Home / General / Do or should universities have fiduciary obligations toward their students?

Do or should universities have fiduciary obligations toward their students?


Scott has already pointed out that Lisa McElroy seems to be arguing for the vigorous application of the doctrine of caveat emptor to transactions between prospective law students and law schools. Caveat emptor is a common law legal doctrine which asserts that the only duty sellers have to buyers is not to engage in affirmative misrepresentation, or fraudulent concealment of latent defects. Example: if you’re selling a house with a roof that leaks, you can’t lie if a prospective buyer asks you if the roof leaks, but if the buyer doesn’t ask, and you don’t do something to cover up the leak from discovery by a prudent inspection, then you have no liability to the buyer after the closing in regard to the condition of the roof.

Caveat emptor is (or was) applied traditionally to so-called “arm’s length” business transactions, in which the parties had no special duties toward each other.

At the other end of the spectrum, in law-talking terms, we have the fiduciary relationship, which is a catch-all term for situations in which parties to a transaction do have such duties, legally speaking. For example, if I have a great idea for a book and tell my friend, I have no legal recourse if my friend goes off and writes a book based on that idea (Legally speaking, I have no proprietary right in an idea for a book unless and until I actually turn it into a copyrightable entity, that is, an actual book). On the other hand, if I tell my agent this great idea and he turns around and pitches it to another one of his clients, Famous Author, who then writes up a proposal that the agent sells to a publisher, I can sue my agent for breaching his fiduciary duty to me, since we’re in a special legal relationship, i.e., one of agent and principal.

Note that the legalities of this situation don’t track most peoples’ sense of the moral obligations of the parties: Morally speaking, my friend’s betrayal of our friendship is worse than my agent’s breach of his legal duty to me, even though it’s not legally actionable (in part because I actually have legal recourse against the agent, but primarily because breaching obligations created by a business relationship is generally not as deplorable as betraying a friend).

So when we ask if schools have fiduciary obligations toward their students, we can be asking a narrowly legal question (“is a school a legal fiduciary in relation to the interest of its students?”), or a broader moral one (“is adopting the doctrine of caveat emptor a morally dubious or bankrupt thing to do in this particular social context, without regard to the legalities of the matter?”).

Although I’m no expert on the question, a cursory investigation suggests that there’s surprisingly — surprising to me that is –little formal legal support for the the claim that universities have fiduciary obligations toward their students, even though universities are usually organized as non-profit, quasi-charitable entities, that get all sorts of tax breaks and other benefits for being “eleemosynary” (law talk for public-regarding) institutions.

That of course is or should be to be a separate question from the question of how universities, colleges, law schools etc., ought to behave toward their students, regardless of the formal legalities. (Obviously the two are related, however. If law schools, for example, are taking the view that the only thing that matters in this world is to get someone to sign on the loan document line that is dotted, it becomes hard to see why they should be tax-exempt entities, why graduates should give them money after they’ve graduated, or why, for that matter, they should be viewed as more exalted social entities than car dealerships).

Anyway I do think educators in particular ought to consider themselves to have special obligations to their students, going beyond those created by a normal business transaction, for at least a couple of reasons:

(1) Generally speaking, students are young and naive, while teachers are older, and, if not wiser, at least warier. This obviously applies to traditional undergraduates, but it’s also true for a large percentage of law students, who are only formally adults, and — this is crucial — who have been brought up to think of institutions of higher learning as places that are doing something other than trying to figure out how to pass out the Glengarry leads to their best earners.

All of us are prone to optimism bias, confirmation bias, and the sunk cost fallacy, but, again generally speaking, the younger we are the more vulnerable we remain to these factors, which, because of the special cultural prestige institutions of higher learning possess, such institutions are especially able to exploit, should they choose to do so. That potential for exploitation means we can’t or shouldn’t always be closing, no matter how profitable it may be for the non-profit entities in which we operate for us to take this view of our present and future students.

(2) The entire economic justification (there are of course other justifications, but here we’re speaking of the dollars and the cents) for the considerable present costs of higher education is what economists refer to as “enhancing human capital.” We’re not just supposed to be providing a social signaling mechanism regarding the preexisting abilities of our students, which could obviously be provided at a vastly lower cost: we’re supposed to be enhancing those abilities from what they would otherwise be.

Law schools in particular like to plume themselves on the idea that we’re imbuing all sorts of valuable critical thinking skills to our charges. The irony here is that, if we’re actually performing this function at all effectively (assume the necessary can openers for the purposes of argument), we cannot at the same time adopt caveat emptor as the appropriate attitude toward our students, even as a practical — let alone an ethical — matter.

Consider what it means, practically speaking, for a professor at an extremely expensive law school with terrible employment statistics to actually “enhance” the human capital that funds her paycheck. To put it bluntly, if a law professor at Drexel is doing her job, in terms of what the legal academy advertises that job to be, she is in many cases transforming her students into people who will come to understand that the doctrine of caveat emptor, as applied to law schools, has produced an institution in which they would never have enrolled in the first place, if their critical thinking skills had already been improved.

In other words, a law professor at a school like Drexel who successfully educates her students is performing the economic equivalent of mailing herself a letter bomb.

. . . MacK from comments on the special obligations of legal academics: (I should have noted in the original post that the lawyer-client relationship is the epitome of a fiduciary situation):

It would be helpful to point out that law schools exist in a special category – perhaps one to a degree also inhabited by medical schools – the law and regulation of lawyers specifically provided that lawyers have a very high level of fiduciary duty towards their clients and indeed certain third parties (as officers of the court for example.) Every law school has a mandatory course in legal ethics. Moreover, lawyers are covered by extraordinarily strict conflict of interest laws especially when it comes to handling and investing client money.

Yet, here you have organisations essentially of lawyers (most law professors are still legally trained and qualified) with what are effectively their clients – in the form of their students – and the administration of those law schools, and numerous professors ranging from the egregious Ms. McEvoy to the much more egregious Brian Leiter insisting that they should be allowed to behave in ways that would make a used car salesman – or indeed a pimp blush – and for the former would probably violate all sorts of consumer protection laws and consumer credit laws. You have deans of law schools engaging in chicanery vis-à-vis their students that would get a lawyer disbarred – and the state bars are not investigating? The ABA is silent – the very institution that required legal ethics courses for law students?

  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • Two quibbles:

    First, the idea of a book is not protected by being in full or copyrightable form. Copyright only protects the expression, not the idea itself. If I write up a detailed treatment of a novel in tangible form and your write a novel derived from it, I can get you but probably not if my expression is merely “wouldn’t it be cool to have a novel with a cat protagonist”.

    Second, I don’t think it’s all that easy to map moral servity of a breach of promise to whether the promise is friend based or business based. For example, often being late or missing meetings is worse in a business context (where there are professional standards). And, obviously the nature of the friendship matters a lot.

  • Orpho

    I completely agree with your conclusion but take exception to the idea that law students “who are only formally adults“. I completely agree that the student/teacher or student/educational institution relationship is one closer to agent than car dealer – and I think there are clear cases that you’ve done great work pointing out where law schools are directly misrepresenting their value and their stats.

    But let’s not infantalize law school students, if you don’t mind. The argument that 18 year-old undergrads are “only formally adults” has weight (they often make their school decisions/commitments at 17, among other things), but shouldn’t their 22 year old graduate counterparts finally be full adults? If not then, when?

    • Paul Campos

      Well it’s a matter of degree. Sociologically speaking, in this culture a lot of K-JDs are only very tenuously adults — they’ve never had a real job, or paid their own bills, they don’t actually understand the ramifications of non-dischargeable debt etc.

      Yes they’re not 18 but they’re not 35 either (not that there aren’t 35 year olds who are naive and immature, but we’re talking in generalities).

      • Orpho

        I think this extended childhood notion is one of the issues that divides people on how they look at exploitation etc in college – it’s certainly one I come up against when arguing in favor of college athletes’ right to be paid. (“They’re adults, they’re getting a free college education, blah blah I’m a stupid moron but they’re adults, dammit, adults!”)

        I have often thought that it’s possibly college itself that infantalizes its students, even if in loco parentis doesn’t fly anymore. Compared to a kid who’s kicked out of the house at 18 and gets a job laying asphalt or working a cash register (or, more 00s approach, selling weed and crashing on couches during the Great Recession), it’s definitely true that a 22 year old law school applicant has a lot to learn…

      • BoredJD

        There’s also some evidence that college students don’t come out of four years of college with much of an increase in basic cognitive abilities.

        And of course, you can’t teach “Debiasing Yourself 101.” Everyone’s affected by the optimism bias.

        But don’t take my word for it: https://twitter.com/LawLemmings

      • GoDeep

        I agree with Orpho. A 22yo is just not a kid. At 22 a lot of us graduated college and then took professional positions where we had obligations to the company and to clients to think thoroughly and soberly. But unlike the rest of us who joined the workforce, law students need ‘special’ handling? What about students who go on to graduate study in art, or music, or English, journalism, or the classics? Do they need to be told that they’re rolling the dice on their economic futures?

        • Orpho

          With all due internet respect, I am terrified that you agree (or think you agree) with me, and would urge you to read very carefully the first 2 sentences of my post, where I say that I completely agree with Campos’ conclusions about the duty of schools regarding their students, that they are closer to agents than car dealers.

          • GoDeep

            Yes, I had much the same reaction to Campos’ points around the obligations of “eleemosynary” institutions. FWIW more often than not I agree with Campos.

            Ultimately I just can’t get on board with this return to in loco parentis that this post is essentially suggesting. After 3-4yrs of college you really should have the cognitive maturity to do due diligence. Moreover by 21-22 your frontal lobe, which houses executive function and impulse control, has mostly completed development.

            From the ABA…

            “The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable….Indeed, age 21 or 22 would be closer to the ‘biological’ age of maturity.”

        • BoredJD

          How many 22 y/o law students have you met? How many of them do you think know what “negative amortization” means? Or what “PAYE” stands for?

          • GoDeep

            I’ve met quite a few 22yo law students BJD. But why would a JD student be treated any differently than a MBA, MD, M.Eng, or any other MA or MS student?

            • BoredJD

              MBA students, at least, come out with a few years of relevant work experience, and more often have employer-funded degrees.

              I’m not sure why the others would be “treated differently” other than the true amount of debt. None of them are particularly financially literate. But in terms of debt amounts, only law students and med students are presented with the opportunity to take out amounts that could literally ruin their financial futures. The average 22 year old is just not prepared to make that kind of decision.

        • Amanda in the South Bay

          Having an engineering degree doesn’t make a 22 year old InstaMature. Just look at the ranks of newly minted CS grads who take “professional positions with obligations to the company” in Silicon Valley.

          • N__B

            I wouldn’t trust 22-year-old me with the keys to a toy car.

    • Pat

      Providing adults with misleading statistics is also wrong.

      • Orpho

        I am clearly arguing for misleading statistics here. Good read.

        • Pat

          I was interrupted. I don’t think you have to make a case that 22 year olds need special treatment. I think that there should be a basic requirement for schools to provide information on how long, and how likely, graduates will be paying on their debt. It would be helpful for all ages.

    • Calming Influence

      I also bristled a bit with “students ‘who are only formally adults'”, but think it’s been answered well. But it brings up another issue that’s been in the back of my mind for a while: How “graduate school” and “law school” differ. I studied molecular bio as an undergrad, and genetics in graduate school. But graduate school wasn’t a separate campus; I mingled with and taught undergrads. My general (naive?) impression is that law schools tend to be physically (and thus socially/intellectually)separate from undergraduate campuses. If true, this might lead to law school students assimilating a skewed perspective real world career options.
      Am I way off base here?

    • Steven

      It’s probably more helpful to identify the specific areas in which 22 year olds lack relevant experience. If you are K-JD, this means you have never worked for a living and have never *felt* what it means to live on a salary of 30K, 60K, or 140K. You also have never made a large purchase, you have never felt what it means to assume 50K or 100K or 300K in debt.

      Perhaps more importantly, you haven’t been around long enough to develop the cynicism required to assume that law schools are manipulating their salary and employment statistics and that their version isn’t to be trusted. This comes with experience as an adult, which 22 year olds lack.

      22 year olds are perfectly smart and perfectly capable of making many types of decisions, but they are not well-positioned to make the decision as to how much debt a law school education is worth to them, especially when that debt is likely to exceed 100K and probably be the first or second most expensive purchase of their entire lives. If a greater duty of transparency can be forced on law schools, I think that could only be a good thing.

  • Paul Campos

    You’re right of course that you can’t copyright an idea. What I was trying to express was the point that once the idea has been turned into a book it has been transformed into an entity to which property rights attach (the book, not the idea).

    • Fair enough.

      Interestingly, the question of when an idea has been tangibly expressed and what sort of variable expression is needed to avoid being derivative is murky. You’ll see a lot of writers with a web presence saying that they won’t read your idea for fear of acquiring an influence that would taint their subsequent output.

      If you gave a detailed enough description of the book idea to your friend and could prove it, it might be actionable.

      • “Great minds think alike.” That’s a good excuse to file away for future reference, Doc.

    • MacK

      It is a tad more complex – see, e.g., Buchwald v. Paramount (1990) 1990 Cal. App. LEXIS 634

  • The Infosphere

    What’s most upsetting is the academy’s complete lack of concern for the already screwed. Steven Freedman admits that they advice given to the classes of 12 and 13 was “lousy.” But what are you guys going to do about it?

    The answer is nothing. Those checks have been cashed; those marks have been bled dry.

    • Barry

      And Professor McElroy states that student should be able to evaluate such claims, while not pointing out that the Dean in question has been caught repeatedly making claims which turned out not to be true. By her standards, 0L students with zero legal education *should* be able to spot the fact that the Deans’ comments are 100% bullsh*t. But she doesn’t, which means that she’s passively cooperating with this dishonesty.

      • Barry

        By her own stated standards, students who believe the Dean are substandard to students whom she’d admit to law school.

        I would say ‘paradox’, but there are other words which fit better.

  • LeeEsq

    Even if you apply the doctrine of caveat emptor to teacher-student relations, you can make a colorable argument, at least when it comes to law school, that what they are saying about the legal job market and whatever else is enough to count as an affirmative misrepresentation based on the facts on the ground.

    • MDrew


      (What up, Lee. Mike Drew here.)

  • fourmorewarfs

    Whatta they call those things, Sully Awards or whatever, that mis-compare vituperative language on the left with, like, advocacy for actual violence on the right, and then they use them to justify their both-sides-do-it-ism? Well, I’m kinda afraid that, at the end of this lucid and entertaining post, your choice phrasing kind of leaves you open to said treatment. Maybe you could change the final words from ‘letter bomb’ to ‘pink slip’? Otherwise, y’know: ‘Lefty Prof Advocates Lisa McElroy Get Blowed Up’

    • Calming Influence

      … a least “head on a stick” (less peripheral damage).

      • Calming Influence

        …or at least

        • Calming Influence

          Wouldn’t complain about an Edit feature here, by the by…

          • Hogan

            But someone would.

            • catclub

              How about an edit feature with its head on a stick?

  • Unemployed Northeastern

    Well, the Higher Education Act is being reauthorized this year. If ever there was a time to get some fiduciary teeth in the flesh of federal student loans, it would be now. Lobby your local congresspeople to do something – legislate a Gainful Employment rule for law schools (since nearly all law schools are non-profit and liberal, Republicans might actually go for it), or a penalty for colleges for any of their students/graduates/dropouts who default on their loans. Anything would be better than the current system, wherein the enormous moral hazard for law schools is not checked in any way.

    • BoredJD

      Yes. GRADPLUS caps or tuition caps tied to federal funding would also be a good idea. Law schools could not survive without federal loans, most of them would have to essentially tie tuition to the amount of monies available.

      • Unemployed Northeastern

        I have seen several proposals to eliminate GradPLUS loans. Unfortunately, all have been a backdoor to kickstart the private lending market,* and none of them have been a means to control the costs of grad school.

        In all of the time I have spent closely reading the higher ed sites and blogs, I have never, ever seen any serious proposal to cap tuition in any manner of higher education institution. It’s such a nonstarter that it isn’t even discussed (meanwhile, UK students set London on fire whenever it is proposed to lift the tuition ceiling from 9000 pounds to 11000 pounds).

        *To be sure, $7.2 billion in private student loans were given out last year, most of which was to graduate students, particularly those in MBA programs, so private lending isn’t dead, just semi-moribund. But SLABS have and continue to outperform the other three major asset-backed classes since 2008 (mortgages, car loans, credit cards; this is the power of nondischargeable loans, people), and SLM et al are desperate to be able to sell more of them to the world’s pension funds.

        A year ago, Jason Delisle (of Thomas Petri and the New America Foundation) floated a proposal for the Gates Foundation to eliminate GradPLUS. That didn’t get anywhere, so now he’s after PSLF (again). I think perhaps he has a bit of affluenza himself, somewhat like the prawf we’ve been discussing for the last day. I mean, here’s a guy who went to a moderately selective, very expensive liberal arts college in the Midwest (Lawrence), and then picked up a $100k (sticker) Masters in Public Policy from either GW or Georgetown – I forget which offhand – and has spent his young adult life in the public sector. That he wants to get rid of GradPLUS and especially PSLF speaks volumes about his socioeconomic upbringing, I think.

        • Pat

          It’d be nice if schools had to show use of tuition; i.e. how much of your money goes to support instructor salaries, property upkeep, etc.

          • Pat

            They should also have to list instructors for the courses along with their experience levels online, so that parents and teachers can search on it.

  • Linnaeus

    One question that comes to mind is what effect would a fiduciary responsibility on the part of the university toward its students have on its curriculum?

    • Slocum

      Hmmm. Courts tend to follow the business judgment rule in dealing with shareholder complaints about management, on the basis that courts messing around in business operations is bound to be worse than the problem its meant to solve and that managers are the ‘experts’. One would hope the same reasoning would be applied here. (Non-interference except for the most clear and obvious cases.)

  • Evan

    McElroy’s blase attitude towards the real damage her school has done to the students who fund her globetrotting lifestyle is sickening and deplorable.

  • GoDeep

    Provocative piece. You had me when you said that the university occupies a privileged position and, hence, has special obligations. But then you lost me when you said that 22yo adults aren’t qualified to decide by themselves to go to law school (leaving aside that a lot of 18-22yo go into the military either directly out of high school or after 4yrs of college).

    In many respects what you’re suggesting is that universities and even law schools need to go back to in loco parentis, and I just can’t get on board with that.

    • Calming Influence

      “…universities and even law schools…”

      I go back to my comment above: can some of the problem be assigned to this distinction? (The isolation of law students from university campuses.)

      • GoDeep

        That’s not unusual. My MBA program was much more isolated from the rest of campus than the JD program was, but I thought long and hard abt whether or not a MBA represented a real ROI. The 2nd week of the program our 1st year Econ prof burst our bubble when he told us that the evidence suggested that a MBA had a poor ROI. I certainly have friends who never went to B-school who make as much or more than I do. So, yeah. (That said, I only know of 1 person in my class who actually regrets getting a MBA).

  • Two points: first, the obvious fiduciary relationship is between the faculty member and the school. There is an inherent conflict in the situation you describe if you assume a fiduciary relationship between faculty and student.
    Second, as between the institution and the student there is absolutely an ongoing relationship, in the form of alumni contributions, networking and other, perhaps more intangible benefits that the school promotes which absolutely would support an argument that a fiduciary duty exists.

    • Former Editor

      Can you further explain your first point? I only see an inherent conflict there if you assume that a school’s interests are always adverse to the student’s interests.

      That situation may be the case a lot of the time but it doesn’t have to be and whether or not it ever should be is, I think, part of the conversation.

  • BoredJD

    What pisses me off about a lot of these law professors is that they don’t have to speculate about what law students think. They know law students. They can ask them, talk to them, and try to figure out how much they know going in. Why not give a short quiz, asking students if they are aware of basic financial concepts, salary statistics, and information about the federal loan program?

    The truth is that they just don’t really care. That job’s been outsourced to an army of admins.

  • BH

    The average age of people who go to law school is 24. This is not just a problem about age.

  • Whiskers

    What about the fact that most law school professors and administrators are lawyers? While there isn’t an attorney-client relationship between the professors and the students, a lawyer cannot wear a car salesman hat while teaching the student what it means to be a lawyer with fiduciary duties to clients.

    • Former Editor

      What makes you think many professors consider themselves to be attorneys (or even are admitted to practice)?

      • Whiskers

        Personal experience of attending law school.

        • Guest

          Yes. The references to “we as lawyers” or “our profession” don’t stop just because a professor is no longer licensed to practice anywhere.

          • Former Editor

            Maybe things are different in places other than where I went to law school, but most of the (bad) faculty I knew viewed themselves as academics with legal training. Sure, you might get the occasional “our profession” comment if they were trying to convince you of something, but it was obviously not internalized in the majority of cases.

  • MacK

    It would be helpful to point out that law schools exist in a special category – perhaps one to a degree also inhabited by medical schools – the law and regulation of lawyers specifically provided that lawyers have a very high level of fiduciary duty towards their clients and indeed certain third parties (as officers of the court for example.) Every law school has a mandatory course in legal ethics. Moreover, lawyers are covered by extraordinarily strict conflict of interest laws especially when it comes to handling and investing client money.

    Yet, here you have organisations essentially of lawyers (most law professors are still legally trained and qualified) with what are effectively their clients – in the form of their students – and the administration of those law schools, and numerous professors ranging from the egregious Ms. McEvoy to the much more egregious Brian Leiter insisting that they should be allowed to behave in ways that would make a used car salesman – or indeed a pimp blush – and for the former would probably violate all sorts of consumer protection laws and consumer credit laws. You have deans of law schools engaging in chicanery vis-à-vis their students that would get a lawyer disbarred – and the state bars are not investigating? The ABA is silent – the very institution that required legal ethics courses for law students?

    • T.E. Shaw

      It should be noted that the AMA keeps a much tighter leash on the med schools. The comparison with the ABA is embarrassing.

      • MacK


        • BH

          Of course law professors and administrators have responsibilities regarding their students, but they are not “effectively” in a lawyer-client relationship with their students.

          • MacK

            BH – “law professors and administrators have responsibilities regarding their students, but they are not “effectively” in a lawyer-client relationship with their students”

            Could you explain why not….?

            • kindasorta

              Because a client can get a state bar association to fine or disbar an attorney for the shit that law professors do to students with impunity.

            • BH

              Because they are in a professor-student relationship that calls forth a set of responsibilities of its own. There is no expectation ( on the students’ part or on professors’ part ) that professors represent students or perform the function of legal counsel to students, although there are instances when professors have served as lawyers to students. The duties of confidentiality, loyalty, etc. do not attach. You know all of this. That is why you used the word “effectively” , just as the word “constructive” is used to pretend something is true when it is not true in order to reach a favored result or conclusion. We can talk about the responsibilities that those who run law schools have without saying they are lawyers to the students’ client.

              • MacK

                And I disagree – read a few general advice items on the the interpipes and there will be a standard disclaimer that the advice does not create an attorney client relationship. Law professors are also lawyers – which makes them different from other professors (something they remember when justifying their salaries) and they are seeking to train members of a profession subject to ethics rules. They in fact have a confidential relationship with their students – guaranteed by federal law (BH, you are a law professor presumably and should know that).

                Moreover, the key issue – and you should know this – is the perception of the putative client – do they reasonably belied that a relationship has been formed that includes “duties of of confidentiality, loyalty, etc….” To which my answer is “you bet your bippy” they do.

                It’s time to start disbarring a few deans, etc.

                • BH

                  We disagree. The duty of confidentiality that professors have to students does not grow out of an attorney-client relationship, and is not co-extensive with it. Moreover, subjecting deans/professors to sanctions does not require them to be designated as students’ lawyers.

                • MacK

                  BH – in most instances I have heard of, the burden was on the lawyer to show no attorney-client relationship. Once you show that a relationship could be perceived as giving rise to a duty the relationship the burden shifts. So you could disagree, bit lose because the perception is arguably reasonable – unless it seems you are a law school dean or professor.

                • BH

                  @Mack–There is no way to reply to your last comment, but you are changing the circumstances to try to win this point at all cost. You have gone from making a blanket statement that all law professors are “effectively” lawyers to their students, to talking about a situation where a law professor is doing something that would indicate to a student that he/she is acting as the student’s lawyer.

                • BH

                  Actually, the post popped up at the bottom. Great.

                • BH


                • I really don’t get how exactly anyone could conclude that there is no special relationship between law professors and their students, when law professors hold themselves out as experts in legal practice and give advice on the subject. Even if you want to argue that the relationship is not an attorney-client one (something that can be construed very broadly to include, say, advice given at a party) you still have the basic fact that students are paying to receive advice from experts who can forsee that giving bad advice will be detrimental to their students.

                  Consider the now burgeoning area of personal trainer negligence as an example of where negligence of trainers causing harm to their trainees. It would be strange if more is to be expected of a Jazzersize instructor than of a law professor, wouldn’t it?

              • ichininosan

                I agree.

                “We can talk about the responsibilities that those who run law schools.” I think we should talk about the responsibilities of those who run law schools and the responsibilities of those who teach in those schools. These are tax-exempt institutions (for the most part). What duties do they owe the taxpayer. I have a few ideas on this, the first of which is that they need to operate ethically.

                • BH

                  Yes, that is what we are talking about–not the motion that all the professors and administrators at a school are the lawyers for all of their students by virtue of the students’ enrollment in the school.

  • T.E. Shaw

    Can we stop pretending for a minute that law applicants made bad decisions just because they’re young and naive? In many respects, law school applicants have been misled precisely because they bought into the overly-optimistic notions of law as a professional degree with a comparable amount of job security and economic return as an M.D. Those notions exist because of Baby Boomers who have failed to recognize the way the labor market has changed or just failed to educate themselves before giving advice to their children, students, or mentees.

    Before, during, and after law school, I have had to fight an uphill battle to convince my parents that a J.D. is not a license to print money. Even after all that has happened, they (my father in particular) think a J.D. is just the most flexible and valuable credential ever. The only reason I didn’t end up deeply in debt and with marginal job prospects is that I suspected my elders talking out of their asses from the word “go.” I therefore took a really hard look at some less publicized but more reliable measures (like NLJ 250 hiring stats)and negotiated a 50% increase in my scholarship.

    Now, you might say that adults should never listen to their family, friends, or older acquaintances within the field of law when making decisions about whether and where to attend law school. But in reality, the vast majority of 20-somethings are either actively seeking such advice or feeling pressure to take that advice. And in recent times, the quality of advice vis-a-vis law school has been atrocious. Heck, even today, the average parent/college professor/established lawyer isn’t likely to give a prospective applicant a good picture of the risks involved. There’s still a yawning gap between the popular perception of a law degree and the popular perception of a degree in English or the Classics. And to make things worse, we still have slimy apologists within legal academia claiming the concerns are unwarranted.

    Here’s a question: is there any other degree or field where the popular perception of Returns on Investment is so off? Liberal arts degrees are often treated with suspicion. M.D.s are still lauded, but the gap between perception and reality is so great 10-15 years out. MBAs are probably overrated, but there is greater flexibility and far less debt involved. Only J.D. applicants are required to tune out every well-meaning person in their lives and take a deep dive into the underlying numbers of the profession. That might be “the adult” thing to do, but its a requirement that most 20-somethings going into other fields can simply ignore.

    • T.E. Shaw

      correction: the gap for M.D.’s *isn’t so great* after residency

      • Calming Influence

        I remember a study in the mid-90s for M.D.s. They were asked, I think it was roughly 5 years after residency, “would you do it again if you had the choice?” Almost 50% said no. I wonder what a similar study on recent J.D. grads would reveal?

        • T.E. Shaw

          The more relevant question for comparison would have been, “Has an M.D. given you a sufficient measure of financial gain and job security?” For purposes of this discussion, I don’t give a damn whether M.D.’s think their hours are too long or their personal lives are a mess. The defining question for a “professional school” should be whether matriculation and graduation gives you an adequate chance to make a living in that profession.

          • Pat

            Agreed, but I don’t think it should be limited to “professional schools.” And you need decent statistics on the matter.

    • BoredJD

      This. The “law students are rational actor bots who can ignore parents/friends/teachers/society” is played out by now.

      • T.E. Shaw

        I love the way the issue is sometimes phrased as “students being swayed by society.” As if they’re getting their ideas from Ally McBeal, rather than influential people in their personal lives. It’s a neat way for Baby Boomers to wash their hands of the next generation’s problems.

      • Srsly Dad Y

        I don’t even understand the due diligence argument. Up until very recent years, looking at publicly available “data” from law schools and seeking the advice of knowledgeable elders only made the scam more convincing. Kids should have suspected everyone was lying?

      • Barry

        “This. The “law students are rational actor bots who can ignore parents/friends/teachers/society” is played out by now.”

        The dishonesty is that it’s not just that; prospective law students are expected to ignore the messages given out by law schools.

    • RSP

      I see this all the time both. As a first generation college student, I certainly came from an environment that saw law as a hugely lucrative career (though economic gains have never been a big driving factor in careers for me). My family, all high school educated at best, just thought I was going to be rich. Luckily I got enough information at the last minute that I only choose a law school that gave me a full tuition scholarship and I went only then because the risk was low, though it was a bad school (and only later did it dawn on me that I was being supported by people paying the full freight who were too ignorant to realize it was a bad bet).

      Now as a college professor (because the practice of law was mind numbingly boring to me) I see it all the time from my mostly first generation college students. They are amazed when I tell them that average salaries for those who do get jobs come no where close to the $125,000 they expected and is actually less than half that. Hell, most of them are shocked to learn that my salary (which was a whopping $48,000 my first year) isn’t higher since I went through so much post-graduate training.

      As for other degrees, I think there is growing realization that many have unrealistic expectations of PhDs (at least in humanities and social sciences to a degree) but nowhere near the delusions of a JD. But I knew a lot of grad students who were expecting $80,000 plus academic jobs their first only to be shocked to learn some real figures on both salaries and actual hiring. The fact that most grad programs don’t publicize this information is a problem, especially with the growing knowledge of how much debt PhD students are starting to take on unwisely (and I say that as a person who took on unwise debt). And again many people are shocked at how little I make (relative to what they expect) and can’t see why I do it, especially when they learn that I don’t work only a 15 hour week 9 months a year, that in fact I tend to work 60+ hours 6-7 days a week and only bring it closer to 40 during the summers. Trying to explain the value of (1) loving what you do and (2) having a schedule mostly at your discretion doesn’t seem to impress people who only see the $50,000 salary (that they see as too low, it’s higher than any salary my family ever lived off).

      • Pat

        This is all true, but in a real sense you also have to figure in the impact of decades of stagnant wages. Thirty years ago, that $50,000 salary was not an unrealistic aspiration for twenty-two year old engineers coming out of good technical colleges, and $25,000 was pretty much the basement. Your $50,000 salary today is the equivalent to that $25,000 thirty years ago. It’s good that you love what you do.

      • Joe Bob

        Grad students should be informed of the poverty-level wages being paid to the adjuncts who teach some of their classes. I was certainly ignorant of it when I was a student. Knowing that your instructors are being paid the equivalent of about $8/hour would be a real eye-opener for both what you are paying for tuition and what your job prospects are.

  • Nancy

    I don’t think that law schools have a fiduciary duty. However they have a duty of truthfulness which most law schools have broken over the last few years and many are still breaking.

    And law schools have a special duty of being role models. Part of law schools is turning out ethical lawyers. When the law schools lie and cheat they show their students that they can lie and cheat as lawyers. No wonder the public has no respect for the legal profession.

  • Calming Influence

    I assumed that my graduate school was responsible for providing me with a quality education. I never assumed that my graduate school was responsible for how I made use of it.

    • Calming Influence

      Of course, rather than paying tuition I was paid a stipend, which I felt was only fair compensation for the calculus and physics I endured as an undergrad. But these are the choices you have to make as a 22 year old.

      • Pat

        For which you can thank the relevant federal agency (NSF, NIH) which funded the lab where you did your work. It wasn’t free, dude.

    • Orpho

      I think a lot of this boils down to what a quality education entails, particularly the extent to which it includes job training or marketable skills (and when it’s advertised as such).

      If you went to a professional program in welding that ended in a welding certificate from the school but that left you completely unprepared to acquire professional welding certification, or if welding certification was not what was needed to get a job in welding, I think you’d be right to question the quality of the welding education. Perhaps you’d even question the welding program’s basic duty to its students.

      • Calming Influence

        Good point, and an interesting (and funny) example, as I would guess that even the shitiest and most expensive welding program has an ROI that is orders of magnitude greater than a JD or MD. ;-)

        • Orpho

          Being a professional welder also _really_ helps your immigration prospects to the US, Canada, and most EU nations. Trustory.

  • MacK

    There is another issue which perhaps should also have a bearing on this discussion – universities, colleges and law schools are in effect in the loan origination business through their financial aid offices. It is the university/college that in most instances arranges the loans that many if not most US students are using to pay the cost of attendance. Some schools have engaged in egregious self-dealing – Drexel for example was one of several universities sued by the New York attorney general for arranging exclusive arrangements with a lender that kicked back 75 basis points (0.75%) to the university in return for delivering the student.

    Now I have had a little legal dealing with this issue – and along the way I ran into an odd issue called “bad faith lending.” The particular situation involved a bank that provided loans for members of a sort of time share syndicate for a very prestigious landmark hotel; those who bought in to the tune of hundreds of thousands per unit did it with loans from the bank. The trouble was that the bank had in fact lent purchase money for less than then amount of the new syndicate loan to the previous owner – who was in default because revenue was too low. When inevitably the syndicate got into trouble and found out – there was a massive law suit because the bank had known the business was a ‘dog’ at the valuation – and inter alia because the syndicate loans had paid off the previous mortgage.

    In a number of states there have been court decisions that suggest that a lender or loan originator has a duty to deal in good faith with the borrower. I have long wondered about the role of law schools as loan originators and indeed the main beneficiary of the loan, and their touting of the value of a law degree and presentation of deceptive data. From early in the debate over law schools this has been an issue for me, that law schools are in effect marketing through their admission deans – and originating loans for the suspect product so many market.

    • Gaius

      That’s a nice analogy Mack. I also handle commercial litigation involving predatory lending based on fraudulent or inflated appraisals (employment statistics and law degree), due to pressure of loan originators (law schools).

      The real value of the property (law degree and employment statistics) ends up less than the fraudulent appraisal of the property (law degree and employment statistics).

      • MacK

        Done any time-share cases. Can you give a few examples?

        • Gaius

          No time share cases.

          Loan origination appraisal for the bank comes in at 200k. Borrower takes out 200k loan plus fees, but property is actually only worth 150k.

      • JD debt slave

        Here’s a pressure sales tactic law schools like to use: call someone in late spring and tell them “you got off the wait list.” Usually the school is a bit of a reach for the applicant – maybe getting into Cornell with a 166 LSAT or something like that. But the Admissions Dean will tell the student he or she has 24 hours to respond – the classic “exploding offer.”

        • BoredJD

          Don’t forget students who have been told the school is out of scholly money, deposited, than found out that other students were receiving money well after them.

          In fact the entire notion of a “scholarship” is in and of itself misleading, designed to draw upon the idea that a scholarship is a set award that you are thankful to get, not an opening bid in a negotiation process.

          • Xenos

            I got caught by the old trick where I was given scholarship for the first year, told I needed to keep in the top 1/3 of my class to keep it, and found that awfully difficult given the steep grading curve in contracts and property in my section, which is where most of the students given this offer somehow ended up.

            Somehow or other only about 1/6 of the students given that offer managed to meet the requirement to get the scholarship renewed after the first year.

            Caveat emptor, indeed.

  • Anon

    Left wing professors are legally free to eat their left wing students’ futures. And the federal government subsidizes this left wing cannibalism. Such betrayal.

    Kudos to the few professors who try to stop the madness, if only there were more like you to prevent the immense human tragedies of the law-school-scammed.

    • Jake

      One of the interesting things about this subject is everyone has carte blanche to trot out their favorite political hobby horse.

      Conservatives have free reign to point out that government involvement in no-risk student lending has increased tuition in some cases. Fair point.

      Liberals argue, with plenty of justification, that the system has a valid purpose but has been hijacked by powerful interests and is in need of reform, not outright demolition.

      • Srsly Dad Y

        Just like law school classes.

  • NewishLawyer

    I suppose this gets down to what is the point and purpose of an education. Is it to become a critical thinker, writer, develop a base of knowledge, and love and appreciation of the world? Or is it to enter to gain skills that are economically valuable and will help students stay in the comfortably middle class and above.

    What if a student as a passion/calling that they know is low-paid? I think most people enter MFA programs for more training in their art but also possibly because it is often a terminal degree and means that they can teach at the university level. How about if someone is going for a public policy, public admin, social work, or theology degree?

    Most people probably go to law school for financial security though.

    I suspect that extending this kind of fiduciary duty to the undergrad relm will cause a mass shutting of arts and humanities programs and our educational system will become more relentlessly practical and utilitarian. Theoreotical science might also suffer.

    • Gaius

      Why should you have to take on massive debt and enrich others to do something you are passionate about?

      • NewishLawyer

        I am not of artists are born with innate talent school of thought. Artists need training and have always received training. We have never had a world where artists did not receive training. Michaelangelo was trained in the art schools of his day, there have always been conservatories for acting, music, and dance, etc.

        There is also a debate about how much of freedom is the right to make irrational and possibly financially unwise decisions and suffer the consequences. I believe in a strong social safety net, lowering tuition, universal healthcare, unemployment insurance, social security, real pensions (as opposed to 401ks), etc.

        I would love for higher ed to get back to much lower levels of tuition and become more affordable again. Accommodations would probably need to be more spartan but all the solutions seem to go towards having the unintended side effect of making American Higher Ed more geared towards business, pre-med, and STEM.

      • NewishLawyer

        I am also not of the self-study/autodidact school of thought when it comes to the humanities.

      • Linnaeus

        You shouldn’t. But if we’re going to be talking about a school’s fiduciary obligation to its students, we have to deal with the obvious question of what metrics we will use to determine if a school is fulfilling that obligation.

    • Pooh

      Law school is far more about training than education.

    • Emily

      Re: “help students stay in the comfortably middle class and above” – perhaps this is getting harder because there is a concerted and ongoing effort to erode the comfortable middle class. They have come for the stable blue collar manufacturing jobs, they are coming for the doctors, lawyers, professors, teachers, gov workers. This is headed toward the end of a “comfortable middle class” and has all the individual desperation of – where are you going to fall? Plutocrat or economically insecure?

  • Jake

    When it suits their interests, the law schools hold themselves out as bastions of ethics. Of course the schools have their students’ best interests at heart. Of course.

    And when it suits their interests, the law schools behave as one would expect a profit-oriented corporation to behave. Of course the students should due their due diligence, and know what they’re getting into. Of course.

    The only thing that remains constant is that the law schools are motivated solely by self-interest. The tax exemptions, the public good will that comes with the “non-profit” tag, it’s all a relic of an earlier time when the schools (and academia at large) had a genuine public purpose. Now, they’re just another thing to be wary of in the larger winner-take-all economic system that we have created for ourselves in the last 30 years.

    • Anonymous

      Lemmings = Goldman Sachs Muppets

  • JD debt slave

    @MacK at 11:39: the loan origination legal theory is excellent with regard to law school marketing practices. Students are nothing more than student loan conduits. They are pass-through entities that are used to pass money from the lender to the law school at a profitable rate of return. And the government and its ineffectual attorney generals stand by, slack jawed, as this scheme continues to perpetuate.

    The broader economy is beginning to feel the economic slowdown effects of the greedy and, in my opinion, criminal tactics of the education industry. Fewer homes are being bought. Fewer families are being started. Fewer marriages are happening. The law school industry can blame the macroeconomy all it wants but the fact remains law school graduates are being uniquely exploited compared with other academic pursuits. The debt levels, the misleading job data, etc. – it’s all special to law schools.

    Whenever I peruse a law school website now, it’s very interesting that each site now has a link entitled “ABA required disclosure” or something similar. This is where the law schools provide employment and job statistics mandated by the ABA. I suppose the ABA felt like it had to do something, given the outcry by the tens of thousands who have had their lives destroyed by law school debt. This “ABA required disclosure” wasn’t there when I was looking at law schools in 2007. I think it’s just another tactic by the law school industry to give applicants a false sense of security – as if there is some governing body exerting adequate oversight over the industry so that students can feel confident the reported job statistics are accurate. Of course, when you look at the disclaimers for the ABA job data, you will quickly discover that the ABA basically relies on the honor system for law schools to report accurate data.

    The critics of Campos think that 22 to 24-year-olds should perform investment bank-level due diligence on the law school industry. It’s hard to appreciate from the outset how corrupt the entire industry is. As Campos rightfully notes, educational institutions are ascribed a high level of societal trust and prestige. But when they screw over students and destroy lives, people like Lisa McElroy, who basks in the false prestige and handsome compensation of being a law professor at a thoroughly unremarkable institution, believe the doctrine of caveat emptor must apply. On the one hand, the law schools expect rarefied treatment by society in the form of tax breaks, special lobbying rules (look up the federal lobbying rules that only apply to colleges and universities sponsoring multi-day travel for Members of Congress), the public’s esteem, and prestige, but on the other hand, when they engage in deceitful, underhanded, and deceptive marketing, they are to be treated as used car dealers. “Sorry you were a sucker for believing what we told you about jobs!” If law schools were selling securities (law school is marketed as an “investment” after all), they could easily be prosecuted for providing materially misleading statements.

    I think that we can crowdsource a better and more effective litigation strategy than that which was pursued against Thomas Jefferson and the like. A class of people who relied on job statistics offered by the law school and the U.S. News may be too narrow. The goal here is to reach the discovery phase so we can find out exactly what the law schools know about the job situation and the different face they put on for applicants. I wouldn’t be the least surprised if there are thousands of emails like that by Henry Blodget, whose Merrill Lynch e-mails provided skeptical and negative analysis about stocks which “allegedly” conflicted with what was publicly offered by Merrill. I also wouldn’t be the least surprised if the “ABA required disclosures” are inaccurate by 10-20%. The law schools are working on the honor system and they’ve already demonstrated they’re unable to abide by morals or ethics.

    Are we supposed to believe a law school admissions dean decides he doesn’t like money and decides to provide accurate and precise employment data? Or is it more likely that the admissions dean decides to fudge some numbers here and there (e.g. someone unemployed becomes “unknown”, or someone working at a firm with 10 lawyers becomes someone working at a firm with 11)?

    24-year-olds are adults, certainly. But that doesn’t mean the law schools aren’t predatory and don’t engage in marketing tactics that, while perhaps not illegal, are entirely immoral and deceptive. When an entire law school industry publishes identical employment numbers (90% employed 9 months after graduation with a $160,000 median salary), is a 24-year-old insane for believing these numbers? Are the critics of Campos claiming that law schools can say whatever they want, exploit their special relationship in society and their special relationship with students, lie through their teeth about jobs and there’s no cause of action there?

    • MacK

      Any time you see the language “required disclosure” it is something that the discloser would rather not disclose in language much clearer than it wants.

    • MacK

      Can I critique a little:

      when they engage in deceitful, underhanded, and deceptive marketing, they are to be treated as used car dealers.

      Used car dealers have tougher consumer protection laws and truth in lending rules than apply to colleges, universities and law schools – and many a dean would be in jail hand he or she been selling cars, or broke.

      • Unemployed Northeastern

        “and many a dean would be in jail hand he or she been selling cars, or broke.”

        Obligatory mention of “Law Deans in Jail” by Emory Law prawfs Morgan Cloud and George Shepherd, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1990746

        • MacK

          I was looking for that – thanks.

    • Pat

      I think on the political side, it would be useful to agitate to restore bankruptcy protection to student and homeowner debt. It’s a law; it can be changed.

  • Curious

    So I’ve been curious about something for a while now. I’ve been a lawyer for a bit more than a decade. My resume is decent–good grades from a top five school, AIII clerkship in a major market, legal career basically spent going back and forth between big firms and government. I’m not a rainmaker, but I have a decent book for my age–low-to-mid six figures. Almost all of that is from referrals from other clients.

    Anyway, looking at my law school classmates, people seem to be doing fine. Some have made partner; some have gone in house; some have gone government; and some (like me) have done a couple of those. And it’s not an age cohort thing. My judge has a fairly active alumni network, and the more recent grads seem to be doing fine as well.

    Is this just a selection bias phenomenon? I.e., am I just hearing from the successful people, and the less successful ones have dropped off the radar? Or is there something else going on?

    • Jake

      My guess is that you are a graduate of one of the elite schools.

      If you’re a graduate of a lower-tier school, your likeness has been used in a vast array of promotional materials to show prospective students “anything is possible” for a graduate of this school.

      In short, yes, you suffer from selection bias, and no, your experiences are not typical of the typical law school graduate.

    • JD debt slave

      Selection bias. You probably only keep in touch with those who did well. Many people who had poor law school outcomes just fall off the face of the planet. I can’t find a substantial percentage of my law school friends on either Facebook or LinkedIn. They delete their profiles and go underground. For someone who lands BigLaw, AIII clerkship, etc. – there’s not reason not to continue your sociable life both online and offline. There are so many people out there that just pretend like law school never happened. It’s an adaptation response.

      But yes, it’s selection bias. The employment stats reported by the law schools are atrocious. If you miss the BigLaw boat during your 2L summer, you’re screwed these days. These same employment stats are reported by the schools on the honor system so we can rest assured that we should take the stats with more than a few grains of salt.

    • NewishLawyer

      I would also say it is when you graduated. Let’s say you finished law school in 2002-2003 if you have been a lawyer for a bit more than a decade.

      This is was pre-law school bubble or just at the start of the bubble. My brother graduated from a Tier III law school in 2005, also in the early days of the Bubble. His classmates are doing fine, better than people from my (formerly) Tier II law school who graduated in 2011. We are all over the map.

    • T.E. Shaw

      This is a joke, right? NYU or Columbia law with an Article III clerkship is supposed to be a “decent” resume? That alone puts you in the top 1% of graduates. There might be some selection bias, but if you can’t figure out why the experiences of you and your classmates (c/o Before-everything-went-to-hell) don’t line up with the general consensus, you’re beyond our help.

      • BoredJD

        Believe me, there are people at my similarly ranked law school who would consider it mediocre (no COA clerkship! off with her head!). That’s the type of background it appears Professor McElroy possesses, and that’s why she, like many other members of the legal academy are so goddamn out of touch.

    • williamockham

      The “top five” law schools (Yale, Harvard, Stanford, Chicago and Columbia I presume) graduate less than 2,000 students each year. The other 195 law schools graduate 45,000 to 50,000 putting our questioner in the upper 4%. Being an Article III clerk and a BigLaw alumni further segment you. Your experiences and database are highly atypical. Your wealth and privilege cocoon you from the common experience.

  • Sorry, don’t know this – what’s the role of the regional accreditors in law school education? I only know Middle States in detail, but they say quite clearly that schools have to be honest in representing financial information to students.

    • Hogan

      Law school accreditation is done only by the ABA. There’s an initial application process, and then periodic reviews/inspections.

  • The interesting development is that law schools (and universities used to view students as an investment that they would draw benefits from via donations after they had ripened. It was not necessary that every student donate, but that the most successful do so in large amounts.

    Today, students are viewed as customers, to be charged top dollar to create an income stream.

    IEHO, Campos has missed this entirely.

  • MacK

    Today, students are viewed as customers, to be charged top dollar to create an income stream

    I think “marks” is a better term than customer:

    “sucker”. A mark is always the short end of a joke or scam, and is never let in on whats going on. A mark is usually being cheated out of money. It’s origin is from old English traveling carnivals from the late 1800s to early 1900s, where workers would refer to people paying to see thier made up shows and games a “mark”. not from urban gangsters like most people think. Mark is also the origin to the term “smark” or “smart mark” which is a person who know’s he/she is being scamed

    From the urban dictionary.

  • Former Kool-Aid Drinker

    The entire law school situation enrages me. I’m a ’99 graduate. When I started law school (and continuing until a few years ago, when I discovered exactly how un-versatile my JD actually is), it never, ever occurred to me that my law school–or any law school–would do anything that was not in the best interest of its students, or the profession as a whole. After all: weren’t law schools the gatekeeper to the noble legal profession? Didn’t they talk constantly about “ethics” and professionalism? Wasn’t the American Bar Association, for Peter’s sake, actively involved in overseeing legal education? Didn’t law professors have close ties with the actual practitioners?

    Law schools (and “legal academics,” LOL) hold themselves out as the keepers of the flame. Damn right they have a fiduciary duty to their students.

    The lack of voices from law professors (other than the handful that includes Campos) is absolutely astonishing to me. This Lisa McElroy professor, and all those like her, are unforgivably clueless. For shame. (And good luck to them out there in the job market when their deplorable law schools start shutting down/laying off more faculty–hard to imagine a less employable bunch.)

    • BoredJD

      Even if law schools don’t affirmatively encourage the belief among students that they are acting in a fiduciary capacity, they hardly lift a finger to correct it even after the promissory notes are signed and the butts are in the seats. That’s why comments like “well, just move to North Dakota and open up a solo practice (just sell some stock your parents gave you for a bus ticket)” it sounds so bizarre and out of touch.

  • mike in dc

    I think “caveat emptor” is belied by the fact that universities have these things called “career development offices”, “fall recruiting/OCI”, etc. If finding gainful employment is solely the responsibility of the student, why are they facilitating these efforts to ANY extent? Why boast about placement and what firms come to your OCI, if you bear no responsibility? They are and have been making misrepresentations, upon which applicants/entrants have relied, to the detriment of those entrants’ financial interests. If only there were a civil tort that applied to that sort of thing…

  • ichininosan

    Do universities have a fiduciary obligation toward their students? No.
    Should they? Probably not.

    Fiduciary duties are not the opposite of caveat emptor, and probably would not remedy a situation where caveat emptor is the problem. For example, if a car dealer were to act as the fiduciary of a buyer, they would essentially be the buyer’s agent, and no longer a car dealer. Fiduciary obligations establish a relationship of trust in a variety of contexts where trust is needed or expected. To use the attorney-client example, if I am an attorney who represents a shipping company and the company decides to avoid tort liability by flying a flag of convenience on its ships from a jurisdiction where it will be judgment proof (say, Micronesia), I still owe a fiduciary duty to maintain the confidences of that company even if I find that practice, though legal, to be repugnant.

    Universities are tax-exempt institutions. Aside from the standard consumer laws, which protect consumers (students, in this context), universities have a societal obligation that derives from their tax-exempt status. It is a (non-legal) duty that flows from the premise that the taxpayers will fund government obligations and tax-exempt institutions will be excused from doing so insofar as they provide important societal goods. In the same way, a tax-exempt organization that operates a soup kitchen or a battered women’s shelter provides societal goods. To society, these organizations owe a duty of trust, that they will provide those societal goods in an ethical manner.

    • ichininosan

      What is ethical in this context may be difficult to define with precision. But in the context of the law schools, clear ethical lines have been crossed. Knowingly / recklessly inducing students to enrol with knowledge / wilful blindness that they would in most cases take out debt that they would have little chance to repay — which characterizes the practices at the majority of law schools — fails even the most basic ethical standard. We don’t need a fiduciary relationship to condemn this conduct.

  • MacK

    Steve Freedman has decided to continue his carnival barking for law school applications at the Faculty Lounge – but as has become traditional over there is selectively editing the comment thread in a way that distorts its meaning – could Paul Campos start a response thread at LGM so that this approach fails….

  • Municipal D1

    This is a great series of posts. Here are three thoughts:

    (1.) The law schools should have to disclose the likelihood of keeping “merit” scholarships, especially if they’re section stacking. Otherwise it could arguably be a deceptive practice.

    (2.) The law schools should be more transparent with their discounting, and not be able to claim that they are providing “generous support” for their students. If 95% percent of the students are receiving a 15% scholarship, that’s not scholarship or financial aid, that’s just discounting an artificially inflated price.

    (3.) Conversely, the poor students paying full sticker should be made aware of that.

    (4.) Finally, this has been brought up, but the law schools are going to demolish their alumni relationships. The most thankless job at any Law School, other than OCS director, is going to be director of Alumni Relations. Law Schools have traditionally only focused on the top 30-40%, but the classes from 2008 on are going to be lost years.

  • Tom Tom

    Schools should be liable for what means they use to get students to attend.

    So if law schools are using employment statistics to get students to attend, then those schools should be held liable for their own statements.

It is main inner container footer text