Monday, September 22, 2014

Strict Scrutiny: Olympia Duhart Says Making Money Has No Place In Law School

The ABA's prohibition on law students working only 20 hours during law school is an antiquated relic. It is a codification of the notion that law school is an intellectual salon where the cutting edge ideas of the day are analyzed by the best and brightest. To sully the focus of law students is a societal catastrophe that must be stopped at all costs. Law school is in fact the closest thing we have to the Kingdom of Laputa from Gulliver's Travels. But, there are certain law professors who cling on to this concept to extend the "good old days" as long as possible.

From time to time, I read something that proves without a doubt that law professors have little to no touch with the current state of the profession. Olympia Duhart has produced such a piece. I could not allow this piece to pass by without comment. As always, her words are in italics, mine are in normal text.

As the American Bar Association considers lifting the ban on paid externships, a simple truth bears repeating: Money changes everything. Under the current standards, law students cannot be compensated for work they do for school credit. This policy should remain in place because separating compensation and “study outside the classroom” is a crucial step toward safeguarding the academic integrity of the externship.

Guarding the "academic integrity" of the externship should be our main focus. Not helping law students defray the ruinous cost of tuition. Ms. Duhart doesn't seem to have an issue with being paid for the work she does. Why doesn't that sully the "academic integrity" of her experience as a law professor?

First, it will limit the ability of government and nonprofit institutions to attract students. Next, it will tempt employers to exploit the students under their supervision. Further, it will impair the educational objectives of the externship. It shifts the externship focus from things that are in the best interest of the students to tasks that are in the best interest of the employer. Driven by a need to maximize profits, some of the employers will engage inexperienced student workers in tasks that have little educational value. For example, inviting a student to reflect on a courtroom observation has an incredibly high instructive value; however, that same experience is not likely to be billable to a client. Profit and pedagogy do not always align.Yes, law students need money. They also need experience. Rolling back the prohibition on allowing students to receive pay and credit for the same work is an “easy fix” that ignores some key realities.

I'm sure that the employer is most concerned with teaching their legal interns about how to file a petition, draft an answer, etc. Employers would never use students in a way that might not be to the maximum benefit to the student, right? Ms. Duhart shows how little experience she has in the actual practice of law. Students don't get into externships to observe things. They are trying to get experience that they can use to succeed in a job. Not everyone can be a law professor and sit around thinking about hip hop's place in the law like andre pond cummings. As I've said before, law professor is the highest paid part time job in America; most of us have to work 40-60 hour weeks dealing with mundane stuff. Duhart wants every aspect of law school to become useless pedagogy.

What's more, revoking the standard also collides with other important objectives for legal education. The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law. Even the most conscientious employer – pulled in different directions by clients and practice demands – may not be able to effectively pursue these goals. As they gain new experience, law students need mentors and educators. At the very least, the current standard incentivizes education, not making money.

But the truth is that something has to be done.

I'm sure that the lawyers cranking out hundreds of boilerplate collections petitions a week take a lot of time for self reflection, outcome measures and ethical participation. This type of thinking is why the professoriate and the ABA are entirely out of step with the realities of today's legal profession. The ABA is basically the academic version of the NCAA: an organization with no actual authority that maintains its control because it advances the goals of its most powerful members. 

Given the alarming rate of tuition increases, law schools must finally take responsibility for the rising cost of legal education. A small paycheck will not do much to defray the high debt load most students must absorb to become lawyers. Instead, we need to dig deeper to make law school more affordable for students, especially those students interested in public interest work.

This paragraph might as well be drafted as a model paragraph to be inserted into ludicrous pieces like this one. It allows the author to say, "Look, I know we have a problem." What Ms. Duhart and the majority of the legal academy don't seem to grasp is that change does not happen by holding on even tighter to the status quo. This paragraph just gives us vague generalities about the need to make law school more affordable. Maybe Ms. Duhart and her ilk need to stop focusing on how law students need to think about pie in the sky issues, and actually study how to make law school more affordable. This would eventually lead to people like Ms. Duhart having to make actual sacrifices to their lifestyles. Professors, like everyone else, are looking out for number one. This means they need to continue the cycle of debt slavery so that they can continue living charmed lives.

Allowing students to earn nominal pay from an externship simply is not the answer. They won't earn much money, and they may not gain the type of experience that meaningfully contributes to their legal careers. Shifting the focus from academic study to earning pay will significantly transform the externship experience — and not for the better.

Ms. Duhart, I hope for your sake that you never come down from your ivory tower. Things are falling apart down here.

42 comments:

  1. "Next, it will tempt employers to exploit the students under their supervision."

    Reminds me of a line from Animal House: "He can't do that to our pledges, only WE can do that to our pledges."

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  2. The NCAA has no authority? Tell that to fans of the football teams at SMU and Penn State.

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    1. Their power is almost entirely illusory. I urge you to read "The Shame of College Sports" by Taylor Branch. Here's a link: http://www.theatlantic.com/magazine/archive/2011/10/the-shame-of-college-sports/308643/

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    2. I read the article and don't agree with your analysis. I think you are misusing the word "illusory." Their power is very real. The article details many draconian applications of it. The NCAA's authority, however, is subject to court challenges wherein it is claimed that it violates various laws. Their power is not "almost entirely illusory," it is almost entirely of questionable legality.

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  3. I couldn't get through half of Duhart's "arguments" before zoning out due to their shear non-relevance to how the world actually operates for students and graduates who don't happen to be Tom Buchanan. It must be nice to get to live in Cloud Cuckooland, where everything is rosy, people get paid huge salaries for little work, and the "little people" with their student loans and their job problems are relegated to Middle Zealand.

    Clearly, everything is awesome! QED. I'm looking foward to Bad Cop knocking on the gates.

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  4. "Profit and pedagogy do not always align," Duhart says, a moving endorsement of the purity of law school as intellectual salon. I wonder if she would ever say "Six figure professorial salaries and pedagogy do not always align" or "Legal academia's exemption from peer review and pedagogy do not always align" or "tenure and pedagogy do not always align" or "admitting students with a median 149 LSAT and pedagogy do not always align."

    Duhart, btw, is co-president of SALT (Society of American Law Teachers). SALT is a holier-than-thou outfit that believes in: (1) abolishing social and economic inequality and (2) huge salaries, iron-clad job security, and perks galore for law professors. But definitely NOT in that order.

    Using the codeword of diversity, SALT sponsors lots of pipeline programs, which target minorities for future victimhood by the law school scam. SALT members feel quite noble about this, but it is about as progressive as Madoff making a big effort to recruit minority investors.

    du.edu/documents/news/DenverLawPipeLineConf-3-28-14.pdf


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    1. Pipeline programs are the worst of the worst. Under the cloak of "promoting diversity" and "serving underserved communities," they trick kids with the weakest support networks and the least likelihood of ever practicing law into thinking that taking on $150k in nondischargeable debt is a good idea.

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  5. Yet, it is totally fine for failed lawyers/legal burnouts, i.e. "professors," to rake in six figures annually for "working" 4-6 hours per week. And the pigs wonder why no one has an ounce of respect for them.

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  6. "Ms. Duhart shows how little experience she has in the actual practice of law."

    Why, she practiced law for 14 whole months, according to her linked-in page, prior to becoming a law professor at Nova Southeastern (where she directs the Lawyering Skills and Values Program).

    http://www.linkedin.com/pub/olympia-duhart/4b/477/596

    Oh, those 14 months were spent at the firm of Ruden-McCloskey. Had she stayed there, she might have a slightly better idea of some of the challenges that her graduates might face.

    http://amlawdaily.typepad.com/amlawdaily/2011/11/ruden-mcclosky-bankruptcy.html

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    1. There is more to the Ruden-McCloskey bankruptcy. It seems to have been a pre-pack to facilitate the merger with Greenspoon Marder - driven by the mess of having their own captive investment bank - Ruden Capital Partners - which they (entirely considering the client's interests of course) they encouraged their clients to deal with.

      The malpractice claims were very very juicy.

      http://www.boardroompr.com/news/11-malpractice-suits-filed-against-ruden-mcclosky/

      Seems the good professor could draw on this stuff to teach some practical business law - if she was so inclined.

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    2. Huh, Dybbuk? Her CV (Experience Section) states that she was an associate from September 2003- July 2004. See http://www.nsulaw.nova.edu/documents/cv/163.pdf.

      She got licensed on September 16, 2003 according to the Florida Bar. So, if she worked until the end of July 2004, that's 9 and a half months as a practicing attorney, at least according to the Experience Section of her CV.

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    3. Sorry, Correction to 1:19- that should be 10 and a half months.

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    4. You are absolutely right, 119/448. I did not find her CV, and so went by the dates listed on her linked-in profile-- June '03 to August '04.

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  7. "The ABA is basically the academic version of the NCAA: an organization with no actual authority that maintains its control because it advances the goals of its most powerful members."

    LOL. That's a keeper.

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    1. I had a football friend, being pumped with narcotics to mask shoulder pain during routine workouts call the NCAA about illegal practice schedules. Their response: "Don't worry about it." My friend ended up getting shoulder surgery--at least the program paid for it. (This was a regional state university with a bottom rung program...)

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  8. This law professor's "argument" is ignorant and actually exactly opposite of what reality would show. If the ABA cared about the education of law students it would ban unpaid internships and maybe even require a minimum wage for law internships higher than the legal minimum wage.

    Unpaid interns fetch coffee, make copies, and do other menial work because
    (1) It doesn't cost anything to misuse the labor of someone working for free for trifling stuff. The boss can get someone else to pour their coffee and it didn't cost them anything.
    (2) It is not legal to make an unpaid person do useful work for a for-profit business, as per point number 4 of the Department of Labor's factsheet here --> http://www.dol.gov/whd/regs/compliance/whdfs71.htm

    If the interns were paid
    (1) They will be made to do something useful to real life law practice that they can learn from, because no business can justify having someone make $15 an hour to do manservant stuff for some low level boss.
    (2) You can task them with profitable tasks without having to worry about if the internship is illegal.

    I think the only reason she is against it is because of foggy notions about 'the life of the mind' or 'law school tradition'.

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    1. That's not right, an unpaid internship at a for-profit organization has to provide educational benefit / skills training for it to be legitimate. Putting an intern to work getting coffee or making copies that would be illegal.

      Its usually undergrads that get abused in unpaid internships, though. Most reputable law schools have some sort of accountability system to prevent their students getting abused / wasting their time in this fashion. My law school didn't allow any for-credit internships at for profit (i.e. law firm) environments. You either interned at a non-profit or government or you worked as a clerk at a firm and got paid. Needless to say, if you do an unpaid, no credit internship at a law firm you are an incredible idiot.

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    2. When I was an undergraduate internships were universally perceived as jokes. These people would do busy work for a semester and get a 4.0 GPA - their one time on the Dean's List - and then slip back into their usual mediocre performance.

      Spend a semester as a Mail Boy or Coffee Girl and are you going to bitch that it was illegal or keep your mouth shut and take the boost in your cumulative GPA?

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    3. When I was an undergraduate, an internship was a well-paying job for a person in training to become a physician.

      Old Guy

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    4. Well said, Old Guy. A classic example of how people co-opt words to add gravitas to their own situation. It's like people who claim to be "incest survivors." How many people have died of incest?

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    5. FYI -- internships for physicians today pay between $40,000 and $50,000 per year. They last between 3 to 6 years, and there are enough of them for the graduates of American medical schools (even the DO schools), as well as some foreign medical graduates returning to the US (i.e., the people who could not get into an American school).

      Quite different from law schools, where half of the graduates are unable to find work.

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  9. The education industry at the grad level has grown so quickly that it is hard to find "experiential" preceptors. This is one avenue the ABA and other professional groups could pursue. In my city, there are two pharmacy schools and not too far outside of it, several more. The preceptor sites are retail chains with a few hospitals or nursing homes. Even by the weak standards of APHA, many students are not getting decent sites, much less an education out of them. They are free labor---period. If one complains or is having trouble learning on their own, the school comes down on them and threatens failure. I can only imagine that nursing and optometry are similar. "You aren't following the competencies?"--I don't care if you haven't monitored and treated diabetes in a indigent population with no guidance from the preceptor--"The onus is on YOU."

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  10. "Things are falling apart down here."

    Well, things are falling apart in the Ivory tower too.

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  11. Duhart: "The A.B.A. has promoted legal education that encourages self-reflection, outcome measures and ethical participation in the practice of law."

    There's no better way to learn about "outcome measures" in law practice than to be on a law firm's payroll. It will give kids a small taste of what it's like to be worth only as much as the most-recent matter you originated.

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  12. Duhart: "Yes, law students need money. They also need experience."

    Really? Law students need experience? Then why can law student earn a JD without even being in the same room with a practicing lawyer?

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  13. Law profs: Giving them money promotes academic integrity

    Law school students: Giving them money threatens academic integrity.

    Taxpayers: Need to provide lots and lots money with no strings attached and without worrying about outcomes, in order to promote academic integrity.

    Academic integrity: Whatever is convenient for profs and administrators. Money is involved.

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    1. I was just going to post this. It's okay, in other words, depending on the direction of the money flow.

      We're at the point where the arguments, if you can even call them that at this point, from these completely out-of-touch thieving academics are utterly ridiculous.

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    2. Absolutely. But what can you expect from a Boomer, really? "Do as I say, not as I do" is the battle cry of their generation.

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    3. To be fair, she may be eaaaaaarly, eaaaaaarly Gen-X. Even still, point made.

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    4. She's no later than 1964. Those of us who were born later than that got fucked.

      Old Guy

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    5. My guess is 1967 based on UG completion.

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  14. I'm thinking that Olympia Duhart's outlook may have been shaped by her own legal education--at Nova Southeastern, of all places. Almost no one from there gets a biglaw job, not even for 9 months. She probably didn't like having to bill hours, and the biglaw workload must have been a culture shock after the endless party of her own JD program. So she decided to crawl back into the warm, comfortable womb of academia, which is the only place she won't be exploited. In her eyes, it's literally the only ethical thing to do.

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    1. Imagining The Open ToadSeptember 23, 2014 at 10:25 AM

      While I agree with MA's take on her op-ed, many of your comments don't appear rooted in fact. It looks like she worked between undergrad and law school, 5 or so years as a newspaper reporter and then 5 or 6 as a HS teacher. It also looks like she worked throughout law school (how much, who knows, but it doesn't appear to have nothing but party time).

      In any event, while I doubt working as a reporter or HS teacher is as tough as being a biglaw 1st year, it's not as if she doesn't know what work is.

      So, pound on the message. Pound on the messenger, too, if need be, if and as warranted.

      Just my two cents.

      That and a dollar will get you a candy bar and a pack of gum.

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    2. Not sure how old Olympia Duhart is, but things were a bit different years ago. If you graduated law school in the '80s or early '90s, it wasn't unheard of for graduates of lower ranked law schools to get good jobs.

      This older generation simply had it easier than we do, and they cannot understand what we are going through.

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  15. These thieving academic pigs are beyond filth. They are only in it for the federal loan cash - students are just walking promissory cheques for their garbage education. We need laws to allow law students to financial recover directly from the academic thieves who fleeced them.

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    1. But....(sputter)...allowing students to enforce legal rights against law schools...(shudder)...would threaten...(wheeze)..."academic integrity!"

      And paychecks. Don't forget paychecks. Clearly you are a monster who hates freedom.

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    2. So, I think I got this now: You will receive academic credit but God forbid you might make $0.01 blessed of a cent doing it. In other words, not even fricken' gas money to cover the expense of commuting to an externship. In other words, this bullshit is just another extension of the basic Scam: Credit for paying money (out of pocket in this case) to get it. And they get free labor. Great!!

      Now I remember why I never did an externship / internship. Because of crap like this. As far as gas money, add it up. Today, that alone will put you out of pocket probably a grand over the course of the externship.

      Just one more prick to draw some financial blood.

      What a bunch of crap!!

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  16. If taking on an unpaid job (however glorified as an "internship" or an "externship" or whatever) is the way forward, I may as well spend my last few dollars on hemlock. Certainly I don't have the funds, or even the desire, to support myself while doing unpaid work.

    Old Guy

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    1. These LawPrawfs get on their high-horse about "giving back" and "working for others," like it is some maturation rite-of-passage.

      Perhaps it can be. However, when tuition was a fraction of what it is now, in inflation-adjusted dollars, you could mete out this "rolling-up-your-sleeves" internship/externship crap without killing people. Even when it was done to give kids a can of buck-up, it's not like Charles Emerson Winchester III didn't have other backing to rely upon. Point made, it wasn't that painful, move on.

      TL;DR: LawPrawfs didn't "give back" when they were in law school. That's what scholarships and family money were for: to work the free jobs necessary to get the gold stars so that they could do what they do now. And they have the audacity to lecture others on working for free, who don't have scholarships, family money, or other backing, and are payiong tuition that will haunt them for the next 25 years.

      TL,TL,DR: LawPrawfs, STFU.

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    2. Agreed.

      IMO, It's always the so-called "givers" who had backing to spare in life labeling the rest as "takers" because they couldn't take the necessary steps to do what those with family wealth, connections, and grooming do easily to secure their stepping stones in life.

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    3. When these boomer fuckers were in school, they certainly didn't do unpaid work. Paying jobs abounded. As I said above, the idea of an unpaid "internship" didn't exist.

      Old Guy

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  17. Unless you actually get a pay check, you won't be allowed near anything of merit. So this idea of an externship for credit (not money) is utterly useless as a teaching tool.

    In my case, I did both during my law school years. I had a part time job doing legal research for my second and third year, AND I was in a clinical for credit. Both were more enjoyable than the classroom, but the clinical was really us sitting around a table gossiping for several hours.

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