Scenes from the class struggle

A particularly interesting section of Brian Tamanaha's new book details the many ways in which less well-off law students end up subsidizing the education and eventually the careers of their better-off classmates. This is a function of the many ways the current structure of legal education in America reinforces and indeed intensifies class stratification.  Consider:

Over the past couple of decades, law school financial aid has shifted almost entirely from a need-based to a "merit"-based model.  With the notable exception of the three top schools (Yale, Harvard, and Stanford), the vast majority of scholarship and grant money -- a total of about one billion dollars per year -- is given out on the basis of an increasingly intense scramble to secure students with higher GPA and (especially) LSAT scores than a school's key market competitors.

It works like this: say the median LSAT score for students at Chicago is 170 while at UCLA it's 167.  An applicant with a score of 169 is going to get no scholarship money from Chicago, but will be offered a substantial discount to attend UCLA.  (Roughly speaking, the "bottom half" of a law school class, as determined by the all-important median LSAT score, gets no or nominal scholarship discounts, while the top half gets increasingly larger amounts as one moves up the admittance hierarchy, with someone at the 75th admittance percentile getting a 50% tuition discount, and someone in the 95th getting all or almost all of his or her tuition waived).

It will be seen that whether this student attends Chicago or UCLA will be strongly determined by the student's socio-economic status.  A high SES student is far more likely to pay full boat at Chicago, while a middle class student (needless to say, working class and poor people don't go to fancy law schools, except for the three people in every entering class who are there precisely for the purpose of allowing law schools to claim they pay attention to economic diversity along with all the other kinds) faces a much harder choice between going to an elite law school and taking on $200,000 in high interest non-dischargeable debt, or taking on perhaps half as much debt to attend a sub-elite school.

If the middle class kid goes to Chicago, she will be subsidizing the educations of everyone who is paying less than full tuition (almost all reduced tuition at law schools is a product of cross-subsidization rather than endowed scholarships per se).  And, perversely enough, a large proportion of those subsidized students will come from much higher SES brackets than she does, because of the innumerable ways in which a high SES background makes it far more likely that one will end up with a very high LSAT score 23 years after one's birth in our increasingly stratified plutocracy.  (If you need this latter point elaborated go read some books, or at least some Paul Krugman columns).

So upper class status status reinforces itself both because upper class kids can afford to buy elite educations (a shockingly high percentage of graduates, between a third to a quarter, graduate from elite law schools with no law school debt; keep in mind that full tuition scholarships are generally given to less than ten per cent of the class, and tuition plus COL stipends are far rarer), and because they are more likely to have their educations subsidized by other (on average lower SES background) students. In addition, as both Tamanaha and commenter below point out, the students who are being subsidized are the most likely to end up with well-paying (at lower-ranked schools, simply "paying") jobs, while those doing the subsidizing are precisely the people who will on average end up in a worse economic circumstance, even without taking into account the larger debt they're incurring relative to their more favored classmates.

This same pattern reoccurs all along the law school hierarchy.  The student who is offered no money to attend UCLA will get a big scholarship offer from Loyola. The student who is offered no scholarship money by Loyola will get a big tuition discount at Chapman. And so forth.

All of this, of course, is yet another pernicious effect of the sordid scramble to advance or at least maintain  one's relative place in the "all-important" USNWR.  15% of a school's ranking is essentially a function of the student body's median LSAT score.  Tamanaha emphasizes, in his modulated and even one might say understated way, the sheer absurdity of the situation: the surviving rump of an otherwise defunct news magazine has somehow managed to call the tune to which all law schools dance, because prospective law students are obsessed with these rankings.  (The total emptiness of the rankings as an actual measurement of anything other than their completely self-referential circularity is illustrated by the fact that the same 14 schools -- out of 200! -- have remained in the "top 14" since the beginning of this imbecilic system more than 20 years ago).

Why does all this matter?  Law is a status-obsessed profession, and it becomes ever-more status-obsessed the higher one gets in the legal hierarchy. It's no longer possible to get on the Supreme Court without having attended Princeton and then either Harvard or Yale. It's no longer possible to become a partner at Wachtell without having attended HYSCCN (How pathetic is it that you and I know what that acronym stands for? Answer: very). It's extremely difficult to even become a legal academic if one went to a law school below the what the rump wing of a bankrupt news magazine has declared to be the 98th percentile of legal academia.

If legal education is structured to all but intentionally funnel as many upper class people as possible into the tiny number of "slots" from which one must emerge in order to inhabit the upper reaches of the profession, that's a problem -- at least for people who consider class status in America today to be a reflection of something other than a combination of divine election and Darwinian destiny.

A final note: Some people may think it doesn't matter all that much whether that kid goes to Chicago or UCLA. I mean they're both "top schools," relatively speaking, aren't they? Yes they are.  On the other hand, here's an email I got yesterday from a UCLA 3L (I get several things like this every week):

I consider myself to be one of the ones duped; I have absolutely no job prospects with my 3.4 GPA which is probably only around "average."  This is despite the rosy picture UCLA presented about median private practice salaries of $150,000 - what you don't notice is a tiny asterisk which says that's only for firms of 500 or more attorneys.  And what they don't tell you is that only 20-30% of you will get those jobs.  And by the way, who gets those jobs is entirely determined by first-year grades, because that determines where you "summer" after your 2L year, and that's your only way to get your foot in the door.  At the time all I thought was, "Gee, UCLA's a high-ranked school, and if the guy in the middle is making that much, I'll at least be able to do that well and law school will be a good investment!"  It's a sad state of affairs when, for the time being at least, I will probably be able to make more on an hourly basis continuing to teach the LSAT than actually being a lawyer.)

This reminds me that whether one gets an all-important second year summer position at a big law firm is affected by factors beyond how well you did on a handful of all-important first year issue-spotting exams: factors such as whether your family might be in a position to affect whether a non-trivial amount of business gets thrown that firm's way somewhere down the long and winding "merit-based" road all of us are supposedly traveling. (Cf. this comment. And this one).  But that's a subject for another day.

If you can't do the time . . .

. . . don't do the crime:

A most unlikely collection of suspects - law schools, their deans, U.S. News& World Report and its employees - may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. The possible federal felonies include mail and wire fraud,conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents' crimes. Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores. U.S.
News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

This is the abstract of Law Deans in Jail, a new paper just uploaded to SSRN by Emory Law School professors Morgan Cloud, and George B. Shepard (It will be fascinating to observe what law review has the guts to publish this extraordinary article).

What Cloud and Shepard have done is quite simple: They have assembled a collection of by-now well known facts regarding the fraudulent practices -- ranging from deeply misleading reporting methods to outright lies -- employed by law schools, and have taken the radical step of assuming that these schools and their agents (deans and other employees) will be held accountable for their conduct under the law. Their conclusion is that, at a minimum, there's a very good argument that a lot of people ought to go to jail.  (The authors also make a strong argument that USNWR and its agents should also be subject to criminal liability for both encouraging and enabling these fraudulent practices).

Now on one level it's "obvious" that Cloud and Shepard are not making a "serious argument."  By a serious argument I mean an argument that seems plausible to Very Serious People.  But seriously, the conduct of law schools in general and law school deans in particular in recent years is an excellent example of the extent to which the American elites simply don't believe that the laws actually apply to them. Even though we have 2.4 million people in prison and jail in this country on any given day (if you're an African American male between the ages of 20 and 34 there's an 11% chance that you're behind bars this morning), the idea that Very Important People could go to jail for no better reason than that they broke the laws of this country is, from the perspective of those people, an almost literally unthinkable idea.

I mean we're talking about people who went to The Best Schools and clerked for the United States Supreme Court, and have the personal cell phone numbers of Extraordinarily Important People -- the next level up -- in their IPhones. Surely Cloud and Shepard cannot be serious.  Yes, it would appear that in a narrow "technical" sense, a bunch of felonies were committed (note the careful use of the passive voice), but surely there's a broader legal principle at stake here.

Surely.

You cannot be serious

I've been reading Brian Tamanaha's forthcoming book, Failing Law Schools. It does an excellent job of describing how and why American law schools are a mess, and of detailing the historical process by which we got to where we are today.  One of the many things I've learned from it is that a number of the criticisms being leveled at legal education are literally more than a century old, as are the responses to those criticisms.

For example, even at the beginning of the 20th century a lot of people were arguing that a third year of law school was unnecessary. In fact at that time many law school programs were two years; the AALS, which was formed in 1900, pushed successfully to require a third year as a condition of membership. Keep in mind that at that time few law schools required an undergraduate degree as a prerequisite for enrolling, so in effect over the course of the first couple of decades of the 20th century the ABA and the AALS managed to increase the number of post-high school years of schooling necessary to become a lawyer from two to seven. (A key justification for this sudden creation of much higher regulatory barriers was to make it more difficult for "undesirables," i.e., men from working class backgrounds, recent immigrants, Jews, etc. to become lawyers).

In any case the arguments about the third year of law school have hardly changed since then.  People point out that the third year in particular adds almost no value in regard to preparing people to become lawyers, and defenders of this enhanced revenue stream educational requirement respond that we're not just or even primarily teaching people to practice law:

Some assume that the goal of a legal education should be to teach people practical skills so that when they leave law school, they can start practicing law like a pro. I don’t agree. . . .We are training people who will be in profound positions of power—future lawyers, judges, politicians, policymakers, and so on. It is important for all of society that these individuals be given a legal education that consists of more than just taking a few key classes and rushing off into the practice of law. Law school is, for many, one of the few times that they reflect more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system. It is a chance to learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more. I believe that these things make students be better lawyers—wiser, more creative, more well-rounded. When we train lawyers, we’re training people who will be shaping our society, and I think it is imperative that their legal education be a robust extension of a liberal arts education, not simply a trade school education.

Back in the day, I used to love to watch John McEnroe play tennis. Besides being a genius with a racket, McEnroe was prone to spectacular explosions of bad temper whenever he believed a bad call had cost him a key point. On one infamous occasion he threw a tantrum on the hallowed grounds of Wimbledon's Centre Court. You cannot be serious, he screamed at whatever prim and proper linesman had earned his wrath.

I sometimes toy with the idea of putting together a collection of quotes from legal academics under that title.

Really, what is the point of detailing what's wrong with this kind of thing?  As Louis Armstrong is supposed to have said when asked what jazz was, "if you gotta ask, you ain't gonna know."

What the heck:

(1)  The overwhelming majority of lawyers never come anywhere near "profound positions of power," even if (absurdly) one counts everyone in a judicial or political or other policy making position in that category.

(2) Very few people spend much if any time in law school "reflecting more broadly on the law, on justice, on how the law ought to be, on what works and doesn’t work well in the legal system."  They spend their time trying to learn how to run largely irrational bureaucratic mazes, in the form of arbitrary testing regimes that feature zero feedback and don't test what anyone has learned about the efficacy or justice of the legal system.


(3) Nor, with rare exceptions, do law students "learn about the history of law, the philosophy of law, law and literature, law and sociology, law and economics, and more."  They learn some (again largely arbitrary) gobbets of legal doctrine, with a farcical patina of something called "policy analysis" thrown in.  Yes I'm sure Stanley Fish's Yale Law School seminar on the history of the first amendment is an intellectually serious enterprise. I'm also sure that seminar has about as much to do with the typical law school class room as Warren Buffet's tax return has to to with mine.


(4)  It's possible, though far from self-evident, that a legal educational program dedicated to a serious inquiry into the sociology, philosophy, economics, literary aesthetics etc. etc. of law (all in three years; if you act now you'll also get this handy paring knife) would "make students be better lawyers."  Since law school has almost nothing to do with any of that the proposition hasn't been tested.


(5) "When we train lawyers, we’re training people who will be shaping our society."  This belief is the root of almost unlimited nonsense of all kinds.  I had the unfortunate experience recently of re-reading the joint plurality opinion in Planned Parenthood v. Casey, and was once again reminded of what law school actually produces is megalomaniac grandiosity among our legal elites.  For those who haven't read it, that opinion -- which occasioned veritable ecstasies of praise from all sorts of legal academics at the time -- asserts (I am not making this up) that Americans need to stop arguing about whether abortion should be legal, because the Supreme Court has resolved the issue. Furthermore, it has resolved the issue by figuring out the answer to the following question (I quote almost at random -- this is far from the most ridiculous thing in the opinion):

Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

If you can read Casey without noticing that it's nothing but a rhetorically unhinged exercise in begging the question, or that you have to be at least a little bit crazy to believe that you, personally, are morally and intellectually qualified to "define the liberty of all" then I suppose you have what Thurman Arnold referred to sardonically as "a legal mind."

And what's more than a little bit crazy is to believe that law school, of all things, has qualified you to perform this impressive feat. Indeed an opinion like Casey reads like a parody of traditional law school classroom discourse, with its pseudo-oracular pomposity, its authority-based question begging masquerading as "reasoned argument," and most of all its willingness to "speak extensively about matters about which one is to some degree ignorant."

At the root of the absurd structure of legal education is the idea that "we" are training people to be future Supreme Court justices and the like, and that our training adequately prepares these people to do things such as "define the liberty of all" in regard to the most profound moral quandaries.  Which of these beliefs is more delusional is a matter of institutional context (if you teach at Harvard or Yale the latter clearly takes the cake), but they're both, at bottom, basically nuts.  And the problem, as Tamanaha's book so clearly demonstrates, is that maintaining these delusions has become in every sense far too expensive.

Class of 2011 big law employment stats

The National Law Journal has released its annual survey of which schools placed the highest percentage of their graduates with big law firms.  It reveals an ongoing contraction in the number of positions available to new law graduates with high enough salaries to justify paying what the cost of law school has become.

A couple of preliminary notes:

(1) This kind of survey is nearly meaningless to law students at the 85% of ABA-accredited law schools which place less than 10% of their grads in big law.  In other words, this data is significant at the top end of legal academia, since it determines the extent to which it makes sense to borrow $150,000 (that will be the approximate amount of average educational debt carried by the current 1L class by the time it graduates) to go to a particular school within the top 30. Outside that range it obviously doesn't make sense to borrow anything like that sort of money, despite the fact that tens of thousands of law students continue to do so every year.  Within that range, these numbers reveal that the number of schools at which this level of indebtedness constitutes a reasonable gamble continues to shrink.  But since for perverse reasons the rest of legal academia continues to copy the financial structure of the elite law schools, it's important to emphasize the extent to which that structure increasingly no longer makes sense even for those schools.

(2) It's possible that 2011 will turn out to have been an exceptionally bad year for big firm hiring, and there are various anecdotal claims bouncing around the internet that big firm hiring is up for current 2L summer positions.  Of course that's the same thing people said about 2010, and before that 2009. Beyond that, it's important not to lose sight of the fact that even if big firm hiring returns to the levels of five years ago, that will do nothing for the 80% of law graduates who won't be hired by big law even at those levels. Nor will it solve the increasingly serious problem of people with six figure debt losing their big law positions before they have managed to pay a reasonable percentage of that debt down.

As to the statistics themselves, some particular observations:

(As always, Yale, Harvard, and Stanford put so many people into clerkships and high-end government work that their big firm hiring numbers can't really be compared directly to those of other elite and sub-elite schools.)

Michigan's figure of 31.48% suggests that more than half of the graduating class at the nation's seventh-ranked law school had a bad employment outcome post-graduation.  11% of the 2010 class had Article III clerkships, so if the numbers are similar for this year's class, and we assume (generously) that five percent of the class either got desirable government jobs or were dedicated PI/LRAP people from the time they enrolled, that still means more than half the class basically struck out -- at a school at which I paid $4,500 per year in tuition but which now charges more than ten times that.

NYU's figure of 40.1% (eight percent of NYU's 2010 class were federal clerks) isn't a whole lot better, especially considering the school's place within the sacred T-6 and the crazy total cost of attendance (now realistically pushing $250K).  Last week much outrage was generated when a current Columbia 3L suggested that only 60% to 70% of the CLS class of 2012 was "comfortably employed."  Columbia placed almost exactly half its 2011 class in big law, which, when taking clerkships, high-end government and PI/LRAP into account suggests the midrange of that estimate may well be correct.

Fordham (19.6%) and George Washington (17.8%) confirmed their status as classic trap schools.  With less than five percent of their classes doing federal  clerkships, and with the total cost of attendance at both now well over $200,000, it's likely that more than seven of ten 2011 grads of these schools had employment outcomes they would have considered unacceptable when they enrolled. At 21.5% Texas was right there with them -- a number which could lead those of a less than generous disposition to wonder if Dean Sager really earned all of that half million dollar bonus he paid himself.

Possibly helpful chart

High-Status Employment Law Placement  [HELP]

Calculated as big law + A3C + prestigious government/dedicated PILRAP(estimated)

Columbia:  64.65%

Chicago:  59.32%

NYU:   53.13%

Michigan:  47.48%

Berkeley:  59.9%

Penn:  72.33%

Duke:  57.64%

GULC:   41.38%

Texas:   34.47%

George Washington:  26.76%

As a commenter suggests, the real significance of these stats is that:

(1) Anyone who goes to a high-ranked law school these days can go to a lower ranked one for far less money, given cross-subsidized "scholarships."

(2) The comparative advantage of a high-ranked law school is that it increases a graduate's chances of securing high-status/compensation employment.

(3) Someone who does not get that kind of job is going to be vastly better off in the long run graduating from a lower-ranked school with little debt as opposed to a high-ranked school with major debt.

Thought for food

You can recognize that money is defined by the State, and in our modern economy, that means laws. Your access to money, and your obligations to repay that money are defined by laws, and if you truly think strategically, with the ends in mind, you can game the system.

As you may know from this blog, I’m really not big on being a lawyer. It requires that you spend like 50+ hours per week sitting on your ass and shuffling paper. I’d much rather be in control of my own time – traveling, or reading, or at the gym.

Well, in this, the American system, it turns out you can basically get access to unlimited money in the form of student loans. While there is a cap on subsidized loans, you can literally take out an unlimited amount of “PLUS” loans. Enough to finance your schooling basically forever, including living expenses. We’re talking food, clothing, lodging, transportation, entertainment, and even health care.

And while the law says you can borrow as much as you want, there is another law, known as “income based repayment,” that allows you to cap your repayment obligations – limiting them to a fixed percentage of your post school income, and a fixed amount of time. Presently, those limits are, I believe, something like 20% of gross income over $20,000, for no more than 25 years. Those terms are set to improve in 2014, due to legislation that was attached to the health care bill. There are also specific programs that are far more forgiving, where you do government work after school.

And while you’re in school, you aren’t obligated to pay anything.

Therefore, in theory, you can take advantage of this asymmetry. With the economy this bad – now and presumably well into the future, you can go to school for a really, really long time. Why not do an MBA, then a PhD, then a JD? That’s a decade of free money!

When it’s time to face the music and pay up, your obligations will be limited.

Of course, since this whole little system depends upon the laws, you’re taking a risk that the laws won’t change to your disadvantage. Then again, they could change in your favor, just like they did recently.

Now, I clearly don’t have the cojones to stop being a lawyer and go back to school, taking on even more debt. My parents and my girlfriend would be mortified, as they are all upstanding citizens who intend to play along with this game called market capitalism. As am I.  But the point is I could do it another way. And, if I really thought about things strategically, it might make sense.

If you’re not someone who intends to accumulate a lot of money, and you just want access to goods and services while you enjoy your life, this choice could make sense for you. And you never know. Maybe while you’re dicking around during your PhD program you’ll write a best selling book! If you were working full time, you’d never have the energy for that.

I’m not suggesting that there aren’t compromises involved, and you should clearly do your own homework on these issues before making such a radical life decision. But the point is that once you understand that money is defined by the state, and is merely a placeholder for power, you can think strategically and exploit the asymmetries in those power relationships in order to get access to the goods and services that you want. In this way, you can prosper.

During these rough, rough economic times, try to step back and realize that money isn’t something permanent, and that you aren’t anchored to one way of living. There are other ways to get what you want.

****

Politically, it is never a particularly good idea to first tell people they are your equals, and then humiliate and degrade them. This is presumably why peasant insurrections, from Chiapas to Japan, have so regularly aimed to wipe out debts, rather than focus on more structural issues like caste systems, or even slavery . . . Debt peonage, it would appear, is far more likely to inspire outrage and collective action than is a system premised on pure inequality.

This may not end well.

The least among us

Founded in 1990, the California State Bar Foundation is a 501(c)(3) nonprofit organization affiliated with the State Bar of California, dedicated to building a better justice system for all Californians. Through the voluntary donations of California lawyers and other donors and the contributions of our corporate sponsors, the Foundation distributes grants to nonprofit organizations, courts, and bar associations for law-related projects; awards scholarships to law school students committed to public service; runs a legal literacy program for high school students; promotes and encourages the philanthropic and charitable efforts of California's lawyers; and supports an array of other education and outreach programs.

From the California Bar Journal:

Listening is job one for new Bar Foundation chief 

Bringing with her a deep understanding of disparities within the American justice system, Sonia Gonzales’ self-imposed goal as the new executive director of the California Bar Foundation is to listen.

Sonia Gonzales

Listening, explained the former acting head of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, is key to expanding the universe of those who support the foundation’s mission to increase access to justice. Gonzales’ official first day with the foundation was January 17.
“The legal community as a whole has a responsibility to help improve access to appropriate legal services for all Californians, especially those from low-income or ethnic minority communities,” said Gonzales, a product of Stanford University and the University of California at Berkeley’s School of Law. “We will be judged on how we treat the least among us.”

Professor C.,

Feel free to publish the letter below. I sent this to the CA Bar Foundation and a section of the CA Bar itself. It galls me that they prominently feature the new foundation director talking about helping the poor when they can't do anything for their poor attorneys. I am waiting for a response. 

I am really poor. I grew up poor and thought I could change that by going to law school. Instead I'm poorer than my parents ever were with 6 children and one income (at least they didn't have loans to deal with). 

(Excuse the errors in the letter, I was really mad when I wrote it. It's just so unfair; we're in a crisis and institutions like the bar and law schools and even legal employers act like everything is the same as it's always been.)

I want to scream. Even my twin brother tells me it's my fault because I chose to move to California! Imagine that. After years of school, how dare I decide where I want to live? He's under the delusion that if I move elsewhere, I'll have a chance to get a job and that I can apply for federal government positions because I have a JD. It's so depressing all around. We (unemployed law grads) are invisible.

Dear Ms. Gonzales:

It is rather ironic that the Bar Foundation and the Bar Association make such a big deal about caring for "the least among us." The most that they can offer new attorneys who haven't been able to find a job is a meager fee reduction that apparently can't be applied if the deadline is missed. In any regard, the fee reduction is useless if you can't find employment anywhere. 

I have been looking for work in this illustrious field since 2010. I don't have family connections unfortunately. I was the first to go to college and my parents had five other children, thus there isn't any money from them to fall back on. So, while the bar goes on about helping those who are the least and listening to people, I would hope that they would listen to me and the many others like me. Not everyone has a silver spoon or good fortune. I didn't imagine that almost two years after graduation, I would still be unemployed. I never wanted to be rich; I just wanted to be able to provide for myself like my parents weren't able to do.  

I've applied for thousands of jobs and contacted alumni; I would volunteer but I don't have the money to afford to. 

I rue the day I thought that law school was a path to better future. All I have to show for it is a JD that does nothing for me. I had an okay job as a Paralegal before, but I thought (foolishly) that getting a law degree would have been a better option. Now, I see the folly of my decision and it is too late. 

The legal profession does not care about the least among us. Most people only care about people with experience and if you don't have the experience, then you don't matter. It's very funny and bitterly ironic that I will probably get suspended for failure to come up with the fees for my membership because I haven't been able to find a job while the bar association claims to care about people from my social status. 

I'm sure that in the offices and nice board meetings and in the foundation of the Bar Association they are listening to the dozens and dozens of new grads who are struggling to survive when they demand that we pay fees we can't afford. If you really were listening, you would change the system. Even if I found the money later on to pay, I'd always have the fact that I couldn't reflected on my record for the entire world to see, as I willfully chose not to pay. 

You ought to a) excuse fees for people who genuinely can't afford them and b) not tar them with this fact forever on their record.

I realize that this is unorthodox but it is galling to see how injustice goes unchecked within the Bar Association/Foundation and the legal community at large. I guess, if I lose my license, I can take comfort in knowing that while I can't practice law, I can turn to the foundation for help.

With regrets,

[Name redacted. The writer is a 2010 graduate of a top 25 law school, and a member of the California Bar]

I had a conversation yesterday with a younger colleague, i.e., someone who doesn't have the excuse of suffering from Baby Boomer Delusion Syndrome, who on some level simply refuses to believe that the unemployment rate (this means people who have no job of any kind) for our graduates nine months after graduation is nearly 20%.  He insists that a lot of these people could get jobs as lawyers -- mind you, not just jobs, but jobs as lawyers -- if they really wanted to. "Really wanting to," according to him, would include things like getting out of Colorado, where as even a lot of our faculty is finally starting to notice, it's real hard to get a job as a lawyer.  I asked him where they were supposed to go, and he suggested Wyoming (pop. 568,158), Iowa (our CSO is currently listing one job available for a lawyer in the state of Iowa), or Houston.  

At least he didn't say California.

He also suggested that part of the problem is that some people come to law school, especially our law school, wanting to practice international environmental human rights law, and won't "settle" for a six-figure private firm job if they can't get the kind of work they prefer.  (He actually said this).  

Part of the problem here -- "here" being within a ten-minute drive of some of the world's best rock climbing canyons, and an hour away from first-rate ski slopes -- is that there probably are around a dozen or so trustifarian slackers in every graduating class who are going to law school more or less on a whim, and all it takes is a conversation or two with a couple of these people to start imagining that their circumstances are typical of that large portion of our graduates who are either severely underemployed, or simply not employed at all. 

Whatever gets you through the night.

Is there a point in this text?

(1)  In the New York Times, Stanley Fish has a curiously diffident review of Brian Tamanaha's forthcoming book on the crisis in legal education.  I'm reading the book now, and it's a somewhat understated but therefore all the more devastating critique of legal academia.  I've mentioned before that I'm a big fan of Fish the academic, in part because he's usually not afraid to praise and criticize, in the most straightforward and unvarnished way, ideas, institutions, and people he believes deserve such praise and criticism.  This review reads like something that might have been written by someone who had never set foot inside a law school, and indeed had no particular interest in the subject matter of the book he had been assigned to review: it merely describes (some aspects of) Tamanaha's argument, while studiously avoiding any hint of what the critic's own views, if any, might be regarding what the book has to say.

Given that Fish was a long-time member of an elite law school's faculty, recently joined the faculty of a new law school which graduated its first class in 2005, and in between spent several years as a high-ranking university administrator, it would be difficult to imagine anyone better positioned to comment on the substance of Tamanaha's claims.  That he wrote a thousand-word book review without doing so is as I said both very uncharacteristic and notable in itself.  After all, Tamanaha's argument is among other things an indictment of the enterprise within which Fish has spent a good part of his professional life.  This is not the kind of thing someone like Fish would normally treat as if he were reporting on the total amount of iron ore mined in Canada last year.

That he does may suggest that Fish basically agrees with what Tamanaha has to say, but, for obvious reasons, would prefer not to acknowledge this.  Fish after all has been one of the leading beneficiaries, both in academia generally and within legal academia in particular, of the superstar system (i..e, the practice of spending big bucks to get high-profile academics in order to try to pump up an institution's ranking) which has played a part in generating the out of control cost structure of higher education in America.  I certainly don't blame him for getting while the getting was good (and unlike a lot of academic "superstars" he's actually written a great deal of stuff worth reading), but this has put him in what could fairly be called a delicate position in regard to the structural pathologies Tamanaha's book describes and condemns.

(2) Someone who has investigated the matter tells me that Florida State's longstanding practice of admitting a relatively small entering class and then taking an enormous number of transfer students (at any one time over the last few years, nearly a quarter of the school's non-1L JD students have been transfers) upset students admitted there as 1Ls enough that, in order to appease them, the school created separate class ranks for original admits and transfers.  It would be interesting to compare the entrance qualifications of FSU's 1Ls with those of the transfers whose tuition dollars are clearly so crucial to the school's budget.

(3) Long-time scam blogger JD Painterguy was interviewed recently by a New York-area television station, for a segment on educational debt.  Even for people who are already familiar with the basic subject matter, the segment is well worth watching.  For those in legal academia who continue to float in an ocean of complacency, it ought to be required viewing.

Big rich Texas

Via Paul Caron comes this article (free registration required), detailing the grotesque and amusing spectacle in Austin, where former Dean Larry Sager got fired recently for paying himself $500,000 not to quit his job. (This is unfair. It would be more accurate to say that he got fired for failing to pay off enough faculty to keep the fact that he was paying himself a half million bucks to remain "loyal" to his institution sufficiently on the down low to avoid a public scandal).

There's a lot here, as litigators say, and I'll try to touch on some of it without losing what at this hour is still a hypothetical breakfast.

(1)  The sums involved are rather startling.  One nice thing about lawsuits is that they can reveal all sorts of fascinating pieces of information.  According to the available public records, the salaries of the 25 highest-paid members of the UT law faculty last year ran from $272K to $217K.  This turns out to be a significant understatement: per the documentation that emerged as a consequence of Linda Mullenix's suit and the subsequent Sager imbroglio, the actual compensation for this group ran from $352K to $281K.  And it's unclear whether these fairly stupendous figures include the pro-rated annual share of the 22 "forgivable loans" totaling $4.65 million handed out by Sager to himself and others between 2007 and 2010 (A university-wide salary freeze was implemented at UT smack in the middle of this frenzy, but as many a baseball free agent has reminded us over the years, a man's got to feed his family). So it's quite possible that the real figures here actually go north of $400K.

Update:  I have been reliably informed by someone who has seen the referenced documents that the quoted figures represent only base salary and summer grant money, and do not include the "forgivable loans" -- meaning that UT Law is effectively paying much of its senior faculty between $320K and $410K per year.

I imagine what's going on here is that the law school manages to hide a large piece of its faculty compensation from public scrutiny by jamming it into "research stipends" and whatnot (Update: I've now seen the referenced documents and they reveal many UT faculty are getting summer research grants between $60,000 and $90,000) in addition to these remarkably generous forgivable loans. Speaking of which . . .

(2)   I can't imagine what purpose "forgivable loans" have other than hiding actual levels of compensation from (a) faculty who aren't getting them; and (b) the ever-inquisitive public at large.  Such loans are taxable as ordinary income, and, as a legal matter, they aren't enforceable as quasi-retention bonuses, since per Sager's own description the loans were given out in return for "a moral commitment" not to leave UT for at least five years.  A "moral commitment" is obviously not the same thing as a legally enforceable commitment. Update: A commenter explains that the "moral commitment" language is for tax purposes, to keep the payments from being treated as an immediately taxable bonus.  In fact the "loans" would have to be repaid if a recipient left for any reason than a no-cause discharge.

(3)  I have no basis for making any judgment regarding the merits of Mullenix's sex discrimination suit, other than to note that the fact that the overall level of compensation for UT law faculty -- and indeed for law faculty in general -- is absurdly and unjustly high does not mean that people such as Mullenix don't necessarily have a valid complaint when they point out apparent inequities within that system. In other words, that Mullinex is grotesquely overpaid relative to American university professors, or American teachers, or Americans in general, or inhabitants of the planet, does not mean that she wasn't underpaid relative to her colleagues on the UT law faculty.

In the end the significance of this kind of thing is how it reveals the extent to which legal academia is giving itself over to sheer self-dealing.  Over the last seven years the UT law school's resident tuition has gone from less than $14K a year to more than $32K, while non-resident tuition has gone from 25K to $47.5K.  The ultimate justification for this explosion in the cost of getting a law degree is that you have to pay your faculty literally twice as much, in real terms, as what the school's faculty was making 25 years ago (while at the same time cutting their teaching loads etc etc), in order to keep up with the Joneses.  That shall we say less than compelling argument will remain tolerable to the people paying the freight (the school's students, and to a far lesser extent the state's taxpayers at public schools like UT) to the extent that they're actually getting something like a decent return on the investment they have to make to become lawyers.

But when the gap between what the professors and their graduates are getting paid gets to be too much, even law students will eventually rebel against this preposterous system.

Form letter law students were asked by their schools to send members of Congress

This form letter was circulated by the ABA to all of its student members two years ago.

The transfer game

This weekend I had a fascinating series of email exchanges with a Columbia 3L, regarding the transfer polices there and at law schools generally.  S/he also put together a bunch of eye-opening data.  In this person's own words:

The message

In one of my other lives I've spent a great deal of time trying to do a little bit about the moral panic we've been having in America over fat (If you're interested in the topic here's a video of a debate I participated in last week with John Stossel, former Surgeon General David Satcher, and Pamela Peeke).

One thing I've learned over the years is that, when dealing with a deeply screwed up cultural message, it's important to avoid getting tangled up in all the details regarding just how and why that message is as screwed up as it is.  Instead, for the purposes of political action, (as opposed to scholarly analysis, which naturally must be much more complex) it's crucial to focus on one central point.  In dealing with what I've come to think of affectionately as the obesity mafia, I've come to understand that it's necessary to keep pointing out that we don't know how to make fat people thin.  The reason it's necessary to keep pointing this out is:

You can help this child get a summer associate position with Sullivan & Cromwell

 Or you can turn the page.

From: Columbia Law School <annualgiving@law.columbia.edu>
Date: Wed, Feb 15, 2012 at 4:25 PM
Subject: Give a student the chance at a dream job
To:

With $85 a month, you can get eight movie tickets, seven buckets at the driving range, six manicures -- or you can give a Columbia Law School student the chance at a dream job through our Early Interview Program. 

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A versatile degree

Today is the official NALP reporting deadline, which establishes the cutoff date for determining what sort of employment (if any) the previous spring's law school graduates have managed to obtain in the wake of their ascension to a higher status.  Here's a Craigslist ad that, to anyone who is bothering to pay attention, offers a glimpse into what's actually going on:

The status game

This excerpt is from a long post on Top Law Schools, but it's such a good example of how the law school scam works that I'm quoting most of it.  The poster is asking for advice about going to the Phoenix School of Law (btw TLS is full of status-obsessed people who are on their way to wrecking their lives by going to UCLA, and who for that reason feel vastly superior to people who are considering wrecking their lives by going to PSoL):

Trap schools

Sports, and particularly college football, feature the concept of a "trap game."  A trap game is one that, for a variety of factors, a team is more likely to end up losing than a superficial glance at the team's opponent would suggest (For instance, a classic trap game scenario involves a strong team playing a lightly regarded but actually pretty good opponent on the road the week before a clash with a powerful traditional rival).

In honor of Wednesday's nine-month NALP reporting deadline, I'd like to introduce the concept of a trap school.  A trap school has the following characteristics:

The kind of thing that gives anti-intellectualism a good name

Anyone who wants to invest five minutes in getting an idea of how dysfunctional legal academia is at present can do so by reading Neil Buchanan's basically unqualified defense of the status quo in legal education (he does aver that it would be good if law school's stopped lying about placement data). Buchanan, a tax law professor at George Washington, is quite upset that articles have appeared on the internet, and even worse on the front page of the New York Times, questioning the current structure of legal education and the economic value of law degrees.  In his view "far too many people are launching broad, baseless, ill-informed attacks on an institution that is both fundamentally well designed and essential to the maintenance of a civilized society."

Buchanan employs the smarmy rhetorical device of not actually naming any of these critics, let alone quoting from, linking to, or otherwise referencing their supposedly defective arguments.  Instead, his argument is long on bluster and painfully short on facts and analysis. He sounds, in short, like a parody of an arrogant, clueless law professor, talking about stuff he actually doesn't know anything about, while appealing to the self-evident truth of his assertions.  Behold:

This raucous atmosphere might have the effect of reducing the number of people who are potentially interested in attending law school. We have, in fact, seen a pronounced drop in law school applications this year, which could certainly be a response to the idea that law school is nothing but a "scam" or a waste of students' borrowed money. Of course, there are multiple explanatory factors at work, most obviously the continued recession-level employment prospects for far too many law graduates. Potential students need not believe any of the nonsensical attacks on the case method, nor pay any heed to the false claim that law professors are writing useless articles, to conclude that their individual best choice today is to delay applying to law school (or even to choose never to attend).

In fact both the number of people taking the LSAT and applying to law school have undergone major increases and decreases for decades now, in anything but a linear pattern. More LSATs were administered in 1990-91 than in any subsequent year until 2009-2010 (and the total number of takers 20 years ago may still be an all-time record, as changes in policy regarding the counting of multiple scores in the admissions process have greatly increased the number of people who take the test twice in the same cycle).  "Recession-level employment prospects" for law graduates existed long before the current economic downturn. "Nonsensical attacks on the case method" (translation: cogent descriptions of both its pedagogical shortcomings and its ideological function) are almost as old the case method itself.  Much the same could be said for the claim that "law professors are writing useless articles."

The rest of Buchanan's diatribe is in the same assertion-rich, evidence-and-argument-poor vein.  I'll limit myself to noting a few of his more audacious gestures. Buchanan asserts that "it seems plausible to imagine that the current media hype itself is ultimately driven by little more than the state of the economy." This is the equivalent of someone pointing out during the Blitz that "it seems plausible to imagine that the current media hype is ultimately driven by little more than the fact that a lot of bombs are being dropped on London."

Obviously the only way someone can say something this absurd is if he simply doesn't have any grasp of either the depth of the employment and debt crisis law graduates are facing, or the fact that this crisis (as noted above) has been building for at least 20 years, and gives every indication of being here to stay.  How many graduates of the GW class of 2011 have, nine months after graduation, six figures of high interest non-dischargeable educational debt and no real legal job?  I'll bet you one million internet dollars that Prof. Buchanan hasn't the faintest idea what the answer to this question is, and that he has made no effort to find out. (Anecdotes are not data but I got an email from a GW grad last fall who had finished in the top 10% of the 2011 class and was still completely unemployed. And it's not an encouraging sign that the school managed to determine the salaries, if any, of only 36.7% of its 2010 graduates nine months after graduation, after gathering the same information for 67.9% and 58.5% of the classes of 2008 and 2009 respectively).

The most astonishing aspect of Buchanan's defense of legal education is that it contains literally not one word about cost versus benefit.  You could read his stirring paen to how law schools are a bulwark of our civilization without ever getting the slightest inkling that it costs approximately $222,000 in tuition and cost of living to attend the law school that employs him (this figure ignores opportunity costs), and that there's no reason to believe that this staggering investment is going to make long-term economic sense for anything like a majority of current GW students, or for that matter future GW classes.  Buchanan gives no hint that he's aware that law schools are pumping out at least two graduates for every legal job, that they've been doing so for decades now, that the price of attendance has increased by a factor of three to five over the past generation, that current 1Ls will average around $150K in educational debt by the time they graduate, and that in short there's a great deal of evidence that legal education in America is moving along a fundamentally unsustainable economic trajectory.

And here's the punch line: the author of this analysis-free analysis of the situation has a Ph.D. in Economics! (As a commenter points out Buchanan hasn't practiced law for a day in his life -- he's basically an econ prof who in mid-career re-made himself into a law prof. Under the circumstances, for him to pontificate on the practical value of traditional legal pedagogy seems a bit much).

Buchanan concludes that the real problem with criticisms of legal academia is that they provide support for yet more anti-intellectualism in American life:

If the current ugliness is not necessarily going to permanently reduce interest in legal studies among potential applicants, is the assault on law schools nothing to worry about? Definitely not. To me, the long-term damage is being done to the notion of the legal academy as an academic institution. Even if future applicants are not being permanently put off of legal education, the public at large -- and especially political players, many of whom are generally hostile to academic inquiry and intellectual freedom -- is being inundated with claims that legal academics are fundamentally out of touch and wasting time and money . . . The future of intellectual inquiry is at stake.

I too am worried about anti-intellectualism in American life, but Buchanan's harangue does nothing but provide more ammunition for the belief that "legal academics are fundamentally out of touch and wasting time and money."   If the future of intellectual inquiry is really at stake, it could use some defenders who show some interest in engaging in intellectual inquiry, as opposed to evidence-free posturing.

Professional identity and constitutive belief

 Even without the benefit of philosophical reflection, anyone who has spent some time in an enclosed space with an excited bat knows what it is to encounter a fundamentally alien form of life.

                                            Thomas Nagel, "What is it like to be a bat?"

I have had many recent occasions to reflect on the question of what is it like to be a "law professor."  The quotation marks are meant to indicate a limiting definition: by "law professor" I mean something like "a successfully socialized legal academic, from the perspective of the institutional power structure that defines successful socialization in this context." 

Such socialization obviously has many components. Here I will focus on just one, or rather a sub-part of one.  A "law professor," in this sense, is someone who the institution can rely on to participate enthusiastically in the promotion of what the institution wants to promote.  Of course law schools want to promote a number of core beliefs about the legal system in general and their role in it in particular.  At present an especially crucial belief to promote, from the perspective of the institutional power structure, is that the students attending a particular law school have made a wise decision, one which for the large majority of them will produce clearly positive results in the long term.  We can call this the "wise decision" belief.

At the present moment, in other words, a "law professor" is someone who as matter of core professional identity can be counted on to inculcate the wise decision belief in his or her students, preferably as a consequence of holding that belief in a constitutive, identity-organizing way.

By "core professional identity" I mean that the transmission of this belief to one's students is supposed to take place in a routine and unreflective manner.  One conveys it, almost always indirectly but all the more powerfully, in everything one does and says while performing the role of a "law professor," as a matter of course, in the same way one shows up to teach one's classes on the appointed days and hours -- that is, without having to think about it, because after all doing so is simply part of what everyone understands to be their job.

Nevertheless in certain situations the law professor's transmission of the wise decision belief becomes, at least potentially, a matter of conscious reflection rather than unconscious role performance.  Consider events designed to recruit students to the school.  In this context, institutional participants must as a practical matter actively affirm that enrolling at their school is a wise decision for those considering this step.  For example, a commenter noted recently that the University of Virginia law school sent out a solicitation to current students to participate in such an event, with the "only" requirement being that students should be ready to present their decision to attend UVA in a positive and enthusiastic light. 

On one level there is nothing in the least surprising or interesting about the observation that people who sell things must at the very least convincingly fake their enthusiasm for whatever it is they're selling. On another, however, the practical requirement that being a "law professor" means adopting a professional persona that transmits the wise decision belief through the performance of that persona also means that being a "law professor" excludes a large range of utterances and behaviors that would be perfectly acceptable from, and indeed possibly required of, someone performing the persona of the "scholar," with the quotation marks here signaling a definition of that word meaning "someone who puts a higher value on discovering and conveying the truth than on purely instrumental considerations."

All of which is to say that, under present circumstances, there is a particularly sharp tension -- one might even say a fundamental contradiction -- between the professional identities of the successfully socialized "law professor" and the successfully socialized member of, if the term is not too grandiose, the academic community. Hopes for reforming legal academia from the inside rest on the belief that it is possible to get enough legal academics to, at the appropriate moments, stop performing the role of the "law professor," in favor of the role of the engaged member of that broader community.

Update:  A good number of readers are prone to leap to the conclusion that my criticisms of legal academia are intended to exclude other parts of the university. It should be unnecessary to point out that the inevitable tension between an academic and a commercial enterprise is endemic to American higher education, and that law schools are merely especially problematic examples of that tension.

Update #2:  If I had wanted to compose a parody of the kinds of things a "law professor" might say in defense of the status quo, I wouldn't have written this, as it's way too over the top. More shortly.

In dreams begin responsibilities

In a comment to a post regarding what ethical obligations law professors have to discuss the economic crisis facing their students with those students, Paul Horwitz relays some interesting information about the reaction he gets in his Legal Profession class, when he lays out the daunting facts regarding the current state of that profession (in passing I think it's appropriate to note that such discussions appear to still be very unusual, and that the more legal academics who acknowledge discussing the matter with their students the better).

I will also note, in all fairness and because some of those responses are quite interesting, that my students, and others I have heard about, have a variety of responses to these issues, some of them consistent with what one reads in the comments here and some quite different, focusing as much on personal agency as on the responsibilities of legal educators or structural issues. I make no judgment on those responses here, except to say that at least some students feel strongly that both 1) the law schools themselves have things to answer for and 2) the students themselves have made willing and knowing choices that they also have to answer for, and 3) that they seem able to hold both thoughts in their heads without doing injustice to either or having their very heads explode. My students seem entirely able to think about issues of personal agency without ignoring larger questions of institutional responsibility or structural problems. If they can, professors should be able to do so too.

I certainly agree with this sentiment in general, although in fairness to particular facts quite a few commenters on this site, in the six months it's existed, have put forth some variation of the claim that "students themselves have made willing and knowing choices that they also have to answer for."

Since this isn't a subject I've discussed much I will now.  If we were to go into the business of ascribing responsibility for the construction and maintenance of the law school scam, how should we distribute it?  Three responses I believe ought to be rejected are:

(1) It's all X's fault.

(2) It's nobody's fault.

(3) It's everybody's fault so let us avoid ascribing blame and move forward.

The first response denies the complexity of the situation.  The second response embraces that complexity, attributes it to structural factors, and denies individual agency (at least moral agency) altogether.  The third is descriptively true in a banal sense, but then extracts a conclusion that doesn't necessarily follow from the truth of the description.

It's true that the current crisis is in a sense everybody's fault. The responsible parties include, but are not limited to:

(1) University administrators who continue to treat most (but not all) law schools as cash cows.

(2) Law school administrators who are more focused on empire-building than economically sustainable and ethically defensible educational models.

(3) Law faculty who have remained conveniently blind to every aspect of the crisis which might require them to sacrifice any of their current job benefits.

(4) Legal employers who love to complain about the current structure of legal education, but who often behave in a fashion that's inimical to encouraging any reform, and who in addition are more than willing to take every advantage of a saturated market in order to exploit an increasingly debt-ridden and desperate labor force.

(5) Prospective and current law students who are insufficiently curious about whether what they are told regarding the putative value of a law degree relative to the cost of acquiring one actually happens to be true.

Now I wouldn't deny that (5) has been a factor in the construction and maintenance of the current disaster.  But I do think that, on the whole, it has been a minor one in comparison to the rapacity of central administrators, the purblind ambition of deans, the self-interested cluelessness of faculty, and the complacence and indifference of legal employers.

An epigram which is (apparently mistakenly) attributed to Schopenhauer is that all truth goes through three stages: first it is ridiculed, then it is violently opposed, and finally it is accepted as self-evident.  This is obviously not true, but it does capture a certain pattern that does tend to accompany the collapse of ideologically well-defended pieces of conventional wisdom.  The conventional wisdom about law school is now in the process of collapsing, but it's important not to lose sight of how early we still are in that process, culturally speaking, and how far that process has come in a very short time.

Two years ago, you could count the number of people in legal academia who were raising the alarm about the unsustainability of the current model on the fingers of Mordecai Brown's pitching hand.  Now it sometimes seems "everyone" is talking about it.  (This is a misapprehension.  From what I can tell most legal administrators and law faculty remain cocooned in a deep and comfortable denial).

Given this rapid progression of events, it seems quite unrealistic to me to ascribe anything more than very minimal blame to recent graduates, or current second and third year law students, for failing to have been more skeptical about the conventional wisdom, and in particular for failing to have engaged in the kind of skeptical interrogation of employment and salary statistics that until about fifteen minutes ago almost no one in legal academia was undertaking (despite the fact that those of us inside the law school scam were, of course, in a vastly better position to recognize what was going on, if we had chosen to make inquiries).

The situation for current 1Ls is perhaps slightly different. The last year has featured an explosion of mainstream skepticism regarding the supposed value of law degrees.  But we shouldn't exaggerate: by the time that explosion began to reverberate widely (a crucial date here is David Segal's initial NYT piece, published 13 months ago today) most current 1Ls were very far down the pipeline in last year's application cycle.  As a particularly perceptive correspondent pointed out, there are very powerful psychological factors that make it difficult for people in the position 0Ls were in last spring to rethink their decisions.

In my view, only when we begin to discuss the current admissions cycle -- the people who are applying to law school for admission this fall -- are we beginning to discuss a cohort whose members are actually making something like "willing and knowing choices" that would make it appropriate to ascribe more than minimal responsibility to them  for choosing to participate in a process that in a large majority of cases is going to end badly.  But I would emphasize "beginning to discuss."  Again, we shouldn't exaggerate the extent to which anything like straightforward and transparent information regarding the value of a law degree is actually available, as a matter of social knowledge that can be obtained via a realistic expenditure of cultural capital, to prospective law students.

To engage in such exaggeration is a form of victim-blaming that ought to be avoided -- especially by people in the four other categories listed above, given the far larger share of responsibility they (we) have in these matters.

Two-minute warning

For the second straight year, Chrysler won the Super Bowl of advertising with a brilliant two-minute exploitation of economic anxiety and populist sentiment. Following up on 2011's Eminem spot, this year's commercial featured the iconic figure of Clint Eastwood -- the man who puts "rugged" into "rugged individualist" -- talking about how it's "halftime in America," and while "we" may be down, we're not the kind of nation that can be knocked out with one punch, our second half is about to begin, etc etc.

The four-page advertising spread based on the commercial which ran in USA TODAY on Monday morning ends with the tag line: RIGHT NOW, IT'S TIME FOR ALL OF US TO GET BACK TO WORK.  The explicit message of these commercials is that, while times have been hard and remain so, our national resilience, ingenuity, and most of all our willingness to work will allow us to overcome our current economic distress, just as it has so many times in the past.  (The implicit message is that it's a good thing the Bush and Obama administrations dedicated tens of billions of dollars to bail out the American auto industry instead of allowing the rigors of "market discipline" to destroy Chrysler and GM).

All of this is presented in an evocative swirl of images of mostly working class people in the metaphorical process of picking themselves up by their bootstraps, in a kind of prettified hybrid of Let Us Now Praise Famous Men and a Tony Robbins self-improvement seminar.

The ideological function of this kind of thing is complex, but the part of that function I want to focus on here is the extent to which messages of this sort (viewed by 110 million Americans at one time, and many more still after the fact) obscure some basic economic realities.  The fact is that "Americans" aren't struggling: in increasing order of intensity, middle class and working class and poor Americans are struggling. Upper class Americans (such as, to pick a random example, law professors,) are doing very well these days, and indeed for really rich people things are absolutely fabulous -- much better than ever, as a matter of fact.

This general cultural situation is reflected particularly well by the current state of the American legal system.The crisis of American legal education and the legal profession is a very asymmetrical phenomenon: for instance, if you're a partner at a fancy law firm, or a dean at one of our better law schools, it's all, at least in pecuniary terms, an almost indescribably wonderful life right now.  As for law faculty, we teach less and make more than ever before; we occupy far more opulent buildings than in the past; many of the burdensome administrative duties we had to perform a generation ago have been outsourced to burgeoning staffs of helpful factotums -- in short, things are pretty great overall.

For the American upper class, the economic and social crisis is something we read about in the papers and see on TV. It might as well be happening in Afghanistan.  That's why we're going to go into another faculty meeting next week and vote ourselves a few hundred thousand dollars more in institutional goodies.  Where's the money coming from to pay for all this stuff? That's not really our department.

If it's halftime in America, then we've built up quite a nice lead, so why would we change the game plan?  We're winning, after all.

Legal Ethics Forum on legal education's response to the economic realities facing the profession

Over the next three days 23 legal academics from 21 different law schools (including faculty from law schools in Australia, China, and India) will be participating in an on line exchange at the Legal Ethics Forum regarding legal education's response to the economic realities facing the profession.  Here's my contribution:

What if any ethical obligations do law faculty have, in our capacity as classroom teachers, to address the employment and debt crisis our graduates face?  In the past few months I’ve been approached by four students  attending the law school where I teach, each of whom wanted to discuss (in the context of an office meeting rather than a classroom discussion) whether or not they should remain in law school.   In addition I’ve gotten emails from several other students attending other law schools, asking the same question.

In each case I’ve tried to give my opinion candidly and straightforwardly, while taking into account their various individual circumstances, and especially the considerable limits of my knowledge in regard to both themselves and those circumstances.    That is all well and good, but what about students who are struggling with the same issue, yet aren’t assertive (or desperate) enough to broach the topic with a faculty member, even one who they have reason to believe will not judge them for having doubts about their current career path?

I struggled with this question at the beginning of this semester, when I began to teach the first-year required Property course.   Few moments in life tend to be as predictably dismal as the first day of the second semester of law school, at least for the vast majority of students who, for perhaps the first time in their lives, find themselves making mediocre or worse grades. 

The current crisis in the employment market for law graduates is naturally making the traditional angst and depression that marks this moment quite a bit worse.  This, to echo a metaphor employed by Jim Milles in one of his posts in this Symposium, is the several thousand-pound elephant in every law school classroom at the moment, whether the faculty member in that room chooses to acknowledge it or not.

On the first day of class, after an introductory lecture, I decided to gently prod that elephant in a rather oblique way, by making clear to the students that I understood many of them might have concerns about their futures, and in particular about the extent to which law school was still a choice that made sense for them.  I indicated I was always open to discussing such matters, in a confidential and non-judgmental manner, and that indeed a willingness to do so was part of the requirements of my job.

This, it seems to me, is something that we ought to be explicit about with our students.  Many of them understandably get the impression that expressing doubts about continuing their legal education is something that law schools, as self-interested institutions, discourage them from doing.  But the fact of the matter is that, given the economic realities of the broader situation, it’s impossible to avoid the conclusion that the first-year dropout rate ought to be much higher than it currently is.

A much bolder approach than the one I’ve taken would be to discuss your own law school’s actual placement statistics in the context of a regular class session.   Many law schools are still not providing their prospective and current students with anything close to transparent employment and salary data.  Even schools that do put something like useful data up on their web sites do not necessarily do so in a way that will encourage prospective and current students to interpret that data accurately.

For instance, I wonder if it would be appropriate for me (this is not a rhetorical device; I sincerely wonder about the answer to this question) to make clear to my first years, 50% of whom are in the bottom half of their class after one sixth of their law school grades have been registered, that a close look at the employment and salary statistics for my law school’s 2010 class reveals that 93 of 183 graduates had a full time long-term position requiring a law degree nine months after graduation, and that we had been able to identify only 36 of those graduates who had a salary of $56,000 or more.

Given that most members of the first year class at CU are going to spend around $100,000 in tuition before they graduate, in addition to perhaps half as much again in living expenses and other associated costs (absurdly, casebooks now cost law students several thousand dollars over the course of their law school careers), those should be daunting numbers for them to contemplate.  They become even more daunting when one considers that CU is ranked among the top quarter of ABA-accredited institutions.

What worries me is how little we, the faculty and the administration, seem to worry about what appears to be an increasingly extreme disjunction between the cost of legal education and its expected return for our graduates.  Given how little attention we have given this subject, relative to its importance -- at least in the context of formal institutional discussions -- this only emphasizes how pressing the question has become of the extent to which we are obligated to discuss these matters with our students.

I would like to suggest that it might make sense for all law faculty to spend at least part of one class period this semester discussing our own school’s employment and salary figures with our students, and especially with our first-year students, if we have any.  For many law teachers (although I imagine this doesn’t apply to any of the participants in this particular symposium, given its subject matter) this would require that they first familiarize themselves with those figures.   Even that, of course, would be an important step in the right direction.

25 words or less

A panel discussion at Harvard Law School on Thursday grappled with the question of whether law schools are in a crisis.  The participants apparently decided the answer was that they aren't, although Professor I. Glenn Cohen's description of a non-crisis seems peculiar:

As law students face a shrinking job market and mounting student loan debt, Cohen predicted that law schools may mimic a transformation which dental schools passed through about 15 years ago: a decrease in the number of institutions accompanied by “increased scholarly output of faculty that was closer to practice.”

In fact seven dental schools -- about 12% of the national total -- closed between 1986 and 2001, including schools at Georgetown, Northwestern, and Emory.  A proportionate contraction in ABA law schools would require about 25 schools to close down.   That analogy might sound a bit crisisish to people at law schools that don't have $1.7 billion endowments and 23 alumni currently serving on the Supreme Court.

At any rate, as Brian Tamanaha pointed out recently,  "law schools" don't appear to be in a crisis at the present moment -- they're doing just fine. "The real crisis," Tamanaha reminds us (and to be fair it appears we require constant reminders), "is suffered by our recent graduates, who find themselves burdened by mountainous debt, with limited employment opportunities."

Just how bad is the law graduate employment and debt crisis getting?  One reason it's difficult for legal academics to grasp the true nature of that crisis, besides the splendid isolation inherent to life within particularly well-appointed ivory towers, is that there's a lag effect between the economic consequences of the decisions law schools take, the effect of those decisions on graduates, and the percolation of that effect into the cultural conversation.

In other words, graduates of the law school class of 2010, for example, are just now -- after the clerkships and the internships and the churn and burn associate positions in five-person law firms, and the other essentially temporary post-graduation "legal jobs" are over or ending -- beginning to come to terms with their actual situation.  And the eventual nature of that situation was determined in large part by decisions taken by law school and university administrators (and indirectly by faculty) about six to ten years ago, when the institutional budgets and tuition rates for the Class of 2010 were determined.

Because of this lag effect it makes sense to try to look at least a little way into the future when trying to answer questions regarding the extent to which there's a law school crisis.  For instance, consider the situation that will be faced by the current 1L class when it graduates, and in the years immediately afterwards.  How much educational debt will the current 1L class incur?  It's not difficult to estimate this:  average law school debt was about $100,000 for the class of 2011, and has been rising by around 6% per year.  In addition, average undergraduate debt in the United States at graduation is currently about $24,000. While there are no figures on the undergraduate debt of law students in particular, we can take these numbers and, with some fairly conservative extrapolation, conclude that the 85% to 90% of current 1Ls who are incurring law school debt will graduate with about $150,000, on average, of total educational debt.  Furthermore the average interest rate on that debt is going to be in the neighborhood of 7%.

What sort of income does someone have to make to service that level of debt at that interest rate in anything like a halfway comfortable fashion?  A common estimate of such things suggests that anything higher than a 1 to 1.5 income to educational debt ratio becomes quite problematic.  How many current 1Ls are going to be earning $100,000 or more upon graduation from law school?  These things are not too difficult to estimate in a rough and ready fashion.  The most recent NALP figures suggest that about 6,000 graduates of the Class of 2010, i.e., about 13.5% of all ABA law school graduates that year, were earning salaries of $100,000 or more nine months after graduation (of course a much lower percentage will keep those jobs long enough to pay down their educational debt adequately).

Now of course February 2011 is not February 2015, and it's possible that large law firm hiring, which accounts for essentially 100% of such salaries, will have returned to the historic highs it reached a half dozen years ago.  Even if it were to do so, however, (and there are significant structural factors at work suggesting it won't) that would still leave about 80% of the Class of 2014 unable to secure employment that pays at a level that justifies what will be that class's average educational debt load.  It's far more likely, in my view, that this percentage will be 90%.  But ultimately what practical difference does it make? Either figure represents a fundamentally unsustainable business model for legal education, although again it takes years for information of this sort to trickle down into the cultural discourse.

The law school crisis, in 25 words or less: Half of all current law students aren't going to have real legal careers at all, and more than half of the remainder aren't going to make enough money as lawyers to justify the combination of educational debt and opportunity costs they incurred while becoming lawyers.  (OK that's more than 25 words but still not bad for an academic).

Of course these extraordinarily grim figures will affect different law schools in very different ways: at the top schools "only" 20% to 30% of their graduates, perhaps, will end up in dire straits, while at the typical law school the figure will be more like 80%-90%.  But it's already gotten bad enough that even the Harvards of the world are starting to notice. And that, in its own perverse way, is real progress.