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Do we really need to protect people from trying to achieve their dreams?

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alger

Harvard Law School professor Noah Feldman has responded to the arguments made by Law School Transparency, the New York Times editorial board, and your faithful correspondent, that law schools shouldn’t be admitting students who, based on their entrance credentials, are at high risk for never passing a bar exam. His argument is that this position is paternalistic to the point of being infantilizing, and that adults should decide for themselves if they want to take the risk of purchasing an expensive credential that may not end up being worth much of anything:

This view assumes that it’s up to the law schools to make the threshold decision paternalistically, “saving” naive college graduates from pursuing the dream of becoming lawyers when there’s no guarantee that they’ll succeed. It treats standardized test scores as destiny and correlation-based studies as gospel. . .

[H]ow much should we trust prospective students to make their own decisions under market conditions?

Feldman points out that elite schools like HLS select their students in such a way as to practically guarantee that they’ll graduate from law school, while ensuring that almost all of them who take it will pass the bar. But shouldn’t there be schools that enroll students who are at some risk of failure?

[That low LSAT scores correlate with low bar passage rates] doesn’t mean that every student with a lower standardized test score will fail to pass the bar. To think otherwise is to deny individuals the capacity and responsibility to do well on the basis of work. A standardized test score, taken alone, shouldn’t determine your future.

That brings us to the crucial question in admissions: Who should decide whether you get to go to law school? It seems pretty clear to me that if you can do the work, the decision to take a risk on legal education should be yours.

You will build up debt, to be sure. But an investment in education isn’t like buying fast-depreciating consumer goods on a credit card. Education constitutes an investment in your own human capital. And in a free society, we typically believe that you should be empowered and enabled to make that investment in yourself.

Those who think law schools shouldn’t admit students with low test scores are reflecting, whether they know it or not, a culture of paternalism that verges on infantilization. Since when did college graduates pursuing the American dream of professional success come to be seen as an act of self-delusion? Do we really need to protect people from trying to achieve their dreams?

A few points:

(1) This sort of argument sounds plausible and even rather inspiring as long as the facts on the ground are being described from a rhetorical cruising altitude of 37,000 feet. The question isn’t whether every law school should be as restrictive in regard to its entrance criteria as HLS: it’s whether law schools, and most especially for-profit law schools, should be allowed to charge people $200,000, borrowed almost wholly from taxpayers, while they try to become lawyers, if those people have an X probability of ever passing the bar. Surely there is some point at which X is small enough that the answer ought to be “no?”

(2) In the characteristic fashion of legal academics, Feldman does what no competent lawyer would ever do: he simply ignores the rules under which law schools are actually required to operate. ABA-accredited law schools have something close to a complete monopoly on qualifying American students to sit for state bar exams (California is the major exception), and in order to be an ABA law school, you at least in theory have to abide by the organization’s rules of accreditation, which both forbid schools from admitting students who don’t appear capable of passing the bar, and threaten with de-accreditation schools that have insufficiently high bar passage rates. Now maybe Feldman thinks those requirements are a bad idea, but he ought to at least acknowledge their existence. This is especially true because . . .

(3) The “market conditions” to which Feldman refers are, as Bill Henderson just pointed out, completely dominated by federal educational loans, which are only available to students at schools that maintain ABA accreditation. Which brings us to the heart of the issue: Bar exams, ABA rules, and indeed law schools themselves are all designed as barriers to entry. This is especially true of law schools, which require people to invest three years and many hundreds of thousands of dollars in direct and opportunity costs after acquiring an undergraduate degree, before their graduates even have the right to try to take the bar exam. Now the public-regarding justification for these barriers is, not surprisingly, to protect the public from incompetent and/or crooked lawyers. Nowhere in his piece does Feldman even allude to this core regulatory function.

After all, if we’re not actually trying to protect the public, then all the hoop-jumping prospective lawyers are required to undertake is indeed unjustifiable. If what we’re primarily concerned with is the “opportunity” to become a lawyer, then it’s not only wrong to require certain entrance requirements before allowing people to borrow billions of dollars a year to go to law school: it’s wrong to require people to go to law school in the first place, or for that matter to take a bar exam.

Now this reductio may seem absurd — surely we don’t want just anyone to be able to hold themselves out as a lawyer to the public — but once one has made that concession, then it’s all a question of line-drawing, which is exactly what the critics of the status quo are trying to do.

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  • MacK

    I have only one critique – could you add a reference in (2) to Feldman’s ignoring of rules to the law and regulations that appoint the ABA as the accrediting agency for law schools, in particular 20 U.S.C. 1099b which is somewhat important since it specifically requires the:

    (5) the standards for accreditation of the agency or association [i.e., the ABA] assess the institution’s—
    (A) success with respect to student achievement in relation to the institution’s mission, which may include different standards for different institutions or programs, as established by the institution, including, as appropriate, consideration of State licensing examinations, consideration of course completion, and job placement rates;

    And perhaps also the CFR rules, 34 CFR §602, which say more or less the same thing. Accreditation under these rules is the sine qua non of the ability of any institution to secure Federal Student loans.

  • PaulB

    Professor Feldman’s comments are appalling. Does he really think that there are Peter Thiels or Lloyd Blankfleins in law schools that are not elite that will use their law school education to be wildly successful in non-law careers? The only question I had after reading his words was whether he is so willfully ignorant to believe what he wrote or whether he thinks his readers are. I’m not sure which would be worse.

    • Hayden Arse

      I would bet that if Professor Feldman taught a 1L seminar at Arizona Summit his tune might change. Is there a way we can make this happen?

      • postmodulator

        Like that Onion article where Obama, as a candidate, has lunch at a Denny’s and it forces him to drastically revise his plans for a better America.

  • Tyro

    I have seen people make the same argument for why we should keep up the over production of PhDs, particularly in the humanities, when there are few jobs available for them in their field.

    Look, not everyone gets to be an astronaut. That’s ok.

    • L2P

      PhDs seem different to me. I know people who got a Masters or PhD solely because they loved the topic, wanted to know more, and thought Eh, why not get a degree if I’m spending so much time on it? OTOH, I don’t know anyone who gets a law degree who doesn’t expect to be a lawyer.

      • dr. fancypants

        I don’t know anyone who gets a law degree who doesn’t expect to be a lawyer.

        I knew a few people who went to Harvard Law whose end goal (or even initial goal) was something other than lawyering. But I think HLS is kind of a special case, in that it’s a place that can get you the connections you need to do something else.

      • PhDs seem different to me. I know people who got a Masters or PhD solely because they loved the topic, wanted to know more, and thought Eh, why not get a degree if I’m spending so much time on it?

        I’ve seen and done that myself. I went and got an MA in history because I wanted to, although it took me 4 years. It appeared to me at the time that more than a few of at least the MA candidate graduate students (and 1 doctoral candidate I recall) were getting their degrees mainly because they just had always wanted to do that. They didn’t expect much from it job-wise. That was at the University of MN in the mid-1990s.

        The PhD candidate guy was a skilled cabinet maker. He was also the most informed, best read graduate student in our cohort. I think he went back to cabinet making when he finished, well satisfied.

    • Ken

      But being an astronaut is my dream. The government should loan me the money so I can buy a trip to the space station from the Russians. It’s not that much more than law school tuition.

  • MacK

    There are also the arguments of David Yellen Dean of Loyola-Chicago who actually explained that everything is fine because “…the federal government is not “investing” in legal education, it is generating revenue from it.”

    I.e., because an activity is profitable, someone makes money from it, it is morally acceptable. They teach that at Loyala-Chicago. Wow, the Jesuit moral ethos of the Loyola seems to have flown right out the window!

    I mean, hey, I presume drug dealers make a profit, arms dealers, pimps…..

    • Rintrah

      Do you happen to have a link to Yellen’s comments, MacK? I’m a tenured member of the faculty at Loyola Chicago, though in the College of Arts and Sciences, not the Law School. I’d be very curious to read just how our law school theorizes itself. Thanks!

    • Murc

      Wow, the Jesuit moral ethos of the Loyola seems to have flown right out the window!

      Enabling the systematic looting and oppression of poor people seems pretty damn Jesuit to me. The Order of Jesus has been at the forefront of the catholic church’s efforts to impose their particularly charming brands of social and cultural control on the world for centuries. They’re super good at it, too.

      • MacK

        Depends on the Jesuit – I’m spoiled by the examples of Peter McVerry and Bob Drinan, look them up.

        http://www.pmvtrust.ie/fr-peter-mcverry/

        https://en.m.wikipedia.org/wiki/Robert_Drinan

        • Hogan

          And Dan Berrigan.

          • MacK

            He sounds like an impressive guy, but I have no direct knowledge of him.

      • Ahuitzotl

        Well no, clearly the Jesuits are bad at it, given how control over the bits of the world that Christianity has spread to, has been slipping away in the last six centuries (OK, a bit of fightback in the COunterreformation, but other than that ….)

  • Crusty

    Would it be wrong for me to set up a business offering career advice to grads from the infilaw schools, telling them that my advice might enable them to get jobs at biglaw firms and government agencies? I mean, after spending/borrowing six figures to finance their education, who would balk at a $1500 counseling session?

    • rm

      Those are good leads, after all.

      • Linnaeus

        Mitch and Murray paid good money for those leads.

        • Tyto

          They’re sitting out there waiting to give you their money. Are you gonna take it? Are you man enough to take it?

  • Ragged Dick Series…band name, album name, or RNC platform plank?

    • Srsly Dad Y

      porn

      • Lee Rudolph

        Eventually I decided that the kid in the middle of the illustration is holding a shoe-shine brush in his right hand. But.

  • Mudge

    Of course, once upon a time, law school was not required to take the bar exam (see Lincoln, Abraham). Dreamers apprenticed themselves to lawyers and read a lot. I like having a bar exam as a hurdle to practice, but I also do not like the monopoly that law schools have created.

    • dr. fancypants

      California still allows this approach. It seems to be an incredibly rare path for people to take, though.

    • rm

      The thing in conservative cirles today is to create alternative-universe accreditation, like Rand Paul did to accredit himself as an eye surgeon or like the evangelical colleges do.

      I think the bottom line is a concept of “liberty” inherited from slaveowners — liberty is the free citizen’s prerogative to set up his own fiefdom, his own patriarchal household. The Homeschool Legal Defense Association opposes the power of states to investigate child abuse, because to them it’s an intrusion on the rights of parents (fathers, really) to rule their kingdoms.

      Some like to apply this logic to professional realms as well. I can easily imagine a parallel right-wing legal profession developing.

      My theory is that Kim Davis’s conception of her powers as County Clerk fit this framework — she was elected, so she is the patriarch of her fiefdom, and the employees answer to her not the state or the law. That’s why she has a problem with her name on the forms, and insists that without her names the forms aren’t legal. Note that she’s being advised by some of these right-wing evangelical law school graduates.

      It’s a different concept of what “law” is, certainly.

      But anyway, if we don’t acknowledge the need for public accreditation of lawyers in some way, just like we have with doctors and notaries public and CPAs and whatever else, well, then, there is an organized movement wanting to escape the oppressive bonds of government law.

      • LeeEsq

        Its a very aristocratic definition of freedom, the liberty of the master of the house. They really don’t want anybody telling them what to do. Government is just a sort of club between different masters to prevent the masters from domination by others.

    • efgoldman

      Of course, once upon a time, law school was not required to take the bar exam

      OTOH, one of my uncles went to a good (not top) law school after WW2, on the GI bill, without ever having attended undergrad school. He graduated, passed the bar 1949-ish, and had a very successful, lucrative, low-key career in Boston.

  • bernard

    Good decision-making depends on accurate information. Given that many schools apparently systematically misinform potential and actual applicants about their prospects it makes no sense to argue that the applicants require no protection.

    • advocatethis

      But the law schools would argue (and I think, may already have) that their claims are so preposterous that nobody should believe them anyway.

  • Lurker

    Education as such is a moral good. Having more education is almost akways good for one’s inner life (except in cases where studying too challenging a subject at too high a pace leads to a mental breakdown).

    Thus, there is a need for everyone to have a chance to study at will. Where I come from, this job is fulfilled by the so called citizens’ colleges which are state-accredited institutions offering wvening courses in various subjects, but which do not lead to a degree in anything. Studying in them is a respectable pastime, and a cheap one. A semester course meeting once a week costs maybe 50 euros.

    However, professional education is a completely different kettle of fish. One can have only a limited amount of studies in one’s youth. There is a large opportunity cost even if the studies were free. It is unconscionable to lure people to taking a 90 % risk of financial and professional ruin even if the remaining 10 % were wildly successful. And this is not the case. The “successful” graduate of a bad aplaw school is one who eakes out a living on the fringes of the legal profession.

    Yes, consumer protection of students may be paternalism but no more than electrical safety is.

    • postmodulator

      Having more education is almost akways good for one’s inner life

      Right, that’s where we get that quote from, “The lack of ignorance is bliss.”

      I’m fairly well educated, and all it’s enabled me to do is incorporate much more obscure references into my bitter, acerbic observations.

  • Crusty

    Law schools and the legal profession exist to serve the public, not to serve someone’s dream of becoming a lawyer.

  • NotALawyer

    Let’s talk about another kind of “paternalism”, the “hey Dad, can I have $100K to go to law school?” kind. Let’s no “infantilize” the lender, all of us, out of making a decision about which borrowers are pursuing a reasonable course of education and which are just lighting money on fire.

  • sam

    Even back in the dark ages when I was in law school, I was always baffled by the classmates who simply went to law school as some sort of advanced liberal arts degree. Even back then, I always said – you don’t see people saying “Hmm, I don’t know what I want to do with my life, I think I’ll go to medical school!”. But law school always seemed to be a different animal. a “default degree” option for the academic wanderers who figured that you could “do anything” with a law degree.

    This seems to be the corollary to that – If “you can do anything” with a law degree (always a myth), then anyone can, and should, get a law degree.

    Even I, who actually wanted to be a lawyer, ended up on a vastly different career path than the one I thought i’d be on, largely driven by the amount of debt I was accumulating – I realized pretty early on that I needed a white shoe law firm job to pay of my student loan burden. Luckily, it was the late 90s, and I was at a T10 school, so it was achievable, but I certainly didn’t start law school with that plan.

    • Lurker

      As an interesting contrast, in Finland, the LL.M., our law degree, is a five-year degree (technically, a three year LL.B and a two-year LL.M) that you take straight from high school. Ten percent of the applicants pass entrance exam, which, in essence, tests how well you have learned by rote the assigned text book. (Full disclosure: I’ve never applied to a law school, so I have no personal stake.) It is something that drifters can’t do.

      As a result, our lawyers are pretty uniform: they are bright guys and gals who really love learning things by heart.

    • Rick_B

      One of the reasons I quit teaching business was that the business administration degree has replaced the English or History degree as the default degree it was when I went to undergrad in the sixties. I was teaching in Oklahoma, and I found that a high percentage of business students got very irritated when I expected the to learn how to write and practice logic. The women, not so much.

      • postmodulator

        There’s a certain kind of creative writing student that’s pure hell to deal with; a lot of my friends have encountered them. Basically, a middle-aged white guy who’s been fairly successful in some other field and wants to try out writing. He ends up by being absolutely unable to accept the fact that he’s going to get a bunch of rejection letters at first. Angry about it. This is who used to keep vanity publishers in business. (Pity the poor vanity publisher, now that anyone can just put something out on Kindle.)

        • NewishLawyer

          FWIW one of the better playwrights in grad school was a middle aged guy who went to law school first and then practiced as a lawyer for 15-20 years before getting his MFA.

          Most of us went in the other direction though. We got our MFAs first and then went to law school or some more practical from of grad school. Another friend from grad school is applying for something related to animal care currently.

          • postmodulator

            Sure, I don’t mean to suggest that no middle-aged white guy can do anything interesting. At least, I certainly hope that is not the case.

    • LeeEsq

      This always puzzled me to. There were more than a few law school classmates who told me that they went to law school because they missed being in school. I love learning as much as anybody else but if I wanted to stay in school for as long as possible, I’d get a PhD.

      There are people who are very good students and get great grades but are really bad at working. There brilliance in scholastics does not seem to translate well into work. They might also really like the social environment in schools and wish that life was like a giant SLAC or party school. These are the types that might go to law school for the hell of it.

  • Rick_B

    The requirement that one go to law school before taking the bar is totally artificial anyway. I understand that Marvin Mitchelson in California “read for the law” and passed the exam without law school – or so I was once told. Of course, he was only a divorce lawyer.

    Texas passed a change in the law eliminating reading for the law some thee decades or more ago, but left one loophole. If you were a state senator or representative you could take the bar without attending law school. One of our local politicians from the DFW area did exactly that about twenty years ago.

    • L2P

      I think “artificial” is an odd way to phrase it. It’s fair to say that law school isn’t directly related to the ability to practice law, but it’s certainly very, very hard to learn the various areas a lawyer should know without going to law school.

      This is one way we’re kind of unfair to law schools. Law schools prepare students for many different areas of law, most of which will be irrelevant to practice. So an estates lawyer is “wasting time” learning all that evidence and civil procedure. But we don’t say that a doctor who is going to practice anesthesiology is “wasting time” learning all that virology BS.

      So I’ve met several attorneys who used lawyer study method instead of going to law school. And they were all like a doctor who didn’t learn virology. Perfectly competent in their field, but no idea of the broader context of what they do.

      • MacK

        Yup, it is the main reason for law school – one that law professors with their desperation to teach their “passion” in courses like “S&M and the law” ( pre-reqs, be the…) have systematically undermined, unless you think a comprehensive knowledge of [whips] is crucial to legal practice …

      • NewishLawyer

        I somewhat disagree. Learning about those areas of law is great for issue spotting and there are plenty of times when a lawyer can say “My client has a X issue. I need to consult with someone or do some research.”

  • indefinitelee

    I’m fuzzy on the whole ‘borrowed from taxpayers’ line. Can someone clarify?

    • Crusty

      loans from the federal gov’t. Does that clear it up?

      • indefinitelee

        you can only get $20,500/yr in federal loans for graduate school

        • Redwood Rhiadra

          FALSE. The Federal Stafford loan is limited to $20,500, but the Federal Grad PLUS loan is UNLIMITED. (Technically, it pays “the total cost of attendance as determined by the school, minus other financial aid.”)

    • efgoldman

      Government loans.

  • LeeEsq

    Paternalism is a dirty word these days but there is enough evidence that at least some state paternalism is necessary to protect most people from making some very bad decisions and make society work. Most public health initiatives like trying to fight against obesity or addiction is based on paternalistic thought of some kind. I really don’t see why trying to prevent people from going into heavy debt for the false promises of lucrative employment is really any more immoral than an anti-smoking campaign.

    • Redwood Rhiadra

      Bad choice of example – a lot of folks think anti-smoking campaigns *are* immoral. (I’m not one of them, but I hear it a lot.)

  • edwoof

    “But an investment in education isn’t like buying fast-depreciating consumer goods on a credit card.”

    Totally wrong. Buying a professional legal education which is not soon utilized after graduation is indeed like “buying fast-depreciating consumer good on a credit card.” In fact, in the law market, a law degree depreciates faster than a Hummer. If you fail the bar, then the medium to large firms will not look at you and if you are fortunate enough to be employed by a law firm prior to taking the bar, then you are likely to be terminated if you fail. If you pass the second or third time around, your options will be limited to primarily low paying jobs at small firms.

    • Hogan

      In bankruptcy law they call that a melting ice cube.

  • There are some old data from the American Board of Pediatrics about test-taking that are interesting in this discussion. I don’t know if they still do it, but many residency programs gave an abbreviated board examination to all their residents — first year (interns) through third year. They found that everybody’s fund of knowledge grew the longer they trained. So third year residents got more questions right than interns. But it was extremely rare for an individual to shift performance curves: the bottom 10% interns were the bottom 10% senior residents, and so on. Even more, this performance correlated with their scores and pass rates on the actual board examinations, which back then (pre-1988) you took 2 years after finishing residency. Cynics said then just test the interns and be done with the whole process.

    So yeah, some very low ranking person could get a fire in his or her belly and pull themselves up, but that is very uncommon. All of which supports the things Paul has been writing about.

  • matt w

    Like Tyro above, I’ve seen people argue that it would be paternalistic to restrict PhD admissions so the number of PhDs produced was closer to the number of jobs in the field. And it makes no sense to me whatsoever to describe this as “paternalistic.”

    It would be paternalistic to restrict what an unrelated third party could do. But when faculty admit someone to their school they’re undertaking to teach them. It’s not paternalistic to say “I’m not going to spend a lot of time teaching you if I don’t think it would be rewarding for both of us”–and, if you’re a decent human being, it’s not rewarding to teach someone that you think will wind up being unable to find a job in the field you’re training them for, and either much older (for Phds) or in a lot of debt (for JDs) or both (for really sleazy PhD programs).

    Piano teachers don’t take on any student who can afford to pay them. Why should schools?

    Maybe it’s different for law schools, because the relationship between professor and student is more like a vendor-customer relationship than a mentor-mentee relationship in liberal arts PhDs. But I doubt Feldman wants to hang his hat there.

    (Like LeeEsq, I also don’t think paternalism is always bad, but it seems particularly weird to make that accusation here.)

  • postpartisandepression

    Out of curiosity why should you have to go to and pay for law school if you can just pass the bar?

    Same for med school why should you have to go and pay if you can pass the boards. You gain your actual patient experience as an intern anyway.

    • Actually the 3rd year of medical school is mostly patient contact rotations in the basic stuff — surgery, internal medicine, obstetrics, pediatrics. Then 4th year has mostly elective clinical rotations in what you are interested in; they nearly all are patient contact experiences.

  • NewishLawyer

    The big thing about European universities is that you need to declare your major before attending. I know people switch fields while at uni but many of their students seem to have a clear focus on what they want to do.

    The American school of thought seems to be more free following and allowing people to take a long time before finding a path. There are upsides and downsides to both schools of thought.

  • Funkhauser

    Ah, Noah Feldman, who helped write the Iraqi Constitution that has worked out so well. Hope he and Jeanie are doing better back in Cambridge.

  • JCougar

    Sigh. The LSAT is an easy target, because it’s a standardized test which seems to be the target of a lot of angst lately. But nevermind that this alone is the best predictor of bar success. Let’s put that aside for now, because it’s been turned into a red herring.

    So now we look at Arizona Summit’s median GPA, and realize it’s like 2.8 something.

    So they’re terrible in that regard, too.

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