Review of the ABA Task Force Report: But What About the Lies?

The ABA Task Force on Legal Education has issued what I interpret to be a final report on the state of legal education.  As a good citizen of the legal community (see page 35), I stopped what I was doing immediately to read.

To be fair to the drafters, this report is much better than the earlier one.  For example, it seems more polished on the areas of tuition pricing and student debt, and it seems to better acknowledge the role of criticism.  Moreover, the recommendations are broader, and they have expanded some of the recommendations.  There are still some minor annoyances, like their continued red-herring approach of public goods (which they still muck up) versus private goods, and their claim that a consumer outlook is new (without any sort of reference or citation).  Also of note is that they claim the project was rushed and was limited to only one year (one year for a large group of academics to write 35 pages...can you imagine the pressure?!) due to the urgency of the problem and they didn't have time to test hypotheses (bottom of page 3).  I don't know where to start with that one.

My biggest problem, though, is still the "moralizing and blame" section, which I will reproduce here for reference (from p. 9):

Moralizing and Blame. Some of the criticism takes the form of moralizing and blaming current problems on various actors in the legal education community. 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. 

Moralizing and blaming are not particularly 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.

Actually, this is a situation where moralizing is absolutely productive.  There has been massive damage to the credibility of law schools and any trust that existed between law schools and students/alumni.  The drafters would seemingly admit this, given that they note public confidence has been eroded (page 1).  They also note that many graduates are falling far short of the career ideals they believed it.  But they never address why these graduates had such lofty ideas despite market reality or why public confidence has been eroded.

I don't blame individual deans for raising tuition per se, and I don't know what "certain constituencies" the writers are referencing.  I've never blamed faculty for holding jobs (their posh working conditions and the fact that we severely overpay them are not their fault), and I don't know what "questionable goals" the writers are referencing (as an aside, is it wrong to question law schools for questionable goals?).  And I sure as hell do not blame the "legal profession" for "insufficiently supporting law schools" (!).

The problem with that paragraph - aside from its incomprehensible vagueness and its express mischaracterizations - is that it omits the single greatest reason law schools are morally-blameworthy:  the lies.

If you really want to know how the trust between law schools and law students/alumni/the public became broken and heal the wounds and rebuild trust towards a better legal education system, it's because the schools have engaged in a lengthy propaganda campaign that essentially misled a generation and a half of lawyers and continues to do so.

All sorts of educational ventures have a public value and a private value.  Most have had substantial tuition increases in the last twenty years.  Many of them dump into private markets that are oversaturated to high heaven with little alternative value.  And yet in law it goes beyond that because law school administrators - almost all of them holding the ethical training of lawyers - have waged an egregious, decades-long war against market truth, and continue to do so.

For example, law school marketeers were claiming that you could go to a third-tier school like St. Johns or Stetson or Baylor (to name three of about 175) and make bank - six figure private practice medians - coming out of law school.  And these seemed believable because a minority of graduates got those jobs and the fifth-tier trash pits were making similarly bogus claims.  It was a culture of systemic bullshit.  Now many of them have stopped this nonsense, but they can't even admit that what they did previously was morally wrong; on the contrary, they actually have actually blamed students for being stupid enough to believe what they were saying.

They created misleading statistics charts that showed 90+% "employed" with the implication that "business" meant consulting and in-house counsel positions instead of Starbucks associate.

They used different denominators between the salary charts and the employed charts to give the impression that the exorbitant salaries listed applied to all the "90+% employed" instead of a very small fraction thereof.

You had a dean of admissions call prospective applicants "little bastards" he could "trap" in order to evade good faith evaluations of their incoming classes, while administrators applauded his performance.  Why can we not moralize, again?

They consistently made (and have made) claims that a law degree is a lifetime investment and that you have to look at an investment return over 40 years when they know full well that a very large percentage of alumni wind up out of the law within a few years and much of the remainder had higher earnings potential at 35 than they do at 55.  They avoided inconvenient truths like the fact that most BigLaw associates are gone by year 5 to lower-bracket employment options.

They have consistently claimed that - regardless of the market troubles in lawyerland - you can do anything with a law degree because it's more versatile than other professional degrees or PhD programs.  That they can claim this with a straight face is admirable, in a sense, but it's still a damnable lie.

They continue to push "specialization" in areas where there is an infinitesimal amount of work:   space law, environmental law, international law, and the like.  They have started new LLM programs at an alarming rate, and are now selling these to lawyers as a way of making yourself stand out as a truly special snowflake in an employment market that never asked for these things.  In a dog eat dog world, your animal law LLM is not going to help.

They continue to spout nonsense about the shockwave of baby boomers who are going to retire in the next few years to create vacancies for new lawyers.  In support of this contention, they're using the objectively-false premise that lawyers leave the workforce at 65, and the equally-absurd premise that those lawyers leave a set of clients for a new lawyer to enter from scratch like a hermit crab.

They're now claiming that slashes in class size or tuition is "strategically planned" and that they knew the law school market was going to crumble and they anticipated accordingly with large cash reserves.

They're now claiming - with charts and such - that we'll be running a shortfall of attorneys by 2016!

They have and continue to claim that IBR/PAYE and PSLF are actually good reasons to join the indebted ranks of law school alumni

And yet, the ABA Task Force concludes that it's best to presume good faith and not "moralize" even though it knows that marketing honesty is an issue, as it expressly calls for increased transparency.  How can you reconcile this?  If we can presume "good faith," why is transparency necessary?  Why was there a breach of trust in the first place?

What the ABA Task Force proposes is essentially what dictator sympathizers say after the revolution.  "Hey, you all got fucked.  Whatever, let's move on together."

That's not productive.  Because what happens is that the same people often wind right back running the government and doing the same damn things they did before because their behavior went completely uncorrected.

That's a viable fear of what's going to happen in law schools.  The Task Force can't even take the simple step of explaining the bad conduct, much less calling it bad or censuring those who engage in it.  It's not difficult to see that the same attitudes that have run law schools for the last few decades are going to continue unabated because you're letting them go on without correction or reprimand.  This situation - where there's been a breakdown of trust and credibility - is the exact situation that calls for moralizing, blame, and contrition, or at least an observation that it happened and stricter rules prohibiting such conduct in the future.  In fact, for many of us to have any faith that the present law school environment can actually change and be productive, that process of moralization and contrition must take place.

This Task Force Report has a whole section on "faculty culture."  Yet none of the items addresses the psychological biases or similar phenomena that allowed large groups of lawyers to sit idly as their institutions sold Glen Ross Farms to people with high hopes and access to easy money.

It's disappointing to me that this is one behavioral issue over which law schools have complete and unfettered control, an issue that is frankly beyond serious argument at this point that it occurred, and the ABA Task Force missed a great opportunity to address it head-on.  It's a shame that the Task Force chose to protect and shield the most dishonest among them instead of standing by firm principles of candor and transparency...you know, that thing lawyers are supposed to do.

This thing has fifteen pages of recommendations, and as best I can tell, there isn't one that says "stop lying."  The five recommendations made directly to law schools are all developing plans, statements, or programs (page 34).  One should wonder why "use some scholarship to seriously study your own long-term efficacy with rigor" isn't recommended, but the bigger omission, to me, is "stop lying."  The recommendations to the ABA's section on legal education are all addressed to standards, one of which is, in fact, increased consumer transparency.  But I would have rather had one say "be more aggressive in punishing misleading advertising."

But, of course, there were better reforms to mention, like increasing access to justice by adding more options for non-lawyer practice (page 33) and - who could forget - establishing another task force (page 30, very first recommendation).

Overall, the Task Force paper has some good ideas and sound recommendations.  Yet, I find asking readers to presume good faith without even addressing the repeated and continuous acts of bad faith disingenuous, borderline insulting, and completely against the spirit of true, good faith reform.