Monday, November 25, 2013
Salon must really be desperate to post this content-free piece, which takes as its question, "How...can we explain the fact that young people are still going to law school in droves?" when, in fact, applications to law school are down nearly 40%, and most law schools in the United States are experiencing varying degrees of financial stress as a result (not "raking in cash"). But never mind the facts, little Mr. Winterhalter wants to deliver his sermon: "Why aren’t law schools ashamed of themselves?" Well, because most of them didn't do anything shameful, that's why. Almost all the graduates of accredited law schools passed the bar exam, and the only actual evidence on offer makes clear that the JD was a winning financial proposition for the vast majority. There's no shame in teaching the vast majority of students to pass the bar and enabling them to enjoy substantial financial returns on their education. (There should be shame in being an opportunistic liar like Mr. Winterhalter, who calculated, obviously correctly, that he could capitalize on the current hysteria to get a fact-free smear piece into Salon! I will let pass in silence his juvenile discussion of economic analysis of law.)
It is time for a little reality-check, even in cyberspace. In 2008, the global capitalist system suffered a severe recession or depression, which soon spread to the legal sector, exacerbating trends affecting reduced demand for lawyers. Law schools did not cause that economic catastrophe. Beginning in 2011, Senators Boxer and Coburn began challenging the ABA about the accuracy of employment data reported by ABA-accredited law schools. This data was almost certainly massaged, due to the malign and longstanding influence of U.S. News (as I noted a decade ago!). Annoyed U.S. Senators, unsurprisingly, caught the attention of the ABA, and soon enough, the ABA mandated improved employment data reporting, thus making clear how poorly graduates of some law schools were faring during the recession. Around the same time, David Segal, a journalist who had never before covered law, began writing a series of front-page stories in The New York Times about the collapse of the job market for new lawyers, as well as producing unrelated hatchet jobs on legal education.
In the wake of all this, applications to and enrollments in law schools, unsurprisingly, entered a steep decline. Law schools began reducing tuition and cutting faculty. But in cyberspace, a different set of events, only partly related to the preceding, began to unfold. The global recession took its toll on recent law graduates, like so many others. Some of the victims took to the Internet, enacting Nietzsche's observation more than a century ago that,
Every sufferer instinctively looks for a cause of its distress, more exactly, for a culprit, even more precisely for a guilty culprit who is receptive to dsitress--in short, for a living being upon whom he can release his emotions, actually or in effigy, on some pretext or other; because the release of emotions is the greatest attempt at relief, or should I say, anaestheticizing on the part of the sufferer. [Cf. Barash & Lipton, Payback (Oxford, 2011) for empirical evidence in support of the Nietzschean hypothesis.]
There was, undboutedly, considerable suffering by lawyers and new law graduates--jobs lost, careers thwarted, huge debts looming and undischargeable in bankruptcy. In cyberspace, some of those suffering--as well as some muddle-headed law professors and opportunistic charlatans-- identified a "guilty culprit": it was law schools. Thus was born the bizarre meme that law school was a 'scam.' (Mr. Winterhalter is a late arrival to the meme.) Although U.S. law schools had for decades successfully trained most graduates to pass the bar and become lawyers, this no longer mattered. Massaging employment data to game U.S. News rankings was now portrayed as a concerted and sinister attempt to fraudulently induce students to come to law school who otherwise never would have dreamed of doing so. Indeed, lawsuits by victims of this alleged "scam" were soon filed around the country, but courts have uniformly repudiated their theory about the culprits, noting the obvious "elephant in the room," i.e., the global recession of 2008. The law professors who taught the plaintiffs apparently well enough to pass the bar were clearly not responsible for lack of jobs--how could they be? Some law schools still face possible liability, and perhaps rightly so: there are 200 accredited law schools in the country, and some may have acted unethically and perhaps illegally. But law schools are not culpable for the economic catastrophe of the last five years, and the vast, vast majority did not defraud or scam anyone. This much is obvious to the courts, indeed, to anyone awake.
The sensible response to an economic catastrophe, both inside and outside the legal profession, has turned into an utterly irrational attempt by the misguided or the malevolent to find "guilty culprits" to blame for miserable circumstances. Mr. Winterhalter is just the latest manifestation of this irrational response, but cyber-ranting like his still proliferates in which law schools, judges, lawyers, law faculty, and anyone who resists the herd mentality of the deranged scam-bloggers are disparaged, demeaned and defamed without regard for the facts and without any actual evidence of wrongdoing.