The New Normal; Can "Entreprenurial" Dayton Adjust?

Great article from Claire Zillman at AmericanLawyer.com:

After two years of turmoil, the nation's largest law firms are settling into a new normal.
...
"The loss of leverage is not a short-term reaction, it's a significant long-term change," says Bingham McCutchen chairman Jay Zimmerman. "We're hiring selectively and using paralegals and staff lawyers for more mundane tasks." He's not alone: A little more than half of our respondents (55 percent) said that their firm had used contract lawyers, up from 44 percent a year ago.

Moreover, few firm leaders worried that a smaller class size would leave them short-staffed in the event of a sudden uptick in work. With so many recent law school graduates looking for jobs, firms can staff up quickly if the need arises, says Perkins Coie managing partner Robert Giles.

However, the law schools continue admitting students by the thousands even when their most notable practitioners have full cognizance that there is a massive oversupply of labor, so much so that elite students no longer have leverage.

And yet law school administrators, charged with instilling ethics in the next generation of lawyers, continue to place a premium on advertising. For example, Dayton just hired SIU Law Professor Paul McGreal as its new dean. What drew him to Dayton?

"This is a law school that's been entrepreneurial in looking at curriculum and the recruitment of students."

"[E]ntrepreneurial in . . . the recruitment of students?" It's hard to tell what exactly Dayton is doing that is so "entrepreneurial" since it's attracting students with a median LSAT of 152. Perhaps it's in the slick marketing as evidenced in their 2010 Viewbook that drew McGreal's attention. Let's see some samples:


For those who cannot read the small type (or cannot avert their eyes from the egregiously-hilarious large type), on this second page Dayton boasts of having a 94% job placement rate for the class of 2008 within nine months of graduating and having 90% of graduates pass the bar on the first time.

This is curious, to me, because their 2005 numbers were only 85.4% employed and 81% bar passage. Given that the school obviously has no scruples with lying ("the world definitely needs more lawyers?" "Long hours in the law library" will make someone NOT want to call Dr. Kevorkian?), my healthy skepticism is running at full blast. Perhaps this link for the Class of 2007's data better explains why the school can claim 94%:

					Job Type
					Bar admission required or anticipated (e.g., attorney and corporate counsel positions, law clerks, judicial clerks)		83.0%
					J.D. preferred, law degree enhances position (e.g., corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI special agent)		11.0%
					Professional/other (jobs that require professional skills or training but for which a J.D. is neither preferred nor particularly applicable; e.g., accountant, teacher, business manager, nurse)		5.0%
					Nonprofessional/other (job that does not require any professional skills or training or is taken on a temporary basis and not viewed as part of a career path)		1.0%

Right. 2007 was before the "new normal" fully set in and 17% of your grads did not need a Juris Doctor. Tell me again why the world needs more lawyers, please. Tell me why I should invest 3 years in a field where the "new normal" means the labor supply is so grossly oversaturated that firms believe they can hire good talent quickly if they need to.


Ah, yes. Dayton, that city of my dreams. To think someone actually wrote these pages and didn't collapse, instantly dead of a laughter attack, is astounding.


I agree completely.

Dean McGreal, if the outright dishonesty at work here is what you call "entrepreneurial," I think you need to brush up on your ethics. This is a moral issue, and viewing prospective students the way large retailers view poor people with welfare checks is unethical behavior.

As the survey and article cited above point out, there is a "new normal" in the legal world. Telling your students or prospective students the old one will return is no more based in rationality than believing Santa Claus will show up with a bag o' jobs this Christmas. The world does not need more lawyers right now. It needs better lawyers, and even better models of doing things, but raw fourth-tier graduates are not likely to be the former or do the latter.

Law firms no longer hire in increasing class sizes and raise fees every year. As they are now run like businesses, they track every associate's financial contributions to the firm in ways not present under the old model. Your job as an educator should be helping whatever students you have navigate a world where they will not only be attorneys, but also salesmen and debt collectors. If you have a model that you think will train students to excel in this world, by all means, continue it. But under no circumstances is it ethical or moral of you to charge tuition as if the old model were still in place at large firms and 90% of your students had hopes at attorney work. They don't.

McGreal plans to assess . . . ways to keep tuition affordable. Fundraising will be a key aspect of his new job. "We have to think about ways we can address the increasing cost of law school," he said.

Considering that most law schools are highly profitable cash cows for their larger universities, how about you start by slashing tuition across the board and lowering salaries in line with the reality that there is an oversupply of attorneys able to teach at your law school?

Just a simple suggestion, but maybe it's not "entrepreneurial" enough for Dean McGreal.

"Desperation" In Las Vegas; Disparities at UNLV

Those new graduates putting faith in leaving a saturated urban market like Chicago, NYC, or DC for places with less lawyer coverage should know that your peers have already beat you to it, and in droves. Check out what's going on in Nevada. Nevada is seen by some as "a magnet for young attorneys seeking their fortunes" because there is only one law school in what has been a rapidly-growing state over the last decade. But then there's this:

Alex Fugazzi, the attorney handling hiring for the Las Vegas Snell & Wilmer law office, is deluged with applications these days. He suspects desperation when Ivy League grads start filling his e-mail inbox and postal mail slot with résumés.

"I get résumés from Harvard, from Ivy League schools, and we get résumés from 'white shoe' (long-established) law firms in New York and Chicago, from lawyers who used to be able to write their own tickets," he listed.

Do you think they all had bad grades and poor networking abilities?

And that one law school in Nevada, the Boyd School of Law at UNLV, isn't giving rosy prospects, either.

Applications at the University of Nevada, Las Vegas' William S. Boyd School of Law have increased steadily over the last three years, even during the worst of the economic recession, said John Valery White, the law school's dean....He expects to be able to place at least 70 percent of the 2010 Boyd Law School graduates.

While 70 percent may sound lofty in such times (and given how placement is going elsewhere, I'd like to see proof of it), remember that this is a school that is very well-positioned in-state. While some graduates from California may shuffle over, if you want to be an attorney in Nevada, UNLV is the place to go. Despite being barely in the top 100 USNWR schools, UNLV has only 16% acceptance rate and a very high yield (44%). By contrast, Fordham accepts 24% of its applicants. Minnesota is at 24%. Virginia is at 25%. Duke is at 23%. (source: lawschoolnubmers). Different application pools to be sure, but that should give you an idea of how UNLV's monopoly on Nevada legal training helps it and its graduates out.

And yet a quarter of the class just will not be placed by the dean's own admission. If they can't do it with a monopoly on new law grads, what chance do others have in more saturated markets?

And as an aside, why does the Boyd-UNLV website not reflect these adjusted employment projections?

• What is the Boyd School of Law’s employment placement rate?
  Our employment rate for 2007 to 2008 was 90.1% after 9 months. For more employment data click [dead link]

If you only project that 70% of your students will be placed in the Class of 2010, shouldn't you disclose that? By leaving the '08 numbers up, aren't you making some kind of assertion that you don't have numbers for 2009 or 2010? And since you obviously do have numbers for those years, isn't it blatant dishonesty to keep the old numbers up?

Undocumented Immigrant Gets Law Degree; Wants Right to Be Unemployed Like Classmates

Recently, the LA Times ran a sympathetic piece on Luis Perez, an undocumented illegal immigrant who recently graduated from UCLA Law School:

Today, at age 29, Luis Perez has the right to call himself a juris doctor. But he can't yet call himself an American. In fact, because he's an undocumented immigrant, it will take an act of Congress to change that. But that hasn't stopped him from trying.

Regardless of how one feels about illegal immigration, it's ridiculous that UCLA would admit someone not even eligible to join the bar after graduation. One would think there was a real meaning behind the character and fitness screening that every law applicant goes through. Just as it would be negligent to let convicted felons pay to gain a law degree (who, likewise, need federal action to practice law in most states) - especially with public backing - it's negligent to let someone not eligible to work post-graduation gain a professional degree.

The great hope for Perez, and for thousands of others like him, is the Dream Act, a bill that would grant a path to legal residency for undocumented immigrants who graduate from college or serve honorably in the military.
...
The Dream Act would be another intelligent investment in our collective future. We'd get even more people like Perez, because the Dream Act would reward young people for making the choices he's made since the was 8: choosing education over ignorance, service over apathy.

Um...what about the 1/3 of law graduates every year (likely 16,000 every year) who have chosen "education over ignorance" and "service over apathy" and wind up unemployed and deeply indebted as a result?

We have to stop this ridiculous idea that anyone can do anything they want because they work hard and want it. Such absurdities only lead to misery. This individual never should have been admitted to law school (especially a public one) and we should not change the laws to reward people who think reckless education (like paying for a law degree when it would take an unprecedented act of Congress to practice law) is a good idea.

Meet Rich Labrador

Rich Labrador is a 42-year-old lawyer and Congressman-elect from Idaho. By all accounts, being elected to the House is a noteworthy achievement. But there are two things you should know about Rich Labrador that should scream "problem."

1. Rich Labrador turned down admission at Georgetown over a decade ago because it was too expensive compared to his final option, the University of Washington.

2. Despite being in his 40s and being careful to avoid debt, Labrador still owes "between $15,000 and $50,000 in federal student loans" from 15 years ago.

This will be part of our next generation (or two or three) of leaders: people who are still saddled with student loan debt, people who have been inhibited from purchasing things like houses or planning for retirement because they had to pay beyond the cost to gain a law degree (even at a public school like UW). And Labrador went to law school before the tuition rates became nearly as high as they are today, and since he's been elected to Congress he's obviously not a failure or a "whiner."

Hopefully, having members of the indentured class in power will make positive legislation more likely, so long as they're not of the "I beat it myself, so there's no systemic problem" mindset.

Marquette Lowers the Bar with Bud Selig

Bud Selig, heir to a car leasing empire and MLB Commissioner (acting or official) for almost two decades, recently got a promotion from lecturer at Marquette Law School to adjunct faculty:

“Bud Selig is, without question, one of the most skilled and accomplished professionals in the sports industry today,” said Joseph D. Kearney, dean of Marquette Law School. “We are truly honored that he would commit his time to our students and grateful that he’s chosen our classrooms as a place to pass down his significant wisdom to the next generation of leaders.”

"Significant wisdom?" "One of the most skilled and accomplished professionals in the sports industry today?" Who the hell are you kidding, Dean Kearney?

As an initial matter, Bud Selig does not have a law degree. I'm not going to argue that every law school professor has to have a law degree, but since the purpose of law school is train future professionals, the non-lawyer professor had better be able to offer something substantive to the legal education of the students in his class.

Bud Selig does not. On the contrary, there are many reasons why Bud Selig is not fit to teach Sports Law and Policy in a law school classroom. What follows is a list of reasons in no particular order.

Bud Selig is something of a hypocrite. Not that relevant (or uncommon for law school faculty, I imagine), but it's a good introduction. In the 1950s and early '60s, Bud was a big fan of the Milwaukee Braves. He even used some of his family wealth to become a stakeholder in the team and actively work to keep the team in Milwaukee, even legally challenging the eventual move on rather spurious grounds. Once he lost and the Braves moved to Atlanta, Selig immediately tried to buy and relocate two other teams from their cities, first the White Sox and then the Seattle Pilots, where he succeeded and made them the Milwaukee Brewers.

Bud Selig was part of a corrupt organization suppressing the wages of its works. While Selig was primary owner and President of the Milwaukee Brewers, baseball's owners colluded to subvert the free agency system and keep players on lower contracts than what the free market would have dictated, including Brewers star Paul Molitor. In the end, baseball's owners paid $280 million in damages to players for their collusion. And this in a business where open competition is already prevented by antitrust exemptions.

Bud Selig was instrumental in the sport-killing strike of 1994-1995. There are a variety of factors that led to the strike of 1994 (like the owners being such bad businessmen that they were collectively unable to handle a non-collusive environment), but one of the biggest is that the owners ousted Commissioner Fay Vincent in 1992. Vincent had been a firm Commissioner, standing up to both owners (see his handling of the 1990 lockout) and players (see his move to permanently ban Steve Howe after repeated drug offenses) in the best interests of the game.

And what owner was instrumental in the group that pushed for Vincent's ouster? Yup. Bud Selig. As a result, Bud Selig was named acting Commissioner. Almost immediately, the owners moved to lower the Commissioner's powers to act in the "best interests of the game." While the ideal commissioner is a neutral party who works, as Vincent did, to bridge the parties, the balance became skewed in favor of the owners. With this imbalance, the owners basically tried to brow-beat the players into signing away arbitration rights. Naturally, they called a strike while a weak, owner-friendly Selig watched from his Commissioner's office. Because he did nothing to postpone or prevent the strike, Selig canceled the World Series for the first time in 91 years. It made it through the Depression and World War II, but it could not withstand Bud Selig's stewardship. Come 1995 and, seeing that the owners lost a ton of money in '94, Selig suddenly demanded that the show would go on, that baseball's teams would hire "replacement players." It was a farce that no one really took seriously. Thankfully, the strike ended when the players' union won an injunction that was upheld on appeal.

However, the damage to the sport was done. Although people generally had little sympathy for players who make $1 million+ on average, it's clear the driving force was owners scheming to create a negotiating imbalance between labor and management, something as detestable in sports as it is in a steel mill. Selig was instrumental in creating that situation.

Bud Selig does not respect the ethical principles behind "conflict of interest" regulations. Beyond Selig being chums and co-conspirators with the very owners he was now supposed to regulate, Selig maintained a direct conflict on interest. Commissioners are not supposed to have ownership interests in any team. To get around this rule, Selig transferred ownership of the Brewers to his daughter Wendy. Most speculate he maintained an active role in the club. Only the most technical sense is this not a blatant conflict of interest.

Bud Selig has the "wisdom" of a moldy rock. In the 2002 All-Star Game, both managers had used their available substitutes while the game was still tied 7-7. The rules of baseball are clear: there is no such thing as a tie and no one re-enters a game after leaving. The managers had clearly screwed up. What did Selig do? Instead of telling them to play until someone wins (like Vincent or Kennesaw Mountain Landis would have likely done), he called the game a tie to wide criticism. To compensate for his ridiculous mistake, the following year he pushed to make the All-Star Game (a somewhat- arbitrary, non-serious celebration of baseball) determine which league had home-field advantage in the World Series (a serious, non-arbitrary thing) to wide criticism.

This wasn't the first or last time Selig had angered fans with a complete refusal to understand the game of baseball or respect its traditions. He has also implemented inter-league play, moved the Brewers from one league to the other (conflict of interest, anyone?), disbanded the separate league offices, split the leagues into three divisions, and introduced the concept of a wild card playoff contender. Although some of these have been financial accomplishments, they've contributed to a marked decline in the popularity of baseball over the last 20 years.

Bud Selig's own propaganda page claims that baseball's popularity is increasing, focusing on absolute numbers and taking liberal advantage of the economic boom of the mid-to-late '90s. Such claims shouldn't pass the basic sniff test of skepticism. For just one example, check out the damning television ratings. The 1985 World Series between St. Louis and Kansas City (by all means, a series no one in New York or Los Angeles should have cared about) drew twice the ratings' share as this year's World Series between San Francisco and Texas (Dallas). This last World Series, the first for the Giants since Willie Mays suited up, got beat by sitcoms and Grey's Anatomy.

In 1992, the Simpsons had a memorable episode featuring nine baseball personalities. Of them, I would argue seven (Roger Clemens, Don Mattingly, Ozzie Smith, Wade Boggs, Ken Griffey, Jose Canseco, and Darryl Strawberry) were commonly-known and two (Sax and Scioscia) would have been fairly obscure to the average viewer. Many other contemporary players, such as Tony Gwynn, Cal Ripken, Ryne Sandberg, Bo Jackson, or Mark McGwire, likely would have been known. A few years later, players like Randy Johnson and Mike Piazza appeared in commercials.

Today, how many active players in baseball would a non-fan know of? Only Alex Rodriguez, Derek Jeter, and Albert Pujols come to mind. Do ordinary people know who Chase Uttley, Tim Lincecum, Roy Halladay, or Joey Votto are? Would they be able to identify them the way they would have with Cal Ripken or Wade Boggs? I don't think I'm being merely nostalgic when I say "no."

Yet according to Dean Joseph D. Kearney, the overseer of this decline in broad popularity is "skilled" and "accomplished."

Bud Selig has promoted a culture of disrespect for the United States Congress and the Judiciary. In the 1980s, Commissioner A. Bartlett Giamatti (yes, actor Paul Giamatti's father) discovered that Pete Rose had gambled on baseball. Without going into too much detail, he essentially banned Rose from being involved with baseball. As a result, baseball has no serious problem with players or managers gambling on the sport.

Under Bud Selig's watch, multiple players have lied to official bodies investigating their behavior. In the steroid hearings of 2005, former Rangers star Raphael Palmeiro blatantly lied to Congress on national television. At the same circus of a hearing, Mark McGwire refused to answer questions and Sammy Sosa pretended he didn't understand English. In an unrelated inquiry, superstar Barry Bonds has been indicted on multiple counts of perjury. And then there's Roger Clemens, who potentially faces the most trouble of them all after being indicted for perjury and lying to Congress.

That's five Hall-of-Fame caliber players besmirching the game's reputation by not being forthright with Congress or in judicial proceedings. If Selig was any kind of a firm commissioner, this problem would have been nipped in the bud by making an example of someone, as Giamiatti did with Rose, as Vincent tried to do with Steve Howe, and as Landis did with the BlackSox.

In line with his attitude of passively promoting rule-bending, Selig sat by and watched as baseball was overtaken by rampant steroid abuse. As early as 1998, Mark McGwire was on public record as using then-legal performance enhancers. Baseball lacked far behind the Olympics and the NFL in regulating steroids. Anyone looking at the progression of McGwire, Bonds, or Sosa over the years would have seen the obvious trend at work. Yet the rising home run numbers of these biological freaks and their home run chases made money. In 2002, baseball instituted testing and moderate sanctions, but the tests were incomplete and players still had license to use human growth hormone.

It wasn't until 2006 - eight years after the problem indisputably surfaced and after the U.S. Congress got involved - that Selig appointed the "independent" George Mitchell to investigate steroid use in baseball and make recommendations. Owing to his disregard for conflicts of interest, Mitchell had served as a Director of the Boston Red Sox. The Mitchell Report would directly list 47 players in baseball who used performance enhancers, although it should surprise no one that no Red Sox (Mitchell) or Brewers (Selig) made the list, even though guys like David Ortiz and Manny Ramierez were using steroids at the time by their admission.

At the end of the day, over 100 players have been implicated in the performance enhancing scandal. The "significant wisdom" of Bud Selig has led to the biggest controversy in the game's history, in terms of scope easily breaking past the BlackSox and their puny-by-comparison eight co-conspirators.

Bud Selig was an interested party in every recent case in this sub-field of law. Admittedly, I know little of sports law. But what I do know is that Bud Selig, as Commissioner of baseball, was either a party or an interested third-party in every law suit that's been filed involving a professional sports league in the last twenty-five years. Given his position, how is he supposed to fairly teach this law to students?

How can he detach his own interest in baseball's tenuous antitrust exemption when he teaches a case such as NFL v. American Needle? How can productive classroom discussion be had? It's one thing to have a prominent attorney teach a course, or even a former public official. But a private party who has a stake in every outcome in the area? It seems to be a disservice to have this individual leading discussion. If any of these students actually do practice sports law, Marquette owes them a duty to adequately prepare them. They can't do that if the professor is so utterly and personally biased in every single discussion.

I understand why schools do this. Kids will take his class just so they can say (perhaps in job interviews!) that they had Bud Selig and even emailed him a question or two. Marquette probably thinks it adds to their prestige to have Selig pop through their doors.

But the man has presided over a massive slide in the place of baseball in United States culture, and perhaps worse from the law school perspective, he's repeatedly shown a disregard for ethical obligations and led baseball's integrity as a sport down the tubes. The law is nothing without ethics or integrity, neither of which Selig has shown any ability to foster. And since he leads a business that violates antitrust laws and still has slid in relevance, I fail to see what he can teach students from a business perspective.

The ABA states that a "law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession." Given this individual's public history and lack of a law degree, in no conceivable way does his continued employment do that for Marquette students.

Happy Thanksgiving

After yesterday's depressing post, I wanted to wish a Happy Thanksgiving to everyone!

Also, if you have relatives who show any severe misconceptions about the modern state of law - either positive ("I want to go to law school to change the world!") or negative ("All lawyers are greedy scum."), take the opportunity to tactfully enlighten them. Only through knowledge can systematic change be brought.

Thoughts on Lawyer Depression

Because it is a holiday and I am both traveling and lazy, I'm going simply link to Shilling Me Softly, which has an excellent post about lawyer depression and the new documentary A Terrible Melancholy (a wee bit melodramatic, eh?) that seeks to shed light on the fact that one of our more "prestigious" professions is plagued with depression.

I found this line of Kimber Russel's commentary on the matter especially jarring:

[R]ecognizing that lawyers and law students are depressed is not the solution--we need the legal profession to change, period.

Since I'm of the belief that one should actually cure a disease and not just put cosmetics on the collateral symptoms, I'm in full agreement. Post-hoc support groups are not the answer.

I won't pretend to know all of the causes of attorney depression, at least not in this entry, suffice to say that my strong suspicion is that it's the amount of hours "required." It's not just in the law that people who work insanely high amounts of hours - at a desk staring at a screen or dull text, mind you - but the legal field is certainly a recognized forerunner:

"When you have an undefinable product, there is a temptation to measure output in terms of hours," she said...

For partners at big law firms, the simplest way to track the performance of junior lawyers is to see who bills the most hours above and beyond what is officially required...

What we have in the legal profession is both a collective action problem and an unequal bargaining problem. On the individual level, no non-partner attorney has an incentive to limit his own working hours. And on the firm level, firms have no incentive to limit the billing hours of their associates. But in the big picture, the entire legal system would be better in the aggregate if working hours were curtailed (i.e. lower suicides, more happiness, better health, etc.). The bargaining problem is that young associates seem startlingly similar to industrial revolution workers, regardless of the fact that they wear suits instead of blue collars.

Given these problems, we need a centralized body to say something. We need a maximum hours limitation in the legal profession, either from the government or from some association of attorneys (like a labor union, as they've been effective in protecting working conditions...perhaps some sort of association of bar members could do something about it?)

To be up front, I'm normally more of a libertarian economic mindset than most. I think minimum wage laws and rent/housing assistance are poor policy based on misguided economic premises, for example. But maximum working hours limitations are not economic regulations. They're health regulations, plain and simple. One of the (many) things that made Lochner v. New York such a bad decision is that the Supreme Court couldn't grasp this distinction, and even today people misconstrue health regulations (like FDA food testing) as economic restrictions, especially the wackjob libertarians who lump them all together and cry foul because they'd rather have consistent, absolute beliefs than realistic ones. But I digress.

The point is that working long hours causes demonstrable harm. It did to the bakers forced to inhale dust in Lochner and it does to the lawyers today forced by the systems in place to work 70 hours a week and forgo traditional outlets of stress relief.

We need to collectively realize that a lawyer working 8 good hours on a night of good sleep is probably just as effective as a lawyer working 10-11 hours. We need to realize that from a health and welfare standpoint, a lawyer working 12 hours is no better than a lawyer working 8 hours and getting blasted on meth or crack. We need to realize that a normal human being cannot provide genuinely "competent representation" when writing briefs on arcane federal statutes at 4 a.m. just to keep the hope alive to make partner.

After all, how can a modern profession really have dignity when so many of its members are burnt out, depressed wrecks eerily reminiscent of the pawns in Asian sweatshops, at least mentally? Not even a nice Italian suit and a BMW can cover up being a dreary, suicidal human being.

Respect: An Observation from Ann Levine's Reasons for Going to Law School

Ann Levine, lawyer and capitalist feeding off want-to-be law school applicants, has published a new list of her reasons to go/not to go to law school. This reason to attend struck me as worth commentary:

4. Being important and respected

While I think some of her other reasons are suspect (e..g, if "money" is a reason NOT to go, why is "financial security" suddenly a reason TO go? Something can't be both a good investment and a bad investment for the same person at the same time), this one struck me as odd.

First, she links to a page from Notre Dame's website that talks about how lawyers are hated, many people go to law school for the wrong reasons, and that reasons such as "I wanted a profession with prestige, respect and status" are "problematic."

This, by itself, should raise a few questions. For example: Does it speak well of the University of Miami Law School to have a notable alumna completely misconstruing source material when said skill is a large part of legal argumentation? Would you hire someone who can't carefully read a simple webpage to help your child get into law school by reading their admissions essays? And does it speak well of the legal profession as a whole to have an ambassador at the gateway citing source material that (a) she apparently hasn't read thoroughly and (b) comes from such bastions of knowledge as Yahoo! Answers?

But more importantly, she's wrong. While the law may be important (I would argue essential), the over-supply of lawyers has rendered them replaceable on the individual level. And lawyers, as a whole, have not been respected for quite some time. Judges are respected; lawyers really aren't. A simple Google search got me this 2002 report from the ABA. Although this report does mention positive characteristics of attorneys, one would be hard-pressed to read it and conclude that being a lawyer brings vague and generalized "respect." And that was 8 years ago.

Silly British People

Law school regulatory boards across the Atlantic are now "cracking down" on legal education due to the perceived oversupply of lawyers.

The review . . . will examine routes to qualification and the requirements placed on law schools in light of the likely future shape of the legal market.

College of Law chief executive Nigel Savage welcomed the review and argued that it was long overdue. He added: “It [the review] must be root and branch and embrace the undergraduate degrees as well as post-graduate courses. It also needs to look at matching what lawyers do within the legal services market with a brand new education and training framework.”

The occasion for this review?

According to the Law Society, 7,000 people completed the Legal Practice Course (LPC) in 2008, but there are only 6,000 training contracts available this year.

Translation: about 1,000 people are getting screwed, or 14.3% of people who complete the LPC.

What a silly, knee-jerking country. Here in the United States, we value liberty and inclusiveness, and wouldn't budge a muscle until at least 15,000 are getting screwed. We have an oversupply graduating every year of around 36% and, owing to those time-honored American virtues like giving an advanced education for anything that moves, securing the freedom to publish misleading information, and creating mental debtor's prisons.

Thank goodness we revolted from such weak-kneed peoples.

Sarcasm aside, the ABA has finally taken some steps to investigate the defects in the legal education system in this country. They should have done it back when the problem became apparent, like the British, but better late than never, so here's hoping we see some actual progress on that front.

Finally, I found this line from the article amusing:

Green said: ". . . a law student can be generated at virtually zero marginal cost.”

Will someone please tell this to Stanley Fish?

Supreme Tautologies 101

Yesterday, Justice Scalia gave an interview/lovefest at the Federalist Society's something-or-other, and had this to say about why he hires almost exclusively from the high and mighty Ivies:

He then reprised his somewhat controversial defense of elitism in law clerk hiring: “The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber.”

(Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.)

As an initial matter, I respectfully disagree that law school can't make one dumber. It can, and it does.

But what is this basis for determining the "best" law schools? I suppose it's rankings, historical prestige, and alumni. Given his joke, it's not the quality of education (e.g. "Harvard can take a 160 LSAT and make him a better lawyer than Stetson."). He seems, without question, to be of a nature-over-nurture belief. That's fine; I am, too.

But if Justice Scalia believes in nature over all, doesn't that imply that the best schools are wherever the best students have gone previously? So wherever the best minds go are the best schools, and the best schools are wherever the best minds go? Can you be any more tautological?

Again, it's depressing to see a member of a body charged with rationally interpreting the law so sincerely flawed in its reasoning. Of course, I don't actually believe Justice Scalia is dumb or irrational. On the contrary, he's highly intelligent. I just think it's obvious that he's rationalizing his naked elitism in a rather puny attempt.

If you want to hire "the best minds," why not have some objective criteria that goes beyond the name of the school? Why not just go to LSAT scores? Why not give a generalized knowledge and intelligence test to anyone wanting to apply? Besides, if you're hiring from the pool of appellate clerks nationwide, you're already dealing with "the best minds" and you shouldn't have to use "Harvard" or "Yale" as a lazy-ass short-cut to weed the applicant pool.

I say all this because at my own top 100 school, there are approximately 10-15 people in each graduating class who are fully qualified to compete at any T-14 in the country. Approximately 8-10 of them could have gained admission out of undergrad (167+ LSAT, 3.5+ undergrad GPA). Why did they go TTT when they could have gone T-14?

First is full-tuition scholarship money and second is that you learn the same darned law at the TTT while being the faculty darling and being first in line for every opportunity the TTT has. Almost every TTT in the country pays to bring in these "ringers" to up their LSAT medians.

I'll fully admit that a school like Pepperdine is not as "good" of a law school as Cal or Stanford, mostly because the average student at either Cal or Stanford would mop the floor with the average student from Pepperdine. But there's no doubt in my mind the top students at Pepperdine would compete and possibly be the top students at Cal or Stanford, mostly because in terms of pre-law intellectual ability they were likely indistinguishable and the law schools really don't advance that innate intellectual ability Justice Scalia so craves.

This is not 1940 or even 1980. It is not Ivy-or-bust, either in undergraduate or in graduate school. Just as intelligent minds wind up in all sorts of undergraduate locations, bright people get lured into going to schools outside the T-14 for any number of reasons. In an age where the private T-14s cost 40k a year, it's completely plausible that a highly-intelligent student would choose a degree from a respectable lower-ranked school for $0 in tuition than take out $120k in debt. And there's evidence that this has been happening; one only need to note that the award winners at Moot Court and Trial Team competitions routinely come from lower-ranked schools. It's not like Georgetown or Wash U. send their chaff to these things. It's just that, now, the very top students at TTT would fit right in at a T-14 and possibly wind up at the top. Assuming that those students would finish lower at the higher-ranked schools is nothing more than baseless speculation based on elitist presumptions.

Perhaps if Justice Scalia were truly open to more objective criteria to discover "the best minds," he would have realized this a long time ago. Instead, he perpetuates his superstitious and elitist beliefs that best minds = best schools = best minds, perpetuating silly superstitions. It should go without lengthy explanation that irrationalities backing elitism that smacks in the face of promoting candidates on true merit is to the detriment of the entire legal system.

BAR/BRI Looking to be Sold - Why?

Yesterday I heard a rumor from some colleagues who actually paid into the Bar/Bri scheme that they received an e-mail that Thomson-Reuters put Bar/Bri on the sale block. I wanted to post, but wasn't able to find an article or press release to source. Now AbovetheLaw has gone ahead and reported on it, complete with a connection to T-R's acquisition of Indian outsourcing company Pangea3 and the full letter sent to Bar/Bri's subscribers.

This decision to sell is in no way related to BARBRI’s performance. BARBRI is the leading bar review course in the United States with over 40 years of experience, strong leadership and quality of service. Our parent company believes, however, that bar preparation no longer fits its long-term strategic vision, which is to provide intelligent information and workflow solutions to professionals.

As disclosure, I want to note that I think Bar/Bri is a leach that does a disservice to the legal field. I have little regard for its business and believe that its continual existence is evidence that the bar associations are not doing their job to the best of their abilities (e.g. that the bar exam doesn't test the skills it should). But that's an entry for another day.

To be fair to all parties, Bar/Bri is something of a misfit in Thomson-Reuters. Its existence there is an accident of corporate history. Bar/Bri first merged into Harcourt and then into Thomson-West publishing. This made sense because Thomson-West was the largest legal publisher in the country, providing a broad range of legal information. Acquiring a small, profitable company who published legal books designed to aid bar passage made sense. Furthermore, Thomson Corporation (the parent company of Thomson-West) was one of the world's leading textbook publishers and had an expansive business in standardized testing (through Prometric). So Bar/Bri fit in multiple ways in Thomson-West's overall scheme.

Fast forward to the 2000s. Research of all stripes is moving rapidly online. Thomson Corporation begins acquiring all sorts of online information distillers across a wide range of industries. In 2006, Kenneth Thomson dies and is replaced by son David Thomson. In 2007, Thomson sells its entire textbook publication and standardized testing division, leaving Bar/Bri as an outlier saved only by the fact that it's grouped with West ("Thomson Legal") and not Thomson Learning. In 2008, Thomson acquires Reuters, the 2nd largest news dissemination service in the world. The resulting company was a $30 billion behemoth whose interests is in professional news distribution. Westlaw fits in this mold; comparatively-small Bar/Bri does not. Consequently, from their perspective, it makes sense to sell Bar/Bri as an outlier to their current business interests.

But why NOW? And why announce it publicly?

Even if a company is a misfit, a corporate conglomerate isn't going to sell it unless it's a good time to sell; to do otherwise would be a disservice to shareholders. Furthermore, leaking it to the world that a sale is happening guarantees that no one's going to overpay for it.

It is true that Bar/Bri has increased competition, but they're still the king of Bar preparation services with a rather large moat. Maybe I'm reading too much into it, but my guess is that Thomson-Reuters looks at this being the best time to sell Bar/Bri because they don't see much revenue growth in the business. Even with new law schools being accredited every day, they don't see Bar/Bri being a worthwhile investment to hang on to, when it's the default choice for Bar preparation?

Is there a chance that Thomson-Reuters sees what's going on in the law school world and realizes we may be reaching the end of the line with lawyer saturation? The people at T-R aren't dumb. The reason they're still around in a post-newspaper, post-print world is that they were forerunners in online information. Things like Westlaw and a plethora of science, financial, and healthcare tools.

Anytime anyone with that kind of vision to see where the world was going in 5-10 years does something like offload a subsidiary that by all accounts is profitable and the leading bar review preparation course, one should ask a simple question: what do they see the market looking like in 5-10 years?

Since they apparently don't see the market for Bar/Bri's services being as strong in 5-10 years (or as relatively strong) as they see it now, at least enough to keep it within their legal services family, why might that be? And why would they be so desperate to unload it that they don't care that Bar/Bri went public with the information? What do they know that the people supporting law school don't?

The Lohans Attorneys Should Go To Rehab, Too

Don't count on this space becoming a receptacle of celebrity gossip, but I read this today and thought it was worth comment.

Dina Lohan is allegedly having her lawyers draft a bitter, nasty letter to the creators of Glee, who on Wednesday night's episode apparently mocked her daughter Lindsay by saying "Linsday is totally crazy" and "Lindsay has been to rehab 5 times." She explained: "“Our lawyers are sending a letter” to 'Glee' on the grounds that the show allegedly defamed the actress who, by all accounts, is working hard on her recovery." A rep for Lohan adds, “Lindsay has an issue that millions of people around the world are dealing with yet ‘Glee’ is treating addiction as a laughing matter.”

Um... what do you think the creators of Glee and their lawyers are going to do with said letter? Treat it seriously and publicly recant? There's no defamation claim here whatsoever. Any celebrity who's intelligent and took a 5-minute crash course would know that.

My point of bringing this up is that I'm curious about the lawyers sending out this letter. In an ideal universe, they would look her in the eye and tell her she's making an ass of herself. In the 2nd-most ideal universe, they would draft a letter explaining the harm caused and courteously requesting that Glee apologize and stop future assaults on her character. But the first makes no money and the second is something Dina could presumably do herself, so the lawyers have every incentive to claim a highfalutin legal cause of action, defamation.

This sort of civil-lawyers-as-belligerent-bulldogs nonsense, especially when employed by public figures is one of the reasons why people hate attorneys. In some jurisdictions, a lawyer can face criminal extortion charges for making meritless legal demands. Maybe that's too far, but certainly the bar associations could be more aggressive in regulating this type of behavior, as it does impugn the profession as a whole to have attorneys sending out letters with no plausible claim behind them. Like in the U.K. (although I think this situation would probably also trigger action in the U.S.)

Your Honor, Who Are You Kidding?

I like to look for possible solutions here, ways to restore the stature attorneys once had, but it's hard to do so when the people at the very top of the legal field pyramid are out-of-touch with reality.

I have a lot of respect for Stephen Breyer. I disagree with him on a fundamental point of Constitutional interpretation, but overall I find that his opinions are well-written and backed by sound argument.

But this, to me, is laughable:

Breyer argued the court makes more decisions unanimously than in narrow 5-4 splits, and that media often oversimplify conflicts as left versus right.

“I don’t think it’s political. I don’t think there are politically-based decisions. I don’t think that people are sitting there thinking what’s good for anybody.”

Unless one limits the word "political" to being technically Republican or technically Democrat, these are outright lies. Granted, 85-90% of what the Supreme Court does is non-political, but that's not because the judges don't make politically-based decisions, it's because the decisions before them don't easily ally with recognizable political sides. Yeah, the Supreme Court has a lot of 8-1 or 9-0 opinions. So what?

Would a Republican and a Democrat decide the outcome in Burnham v. Superior Ct differently? Of course not; no one in the political sphere has any opinion on issues of personal jurisdiction. Are Republicans and Democrats going to differ over invalidating an obviously-overbroad infringement on First Amendment rights, as in U.S. v. Stevens? Not really.

But for better or worse (mostly worse), Supreme Court justices often have to make decisions or draw lines in a manner inseparable from the formation of political policy preferences. When one is asked, "what is the scope of government power/personal liberty x?" the answer inevitably coincides with one's own political views. Contrary to Marbury's discussion of leaving to politics to what is political, or our own Chief Justice's analogy to balls and strikes, it is plain as day that the modern Supreme Court is a political body. They may ground their decisions in methods of interpretation, but the fact that mainline political parties now adopt preferred methods of Constitutional interpretation should be all the proof one needs that the very of choosing a method of interpretation is a political act in and of itself.

Legal realist theories have been around for over sixty or seventy years. Nothing that has happened in the mean time has diminished their relevance. It is impossible to read the 4th and 5th-amendment line of cases from the 60s-present without seeing a clear division based on policy preferences. Or gun rights cases, like McDonald v. Chicago. Or the abortion cases. Or the affirmative action cases. Or Citizens United. Or Bush v. Gore, which directly contradicted the stated Constitutional preferences of those in the majority.

Notice how when there's actually a political issue before the court and the nation's major political sects line up on opposite sides, the Court neatly does the same thing? You'd really have to be out to lunch if you think that's just a coincidence based on pre-existing legal philosophies.

And yet Stephen Breyer, Harvard and Oxford graduate, apparently doesn't "think there are politically-based decisions."

My guess is that he said so either for his own psychological sake (i.e., to bring the Court's actions in line with his legal training and beliefs) or because he wanted to protect the Court's integrity to the public (i.e., because courts in general are supposed to be neutral, they should give the appearance of neutrality).

In either event, it's misguided. Blatantly lying - or making continual feeble attempts to lie - damages the integrity of the Court far more than making decisions based on policy preferences. No one seriously equates the Supreme Court with their local trial court, nor should they. The political nature of the former has nothing to do with the integrity of the latter. Most people acknowledge the Supreme Court as a political body and have for quite some time.

This isn't to say there's no difference between law and politics. There undoubtedly is. But upholding that difference is not the same as claiming " I don’t think that people are sitting there thinking what’s good for anybody." They very clearly are, and, like the puppet-masters in the old USSR, denying a self-evident truth brings no dignity to the office or respect from the average citizen.

If we want the law to be a dignified profession, perhaps we should start by being honest.

Paging Dean Yellen of Loyola-Chicago

So today we have a refreshing note in that ABA President Stephen Zack has publicly noted that there is a problem with disclosure and that 100k in debt is hard to pay back with a 60k salary.

I do, however, find this part curious:

David N. Yellen, dean of Loyola University Chicago School of Law and chair of the ABA subcommittee that considers what consumer information law schools should be required to report, tells the Law Bulletin that law schools need to be more transparent about job prospects.

"I believe the time has come to mandate that law schools publicly disclose more information about job outcomes," Yellen is quoted saying.

Okay, Dean Yellen, explain this, from your "2010-11 Loyola Fact Sheet":

So... you had survey responses from 100% of your graduates, but 47% omitted their salary information and you still felt it conscionable to advertise that the median salary for "ALL GRADUATES" was $100,000? Seriously? Did you factor in that 9% of students who were unemployed at 9 months as people making $0.00, or were they "unreported?"

And what about this:

If you're going to use pie charts, isn't it disingenuous -if we're talking about "job outcomes" - to omit the 9% of unemployed students? Isn't it disingenuous to publish a "private practice" chart that only advertises 1.5% in solo practice since many in that 9% unemployed group are, by default, now private practitioners?

A casual glance at these charts would make one think 13% of Loyola graduates went into 501+-attorney firms, also known as BigLaw, who pay those mythical $160k salaries. On the contrary, 13% of 51% of 91% (also known as around 6%) went into BigLaw. At least at my law school, justified or not, there is a rather large drop in student quality and job prospects between the 94th percentile and the 87th.

So Dean Yellen, if the time has come to disclose more information (side note: if it's the right thing to do, why was it not the right thing to do 5 years ago?), why are Loyola's most recent statistics so manipulative?

Oh, Stanley Fish, you never did change

I first encountered Stanley Fish's writing when I was a sophomore in college. I was on this silly kick of reading the "right" books, both in-class and outside of class, that would lead to my erudition, and as a result I found a list propagated by some Harvard professor who thought every well-read liberal arts-minded person should be conversant the items listed. There must have been 200-300 books on the list, and as I could only discuss maybe 10% of the books on the list at the time, I tried to remember the other titles and be on the look-out for them. (Note: like most 20-year olds, I was too stupid to see that this is not a good way to erudition).

Anyway, one of the books was Stanley Fish's Self-Consuming Artifacts. I never made it to that one, but I did happen to see a book of Fish writings in the library a while later. I picked it up and read five or six essays. One was this simplistic piece about how "free speech" was a myth. Another was this overly-convoluted exploration of interdisciplinary studies. One that sticks especially in my memory was this horribly-reasoned postmodern piece of garbage about how a scribbled shopping list, or a group of computer-generated words, could be a poem, all because they're capable of being interpreted as-if they were poems.

At the end of skimming through the book, I set it down and thought to myself "wow, this guy is intelligent, and he argues and writes like a fucking crackpot." Fast forward two years later and I was in a senior seminar that studied major authors. Like any good poser, one of my classmates name-dropped Stanley Fish in citing some bogus proposition and my instructor, without thinking about it, shook his head and said, "that guy is polemical for the sake of being polemical."

I say all this because Stanley Fish - the jack-of-all-stupid-arguments - has now written a defense of rising law school tuition fees based on - wait for it - technology. That's right, even though law schools are a veritable cash cow, the students generally supply their own computer equipment, and the only new technological expense is Westlaw and LexisNexis (both of which are more than happy to work with schools to get students hooked on using their systems), technology has driven cost increases outpacing the CPI by a ridiculous amount.

Not to short-change Fish, he also states that the inquiry should be a relative one; instead of saying "is tuition increasing?" we should ask "is the share of my income going to tuition increasing?" Although the tuition bubble is out-pacing the CPI by leaps and bounds, he somehow arrives at the opposite conclusion. For most people, justifying that statistical sleight-of-hand would be hard, but when you've spent your whole life bullshitting your way to fame, it's just another day in the office.

I refuse to post a direct link to this article and the rag that published it. Instead, I'll link to First Tier Toilet's excellent write-up and put-down.

I Love It When Dots Connect

Recently, as many readers likely know, the library at Brooklyn Law School was revealed to have been the site of a steamy women-in-underwear photo shoot last March.

"We are as shocked and mortified as you must be by these photographs," interim dean Michael Gerber wrote in an email Friday to students, faculty and staff. "When the school gave its permission to do the shoot, the school was assured that the photos would be in good taste. They are not."

Many issues could be explored with this, such as "Why the Sam Houston hell would a legitimate law school kick students out of their library for a clothing shoot, even if the pictures weren't racy?"

But since I think that answer is self-evident (for the brain-dead: it wouldn't) and has been adequately explained elsewhere, I'll point out another quirk:

This is the exact same library that received an absurdly-silly plaque as a class gift just this year.


Do you think there's any connection between the two? Originally, I criticized this plaque for quoting a pop-culture movie from 15 years ago instead of, say, someone remotely relevant to the law. And, of course, there's the obvious dirty pun pointed out in the picture above.

But what if, in contrast, someone on the class gift committee knew of the shoot and picked a purposefully-racy quote to "respond" to the fact their sanctorum of a library was being whored out to smut peddlers? I know the odds are overwhelmingly against it, but wouldn't that be something? And by "something," I mean a major win for subversive reactions to law school administrators exploiting everything within reach.

India, Our Brother of Legal Standards

With so much of our legal work in this country going overseas to India, we should expect the Indian legal field to live up to our American ideals of law and justice, right?

Currently, there's a dispute in India between graduating law students and the All-India Bar Exam, which just got postponed to the students' collective anguish. Could you imagine American law students taking this position?

We will be going to courts and starting our practise. If we are wrong let us face contempt...We have a right to practice. The only thing that is required to practice in courts is the enrolment certificate issued by the State Bar Councils, which has already been given to us. Already there are a large number of students who are appearing in the Delhi High Court without writing the AIBE and if the BCI were to do a check they would be astonished at the number of graduates who are practicing without having written the exam.

BCI is the Bar Council of India. So what you have here is a bunch of students telling the Indian equivalent of the ABA (which in India is a government body) to go piss off.

Good or bad, these are the people - this is the legal system - that our own legal system has become inextricably intertwined with by farming out legal labor. They don't require bar passage and have the stones/sense of entitlement/lack of respect for process to face contempt rather than waiting a short amount of time for a test.

Make of it what you will. I find it interesting.

Miami Finds New Way To Boost Employment Numbers

Add Miami to the list of schools pumping graduates into temporary public interest positions in exchange for a small stipend in order to boost placement numbers.

Although the author put sarcasm in his title, improperly categorized it as a "recessionomics" thing, and missed that the law school has an incentive to place new graduates immediately (as opposed to helping the butchered classes of '08, '09, or '10), one has to appreciate the mainstream notice.

Additionally, one has to give some credit to Miami. Unlike some other institutions of "higher" learning that believe there to be little problem beyond the "short-term" recession, Miami has taken multiple steps to try and help its admitees, students, and alumni. I have no delusions that our problems would be solved if every school behaved exactly like Miami, but their course of action is certainly better than some of the "earth is flat" shills lining their pockets with government-backed tuition checks.

Law School Efficiency: the Socratic Method and Completely Irrational Beliefs

Being a good little legal writer, I'm going to follow the CRACK format* for this entry and begin with the conclusion: law school classes are horribly efficient and do not cause people to "think like a lawyer" (which is, itself, an absurd phrase) any more than possible alternatives.

This conclusion should seem obvious, but legal educators continue to brag about their educational techniques as if Pierson v. Post and the Socratic Method are some sort of gatekeepers to being Perry Mason.

Take this typical bucket of hogwash from our friends at the Laverne College of Law (wherever the hell that is):

The true work of a lawyer isn’t memorizing laws, but rather understanding legal principles and how to apply them to a wide range of different factual situations. This ability is called “thinking like a lawyer,” and it is perhaps the most important thing you will learn in law school.

'The Socratic method challenges me to deepen my understanding of legal concepts and develop my legal analysis,' current University of La Verne College of Law student, Shannon Shafron-Perez, shares. 'By engaging in discussions with professors who bring a wealth of knowledge and experience to the conversation, I have gained insight into concepts that would otherwise not be available in the traditional lecture environment.'
...
Law professors use the Socratic Method to help students learn to tease out the reasoning and legal principles that went into a given judicial decision and also to make educated arguments about how that reasoning and those principles would apply if the facts were different.

What utter dribble.

Like I've said many, for a profession ostensibly based in rationality, law has a horrible track record of basing its beliefs on irrational or unproven premises. There is not one shred of empirical evidence that the law school-style Socratic Method (a random, bank-and-forth unprepared question and answer session with a student) and emphasis on casebooks produces people who "think like lawyers." Not one.

In scientific study, rule number one regarding causation is that correlation does not imply causation. Rule number two regarding causation is to always consider alternative causal forces. As philosophers like Popper and Mill showed, causation is incredibly hard to prove.

So when you hear a Law School administrator showering plaudits upon the Socratic Method for how it makes people think like lawyers, or that it's a superior method of pedagogy, the alarm bells of skepticism (ones every lawyer - hell, every educated person - should have) should sound. First, something else may be causing law students to "think like lawyers." Second, where superiority is argued, there may be an alternative to the Socratic Method that may be more efficient in causing the observed phenomenon.

Perhaps a hypothetical would help illustrate what I mean: Let's suppose you have a 1L Property Law class of 60 students. Your topic is easements implied by prior use. You have 30 minutes of in-class time and 30 minutes of out-of-class time to work with. For concreteness, let's say the law school is in Illinois.

You have two options on how to allocate the time:

1. The Traditional Law School Method: Have the students read 10-15 pages of turgid casebook text that may or may not fully explain things, including one case from New York that involved prior use easements from the 1970s. Use the in-class time to work a modified Socratic Method on 2-3 students which discusses the facts and reasoning of the New York case and some hypotheticals to flesh out variations.
2. My Proposed Alternative: Have the students read (a) Dudley v. Neteler, 392 Ill.App.3d 140, an illustrative, memorable, on-point 2009 case from the state where we sit and (b) Am. Jur. 2d's brief section on implied easements. The first few minutes of the in-class time would be spent explaining the facts of a complex hypothetical law suit calculated to flesh out minute points. I would divide the class down the middle and assign each half to a side of the lawsuit. The next five minutes would have the students working on arguments for their side, sketching an outline for their side's trial argument/appellate brief. The remainder of class would be used to discuss the arguments for both sides, occasionally calling on students at random to ensure participation (note: contrary to what many law professors apparently think, mandatory participation is not synonymous with the Socratic Method).

The former approach gives a generic, cursory overview of basic principles and triggers active participation of variable quality in 5% of the students. The latter method would give a generic overview AND show students the governing law in the state a majority of them will practice. The latter approach simulates how an associate at a firm may handle a new problem: consult secondary material, consult on-point primary material, talk with senior partner about the merits when that law is applied to our factual situation. It would generate 95+% active participation on every topic. Furthermore, by giving students 5-10 minutes to prepare a response and asking open-ended questions, you eliminate many of the major drawbacks of the Socratic Method, like the constant fear of unpreparedness and not knowing what will be asked.

Of course the latter method would eliminate bland, standardized, profitable casebooks and require professors to run a Westlaw search every now and then, but I think the advantages would be worth their well-paid time.

In fact, it is my firm belief that 2-3 years of the latter method would far better prepare students to "think like a lawyer" than the former, and that shouldn't be much of a surprise if one looks at things in the abstract.

The Socratic Method - as it's used by Socrates in Plato's Meno - is only fully effective for logical reasoning, that is, problems solvable through application of formal logic. Law problems, which often involve interpretation of fact and application of policy preferences, are not solvable through formal logic.
Thus, what law professors use is an inauthentic Socratic Method. Instead of making students reason their way to logical conclusions (like the laws of geometry, for example), professors force students to reason their way to legal conclusions based on lines that are drawn from non-logic-based sources (like sound social policy). As a result, students - the 2% of class time they're each "on call" and respond to a professor's cycle of back-and-forth questions - aren't really learning how to apply logic or really "how to think" (the purpose of Socrates' method) at all. They're learning where the lines are drawn, which isn't a process, but an observable fact, which their teacher could just tell them (or they could read in a well-written book).

With that in mind, the Socratic Method shouldn't be expected to teach a damned thing more than any other method of mandatory participation. Since mandatory participation can be achieved in a variety of ways other than the Socratic Method, law professors' and administrators' claims that there's something special about the Socratic Method are baseless bullshit.

So why do law administrators and professors continue to extol the virtues of this thing as if it were a religious rite of passage?

I present but one explanation among many possible causes.

The ABA requires that every single law student is subjected to 45,000 minutes of classroom, desk-and-chalkboard instruction time, independent of the knowledge or skills of the student. (Standard 304(b)). That's 750 hours. Since going through outlines and basic concepts of relevant material would only take a fraction of that time, law instructions have to find ways to fill the remainder of the time. Given all the possible alternatives, law schools have chosen their version of the Socratic Method, since telling students that they are wrong and steering them back to correctness eats up time. Additionally, the casebook /large-class /Socratic Method routine is cheap to produce and easy for professors to implement, as anyone with a good outline can conjure up hypotheticals to illustrate points.

And what's more is that the Socratic Method has the force of history behind it. Generation after generation of lawyers have faced this same half-baked pedagogicial tool. They graduated, and did well, and credited the Socratic Method and promoted its increased use. It becomes a self-fulfilling prophecy that one "thinks like a lawyer" after navigating a Socratic argument.

At one point in time, with smaller class sizes and inaccessible courts, before Westlaw or widespread secondary sources or commercial outlines, it may have had quite a bit of utility in leading students to see the lines while actively participating and interacting with their professors. It may have been genuinely-good preparation for being a lawyer, possibly the best there was.

But in today's environment that simply isn't the case.

Imagine how that 750 hours could be spent instead of sitting in a sterile classroom while other students back-and-forth it with the professor. They could be spent going over actual appellate court briefs and discussing why the attorneys argue it the way they do. They could be spent going to actual courthouses and watching real trials, or in watching trial footage on video tape. They could be spent discussing actual modern law that's relevant to real attorneys working today rather than random cases from 1965.

Many law school syllabi make some claim about how reading an outline won't teach you the law; only classroom attendance will. Given that reading an outline takes maybe an hour and sitting in a 3-credit class takes 45 hours, why would anyone expect otherwise?!? Comparing apples to apples, let's put that 45 hours (and the 45 hours used to prepare for them) to different use. I'm pretty sure most anyone with any connection to the legal world could put that 90 hours to significantly better, more efficient use than the Socratic Method and casebook song-and-dance, even a lawyer with a damaged capacity for imagination.

When one considers these more efficient alternative uses of time, defending the teaching format of current law schools as being a sound pedagogical tool worthy of continuation - especially given the damaging psychological effects it produces - becomes a Herculean task, an apt word given that most beliefs regarding the effectiveness of the Socratic Method stem from mythology and not empirical evidence.

I shudder to think what would happen if medical school pedagogy were run this way.

*CRACK = mnemonic device for remembering a sure-win organization for written legal arguments: Conclusory introduction, Rule of Law, Application to Facts, Conclusion, Kill self with alcohol for adhering to a dull writing format.

Would American Students Ever Riot?

For those who haven't heard, a riot erupted in London on Wednesday driven primarily by students who are angered over tuition hikes and other recent economic measures by the British government. Although most media outlets seem to be phrasing it as a precursor for broader British protests, like a true narcissist my own thoughts turned to America. In other words, would American students ever riot over broad tuition hikes, or any government action that collectively screws 95% of them?

My gut reaction - like many of my compatriots, I imagine - is one of skepticism. Americans are more docile. Our tuition rates rise 3-4% every year and there's barely been a flinch, much less an editorial in a county gazette.

But consider this: in the late 1940s and early 50s, protests at the universities - which were run on in loco parentis principles - would have been unthinkable. And yet the late 50s, 60s, and 70s brought a wealth of protests from our youth on a wide array of grounds: racial, militaristic, sexual, even curriculum-based.

Given that our current economic climate is going to inevitably screw over a generation, after arguably screwing generation x over, and I could easily see the universities becoming a locus of social protest again. In retrospect, the students of the 50s and 60s were justified by history compared to the beliefs held and espoused by their parents and professors. There's little reason the same phenomenon won't happen with respect to economics, no matter how straight-laced, inside-the-lines the current student generation's "leaders" seem.

What's the Big Deal with SUCOLitis?

For non-lawyers, lawyers have a perception of being horribly unfunny, stuffy, alien, etc. In other words, lawyer jokes are much, much funnier than jokes told amongst lawyers. First-year law students regularly laugh at things that are not, under any objective standard, funny (reasonable person jokes, blackacre jokes, etc.), and the level of humor does not improve much from there. To wit, from Skilling v. United States' oral arguments:

MR. SRINIVASAN: In the Martha Stewart case, for example . . . the only reason you needed an extended voir dire was because of the celebrity status of the defendant. You didn't have the deep-seated community passion and prejudice that characterized the Houston venue in this case. So, I think it's not at all unusual to have that kind of extended voir dire, and, in fact, we would say it's absolutely necessary to assure that the defendant receives the fair and impartial jury to which he's entitled.

JUSTICE SCALIA: So either this was too little or Martha Stewart's was too much?
(Laughter.)

Or this, from Florida v. Powell's oral arguments:

MS. BRUECKHEIMER: ...[the Florida S.C.] starts out talking about Traylor and our constitution at the beginning, and they . . . never say that -- that our constitution isn't insignificant or that it's not important. If they did, they wouldn't have felt the need to cite Traylor.

JUSTICE GINSBURG: I think you would have had a much weightier argument if it hadn't been for Michigan v. Long. If you could have said --

MS. BRUECKHEIMER: It -- it would have been nice.
(Laughter.)

JUSTICE GINSBURG: We could have then remanded to ask the Florida Supreme Court: Was it independently ruling under its constitution?

MS. BRUECKHEIMER: I -- I will keep that in mind.
(Laughter.)

For the non-legal-minded reading this, these snippets are as unfunny to you as they should be. You're not missing anything. Incidentally, both of these were criminal cases where the "laughter" moments came during the criminal defendant's turn to argue, both of whom more or less lost. I'm sure if you did a widespread correlation of "laughter" moments, you'd see similar patterns, but I digress.

The real reason for this entry is the satirical blog SUCOLitis. Although it is now been taken down, SUCOLitis purported to be an Onion-style blog concerning the goings-on at second/third-tier Syracuse College of Law. It was ostensibly run by a group of 2Ls and 3Ls, but for the time being school administrators are apparently investigating 2L Len Audaer for "harassment." Syracuse considers this a violation of their honor code based on "complaints from un-named students."

I understand fully that as a private institution* punishing a student, Syracuse's actions have no First or Sixth Amendment issues. But for the love of Johnny Marshall, if you're going to be an institution instilling students with legal ethics and respect for the Constitution that keeps some of us employed, maybe - and perhaps this is just me - but maybe you could respect the values behind Freedom of Speech or the Confrontation Clause? Perhaps you could not punish someone on anonymous tips for expressing themselves in an outside forum?

More importantly, maybe you could allow your students to try having a sense of humor. Although I can't access the blog currently, these are some of the titles I can find in archived items:

• Beer Bong Elected 2L President in Recall Election
• Senate President Elected SU's Sexiest Semite
• New Chipotle Praised for Spike in 3L Employment
• Class of 2013 Named Most Attractive In History

Brilliant, Swiftian satire? Aside from the 3rd one, no, but who can blame them given the Supreme Court's feeble attempts? In good taste? Of course not, but what satire is?

But what in the hell is the problem here? Oh, yes, because it's "bullying" just like that which leads gays and lesbian teenagers to kill themselves.

Dear heavens. This is exactly the type of behavior people make fun of lawyers for. If we expect law students to go out into the world and be social and political leaders, god willing, they're going to have to deal with indecent satirists. If we expect lawyers to interact with their clients like real people instead of greedy trolls who crawl out from under bridges when there's a remedy to be had, we should encourage this sort of creative outlet. My opinion of Syracuse went up as a result of the blog and down as a result of the backlash. I can't imagine I'm in the minority of Americans on that front.

If individual students are having their reputations harmed, they have a remedy in the civil courts with a plethora of defamation and modern privacy claims** - and possibly with the school's disciplinary body. But anonymous complaints of generic offensiveness? That's cause for Syracuse to investigate a wordpress blog? Really?

No wonder lawyers are miserable. Our institutions are set up to warp their senses of humor away from genuine attempts at satire and towards finding lifeless Supreme Court banter worthy of laughter.

*It's rather curious that institutions like Syracuse Law are still considered "private" when the overwhelming portion of their income comes from federally-backed loans to pay exorbitant tuition fees, most of which will be eaten by federal taxpayers. Differentiating between public and private law schools on this point is little more than an exercise in semantics, but hey, isn't that much of law?

**...which in turn may employ Syracuse alums. By acting and sending a highly-paid professor on a goose chase to investigate this kid and shut down the blog, Syracuse may have prevented legitimate legal work from developing that may help graduate solo practitioners trying to pay off their debts. Is it really smart of a law school to go out of its way to reduce demand for legal services? I think not.

Women in Law: No News Here

In case you missed it, the NAWL recently put out another survey that shows our nation's biggest law firms put out a welcome mat for women, but don't dare let them wander upstairs.

Among the highlights:

• "Women lawyers account for about 15% of equity partners . . . This number is essentially unchanged in the past five years"
• The average firm’s highest governing committee includes only one or two women among its members – and about 10% of the nation’s largest firms have no women at all on their governing committees."
  
• "[W]omen equity partners earn[] only 85% of the compensation earned by their male colleagues."
• "Women represent a surprising 73% of “fixed-income equity partners,” those lawyers in mixed-tier firms who are required to contribute capital to the firm, but nevertheless receive only an annual salary and performance-based bonus rather than sharing in the overall profits of the firm."
• "Women represent 60% of staff attorneys."
  

This is nothing new to anyone well-versed in how large, conservative organizations handle societal pushes towards inclusion and diversity. Even though 50% of law school graduates are now women, and women have comprised 40%+ of the lawyer pool since 1990, the elite at the largest firms continue to find innovative ways to marginalize the disfavored gender.

Remember: these are the same firms that more or less run the ABA. In theory, the legal profession should be leaders in gender equality given a lawyer's broad schooling in things like discrimination and ethics. Furthermore, as quasi-public servants, one would expect lawyers and their firms to not serve as "good ol' boy" clubs. But given their role in the ABA, is it any wonder nothing is really done to "[e]liminate bias in the legal profession and the justice system."

That said, this is my favorite line in the entire report: "Largely in response to corporate clients’ demands that firms play proactive roles in staffing matters with a more inclusive mix of lawyers, law firms have developed diversity goals and diversity program initiatives."

What bold-faced hypocrisy! Only 15% of corporate directors are women (an elected office, but usually elected at the suggestion of the company) and you're demanding that women have a bigger role in firms? You won't hire a female CEO or pay her what you would a male, but you want the people representing you in court to do it?

Furthermore, why not drop them and find a firm where women actually have a say in something? Ever hear of supply and demand? Remember, even the biggest and baddest firms mess up.