Friday, August 19, 2011

Anonymity, the critical perspective, and taking things personally

I've received a couple of furious emails from an outraged colleague who claims that this blog is attacking him personally by "broad-brush insulting all law profs, and more specifically those at your school."  He's angry enough that he decided to try to "out" me because, he said, "I'm not going to let this remain a one-sided fight whereby I'm attacked publicly and you get to hide from attacks."  It's clear this blog isn't going to remain anonymous for much longer, so I'm going to say a couple words about why I started blogging anonymously in the first place.

Anonymity isn't my style (this blog is the first anonymous thing I've ever published , and I've published a lot), but I thought I would give it in a try in this context, for at least a little while, as a kind of stylistic experiment.  Anyone who does genuinely critical work soon learns that the classic knee-jerk response on the part of those who don't like the criticism is to attack the messenger rather than the message.  So I thought it be worth authoring this blog more or less anonymously, at least for awhile, to try to keep the focus on the substantive criticisms.  I also didn't want to give the impression that these criticisms are directed at my law school in particular: they most certainly aren't.  I'm talking about systemic and structural failures, rather than those of particular institutions (let alone particular individuals).

But the law school world being what it is, this has proven more difficult to do than I anticipated.  Law students and lawyers are all familiar with the kind of emotional regression that tends to take place in law school, where the social atmosphere often resembles a particularly gossip-ridden junior high school (Indeed one of my most strident public critics has constructed an entire legal academic career around trafficking in junior-high level gossip).  So I'm not sure how much longer maintaining formal anonymity will make sense in the context of this project.

That said, it's still striking how much law professors personalize criticisms that are in no real sense personal, but rather systemic.  If most law school teaching is bad and most legal scholarship worthless this can hardly be a result of anything but the results of a system that takes lots of bright, ambitious, otherwise-accomplished people and turns a very large number of them into bad teachers and poor (or perhaps more accurately pseudo-) scholars.  If, under present circumstances, we law professors as a group are in many ways scamming our students, that isn't because law professors just happen to be people of poor moral character, but rather because we have, despite our best intentions, ended up embedded in a scam-like social structure. It's the difference between Bernie Madoff on the one hand and, on the other, investment bankers collecting gigantic fees for trafficking in overly complex financial instruments whose actual risk-return ratio nobody really understood.  Madoff was scamming by breaking the rules, but the investment bankers were also involved in a scam -- although of a fundamentally different kind -- as well.

The fundamental difference, of course, is that Madoff's scam was a crime, while the investment bankers' scam was perfectly legal and extremely prestigious and profitable and respectable (at least until it helped wreck the world economy).   If you had told Dick Fuld et. al. in 2007 that they were running what would as a practical matter end up looking like a financial scam they would no doubt have been deeply outraged.   "We're creating value within a new paradigm!" they would have replied. "How dare you impugn our motives and our character and our devotion to the highest standards of etc. etc?"  That doesn't mean the investment bankers selling what turned out to be crap CDOs as fast as Budweiser at a ball game on a hot afternoon were bad guys, in the same way Bernie Madoff was a bad guy. In their instance the problem turned out to be the game, not the player.

And that's the fundamental problem with legal education right now.  It would be childish and absurd to say that the answer to legal academia's problems would be to maintain the present system more or less as it is, but to hire better law professors. That makes as much sense as keeping the same financial system we have in place, and just trying to hire better investment bankers.  Real reform means structural reform. And a key element of undertaking structural reform is to not take criticisms of the structure personally. 


  1. Threatening to out you? That's an interesting phrasing. How hard could it be to out you? Anyway, look. I get it. When the thing you've been rewarded for all of your life is called out as somewhat less than perfectly fair or worthwhile, it's easy to take it personally. We all do. Look at the conversation in comments about LSAT scores. Research shows that LSATs aren't all that - and yet here are tons of (well-meaning and rightfully frustrated) people claiming their 170 means they deserve that big fancy job. Most scholarship may not be earth moving. But it's got to carry more interesting weight than an LSAT score....

  2. As a member of the legal community, I thank you for casting additional light on a systemic problem, and I hope that you are able to continue to do so going forward. I have no doubt that many of the current beneficiaries of this system are actively opposed to reform, and that makes it all the more important to fight the good fight. A constructive dialogue regarding how to correct a system that profits on the backs of those least capable of carrying the burden may be able to identify ways to reduce some of the negative influences on the system.

    As you have stated several times, we have a collective action problem, but reducing influences and practices like reporting inaccurate employment data, ineffectual systemic oversight by the ABA, and rankings that create perverse negative incentives may be able to significantly improve the legal education system significantly. Imagine if the deans at the top 25 private law schools could agree to not release any information to USNWR, the rankings would be effectively neutered, and their negative influences on the academy could be minimized. Getting this to happen could take the form of the NPV movement where their agreement is conditional on a certain number of schools agreeing to participate. It would not be easy, but it could be worth trying.

  3. "I'm talking about systemic and structural failures, rather than those of particular institutions"

    Exactly. This is the heart of the problem. The current situation with legal education is about systemic and structural failures that are destroying the lives of those who seek to enter the profession. Right now, the only people who benefit from this system are the administrators and the professors.

    The legal education complex is nothing but a wealth transfer system built upon the backs of inexperienced and, for the most part, unknowledgeable students and the government funded loan gravy train.

  4. @ Anon 7;19

    You're right. Put it another way, one of the biggest factors in anybody's success is luck. Blind, stupid, pure luck. Right place, right time. The difference between a 170 and 165 being filling in your guesses with all A's instead of all C's. The difference between your A and B being remembering three obscure cases that get you a bunch of checks. And on and on and on...

    Two questions about this post. First, even if profs weren't aware, isn't this something they should have known about? Didn't we learn about this in class? Constructive notice? They knew or should have known that their students were not finding jobs, the statistics were off, etc.

    Second, assuming that LawProf is correct, and profs are less planners and more participants in this scam, isn't that role changing? At this point, this is no longer a secret. Front page New York Times articles. So what now?

    LawProf, good luck to you in the academic community. Many of my family members are profs (though not law), so I know how cutthroat it can be. A wise person once describe the academy to me by saying "the politics are vicious because the stakes are so small."

  5. Not to denigrate what you're doing, but is this blog really so much of a threat to the reputations of law professors everywhere that this is necessary?

    It's not like you're divulging secrets which otherwise the Internet and Chuck Grassley would not know. The only possible distinction between you and blogs like First Tier Toilet is that you're a law professor, which must make you harder to dismiss than all those unemployed/underemployed whiners whom these law schools have recently graduated.

  6. Keep on with your work. You are doing a most lawyerly job of describing a situation that must fundamentally change. I spent 44 years in the system and watched its evolution from a public spirited endeavor into it's current ego driven charade.

  7. Law School = current ego driven charade.


  8. LawProf,

    Interesting project. Best of luck in navigating your internal political issues.

    Some feedback: I think there is a risk of conflating two problems -- price and value -- and you may wish to focus on one (or both, but make the distinction explicit). They are related, but distinct.

    The first is the *price* of law school. The argument here is that it's too expensive, period. I agree with what others have said that the high price of law school is just unremarkable in a landscape filled with expensive graduate and undergraduate programs. It would be like criticizing one bank's MBSs and CDOs while ignoring other banks'. In this case, your fire is best directed, at least initially, at federal loan subsidies and university administrators (who dictate the "tax" graduate programs pay to them to subsidize cheaper programs). No point in singling out law schools. Many, many educational programs are very expensive and people pay the price because they fetishize education (either the "college experience" plus the degree, or just the grad school degree). Good luck finding faculty members from other divisions of the university to help you, however. Fewer subsidies (via the feds or the professional school "tax") means less money for their disciplines, and anthro professors know the market value of their skills outside of academia is zero.

    The second is the *value* of a law school education. The argument here is you pay $50K a year and don't get taught how to practice. In this case, your argument would appear to be that law schools should shift more to a medical school-type model, where the first half is school and the second is practical training (the equivalent here would be more clinical programs). The analogy is not perfect -- most of the practical training doctors receive is essentially paid for by the gov't in residency programs, and the price doctors charge once they are practicing post-training is still subsidized by the gov't (Medicare, Medicaid, tax deductibility of health care premiums) -- but the point is, if you're going to charge a fortune, deliver value in the form of practical skills. Don't count on the market to provide those skills.

    I think there is an audience for both arguments and you could make both. But I think you would be more effective if you distinguished between a problem of charging what is, in absolute terms, a lot of money (which is common in education), and value, which is also common but suggests a solution that is particular to law schools. For some other fields, there is no solution that would help deliver value without lowering price (e.g., there is no training program a master's program that charges $50K a year can implement that will make the degree be a good economic return on the investment).

  9. Writing anonymously is pretty wimpy.

    Just sayin'

  10. This blog would not have become so popular if it were not anonymous. Shock value got people to come, an important and well-thought message causes them to stay (and revisit).

    Also, @8:25, if you think this blog is anything like a scamblog, you must have not read anything written here or there. The only similarity is with the word "scam," and LawProf already greatly distanced himself from the term.

  11. LawProf, thanks for this blog. It's been a very entertaining read! Thanks also for taking a stand on this. Hopefully, your school will realize that firing you over this would result in very undesirable backlash from students and alums. However, you're probably going to take a lot of crap from your colleages. You probably already know that.

    I am one of the fortunate former law students for whom law school has not been a scam. Having to interview with firms right after 9/11 seemed like a terrible burden at the time, but, in restrospect, I'm extremely thankful I didn't have to face this legal market during my law school years. It's brutal.

    Law school has always been of questionable value for law students who don't want to become law professors in terms of what is actually learned. I don't believe this is much different from the law school of the 80's that you lauded for its efficiency. It's also not different from your typical liberal arts degree. Whether law school should become more practical in its educative focus is a separate question from whether it could cost less, as a poster above has noted.

    In terms of costs, what we have seen is continued increases in costs in U.S. post-secondary schools across the board. These increases are not sustainable forever (though need based financial aid subsidized by higher tuitions and readily available student loans have enabled the game to continue for quite some time), and now is where the real pushback begins. Law school is just first in line because of the number of debt-ridden graduates who will never be able to make a decent living with their law degree.

    Law schools could reduce costs of course. They could commit to being less expensive than their affiliated university's undergraduate program, but is that realistic? Actually, I'm not sure that professors would need to take pay cuts to create cost savings. I don't believe most law school tuition goes directly to professors' salaries (correct me if I'm wrong here). Law schools charge obscene tuitions because they can. Not because they need to. Law school classes are huge. Profs could go back to teaching 4 classes a year (not terribly burdensome), law schools could reign in their expanding bureacracies and building renovations and convince their affiliated universities to quit siphoning funds off from the law schools. Then law school tuitions could probably be cut in half. Problem solved? Probably not.. Wouldn't there just be more stupid kids who wanted to go to law school (now at half price!) to try to be one of the elect who can start at 160? (Before the 80s, starting salaries at law firms were also considerably lower compared to those in other professions) Simply lowering law school costs may not provide an effective solution to the fundamental problem of too many lawyers being produced in this country. To solve that problem, we'd need to get the government and the ABA to start closing TTTs. This will not be very popular with the TTTs. In the end, though, I think they are a big part of the problem.

    I'll be very interested when you get to describing concrete plans for systemic reform. Without those, it will be hard to make real change. Identifying problems is only the first step...

  12. There might be a silver lining to your outing, should it happen. For one, it will shut the mouths of people like Leiter who are taking advantage of your anonymity to attempt to marginalize you as somebody not worth listening to. Your professional reputation, should it be revealed, will only help bolster your credibility and the credibility of the things you've said here.

    I hope you return the favor and out the people who have been threatening you. I'm sure Leiter couldn't care less about his reputation among the type of students who feel scammed by law school, but his reaction to your blog is thoroughly disgusting in my opinion. It lead me to look him up on on the Chicago website. He's butt ugly too.

  13. Careful everyone! Don't upset the Almighty LEITER! He will descend from on high in Heid Park and exact his fury upon thee! NOOOOOO!

    That "has constructed an entire legal academic career around trafficking in junior-high level gossip" line was absolutely wonderful, and will certainly get his all-mighty blood flowing. He is likely contemplating how he will exact his judgment upon you at this very moment!



  15. "we have, despite our best intentions, ended up embedded in a scam-like social structure. It's the difference between Bernie Madoff on the one hand and, on the other, investment bankers collecting gigantic fees for trafficking in overly complex financial instruments whose actual risk-return ratio nobody really understood"

    Except investment bankers really are in a buyer beware industry. You aren't. If you've "ended up" in something that looks like a scam it's because you allowed it to happen when you shouldn't have. You ARE to blame for this.

  16. Oh, Brian Leiter. See generally

  17. Wow the plot thickens.

  18. It's not fair to say LawProf was posting anonymously. He has outed himself to at least two reporters. Nothing will change once he is outed, assuming he is does not receive pecuniary threats from his bosses.

  19. P.S. I generally agree with Brian Leiter on political issues. I don't know he is being such a DB about this. Let LawProf have his voice! I want to hear what he says, and so do lot of other law students and graduates.

  20. Leiter is now attempting to brand LawProf as "ScamProf".

    This is not going to work. Attempting to silence LawProf without engaging his arguments only makes you look very, very guilty.

  21. And trying to turn everything into an inquisition of LawProf's own academic ability and work habits (which is Leiter's latest tactic) is just an ad hominem distraction.

  22. Leiter's beef seems to be that "he actually does his job" and so do all the other professors, such that there is zero credibility to LawProf's posts.

    In what other profession does the employee get to decide for himself whether he is performing? Leiter, if employees got to decide that question for themselves nobody would ever get fired and companies would quickly go bankrupt due to annual 25% raises!

    No, that question has to be decided on:

    (a) a professor by professor basis.

    (b) by someone other than the professor, preferrably the people who pay the professor's salary (i.e. the students).

  23. "And trying to turn everything into an inquisition of LawProf's own academic ability and work habits"


    In my opinion, LawProf's posts on law school are worth more than anything Leiter has ever published. They've certainly had a greater impact on an important debate.

    Leiter, why don't you handle this the free market way? Go and start your own blog on law school and see who the audience finds to be more praise worthy - your blog or LawProf's blog?

  24. Leiter's only concern are the attacks LawProf has made against the percieved value of law professors and their work. The discussion regarding the fate of unsuccesful law students is utterly beneath him. I'm sure he's never written a word on the subject.

  25. "It's not fair to say LawProf was posting anonymously. He has outed himself to at least two reporters."

    This comment, from "Anonymous", is just hilarious.

  26. Leiter should stick to philosophy. He obviously has no grasp of the real world and how the system fails most students.

  27. I don't think a single person on earth is bold enough to say that they don't change as a person when they come on the internet. With a shield of anonymity, many begin to feel more brave to express their opinion in a very vocal way. I'm asking this in R&S because it's probably the best example of internet anonymity.

    Doreen Boxer on LA Times


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