January 31, 2013
NY Times covers decline in law school applications
Probably no need to flag a front-page Times story on this subject, but for the sake of completeness I note it. There's not really anything new for those who are regular readers of this blog. One irony, I expect, of a high-profile story like this is that it may actually push the number of applicants up a bit, since at least some prospective students will conclude, probably correctly, that they will get into a better law school, and at a better price, this year than they would have in the past and perhaps also the future. But we will see how the rest of this admissions cycle plays out.
UPDATE: This item makes the correct point, one somewhat obscured in stories like the one linked, above, namely that the "crisis" in the legal marketplace and law schools is not evenly distributed, as it were.
January 28, 2013
Diamond on Tamanaha
January 19, 2013
Rodriguez & Estreicher NY Times Op-ed in support of two-year law degreeMost readers will have seen this, but just in case. What do readers think? Signed comments only: full name and valid e-mail address required.
December 28, 2012
The case against law schools
Several readers called my attention to the fact that Paul Campos has finally offered a "shorter Paul Campos," i.e., an 'executive summary' of what he's apparrently been blogging about to the tune of hundreds of posts and hundreds of thousands of words for the past 15 months, during which time other law professors might have chosen to do some actual work. It provides a useful occasion to sort the wheat from the chaff, or the substance from the utter nonsense, emanating from Campos and others in cyberspace. So here we go with Campos's "executive summary":
It is difficult to get a man to understand something when his salary depends on his not understanding it. -- Upton Sinclair --
This is why your law school charges what it charges. This is why your professors believe sincerely in the “value proposition” of what they have to offer. This is why nothing ever changes, until it does.
The famous Upton Sinclair quote has many applications, but it doesn't explain the things that Campos suggests it does. Law schools charge what they charge because the market can bear it. Now that the market can not bear it, law schools are effectively cutting tuition by offering discounts and more financial aid. I assume some professors believe that they are providing value because they are, through their teaching and scholarly work. Some professors, like Campos, obviously aren't, and perhaps they are motivated by a kind of self-interested self-deception to believe otherwise. The last sentence--"This is why nothing ever changes, until it does"--is a non-sequitur on the preceding points.
If something cannot go on forever, it will stop. -- Herbert Stein --
When the price of something increases and its value decreases, at some point people will not pay for that thing any longer.
That's true, which is why, as just noted, law schools are now effectively cutting tuition, and why, as we have noted before, many law schools will contract and some may even close.
Debts that can’t be repaid won’t be. -- Michael Hudson --
That someone lends you money does not mean there is a reasonable probability that you will be able to repay that money. It only means that someone is making money from loaning you money.
This is almost right: the key fact is that the loans for higher education are backed by the federal government. Under those conditions, the observation holds.
Your odds of finishing in the top ten percent of your class are ten percent.
Working harder than everybody else is not a plan if everybody else has the same plan.
This would only be true if class rank were assigned randomly. In fact, your odds of finishing in the top ten percent of the class may be much higher or much lower depending on your academic peer group at the school you attend. Someone who gets into Yale, but decides to go to Colorado is going to finish in the top ten percent of the class if they do the work. It is fair to say that having the same plan as everyone else is not a good plan if those against whom you are competing have a similar skill set coming in.
There is no such thing as international law.
Or environmental law. Or human rights law. Or sports law. Basic rule: If some form of legal practice sounds interesting to non-lawyers, it does not exist.
This is obviously silly, since, in fact, lawyers work in all these areas. Perhaps what is meant is that one should not go to a law school simply because it advertises a specialty in one of those areas, and without regard for its overall reputation, and that is probably correct, but then that's what he should have said.
The only reason to go to law school is to be a lawyer.
A law degree is not versatile. Non-legal employers don’t like to hire lawyers, because for among other reasons they believe, correctly, that law school has not prepared people to do something other than practice law. (It hasn't done that either but whatever).
Certainly the best reason to go to law school is to become a lawyer, but it's not the only reason. What the facts are about the versatility of a law degree is a worthy question, but Campos has no information on this score. I've known JDs both here and at Texas who went into consulting firms by choice, not by necessity, and where the JD was an essential credential, though they weren't doing primarily legal work. What we need to know is whether this is common or uncommon.
Three years is a long time when you’re 22.
This means that if you can’t get a real job as a lawyer then law school costs far too much even if it’s “free.”
Hard to argue with that, but the key factor is whether or not the law school in question delivers good employment outcomes for its graduates. Some do, and some do not.
People who aren’t lawyers don’t know much about being lawyers.
This group includes your professors.
True to form, Campos returns to projecting his own failings on to his colleagues. Reading Campos, you would not know that many law professors actually practice law (at Texas, close to half the faculty was engaged in some kind of legal practice for some portion of the year, the percentage is smaller here, but that's because of the institutional culture, not competence), and that even those who do not practice typically know an enormous amount about the practice of law because of their work with continuing legal education and their ties to their former students. To be sure, Campos, who earned tenure with such gems as "That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text," probably hasn't a clue what lawyers do.
Spent money is gone.
It’s never too soon to fold a busted hand.
Useless advice, unless one has a clear notion of what counts as "a busted hand." It's one thing to drop out after a semester, but someone who has gone through two years of law school probably ought to get a degree for his or her efforts. But no generic form of advice on this score can be meaningful.
Having no good options does not make law school a good option.
But isn’t it pretty to think so?
I suppose this is just a variation of "Don't go to law school unless you want to be a lawyer."
It's hard to believe that all of Campos's blog blather amounts to so little, but it's his executive summary.
Two or three times over the last year I've gotten an e-mail from a reader of Campos who thinks that the poster boy for post-tenure review is actually doing something worthwhile. This is representative (I omit the sender's name):
I read your criticisms of Prof. Campos. Do you really think law school is still worth it, especially at any school lower than Top-25?
I suggest you read the following:
There are real people and lives at stake.
Thank you for reading.
I replied as follows, which will make a suitable conclusion to this post:
Dear Mr. [name omitted],
Before you write to someone, you really should read what they have written so you understand their position, rather than imputing a fictional one to them. Try this to start:
I’m glad Paul Campos--who is a notorious charlatan and self-promoter who cares not one whit about you or anyone else--shifted gears from where he started in August 2011, when he ranted about lazy professors [like him] and lousy scholars [like him]; now he actually posts some useful information about the job market, but that was partly because I (and others) called him out on his nonsense at the start. The real question is, if he actually cared, why it took him so long to post the kind of information that I, Bill Henderson, and, of course, Brian Tamanaha had been writing about for years. And too bad he still posts a great deal of misinformation and careless analyses.
In answer to your question, a cut-off like the one you suggest would be absurd, though it’s indicative of the misinformation Campos circulates that readers come away with such an impression. There are “top 25” schools it would be imprudent to pay full fare for, and there are law schools outside the top 25—say, regional flagships in most states—which are worth the full in-state rate in terms of professional outcomes.
As to the anecdote about the unemployed lawyer: there are millions of such stories, and not just in law. We live in a dysfunctional economic system, that disposes people like trash. That’s not a story about law schools or law as a profession, but it is typical of Campos that he presents it as one, but he’s too stupid to do otherwise.
UPDATE (12/31): A colleague from a law school in New York writes:
You’ve been saying it in different ways for years, but for me it didn’t fully penetrate until today: Law school pathology is a symptom of what’s wrong with the U.S. economy, not some up-from-nowhere tuition-grabbing scheme that malefactors foist on innocents. These days, feeling so horrified by the Beltway fiscal-cliff noise that so recklessly ignores unemployment, I think Campos is no better than our swine in Congress. He’s a courtier-jester who flatters neoliberal ideology and, by extension, the rich. If he’s not—if he really believes there’s a nefarious plot afoot—then the only honorable course for him would be to stop cashing his cushy paycheck from this evil enterprise. Also renounce tenure for himself.
November 30, 2012
Schrag on Tamanaha
MOVING TO FRONT FROM NOV. 28--SEE UPDATE
Philip Schrag (Georgetown) has written an interesting, substantive criticism of Tamanaha's Failing Law Schools, focusing, in particular, on what he argues is Tamanaha's misunderstanding of current debt repayment programs and their effects on credit-worthiness.
UPDATE: Tamanaha has a useful response to Schrag here, conceding some points about the changes in loan repayment since his book and raising some additional concerns. The conversation continues in the comments, with a sur-reply from Schrag and then a further response from Tamanaha.
Case Western Dean Mitchell: "Law school is worth the money"In The New York Times. He makes a number of quite fair points, though omits mention of the projected BLS gap in the number of new lawyer positions relative to the number of newly minted lawyers. A fairer thing to say would be that many law schools are worth the money, but not all are, and some are probably worth less than they are currently collecting, given realistic appraisals of employment outcomes. Absent real regulation by the ABA (or the government), only the market will sort this out, and to that end, prospective students need to be well-informed.
November 13, 2012
A change in federal student loan repayment plans
A colleague at Georgetown sends along this explanation of a new Obama Administration policy:
[T]he government issued the final regulations for the new Pay As You Earn student loan repayment plan, an initiative of the Obama administration. 77 Fed. Reg. 66088....Although the regs are quite complex, the bottom line is this:
Graduates currently in school or who graduated last May who DO NOT do public service work need not repay more than about 7% of their income toward their federal (that is, federally guaranteed or federally-issued) student loans, for 20 years. After 20 years, all remaining principal and interest is forgiven. (Our students who had undergraduate federal student loans before October, 2007 have to pay about 10% for 25 years, but most current law students did not have such loans).
Graduates who perform 120 months of public service (at least 30 hours a week for any federal, state, or local government, or any 501(c)(3) organization) get forgiveness after 10 years instead of 20 years. (And Georgetown’s LRAP reimburses their 7%, if they earn less than $75,000, with a gradual phaseout of the Georgetown LRAP subsidy for those with incomes between $75,000 and about $130,000).
This is an entitlement program, created by regulations under authority granted by Congress in 1993, 2007, and 2010 and not exercised until now; no appropriations are necessary.
October 26, 2012
In defense of specialization in legal educationTax scholar Victor Fleischer (Colorado) comments. He makes a number of interesting points, but I'm sure I'm not alone in thinking I wouldn't have chosen a law school that force-fed all students "financial literacy." Let the law school recommend the course and counsel the students about its value, but it really isn't true that every law student needs it regardless of career plans or trajectory. That reservation aside, I think the overall thrust of Fleischer's comments is correct, though at least here at Chicago, where 3Ls are rather remarkably engaged, my sense is students already do a lot of this without any curriculum "revamping."
October 15, 2012
A potted history of American legal education and scholarship in the 20th-century, with special reference to why there is no longer a scholarly Wissenschaft in law
MOVING TO FRTON FROM JULY 11, 2012: THIS APPEARED IN THE DOG DAYS OF SUMMER WHEN SOME READERS WHO MIGHT FIND IT INTERESTING MAY HAVE MISSED IT
Christopher Columbus Langdell, Dean of the Harvard Law School in the late 19th-century, set the paradigm for what law schools and legal scholars should do, a paradigm that lasted for nearly a century, until Richard Posner upset it in the 1970s. That gloss perhaps exaggerates the influence of these two individuals, but only slightly.
In the 19th-century, the idea arose, beginning in Germany of course, that a subject fit for and requiring university study should be a Wissenschaft, a "science," though the Anglophone connotation of natural science is misleading. A Wissenschaft was a body of knowledge characterized by distinctive methods and tools that, when deployed correctly, would lend epistemic credence to the results. If law was to be a subject for university study, then it had to be a Wissenschaft, an idea shared by Langdell and the Legal Realists, and many others.
For Langdell, the body of knowledge constituting legal knowledge arose from a careful study of the opinions of the courts as they analyzed legal problems--not a crazy view for a scholar of the common law to have, of course. Carefuly study of these opinions could elict the general principles and rules of law that explained the particular opinions. The task of legal scholars was to articulate these general principles, and the obligation of the law students was to learn them, so that they could then understand what the courts will do.
The American Legal Realists interrupted this pedagogical and scholarly narrative in the early 20th-century, noticing that the doctrinal categories the Langdellian scholar latched on to were often pitched at a level of abstraction from the particular problems the courts were confronting that actually obscured what was really going on. Sensitivity to economic and social context was often necessary to make sense of the decisions; there was no "law of contracts" or "law of torts," per se. As the great Legal Realist Leon Green's torts casebook of the 1930s suggested, what there really was were principles of tort law for railroads, for hospitals, for factories, and so on. The American Realists accepted Langdell's ambition to make the study of law scientific; they just thought Langdell's science was shoddy, and their view prevailed.
The merged Langdell/Realist paradigm became dominant for a good half-century. To take a prominent example of how the agenda became mainstreamed: my late Texas colleague Charles Alan Wright understood himself, correctly, to be a Legal Realist, and his renowned treatise on Federal Practice and Procedure reflects that self-understanding: Wright and his colleagues carefully parsed the opinions of the courts, in order to elicit the situation-sensitive rules the courts actually were deploying in deciding procedural issues. The treatise writer continued to be the pinnacle of academic excellence for another generation after WWII.
Richard Posner is, like Langdell, the other decisive figure in the history of American legal scholarship and education. He did not invent economic analysis of law--such credit goes, if it goes to any one person, to his Chicago colleagues Ronald Coase and Aaron Director--but he had the intellectual energy and ingenuity to show in the course of the 1970s how the economic way of thinking could both explain what the courts were really doing and upset what almost all the scholars were saying about it. The economic approach started from a simple assumption: individuals are instrumentally rational in trying to get what they want. Their interactions with the law, so the economic story goes, are no different. If the law imposes penalties on certain conduct, they will adjust their behavior accordingly, in order to get what they really want, even if the law prohibits it or burdens the pursuit of it, unless, of course, the burdens become too costly. Those simple "rational choice" assumptions had radical consequences, or so Posner and Posnerians argued. And here they pierced the vulnerable underbelly of the Realist attack on Langdell's doctrinalism. For the Realists operated with "common sense" assumptions about how law would influence behavior, a "common sense" that hadn't really taken account of how actors in market systems tend to think, namely, in terms of the self-centered costs and benefits of different courses of conduct. The greatest success of economic analysis was, of course, in those commercial domains where actors really did think the way the economic analyst supposed.
The victory of Realism and Posnerian Realism means, of course, there is no science of law--no distinctively legal methods or tools--beyond the ones Langdell envisioned. But that's the Wissenschaft law schools have been teaching for a century now, and, arguably, students master it within two years, at least when well-taught. Once a student has learned the Langedellian Wissenschaft, what's needed is something else, at least for a post-Realist, post-Posnerian legal scholar: history, economics, political science, sociology, and so on. That's why the idea of a PhD in law is so bizarre: it's either Langdellian Wissenschaft fetishized (Legal Realism and Posner be damned!) or its history-lite, economics-lite, political science-lite and so on. (The worry is that the latter is really what Yale's new "PhD in law" will be.)
In the UK, Langdellian Wissenschaft still reigns supreme--hence the PhD in law there really is a graduate degree, one that complements the undergraduate training students have had in "dcotrinal" analysis. (There are exceptions, of course, in the UK for those who do a doctorate in jurisprudence or legal history, which are well-developed specialties, which operate in tandem with, not as lite-versions of, the cognate Wissenschaften.) But as American law professors often jest, if you want to know what law school was like in the 1950s, spend a term at a leading English law school. Maybe doctrine really does explain the behavior of courts in the UK, and maybe English citizens are even more infrequently maximizers of their satisfactions than their American cousins. But the Langdellian legal Wissenschaft exhausts its intellectual utility within two years of JD study, and that is, as far as I can tell, no longer controversial on this side of the Atlantic. So what could a PhD in law really be about? Especially at Yale, where even the craft of the Langdellian paradigm has largely vanished, it is especially puzzling. Although Yale has smart historians, psychologists, economists, and philosophers on the faculty, the Law School clearly does not have the resources to mount a serious "law-and-X" Wissenschaft in any of these fields, certainly not when compared to a JD/PhD in history, psychology, economics etc. The real worry about Yale's PhD in Law is that it's going to be a PhD imprimatur on even higher-level post-Realist dilettantism. Only if law schools generally acquiesce to this will it be successful.