Morality plays and structural criticism

A 3L said something to me yesterday that I thought was quite perceptive: One of the biggest problems with the current situation is that law schools attract generally risk-averse people who are unknowingly engaging in highly risk-seeking behavior.  People go to law school because they think they're investing a lot of money to insure themselves against under- and unemployment, when in fact a huge percentage of the time they're not buying insurance so much as a lottery ticket.

What percentage of the time is still quite obscure, because we don't have good stats.  Although the Law School Transparency people are doing fantastic work with the data available to them, that data is quite bad.  We don't know the answer within a tolerable degree of accuracy to such basic questions as "what percentage of graduates of ABA-accredited law schools, and of particular schools, have full-time salaried (aka. real) jobs that require a law degree (i.e., law jobs) nine months after graduation, and what do these jobs pay?"  We have even less information about people further down the line, which is actually even more crucial.

For example, if you're considering going to NYU for full boat (this is going to cost you around $250K in tuition and living expenses), wouldn't you like to know what NYU's class of 2006 is doing right now?  How many of the people who got those fabulous $160K jobs with the signing bonuses are still in them?  Nobody knows.  What's the median salary of an NYU grad from the class of 1996, that is, 15 years out? Again, nobody knows.  (An extremely unscientific survey from Forbes, which relies on unsolicited self-reporting by people in private practice, can be found here).  Given what 250K in non-dischargeable debt represents in terms of lifetime risk, these questions are of more than purely academic interest, and it's remarkable that prospective law students continue to fly almost completely blind in regard to them (I realize I'm addressing risk at the least risky spot in the law school hierarchy. The point is that for all we know an NYU law degree might be a bad investment for what would be considered by the powers that be a shockingly high percentage of NYU grads).

Yesterday I was pleased to see Deborah Merritt of the Ohio State University Law School post an extensive and thoughtful comment about the Law School Transparency Petition, which she has signed, and which she is encouraging other law faculty to sign.  I'd like to respond to a couple of her observations.  I of course agree strongly with her that there are good reasons, beyond allowing prospective law students to make good choices, for improving law school transparency. If we don't know what our students are actually doing, especially several years after graduation as opposed to nine months afterwards, how can we make what goes on in law school relevant to our graduates' careers? This has been an under-emphasized point in the LST movement, which has the potential to provide a basis for reforming legal education in several different ways.

I have to disagree with Prof. Merritt's assertion that only a few schools are "cooking" their employment numbers.  In a narrow sense this assertion is probably true (it's unlikely in my opinion that more than a few schools are actually breaking the rules of the game by affirmatively lying about the numbers they report to NALP and USNWR).  But the problem, in my view, is that the game itself cooks the numbers.  A school can report perfectly "accurate" numbers under the current reporting regime, and still give a wildly misleading impression of how many of its graduates are employed in real legal jobs, and what those jobs pay.  That's a structural problem, and it's related to some of Prof. Merritt's observations about tone.

One of the things that's clearly upset a lot of legal academics about this site is that a number of things I've written could be interpreted as launching attacks on the moral integrity of law faculty and administrators as individuals. Now it's not as if questions of individual moral responsibility are irrelevant to the present situation -- they absolutely are relevant, and each person inside the present structure has to decide for his or herself how to answer those questions.  But the notion that the problem is, that as some commenters have asserted, law school administrators are "sociopaths and criminals" is in my view wrongheaded.  That kind of criticism assumes that the scandalous state of the contemporary American law school is a product of bad people being in positions of power. This in turn would seem to entail that the problem could be solved if good people were in those positions instead. It will be seen that this kind of criticism is a mirror image of the defensive reaction of some law faculty -- "we're good people, so how could we be doing the bad things you're attributing to us?" etc.

But the problem isn't the law school faculty and administrators are bad people.  I doubt the overall moral character of people who go into legal education in the first instance has anything at all to do with the present situation. If, for example, law school deans lie a lot more than the average person, that's not because liars become law school deans but because being a law school dean turns you into a liar.  The problem, in other words, is structural.  Complaints about the moral character of law school administrators are like complaints about the moral character of politicians. The problem is the nature of politics, not the nature of politicians.

All of which is to say it would help if people wouldn't take structural criticisms quite so personally.  Hate the game, not the player, as I'm given to understand the kids say.  And changing the game isn't primarily about changing the players -- it's about recognizing that the game, as it's currently structured, almost inevitably puts us all in morally compromising positions.  Again, what we choose to do about that at the individual level is all about individual moral responsibility.  But the fact that the game itself has become rotten isn't any particular person's fault or responsibility.  And that fact in turn is one of the main reasons why it's so difficult to change the game, or indeed to get people within it to even recognize what it has now become.