Making Genuinely Practice-Ready Law Graduates

One of the hottest trends among law schools frantically trying to fix the jalopy of legal education is "experiential learning" or creating "practice-ready" graduates.  Practically every week in my news feed on this topic, I see some article about yet another law school parading these buzz phrases as they add some bell or whistle.

Like installing a car horn that plays La Cucaracha.

Here's a typical article on this nonsense:

"In the past, experiential learning was almost optional," says Diane Rifkin, an attorney and founder of Rifkin Consulting, an attorney recruitment firm located on the web at www.rifkinconsulting.com . "Now, experiential activities will be an integral part of the majority of law school classes. Classes are becoming much more hands-on, with the ultimate goal of producing lawyers who are better prepared to handle the realities of practice."

For one example, this is from Capital's page on the subject:

At Capital University Law School, we know that getting real-world experiences is critical to getting the most out of your legal education and differentiating yourself in the job market. Experiential learning opportunities help students take their classroom theory and apply it to the real world – teaching you how to work like a lawyer.

Emphasis added.  As a koan for the reader on the road to enlightenment, try to figure out how students are going to differentiate themselves on the job market when virtually every law school in the country offers the same puffed-up claims.

This isn't to say there's a lack of good intent, or that law students don't need real-world experience.

It's that law schools simply aren't built to provide it.

The NYC Bar Association Task Force on New Lawyers in a Changing Profession, which includes eight law school deans, declares that the "perceived oversupply of lawyers is largely illusory."

The New York City Bar Association Task Force on New Lawyers in a Changing Profession recently issued a 135-page report on legal careers in the 21st century, entitled "Developing Legal Careers and Delivering Justice in the 21st Century (hereinafter: "Report").

http://www2.nycbar.org/pdf/developing-legal-careers-and-delivering-justice-in-the-21st-century.pdf

The Task Force boasts that its membership is "broadly representative of the profession in New York and nationally." ("Report, p. i) Indeed, the 35-member Task Force includes 19 persons who are Big Law partners or are General Counsels or Chief Legal Officers of major corporations. It also includes eight law school deans, and two other persons who are employed by law schools. That is so representative that maybe the rest of us should all just fall silent, and let the Task Force speak for us.

The Task Force boasts that its members "approached the work from different backgrounds and with different perspectives." (Report, p. i) Indeed, the Task Force includes among its members the Dean of New York Law School, as well as another person whose job title is "Advisor to the Dean, New York Law School." So we get the radically "different perspectives" of both the Dean of a school with a 37% nine-month-out bar-passage-required employment rate, and the Advisor whom he employs.

The Report dismisses the "wide-spread handwringing" and "common lament" (Report, p. 1, 108) about a saturated legal market, finding that the "perceived oversupply of lawyers is largely illusory." (Report, p. 1) According to the Report, the problem lies elsewhere, in the mysterious failure to match the supply of lawyers with unmet legal needs.

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According to the Task Force, the recent laments about an alleged "oversupply" of lawyers are ironic. Not just false, but "ironic," in that there are too few lawyers to handle the huge demand for legal services.

• "Perhaps most importantly, there is a huge unmet demand for legal services across America among middle-class households of moderate means: an irony given the common lament about the "oversupply" of lawyers." (Report, p. 1)

Did you know that more than half of American households are afflicted with at least one unmet legal need? Given the extent of the crisis, maybe we should empower law schools to conscript recent college grads into their 1L classes. 

• "The most comprehensive study of the legal needs of persons of moderate means is the 1994 ABA Consortium on Legal Services and the Public, Legal Needs and Civil Justice: A Survey of Americans: Major Findings from the Comprehensive Legal Needs Study. . . found that 52% of moderate-income households faced at least one legal need. Our research confirms that the need for legal services for persons of moderate means, if anything, has increased since the 1994 survey. (Report, p. 89)

There is no oversupply of lawyers, simply a weird failure to match lawyers who need clients with clients who need lawyers. Think of it this way: underemployed recent law grads are huddled at one end of the dance hall, and "large portions of the U.S. population" are huddled at the other. What pitiful "lack of confidence" prevents them from sauntering over to each other, and tripping the law fantastic?

• "There is a need to reconcile the perceived oversupply of new lawyers with the persistent unmet legal needs of large portions of the U.S. population. We believe that many new lawyers could develop sustainable legal practices serving Americans of moderate means who have legal needs and who can afford to pay something, but who do not now obtain legal advice because of competing priorities for limited resources, a lack of confidence in the value of being represented by counsel, and the difficulty of finding the right lawyer at an affordable price." (Report, p. 11)

Or think of it this way: recent law graduates are starving to death at the Super-Glutton All You Can Eat Buffet because they are too dim to realize that there is food underneath those plate lids.

• "Why have large numbers of underemployed law graduates not been driven to address this unmet need in their attempts to build sustainable careers?" (Report, p. 97)

Maybe the problem is that today’s youth are technologically unsophisticated. The cost-savings made possible by newer technologies allow lawyers to profitably represent the middle class, but recent grads just don’t see it. What do you have to do these days to persuade a kid to turn on a damned electronic device?

• "We believe that newer business models, technologies, and innovative practices can provide better opportunities to meet these needs while providing satisfying and remunerative long-term career opportunities for new lawyers." (Report, p. 12) 
  
  

Or maybe the problem is that new lawyers are too citified, refusing to abandon Park Avenue, or the elegant leafy burbs, for rural Green Acres, where the simple country folk often pray for a recent law school grad to move to town and sell them legal services.

• "There are, for example, many areas of New York State outside New York City and its suburbs that have few attorneys in residence, yet populations with legal needs." (Report, p. 13)
  
  
• "Rural areas, for example, are rife with underserved legal needs." (Report, p. 97)

Or maybe the problem is that new lawyers, with their media-driven fantasies of Big Law wealth, are just too egotistical to devote themselves, Atticus Finch-like, to the needs of the common people.

• "We also believe that there are additional, existing opportunities for new lawyers who have flexible career goals and realistic economic expectations. In recent decades, many law schools, law students, prospective law students and the press have been unduly focused on "BigLaw" jobs and their high starting salaries." (Report, p. 5)

Law deans and law professors can help remedy the crisis by persuading their students not to be such greedy bastards. Or, to put it gently, they could shift their students’ paradigm.

• "But what would the profession look like, and what could be achieved for law graduates, law schools, and—most importantly—people with unmet legal needs, if the paradigm were to shift: if schools and students were encouraged to recognize the value and professional rewards of pursuing a private viable legal practice aimed at delivering affordable services to people of moderate means and to adjust their career support services and career expectations accordingly?" (Report. p. 98)
  
  

You know what would be "game-changing"? Easy credit for insufficiently indebted law grads. (What would be really cool is if we could make those loans non-dischargeable).

• "In particular, access to outside capital could be a game-changing development in providing legal advice to the moderate- and low income individuals who currently have unmet legal needs." (Report, p. 86)

Let us not put all blame on young lawyers though, when some of the fault lies with the public. As with many gamblers or drinkers, American middle class households are in denial. They need to be informed that they have a problem, a problem of unmet legal needs, and require professional assistance.

• "[M]iddle-class households gave several reasons for not seeking legal assistance. The principal reasons were that the households did not identify their problem as a legal issue, thought a lawyer was unnecessary to resolve it, or did not believe a lawyer would be useful." (Report, p. 90)
  
  

You had me persuaded, Task Force, and I was prepared to do my part by offering to convert my scamblog column into a law school recruiting tool. Then you mentioned, three-quarters of the way through the Report, that lawyers are often not needed to address unmet legal needs.  

• "We also recognize that in certain circumstances, non-lawyers can provide an important service to individuals who need help and assistance resolving law-related issues. . . . [S]ome of the tasks involved in assisting low-income individuals are relatively simple and, in appropriate circumstances, could be performed effectively by non-lawyers with some degree of training, or even by untrained but intelligent laypersons." (Report, p. 99)
  
  

• "[N]on-lawyers already provide legal services in limited circumstances in New York, including in landlord-tenant disputes, foreclosure actions, consumer credit cases, family court, tribal courts, and administrative proceedings regarding social security benefits, immigration, unemployment insurance, and workers compensation, with better outcomes for the clients. . . . The Task Force applauds these initiatives, specifically encouraging additional study to find roles for non-lawyer practitioners in areas where the market will not bear the costs of a full lawyer." (Report, p. 99)

No, you don't always require a lawyer to address your relatively uncomplicated legal need. Just like you don't always require a doctor to address your minor medical need. Sometimes you can address your medical need simply by consulting a non-doctor with "some degree of training," or an "untrained but intelligent" layperson, or by availing yourself of online resources, or by taking an extra-strength Tylenol. This last option is how I chose to address the pounding headache I experienced after reading the deceitful and highfalutin' 135-page whitewash produced by the New York City Task Force on New Lawyers in a Changing Profession. 

A Tale of Two Committees

We...are...the...A-B-A!  We...are...the...su-per-i-or...legal...in-tell-i-gence!  

PON-TI-FI-CATE!  OB-FUS-CATE!  E-VI-CER-ATE!!!

It has been said that "All Politics is Local."  There is certainly some politics at work when one examines the ABA's "Draft Report and Recommendations, Task Force on the Future of Legal Education (September 20, 2013)," compared to, say, the Illinois State Bar Association's "Special Committee on the Impact of Law School Debt on the Delivery of Legal Services (March 8, 2013)"  Others, like MA's recent post, have commented on the ABA report already, and for the most part the reception of the ABA report has been, shall we say, less than enthusiastic by those not-directly affiliated with Law Schools.  However, less appears to have been said about State Bar views on the current state of the legal industry, and it is my personal opinion that the ISBA report says exactly what needs to be said.  While the ISBA might not call themselves "scambloggers" on this topic, I think the scambloggers can find common cause with the ISBA on these issues.

Rather than going through a long discussion of both reports, I thought I would summarize only the recommendations made by both committees for dealing with the crushing cost of a JD, the meager job opportunities, and the state of legal education.  Both reports have an outline of recommendations with supporting text, but I believe a simple review of the high-level topics is sufficient.

Topic Number 1:  What should Law Schools be doing?

ABA:   

1.   Develop and Implement a Plan to Manage the Investment of Law School Resources in Faculty Scholarly Activity, and Continually Assess Success in Accomplishing the Goals of the Plan.

2.  Develop a Clear Statement of the Value of the Law School's Program of Education and other Services Will Provide, Including Relation to Employment Opportunities, and Communicate that Statement to Students and Prospective Students

3.  Adopt, as an Institution-Wide Responsibility, the Promotion of Career Success of Graduates and Develop Plans for Meeting that Responsibility

4.  Develop Comprehensive Programs of Financial Counseling for Law Students, and Continually Assess the Effectiveness of Such Programs

ISBA:  1.  Focus on Practice-Oriented Courses

            2.  Provide Fewer Exotic Courses  (e.g. "Law and ______" courses)

            3.  Provide More Writing Assignments and Constructive Criticism

            4.  Teach Law Office Management

            5.  Provide Free Bar Review Courses

            6.  Transform the Second and Third Years of Law School

You gotta love the overly-wordy ABA.  Blah, blah, blah, what?  I don't even care anymore.  They are always, always, "Developing, Implementing, and Assessing," but mealy-mouthed about actual positive steps.  The ISBA, in contrast?  Teach practical courses.  Provide writing skills.  Teach Firm management.  Boom, boom, boom. 

Topic Number 2:  What Should Law Faculty be Doing?

ABA:   1.  Become Informed About the Subjects Addressed in This Report and Recommendations, in Order to Play in Effective Role in the Improvement of Legal Education at the Faculty Member's School.

2.  Individually and as Part of a Faculty, Reduce the Role Given to Status as a Measure of Personal and Institutional Success.

3.  Support the Law School in Implementing the Recommendations

ISBA:   1.  Change Tenure/Hiring Requirements; Less Emphasis on Scholarship

            2.  Include Practicing Judges and Lawyers on Hiring and Tenure Committees

            3.  More Reliance on Adjunct Faculty

            4.  Give Clinical and Legal Writing Faculty Equal Say in Governance

LawProfs should "become informed" so as to be "effective" in the implementation of the blah-blah report, reduce the role of "status", and "support" the law school in its success?  Sweet Lord, please don't break a sweat or anything, or get a hang nail while falling all over yourselves to implement change.  The ISBA?    Change tenure and hiring practices.  Focus on the practical.  Put actual practitioners on Law School committees and in the classroom.  Done.

Topic Number 3:  What about the Cost of Law School?

ABA:    1.  Establish A Task Force or Commission With Appropriate Expertise to Examine and Recommend Reforms Regarding Law School Pricing and Financing.  Issues Within the Scope of Such A Project Should Include:

                                    a.  Cost-Based Pricing by Law Schools

                                    b.  Discriminatory Pricing by Law Schools

                                    c.  Reliance on Loans to Finance Law School Education

d.  The Structure of the Current Loan Program for Financing Law School Education

2.  Revise Standards, Interpretations, and Rules that Directly or Indirectly Raise the Cost of Delivering a J.D. Education Without Commensurately Contributing to the Goal of Ensuring that Law Schools Deliver a Quality Education.

3.  Develop and Implement a Plan for Reducing the Cost and Limiting Increases in the Cost of Delivering the J.D. Education, and Continually Assess and Improve the Plan.

ISBA                1.  Place Reasonable Limits on the Amounts Law Students Can Borrow

2.  Impose Outcome-Based Requirements on Law Schools for Federal Student Loan Eligibility

                        3.  Reallocate the Funds Available Through Loan Forgiveness Programs

So, in other words, the ABA thinks we need a Task Force to mumble-mumble about costs, while the ISBA says "lower costs and demand accountability."  Nice.

Topic Number 4:  How can the State Bars and State Supreme Courts help?

ABA                 1.  Construct and Evaluate Proposals to Reduce the Amount of Law Study Required for Persons to be Eligible for Practice

2.  Construct and Evaluate Proposals to Reduce the Amount of Undergraduate Study Required for Persons to be Eligible for Practice

                        3.  Establish Uniform National Standards for Admission to Practice

4.  Reduce the Number of Doctrinal Subjects Tested on Bar Examinations and Increase Testing of Skills

5.  Avoid Imposing Educational or Academic Requirements of Admission to Practice Beyond Those Required for ABA Approval of Law Schools

ISBA                1.  Consider Ways to Reduce Cost of Becoming Licensed

                        2.  Monitor Ethics Violations due to Excessive Student Loan Debt

                        3.  Help Young Attorneys Gain Practice Experience

                        4.  Facilitate Firm Apprenticeship Programs

                        5.  Partner with Law Schools to Provide Practice Experiences

                        6.  Facilitate Pro Bono Work

                        7.  Facilitate the Sale of Rural Law Practices to Young Lawyers

                        8.  Provide Debt Counseling

                        9.  Provide Solo/Small Firm Resources

                        10.  Partner with Stakeholders to Ensure Lawyers are Placed Where They Are Needed

Enough said.

Topic Number 5:          What about Accreditation?

ABA                 1.  Establish a Center or other Framework to Institutionalize the Process of Continuous Assessment and Improvement in the System of Legal Education.

2.  Establish a Mechanism for Gathering Information About Improvements in the System of Legal Education and Disseminate that Information to the Public.

3.  Establish Training and Continuing Education Programs for Prelaw Advisors to Improve their Understanding of the System of Legal Education and the Current Environment.

5.  Revise Standards, Interpretations, and Rules that Directly or Indirectly Impede Law School Innovation in Delivering a J.D. Education Without Clearly Contributing to the Goal of Ensuring that Law Schools Deliver a Quality Education.

6.  Revise Procedures Regarding Variances [Standard 802] to Promote Innovation and Experimentation

7.  Provide Additional Consumer Information to Prospective Students as Recommended in 2007 and 2008

ISBA                1.  Greater Role for Adjunct Faculty

                        2.  Require Law Schools Provide Debt-Counseling

                        3.  Remove Scholarship Requirement for Faculty

                        4.  Require Law Schools to Collect Additional Salary, Debt, Employment Status Information of Graduates

Hmmm.  The ABA has "a lot" to say here, while the ISBA keeps it short, sweet, and to the point.  Hmmm.  Irony.

Topic Number 6:  Anything else?

ABA                 1.  Establish Standards for Accreditation of Programs of Legal Education Other than the J.D. Program

2.  Authorize Persons Other than Lawyers with J.D.s to Provide Limited Legal Services, Whether Through Licensure or Other Mechanism Assuring Proper Education, Training, and Oversight

3.  Develop Educational Programs to Train Persons, other than Prospective Lawyers, to Provide Limited Legal Services.  Such Programs May, but Need Not, Be Delivered through Law Schools.

ISBA                [...]

What the, I don't even, ABA?!?  On the one hand, the ABA makes these luke-warm, half-hearted recommendations with no teeth; with the other, they are throwing law students and licensed attorneys under the bus because legal services are allegedly too expensive, too ineffective,  and allegedly not readily available for John Q. Citizen.  Wait, who accredits law schools like they were candy?  Yet, who has turned a blind eye to JD overproduction?  Yet, where was regulation of the industry with respect to costs and tuition, such that graduates can "afford" to work for less and supply these "needed" services?  What about the interests of actual, currently practicing lawyers - why are they supposed to take a haircut for No Real Reason, just because the ABA feels the need to distort the market?  Here's a pro-tip - the market has been distorted heretofore already, thanks, there is dubious need to add even more so-called "market correction." 

The ISBA, on the other hand, actually wants to regulate, streamline, and protect the profession - the end goal being legal services provided efficiently at reduced costs without knifing practitioners in the back all at the same time.  I highly suspect there is a way for law schools to make a profit in all this, too, albeit perhaps not at the rate of bank they were previously jonesing for.  They may have to settle for something more, I don't know, "reasonable."  Break out the violins, everybody, as the drama commences.

In conclusion, it is shocking to see the disparity in mission and motivation between two very similar organizations.  Some want to maintain their obtuse and wordy hierarchy; others want to actually take action to change things for the better.  Read the ISBA report; it is full of facts, figures, anecdotes, and recommendations.  I highly respect the efforts of those Illinois Bar Committee members who put it together and their admonitions regarding what to do about the state of the legal profession, indebted JDs, poor career prospects, and efficient delivery of legal services - they clearly feel some responsibility towards those within their jurisdiction.  The American BigLaw Association and their minions, in contrast, apparently have other objectives that lean more towards "innovative" hegemony and less towards the "pedestrian" concerns of Joe and Joanna JD.

The Law School Admission Council's DiscoverLaw project encourages high school kids to dream about going to law school to save the dolphins.

The image that appears above, and the others that appear at the bottom of this post,  are from the DiscoverLaw.org site. DiscoverLaw.org is an initiative of the Law School Admission Council (LSAC), which is the nonprofit that administers the LSAT, and facilitates the law school admissions process on behalf of ABA accredited law schools. DiscoverLaw.org was "created with high school and first and second year undergraduates in mind." This initiative seeks to encourage kids, particularly but not exclusively those from ethnically and racially diverse backgrounds, to "discover early how to be a successful law school applicant."  

The DiscoverLaw site states that "LSAC will provide grants to member law schools to demonstrate to high school and early college students why the world does need another lawyer.  Your law school is eligible for a maximum of $2,750 to program events that address early outreach, awareness, and preparation aimed at the target audience." The DiscoverLaw images are intended for use at these events, and are downloadable as posters.

 

I have thoughtlessly compared the law school scammers to Bernie Madoff, but these images make me realize how unfair that is to nebbishy old Uncle Ponzi, rotting away in federal prison. Madoff scammed the wealthy, and he scammed institutional investors who should have known better. The law school racketeers operate from a lower circle of depravity, luring social justice-oriented kids into life-destroying debt by promising to provide the foundation for a career that will allow those kids to fulfill their highest ideals.

Law School Lemmings

Just want to point out that we've added a new blog to our list on the right hand side of the page - Law School Lemmings.  Please check it out, as it's a great barometer of how far the scam message is and isn't getting out there.  They are doing god's work over there, as are all the scamblogs.

And if any of you have blogs that address law school scam issues (or even a healthy skepticism of the law school machine), let us know.  As can be clearly seen from Law School Lemmings, there are still countless misguided kids out there who just have no idea what they're getting into, and they need all the discouragement they can get.

The ABA Is Speaking. Will Law Schools Listen?

The ABA, as many of you know, is currently studying the future of legal education and is attempting to determine a way to save law school administrators' and professors' jobs improve the current state of legal education. There is a lot in this report that seems to be lip service to mollify scam bloggers and other critics. Let's look at some of the juicier bits of the draft report. Their words are in bold, mine are normal text.

P. 3: 
"Broader Delivery of Law Related Services:
This should include licensing persons other than holders of a J.D. to deliver limited legal services, and authorizing bar admission for people whose preparation may be other than the traditional four years of college plus three years of classroom based law school education." While the law schools are still pumping out almost twice as many graduates as there are jobs available, this proposal would cannibalize potential job opportunities. In the excellent book, Con Law, my fellow blog mate Charles Cooper writes about new grads who are forced to become solos chasing an ever more despicable and low grade clientele. Introducing more competition into the current climate works directly against law grads' interests. Good job, ABA.

P. 8
"[Online] criticism is diminishing public confidence in law schools and legal education and it adversely affects attitudes of prospective law students." Boo hoo. Law schools are stealing billions of dollars a year and enriching law school administrators and professors. Any criticism is warranted and richly deserved.

P. 11 
"What the ABA Standards [for Approval of Law Schools] do encourage is a continued increase in the quality of the  J.D. educational program. The pursuit of quality by law schools has unquestionably led to a strong system for training lawyers, and the ABA Standards have played a key role. But “quality of legal education” is an abstract notion as to which there is no objective metric for progress or achievement." Let me suggest a metric: student employment in a job requiring a bar license within a reasonable time after graduation. I know it's crazy, but let's give it a shot.

P. 12
"In some rural areas, for example, there are few lawyers and it is difficult for communities to encourage new ones to set up practice, either because of low prospective return on investment or lack of interest in small town or rural life." The "all the jobs are in rural Nebraska" argument is a red herring. There is a dearth of lawyers in these communities because there just isn't all that much work in most of these places to allow a lawyer to service her debt and live the American Dream. I live in a state with a large rural population. Many areas have one attorney for a three or four county area, because the low population, lack of disposable income and low demand will simply not support more than that.

P. 13: 
"There is wide disagreement about the purpose of law schools. For example, a commonly stated purpose of law schools is to train lawyers, but there is no consensus about what this means." Tamanaha and others have advocated a bifurcated approach to legal education. Certain schools (probably the elite ones like Harvard) can remain dedicated to developing leaders and teaching students how to "think like lawyers". All the others can teach students how to do what most attorneys do: draft wills and contracts, file a divorce, and how to litigate a case. This approach would help settle this "disagreement". The Report explores this idea more in depth on P. 22-23.

P. 21:
"To begin, there is relatively little scholarship funding or discounting provided to students on the basis of financial need. Rather, the widespread practice is for a school to announce nominal tuition rates and then use extensive discounting to build class profiles it finds desirable. In particular, schools pursue students with high LSAT scores and high GPA’s. Students who do not
contribute positively to the desired class profile receive little if any benefit from discounting and must rely extensively on borrowing to finance their education."Chasing prestige is a problem endemic to the legal profession. The legal profession's aristocratic ambitions need to be disabused before we can make law a truly meritocratic enterprise.

P. 25:
"Law schools have a societal role: to prepare individuals to provide law related services." Don't tell this to law profs. The majority of them are so out of touch that they think drivel like Nancy Leong's law and pop culture study is a worthwhile pursuit.

P. 26:
"But for law schools that choose to pursue other models, faculty culture and faculty role may have to change to support them. These changes may relate to: accountability for outcomes; scope of decision-making authority; responsibilities for teaching, internal service, external service, and scholarly work; career expectations; modes of compensation; interdependence; scope of the category “faculty” and internal classifications within that category; and a host of other factors." The majority of the law professorate will fight this type of change tooth and nail. After all, why would they want to give up the most highly paid part time job in America and possibly the world?

The suggestions in this report have some merit, which is why they will almost certainly be ignored by all the major stakeholders involved. Until law schools are subjected to some sort of system where employment outcomes are tied to the amount of student loans available to its students. Without that type of accountability, law schools will continue to abdicate their duty to actually teach students how to practice law in favor of producing ever more esoteric and useless "legal scholarship".

Self-help Delusions

The other day, I got one of those ubiquitous self-help articles via e-mail.  As it was from Forbes and had to do with what makes people "mentally strong," I thought sure, why not, let's take a look.

http://www.forbes.com/sites/cherylsnappconner/2013/11/18/mentally-strong-people-the-13-things-they-avoid/#!

I generally find these articles simplistic and repetitive.  Too much hopium and pollyanna cheerleading for my taste, but as a Gen-Xer perhaps I am a shade cynical.  To be fair, these articles are not full-blown books, nor are they intended to cover every circumstance, nor are the ideas not worth considering at some level.   

I was struck, however, by how many of these recommendations for "mental strength" echo so many of the knee-jerk criticisms of the scambloggers and other JDs who feel like law school was a raw deal.  Clearly the message behind these articles deeply pervades the national psyche on multiple levels, because it seems like every criticism of the scamblog movement is a familiar laundry list of these self-same self-help articles on what it takes to be "successful."  While the aftermath of law school was not the original subject of the author, let's look at a few of these items through the lens of scambloggery (just replace "mentally strong people" with "JD graduates with bar licenses"):    

1. Waste Time Feeling Sorry for Themselves. You don’t see mentally strong people feeling sorry for their circumstances or dwelling on the way they’ve been mistreated. They have learned to take responsibility for their actions and outcomes, and they have an inherent understanding of the fact that frequently life is not fair. They are able to emerge from trying circumstances with self-awareness and gratitude for the lessons learned. When a situation turns out badly, they respond with phrases such as “Oh, well.” Or perhaps simply, “Next!”

7. Dwell on the Past. There is strength in acknowledging the past and especially in acknowledging the things learned from past experiences—but a mentally strong person is able to avoid miring their mental energy in past disappointments or in fantasies of the “glory days” gone by. They invest the majority of their energy in creating an optimal present and future.

Numbers 1 and 7 are oft-hurled criticisms by the pro-law-cartel, and they oversimplify and minimize the run-up to the circumstances/mistreatment that transpired in the first instance.  While we can all agree that "life is not fair," how one responds to that unfairness matters.  If you have been taken advantage of, do you just lie down and take it and say "whadayagonnado?"  Sometimes, maybe that is indeed the answer, but I bet for most of our readers they don't generally take things lying down.  Given the overstuffed dockets around the country, however, it appears that many people who believe they have rights choose to assert them in many, many cases.  Further, are we to just let things lie, shrug our shoulders and move on with a smile on our faces, knowing that those who follow us are very likely to fall into the same trap that only becomes more damaging with each subsequent academic year?  That would be heartless.

Many scambloggers have taken and continue to take responsibility for their actions by working as practicing attorneys or in some full-time professional capacity, paying their student loans, paying on their other obligations, etc.  However, this does not erase the gravitas of the situation or the legitimate criticisms given by the survivors.  There is much more to this than "feeling sorry for oneself," as if all that happened was that the scambloggers didn't get a pony.  This is about thousands of dollars of lost opportunity costs and hundreds of thousands in non-dischargeable debt, all for the privilege of later being told "Oh, sorry, we've been producing twice as many graduates as there are available jobs for decades now, and the employment statistics were (ahem) less than accurate.  Did we not mention that?  Oops!  Tee Hee! Go "network," or something."

Oh, well!  Next!  I would hate to highlight these problems and have others not view me as a mentally strong person or anything.  Best to just stay quiet, I guess.

6. Fear Taking Calculated Risks. A mentally strong person is willing to take calculated risks. This is a different thing entirely than jumping headlong into foolish risks. But with mental strength, an individual can weigh the risks and benefits thoroughly, and will fully assess the potential downsides and even the worst-case scenarios before they take action.

If I had $5 for every time I saw some yokel (many of whom never went to law school, themselves) say "well, you should have done your research, then", I could retire now.  It is not fear of weighing risks and benefits that lead the scambloggers to say what they say.  Ironically, it was directly because of the willingness to take a risk and willingness to rely on the representations and rankings, only to find out that the information relied upon was faulty to the point of being fraudulent, that many graduates now find themselves in dire circumstances.  Who knew the true score all along?   Dingdingding!  Yes, Law Schools, thanks for playing!

While information transparency has been improving in recent years (and the market has responded, as evidenced by declining LSATs and law school applicants year-over-year), there is still a long way to go to getting to the truth of student outcomes.  Those with superior information, knowing their representations were not truthful, were certainly keeping it close to their chests for decades while welcoming thousands of new enrollees every year. 

8. Make the Same Mistakes Over and Over. We all know the definition of insanity, right? It’s when we take the same actions again and again while hoping for a different and better outcome than we’ve gotten before. A mentally strong person accepts full responsibility for past behavior and is willing to learn from mistakes. Research shows that the ability to be self-reflective in an accurate and productive way is one of the greatest strengths of spectacularly successful executives and entrepreneurs.

Agreed.  This is why the scambloggers encourage others to take another path, especially if the attorney thing just isn't working out despite best efforts.  Or better yet, learn from the mistakes of others and don't even go to law school in the first place.  It would be insane not to temper the rosy outcomes sold by the cartel with the in-the-trenches experiences of actual graduates 5, 10, and 15+ years down the road (which we do right here on OTLSS).  Yet many 0Ls watch others criticise the scambloggers as "bitter," and in turn jump off the cliff themselves because the arguments of the scambloggers are dismissed as the fevered rantings of losers.  Funny, the critics are never available for comment, afterwards, once the truth hits home.

9. Resent Other People’s Success. It takes strength of character to feel genuine joy and excitement for other people’s success. Mentally strong people have this ability. They don’t become jealous or resentful when others succeed (although they may take close notes on what the individual did well). They are willing to work hard for their own chances at success, without relying on shortcuts.

A strawman, at least as applied to the scambloggers.  If someone succeeds on building a successful solo practice or being a BigLaw titan of industry, then that is excellent news!  Truly!  If you have the resources and connections to pull it off, good for you!  Just because a legal career works well for a select few doesn't mean the majority should follow the same path.  And, from an "ethical" and "professional" perspective, I believe there is a duty to say as much, given recent and current market conditions.

10. Give Up After Failure. Every failure is a chance to improve. Even the greatest entrepreneurs are willing to admit that their early efforts invariably brought many failures. Mentally strong people are willing to fail again and again, if necessary, as long as the learning experience from every “failure” can bring them closer to their ultimate goals.

Similar to Number 6 above.  There is nothing wrong with failing again and again and learning from the failures (see, e.g. the "practice" of law), so long as there is a credible, visible path to recovery.  With the increasing non-dischargable cost, yet declining value of a JD, the initial "failure" is hard to shake off and the road to meaningful recovery is practically invisible. 

In the extreme cases, there is huge difference between failure that "sets you back" and failure that can end a career.  The former requires a willingness to forgo a European vacation one year or put off buying a new car; the latter requires E&O insurance and a big bankroll to get through the lean times.

12. Feel the World Owes Them Anything. Particularly in the current economy, executives and employees at every level are gaining the realization that the world does not owe them a salary, a benefits package and a comfortable life, regardless of their preparation and schooling. Mentally strong people enter the world prepared to work and succeed on their merits, at every stage of the game.

Another strawman, as applied to the scambloggers.  No one has ever said that recent graduates are "owed" or should be "guaranteed" a job.  No one has ever denied the value of "hard work."  It is precisely because the World owes you nothing, the fact that there are no guarantees, that the scambloggers say what they say.  In the interim, the shills float sugarplum dreams of successful law careers and how valuable the degree is over a lifetime, while ignoring the fact that computers get more and more sophisticated at predictive coding and States allow more and more "legal technicians" to do what used to be called "the practice of law," only now no bar license is required.  Oh, and JD overproduction, too.

Let's be grimly honest, here:  "merit" is good, but pedigree and connections are better.

13. Expect Immediate Results. Whether it’s a workout plan, a nutritional regimen, or starting a business, mentally strong people are “in it for the long haul”. They know better than to expect immediate results. They apply their energy and time in measured doses and they celebrate each milestone and increment of success on the way. They have “staying power.” And they understand that genuine changes take time. Do you have mental strength? Are there elements on this list you need more of? With thanks to Amy Morin, I would like to reinforce my own abilities further in each of these areas today. How about you?

Agreed, in principle.  However, the tremendous debt burden borne by graduates today (as compared to inflation-adjusted law school tuition from, say, the 70s), as well as the need to earn significant income on a percentage-basis to service said debt, greatly reduces the practical time horizon for a reasonable ROI for many.  It's not that JDs expect immediate results, so much as they can't afford to wait.  Those without significant backing are at a large disadvantage, and that is something that a positive, can-do outlook does not directly address.

In closing, let's hear it for being a "mentally strong person."  Not a thing wrong with that.  As concerns a legal career, however, let's temper this with an understanding that the all-too-simplistic and dubious criticisms of how kids these days need to "buck-up" and "get out there" are just that: overly-simplistic and quasi-truthful.  After all, the law school cartel is counting on you to buy-in without asking too many questions.

A positive, can-do outlook, while important, is also a dime-a-dozen.  What, do you honestly think that only you have a strong desire to succeed?  It is both insulting and the height of arrogance to say that "all those people" over there just don't want it bad enough, and only "I" have the gumption and smarts to do what it takes to make it.  Special Snowflake Syndrome, anyone?

Instead, go be a mentally strong person someplace else, where the market is more favorable and where you might be able to enjoy the fruits of your labor.  There are too many in the law already who are convinced that they are mentally stronger than the next guy, and the feeding frenzy is only getting worse.