Elie Mystal Gives Terrible Advice

It's easy to pile on Elie Mystal, who must give nightmares for Harvard Law School's marketing department by being a public intellectual lightweight. But gosh darn it, it's kind of fun.

So today Elie - in contrast to his self-proclaimed skepticism about law school - has decided to tell a disgruntled 1L who wrote in that he should stay at his "elite" law school. What a shocker, eh?

Here's the kid's basic info:

• At an unidentified "top 10" school
• At the bottom of his class despite "working really hard"
• Lost motivation and is pessimistic about his future in the law
• No great pre-law work experience
• Liberal arts major
• "Significant financial help" from parents.

Now here are Elie's reasons for staying in law school:

(a) He picked the right parents.
(b) He got into the right school.
(c) He doesn’t have any other burning passion in his life.
(d) The worst part of law school is over.

Why wouldn’t this guy finish law school? Here is a situation where there is almost no downside. Assuming he’s going to be in a position to graduate debt-free or nearly debt-free, with a degree from an elite institution, what’s the harm? He can do anything he wants after it’s over. No, idiot law school marketers, not because you can do anything with a law degree. But because you can do anything with financially supportive parents.

This is retardation at work. Let's take these in order.

(a) "Rich parents" are not a valid reason to continue in law school. Elie claims that the kid is graduating "debt-free" if mom and dad pay for the whole thing. Furthermore, he claims that this guy can go to law school for "free."

That's an outright lie. Just because he's burning mom and dad's money instead of the federal government's doesn't mean that it's now "free." If anything, I'd feel guiltier about hoodwinking my parents into paying 50k a year instead of getting the government-banking complex to pay 50k a year. Furthermore, our concepts of "debt" and "free" should be broader than whether some 3rd-tier financial institution sends you a bill after graduation. The kid is sacrificing two more years of his life, plus taking the limitations of having a J.D. on his resume. Lost opportunities are a major downside, especially for someone in their early-to-mid 20s.

And if "you can do anything with financially supportive parents," that actually counsels against staying in law school doesn't it? Or it's a neutral at best? Your parents can help you start a business, travel the world, pursue other passions. There's plenty of investment alternatives here, so even with rich parents, you have to defeat the alternatives and prove law is a strong enough investment to keep that capital invested in it.

(b) There's no such thing as the "right school" for someone who finishes at the bottom of the class. Elie the elitist called it a "top 10" school, so I'm guessing it's somewhere like Penn or Northwestern or NYU and not Harvard or Yale. Given the continuing BigLaw and government cut-backs, I would not gamble on being a bottom-quartile graduate at Northwestern or Penn. Georgetown has already been caught fudging its graduate employment numbers, and Duke had to set up a program to ensure all its graduates landed jobs.

Never mind that to be an attorney, one actually has to pass the bar exam. Depending on what "bottom of the class" means to this kid, he might find the bar exam a very difficult challenge. For example, according to Law School Numbers, at NYU 6% of bar takers don't pass on the first try. For Michigan, 8% of in-state bar exam takers did not pass in 2007. For Cal-Berkeley, 6-16% fail the"notoriously hard" California bar exam the first time around.

I can guarantee you some of this kid's classmates didn't work that hard at all. If he put in a top effort and wound up near the bottom, he's probably going to have a difficult time with the bar. At which point in time, his "top school" doesn't matter at all. Investing all that time only to find the bar exam an insurmountable hurdle (like >2% of the class often does, even from "elite" schools) is a major downside; you cannot ignore this possibility.

So the bottom line is that even at a top school, this kid needs to have the right attitude to be paying the not-so-free full sticker price.

(c) The question is not whether he has some other burning passion, it's whether he actually has a burning passion for the law. This person seems very pessimistic and burnt out. He has no motivation by his own words. If he has no motivation at the end of 1L (before spring exams, when he might have a chance to redeem his fall performance), how is he going to feel answering interrogatories at 9 pm? How is he going to do well in the next two years? How is he going to have to drive to do top work for his clients and/or his firm? How is he going to be gung-ho about finding work opportunities in his 2L and 3L years?

This student seems to have gone to law school because he had nothing better to do. That's not a good reason to stay in law school when he has no strong desire to actually practice law.

(d) The worst part of law school is not necessarily over. People like to talk up 1L year like it's some sort of boot camp, but at least in my experience, parts of 2L are worse depending on your array of classes. And at least during 1L year, any thoughts of unemployment and debt repayment are far in the distance. Try talking to a generic 3L right now and the fog of unemployment and taking the bar exam plagues them worse than even 1L exams. 1L is time-consuming and stressful, but it's a time-limited stress; once mid-May hits there's no more 1L Socratic method or harsh-curve exams. That doesn't work with debt default.

All in all, this person needs to think long and hard about the law, and if they have no honest drive to be a lawyer, they need to get out after this semester. The connections are, for the most part, already made. With "financially supportive" parents, the life reorganization won't be that bad, and new experiences can quickly wipe away the tarnish of a bad year in law school.

The loss of time and money is a major harm, Elie. To spend significant amounts of both, the student should have a positive, compelling reason for staying in law school. This student does not.

Would you personally spend $100,000 and two years of your life on something you had no enthusiasm for that had no guarantee of paying any kind of a reward down the road? Of course not, and if this didn't involve an "elite" law school, I can't believe even Elie Mystal would be so dumb as to suggest otherwise.

Rutgers-Camden Draws Faulty Conclusions, Case Western Students Show Some Fight, and Reminder Re: Program on April 7

For all those of you who may think rankings and lists are benign tools, I give you this nauseating press release from Rutgers-Camden:

In the midst of a challenging economic climate, the Rutgers School of Law–Camden is emerging as a smart investment for strong career preparation.

What is their proof for this high-flown, completely contrary statement that spending $200k in real cost on a legal education is a "smart investment" when it may yield only a negligible increase in earning power for the majority of graduates?

Oh yes - surveys! First, they cite the flawed US News and World survey I've already discussed (even if the survey were accurate, it wouldn't necessary mean that Rutgers-Camden is a "smart investment" given that there's no discussion of alternatives). Second, they cite some meaningless Forbes survey ("The Best Law Schools for Getting Rich;" no, I did not make that up) that tracked mid-career earnings of people a generation or two above the current class of applicants as proof that Rutgers-Camden will bring the current class the same piles of lucre.

Folks, if that logic worked, people should forget law school and invest every dime in IBM, GE, and Microsoft. After all, if it worked for people in 1980, surely it'll work for today's kids.

Given how ridiculous such a proposition is for ordinary investing, it's preposterous that (a) anyone serious argues that because going to law school [x] made some 45-year-old rich, it'll do the same for today's 22-year-olds; and (b) anyone actually believes it.

But don't worry, Rutgers-Camden is obviously a very special institution that is clearly different than its peers on multiple levels:

“The true measure of the Rutgers School of Law–Camden is in the success of our students and graduates, the excellent scholarship of our faculty, the friendly service delivered by our staff, and our ability to help the citizens of New Jersey through our highly effective pro bono and clinical programs. Rutgers–Camden excels in each of these important areas.”

Additionally, the Rutgers–Camden law school is included in the 2011 Princeton Review Best 172 Law Schools.

Whoa, can I still transfer to this magical, unique place? I'm convinced I'll be rich in 10 years.

In other news, Case-Western has been without a real dean for a while, and now one of the finalists, former FEC Chairman Bradley Smith, is coming under fire as some of the Case-Western community has launched a website opposing him:

"CaseAgainstSmith.com seeks to inform members of the Case Western Reserve University community about Smith's radical views and history," says an unsigned press release on the web site. "Smith has been described as the intellectual powerhouse behind efforts to roll back Watergate-era campaign finance reforms. . . . We are concerned that the appointment of a radical such as Smith to Dean of the Law School could distract from the many strengths of Case Western Reserve University."

You can view the actual website here. Basically, Smith was amicus curae for the very unpopular side of Citizens United, has connections to the Koch Brothers, and has a murky ethical history when it comes to corporate-political-judicial entanglements. Frankly, I understand the concerns. It's simply impossible to separate some people from their politics when their views are so radical and antithetical that it detracts from their ability to lead a large organization, especially one like a law school that is (supposedly) committed to educating students in ethics, fairness, collegiality, and all the traits that should make the profession and its social function worth a damn; they may fail much of the time, but that's the ideal. And if students have no respect for the people running the system, the school's mission is undermined (which is another reason why schools' misleading of students is so nefarious, but I digress).

In addition to claiming the Supreme Court's adoption of his views relieves him of being a radical (need I remind him that the S.C. once adopted pro-slavery views?), Smith has responded that "One doesn't seek a deanship to advance a political agenda, and the school isn't choosing a political leader." I find that highly disingenuous and an absurdly narrow view of what "political" means, or what a deanship symbolizes to a school.

In a final piece of news, I'd like to promote the upcoming panel "JDs in the New Economy." It's going to be this Thursday April 7, 2011, at 12 eastern/11 central. Third Tier Reality's Nando will be participating along with a number of esteemed people (including Dean Closius of Baltimore, whose contradictory statements in the NYT article I discussed back in January). The group will specifically discuss the value of a law degree and law school curriculum. Unfortunately, I won't be able to listen in but it looks to be fun, it's free and I encourage my readers to do so if they're available.

Kansas Sees Huge Drop in Applicants: But Is the Quality Improving?

From the Lawrence Journal-World:

KU [law school] extended its deadline by one month, to April 15. Even with that extension, [interim dean] Mazza said the school expects a drop from 15 to 20 percent from last year’s group of about 1,100 applicants.
...
Mazza said he didn’t anticipate significant negative consequences for the school because of the lower number of people interested in applying to KU.

“What we are finding is that the quality of our applications is steady to slightly improving,” he said.

Right. So you decided to extend the deadline because _____ ? If there's no negative consequences, why are you so desperate for more applicants?

KU is a state flagship school that essentially has a monopoly over high-level legal studies in Kansas (no one with an honest choice would go to Washburn or cross the river and go to UMKC). It's fairly cheap, too. If it's seeing a steep drop, that's a major indicator that people are figuring out that not even the main state flagships are worth going to.

But this "quality" argument thrown out by Interim Dean Mazza seems to be the latest and greatest in law school administrator rationalization. For it to be true that a 20% decline would prompt an increase in the quality of the pool, the type of people who applied last year but didn't apply this year would have to be disproportionately lower-qualified (lower LSATs, lower GPAs). That would suggest that there's some sort of significant correlation between desire to practice law and undergraduate academic performance. Somehow, I doubt that. And it seems to me higher-qualified applicants are more likely to pass on schools Kansas and go for T15s like Texas or Michigan, given how crucial prestige is.

Absent concrete evidence, I just don't buy that the quality has anything to do with the seriousness of the applicant. And I'd like to remind the dean that a 20% drop in his applicant pool means they have to broaden their admissions criteria slightly, which will almost certainly lead to a drop in the matriculation pool. That conclusion is almost inescapable unless the 150 LSATs were all apathetic and the 175 LSATs are all gung-ho. If anything, though, it's backwards.

But overall, this is very good evidence that the law school bubble has burst and students are no longer buying into this ridiculous system. Of course, that doesn't mean they can identify what changed:

An article in the New York Times in January seemed to start the conversation, [student Tonda Hill] said. (Mazza said the person profiled in the article didn’t do enough research into law school before beginning his journey.) Other students have blogged about their difficulties in finding jobs.

That article wasn't about a "person profiled." Furthermore, as I've previously pointed out, it's a false conclusion to assume the New York Times article is what caused this. At the time that article came out, almost everyone in the 2011 applicant pool had already taken the LSAT, secured fee waivers and letters of recommendation, and had likely set their mind on applying to law school. Those "other students" [graduates, for the most part] have been blogging for two years in some cases, and they should be given credit for many of those who never started on the "journey" in the first place, not to mention that those blogs are a but-for cause of the New York Times article.

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.