Monday, October 31, 2016

BREAKING NEWS: Indiana Tech School of Law to Close

From the News-Sentinel:

Indiana Tech Arthur Snyder said the university has lost $20 million on the law school and, given projected enrollments, expected the deficit to continue. “This was an extremely difficult decision for all involved," Snyder said. "Over the course of time it has become apparent that the significant decline in law school applicants nationwide represents a long term shift in the legal education field, not a short-term one. Specific to Indiana Tech, the assessment of the Board and our senior leadership team is that for the foreseeable future the law school will not be able to attract students in sufficient numbers for the school to remain viable.”
Indiana Tech Law School currently has a total of 71 students, and Snyder said they will have the option to complete the year, with those in their third and final year having the ability to graduate from the law school in May. First and second year students will have the option to transfer to other law schools at the start of the January 2017 semester, or to complete the year at Indiana Tech Law School and then transfer for the start of the fall 2017 semester.
Chris Mackaronis, a Washington, D.C., attorney representing one of the faculty members affected, said the university’s Board of Directors had recently voted unanimously to close the school at the end of the academic year in June 2017. The vote, he said, conflicts with years of representations to the students, faculty and the American Bar Association regarding the university’s commitment to pursue full accreditation and long-term success for the law school.

Thursday, October 27, 2016

Preliminary ABA Employment Survey Audit Results: Half of the Law Schools Selected for a Random Audit Presented An Excessive Number of Deficient Files and Two Schools Tried to Deceive the Auditors

This year, the ABA finally began auditing some of the data in the annual law school ten-months-after-graduation employment surveys. Law schools have been required to conduct these surveys since 2012, following revelations that they had been routinely and brazenly misrepresenting their graduates' employment and salary outcomes in promotional materials and to US News. The ABA audits are obviously a welcome development, though it is remarkable that auditing has only been initiated this year, the fourth year of the mandatory survey. At least the audits have been conducted by an independent firm, the Berkeley Research Group (BRG).  

Of the ten law schools that were randomly selected annually for an audit (i.e. a "Random School Review"), five presented the auditors with deficient employment files in sufficient number to violate the requirements set forth by the ABA, and four of these five schools were significantly or flagrantly noncompliant. Moreover, of these four schools, one school apparently tried to create supporting documentation after it had been selected for an audit. So did one other school that was not selected for a full-blown audit, but only asked to submit a couple of files pursuant to "Random Graduate Review." (See Section B)

A.  The ABA Protocol for Reviewing Employment Data

This section summarizes the key features of the ABA's 11-page "Protocol for Reviewing Law Graduate Employment Data, and Statement of Procedures for Collecting, Maintaining, and Reporting Law Graduate Employment Data." (hereafter: "protocol"). If too boring to read in its entirely, just note points 2 and 4.

1.  Schools act at their own risk when reporting data that have not been adequately confirmed or when supporting documentation is lost or not maintained.  

2.  A law school employment data audit has three levels, of which only the first level is mandatory. At Level 1, "Documentation included in the Files will be presumed to be complete, accurate, and not misleading in the absence of credible evidence to the contrary." 

3.  Only at Level 2 and Level 3 is there verification or independent confirmation of submitted data. A Level 2 audit consists of verification of employment outcome data for 20% of the class.  At Level 3, a law school must hire an independent firm to review and confirm all of the school’s reported employment data.

4.  An audit may proceed to Level 2 if "more than 5%" of the files are found to be incomplete, inaccurate, or misleading.

5. Not every ten-month-out JD fills out the written placement survey. Law schools are permitted to obtain employment data from these grads by calling them up and asking them (i.e. "indirectly completed employment surveys"). Failing that, they are allowed to guess the employment status of non-responsive grads from comments related to employment status that the grad posted on social networking sites or elsewhere (i.e. "employment information from sources other than the graduate").  

6. Information gleaned from "telephone or other oral communications," must be committed to writing as soon as it is obtained and before the reporting deadline. Documentation of oral communications must include the date of the communication and the parties involved in the communication. (Obviously, in appropriate recognition of the potential for fraud as to alleged data obtained in this manner). 

7.  As noted, ten law schools are randomly selected each year for an audit of their employment result data. Other schools may be subject to an audit if they are red-flagged for credible reports of significant inconsistencies or inaccuracies in their data reporting. Schools that are not selected for a full-blown audit may be asked to provide a very small number of randomly selected files for "Random Graduate Review." If any of the files submitted by a law school pursuant to Random Graduate Review is deficient, the law school is subject to an audit-- starting at Level 1, and if warranted, proceeding to Level 2 and Level 3, as described above. 

B.  ABA Memo: The Preliminary Findings from the Initial Stage of Employment Data Auditing and Review. 

On August 5, 2016, Bill Adams, Deputy Managing Director of the ABA Council of the Section of Legal Education and Admissions to the Bar (and former Dean of bottom-of-the-barrel for-profit Western State College of Law) sent the Council a memo entitled "Employment Data Review Update," which contained preliminary findings from BRG's initial review of law school employment data. According to Adams's memo:

  • "Five of the 10 schools randomly selected had compliance rates of 95% or above. Another school is at 94.8% and two are at approximately 86%. The remaining two schools had file compliance rates in the mid-50’s. BRG is conducting follow-up discussions with the schools that had more than 5% of their files to determine whether some of the files that appear to be deficient are actually deficient. One of these schools also appears to have created its supporting documentation after it was notified that it had been selected for a file review. After this further review of the schools with a compliance rate below 95%, the review committee will determine which of these schools may warrant a Level 2 Review.""
  • "For the Random Graduate Review, 382 files were selected from 156 schools. Of the 156 schools that had files randomly selected, 16 appeared to have a potential problem with missing items or supporting documentation for an item. Of these 16, 8 had minor issues regarding documentation of an item and probably will not warrant further review. . . .The remaining 8 may have issues requiring heightened review, but BRG is engaged in discussions with the schools to seek clarification about documentation or ambiguities in the file.  In regard to one of these [other] 8 schools, it appears to have created its documentation for its files after it was notified that its files would be audited."

C.     Analysis

In the one-paragraph long summary section of his memo, Adams puts an unwarranted happy spin on the preliminary results.  He states that "[t]he good news is that the overwhelming majority of schools subjected to the data review have both accurately reported employment results and provided credible documentary support of what they have reported" and he goes on to commiserate with the law schools over the "complex" documentation requirements imposed upon them.

Adams's attitude is especially troublesome in that he is one of a three-member committee that will determine which of the schools with discrepancies will get elevated levels of review.  (In fairness to Adams, he at least recognizes that "the two schools that appear to have created their documentation after the fact raise more serious problems").

Adams's "overwhelming majority" comment is obviously inaccurate as to the 10 randomly audited schools. As to these schools, only five out of 10, a decided non-majority, achieved compliance rates of 95% or above, as the protocol requires. I would not be a stickler about the school that provided 94.8% file compliance, but four schools fell drastically short of the 95% requirement.

Though enjoying a generous presumption that its files are not incomplete, inaccurate, or misleading, two of the ten schools selected for a random audit nonetheless provided incomplete, inaccurate, or misleading documentation as to 14% of their files, or nearly triple what the protocol allows. Two other schools provided incomplete, inaccurate, or misleading documentation as to almost half of their employment files, or almost ten times what the protocol allows.  

Suppose that these results are representative of all 205 accredited law schools. That would mean that 82 law schools (40%) would be unable to provide the requisite percentage of non-deficient files and that 41 of these 82 (20%) are sitting on so many incomplete, inaccurate, or misleading files that their reported employment data must border on fiction. These are shocking results. The ABA's protocol for reviewing law graduate employment data should be immediately amended to require a random audit of far more than 10 schools per year, and to require verification of reported data at the initial review stage.

Otherwise, we will be left to wonder whether a school's employment survey results are really just lies in highly granular form, a whole bunch of numbers that represent not actual jobs for recent grads so much as a school's success in hoodwinking the ABA and its prospective students.  

Monday, October 17, 2016

Wendi Adelson's criminally lousy novel, "This is Our Story"

A former Florida State law professor named Wendi Adelson is in the public spotlight because members of her family have been implicated (though so far uncharged) in hiring a pair of hitmen to kill her ex-husband, a fellow Florida State law professor and prominent legal blogger named Daniel Markel.   

According to her CV, Adelson obtained her first academic job in 2006, the same year she graduated from law school, as a Staff Attorney/Clinical Fellow at the University of Miami Center for Ethics and Public Service. In 2007, she moved on to the position of Program Director of Florida State Law's Center for the Advancement of Human Rights, and became a Directing Clinical Professor in 2010. 

How did Adelson nab faculty posts fresh out of law school, leading to a Florida State law professorship only a few years later? It probably did not hurt that she graduated cum laude from the University of Miami, indisputably a praiseworthy accomplishment. It also probably did not hurt that in 2005, while still a law student, she married Markel, a Florida State lawprof. (This blog has covered the blight of spousal hiring in legal academia).

A few months ago, Above the Law published recordings of Adelson’s presentations to a writer’s workshop, held some time after Markel’s murder. Adelson complained, inter alia, that her “late ex-spouse” (a phrase Adelson creatively punned as her “latex spouse”) did not care for fiction  and did not read her book. (Podcast, 9:42-9:47, 10:28-10:33) I found this plaint to be unfair because, whatever his private misgivings, Markel extensively promoted Adelson’s debut novel, “This is Our Story” on his popular academic blog “Prawfsblawg.” (The novel was published in 2011, about a year before Adelson walked out on Markel, with infant children, bank accounts, furniture, and Markel family heirlooms in tow).

In spite of the intense publicity generated by the lurid murder mystery starring herself, I do not believe anyone has yet explored Adelson’s novel as a possible window into the self-perception of its enigmatic author.

Even at the risk of death by Prius-driving hitman, I am compelled to endorse the latex Markel’s decision not to read his wife's novel. This is Our Story is inartful, shallow, clich├ęd, oddly bland given its human trafficking theme, and terribly self-important. Interestingly though, Adelson states that her book purports to tell, in substantial part, her own story. In an afterword to her novel, Adelson states that “I, selfishly, wanted you to know a bit about my story, which has much – but not all – in common with Attorney Lily” (i.e. the main character in the novel). Adelson, Wendi (2011-09-12). This is Our Story (Kindle Locations 3948-3949). Kindle Edition.

This is Our Story consists of three first-person narratives, that of the aforementioned young female lawyer Lily Stone nee Walker, and those of two of Lily’s clients, Rosa Hernandez from Jujuy, Argentina, and Mila Gulej from Bratislava, both lured to the U.S. under fraudulent work or work-study programs, and then subjected to forced labor as well as to physical and sexual abuse. Mila and Rosa are “composite characters” embodying “many of the stories” of Adelson’s clients. (Kindle Location 3945)

There are 46 chapters in the book, each of which is entitled “Mila,” “Lily,” or “Rosa”. The structure of Adelson’s novel consists of a chapter entitled “Lily” and narrated by Lily, followed by a chapter entitled “Mila” and narrated by Mila, followed by a chapter entitled “Rosa” and consisting of entries from Rosa’s diary. The chapters follow in strict Mila-Lily-Rosa order, with the single unaccountable exception of a Lily-Mila-Lily sequence at Chapters 30-32.

In the novel, Lily, a lawyer in her early thirties, gives up a thriving corporate practice in DC to follow her seemingly bright and sweet, if exasperatingly blunder-prone, new husband Josh Stone to “this Godforsaken place”—namely, “North Florida State University” in “Hiawassee Springs,” where Josh holds a professorship. Unfortunately, Josh installs Lily in what he describes as an “adorable, cozy” country house that he has just rented without realizing that the place is infested with cockroaches. Lily overcomes her disgust at her new digs and the boredom of small town life by hooking up with a nonprofit and becoming a pro bono immigration attorney specializing in helping trafficked women, the only one in a 300-mile radius.

You would think that the tales of Mila and Rosa would be emotionally harrowing. However, the Lily chapters are written with a bite that is lacking in the Rosa and Mila chapters, even though the narrative of a neophyte immigration lawyer adjusting unhappily to married life would seem less naturally compelling than those of two young women seeking to escape from an intercontinental sex slave ring. Mila comes off as vain and disconnected, while Rosa is devout, innocent, and sweet to the point of mental deficiency. Both are endlessly gullible and stupid, thus easy prey for the novel's collection of exploitative villains.

The Lily chapters are notable for the character’s increasing contempt for her husband. Lily criticizes Josh for his short stature (“He is my same height, which is something I had never considered pre-Joshua, because I had already determined that my dating window extended only from 6 foot two to 6 foot 4”), his pouting, his habit of calling her “Lilybillygoat” under the misimpression that it is endearing, his insincerity in asking what she wants him to make for dinner when he had already begun preparing spaghetti and pasta sauce (“I think dinner’s going to be really good, sweetie. . . Josh looked really proud of himself, like he just climbed an icy mountain in winter time instead of preparing a simple meal like I do for him every single night”), and his stupid career advice, often delivered in the infuriatingly triumphant tone of someone who “had just invented a solution to global warming.” But Lily especially resents her husband’s constant pressure for children, which Lily herself finds perplexing in that she wants children too.

I think Donald Trump would enjoy this novel, a rarity for a text written by an academic do-gooder who supports migrant rights and bristles at the term “illegals.” The numerous villains of the novel are pretty much all Latino males, and all are such sleazy, swaggering, sadistic, treacherous, violent and gangsterish pimps and molesters that one would think they came from the imaginings of a paranoid nativist. 

For instance, one macho baddie, “Carlos,” snarls at Mila, and I quote, “Chico tellz me you are prosteetutes, jes?. . .  Well, you still owe Chico a lot of money, Mila. You and your friend here can work off your debt togeder. You weel start tonight. And don’t eben theenk ov trying to get away, seelly Mila. Ju know I weel find you whereber you go.” [sic] (Kindle Locations 2355-2357)

Doesn’t that mocking pidgin caricature of Spanish-inflected English sound a bit racist?  Oh, don’t be seelly, for our heroine purports to share the same cultural identity. In Chapter 32, the pale-faced protagonist decides, for no apparent reason, to reconnect with her Spanish ancestry on her maternal grandmother’s side, even though she had “never really identified as being part-Latina, given my translucent skin, reddish hair, and the fact that no one ever guessed that I was Hispanic.” (Kindle Locations 2850-2851) Lily joins a spirited local female Hispanic encounter group to “discuss our common Latina heritage” and is enthusiastically accepted by the old ladies in the group as family, I mean as familia.  

Mila and Rosa are eventually rescued by Lily and the John Wayne-esque local sheriff she teams up with (an inarticulate but courageous aw-shucks-ma'am white savior dude who comes complete with leathery sun-toughened skin, big cowboy hat, and service in ‘Nam). Lily utilizes her legal skills, resourcefulness, and deep humanity to counsel the women, obtain shelter and asylum on their behalf, and reunite Rosa with her family. In turn, Mila, Rosa, and Lily’s other clients treat their “Attorney Lily” with worshipful awe, showering her with humble yet heartfelt gifts, such as homemade enchiladas and a teddy bear with angel wings and painted green eyes "to look like me."

In the final chapter of the novel, Lily adopts a baby that Mila conceives post-rescue and then abandons. (Even after all that Mila has been through, she still wants to pursue her dreams of Hollywood stardom).  Lily only informs her husband of the adoption after the fact. Though, as noted, Josh badly wanted children, Lily informs him that she adopted the kid in her maiden name and did not want him in her or her child's lives.
As I peered through the smudged glass on the door I could see that Josh had already arrived, shaggy hair and slim shoulders slumped over his book. “Same old Josh,” I thought to myself, surprised and saddened that I didn’t feel much of anything when I looked at him. 
* * *  
“So, she’s yours now, officially?” he asked.   
“Yes, name changed and all.”   
“Anna Stone?   
“No, Josh. Anna Walker, like her mom.” 
I said the last sentence slowly, and with as much kindness as I could muster. Josh and I had separated, but we hadn’t talked about anything official yet, like name changes or divorce. “Josh, I am going to change my last name back to Walker, once we’ve finalized…” 
“So, that’s it, Lily? It’s over, and I don’t even get a say?” He looked equal parts sad and combative. I tried to be gentle. . . 
I reached across the table to take his hands in mine, but he pulled them away and folded his arms defiantly instead. I took a breath and tried again, “Josh, my life is going in a different direction now, and Anna and me, well, we have to forge our own path. I hope, with time...” 
“You hope what, Lily?” Josh had venom in his voice and tears in his eyes, “You hope we can still be friends? Please don’t even…” Josh grabbed his hooded grey sweatshirt from the back of his chair and fled the diner, wiping his eyes with his forearm on his way out. 
(Kindle Locations, 3904-3932)  

My interpretation of the breakup scene is that author Wendi Adelson was signaling through her fiction that she not only wanted to divorce Markel, but that she also wanted him out of the lives of her kids. The naming question in the novel foreshadows Adelson's real life behavior, post murder, in changing her children's surnames from Markel to Adelson and removing the middle name of one son because it referenced Markel's deceased grandmother.

I think it is also likely that Adelson wrote the novel in order to promote herself as the public face of the morally unimpeachable cause of female antislavery, notwithstanding her lack of literary talent, her relatively meager academic credentials, and her relative inexperience as a practicing lawyer. This is Our Story was chosen as featured reading for the thousands of incoming freshmen at Florida State, and was also enthusiastically profiled in the Florida Bar News

In this vein, Adelson stated, in her interview with the Florida Bar News and in the novel itself, that her purpose in writing the novel was to encourage kids to go to law school and become public interest attorneys like herself. In the author’s afterword, Adelson declares her hope that “if you are one of those lucky people who has the luxury to spend many years focused on higher education, you will think about law school, and you will consider spending your life as an advocate for those whose voices have been taken from them. I wouldn’t be half the attorney, or person, that I am today without having met people like “Rosa” and “Mila,” and so many of my other clients, whose stories I can’t share with you.” (Kindle Locations, 3949-3952)  

The obvious drawback to Adelson's career advice is the stiff competition for entry-level public interest law jobs, sometimes from persons with structural or insider advantages, such as coming from a wealthy family or being married to a law professor. Aside from which, I do not think that even the most zealous law school recruitment tout would be inclined to recommend law school in order to follow the life path of Wendi Adelson.

In the novel, Lily’s heroic work is obstructed by a clueless and condescending husband whom she has outgrown. Hubby Josh whines and snivels, but ultimately accepts his marching orders. However, discarding Josh’s real-life model seems to have been a messier proposition. 

Thursday, October 6, 2016

The Toxic Jobs Factor

Often we discuss full-time jobs requiring bar passage in two dimensions: whether they exist and how much they pay. More granular sources may try to obliquely describe quality by looking at the type of job setting (i.e., government, large firm, small firm) or maybe subject area (corporate v. ID, for example).  But mostly, we and the law school sycophants alike have kept the numbers portion elementary, which is good from a simplicity standpoint, although simplicity can aid and abet fraud by ignoring crucial nuance. But for most schools, the basic employment and salary numbers are bad enough as it is to warrant caution.

But here's a research question for the entrepreneurial law profs snooping around the page:  what percentage of full-time jobs requiring bar passage, even when they exist, are toxic?

Definitions vary - this isn't a category used by the BLS, although it probably should be.

By toxic job, I don't mean one with low pay, per se, or where you work 50-60 hours a week or even where there's an asshole partner or two.  What might be toxic in the advertising industry already might be ho-hum routine in law.  By toxic, I mean roughly the following:
  1. Frequent turnover, like the average associate tenure of less than two years, with many departing after a few months;
  2. Culture of unethical or immoral conduct;
  3. Incredibly poor organization with respect to files, billing, and scheduling;
  4. Objectively abusive superiors (or clients, for that matter) who often have legitimate personality disorders or substance abuse problems;
  5. The salary is so low and/or the overtime is so high that the practical hourly wage is under a level that makes the investment of law school worthwhile, say $15-20/hr.
  6. Instability to the point where one's job could constantly vanish in the next month.
You know, shit that makes colleagues say "you need to get out of there." The prime example would be the small law practitioner(s) whose competence, ethical compass, and emotional well-being are shaky, but they have enough business to need additional help, or enough fluke past success to have a book of business or a war chest.  But it is by no means limited to those scenarios.  Large law firms can develop a toxic culture despite the classy environs, and for mill-style law firms, toxic might be the default setting.  Firms once well-run like a vintage Cadillac can quickly become a sputtering jalopy, particularly in a field where investors are virtually limited to skilled practitioners who give a shit.  Even government can become toxic in the age of budget cuts and convoluted rationalizations about case-load size.

It's not quantifiable, but it's arguably more important than a salary number.  If you start at a toxic job, you will almost certainly be looking to lateral within two to three years (if not months).  And aside from certain tells, it's not like toxic jobs always advertise themselves as such; Lord knows the career services office isn't going to red flag them.

I suspect a large portion of lawyer unhappiness comes from the fact that a relatively high percentage of law jobs are toxic in ways that would make most non-lawyer business and government employees recoil with horror.  Of course, there are also few industries where the overwhelming majority of workers have to run their own shop eventually one way or another, or where financial success can be so perversely disconnected from genuine skills of production.

A lot of older lawyers may brush off toxicness as some sort whiny millennial-inspired complaint about standard-issue work conditions, particularly when it comes to wet-behind-the-ears lawyers "cutting their teeth," which seems to be a perpetually en vogue justification for pissing on the Golden Rule.  But it's a serious issue that should not be easily dismissed.  Toxic labor conditions distort the labor market by creating a lot of entry-or low-level positions that simply re-open every two years with no prospect for advancement, which is generally an assumption for "good" jobs - at least for 0Ls.

Crucially, clients (and opposing counsel and judges) benefit from having healthy, ethical, experienced lawyers. Very few clients are truly served by retaining a toxic law firm, whether they realize it or not; after all, if a principal lawyer is willing to exploit the labor force, what's to stop him or her from cutting corners with clients?

When prospective students look at employment statistics, it's hard to imagine them assuming that their first job may only last a year or two before getting thrown back in the chasm. 

It would be nice if there was some way to quantify and express that concept in a simple table.  Unfortunately, I fear optimism bias isn't limited to assuming that everyone winds up on the right side of the curve, and those with the resources to perhaps work on correcting the information distortion seem to oddly have priorities that don't involve negatively categorizing potential organizational donors at the expense of truth, fairness, or transparency.