Who Actually Listens to Decorous Protests?

That First Amendment is such a downer, isn't it?

I give you Andrew Spillane, young ('11 graduate per his bar entry) Wisconsin attorney and now, it seems, the legal community's self-appointed Miss Manners:

And then, there are the scam bloggers. These law students and graduates have taken to the Internet to voice their complaints about the cost and quality of legal education. They claim that their schools defrauded them—or scammed them, if you will—into believing that most of the schools’ graduates landed employment in private practice or with the government or in business post-graduation, all implying to them that they would be working as attorneys. But lo and behold, the employment statistics reported by the schools may have been inflated, counting someone working at the law school on a part-time basis and someone working as a barista at Starbucks as employed under their statistics.

These blogs are dripping with anger and vitriol. Some are littered with curse words. One website even refers to law schools not as schools but with various names for toilets, restrooms, and garbage cans and will even post piles of fecal matter and vomit to begin a rage-fueled rant about a particular legal academic institution. And what of professionalism? Not for us, says one scam blogger, for that is a concept imposed by the elites in the legal profession upon the rest of the bar.
...
Should lawyers and law students care when we see others like the scam bloggers acting reprehensibly?

I say we should care.

We should care because lawyers occupy a special place alongside an American institution that is both a structure and an ideal: democratic rule of law. Respect for the caretakers of our legal system is essential to our respect for the legal system itself.

Ah, yes, if you can't kill the message, kill the messenger. Aside from figuring out that this isn't recessionary, Spillane hasn't learned that the message and the medium are inextricably interconnected.

If so-called scambloggers were publishing under their real names in a marketing attempt - i.e., if they were representing themselves in their professional capacities to gain clients - I might agree with Spillane. Professionalism is a business concept. But these blogs are pure, straight-up political commentary that could be made by anyone, legal professional or not, the type of speech most shielded under our Constitution. Never mind that the only non-decorous of the "scam-bloggers" are either anonymous or have no intent to ever practice law. Spillane's objection thus rings as hollow as a partisan accusing another partisan of lacking respect for the sitting President. It's nothing more than a veiled attempt to silence discomforting speech under the guise of respect and decorum.

In fact, one of the principal points of this debate is the lack of professionalism in the legal community. And another is that the law doesn't have a special place in American society and is actually looked down upon. And a third is that traditional channels of discourse would utterly fail.

So Spillane is completely sidestepping the real debate, and in a rather lame fashion, as it mirrors many of the arguments made by every conservative reactionary in history. Even though many of these problems have been present for decades, the message is now being heard. But Spillane doesn't like the medium, which raises a question: what other medium was possible?

Speech attacking the elites and the status quo is a tricky thing. Contrary to populist bullshit, the mainstream press is extremely pro-status quo and holds professional norms sacrosanct. Most media outlets won't dare quote a blog, no matter how well sourced, -written, and -researched it is. Book publishers won't publish anything without a ready audience; any attempt at "exposing" the law school "scam" through that route would die on an editor's desk or in self-published obscurity.

The law school "scam" isn't conducive to television or radio segments. It's a complex, multifaceted problem that goes decidedly against the standard way of thinking (education = good). And any media outlet would likely call up a law school administrator and/or ABA representative to give "balance." Have I mentioned that the opposition to this message is moneyed and powerful? And that there's a natural inclination against speaking by the nature of the industry? And that the ABA and the law schools have no interest in internal reform?

All in all, the best method for bringing these problems to light was the blogsphere. Fundamentally, it's no different than people in revolutionary times using inflammatory language and pseudonymous speech to present an opinion that went against common thinking and against the moneyed and powerful. I'm not saying Nando is Sam Adams, merely that neither could have expected institutional reform to come from the top, nor would "traditional" and "decorous" approaches have worked to achieve reform.

The most damning part of Spillane's blog is that he agrees in substance. The reader should note that Spillane can provide no alternative about how beneficial change could happen without this particular medium and its interrelated message. Instead, he goes on some harangue about how we all have to "respect" the system and keep its public reputation on par with its lofty place and how "scambloggers" damage the prestige of the law.

But as many have noted, that ship sailed a long time ago. Attorneys' grubby faces are plastered on buses and park benches, replete with dollar signs and entitlement claims to everyone who's ever walked outdoors. Slick operators base whole practices on gambling with contingency fees. Lawyers regularly snipe at each other in pleadings, memoranda, affidavits, and the like. It's an adversarial profession that tends towards animalistic behavioral tendencies. The education system promotes feelings of arrogance, entitlement, and general assholery. The profession's culture promotes hours that deny many the opportunity to participate fully in the community. And so on.

And then there's the elephant in the room: the fact that having a massive oversupply of attorneys demeans the profession itself. A glib response to Spillane would be that if you don't want whining attorneys, give them a fair chance with a reasonable debt load for the product. Teach them useful skills in the school itself. There are honors graduates from Tier 2 schools driven out of the law, talented people who sit fallow for multiple years. Does that not tarnish the professionalism? When qualified members of the profession go broke while similar people a few notches away land $160,000 jobs? A profession protects its members; law does not do this, and it causes many of those things that erode professionalism.

Spillane acknowledges some of this, but he sees "scamblogging" as a detriment to professionalism rather than a possible cure. This is a funny result to me, because if most "scambloggers" had their way, law's professionalism would improve dramatically in the years to come.

Unfortunately, Spillane's view as presented is too superficial, and too assuming of the validity of official channels and etiquette (let's face it, there's no way the ABA changes anything without a critical media) and rejecting the need for literary invention. This is not an issue where state-friendly, decorous speech will accomplish anything (if it actually does ever accomplish anything).

Incidentally, one of the commenters - allegedly Andrew Golden ('09, Marquette) - makes the following claim:

I’ve been out of law school for 2 years, and I can name maybe 5 or 10 people, tops, in my graduating class who wanted a job in the legal field and either don’t have one or would give up their solo practice for something less than a sweetheart offer. And that’s 2 years out, which may seem like a lifetime to you but is really a drop in the bucket career-wise.

It's about 3-5% of a suggested typical career and long enough to default on most loans. But I digress...

The Wisconsin Bar is great because it allows a lawyer search by law school and year graduated and lists most recent addresses for bar members. In Wisconsin, you can waive the bar exam under diploma privilege if you graduate from UW or Marquette, so I think it's a fair assumption that almost all of the class were Wisconsin bar members after law school.

Reviewing the class, I found:

138 in bona fide Private Practice, government jobs, legal aids, decent non-law jobs, etc.
18 who went solo
4 in clerkships
38 with no place of employment listed
5 with suspended licenses

So Mr. Golden is claiming that only 5 or 10 of those latter 43 people didn't want law firm jobs, not even counting the ones with non-law full-time work? Really? There were 203 people in the Class of 2009 who had Wisconsin licenses at one point. That's 21% who don't list any place of employment or whose licenses are suspended. 8.9% of the class went solo, and I frankly can't believe that they all have enviable practices.

But Golden probably wouldn't see the systemic problem if it were served on a platter to him:

[O]ur experience isn’t really that much different than my friends with PhDs or Masters or MDs or MBAs; we all recognize that you don’t start out as the CEO or the general counsel, and it takes time and effort. If people want to sit and pout and whine because they have to struggle for a little bit, fine. But they could have chosen a cheaper law school, or a different part of the country, or different internships, or any number of other factors. They could have gone part-time and worked while they did it. Suggesting that they aren’t the people primarily responsible for their lot in life is, in my opinion, incorrect.

Of course, the "you could have chosen a different path" argument could be used to defeat every attempt at broad social reform ever made, but hey, it doesn't stop people like Golden from telling us fundamental systemic issues, feerally-backed debt loads, popular mythology, and consumer fraud should be swept aside because you can conveniently blame the individual, which I'm not sure anyone actually disputes. (Also: "We're similar to PhD's or MBAs" is not a good argument)

Individuals are at fault; they're the only reason this system continues; the silence of the individuals who came before them is the only reason it's made it this long. And now that people are actually talking about the elephant in the room, there's no reason arguments and free speech should be stifled because of decorum or Ayn Rand-style balderdash.