Bad reasons for going to law school

For the 50,000 people taking the LSAT tomorrow, some inspiring words: 

There are a lot of bad reasons to go to law school.  Here are some of the most common.

What should the lost generation do now?

Yesterday I pointed out that somewhere in the neighborhood of half the people who got J.D. degrees from ABA schools between 1974 and 2008 aren't currently lawyers.  For some reason this fact brought out all sorts of denialist impulses in a lot of commenters, who rushed to point out that lots of people leave the law for reasons other than not being able to find a job.  From the standpoint of economic analysis, people who have law degrees but aren't lawyers are all in a sense "choosing" not to be lawyers: for such people, the costs of being a lawyer have turned out not to be worth the benefits.  That this has turned out to be true for around half the people who got law degrees over the course of a generation -- and of course the relevant time period predates the current crisis, and also to some extent predates the real explosion in the cost of attending law school over the past 10-15 years -- ought to be sufficient to trouble anyone who thinks things will be fine once we can get back to the way things were five years ago.

553,000 missing lawyers

Courtesy of Matt Leichter, author of the invaluable Law School Tuition Bubble, more fun with numbers:

(1)  How many J.D. degrees were conferred by ABA-accredited law schools between 1974 and 2008? The answer is about 1,340,000.  (This number doesn't include people with law degrees from unaccredited law schools, which are currently pumping out about 10,000 J.D.'s per year, and people with law degrees from other legal systems).

The politics of law school

There are mornings when I confess this project -- meaning not just this blog, but the whole effort to do anything at all about the current state of legal education -- feels like a complete waste of time. This is one of them.  Basically I hate politics: prior to 2008 the sum total of my participation in electoral politics had consisted of voting intermittently in national elections.  I hate petitions and marches and rallies, and I especially hate meetings and committees and trying to organize anything. I don't like to join groups and I'm bad with details. At bottom I'm a socially irresponsible person who would like to be left alone. (In other words the only jobs I'm suited for are being an academic and a writer.)

Eve of Destruction

I once had a law professor friend who would come to my office about three times a week to rant about how things couldn't go on this way much longer (this was nearly 20 years ago).  His argument was that law schools were intellectually dead places where mediocre people wasted time analyzing sub-mediocre texts, while sending unprepared graduates off into an increasingly grim and depressing world of legal practice.  The situation was so bad, he thought, that the "whole thing" had to collapse eventually.  He was a genuinely clever fellow and fancied himself a bit of an intellectual revolutionary in the Gallic style, but he was also very naive.  The notion that a social practice that doesn't make any sense on its own terms can't go on more or less indefinitely is rather firmly refuted by history after all. (He has since, like almost all angry young men who turn into not so angry middle-aged men, become Respectable).

ABA decides key to more law school transparency is less transparency

According to Kyle McEntee and Patrick Lynch, the two founders of the Law School Transparency project, the American Bar Association Section of Legal Education and Admissions to the Bar is about to do something that could well represent a significant setback in the struggle to achieve law school transparency.

The Needle and the Damage Done

The execution of Troy Davis says some things about our legal system which apply to lots of issues beyond the debate over the death penalty.  I had some (very tangential) involvement in this matter, so I think I know the case well enough to say the following with confidence: Davis's execution was a grotesque travesty of justice, but it also resulted in the legally correct outcome, if by "legally correct outcome" one means what law professors usually mean when they ask if a case was "correctly decided."

In brief, Davis's problem was that, if he wasn't able to demonstrate, after his conviction, that he had not gotten a full and fair trial -- and he wasn't able to demonstrate this, because the trial he got pretty clearly met the standard of what counts as a "fair trial" in our criminal justice system, at least for the purposes of the existing state and federal laws -- then the only way he could avoid execution was to convince the authorities reviewing his case that he was actually innocent.  (The inimitable Justice Scalia went so far as to declare that even this wouldn't be good enough for the purposes of a federal court review of his case, because "this Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent.").

Davis's execution was a travesty of justice because, in my opinion, the chances are a good deal better than even that he didn't murder Mark MacPhail. It's more likely, in my view, that Redd Coles -- the key witness in the case against Davis, and the man who went to the police in the first instance with the claim that Davis killed MacPhail -- is MacPhail's actual killer.

In retrospect the claim that Davis was guilty beyond a reasonable doubt for the crime for which he was executed is completely indefensible, but again, as a procedural matter, once Davis was convicted for the crime in what counts in our system as a fair trial (and he was), then as both a formal and practical matter Davis had to prove his innocence to a fairly high degree of certainty in order to avoid execution. This he was unable to do (I certainly don't claim to know whether Davis was in fact innocent -- I personally think the available evidence suggests he was, but that's quite different from that evidence amounting to a genuine exoneration).  So, as a formal legal matter, Davis's execution did not involve any violation of state or federal law, even though he was probably innocent.

Now this realization should fill any decent human being with a sense of disgust, but it affects certain legal actors with something more like exasperation at the extent to which our current system refuses to achieve "finality" within a reasonable time frame. Justice Scalia's dissent linked above could not be more clear on this point: what matters to him is whether or not the rules have been followed, and if they have then the execution of a probably innocent man is just one of those prices "we" must pay for all the wonderful things we get from the legal system.

As I have argued elsewhere, Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

"The law's absurd formalism was part of its strength as ideology." Precisely.  This insight applies to many more aspects of the legal system than the revolting spectacle of our contemporary system of capital punishment, which in a case such as Davis's -- which is not in this respect was not unusual -- psychologically tortures the defendant, the defendant's family, the victim's family, and others connected to the case for literally decades before producing what the system then has the temerity to call "justice."  (The climax of this spectacle last night involved Davis being strapped to a gurney with a needle in his arm for nearly four hours, waiting for various legal personages to respond to the question of whether, all things considered, it was finally time to stop his heart with state-administered poison).

That we tolerate this kind of thing so readily helps explain, in its own way, why it sometimes seems impossible to do much of anything about the absurdities and dysfunctions of the system of legal education that legitimates it in the first instance.  Or perhaps it's the other way around: perhaps we tolerate the absurdity of something like the 22-year "process" that resulted in the horror of Davis's final hours because we 're socialized from the beginning of our careers in this system to accept all kinds of absurdity and injustice as natural, inevitable, and therefore legitimate.