“Mentoring” versus “Scamming”
posted by Dave Hoffman
Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968). In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise. She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement. She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.
It’s a good teaching case. But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry. Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.2 But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.” Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)
But how far, I mused outloud in class, does this argument run? Let’s say a student comes to your office hours early in the Fall semester. They are lost. Really, desperately, lost. They are working all the time, but they can’t see the forest, the trees, the continent, the planet. Law’s greek to them. What to do? One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.
I have had this discussion with a handful of students over the last seven years, though always after the first semester and usually after a pretty lengthy exploration of their goals, resources and capabilities. But, to be honest, I am never sure if the talk is a good idea, let alone morally compelled. Putting aside Bar passage – and at Temple, I have that luxury as almost every student passes on their first try – I know that I have very little information early in a student’s career that will meaningfully predict if they can earn a living as a lawyer. I will know something after the first semester about if they’ll get a job at a large law firm. But that’s a narrow slice of jobs for all law school graduates outside of all but 10-15 schools (or, more precisely 5-10% of law school graduates). What I don’t know about students is their motivation; their people skills; their social connections; their ability to bounce back. In short, I know almost nothing about their human capital. And nothing in my training or teaching has made me particularly good at making snap judgments about that really hard to measure set of attributes. In fact, I know that I tend to overvalue a certain set of skills – intellectual, verbal, etc. – and discount social ones. This problem of mis-prediction is particularly acute early in the first semester. Many confused students turn it around. Some don’t. I have never been able to predict which will be which.3
So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades. (True, if success means money earned.) I tell them that I felt confused in my first semester. (True, and it’s also true that Contracts was my least favorite, and least understood, class.) I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace. (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.) I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role. In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.
Should I feel bad that I encourage people who may not succeed? Should I start every conversation with a Vokesian disclaimer that is brutally frank about their current level of skill? I just don’t see it. That’s not, I think, what an educational institution is supposed to be about. We’re selling the possibility of self-improvement, and economic and social momentum. People need to believe in that possibility if they are to realize it: optimism actually makes people better, more competent, and more satisfied with their lives. There’s a corrosive cynicism in the “scamblogs” which would, I think, turn that idea on its head.4 We owe our students more.
1. Is she a 51 year old widow? Or was she 51 years a widow? It’s not just Cardozo who can write lyrical sentences that are hard to parse.
2. That something is expensive doesn’t mean it’s a bad idea. But I fear that too often reformers in legal education (and elsewhere, of course) don’t think clearly or well about trade-offs. Making law school more expensive would be good for current incumbent lawyers. It would be bad for prospective lawyers and current clients. I’d prefer that law schools be regulated less, and for them to compete on price, disclosure, internal governance, and educational program. For those that say “why don’t they do so now,” the answer is “because the ABA doesn’t let them.”
3. Not knowing whether someone is going to succeed as a lawyer isn’t the same as not knowing how they are doing as a student, or the claim – obviously silly – that we can’t evaluate relative merit at some kinds of lawyer-relevant tasks. Law school sorts students by grades, and I’m committed to making grades pretty good reflections of how well students exercise legal judgment. The point is merely this: we ought to be humble in our predictions of how well our students will do once let loose in the world. We provide a knowledge base. The Bar Exam licenses. Neither guarantees success, happiness or wisdom. Even lawyers with fantastic legal judgment might not rake in cash.
4. Nothing in the above discussion at all approves lying about data. Or increasing tuition above inflation yearly. Or teaching the same thing as we did last year simply because …well…because we did it. Or being a nitwit, a bore, an ideologue, a lazybones, or a sociopath, unable to see the pain of students who can’t find jobs. I’m against being bad at your job, and I think that being good at your job means realizing that we are teaching people to be lawyers, and our students rightly expect that we set them up to succeed.