Caveat emptor and law school employment numbers

I take for my text this morning Luke 17:2:

It were better for him that a millstone were hanged about his neck, and he cast into the sea, than that he should offend one of these little ones.

This is a warning about the uniquely wicked character the already grievous sin of betrayal of trust takes on when it involves taking advantage of the innocent and naive. This moral judgment is reflected by the criminal law, in statutes that provide increased punishment for those who abuse their positions of trust or authority to harm especially vulnerable victims, such as children or the elderly.

Several readers of this blog, including a couple of legal academics, have emailed me to argue that I haven't put enough emphasis on how the legal academic establishment's continued willingness to advertise essentially phony placement numbers ought to be considered a genuine public scandal.  And on reflection I believe I have become prone to a  form of mistaken belief that anyone who becomes knowledgeable about a particular subject always risks falling into. That belief is that the general level of knowledge regarding the subject in question is much higher than it actually is.

In brief, it's easy to fall into the mistake of thinking that because one has become intimately familiar with how deceptive law school placement stats are, and because there has now been some mainstream media coverage of this issue, and because anyone who googles "law school employment numbers" will find those stories, along with a bunch of furious scam blogs addressing this issue in the bluntest possible terms, it follows that prospective law students are not likely to be fooled by those numbers. It's merely another step from that assumption to the belief that people who are reckless enough to borrow six figures of non-dischargeable debt to go law school, and especially a non-elite law school, in some sense "deserve" the fate that most probably awaits them.

But for several reasons these beliefs and assumptions are unrealistic.  First, I think it's difficult to overstate the extent to which law schools abuse their cultural privilege when they mislead prospective students about the actual job numbers.  As incredible as it may seem to those of us who see the sausage being made every day, it appears your average 20-year-old who is considering taking the LSAT in the next year or so actually expects law schools not to lie to him or her about this all-important issue.  This expectation is a product of among other things the great lengths to which law schools go to present themselves as bastions of disinterested rectitude and servants of the public good.

Consider the following real-life example.  Last spring, the dean of a certain law school authorized the school's public relations person (that law schools now employ PR people ought to give all those naive 20-year-olds a helpful hint all by itself) to distribute a press release, which as a consequence of the economic necessities that govern contemporary journalism was then transformed into a "news story" by the "reporter" who attached her byline to it before reprinting it. This story claimed that the nine-month employment rate for the school's graduates was nearly 90%.   Now this claim wasn't true even if one employed the statistical chicanery (counting all jobs as legal jobs etc.) that law schools use to generate their phony numbers. But leave that aside.  If a prospective law student read that "nearly nine out of ten graduates were employed within nine months, according to the law school," what would be the reasonable inference for that person to make?

I submit the answer is that this person would assume nearly nine out of ten graduates had gotten real legal jobs (permanent full-time employment requiring a law degree).  Would it occur to the average 20-year-old that "employed" meant in many cases "employed at Starbucks or Home Depot?"  Unless the average 20-year-old is someone who assumes that institutions with the cultural prestige of law schools ought to be treated as being as reliable as unsolicited emails from Nigerian former oil ministers looking to transfer millions of dollars into their correspondents' bank accounts, the answer would seem to be "of course not."  And in fact at the time the law school's administration caused these statements to appear in the media, it was well aware that less than half of the previous year's graduating class had real legal jobs, even defined generously.

In other words, the law school's representations -- which we should note were completely gratuitous claims that didn't even have the benefit of the standard excuse of "this is how the ABA/NALP/USNWR reports the information it gathers from us" -- were fraudulent. Now I am quite certain that the law school's dean would have been shocked to the very core of his being if anyone had told him to his face "You are committing a fraud on the public.  You are inducing relatively vulnerable and naive persons to give you very large amounts of money under false pretenses."  You see, that simply could not be the case, because the dean was a man of enormous personal integrity, as all his many friends and admirers would be happy to inform you.  The statement "you are committing a serious fraud on vulnerable people" would have struck him, I'm quite sure, as being equivalent to the statement "you are a brain in a vat and the external world is an illusion." That is, he would have understood the statement as a purely theoretical possibility, which had no possible relevance to the actual state of affairs in the real world: the world in which this man of impeccable personal rectitude was being paid nearly $400,000 per year to perform an undeniably valuable public service.

The nasty old common law doctrine of caveat emptor ("let the buyer beware") held that sellers were under no obligation to disclose any facts about the things they were selling to prospective buyers.  But even that doctrine, which has since been rejected by all kinds of consumer protection laws, did not allow sellers to affirmatively misrepresent or fraudulently conceal material facts about the things they were selling. You could omit to inform a buyer that the roof of your house leaked, but you could not lie to him if he asked you about it, let alone were you allowed to claim to prospective buyers before they even asked about it that your house had a water-proof roof.

To anyone who has taken the time to investigate the subject, it's obvious that the standard practices of law schools regarding their employment numbers fail to leap even this low bar.  To any law professor who happens to be reading this, let me pose a question: Have you done anything at all to signal to your school's administration, or even to your colleagues, that you find this situation unacceptable? And if you haven't the explanation for why not had better not be, "prospective law students should know better." Why should they know better? Because we live in the fantasy world where Econ 101 is taken as a literal description of reality, and everyone is dutifully gathering information about the "arm's length" transactions they're engaging in, on the road to the rational maximization of their utility?  In the end that's nothing but blaming the victim.