Tell or don't sell

 Long time blog contributor Avor writes:

LawProf: I've asked these questions before, but I will ask them again.

1) I've labeled the "transparency issue" as largely a "red herring" in the past, and you concluded your post today, "...to a lesser extent, poor information regarding the actual relationship between the costs and benefits of acquiring a law degree."

While we both are only predicting, I think you are quite wrong in your follow-up to the above sentence that you think increasing the information (i.e. more transparency) "will lead to a massive disruption in the current economic structure of legal education in America."

Once the information is out there, there will still be more than enough applicants to fill all of the law school seats in existence, AND while the price continues to increase (although maybe not as fast as it has).

THEN what will you argue needs changing? I'd guess you'd go to the easy access to loans and the fact that they are non-dischargeable. If that is so, and you admit in your post that THAT is the more significant issue, then why do you not spend your time and effort lobbying for change on that front?

Again...transparency is a diversion that will not change anything.

Also, as the school year marches on, I ask you this again: How many students have you counseled to drop out so far? I figure the answer is zero, but do you expect to counsel any of your students to drop out after they receive their grades, if they have done poorly?

I'm not saying that you give unsolicited advice, but I'm assuming that if there are students "on the fence" that they may come to you for "honest advice." Will you give it? If so, why haven't you given it in the past, as you've claimed that you "saw the light" some time ago.

Typing along on the internet is one thing, actually doing something in the real world is another. I expect to see higher drop-out numbers on the ABA report for your law school when it comes out...even if it's only a couple. If not, this is all a lot of hot air.

 I assume Avor is a law professor. I think his (?) questions are good ones so I'm going to answer them in a separate post.

First, as he says, "we are only predicting."  Because of its traditional obsession with appellate court opinions, legal academia encourages the bad habit of treating data-and-method-free speculation as a form of useful social analysis, so it bears emphasizing that we simply don't know what effect really good employment and salary data would have on prospective law school applicants.  Avor doesn't speculate, if I understand him, that greater transparency would have no effect, but rather that it would have little practical economic effect, because even with good data every American law school now in existence would still be able to fill every seat, although he concedes that transparency might produce a slowdown in the rate at which tuition is increasing.

It's implicit in this argument, however, that those seats could well be filled by a significantly different mix of people than they would otherwise be.  The argument, I think, is that while transparency would deter some potential law students, their places would be filled by enough willing replacements as to make little or no difference, at least from the short-term financial perspective of law schools. Now, who would those others be? It seems likely they will have two characteristics: they will have weaker formal qualifications, on average, than the students being admitted now, and they will be more risk-seeking.  Both of these characteristics have practical and moral relevance, and so, even if we admit for the purposes of argument that greater transparency would have no immediate effect on the financial structure of legal education, it would still likely have other, non-trivial effects.

Following this line of speculation, what if really good transparency results in no change in the immediate bottom line for law schools, but does produce a mix of graduates who are less equipped to compete for jobs (this assumes entrance qualifications have some relevance to the ability to succeed as an attorney) and are more reckless in their willingness to gamble with their futures? Surely that outcome would have implications for how law schools ought to operate.  For one thing it would raise questions about paternalistic responsibility even more sharply than the current system raises them: Suppose it turns out that the "only" effect good transparency has is that it leaves law graduates even worse off than they are now. Doesn't this have implications for what we do?

Indeed, from the all too relevant perspective of being potential defendants in law suits, if Avor's speculation is correct then greater transparency is something law schools ought to be pursuing, since it would produce an almost cost-free (to law schools) reduction in potential liability. His theory of the case, essentially, is that even though schools have engaged in materially misleading behavior, that behavior was unnecessary, since if schools hadn't been materially misleading they would have ended up extracting the same amount of money from law students, although it would have been a different group of students (more reckless, less qualified ones).  If this is right, then the prudent course for unscrupulous institutions is clear: disclose, disclose, disclose, and then rip people off who are especially prone to "cognitive errors in regard to self-assessment" as the psychologists and behavioral economists say (but now with full legal impunity).

But beyond all this, I'm of the old-fashioned opinion that it's wrong to lie in the pursuit of your perceived self-interest, even if doing so didn't actually advance your interests after all.  Let's take Avor's view in its most extreme form, and assume that when he says "transparency is a diversion that will not change anything" he means this quite literally. Even if that were the case, it would still change something important if we stopped engaging in materially misleading behavior: that behavior, which is morally indefensible even if it turns out to have made no practical difference. Lying out of what turns out to be a mistaken calculation of one's self-interest is just as wrong as doing so out of a correct calculation of self-interest. (At this point I should emphasize that the extent to which law schools have engaged in material misrepresentation appears to have varied quite a bit. Some schools have made efforts to do better than the industry standard. That said, the biggest problem in all this is structural: the industry standard for disclosure has produced very significant material misrepresentation, and continues to do so).

Indeed, this latter point is why my initial focus in this project has been on transparency.  Whether or not transparency will make any short-term practical difference to the economic structure of legal education (and it's worth repeating that we simply don't know the extent to which it will), we are morally obligated to, at the very minimum, not engage in material misrepresentation to our prospective students. This is a point on which there seems to be unanimous agreement among legal academics, so it was a natural place to begin, especially given that the material misrepresentation is very much still ongoing.

Which brings me to Avor's other question, about counseling present and prospective students.  I have in fact had to deal with this question on a practical level, as this year two students have sought me out to get my view regarding whether they ought to stay in law school.  In each case, I gave them my candid advice, based on what they told me regarding their present position, while of course emphasizing the limitations of my perspective, which are considerable, and my knowledge of them, which was also quite limited.  One dropped out and one didn't.  (I've also given my views to a number of prospective students who've solicited them).

This brings me to the title of this post, which I'm told is a catch phrase from securities law, i.e., an insider can't legally trade on what was inside information without first disclosing the information in the legally required way. I believe that, if you're a legal academic, the current circumstances require you to educate yourself about the actual situation of (especially) recent graduates of your law school, to the extent that you don't know the answer to such questions as "how many of our recent graduates have real law jobs, and what do they pay?"  This information is known (more or less) to you career services office.  If you're a typical law professor you don't have it. But you need it, especially if students are going to ask you whether they should stay in school.

(More ambitious faculty can go on to explore other important questions such as,"how many of our recent graduates that have non-law jobs had value added by their legal education, and how much value was added?" Example: Graduate gets a job with a Big Four accounting firm that doesn't require a law degree. Could the graduate have gotten this job without the degree? How much does the job pay? If the degree helped the graduate get the job how much would the job the graduate would have gotten without the degree have paid?).

In other words, you as an individual legal academic can actually do something right now, which is to find out a lot more than you know at present (I'm generalizing on the basis of my own experience of course: 18 months ago I had no idea what the answers to these questions were in regard to graduates of my own institution) about the actual life situation of your graduates.  If you do this, then you will be in a position to disclose what should be disclosed to people who ask you to disclose it.  And I suspect that, in the near future, both individual legal academics and law schools as institutions are going to be asked -- or compelled -- to do a lot more disclosing.  Getting a head start on that process is a good idea.