Monday, January 22, 2018

University of Kentucky Law Professor and filmmaker extraordinaire Brian L. Frye asserts that legal scholarship does not contribute to the cost of legal education

It is a relief to know that the cinematic arts are flourishing at law schools, along with the finest doctrinal instruction this side of a Gilbert’s outline and highly useful and enlightening scholarship that bears no causal relationship whatsoever to rising levels of student indebtedness.

One of the legal academy’s great auteur-scholars is University of Kentucky Law Professor Brian L. Frye. According to an endnote to one of his recent articles: "Brian L. Frye is an Associate Professor of Law at the University of Kentucky College of Law. His scholarship focuses on intellectual property, charity law, and art law. He is also an essayist and artist of no particular distinction." And the self-effacing professor does not even mention his two one-year post-law school judicial clerkships or the 27 months he spent as a junior associate with Sullivan & Cromwell before becoming a law professor.

Frye may modestly downplay the quality of his work, as per his so-charming humblebrag, but not his fans at OTLSS. True, we can only anticipate the delights of his forthcoming article: The Athlete’s Two Bodies: Reflections on the Ontology of Celebrity. But cinephiles everywhere can celebrate the completed films that he has conceived, directed, and starred in. These include such works as Brian Frye Fails to Masturbate and Striptease. In an article in the Chicago Reader, a film nerd provides the following description of these paradigm-subverting avant garde masterpieces.
"The two-minute Brian Frye Fails to Masturbate shows the filmmaker fully clothed, sitting in a chair fidgeting, seemingly unsure what to do with his hands. Inspired by the joke that student performance artists just get up in front of the audience and masturbate, this film in one sense merely illustrates the stereotype: Frye makes his body the subject. But because he appears not to know how to sit and where to look, and because the film is not obviously artful (it's a single take not particularly well framed), his body becomes the locus of instability rather than a fetishized object. . .
Striptease might have been titled "Brian Frye Fails to Strip." We see Frye disrobe, but when he gets to his white undershorts, the roll ends in white flare-outs. There's also something strange about his movements, especially when he drops his shirt — because in fact he ran the camera in reverse while putting his clothes on."     
It is galling that the hoi polloi persist in trooping to the multiplex to watch Star Wars, Episode Whatever, when gems like Brian Frye Fails to Masturbate remain comparatively obscure. At the very least, a minimally decent society will not fail to lubricate a genius like Brian Frye with an undemanding academic job and a $123,628 annual public sector salary, the better to facilitate his scholarly, as well as his artistic, ejaculations. Which is precisely what a young public defender failed to understand, in a January 15, 2018 exchange on Twitter, when she rudely interrupted Frye's effusion of self-love with the less-than-enticing imagery of her $250,000 law school debt load.

Professor Frye explains to the insolent tweeter that legal scholarship bears no relationship whatsoever to law student debt, making the knock down point that he gets paid whether he writes or doesn't write. (A few quibbles about that below). Anyway, here is the Twitter exchange in all its naked glory: [N. I want to add that I do not know the identity of "Essential Employee." I stumbled on the exchange while researching another post]

But wait, Professor Frye, or shall I call you Mr. Pro Boner?: Isn’t "engaging in scholarship" a major reason why the ABA mandates that the majority of law school coursework be taught by full-time law professors instead of far more affordable part-time adjuncts who, you know, actually practice law? (See ABA Standards 403(a) and 404(a)(3)). Isn’t this requirement fiercely defended against proposed modifications by law professor lobbying organizations? Don’t lawprofs routinely receive five-figure "summer research stipends" to top off their six-figure salaries, money expressly provided to encourage scholarship? Isn’t tenure in the legal academy strongly linked to scholarly production, as opposed to service and teaching? And don’t all these things add significantly to the cost of a legal education?

These would be my questions– pardon me, my non sequiturs– though I would never presume to match wits with somebody clever enough to deceive the world into thinking he is doing a striptease when he is really just running the camera in reverse while getting dressed.

Actually, the thing that most troubles me is that Professor Frye has become so absorbed in legal scholarship this past year that he may be neglecting his filmmaking. While I doubt that he or anyone can rise to the level of Brian Frye Fails to Masturbate, I would like to suggest some exciting film concepts inspired by his Twitter exchange with the public defender and the title of his greatest masterpiece: Brian Frye Fails to Take Moral Responsibility; Brian Frye Fails to Argue Persuasively; Brian Frye Fails to Treat a Public Defender with Respect; and Brian Frye Fails to Pretend that he is not a Smug and Pretentious Entitled Narcissist.

See, for these films, he would not even have to run the camera in reverse.

Wednesday, January 17, 2018

University of Richmond Law Dean (and AALS President) Wendy Perdue asserts that the ABA-mandated employment survey hurts law students

According to the University of Richmond Law School's last five annual ABA-mandated 10-months-out employment surveys (2012-2016), the school has not once succeeded in placing as many as 100 graduates in full-time law jobs in a single year, even though the size of its graduating class has ranged from 145 to 159.
What accounts for persistently lackluster employment results at Richmond Law and elsewhere? Conventional thinkers keep citing a highly saturated legal job market and deteriorating admissions standards at  law schools. However, University of Richmond Law Dean and Association of American Law Schools (AALS) President Wendy Perdue has shrewdly identified an alternate culprit-- namely, the employment survey itself.

Think about it in terms of misdirected talent and lack of trust. Say that a law school employs a hotshot career services counselor. The counselor could be and should be using her mighty skills to conduct a virtuoso mock job interview for this 3L or to craft the perfect cover letter for that 3L, which in cumulative effect would send employment outcomes zooming high enough to knock Santa out of his sleigh. But instead the counselor must devote long hours to unproductive administrative drudgery in compliance with a burdensome ABA employment survey protocol. 

Imagine acquiring a cat for the express purpose of catching mice and then some bureaucrat comes along and insists that the cat spend two-thirds of her time between mid-January and mid-March documenting her past mousing results.

In a February 27, 2017 blogpost entitled "Ides of March," Dean Perdue provides the following explanation:
". . . But finding out where every graduate is employed is only half the job – the other half is documentation. Schools are expected to be meticulous because their records may be audited. So suppose a student tells the career office that she is employed at a particular firm, then what? If the information came by email, the email must be uploaded to the student’s file. If the information was communicated orally, the staff person must document that conversation and put that in the file. Suppose the graduate provides the employer’s name but not the address of the firm: The career office must have someone go to the web, find the address, take a screen shot that shows the address, and upload that to the student’s file. 
All of this takes a lot of time and staff resources. Between mid-January and mid-March, one of our full time career counselors spends about two-thirds of her time on data collection and reporting. This is for a graduating class of about 150. The time she spends on data and reporting is time she will not spend with our students and graduates helping them identify job opportunities, reviewing their resumes and cover letters, or preparing them for their interviews 
Of course, prospective students care about employment outcomes and should have reliable information about this. But the level of detail and documentation far exceeds the level of detail we must provide about any other aspect of our operation, and it is time to restore some balance."
A few skeptical points and questions from a typically balance-deficient scamblogger:

1. According to the University of Richmond's most recent available IRS Form 990, for fiscal year 2014, Dean Perdue's annual compensation is $412,401, an impressive take even by law dean standards. Could a pittance from Perdue's enormous pay package be re-allocated for the purpose of hiring a two-month temp to assist the Richmond Law Career Services office in its record keeping? With this additional administrative support, the beautifully-crafted cover letters could keep flowing, even during survey season. 

2. Consider the linked ABA protocol for conducting the employment survey as well as the ABA's answers to "frequently asked questions" concerning the protocol. What specific requirements of "detail" or "documentation" would Dean Perdue like to eliminate in her quest to "restore some balance"? And what exactly are the two quantities being balanced here? Reliable information versus scamming hype? Does Dean Perdue believe that too much of either is a bad thing, but that a harmonious balance should be achieved?  

3. Isn’t it alarming that a law dean finds it objectionable that she and her staff are "expected to be meticulous" in advancing claims about recent graduate employment? I mean, how many lawprofs have written articles righteously embracing their responsibility to cultivate professional values and behaviors in law students, or to guide law students towards a proper inter-disciplinary-informed appreciation of social justice? Shouldn't a law school model, as well as teach, ethical conduct? I wonder if Dean Perdue is similarly critical of a lawyer's professional obligation to be meticulous in, for instance, billing clients or in making factual representations in court.  

4. Will Dean Perdue, as President of the AALS, use her organization's considerable influence with the ABA to lobby for a weaker employment auditing regime or at least weaker enforcement?

5. If Dean Perdue is truly concerned with finding jobs for Richmond law grads, perhaps she should consider reducing class size to around 100, the approximate annual demand for Richmond law graduates, or actually a bit higher. Because otherwise one may reasonably suspect that Dean Perdue's criticism of the employment survey is not actually motivated by concern for the job prospects of her students, but by opposition to transparency and accountability, i.e. by scam.

From a scamblog perspective, there are indeed significant defects in the ABA's oversight of the employment survey and in the survey itself, but these defects are indicative of laxity rather than severity.

This blog has criticized the ABA for randomly auditing only 10 schools per year. This blog has criticized the ABA audit protocol for allowing law schools to submit "incomplete, inaccurate, or misleading" employment files for up to 5% of graduates even with a generous cooked-in "presumption" that each file is not deficient. This blog has criticized the ABA for refusing to name the five schools out of the ten randomly audited last year that violated the audit protocol by submitting an excessive number of deficient employment files (and even the two schools out of the ten audited that were found to engage in deceptive practices). This blog has criticized the ABA for declaring that a more comprehensive audit of these five law schools (or shall I say scofflaw schools?) to be discretionary rather than mandatory, in apparent defiance of its own protocol.

But the President of the Association of American Law Schools thinks that the ABA employment survey is too burdensome for law schools, a dispiriting hint that the weak reforms that have been implemented by the ABA may come under renewed attack.  

Tuesday, January 9, 2018

Using the LSAT as a Predictor for Bar-Passage Rates, so as to Not Throw Eager Students into the Abyss

Recently, David Frakt asked the question again about LSAT scores being indicative of bar-passage rates in his post on the Infilaw Schools, and it reminded me of the kerfluffle that has occurred between various scamdeans on the one hand and the National Council of Bar Examiners not so long ago.
To recap: for scamdeans and other interested persons desperate to justify their existence, it's wrong to deny opportunities to law students, especially URMs, just based on an entrance test.  For the NCBE, a few intellectually-honest law profs, and even the ABA (if you read their often-not-enforced regulations, at least), it's wrong to allow students to pay $200k over three years to only pull the rug out at the end because they are unable to get their bar license.
At the core of the debate is the question as to whether or not (1) the LSAT actually predicts success on the bar exam, and (2) whether there is enough data to say so one way or the other.  While I am no Professor of Statistics by any means, it doesn't take much work, either, to come up with answers of (1) a qualified yes, and (2) a qualified yes.  This is based on three years of bar passage data for 200+ law schools that has been complied by Law School Transparency - which translates to approximately 600 data points.  The results are below:

Given the correlation of 0.51, there is arguably a trend here. To start off, the question of LSAT predictability is more complicated than a simple function box, and no one has ever seriously claimed otherwise.  This, after all, makes practical, experiential sense - the idea that only one variable (median LSAT) is the only factor that influences outcome (first-time bar passage percentage) is an oversimplification. However, to say that there is no correlation whatsoever and the LSAT should be thrown out is also self-serving Cartel-dishonesty, and takes us back to the feuds between the establishment deans and the NCBE over what this data means in the first place. Obviously, several factors would logically and likely apply here to give a better predictor for bar-exam performance, but what those factors are, and how to quantify them, are an ongoing matter of debate.

Wednesday, January 3, 2018

Is justice more accessible when 2,500 law professors get a free winter vacation? Thoughts about the annual Association of American Law School (AALS) conference and its "Access to Justice" theme.

Who, in these bleak midwinter days, would turn down an employer-paid vacation to someplace warm? Certainly not 2,500 jolly law professors and law school administrators, eagerly preparing for four days of boozing and shmoozing in the San Diego sun. It is time for the AALS (Association of American Law Schools) annual convention, set to run from January 3-6, 2018, at the Marriott Marquis San Diego Marina and Manchester Grand Hyatt.

With such a turnout, the conference panels will obviously be many, with some devoted to law school pedagogy, some to the intersection of law and this-or-that, and some to current events. I appreciate the hard work that law professors will invest to make them all a success, whether that means droning for several minutes about recent legislation and major appellate court decisions in their area of alleged academic expertise, pretending to be public intellectuals by sharing their so-important opinions about Trump and identity politics, sounding off about whatever trendy issues are getting people furious on Twitter, or discoursing about the best ways to force feed an appreciation of social justice to their drowning-in-debt students. Also there will be "more than 50 networking events and opportunities" because obviously law professor careers matter too.

For instance, there will be a law professor panel on "Fake News" moderated by Lyrissa Lidsky, the newly-appointed and $330,000-a-year-salaried dean of the University of Missouri School of Law. (As an amusing aside: check out the impressive "prior legal experience" section of Lidsky's CV-- six entries based a single one-year judicial clerkship, plus working summers during law school). Only a cynic would note that every annoying pundit and windbag has been yapping about so-called "fake news," for over a year, making it unlikely that the AALS panelists will provide new insights into the phenomenon.

According to William & Mary Law Professor Paul Marcus, the outgoing AALS President, there is a profoundly serious purpose to this vast hodgepodge of blather, as reflected by the theme he has chosen for the conference: "Access to Justice." In his message to attendees (See Program, p. 9), Prof. Marcus states that:
"For a long time many law schools recognized the importance of training students to work for this fundamental ideal [of equal justice]. . . The story of the admirable efforts by law faculty members and students to meet these great needs is not well publicized on the pages of major newspapers and on the Internet. But, our story, as members of the AALS, is all about dedicated students and faculty members across the United States who diligently pursue the goal of equal justice for all by providing sorely needed legal representation. It is an exciting story of the recent explosion, in number and variety, of legal clinics at our member schools . . . This larger story of what we as legal educators can do, and what we and our students are doing, to assure fairness in law for our less fortunate citizens is an exhilarating and uplifting story." 
These are admirable ideals, as one might expect from a public sector employee who draws a $270,500 annual salary. Although I would say that Marcus has slightly diminished his high-minded virtue by grousing that the media has failed to publicize "the larger story" about the socially valuable contributions that law schools make, a 'plaint reminiscent of what is often said by flacks representing organizations whose corrupt practices have elicited critical media coverage. 

I hate to deprecate the uplift, especially because I am a proponent of clinical legal education, but are these do-gooding clinics a fair tradeoff for saddling tens of thousands of young people per year with six-figures of non-dischargeable debt? Furthermore, don’t law school clinical courses often involve, in substantial part, assigning students to do unpaid intake or clerical work for independent or publicly-funded providers of legal services to the poor, such as the Innocence Project or legal aid offices-- a form of pedagogical outsourcing, even if law schools try to hog all the credit?

Take criminal law, which is Paul Marcus’s scholarly focus at William & Mary Law. I believe that each and every one of the 200+ accredited law schools has multiple full-time tenured or tenure-track six-figure-salaried professors who specialize in criminal law. (William & Mary, for instance, has eight). Let us very roughly estimate the collective salaries and benefits (including such perks as summer research stipends and travel and lodging expenses to AALS and SEALS conferences) of criminal law professors nationwide at 200 million dollars per year.

By comparison, how much money do law schools allocate to criminal law clinics? William & Mary Law's website lists only two criminal law clinics, and both draw significantly on non-law-school resources and expertise. One is an "Innocence Project Clinic" in which students assist the staff of the local Innocence Project in selecting viable cases, work that could arguably be done just as well by bright undergraduates or retirees. The other, an appellate clinic, is run by an attorney with the firm of Bailey Glasser LLP, who holds adjunct rank in the law school, meaning that he likely receives little compensation from the school or none at all.

William & Mary Law has no clinic devoted to helping prisoners prepare post-conviction and clemency petitions, a genuine area of drastic unmet need because there is no constitutional right to counsel on collateral filings. Though in a recent interview, Marcus bragged about how he and his students help ensure "a different form of access to justice" by conducting a "Literature and the Law" course at the regional jail. (Podcast, at 24:10-24:50))  So even if William & Mary law students do not provide the incarcerated with very much legal assistance, they at least offer a book club.

The problem is not existing clinics, of course, it is that they are embedded in an institutional structure of exploitation called law school. And law schools touts and apologists rely on these clinics as a source of puffery and self-congratulation beyond what any dignified person would deem appropriate. (See e.g. Marcus’s statement above, and his description of the development of clinical legal education in the U.S. as a "wonderful miracle." (Podcast, 20:34-20:37)) Problematically, law schools showcase their clinics for fundraising, for student recruitment, for media relations, and as the proffered moral basis of shindigs such as the AALS conference, as though the event has anything to do with access to justice. Access to self-indulgence is more like it.

Hey, AALS Conference Fake News panelists, please re-read Marcus's message. Does it signal the nature of the AALS's media relations strategy -- to hype law school clinics "on the pages of major newspapers and on the Internet" as "[t]he story" and "our story" and "the larger story," and "an exhilarating and uplifting story." You know, as opposed to such trivia as the ruination of tens of thousands of young lives per year via obscene admissions practices and tuition levels? Isn't that an especially topical and unexplored form of "fake news" worthy of your discussion?