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.