Quinnipiac to Retain Felon Administrator

Yesterday, I reported on Mary Ellen Durso, who, despite being found guilty of fraud and tax evasion to the tune of $126,000, was only getting three years of probation.

Today, we find out that Mary Ellen Durso will get to retain her job as Registrar and Dean of Academic Affairs.

Mary Ellen Durso will stay on board as Quinnipiac’s Law School registrar after being sentenced to three years probation for bank fraud and conspiracy, according to Law School Dean Brad Saxton....

“I have conducted a careful review of the situation and continue to have complete confidence in Dean Durso’s ability to perform her duties here responsibly,” Saxton said in the e-mail, sent out to law students, faculty and administration.

Pardon my French, but what the fucking hell. Quinnipiac is running an organization whose sole purpose is to groom future professionals who have to pass a character and fitness test and maintain standards of responsibility. If a lawyer did this, it would be a one-way ticket to disbarment and job loss. There is no forgiveness when a lawyer commits a felony, especially one that requires dishonesty as an element of the crime.

For Quinnipiac not to terminate this woman immediately is hypocritical and absurd. Quinnipiac's students - many of whom have a very hard time finding jobs even if they are ethical saints - may be rejected for character and fitness reasons if they have something as benign as consumer debt. I have no doubt that Quinnipiac would waste no time kicking a student out of school if that student conspired to commit $126,000 worth of fraud. But this administrator not only gets to keep her job, but gets to retain a prestigious title and is left in charge of student enrollment.

Sweet Georgia Brown, this woman belongs in jail, not administering the affairs of a professional school. But then again, I guess maybe conspiring to defraud people may make one more qualified to help run a law school given the creative accounting used to keep luring in federally-backed loan dollars.

This Week in Law Professor Justice

Three stories today about teachers in the legal profession getting into disciplinary matters.

First up, we have Quinnipiac assistant dean Mary Ellen Durso, who was "sentenced to three years of probation and six months of home confinement for her role in a scheme to defraud a mortgage lender and for filing false tax returns." The damage? $126,000. That's right, kids, if you're black and you deal a few thousand in drugs, you're going to prison. If you're an executive or administrator and you defraud people for ten times as much, you get home confinement. Brilliant.

Second, we have Widener professor Lawrence Connell, who I wrote about last month when he got in trouble for apparently doing what professors every do when he used the dean's name in some absurd hypos. Thankfully, it appears the faculty committee has some sense as they've recommended against firing him.

In an interesting twist, it seems Prof. Connell is actively investigating and plans to go after the students who denounced him:

"We're trying to figure out who those two students are right now. We've got it narrowed down to three," [Connell's attorney] said. "We can sue the students for defamation in state court immediately. We're not going to sit back and be a punching bag on this."

My desire for morbid entertainment has me hoping this will continue. Third-tier professor v. a few third-tier students who were probably annoyed they got B-'s on the curve. Has promise.

Third, we have George Washington adjunct lecturer Richard Lieberman, who was arrested by U.S. Customs authorities on six counts of child exploitation:

According to the charges, between Aug. 11 and Aug. 25, 2010, Mr. Lieberman used the Internet to sexually entice those he believed were two different girls under the age of 16 years. In fact, the charges said, he was engaging in online conversations with two undercover agents in Florida posing as 10 and 13-year-old girls.

Mr. Lieberman is accused of sending the “13-year-old girl” an image of a naked man, engaging in a sexually explicit conversation with the “10-year-old girl” and sending her website links to images of male and female genitalia.

GWU has already deleted his faculty profile (innocent until proven guilty, eh?), but if you go soon enough, you can see it on google cache.

Richard D. Lieberman is a principal in the Washington, D.C. firm of McCarthy, Sweeney & Harkaway, P.C., and has been a government contracts attorney since 1988, concentrating on counseling government contracts clients, claims, bid protests, criminal investigations, audits, contract compliance programs, Federal Supply (multiple award) Schedule contracts and debarment proceedings. He is a former deputy inspector general and assistant inspector general of the Department of Defense, where he was involved in the planning and execution of internal auditing, contract auditing, investigations and inspections. He also served as a professional staff member of the U.S. Senate Appropriations Committee and a budget analyst in the Office of the Department of Defense Comptroller.

Emphasis added. Again, innocent until proven guilty, but I'm not exactly sure what you can argue if the feds have transcripts of you sending 10-year olds to dirty websites.

Here's to hoping that if his guilt is proven, he gets something worse than three years of probation.

The Power of Anonymous Speech

Among other claims that struck me as odd in the most recent Down by Lawcast, the suggestion was made that anonymous speech (which I'm going to equate to pseudonymous speech for this entry) is limited in what it can do, that credibility is lacking, etc. This is an often-spouted view that has some appeal, but is ultimately wrong.

Let's start with a lesson in history and basic theory:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.

The obnoxious press licensing law of England, which was also enforced on the Colonies, was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.

John Lilburne was whipped, pilloried, and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books.

Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time, the Letters of Junius were written, and the identity of their author is unknown to this day. Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names.

It is plain that anonymity has sometimes been assumed for the most constructive purposes.

--Talley v. California (1960) (paragraph breaks added)

"Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is `responsible', what is valuable, and what is truth."

--McInteyre v. Ohio Elections Commission (1995), f.11 (quoting New York v. Duryea).

Anonymous speech can be worthless, of course. But it can also move mountains.

The whole point of using anonymous speech is partly for protection against backlash, true, but in a less cynical description, one may describe the purpose as completely removing criticisms unrelated to the content. A true wordsmith, or believer in a worthy political cause, would want the focus to be on the content and not the speaker.

A signature, however, is irrelevant to content unless some type of expertise, inside knowledge, or personal experience is claimed. In the alternative, one may include a signature in order to gain regard for themselves or to try and bolster their credibility by attaching their name to it. In trying to build and use goodwill for his name, an author is ultimately engaging in a business move, but 95% of the time, the attachment of the name is irrelevant to the content therein.

Rather, attaching one's real name is an authorial decision as significant as any of the substantive content. It binds one's own personal characteristics with the speech and invites both ad hominem attacks and for the listener to give more credence to the words by who's speaking them.

In other words, because this choice alters how most people perceive the speech, it's wrong that we expect everyone to give their name to content before completely discrediting it, just as it's wrong to mandate that everyone say "God bless America" at the end of their speech. That reaction - to discredit anonymous speech when all other variables are equal - is driven by the power-elites who always want someone to hold accountable, to prevent whistle-blowers and others who want to speak truth without having their words unduly jeopardized, either by ad hominem or by their own persecution (at which point the speaker becomes the issue and not the content of his words - see, e.g., the HUAC hearings as an example of this).

Of course such a view invites fringe lunatics to write anonymously, but as the judge noted above, readers are not stupid. If someone writes "buy Microsoft stock, will shoot up 200% tomorrow," no one would believe them, but that's not because it was anonymous, but rather because there's no grounds to believe what it says. The quote could be "Joe Hargish says to buy Microsoft stock, will shoot up 200% tomorrow" and the result would be the same. If it's "Joe Hargish, analyst at Goldman Sachs, says to buy Microsoft," now we have a grounds for credibility.

But the point is that a name is not the only grounds for credibility. You can also gain credibility by having incredibly rational arguments or by presenting a volume of verifiable facts. And a name isn't grounds for credibility itself. For example, let's say you read this:

Let me go to hell, that's all I ask, and go on cursing them there, and them look down and hear me, that might take some of the shine off their bliss.

And I tell you that Glen Beck said it on last night's show. Most people would discard it as rambling anger. But what if I told you Samuel Beckett actually wrote it. Now most people would probably think it's something literary, give a whole new meaning to "them." Anonymous speech wants to avoid this whole evaluative process.

In so-called "scamblogging," anonymous speech has been central to propagating the message. To my knowledge, only two hardcore "scambloggers" have been front and center with their real identities: Scott Bullock of the now-defunct Big Debt, Small Law and Kimber Russell, who, if I recall correctly, "came out" late summer or early fall of 2010. Nando at TTR neither hides his identity nor expressly posts it to the world, but it can be found fairly easily. Other than that (someone correct me if I'm wrong), the scambloggiest of scambloggers remain more or less unknown. Loyola2L, Esq. Never, JD Underdog, Exposing the Law School Scam, Fluster Clucked, Jobless Juris Doctor, "Angel" and "Hardknocks" at BIDER, Jobless Juris Doctor, and Knut at First Tier Toilet, I'm pretty sure these are all anonymous.

I will posit here that, contrary to what Kimber suggested, the scamblog movement only has had its successes because the latter group chose anonymity as a theme.

Law is notoriously elitist, tiered, and approached with a view that "I am better than that person." When people found out Scott Bullock was a Seton Hall graduate, the response was that he should have gone somewhere nicer. But such allegations can't hit someone like Jobless Juris Doctor without making a series of assumptions, and indeed the assumptions become more difficult when (a) the number of anonymous angry bloggers increases and (b) some of the bloggers, like Knut and Angel, claim to be first-tier graduates.

The anonymity thus gave a solidarity and an ambiguity about what class of people was being affected by the "scam," and because a broad range of personalities had been adversely affected by going to law school enough to make blogs about it, the shared claim - that law school is a losing investment - became more credible. You didn't need names to achieve that effect, which is clearly shown by the number of people who have been deterred from going to law school as a result of reading them. And that, after all, was the point.

This is precisely the type of situation that calls for anonymous speech as a powerful tool for change. And it did bring change.

Law school applications dropped 12%. LSAT takers were down by a similar amount. For both of those, you generally prepare at least two or three months in advance. So anything influencing change needed to be present earlier, in November and December.

The much-ballyhooed New York Times article came out on January 8. But because early admission deadlines are generally December 1/15 or January 1, that can't have affected early admission, and the odds that people read an article and suddenly dropped applying to law school when they'd already done all the work seems remote.

Rather, that precipitous drop from the mid-2010 highs had to come from somewhere, and that "somewhere," seems, to me, to come from saturation of these blogs. Whether they have a name on them or not seems irrelevant, since blogs like TTR regularly link to news articles and connect them together with the common thesis: that law school is a losing investment.

If Kimber wants to believe that her 2-3 months of being "out" prior to the number of LSAT takers dropping had a disproportionate effect compared to her anonymous peers, I suppose she's free to do so even if there's no proof that such is true.

But looking at a simple causal chain, the only reason that administrators and other institutional players are willing to talk about change - including giving Kimber the time of day - is that law school applications and LSAT takers are down. If law schools were still pulling in customers at the click they were a year ago, it would be much easier for the ABA to say nothing was fundamentally wrong or in need of change. But because the "scambloggers" created awareness, which caused a drastic drop in customers, now everyone is all-too-willing to change. Law School Transparency was a decent idea, but it would have accomplished nothing without the angry anonymous crowd corroborating its claim and actually deterring people from applying for that $160k job track.

For Kimber to now claim that anonymous speech can't change things is disingenuous. It already has, and it will continue to do so. For if the law schools won't publish accurate data, the most believable perspective may actually come from the collective knowledge of anonymous bloggers, That, if given enough time, will cause actual law applicants to weigh the risks of going to law school where they would if they had accurate data from the schools themselves. And with that, the number of qualified applicants will continue to drop and law schools will be forced (by capitalism, a force greater than personal identity) to lower tuition, lower class sizes, or close. Likewise, USNWR is not changing anything because they got a pleasant phone call from a real person or because LST made a request; they're changing things because their integrity as a news magazine has been under under assault by their collusion with law schools' "Enron-like accounting standards." You can talk to them until they're blue in the face, but until their goodwill is jeopardized, there's no incentive whatsoever for them to do anything.

Those results can come about entirely from well-written, well-placed anonymous speech and it is simply wrong to claim otherwise. Anonymous speech helped convinced a nation to adopt our Constitution against considerable opposition. I think it can handle changing the law school structure and, in fact, it has.

Massive UNLV Budget Cuts, Law School Will Jack Tuition; No Law Faculty Harmed

The University of Nevada-Las Vegas is facing severe budget cuts:

To meet proposed budget cuts, UNLV would eliminate 33 degree programs with more than 2,000 students in them, killing 315 jobs, UNLV President Neal Smatresk told school employees and students Tuesday.
...
Philosophy, Women's Studies and Social Work would go under Smatresk's proposal, which would ultimately require approval from the higher education system's Board of Regents.

When you have a university willing to sacrifice entire disciplines at the altar of "fiscal responsibility," you know something has gone terribly, terribly wrong. Philosophy is an essential subject, indeed the foundation of many other subjects (putting the "Ph" in PhD"), including law. (side note: it's nice to see UNLV will continue its mid-major athletic existence even while sacrificing its ****ing low-cost philosophy department; I'm a huge sports fan, but c'mon!).

Of course, given such drastic measures, these cuts will go down to the The Boyd School of Law, which is ranked 78th according to the latest and greatest USNWR rankings. And the President is concerned, according to Legal Skills Prof Blog (also cited on the faculty alliance page, below):

These additional increases [in tuition] will undermine the Law School's successful formula and render it a mediocre institution.

"Mediocre, n., Moderate to inferior in quality; ordinary. See Synonyms at average."

What is the Boyd School now, if not mediocre? This is not Boston U. we're talking about. Of course, it's also not Thomas Cooley. But UNLV frankly can't drop that far. It's the only law school in Nevada, meaning it has a virtual monopoly over the students who most want to go there. And it's not like Nevada is unique in its severe budget troubles and the desperate need for cuts or tax increases no one wants.

And furthermore, what is the law school going to do, faced with these budget cuts?

From their Faculty Alliance blog:

Tuition increases will be used to cover the cuts. This will bring tuition increase totals more than triple the cost of just three years ago.

Yikes. In an age when law school demand is dropping, these counter-revolutionaries are going to raise tuition even further, as if students continuing to come are a foregone conclusion.

And according to this, despite this perilous situation, they're not cutting a single dollar of law professor salaries.

Look at this salary list from 2008:

Douglas Grant, Prof. of Law: $176,910.48
Joan Howarth, Prof. of Law: $170,468.67
Jeff Stempel, Prof. of Law: $169,206.54
John White, Prof. of Law and Dean: $167,423.65
Elaine Shoben, Prof. of Law: $164,341.98
Christopher Blakesley: Prof. of Law: $163,068.00

And so on. By the way, the cost of living in Las Vegas, Nevada is about 50-60% of what it is in New York. A salary of $160k in Nevada is similar to a salary of about $288k in New York.

Yet, with the state budget in peril and the flagship University possibly dumping its philosophy department, the school of law has chosen to drastically increase tuition rather than cut faculty positions. Tenured professors are going to get the unceremonious axe and these charlatans - in a class of people who often espouse this drivel about "public service" and "social justice" - won't take a pay-cut or see one of their own go, instead choosing to saddle the burden on students who they know will probably come to UNLV anyway.

This is absolutely deplorable, immoral decision-making. The dental school is cutting $1.3 million in salaries, but the law school can't spare a buck and would rather send tuition skyrocketing, which will inevitably put students who are actually dedicated to legal study deeper in debt.

Christ, the a public university is going to completely wipe out important programs (if you're a state institution, you should have a social work department), sending numerous professors into unemployment and the entire law faculty will continue living as comfortably as they did yesterday. They're like gluttons who eat a fourth meal while people starve next door, and if this proposal goes through, the law faculty who went along with it have no standing to tell anyone about "justice."

On "Scamblogging"

I wrote this a few nights nights ago. It might be out-of-date in internet time, but to be honest I'm low on sleep and alternative content (and in no mood to look for some), so here you go, as-is from my rough draft.

I've never viewed myself as a "scamblogger," even though I associate this blog's editorial point-of-view way more with blogs like TTR and BIDER than with Above the Law. There are many reasons why I chose to avoid such a direct path. For one, I don't feel like I have "standing" to be a true scamblogger because I have yet to graduate, much less be unemployed; my anger and what misery I carry come from a slightly different angle. Second, I've never liked the term "scamblogger," even when I was just a casual reader of these blogs last spring and summer, as I've never though law school was a "scam" even though, in retrospect, I probably should have chosen a different path with my recent life. And third, I was sort-of late to the party in terms of relaying raw anger about being screwed or even just exposing reality. Instead, if I wanted this blog to stand out and to have a purpose, I realized it needed to broaden the scope past just being pissed off at the system

So I tried - and try - to make this blog more in the vein of a rational, somewhat-objective commentary, sort-of in the same class as LSTB and similar sites. I picked the blog name with the belief that blogs like these needed to be more focused on the future, on positive solutions, on fixing problems, on pushing things like bankruptcy reform.

However, this is not to accuse "scambloggers" like Nando, JJD, or Knut of not wanting these things, nor of neglecting to promote them. If I understand things correctly, none of them nor their defunct peers chose the name "scamblogger." And I don't think any of them would seriously argue that there's a vast conspiracy among law deans, or that law school is a dead-ringer analog to three-card monte, or any of the other ridiculous straw men that get thrown around.

And on the same token, I've never found anything wrong with raw anger, whether expressed through scat metaphor, frank vulgarity, oozing sarcasm, or straight-up "I'm pissed."

Because here's the all-to-obvious rub: people react to arguments differently. Some people exhibit Spock-like rationality at all times and presenting something in an "in your face" style has no effect on them. Others simply won't get it unless you draw them a visual, and unless you convey your anger effectively, people whose view of the world is filtered through emotions will find you ineffective.

In fact, I can't think of a significant successful social movement that succeeded and was lacking either rational, intellectual discussion and populist, attention-grabbing, "in your face" imagery. The American Revolution had both. So did the Civil Rights movement and the woman's rights movement and the progressives and - heck - even the modern conservative movement.

This is not to say scamblogging has the social importance of any of those. Scamblogging isn't even a "movement," it's merely a push towards awareness (although it could certainly be part of a broader student justice movement). But if people who are running nationwide, historically-relevant political swings are okay with spreading their message through "in your face" metaphors, then I think it just might work for telling people law school ain't what it's cracked up to be, too.

Although some people may be repulsed by that approach to argumentation, it isn't like that style is the only source to find skepticism of the system. And it isn't like Nando at TTR isn't providing sources and facts to back up his harsh opinions and revolting visuals.

--------------------------------

When I first started leaving comments on these blogs and was pondering setting up a shop of my own, the first three I always read were TTR, BIDER, and Shilling Me Softly. Not to say others weren't good, but I thought those three complimented each other nicely, and so they were the names I usually told others to check out.

To her credit, Kimber Russell has done quite a bit in the last six months to bring attention to the issues of escalating tuition, increasing debt loads, lawyer oversupply, misleading advertising, etc. She worked hard shaping the New York Times article and I think the fact that she's "public" and not merely pseudonymous gave slightly more credibility to the message.

But, to cut to the chase, I was disheartened to see Kimber publish a piece explicitly divorcing herself from other "scambloggers."

I am herewith renouncing the title "scamblogger" to take up the less angry-sounding mantle of the plain old "blawger".

For some time now, it has been clear to me that for all the rhetorical power carried by the phrase "law school scam", the moniker is misleading, especially to those who have only been introduced to the notion that law school is not a guaranteed return on investment. The term "scam" is fraught with multifarious meanings, all of which are too bombastic to truly encompass what is a very complex situation.

Yeah, okay, this isn't really a new revelation - to anyone - so why make a big production of it? Why not merely change the focus of your blog? It's not like anyone really sees it as a major shift to go from "scamblogger" to "blawger" (and is THAT term supposed to get people to take one seriously?).

From here on out, my mission--in addition to keeping the SMS Crew entertained and informed--will be to advocate for a meaningful reformation of the American legal education industry.

How exactly is this a change? Did Kimber's previous mission not involve reforming the legal education industry? Do the "scambloggers" not want to see legal education reform? And what's this "SMS Crew" stuff? Is that really any different than a media demagogue (e.g. Rush Limbaugh) giving his legion of followers a catchy name? But I digress; she explains more in the comments:

[I]t has become increasingly apparent that as a true movement that can appeal to a wide general audience, we cannot be viewed as the online equivalent of a pitchfork-wielding, torch-bearing angry mob.

...[I]t is hard to create a legitimate and credible movement when one of its apparent "leaders" has become the Glenn Beck of scambloggers.

First of all, as I said earlier, scamblogging isn't a "movement," it's a push for awareness, and lighting a torch lets people know you're on the lawn. But more importantly, if you don't want to be seen as part of a "pitchfork-wielding, torch-bearing" mob, the response isn't to say "I'm not part of the mob." The real response is to actually put down the torch and the pitchfork, which Kimber seems to be doing anyway. I would advise her to get a new website and redirect SMS traffic to it, but in any event people can take you seriously even if they don't take the "mob" seriously.

But it's not like there's even a "mob" here. Nando ain't no Glen Beck, and I fail to see how his existence threatens actual change. Are there seriously people who say "I agree with your position, but that asshole from Third Tier Drake just ruins everything?" No, of course not. That's absurd. Either people believe what you're telling them or they don't. If they tell you they can't take you seriously because a non-present third-party has an archive of fecal matter jpegs that he connects to lower-rung law schools, they weren't going to take you seriously, anyway. No one so sensitive would have the fortitude to actually affect meaningful change.

I obviously agree with Kimber's "new" focus. I've tried something similar since this blog's inception. Look at the title I chose. But at the same time, it's a bad idea to create division without a valid reason. Nando and the other "scambloggers" are going to do their thing no matter what Kimber does. She could have merely rebranded her blog and changed its focus, which she's been doing the last two months anyway. Instead, she chose to "herewith renounce" the word "scamblogger" as if it were some monumental schism, of newfound maturity breaking away from a dirty rotten past.

You almost never see Republican strategists criticizing people like Limbaugh or Beck, even if they think that such shows de-legitimize certain Republican goals. Why? Because when you're trying to get a message out, you take all the help you can get and it's poor form to turn your back. As Knut has pointed out, SMS needed blogs like TTR to gain an initial readership. And looking over the brief history of this thing, I can't imagine Kimber ever sees the New York Times without the foundation of bile.

And so it's not like the so-called "scambloggers" really work against her. Their mission - to spread awareness - is identical to hers, since awareness is a prerequisite to problem-solving. She seems to believe it's time to "quit bitching" and move to working with the people in power. People like Nando disagree.

But disagreement is no cause for denouncement. If you want people to take you seriously as a reformer, just act like a serious reformer. And for the record, I'm not sure that serious reformers call out their allies, or that they post cheap jpegs like "In Soviet Russia, Law School Enters You," or that they maintain a podcast that regularly utilizes the word "douchebag" and the phrase "WTF, ABA."

The grand point here is that there's really no sharp line between "scamblogger" and "blawger." You can call a blog that works to reform the legal education process any name you want, but it's still a blog that works to reform the legal education process. SMS will be SMS and Nando will be Nando. There's no reason to unnecessarily piss people off if you're all on the same side in trying to get the message out there. Heck, if you really care about the message - and not the person giving it - the medium should become irrelevant.

In the end, all you can control is yourself. I don't fully agree with all Nando's techniques. There's parts of other blogs that I just don't get, including SMS. But that's no reason for me to call them out and say I disagree with them and no one will take me seriously if I'm associated with them. That accomplishes nothing; actually, it's a regression. And if one really wants to make progress, purposeful regressions and meaningless schisms seems a very poor way to do it.

Yes, Sally, the Mechanization of White Collar Jobs Can Be Easier than that of Blue Collar Jobs

From Paul Krugman's article today on education in the New York Times:

Computers, they pointed out, excel at routine tasks, “cognitive and manual tasks that can be accomplished by following explicit rules.” Therefore, any routine task — a category that includes many white-collar, nonmanual jobs — is in the firing line. Conversely, jobs that can’t be carried out by following explicit rules — a category that includes many kinds of manual labor, from truck drivers to janitors — will tend to grow even in the face of technological progress.

And here’s the thing: Most of the manual labor still being done in our economy seems to be of the kind that’s hard to automate....

And research by my Princeton colleagues Alan Blinder and Alan Krueger suggests that high-wage jobs performed by highly educated workers are, if anything, more “offshorable” than jobs done by low-paid, less-educated workers.

This makes intuitive sense, doesn't it? Most white-collar jobs have historically been premised on knowledge. Anyone can move boxes around a warehouse or change the oil in a car, but only a select few could navigate a personal injury claim or handle accounting books because of the specialized intellectual abilities involved. But computers are better at storing and retrieving knowledge than they are at making physical environmental adjustments.

A few months ago, I got into an argument with someone who claimed that the answer to the U.S.'s future was more intensive education, to essentially out-school the Chinese, Indians, etc., by promoting math and sciences education. I asked him point-blank what he would do if he were starting out at 18 today rather than at 58. Without hesitation, he said "engineering, just as I did back then."

The problem, of course, is that economies change and what "worked" 40 years ago doesn't necessarily work today. Although engineers seem better off than young lawyers, I know many an engineering grad my own age who was told to get a master's after believing a B.S. would land them a set-for-life job. And given that much of engineering is following explicit rules to produce well-designed products, I imagine we'll see computerized engineers long before we see computerized janitors.

Education is a fantastic normative goal, but we have to collectively realize that it has finite (and shrinking) returns economically. Because it benefits our democracy to have educated and hard-worked people, even if they can't all have jobs that require education, we also have to take steps to prevent citizens from being penalized for their intelligence or education, but that, I believe, is a much larger issue deserving of another entry entirely.

Pure Speculation on Robo-Lawyering and the Future

So the New York Times published an article yesterday on E-discovery/document review software that has the potential to reduce the need for "armies" of attorneys. Other blogs (see JJD and LSTB) have covered this already and I really don't want to discuss the article so much as just share some non-expert thoughts on the long-term future.

Basically, although I see this as a tool that will sharply decrease entry-level and document review work in the near-term future, in the long-run I see this type of technology as a major threat to the current legal order, specifically to the "BigLaw" business model.

Let me start with a wider lens. I'm no Marxist in the political sense, but sometimes it's difficult to discard Karl Marx's material way of viewing the world, at least its basic sociological principles. For example, it's hard to completely discredit his focus on materialism as a historical determinant, e.g.:

In acquiring new productive forces men change their mode of production; and in changing their mode of production, in changing the way of earning their living, they change all their social relations. The hand-mill gives you society with the feudal lord; the steam-mill, society with the industrial capitalist.

The same men who establish their social relations in conformity with the material productivity, produce also principles, ideas, and categories, in conformity with their social relations.

Thus the ideas, these categories, are as little eternal as the relations they express. They are historical and transitory products. There is a continual movement of growth in productive forces, of destruction in social relations, of formation in ideas; the only immutable thing is the abstraction of movement – mors immortalis.

It's a gross over-simplification of complex society, but at the core there's some truth to it. Look no further than a basic and hackneyed evaluation of how people gained wealth and power over time. In the feudal ages in Europe, land ownership determined virtually everything. It was the one singular avenue to wealth. You either had land or, in one way or another, you leached off someone who did. But over time, technology brought other avenues of wealth. Security and improved transportation allowed a genuine merchant class to develop. With it came the roots of modern banking, whose centers sprang up along the most common routes of commerce. Then came the industrial revolution and suddenly there were at least four major ways to get to the top of the economic pyramid: land, commerce, production, and banking. And of course, the lawyer class developed along side all of this in order to sort out the quagmires that developed in post-feudal society.

Fast-forward to the 20th century and the possible routes to wealth increased exponentially. Advances in financial markets allowed people to earn entirely derivative wealth. The basic recording of audiovisual performances made what was once a temporal experience into intellectual property that made entire industries. Suddenly, knowledge, too, in the form biochemical reactions or software processes, became a billion-dollar, wealth-creating business.

I say all this only to suggest the following: technology, historically, has increased possible avenues to wealth, not taken them away, which is why it should not necessarily be feared here. Land still makes one money; it just doesn't give one the proportionate power it did 800 years ago; heck, ask the farmers who still somehow own their own land, it doesn't even give the power it did 100 years ago.

So, moving back to the topic at the outset, let's look at why BigLaw is the way it is today. A cursory view of the last fifty years or so suggests to me that BigLaw largely developed in response to ever-increasingly multinational corporations who preferred working with law firms who had offices in multiple major metropolitan areas. Large, multinational corporations more or less needed large, multinational law firms. The prestigious ones that got the choice corporate accounts merged when feasible to reduce economies of scale and - voila! - you had firms with hundreds of attorneys who raked in the top business and could charge prime rates precisely because there weren't many places that could offer the manpower of elite graduates, places like Jones Day or Skadden Arps or Winstron & Strawn.

There are, of course, other reasons the major corporations consistently go to the larger firms, prestige and experience being at the top of the list. But to Fortune 500 companies, cutting expenses to free up cash and improve profitability is a religion. I've heard from multiple sources that BigLaw has been under increased pressure the last few years to cut billing hours. I have no reason to doubt that.

And these corporations - with knowledgeable in-house counsel, many of whom sit on their boards and in their executive committee - will certainly have knowledge of this technology's existence. And since more than one company is currently developing this technology, there's no reason to think it won't be priced competitively, which will allow a broader range of firms access to the technology. Will Joe Schuck operating a sole proprietorship out of his basement be able to get it? Probably not, but firms with 25+ attorneys would find it advantageous to streamline their discovery process.

If the software can reduce what used to be done by 100 attorneys into manageable work for 2-3, the manpower advantages of the BigLaw model are dead on arrival. Because of the software, smaller firms can take on cases that resource restrictions would have prevented them from taking previously. Things like class actions can be handled by smaller and smaller firms.

Because the range of activities firms can take on will increase, real competition for legal business will increase with new entrants into the market. The result should be more robust price competition.

Of course, BigLaw will still have two key advantages, as noted above: its history of experience with large corporate matters and its prestige of being armored with "cream of the crop" lawyers. And of course, they can continue to charge more as a result of both of these competitive advantages, but the status quo cannot continue. Fortune 500 companies will simply not pay exorbitant rates if another lawyer down the street has the exact same technology and is charging a fraction of the hourly rate. Much of the prestige difference comes from the illusion of paying elite associates and staff attorneys to do the grunt work; if a computer is doing that grunt work, why would anyone pay the extra?

And with a reduction in resource costs, many BigLaw attorneys will be less likely to stick around. If a BigLaw partner has a great relationship with two or three key clients, that partner is far more likely to splinter off and set up a new firm and take his clients with him if there is software that can reduce the manpower advantage of bigger firms.

I'll admit I'm no expert, but it just seems to me that with technology like this, an extra key to wealth has been created by allowing a whole new class of firm into the market for bigger and bigger clients. If they can offer similar services at half the cost, most companies will go with the discount provider. At the very least, the price pressures should end escalating relative salaries and bonuses because the pseudo-oligopoly over high-end legal services will be broken. If I were a BigLaw partner, I'd be concerned that more firms and attorneys could do what I do, that an army of elite attorneys may become as worthless and unnecessary as an army of elite barber college graduates, and that America's successful corporations will start shopping around if I don't slice rates, and my take-home profit.

Of course, thousands of young attorneys will suffer from a collapsing marketplace for their services. That's a major problem. But transformative technology doesn't just hit the lowly; it also opens up new avenues for others to achieve wealth. It shakes the top of the pyramid, too, and if more firms can take on complex litigation, it'll help them jump into higher levels of law and in the end it's better for all of us by increasing competition and cutting litigation costs for large American companies.