Monday, December 31, 2012

Law School Transparency files complaint with ABA regarding Rutgers-Camden

If you need a good laugh, I strongly recommend spending a few minutes perusing the official complaint LST has filed with the ABA regarding various shenanigans at Rutgers-Camden.

This story was covered extensively by ITLSS earlier this year, and it's nice to see that people who have a higher tolerance for official bureaucratic processes than I do are going to force the ABA Section of Legal Education to at least engage in some throat-clearing and wrist-slapping,  before it gets back to accrediting the latest batch of new law schools.

Anyway, it's safe to say that if the Members of the Academy were inclined to award Scammies, Rutgers-Camden would take home more 2012 statuary than The Godfather, Parts I and II combined.

Sunday, December 30, 2012

Tried and true

Why do smart people stick to outmoded ideas? Why do creative scientists or business people lose their ingenuity when it comes to their own business models? Pondering these questions, a reader pointed me to this classic essay in the National Geographic Adventure Blog.

In the essay, best-selling author Laurence Gonzales discusses epic failures. The Great Atlantic & Pacific Tea Company (A&P), for example, grew from an 1850s Manhattan storefront to the world's largest retailer. In the United States, it dominated retail food sales for sixty years, from 1915 through 1975. If you're a boomer, there's a good chance that your mother dragged you to A&P for the weekly shopping.

But no more. A&P continues to operate a modest number of stores in the Northeast, but only after years of decline, bankruptcy, and restructuring. Stores continue to close, and the company's future is uncertain. What happened to A&P?

According to Gonzales, the company was too cloistered to keep up with changing times. A&P developed an unbeatable marketing strategy to serve customers during two world wars and a depression. But the 1950's brought new economic conditions and changed customer demand. Why couldn't A&P recognize the changes and adapt? The company's post-WWII leader, Ralph Burger, lived by the motto "You can't argue with a hundred years of success." A&P's executives were so sure of their own strategy that they ignored the company's own marketing tests.

Unfortunately, what worked for the first hundred years didn't pan out for the next fifty. Other organizations--Kroger, Wal-Mart, Amazon--stole away A&P's customer base. In retrospect, it seems obvious that the 1950's and 2000's were different economic eras than the 1870's or 1930's. Why couldn't savvy business professionals see the obvious?

A key reason, Gonzales suggests, was "groupness." A&P's executives spoke mostly to one another. They bonded over the company's longstanding success and reinforced their pride in proven methods. Group identity naturally produces hostility to those outside the group. A&P's leaders identified innovative thinkers as outsiders and treated them with disdain. As their leader frequently said, you couldn't argue with the company's century-long success.

Smart, talented, and conscientious people are particularly prone to groupness. That's because, according to Gonzales: "If a group invests a lot of effort in a goal and succeeds, its boundaries become stronger, and it tends to become even more hostile to outside influences. This may not be overt hostility. It may simply be a subtle and unconscious tendency to reject anything from another group." Smart, talented, and conscientious people are exactly the type to invest a lot of effort in their projects. When they do, and when the projects succeed, they face the danger of unconsciously adopting group resistance to any change.

The dangers deepen the longer a group has shared success. Members of new groups (rebels and innovators) continue communicating with people outside their immediate circle. More established organizations lose their communication with others; they become insular and dysfunctional.

How bad can it get? How about using a doomed vehicle to blast humans into space? Gonzales revisits NASA's infamous failures to correct obvious flaws in its shuttle equipment. What were they thinking? "The astounding effort and success of the Apollo program," Gonzales observes:
had created a culture like that at A&P. NASA defined itself as technically excellent—"the perfect place," as one researcher called it. They put a man on the moon, and it was hard to argue with success. The insidious message was: We know what we’re doing. The corollary to that is: You can’t tell me anything I don’t already know.
The final report on Columbia's crash noted that "[e]xternal criticism and doubt" only "reinforced the will to ‘impose the party line vision on the environment, not to reconsider it.'" NASA's executives, in other words, responded with perfect groupness: Bonded by their past success, they rejected any criticisms with hostility.

Legal education, unfortunately, shows all of the signs of groupness. How many times have you heard a law professor say: "We've been using the case method for more than a century. You can't argue with a hundred years of success!" How often have you heard administrators and faculty revel in the excellence of their schools and programs? How often does your law school, as described internally, sound like the "perfect place"? How often do you hear faculty attacking the "naive" suggestions of practitioners, students, alumni, and other outsiders?

It's important to be proud of our accomplishments; but it's vital to avoid groupness. During the last year, I've seen many welcome signs of law schools waking to the need for serious change. But I've also seen signs of resistance, of increased chest thumping and declarations of excellence. As we welcome the new year, let's embrace the lesson that A&P never learned: After a hundred years, times change.

Update [LP]:  See also.

Friday, December 28, 2012

Looking back

The end of the calendar year is traditionally a time for reflection on what has happened over the course of the last twelve months.  For the law school reform movement, it's been an eventful and on the whole very successful time.

When looking back to the beginnings of this blog, it's striking the extent to which its central propositions -- that the contemporary American law school is based on an unsustainable economic model, which is producing something from seriously unacceptable to genuinely life-wrecking results for far too many law graduates, and that law schools have blinded themselves to this, and hidden it from the outside world -- have had their status transformed from outrageous and irresponsible exaggerations, to something approaching conventional wisdom.

Consider this recent post by Dan Rodriguez, dean of an elite law school, on Prawfsblawg.  Note how it accepts implicitly that the status quo is in some fundamental way unacceptable, and that, tellingly, it references unambiguously radical critiques of legal education in a non-pejorative way.  (When the word "radical" is used in a non-pejorative sense by reformists, the radicals have won a very important semantic battle).  The point here is not to agree or disagree with Rodriguez's specific recommendations, but rather to recognize the extent to which the implicit narrative frame within which those recommendations are put forth is one that takes it for granted that law schools, even elite ones, cannot carry on with business as usual.

How and why has this happened?  The obvious answer is that Dean Rodriguez can read both balance sheets and memos from his admissions staff (I don't know anything about Northwestern's situation in particular, but with law school applications year over year down 40% from where they were just three years ago, the particulars aren't what's important).  In a remarkably short time, culturally speaking, the assertion that law school is a risky and too- often disastrous gamble has gone from a radical warning, spread via Internet samizdat by disaffected scambloggers, to something even (some) law school deans are beginning to accept as a starting point for discussions of reform.

A lot of people have helped make this happen, and I want to mention just a few of them here, in no particular order (apologies in advance for many unjustifiable omissions): 

On the blogs:

Scott Bullock
Loyola 2L
JD Underground
Matt Leichter

In the media:

David Segal
David Lat
Elie Mystal
Bruce MacEwen
Ashby Jones

In legal academia:

Brian Tamanaha
Bill Henderson
Deborah Merritt
Deborah Rhode
Paul Caron

Edit:  The problem with tossing off lists like this is the danger of a truly absurd omission, i.e., I failed to mention Kyle McEntee, Patrick Lynch and Derek Tokaz, aka Law School Transparency, who ought to get some sort of category all to themselves.

Feel free to use the comments to point out similarly egregious oversights.

Although in a sense we are only at the very beginning of the law school reform process, in another sense we are at the end of the beginning -- since the first and most crucial step in any such process is to make the need for serious reform no longer a seriously contestable question.  That step has been taken, and it's something to celebrate.

Wednesday, December 26, 2012

Deans disbarred?

That's a specter that Ben Trachtenberg raises in an important new piece that will appear in the Nebraska Law Review. Trachtenberg reviews the misleading practices that have tarnished legal education during the last few years--from manufactured admissions statistics to deceptive employment data--and asks whether any of this conduct violates the legal profession's Rules of Professional Conduct.

For the fraudulent acts committed by Paul Pless at the University of Illinois and Mark Sargent at Villanova, the answer almost certainly is "yes." Rule 8.4(c) declares that "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." As Trachtenberg acknowledges, disciplinary committees don't punish every deceit under this provision; it's ok to lie to small children about strange men in red suits. But committees and supreme courts do discipline lawyers for dishonesty that "jeopardizes the public's interest in the integrity and trustworthiness of lawyers." When law school deans--or their assistant deans--lie persistently and publicly about the credentials of their students, that seems to fit the disciplinary bill.

Trachtenberg also notes that Rule 8.3(a) requires lawyers to report ethical misconduct by their peers. The particulars vary from state to state, but most states impose this duty when a lawyer "knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." By this point, quite a number of lawyers know about the dishonest acts at Illinois and Villanova. Why hasn't any lawyer reported Pless or Sargent to the disciplinary authorities?

The honest (and cynical) answer is that we don't take these rules seriously. We look the other way, especially when the people who commit unethical acts are people "like us"--they graduated from good schools and followed conventional career tracks. We condemn the sins, but not the sinners. We assume that people like Pless and Sargent succumbed to overwhelming pressure, have learned from their mistakes, and have been "punished enough." Why make a big deal about all this? Can't we just forget about Illinois and Villanova already?

Personally, I think it's embarrassing that no one has filed disciplinary complaints against Pless or Sargent. The new deans at Illinois and Villanova should have done so as soon as the wrongdoing was substantiated. This would have been an effective way to close out these incidents--and to signal to the public that we take integrity seriously in the legal profession.

But let's move on. What about all of those other "lesser" acts of deception that law schools have practiced? Trachtenberg catalogues many of these: the rosy representations of high employment rates, the omissions of material data (such as the number of graduates reporting salaries, the number employed by their own school, or the number working part-time), the clever use of nested statistics, the understated debt, and the failure to explain significant details about scholarship awards. Do any of these acts violate the Rules of Professional Conduct?

Trachtenberg acknowledges, somewhat reluctantly, that courts would hesitate to discipline much of this behavior. Some states require an intent to deceive under 8.4(c); others require at least recklessness. Going forward, it might be possible to prove recklessness or intent if a school persisted in discredited practices. But for past behavior, deans undoubtedly would argue that statistics are confusing, lawyers are bad at math, and they were just doing what other schools do. Do a few bad pie graphs really constitute intentional fraud?

Like Trachtenberg, I doubt that state supreme courts would have the stomach to discipline deans for the statistical shenanigans of the last few years. And many members of the legal academy will protest that cooked books are "a far cry" from slightly warmed statistics.

But I disagree with those protests. Unethical behavior doesn't start with the big acts, it begins with the small ones. Once you abuse another person's trust, even in a small way, you set the stage for larger lies. And the abuses here weren't so small: Law schools made specific representations about salaries, scholarships, and other facts to encourage six-figure investments. The people making the representations were professionals with advanced degrees, who had inside knowledge of the legal industry. Most of the people receiving the representations were college students with relatively little knowledge of either law schools or law practice.

Law school deans and professors aren't as bad at math as they claim; their analytic skills are pretty good. Any faculty workshop or tenure review committee would have torn apart the reporting methods adopted by most law schools in recent years. And it's no accident that all of those methods happened to favor law school interests; these weren't random blunders.

It's time to reclaim our integrity by acknowledging just how wrong all of this was--and by moving even more aggressively to make our representations to prospective students as informative and helpful as possible. If you were a prospective student, what information would you want before investing three years of your life and $100,000 or more in law school? How would you want that information presented? These are the questions we have to answer as responsible professionals.

If you want to hear more about Ben's paper, and you'll be at next week's AALS conference, join us for our "Hot Topics" panel discussion on Saturday, January 5, from 8:30-10:15 a.m. Ben, Jeff StakeScott NorbergJerry Organ, and I will discuss "Transparency Revisited: New Data, New Directions." As Ben's paper suggests, this issue isn't over. Plus, you can stop by to compliment Ben on originating the title of this post: He used it for early drafts of his paper, before accepting a more academic, law-review-appropriate title.

Update: Both the Wall Street Journal (subscription required) and TaxProf have posted on Trachtenberg's piece.

A Christmas present

One of the earliest indications I got that new law grads were having increasing difficulty finding work was when a friend of mine graduated from Michigan in 2008 and couldn't find anything.  He had middle of the class grades and it's fair to say he's somebody who went to law school in significant part because he got into a top school rather than because he had clear idea what he wanted to do, so in that sense his struggles were "his fault."  (Of course I went to exactly the same law school for exactly the same reason, but for some mysterious reason baby boomers got away with this kind of thing much more often).

He spent nearly a year looking for a job, then finally found a three-year staff attorney position with a federal court.  That ended this spring, and he spent several months before then looking unsuccessfully for other legal work.

 Finally just after his job ended was offered a judicial clerkship of some kind on a U.S territory in the middle of the Pacific.  He had gotten married in the interim so he and his wife have been improbably Polynesian for several months now.  This is a one-year gig, so he's kept searching for a "permanent" job (of course for law school reporting purposes both of his post-graduation positions count as full-time long-term jobs requiring a law degree -- i.e., real legal jobs).

Yesterday he got word that he had been accepted into the JAG.  He's thrilled: although the pay is relatively modest, and the job has the major disadvantage that he and his wife are certain to be uprooted and dropped down who knows where several times over the course of the next couple of decades (he'll have to hope for Aviano rather than Ft. Bragg), it's a real legal job with real benefits -- working for the military is in some ways the ultimate government gig.  Plus he remains PSLF-eligible for his six-figure law school debt.

So he will have what figures to be an actual legal career.  The daunting thing is that he had to spend four and a half years finding it -- and this saga features a middle of the class grad from a top ten school, who comes from the kind of upper middle class background that makes this sort of story economically feasible.

The other moral of the story is that this class of 2008 grad is taking what until very recently was thought of as an entry-level job -- i.e., one more job that the members of the class of 2012 (and 2011 and 2010 and 2009 . . .) won't get.

Nevertheless . . .

Sunday, December 23, 2012


Scrooge paid Bob Cratchit a miserly wage. But at least Cratchit earned something. Students and new lawyers report an increasing number of employers who offer only unpaid positions. Since implementing a hiring freeze for paid jobs, the United States Department of Justice has retained more than a hundred unpaid prosecutors. A federal judge recently advertised for an unpaid judicial law clerk who would "morally commit" to at least one year of uncompensated work. And a quick search of sites like reveals dozens of private lawyers seeking unpaid assistance.

Is any of this legal? A new paper by Eric Fink explains that, surprisingly, many of these positions don't violate federal minimum wage laws. The Fair Labor Standards Act exempts "any employee employed in a bona fide . . . professional capacity" from minimum wage requirements. A good lawyer, of course, could argue that many aspects of law practice are routine rather than "professional." But the Department of Labor has forestalled that type of argument by declaring that "any employee who is the holder of a valid license or certificate permitting the practice of law . . . and is actually engaged in the practice thereof" counts as a "professional" exempt from federal minimum wage laws.

Licensed lawyers, in other words, have no federal right to a minimum wage while practicing law. Thankfully, they can still claim minimum wage protection while pouring coffee or selling shirts. And it's possible that some state or local laws offer better protection to professionals. But if a licensed lawyer wants to practice law, federal law offers no minimum-wage guarantees.

For law students, the situation is a little different. They are not yet "professionals" so they can invoke minimum wage protections. But Congress and the Department of Labor have broadly exempted government agencies and nonprofits from the minimum wage laws; those employers can accept law students as "volunteers" rather than employees. Like LawProf, I think this exemption far exceeds the original spirit of the Fair Labor Standards Act, but we'll leave that issue for another day.

Federal law at least seems clear that private, for-profit employers must pay students for their work rather than push them into unpaid positions. But an increasing number of employers are shirking that responsibility by inviting law students to participate in "internships." As Professor Fink explains, the regulatory exception for internships is quite narrow. The Department of Labor has established six criteria for defining an internship; these focus on a training environment, direct benefit to the intern, close supervision, and lack of immediate advantage to the employer. Courts have adopted similar tests, which Fink explores at greater length.

Under any of these tests, many unpaid "internships" at for-profit organizations blatantly violate the law. Here are just a few suspects I found while cruising the internet:

  • Price Benowitz, a four-lawyer firm that bills itself as "mid-sized," is seeking several part-time interns to perform "Superior court filing, processing legal documents, [and] office admin support." The firm throws in "shadowing attorneys in court" for an educational twist. But the bulk of this internship will advantage the employer rather than the intern. It's doubtful that any of the office support work will benefit the student. The same is true for the court filings and document processing: After the first few filings or documents, the intern will be working--not learning. The firm, though, does care about the interns' financial welfare; it notes that the internship "can accompany restaurant or retail job."
  • An unnamed company in Santa Monica, California, wants an unpaid intern who is "organized, computer competent, and great with legal research." Oh, yes, the intern must also "smile often." Those skills clearly will benefit the company. But if the intern already understands how to use a computer, excels at legal research, and knows how to smile, what exactly will the internship teach the student? 
  • The Jonak Law Group, which appears to have a single member, needs "law students with excellent research and writing skills," to work on a Ninth Circuit brief. The position lasts only as long as the appeal, and "telecommuting is fine--you can be based anywhere in the country." With those constraints, it's hard to believe that Jonak  has structured the internship to offer close supervision of interns and an educational environment, rather than immediate advantage to the employer. Note that this is a private law firm engaged in civil litigation; the lawyer does not appear to be handling the case pro bono. So why do the students have to work for free?
Internships like these may, in fact, offer valuable experience: Professionals develop much of their expertise while working. That's not the problem. The problem is that law students pay for three expensive years of law school and also work for free during and after that schooling. Legal employers now demand compensation for the supervision and expertise they offer aspiring lawyers. The interns don't (yet) pay employers cash for the privilege of that workplace experience; instead, they pay through their free labor.

For this, I blame law schools. Consider the situation from the typical employer's perspective. For two decades, law schools have raised tuition ruthlessly--far beyond the rate of inflation. At the same time, schools remain disdainful of clinical training, telling students that this education is "too expensive" to provide and that practical skills are "better learned in the workplace." Law schools, in other words, have signaled employers that (1) law students are willing to pay high prices for a chance to enter the legal profession; (2) teaching people to practice law is labor-intensive and costly; and (3) this type of practical education is so expensive that we can't afford to offer much of it even for $20,000-50,000 per student per year.

Why shouldn't employers conclude that they are providing students a valuable educational experience by inviting them into the workplace? And why shouldn't the employers assume that they, like law schools, are entitled to hefty payments for whatever training they provide?

None of this excuses the employers, either legally or ethically. But I think law school attitudes help explain the explosion of unpaid internships. Practitioners are protecting their bottom line, but they're doing so in a way that has become culturally acceptable. Law schools have suggested that it is appropriate--even admirable--to exact the heaviest possible toll from people who want to be lawyers. If that's acceptable for full-time educators, then why not for the practitioners who are expected to complete the educational track?

It's time to rethink the burden that both educators and employers are laying on the next generation. Marley's ghost will be busy tonight.

Will IBR bail out law schools?

Here's a nice little puzzle for people who put a lot of stock in models that assume people are rational maximizers of utility: Why are law school applications cratering even as the long-term cost of attending law school is (arguably) declining sharply?

The argument for declining cost is very straightforward: as of now, no one has to actually pay back their loans any longer, because of IBR/PAYE, which limits liability for federal loan repayment to 15% or (for most law students going forward) 10% of that portion of your annual AGI that’s more than 150% above the poverty line, for the next 25, 20, or ten years.   Sure you get hit with a tax bill at the end if you’re not in PSLF, but only to the extent you’re solvent at that point, and besides when you’re 23, 25 years from now might as well be in the year 2525.

As IBR/PAYE’s growing booster club within legal academia is starting to point out, this means it makes literally no difference whether you have $100,000 or $250,000 or (just wait a few more years) $500,000 in educational debt: your loan payments will be the same.

That sounds like a pretty sweet deal, and it’s one whose existence was almost completely unknown within legal academia even three years ago, let alone to law school applicants (I doubt one in a thousand law school applicants during, say, the 2009-2010 cycle had even heard of IBR, which was brand new and  unadvertised by the government at that point).

So why did 88,000 people who thought they had to repay their loans apply to law school in 2010, while in 2013 perhaps only 53,000 will apply, when many of them will know it’s all monopoly money anyway?  (How many is unclear, but IBR is a much-discussed topic on forums such as TLS and JDU).

Some possible explanations:

(1)    Not enough potential applicants have heard that law school is becoming a genteel version of the Roman Legion (20 years of service to the Emperor and your debts are wiped out).   This probably plays a role, but I would guess not a particularly big one.  The Obama administration has been pushing IBR hard lately, and Kids These Days are all on Facebook so they hear about stuff like this.

(2)    A variation on (1) is that, although potential applicants may have heard of IBR, law schools are still soft-pedaling it, relatively speaking, for a couple of reasons: First, because it’s politically tricky to advertise that your operation’s budget is based on the assumption that taxpayers will pick up the tab for the large percentage of the loans your graduates take out that won’t be repaid.  That’s the kind of thing you probably want to keep on the down low to the extent possible.  Second, it’s important not to underestimate how much denial still grips legal academia.  Telling law professors that they’re peddling worthless degrees that generate enormous debts that won’t be repaid naturally injures their amour-propre, so they tend not to believe it, statistics be damned.

(3)    Potential applicants are skeptical about whether IBR/PAYE is really going to work as advertised.  Perhaps it will be cut back or eliminated altogether over the years, as the political process para-glides over an ongoing series of fiscal cliffs.

(4)    Some people believe they should pay their debts, even if they’re legally entitled to escape or minimize them, and dislike the idea of getting bailed out as if they were politically well-connected investment banks.

(5)    Special Snowflake Syndrome may be coming back to haunt law schools in a particularly ironic way.  Here’s how: Many potential law students lack the necessary combination of realism and cynicism to go to law school on the basis of the availability of a soft-default/backdoor bankruptcy option, which is what IBR is.  Telling overly optimistic potential law students it’s OK if they rack up debts they can’t possibly pay because Uncle Sam will pick up the bill is tantamount to telling them they’re not so special after all.  And they don’t want to hear that, so you can’t really pitch IBR to them, which means IBR does law schools no good when it comes to a key portion of their customer demographic. Update:  As DJM and other commenters point out, a better way of phrasing this might be, IBR/PAYE sends what is, in terms of the economic interests of law schools, an unfortunate signal to two groups of potential applicants: those who have unrealistic expectations about the likely value of a law degree, and those who have realistic expectations.  In different ways, the program sends very negative messages about law school to each group.

To the extent that any of these explanations other than (1) are valid, IBR/PAYE isn’t going to end up saving nearly as much legal academic bacon as many an increasingly panicky administrator now imagines it will. 

Friday, December 21, 2012

A good question and a sign of things to come

Professor Campos,

I write not necessarily expecting a response, having read both your ebook and a daily reading of ILSS, and have been thoroughly convinced that law school would be financially ruinous to me. I graduated from [highly-ranked university], with good grades and a decent LSAT, but the only option was instate sticker price at [top 30 school] which after consideration would have been nearly a $90,000 mistake that I am glad I did not make. Yet, I still regularly see old undergraduate colleagues boasting of their accomplishments at their third tier law schools which I view with a mix of schadenfreude and pity. 

The looming question that I often get stuck with, is what else should these individuals be doing? This is something I have not been able to answer for myself. I have a degree in political science and history, both with a focus on the American legal system. Had I known the realities of law school in 2006, when I entered college, I may very well have studied something different. But pressures of a middle class family made me believe the law was a career I would be well suited in. I still feel that way: my skill set is completely built around writing, reading, and research within legal sources. So to all those out there who naively thought law school was the next natural transition after receiving a liberal arts degree focused on legal studies, what should we do? Even those of us fortunate enough to be employed are not utilizing our skill set, and perhaps that's more an indictment of our economy, but I am left wondering.

It's disheartening to have parents, relatives, and professors place expectations on you, and to honestly believe one would be a good lawyer, but then to refuse to meet those expectations because I believe earnestly that the economics don't work. I am still unsure of how to address those expectations of family and old professors.

Though, to end on a better note, at least the professors that once pushed me into a legal education are now finally starting to understand. My constitutional history professor has expressed to me that she is no longer recommending law school to any of her current undergraduates and is happy to explain the economics of it to them.

For many, though, I fear its too late.

Meanwhile the good folks at LSAC are launching a new initiative in response to plunging LSAT administrations and law school applications:

From Community College to Law School

A new LSAC diversity initiative aims to create opportunities for interaction between law school representatives and community college faculty and staff. The goal is to raise awarenessabout law school preparation and legal career opportunities for two-year college students from racial and ethnic groups underrepresented in the legal profession. Community college faculty and transitional counselors can take advantage of new opportunities to learn about the paths to law school, law career opportunities, and the benefits of and Months.

The initiative kicked off this fall when community college faculty and staff attended seminars in Chicago and San Francisco as part of a collaboration between LSAC’s Diversity Initiatives staff and Street Law, Inc. Street Law is dedicated to teaching about law, democracy, and human rights; the seminars helped Street Law participants learn about the ways that can help students become successful law school applicants.
 Additional seminars are being planned to help community college students discover careers in law.

Thursday, December 20, 2012

HuffPost live discussion: Does law school have a future?

I'm going to be discussing that question with some other people today between 1 and 1:30 eastern time here.

Update: Other participants include Brian Tamanaha, Elie Mystal, Luke Bierman, and a recent law graduate who is not employed as a lawyer.

Wednesday, December 19, 2012

Tournament guild

DCM and I have posted our contribution to the many pieces reviewing Brian Tamanaha's book, Failing Law Schools. We make two points that may interest readers here.

First, we suggest that many of the problems that plague law schools and the legal profession stem from the profession's guild status. At first, this seems counter-intuitive: Doesn't a guild benefit its members? In particular, doesn't it limit entry? Almost everyone agrees that we have too many lawyers. How could a guild create a glut?

The answer is that law is a "tournament guild" rather than a classic "limited entry" one. The latter type of guild operates by restricting initial entry: The American Medical Association functions in this conventional manner. Some medieval guilds worked the same way, simply specifying the number of producers in each region.

But even in the middle ages, many guild structures were more complicated; they operated as tournaments. In a tournament guild, new entrants first pay high fees simply to train for the guild. The "training" may not teach much; newcomers may simply watch others work. But the training fee is essential to purchase a chance to enter the guild. The new entrant then invests significant time learning the trade as an apprentice, often while providing valuable work to the master. To move to the next level (journeyman), the apprentice may have to produce a signature piece of work, demonstrate specified skills, or prevail in a formal or informal competition. Surmounting these hurdles may require investments of money as well as time, because the would-be journeyman may have to purchase materials or equipment to complete the required task. Apprentices in a tournament guild do not inevitably become journeymen. Some fall to the side as they fail to muster the required time or money for advancement; others lose competitions to more skilled, luckier, or better-connected foes.

In the tournament guild, a similar process unfolds as journeymen attempt to become masters. The journeyman may have to complete a set number of years, produce a particular product, or simply please the established masters to join the command circle. A tournament guild doesn't promise every journeyman--much less every apprentice--a master's berth. New entrants are willing to devote time and money simply to compete for the chance of becoming a master. Some of those who fail will find satisfaction as life-long journeymen; others will turn to other things. The guild masters, meanwhile, reap the guild's economic rents through three processes: (1) the higher prices they can charge for their own "master" products; (2) the entry fees they charge new entrants; and (3) the profit they derive from leveraging the work of apprentices and journeymen.

If this sounds familiar, it should: The American legal profession has long operated as a tournament guild. This is why it costs so much to go to law school; the guild can extract fees from eager entrants willing to pay simply for the chance to become masters. This is why we have endless competitions in law school and law practice: In what other system would it make sense to distinguish the top 10% after only a third of basic training, with that designation having long-term career implications? And the tournament system is why so many lawyers have always left practice after 5 years, 10 years, 15 years, 20 years...That's the way the guild operates.

Is there a powerful committee somewhere, controlling this system? To some extent, yes: The ABA, AALS, state supreme courts, and state bar associations set rules that keep this system operating. But if you take a sociologist's perspective on this, you'll know that social structures operate through a large number of interlocking systems. No one has to sit down each year and decide, "hey, this guild system is working great for us--let's keep things just as they are for another year." As long as the system benefits its most powerful members, the pieces are likely to stay in place.

That brings me to the second point that DCM and I make: The best way to address the problems in legal education and law practice is to end the guild. Competition from outside is already fracturing the guild, and there is no way to stop those forces. Technology, unbundling, offshoring, and the expertise of nonlawyers (compliance officers, HR managers, and others) will continue to chip away at guild profits. Soon there will be enough profit only for the masters themselves--not enough to attract new entrants or keep journey-people working toward master status.

Meanwhile, a tournament guild isn't very kind to its members. People invest in education that won't pay off for them; peers compete at every stage for advancement; and a select few reap much of the profits--not necessarily because they're more talented, skilled, or hard working than other entrants, but because they had some of those attributes and were also lucky or well connected. Nor, of course, does a tournament guild help consumers: It creates all types of market distortions.

This may sound like heresy, coming from inside the guild, but most lawyers and potential lawyers would be better off without our guild restraints. Remember that even our free markets in the United States are heavily regulated. A free-er market for legal education and legal services would create more efficient, cost-effective means of education, workplace advancement, and service delivery without compromising consumer and worker protections.

Here's just one small example of what we mean: Licensed lawyers aren't protected by minimum wage laws because they are professionals. If you're a newly licensed lawyer, eager for work and experience, you get our guild protection rather than general marketplace protections.

You may agree with us or disagree, but we hope you'll be intrigued and continue the discussion on how to fix legal education and the profession.  DJM and DCM

Hurry, quantities are limited

Seton Hall University to Extend Tuition Reduction Initiative to Law School
Seton Hall Law School reduces tuition by more than 50% for eligible students, offering ‘A Private Legal Education at a Public School Price’
Newark, NJ – Seton Hall University has announced that it will extend its widely acclaimed merit-based tuition reduction program to its School of Law, reducing tuition by over 50% for eligible students. The tuition cuts for undergraduate students at Seton Hall University went into effect in 2012 and were recently extended for the 2013-14 academic year. The University will now extend the program further, offering “a private legal education at a public school price” to eligible incoming students at Seton Hall Law School, the only private law school in New Jersey.
Dr. Gabriel Esteban, President of Seton Hall University, said “Similar to the program for undergraduate study, this initiative reflects Seton Hall’s commitment to serving our community. It provides access to a high-quality private education at a cost comparable to a public institution.”
For eligible incoming full-time first-year students, tuition at Seton Hall Law School will be reduced in the 2013-14 academic year to $22,330.
“The legal industry is undergoing substantial change,” said Patrick E. Hobbs, Law School Dean, “and for those who choose law, we have a duty to respond in a meaningful way – making legal education more practice oriented and employment focused as well as more affordable. Our Legal Practice Curriculum, numerous clinics, pro bono programs and comprehensive intern and externship programs address the first concerns; this tuition cut will help to answer the next, making Seton Hall Law School more affordable for those who wish to attend.”
Gisele Joachim, Dean of Enrollment Management, added, “Extending the University’s tuition reduction program to our Law School helps lend clarity and transparency to merit-based financial aid and the process of financing a legal education. We believe it’s critically important to share as much information as possible with our students about the economic drivers of a legal education: tuition, financial aid and employment outcomes. In this instance, the tuition reduction program is quite simple: admitted students who meet our eligibility criteria automatically receive the reduction. And if they meet our criteria for renewal, they will receive that tuition reduction until they graduate. ”
Program specifics include the following:
§  To qualify for this tuition discount, students must have an LSAT score of 158 and higher and an undergraduate GPA of 3.5 or higher;
§  Students who apply to Seton Hall Law and meet the academic criteria will automatically receive this tuition rate reduction;
§  Open to first-time, first-year full-time or part-time students entering Seton Hall Law in Fall 2013;
§  This program is open to students from all states; and
§  Students may also be eligible for additional merit and/or need-based financial aid.
To learn more about how Seton Hall Law makes a private legal education available at a public school price, visit:

A 158 LSAT and a 3.5 GPA are the current 1L class medians, so in other words current applicants who simply hit both of last year's medians automatically receive a 53% discount off sticker tuition ($47,330). Sticker cost of attendance is a startling $69,916 per year. (Fully debt financing a Seton Hall law degree will, assuming annual 3.5% increases in COA, produce a debt load at repayment of $259,299).

I think it's fair to say that at this point prospective law school applicants should treat sticker tuition prices as they might treat the advertised price of a collection of ABBA CDs at a yard sale.

Contributions to the literature

(1) Kyle McEntee, Patrick Lynch, and Derek Tokaz, aka Law School Transparency, have published an article in the Michigan Journal of Law Reform, featuring some interesting reform proposals for dealing with what they quite properly term "the law school disaster."  The authors provide what in my view are a couple of very plausible models of how a law school could operate both much more cheaply and more effectively (assuming the goal of the institution was actually professional training).  And most law professors wouldn't even have to take a pay cut . . . although there would be fewer of us and we would have to teach a little more.

(2) The same journal contains my article The Crisis of the American Law School.

(3) Peter Zuckerman has published "Ending Student Loan Exceptionalism," in the Harvard Law Review (126 Harv. L. Rev. 587).  The piece argues that student loans should be priced in a risk-based manner that would dissuade many people, including many 0Ls, from assuming unmanageable debt loads.  It also calls for bankruptcy law reform to make such debt more easily dischargeable.  (The author tells me the piece was inspired in part by some of the stories published at ITLSS).

(4) A revelatory glimpse into the uses and abuses of SSRN download counts:  Paul Caron at Taxprof publishes regular updates on which tax law professors have garnered the most SSRN downloads.  Ted Seto advertises on his CV that he is
Currently the 6th most SSRN-downloaded tax professor in the US (see TaxProf Blog at
Seto's high ranking is solely a product of the fact that three quarters of his SSRN downloads come from three papers that have nothing to do with tax law (this fact is significant in this context because tax papers are written for a highly specialized audience):  the -- embarrassingly bad -- Journal of Legal Education piece discussed here yesterday, an article on how to game the US News rankings, and an article on tax LLM programs (which, like the JLE piece, puffs his own institution).

This is just one of an almost endless number of examples of the extent to which this business has been over-run by puerile obsessions about hierarchical status, that are both inimical to intellectual values, and prime factors in the increasingly absurd cost structure of legal academia (see (1), (2), and (3) supra)