“Of course, it’s not enough for us to increase student aid. We can’t just keep subsidizing skyrocketing tuition; we’ll run out of money. States also need to do their part, by making higher education a higher priority in their budgets. And colleges and universities have to do their part by working to keep costs down. Recently, I spoke with a group of college presidents who’ve done just that. Some schools re-design courses to help students finish more quickly. Some use better technology. The point is, it’s possible. So let me put colleges and universities on notice: If you can’t stop tuition from [...]]]> President Obama’s State of the Union glossed on a topic that’s quite relevant to the recent debates about legal education:

“Of course, it’s not enough for us to increase student aid. We can’t just keep subsidizing skyrocketing tuition; we’ll run out of money. States also need to do their part, by making higher education a higher priority in their budgets. And colleges and universities have to do their part by working to keep costs down. Recently, I spoke with a group of college presidents who’ve done just that. Some schools re-design courses to help students finish more quickly. Some use better technology. The point is, it’s possible. So let me put colleges and universities on notice: If you can’t stop tuition from going up, the funding you get from taxpayers will go down. Higher education can’t be a luxury— it’s an economic imperative that every family in America should be able to afford.”

As political pap goes, this is as good as any.  But I’d go a step further to ask how the government could help keep down costs, apart from threatening to take away subsidies.  Costs have many drivers, including rising student demand for particular kinds of campus amenities, legacy benefit costs that plague all large-scale employers, and rising health costs.  But the biggest factor is faculty salaries. Given tenure (which affects law schools disproportionately because of our accreditor’s monopoly) it might seem like this is a wicked problem.  Maybe it is, but the President could have called for the Congress to make a small change in law that might make a real difference: repeal that portion of the ADEA which prohibits mandatory retirement ages for university professors.

As is well-known, the federal government prohibits mandatory retirement policies except when age is a bona fide occapational requirement or when the person is a qualifying executive.  29 U.S.C. §§623(f), 631(c).  An exception for tenured employees, including professors, was phased out in 1993.  (The law phasing out the exception passed in 1986).  As this study predicted, the impact on research universities in particular is severe, as an increasingly high percentage of workers stay on the job after age 70. Why does this matter?   If teaching and/or scholarship decreases after many years on the job – and there is some evidence that they do – universities have few remedies given tenurial job protections for under performing employees.  In today’s economy, with an increasingly volatile stock market, and unpalatable health insurance choices, we’d probably also expect that fewer faculty will retire voluntarily in the future than they used to.  Thus, many institutions will find it hard to reduce costs by reducing faculty sizes (or paying less per person by replacing older, more expensive, employees with younger, cheaper, ones.)  We will deliver fewer educational goods, at higher costs.

Now there are good reasons for prohibiting mandatory retirement in general. But I’ve never understood why those reasons translate when you’ve got a tenured faculty who often exercise more self-government than law firm partners.  In any event, given the economic realities of the moment, lumping faculty in with other workers feels like a luxury students can no longer afford.

The high demand for legal education is somewhat surprising given its hefty price tag. The average tuition and fees at private, nonprofit law schools in 2010 was $34,656 per year.  At public universities, in-state students paid $19,912 yearly on average in tuition and fees, and out-of-state students paid $32,247 per year. And unlike enrollments or degree completions, law school tuition is on a steady upward path. (see Figure 3)

It’s difficult to locate the cause of this steep rise in tuition. Though some have claimed that stringent accreditation requirements drive price, a 2009 GAO study showed that this assumption is incorrect. That report identified a few drivers of tuition based on [...]]]> This report by the Center for American Progress has some interesting statistics about law school debt:

The high demand for legal education is somewhat surprising given its hefty price tag. The average tuition and fees at private, nonprofit law schools in 2010 was $34,656 per year.  At public universities, in-state students paid $19,912 yearly on average in tuition and fees, and out-of-state students paid $32,247 per year. And unlike enrollments or degree completions, law school tuition is on a steady upward path. (see Figure 3)

It’s difficult to locate the cause of this steep rise in tuition. Though some have claimed that stringent accreditation requirements drive price, a 2009 GAO study showed that this assumption is incorrect. That report identified a few drivers of tuition based on interviews with law school officials, including a more hands-on approach to legal education that includes pricey clinical experiences and smaller class sizes.

Other changes to the legal education model may also drive tuition, including greater diversity of course offerings and increased academic support and career services for students, as well as higher faculty salaries, competition for higher rankings, and state disinvestment at public law schools. And of course, many of these changes are driven by increased competition among law schools, which in itself can be considered a driver of tuition.

Some other findings:

Law students have more debt on average than almost all other graduate students, excepting only medical students. And more law students borrow to pay for their education than all other graduate students. . . .

It’s difficult to get a complete picture of defaults at law schools, as the Department of Education collects and publishes default rates for institutions as a whole rather than by division or professional school. But since some law schools operate as standalone institutions, we can get some idea of how law grads fare. Of these standalone institutions, the average default rate is only 2.6 percent.

Below is a description of the panel, which will occur (as perhaps a [...]]]> I am glad to announce that the AALS Committee on Special Programs selected my proposal as a “Hot Topics” panel for the 2012 AALS Annual Meeting in Washington D.C. next month.  The program is called: “The Dictatorship of Law: The Khodorkovsky Case, Human Rights, and the Rule of Law in Russia.”  William Pomeranz, Deputy Director of the Kennan Institute for Advanced Russian Studies at the Woodrow Wilson International Center for Scholars, will chair a panel that includes Kim Lane Scheppele (the University of Pennsylvania and Princeton), Bruce Bean (Michigan State University), Christopher Bruner (Washington and Lee University), Alexei Trochev (Nazarbayev University) and me.  The program will begin at 10:30 on Friday morning, January 6. 

Below is a description of the panel, which will occur (as perhaps a “hot topic” should) between two central events on the Russian calendar: the surprising results of yesterday’s parliamentary elections in Russia and presidential elections scheduled for March 4 that (at least until yesterday) everyone was saying would be certain to return now Prime Minister Vladimir Putin to the presidency currently held by his protégé, Dmitrii Medvedev.

During his first campaign for President of Russia in February 2000, Vladimir Putin defined democracy as a “dictatorship of law.”  This was meant to signal a shift away from the perceived lawlessness of his immediate predecessor’s governance, and to feed the nostalgia for Soviet-era stability.  As Putin starts his gambit to return to the Russian presidency, this panel examines which half of that slogan will dominate the other.  Recent developments in the most well-known case in the courts of both Russia and the Council of Europe present an opportunity to do so at a pivotal moment not only in that case but for the future of the rule of law in Russia.

Mikhail Khodorkovsky was the CEO of the Yukos Oil Company and the richest man in Russia when in 2003 he and his business partner, Platon Lebedev, were arrested and charged with crimes connected to Yukos, Russia’s most profitable and well-known private corporation.  They were convicted of fraud, causing property damage by deceit or breach of trust, and tax evasion and sentenced to eight years in prison.  Yukos was seized and sold to state-controlled companies.  In December 2010, as their sentences drew to a close, Khodorkovsky and Lebedev were convicted by another court of embezzlement and money-laundering, charges arising out of the same time period and concerning the same corporate activities that were the basis for the first conviction.  On the eve of that verdict, Prime Minister Vladimir Putin informed a nationwide television audience that “a thief should sit in jail,” a reference to a well-known Soviet mini-series that would have been quite familiar to viewers (the quote continues: “… and people don’t care how I put him away.”).  In midsummer 2011, a Russian court upheld the verdict, extending the defendants’ sentences until 2016. 

A bit more on the tension this case embodies for Russian law and human rights after the break …

While Russian courts have repeatedly found against Yukos, Khodorkovsky, and his associates, the European Court of Human Rights has consistently found that their detention and trials worked numerous violations of the European Convention on Human Rights.  Four judgments have been handed down by the Strasbourg Court, all against Russia.  More are pending.  The most recent decision, handed down in late September 2011, held that some of Russia’s actions to seize control of Yukos violated the Convention.  The Court reserved the determination of damages to a later date, thus setting the stage for a confrontation that has the potential to sunder the already tense relationship between Russia and the Council of Europe.

In the shadow of the Russian presidential election scheduled for March, the panel will examine this tension and the mirror this case holds up to reflect the state of the rule of law in Russia.  Russian membership in the Council of Europe has often been a catalyst for legal reform.  European judgments concerning this most political of cases have unsettled an already rocky relationship.  Russian President Dmitrii Medvedev will shortly receive a report on this case from his Council on Civil Society and Human Rights.  The Russian Constitution grants him a pardon power.  What can, what should, what will he do?

In the same remarks in which he vowed to create a “dictatorship of law,” Putin asked “what then should be the relationship with the so-called oligarchs?  The same as with anyone else.  The same as with the owner of a small bakery or a shoe-repair shop.”  This panel will reflect on the impact of Khodorkovsky’s case on the rights of “anyone else” in Russia.

But if we measure education based on the income stream it will generate, the evidence is that it does correlate strongly with higher income.   A recent Gallup poll reveals statistics about the strong correlation between higher education and income:

More generally, college education is strongly correlated with household income. Nine percent of Americans [...]]]> There have been many attacks on higher education lately, some justified but some unjustified.  Some  are questioning whether higher education — both undergraduate and graduate education — is worth it.  Much of these discussions speak about the value of education almost exclusively in terms of the money stream it will produce.  Of course, there are many other values of education beyond this instrumentalist reason.   Knowledge is a good in and of itself.

But if we measure education based on the income stream it will generate, the evidence is that it does correlate strongly with higher income.   A recent Gallup poll reveals statistics about the strong correlation between higher education and income:

More generally, college education is strongly correlated with household income. Nine percent of Americans earning less than $20,000 per year are college graduates; this rises to majorities of adults in all income groups above $100,000. Similarly, few adults in low-income households have postgraduate education, and this rises only into the teens among middle-income adults. But it sharply increases among those earning $100,000 or more, peaking at 49% among those earning between $250,000 and $499,000, and those earning at least half a million.

The educational differences between the nation’s “1%” and “99%” exceed all other demographic as well as political differences seen between these groups in the Gallup data.

This chart summarizes some of the data in the poll:

“I’ve been asked to be part of an NAS working group that will develop a proposal on how science should figure in the training of lawyers. I’m going to put together a memo that outlines my own initial views and distribute it shortly before the first meeting (in mid January). Below is a condensed account of the points and themes that my memo will stress. But my ideas are provisional & formative; indeed, I share them to invite your reactions, which I expect to stimulate and educate my own thinking.

I welcome feedback not only on the substance but also on what to include in an annotated bibliography, the germ of which [...]]]> At the Cultural Cognition Blog, Dan Kahan introduces a new project:

“I’ve been asked to be part of an NAS working group that will develop a proposal on how science should figure in the training of lawyers. I’m going to put together a memo that outlines my own initial views and distribute it shortly before the first meeting (in mid January). Below is a condensed account of the points and themes that my memo will stress. But my ideas are provisional & formative; indeed, I share them to invite your reactions, which I expect to stimulate and educate my own thinking.

I welcome feedback not only on the substance but also on what to include in an annotated bibliography, the germ of which appears after the narrative section. The bibliography is not meant as a syllabus for a course; some of the items would no doubt be assigned in the sort of “forensic science literacy” course I am describing, but mainly I am trying to compile sources that help make the spirit & philosophy of such an offering more vivid for memo readers.”

The remainder of the post, which talks about the components of science training for lawyers, is both provocative (in the best sense) and illuminating.  I figured it’d be of interest to our readers, especially in light of the recent discussion on this blog regarding the relationship between legal scholarship, legal education, and the practice of law. (And in light of the responses in the HLR Forum to Dan’s forward, one of which claimed to hear in Dan’s work “the sounds of an earlier era, the era when Progressives believed that scientific expertise could be called upon to resolve normative questions that divided the nation …”)  In the blog post, Dan argues that the key task of law schools in here is to teach students to “recognize what constitutes sound forensic science and what doesn’t. A model course should instruct students in the general concepts and procedures that one must understand in order to perform this recognition task reliably, including principles of validity; elements of probability; and methods of inquiry (more on these below).”  This conception of scientific legal education is, I think, linked with Dan’s famous speech on the core role that judgment and recognition generally plays in legal education.

In any event, check it out and contribute to the project!

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 [...]]]>

In law school teaching, as in dance competitions, it's important to know when to spin on a dime.

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.

Notes:

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.

If you pair the basic message of Segal’s piece (“law students and professors aren’t doing enough to raise corporate profits”) with that of Ed Glaeser’s anti-retirement musings in the same pages (“work into your 90s”), the ideology starts to emerge. Labor economist Mark Price pithily suggested it:

Law schools couldn’t possibly teach the wide range of firm specific skills that law firms need . . . . And yet you have a writer [pushing] propaganda that the big law firms are tired [...]]]> Jason Mazzone has already addressed the main shortcomings of the latest N.Y. Times article by David Segal on law schools. I’d like to situate it as part of a neo-liberal ideology developing at the Times and other scriveners for the powerful.

If you pair the basic message of Segal’s piece (“law students and professors aren’t doing enough to raise corporate profits”) with that of Ed Glaeser’s anti-retirement musings in the same pages (“work into your 90s”), the ideology starts to emerge. Labor economist Mark Price pithily suggested it:

Law schools couldn’t possibly teach the wide range of firm specific skills that law firms need . . . . And yet you have a writer [pushing] propaganda that the big law firms are tired of paying for on the job training.

On the other hand it is at least comforting to know that law firms are not that different from firms in Manufacturing or Health Care[;] that is[,] they would prefer that somebody else pay for the skills that make them profitable.

This is a classic problem of uneven bargaining power familiar since the 1920s.* Why are wages falling while productivity is rising? Because firms realize they can fire current workers, shift their duties (unpaid) to frightened current employees, and reap the profits of having one person do the work of many. It’s another form of “shadow work” that contributes to the time bind so many Americans find themselves in. When 65% of economic gains go to the top 1% of the population, it’s not too hard to discern this dynamic.

Of course, a firm can only pile so many unbillable hours onto existing employees. So what’s the next step? Start calling beginning work an “unpaid internship.” Complain that “kids these days” don’t know a thing; they’re “zero marginal product” workers; they don’t deserve to be paid till they’re truly experienced. (At the end of a long line of traineeships, some may find themselves discarded as “too old” or “overqualified” for what is now defined as an “entry-level” position.) This is a wonderful strategy for cutting the budgets of corporate legal departments. But it only spells doom for attorneys caught up in the corporate games once reserved for blue collar labor.

The Political Roots of Rising Un- and Underemployment in the Legal Industry

Mazzone has complained that Segal doesn’t know enough about legal education. He’s also too narrowly focused on it. There is no question that, in many sectors, there are fewer positions for attorneys. Many journalists have attributed the decline to the creeping influence of “skill-biased technological change” and outsourcing: e-discovery can be done by computer or by the asymmetrically open Indian legal market. These trends do undermine some firm business models. But James K. Galbraith has already demonstrated the weaknesses of the “skill-biased technological change story” in many contexts. Moreover, the biggest driver of legal unemployment is political: the wholesale dismantling of tort, contract, and administrative remedies for corporate wrongdoing.

As I observed back in 2008, it would be shocking if an ideological movement to shut the courthouse doors to the injured failed to threaten lawyers’ livelihood. To build on that: maybe there are less jobs for finance lawyers because the Justice Department has systematically failed to prosecute egregious white-collar crime. A “tort reform” movement has made the price of violating the law a mere cost of doing business for thousands of companies. When banks can get away with robo-signing and foreclosure fraud, why should they hire attorneys to ensure that their paperwork is actually valid? Even an ostensible regulator, the OCC, isn’t bothering to launch a serious investigation in areas where deeply troubling practices have already been documented.

Corporate promotion of tort reform, deregulation, and arbitration has saved businesses many costs, including legal fees. But it has also increased the fragility of our food and drug supply chains, accelerated a financial crisis that has already cost the US trillions in lost output, and reduced opportunities for attorneys to fight to assure that business is conducted in a fair and societally beneficial way.

To ignore the political roots of the decline of both law and the rule of law in the US (and its obvious impact on attorney employment) is to fail to even begin a serious analysis of young lawyers’ problems. Segal acts as if corporate defense is the heart and soul of legal work. He never considers how legal education works to prompt legal challenges to corporate wrongdoing. No one will have a job defending corporations if there aren’t well-trained attorneys applying old law to new corporate wrongdoing. That takes creative thought, a chance to learn the policy behind law, and engagement with current industry trends. It’s not something to be drilled into people by projecting bar prep rote back into law school.

Law as a Cost

Throughout Segal’s article, another pair of assumptions creeps in. Law is presented as a cost, a series of niggling and none-too-important hoops to jump through to get down to the real business of mergers and deals. Law professors’ research is dismissed as pure self-indulgence, as we are once again treated to Justice Roberts’ witty dig at articles devoted to Kantian Bulgarian evidence law.

Segal never stops to ask: Why might a Justice like Roberts want to discredit the legal academy? Maybe it’s because, while colleagues of mine were trying to nip the housing crisis in the bud, a phalanx of deregulators on the Supreme Court came up with a politicized preemption decision that let the good times roll for America’s most predatory banks? Maybe it’s because law professors actually have the time to document how radically Roberts and his allies have diverged from precedent? Perhaps it’s because Roberts, after long years in corporate practice, sees law profs’ efforts to reinterpret old statutes and doctrines in light of new harms (a far larger part of legal scholarship than the high theory he laments) as one more nuisance for the clients who made him a rich and powerful man?

But we need not even engage with these politically sensitive questions. Rather, we might wonder: why does philosophy stand in for Segal as archetypical legal scholarship? When I first heard Justice Roberts lament the tragic dearth of practical articles, I marveled: has he ever taken a look at Sharona Hoffman’s or Nicolas Terry’s cutting edge work on digital medical records? This emerging field raises critical questions about the balance between privacy and innovation. We cannot permit our digital health infrastructure to be constructed solely according to the corporate interests of whatever vendors and providers happen to be most powerful at the time. We desperately need more work like Hoffman’s and Terry’s to guide us through the thicket of administrative and technical issues raised by electronic medical records.

I can think of figures as eminent and important-to-practitioners as Terry and Hoffman in five areas of health law and four areas of intellectual property law off the top of my head. (Ever heard of Pam Samuelson, Mr. Segal?) Yet Segal is apparently ready to write off the entirety of legal scholarship because someone, somewhere had the temerity to write about Kant.

I can understand why a writer at the New York Times might want to lash out at maladaptive institutions. Segal is daily subjected to his paper’s opinion pages, which peddle one irrelevant or stereotypical piece after another from their tenured moderates. (You learn more from Dean Baker’s critiques of them than from the articles themselves.) Thursday Styles reports on the 0.1%’s lifestyle intently, breathlessly tracking the price of Birkin bags as if it’s news the rest of us can use. The Gray Lady is becoming less the paper of record than a chronicler of the conventional wisdom and consumption of the wealthy.

What Next?

Law students, like many others today, face a grim job market almost without precedent. But I think proposals like Segal’s—making students start corporate-type work earlier and earlier—will only exacerbate the problem by providing an ever-larger pool of free labor for firms. We need a bigger picture view of an economy where professional and rentier incomes in general must deflate to match the diminished buying power of strapped lower and middle classes.

Debt is the critical financial issue of our age. Mortgage debt, student debt, credit card debt, medical debt, sovereign debt—–all are causing social upheaval. Debt often seems like a standalone menace, a black hole sucking money (and thus time and opportunity) from the indebted. But behind every mortgage statement is a servicer, distributing those funds to buyers of income streams. Debt is the shadow side of wealth, as Margaret Atwood memorably portrayed it. You don’t have to immerse yourself in the accounting equivalences of Modern Monetary Theory to figure this out.

Congress addressed two major sources of debt recently. The credit card provisions in the 2009 CARD Act and Dodd-Frank offered some weak disclosure provisions. Look at your statements, and you’ll see exactly how many years it will take you to pay off the balance if you stick to minimum payments. Basic consumer protections are in place, but there is not much substantive relief for debtors.

However, the ACA addressed medical bills much more comprehensively. I think its provisions can be a model for balancing obligations of the individual and society in other essential areas, like housing and education. In brief: for unemployed individuals (or those who are not offered affordable insurance by their employer), health insurance exchanges will offer various health plans. Thus the notorious “individual mandate:” these persons will need to get insurance or pay a fine. But the government will offer help, in two ways.

First, to help pay for the premium, advanceable tax credits will ensure that no one pays too much of their income for insurance. How much is too much? A family of four with earnings under $40,000 should not be paying more than around 6.3% of income for premiums; for those making around $85,000, the rate rises to 9.5%. (Here is a calculator with rough estimates of how much individuals and families need to pay at certain levels of income.) This is essentially an income-based payment scheme, for people making up to 4 times the federal poverty level. Moreover, “those with incomes below 250 percent of the poverty line will also receive cost-sharing assistance” on the other side of medical bills: the copays, coinsurances, and deductibles not covered by an insurance policy. The formula is complex, but the bottom line is that the federal government assists in paying these costs based on income, as well.

Income-based repayment schemes are a part of education financing now, though many have complained that they are not sensitive enough to other costs of living. Making income-based repayment more fair, and considering other legal changes in this area, are very important political issues. Housing policy should also be more open to income-based payment of mortgages, offering options ranging from “rights to rent” to direct principal modifications.

The key point here is that the owners of the income streams from student debts, mortgages, and other sources are playing a dangerous game if they think rights to payments are as sacrosanct, as, say, the AIG bonuses. They may think that they can continue to squeeze the indebted to pay 60 or 70% of their income each month for housing, insurance, and loan debts (and for the dubious right to claim as an asset something that will eventually be worth far less than what was paid for it if current debt deflation continues). But the larger economic implications are disastrous. Consider Steve Keen’s diagnosis, as related by George Monbiot. Keen believes that both the Great Depression and the current crisis “were triggered by a collapse in debt-financed demand:”

Aggregate demand in an economy like ours is composed of GDP plus the change in the level of debt. It is the sudden and extreme change in debt levels that makes demand so volatile and triggers recessions. The higher the level of private debt, relative to GDP, the more unstable the system becomes. . . . In the 1920s, private debt rose by 50%. Between 1999 and 2009, it rose by 140%. The debt-to-GDP ratio in the US is still much higher than it was when the Great Depression began.

We are in the midst of a great readjustment. For decades we’ve been told that our economic model, as persons, was to act like corporations do, accumulating assets and rights to payment. In fact, this “ownership society” was a mirage, providing great wealth to a few at the very top and precarity to the rest. There is no way to guarantee a secure future all on one’s own. Social structure, norms, and bargaining power matter.

Neither law students nor law schools can preserve their own future simply by better learning how to serve the corporate interests that would like to eliminate all profit-menacing regulation and tort claims. Economic security is an inevitably political question, which requires a coordinated political response—not one more effort to legitimize corporate wage-slashing with a simple story about “unskilled” workers. Before the Times treats us to another “what’s wrong with law schools” story, it might want to investigate the forces of deregulation and volatile financialization that kneecapped not only the legal job market, but employment prospects generally. No one needs another piece legitimizing the “young people don’t deserve to be paid” meme of the radical right, in the guise of snide snark about out-of-touch law professors.

*I’ve addressed these imbalances many times in posts on Law & Inequality. See, for instance, Power & Productivity After the Great Recession; Inequality and the Great Recession).

Image Credit: Kevin Drum.

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Junior Faculty Interdisciplinary Scholarship Workshop at Indiana University School of Law-Indianapolis

March 22-23, 2011

The workshop will explore “Objectivity in the Law” and is open to non-tenured academics whose research is interdisciplinary in nature.  The normative value of objectivity runs through the purpose for most law, though social practices influence how laws are implemented.  Submitted papers should focus on a chosen area of law and examine that law’s objective purpose and the relationship between its purpose and its actual implementation.

To ensure each presenter receives extensive feedback, only six papers will be selected for the workshop.  Senior scholars from Indiana University School of Law – Indianapolis and other law [...]]]> I’m pleased to make the following announcement about what we hope will become an annual event.

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Junior Faculty Interdisciplinary Scholarship Workshop at Indiana University School of Law-Indianapolis

March 22-23, 2011

The workshop will explore “Objectivity in the Law” and is open to non-tenured academics whose research is interdisciplinary in nature.  The normative value of objectivity runs through the purpose for most law, though social practices influence how laws are implemented.  Submitted papers should focus on a chosen area of law and examine that law’s objective purpose and the relationship between its purpose and its actual implementation.

To ensure each presenter receives extensive feedback, only six papers will be selected for the workshop.  Senior scholars from Indiana University School of Law – Indianapolis and other law schools will be paired with presenters and serve as primary or secondary commentators on the papers.  Presenters will receive a small honorarium and will be reimbursed for their travel and hotel expenses.  The Law School will provide lunch and dinner on Friday, as well as breakfast on Saturday.

Interested participants must submit a 500 word abstract to Professor Cynthia Adams at cmadams@iupui.edu before November 15. Presenters will be notified before December 15. If selected, a participant must submit a full copy of the paper before February 17, 2011.

The program is also open to other scholars wanting to attend, read, and comment on the papers but not present. There is no registration fee.

As an introduction, I think about transparency (and consumer decisions) as a problem of optimal and efficient disclosure.  Obviously, what schools disclose must be, at least, true.  But with notable exceptions, commentators don’t allege that law schools are literally lying about their statistics.  But they do point out – with some force – that omissions may make what’s disclosed literally accurate but misleading.  This [...]]]> A little while back, I argued that recent efforts to encourage law school “transparency” to benefit prospective students must fairly account for the costs that disclosure imposes on current students.  In light of the recent traction that disclosure regulation has gotten, I’m pleased that Kyle McEntee and Patrick J. Lynch, of Law School Transparency, agreed to respond to some questions about their project.

As an introduction, I think about transparency (and consumer decisions) as a problem of optimal and efficient disclosure.  Obviously, what schools disclose must be, at least, true.  But with notable exceptions, commentators don’t allege that law schools are literally lying about their statistics.  But they do point out – with some force – that omissions may make what’s disclosed literally accurate but misleading.  This is a very common problem in various areas of legal study — securities law, food and drug law, products liability, common law fraud, etc.  In some regimes, regulators have ordered particular items of disclosure; others are governed by ex post tort remedies; and still others are governed by the market alone.  Ordinarily, the choice between these disclosure regimes is guided by empirical data about what consumers want and how they behave.   Not so here.

Paul Campos says that law faculty should sign a petition that calls upon our regulator to “require all schools it has accredited to release clear, accurate, and reasonably comprehensive information regarding graduate employment.”  That is, he wants a highly specified, regulator-driven, disclosure policy.  What could possibly be wrong with that?  Well, for one, we know that Guilds generally act in the interests of incumbents – and the Bar is no exception – making it unlikely that any Bar-led regulatory solution will ultimately accrue to the benefit of students. As I’ve previously expressed, I believe in less, not more, ABA regulation. I think that asking the Bar to impose regulations – even “benign” ones on disclosure – is a dangerous game.

I am concerned as well that the petition makes no mention of cost to current students – opportunity and otherwise.  It should be obvious that disclosure will cost current students something — if only the time of the person collecting the statistics, which could have been spent in career services, or on the lights, or in buying pizza for student groups.  Now, the petition alludes to an LST white paper, which does talk about costs – but in a relatively cursory way at 30-31 -where it suggests, for instance, that disclosure’s costs could be funded out the ABA’s budget.

Because I don’t fully appreciate how well LST’s proposal will be implemented by schools, how much it will cost and who would bear those costs, and because I would like to have a better understanding of the problem before endorsing one solution, I won’t sign LST’s petition. But I’m sympathetic to the project.  I’d like law schools to provide more information about their graduates’ employment, in a way that could be easily compared across schools. I’ve talked with Temple’s office of career services about these kinds of concerns – and I think they’ve been tremendously receptive.

The interview reflecting on these topics follows, after the jump.  I thank Kyle and Patrick for their cooperation.  My questions and subsequent comments are in bold.  Everything else is their text: I didn’t edit their responses at all.

1. What’s the mission of LST? What are its main projects?

2. Do you regret going to law school? Why or why not?

3. Have you thought about the cost of the kind of transparency you think ought to be the norm?

4. Do law schools owe a different duty to potential students than do business schools, medical schools, dental schools, engineering schools, or plain vanilla PhD programs? If so, why? If not, have you looked at those entity’s data practices?

5. We often tell our students that a JD is a credential that strengthens marketability even for those students who don’t become lawyers. How can we best account for within-job career advancement in our statistics? For non-lawyer jobs that are satisfying? That is: not all non-law jobs are awful! How should we describe them?

6. Why haven’t your proposals been adopted by law schools? Why haven’t consumers actually demanded the kind of disclosures you’d like to see?

7. What is the most & least transparent law school with respect to job-outcome data? With respect to cost-tuition data?

8. Have you thought at all about how tuition and lawyer salaries might be affected by more openness about prices and outcomes?

9. What is one easy thing that law schools could do that would make the world better?

10. What is one hard thing that law schools could do that would make the world better?

11. Do you have any closing thoughts?

1. What’s the mission of LST? What are its main projects?

Law School Transparency is a Tennessee non-profit dedicated to encouraging and facilitating the transparent flow of consumer information. We are aiming to do more than just eliminate the provision of misleading information. We want prospectives to have the opportunity to make an informed decision to attend law school. Each project we’ve undertaken centers on this premise. Specifically, this means improving consumer information, increasing access to that information, and especially helping prospectives understand and use the available consumer information during their decision process.

The main problems with the current employment information can basically be boiled down to the current reporting standards, which count any job as employed. This is not inherently misleading and is to be expected when the common view is that a law degree opens up many doors. At the same time, tuition has risen and salaries and job opportunities at the top end have overshadowed the realities of what practicing law is like. Advertising materials put out by the law schools overemphasize these “top” jobs while declining to share information about the rest of a graduating class. What we have seen is really a combination of two distorted beliefs: the traditional belief that lawyering is a lucrative profession and the reasonable belief that jobs achieved post-law school are legal jobs. Law schools are also aware of these distortions, lending to an information asymmetry which schools have very few incentives to correct. In short, we have a recipe for trouble.

To draw attention to the information asymmetry, we first wrote and publicized a white paper outlining the problems with employment information, which also included our first proposal for what information schools should disclose. Shortly thereafter, we asked law schools to voluntarily provide LST employment data according to that proposal. We also began engaging the key ABA Section of Legal Education leaders, recognizing that the Section was the most efficient route for reform. The Section has since prioritized law school transparency, and the first changes to disclosure practices are around the corner. Unfortunately, these changes are severely lacking and it’s starting to look like the Section’s prioritization is merely a front. Our top project right now is making sure that real reforms move legal education in the right direction.

For the most part, the Section’s focus has been on not misleading prospective students. While a good start, we believe it is focusing on the wrong thing. The focus should be on enabling and facilitating informed decisions Schools and the Section owe it to both students and to the profession to do this, particularly as the decision to attend law school becomes more like a traditional investment. It’s terribly odd and disconcerting that somebody has more information available about $5 stocks than a $200,000+ education – more if we include opportunity costs. Information asymmetries are traditionally guarded against because consumers are often unsophisticated and lack substantial bargaining power. We have the same thing going on here with the law schools. The culturally embedded attitudes about the legal profession and legal education only exacerbate the need for regulation.

So the clear jumping off point is to start forcing law schools to share how many graduates obtained legal jobs, how many graduates are working full time, and how many graduates are receiving funding from their law schools to volunteer at various organizations. Even this small feat has proved to be a challenge despite the fact that it would require no changes to law schools’ collection procedures. Despite NALP’s honing of these definitions over the years, the Section of Legal Education recently decided that the definitions for FT/PT and various job credential categories (e.g. bar-passage required and J.D. preferred) are too imperfect to use this year. As such, the Section has determined that it will not collect these data for the Class of 2010. It plans to collect them for the Class of 2011, next year, but of course we are skeptical at this point that the collection will ever happen. After countless conversations with Section representatives and hundreds of hours invested by the Section, you’d think something as simple as requiring that law schools share what percentage of its graduates are actually lawyers would have come out of 18 months of press.

To be clear, the Section has not yet collected data for the Class of 2010, thus has ample opportunity to collect data about FT/PT jobs and job credentials. In our opinion there is no valid justification for the Section’s decision not to collect these data. The schools already have high quality data for these job characteristics, so it’s not placing an additional burden on their collection efforts. And it’s also not something that has previously been in dispute: a lot of different actors have been calling for this type of disclosure. Not requiring schools to report this data will allow them to continue propagating fundamentally misleading information. It shows that the Section is not taking its job seriously enough. This does not even begin to get into whether the Section is doing its job to help prospective students become informed consumers. We need to make sure the Section does not fall asleep at the wheel.

Our other main project is the data clearinghouse, which among other goals aims to expose some of the gaps in the reported data and provide more context to certain statistics, notably the median private sector salary information. This consumer guide has been growing and will continue to grow over the next year. One of the prelaw discussion boards where we first started discussing our ideas, www.top-law-schools.com, now sees a number of discussions where applicants utilize the data clearinghouse to explain the available employment information and caution other applicants against believing the employment information advertised by law schools. Our goal is to make the current data and information that’s being reported more accessible and better understood. This includes explaining the underlying substance of various information shared by the schools. We want to equip prospectives with the tools they need to adequately analyze information from any source, and at a more basic level to give them enough information so that they recognize the very large gaps in information that exist.

2. Do you regret going to law school? Why or why not?

No. To be clear, LST was not founded because we are disgruntled with our legal education or Vanderbilt’s career services. In fact, Vanderbilt’s transparent disclosure policy was the impetus behind our asking why other schools were not so open with their consumers. That said, as recent graduates, it‘s difficult to guess what we might believe in the future as we get further into our careers. Importantly, nobody involved in LST regrets going to law school right now. We aren’t opposed to working with people who hold that viewpoint (and we think a lot of people do), but it’s not our motivation. We are motivated by a massive problem affecting hundreds of thousands of people. Fortunately, most everybody has recognized the gravity of the problem, so now it’s just a matter of honing in on the real issues at play.

3. Have you thought about the cost of the kind of transparency you think ought to be the norm?

Certainly. There are many plausible costs to removing the information asymmetry that law schools currently enjoy. On a basic level, additional expenditures may be too expensive. This was the focus of our first white paper. We had this idea of improving transparency and we wanted to see whether it was feasible and how much additional time it would take. We began by having extensive talks with our own career services office, and since then have been engaging career services deans all over the country, especially at some of the smaller programs where budgets are tighter and you might have just one or two staffers trying to assist, track, and report about the entire graduating class. What we came up with originally, dubbed the LST Standard, was a new standard that would not require any additional collection efforts on the part of law schools in terms of tracking down graduates and getting the graduates to report data. Our latest proposal, the LST Proposal, has similar features.

However, there are other important costs to consider in pushing for greater disclosure. For one, maybe some law schools will shut down as a result of increased transparency because they cannot recruit enough qualified students. At the macro level this might limit how easily people can obtain legal services and achieve the successful administration of justice. It could also lead to perverse results where people need to travel further and accrue additional costs just to get the legal education required to sit for the bar exam in their home state. Another result may be that law schools will need to become more efficient and reduce costs to continue getting people to attend. As with schools shutting down, this means law school staff (including faculty members) may lose their jobs or see their job requirements shift to include less scholarship and more teaching, or less of both. Ideally, improved transparency would coincide with improving legal education to jive more with what the profession needs. Realistically this is going to be a slow process; more information is just the first step.
To answer the question more directly, these are all things we’ve been considering from the beginning. We struggled with the decision to start this project because we take our role very, very seriously. We have aimed to engage with people, rather than operate alone in Vanderbilt law library’s basement.

[I will interject that paying attention to smaller schools, or those with only one or two staffers assigned in career services to data collection, seems like a terrific idea.  The purpose of the career services office is to get student jobs, and time spent tracking down students (who often neglect to respond to emails) is time not spent performing that key function.  LST argued in their White Paper that tracking and finding are overlapping jobs: I agree, but I think LST downplays the degree to which tracking takes time.  So I'd urge LST to consider opportunity costs with more care.  Having talked with my own career services office, another very serious concern is the imposition of multiple, inconsistent, standards - which is the case with the ABA and NALP at the moment.  While the differences may be slight, the result is a duplication of effort.]

4. Do law schools owe a different duty to potential students than do business schools, medical schools, dental schools, engineering schools, or plain vanilla PhD programs? If so, why? If not, have you looked at those entity’s data practices?

All schools have the same duty to present information used to advertise their programs fairly and accurately. That part should be uncontroversial. The legal profession, however, faces a specific problem that other programs do not often face. The market for law degrees has been distorted by easy financing and a societal misperception of the legal profession. Every school understands that it can get away with raising tuition because the school-set “cost of attendance” becomes the upper limit on the federal loans a student at that school can receive each year. However, educational inflation, while worse at law schools than almost every other degree program, is not unique to law schools.

The differentiating culprit, so to speak, is the culturally embedded view that law school is a “magic ticket” to financial security. From television and fiction novels, to proud parents and encouraging friends, U.S. culture has conditioned a widespread belief that law school is a solid decision. This belief persists even as the legal market sinks and law school graduates are vocal about their struggle to find jobs and fulfill loan obligations. These distortions undermine reasoned analysis by prospective law students, and all solutions aiming to improve decision-making need to take these distortions into consideration.

In keeping with the mission of our nonprofit we only look at the accreditation requirements for people wishing to enter the legal profession, but we are aware of problems facing other professions. Masters in financial engineering programs are a good example of an area where improving accreditation methods might help protect applicants to those programs (and movement is afoot there).

5. We often tell our students that a JD is a credential that strengthens marketability even for those students who don’t become lawyers. How can we best account for within-job career advancement in our statistics? For non-lawyer jobs that are satisfying? That is: not all non-law jobs are awful! How should we describe them?

Schools certainly do a good job at portraying the benefits of their degree programs; all we’re asking is that they portray the outcomes without first screening out what they consider to be undesirable outcomes. The best option (albeit costly) would be to actually monitor graduates who pursue nontraditional career paths. Conduct and report (in a responsible manner) satisfaction surveys; have graduates tell their story and explain why attending the law school was the best thing they’ve ever done. Provide prospective students with narratives of every graduate, not just the ones ending up at top law firms or government agencies. Some law schools track graduates five and ten years out to monitor career satisfaction, something that absolutely can’t be shown when you look only at what people are doing for work nine months after graduation.

The concern is that schools will use this to justify poor outcomes right after graduation. This could become the next method of misleading prospectives. Promises of glory down the road, after paying your debts to the profession (and creditors) are likely an easy sell. But will it be representative?

6. Why haven’t your proposals been adopted by law schools? Why haven’t consumers actually demanded the kind of disclosures you’d like to see?

First, most admissions officers can tell you that consumers haven’t historically demanded these disclosures because they believe the information in front of them. There are applicants who genuinely believe that U.S. News is a proxy for employment outcomes, and that a higher U.S. News rank translates into better opportunities. So it’s no surprise given what we know about applicants that they haven’t been adamant about demanding better information. Many wouldn’t even know what questions to ask.

Prior to establishing LST and inserting our arguments into the discussion at the regulatory level, we worked with individual applicants on prelaw discussion boards. We encouraged accepted students deciding between two law schools to utilize any leverage they had to obtain better information. We recommended that people contact the schools that accepted them and ask the schools to release a list of all employers, similar to what Vanderbilt releases. But the applicants who actually did contact schools were mostly unsuccessful in getting responses. We feel that the individual requests have not been successful because there is no collective bargaining power. Prospectives also don’t believe they have bargaining power. Still, some law schools have improved information on their websites over the past year. This has been a welcomed change to us and, more importantly, prospective law students.

(One particular success story involves the University of New Hampshire (formerly Franklin Pierce), where an applicant contacted the incoming career services dean this past cycle and received a very comprehensive list of employers, as well as a separate list of all the reported salaries. The applicant then made it publicly available for other prospectives. So far this is an anomaly.)

LST has tried to be the voice prospectives need, but as you’ve seen we have not had the success with law schools. Our initial request to report under the LST standard was largely met with silence from the schools. Many administrators were communicating with each other about our request, but it appears that the general consensus was that it was better to ignore us than to engage in discussion. Keep in mind we weren’t actually expecting schools to sign on to the new standard; our goals were modest in that we wanted to spark discussion at law schools and in the profession.

Ultimately, we didn’t offer schools a strong enough incentive to participate. We later discovered that numerous administrators wanted to respond but were unwilling to put their school in the spotlight (classic first-mover problem). A few schools did respond, allowing us to document some of the justifications for refusing to disclose information. Those justifications have since been used to strengthen the case for more regulatory oversight, so in that respect the initial request was a success.

[For what it is worth, I believe this paragraph to a bit incomplete.  I think perhaps there were some other factors at work, including the way that the requests were presented to administrators.]

7. What is the most & least transparent law school with respect to job-outcome data? With respect to cost-tuition data?

While we have documented the data available on the websites of every ABA-approved law school, we can’t say with certainty which schools are the absolute most and least transparent. No school has come out and reported data in a manner that truly informs applicants. That said, Vanderbilt has been extremely good about continuing to release employer lists over the last few years. What’s remarkable is they’ve continued disclosing the employer lists even as the entry-level hiring market has greatly worsened.

This year, we’ve documented many instances where schools have improved their disclosure practices in response to public pressure. U.C. Hastings is a good example. For the Class of 2009, Hastings released an employer list similar in structure to Vanderbilt’s lists, although it still left out almost half of all employers. (The school has yet to release a 2010 list from what we’ve seen.) Its disclosure is a great step in the right direction, although it does exemplify why the ABA’s Ugly Table Fetish can be burdensome on the reader.

8. Have you thought at all about how tuition and lawyer salaries might be affected by more openness about prices and outcomes?

We covered tuition above. As for lawyer salaries, we doubt it will have much effect, if any at all, unless specific salaries of individuals at particular employers become public record that were not already public. We expect that competitor firms already know what their peers pay.

[But, of course, the ABA got into serious trouble years ago when it collected and publicized faculty salary information for this precise reason.  And it's not just salary - it's offer timing, type of work, length of job. It might be useful, as I wrote above, to look at comparison industries and see what effect publicizing salary data had on employment.]

9. What is one easy thing that law schools could do that would make the world better?

Disclose the employment data that they already diligently collect every year.

10.What is one hard thing that law schools could do that would make the world better?

Reimagine legal education.

11. Do you have any closing thoughts?

Overall, there’s a lot of talk, but things may actually be heading in the wrong direction. Now more than ever it’s important for faculty to consider the problems surrounding employment data and actively engage in forcing law schools to break the information asymmetry that, in our opinion, is holding the profession back. One way to do this is to sign the “Law School Transparency Petition” circulated by Professor Paul Campos. We have signed this petition and hope your readers will too. You can read about this petition from LST’s perspective here.

[I wonder what LST means by "heading in the wrong direction."  Also, I think that LST might want to reflect a bit more on the assumption that "law schools" can be treated in an aggregate way - both between and within institutions. Regardless, thanks to them for taking the time to respond in such a thoughtful and complete way.]

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language [...]]]>

Paul Campos thinks I am cemented to the wall of Yale Law School by the blood of a thousand students, murdered by rapacious professors.

Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society?  That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases.  Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication.  The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices  resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters.  As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:

“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”

Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse.  Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism.  Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard.  Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers.  Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work.  As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial.  But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.

I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it.  But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.

Indeed, Paul Campos believes that the way he’s spoken about law school economics is responsible for the negative reaction his colleagues (at Colorado and nationally).

“One thing that has displeased a number of my colleagues throughout the legal academy is what they consider the excessively shrill tone of some of my posts, which have lacked that delicacy and circumspection that marks a well-bred gentleman’s discourse, whenever he engages in the unpleasant task of suggesting that all might not be for the best in this the best of all possible worlds.  Another thing that has annoyed them is that everything I’m saying is either old hat and already perfectly well understood, or obviously false. The former category includes assertions regarding the rampant dishonesty of placement statistics, the disastrous job market for graduates, the skyrocketing cost of legal education, and the enormous debt load for our students those costs engender, as well as the apparently unsustainable nature of the current business model under which many schools are operating.”

This post was catnip for many bloggers and commentators.  Many of the commentators are students – they say, although being anonymous, they might be spambots, or slumming volokh conspirators, for all I know.   It’s also pointing out that the best available evident makes these unsatisfied customers out to be exceptions to the norm. Then there’s a set of bloggers – exemplified by Scott Greenfield – who are almost all 1) older, 2) white, 3) men, running 4) PI or criminal law practices.  Many have sought positions as law professors, but haven’t obtained tenure-track jobs.  Others, like Scott, appear to be happy in practice.  For these machoblawgers, law professors’ language in response to the “crisis in legal education” exemplifies the problem with law schools:  it is pretentious and elitist (“sherry sipping”); it is feminine and effete (“dulcet tones”, “vapors” and “delicate” law professors versus “brutish” talking “like a lawyer”); and it is (3) incomprehensible (“long words strung together in seemingly random ways”).  Note how Campos and Greenfield have come to the identical criticism, though from quite different premises.  Law professors are eggheads, protected from brutish reality by their high walls.  If only “they” understood how the world really worked.  If only they confronted it with more forceful, manly, speech.

Now all this has deep roots in the robust American tradition of anti-intellectualism (mixed with a bit of insecurity by Campos, I think, who has as much as admitted that he doesn’t do anything to merit his salary).  But in it, we can see exactly how clever bloggers deploy really strong arguments without considering the other side, saying that this is what it means to “talk like a lawyer.”  Greenfield is surely well-positioned to tell us how lawyers in his community (the criminal defense bar) talk.  So, although the lawyers I know and practiced with sounded nothing like him, there’s truth to the accusation.  The question is: does talking and arguing with less nuance make you a better lawyer, and, if so, is “better” lawyering compatible with better law?

Compare Greenfield and Campos with Paul Horwitz’s most recent posts. Paul demonstrates lots of modesty and attention to alternative views, and he describes the genuine difficulties we encounter when we think about a really hard problem. He does so without minimizing the pain that law students without jobs feel (i.e., the “feminine” virtue of empathy), or neglecting historical context.  Even if you disagree with him, I think his writing is more persuasive for nonpartisans than Campos’s accusations of a scam, or than the anonymous commentators that appeared on Prof. Horwitz’s post.  Well, you tell me.  Do these comments persuade you that their authors much of anything?  That they’d be wise counselors worth hiring when legal judgment is called for?

• “And this is why professors are the problem, they will lie, cheat and steal to keep their gravy train going. “
• “Yes, law schools have conquered the social divide, by taking middle and lower middle class students and turning them into impoverished citizens by way of a fortune in student loan debt.”

Perhaps the posters realize this — they are writing simply to express outrage and to rally the troops (like Scalia in Plata).  But I think others don’t understand how they sound to those that disagree with them: they sincerely believe that the best way to persuade is to make an argument a second time.  LOUDER.  WITH MORE @#$ TALKING ABOUT FRAUD!!  If that’s the case, I think that law school is at fault.  We ought to have spent more time talking about psychology, sociology, and rhetoric — helping students to understand how to frame arguments in ways that unfriendly listeners will find persuasive.  We ought to have emphasized the (at least!) instrumental importance of acting like a professional.  And, of course, we ought to’ve spent less time with casebooks and opinions, which simply provide more examples of bad, overmuscular, writing, and bad, overaggressive, lawyering.

What is to be done?  On the  merits, it is crucial to look past this recession. Even when the economy recovers, changes in the legal employment market will make it difficult for certain graduates of certain law schools to recoup their tuition.  Not all law schools.  And not all law graduates.  (Here, the fact that law schools usually serve local legal markets, which are really diverse in outlook, is insufficiently appreciated).  What should affected law schools do?  Let’s consider a few commonly argued paths, ignoring for the purposes of the argument collective action problems and the reality that law schools are controlled by central universities:

• Admit fewer law students.  The purported advantage is well-expressed by the AALS back in 1938: higher rents for existing lawyers.  But the tradeoff is equally obvious: the price for legal services goes up.  Or to put it differently, commentators ought to admit that improving the job market for law school graduates probably results in a tax on the public consuming their services, especially those near poverty.  Where’s the distributional equity in that exchange?
• Make school shorter, and move back to an apprenticeship model.  (Notably, this proposal one runs smack into our ABA overlords.)  This may reduce the price for law school in the near term, but how will lawyers select apprentices?  Might they find students who look/act like them?  To the extent that we think that the current bar isn’t as diverse (economically, especially, but also in terms of gender/race) as we’d like it to be, how will giving lawyers even more power to gatekeep improve matters?  Moreover, is there any evidence that the apprentice system produced better lawyering?
• What if schools admit the same number of students but reduced real (post scholarship) tuition.  To do so, commentators suggest that professors should take a pay cut, or that they should teach more and write less (that is, we ought to hire fewer tenured law professors).  Here, again, we run up against the innovation-choking ABA regime, and the problem of monitoring and motivating unhappy professionals that has so bedeviled law firms.  But even if that path is blocked, schools have options.  They could demand more in gifts from their alumni.  A terrific solution – though this means that the current bar subsidizes new entrants, which isn’t totally attactive.  Or, schools can admit only richer students.  Another distributional mess.  Or, schools can battle with central administrations to take a smaller tax, meaning that (essentially) money is being transferred from university undergrads to law students.  Who has the better of that equitable claim?
• A preferred solution for many commentators is based on a combination of faith in free markets plus transparency.  For some of the reasons Ribstein lays out, I think this the returns on transparency will be disappointing, though the solution isn’t worthless and is certainly politically expedient.   That said, transparency of the kind that commentators want will produce real and opportunity costs, and that has to come from tuition.  So, law schools will tax current students to subsidize the decisions of future students. Better information may, mildly, change matriculation decisions. But continued use by irate commentators of USNews Tier designations (and professors too!) doesn’t particular comfort me that better data will matter to anyone.  People love stupid proxies!  Tier 2 profs rule!
• And What about the inevitable restructing the legal employment market?   Well, of course it isn’t likely that the end result will be more of the kinds of secure jobs that students used to have.*  Will unemployed students feel better if they walk into a bad market with their eyes open? I tend to think not: they will still feel cheated, just in the way that Americans generally feel betrayed by their institutions and the lost promise of the American dream.

In short: the problem is really very hard, and the sooner that we acknowledge that there isn’t a solution that’ll satisfy all the important stakeholders the better. And by important stakeholders, I mean lawyers, current students, and prospective students. The satisfaction of professors is essentially irrelevant.  But, believe me, we’re screwed too.  But that’s a problem for a different post.

Now, put aside these merits, and focus on communication about the problem.  Let’s say you wanted to talk about this set of problems, and you were aware that your worldviews were shaping your understanding of law schools – your views toward egalitarianism, for instance, were making you distrustful of market solutions, or your penchant toward individualism made you believe that transparency was the whole of the solution.  How can you best come to understand the views of those who don’t think like you, and, best of all, to persuade them?

Social psychologists have thought about this problem. Here are some resources.  To summarize: Stuart Smiley beats macho rhetoric, hands down.

**p.s.:  Christine Hurt, one of my favorite people, really has a bunch of zingers in that linked post.  Here’s the best part:

“Finally, I have the best job in the world.  But not for the reasons ALP thinks it’s the best job.  Yes, it is a job where no one can see you shirk and even if they did, they couldn’t fire you.  Whatever.  Being a mom is just like that, and I’m the best mom in the world.  Law teaching is the best job because I get paid to do what I love.  That’s the big secret.  I love the law, and I love learning about it and telling students about it.  I love writing about it.  Does it bother me that other people (not at my institution) are lucky enough to have this job and don’t take advantage of it and give it 100%?  A little …  If you don’t love law teaching, then you may be a scammer.  However, I think most appointments committees can smell these scammers a mile away.”

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – [...]]]>

This guy has seen the same debate so many times it broke his back

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – just look at the continuing number of lemmings pounding at the gate!”, or “of course our scholarship is consequential, let’s count the citations”; or, “no one ever promised that a JD was a job guarantee!”; or, “what’s their BATLS?” [The last is a truly obscure negotiation joke if there ever was one.]

For reporters, it feels like the scene in the Wire when they are talking about what to cover in the coming year. Sure, you could talk about complexity and globalization and economic markets and the changing nature of legal practice.  Or you might talk about the relationship between ABA regulation, thoughtless paternalism, and resulting distributional inequalities in education.  But that’s a set of sprawling stories – lacking an obvious villain to muckrake.  Rather, then, the news blames the dickensian aspect of law schools.  Reporters write articles that stir the pot, but aren’t recognizable to insiders, making them less likely to actually motivate change.

Last, not least, the practicing lawyers often articulate resentment toward ivory tower academics who ignore the realities of “trench lawyering”. (This happens even when the “academics” in question are actually practicing lawyers.)  Basically: impractical law professors versus practical lawyers.

Why does this “debate” feel so tired?  I have a partial hypothesis: because we ignore history. I had a great research assistant, Alex Radus, collect quotes about the ferment about legal education in the 1930s-1940s.  (Which is highlighted in Prosser’s famous 1948 speech to Temple’s law faculty, Lighthouse No Good.“)  After the jump, you’ll see some fantastic quotes from that era and before, which remind us that “what has been will be again / what has been done will be done again /there is nothing new under the sun.”

Starting pretty early, Blackstone wrote in his Commentaries that there are

“some who warmly recommend dropping all liberal education as of no use to students in the law; and placing them, in its stead, at the desk of some skilled attorney in order to initiate them early in all the depths of practice and render them more dextrous in the mechanical part of the business . . . . If practice be the whole he is taught, practice must be the whole he will ever know; if he be uninstructed in the elements and principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him . . . “

By contrast (and leading the charge) there was Jerome Frank [Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932)]

“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession  …

[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”

What is to be done?  Harold D. Lasswell & Myres S. McDougal summarized the possibilities: [Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]

“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”

Shucks, adapting law school was all they talked about!  [Roscoe B. Turner, Changing Objectives in Legal Education, 40 Yale L. J. 576, 576 (1931)]

“It may be said without much question that there is more activity in the law school world today than there has been at any time within the last generation or two. Things are in a state of flux—the culmination of a long period of suggestion and counter-suggestion with little change. The addition of new courses to the curriculum, the general re-arrangement of existing courses to admit various types of non-legal materials, new approaches in legal thought, new ideas concerning teaching methods, the advent of fact research, and a dawning awareness of the existence of other social sciences than law, all testify to a rapidly changing world.”

But maybe there was no problem at all. [Sidney Post, Continuing Education of the Bar, 59 Harv. L. Rev. 694, 695 (1946]

“The law schools need offer no apologies for not preparing men for immediate practice … They have their own job, and should concentrate on doing it better. Academic instruction by professional teachers is the best method yet found for imparting certain kinds of knowledge.“

Or maybe there was: [Elliott E. Cheatham, Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947)]

“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”

Finally, of course in the 1930s the job situation for graduates was pretty grim.  [Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938)]

 “At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . . Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court.  . . .  Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.

The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “

The Texas Bar put it starkly, and blamed law schools for pumping out graduates [Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).]:

 “We your committee on Legal Education beg leave to submit the following report:

We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…

Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …

There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.

“Such are the standards, or the lack of standards, for admission to the bar of Texas. 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. And they are coming. ”

You gotta love those Texas lawyers!

So you’re going to law school this fall.  Congratulations!  Getting in wasn’t easy. Last year 155,000 people took the LSAT. The 201 ABA accredited law schools across the country received about 88,000 applications.  Only 49,700 students matriculated.

Obviously you’re a hard worker (or you wouldn’t be coming to law school and you wouldn’t have read past the first paragraph), so you may be wondering what you can do the summer before to prepare yourself for law school.

First, let’s get the legal disclaimers out of the way.  There are no guarantees, warranties, or promises of any kind; [...]]]> Concurring Opinions is pleased to welcome this guest post by University of Missouri – Kansas City Profs. Nancy Levit and Douglas O. Linder, co-authors of the recent book “The Happy Lawyer.”

So you’re going to law school this fall.  Congratulations!  Getting in wasn’t easy. Last year 155,000 people took the LSAT. The 201 ABA accredited law schools across the country received about 88,000 applications.  Only 49,700 students matriculated.

Obviously you’re a hard worker (or you wouldn’t be coming to law school and you wouldn’t have read past the first paragraph), so you may be wondering what you can do the summer before to prepare yourself for law school.

First, let’s get the legal disclaimers out of the way.  There are no guarantees, warranties, or promises of any kind; there is no magic bullet for preparation.  There are, however, a few tips toward a happier and more productive beginning that we will offer you.

1. Get Situated

More than one-third of you will be going to law school in some place other than your home or college town. It is important to have housing set up so you can move in at least several weeks in advance.  Find the stores you’ll need, arrange your banking, stock up on supplies and grocery staples. Students struggle when they land suddenly in a new town and promptly start law school. Law school requires more focus than other forms of education. It starts immediately, and is difficult at first because students may be called on to speak in class or have writing assignments due.  If you get behind in the first few foundational weeks, it will take a lot of work to catch up later.  In undergraduate lectures, you were free to fall asleep perusing Facebook.  Not anymore.

A colleague of ours, Dean Barbara Glesner Fines, has posted her wonderful Orientation speech online, emphasizing that there are better and worse times to begin law school, and the worst time to start law school is at the same time that you start (or end) a marriage, or have a new baby, or are newly diagnosed with a chronic illness. In other words, any time you’re facing significant personal challenges.  Arrange for your law school computer or any upgrade at the beginning of the summer, so you have plenty of time to become familiar with it. In short, get the distractions out of the way.

Related to the issue of getting situated is the idea of establishing residency for both bar and tuition purposes, depending on your state’s and your school’s rules. Top-Law-Schools.com has posted a guide to “Law School Residency Issues by State,” covering 23 states.

2.  Mental Preparation

Two of the major law school stressors are a fear of failure and fear of the unknown. We’ll tackle fear of failure first, since it’s the one most often voiced by students. Nationwide, very few students are dismissed for academic deficiency. Professor Michael Olivas, who specializes in higher education law, says “In most law schools, only a small number of students fail because of poor academic performance.”  It is not like the Kingsfieldian sort of imprecation, “Look to your left, look to your right, one of you won’t be here next year.” (In fact, at our law school, we say, “Look to your left, look to your right . . . you are looking at people who will be friends and professional colleagues for the next thirty years if you treat them right.”)

When students “fear failure,” often what they actually fear is not succeeding in ways to which they are accustomed.  Many students define failure as not receiving grades in the top10 percent. That means they fear something that will affect 90 percent of the class. Our suggestions are to address this conundrum head on by preparing to approach law school with a specific set of attitudes.

Come to law school to learn about the law and your “fit” with a career in the law.  To be successful in law school, you must adopt a positive attitude about competition.   There are many paths in the law, so you don’t have to view your fellow law students as racing down the same track as you, with only one of you being able to take home the prize. So focus on your own goals, values, and learning, not on getting better grades than everybody else.   An interesting set of studies about learning in law school shows that students who concentrate on learning objectives (“Can I explain the concept of res ipsa loquitur to my tenth grade nephew?”) actually performed better on exams than students who fretted over grades (“I wonder if I’m studying hard enough to get a B?”).

We aren’t telling you that grades are unimportant.  They are important in many ways—for clerking and law review opportunities, as well as job prospects. We are suggesting that you not let either your happiness or your attitude toward law school be defined by your grades. Don’t step onto the institutional glide path, where you unquestioningly decide that you have to have top grades so that you can work at a large law firm. Think instead about your values, your strengths, your interests, and how you can build on these in law school.

Prepare to support and nurture the people around you.  People who socialize “a reasonable amount”[1] are happier and better grounded as law students. Avoid competitive impulses and negative people.  Will you have a Debby Downer in your law school class?    Sure you will.  These people gleefully find the negative in any situation . . . and they infect you.   Disgruntled law students (and law professors) can spread their unhappiness like cold germs. But you’ll also have many bubbly and upbeat fellow travelers too. Hang out with them. Studies in organizational behavior show that their positive moods will transfer between people and spread throughout a group.

Learn to make downward comparisons.  An important study in the happiness literature  has to do with Olympic athletes.  It showed that the bronze medalists are almost uniformly happier than the silver medalists.  Silver medalists looked upward (“Just a fraction of a second better and I would have had the gold.”), while bronze medalists look downward at all the other athletes who didn’t even make it onto the medal stand.  It’s an attitude you can adopt in numerous ways. Do just a little pro bono work, law-related or not—for instance, do volunteer income tax preparation, stock the shelves at a food pantry, pitch in on a weekend project to rehab a low-income house.  Or in your fifth week of law school look back at your first week of law school self and see how far you have come.

Uncertainty about what law school will be like also scares people.  On one hand, nothing can really prepare you except just doing it.  On the other hand, you can read up about law school.  Scott Turow’s One L is a classic. It’s a well-written snapshot of what law school was like at Harvard back in the 1970s. Everyone’s experiences are different, so you’re likely to find law school much different in many ways, but some things remain relatively unchanged, and it’s a very interesting read. A former colleague of ours, Corinne Cooper, wrote an article, Letter to a Young Law Student, as essentially “an anthropologist, reciting my findings on a tribe I’ve observed for many years, of which I was once a member, but whom I no longer fully live among.”

One of the best books about law school is Professor Andrew McClurg’s 1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School.  This fun-to-read book is by an award-winning professor who writes about the best habits to develop, and offers strategies for note-taking, studying and test-taking. Our book, The Happy Lawyer: Making a Good Life in the Law, discusses what to expect emotionally in your first year of law school, how to avoid debt-driven career choices or getting sucked into believing that only top grades matter, and how to chart a path toward a fulfilling legal career.

Some folks prescribe a specific set of reading materials (the U.S. Constitution, Eats, Shoots & Leaves by Lynne Truss for grammatical touch-ups, or Karl Llewellyn’s The Bramble Bush, or just reading some legal appellate decisions to understand the terminology and cadence), and various law schools offer summer reading lists: Boston College, the University of Connecticut, New York University, and Syracuse University.

We generally think reading—lots of reading—is a good thing. When we say reading, we mean reading, not studying.  There are always some students who think they should start getting a jump start on actually learning law, so they’re reading hornbooks or outlines.  We think you would be better off just reading a high volume of material in a more casual, recreational way.  You still might learn something, of course, but it’s more in a general background sort of way rather than specifically trying to pre-study for your courses.

3.   Summertime

You may hear that you need to have a legal job the summer before law school.  We disagree.  If you already have the opportunity to work in a law firm or government agency, that is great. Go for it. But a pre-law school summer legal job isn’t necessary.  Professor Alan Childress offers the advice to work hard (in a non-law job) and perhaps to travel, so that you will be ready to settle down to law school.  Students posting on the “Wish I Would Have Known” blog echo his advice: “take a pottery class or travel someplace awesome or read some great non-fiction. It’ll give you at least as much to talk about in an interview than working as a glorified file clerk somewhere.”

You can also learn more about the law school that you’ll be attending.  You may think you read enough about your law school during the application process.  Drill deeper now. Take some hours to play around on your law school’s web site.  If you explore, you’ll see things you haven’t noticed before—an interesting fall lecture on class actions, an Association of Women Law Students pancake breakfast planned, or a professor’s bio that shows he shares your passion for kayaking.

You can find people who share your interests. Many law schools have student emissaries and almost all have a coordinator of student services.  Especially if you’re attending law school in a new state, consider calling or emailing your school and ask to be put in contact with representatives from unofficial groups, like a curling club or a running group.  Do seek the advice of mentors.  You’ll probably find a very supportive community ready to embrace you and offer guidance.  It’s like one of the last lines in the book that sparked an interest in law for many of us, To Kill a Mockingbird, when Atticus confirms Scout’s discovery that “[m]ost people are” essentially kind and helpful “when you finally see them.”

Speaking of which, do re-read To Kill a Mockingbird. Reading this classic before law school is analogous to playing “We Will Rock You” before a sporting event.

Jean M. Twenge, Generation Me Why Today’s Young Americans Are More Confident, Assertive, Entitled – and More Miserable Than Ever Before (Free Press 2006).

As any good lawyer knows, successful communication depends on knowing your audience.  Are today’s law students really more demanding than ever, or are professors becoming part of the old get-off-my-lawn mind set?  Are we sending law firms self-absorbed graduates who refuse to sacrifice a social life for a career, or are law firms hiring graduates who are simply more confident in vocalizing the need for a work-life balance?  Many of the answers to these types of questions may be found by understanding the character of our students. Jean Twenge’s [...]]]> Jean M. Twenge & W. Keith Campbell, The Narcissism Epidemic (Free Press 2010).

Jean M. Twenge, Generation Me Why Today’s Young Americans Are More Confident, Assertive, Entitled – and More Miserable Than Ever Before (Free Press 2006).

As any good lawyer knows, successful communication depends on knowing your audience.  Are today’s law students really more demanding than ever, or are professors becoming part of the old get-off-my-lawn mind set?  Are we sending law firms self-absorbed graduates who refuse to sacrifice a social life for a career, or are law firms hiring graduates who are simply more confident in vocalizing the need for a work-life balance?  Many of the answers to these types of questions may be found by understanding the character of our students. Jean Twenge’s book, Generation Me (Free Press 2006) and the follow-up book with co-author W. Keith Campbell, The Narcissism Epidemic (Free Press 2010) examine the dominate age group of our students – twentysomethings.  While the books are not about the character of law students per se, Generation Me is specifically about the character of those who make up a majority of our classrooms.  As a disclaimer, I note that I too am(barely) a member of the group Twenge researches and names “GenMe.”  As a member, reading Generation Me did more than educate me on my students’ influences and attitudes.  It also revealed much about the forces that were likely influences on my personal and professional decisions.

Generation Me is a thoroughly researched book, full of statistical information that tells us what we already know about our students and so much more.  It gives insight into the beliefs, biases, and behavior of its subjects and is therefore worth reading for anyone who deals with members of GenMe.  One of the observations Twenge highlights is that informality in school and the workplace is the new norm.  This finding is backed by studies and illustrated through anecdotes – like the Northwestern University women’s lacrosse team wearing flip-flops to the White House (p. 17-18).  This is not to say that you have to allow baseball caps in your classroom, but it does give a reference point to professors who encounter students who are surprised when baseball caps are not allowed.  Many more findings provide relevant context for our student population.  Cheating in school is on the rise (p. 27), as is the use of shocking language (p. 40), and grade inflation (p. 62).  In decline is the use of titles, calling a boss “Linda,” for instance, rather than “Mrs. Smith” (p. 29) and the belief that there is one right way to do things (p. 26).  This last finding may explain why there is resistance when teaching students to “think like a lawyer.”

Generation Me makes wide brush strokes about its members but backs its findings with research.  Much of the book’s allure comes from these detailed statistical findings.  It does not provide a light cultural observation – there is no “kids these days” aspect to it.  Rather, Generation Me outlines specific data that walks the reader through thirty years of cultural changes and how those changes affected people who grew up in this timeframe.  Particularly enlightening to educators is Twenge’s demonstration of the affect of the self-esteem curriculum (p. 53).  Self-esteem, once an “obscure academic term,” has not produced its desired outcome.  Teaching self-esteem, the theory went, would increase student performance.  Actually teaching self-esteem, however, has not produced increased ability, only increased self-esteem.  Data collected from students born in the 1980s shows a sharp uptick in self-esteem.  The average kid in the 90s, smack in the middle of GenMe, had higher self esteem than 73% of kids in 1979 (p. 53).  This increase in self-esteem is attributed to self-esteem curriculum and cultural messages that tell students they are, regardless of their actions, lovable, great, and important (pp.53-60).  The message was inundated into the culture in the 90s and as a result, we have young adults who were raised to find value in themselves rather than in what they provide.  The statistics show that these students tend to find value in their performance simply because they provided it and not because the performance itself has intrinsic worth (pp. 62-65).  GenMe received a message that feeling good about yourself is more important than good performance (pp. 56-57).

The finding that blind encouragement of self-esteem is harmful to students is supported throughout the book with data and comparisons.  One comparison comes from a cross cultural study which found that Asian students have lower self-esteem than Americans but when Asian students learn they scored poorly on a task, they desire to continue working on that task until their score improves.  American students preferred to give up that task and move to another one – one that inevitably may preserve their self-esteem but will not improve their skill (pp. 67-68).  This result mirrors the author’s findings that GenMe members tend to please themselves first and if a task is too difficult to be pleasing, it can be ignored.

The studies referenced in the book reveal that this unconditional validation is consistent throughout the country.  No preschooler is safe from the I AM SPECIAL bulletin board and much of the book’s message is that if our educational systems continue that message through college, that preschooler is more likely to be a college student with self-confidence that significantly outpaces ability.  Educational coping to increased self-esteem without increased performance, according to Twenge, produces not only grade inflation but also students who many educators say cannot take criticism (pp. 64-65).  The book’s big reveal about self-esteem, however, is what many law school professors already know:  high self-esteem does not produce high grades.  Hard work produces high grades.  To educators, this finding should shed light onto the fact that it is more beneficial for our students to know that they need perseverance to succeed.  An emphasis on students’ ability to actually accomplish, rather than to try to accomplish, is most beneficial to students.  The data reveals that it is the self-control required for hard work, not self-esteem, which is the greatest indicator of success (pp. 65-67).  Encouraging students to embrace the self-control necessary to succeed is of greater worth than encouraging students regardless.

Generation Me also delves into the downside of the focus on self and notes that with an ever increasing emphasis on the individual, we now have a student population that has an increased rate of depression, anxiety and loneliness (pp. 105-107).  Older members of GenMe, graduating law students included, are now being faced with the reality of a rough job market.  These students are currently trying to reconcile the message they have always heard – you can have it all – with the reality of a tight job market.  Because I received my JD the last time no one was hiring, discussing career options with my current students can easily take on a been-there-done-that tone.  Having this discussion understanding the context of my students’ disappointments, frustrations, and expectations lets me avoid that tone and facilitates a more productive conversation.

In Twenge’s final chapter, Applying Our Knowledge, she walks the reader through different scenarios for people dealing with GenMe.  Because GenMe was raised on extensive praise, they work even harder if they are praised and appreciated (p. 217).  This observation is helpful to educators as it enables us to better understand the powerful and positive impact praise has on our students.  The act of acknowledging a student’s thorough analysis or thanking a student for the correct answer will go much farther than we may realize in motivating like behavior from much of our audience.

Generation Me also includes culturally interesting observations about GenMe, generally about marriage, parenthood and social issues.  While these do not necessarily translate into classroom relevance, understanding how culture affected GenMe and how GenMe now affects culture may assist a baffled professor in understanding why anyone would think answering a cell phone in class is acceptable behavior.

A reoccurring theme in Generation Me is narcissism, which Twenge then devotes an entire book to in The Narcissism Epidemic (Twenge, Campbell, Free Press 2010).  The Narcissism Epidemic, unlike Generation Me, is more anecdotal than research based.  It is therefore, an interesting but less educational read.  In general, The Narcissism Epidemic identifies narcissism characteristics and their increase, discusses its detrimental influence on both the narcissist and society and debunks myths, including that narcissists are insecure and have low self-esteem (p. 24).  According to the authors, it turns out that “deep down inside narcissists think they’re awesome.” (p. 27).  Also unlike Generation Me, The Narcissism Epidemic, provides a piece at the end of each chapter offering a treatment for the epidemic.  Unfortunately, many of the treatments are unobtainable (any ideas on how to decrease the level of celebrity and media narcissism?).  The suggested treatments, while thought provoking, provide more guidance to readers for their personal, rather than professional, lives.

According to the authors, it is important to understand the narcissism epidemic because its long term consequences are destructive to society.  For professors, the information and guidance given in Generation Me may be more easily applicable to a classroom setting and the information provided in The Narcissism Epidemic more, ironically, academic.

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Heather Garretson is an associate professor at Thomas M. Cooley Law School.  She clerked for Judge Stephan of the Nebraska State Supreme Court then Judge Fenner in the Western District of Missouri.  She was a litigator in Kansas City, MO in both private practice and as a Special Assistant United States Attorney.

“It is true that we have tremendous amounts of data about higher education. But it is also true that too often students end up misled, overwhelmed, or confused attempting to gauge the different options. Big, expensive purchases require smart, educated customers. That is why the government created the new fuel-efficiency labels. It is also why the new Consumer Financial Protection Bureau is rolling out simplified, standardized home-mortgage forms. It should not, after all, take a Ph.D. in statistics to get through the college application process.”

This intuition drives politicians like Sen. Boxer to attack the ABA for failing to push law schools to disclose more data, and to crowd-sourced [...]]]> Higher-education cost transparency is all the rage.  In a recent article in Slate, Annie Lowery argued that:

“It is true that we have tremendous amounts of data about higher education. But it is also true that too often students end up misled, overwhelmed, or confused attempting to gauge the different options. Big, expensive purchases require smart, educated customers. That is why the government created the new fuel-efficiency labels. It is also why the new Consumer Financial Protection Bureau is rolling out simplified, standardized home-mortgage forms. It should not, after all, take a Ph.D. in statistics to get through the college application process.”

This intuition drives politicians like Sen. Boxer to attack the ABA for failing to push law schools to disclose more data, and to crowd-sourced work like Law School Transparency.

In general, I absolutely think that law schools ought to compete on the transparency of their disclosures about student job outcomes, and that the ABA’s highest and best accreditation purpose would be to audit such data for its accuracy.  However, I thought I’d caution proponents of cost transparency of two specific & unanticipated costs of their proposals.

First, think about what cost transparency entails.  To my mind, real law school cost transparency doesn’t mean that we on a clear form provide prospective students a series of blanks: ”tuition + anticipated tuition growth” plus “living costs +  anticipated cost increases” minus “expected three-year scholarship”.  We’d also need to disclose our predictions of the student’s chances on the summer job market – law school cost is for some students significantly defrayed by summer employment.  If you look nationally, graduating law student debt has spiked in the last two years.  That rise doesn’t follow largely from tuition increases, though that’s part of the story.  Rather, it’s the collapse of the firm job market in 2008 -2010 that did the trick: students lost $10-$30,000 of expected income that would have offset or repaid borrowing.

The problem is that although law schools could get a handle on some of these numbers, disclosing them in a way that’s going to meet students’ ever-rising expectations isn’t exactly an easy task.  Think about the average administrator in charge of this disclosure — how likely is it that they will be able to do so in a way that meets Lowery’s standard of clarity, accuracy, and replication? Even when they are excellent at their job today, this kind of data-organization and display task would demand a fundamentally new set of skills.   Bringing in a new body is a fine idea, although many law schools are operating under hiring freezes to control tuition growth. Moreover, as Gordon Smith observed some years ago with reference to curricular change, legal education reformers often discount opportunity costs severely.  So if law schools spend more time on figuring out the expected costs of law school education, they are going to spend less time on something else.  (And, likely, less money.)  What’s that to be?  My guess is: library resources, clinics, and research support.  Maybe that’s a worthwhile trade-off, but it strikes me that discussions of cost transparency are really just proxies for complaints about cost, period.  Real law school cost will fall if and when the legal job market recovers.

Second, I’ve wondered if transparency might might mean something more like “relative position” to most students.  After all, it’s not particularly useful to know your expected costs — you probably also want to know how your bottom-line number compares to other students, so you can get a handle on how hard you can bargain.  (This kind of transparency is what enables you to bicker with car dealerships after seeing comparison sales on the internet.)  The problem is, of course, that every law student pays a different price for their seat: law schools are like airlines, right down the tenured workforces.  So you might think that law schools ought to be forced to disclose where a student’s scholarship package – and consequent cost structure – ranks against other students.  But that would create some pretty awful unintended consequences.  Status competition between those at the top of the class and those at the bottom would make everyone unhappy. As Bob Frank has argued, such competition leaves both high- and low-status people in uncomfortable binds, and may result in the most subsidized percentile implicitly paying those in the least subsidized percentile by forgoing a portion of their potential gains.

Most significantly, comparative transparency would reduce law schools’ ability to cross-subsidize tuition, and would further entrench wealth effects in higher education.  Think about it — what kind of people are likely to be armed by knowledge about relative rank?  I think: well-connected, aggressive, sophisticated consumers.  I therefore suppose: relatively richer, male, upper-middle-class students.  Those students will fight to be on the right side of every bell curve – as they are entitled to!  But as a result, law schools will have less money to distribute to more passive, less sophisticated, students.

This isn’t a screed in favor of obscuring law school cost, let alone law school job outcomes.  It just points out that mandating certain kind of disclosures without paying attention to the consequences of disclosure, or localized practices, potentially creates problems that transparency’s proponents ignore.  As James Scott observed in Seeing Like a State, ordered disclosure of particularly formatted data can be a kind of social control, and rarely works as well as we’d want it to.

Law School 1

A+      1%

A         8%

A-       15%

B+      25%

B         20%

B-       12%

C+      7%

C         4%

C-       4%

F        4%

Law School 2

A or higher [...]]]> The New York Times has published yet another article accusing law schools of misleading students, this time of failing to inform admitted students with merit scholarships contingent on maintaining a certain grade point average of the possibility of losing their scholarships. I agree with many of the article’s points and the comments in response.  For example, I completely agree that law schools should inform admitted students of the curve (it varies from a 2.67 at some schools to a 3.4 at others)  and provide them with their grading guidelines.  I found the following information on the websites of four law schools:

Law School 1

A+      1%

A         8%

A-       15%

B+      25%

B         20%

B-       12%

C+      7%

C         4%

C-       4%

F        4%

Law School 2

A or higher No more than 10 percent

A- or higher No more than 25 percent

C+ or lower At least 15 percent

C- or lower At least 6 percent

Law School 3

A+      0-2%

A         7-13%

A-       16-24%

B+      22-30%

B        Remainder

B-       4-11%

C         2-5%

D/F    0-5%

Law School 4

At least 20% of grades are A- or above and at least 20% of grades are C+ or below.

***

Given that grading guidelines vary from school to school, knowledge of a law school’s grading system may help merit scholarship recipients assess their likelihood of retaining their scholarships.  However, I disagree with the article’s suggestion that the curve is the main reason why many students lose their scholarships. The curve is generally not the reason why a student who never had a grade lower than a B+ in college may earn a B- or C in law school. In my experience, the curve does not lower a student’s grade but instead bumps the grade up or has no effect at all. In other words, in the absence of a curve, many more law students would earn B minuses and Cs in their first semester (or first year). The reason is that few first semester law students write good exams. This is understandable. Law school exams are generally very different from the exams students took in college or other graduate programs, and it takes a while to figure out how to take a law school exam. A student may have memorized the “black letter” law, but lack the skills to apply it to a complex fact pattern with numerous legal issues.  As the article acknowledges, law students, especially those with merit scholarships, assume that because they performed well as undergraduates, they will automatically perform well in law school—even in their first semester.  However, this is not the case.  Many students do not learn how to apply the law to a new fact pattern or how to advise a client of “all the potential claims and defenses” (a common law school exam question) until after their first round of exams when they meet with their professors individually to review the exam. Maybe law schools need to do a better job of providing students with feedback before they take exams and with formative assessments, as the Carnegie Report on Legal Education recommends, that focus “on supporting students in learning rather than ranking, sorting and filtering them.”