For example Orin Kerr writes:
Every law student learns that mens rea is the foundation of culpability. As Holmes put it, "even a dog knows the difference between being stumbled over and being kicked." Given that, it's misleading to shrug and say "of course" it doesn't matter if you have been wrongfully claiming that acts were intentional when they weren't. It doesn't matter for some purposes, of course. But it does matter for purposes of determining the responsibility of the individuals you are criticizing.I don't want to start quibbling about exactly how much intentionality I've ascribed to various inside actors over the course of this blog's existence, although I will note that in the very first post 18 months ago I described the situation this way:
For a very large proportion of my students, law school has become something very much like a scam. And who or what is doing the scamming? On the most general level, the American economy in the second decade of the 21st century. On a more specific level, the legal profession as a whole. But on what, for legal academics at least, ought to be the most particular, most important, and most morally and practically compelling level, the scammers are the 200 ABA-accredited law schools. Yet there is no such thing as a "law school" that scams its students -- law schools are abstract social institutions, not concrete moral agents. When people say "law school is a scam," what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.With the benefit of hindsight this still seems to me correct. In other words, law professors have been guilty, for the most part, of negligence, rather than of conscious participation in an increasingly unjust structure. (Law school deans are another matter, Unlike regular faculty, deans are paid to pay attention to exactly the things faculty have been allowed to ignore).
We don't mean to, of course. Like my learned colleagues, I'm just a soul whose intentions are good! And anyway it's mostly the dean's fault -- it's not like I was ever consulted about raising tuition 130% etc. etc. . . .
In the end, the fact that law professors don't intend to scam their students is irrelevant. We are scamming them, or many of them, and we know we are -- or we would know if we paid any attention at all to the current relationship between legal academia, legal practice, and the socio-economic system in general, which naturally is why so many of us avoid doing so at all costs. (Emphasis added)
But the situation today is drastically different than it was two years ago. Today negligent inattention is no longer possible, and any individual or collective failure to address the economic and social crisis of the American law school can be treated properly as a conscious decision to perpetuate an indefensible status quo.
Here's my own take on a few things anyone on a law faculty should now be considered morally obligated to discover if he or she doesn't already have this information:
(1) The employment outcomes for the school's most recent class at the most granular level available (this means at a minimum the NALP long reporting form which my own school now posts on our web site).
(2) The estimated actual average educational debt for the school's students. This can be extrapolated by taking the 2012 class's debt numbers (which every school reported to the ABA last fall although this information is not yet public), adding 15% for accrued interest, and between $10K and $30K for average undergraduate debt (the lower the ranking of the school the higher the latter number is likely to be).
(3) The school's operating budget, at the level of specific sources of revenue and specific expenditures.
This is the absolute minimum faculty members need to know to make responsible decisions. I'm aware that at some (many?) schools, administrators will balk at making some or all of this information available to the faculty. Such policies should be considered completely unacceptable by any faculty with a minimum regard for the idea of faculty governance.
I don't want to sound sanctimonious about all this -- I had my head in the sand on these issues until a little more than two years ago. Like everyone else I had plenty of excuses: This is my 23rd year on the CU faculty, and for the first 14 of those years tuition averaged $5000 per year in nominal dollars (about $7200 in 2012 dollars), and it was considered completely normal for the faculty to have no information at all about employment outcomes or budgetary matters.
That was then, this is now.