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Ronald Dworkin

[ 13 ] February 14, 2013 |

Ronald Dworkin has died.

This incident reminded me of the following story:

A few years ago Dworkin wrote a remembrance of Learned Hand, for whom Dworkin clerked. At the time Dworkin was engaged, and he was keen to know if Hand was going to follow the policy of other judges in Hand’s circuit, which was to use their government-funded administrative budgets to give clerks a bonus in the form of a month’s extra salary at the end of the clerk’s term. So Dworkin inquired anxiously of the judge if he could expect to receive the bonus.

Hand explained to Dworkin that he disapproved of this practice, because he thought it was wasting taxpayer dollars, and that it was especially unjustifiable in his case, since Hand had already taken senior status, and was technically retired.

Shortly afterwards Dworkin sent Hand an invitation to his wedding. Hand’s reply included a personal check, equal to a month of Dworkin’s salary.

I hate when that happens

[ 25 ] February 10, 2013 |

Gerald Henderson

I’m a casual fan of the NBA, while my wife is a fairly hardcore Nuggets supporter. (Oddly she developed her initial affection for the team about seven years ago when she was working in the Denver DA’s office, within the confines of which the then-roster was known collectively as the Thuggets). So we watch most of their games on TV.

Last night the broadcast cuts into the game with highlights from Philly v. Charlotte, which among other things feature Gerald Henderson hitting a jump shot.

Me: Gerald Henderson is still in the league? He must be close to 40!

Spouse: Who’s Gerald Henderson?

Me: You know, the guy who used to be on the Celtics.

A quick check of the internets reveals that Gerald Henderson, formerly of the Boston Celtics, played his last NBA game 21 years ago. The guy hitting the jump shot is his son.

Evaluating health risk factors for presidential candidates

[ 79 ] February 8, 2013 |

I have a piece here on this week’s kerfuffle over the relationship between Chris Christie’s weight and his presidential ambitions.

Law school dean mischaracterizes advertorial from test prep shill as disinterested expert commentary

[ 6 ] February 8, 2013 |

Yesterday I wrote at length about some of the most egregious misrepresentations in University of Denver law school dean Martin Katz’s plea for more applicants. My colleague Deborah Merritt reveals that I failed to note perhaps the most outrageous feature of Katz’s “analysis” of why his law school remains an excellent value proposition:

Katz opens by appealing to authority. He tells potential applicants:

Last year, Forbes magazine – a respected source on value investing – touted the value of a legal education, referring to law school as a “relatively low-risk investment that will have an impact on your future and can pay exceptional dividends over a lifetime.”

This advice seems to fly in the face of the chorus of critics of legal education who would have you believe that going to law school today would be a terrible investment. So who is right? Forbes or the critics?

Though popular perceptions might lead you to follow the critics, the smart money should follow Forbes’ advice.

Trust Forbes, not the critics! It’s a good line, except that Forbes did not endorse legal education in the way that Katz implies. The column cited by Katz was not written by “Forbes” or by any member of its editorial staff. It was written by a Forbes “contributor” named Shawn O’Connor. O’Connor is the CEO of StratusPrep, a company that offers LSAT test prep classes and law school admissions coaching.

Stratus will happily charge you $1,599 for its basic LSAT prep course. If you want more, you can pay for plenty of other services–all the way up to $7,180 for the “Diamond, All-in-One Package” that includes the LSAT class, 10 hours of LSAT tutoring, law school admissions counseling, and a law school “boot camp.” Do you think O’Connor has a financial self interest in urging people to consider law school? Do you think his recommendation carries different weight than one from “Forbes”?

A sidebar to O’Connor’s post explicitly states that “[t]he opinions expressed are those of the writer,” not those of Forbes. That’s a distinction that Dean Katz doesn’t bother to make in telling prospective students that Forbes, “a respected source on value investing,” has “touted the value of a legal education.” If Dean Katz wants to tell applicants that the CEO of a company that makes lots of money selling LSAT prep courses has “touted the value of a legal education,” that’s fine. But he should be honest about his sources.

Forbes has published numerous columns about law schools and the legal job market. Contributor Peter Cohan, a management consultant and venture capitalist, asked just last week: Does America Need 202 Law Schools? Cohan suggested that “law schools are highly profitable for the professors and administrators,” that “radical changes in the way law is practiced means that the high tuitions imposed on aspiring lawyers to get that law degree are less likely to pay off,” and that “law schools do not want to teach students the nuts and bolts of lawyering.”

And then there was J. Maureen Henderson’s column headlined Why Attending Law School Is the Worst Career Decision You’ll Ever Make. Henderson, another Forbes contributor, described the “misleading stats” disseminated by law schools, the “scant 8% of 2011 grads [who] are working at firms that employ 250 or more attorneys,” and the “dismal” starting salaries for lawyers in small towns or rural areas.

There was even a column by my law school classmate, Deborah Jacobs (who is actually on the Forbes staff as a Senior Editor) detailing The Case Against Law School. In that column, updated just last week, Jacobs discusses the high debt incurred by law students, the “abysmal job market,” and the ways in which technology, outsourcing, and other practices continue to squeeze that market.

I’m not going to catalogue all of the posts about law school published by Forbes. There may be other contributors, like O’Connor, who think law school is a good investment. That’s not the point. The point is that “Forbes” has not “touted the value of legal education” and Dean Katz should know that.

ABA Accreditation Standards, Rule 509:


(a) All consumer information that a law school reports, publicizes or distributes
shall be complete, accurate and not misleading to a reasonable law school
student or applicant. Schools shall use due diligence in obtaining and verifying
consumer information. Violations of these obligations may result in sanctions
under Rule 16 of the Rules of Procedure for Approval of Law Schools.

Myths of Sisyphus

[ 50 ] February 7, 2013 |

Last spring I participated in a “debate” with Martin Katz, dean of the University of Denver’s law school, at a bar association event. It turned out not to be much of a debate: I presented the argument I published subsequently in my article The Crisis of the American School, and Katz, who had read a draft of the article, said he basically agreed with that argument.

I don’t actually know Katz, but from the few encounters I’ve had with him over the years, he seems like a very bright guy, as well as a pleasant, charming person. These qualities naturally made me want to think well of him. On the other hand, because I realize such qualities are useful if you’re a politician, or a university administrator, or an investment banker, or a serial killer, etc., I’m also aware that as a rational matter being smart and pleasant and charming has exactly nothing to do with one’s character, or lack thereof.

So reading this made me both sad and angry. Read more…

In the long run

[ 80 ] February 6, 2013 |

A reader suggested I take a look at Hamilton Nolan’s ongoing Gawker series of unemployment stories. They make for harrowing reading, and a lot of them are from attorneys. Here’s one from somebody still in free fall from a spot near the top of the profession: Read more…

The student loan bubble

[ 90 ] February 4, 2013 |

canary in a coal mine

Law schools are merely the place where the craziness of the system is most self-evident.

Well this is embarrassing

[ 29 ] February 3, 2013 |

heck of a job

This time the rich people are trapped in the Super Dome.

Law and Economics

[ 36 ] January 31, 2013 |

The New York Times has a front-page story about the ongoing collapse in the number of people applying to law school (from 100,700 in 2004 down to about 54,000 this cycle, with a 38% total decline over the last three years alone). The story features some nice quotes from Brian Tamanaha and Bill Henderson regarding the dysfunctional economics of law school, which is important, because as any legal philosopher can tell you, in this culture the ontological status of an epistemological insight is greatly enhanced when it appears on the front page of the NYT. (“They wouldn’t print it if it wasn’t true.” F. Nietzsche, trans. J. Jackson.)

Oddly, the story fails to mention the crucial role the law school transparency movement, to which the Times gave such valuable attention in 2011 in a series of prominent stories, has had in all this. It’s hardly a coincidence that most of the collapse of the applicant pool has taken place over the last two years, which happens to be when something resembling accurate employment and salary statistics have been extracted from law schools via political pressure.

The story also features this strange claim:

“We have a significant mismatch between demand and supply,” said Gillian K. Hadfield, professor of law and economics at the University of Southern California. “It’s not a problem of producing too many lawyers. Actually, we have an exploding demand for both ordinary folk lawyers and big corporate ones.”

She said that, given the structure of the legal profession, it was hard to make a living dealing with matters like mortgage and divorce, and that big corporations were dissatisfied with what they see as the overly academic training at elite law schools.

This is a very peculiar use of the word “demand.” Big corporations have put the squeeze on BigLaw, because they’ve decided they will no longer subsidize the training of junior associates to do work people trained to be lawyers should do. Even more problematically for the Cravath model, they’ve also decided they won’t pay BigLaw rates any more for essentially clerical work. So firms can’t bill out a lot of what first and second year associates do, and a lot of other work that such people did is now outsourced to the document review mills and to non-lawyers.

In other words, client demand for various services that used to fatten the bottom lines of the big firms has imploded, not exploded, because it has been shifted to other service providers, or is no longer billable when performed by the firms themselves. This is a structural not a cyclical shift: it’s not as if GCs are going to decide that when and if more deals are being done it’ll be OK for firms to bill out monkey work at $300 an hour again.

The “overly academic training” at law schools has nothing to do with this. That’s an issue about failing to train people to do legal work. The collapse in demand from BigLaw clients is a product of the realization that a large amount of work traditionally done by lawyers can be done by non-lawyers with either no loss of quality, or not enough loss to make it worthwhile to pay the added cost of having lawyers do it.

The claim about “ordinary folk” is even stranger, but it’s one that’s being made a lot these days by legal academics desperately searching for a raison d’ paycheck. The argument goes something like this:

(1) Many people in this country who could benefit from legal services aren’t getting those services because they’re too expensive.

(2) Those services are too expensive because law school costs too much.

(3) If future lawyers could go to law school without incurring so much debt, they could afford to offer legal services at a price that far more people could afford to pay.

(1) is certainly true. (2) and (3) are just wrong, and obviously so.

The cost of legal services has almost nothing to do with the cost of law school. Why would it? No client cares about how much it cost you to get a law degree, which means that no client is willing to pay more for legal services because a lawyer has a lot of educational debt. This theoretical claim is confirmed by empirical observation: there are literally hundreds of thousands of lawyers in America who went to law school when it was radically cheaper than it is today, and it’s not as if they charge lower rates than recent law graduates (if anything they charge on average more more, because clients will to some extent pay for experience as a proxy for competence).

There are also hundreds of thousands of people with law licenses who are barely making a living by practicing law (A 2009 survey of Alabama lawyers found that 23% of the respondents with active law licenses had an income of less than $25,000 in the previous year). Such people are charging the absolute minimum they can charge while still maintaining an ongoing business.

The notion that the hundreds of thousands of lawyers in solo or very small practices in this country could somehow operate by billing out their services at X dollars per hour (with X being a figure that lots of “ordinary folk” currently priced out of the market for legal services could pay) if only law school didn’t cost so much is one of those ideas that sounds intuitively plausible until you actually think about it for three minutes, which is apparently why people in legal academia don’t.

The reason ordinary folk don’t pay for legal services even when in theory they could benefit from them is exactly the same reason they don’t pay for a lot of things they could in theory benefit from: because they don’t have any money for those things after paying for more pressing needs like food, shelter, clothing, medical expenses, transportation to work, etc.

Comments such as Hadfield’s indicate the lengths that legal academics will go to in order to talk themselves into believing that the basic problem isn’t really the basic problem. And that problem is that the economic demand in this country for people with law degrees will employ (at best) half the people who are paying us to grant them law degrees.

Law and empathy

[ 64 ] January 28, 2013 |

I have a piece in Time about Sonia Sotomayor’s recent comments regarding what a privilege it is to practice law, and how lawyers who are unhappy “need to go back to square one.”

A couple of additional thoughts:

(1) Sotomayor’s comments illustrate how thoroughly people get de-classed when they rise in the American social system. After all, it’s not as if Sotomayor’s remarks illustrate her lack of up to date knowledge regarding political corruption in Bhutan or something. She’s talking about her very own profession, and yet it seems clear she (like John Roberts) has managed to avoid finding out what’s actually going on in that profession.

This in turn suggests that the new federal law requiring all SCOTUS justices to attend both Princeton and Yale may not be encouraging the most important kinds of diversity.

(2) Few things are more annoying than high-status quasi-lawyers (as I point out in the piece judges and law professors don’t practice law) burbling on about how being a lawyer is a particularly public-regarding occupation. Sure, part of a lawyer’s job involves helping people. But:

(a) You can say this about any service profession, including the guy who brings you a cheeseburger with a side of fries.

(b) Another part of the job involves hurting people, which is a lot easier to forget if you don’t actually do the job, hence the blovations of judges and law profs.

Math problem

[ 30 ] January 27, 2013 |


Suppose a basketball team goes into a game making 37% of its field goal attempts. What are the odds that, during any 29-shot sequence, the team will go 0 for 29 in that sequence?

I’m coming up with 659,638 to 1.

John Roberts’ summer vacation

[ 10 ] January 26, 2013 |

Debts that can’t be repaid won’t be.”

Michael Hudson

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