Legal Minds at Work, I Guess

Something called "PrawfsBlawg" recently did a post on the alleged professor posting at Inside the Law School Scam. The article itself is a decent, honest response to the anonymous posts, albeit unreadably professorial in some places*.

The comments section features a bit of a spat between a few professors/professor supporters and people who support the usual "scamblogger" criticisms.

I was struck by an argument made by someone posting under the name Orin Kerr, directed at someone named "Tom:"

[I]f you oppose high law professor salaries, do you also oppose high law firm salaries? Law firms can pay 25-year-olds $160,000 plus a bonus because they bill out their work at hundreds of dollars per hour. Is that also a scam, in your view? Or do you think lawyers are worth every penny?
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[I]t sounds to me like you're not concerned if lawyers scam clients, but you think it's outrageous if law students are misled into thinking that they can take part in the scam.

This argument is so facile and devoid of economic sense that I had a hard time believing anyone would make such a comparison.**

And yet there's an Orin Kerr who apparently is one of the most-cited legal scholars focusing on criminal law in the country. A Princeton grad in engineering. Master's from Stanford. J.D. from Harvard. Supreme Court clerk. Lots of titles and credentials that mean little to anyone outside the legal stratosphere.

If it is the real Orin Kerr, one has to wonder why he's spouting an argument so utterly braindead. Also, one has to wonder why a major legal scholar apparently doesn't understand what a "scam" is.

I don't expect professors and experts to be perfect; no one is, not even the best at their profession. But I'd expect something more than what a freshman economics student could debunk fairly easily after reading a few articles.

It seems to me that, inadvertently, Professor Kerr may have provided support for some of the anonymous professor's main points regarding law professors and legal scholarship.

*Actual sentence from the piece: "...the kind of honesty that anonymity allows can sometimes lack a deeper level of integrity: that is, it can pride itself on its brutal frankness without exhibiting the kind of humility, care, self-doubt, and acknowledgment that one might be wrong that comprises full honesty, the kind of honesty we are often constrained to engage in when we attach our reputations to what we say."

**For the completely unenlightened: Law professor salaries are determined by administrations whose operating budgets are determined by the demand as expressed by students (consumers) willing to pay increasing tuition amounts with federally-backed, non-dischargable guaranteed loan money versus a supply that's abnormally restricted by the presence of tenure. The consumer in this set-up has no say - and often no clue - what professors are paid; they have no discretion over whose salaries they pay. Finally, law professors are paid as part of "public service" institutions, almost all of which are officially not-for-profit/non-profit.

The salaries of BigLaw associates are determined by law firm management committees whose operating budgets are determined by the demand for high-end legal services on which they can bill junior-level associates against the supply of firms that can provide high-end legal services to large corporate clients. The revenues of biglaw are not boosted artificially by a guarantee that all bills will be paid. The consumer who pays these bills has discretion and, most importantly, bargaining power. They are usually directly billed for the labor expended, and can protest exorbitant bills, and/or request that work not be done by overpriced associates doing glorified paralegal work (which some companies have started to do). And these are for-profit corporations that make no serious claim to serving the broader public.

I'm not arguing that high salaries for 1st-year associates are entirely sane, but it's a completely different issue than professor salaries. The former presents no moral problem because we have for-profit parties contracting in a free marketplace, where the salaries are determined by market forces and are fully transparent to the ultimate consumer. Any risk of payment above market demand harms the paying company as well as the ultimate consumer, and no one is "stuck" with the risk of non-dischargable debt should the process lack economic efficiency. Said problem is also immediately correctable once revealed: the ultimate consumer can find a new law firm with lower billing rates, and quickly.

This is not how higher education works at all, and woe upon ye who can't tell the difference, or see the possible moral issue that develops when relatively posh professor/administrator lifestyles are propped up by ABA regulations, tenure, guaranteed payment, and non-dischargable student loans, which relatively unsophisticated consumers are going to be responsible for when they have no conception of what repayment will be like. Nor, in this set-up, do the lenders have any incentive to consider the possibility of repayment or default.

I see the professors, surely all hearty advocates of the First Amendment when it's convenient for them to believe in the principles of free speech, have closed the comments section after less than one day, and after people started showing up and calling them out for not understanding the issues.

The issue whether they're "worth" the salary; in that case, neither the law professor nor the young lawyer are. The issue is where the money comes from, and who and under what conditions the high salaries arise.