Maybe the Problem is... Too Many Law Schools?

The New York Times has run some viewpoints on the idea of replacing part of a conventional legal education (three years of law school) with "legal apprenticeships". Some of the authors share concern about the high cost of a law degree, but no attention is paid to why that cost is so high (I'll give you a few hints: fabulous infrastructure, high administrator salaries, high law professor salaries, and low course loads for professors). Frankly, if you look at their core mission and core function, there is no need for law schools to be anywhere near as costly as they are.

From the other direction, there is concern that students will lose out on enlightening classroom discussions. I doubt that things have changed much since I was in law school, where professors were often heard to complain about apathy taking root in the second year of law school, and being firmly established by the third year such that it was difficult to get students to participate in classroom discussion. It wasn't just apathy, as some students are intimidated by classroom participation, some law professors are bullies and some law professors simply aren't any good at leading classroom discussions. Whatever the cause, after the coercion of the first year of law school, of being called upon and put under a very bright spotlight, many students did largely or completely withdraw from classroom discussions.

One contributor enthusiastically gushes over the glorious educational experience that is law school, never mind that practitioners often have a very different take on the benefits of law school education than law professors. Don't get me wrong, most practitioners appreciate the manner in which a good legal education can cause you to analyze issues and develop arguments, but there is much more to legal practice and law school has historically done a poor job of preparing law students for the actual practice of law.

I don't find the argument for apprenticeships to be particularly compelling, either. The critics question whether apprenticeships would be managed by appropriately competent, dedicated supervising attorneys. I've seen law firms whose approach to training new lawyers, fresh out of law school, is to hand them a bunch of case files and tell them to represent the associated clients, so yes, I think that's a big concern. I question where you could find enough spaces for these new apprentices to provide a meaningful number of openings for law students. I question whether they would provide decent compensation and reasonable hours, or if they would turn out to involve the type of exploitation that we've seen in nations that require "articling" for lawyers who want a bar admission -- long hours, little to no pay, but with the necessity of obtaining a position resulting fierce competition for any openings no matter how terrible the working conditions.

Thinking about some of the unpaid internships and exceedingly low paid associate positions I've seen advertised in recent years, it's difficult for me to believe that apprenticeships with private law firms will turn out to be a particularly valuable educational experience -- but what I would expect them to do is to reduce the number of jobs available for actual law school graduates. If you were to charge tuition for apprenticeships, funding them to the point that the apprentices could spend their time learning and studying rather than earning their keep through the mundane law firm tasks that they are likely to be assigned to perform, it's difficult to believe that they would cost less per year than law school.

The essays leave me not with the impression that we need or don't need apprenticeships. It leaves me with the impression that we need to reform legal education. Unfortunately, especially when I consider the manner in which the professors who oppose apprenticeships praise the current law school experience, I don't think that's at all likely to happen. More than that, if you want to solve the problem of there being too many law school graduates, far too many for the market to absorb, the first thing to do is reconsider the number of law schools, or at least the number of students they enroll -- but reduce those numbers and what will happen to those glorious buildings, glorious salaries, and gloriously low course loads?

Too Many Desperate Law School Grads Spoil the Broth....

I learned something interesting from an executive from a large health care organization, the other day. She receives 200-300 job applications for any available position within her organization -- not much of a surprise given the economy and the fact that it's an attractive employer. But she indicated also that, for a lot of positions, they are flooded with applications from recent law school graduates -- to the point that hitting the entry for "law school" toward the top of somebody's résumé results in a near-automatic rejection of the application. (Odds are that the initial screening is done by computer....) It's not that a law school graduate with an appropriate job history or qualifications couldn't do some of the posted jobs, or couldn't learn the position over time. It's that so many desperate law grads are applying for the jobs that hitting a reference to law school or a "J.D." suggests that there's a very low possibility that the candidate is qualified for the position as posted.

No matter what you hear from people who claim that the law degree is a flexible degree that allows you do do more than practice law, unless you have confirmed both that it's true for the industry in which you hope to work and that the industry is hiring recent law grads, don't believe it -- and if you find such an industry, consider how small it is and how few graduates they hire before choosing law school as a path to employment. If you're interested in working in an industry that does not regularly hire people with law degrees, find out what degrees they prefer and get one of those degrees instead of a J.D.

I'm not optimistic about the future of the legal profession, or the potential for law school graduates who aren't able (or aren't willing) to pursue BigLaw careers to find remunerative work in smaller legal practices. Some will manage to do so, either starting their own firms or finding their way into legal jobs that allow them to create a foundation for later promotion or lateral moves. But from what I see, despite the reduced numbers of students attending law school, the future of the profession doesn't look particularly bright -- and if you're not going to end up working in law, in my opinion for most fields your three years of law school are either going to be a neutral or a detriment.

In Your Face, Tomasky

While commenting on Paul Krugman's academic salary, which is lower than one might expect, Michael Tomasky uses the salaries at the University of Michigan Law School to make a point about Krugman's compensation:

While researching something else, I took a glance at the salaries given to faculty at the University of Michigan Law School. Nearly three-dozen faculty members there make more than Krugman’s $225,000. Fourteen are north of $500,000. Well, that’s law school, you might argue, they have to pay more. Maybe. But I can promise you you’ve never heard of them (except maybe Catharine MacKinnon, at $297,000).

I've actually heard of quite a few of them. (Is it cheating that, a couple of decades ago, I attended UM Law School?)

The funny thing is, the lesson I draw from the UM salary figures is that both salary bloat and the Peter Principle are alive and well. For some of the names on the list, compensation figures seem low -- but, like Krugman, the professors who seem underpaid have other, often substantial income streams from their publications and consulting work. Some of the numbers seem... wrong. As much as I respect the man, by way of example, I find it very difficult to believe that Judge Timothy Connors pulls in over $600K per year as an adjunct lecturer. David Lat publishes a different set of figures here, the top paid UM professors from 2012 to 2013, and although lecturers aren't technically professors... I just don't see it. If anybody can shed light on the peculiar figures (e.g., Judge Rhodes, a brilliant bankruptcy jurist, listed as receiving a salary of $566,666.68 as a "LEO Intermittent Lecturer") I would love to hear the explanation -- and to get tips on how to get that sort of compensation while moonlighting as a lecturer.

I have personal experience with some of the professors who are unquestionably paid a greater salary than Krugman. One is a brilliant man who, regrettably, could make a fortune if only he could bottle his lectures and sell them as an insomnia cure. Two are among the worst professors I've ever endured, one having demonstrated little interest in preparing for class and making casual, absurd statements during her lectures, and another being both intellectually lazy, and prone to narcissistic outbursts when corrected in class. (The lesson is: Don't correct him. You will pay.) One is among the hardest working, exacting people I've ever encountered in any sphere of my life. Another is brilliant within his field, with an encyclopedic grasp of his subject and an amazing ability to make it accessible to his students. One is probably the nicest people I've encountered in academia, with a dedication to teaching that seems too often absent from the classrooms of an elite law school. One, who I know only by reputation, was remarkable in her ability to draw her students into her philosophy of law. There are a few others who I know by reputation.

I know a few of the names of people who earn less than Krugman, as well. It's interesting to see how the compensation for certain clinical professors has risen -- I expect that comes from the increased emphasis on clinical law programs over the past twenty years, with an associated increase in demand for professors skilled enough to lead an effective, attractive law clinic. Some of the clinical professors date back to when I was at UM, and I worked with a couple of others when I was at ICLE. One of them graduated from UM a year before me, and I also remember him from classes (where he was obviously brilliant). A person from what is sort of my law school class (being a "summer starter", I fall between two years of regular graduates) is doing quite well as an administrator. A couple of others, I can count on meeting at my child's school events, as they're the parents of one of her classmates.

At the end of my review of those names and numbers, I was left with the feeling that the salaries of law school faculty reflect less of a meritocracy than would likely be achieved on a more open market. Part of that results from the absurd increases in law school tuition, funding lavish facilities (and boy, has UM Law upgraded its facilities from back in my day, when they already seemed pretty darn nice) and increased salaries. But for the better members of the faculty, I don't begrudge them their salaries. They are people who could earn as much or more (and sometimes already do earn as much or more) outside of academia. Where I find myself a bit annoyed is with the number of professors who I doubt have any greater interest in teaching than when I suffered through their lectures, and who I know haven't gotten any smarter, who seem to have floated through the years with ever-increasing salaries, praise be to tenure.

I suppose for those unfamiliar with Krugman, save for by reputation as a left-wing bogeyman, there might be a similar feeling. They might not be expressing, "That's too much money", in the sense of it's being too much to pay a high profile economist to teach at an elite university, but in the sense of, "I don't like Krugman, so he shouldn't make that type of money." As I understand it, Krugman's ability as a columnist parallels his ability as a professor, and he's capable of communicating difficult, abstract, complex topics in a way that his audiences (be they the readers of his columns or those who sit through his lectures) can understand. I think UM would do well to trade a few of its highly-paid but dubious talents to Princeton or CUNY, in exchange for Krugman as a professor for its law and business schools. But then, if Krugman were primarily focused on chasing the dollar in his academic career, it's difficult to believe he hasn't had offers on the table significantly in excess of his starting salary at CUNY.

A Fourth Year of Law School?

Cardozo Law Professor Edward Zelinsky is taking some well-deserved ribbing for his suggestion that law school should be expanded to a four year program. Critics of his piece have noted the tension between his argument that law school should be longer and should be more affordable,

The most serious argument against a fourth year of law school is the additional cost it would entail. Legal education is already too expensive. Adding a fourth year would impart even greater urgency to task of controlling the expense of law school, just as there is currently great urgency to the task of controlling the costs of undergraduate education.

As if it makes sense to increase the cost and duration of law school by a third, and only then address the urgent need to make law school more affordable. But I also take issue with this claim,

An ancillary benefit of a fourth year of legal education would, in the short run, be a reduction in the supply of law school graduates.

Let's say that starting in 2014, every new law school student were enrolled in a four-year program instead of a three-year program. In 2017, very few law school students would graduate. In 2018, assuming prospective law school students didn't turn away from the additional burden in droves, the market would return to "business as usual". So there would be a whopping single year in which a shortage of law school graduates would significantly affect the legal job market, which may help lawyers you graduated a year, perhaps two years before, but would be of little help to anybody who graduated earlier and of no help to anybody who graduates later. Still, not to damn his point with faint praise, it's not the weakest of his arguments.

The Million Dollar Law Degree

Given the triumphalism of those who tout a dubious study ostensibly showing that the present value of a law degree for an new graduate is $1 million, I think it's fair to remind them of how the rise in law school tuition, the huge rise in the number of law graduates, and the collapse of the legal job market call all of the authors' assumptions into question:

In June, the legal services sector lost more than 3,000 jobs, according to the latest Bureau of Labor Statistics data. Since June 2012, the latest BLS data shows, the industry has seen a net gain of only 1,000 jobs. In the last two months alone, 6,000 positions disappeared....

The increase in the percentage of applicants being admitted to law schools is one reason that the lawyer bubble continues to grow. Another is the stagnant job market. In 2008, the BLS projected that the economy would add a net total of 98,500 new attorney positions for the entire decade ending in 2018. In 2010, the agency revised that estimate downward to project the addition of just 73,600 positions by the end of 2020.

Even allowing for attrition by retirement, death, and other reasons, the BLS now estimates that there will be 235,000 openings for lawyers, judges, and related workers through 2020—23,500 a year. Last year alone, law schools graduated 46,000 new attorneys.

If law schools as a group reduced enrollments by 20 percent from last year’s graduating class, they would still produce almost 37,000 new lawyers annually — 370,000 for a decade that will require only 235,000 — not to mention the current backlog that began accumulating even before the Great Recession began.

If you're a Harvard or Yale law student, odds are your law degree will return well over that $million over the course of your career. The further you get away from the elite schools, or the upper ranks of the law school you attend, the less likely it is that you'll end up earning a good (or even a decent) income, and the more likely it is that you'll end up working a job that neither requires a law degree nor helps you pay off your student loans. Law is also a profession where your first job will often significantly limit your options for the rest of your career, so graduating into a poor employment market can have a career-long impact on your earnings.

If you're thinking about attending law school, you need to keep in mind that when people are talking about the flexibility of a law degree the odds are (a) they don't know what they're talking about or (b) they work for a law school and you're hearing a sales pitch. If you're not committed to practicing law, consider taking some additional time to think about your options or considering how other graduate degrees (or employment options) might better fit your goals and personality. If you are committed to practicing law, and have done some homework to figure out what that actually means (no, TV dramas don't count as homework), you still need to consider in light of your grades, LSAT score, and the law schools willing to accept you whether that's a good investment. For most students at most law schools, in the present market (which, unfortunately, seems to be the likely market for legal employment stretching into the foreseeable future) it's not going to be worth it - most law graduates end up racking up a large amount of debt and then not finding work in the legal field or finding marginal work that sets them up for a career in which they're excluded from the more prestigious and higher-paying jobs. You can't get around the numbers.

The Perils of Being Overqualified

Paul Campos notes that employers are perhaps more diligent than ever in weeding out overqualified candidates:

I see this all the time in the legal world: people find that getting a JD actually hurts their job prospects, not just because they can’t get jobs as lawyers (48% of the national class of 2012 didn’t have real legal jobs nine months after graduation), but because, despite self-serving claims of legal academic administrators and faculty that a law degree is “versatile,” most non-legal employers consider a law degree either a negative or a flat disqualification for a job candidate. (Perhaps the most stark example of this is provided by paralegals who quit good jobs to go to law school, then discover that employers won’t hire people with JDs to do paralegal work).

The first time I heard about a candidate being rejected as overqualified was back in 1979, in the film Kramer vs. Kramer. I was young enough at the time to be puzzled by the idea, although I came to appreciate why employers would hesitate before hiring an employee they thought might jump ship as soon as something better came along.

But the J.D. problem isn't just one of overqualification - most employers outside of the field of law (or the music industry) don't see the J.D. as a qualification. So you're both overqualified, in that you have a graduate degree that in the view of many should result in your easily earning a six figure income, but underqualified, in that your degree is seen as having absolutely nothing to do with a position outside of the field of law. When you're trying to explain and argue how your degree relates to the job for which you're applying, the odds of getting the job will typically hover between "slim" and "none".

Law School's a Great Deal If....

It's a couple of years old, but I just came across this one.... After advising law students about how they should get into the best law school they can and, if it's not one "sufficient brand equity to land the 'Big Law' position you want", to transfer after your first year to one that has sufficient brand equity ("work hard in your first year to earn top grades, and then transfer to a better school" - it's that easy, you know, which is why most law students have top grades and most top law schools are overflowing with transfer students after the first year - so you can get that BigLaw job.) The only type of legal job that makes sense to the author. Oh yes, and you should "have a passion for some aspect of law" because "there is never a guarantee of graduating with a high-paying job" and without passion the "tuition will never be worth it".

The author runs a company that coaches students on how to take the LSAT, so I think the biggest takeaway is that his advice "Do not take the LSAT until you are fully prepared.... Find a top class and experienced tutor, and take as many practice tests as you can" and the suggestion that even if you get into a crappy law school it's okay because you can study hard and transfer to a top school after your first year, were about protecting or promoting his business. The rest of the advice... sorry, there's no easy path to go from a school at which BigLaw does not recruit into a top law school, even if you're "committed to excelling during the admissions process". Around the same time the author was writing this piece, I received a letter from the dean of my law school (one where BigLaw recruits) suggesting that alums might might a special effort to hire graduates. You can be a great lawyer from a great law school, but if you start your career off the few tracks that lead to BigLaw jobs, odds are they're not going to let you back on.

But really, only about 13% of new law school graduates end up in permanent, BigLaw jobs upon graduating from law school. A small, additional number might join that track after completing judicial clerkships. If law school only makes economic sense if followed by a career in BigLaw, all that talk about transferring truly is about rearranging the deck chairs on the titanic - the lifeboats don't get any bigger. Worse, your reward is a career in BigLaw. (Oh, sure, some people love it. Others spend a career trying to figure out how to unshackle themselves from the golden handcuffs.)

The author's suggestion that passion can... I guess make up for the poor return on your investment if you don't get a job with a decent salary? For the most part, employers recognize student passion (real or feigned) for what it is - something that's not particularly related to the work they will be doing in their jobs. What if you have a passionate interest in, say, environmental law? Well, the best paying jobs are with the companies that are trying to avoid the application of environmental laws and regulations to their business activities. If you have the passion of a Dick Cheney, I say, "Go for it." If your passion is to "save the planet", you will find that there are lawyer jobs in public interest organizations. But for the most part they don't pay well. Oh yes, and they're full.

Where is passion likely to help? If you can develop true passion for, say, tax law, that can be an advantage if you can convey that passion to employers who are hiring entry level tax lawyers. That passion could matter if it's an area where few of your peers have strong interest and if you're actually capable of convincing an employer that your passion is real (because, as will shock you, a lot of job applicants will lie through their teeth about their passion and commitment to whatever it is the prospective employer wants). Good luck with that.

At the end, I'm left with the image of a pick-axe salesman in 1856, begging people to come to the California gold rush and assuring them how much better their odds are of finding the mother lode... if they buy enough supplies and the right pickaxe on their way to stake their claim.

Bar Admission After Two Years of Law School - A Partial Solution or a Huge Mistake?

I am skeptical that anything will come of the proposal, not because of an evaluation of its merits but because it could undermine the system of law reviews - student-edited law journals published by law schools - at all but the upper tier schools, but I think this proposal to allow students to take the bar after completing two years of law school would be a mistake.

The proposal would amend the rules of the New York State Court of Appeals to allow students to take the state bar exam after two years of law school instead of the three now required. Law schools would no doubt continue to provide a third year of legal instruction — and most should (more on that in a bit) — but students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.

Let's skip ahead to the end:

Some will argue that the two-year option would only create unequal classes of lawyers and glut the marketplace with attorneys who don’t have the skills and training that generations of law school graduates before them have had.

We doubt this will occur.

You doubt that will occur because... Unfortunately they appear to have run out of space before getting to that part.

Seriously, our system already produces unequal classes of lawyers. If you don't have the Harvard or Yale brand attached to you, what are the odds of being appointed to the Supreme Court? The nation's largest law firms focus their recruiting efforts on top tier law schools, and even within those law schools on law review members, and even then they tend to focus on the most elite law journal published by the institution. If you don't have the right job out of law school, the odds of later joining a "BigLaw" firm plummet. If you don't get the right judicial clerkship, the odds of becoming a law professor at a top law school plummet. The difference in employment and career prospects for graduates of top tier law schools are markedly different (and better) than those of graduates from the bottom tier of law schools.

How can you argue with a straight face that a student who drops out of law school after two years will be viewed as an equally qualified candidate as compared to students who graduate? Treated equally, except by law schools looking for professors, judges looking for clerks, law firms looking for lawyers....

The fantasy is that none of that matters:

While this wouldn’t increase the number of available jobs, a two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts....

And in any case, the risk ought to be balanced with the varied needs of the American people for legal services.

So... the idea is that although we already have far more law school graduates than available jobs, and although the proposal won't create even one additional job, and even though every single job - including some that can only be described as exploitative - gets flooded with applicants, creating a pool of less qualified applicants will... what? Allow the 2L with a law degree to apply for the public service job he "could not afford" if he completed another year of law school? Why would the public service entity find the drop-out preferable to the many law school graduates who will continue to apply for their jobs? Here's a wild idea: How about expanding the programs that offer loan forgiveness or similar subsidies to students who enter public interest careers?

The suggestion that the drop-outs could "work at smaller firms that serve lower- or average-income Americans" betrays both that they don't believe their own argument about creating "unequal classes of lawyers". They imagine the dropouts would work in low-paying public interest jobs, and for small law firms that offer discount legal services, again at low pay. You know what would be better than telling somebody that you're doing them a favor by letting them drop out of law school after two years, yet still take the bar and then go into a low-paying job? Steering them into a different degree program before they enter law school.

This isn't the first time I've heard the fantasy that if only we could glut the market with lawyers, suddenly quality legal services would be available to the masses. The authors' conceit is that this does not presently occur because the burden of law school debt prevents graduates from taking jobs that "serve lower- or average-income Americans", but those jobs are already being filled.

Is the idea, then, that small law firms serving those populations will pay the drop-outs even less then pass along the savings to their clients? Is the idea that it's so easy to handle divorces, criminal defense, consumer bankruptcies, and the like that the drop-outs will hang out shingles and compete for clients at rock bottom rates - and that the only thing preventing recent law graduates from going solo is the cost of their third year of law school? Having actually started my own solo practice in a past life, I'm having a difficult time relating the argument to the realities of starting a law firm. It's expensive to run a law firm, it's difficult to build and sustain a client base, and you can't make a living representing people who can't afford to pay you. Frankly, if the argument boils down to "You can make maybe $30K a year practicing law out of your apartment," we're back to it's being better to steer students into more suitable graduate programs or encouraging them to seek jobs based upon their undergraduate degrees.

What do the authors believe law schools would do to maintain their revenue stream, were this proposal to go through? You know what I think that they would do? Admit even larger numbers of students. After all, if you reduce the number of students who complete the third year of law school, you reduce your need for law professors, you have a harder time justifying the glorious new law school building, you offer fewer teaching opportunities to your professors outside of the 1L curriculum. I have a difficult time believing law schools would tighten their belts. Law schools aren't as expensive as they are because they need state-of-the-art science labs, medical facilities, computer technology.... The typical law school class involves a professor lecturing a class, or leading a seminar. Law schools charge high tuition because they can, and their administrators and professors enjoy their high salaries.

An alternative approach that would be less likely to create unequal classes of lawyers, and also address the author's valid criticism of the third year of law school, would be to simply shorten law school to a two year program. Law schools could turn the third year into an assortment of certification or LLM programs, allowing students who chose to choose a professorial path, working as law review editors and focusing on scholarship, or to pursue a range of other programs focused on different areas of law or different types of legal practice. That alternative would also put the onus on law schools to prove the value of the third year, rather than creating an illusion of an option - "You can drop out and take the bar" - knowing full well (or, extending the benefit of the doubt, applying a "knew or should have known" standard) that in a competitive job market the vast majority of law students won't take that chance, and that most who did would suffer for it.

When People Aren't Impressed With Your Arguments... It May Be That They're Unimpressive

I've commented before on the concern trolling about minorities getting into schools that are above their academic reach, then finding themselves at a disadvantage in the job market due to their performing below the level of their 'qualified' peers. I've never been impressed with the argument. For elite schools, branding remains a significant issue - as G.W. Bush can tell you, better to graduate from Harvard and Yale with a C average than to get straight A's at a college that matches your academic profile. For non-elite schools, I find it difficult to believe that you can make a sufficiently granular analysis.

One of my classmates, who did very well in law school (magna cum laude), shared a story during our first year. He had gone to the administration to try to defer his enrollment and, according to him, was told he was lucky to be admitted in the first place, "Do you know how many students we admit with your GPA?" A professor who had been one of those law students who seems able to sneeze in a blue book and have the professor issue an A+ recounted how he had been a C+ student as an undergrad and was absolutely shocked when he found himself consistently at the top of his class during his first year of law school. After that, prestigious federal clerkship, Supreme Court clerkship, and a few years later a faculty appointment at a top ten law school. Another professor, despite being somewhat narcissistic, shared a story about how he stumbled through law school, applied very late for a clerkship because he didn't have a job and just changed into a federal clerkship, stumbled through a couple of years of legal practice, didn't care for it, applied for a law professorship on a lark and ended up at a top law school - nobody looking at any of his numbers would have seen any of that coming. I didn't think he was a particularly good law professor, but there he was.

The "they're in schools in which they can't compete" concern trolling wouldn't apply to the people I just described - they weren't minority students. Exceptions don't prove a rule, but if you overgeneralize you risk missing some important elements of law school and career success. Let's also recall, perhaps the most famous "diversity student" in law school history was J. Danforth Quayle. I expect that he did struggle in law school, but....

Back in 2005, I specifically commented on an article by Richard Sander, what I considered (and consider) to be an unimpressive argument about minority enrollment in law schools. At the Volokh Conspiracy, one of the champions of this argument, David Bernstein, complains,

Sander, a Ph.D. economist, provides data that supports an inference that literally everyone in the legal academy already knows–that a great many students who are admitted as “diversity” admits wind up struggling in law school, leading to a much higher rate of failing out of law school and bar exam failure for such admits than for their white and Asian peers. Surely, if a key purpose of affirmative action is to aid these students one should be able to have a reasonable debate about whether the benefits of the policies as currently instituted outweigh the harms to their supposed beneficiaries, and, if so, whether reforms along the lines that Sander proposes would be a good remedy. Or perhaps law schools and related institutions would first open up their data to researchers to everyone could get a better handle on the underlying issues.

The argument here approches,

1. Many students admitted as "diversity" students struggle in law school, and it has been argued that minority students admitted under law school diversity programs have more difficulty graduating and getting employment than similarly qualified minority students who are admitted to less rigorous schools.

2. Law schools won't give Sanders the data he wants, in order to be able to better document his assuptions.

3. Therefore, law schools know Sanders is right and are collectively covering up "the truth."

Another possibility is that law schools aren't impressed with Sanders' scholarship, and thus aren't willing to expend resources and manpower to extract and provide a FERPA-compliant data set consistent with Sanders' requests. Yet another is that law schools don't want anybody to give serious scrutiny to their claimed job placement data, and to find out how partial, self-serving and manipulated their publicly available placement and salary numbers usually are.

Bernstein quotes Sander,

"Why have none of them empanelled neutral social scientists to evaluate and report on the mismatch debate? On this issue, many otherwise distinguished academics have fostered an environment in which data is inaccessible and honest debate is profoundly chilled."

I'll concede, if you are a professor and want to write a research paper on why minority students should be excluded from diversity programs, based upon weakly reasoned extrapolations from limited data, and either show no interest in making a similar analysis of non-minority students or admit that the J. Danforth Quayle types see significant benefit but "that's different", you're probably going to have difficulty getting your peers to take your research interests as seriously as you would like. But I'm not seeing how "Your data is insufficient to support your argument" would "chill" the research. I'm certainly not seeing how, "Why don't you care about the relative success and failure of other beneficiaries of diversity programs," is anything but a fair response. And I'm not seeing the fact that law schools don't want to put resources into pulling data for such research as proof that they know its proponent will be proved correct. Frankly, there's reason to be skeptical of any scholar who claims to know something as a matter of near or absolute certainty, but simultaneously admits that he lacks the data necessary to support his argument.

Thus, I can think of at least one highly-regarded researcher in legal academia who lost a job, at least in part, for not regarding the mismatch issue with sufficient wariness.

And Sharron Angle "knows" that there are many "domestic enemies" in Congress. The person has supposedly been drummed out of academia - a list of one could bring us back to my earlier allusion to trying to prove the rule based upon an exception; but a secret list of one is completely unconvincing. Sander appears to be the leading proponent of this argument, David Bernstein cheerleads his arguments, and neither seem to be at risk of job loss.

"Indeed, the Stanford Law Review staff who published Systemic Analysis were pressured into publishing only critical response pieces, even though distinguished academics who (in article outlines submitted to the law review) offered more balanced assessments sought to participate."

We now live in a world with these crazy things called "websites", where anybody can post anything they want for the world to see, at minimal cost. If a stack of convi,cing articles, supporting Sander's positions, exist, there is no reason why they would be unavailable.

Back to Bernstein,

It’s a good thing we don’t burn heretics at the stake anymore.

"Some people think my research is garbage, others think there might be something to it but won't attach their names to my present body of work, and some people object when I speak at certain conferences - just don't ask me for specific examples" = being buned at the stake? Melodramatic, much?

Would it be controversial for a researcher to say, "I am very interested in identifying the factors that predict how students perform in law school, and how law school success translates into career success, so I would like detailed, granular data about admissions, grades, and placement so I can look at the issue from the greatest number of angles"? I suspect not. So why not start there?

Don't Go to Law School....

Just don't.

Okay, if you're admitted to one of the twenty or so "top ten" schools and are in the upper half of your class, or if you're admitted to one of the ten or so "top five" schools, even better Harvard or Yale, although your future is not assured there's a good chance you'll end up getting one of those @70 hour/week, $150,000 jobs that everybody supposedly wants. But... are you sure you want that? And if you don't, how well do your wishes line up with your projected debt load? That job or career you want - is there another way to enter the field or to get a job that's "close enough" to being a lawyer that doesn't require the law degree? Because if we're talking public service, a lot of those jobs don't pay lawyers much (or any) better than they pay non-lawyers who perform similar tasks.

Back when I started law school, my very first classroom experience was an 8:00 AM contracts class with Professor J.J. White. To put it mildly, not all of the students in my section liked Professor White. But if half of my professors had inspired me to work as hard, I would have learned about five times as much law by the time I graduated, he tested based on knowledge of the law and legal principles as opposed to your ideological alignment, and he seemed to put more effort into preparing for his classes than most of the students. He was also a tremendous platform speaker and, when I first passed by him in a hall, I was surprised that he wasn't a foot taller. I had the opportunity to briefly work with him on a CLE course, about ten years after I graduated, and he displayed a level of passion and perfectionism that not only exceeded that of a typical top speaker, I think his passion significantly exceeded that of the lawyer who was planning the course.

Professor White would at times share his wisdom with us. "You are all fungible", he advised, noting quite correctly that most law firms view and treat associates as a commodity. He liked to tease the "limousine liberals" among us that although they were sure that they would be working public interest jobs after law school, for most that notion would be end after their first, highly paid summer associateship. I had a couple of friends who, over the course of their first summer, shifted positions from, "Maybe other people will chase the money, but not me", to "He was right". That was twenty years ago when law school only seemed expensive. Now, if you're a typical law school graduate, it seems that the choices are to put your hands out straight in front of you to be fitted for the golden handcuffs or, if you can't find a highly paid job, be grateful that we don't have debtors prisons in this country.

Paul Campos, a law professor and critic of what has happened to law school education - with costs spiraling up, job opportunities limited, and many law schools seeming to be intentionally misleading incoming students about placement and probable salaries - describes reality for a current law school graduate:

In any case, let’s consider what’s going on not just in the American economy as a whole, but in the legal sector. Over the last twelve months the legal sector has added a total of 4,800 jobs. Keep in mind that at best perhaps 70% of these jobs have been filled by attorneys, since the sector includes all support personnel (paralegals, administrative positions etc.). So we can estimate that there are about 3,000 more attorneys employed in America today than there were a year ago.

Now a certain number of people who were working as attorneys a year ago aren’t today, because they’ve died, retired, moved into other lines of work, or have simply become unemployed. The BLS estimates the total annual “outflow” from the profession to be about 13,000 people at present. So that means that about 16,000 lawyer jobs have been filled over the last 12 months by people who weren’t working as attorneys at the time they moved into these jobs.

Note this does not mean that 16,000 new law graduates got real legal jobs, since some unknown number of these jobs were filled by unemployed attorneys who moved back into the legal work force. It’s true that the 2011 NALP stats claim that 25,654 of the nation’s 44,258 2010 law graduates had a full-time job requiring a law degree nine months after graduation. For quite some time now I’ve been trying to explain why that (atrocious) 42% functional unemployment rate for new lawyers is actually seriously understated.

Campos links to an ad for a full-time associate position, expected to pay $10,000 for the first year of work - and that the ad elicited "32 applications from law school graduates within 24 hours of being posted on a law school’s web site". I recall a few years ago, having a lawyer tell me that when she needs complex issues briefed she posts an ad on craigslist and can often find experienced lawyers who will take the work as independent contractors at $15/hour. Campos notes, "23% of barred attorneys in Alabama made less than $25,000 [!] last year".

The practice of law is a tough profession to enter. Your first job will likely have a strong influence on the rest of your career. If you get a coveted clerkship or are hired by BigLaw, you're probably okay. If not, no matter how good a lawyer you are, your upward mobility is likely going to be limited by your ability to bring business to a prospective employer. And even if you have an impressive client list, if it's in thew wrong practice area you may find yourself limited to an "of counsel" relationship (although it does seem that in recent years more large firms have softened on the notion of which areas of law they "won't practice"). It doesn't matter how good you are as compared to lawyers who work in the firm, or that you match or exceed their potential, if you have the wrong pedigree you're going to be on the outside looking in.

If you have a family full of lawyers and know what the practice entails, you can enter law school with your eyes open. If they are going to guarantee you a job and salary when you graduate, all the better. If your notion of legal practice comes from watching TV shows, even though you "know" that the depiction is romanticized, you may want to try working at a law firm in some capacity before you choose to attend law school. You will likely find that law is a lot less glamorous, interesting and lucrative than you believe. And you may find your passion (subject to the aforementioned caveat that, if you can pursue your passion for a similar salary without paying for a law degree, you should consider that alternative path). But law school is now far too expensive for you to attend a middle or lower tier school simply because you don't know what you want to do with your life, or because law "sounds interesting" or you believe you'll be entering a prestige profession.

I told my brother not to go to law school. He wasn't really listening, went anyway, and through some good luck and timing ended up working at a defense firm with a pretty good salary. You too are entitled to roll the dice. What I'm really saying is, consider your alternatives and proceed with your eyes open. With about 16,000 true law jobs available for about 44,000 new law school graduates, and (as the numbers make inevitable) a lot of last year's grads still trying to find work, consider your drive, your connections, and the likelihood that you'll actually enjoy a real-life legal career. You have a lot of options before law school, but afterward the odds are you're going to be weighed down by your significant debt load (not to mention three years of opportunity cost).

"Trust Me - I'm Denying You This Great Opportunity For Your Own Good"

I stopped following George Will many years ago when, frankly, his columns became tiresome retreads, so I didn't even notice that Will had jumped onto the "Affirmative Action Harms Minorities" bandwagon until I read about his column at the Volokh Conspiracy, a site that has previously attempted to make the same argument; I have previously commented on similar arguments (c.f. Volokh Conspiracy comments on India's caste system). To me, the sentiment behind Will's columns often come across as a version of the proverbial cranky old man yelling, "Hey you kids, get off my lawn." His column on affirmative action seems to reflect that the wrong kids are allowed to place their unworthy feet on the lawns of elite universities.

Will starts by talking bout "academic mismatch", the notion that minority students end up in colleges that are too demanding for their meager little brains, and thus get worse grades or drop out, whereas had they gone to less challenging schools they would have flourished. I find the arguments of mismatch to be weak, first (as I indicated in the blog post I linked above) because to the extent that a mismatch exists it could easily be one of subject matter as opposed to aptitude. A lot of students go to law school because they believe it is the path to a well-paid career, not because they have received any advice about whether law school is a good academic match for their interests and aptitude, and many have little concept of what a lawyer does beyond depictions on TV, in movies and in novels.

But let's step back for a minute. Let's say that George Will is correct - that there would be no greater favor to a typical minority student than being bumped down into a less challenging school at which he will get better grades and ostensibly feel better about himself, and supposedly be launched on a more lucrative career path due to his presumed higher grades and higher likelihood of completion of the program. Why aren't top students, across the board, being told, "Set your sights a little bit lower - going to a less challenging college will help you in the long run"? Why are students who complain, "If minorities didn't benefit from affirmative action, I would be in a better school," grateful for their higher GPA's and expanded economic horizons? Why are graduates of elite institutions obsessed with preserving preferential admission for legacies, rather than encouraging their kids to attend schools better matched to their talents? Why aren't those making this argument also arguing that college sports scholarship should never be given to students who would not qualify for regular admission to the same school?

Enrollment in college is in no small part about branding. If you have an Ivy League college attached to your résumé, it opens doors that might otherwise remain closed. Many people (like Will) assume by the name of a college or its ranking that the curriculum must be more challenging, but that's often not the case. Even within a college, some degree programs are much easier than others, but having the . No matter how brilliant you are, if you want to be on the Supreme Court, you had best attend Harvard or Yale. The impact of branding is most pronounced with elite schools, but carries on down the line through less elite and regional schools.

Do those who sneer that President Obama is secretly dumb, a beneficiary of affirmative action, believe that he would be doing even better had he not attended Harvard Law? ("If only he had been allowed to excel at a mid-tier law school, he might be President of the Universe.") By the same token, do they contend that G.W. Bush, whose admissions to Harvard and Yale had nothing to do with academic preparedness or performance, did not benefit from that branding?

Since we're talking about the Supreme Court here, and the type of information it should use as a basis for its opinions, it seems reasonable to look at other cases. Here, for example, is a criticism of the substitution of sociology for law in Brown vs. Board of Education:

The court waxed sociological, citing such data as the preference of some black children for white dolls, which may have been related to school segregation. And the court cited studies - studies more problematic than the court assumed - concerning the effects of segregation on children's abilities to learn. By resting the ruling on theories of early childhood development, the court's rationale limited the anti-discrimination principle of the ruling to primary and secondary education.

As Robert Bork has written, making the ruling contingent on sociological findings "cheapened a great moment in constitutional law."The proper, more radical rational for the Brown outcome was simply that government should not use racial classifications in making decisions.

As you've guessed, that argument was made by George Will who, although claiming that the court reached the "correct constitutional outcome" laments that the ruling allowed for more than judicially enforced equality of access, and opened the door for direct efforts (i.e., "affirmative action") to end segregation and discrimination. Let's work with the premise that constitutional cases should be decided based upon the law and constitution, and that social science should be held at arm's length (or further). That was then, this is now?

The details of the Texas policies are less important than what social science says about the likely consequences of such policies.

Apparently, when it comes to ending affirmative action, we have a moral imperative to employ weak social science to cheapen a great moment in constitutional law.

Consider, for example, the touchy-feely arguments of the Heriot/Kirsanow/Gaziano brief,

These so-called affirmative action beneficiaries are not bad students. Many would be honor students elsewhere. But they are subtly being made to feel as if they are less talented than they really are. Many may actually be learning less. Everyone knows that a good student can get in over his head if placed in a classroom with more academically prepared students. (The Commissioner Amici, who are all lawyers, have little doubt, for example, that they would learn less in a physics class at Cal Tech, which specializes in training the best-prepared science students, than they would at a university with less formidable competition.)

It has often been argued that the social science research referenced in Brown was incomplete and misleading; but the first argument of the brief Will relies upon is nothing but speculation and projection. The brief's third and fourth arguments are framed as speculation - judgment based on appearances - "Race-Preferential Admissions Appear to Have the Effect of Discouraging Minority Students from Becoming College Professors" and "Race-Preferential Admissions Appear to Have the Effect of Decreasing the Number of Minority Law Students Who Graduate and Pass the Bar." I was not aware that the nation was facing either a shortage of people qualified to teach college courses and, unless the authors are concerned about a lack of racial diversity among college professors, I'm not sure what they are concerned about. Certainly not pay, given what a typical college professor earns.

The fifth argument, which attempts to argue that graduating from better colleges does not boost lifetime income, goes right back to speculation:

One cannot assume that a student with a combined SAT score of 1200 at Princeton is the equivalent of a student with the same score at Pennsylvania State. There is an excellent chance that the first student has a substantially better high school GPA or other distinctions in his favor. That is why he is at Princeton, not Pennsylvania State.

So he's not there because of affirmative action - he's there because he's better qualified? Gotta love the internal consistency....

Comparing students with the same SAT scores and finding that the student at the more elite school has higher post-graduation earnings, even though he appears to be mismatched at the more elite school, is a false comparison. It is overwhelmingly likely that the student attending the more elite school has a more elite high school record too.

So again, the students at the more elite school do benefit from their enrollment at those institutions, and should be assumed to be academically qualified for those programs, unless we're not comparing them to students in other colleges or talking about law school students, in which case they're going to struggle and fail due to affirmative action. Why am I still not quite convinced.

The only question is whether a black student who attends a Tier-1 school and winds up in the bottom third of the class would have likely been in the top third of a Tier-3 school. And the answer to that question, at least in many cases, is yes.

But if the assumption holds, the same is true of any student. By definition there will always be a "bottom third of the class" at any given university. Why is it okay when they're attending as legacies or on sports scholarships, or just happen to perform at a level below the majority of their peers, but a horror if their skin is of a certain shade? Also, if we are to rely upon the assumption that students who attend more elite schools and study subjects such as law or business would be studying engineering or the physical sciences but for their admission into the elite schools, we could be creating the academic mismatch the authors purport that they want to avoid. My stepfather holds a Ph.D. in physics, became a CMA (equivalent of a CPA) in his spare time, has taught college-level physics and calculus, has read the entire Scientific American library cover-to-cover for relaxation, and he has expressed that he "couldn't do" my work as a lawyer. He could - but what he means is that he would find it to be a mismatch with his aptitude and interests, as would I had I chosen to pursue a Ph.D. in physics instead of a law degree.

The brief's second argument is premised upon social science data, speculating that affirmative action caused minority students to select fields of study other than the natural sciences and engineering. (Yes, it appears that the three lawyers who authored the brief, and who apparently weren't sufficiently inspired by science to take even an basic physics course in college, and George "Don't know much about science book" Will, find this to be a genuine problem. So how's this for a kick in the seat of their collective pants - they haven't even impressed Steve Sailer.

Say I'm a black high school student with a 700 SAT math score and my options are:

1) Without affirmative action, go to Purdue and become an engineer.

2) With affirmative action, go to Penn, major in economics or finance, maybe get an MBA, and go into corporate management

Why would I choose what's behind door #1? My dad was an engineer. A friend of his designed the fastest airplane of all time. But, he was never that kind of genius, so he spent 40 years worrying about whether or not the wings were going to snap off the planes designed by the geniuses.

There are a lot of worse jobs than engineer, but there are better jobs, too.

It apparently has not occurred to the lawyers who authored the report that there actually are students other than themselves who view such "soft" subjects as law as a superior career choices to engineering or chemistry or becoming a professor.

The other brief relied upon by Will is similarly explicit in its reliance upon social science. The authors summarize their argument as follows:

Many of the issues involved in judicial oversight of racial affirmative action in university admissions turn on empirical questions that can be better understood through social science research. This brief identifies important findings in recent research that suggest that the Court’s decision in Grutter, and indeed affirmative action practices in general, are not having their intended effects.

The authors also speculate that admissions based upon SES would enhance diversity more efficiently than race-based affirmative action, but they fail to explain why they believe that to be the case; if they're taking the position that universities should attempt to enroll a diverse student body, they should make their case that socioeconomic diversity would result in "more intellectual and viewpoint 'diversity'", even as the student body becomes more racially homogeneous. So again we're being told, "Ignore the facts, ignore the law, and decide the case based upon our interpretation of social science." An approach we're told is bad and illegitimate if it means creating or expanding affirmative action programs, but superior to consideration of the facts or law if it can be used to argue against them.

The social science arguments advanced by Will not only seem speculative, they seem constrained by a tunnel vision - take tidbits of social science research, speculate about how it might harm minorities, and close the book. There's more to the picture than speculation about the career paths of college students who attend less renowned institutions, and the speculation that they might become scientists and engineers, or projections of lifetime earnings. College educated students are more likely to obtain and hold white collar jobs, socialize with educated peers, and have kids who go to college. In my experience that's true even if they are poor.

It would be interesting to learn how the numbers hold when you look at African American women, rather than African Americans in general. Given that women have a significantly higher college completion rate than men, I expect that the outcome analysis would be quite different. It would also be interesting to hear it explained why some colleges claim that their African American students fare as well as any other group if the problem truly is somehow connected to the color of one's skin. Interestingly,

African-American students in engineering and the hard sciences have lower retention and graduation rates than those in the social sciences and arts, but this is true for all ethnic groups.

So maybe there's not much to that notion of keeping African American students out of elite schools so they can become scientists and engineers, after all....

I wrote back in 2006,

Affirmative action, at least as presently defined, has to end sometime - that is, at some point you have to recognize that it has passed its point of effectiveness or, if it is effective, that it is no longer necessary. I personally believe that many (perhaps most) affirmative action programs are deeply flawed as administered. Funny, though, I can't recall the last time I saw an opponent of affirmative action make a cogent case against the need for affirmative action, or even the manner of its administration. I can't recall the last time I heard an opponent argue for reform and improvement as opposed to abolition. To the extent that a plausible case can be made that affirmative action is no longer helping to achieve progress for targeted groups, I don't recall hearing that argued, either.

The only thing that has changed since that time is that George Will and friends are arguing that some minority students are harmed by affirmative action. I can't help but feel that they state their case badly, but I guess it's all they have.

Just Sayin'

Let me state up front that Michael Coakley is a fine lawyer and I would not hesitate to hire him to represent me in a defamation lawsuit. But if I were the largest law school in the state - the largest in the nation - and were accused by a former student of being little more than a diploma mill, I would make a special point of finding a graduate of my own institution to lead the litigation. (Well, no, even if I believed in its merit I wouldn't file the case at all, for reasons summarized here, but if for some reason I were to file such a case....)

The Economics of Law School

Good for law schools, good for the universities they subsidize, but... perhaps not so good for students.

For years, it made economic sense for smart, ambitious 22-year-olds to pay the escalating price for a legal diploma. Law schools have had a monopolist’s hold on the keys to corporate lawyerdom, which pays graduates six-figure salaries.

But borrowing $150,000 or more is now a vastly riskier proposition given the scarcity of Big Law jobs. Of course, that scarcity hasn’t been priced into the cost of law school. How come? In part, it’s because schools have managed to convey the impression that those jobs aren’t very scarce.

Law schools don't want students to understand the realities of the job market, because if prospective students understand that they will be borrowing well into the six figures to enter a job market in which most of them will earn salaries in a range similar to what they would have earned without the law degree, they'll consider other options. I expect that the long-term financial picture for law graduates remains better than the short-term, but if you don't get a job with a sufficient salary during your early years of practice and leave the field you'll get less, perhaps none, of that long-term benefit.

New York Law School's dean defended reporting a median graduate salary of $160,000 for 2009 alums to U.S. News and World Report,

He noted that the school takes the over-and-above step of posting more granular salary data on its Web site.

“In these materials and in our conversations with students and applicants,” he wrote, “we explicitly tell them that most graduates find work in small to medium firms at salaries between $35,000 and $75,000.”

On their website? I found this quite easily, but it suggests that the 41.5% of grads entering private practice earn "$35,000–$160,000" with an average of "$107,343", and the 26.5% entering "corporate/business" earn "$50,000–$150,000" with an average of "$86,667". If I were to extrapolate from the average salaries reported, I could reasonably infer that (including graduates entering fields such as judicial clerkships that involve a short-term sacrifice in salary in exchange for an anticipated income boost after the clerkship ends) the average graduate was earning just about $90,000 per year.

I also found this via Google, and the (not exactly front-and-center) statement:

The salary range for law graduates varies greatly. [For salary stats, visit: www.nyls.edu/employmentstats.] Large law firms offer the highest salaries, and in recent years their starting salaries were between $145,000 and $160,000. These are the highest paying entry level jobs for lawyers and, not surprisingly, the most difficult to obtain. Typically only the very highest ranked students in the class obtain these jobs....

A recent study of New York Law School alumni who graduated between two and four years ago showed their salary increases in their second and third jobs. First salaries in the $40,000 to $60,000 range were the most common (46 percent), but that shifted with the graduates’ second and third jobs to the least common (20 percent). At the same time, salaries in the $60,000 to $90,000 range grew from 22.5 percent to 35.5 percent. Salaries in the range above $90,000 grew from 26 percent to 40 percent. All of these job changes occurred within four years of graduation.

I found this article via Paul Campos, who is quoted in the article,

“I’m 100 percent convinced that Matasar believes in his reformist agenda,” says Paul F. Campos, a professor at the University of Colorado at Boulder School of Law and a Future Ed attendee. “But all reformers discover that they can’t change a system by themselves. And by trying to survive in the current structure, he has ended up participating in the perpetuation of its most indefensible elements.”

Is he talking about law schools... or Congress? Alas, he's talking about human nature. At LGM, Campos adds some thoughts:

One result of these trends [in tuition] is that the 84% of 2010 UM Law grads who borrowed money during law school graduated with an average debt of $112,133. (That class matriculated when tuition was nearly $10,000 per year lower, so the entering class of 2011 is likely to average close to $150,000 in law school debt when it graduates three years from now)....

All this has been taking place at a time when the number of jobs for law graduates whose salaries justify six-figure debt loads has dropped sharply. Meanwhile, legal academia has barely begun to grapple seriously with the issue of who (other than independently wealthy people and partners of well-paid spouses) is going to be able to afford to take public interest legal jobs, the vast majority of which pay salaries that will not allow today’s average law school graduates to service their educational debts while at the same time paying for even a modest life style. (Note that the figures on law school indebtedness do not include undergraduate or consumer debt).

Law professor salaries are, of course, higher than ever.

Dictum vs. Holding

Back when I started practice, I attended a seminar at which a judge described a common problem with briefs submitted by lawyers who came of age in the era of Lexis and WestLaw: They would punch keywords into the search box, hit enter, find language in cases that supported their arguments, then quite that language without bothering to determine if they were citing the holding of the case - the court's binding decision - or dictum, statements not directly bearing on the issue before the court and thus not binding.

So I find it interesting that a law professor is excited about a column by a reporter (who studied law at Yale) that references and quotes as its sole legal authority a quote taken from a legal opinion in which the judge, as dictum, quoted dictum. For goodness sake.

Please, all you law profs, stop bringing back this sort of memory of law school. Some things, I would prefer to forget.

Spinning Law School Grades

I had missed the original article, but a letter to the editor brought my attention to the discussion of Elena Kagan's first year law school grades. The author of the letter argues,

Fresh out of lively liberal arts programs, especially brilliant students, taking their first law school exams, tend to digress into historical and philosophical explanations of the controlling legal rules. The Bs and B-minuses teach them to jettison all of that, and to write only what a judge will need to read to decide the case presented by the exam’s hypothetical.

The finest legal minds therefore often surface in the second semester, and thereafter. The arc of Elena Kagan’s grades, close to impeccable after the first Harvard Law School semester, shows her intellectual mettle.

From my own law school experience, I would take great issue with everything past the first sentence. In my experience it's true that, for a variety of reason, many very bright, engaged students can get grades that don't reflect their capacity. Some expect difficult material to come to them quickly and easily, and get tripped up when it does not. And it's likely true that some suffer for pursuing tangents or ideas that are somewhat afield of what the professor was trying to get at. But many suffer for the sin of writing what they actually believe, as opposed to what the professor wants to hear. The biggest lesson for a lot of bright law students in their first year is that they'll do better by anticipating and catering to their professor's philosophy of law.

There are some professors who are quite objective, both in how they structure their exams and how they grade them. Some legal subjects are better suited to objective examination, and some professors are more inclined toward objectivity as a matter of personality. The most dangerous professor is perhaps the one who reassures the class, "I don't take ideology into account while grading papers - I look only at the strength of the ideas." Why? Because professors who actually do that don't make their students nervous that they won't. But more to the point, the almost inevitable consequence is that the student who writes from a different perspective will be marked down, not for "disagreeing with the professor" but because in the professor's eyes the student's theories are inferior or incorrect. I have previously commented on this phenomenon:

A classmate who graduated with a very high GPA left one of our finals chuckling about some of the things he wrote on the final - what sounded to me like crude parodies of the law professor's philosophy. He got an A+. He had not been afraid to speak his mind in class, and his politics were pretty much the diametric opposite of the professor's, but he knew not just to keep his head down for the exam but to take obsequiousness to an entirely new level. I don't believe for a second that even with the same exam, absent blind grading, he would have received the same grade.

Sorry, but the idea that law school exams - or at least the majority of the exams I took at law school - taught me to hone in on what a judge might want to hear is simply incorrect. Law school requires a type of analysis that is certainly helpful when analyzing and presenting legal issues in court, but if I wrote appellate briefs with the type of analysis required by a law school hypothetical... ouch.

I knew more than a few students whose grades rose considerably during their second and third years of law school, but none of them argued to me then or now that this was because they were learning "to write only what a judge will need to read to decide [a] case". Some were highly selective in the professors they chose, preferring those known to grade on a higher curve or with whom they had previously obtained a high grade. Others learned to hone in on the professor - what are his interests and beliefs - and to write exam answers that catered to the professor. Few did so to the extent of the A+ student I previously mentioned, but that guy was a master of the art of reading professors. Most law students are mere mortals who might be thrilled to do better, but are content to get an A.

I think Kagan's academic record prior to law school amply demonstrated her "intellectual mettle". I suspect, though, that her first year was more of an adjustment to the realities of law school - that she could not expect to knock out a professor with her brilliant mind - and that she learned when it was necessary to shape her answers to suit the professor even though her personal beliefs were different.

We Already Knew She Was On Law Review....

Almost a decade ago, David Brooks attempted to brand bookish Princeton students as "Organization Kids"¹, speculating that they came from homes with highly structured schedules of activities, leading to college schedules that "sounded like a session of Future Workaholics of America". Recognizing that not everybody goes to Princeton, in order to get some balance for his piece Brooks went to... Harvard. Yeah. One of my brothers was at Michigan State University at that time and he was a different sort of "Organization Kid", I suppose - he organized quite a few raves.... David, you need to get out more.

Brooks returned to that subject in relation to Elena Kagan, reminding us,

About a decade ago, one began to notice a profusion of Organization Kids at elite college campuses. These were bright students who had been formed by the meritocratic system placed in front of them. They had great grades, perfect teacher recommendations, broad extracurricular interests, admirable self-confidence and winning personalities.

If they had any flaw, it was that they often had a professional and strategic attitude toward life. They were not intellectual risk-takers. They regarded professors as bosses to be pleased rather than authorities to be challenged. As one admissions director told me at the time, they were prudential rather than poetic.

If you listen to people talk about Elena Kagan, it is striking how closely their descriptions hew to this personality type.

Let's see.... Elena Kagan did graduate from Princeton, but in 1981. So either she was way ahead of her time, or Brooks was about twenty years too slow on the uptake.

I was reminded of the Brooks column as I chuckled at parts of a recent New Yorker column by Ian Frazier. If you've been exposed to law students, particularly the high achievers who go on to elite clerkships, you are probably more likely to chuckle at the picture he paints of Supreme Court Clerks, nervous about their presence at an event in the White House Rose Garden, instructed by Justice Stevens not to worry and to "Just keep your eyes on me, and do exactly what I do." But unbeknownst to the law clerks, a bee crawled into Justice Stevens' collar,

A few minutes passed before Justice Stevens became aware of the bee under his shirt, just at the base of his neck. In an attempt to dislodge the insect, the Justice raised his right shoulder, then his left. Faithful to our instructions, all twenty-six of us clerks immediately did the same. The tactic had no effect, however, so Justice Stevens repeated it, now moving alternating shoulders up and down more rapidly and jiggling his arms. None of us clerks quite understood how these gestures could be necessary for the ceremony, but, trusting implicitly in our kind mentor, we moved our shoulders and jiggled our arms just as he had done....

Looking over his shoulder as he shimmied uncontrollably across the Rose Garden lawn, he saw twenty-six clerks shimmying behind him, and in a near frantic attempt to get through to us began to wave his hands back and forth and cry, “No! No! Quit copying me!” We, assuming this was just part of the drill, waved our hands and cried, “No! No! Quit copying me!”

Returning from the world of fiction, back during my undergraduate days I heard a professor at a blue collar state university comment that he didn't like to teach honors students, because they were too afraid of being wrong. But you know what? You are probably going to do better at law school by reflecting your professors' ideology back at them, than you are by challenging your professors' ideas. A classmate who graduated with a very high GPA left one of our finals chuckling about some of the things he wrote on the final - what sounded to me like crude parodies of the law professor's philosophy. He got an A+. He had not been afraid to speak his mind in class, and his politics were pretty much the diametric opposite of the professor's, but he knew not just to keep his head down for the exam but to take obsequiousness to an entirely new level. I don't believe for a second that even with the same exam, absent blind grading, he would have received the same grade.

Kagan was strategic? She was effective "at playing her cards"? She avoided disclosing her ideology? And... yes, she made law review, served as Supervisory Editor, and graduated magna cum laude. And I could picture her doing the "bee dance" at a White House event, not because her background makes her different from her peers, but because it's anything but atypical.

In a big picture sense, Kagan's not a big mystery. She's openly aligned herself with the Democratic party and the political left. She clerked for Thurgood Marshall. She worked for the Clinton Administration and the Obama Administration. To the degree that she's circumspect, it's primarily been by avoiding a public record on litmus test issues.

Picture a columnist for the New York Times who is associated with a political party and ideology, but who avoids writing on the hot button issues. Who is instead known for taking the party's message and trying to massage it into something that seems more moderate or centrist, while fastidiously avoiding the issues where that's not possible. Who do you have, if not David Brooks. I can't help but wonder if his closing,

She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

is meant as a laugh line.
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1. I understand why syndicated columnists want to inject certain words into the popular discourse - "the world is flat", and all that - it helps build their brand. But it's annoying, and if it hasn't caught on despite years of repetition, perhaps it's time to give it a rest. Or if you just can't let go, take ownership and stick a little "™" symbol after each use to emphasize the proprietary nature of your phrase.

Handling Sensitive Topics at Law School

The Volokh Conspirators are apparently being approached by worried Harvard law students. Eugene Volokh has passed along an email, without comment, the following:

I wish I were a tenured professor, and was able to say reasonable and true things freely, like the idea that things that haven’t been proven yet remain unproven.

Instead, I’m an incoming student at Harvard Law next year. And even though I’m neither interested in nor well-informed about the IQ-race correlation debate, I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it. I have no idea what I would say if someone asked me if I could categorically rule out the possibility that there was a correlation between race and IQ... but the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

The law student just said, "I’m neither interested in nor well-informed about the IQ-race correlation debate", so it would seem to me that the reasonable thing to say would be, "I'm not interested in having this conversation."

It would also be quite reasonable to consider why somebody would present you with that particular challenge. I honestly cannot recall somebody, out of the blue, asking me a similar question during my entire three years of law school. If the person is trying to stir up trouble, you don't have to worry about formulating a sensitive - or even a polite - response. If you're not sure what's motivating the person to ask you such a question, it would be reasonable to respond, "What's your game? Are you being deliberately provocative?"

The answer that the author apparently considers to be both "reasonable" and "taboo" is, "I don't know." Apparently he believes that if he answers, "I'm not aware of any genetic link between race and intelligence, and in the absence of evidence I see no basis to assume that such a link exists," he'll be trapped by the snarky retort, "Ahah! You refuse to rule out such a link!" But then, if he believes somebody is trying to trap him into saying "I don't know," so that they can accuse him of being a racist, he should refer to the prior paragraph.

If he believes that the question is being asked in good faith, or if he feels compelled to respond to a snark, why not point out that the question is inherently flawed? Has he not considered the response, "I'll answer your question as soon as you tell me how to prove a negative"? Or, "Can you categorically rule out the possibility that God exists"? Or, "I'm not going to let you shift your burden of proof - if you believe that there is a correlation between race and intelligence, make your case"? (If the interrogator denies that such a link exists, we're back to, "Then what's your game?" If they assert that such a link exists but can't offer any evidence, it's reasonable to say, "I'm sure you can find somebody who is interested in having this debate with you, but I'm not.")

Meanwhile, Oren Kerr offers advice to a law student who is worried about how to respond "if someone asked me if I could categorically rule out the possibility that Jews tend to be greedy moneylenders". There is consistency here - both supposedly worried law students imagine that they'll be left dumbstruck by an obnoxious interrogator who wants them to prove a negative. No, really, look at the phrasing - the odds are overwhelming that we're dealing with the same individual:

But the funny thing is, I have no idea what anyone would say. The reasonable thing to say has been tabooed.

That's the same closing used in the email to Professor Volokh. (Note: Kerr may have rewritten the first email to illustrate some of the same points I'm making, clever man that he is, in which case my comments about his response are implied by his response.)

Now, I have to say, had somebody asked me such a question during law school, I wouldn't have been particularly worried about being polite, but Professor Volokh suggests approaching the query with "judgment and tact". How about, "If you have any sense of the history of anti-Semitism, you have to know that's an offensive question. If your inquiry is sincere, why did you phrase it in such an inflammatory manner?"

The supposed law student writes, "I am scared to even mention my opinion on the subject to my friends or roommates, or ask them about it" - he imagines himself, out of the blue, approaching his friends and saying, "You know what? I have absolutely no idea whether the stereotypes about Jews being greedy moneylenders are true"? He pictures himself asking his friends, "Do you think Jews are greedy moneylenders"? How - and why - does he imagine himself bringing this topic into a conversation?

Further, if the supposed incoming law student fears being inextricably trapped by the inquiry, "Can you categorically rule out the possibility that Jews tend to be greedy moneylenders", I pity his future clients. Kerr gives the person much more attention than the query deserves, explaining,

some arguments have to be approached with great caution not because of their logic but because of their history.... If you make the argument without any caveats, those listeners [familiar with the history] may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past.

Seriously? Because if our law student in fact has no experience that would suggest that "Jews tend to be greedy moneylenders", rather than giving a dissertation about his awareness of historic stereotypes before equivocating it seems that it would be much easier to respond as described above, or simply to answer, "That has not been my experience". It's difficult to imagine a context in which the interrogator's retort, "Ahah! You didn't disprove it!" would do anything more than make the interrogator look bad. "Disprove what? Your anti-Semitic assumptions?"

Are Law Degrees Versatile?

The National Law Journal recently asked, Is the Versatility of a Law Degree Just a Myth? Well, yes and no. If you go to law school without any real desire to practice law, and with no concept of where your career might go afterward, you're probably going to find out that there are many degrees that are far more versatile than law. If you then try to enter a field outside of law, what employer wouldn't be curious as to why you sought the law degree, or how your law degree better qualifies you for the job than the degree of a more typical applicant?

And then there's often the question of why you're choosing a career path that pays less than legal practice. Is your explanation that you're looking for greater job satisfaction, and are willing to take a pay cut for a job you love? Is it, "Legal practice (or at least the practice I was in) doesn't pay what you think"?

When you look around and see lawyers in a wide range of fields, ask yourself how they got there? If they're older, and entered a business field back before the MBA was created, there's no direct comparison. When the degree of preference in a field has changed, the easiest way to enter that field is with the preferred degree. But what of the others? Are they truly there because of their law degree and its versatility, or because they found a way into a field by virtue of their personal interests and skills and, assuming their legal background remains relevant to their job duties, found a way to make their law degrees work for their employer.

I would not suggest to somebody who simply can't decide what they want to do "when they grow up", that they go to law school. For that matter, I would have words of caution for somebody who understands what legal practice entails and wants to join the legal profession. But really, if you're meandering, an MBA is generally going to be cheaper and will likely provide more flexibility (save for getting you a license to practice law). The flexibility I see in a law degree often has more to do with the person holding the degree than the degree itself.

Still, if you're from a modest background and are willing to put in the effort it takes to get through law school, position yourself to get into a well-paid legal position, and work yourself ragged for enough years to build up some capital, it's a slow, tedious way to get to the point that you can afford to truly follow your dreams.

Provocation as a Defense to Murder

Apparently, in the U.K. it's becoming more difficult to raise infidelity as a basis to diminish a murder charge.

This reminds me of a story from law school... that might put you to sleep if I shared enough information for you to understand it. But it was funny if you were there.

Class Attendance

A recent article on law school attendance policies reminded me of an anecdote from law school.

At our graduation reception, one of my professors approched and congratulated one of my classmates, addressing her by name. She remarked that, as she had taken only one class from him in a very large lecture hall during a prior semester, she was curious about why he remembered her.

"Well," he explained, "For the first few weeks of the class you sat in the front row, and asked questions every day. Then one day you approached me and asked if class attendance would affect your grade. I said 'no', and I never saw you again."