Friday, November 27, 2015

Truth In Advertising

In the 1980s and 1990s, RJ Reynolds reaped massive profits with one of the most successful mascots in advertising history, Joe Camel. He was a suave camel shown in a variety of exotic and aspirational situations. People could even acquire "Camel Bucks" from cigarette packs to use to purchase Camel branded items. In 1991, an American Medical Association study showed that almost as many children identified Joe Camel as being associated with cigarettes as those who could identify Mickey Mouse as being associated with Disney. RJ Reynolds eventually agreed to halt the campaign amid public outcry that the anthropomorphic dromedary was encouraging young children to smoke.

During the 1980s and 1990s, public health officials the world over tried to figure out how to stem the popularity of cigarettes. In 1989, the New Zealand Department of Health’s Toxic Substances Board recommended plain packaging for tobacco products. This meant that tobacco products were to be sold solid color packs with a huge warning about the dangers of smoking displayed on the pack. As one can imagine, this proposal met with intense opposition from tobacco manufacturers and their lobbyists. A breakthrough was made when Australia passed the world's first plain packaging regulations in 2011. Researchers suggested that without the visual stimuli on the cigarette packs, cigarettes became less attractive. In an unexpected development, smokers also reported that cigarettes in plain packaging tasted worse. While there are no long term studies about the effects of plain packaging on smoking rates, the anecdotal data suggests that smoking rates are down.

Law school brochures sell a vision of rapturous success and opportunities to do work at the law's bleeding edge. The brochures lead the average student to believe that he or she will be assured of an upper middle class income while doing cutting edge legal work. Programs in esoteric fields like space law or hip-hop legal studies are trotted out in an attempt to show students that a legal education is a great way to break into almost any field. The possibilities are limitless for the law grad. These brochures massage employment numbers to the limit allowed by the ABA's recent  employment data disclosure rules. That $180,000 in tuition for 3 years? A drop in the bucket when students consider the riches awaiting them after that J.D. diploma is in hand.

In recent years, the law school industrial complex has seen some waning in its revenue generating power. Law schools were led kicking and screaming to disclose employment statistics that did not appear to have been created by the Iraqi Ministry of Information. Graduates saddled with no job prospects and six figure debt are scattered across our country, unable to live the American Dream while crushed by their decision to study law. What is the response of the deans, professors and administrators? They point to the fact that unemployed graduates are lazy or not smart enough to get a job. If grads network and work for peanuts, they will eventually be able to create comfortable lives working as solo attorneys. Others say that law schools teach students "how to think". This ability to think should open doors for these grads, if only they would look for "JD advantage jobs". Something needs to be done.

Law schools need to be treated like the cigarette industry. There is no rational incentive for law schools to act in the best interests of their students. Law schools that do not provide positive job outcomes are defrauding not only the students, but the taxpayers as well. The enrollment numbers are dwindling, but there is still an oversupply of lawyers relative to what the market will bear. We need to take a tip from the plain packaging movement and advocate for the inclusion of large warnings on all law school brochures and glossies. The messages should say something like:




This type of measure won't stop everyone who shouldn't go to law school from enrolling. There are special snowflakes out there blindly convinced of their future success no matter what evidence exists to the contrary. But, it should help students on the fence take pause and think twice. People can't be stopped from making bad decisions. But it is our duty to do all we can to make it as difficult as possible.

Tuesday, November 24, 2015

Did the 79 law school deans who challenged NCBE Chief Erica Moeser’s “less able” explanation for falling bar passage rates lower admission standards at their own schools?

Perhaps you remember the October, 2014 memo from 79 law school deans to Erica Moeser, Chief of the National Conference of Bar Examiners (NCBE). The memo was the opening salvo in an ongoing barrage of law school propaganda aimed at pressuring the NCBE to dumb down the bar exam in order to maintain passage rates for increasingly, uh, academically undistinguished law school graduating classes.
"We, the undersigned law school deans, respectfully request that the National Conference of Bar Examiners facilitate a thorough investigation of the administration and scoring of the July 2014 bar exam. .. . . In particular, the investigation should examine the integrity and fairness of the July 2014 exam. We also request that the NCBE provide the evidence it relied on in making the statement that the takers of the bar exam in July 2014 were less able than those in 2013." – Memo to NCBE, Chief Erica Moeser, signed by 79 law school Deans.
Brooklyn Law School Dean Nicholas Allard, ever the self-satirizing buffoon, not only signed on to the memo, but penned a separate open missive to Moeser, in which he went beyond an ostensible demand for evidence and investigation and outright rendered a verdict: "It’s not the students, it’s the test."
"Your unexpected defense of your test goes on to conclude that that the serious drop in scores was due to, in your view, the 2014 test takers being "less able" than the 2013 test takers. We don't know what evidence you have to support this surprising (and surprisingly disparaging) claim, but we do have evidence about our own 2014 graduates, and it tells our precisely the opposite: their credentials were every bit as good as our 2013 graduates, if not better. . . . In plain language, I disagree with you: It's not the students, it's the test."
I used Law School Transparency’s excellent online resources to check the 79 schools whose deans questioned Moeser’s statement that the takers of the bar exam in July 2014 were less able than those who took the test in 2013. How many of those 79 helmed schools that lowered admission standards at the vulnerable edge of the LSAT spectrum between 2010 and 2011 (the dates when the incoming classes would be expected to take the respective 2013 and 2014 bar exams)? And how many lowered standards between 2010 and 2014, the date of memo?
A.  The distribution of LSAT changes at the 25th percentile between 2010 and 2011 for the 79 law schools whose deans signed the memo to Moeser:
down by 1 pt.
down by 2 pts.

down by 3 pts.
UC-Hastings, Charleston, Colorado
down by 4 pts.
Case Western
B.  The distribution of LSAT changes at the 25th percentile between 2010 and 2014 for the 79 law schools whose deans signed the memo to Moeser:
down by 1 pt.
down by 2 pts.
down by 3 pts.
down by 4 pts.
down by 5 pts.
down by 6 pts.
American, Capital, Faulkner, LaVerne, Valparasio
down by 7 pts.
McGeorge, Vermont, Southern Ill., Whittier
down by 8 pts.
Ave Marie, Charleston, Thomas Jefferson, Cooley
down by 9 pts.
Brooklyn, Hofstra

As for Brooklyn Law, its 25th percentile score and median LSAT declined between 2010 and 2011. So did its 25th percentile and median GPA. Thus, Allard’s claim that he had "evidence"-- the nature of which he did not disclose-- to establish that the credentials of BLS’s 2014 graduates "were every bit as good as our 2013 graduates, if not better" may have crossed that thin line that separates self-serving bullshit from filthy lie.
Why did 79 law deans sign on to the memo? They knew, and they surely knew that Moeser knew, that admission standards have been declining sharply at most law schools. Maybe they were just trying to sow as much confusion and dismay as they could in order to place Moeser temporarily on the defensive. Kind of like a pickpocket, caught in the act, who cries, "Stop, Thief!" Or maybe they are such brazen smear artists that they believe they can scapegoat Moeser and the NCBE by promoting a fight-the-power narrative of promising young legal fledglings oppressed by autocratic testmasters. Or maybe they believe their own nonsense about how the JD program imparts immense legal knowledge plus exceptional thinking and reasoning abilities, and so a high bar failure rate is as incomprehensible to them as if a large number of medical doctors flunked a test of basic anatomy.
We have entered the era of Law School Scam 2.0. Some of the original concerns that animated the scamblog movement have been addressed, however inadequately. Class sizes are down, there is transparency as to short-term employment outcomes and exploding scholarships, and an applicant with a good  academic record who comparison shops can probably get a hefty discount on tuition at a non-elite school. What has changed is that law schools are now recruiting, even enticing, students with mediocre to horrible academic credentials. Bar failure is only the most visible aspect of the harm. These are kids who will find it especially difficult to carve out a place in our swamped profession, who will be ineffectiveness/ malpractice hazards if they do, and who are less likely than their more accomplished classmates to have some alternative skill set to fall back upon when their legal careers crash and burn. Thus, the scam continues, with the burden shifting to the least sophisticated and least resilient among the law students, in ironic mockery of the "sophisticated consumer" rationale that courts used to shoot down the class action fraud lawsuits against law schools.

Friday, November 13, 2015

Seattle Law Prof. Paula Lustbader promotes civility training in Tuscany

I am a proponent of civility within the legal profession. We lawyers are members of a demanding profession, where clients and the public place their trust in our knowledge and judgment in order to protect their rights or obtain a measure of what they consider justice. There is honor in doing this well, and that applies to opposing counsel as well as oneself. At any rate, that which lawyers call "incivility" and which the rest of humanity calls "being an asshole," is usually counterproductive– if not immediately, then over time. 
I do not believe, however, that civility requires me to temper my opinion that the majority of lawprofs and law school deans are scammers and parasites, betraying their moral responsibilities to the profession by producing reams of worthless scholarship, by dramatically lowering admissions standards, and worst of all, by deceiving their students as to the opportunities that a law degree provides and exploiting the naivete of those students by getting rich off their loans.
But perhaps my understanding of civility is flawed, in a way that can only be remedied by going to a medieval Tuscan village and taking an eight day long civility cure. Fortunately, Seattle Law Prof. Paula Lustbader runs a nonprofit called the "Robert’s Fund," which stages continuing legal education instruction in civility in Sovana, Italy, in partnership with Seattle University School of Law. (Indeed, according to its Form 990, the Robert’s Fund is located in the Seattle University School of Law).
So far as I can tell from her 14-page CV, Prof. Lustbader has never held a job as a practicing lawyer. She joined the faculty of Seattle Law, then called Puget Sound, in 1987, the year before she graduated from its law school, and has been there ever since. As well, the titles of some of Lustbader's scholarly articles and presentations sound dubious to the uncivil ear. See e.g. You Are Not in Kansas Anymore: Orientation Programs Can Help Students Fly Over the Rainbow, 47 Washburn L. J. 327, 366 (2008) ("As we forge ahead to enrich their experience through improving orientation, we must remember that there is one main truth in Oz: Almost anything is possible, but you must BELIEVE and click your heels three times"). See also "Can the Professor Come Out to Play?" Society of American Law Teachers, Conference, Hawaii. (Co-presenter) (December, 2010).

Dubious too, perhaps, is  Lustbader's role in co-founding and directing Seattle Law’s Access Admissions program, through which the law school admits students "whose capabilities may not be accurately reflected in GPAs and LSAT scores."  Perhaps their legal capabilities are better expressed by their mastery of the triple heel click.

The Robert’s Fund has held its CLE program in Sovana several times since 2011, with the next such program ("The Civility Promise in Tuscany") scheduled for April, 2017. The cost is $3,650 (standard room) to $3,950 (deluxe room at four-star hotel) for early bird registrants, and $1,650 to $1,850 for one’s room-sharing spouse or significant other. The six-member faculty includes Lustbader, two Italian judges (one retired), and one, uh, artist in residence. The Robert’s Fund’s listed "staff and consultants" include four Seattle U. lawprofs (one emeritus), one University of Washington lawprof, and one Hamline lawprof.
"Revitalize your commitment to the profession you love. . . This popular seminar convenes in Sovana, a charming medieval village surrounded by verdant vineyards and lush olive groves. In this peaceful setting, participants immerse themselves in a continuing education program that integrates lectures, discussions, and interactive exercises that focus on fostering civility in the legal profession. The seminar is complemented by guided excursions through the nearby villages and beautiful countryside.. . . Enrich your personal and professional life. Relax and reconnect with yourself... Develop and deepen relationships... Engage in thought-provoking dialogue… All this while earning 30 CLE/CJE credits (including 8 ethics credits)."
The Robert’s Fund website includes nine brief video testimonials from past participants of the Tuscany civility program (one of whom (Craig Sims) is now a member of the faculty of the program). They make for entertaining viewing. All are predictably enthusiastic, but several express themselves so inarticulately about the nature and benefits of the program that it made me wonder whether too much international civility enrichment can have deleterious effects on one’s brain.
Is this how the well-heeled fulfil the entirety of their CLE (Continuing Legal Education) requirement in Washington State? By taking a guided vacation to Italy--with talks and workshops on "Civility Tai Chi" and "Exploring Creative Lawyering through Art" sandwiched between wine and olive oil tastings, Etruscan banquets, and excursions to Il Giardino dei Tarocchi and Pitigliano? Is the cost of the program tax-deductible? Does the public know that this is how members of the bar purport to maintain the knowledge and skills necessary to fulfill their professional responsibilities, which is the supposed purpose of mandatory CLE?
And what about Seattle Law School, the entity that cosponsors this getaway? Do its students still receive top-notch civility training from the civility master on their faculty, even though they may not be able to afford the trip to Italy? Seattle Law grads have shockingly bad employment outcomes--the school's nine-month-out non-funded bar-required full-time job placement rate has ranged between 37.8% and 44.8% over the last four years. So it is nice to think that at least its grads have enhanced nonlaw employment prospects due to their genteel good manners.
Perhaps, though, the temptation to be skeptical or snarky about the Tuscany civility program or about law professors who have never practiced law is the very thing that establishes my need for state of the art civility training. Does the Robert’s Fund or the Washington bar offer overseas civility scholarships for the civility impaired? Are there employers that actually foot the bill for this thing? How nice it would be to hop aboard this gravy train, or shall I say, olive oil train.

Saturday, November 7, 2015

"Hip Hop and the Law": Dougie Fresh's magnum opus

Yes, it enrolled only 15 new students this year. Yes, it had to eliminate tuition just to achieve that feat. Yes, it has failed to earn accreditation. But don't count Indiana Tech out. With yet another literary masterpiece, it has secured northeastern Indiana's place on the intellectual map.

The celebrated AndrĂ© Douglas Pond "Dougie Fresh" Cummings and two other intellectual colossi of legal hackademia have co-edited Hip Hop and the Law, a compendium of the finest scholarshit in a field crucially important to bench and bar. Allow me to reproduce its promotional blurb:

"What is important to understanding American law? What is important to understanding hip hop? Wide swaths of renowned academics, practitioners, commentators, and performance artists have answered these two questions independently. And although understanding both depends upon the same intellectual enterprise, textual analysis of narrative storytelling, somehow their intersection has escaped critical reflection. Hip Hop and the Law merges the two cultural giants of law and rap music and demonstrates their relationship at the convergence of Legal Consciousness, Politics, Hip Hop Studies, and American Law. No matter what your role or level of experience with law or hip hop, this book is a sound resource for learning, discussing, and teaching the nuances of their relationship. Topics include Critical Race Theory, Crime and Justice, Mass Incarceration, Gender, and American Law: including Corporate Law, Intellectual Property, Constitutional Law, and Real Property Law."

Adam Lamparello—noted for his, er, personal revelations—recently hosted a reception for this world-historic publication. I am woefully sorry that I did not find out in time to attend. When shall I ever have another opportunity to get my very own copy of Hip Hop and the Law inscribed by Dougie Fresh, entirely in lower-case letters?

Practitioners, professors, and students should rush to and grab one (or more!) of the 19 available copies for the trifling price of $53, with free shipping. Learn how to apply the intersectionality of law and hip-hop to everything from Critical Race Theory™ to litigation over real property. Launch a new career in the dynamic field of Hip Hop Studies. Break new scholarly ground through critical reflection on this tragically neglected subject  You need this book.

Tuesday, November 3, 2015

Law Deans warn that capping student loans threatens the "rule of law" and the "individuals and institutions in our society."

"Since 2010, first-year enrollment has dropped from 52,500 to 37,900, a level last scene in 1973- much smaller and the rule of law will begin to fray. Our country needs lawyers, prosecutors, defenders, and judges, not only lawyers in big cities and big law firms. Capping graduate federal loans. . . would fall hardest on students from modest circumstances who will not be able to attend law school."letter to the editor of the New York Times, signed by Law Deans Blake Morant, Kellye Testy, and Association of American Law Schools Executive Director Judith Areen.

"Talented students are drawn to the legal profession because lawyers play a vital role serving individuals and institutions in our society. . .[C]utting federal loans will only narrow the pool of people who can pursue a legal career and decrease the availability of lawyers to serve this need."letter to the editor of the New York Times by Law Dean Matthew Diller.


I fear a collapse into anarchy– the bad W.B. Yeats kind, not the good Noam Chomsky kind. Social collapse begins when the rule of law starts to fray, like a once-beautiful tapestry that has been damaged, or like the nerves of a put-upon law professor forced to explain for the umpteenth time how his or her scholarshit is a bargain at any price, even if that price is paid by debt-ridden law grads. And when even a normally beigist establishment newspaper like the New York Times boldly endorses the viewpoint of law-hating scamblog insurrectionists, you know that society is in peril.

The logic is cruel and irrefutable. If you tamper with the availability and amount of federal student loans then fewer people will be able or willing to attend law school. If fewer people attend law school, then there will obviously be fewer lawyers. Ours is a society of laws, so if the lawyer supply is disrupted, we will eventually lose the rule of law.

What follows are a few facts about the letter writers quoted above, and about the institutions they lead or led, which may be marginally relevant to assessing their interest, bias, and character.  Might there be some reason, other than the obvious imperative to preserve society and the rule of law, why they want an unobstructed flow of money from taxpaying public into law school coffers via the ever-reliable conduit of gullible young persons’ ruined lives?

Kellye Testy, Dean of the University of Washington School of Law, was paid $375,012 in 2014. This was the 45th highest salary for a State of Washington employee. (Eight football coaches and three basketball coaches were paid more, proving that law school is far from the only scam out there). In an interview conducted in 2012, Testy rejected as "paternalistic" the suggestion that class size be reduced, though the school ultimately did decrease its class size very slightly (From 176 1Ls in 2012 to 163 in 2014). Testy is a strong proponent of Washington State’s limited license legal technician program,  under which nonlawyers can engage in the "limited practice of law"– as long as they take 45 credit hours of paralegal instruction, plus additional coursework related to the particular area of law for which licensure is sought, from an ABA-accredited law school. Speaking of limited practice, Testy graduated from law school in 1991 and became a Professor of Law in 1992, with only a one-year long Seventh Circuit clerkship sandwiched between her law school graduation and her law school professorship.

Blake Morant was recently appointed Dean of George Washington Law School. In Fiscal 2012, Morant’s predecessor, Paul Schiff Berman, collected $519,280 in "reportable compensation" from GW and an additional $54,876 in "other compensation from the organization and related organizations." Thus, Morant's GW salary is probably higher than his $443,856 annual take as Dean of Wake Forest Law. Morant serves as President of the Association of American Law Schools. In his 2015 Presidential address, he  declared that "[T]he need for quality legal education has never been more acute. The competitive global market requires professionals who can think critically and provide innovative solutions to complex problems." George Washington has the 7th highest percentage of ten-month-out "school-funded" jobs among the law schools (13.4%), suggesting that there are at least a few GW law grads having difficulty peddling their critical thinking wares in the global marketplace. The average law school debt of a GW Class of 2014 law grad was $141,246.

Matthew Diller was recently appointed Dean of Fordham Law (2015), having spent the preceding six years as Dean of Cardozo Law (2009-2015). The average law school debt of the members of the class of 2014 at Fordham and Cardozo was $140,577 and $121,644 respectively. Between 2010 and 2014, Cardozo’s  LSAT for incoming students fell by five points at the 25th percentile and four points at the median, so at least Diller is sincere in his opposition to policies that would "narrow the pool of people who can pursue a legal career." Diller boasted to the New York Times that "Schools, including Fordham Law. . . have expanded scholarship aid," but there still may be room for improvement. Fordham ranked in the bottom half of law schools in terms of median tuition discount ($12,500) and percentage of students receiving discounts (49.1%). Diller’s predecessor as Fordham Law Dean, Michael M. Martin, was paid $543,108 in Fiscal 2013.

Judith Areen was a law school faculty member at Georgetown for 43 years, including 16 years as Dean or as interim dean (1989-2004, 2010). Georgetown Law has the worst non-funded law job placement record among the elite T14, which may be related somehow to its enrolling the largest entering class of any law school in the country. In 2015, Areen became executive director of the Association of American Law Schools (AALS), which "represents the deans and professors of 179 law schools" and which emphasizes the importance of legal scholarship within law schools. According to its most recent available 990, the AALS sits upon about 11 million dollars in net assets. It seems to derive most of its five million dollar annual revenue from law school faculty recruitment services. The AALS is known for hosting a huge annual five-day-long two million dollar "conference" that draws over 3,000 party-loving lawprofs from all over the country.Areen's predecessor as AALS executive director, Susan Westerberg Prager (who has since become Dean of bottom-tier Southwestern Law School), was paid $459,221 by AALS in Fiscal 2013.

In 2012, Areen stated that, "It’s law graduates who don’t practice law who are often most complimentary about their legal education and the analytic skills they received."  At least she did not say that the rule of law depends on having an ample supply of nonpracticing lawyers.