Saturday, August 20, 2016

Arizona Sadist Law School To Increase its Bar Passage Rate by Preventing its Students from Graduating Until They Can Pass a Mock Bar Exam

In an era of of falling bar passage rates nationwide, we should applaud the exciting news that private-equity-owned Arizona Sadist Law School or ASLS (I do not want to call the place "Summit" until it actually excels at something, or at least holds a few of its classes on a hill) is poised to dramatically increase its own bar passage rate through the inspired pedagogical strategy of not allowing some of its 3Ls to graduate. 

Beginning with the graduating (or, uh, possibly not graduating) class of 2017, students at ASLS will be required to pass a school-designed mock bar exam prior to receiving their JD. This is reminiscent, somewhat, of the so-called "baby bar" that California administers to students at unaccredited law schools. Of course, unlike at Sadist, the California baby bar is designed by the state's Committee of Bar Examiners, not by the individual schools, is initially administered at the end of the first year of legal study, and its passage rates are collected and reported. So students at these schools have clear expectations and early feedback.

In response to an inquiry from the ABA Journal, Sadistic Dean Shirley Mays pricelessly griped that her school’s bar passage rate would be 42%, or even 46%, instead of 30%, but for the fact that its best students routinely transfer to other schools. [1] For a sports analogy, imagine how delighted you would be as a diehard fan of a perennial last place team if the coach complained that the team might still be in last place, but by a lesser margin, if only its best players would stop accepting mid-season offers to play for better-performing rivals.

Mays announced the mock bar requirement in an email to its student body that was unfortunately marred by ego-soothing and ostensibly burden-sharing administrative language. ("While we are confident that our graduates have the potential to succeed. . ."; "We want you to take ownership of your success. . ."; "[A]ll of us need to make adjustments . . ."; "Warm regards").

Thus, Mays's email is only conventionally sadistic, reading as it does like a carefully-crafted layoff notice or job rejection letter or insurance rate hike. In keeping with the lofty ambitions incorporated into its very name, the school should have elevated its evil by forthrightly placing highly personalized blame and shame where it clearly belongs-- on the victims.

For instance:

Dear Unworthy Student,

Let’s talk about ingratitude and betrayal. We took you in, gave you shelter from the terrible storm of not going to law school, and invited you on a journey to the towering heights of professional success. Though your standardized test results scored your aptitude at somewhere between below average and outright mentally disabled [2], we looked at you with a holistic eye and were smitten by the heart and soul of a future legal champion and civic leader. [3] Other law schools were so horrified by your credentials that they would not accept your proffered tuition dollars, in spite of the desperate financial condition of many. But to us, you were a glittering juris diamond in the very, very rough. We had faith in your potential when nobody else would.

Yes, you made us believe in you and love you, which is why it so hurtful to belatedly realize that you have taken cruel advantage of our misplaced confidence and naive goodwill. Year after year, you broke our hearts. You passed all our classes, received our precious degree, and then went forth to humiliate us and jeopardize our accreditation by failing the bar at rates possibly unmatched by any other ABA-approved law school in the country. [4]

To wit, you have scammed us, your too-trusting faculty, administrators, and private equity investors. You have scammed us out of our reputation, which is worse than the mere loss of money ("Who steals my purse steals trash," ect.). Therefore, we have no choice but to protect ourselves from your malicious deceit by designing a last-ditch fail-safe to salvage our publicly-reported bar passage numbers.

But, as much as you have wounded us, such is our fondness and our codependency that we cannot bear the thought of losing you. Therefore, you may remain with us as our tuition-paying guest for an extra semester or maybe two or three until you have revived our shaken faith in your ability to pass a test of minimal competence. It is unlikely that we will insist that you remain with us for a sixth year. [5], [6]

Through Tears,

Your Devastated But Still Devoted Law School, Arizona Sadist.


[1] Mays: "A large percentage of our best students are courted by higher-ranked law schools after they complete their first year of law school. . . . Had these transfer students remained at our law school, our bar pass rates would be 12 percent to 16 percent higher." 

[2] ASLS's most recent entering LSAT scores were 140/143/148.  By the way, as recently as five years ago, they were 148/150/153.  A 25th percentile score then is a 75th percentile score now. 

[3] ASLS admissions webpage: "Arizona Summit Law School takes a holistic admissions approach that considers. . .  a broad range of factors that focus on a student's potential to succeed in law school." 

Mays: "We look beyond test scores by taking the time to get to know our students' ambition and work ethic as factors to grant admission. . . The new name highlights our commitment to the success of our students who come from diverse backgrounds and stages in life and provides a supportive academic environment where civic-minded leaders and community advocates are nurtured." 

[4] Ave Maria School of Law is in trouble with the ABA over its awful bar passage rates, but even Ave Maria's bar performance is not as bad as ASLS's.

[5] Mays: "Students. . . are limited to taking the mock exam while they are a student. [sic] There wouldn't likely be an instance of a 2017 graduate taking the mock exam in 2020."

[6] According to Mays's email, the bar passage rate for ASLS graduates with a sub 2.5 GPA is two percent. If the mock bar is anything like the real one, a lot of these students will never pass and give up on law school in frustration. Did you think it could not get worse than spending three years in law school and never passing the bar?  How about spending five years in law school and never receiving a JD?

Tuesday, August 16, 2016

LawProf Frank Wu: BigLaw Jobs Don't Mean the Market is on the Upswing

It’s time again for another edition of “Welcome to the Scamblog Camp!”  This post’s featured guest is Frank Wu, from UC Hastings School of Law.

Professor Wu gets off to a slow start, unfortunately, in that even he can’t resist a textbook-swipe at “hyperbolic” critics, or “young people” looking for “instant gratification.”  In other words, Gen-X, Y, Z, A etc. are all “lazy, entitled whiners, because you are not me, therefore, you are the opposite of me, i.e. lazy, entitled whiners.”  The simple economics of obscene debt burdens coupled with low starting pay is again lost on people, apparently - it's easier to blame the victim and write people off as "lazy."

The problems have been publicized well enough if hyberbolically. But they are problems plural rather than singular. There is the lack of jobs, specifically those desirable to young people whose expectations have been set by the instant gratification of the internet era; the extraordinary cost of tuition, which typically is debt financed; and concerns over the utility of the skill set that is offered. Fixes for one problem or two problems exacerbate the third problem…

However, to Wu’s credit, he does get back on message quickly:

A rush of young people into law schools is good for the law schools, to be sure. Whether it is good for the young people is another matter.

If we bounce, it will not be “back.” It may be a bounce, to an altogether different place. Things do recover. But almost never to their starting point. Newspapers have been bouncing to the internet…[a]utomobiles with only internal combustion engines, operated by human beings, will be replaced within our lifetimes…[r]ecord collectors insist on the superiority of vinyl records to even lossless streaming for their music, but most listeners have left analog for digital.

Yep.  As has been stated many times on this blog alone, buggy-whip manufacturers need not apply (although, personally, nothing beats classic vinyl).

When I was in practice, literally a lifetime ago (I am twice the age now I was then), a pack of associates with highlighters and post-it notes, located on a windowless lower floor performed the task, one or two even being handed a plane ticket to inspect a warehouse of boxes. Today, a separate firm, maybe a “captive firm,” uses outsourcing, scanning, and algorithms, to deliver the same work product at ten times the speed and one tenth the cost.

That is the “bounce.”

No, no, Frank must not have gotten the memo from the rest of the Law School Cartel.  There is a greater need for lawyers than ever before!  JDs are worth a million dollars, easily!  All we need are more “practical” “teaching” “methods…”

I actually am an optimist [concerning Anglo-American Law and emergent legal fields]...[t]he demand for legal services, to the surprise of many, is not the same as the demand for lawyer’s services: accountants, consultants, and paralegals all compete…[p]oor people, even those of us who belong to the American norm of "middle class," do not have access to adequate, economical legal help.

Yet clients are more sophisticated than ever about purchasing professional services. Even ordinary people, likely one-time consumers, can buy a la carte “unbundled” versions of representation. The business has become stratified…

Wait, what?  Wu is an optimist, yet he just ran through the laundry list of competing legal services, lack of market, and the fact that “bread-and-butter” clients are sophisticated and buy unbundled services?  Not exactly a gold mine.  Also, I thought it was only law students who were “sophisticated consumers” according to the courts.

Above all, however, the jump in big law firm entry-level compensation is not enough to remedy much because of scale…[b]ig firms, even in boom times, provide a minority of opportunities to new graduates. A majority of law schools place few if any of their students on Wall Street…[t]he tenure of the junior lawyers at big firms is not lengthy. The pyramid structure ensures that few will make it to the top[.]

The law firm is not trying to be nice. It’s recruiting and retaining talent through calculation. As Don Draper remarked on the hit television show Mad Men about having to say thank you: “that’s what the money is for.” The bulk of law school graduates will end up, as they always have, in solo practice or at small to medium firms; or in government, usually state and local rather than the coveted clerkships with federal judges.

More “optimism,” I guess…?  Not much about saving dolphins here.  I thought it was only the mean, mean scambloggers who talked about BigLaw reality, dashing the sugarplum dreams of new 1Ls.

That is what mystifies me. When I describe the predicament of the legal profession, and thus of legal education, I have received pushback from people who say: yes, but, there is a range, and there are those firms and schools who are making out just fine. I don’t doubt that. What troubles me, and all of the rest of us ordinary folks, is that publicizing only one end of the spectrum (either end) presents a distorted picture…I prefer realism.

No mysticism required.  Cat’s out of the bag.  People are waking up to the truth.  Desperate people 
say desperate things in order to survive.

It is positive, I suppose, that big law firms are offering more to their first-year associates. As a signal about the legal marketplace, it is at best weak and at worst misleading.  We would serve our students better if we adapted.  Nostalgia is not a strategy.

Well, said, Professor Wu, well said, and it looks like the criticisms from the scamblog camp were, (ahem) right all along.  There certainly is nostalgia for the days when big-bucks flowed into Law Schools by the metric ton, without having to pander to people's estates and put a non-law-related names on the building, or apply to the USDA for funding, in order to survive.  Only now, people are forced to admit it.  Coulda shoulda woulda been different, but, oh well.

Until next time, friends!  Keep fighting the good fight!

Friday, August 5, 2016

USDA to fund toilet law school in Vermont?

Vermont Law School 'n' Apple Orchard is seeking funds from the US Department of Agriculture:

It has applied under a program for "essential community facilities". Vermont Law Skule must prove that it "provides an essential service to the local community for the orderly development of the community in a primarily rural area" and does not fall into the category of "private, commercial or business undertakings".

Let's deal with the second part of that first. Vermont Law Skule is in fact a private undertaking. That alone should disqualify it, right off the bat, if anyone at the USDA is paying attention to uncontroversial facts.

Now, as for the first part, let me first tell you a bit about the "community" of South Royalton. I've been there. It does not even count as a crossroads. There is no traffic signal; indeed, there is nowhere to put one. Driving past dairy farms that have seen better days, one passes a sign announcing the unincorporated settlement of South Royalton. On the west side of the two-lane highway is a dated gas station with a cardboard sign in the window announcing hand-made maple-tapping buckets for sale. Directly across the highway is Vermont Law School. Behind the law skule stands a little row of shops consisting of a bar, a bookstore, and perhaps three or four other establishments. And of course there's some housing, almost all of it for people affiliated with the law skule.

That's just about it. The nearest grocery store is half an hour away, in New Hampshire.

In other words, Vermont Law Skule is the community, if indeed there is any community at all. So how can it justify itself as an "essential community facility"? Shut Vermont Law Skule down (please, please do!), and you shut down the "community" as well. Sure, a few dairy farmers would remain, as would the proprietor of the gas station with the maple-tapping buckets. Big fucking deal. That doesn't warrant $15 million in federal funds.

Under the auspices of the Department of Agriculture and the signboard of "rural development", a godawful private law skule may get to siphon off federal funds with which to line the pockets of a few dozen upper-crusty hackademic shitheels. What's wrong with this picture?

Tuesday, August 2, 2016

Law Prof. Carrie Menkel-Meadow thinks that the purpose of law school is to "teach peace to law students and the rest of the world."

Is there a crisis in legal education? Or, alternatively, is there is a "crisis" in legal education? – note the ostentatious scare quotes meant to express doubt or cynicism as to the premise. If you are reading an article that places quotation marks around the phrase "crisis in legal education," then you have received fair warning: read on at your peril because you are about to be blasted with an academic’s self-serving delusions about how a legal education is invaluable, despite fashionable naysaying. 

Case in point: a remarkable law review article by UC Irvine law Prof. Carrie Menkel-Meadow, entitled "Crisis in Legal Education or Other Things Law Students Should be Learning and Doing," 45 McGeorge L.Rev. 133 (2013). The very first sentence of Menkel-Meadow’s article reads: "For the last few years we have been bombarded with news articles, lawsuits, conferences, and scholarly treatments of the "crisis in legal education."" Id. So, again, fair warning.

According to her hefty 56-page CV, Prof. Menkel-Meadow has been a law professor for approximately four decades, following her stellar two-year-long career as a practicing lawyer (1975-1977). Menkel-Meadow writes about the challenges of legal education with a clarity that can only be achieved by a jetsetting legal academic who draws a public sector salary of $330,978 a year [1], but who has not held a job practicing law since the first year of the Carter Administration. 

Menkel-Meadow's law review article is a rigorous treatment of the argument that she and UC Irvine School of Law Dean Erwin Chemerinsky made in a co-written New York Times editorial entitled "Don't Skimp on Legal Training" (April 14, 2014), in which the duo asserted that the "crisis mentality" besetting the legal academy is "unfounded" and "do[es] not reflect the contributions legal education makes to achieving justice and well-being for many in the world." The editorial also advocated for innovations such as "new courses to provide students with the expertise to deal with the crucial problems of our time," including "world peace."

Similarly, in her article, Menkel-Meadow asserts that law schools should teach softer, nontraditional skills and values, such as alternate dispute resolution (her speciality), leadership, fairness, creativity, and peace.

So pay careful attention to the following insights about legal education from Menkel-Meadow’s article, the likes of which never occur to scambloggers:

     1. "It is not that there are too many lawyers, or too many law school seats, or even that there are not enough jobs, it is that those who are trained by studying law could study different things and practice or work with more appropriate knowledge bases and skills sets. . . . .In this Article, I will suggest that legal education and the work of those calling themselves lawyers could be and should be more broadly defined if the goals of the legal profession include solving human problems and producing peace and justice, as these are "value-added" forms of social goods produced by having legal knowledge." Carrie Menkel-Meadow, Crisis in Legal Education or the Other Things Law Students Should Be Learning and Doing, 45 McGeorge L.Rev. 133, 134 (2013).

2.  "In my view, what modern legal education should prepare students for is a set of values and skills that are informed by what "legal" values and law offer to deal with what are essential human needs: • Realization of "justice" (particularly, but not exclusively, distributive and equity notions of justice) • General "problem solving" skills (with attention to problem definition and instrumental and multidisciplinary approaches to solution generation), including a sensitivity to • Fairness (including both procedural and substantive concerns); • Peace (and social ordering), including effective resolution of disputes.• Decision making;• Leadership, facilitation, and management (of people, groups, and complex information); • Creativity (new entities, new transactions, and new relationships); • Counseling and collaboration (with clients, employees, colleagues, and constituents); and • Governance." Id. at 137.

3.  "New forms of legal work demand new conceptualizations of our field, both as legal educators (courses, formats for teaching) and as practitioners (opportunities for internships, new practice formats, tensions between deep specialization and resiliency, flexibility and change). The organizing concepts and "tropes" of legal education may have to be broadened to include new and different borders and boundaries." Id. at 147. 

4.  "All of this requires new paradigms of legal thought and training, as well as practice, but by looking for new solutions to difficult social and legal problems in these troubled times, there may be opportunities for new sites of legal work and differently constructed topics for legal education. If architects are "spatial agents," my colleague Sameer Ashar says lawyers should conceive of themselves as "relational agents," or as we dispute resolution theorists like to call ourselves, "social and legal relationship engineers" or "process architects" (pick your own favorite comparative professional metaphor!)." Id. at 154. [2]

5.  "My students at UCI have recently developed a new program (now for some academic credit) called the Global Justice Summit, a multiparty negotiation in which students attempt to design and draft a new constitution for a variety of new countries and other entities. The purpose of this exercise is to teach collaboration skills, drafting, creativity, the development of new "rights" . . .and recognition of human needs. It is an exercise that produces a positive "product" rather than a winner and loser in conventional moot court exercises. Since 2011, we have successfully drafted three distinct constitutions for both reconciliation and separation of different "nationalities" from each other, while learning how to create new entities and to affirmatively consider governance structures by studying the old and assimilating that into the new. My students hope to expand this program to other law schools in the coming years. This is an example of "constructive" legal education..." Id. at 157. [3]

6.  "American legal education might be diversified, sectored, and specialized. Some might study law to practice, others to train their minds in "legal thought" (logic, order, inductive and deductive reasoning), others as an overlay on some other field" (science, economics, business), and others just to become educated citizens of their countries or the world....some might use law study to change the way we think about the world by conventionally arguing for new or different laws. Or, as has been my hope, they reconsider law school as a school for social, political, economic, and legal problem solving where, in the words of my "other" law school (Georgetown), "law is the means, justice is the end." Id. at 159.

7.  "[N]ew lawyers might just adapt, reconfigure, and reconceive the work that lawyers do and see that there is more that people with legal education can do, not just for personal gain, but for the global society in which we live. As one who began her own studies of law to seek justice (and later, peace), we clearly have a need for students to deal with the remaining distributional injustices and unnecessary wars in the world. Legal education could do more to teach peace to law students and the rest of the world." Id. 

I hope that readers are inspired by Menkel-Meadow’s call for legal education to "teach peace to law students and the rest of the world." Consider how many hundreds of millions of our fellow humans are right now beset by suffering and deprivation caused by "the remaining distributional injustices and unnecessary wars in the world." To think that this suffering that could be resolved if only we had a sufficient number of law grads, supplied with new paradigms and new conceptualizations, to go forth and bring peace.

Only a cynic would suggest that Menkel-Meadow's visionary words of wisdom are, in fact, a cascade of fatuous jargon meant to burnish the egos and sense of self-importance of law professors.

Menkel-Meadow is not merely speaking to a domestic audience. She has helped to foster global peace through legal education by traveling to OƱati, Spain, to present a paper called "Too Many Lawyers? Or Should Lawyers be Doing Other Things?" and to Beijing to participate in roundtables on experiential legal education methods. Hopefully, her next expense-paid international trip will be to Stockholm to accept a Nobel Peace Prize.

Menkel-Meadow asserts that law students are needed in order to deal with remaining "distributional injustices." Seemingly, one such "distributional injustice" is called the "law school scam," which makes multi-millionaires out of law faculty by reducing those very students to debt slavery. But perhaps scamming law students is the price that society must pay in order to produce peace, justice, and well-being in the world. 


[1]  For 2014, Menkel-Meadow's base pay as a law professor at the University of California-Irvine was $297,367.  She also received an additional $33,611 in "extra pay," bringing her gross annual pay to $330,978. Not bad for someone whose purpose in obtain a legal education was to seek justice and peace, as opposed personal gain. See Crisis in Legal Education, at 159.

[2]  I prefer to think of myself as an "advocate" than as a "relational agent," but that may reflect my own misconceived paradigm. While we are creatively exploring professional euphemisms as a means of finding new solutions in troubled times, how about "scamation agent" for "law professor."

[3] I appreciate that Menkel-Meadow invokes her students, those budding young champions of Global Justice, whose creativity and collaborative skills she has helped to nurture. So it is worth checking her reviews on the "Rate my Professor" site. Menkel-Meadow earns a stellar 1.9 on a 1 to 5 point scale, with commenters raving about her humility, graciousness, and generosity in granting permission to go to the bathroom.

Thursday, July 28, 2016

Arizona Summit SBA President Defends His Beloved School’s Fellowship Program From OTLSS "Malice"

This is an era of rampant and distressing cynicism and mistrust, especially among our nation's downwardly-mobile and debt-drenched youth. Therefore, we at OTLSS find it moving that there are still students who adhere to the upbeat perspective best expressed by the Beach Boys, circa 1963: "So be true to your school. Rah rah rah rah sis boom bah. Just like you would to your girl or guy." That the Beach Boys's lyrics did not specify law schools owned by rapacious private equity firms and featuring bottom-of-the-barrel bar passage and employment rates can only be attributed to faulty songwriting.

The commentary below was written by a person who identifies himself as Warren Bingham, President of the Arizona Summit Student Bar Association. It was submitted as a thread comment on on our last post, which is entitled "Is Arizona Summit's 2016 Legal Residency Fellowship Program designed to persuade law grads to delay taking the bar exam?"

Mr. Bingham’s comment deserves its own headline post. A blog like this should not be a mere echo chamber of negativity about law schools. True, we at OTLSS may not be completely comfortable with being deemed malicious, ignorant, immature, incomplete, or speaking about things that do not concern us. But we have thick skins, and besides, harsher things have been said about us by the legal academy's leading philosophers, econometricians, and film critics.

Our appreciation for Mr. Bingham’s contribution comes with a caveat. As revealed on this blog, the Arizona Summit (ASLS) student handbook requires that "persons who choose to associate with ASLS actively support its mission, culture, and business purposes and not engage in activities or conduct that are detrimental to the brand, image, or values of InfiLaw or ASLS." Free and lively debate remains the pride of our faltering democracy. However, an official who asserts the good intentions and noble practices of his dissent-squelching institution, even in an unfriendly forum, may be doing the duty of a shill rather than that of a citizen. 


If a student doesn't feel "ready" to take the bar, is it so negative to study for an extra few months before taking the exam? Is the extra support really an issue?

Based upon the author's biased article, I imagine that he would respond to my questions by saying something along the lines of, "they would be 'ready' if they didn't attend a TTTT school" or "those jobs are handouts."

The truth is, the school has low bar passage rates and is expensive. At this point, I think that's it's pretty safe to assume we all know this. Law school, in general, is not easy, nor is it cheap.

So with information as attainable as this, why would it be necessary to share these facts in an article about the Fellowship program? Why would the author choose to devalue the efforts of the school to help improve its bar passage rates? Why would the author choose to, potentially, harm the students that chose to extend study for a few months, with financial security, by making them feel as though they're not good enough?

From corner to corner, the program aids all parties involved. So why is it such a bad thing? All I can seem to find in this article is malice.

If a Summit student passes the Bar 6 months after she graduates, does that make her any less of a lawyer?

Sometimes I wonder what would possess people to act so ignorantly. More astonishingly, when speaking on things don't even concern them.

If attacking the school and its students makes you feel more complete, then by all means -- do so. Fill that void that you're missing in your life. But understand that there are some that may feel it's not the most mature use of your time.

Warren Bingham
SBA President of Arizona Summit Law

Wednesday, July 20, 2016

Is Arizona Summit's 2016 Legal Residency Fellowship Program designed to persuade law grads to delay taking the bar exam?

In its viewbook, Infilaw’s Arizona Summit School of Law (ASLS) adopted the motto: "Raising the Bar in Legal Education." Unfortunately, ASLS’s version of "raising the bar" does not necessarily include actually passing the bar.

ASLS’s recent bar passage rate is among the lowest in the country, possibly rock bottom (or to put it less harshly, rock inverted summit). Its most recent bar passage rates were 26.4% (July 2015 exam) and 28.4% (February 2016 exam), or well under half the passage rates achieved by the other two law schools in Arizona, the ones that have not tried to elevate their brand image by changing their names to a synonym for "mountain peak."

A source has provided OTLSS with a document issued by ASLS’s "Center for Professional Development," announcing a remarkable one-year-long "ASLS 2016 Legal Residency Fellowship Program." (See below, or this link) The Fellowship program runs from August 1, 2016 to July 31, 2017, and is available to ASLS grads from ASLS's graduating classes of 2015 and 2016. It certainly looks like this program is designed to persuade recent grads to delay taking the bar exam. Our source thinks so. 

Under the program, law grads work for a "participating employer or an employer of their choice." The participant works "no more than 20 hours a week." ASLS pays the employer, who apparently pays the grad. ("ASLS will pay the employer for Participant’s hours worked each month, plus employer’s share of FICA. . .Participants will be paid a total of $3,000 per month for the duration of the program").

You know, the customary arrangement is for the employer to pay the employee for his or her time and labor. Here, however, the employer is being paid by a third party to provide its so-called employee with activities for a set number of hours per week, almost as though the "employee" were a child attending a summer camp or preschool, rather than a skilled professional reporting to his or her workplace.

Compensation-wise, the program is not bad until you realize that the school has just scammed these kids for three years plus $132,000 in tuition and fees in exchange for a degree at a joke school with  an abysmal law job placement rate.

What is interesting is that the program requirements become more burdensome just before and after the participant takes the bar exam.  First, though the wording is ambiguous, it appears that a grad enrolled in the fellowship program must take an uncompensated two month leave of absence prior to the bar exam. Second, after taking the bar exam, the participant earns "an hourly wage for up to 40 hours per week, not exceed $3,000 per month." So instead of working half-time or less to make a monthly salary of $3000, as he or she did before the bar exam, the post-exam-taking participant must work full-time for that same $3000. 

So it would seem to be in an ASLS’s grad’s interest to delay taking the bar until the conclusion of the fellowship program, so that he or she can earn an uninterrupted $3,000 per month for a work week that maxes out at 20 hours. As noted, the fellowship concludes on July 31, 2017. The first bar exam after that is in February, 2018. That is a substantial chunk of time to prepare for the exam, and no doubt ASLS is hoping to "raise the bar" on its bar passage rates from the obscene to the barely acceptable.

Thursday, July 14, 2016

No, Todd Henderson, Lawyer Salaries Aren't Skyrocketing

Although I'm on pseudo-vacation from the LSTC, I can't stay away from checking the news feed.  Today I saw Matt Leichter's post about libertarianism and the ABA "cartel." Sure enough, a click on the link reveals that Todd Henderson, University of Chicago law professor, has come back with more tone-deaf, dumb writing.  You might remember Professor Henderson from almost six years ago, when he infamously claimed that he wasn't making enough at $400k because keeping up with the Joneses means luxury goods become pre-discretionary necessities.

Despite the ubiquity of the internet and the fact that there are millions of lawyers, it's uncanny how the same names seem to emerge, and how the same arguments continue to crop out despite being thoroughly debunked.

This time, Professor Henderson claims that lawyer salaries are skyrocketing (false) because of complex regulations (false) and a cartel driven by the ABA (false).

Although Henderson's interest seems to be in regurgitating standard low-thought libertarian polemical talking points, it's both damaging and stupid to have such a piece in Forbes for a lazy society that generally reads only headlines.

First, lawyer salaries aren't "skyrocketing."  The standard $160k for top-line firms had been there since roughly 2007.  As the linked article notes, only 39% of the nation's 700+ attorney firms actually paid that amount.  Plus, it's a small minority who get these jobs, and it's smaller relatively than it was in 2007.  According to Law School Transparency, only 29 schools even put 20% of more of their graduates in firms of 100 or more.

So we're talking about a minority of a minority getting a 12-15% pay raise over a nine year period.  We're far from skyrocketing territory for even THOSE lawyers, much less the overwhelming majority of lawyers who have nothing to do with those firms and never will.

Second, this idea that complex regulations drive enhanced lawyer employment is completely unfounded and there's no actual evidence of it, much less evidence upon which to base policy preferences.  In any event, assuming it's true that regulations are more "complex," such a claim ignores areas of lawyering that have relatively dried up in the meantime (like tort reform movements).  Further, in the complex regulations field, the bulk of the work is compliance or transactional work that can be done by the slowly growing army of non-lawyer trainees who know more than a typical law grad and for whom $50k is often a decent wage rather than a crushing debt-burdened letdown.

Third, the ABA does not drive any cartel on lawyer production.  The ABA does have a sort of monopoly on domestic law school accreditation, but they've done nothing to limit overall lawyer production by individual schools or lawyer admission which is driven by 51 governmental units across the United States - in some cases not even limited to graduates endorsed by the ABA.

Moreover, the idea that some cartel or expanded regulation is what keeps lawyer fees or pay high is so easily debunkable I should not have to type this sentence; Leichter dismisses of this argument with appropriate brevity, but I'm going to dive more deeply because sometimes stupid arguments just don't bleed out on their own.

Large law firms charge exorbitant rates and pay exorbitant salaries because their clients are willing to pay for that level of business in what is often analogous to either a luxury service (like paying for a Mercedes or a five-star hotel) because you want "the best" or because they're the only places that can handle certain fields of specialized work (say, really large M&A transactions).  Libertarians always have this stupid idea that lawyer services are fungible like gasoline or white onions and that one factor can drive all lawyers salaries one way or the other. 

They simply are not fungible; lawyers at the top of the bimodal curve are their own marketplace, with a supply and demand separate from everyone else, and a price that is not driven by actual labor demand, but by credential, prestige cachet, and partnership potential.  There's minimal actual interest in work skill above competence because they can train and sort out who has a knack for it.  They simply need polished grunts that can work adequately who can be sold to their client pool as "the best and the brightest."  One need look no further than the rise of staff counsel positions, which pay market labor rates instead of the BigLaw associate rate to do largely the same work with a different title.  Why do you think that is?

In any event, large law firms are already pulling whatever they need, as there are boatloads of people who would instantly jump to fill any spot necessary to do the actual work (Leichter claims 5004 unemployed JDs and 5400 JD Advantage for the class of 2015 before considering the mass of small firm attorneys who would lateral instantly).  In the alternative, if lawyer salaries were truly "skyrocketing" because of "complex regulations," don't you think large corporations would simply invest in specialized in-house units for half the cost to learn the "complex regulations" for that specific industry?  Or for litigation, don't you think the largest companies would retain captive or shared counsel as the insurance companies do and pay lower rates on volume?  With the exception of really big deals or large, incredibly complex litigation, there are plenty of options besides using a large law firm and paying large law firm rates.  In other words, we could eradicate every shred of complexity, go to a one-page tax code and a one-page code of conduct for financial products and the large law firms would still be paying what they do.

What bugs me most about Henderson's nonsense is that there is (at least) one area where libertarian ideals would actually help the marketplace for legal services, and that is if we get the government out of law school funding and let the free market dictate individual investment in legal education.  There's a gross inefficiency in the system where the injection of government backing changes the behavior of law schools to increase tuition, increase the trimmings regardless of market demand, and consequently increase student debt.

Withdraw the government and you would still have private investment in students who have a strong chance at making those juicy $180k salaries.  Other students may only receive moderate investment interest and it would force law schools to either adapt to the true market demand for their education services or close altogether.  The end effect would be to make individual lawyer debt more appropriate to the level of actual individual lawyer return and allow the marketplace to adjust to meet the actual demand for lawyers rather than the perceived demand by self-interested gurus.

Of course, Prof. Henderson, being somewhat a beneficiary of the government-infused market inefficiency, would likely resist going down that road, instead spouting about cartels and regulation.  He also likely resists any analysis that would reduce his career path to anything other than a representation of pure meritocratic skill, because if left to this particular piece without resort to authoritative credentials, one is left with little more than a frothy libertarian analysis more resembling a thoughtless Facebook rant from some meth-shooting libertarian second cousin. 

Someone with his pedigree either knows better, and is therefore a partisan shill with no integrity, or doesn't, and is a walking indictment of the whole prestige-based system.  For our purposes, though, it matters not:  lawyer salaries are only going up for a small minority, and even then only because large law firms operate on their own terms in setting associate salaries that may as well exist on Mars for the heft majority of law school applicants and graduates.