

2nd- If I do attend Hofstra can I ever make my way back to California. I hear that where ever you go to laws school most people usually stay in the area because of the networking and job prospects are usually better. I'm just wondering if I stay and work a couple of years and gain some experience in New York will I be able to use that to gain a job in California.
Veteran TLS commenters will be sure to inform this misguided soul that attending Hofstra at sticker or Cal Western with a $15K per year "scholarship" (really a cross-subsidized tuition discount) is a horrible idea under almost any possible circumstance.  The original poster may well then resist this advice, by making some combination of the following claims:

(1) I plan to work exceptionally hard in law school and finish in the top 10% of my class.

(2) After killing it in my first year I will transfer to a much better school.

(3)  I have met several very successful lawyers who graduated from Hofstra/Cal Western.

(4)  If I'm only making $50K a year as a lawyer after I graduate I can go into this government debt forgiveness program that I've heard about, and after all $50K is just a starting salary.

(5)  There are a bunch of special circumstances about me that make my situation different from those of most people who have my entrance stats.

In other words, statistical extrapolation doesn't really apply in my case, because I'm not a statistic.

It's very tempting to interpret this sort of response moralistically as a sign of a flawed personal character, or to pathologize it as a symptom of a psychological deficit (in fact the latter is what the phrase Special Snowflake Syndrome does), or to simply treat it as evidence of stupidity.  But such responses gloss over the extent to which the sheer ubiquity of SSS indicates that it is really a product of deep structural factors more than of individual moral weaknesses or cognitive deficits.

In fact, Special Snowflake Syndrome could be re-characterized as "Thinking Like a Properly Socialized American" (or at least a properly socialized American from those social classes that produce the vast majority of law students).

Consider three central features of SSS: optimism bias, confirmation bias, and causal bias.

Optimism bias:  Americans in general, and middle and upper middle class Americans in particular, are socialized to be optimistic, in the sense that they are encouraged to believe that the chances of a good outcome for them personally are higher than average, and, even more powerfully, that the chances of a bad outcome for them are lower than average.  Of course this is a nonsensical belief from a statistical standpoint, but perhaps the most important element of SSS is that Americans are also socialized not to believe in the predictive value of statistics as applied to themselves as individuals.  (This belief, by the way, turns out to be perfectly compatible with a strong belief in the predictive value of statistics as applied to others.)

Confirmation bias:  People have a strong cognitive bias toward paying attention  to information they find pleasing, while ignoring data they find disturbing.  This again is a manifestation of how difficult it is for us to genuinely embrace statistical modes of reasoning, at least in regard to ourselves, and subjects we care deeply about.  Anecdotes that confirm our biases are interpreted as presumptively meaningful; carefully controlled studies challenging those biases are flawed, cherry-picked, and examples of how you can make statistics say anything.

Causal bias:  One reason people hate statistical reasoning is that such reasoning requires embracing the large role that random factors play in outcomes.  Our minds hate randomness, because randomness is something we can't control.  Here's an example, provided by the statisticians Howard Wainer and Harris Zwerling, and referenced in Daniel Kahneman's excellent book, Thinking, Fast and Slow: A study of the incidence of kidney cancer in the 3,141 counties in the USA reveals a striking pattern. The counties in which the incidence is lowest are mostly rural, sparsely populated, and located in traditionally Republican states in the South, the Midwest, and the West.  What explains this pattern?

It's easy enough to come up with all sorts of plausible-sounding theories for why this might be the case (lower pollution levels, healthier food, higher activity levels, etc.)  Well it turns out that the counties which have the highest incidence of kidney cancer are . . . mostly rural, sparsely populated, and located in traditionally Republican states in the South, Midwest, and West.  Again it's easy to come up with theories as to why; rural poverty, no access to good health care, high-fat diets, higher tobacco use, etc.

Now obviously these various theories completely contradict each other, and the real explanation is a statistical artifact:  counties with low populations are as a consequence of their low populations much more likely to produce statistically outlying results.  In other words, the correlations observed have no causal significance at all.  But we resist this explanation.  We like causal reasoning, because causal reasoning produces a sense of control ("don't live in a polluted area; don't eat high-fat food"), while embracing randomness leads to the opposite sensation ("don't be unlucky enough to contract kidney cancer.").

Special Snowflake Syndrome is just an extension of these strongly socialized cognitive biases.  Blaming people for failing to take "personal responsibility" for their "bad choices" is akin to blaming them for being members of this culture. All of which is to say that a structural problem requires a structural response, rather than exhorting individuals to become different people.

Monday, May 28, 2012

The law school reform movement: Accomplishments and goals

First, many thanks to DJM for guest blogging here last week.  She brings a fresh perspective to many of the topics on which this blog has focused, and raises others relevant to the crisis of the American law school.  (She will, I hope, continue to contribute posts from time to time).  That crisis has many facets, and naturally there will be disagreements within the reform movement about what aspects of it ought to be given how much attention. 

Such disagreements can be constructive, but it’s important not to allow them to obscure the basic divide in legal academia in particular and the legal profession in general: between those who understand that there really is a crisis, and an establishment culture that still remains in various degrees of denial about this crisis (although there are signs that the overall level of denial is declining rapidly; see below). 
The law school reform movement includes law students, recent graduates, veteran lawyers, legal academics, journalists, politicians, and not least the scam bloggers who started sounding the alarm on these issues before anyone else.  It features people from a wide range of political, economic and social backgrounds, who have been brought together by their shared belief that the system of legal education in this country is broken, and that this breakdown has dire consequences for the legal profession.

In that spirit, I think it’s useful to take stock of what the reform movement has accomplished so far, and to suggest some immediate goals it might pursue.  To date, the movement’s biggest accomplishments have been: 

(1)    Successfully pressuring law schools to make available employment and salary numbers for recent grads which are much more detailed than what was out there even a year ago at this time; and

(2)    Employing this data to get legal academia to at least begin to acknowledge that, given these numbers, it’s possible our methods have become unsound.

For example just eighteen months ago, Law School Transparency’s initial request for something better than the highly misleading employment and salary information being published by the vast majority of law schools produced an amazingly uniform response, in the form of pure stonewalling.  Yet little more than a year later LST managed to get no less than 40 law schools to disclose their individual NALP reports, while the ABA’s Section of Legal Education suddenly started publishing something of a treasure trove of data.  (It’s amazing what a couple of polite but firm letters from a U.S. senator can do).

While more remains to be done, it’s now far easier for Judge Schweitzer’s “sophisticated consumers” of information about legal education (to the extent they actually exist, which is a separate and deeply problematic issue) to recognize that the number of law schools worth attending at the advertised tuition price is very small indeed.  The disclosure of this information is in turn lending support to those within legal academia who are arguing that legal education in American is based on an economic model that no longer works for most law graduates.

The law school reform movement has made it much more difficult to ignore that the net present value of most of the law degrees being acquired in America today is negative, and in many cases dramatically so.   In other words, the national media, prospective law students, prominent politicians, and even some law professors are coming to recognize that law school costs far too much and – or rather because -- there are far too many lawyers competing for far too few jobs.  Again, this represents a significant advance in public discourse.

The first and most important step in any reform movement is the act of bringing itself into being: that is, of transforming what before could be characterized as isolated complaints from easily dismissed malcontents  into a coherent set of critiques put forward by what are now the recognized opponents of a newly  contestable status quo.  The law school reform movement has achieved this.  What goals should it focus on in the short term?  Some suggestions:

*Keep up the pressure on law schools to divulge information, and expose schools that continue to mislead prospective students.  The recent incident in which Rutgers-Camden tried to lure GMAT takers with some good old-fashioned phony employment and salary stats indicates both how far the reform movement has come – the school was roundly mocked and excoriated in many venues prospective law students might encounter – and how far it has to go.  Much progress has been made on this front, but if Rutgers-Camden’s behavior is any indication much remains to be done, until legal academic administrators who are tempted to cite “average” salary figures based on outcomes for five per cent of a graduating class do so with the full knowledge they are likely to be the subject of muck raking news stories, formal bar complaints, and possible legal action.

*Continue to get the word out to prospective law students that, for most of them, attending law school would end up being something between a bad and a catastrophic mistake.  That total applicants have declined by nearly a quarter in the last two years, despite a terrible job environment for recent college graduates, is a sign that the law school reform movement has had real success on this front.  That large numbers of people remain eager to spend large amounts of taxpayer dollars to attend schools with truly wretched employment  and salary statistics is a sign that more work remains to be done (although it’s also a sign of the practical limits of transparency).

*Work toward getting the federal government to reverse the extraordinarily reckless decision to allow law students to borrow the full attendance cost of whatever price any law school chooses to charge for the privilege of attending it, with no questions asked of either the students or the schools.  Just how this policy ought to be changed is of course controversial, but what isn’t controversial is that the present state of affairs is completely indefensible, and could hardly be changed for the worse.  No reform is more important than this: stop forcing taxpayers to fully subsidize the self-destructive behavior of law students, which in turn is enabled by the shamelessly self-interested behavior of law schools.  In this context, making the links between the law school crisis and the larger crisis in higher education explicit is crucial.

*Push schools to cut both tuition and enrollments.   If you’re a member of a law school faculty and aren’t advocating, at a minimum, hiring freezes and tuition cuts at your school, why not?  The medium-term goal of the law school reform movement should be to cut both enrollments and tuition by (at least) half, and moving toward that goal will require constant pressure from inside legal academia, as well as from outside it.

As for longer-term goals, that’s a subject for another post.

Friday, May 25, 2012

Taxi! taxi!

DCM promised another post on cartels, and tomorrow is DCM's birthday so he makes the call. We suggested earlier this week that the high tuition currently collected by law schools might represent monopoly profits drawn from the profession's remaining trade restrictions. Law schools guard the gates to a profession that many still desire, despite the best efforts of bloggers and consumer advocates to warn 0Ls away. As gatekeepers to a government-protected profession, law schools are in a strong economic position to skim at least some of the profession's excess profits.

To explore that suggestion, I tried to think of analogies. My first google search of "gatekeeper cartel" turned up many references to the Mexican drug trade. That was intriguing (could we deem legal education an illegal substance?) but I was afraid that the DEA might show up at our house if I browsed too many of those sites.

Then I hit upon a more perfect (or at least wholly lawful) analogy: taxi medallions. Those are the licenses that New York City sells to taxis cruising its streets. Only a cab sporting one of the official medallions may pick up passengers who hail a ride at curbside. The city notoriously limits the number of medallions, although one owner may sell the precious emblem to another.

The demand for taxi medallions has raised prices even higher and faster than law school tuition. In October, two medallions sold for a million dollars apiece. In 1985, as the linked article observes, a medallion sold for "just" $100,000. That 900% increase in medallion value (thank you, commenters, for fixing my math) exceeds even the rise in tuition prices at both public law schools (820% for residents) and private law schools (375%) during roughly the same period. (I've drawn the latter figures from Brian Tamanaha's forthcoming book.)

Could it really be that lucrative to drive a NYC taxi? Should unemployed law graduates actually embrace the chance to drive cabs? Clearly not. Most cab drivers aren't reaping those huge cartel profits. Investment companies buy most of the taxi medallions, then lease the driving rights to cabbies. A driver pays a set amount to use a medallion-marked taxi for a shift; the lease price comes out of her fares.

In this analogy, the medallion owners are like law schools and the cab drivers are the law students. Cab drivers must rent the medallions to get access to the streets, just as students must pay law school tuition to get access to the profession. Restrictions on the number of cabs almost certainly raises fares for passengers on the street, but most of the excess profit goes to the gatekeepers who own the medallions. The medallion owners are the ones who control the keys to the gated taxi profession. That has given them the power to reap profits that, during the last thirty years, exceeded returns from the stock market, gold, or oil. That's the enormous economic impact of government-enforced restrictions on trade.

Law schools similarly seem to profit from their power to grant access to the legal profession. Except for rare "law readers" in a few states, schools provide the only path to bar admission. As DCM stresses, applicants don't realize how competitive practice has become. Some lawyers still benefit somewhat from trade restrictions, but others are hurt by those rules. Smaller firms, for example, probably would benefit from looser rules on multidisciplinary practice and opportunities for nonlawyer investment. Meanwhile, applicants perceive law as both a skilled profession and a strongly maintained cartel, a combination that should give them job security and high income. The law school "scam" is that schools charge tuition as if they were offering access to a tightly controlled profession.

But there is another actor in our law school story: the legal profession itself. Law schools hold their gatekeeper position at the profession's request.

As Richard Abel and others have written, American lawyers created formal legal education to limit entry to the profession. The academic gambit was originally quite successful: It tightly constrained lawyer growth from 1900 through 1950. But, as Abel recognized in 1986 (sub. unfortunately req'd), those walls had fallen by 1980. "Lawyers [had] exerted no restraint over the threefold increase in law students since the early 1960s," he wrote. As a result, "the greater number of lawyers, especially in recent cohorts, [had to] compete with each other more aggressively." Abel was far from the only academic to recognize this trend--and the potential problems for the profession--but he wrote frequently about it.

Since 1980, the profession has tried other means to make the path to bar admission longer and harder. During the 1990s, for example, states raised passing scores on the bar exam. That temporarily constricted access to the profession: nationally, bar passage rates dropped from 74% in 1994 to 66% in 1998. Rates have crept slowly back, but have not regained the 1994 level. New York's recent decision to mandate pro bono service from bar applicants falls in the same category; it adds another hurdle for potential lawyers to climb.

Whenever the profession builds barriers, it creates opportunities for the guardians to profit. Law schools profit from education requirements, and I suspect that bar prep companies profited from tougher bar exams. In response to NY's latest mandate, enterprising organizations may even start charging fees to find pro bono opportunities for time-strapped new lawyers.

Where does this leave us in 2012? As we hail a taxi to get out of Dodge and end our guest-blogging days, we offer these departing thoughts:

To law professors: Remember that we are the medallion owners. As long as the profession leaves those medallions in our hands, we should exercise those powers as fiduciaries for our students, the profession, and future clients--not for personal profit or prestige. That is the most important thought we wanted to share this week.

To practitioners: Reconsider the benefits of cartel restrictions. The profits may go to gatekeepers, rather than to the profession. Loosening some traditional restraints, like mandatory fee schedules and advertising bans, has helped clients. We have all benefited in many ways from the fact that white women, minority women, and minority men are now part of our profession. Keep pressing law schools, bar associations, and state supreme courts to find better, cheaper ways to educate lawyers--even if that puts DJM out of business. But keep thinking too about whether our remaining guild restrictions do more harm than good, even for lawyers.

And to new lawyers everywhere: We hate the fact that so many of you hurt so much. But you are the best of the best. Take the profession forward, as so many of you are already doing in your calls for reform.

Have a happy holiday weekend everyone--we've enjoyed our temporary stay and, like all of you, look forward to LawProf's return next week.

Thursday, May 24, 2012

Client centered law schools

Curriculum reform is a huge topic; I can only scratch the surface in this post. But I want to continue discussion on a suggestion I made earlier this week, that law schools should educate students to provide the qualities that clients seek. How would law schools do that?

Many people asking this question point to the medical school model, suggesting that law schools should adopt one (or two) years of clinical rotations, perhaps followed by additional years of residency. I would not adopt that model wholesale. For one thing, it is far too expensive for the legal profession. Medical education rests upon enormous payments from Medicare, private insurance, government research grants, and private research funding, plus hefty tuition. Medicare alone contributes $9.1 billion a year to teaching hospitals, which helps pay for resident salaries and teaching costs. We don't have that kind of government support or private insurance in law.

But that shouldn't stop us from making legal education more responsive to clients. There are solutions that lie within our grasp, some of which borrow from less well known corners of medical education. I'll limit this post to my first four suggestions.

The first step is simply to embrace client needs as a measuring stick for curriculum decisions. That's a surprisingly radical notion in legal education. We talk sometimes about meeting student needs, and we reflect other times on employer demands. We plot constantly about how to raise our US News ranking. But we rarely ask directly, does this course/program/pedagogical method maximize the value we are providing to future clients? If we candidly examined the law school curriculum from that perspective, we might scratch our heads at many of the things we do. Equally important, we might be forced to admit that we don't have a clue what clients want or which pedagogies address those needs--and we might be forced to find out.

The second step is to bring clients into the curriculum. One of the best features of medical school, in my opinion, is that students practice patient interviews and meet real patients during their very first year. Outsiders, including legal educators, often talk about medical school as two years of classroom instruction followed by two years of clinical rotations. That's true in a very general sense, but medical schools learned long ago that students learn basic science better when they feel clinical context at the same time. Besides, the point of all the classroom training (in law or medicine) is to serve clients. Why not let students meet clients right off the bat?

I would add a client-contact course to the first year of law school, even if one of the traditional doctrinal courses has to move to the second year. This course, like the ones taught in medical schools, would allow students first to practice client interactions with individuals assuming client roles. Medical schools often use students from the university's theatre department or moonlighting actors for these exercises.

During the second part of the client-contact course, I would involve students in client intake at appropriate organizations; legal aid and public defenders' offices often use law students in this role. I would also introduce the students to real clients from other areas of law. Bring a GC to class to talk about what she expects from outside firms. Invite a real estate developer who will talk about his experience with lawyers. Include a personal injury plaintiff and a small business owner who defended against a discrimination claim; there are dozens of client categories to choose from. Introducing students to clients will give their other classroom work context, keep their eyes focused on the purpose of all this legal education, and introduce them to a wide variety of practice areas.

These courses would cost money, but they would not be big-ticket items. The payoff, furthermore, would be significant: students would relate their entire legal education, from the very first day, to the clients we ultimately serve.

Third, I would seek new models to add hands-on professional work to legal education. There are ambitious ideas like Bradley Borden and Robert Rhee's proposal for a law school firm. I can imagine smaller initiatives involving partnerships between law schools and particular employers. While pursuing these ideas, I would also modestly expand our in-house clinical offerings. The in-house clinics are valuable because of the intense supervision and opportunities for reflection that students receive. I don't think students need that degree of supervision full-time for a year, but a single 4-credit experience sets students up for deeper learning in other practice experiences. I have a lot more I could say about workplace experience, clinics, and their relationship to doctrinal education, but this paragraph is the short form.

Fourth, I would rethink the teaching of every doctrinal course. The case method has its place, but not in every law school class. And even in the first year, where learning to read cases and statutes should remain a primary focus, there are ways to make the curriculum more client centered. One of my very creative colleagues begins his fall-semester legal writing course by asking his 1L students to read a 37-page stock purchase agreement to determine whether the purchaser has certain rights against the seller. As often happens in real life, the answer to this question appears within the document itself. My colleague asks the students to work in teams, and they attack the document with great enthusiasm. At the end of class, he makes sure that all of the students have discovered the correct answers. Before the next class each student must compose an email explaining this answer to a hypothetical partner in his or her firm.

This exercise occurs in a legal writing class (and, yes, in the very first week of law school), but it could have been assigned in courses on contracts, mergers, or environmental law (the contractual dispute relates to the costs of hazardous waste remediation). Why do we assign so many cases in law school and so few documents of other kinds? My colleague is not the only professor innovating this way; in fact, I know contracts, mergers, and environmental law colleagues who are doing some equally creative things. We need to spread this type of work much more widely within the law school curriculum.

*  *  *
Those are my first four ideas for creating more client-centered law schools. Since you know me by now, you can guess that I have a lot more suggestions. A few of the others are (a) academic prerequisites to law school admission; (b) upper-level "uncasebooks" that teach the law without appellate opinions; (c) courses on law practice management and trends in the business of law; (d) law practice shadowing opportunities; (e) introductions to more of the technologies used in law practice; and (f) requiring every full-time faculty member and top-level administrator to demonstrate ongoing proficiency in the rules of professional responsibility. (Ha! Slipped that last one in. But I'm serious. As a professor who occasionally does social science research, I have to take certification courses on research ethics every three years. Just as researchers should be current with the ethical principles of human subjects research, faculty who teach professionals should be fully conversant with the rules governing the profession.)

All of these suggestions revolve around the central question: How can we lay the best foundational education for professionals who will serve clients? The clients will vary enormously in their characteristics and needs, but they will all rely upon their lawyers for critical support.

How will we pay for these changes? Not through increased tuition. I would ask all tenured faculty to recognize the disproportionate amount of time we have devoted to research during the last twenty years and to "give back" some of that time by spending a disproportionate amount of time on pedagogic reform over the next three years. Going forward, I would reduce the amount of time and money we devote to research rather than teaching. I strongly support academic research; despite its critics, research too benefits clients and society. But there were many law professors who produced outstanding scholarship before 1980; indeed, their work still influences us. Those professors generated their scholarship with heavier teaching loads, less research support, and no computers. I think we can match those standards today--and even retain our computers.

Wednesday, May 23, 2012

Mid game

Several commenters have asked me whether faculty are discussing the issues raised in this blog and, if so, what any of us see as the endgame. At mid-week, it's relaxing to write a post that's all speculation--none of those pesky facts or studies! So here are my thoughts.

First, I do know quite a number of faculty--at my school and elsewhere--who are discussing these issues. Their views and awareness differ, but the comments arise far more frequently in conversation. There's still a tendency everywhere to think that "our school is different," but there is steadily growing concern.

As for predictions, I can't see the endgame from here; the economy and profession are changing too rapidly. But here are four predictions about what might happen by the end of the game's first quarter (roughly within the next two years). I offer these with the hope that I won't be much further off than the average sportscaster:

1. This summer will produce shock waves at almost every school. Applications are down, including among those who scored highly on the LSAT.  In addition, based on comments at sites like top-law-schools, 0Ls are much more reluctant to pay sticker price outside the T14. Even some applicants with multiple offers in hand are still weighing whether to attend law school at all.

Schools outside the T6 almost certainly will have trouble filling their seats with applicants as qualified as the ones they currently enroll. The challenges may be greatest at schools ranked roughly 15-100, who will face pressure on three fronts: (a) fewer applicants in their original pool, especially at the higher LSAT levels; (b) more competition from schools ranked just above each of them, who are dipping further into their own pools; and (c) more competition from the schools ranked just below each of them, whose scholarship offers will be more tempting to applicants than in the past.

A significant number of schools at every level may pare class size to maintain LSAT and GPA levels. Alternatively, they may end up inadvertently under-enrolled because students change their minds in late summer. This summer probably will be a volatile one for admissions, with lots of students admitted off waiting lists who leave gaps at other schools.

The schools that do cut class size may face a sobering outcome: the unfilled seats are likely to be full-price ones. I suspect, in other words, that schools will continue offering scholarship money to attract the best students; they may even push those budgets to maintain their entering-class profile. When classes start in August, the missing bodies may be ones who would have paid full tuition. Losing 10-25 students at the "average" seat cost isn't too bad; losing 10-25 students who would have paid full tuition for three years is a bigger blow.

If shocks like this occur, then many more faculty will start talking about tuition, job outcomes, and other issues on this blog.

2. Tuition won't rise nearly as fast as it has in recent years. Some schools may even freeze tuition to attract students, although I think few will go so far as to roll back sticker price. Instead, schools may try to increase scholarship offers, de facto lowering tuition. Scholarships are an appealing way for schools to cut tuition, because they can differentiate among applicants.

Some schools may find other ways to court students by cutting students' anticipated costs. A thoughtful school, for example, could guarantee all of its students "scholarships" for credit-earning summer externships. Essentially, the school would say to applicants: "If you attend our school and don't find a paying job after your first or second year, you will be able to enroll in our summer externship program without charge. That summer externship will help you learn skills, make workplace connections, and build your resume--and you'll get free academic credits to boot!" This would be attractive to students, and would not cost schools very much. Externship programs are inexpensive to run, and most students pay for a full six semesters of law school even if they earn some credits one summer. A creative student in my "Business of Law" seminar wrote a paper developing this idea.

3. Schools will begin looking for new sources of revenue. They are likely to admit more international students to both LLM and JD programs. They may also create revenue-generating courses targeted at practitioners. These courses would offer more depth than CLE workshops, but without the commitment of full degree programs. Despite often-justified criticisms of law professors, every school has at least a few faculty who have useful technical knowledge and decent presentation skills. As law firms and other organizations become leaner, they may find this type of training increasingly cost-effective.

The internet may help schools tap some of these revenue sources. A few schools have already started offering internet-based courses to LLM students in other countries. Practicing lawyers and professionals in allied fields (e.g., human relations) are also excellent targets for internet-based training.

4. Schools, students, and employers will adapt to new hiring patterns. I don't think the boom times of 2007 will come back--certainly not within the next two years. The new patterns will vary by law school prestige and geography, but some likely overall trends are:

(a) More externships, volunteer positions, and fellowship-funded positions during the 1L and 2L summers. These positions will give students useful practice experience, but at a worrisome financial cost: the rise in student debt flows, not only from increased tuition costs, but from a decline in paid employment during law school.

(b) More staff attorney, career associate, contract attorney, and other "alternative" positions at law firms of all sizes. Some of these positions will have positive features: Full-time staff attorneys and career associates may handle interesting work, while maintaining more regular hours than partnership-track peers. At least some of these full-time positions pay better-than-average salaries, and the full-time jobs usually include benefits. But even the most desirable jobs in this category make it difficult for graduates to pay down their law school debt. The increasing number of these jobs will challenge law schools to address tuition costs and debt; the question is whether schools will rise to that challenge.

(c) Much more mobility and part-time work during the first 2-3 years after graduation. The job market overall is unstable, and new lawyers clearly are having a hard time establishing themselves. We'll continue to see graduates moving among contract positions, government jobs, fellowships, and law firms. My informal contacts suggest that this movement is multi-directional. Some BigLaw hires are downsized to less remunerative work within two years of graduation. Other graduates who initially took fellowships or part-time gigs have landed associate jobs at solid law firms.

(d) Increased emigration. American JDs have value abroad and, as the domestic job market remains rocky, foreign jobs may become more attractive. US firms are also continuing to expand overseas offices. Law students, meanwhile, are increasingly likely to have lived or worked overseas, to have friends in other countries, and to feel comfortable relocating to another nation. Whether employed by a US firm or an overseas organization, we may see more alumni skyping into reunions.

Whatever the trends, we'll know much more about them in two years than we do now. I'm starting to research new career paths among our graduates, and I suspect faculty or administrators at other schools are doing the same. That research, if it happens, will be very beneficial to current and future students--and even to some alumni.

*   *   *

Notice that my "first quarter" predictions do not include massive closings of law schools. It's possible that some law schools will shutter, and I think that would be a good result. But law schools have a lot of resources and considerable fat to pare from their budgets. Meanwhile, although the applicant stream has diminished, it is still large enough to fill all existing seats at law schools. At least during the next two years, I think we'll see reduced class sizes rather than closures. What happens after that may depend on how schools themselves react during the next two years, especially on predictions 2-4. Will we find ways to attract more students by cutting some costs? Will we find new sources of revenue? Will we place more of our graduates abroad? Will we find out more about the new job market so that we can help our graduates better navigate those waters? 

Somewhere in there, I also hope that schools will modify parts of their academic programs. Relatively modest changes could make a significant difference in preparing professionals--and perhaps even in placing them in better jobs. But that's a matter for another post.

Tuesday, May 22, 2012

Price sensitivity

"Our consumers are not very price sensitive." I've heard that sentiment repeatedly during the last year, as colleagues across the nation respond to criticisms of law school tuition. Some offer the comment apologetically, their tone suggesting that applicants' eagerness for legal education compels our prices. If students are going to put that much money on the table, doesn't someone have to take it?

Others are more pragmatic. They note that some schools will continue to raise tuition, so their institution must do the same to keep up in the U.S. News rankings. Money helps with so many of those ranking factors.

And some are a bit more aggressive. Legal education is valuable, they argue, and many lawyers earn high salaries. We in the academy shouldn't undervalue ourselves. What's more, as long as students flock to our schools, tuition prices must be reasonably aligned with value.

Whatever the tone, these sentiments are enough to turn me into an angry young man (although I have trouble with those last two characteristics). Let's consider what's wrong with the "price insensitivity" position.

First, although I support some aspects of the university-as-business model, our students are not one-time purchasers of iPads, running shoes, or microwaves. They are people who will spend three years working with us to earn a professional degree. At least in theory, we will share professional knowledge and values with them. And at the end of three years, we will welcome them as colleagues in the professional community of lawyers. Surely this is a different relationship than the one between a cashier and customer at BestBuy.

Second, markets properly set value only when those markets are free. DCM figured that out after reading a single economics text! The market for legal education is not free; it suffers from two massive distortions. Government-backed student loans allow law schools to increase prices with very little pushback. And law schools are gatekeepers to a gated profession. In most states, people who want to be lawyers must pay for three years of our tuition; that gives us tremendous market power.

I wonder, in fact, how much of the tuition collected by law schools represents monopoly rents from the guild restrictions of the legal profession itself. To practice law, individuals must surmount significant barriers to entry: They must complete a four-year college degree, score decently on the LSAT, attend (and pay for) law school, and pass the bar examination (which often entails paying still more tuition for a bar review course). Increasingly, these individuals must also take a series of low-paying or volunteer positions to obtain practical experience and establish their credibility as lawyers.

This is an expensive, time-consuming, intellectually challenging, and emotionally stressful path. And, as we know, it's also a risky one. Even many of the survivors will fail to find legal jobs. Yet there are still many people, for whatever reason, who want to be lawyers. For those people, law school represents the single largest--and by far most expensive--barrier to entry. Potential lawyers don't get to choose their pipers: They must dance to our tune at whatever price we charge.

How did we end up in such an economically powerful position? Legislatures have granted lawyers the exclusive right to practice law, and state supreme courts have given accredited law schools the exclusive right to train lawyers. Those rights are supposed to come with a responsibility: to act in the best interests of clients. We are all, whether we practice law or teach it in the classroom, supposed to be maintaining a legal system that benefits clients. That's the only justification we have for abandoning the rigors of free market competition.

That's why I get so irritated by references to students' "price insensitivity." Law schools are triply shielded from the free market: first by rules that restrict law practice to licensed lawyers; second by bar admission regulations that require applicants to graduate from accredited law schools; and third by self-designed accreditation standards. When we take advantage of these restrictions to escalate tuition far beyond inflation, we're not just stifling our graduates with debt; we're abandoning our professional responsibilities.

If you have a fetish for footnotes, DCM and I published a more academic version of these ideas last year.

DCM comments: Some of you are probably saying, "What? Restricted profession? Too many barriers to entry? The problem is too many lawyers and too few jobs!" You're right, and I've made sure DJM gets that (lots of my good friends are just-graduating law students). But coming shortly - more on how the guild system hurts new lawyers, and is at the center of the "law school scam."

Monday, May 21, 2012

Going under the knife

A few days ago, MacK graciously invited tdennis239 and me to perform his upcoming knee surgery. Tongue-in-cheek, MacK used his comment to illustrate that legal education does not prepare its graduates to "do anything." I couldn't agree more, and I'm relieved to decline MacK's invitation.

But as it happens, I'm facing some minor surgery of my own. That circumstance, combined with MacK's comment, made me think about a different question: What qualities, other than an MD, do I want in my surgeon? As I thought about those qualities, I saw many connections between the characteristics I want in a doctor and the qualities our clients seek in lawyers. In this post I'll share my list of "qualities a client wants," and see whether you agree. In a future post, I'll take this one step further, using the list of client desires to assess the preparation students receive in law school today.

As background, my procedure is cataract surgery; the eye doctor will remove a cataract-clouded lens from one eye and replace it with an artificial one. WebMD assures me that this is very safe, routine surgery. But still, it's my eye! Here are the qualities I hope to find in my surgeon:

1. Extensive hands-on practice. I decided this was one of the most important qualities in choosing a surgeon. I want someone who has done this procedure many times, with good results. And I want someone who is regularly performing the procedure now; I don't want a doctor who is "remembering" how to do cataract surgery while I'm on the table.

2. Up-to-date knowledge. Even simple procedures evolve, and I'd prefer a surgeon who knows about the latest techniques and best replacement lenses.

3. Communication skills. I don't care that much about soothing words and sympathetic looks; scalpel skills matter more to me for this procedure. But before the surgeon wields that scalpel, she has to know about my individual medical history and lifestyle. Patients, apparently, differ in the type of replacement lens that benefits them. If the doctor can't communicate well enough to get the necessary information from me, I may not end up with the best result. This type of communication, which informs the treatment, is harder than many people imagine.

4. Cost. I'll pay a lot to protect my vision, but I won't pay anything. In particular, I won't pay extra dollars for reputation or prestige if those factors don't correlate with better results. I considered, for example, whether I should go to the esteemed Mayo Clinic for this surgery. But I quickly rejected that notion. Mayo would cost considerably more, this is a widely performed routine procedure, and experiences of friends and family persuade me that Mayo is no better than other venues for routine procedures like this.

5. Convenience. For unique life-saving treatment, I'd fly to another state--or even another country. But that doesn't seem necessary here. And when choosing among otherwise equivalent local doctors, I'd prefer one located close to my home who offers good parking.

6. Excellent problem solving skills. Ok, it's a routine procedure, but something could go wrong. And even with the initial procedure, there are a few decisions to make. I want a doctor who, whether things go well or poorly, can help me sort through any choices and make a wise decision tailored to my circumstances. This, by the way, is one of the areas in which I often find doctors deficient. Medical school and residencies focus doctors on following strict algorithms to treat identified conditions. The doctors often stumble when a patient suffers from unusual symptoms or doesn't fit the algorithm.

7. Sterling ethics. There are unethical doctors, just as there are unethical lawyers, law professors, and university administrators. And when you're the patient, bad ethics can hurt. My son was once forcibly held down while a gastroenterologist pushed an endoscope down his throat, through his stomach, and into his small intestine. The doctor had selected an anesthesic that doesn't work on my son (a fact that his medical record made clear), but didn't want to take the time to call an anesthesiologist to administer a different medicine. There was nothing urgent medically about completing this procedure, but time is money in the endoscopy suite and the doctor was "sure" that the anesthesia would take effect. Needless to say, I don't want a doctor who will act this way.

8. Strong foundational knowledge. I mused a bit about this one. If a surgeon has repeatedly performed a procedure with excellent results, does it matter whether the surgeon took organic chemistry or understands kidney function? It might: maybe that background knowledge helps the surgeon stay abreast of new techniques. Or maybe, if something goes wrong during surgery, all of that knowledge will lead to a better, quicker decision.  "Quick, the aldehydes are losing their carbonyl centers, and I need some ketones!" (I hope it's clear that I don't have a clue what those words mean--I found them by googling "organic chemistry.")

I don't have to decide whether this last quality matters, because the medical system will give it to me regardless. Only a licensed MD can perform this surgery, and all of them have completed both pre-med and academic training. I do know that I care more about the other qualities on this list (especially the surgeon's hands-on experience) than about the surgeon's grade in organic chemistry or even (gasp!) the quality of the medical school she attended.

So that's my list. The qualities don't appear in order of importance. Their relative importance, in fact, probably would differ according to the medical procedure. But I'm guessing that, if I needed a lawyer instead of a doctor, I would seek many of the same qualities. What do you think? If you're a practitioner, are these the qualities that clients seem to seek? Are there qualities you would add? If you've ever sought medical or legal help, what qualities benefited you?

In a future post I'll explore two related issues: Should law schools prepare students to supply the qualities that clients seek? If so, how well are schools succeeding in that task? Preview: Yes, and I'm a tough grader.

Note from DCM (DJM's son): The incident with a forced endoscopy was obviously a horrible experience, and almost two years later I still suffer from PTSD because of this procedure. I'm willing to publicly put it out there because I think it illustrates two crucial points.

First, both lawyers and doctors are professionals who must routinely deal with what may be some of the defining moments in people's lives. Sound professional skills and sound ethics are key if you want to make a beneficial, rather than devastating, impact when you intervene in those defining moments. That means not just theoretical "professional responsibility" but also retaining a healthy dose of your old, common-sense morality. It shouldn't take any special ethics class to teach that forcibly violating a struggling, improperly sedated patient is wrong, and indeed it takes a certain Olympian professional detachment to forget that.

Second, having a transformative impact - for better or worse - in someone else's life doesn't just happen in small sub-sections of the professions. It's obvious that a heart transplant surgeon or a death row criminal defense attorney is going to have an enormous impact on others' lives. It's less obvious that performing routine work - an endoscopy in medicine, a child custody agreement or small business incorporation in law - can be as vital. But done very well or very poorly, these too can shape another's life for years to come.

Update on Rutgers-Camden

Law School Transparency has just called for Camille Andrews, R-C's associate dean for enrollment, to resign from her post. LST also asks the ABA to investigate the school's actions and bring appropriate sanctions for violating accreditation standard 509.

LST's post includes an excellent analysis of the misleading statements in Dean Andrews' email to prospective students. The Andrews email is a breathtaking example of how schools continue to disclose statistics in a selective, highly deceptive manner. Sort of like failing to give a job applicant all of the relevant facts about the job. This email came to light because of its brazenness. But how many other law school representatives, at schools across the country, made similarly glib statements about salaries and percentages to 0Ls this spring?

For the full email and other background, see LawProf's post from last week.

Sunday, May 20, 2012

Taking candy from children

Who is more likely to take candy from children? A law school professor or one of the school's janitors?

If you chose the law school professor, you're correct--according to new research by a team of Berkeley psychologists. Bear with me while I get a little professorial and describe this research; I think you'll appreciate the pay off.

Paul Piff and his colleagues just published a paper describing several studies that suggest higher-class people are more likely than lower-class ones to commit certain types of illegal and unethical behavior. Here are some of the highlights.

In their first study, the Piff group sent trained observers to a busy intersection with four-way stop signs. The observers coded the "status" of cars, based on the car's make, age, and appearance. Other research demonstrates that a car's appearance correlates heavily with the driver's social rank and wealth. The observers then tallied which cars waited their turn at the intersection and which ones cut off other drivers.

You know the result from my introduction: the high-status cars were much more likely to barrel through the intersection. Thirty percent of the highest-status cars cut off other drivers, compared to just eight percent of the lowest-status cars.  "Waiting your turn" doesn't play well with high-status drivers.

Piff's crew next staked out a well marked crosswalk. As one researcher watched from a hidden spot, another stepped into the walk. The drivers all gazed at the pedestrian or briefly slowed, suggesting that they had seen the pedestrian. State law and good manners require a driver to yield to a pedestrian in a crosswalk. But only drivers of the lowest status cars uniformly followed that rule; every one of those drivers stopped for the pedestrian.  Other drivers were much ruder and less law abiding, with the bad behavior escalating by social class. Fully 46% of the highest-status cars cut off the pedestrian.

And now we get to the candy. Piff and his colleagues set up a third experiment in which they "primed" subjects to think of themselves as either better or worse off than other people. After the subjects completed the priming task and some other exercises, the experimenters pointed out a jar of candy and told the subjects that the candy was for a group of children in a nearby room. The jar itself was labeled "child research lab." But the experimenters also told the subjects that they could take some of the candy if they wanted to do so. How much candy did the subjects take from the children's jar? Those who had been primed to think of themselves as comparatively well off took twice as much candy as those who had been primed for lower-status feelings.

Taking goodies from a child's candy jar and leaving less for the children...where else have I seen behavior like that? Could it be law schools that raise tuition faster than inflation, even during the great recession? More candy for us, less for our students.

In a fourth study, Piff asked another group of subjects to imagine themselves as employers faced with the following situation: They must fill a job quickly and at the lowest possible salary. Only one candidate remains in the pool, although the candidate does not know that fact. The candidate also does not know that you (the employer) plan to eliminate the position in just six months. The position must be filled now, but will not last long. You offer the job to the candidate and get ready to negotiate salary. At that point the candidate expresses a strong desire to remain in the same job for two years; she suggests that she would be willing to accept a lower salary in return for a verbal commitment of job security.

Based on these hypothetical facts, Piff asked the subjects: How likely would you be to tell the applicant the truth about the job's limited duration?  Higher-class subjects (as measured by a standard test of social class) were significantly more likely than lower-class ones to say that they would lie or obscure the truth. The significant difference remained even after controlling for sex, age, ethnicity, religiosity, and political orientation. Social class, not politics or religion, predicted a willingness to mislead the job candidate.

It's easy to criticize any one psychology study as unrealistic.  The subjects in the final study, for example, didn't engage in a real negotiation; many of them may have never hired a person in the real world. But when researchers combine a variety of study methods and subjects, as the psychologists did here, the results grow in persuasiveness.

The job-negotiation study, furthermore, is eerily like the behavior we've seen from law schools. At some point in the last few years, almost every law school has obscured important employment data from applicants. Even today, after more than a year of complaints, lawsuits, nagging, and heckling, many schools are still posting data selectively. How did legal educators come to think, like the subjects in the previous study, that it's ok to engage in hardball, hide-the-truth negotiations with our own prospective students?

I like studies like the Piff one because they push all of us to think about our unconscious attitudes. We tend to associate people from low socioeconomic backgrounds with higher crime rates. Poor people probably do commit some crimes at higher rates than well-off citizens; poverty breeds a special type of desperation.  But given the right circumstances, well-off people will also act unethically or illegally. Indeed, as Piff's research shows, they are more likely than others to commit some types of unethical acts. The problem isn't social class itself; it's the attitudes and assumptions that status can confer.

If law faculty and deans reflected seriously on Piff's findings, they might see how narrowly self interested we've been in touting misleading job data and raising tuition faster than inflation. We haven't thought as seriously as we should have about the significant damage these actions have done to our students. As LawProf has suggested before, law faculty are the type of people who would emphatically deny any tendency to take candy from children. But what happens when we're left alone with the candy jar and our self interest?

Here again is the link to the Piff study. Unfortunately, you'll have to pay $10 for online access if you don't have a library subscription. If you want to walk to a library to see the study in hard copy, it's Paul K. Piff, et al., Higher Social Class Predicts Increased Unethical Behavior, 109 Proceedings of the National Academy of Sciences 4086 (2012). Watch out for high-status cars when you cross the street.

PS LawProf has departed for a well deserved one-week vacation. Meanwhile, DJM and son have agreed to temporarily fill his very large shoes. Bon voyage, LawProf!

Friday, May 18, 2012

Rutgers-Camden goes old school

 Updated below

Apparently a whole lot of people got an email from Rutgers-Camden's law school this week:

Prof. Campos:

Today my girlfriend received the email below from Rutgers.   By way of background, she has never even thought seriously about going to law school, let alone registered or taken the LSAT, or even registered or taken an LSAT prep course.  She has taken the GMAT, and scored moderately well.  Apparently that is enough to get you into Rutgers Law School.  Notice that the requirement is that you've scored in the 70th percentile on any single section of the GMAT, and a UGPA of 3.3.  You can almost smell the desperation for new applicants… waiving the application fee and the deposit fee makes this even more clear.  Their completely nonsense employment data regarding their class of 2011 is a far cry from their Law School Transparency profile, based on 2010's data, which boasted a $56k mean salary with fully 19% unemployed. Somehow their average law firm salary jumped $28k in one year, in the middle of the worst time for young lawyers in a generation.  Anyway, just thought you'd like to see one additional facet of law school admissions offices' despicable conduct.  You've got to keep getting the word out on this insanity; the ABA has completely abdicated its responsibility for keeping our profession credible.  Keep up the good work and I really hope you're working on a manuscript…


Date: May 17, 2012 5:40:21 PM CDT
To: Subject: Rutgers School of Law - Camden

Dear __________,
In the ever-volatile job market, you may be considering graduate school. Consider this - Rutgers School of Law - Camden is giving high-achieving students, such as you, the opportunity to enroll in the Fall 2012 class. The traditional law school program is a three-year program, which is extremely attractive to most graduate students given the difficult economy. The program is open to all students who have completed their undergraduate education with a 3.3 GPA or higher and scored in the 70th percentile or higher on any one core section of the GMAT. If accepted at Rutgers law School at Camden, you will join other bright, talented students who are pursuing their legal education at our law school. To encourage you to participate in the program, the Law School is waiving the application fee, and if accepted, the $300 deposit fee. Joint JD/MBA degrees with the Graduate School of Business are also possible. Scholarship awards and in-state tuition are available.
The School is proud to carry on the tradition of excellence at Rutgers University, which is one of the oldest and largest public institutions of higher learning in the nation. As a direct result of the quality of legal education at Rutgers, of those employed nine months after graduation, 90% were employed in the legal field and 90% were in full time positions. Our average starting salary for a 2011 graduate who enters private practice is in excess of $74,000, with many top students accepting positions with firms paying in excess of $130,000. In a recent Forbes publication, Rutgers School of Law-Camden was ranked 18th nationally as one of the "Best Law Schools for Getting Rich". Rutgers is also ranked high in the nation at placing its students in prestigious federal and state clerkships.
I hope that you will consider this opportunity and join this class. Please apply on-line at our web site at We are a direct student loan institution so financial aid is easily processed. We also have newly constructed on-campus law school apartments available, adjacent to the Law School and the Federal Courthouse, and guaranteed for our law students.
Camille Andrews
Associate Dean of Enrollment 
Let's look at some numbers.  About 270,000 people take the GMAT each year.  I don't know how many score in at least the 70th percentile on any one core section, but let's assume half do.  How many of those people have undergrad GPAs of at least 3.3? With grade inflation and all this could easily add up to 60,000 or more targets candidates for Rutgers-Camden's innovative plan, which allows them to solicit law school applications from people who, like the above recipient, have never really even thought about going to law school, but who could well start her 1L year a few weeks after considering such a career path for the very first time.
Before doing so, she should take a very close look at what the salary numbers Rutgers is advertising actually look like. Rutgers is claiming that "our average starting salary for a 2011 graduate who enters private practice is in excess of $74,000, with many top students accepting positions with firms paying in excess of $130,000." First, note that only 29% of the 84% of the class whose status was known and that was actually employed -- 58 graduates -- were in private practice nine months after graduation. But only 27 of those 58 people had their salaries reported by the school.  The median salary for those 27 people was $60,000.  
So another way of phrasing this employment data would be this:  "14 out of 237 graduates of the 2011 Rutgers-Camden class were reported to be making $60,000 or more in private practice nine months after graduation." The claim that "many top students accepting positions with firms paying in excess of $130,000" is based on . . . well we can't say exactly how many graduates, since the 75th percentile of reported salaries for graduates with firm jobs was $110,000, which means that at most six people in the entire class reported a salary of $130,000.

A careful search of the internet reveals that Rutgers-Camden is being remarkably discreet about the fact that it's trying to convince people who have never even thought about going to law school to enroll as 1Ls 12 weeks from now, on the basis of egregiously misleading employment stats. That's so . . . 2010.  (The reference to this farcical Forbes "study" is also a nice touch).

Really Dean Andrews? This is May 2012. Did you actually think this kind of thing is going to fly under the radar at this point?


New Jersey Rules Governing Professional Conduct

RPC 8.4

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

Lawyers who commit unethical conduct in this state are subject to discipline by the Supreme Court. Such discipline can range from an admonition, the least serious discipline, to a reprimand, censure, suspension from practice, or permanent disbarment from practice. The "Attorney Discipline" page describes the process. The attorney disciplinary process is usually begun by the filing of an Attorney Grievance form with the Secretary of one of the Supreme Court's 18 district ethics committees. To contact a district ethics committee Secretary call the toll free Ethics/Fee Arbitration Hotline at 1-(800)-406-8594. Be prepared to provide the five digit zip code of the attorney's address.


Attorney Discipline: New Jersey

Note:  I'm very pleased to announce that DJM will be blogging here for the next week (and hopefully beyond).  As readers of this blog are well aware, DJM has been at the forefront of the battle for meaningful law school reform, and it's an honor to have her contribute in this way.  Please give her a warm welcome.

The revolution will not be cite checked

 Updated below

I once knew Rick Hills slightly.  At the beginning of his academic career he was what would now be called a VAP at CU, and we tried to hire him onto the faculty.  He was a bright, charming, ambitious, and what in another context would be called a connected guy: his mother was a big deal politician, his father was a former SEC chairman (in addition to all this Carla and William Hills founded what's now Munger, Tolles & Olson), and it was easy enough to predict he was going to do quite well in this thing of ours.  And I gather he has.

Yesterday he posted a complaint on Prawfsblawg (since deleted) which began like this:

I have a gripe about law students' lack of what might be called a "professional ethic." But maybe my grumpiness is just the irritated ennui brought on by grading 90 exams. Consider the following interaction, and tell me whether I am wrong to think that kids nowadays are unusually callow and immature.
Hills then went on to complain about the behavior of one of his students, a 2L who had agreed in March to be his research assistant this summer, but who backed out of the job the following month after getting an offer to be a summer associate for a firm.

Hills was at least cognizant enough of economic reality to recognize that this was a case of, to put it in contract law jargon, efficient breach --that the gain to the student from taking this opportunity outweighed the inconvenience to him -- but apparently he wanted compensation, in the form of a sufficiently groveling apology, preferably in person.  Instead he had to settle for an email from her, which he had the poor judgment to reproduce in the post.  (As DJM pointed out in a comment in the deleted thread, reproducing the email was arguably a FERPA violation.)

Update: Hills has apologized for the original post.

Update II: I've received messages from Hills that, for what it's worth, lead me to believe his apology is genuine rather than a strategic gesture.

Before he deleted the post Hills got a healthy dose of reality therapy, in the form of serious blow back from commentators. I was particularly pleased to see at least a couple of law professors other than the fearless DJM actually post critical comments under their own names. This response from Steven Lubet, regarding whether the student's handling of the situation represented "a professional ethic," was on point:

Ask the 30 law students who suddenly found themselves without summer jobs at Dewey LeBoeuf while hundreds of partners scrambled to find new positions for themselves. Did any of those partners -- some of whom control quite a bit of business -- even think about trying to bring along a summer associate or two? If so, it certainly hasn't gotten any press. And the suddenly jobless associates and staff were all notified, as it happens, by email.

I'd like to make just a few comments about this revelatory little incident:

(1) This is what clueless privilege looks like.  I have no reason to think Hills is a "bad guy," in the sense that he's particularly insensitive or self-regarding or otherwise narcissistic. It would be nice to think that his behavior could be explained in those terms, but unfortunately this kind of behavior is completely normal and predictable from people who live extraordinarily privileged lives, that feature thick layers of money and status between themselves and all manner of unpleasantness.

Hills could not have written what he wrote if he had any sense of what a potential professional and personal catastrophe is looming over an NYU 2L who has agreed to work as an RA during the summer before her third year.  Now it's possible that the student in question comes from the kind of background where not getting a big firm job isn't a disaster even after spending upwards of $250K to go to law school -- a background like Hills' own say -- but even at NYU this is fairly unlikely, and in any case expectations of what constitutes "professional behavior" need to be based on the circumstances of the average professional, not those of people who, to quote a great philosopher, have been born on third base and think they've hit a triple.

(2) The fact that Hills hired a 2L is symptomatic of what's happening all over the legal employment market.  If Hills can hire 2Ls to do scut work for him for low hourly wages the summer before their third year, that's a big problem for NYU students in general. "Normally" (that is, in terms of a "normal" situation that may well never return) professors at elite schools have to hire 1Ls as summer RAs, because if you don't have a real legal job in the summer before your third year, you're in a world of hurt.  Is Hills aware that an NYU 3L without a job might as well be at Cardozo or Brooklyn? Because this person isn't going to get hired at OCI. And people who don't get hired at OCI are, in most cases, going to graduate without jobs. And law students -- even NYU law students -- who graduate without jobs these days are basically screwed, to use a term of art.

But Hills prefers to hire a 2L rather than a 1L, because all things being equal a 2L is going to make a better RA than a 1L, and he doesn't have to "settle" for a 1L -- just like the employer advertising for an entry-level legal job no longer has to settle for people who don't have significant experience.  That's great for employers but a total disaster for law students, even NYU students, nearly 10% of whom were hired by NYU after they graduated last year at this time.

(3) Hills' pique over the failure of his student to apologize to him in a "professional" manner shows how little he understands -- or more accurately is willing to let himself understand -- about the enormous hierarchical gap between himself and someone he was going to pay barista-level wages (minus benefits) to help him with his research. When I read the email the student sent him (which I'm not going to reproduce since it shouldn't have been published in the first place) it was obvious that the student who wrote it had agonized about how to reveal her decision to a person who she has every reason to believe could do serious damage to her career prospects if he were so inclined.  Hills wanted -- or thought he wanted -- an exchange between putative social equals, but everything about law school is designed to make such a conversation impossible.

(4) Hills' complaint about grading exams is also revelatory.  Law professors despise grading exams because it's one of the very few times when we actually have to perform what most people, and especially most lawyers, think of as a job: that is, an unpleasant set of tasks that must be performed in return for money. When I first started this little project I pointed out that a lot of legal academics don't do much work, even liberally construed.  This is true: being a law professor doesn't really require more than 20 hours a week (this is a generous estimate) of work, or what is called work.  People teach three to six hours per week, write "law review articles" (the latter activity is about as difficult as falling off a turnip truck for anybody with an ounce of quasi-academic talent), and do a little bureaucratic identity maintenance (committees, faculty meetings, collegial workshops).

Of course places like NYU self-select for people who in fact do "work hard" -- but here's the thing:  It's not really work if you don't really have to do it.  When I got a lot of criticism from law professors for pointing out that a lot of them don't actually do much of anything, I got a nice email from a former professor of mine, a brilliant and accomplished scholar and a terrific teacher, who said this:

I think the idea of calling what I do a job, or work, is a misnomer. First of all because I love it. I am doing exactly what I would be doing if I were independently wealthy, except for grading papers and faculty meetings.
Exactly.  And this gets to the heart of what's most obnoxious about Hills' reaction. Hills gets paid $300,000 per year (I'm estimating) to do exactly what he wants to do 96.3% of the time.  His students will be lucky -- and they will be, in comparison to most law students, extremely lucky indeed -- to get paid half as much to do work that will fill them with boredom and dread 96.3% of the time.  An increasingly large minority of them will end up much worse off than that: they'll end up in low-paying soul-crushing jobs while carrying enormous loads of non-dischargeable debt.

This is not a sustainable situation, either in economic or ethical or political terms.  We cannot roll in such extraordinary privilege, treating those who subsidize our charmed lives with contemptuous insouciance ("what is it with kids today!") without taking account that one day a different kind of bill may be presented to the American elite and its hangers-on for what we took and how we took it.

Here's a passage from Orwell I've quoted before, which is worth recalling:

The one thing that everyone who has read A Tale of Two Cities remembers is the Reign of Terror. The whole book is dominated by the guillotine — tumbrils thundering to and fro, bloody knives, heads bouncing into the basket, and sinister old women knitting as they watch. Actually these scenes only occupy a few chapters, but they are written with terrible intensity, and the rest of the book is rather slow going. But A Tale of Two Cities is not a companion volume to The Scarlet Pimpernel. Dickens sees clearly enough that the French Revolution was bound to happen and that many of the people who were executed deserved what they got. If, he says, you behave as the French aristocracy had behaved, vengeance will follow. He repeats this over and over again. We are constantly being reminded that while ‘my lord’ is lolling in bed, with four liveried footmen serving his chocolate and the peasants starving outside, somewhere in the forest a tree is growing which will presently be sawn into planks for the platform of the guillotine, etc., etc., etc. The inevitability of the Terror, given its causes, is insisted upon in the clearest terms:
It was too much the way... to talk of this terrible Revolution as if it were the only harvest ever known under the skies that had not been sown — as if nothing had ever been done, or omitted to be done, that had led to it — as if observers of the wretched millions in France, and of the misused and perverted resources that should have made them prosperous, had not seen it inevitably coming, years before, and had not in plain terms recorded what they saw.
And again:
All the devouring and insatiate monsters imagined since imagination could record itself, are fused in the one realization, Guillotine. And yet there is not in France, with its rich variety of soil and climate, a blade, a leaf, a root, a spring, a peppercorn, which will grow to maturity under conditions more certain than those that have produced this horror. Crush humanity out of shape once more, under similar hammers, and it will twist itself into the same tortured forms.
In other words, the French aristocracy had dug their own graves.