Saturday, August 3, 2013

Comment on the ABA Task Force Working Paper

Here's the paper:  ABA Task Force Working Paper

Here's my comment:  Dogpoop.

Let's start with a theme that legitimately perturbed me:
The Task Force has resolved these challenges [you "resolved" them?] by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good... 
Moralizing and blaming are no productive.  What is needed instead is a dispassionate and pragmatic examination of the current situation that begins with a presumption of good faith on the part of all participants.... 
For the past five years, participants in the system of legal education have responded to the environmental and structural stresses and challenges with good faith and increasing commitment.
There absolutely is a place for pragmatism and dispassionate evaluation.  But there's also a place for anger and moral outrage, and such is necessary to a proper evaluation.  This situation has caused a lot of real financial pain for thousands of graduates over the last decade (at a minimum - likely more like three decades).  People attended law school wanting to invest three years to have a thirty or forty year career and they wound up carrying the albatross of student loan debt and structural unemployability.  If you REALLY want to "solve" the problem, you have to address the problem, and the problem is that real life people have wound up real life broke and real life miserable because this system failed them.  If there wasn't passion involved, this wouldn't be a credited topic of discussion among the landed gentry.

And on what basis should I presume good faith?  Why isn't there a place for moralizing?  Systemic problems don't arise in a vacuum.  There are good people in this system, but there's clearly exploiters.

We know for a fact that this system has liars in it.  We know that Villanova, Illinois, and Rutgers have committed blameworthy acts.  We know that a claim for fraud against Thomas Jefferson has made it to discovery.  We know that Don Leduc, Larry Mitchell, Stephen Sheppard, Claudio Grossman, Jay Conison, Patrick Hobbs, and others have made ridiculous statements, some on a regular basis.  We know that Indiana Tech sold and built a law school on totally bogus premises.  Where was the good faith in publishing bogus employment and salary statistics, which probably 3/4 of law schools did?  Where is the good faith in dressing down unemployed alumni?

There's no good faith in propaganda, Task Forcers.


If law school really is a partial public good (see p. 6), how does the Task Force believe it's improper to assign moral blame to the lying liars who have abused the public good?  The ONLY way for this Task Force to have any genuine reform credibility would be to excoriate the worst of the propagandists for being utterly full of shit.  Maybe there are honest deans, but I simply can't believe them when they tell me I should think the lying liars in the system have been acting in neutral, clean good faith.  Life doesn't work that way, and people whose six figure incomes are dependent on a new crop of decent students showing up aren't objective.

If you can't see the whole problem, how the hell are you going to cure it?

The Task Force also makes some errors that make me question the effort that went into this work despite the involvement of such august people and a year of time.

For example, on page 6, they call legal education a "private good" because it "provides those who pursue it with skills, knowledge, and credentials that will enable them to earn a livelihood."  But then two paragraphs later, they state that medical education "is mostly seen as a public good."  Really?!?

On page 9, they essentially rewrite the history of higher education and claim that the rise of a job-oriented or consumer outlook of legal education is new.  It's not.  People have always gone to law school for the job that came after it.  Law school was no more a trip for personal development in the 50s than it is today.  The difference is that law schools could get away with a generic Socratic education in the 50s in ways they simply cannot today for a variety of reasons I won't get into.  They act like this "shift" is the reason for the demand for consumer information.  No, the demand for consumer disclosures is because the law schools have spent the last fifteen years lying about employment outcomes.  And here's where their insistence on "good faith" clouds a proper diagnosis.

On page 11, they make at least two erroneous statements.  First, that "students...who do not receive substantial scholarships pay for their education through loans."  Uh, usually even students who DO get substantial scholarships have to take out loans (how many 24-year-olds have 40k lying around for living expenses?).  Second, they claim that loan repayment can be a burden (certainly true), "particularly in the early part of a career when earnings my be low."  This, too, misses a central truth:  earnings for this generation of lawyers do not or will not necessarily rise ten or twenty years out.  There's a very good chance new BigLaw associates will never, ever make more than they do in their third year before being hustled back to the revolving door.

If you don't understand the problem in full, you cannot cure the problem in full.  The Task Force all but accuses the scambloggers of bad faith, but at least they (or we, I guess) understand the way the world works.

On page 13, they completely muck up economics.  After noting that "the supply of lawyers appears to exceed demand in some sectors of the economy," they claim there is a low supply of lawyers in rural areas and there is a need for low-income representation.  These are not sectors of the economy, nor do they represent real demand for legal services.  It's simply a way for the Task Force to somehow qualify the gross oversupply of lawyers with faulty logic.

The most sensible part of the whole Paper is on pages 15-16 regarding faculty culture at law schools.  But even then they fall short in pointing out the factors that cause faculty members to resist change.  It isn't just a cultural issue, but also an economic one.  Whether law professors want to admit it or not, many law professors must maintain the status quo to maintain their present lifestyles.  From an ideological perspective, most law professors are progressive and would be open to areas of reform if it didn't involve their livelihood.

On page 17-18, they identify targets of their report.  This is the American Bar Association's task force, mind you.  Of the fourteen entities listed, not one reads "law students" or "licensed attorneys" or "juris doctor holders."  They list "law firms," but that is not the same (if they think it is, they're more lost than I thought).  Instead, they list the federal government.  That's great...until you get to the targeted recommendations on page 30-34 and there's no mention of curtailing or more heavily regulating the GradPlus loan program or other law school financing mechanisms.  I guess that was just an oversight?  Oh, wait, they say they were limited by time and resources to make any recommendation.  (p. 23).  Really?  It's your own damned industry!  You've got like 20+ people on this thing and they've had a year.  Give me a break.

And I suppose the idea of actually increasing standards (they vaguely mention this as a possibility on p. 19) and/or cutting the number of accredited law schools in half was an oversight, too.  It's a legitimate proposal that's been made by numerous people.  I'll make it here, and I'm doing so in good faith:  roughly one third of the law schools in the United States serve no purpose but to enrich private parties at public expense and should close, and one way to accomplish that is by increasing regulation by tying accreditation to market outcomes.

Speaking of which, the word "employment" is not mentioned anywhere in their "general themes of reform" section.  It doesn't appear between pages 13 and 33.  On the latter, it suggests only that law schools develop a "clear statement" about legal education and employment outcomes.  The word "jobs" doesn't appear after page 12.  "Career" is barely mentioned.  The words "salary" and "salaries" are completely absent from the entire 34 pages of the Paper.

Remember, this problem came to light because graduates of law schools could not find gainful employment and sufficient salaries to repay their law school debt.  The ABA Task Force has decided to issue a 34-page report that basically concedes the problem and spends the remaining pages word-vomiting vague principles and passing the buck off on to the same people who have been screwing it up for the last thirty years.

I'm going to decline to address the specific recommendations on pages 30-34, as I can't even agree with the focus of the Task Force's paper, their failure to actually address it to law students or practicing lawyers (you know, the people your trade organization ostensibly represents), I disagree with much of the foundation of their Paper, I disagree that the problem is really and complex and multifaceted as the interested parties present it to be, and I especially disagree that we can presume good faith of the same people who have trampled all over the concept in recent years.

Yes, they acknowledge some problems.  But they can't even see some of the basic problems and reasons for the resultant situation and miss the mark on many others.  The doctor found three symptoms when the patient had six.  Oops.

Here's the worst:  The fundamental tension isn't one between public good and private good.  It's one between the financial incentives and positioning of generation A vs. the financial disadvantages and positioning of generation B.  All the rest of this gibberish is really just a sideshow.  This whole shitball developed because bankruptcy discharge was removed and the loan spigot got turned on full blast and law schools, being fundamentally economic actors, gulped it up, and, being sociological actors, phrased everything to make themselves look noble while doing so.  Law schools were in the unique position that they could claim credibly that some graduates made bank and the ABA did nothing to stop the former generation from exploiting the latter under the circumstances.  THAT'S the real tension, and until the Task Force realizes that, I can't take it seriously.

They're basically misdiagnosing the cause, which makes their treatment suggestions unworthy of consideration.  This system has cancer and they're claiming it's dyspepsia.  I don't care what the treatment is, it won't work unless you attack the tumor.  We need surgery or chemotherapy, not some pills and observation suggestions.

17 comments:

  1. LSTC, this is a nice breakdown of the paper.

    And to follow on from my comment from yesterday, FUCK THESE PIECES OF SHIT.

    We fight this on OUR terms. The fucking ABA will NOT reclaim this battle and pretend to be solving the problems.

    WE SET THE TERMS.

    And those terms are:

    1. Close 50% of law schools. Hey fucktards, either you do it or we'll do it for you. Or actually, we'll do it for you anyway. You have no part in this. ABA, you fucked the system up by accrediting so many law schools, and now you've forfeited your right to solve the problem.

    2. Student loan reform. Enough said. Cap it at $10K per year.

    I can't wait for this house of cards to fall to pieces, and I am going to do everything in my power to kick it down.

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  2. That was an epic blast, LSTC. In the end, the law school pigs and ABA cockroaches are too $elf-intere$ted in keeping the scam rolling along.

    This "report" carries about as much weight as a study conducted by convicted child molesters "showing" that child molesters do not constitute a large threat.

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  3. Thank you for analyzing this. I fear if I try to read it I will not be able to keep the vomit down. I think about how much time and energy (and money) went into this study. I am reminded of the movie "The Departed" when Matt Damon is given the job of finding the mole in the police department (and of course, Matt Damon is the mole). I wonder how this would look if the study were conducted solely by practitioners. This is the most asinine exercise of foolishness I have ever seen. It does not take a task force to diagnose the problem. Law school costs too much, there are too many law schools, they don't train students to be lawyers, and there are too many new lawyers. There is only one aspect of all this that is not in complete control of law school: the relatively recent and drastic downturn of the industry.

    Those in power (prof and deans) can't effectuate training lawyers to be lawyers because so few of them have the capacity to do this due to a lack of practice experience. Those in power WILL not effectuate reducing class size and tuition because doing so is directly contrary to their interests. Change WILL NOT COME FROM WITHIN. The ONLY way things will change is attacking the demand by educating (i.e. warning) prospectives, by the government wising up with the student loan situation, or by a third party coming in and cleaning this up. If only there were some sort of accrediting body that was supposed to serve the profession and the public by regulating lawyers and law schools...what a world that would be.

    My bet is that eventually the government will stop making money on student loans (I don't understand how they are still making money honestly), and they will cut out this nonsense. Time will tell.

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  4. Excellent analysis. Had you been on the Task Force, I have a feeling that we would have had a report w/in a month (instead of a year) that actually had some solutions in it. We may have been halfway towards resolving it by now.

    What a pity that those in power are those who want to maintain their power. The end result is elucidating Task Force papers that aren't really elucidating at all. Sigh.

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  5. Excellent write-up.

    That outrageous "moralizing" comment was the only clear, strong statement in the whole tedious report. And look at how the Task Force prefaces it:

    "Deans are blamed for raising law school tuition or failing to stand up to certain constituencies. Faculty are blamed for supposedly self-seeking behavior and the pursuit of questionable goals for the law school. Universities are blamed for supposedly pressuring law schools to become profit centers. The legal profession is blamed for insufficiently supporting law schools and recent graduates, and steadily shifting educational responsibilities and costs to law schools. The list goes on. Moralizing and blaming are not productive." (p. 9)

    Every one of the statements that the Task Force identified as "not productive" is correct. And every one of those statements must be acknowledged by legal academics if they wish to regain the trust of the public, or the trust of the students whom they so callously betrayed for many years.

    After 30 pages of yapping about "forces and factors that must be taken into account by participants as they act to cure problems," the Task Force spends four pages on specific recommendations. And the first recommendation is to convene another Task Force. I guess you can't have too many task forces.

    To its credit, I suppose, the Task Force finally does identify some ABA standards and interpretations that are "potentially modifiable" (page 31), including Standard 403 (full-time faculty), Standard 405 (tenure), 304 (classroom attendance), and others. But even here, they do not even review proposals as to how these standards could or should be modified, let alone endorse any specific modification. The "specific recommendations" should have been strong and clear, but instead they have a vague, tacked-on, aspirational quality.

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    Replies
    1. On one hand, I agree that the specific identification of standards open to discussion is a good step. However: a) I could do that on a lazy afternoon and b) I almost feel they're tacitly approving the unlisted ones by omission.

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  6. As long as people like Nora Demleitner are running things, the problems are going to continue. Law schools need a lot of fresh blood.

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  7. Too bad the authors of this paper are too self-interested to read this excellent critique. I remember how fucked the generational divide had become when a lawyer I helped win a Rape 1 case (as part of an unpaid "internship" of course) suggested that I take the city civil service exam to work as court personnel while searching for work. He knew that I was a good lawyer, but he felt no shame in making this suggestion, fully aware of the glut crisis and fully aware of his exploitation of it. Also, I could tell how clueless he was because he thought a J.D. applicant would have a shot in hell of working as court personnel.

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    1. "I remember how fucked the generational divide had become when a lawyer I helped win a Rape 1 case (as part of an unpaid "internship" of course) suggested that I take the city civil service exam to work as court personnel while searching for work. He knew that I was a good lawyer, but he felt no shame in making this suggestion, fully aware of the glut crisis and fully aware of his exploitation of it."

      An argument can be made that he should have been willing to pay you even though you agreed to work for free. But that's not how it works in our society. Most people take what they can get. Has nothing to do with a generational divide and everything to do with making money at the expense of the next guy. Example. I've been shopping for a car for my daughter. I have discovered that many used cars actually sell significantly more than the brand new models of the same exact brand. Mazda 3 asking price used three years old with 36K miles . . $19,000. With incentives, brand new . . $16,750 (before dealer fee and taxes). Why? I was given some sort of nonsensical explanation, but the bottom line is because they can get away with it by duping people who don't know any better. So the question is, were the people who went to lawschool in the last decade or so duped? Or were they willing to simply take their chances? Who should be blamed for the mess? I'm sure there is plenty to go around.

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  8. The problems can all be distilled down to a few sentences.

    There are about twice as many law schools than are needed. The cost of a JD far exceeds its payoff for most law students. Too many graduates and too few jobs. The govt needs to either get out of the student loan business or do some basic underwriting and quit making loans that are unlikely to be paid back. If this is done then half or more of law schools would soon close.

    Thats it.

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  9. @8:37:

    You are far too pragmatic and efficient. Your ideas would be excellent if you expanded them to about 400 pages and made them obfuscatory and difficult to understand. Then, and only then, would you have a shot at anyone adopting them.

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  10. The document uses some strange formatting which makes it hard to cut and paste. But suggestion C.3 seems to be advocating for a uniform national bar exam, take once and you can practice in any state. Which would be a very good idea I think, the current state-by-state system seems a strange one given how mobile American workers are expected to be. But I can't see state courts giving up that much power, and state law schools wouldn't be happy about it either.

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    Replies
    1. And that's assuming that state laws don't vary enough to cause severe problems.

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  11. Third Tier WarriorAugust 4, 2013 at 11:48 AM

    This is an absolute outrage. These ivory tower swine react a decade too late and after countless lives are ruined...with a "paper". Worse, this paper is riddled with the same clueless gated community-think that infests the halls of law toilets across the country. These do nothing make work hacks should be working the doc review circuit when this law industrial complex.fraud finally.implodes.

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  12. The fact that student loans are backed by by the government and the fact these loans are nearly impossible to discharge in bankruptcy are what inflates tuition out of all proportion to the real value of a law degree. Schools and lenders literally assume almost zero risk in lending money for dubious returns to many graduates. That's what keeps a large percentage of these schools going concerns. If there was a true free market in higher education, the schools would finally have some skin in the game. End government guarantees of student loans and return reasonable bankruptcy protections for student loan debtors, and that will go a long way toward solving the problem. Those two reforms in themselves would probably force a good many schools (perhaps as many as half of them) to close relatively quickly.

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  13. Here's a blast from the past, and the present.

    The ABA is under a consent decree from a 1995 DOJ prosecution for price-fixing. Specifically, attempting to use the credentialing process for law schools to discriminate against certain institutions and keep them out of the marketplace, and for attempting to price-fix professor salaries by gathering and publishing salary information.

    In 2006, the ABA was fined by the DOJ for violating the consent decree.

    ENOUGH SAID.

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