Thursday, January 10, 2013

A view from the bench

A federal judge has asked me to post the following comment on the state of legal academia and the legal profession: 


        It is no secret that many lawyers are dissatisfied with their profession.  Of the million or so lawyers in the United States (more per capita by far than any other country) over half are said to be unhappy and giving serious consideration to leaving the practice of law.  A burgeoning industry of coaching, counseling, and career change assistance has developed to guide such people to new opportunities.  Facing declining applicant pools, law schools advertise that a legal education is worth its steep price irrespective of whether the graduate intends to practice law or engage in some other pursuit.  But a number of recent law graduates have sued their schools, alleging that the law schools misrepresent post-graduate employment opportunities, that few jobs as lawyers are available, and those jobs that are available pay substantially less than law schools have represented.  Indeed many law graduates are saddled with large student loan debts that place them in indentured servitude for years.  The average debt for recent graduates exceeds $100,000.00.

        Law professors are among the highest paid academics, and enjoy the newest buildings on ever-enlarging campuses.  Law schools employ many part-time adjuncts who teach large enrollment classes for meager fees, generating even more profits for the law school budget, and less teaching time for the tenured faculty.  Overhead costs for laboratories, equipment and floor space are nearly non-existent.  Yet the law schools are engaged in fierce competition for increased enrollment and that most elusive of goals:  academic prestige.  The annual ranking of law schools by U.S. News and World Report becomes the coveted benchmark.  Because law schools are profit centers for the universities, there is little external oversight of their operations.  The litany of ensuing dubious practices includes puffing up of enrollees' Law School Aptitude test scores and undergraduate GPAs, misleading and rigged graduate placement reports, and some not-so-subtle innovations such as paying stipends to recent graduates to work for free in courts, prosecutors' offices and private firms during the sampling period.

        A few brave and talented legal academics such as Paul Campos of the University of Colorado and Brian Tamanaha of Washington University St. Louis have risked becoming pariahs among their colleagues by exposing the failures and shortcomings of the law school institution.  Accused of failing to prepare graduates to enter the profession, the law schools attempt to address the issues through economic arguments.  Their students, they claim, are "practice ready," meaning law firms can shift their most basic investment in young associates from the corporate clients who are no longer willing to foot the bill back to the very institutions responsible for creating the glutted market.  In turn, graduates are forced to work long hours with less supervision on stultifying tasks at pay levels making service of their acquired debt nearly impossible, all for the promise of a partnership that has become a vanishing hope.  

        Recent accounts, such as Running From The Law by Deborah Arron assert that more than half of young lawyers leave the law knowing they have been lied to.  They have sought the law as a means of earning a comfortable and secure living.  They have been taught that academic standing in class increases one's job prospects.  The law schools have abandoned teaching that the most fundamental aspect of the profession is one of service.  When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee.

        Plato knew that people learn by example, and from demonstrations illustrating the lessons to be learned.  It is all well and good for law schools to offer courses in the substantive subjects of the law, but more fundamental to acquiring knowledge and forming character is the conduct of teachers and the institution they attend.  (Indeed the word "attend" literally means "to pay attention to.")  Just as bad parenting produces bad children who grow up to become bad parents, what the student sees and feels counts more than routines of "practice ready" performance.

        No wonder law students are learning to be materialistic and cynical, to consider the profession of law as gamesmanship, and merely a way to earn more money than the next person.  When law schools misrepresent LSAT scores and job opportunities, offer third year courses with little or no pedagogic purpose or value, engage in grade inflation and charge ever-increasing tuition and fees, students learn that fraud, dissimulation and ethical corner-cutting are acceptable standards of behavior.  When they learn of the gross separation in salaries and status and the relatively soft work schedules of the doctrinal faculty compared with clinical instructors with whom they have much closer personal contact, when they learn that adjunct faculty are paid pittances and used and abused as profit centers, when they see that school administrators outnumber scholars and that tenure is becoming obsolete, how can they not be expected to accept that this status quo is the criterion for the professional life?

        Law schools claim that pragmatism is the only way to address fierce competition.  To what end?  Making graduates "practice ready" is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student.  The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are "ready to commence to begin to start" to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives.  It is not to produce yet another cadre of cynical shysters grasping for more fees or a legion of those who flee the profession in despair. 



  1. They can and they can't.

  2. These are good points, but judges are not in a good position to do anything. They do not make policy, and they have to judge the cases before them on their merits, not on their policy implications.

    Perhaps judges are in a position to request that the ABA change its accrediting standards regarding the number of adjuncts vs. number of full-time teachers.

    The President and Congress control the two most important parts of the equation: (1) the federal student loans that are allowing tuition to increase and (2) the fact that the loans cannot be discharged in bankruptcy.

  3. I thought I could heare a flourish and fanfare of trumpets as I came to the end and read:

    " The goal(s) should be to produce young lawyers who, as Thomas Wolfe described...."

    But really, those are comparatively modest enough goals, and who says they can't be accomploshed?

    But there are other, much bigger goals and more pressing problems to deal with.

    1. Excess supply of JD's.
    2. Made possible by decades of Unlimited Federal Student Loan funding.

    Just cut off the money. Obama expressed as much in a SOTU speech a while back. He said:

    "Make Higher Ed. more affordable, or we will cut off the money."

    I don't think a lot of schools will have to close down, but cutting back and scaling down on enrollment and overall size is a good compromise.

    Let the overcrowded market readjust for a few years. Cutting back on the availability of SL funding will drive the prices down.

    Oh, and as far as "other pursuits" go, a JD is a pariah in the non-legal job market, and I wish there was more proof of that other than a lot of anectdotal tales posted as blog comments.

    Maybe someday.

  4. He lost me when he started on about "the law as a service." Sorry, your honor, but the law is a business. Law schools would better serve their students if they adopted a trade-oriented approach, not by focusing more on ethics. The root of the problem, and the chief cause of the mercenary ethic you decry, is that there are too many law schools producing far too many JDs for the legal job market to bear. While many of the institutional critiques you offer are worthy, any reforms that do not include cutting the annual number of JDs produced by about half are of secondary importance.

    1. There are too many jd's becuase the schools have NO ETHICS. If schools were not counting people taking orders at Dunkin Donuts as employed, there'd be a lot less JD's. That schools no longer have the option of fudging their data is the reason enrollment is plummeting. I'm sorry but it goes back to ethics.

  5. "Making graduates "practice ready" is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student. The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are "ready to commence to begin to start" to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives."

    His Honor needs to put away the, uh, snuff box? Opium pipe? I'm not sure what people from 1915 smoke.

    In any event, the issue is not - and never has been - producing lawyers who don't believe in career development, helping clients, or achieving "socially appropriate goals" or generally being Fantasy Men(c) that give retired federal judges warm and fuzzy feelings. And law schools can actually teach one the nuts and bolts of practice and still accomplish that.

    And even if law schools did that and we were producing legions of these Fantasy Men(c), there would still be that pesky issue of these Fantasy Men(c) would be taking out 150k+ of non-dischargable debt for the opportunity to make, maybe $40k helping those "others" facing their tough passages.

    The judge sadly prefers a poorly-written ode to Fantasy Men(c) instead of raw economic analysis. In the end, that's what this is about:

    Too many lawyers;
    Too little business;
    Too high of tuition;
    Too much debt;
    No bankruptcy protection;
    Hostility from other employers;
    Law Schools consciously lied and lie about the above.

    Even if the law schools were still preaching law as a "service," we still have those problems. Any other analysis is facile distraction.

  6. I agree with the judge - law is not "a business" and it was the pressing of this idea by Stephen Brill in the American Lawyer (one of the most hypocritical journalists around) that did huge damage to the profession - along with the AmLaw rankings and publishing of scorecards of attorney pay - which in turn led law professors to be paid the same sort of salaries.

    Lawyers do serve a purpose in society beyond simply collecting fees - and that idea has been lost.

    1. Speaking of hypocrisy, I'm sure you will be glad to give up the jet-setting for business clients you are always here carping about and start a "service" oriented practice for indigent clients.

    2. Since I do occasionally represent pro bono clients - usually against large firms who have been hire to screw some unfortunate who lacks the wherewithal to hire a lawyer to fight their position- I have won cases that have kept people in their home or allowed someone to keep start a business otherwise barred by unscrupulous conduct - and ben paid zero for doing it. So may I suggest, with the greatest politeness that you perform a physiological absurdity on yourself.

      I could make a lot more money - but we do not chose (a) to represent certain clients, (b) to run a law firm on a leverage model, or (c) to have annual hourly targets. We do what we do - and it involves a lot of travel. Since I am sitting in my chair feeling terrible from a few hours sleep, with a chest infection exacerbated by too much travel over the last two months I think you are a pillock if you think the "jet set lifestyle" is any fun. Indeed one day I think I will write a book entitled "all the world's conference rooms - different countries and their preferred table designs."

    3. Yes by all means write that book, I'm sure we all can't wait to read it.

    4. Presuming you are the pillock who also wrote the 8:36 anonymous post the book I described was facetious - most of the so called jet setting involves staggering in and out of hotels and sitting in conference rooms - as in "what do you think of city x - "no windows in their conference rooms, tables linked together, bad coffee" but what about the 'cultural attraction' - "I may have passed it in a taxi on my way to the airport."

      What you think is the nice side of international practice, the travel is, after 20 odd years the worst side. You do not get to see the cities you visit, it usually is at an inclement time of year, airplane food is reheated (in every class) and airports are terrible places to spend time, even in a lounge - and you inevitably end up seated next to the typhoid Mary of any flight you are on.

    5. "I could make a lot more money."

      Are you sure you're not a law professor?

    6. I could make less....

      There is a big difference between the income of a law professor and a lawyer - even a lawyer who is doing reasonably well. That difference is:

      (a) tiny workload

      (b) the ability of the professor to do pretty well what he or she likes (with the exception of the odd doctrinal course which takes say 2-4 hours a week)

      (c) tenure - that is to say that even as a partners in a law firm your situation is inherently precarious - the business could dry up - a client could get acquired (that has happened to me a lot), a client may not pay the bill (and leave you out $20-50k in disbursements).

      Seriously, I am not particularly interested in being a law professor - but I'd take a 50% cut in income or more just to get the sort of financial certainty that tenure amounts to. iN fact one of the things I always find strange is that a when an academic gets tenure they get a pay raise! Surely a non-tenured academic should be paid more, not less than a tenured academic. Tenure should come with a pay cut - say 1/3 less.

    7. Agreed. Good point. Tenured professors are among the luckiest people on the planet.

  7. I wish someone would do something on academic performance and job prospects. i was told that if i did well i woulf be highly sought after. it was a crock of shit. i wasted three years and gained 20 pounds just for a shit small firm job at 40k. i graduayed in top 10%.

    1. Gaining 20 lbs. is all on you, get off your ass and exercise it off.

    2. I make twice that and was barely top half at my TT. Unless you're interviewing in BIGLAW, your grades just don't matter. The real question is whether your a person that can be tolerable in a work environment.

    3. ^Some poor firm is severely overpaying.

    4. Law school is now responsible for making you fat?

      Whatever next? Will you come home and find law school in bed with your wife?

    5. "Whatever next? "

      MacDonald's Burger University is planning to increase tuition to $50K per year?

  8. Gad, if I had known law was supposed to be a "business," I definitely never would have enrolled in law school. I think many (most?) people go to law school because they want to have some positive effect on society. People who want to enter business go to business school. Or just start a business. I agree that it would be great if we could get back to the ethic of service.

  9. Well, we've just muddied the waters. Someone is now going to have to explain to Brian Leiter what "the Bench" is as he has no experience with it or frame of reference for it.

  10. I bet this is from Judge Kane.

  11. I'm sure some on the board are old enough to remember the Charlie Brown cartoons where no adult voices are audible - the prattling on by this Judge (very likely a Boomer) sounds like Charlie Brown's school teacher - he makes good points but unfortuanely this is just more shuffling of deck chairs on the Titanic - the equation is simple: 22k annual job openings is less than 44k annual graduates and you have to turn off the federal loan spigot - as long as federal money is available, schools will take it -

    and how are law schools fundamentally different from DeVry, Lincoln Tech and University of Phoenix?

    1. As the Judge makes adjuncts as the heroes/victims in this story, I would not be surprised if this Judge also happens to be an adjunct.

    2. "and how are law schools fundamentally different from DeVry, Lincoln Tech and University of Phoenix?"

      Very few people rack up 7 years of debt at those places.

      Also, I know people from DeVry and ITT who made 60k+, debt paid off, and had an office at 23.

    3. Might wanna check your definitions, chiefJanuary 10, 2013 at 2:13 PM

      "the Charlie Brown cartoons where no adult voices are audible"

      All of the adult voices in Charlie Brown were audible.

  12. Federal judges are amongst the highest paid judges and enjoy lavish perks and work in ever fancier buildings. Meanwhile, their clerks toil for low wages and, increasingly, no pay at all. This is an inequity in the profession that this federal judge may want to try to tackle.

    1. On the long list of things needing correction or help, I think Article III clerks would place fairly low.

      Also, we have to pay federal judges lavish salaries or else they'll leave their cushy, life-guaranteed jobs for BigLaw parternship, or something.

      But it does raise a point. If the law is a "service," is not judge the pinnacle of servitude? And if so, why are we paying these people so ridiculously? Why are these "service" professionals not setting a sterling example by working for nominal salaries?

      He mentions Plato. IIRC, Plato thought the powerful should live in relative squalor and in the open public to provide transparency and give a check on the abuse of power. We give federal judicial "servants" enough to build gated suburban mcmansions.

    2. I think the prospects for a Federal Judge going into practice are better than the typical law professor. However, the complaints about judicial pay and its comparison to law firm partners are inapt because a Federal Judge enjoys unparalleled job security along with a very generous benefits package - or as the Administrative Office of the Federal Courts puts it:

      Benefits and Compensation

      The federal Judiciary offers a competitive compensation package. Total compensation includes not only the numbers you see on your paycheck but also the hidden value provided by your employee benefits. This unseen part of your paycheck adds significantly to the overall value of your compensation.

      Retiring judges are entitled to a lifetime pension equal to their highest full salary with COLAs. In order to qualify for a full pension, after 10 years provided the sum of the judge's age age and years of service totals 80 (after 15 years service at age 65.)

      A practicing lawyer needs to arrange his or her own pension and is unlikely to retire on anything resembling his or her final years income.

      The pay for Federal Judges is not particularly bad either DJs get $174,000 a year, Circuit Judges $184,500, Supreme Court $213,900 and the Chief Justice of the United States $223,500. It might seem thin for say SDNY or NDCA but if you are a judge in Podunk it is pretty big pay - you are probably the best paid lawyer in town.

    3. Not to mention legit health insurance.

    4. You get $174k + COLA-adjusted pension at that rate for life, and you can work as long as you want.

      And this is a dream job with thousands of qualified people who would kill to get it.

      You could slash that salary to 1/3 of what it and people would still apply by the bucket-load.

      I'm 30. I would sign a contract for 60k every year COLA-adjusted for doing what a federal judge does and never apply for another job again.

    5. I am not a judge (nor do I play one on TV)January 10, 2013 at 2:19 PM

      Guys, the average federal DC judge (unlike the average law prof) could pretty readily walk back into a firm job or consulting gig paying them considerably more than their current pay.

      Also, the average federal DC judge (unlike the average law prof) pretty much works his or her arse off. In most DCs, their dockets are pretty insane.

      All the above said, yes, I do agree that the pay certainly isn't bad and the rest of the package (security + retirement) is plain out fantastic.

    6. I am not

      I do agree that many DJs work their asses off ... many work hard even though they could retire on full pay - Judge Ellis in Alexandria for example - so they do earn the money, or at least earn less than a tenured prof for much more work (although there is always a JW grabbing the pension.)

      There are judges who are dumb and lazy - but not that many. The deal they get is generous but not outrageous and they work for it, and a lot work into their seventies and never collect the pension for long - a few were tossers as judges and retire at the first moment they can collect the full pension.

    7. I am not -

      but the pension....

      I could take a job - work until I'm 65 and retire on a $174k pension at 65 - admittedly the idea of doing nothing scares the hell out of me - but a pension with COLAs of $174k - almost $15,000 a month, $500 a day! Holy shit, how would I spend it! And a salary of $174k without saving for retirement- wow!

  13. I am one of those individuals who has fled the profession in despair. All I ever wanted to do was work for indigent clients, since they need to be represented in our system too and everyone has forgotten that. But when I really saw what the profession was about, I couldn't get away fast enough. (Too bad I didn't get away before investing $100,000 in a useless degree.)

    As for the debate whether law is a business or something else (not sure what that something is supposed to be - maybe a democratic institution or something?), we can't blame individuals for seeing the legal profession as merely a business. After all, law schools have made it such, by choosing higher profits over caring about the next generation of lawyers and investing in them for the sake of the profession. No, new lawyers were mainly seen as bucks for law schools and more and more bucks were needed to increase profits. Is it any surprise that these new lawyers now see the profession as nothing more than a business from which they have to try to recoup their $100,000 investment?

  14. What the judge is saying is true, but there can be no true reform in legal education UNLESS schools start to close.

    Sorry, but 30-40 law schools have got to go!! The pressure should first be on the ABA to take away school accreditations.

    Once we have less law schools, THEN we can discuss reform of the education itself.

    1. The ABA can start by eliminating Cooley and then Franklin Pierce Law Center (now UNH Law).

    2. There are 206 accredited law schools - you can leave out one or two (Military) but that is 200+ and then there are 10-30 unaccredited. The top tier schools for the most part are larger than the low ranked schools (Cooley is an outlier being bad and big.) Given an market ability to absorb 20-25,000 law graduates a year and current output of around 50,000 that tends to suggest that at least 100 law schools need to close to realign supply with demand - and even then many remaining schools need cut enrolment.

      So 30-40 is far from enough - about half of capacity needs to go - that is around 100 schools.

  15. @MacK--very true, 30-40 is a mere start.

    THIS is, however, where the focus should be: shutting-down schools. More specifically, taking away their accreditation to force their closure.

    The other option to force law school closures is to make the bar exam more difficult to pass.

    If, for example, in New York the bar passage rate were to drop to 45%, I believe less people would invest in law school. At very least, there would be fewer actual lawyers.

  16. Well, thankee-you your honor!

    You managed to sum up none of our real life problems, nor provide any solutions.

    In case we're just too far below your prestigious federal perch for you to see clearly, here's the basics. First, there are twice as many law grads as there are jobs. Second, law school is twice as expensive as it should be.

    Until those two problems are resolved, you can spout off all of your Ivy League, pre-Boomer idealogy as you like. Service? Professionalism? Socially appropriate goals? Ethical lives? What are you, the ABA advertising committee?

    My god, you have managed to prove, in those few short paragraphs, that the federal bench is probably the only place in the entire legal profession that is more out of touch with the needs of legal education than law professors themselves. With your Ivy League, prestigious, upper-class, well-connected backgrounds, your attendance at law school when law school was cheap and lawyers were comparatively rare, your lack of student loans, your lack of real struggle, and your utter impracticality. Don't try to pretend that most things in your professional life weren't handed to you on a silver platter. There are few rags-to-riches federal judges.

    But I do appreciate the lesson in the origins of the word "attend". That's worth its weight in gold! All our problems are solved! You be makin' it rain, bro!

    Here's a thought. Unless you're prepared to man up and put your name behind your words - like really give it some weight, make some minor news, make deans sit up and listen to the idea that they need to change, and change now - then take your dictionary and go back to that wood-panelled office, with that full retirement and Harvard degrees, Ivy League law clerks, and all those prestigious Ivy grads who practice in your courts and write lofty intellectual opinions.

    We'll keep on trying to break in to the profession in local courts, hustling for business, and perhaps even solving a few real people's problems instead of jerking off over multinational corporation's patent disputes or idiots fighting over whether abortion is constitutional or not.

    Oh, and while you're back in the office, how about you make a few calls to those bankruptcy judges who work next door and ask why the fuck they are so eager to deny any relief whatsoever for those literally killing themselves under the weight of their student loan debt?

    That might be one worthwhile thing you could do, rather than penning anonymous little notes on this blog.

  17. Ummm, writing here from Michigan, land of the texturalists, it appears to me that the judiciary is certainly a big part of the problem. The law changes with the political make up of the court. It is impossible to know how to advise a client much less which cases to invest in because it depends on the political leaning of your judge and whether your issue hits the Michigan Supreme Court before it is resolved. The judiciary is a big part of the problem why attorneys can't make a living/service debt.

  18. Anon at 5:37am writes:

    These are good points, but judges are not in a good position to do anything. They do not make policy, and they have to judge the cases before them on their merits, not on their policy implications.

    Perhaps judges are in a position to request that the ABA change its accrediting standards regarding the number of adjuncts vs. number of full-time teachers.

    Don't judges control who is able to practice before them? If judges agreed on a way to reform law schools, I would think they could force those reforms by making graduation from a school that satisfied their standards a condition of bar entry. Cf.

    1. The chief judge in NY can add licensing restrictions (pro bono, graduate from accredited law school) but they can't make reforms regarding the cost structure of schools (school must have x% adjuncts, charge less than $).

      The only thing they can really do to is allow people with 1 or 2 years to take the bar and be licensed.

    2. Prof. Kerr, usually your comments are so thoughtful.

    3. Professor Kerr,

      Off the top of my head, I think your proposal would create problems.

      First, if individual judges were to set such standards before their courts, then it can create problems for litigators who generally have to practice before multiple judges.

      Second, in the criminal context, this can raise Sixth Amendment concerns as the pools of public defenders and pro bono private attorneys shrink.

      Third, some people (most likely your colleagues) would find this measure elitist and racist.

    4. I think his suggestion is that judges get together and adopt uniform standards, perhaps by way of the chief judge.

    5. WCL, sorry for the confusion-- I wasn't referring to individual judges. Courts always have bar admission standards, and those standards tend to be set by groups of judges (such as state supreme court justices in the state court system). Because law schools have to be sensitive to those standards, courts have some power to influence what law schools do. That doesn't necessarily mean that judges should tighten standards -- or that they should loosen them, for that matter. Recognizing that a power exists doesn't imply that a particular exercise of that power is a good idea. I'm just pointing out that judges aren't powerless to address perceived problems with law schools.

  19. Could someone introduce a version of SarbOx as a condition of student loans, making deans and University Presidents responsible for all sorts of representations of a school which gets Federally backed student loans for various categories of representations, e.g., employment of graduates, employment, etc.

    1. Great idea, and probably the only way to get unethical university administrators to stop lying.

    2. I did not mean "all types" but rather "certain types," i.e., employment data, etc. Factual assertions that a applicant might consider relevant to a decision to attend a particular law school.

  20. "When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee."

    Being a lawyer is a job. All jobs involve "endless hours of rote work for a fee" at some point. This judge has an equally fantastic view of law as the most starry eyed 0LS. The main point is that this rote work is now too insecure and grossly underpaid for what you have to do to qualify for it.

  21. Its hard to take anything anonymous seriously, especially when it claims to come from a federal judge. If this person isn't willing to give him name, even though he has lifetime tenure, I really think this may be a fake.

  22. Fantastic post - thank you!

  23. It is surprising that a federal judge would make a public comment on the ongoing litigation. From the federal canons of ethics for judges:
    "(6) A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control. The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education."

  24. The judge is a great guy--but he lives in fairy land--the law stopped being a profession and turned into a pure mercenary pursuit about 20 years ago. And the prospects of return to the prior mean are zero. Sorry, it was a great profession for about 40% of my career--but since about 1992--sot so much. Its money and only money--that matters. RIP

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