Tuesday, December 13, 2011

On bullshit and law schools

25 years ago a Princeton philosophy professor named Harry Frankfurt published an interesting essay called "On Bullshit."  The essay distinguished between the liar and the bullshitter as follows: The liar believes that A is the case, but he wants to convince you both that Z is the case, and that he believes Z is the case.  The bullshitter, by contrast, wants to convince you that Z is the case and that he believes Z is the case, but he is indifferent as to whether Z is the case or not:

The fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.
Frankfurt points out that bullshit is endemic to any situation in which people are playing roles in which they are more or less required to fake the possession of authoritative knowledge that they do not in fact possess:

Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about. Thus the production of bullshit is stimulated whenever a person’s obligations or opportunities to speak about some topic are more excessive than his knowledge of the facts that are relevant to that topic. This discrepancy is common in public life, where people are frequently impelled — whether by their own propensities or by the demands of others — to speak extensively about matters of which they are to some degree ignorant. (Emphasis supplied).
The analytical distinction Frankfurt is drawing between lying and bullshitting seems especially germane to legal academic life in its current form.  To put it more bluntly, the contemporary American law school is based on bullshit.  How? Let me count --some of -- the ways:  (In what follows I am going to paint with a broad brush, which is to say I will make generalizations that will be valid to greater and lesser extents in regard to particular individual cases. So before you get to that, please note pointing out general statements aren't accurate in every individual case in order to dismiss the value of making general statements is itself a classic form of rhetorical bullshit).

(1)  Our modal law professor is a man or woman who knows very little about the actual practice of law in any form, given that he or she spent very little time --  increasingly, at more elite schools, literally no time -- practicing law before entering the legal academy.  This fact means that to a significant extent the leaders of our profession (let us call our hypothetical specimen Professor Leader) have to spend much of their time in class bullshitting.    This is a natural consequence of the fact that the rhetorical posture of Prof. Leader requires him to represent to his students that is teaching them how to be lawyers. But Prof. Leader knows nothing about being a lawyer.  Hence, he must bullshit -- he does not lie to his students about how to be a lawyer (doing so would require him to know how to be a lawyer, while attempting to deceive his students regarding the substance of that knowledge); rather, he "talks without knowing what he is talking about."

(2) The materials that still dominate legal academic pedagogy -- appellate court opinions -- contain extremely high levels of bullshit.  What is the adversary system but a system for producing a situation in which putative authority figures, i.e., judges, are given almost unlimited "opportunities to speak extensively about matters of which they are to some degree ignorant?"  I teach a case in my Legislation class -- Smith v. Wade -- in which what the Supreme Court is supposedly determining is whether in 1871 Congress intended to adopt the common law rule regarding the requisite mental state for the recovery of punitive damages in a tort action.  This is a nonsense question on all sorts of levels, including the assumption that there was such a thing as a common law rule on this matter, that Congress knew what it was and intended to apply it to what would become Section 1983, that the Supreme Court can determine the supposed facts of these supposed matters more than a century later, and that doing so is a sensible way to proceed in this case (which involves the question of whether the plaintiff, who as a teenager was gang raped by fellow inmates while held in a juvenile reformatory, should be able to recover the princely sum of five thousand dollars in punitive damages against the state of Missouri).

The majority opinion consists of a bunch of pseudo-historical analysis of dozens of 19th century tort cases, while one dissent consists of an equally bogus critique of the same historical record.  But my favorite part of the case is another dissent, in which Justice O'Connor, points out that both the majority and dissent are a bunch of bullshit:

When a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view, rather than the other, would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate the language of the late 19th century into terms that judges of the late 20th century can understand, see ante at 461 U. S. 39-41, n. 8; 461 U. S. 61-64, nn. 3, 4, and in an area in which the courts of the earlier period frequently used inexact and contradictory language, see ante at 461 U. S. 45-47, n. 12, we cannot safely infer anything about congressional intent from the divided contemporaneous judicial opinions. The battle of the string citations can have no winner. 
OK, so now what?  What sort of "test" shall we deploy in this sort of circumstance? I bet you can guess:

Once it is established that the common law of 1871 provides us with no real guidance on this question, we should turn to the policies underlying § 1983 to determine which rule best accords with those policies. In Fact Concerts, we identified the purposes of § 1983 as preeminently to compensate victims of constitutional violations and to deter further violations. 453 U.S. at 453 U. S. 268. See also Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 590-591 (1978); Carey v. Piphus, supra, at 435 U. S. 254-257, and n. 9. The conceded availability of compensatory damages, particularly when coupled with the availability of attorney's fees under § 1988, completely fulfills the goal of compensation, leaving only deterrence to be served by awards of punitive damages. We must then confront the close question whether a standard permitting an award of unlimited punitive damages on the basis of recklessness will chill public officials in the performance of their duties more than it will deter violations of the Constitution, and whether the availability of punitive damages for reckless violations of the Constitution in addition to attorney's fees will create an incentive to bring an ever-increasing flood of § 1983 claims, threatening the ability of the federal courts to handle those that are meritorious.

Yes, you guessed it, it's time to "balance the interests."  Behold:

Although I cannot concur in JUSTICE REHNQUIST's wholesale condemnation of awards of punitive damages in any context, or with the suggestion that punitive damages should not be available even for intentional or malicious violations of constitutional rights, I do agree with the discussion in 461 U. S. Since awards of compensatory damages and attorney's fees already provide significant deterrence, I am persuaded that the policies counseling against awarding punitive damages for the recklessness of public officials outweigh the desirability of any incremental deterrent effect that such awards may have.
What's missing from this analysis?  In a word, everything.  JUSTICE O'CONNOR (why are the names and honorifics of these people printed in ALLCAPS in the U.S. Reports anyway? To emphasize their superior ontological status? To elicit shock and awe in the interpreters of these texts? It is a deep and abiding mystery) provides us with no facts, or method, or theory, or really anything whatsoever to bolster her apparently completely ungrounded "policy analysis."  But, under the circumstances -- appellate court litigation -- how could she?

Again, let us recall Frankfurt's dictum:  Bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about.  The "Socratic method" consists largely of people pretending to be lawyers analyzing texts written (well not actually written, but at least signed) by lawyers pretending to be [historians, economists, sociologists, semioticians, moral philosophers, fill-in-the-blank].  In other words these are almost ideally synergistic conditions for the production of bullshit masquerading as something else (a redundancy, as bullshit is by definition something pretending to be something it isn't).

(3)  Legal scholarship is produced under pseudo-academic conditions that form a fertile breeding ground for (very heavily footnoted) bullshit.  Consider how legal academic publication almost always takes place.  People who generally possess no formal academic training beyond what they received in law school (that is, none) write "law review articles." In the vast majority of cases, these articles consist of "doctrinal analysis," i.e., treating appellate court opinions (see (2) supra) as texts that deserve to be taken seriously on their own terms.  We are already, in other words, knee-deep in bullshit.

But it gets worse. Who is doing the evaluating of the supposed cogency of this analysis? Law students, that's who.  So people who, incredibly enough, are even more ignorant than law professors about the actual legal system are  charged with undertaking the equivalent of academic peer review for the purposes of legal scholarship.  That contemporary research universities tolerate this charade can best be explained by examining the average law school's balance sheet, which will reveal that a nice chunk of the revenue generated by the school's operations is mulcted by central administrators in an example of what medieval Vikings called "raiding," but contemporary academic bureaucrats refer to as "cross-subsidization."

Now it's true that, at our more exalted law schools, larger and larger percentages of the faculty are people with advanced degrees in fields other than law (a solid third of the tenure-track faculty at top ten schools now hold Ph.Ds in this or that.).  While this may improve the quality and broaden the subject matter of the legal scholarship produced by these faculties, it only exacerbates both the sheer absurdity of constructive or literal (there are now several dozen law professors at top ten schools who don't hold law degrees) non-lawyers supposedly teaching people how to be lawyers, and especially of a publication system in which law students are supposed to be the academic gatekeepers evaluating the latest application of behavioral economics or sociological regression analysis or literary theory to the cases and controversies they study in their law school classes.

(4)  Given all the foregoing, it perhaps shouldn't surprise us that the attitude of legal academia toward the supposed employment and salary data that law schools publish has been a systematic indifference to the continual broadcast of enormous quantities of complete bullshit, in the most precise technical sense of the term.  The employment numbers are, to speak precisely, bullshit, in that nobody (or more exactly nobody in a position to do something about this) really knows the extent to which they're false, because nobody in that position wants to know.  The "96% employed with an average salary of $145,000" claims aren't lies, exactly, because in order to lie one must, somewhat paradoxically, care about the truth.   Those claims aren't lies: they're bullshit, because the people who make those claims don't know what the real numbers are and don't care.  Frankfurt points out that this attitude may ultimately be more dangerous to the pursuit of truth than a simple willingness to lie:

Both in lying and in telling the truth people are guided by their beliefs concerning the way things are. These guide them as they endeavor either to describe the world correctly or to describe it deceitfully. For this reason,telling lies does not tend to unfit a person for telling the truth in the same way that bullshitting tends to. Through excessive indulgence in the latter activity, which involves making assertions without paying attention to anything except what it suits one to say, a person’s normal habit of attending to the ways things are may become attenuated or lost. Someone who lies and someone who tells the truth are playing on opposite sides, so to speak, in the same game. Each responds to the facts as he understands them, although the response of the one is guided by the authority of the truth, while the response of the other defies that authority and refuses to meet its demands. The bullshitter ignores these demands altogether. He does not reject the authority of the truth,as the liar does, and oppose himself to it. He pays no attention to it at all. By virtue of this, bullshit is a greater enemy of the truth than lies are.*

*It's worth noting that the central fact about himself that bullshitter must hide, perhaps even from himself (the latter state would be an example of meta-bullshit) -- that "the truth-values of his statements are of no central interest to him" -- captures the mental state in which, as a practical matter, many attorneys are often required to place themselves. For example many litigators could hardly do their jobs if they were much concerned with "the truth-values of their [legal arguments]."  More generally, how many lawyers and especially judges find that professional necessity requires them to "speak extensively about matters of which they are to some degree ignorant" on a regular basis? These facts raise questions about the requirements and limitations of role morality, and perhaps even more interesting questions about the extent to which such facts affect the prevalence of bullshit in the legal educational system. Of course there's no real intellectual or practical reason why legal academics need replicate the mental states of advocates or judges in themselves, yet the fact remains that the standard model of legal education in America pushes law professors to talk and think like lawyers with imaginary clients and judges deciding imaginary cases.  But those are questions for another day.

110 comments:

  1. What brought that on?

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  2. I seriously fucking love this blog. LawProf, you should start taking donations.

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  3. This?

    http://opinionator.blogs.nytimes.com/2011/12/12/teaching-law/?ref=opinion

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  4. Then why not say that if that is true?

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  5. I made essentially the same "bullshit" point about appellate decisions in my Civil Procedure class 29 years ago and was resoundingly shot down by the professor who insisted we had to "study the text." I guess I didn't know what I was talking about as that former CivPro prof is now president of NYU.

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  6. LawProf is so prolific. Every day there is a new interesting article.

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  7. There is soooooo much sophist bullshit in law school. That's what I hated most about it. In law school you can say anything that you want under the guise that you are "arguing." There is no peer review. There is no filter. All you have is mouths running and hot air escaping, both of which - unlike the truth and science - add very little value to people's lives.

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  8. This is a five star article. It's a little deep but a very insightful commentary about how the advocate role that lawyers must embrace is used by law professors, even though the latter has no need to advocate and rather is in a position to be objective. Again this is kind of a deep critique, but one way to fix law school is to consciously separate the role of advocate from that of objective party and to not use one role when the situation requires the other.

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  9. I love this article.

    "But it gets worse. Who is doing the evaluating of the supposed cogency of this analysis? Law students, that's who. So people who, incredibly enough, are even more ignorant than law professors about the actual legal system are charged with undertaking the equivalent of academic peer review for the purposes of legal scholarship."

    This alone tells you how utterly ridiculous. How completely absurd law school is. Could you imagine a science journal being run completely by PhD students or a medical journal being run completely by medical school students who did not have a single year of experience?

    What's troubling is that the only reason one can think of, for running it this way, is laziness. The law professor who should be running these journals are too lazy to do it, so they hand it off to the students.

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  10. I don 't know that most students on law reviews think it a waste of time. If they did, they would quit. No one has to be on law review.

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  11. This was a great post. However, it sort of indicts the entire legal profession for bullshitting, no?

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  12. @10:43
    Can't speak for everyone in the universe, but everyone I knew on law review did in fact think the articles they were writing were a huge waste of time. This was a group of around 9 people, so clearly it's not universal, but they all did it because they knew it would look good on their resumes (why does it?) and give them an edge on getting a job. Same exact thing with the people on moot court.

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  13. The reference to "Professor Leader" (Leiter) did not go unnoticed, Prof. Campos. Well played!
    If you haven't seen it, check out the summary of Jim Chen's forthcoming article on the dim financial prospects of law grads here:
    http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202535280980&Law_school_a_ticket_to_economic_security_Better_run_the_numbers&slreturn=1

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  14. Brilliant. Academia is chock full of bullshit but Law School really went thermonuclear with it's expectation that students ignore human experience, clear thinking and intuitive morality in defense of our alien and outrageous legal doctrine and system of legal reasoning. Explaining legal reasoning to any lay person evokes looks of disgust or incredulity - a clear sign that our laws are sharply undemocratic.

    Lawprof has shown Chomskyan levels of academic courage with this post.

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  15. @10:55 AM, Excellent article you cited.

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  16. I participated in Law Review, earned my credit for a year, then promptly quit. Worse than corporate punch. Nobody liked it I worked with. They hung on, determined to keep overachieving.

    In 20 years of academic study Law Review ranked as the biggest waste of time. At least coloring at age five does not translate into unfettered and unavoidable misery. Before someone tells me they loved it, do not waste your time. All public servants love their jobs without qualification as well.

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  17. Here's another interesting bit -- Stanley Fish, non lawyer, explains on the NYT web site what law schools need to teach future lawyers:
    http://opinionator.blogs.nytimes.com/2011/12/12/teaching-law/?ref=opinion

    Some of his arguments aren't bad. But it's breathtaking to me that someone who literally has never practiced law a day in his life (and by law can't do so) would pontificate about what lawyers need to know. I'm not trying to turn this into a forum to post links to other articles, but I'm interested in Professor Campos' bounce on this.

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  18. Off the bullshit topic, but:

    LawProf, why is it that out of the hundreds of law schools, each with...what? dozens? of tenured law faculty, haven't more banded with you on seeking reform of LS transparency, loan reform, LS curriculum changes, etc (I mean, OUT...in public, names, schools, etc.)?

    Insulated by tenure, there just HAS to be more than the handful of law professors that think things are rotten and need changing, right?

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  19. The law review system is sophisticated mutual back-scratching. It works for professors, who can place almost any article in some journal somewhere (and don't have to fish around for citations to boot -- the editors take care of that). It works for students because employers value law review experience (whether that is rational or not is irrelevant) and because they get to publish their own pieces. I should also mention that the lack of peer review works for professors because not only they can place their stuff in some journal somewhere, they can avoid peer-reviewing duties to which they would probably be subject at some points under a peer review regime. (Of course they do other forms of reviewing and editing, but I'm willing to bet, with hundreds of law journals out there, introducing peer review would significantly increase profs' workload on the reviewing side as well as the writing side.)

    The law review system is an interesting creature.

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  20. To each his own. I thought being on law review was great. I made a couple of good friends and stayed fairly close to one of the authors I edited.

    The Fish article was very good, I think. He is very frank about where and whom he is teaching and the limits of his experiences.

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  21. "This was a great post. However, it sort of indicts the entire legal profession for bullshitting, no?"

    I would say no. A lawyer's job is to advocate. That's their professional duty and anything less - when representing their client - is malpractice.

    But that doesn't mean law professors should be doing that.

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  22. "If you haven't seen it, check out the summary of Jim Chen's forthcoming article on the dim financial prospects of law grads here:"

    Not to go all racial, but has anyone else noticed that asian legal academics (Chen, Tamanaha) are very active in the discussion of value? Perhaps the conservative asian culture takes less kindly to getting ripped off.

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  23. The Fish article is very frustrating.  I try to remind myself that these people are now on the defensive and that that is a good thing.  Ultimately, it won't matter if law professors continue to believe their own bullshit, only if they can continue to make others believe.

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  24. Why is it frustrating?

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  25. Loved the post. But here's the thing: The critique Campos offers of legal academics and law reviews has been around for decades (as Campos himself has acknowledged). It is only a slight exaggeration to say the the only folks involved to any extent with the legal profession who don't agree with the points made in the post are either legal academics or want to be legal academics. And yet nothing ever changes... every year there are more law schools, more law journals, even fewer law profs with actual practice experience...
    I graduated from law school 20 years ago and we all said the same things then about law school (although we did have less debt and better job prospects). Why is it that a self-governing profession can't fix a training system that the profession's members overwhelmingly agree is badly broken?

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  26. Because not enough people really think it is badly broken.

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  27. I should have said because maybe not enough people really think it is badly broken.

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  28. The comments on the Fish article shit all over him. It's great.

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  29. @11:38 AM:

    Because I don't think the critique is that widely shared. Comments like this on the Fish piece:

    "So, yes, we lawyers need to be good "mechanics" of the given legal system we operate in, but there is without question also the need for us to have some talent or skill as philosophers, historians, sociologists, psychologists, and poets (with good inner and outer voices). No amount of limited formal teaching can give us all that, but heaven bless the colleges, law schools, and their professors for trying."

    indicate that a lot of people buy into the bullshit idea that three years of law school can somehow train you in about five different academic disciplines and teach you how to practice law.

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  30. Let's not forget how much of any profession is bullshit.

    Most people work their jobs for the money, and for really no other reason than that. But, everyone pretends it's for some other reason, they really have a passion for no-fault divorce, or think that TPS reports build a stronger economy.

    But, no one is allowed to say it. Why do we have this massive collective silence on the issue? Why can't someone speak up at their job and say:

    "I know it, you know it, I know you know it, and you know I know you know it, so I'm just going to say it, this job sucks and I'm only here for the money. I do good work, did good work yesterday, and will continue doing good work tomorrow. Nothing has changed, you didn't really learn anything knew, I'm not performing any differently. Just wanted to get that off my chest."

    Without a doubt, you'd be fired on the spot, citing your negative attitude. Everyone else has the same attitude, and everyone knows it. But really, how much better would everyone's attitude be if you could just openly say that the job sucks?

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  31. A common wry observation about scientific journals is that they exist not to be read but written--by the time the article appears, anyone who's really working in the field already know the result.

    The sad truth about law review articles is the they exist not to be read, nor even written, but edited. A couple of dozen titles would be more than enough to publish all the worthwhile academic literature of the law. But law schools want to make it possible for as many students as possible to claim the law review credential. My own law school, one of the smallest in the country, had two law reviews when I was a student--now they have three.

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  32. "A job ain't nothin' but work." - Seymour Stewart

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  33. @11:56
    The comments are much more varied and nuanced than you state. Even many of the critical ones are framed as "Yes,but..."

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  34. "What is the adversary system but a system for producing a situation in which putative authority figures, i.e., judges, are given almost unlimited "opportunities to speak extensively about matters of which they are to some degree ignorant?"

    Perfectly put. I'd also add that it usually results in a 'might makes right' result, but thats another topic.

    When i went to law school I quickly realized absolutely everything was bullshit and that almost nobody knew a thing about the real world and only gave lip service in very structured tones (pro bono work is gods work, blah blah blah) without actually making the world a better place. The whole thing was a very expensive three year game - a pseudo-intellectual's playground at caviar rates.

    Great post law prof.

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  35. It's hillarious to see a guy like Fish write a post about the value of law school only to receive 100 comments from actual attorneys rejecting his argument.

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  36. @12:20: I wrote about that on Con Daily, about how increasing the number of journals boosts student resumes. A potential employer will see "Editor, Journal of Blah and Stuff" and never ask how many total journals the school has, how "special" the appointment is.

    But, I think that's just a side effect. I suspect the bigger driving force is to increase the school's peer assessment. If I'm a law school and I add a Journal of Stuff and Blah, and publish 15 different professors each year, how many of those professors will now rank my school more highly? They may do it out of gratitude, or more cynically, they'll do it to boost their own prestige for having been published there.

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  37. Why is it sad to give students the chance to edit and write a piece?

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  38. Because they don't know what the hell they're talking about? I sure didn't.

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  39. The opportunity isn't the sad part. No one is worse off for having the chance to work on a journal.

    The sad part is that the editorial experience, which isn't really even that much, is the primary utility of law journals.

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  40. I think it depends on the journal. In fact, I am sure it depends on the journal.

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  41. "The sad part is that the editorial experience, which isn't really even that much, is the primary utility of law journals."

    Glorified secretarial school.

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  42. In my experience, students can write very good notes and become quite expert about their subjects. Law students are not children . A smart person in his or her twenties can write a decent scholarly piece, especially with guidance.

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  43. @1:24 - as opposed to the real experts in the field?

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  44. "In my experience, students can write very good notes and become quite expert about their subjects."

    That's completely absurd. Imagine someone saying this about medical students reviewing, and deciding whether to publish, articles on the effectiveness of a new drug. "Hey, that thing that actually didn't cure anything, and that killed a bunch of people slipped by the peer review process because an inexperienced neophyte reviewed the paper."

    There are so many other analogies. For example, imagine if military decisions in war were made not by the general by a team of new recruits!

    Dear Lord.

    Your statement is so dumb. You're basically attacking the entire meritocracy system which is rooted in the idea that you gain respnosibility with experience.

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  45. I was a student in your Legislation class a while back. This article is exactly how I remember most of the lectures, including the discussion on the lunacy of determining congressional intent. Love(d) it. Refreshingly honest.

    As an aside, you've asked for personal stories in the past so here's mine (sorry if not related to the article posted above). When I graduated 6-7 years ago I waited tables for almost a year before I found full-time legal work. I did relatively well in school (top third of the class or so), but I felt like my resume was too heavy on the non-profit, non-traditional type of stuff and too light on the law firm intern experience. I was an idealist who mostly just wanted to work in the public interest, which explained the resume, but I soon realized those jobs were just as difficult to find, if not tougher, than private practice jobs. During that time the school asked about my employment situation for reporting purposes, but I didn't respond because I was embarrassed and didn't want to bring the numbers down, so to speak. After all, I assumed based upon prior year figures that 90+ percent of my classmates were fully employed as lawyers and making great money.

    I was on the verge of giving up and moving back to my home state when I landed a state district court judicial clerkship. (I am not one of those who would've been able to backpack around Europe as an alternative.) It was a HUGE break and this is one area, i.e., the value of non-federal, non-supreme court judicial clerkships, where I couldn't disagree more with you. More than any class or law firm could have, it actually taught me how to be a lawyer because I watched attorneys in court and read their pleadings all day and every day. I interacted with the attorneys on a daily basis and developed professional relationships with some of them. Federal appellate courts carry more prestige, sure, but from a practical standpoint the state trial court is where most attorneys will typically practice. The clerkship also provided me with a nice reference from a judge that certainly helped me find my first "real" job.

    Today, I am at a small firm doing work I believe in for non-corporate, often disadvantaged, clients. I am extremely fortunate in this regard and will never take my position for granted. On the other hand, I owe almost as much on my loans as I originally borrowed, which is A LOT. (I had to defer my loan payments and let the interest pile up for the first couple years after graduation because I couldn't afford to make payments.) I am now making payments, but my salary simply doesn't allow me to catch up, and I can't imagine how I ever will. (I wouldn't take a big firm job unless I had a gun to my head, and even then I'd hesitate.) Frankly, I didn't go to law school to become rich, I went because I hated my previous job and wanted to "make a difference" going forward. I feel like I succeeded with that goal to some modest degree, so I've simply decided to ignore my financial situation and focus on the present. Thankfully the present is pretty good to me, all things considered.

    I understand that the times are worse now, however, so I truly sympathize with the current graduates entering today's market.

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  46. roadkill, thanks for your story (and please ignore any trolls who may question it). This is the perfect example why loan reform is necessary even if transparency was thorough and the economy was humming. Do we really want a world of attorneys who are in this guy/girl's position simply because they do not want to work in Big law? Do we want a world where only the rich who can afford to go to law school can subsequently are also the only ones who can afford to do public interest work?

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  47. Thanks for the story Roadkill I especially appreciate the different perspective on state district clerkships. Shoot me an email sometime . . .

    (Based on a graduation date of 2004/2005, during the years Roadkill went to CU resident tuition -- which out of state people get after the first year -- rose from $9K to $11K per year. Currently it's $31K).

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  48. "rose from $9K to $11K per year. Currently it's $31K)."

    Holy sweet jesus.

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  49. True, LawProf, but according to the school "Colorado Law is Affordable." I guess it just depends on the metric. What did Twain say about statistic and lies again? :)

    http://www.colorado.edu/law/admissions/files/TuitionComparison.pdf

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  50. To paraphrase Obi Wan Kenobe - Colorado Law is affordable, from a certain point of view.

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  51. ^Twain got it from Benjamin Disraeli.

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  52. A Note is supposed to be a narrowly drawn consideration if a discrete problem or issue, preferably one that has not been written about extensively. Yes, a smart person in their twenties can in a year and a half master the subject matter in a narrowly drawn topic. It is done in law and in other fields.

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  53. Who does a year and a half of work on a note?!

    And no, even a year and a half of work won't equal 40 years of work. That's why the latter gets paid a lot of money to work on the topic, where as the note writer gets nothing.

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  54. One last thing. The student likely did no "work" on the topic, because he's still in school (except in the rare case that a student interns in the field on which they wrote their note).

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  55. Spending a year on a topic doesn't make you a master.

    Now, an intelligent student certainly can study the issue and come up with something interesting to say about it, maybe something even worth publishing. But, he hasn't mastered the subject.

    I could spend a year studying Twelfth Night, and probably write something good about it, but without studying the rest of Shakespeare's plays, most of his sonnets, and the writers who were his influences, contemporaries, and those influenced by him, I'm hardly a master of Twelfth Night. If asked to compare Twelfth Night to The Tempest, all I can do is ask who wrote The Tempest, no, I didn't master it.

    Same with law. You can pick out one narrow, tiny subject and study the heck out of it, but unless you know about the field more generally, you're not a master. You can't be a "master" of LLC governance without also knowing about corp governance, PC governance, etc.

    Writing a note is certainly a worthwhile endeavor, and I wouldn't discourage anyone, aside from the fact that it cuts into your drinking time. But, if you're a teetotaler, or can write drunk, go for it. Let's just not pretend it's anything more than it is.

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  56. You do not know what you are talking about, Or what I am talking about.

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  57. It's rich for Campos, who practiced law for one year and is one of the worst teachers at the University of Colorado Law School, to call out other law profs for bullshitting. You would know, wouldn't you?

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  58. @3:40-

    Hello Brian Leiter!

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  59. Since many have wanted to talk about law school depression, I'll talk about myself. I hope this makes others speak up about theirs.

    I hate it here. There's really no sense of community. Though there are some good people, much of the time I have to develop my insight into behavior because I feel like most of the people will stab me in the back if they got the opportunity.

    There are lots of assholes who think they know exactly what is right. I'm the collaborating type, and I'm constantly changing my position on subjects as I learn more or hear more points of views. But that type of attitude is hard to find here. Many students feel they are right, no matter what and will budge slightly.

    And no, I'm not talking about subjects like, "Is murder okay?" But politics, economics, philosophy, history. All the stuff law school is supposed to teach you, right? ;)

    I hate going to class and looking around at the various uncaring classes. I won't lie, I was super ambitious back in college. Then I learned that ambition is okay to a degree. I see so many students passing by in the hallway not greeting a person they know. Students who spend all of their time on work, as if studying 24/7 or working on projects 24/7 will make them succeed even marginally better. I'm not saying hard work is foolhardy, it's necessary! But to a point, and when you start forgetting the humanity in you, well then you're too far gone in my book.

    I hate how many of the friendships are so superficial. I know college only happens once. But you met a variety of people there, assholes, good people, fun people. You could build friendships/relationships with many types of people. And at law school? It's full mostly of a bunch of people who think they're sharks, when in truth they're just guppies.

    I'd rather be at a job right now, earning money, meeting all types of people. I'm so tired of this.

    I hope others speak up now. And on a related note, maybe all of these kids I've met in law school aren't assholes? Maybe they're also depressed?

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  60. sorry, classes in the fifth paragraph is supposed to be "faces."

    I also forgot to mention that I also despise the grading curve. Throughout your entire life, your grades reflect your hard work.

    Law school changes the game, why? Why is there a fricking curve? Why are only a certain number of A's and B's handed out? Yea, my grades aren't the best, I'm not going to lie. But the system seems so arbitrary much of the time. Grades don't necessarily reflect the amount of work put in. How is that justified?

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  61. 4:08: Does your university provide any counseling services? If you're clinically depressed I'm given to understand that this can be addressed successfully in a number of ways. Of course you may just be (understandably) sad and angry about your present situation. Feel free to email me via this site if you would like to talk about this offline.

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  62. 4:08,

    First of all congratulations on being aware as that's the most important step. And please do not feel like you're different in any way. I've linked the study many times, but again 4% of 0Ls are depressed (the same as the general population) while 40% of 3Ls are depressed. There is just something about law school that causes this, which I think is more nefarious than anything else you can say about that disgusting institution.

    IMHO I do not recommend using the law school's counseling services. That's like going to the devil for emotional support. I'm not a therapist but I've heard that exercising can help.

    But remember that statistically speaking it's not you. It's your environment. Things get better after graduation (2 years out "only" 17% of graduates are depressed).

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  63. LawProf, I'm actually a student at CU Law. And while I believe counseling can help (I've spoken to some already), it doesn't change the fact that this environment is not for me.

    Thanks for the exercising recommendation, I knew something was wrong when I didn't want to work out at all and I usually enjoy exercise.

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  64. This blog should be mandatory reading for all law students. Hell, it should be a class. Paul Campos has something worth reading here at least 3-4 times per week. Keep it up LawProf !!!

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  65. @4:08: I can definitely relate to law students lacking a sort of philosophical rigor in their ideas. My undergraduate university had a really good philosophy program. If you could map our your argument with clear, unambiguous premises that proved your conclusion, the argument didn't fly. And, there was no shame in putting out an argument that didn't work. Happened all the time, and you were also free to put out a terrible terrible argument and say "I don't understand what's wrong, other than the horrifying conclusion."

    Then, law school. Shit, what an intellectually depraved environment. Few people were there to learn. Many were there to get in and out with minimal effort, but most were there to win. Whether to get the highest grade in the class, to win an in-class debate, win the attention of a professor, win a spot on law review, or a clerkship, or to win the social game. No sense of community at all.

    3 years in a high stress environment around those sorts of personalities, it's very easy to see how you can end up depressed.

    One good thing you can do is make more use of online communities. It's not the same as a real in-person relationship, but it can make you feel less isolated. Just make sure not too get too wrapped up in the negativity online, try to ignore people or forums that aren't helpful to you.

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  66. 4:08: You can contact me anonymously if you prefer of course. I would like to talk to you about where you are in this process and what to do next. I'm not a therapist by any means but talking these things out can be beneficial as I've learned from my own experience.

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  67. "but according to the school "Colorado Law is Affordable." I guess it just depends on the metric."
    ==================

    Compared to some that charge $40,000 to $50,000 for a TTT or TTTT, Colorado Law is a great deal at $32,000.

    Of course, I am of the opinion that none of the law schools make sense, even YHS, while there are 100+ extra law schools spitting out 20,000 to 25,000 surplus law school grads each year. It makes it impossible for even graduates of elite schools to make money after they wash out of Biglaw. T14 Biglaw washouts then have to go compete in shitlaw against all of those TTT and TTTT law grads, Legalzoom.com and Suzie Orman's $29.95 legal document kit.

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  68. Thank you for your concern Professor. Fortunately, I began to reach out to my family and good friends one week ago and have started feeling MUCH better. You are right that talking it out is extremely helpful.

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  69. The sad part is that if you think you're depressed now just wait until you either meet your vicious co-workers or are unable to pay off your student loans. I felt the same way as you about law school (didn't get clinically depressed, just knew that I had to get through a horrible experience surrounded by horrible people) and quickly found out that it got a million times worse in a firm. The douchebaggery and grew exponentially.

    Oh to be able to erase all these horrible memories a la Eternal Sunshine of the Spotless Mind and somehow magically erase all this debt....I'm happily married so those are the two things I wish for most.

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  70. *The douchebaggery only

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  71. what area do u work in 522?

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  72. I mean 523 I'm using phone to type

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  73. Another depressed lawyer here. I'm a '98 grad with a gold-plated resume (top o' the class, federal appellate clerkship, publications, Biglaw, blah blah blah, why do I feel the need to list all this crap?) who washed out (was pushed out) of Biglaw after having a child. Now I live hand-to-mouth ghostwriting briefs for really stupid, vicious lawyers, and spend much of the rest of my time wishing that I DIDN'T wish I was dead. I can't imagine how much worse it would be if I was carrying the kind of debt load that more recent grads have.

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  74. I bet a good portion of those vicious lawyers you write briefs for are depressed themselves.

    Has that asshole Leiter, Mr. "Legal Education" ***ever*** done a single post or comment on the fact that law school has (what must be) the highest rate of depression of any educational program?

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  75. Jadz,
    Are you and your child financially OK at least? (Not that being financially OK itself is enough in life).

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  76. Just a note, for all of you suffering depression there are state organizations called Lawyers helping lawyers which run according to the 12 step model. I suffer from depression and go to meetings with a bunch of recovering alcoholics who have also stuggled with depression. If you have little or no money its an available and inexpensive support group. I recommend it highly.

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  77. We're scraping by--it's more kids now (because once it was clear that there was no place for me in the practice of law, why the hell not?). My husband (NOT a lawyer) has been unemployed for a looong time but it looks like he has finally landed a job. I am keeping my fingers crossed that at long last we might have some financial security, even if it's not living large. Middle class is all I ever really hoped for from this career anyway.

    6:50--You are probably right about the other lawyers being depressed! There is a distinction to be made between having a *reason* (depression) for acting like an ass--and having an *excuse* for doing so. Not that I think you were suggesting that the rampant incivility in this profession is excused because we all have the sad--but a lot of the folks I have the displeasure of knowing certainly would argue that.

    Also, and apropos of nothing, I snort in amusement at the thought of Leiter addressing the depression issue! I went to the U of C undergrad and it was a miserable, miserable place. My favorite school T-shirt: "The University of Chicago: Hell Does Freeze Over." He strikes me as the kind of mean little man who thrives there.

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  78. I've been on the internet so long that I know who Jadz is (she was all over the blogs a few years back). Any way, glad you had a healthy child Jadz and I'm glad to hear you're making it even though it's hard. I think you'll have a great opportunity once the economy picks up.

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  79. I just read this post again. This post should be inducted into the legal blogosphere hall of fame.

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  80. 5:23 is right. It is much worse in a firm, at least a big firm, than in law school. People behave terribly in law firms because there, too, there are too many lawyers. People are competing for grades in law school, a leg up, to position themselves better for a job. Once they get a job, people are competing to keep their job in a law firm. No lawyer can stay in a law firm if he or she doesn't meet the billing requirements. People back stab, lie, blame others for their believed inadequacies, hide materials, set others up to fail, etc. in law firms even more than in law school. In short, law firms are even more malignant environments.

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  81. Where is the heavenly work environment that is the counterpart to law?

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  82. Jesus. The oversupply of lawyers makes life miserable in so many ways.

    There probably isn't an alternate heavenly work environment, but there are many that aren't living hell.

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  83. This is how bad it is out there:

    Look at this post from someone on TLS. This person claims to be going to Iowa and already has job lined up. The fact that these people continue to delude themselves if beyond sad:

    "I'm a 0L and already have an offer from Baker and McKenzie so long as I can pass the bar."

    http://www.top-law-schools.com/forums/viewtopic.php?f=7&t=166010&start=875

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  84. I haven't found it a living hell. I have friends who see it that way, and others who do not.

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  85. "I'm a 0L and already have an offer from Baker and McKenzie so long as I can pass the bar."

    The ONLY way that can be true is nepotism. Otherwise it's unheard of.

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  86. That's fair 8:36. Not all lawyers are miserable, even if the miserable proportion is disturbingly high.

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  87. Law school is where dreams go to die.

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  88. You know what I noticed about law professors?

    Law professors never ask me how I'm doing, how my day went.

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  89. You have to climb up into their own asses with them in order for them to notice....

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  90. The caselaw method of teaching legal doctrine is bullshit, as is the humiliating and time-wasting "Socratic" classroom bullying sessions.
    It is a notorious fact that bar review courses teach more law in seven weeks than law schools teach in three years.

    Law professors should teach a subject's core doctrines, plus the analytical framework of those doctrines. After doing so, law professors can assign a few cases to illustrate the application of doctrines already learned. This would be a much quicker way of teaching the basics. It should not take more than one year, and you can throw in courses in legal research and writing.

    The next two years should consist of externships and clinics to train students to try a case, to write an appeal, and to represent clients in several practice areas of their choice. These clinics and externships should be supervised by adjunct local practitioners, not by bullshitting law professors who haven't seen the inside of a courtroom in 15 years, if ever. During this time, I suppose, you can encourage students to sharpen their wits by taking a few elective graduate seminars in legal history, law and literature, or legal philosophy.

    In the world we are sailing into--shrinking law firms, public sector austerity-- half or more of law grads will have to practice as solos if they are to obtain any return at all on their massive investment in law school. Unless they have the skills to actually operate as practitioners, they will be an walking train wrecks.

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  91. Will be walking train wrecks? They already are.

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  92. Agree except the "next two years" should be the "next and final year," if that. I'd be fine for a single year of bar prep and then right into a PAID clinic. No need for schools to get tuition off your free work.

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  93. but the presteeeeeeeeeeeeeeeje

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  94. Jads = Shinyung Oh?

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  95. i'm not shinyung oh-- but i wonder what ended up happening to her?

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  96. 7:55 is right. This post should be inducted into the legal blogosphere hall of fame. A brief comment on the effect of law review membership on legal hiring. The general opinion of commenters on this blog is that being on a law review, any law review, increases the chance of being hired by medium or large law firms. This is not my experience. A number of years years ago I was a small cog on the hiring committee of a large (then) law firm. The only law review that they were interested in was the principal law review of the law school the applicant attended. No attention was paid or comment made about an applicant being on his schools Journal of Environmental Law, it's Public Interest Law Review, Journal of Law and Philosopht, Journal of International Law and so forth. Your were either on your schools law review or it wasn't considered. I can't even remember any discussion of the applicants published comments in his law review. "Law Review" was simply shorthand for "only top graduates need apply". When the law schools would allow it the law firm where I worked would state that only top graduates would be interviewed or considered. A second comment on another issue raised in the comments to this post, numerous people complain of backstabing and other nefarious conduct by fellow law students to raise their position on the class curve. Again I have no recollection of such behaviour in my law school years. Ts may be dependent on what law school you go to. I went to a very large law school with large classes. Even if you could have sabotaged a student or two in a class (at very high risk to yourself) it would have had the most negligible effect or your final class rank. Or maybe I'm just old. William Ockham

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  97. I agree with 10:45PM -- law review membership is basically a signaling mechanism. I think most practicing lawyers understand that law review does nothing(*) to prepare a new grad for practice. Most of the substance of law review is, not to put too fine a point on it, bullshit.

    (*)I actually believe that the law review experience DOES do one thing to prepare a law student to work at a law firm--it schools students in how to function in an intensely hierarchical environment. At least that was my law review experience; perhaps mileage varies.

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  98. ur not shinyung oh? she went to u of chicago undergraduate and graduated in 98 from law school just like you. what a coincidence.

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  99. No one wants to hear the truth.

    There is a thread on TLS started by a person with a 3.51 gpa and a 158 LSAT. They wanted to know what people thought.

    http://www.top-law-schools.com/forums/viewtopic.php?f=9&t=172998

    My response was:

    "What do I think? I think you should forget about law school, that's what I think. You simply don't have the numbers. If you have $120K lying around and want to waste on the tuition at a 4th tier loser law school, by all means do so; it's your money.

    But, if you want a "career" in the legal profession? I'm sorry but you don't have the goods. Do something else."

    I was subsequently banned from the board.

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  100. http://lawpracticestrategy.com/

    helpful?

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  101. $120k? Try $170k.

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  102. 9:21 a.k.a. Donna Seyle, please shill for your $11 book elsewhere. Thanks.

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  103. Man after reading this I'm completely proud of my first course in college being lawschool. I was thinking of psychology or law, but THIS shows how much bullis in it so I'm going for the easier one.

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