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Crime scene

[ 41 ] December 19, 2012 |

Knoxville police announced this afternoon that a badly beaten rhetorical device, believed to be that of Irony, was found in a dumpster behind the University of Tennessee Law School. Police Commissioner Eric Blair described the scene as “one of the worst cases of its kind I’ve ever seen,” and promised that “heads would roll” once the responsible parties were identified.

Members of the public with any relevant information are encouraged to call a special tip line set up by authorities.


[ 8 ] December 19, 2012 |

My thoughts are similar to Scott’s (now includes Warren Zevon content).

Men and violence

[ 78 ] December 17, 2012 |

Mass murderers are almost invariably men, which is merely the end point of a statistical pattern that dictates the more violent an act is, the more likely it is that a man committed it.

This is one of those facts that paradoxically tend to become invisible to us because they’re so obvious. And because the fact that violence is gendered male is obvious and in a sense invisible, it tends to get thought of as part of the order of “nature” — which is always a dangerous word when thinking about social policy, or anything else for that matter.

Law school applications are collapsing

[ 63 ] December 13, 2012 |

In 2010 87,900 people applied to ABA law schools. This number was down 12.6% from the all-time high of 100,600 six years earlier — a fact that ought to have served as an early warning signal to law schools. After all, in 2008 and 2009 the economy was in the deepest recession since the 1930s, which should have have driven applications to professional school in general and law school in particular to new highs.

In 2011 David Segal published a series of critical articles in the New York Times regarding the economics of legal education, which provoked mostly cries of outrage from inside legal academia. Kyle McEntee and Patrick Lynch at the Law School Transparency project continued to run into a stone wall when they asked law schools to disclose something resembling actual employment and salary statistics for recent graduates. In short, denial remained the order of the day.

Meanwhile applications fell by 10.7% — yet law schools admitted almost exactly the same number of students (55,800 v. 55,900 in 2004) as they had seven years earlier, when they had had 22,100 more applicants to choose from.

By the fall of 2011, serious cracks began to appear in legal academia’s complacent facade. A year’s worth of bad publicity, capped by the imminent publication of Brian Tamanaha’s measured but all the more devastating indictment Failing Law Schools, had enabled LST and others to help convince a couple of US senators to write letters to the ABA Section of Legal Education, suggesting that this august body might want to consider being a little more forthcoming with employment data. Suggestions from senators have a way of getting the attention of bureaucrats, and lo and behold by next spring the ABA was for the first time publishing some useful school-specific graduate employment numbers.

Applications, not coincidentally, continued a sharp downward trend. By January of this year it became clear they would fall even more sharply from the previous year than they had between 2010 and 2011. In the end they were down another 13.7%. With the publication of the class of 2011′s fairly catastrophic employment figures, denial began to give way to serious concern.

Now comes word that applications in this admissions cycle appear to be in something like free fall. As of December 7th, they are down 24.6% from the same time last year, while the total number of applicants has declined by 22.4% year over year. These numbers suggest that law schools will have a total of somewhere between 52,000 and 53,000 applicants to choose from in this cycle, i.e., slightly more than half as many as in 2004, when there were 188 ABA accredited law schools (there are 201 at the moment, with an emphasis on “at the moment”).

To put that number in perspective, law schools admitted 60,400 first year JD students two years ago. Since a significant percentage of applicants are unwilling to consider enrolling at any school below a certain hierarchical level, and/or will decline to enroll at certain other schools without receiving massive discounts on the advertised tuition price, these numbers portend fiscal calamity for more than a few schools. But out of that calamity will come the beginnings of a more rational and just system of legal education for the next generation of lawyers.

Sex lives of SCOTUS justices

[ 45 ] December 12, 2012 |


Back in 2004, in the wake of Lawrence v. Texas, a recently out of the closet gay NYU law student asked Antonin Scalia a tough question at a semi-private forum where Scalia was discussing the decision.

Naturally in the hierarchically-obsessed world of legal academia this display of lese-majesty occasioned much outrage among the powers that be — which is to say it was an effective use of political theater to make a point about the intersection between the personal and political.

In any case, demands that judges not be “biased” remain largely incoherent and meaningless. Judges can’t avoid bias because bias is inherent to judging — a judge has to be biased toward some legal/political positions and against others simply to perform the act of judging. In other words, asking a judge not to be biased makes no more sense than asking a politician not to be “partisan.”

Income-Based Repayment and the economics of higher ed

[ 30 ] December 2, 2012 |

GULC professor Philip Schrag has a forthcoming review of Brian Tamanaha’s Failing Law Schools that criticizes Tamanaha for failing to acknowledge that Income-Based Repayment, especially in its new form that will become available to most law students as early as next year, “solves” the problem that law degrees now cost much more than they’re worth. (Tamanaha responds here).

In his book Tamanaha presents the case of Sarah, a hypothetical graduate making an entry-level salary of $63,000 (this was NALP’s — needless to say quite inflated — “median” salary for the class of 2010). Tamanaha points out that if Sarah has $100,000 in law school debt she will be unable to service that debt via the standard ten-year repayment plan, and she will still struggle to do so under the 25-year extended payment option. “In 2007, however,” Schrag announces, “the United States Congress solved Sarah’s problem,” by creating IBR.

The new version of IBR, Pay As You Earn (PAYE), has been fast-tracked via executive order by President Obama, who is displaying either a touchingly naive belief in the investment value of higher education, or a ruthlessly cynical willingness to exploit that belief. Read more…

Tell your statistics to shut up

[ 24 ] November 29, 2012 |

Case Western Reserve Law School Dean Larry Mitchell had an op ed in the Times this morning about why certain unnamed “sensationalist” critics of American legal education are being sensationalistic.

My response is here.

Occupy Best Buy

[ 38 ] November 23, 2012 |

On early Wednesday evening I noticed four tents were pitched in a line in front of my local Best Buy, and I decided to do some journamalizing. It turned out the first tent at this Black Friday base camp was occupied by a couple of college students. One was a 23-year-old architecture grad student at the University of Denver; his girlfriend was a 21-year-old biochemistry major at CU-Boulder. Other fascinating factoids:

(1) They had arrived on Tuesday morning, i.e, about 63 hours ahead of Best Buy’s midnight opening. The second tent in the line was pitched on Tuesday night.

(2) Their primary goals involved acquiring a 55-inch TV for $450, and a Tablet for $179. Also they wanted to get some camera stuff.

(3) They had spent the last two days, and were going to spend Thanksgiving, eating a diet consisting mostly of Ramen noodles, prepared with a camping stove.

(4) They had purchased both the tent (for $110) and the stove (price unknown) for the purposes of this trek.

(5) Last night had been the first night that either of them had ever slept in a tent.

(6) In years past they had gone to Black Friday midnight openings several hours in advance, but always found themselves far back in the line. This year they decided they would do whatever they had to do to avoid this fate.

(7) A few months ago the the city of Denver tried, with how much success I’m not sure, to kick Occupy Denver out of City Park, on the grounds that the protesters didn’t have the appropriate permits for overnight camping. Update: What I was vaguely recalling was this ordinance, which made overnight camping — but not sleeping on the street! — in public places in Denver a crime.

I realize that interviewing people like this couple and writing about it is part of a process of media framing that turns lining up days in advance for Black Friday into a news “event” (or pseudo-event), which in turn helps create social understandings and expectations that in turn shape the behavior of the people the media are interviewing. All very self-referential and pomo and all that.

Oh well.


[ 50 ] November 22, 2012 |

For anybody who is ever inclined to take David M. Nieporent’s opinions on any legal issue seriously, consider this comment, regarding whether it’s legal to hire judicial clerks for full-time jobs and pay them a salary of zero:

The whole “volunteer” thing is a red herring; this isn’t illegal because the minimurn wage does not apply to lawyers.

This is in response to a post which notes that “the general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).”

Learned Professional Exemption

To qualify for the learned professional employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
The advanced knowledge must be in a field of science or learning; and
The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.


[ 110 ] November 21, 2012 |

This is a request for reading suggestions.

I’m trying to think about the following problem: How are societies going to deal with a world in which labor for wages economic model that characterized the post-agrarian industrial age is increasingly breaking down? In other words, what is the future of work?

I realize this is a gigantic topic, so maybe it will help to give a a couple of examples of the kind of thing that’s triggered my puzzlement/curiosity:

(1) The market for getting paid to be a lawyer has been seriously constricted by forces such as machines doing what lawyers used to do, people who are not lawyers being paid (less) to do what lawyers used to do, do it yourself lawyering (LegalZoom etc), and globalization (people in other countries paid to do what before could only be done in the US (Pangea etc). Now if this were a problem peculiar to lawyers then the broader social consequences would be trivial. But it isn’t at all. One response I often get to my law school stuff is “what do you suggest we do instead?” It’s obviously a good question.

(2) Erik posted a few months ago about self-checkout machines at grocery stores. These machines lower transaction costs for consumers but they destroy jobs. What about a world in which everything is moving toward becoming a self-checkout machine?

I assume there must be all sorts of interesting things written about these questions. I just don’t know what they are, and would like to crowd source my initial research instead of paying an RA to do it.

My offer is nothing

[ 48 ] November 21, 2012 |

I have a piece in Salon arguing that a Denver federal judge has pushed the government’s willingness to stretch the definition of who qualifies as a genuine “volunteer” under the FLSA beyond the legal breaking point.

The general purpose of the FLSA is to prohibit employers from not paying employees, and to enforce minimum wage standards (there are different wage standards for hourly and professional workers but you still have to pay people if they’re working for you).

The two exceptions to this principle are “internships” and “volunteering.” (The latter exception doesn’t apply to for-profit enterprises). In theory internships are supposed to be limited to educational training that doesn’t displace paid workers. This rule can be and is regularly abused, but the most flagrant abuse of the statute is now taking place in the public sector, through the semantic torture of the noun and verb “volunteer.”

Here’s the relevant definition in the Code of Federal Regulations:

§ 553.101 “Volunteer” defined.

(a) An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4) (A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

Conducting a hiring process that is precisely identical in every detail for two positions that involve doing precisely the same job for the same time period under the same terms of employment, except you pay one of your hires as a GS-11 or GS-12 and pay the other nothing, appears to me to empty the concept of “volunteer” of all meaning.

On a more general level, what’s happening in the legal employment market is that it’s becoming the norm for a graduate to spend a year or two after graduation working for either literally nothing, or to something close to the economic equivalent, while trying to get his or her “foot in the door” of a real legal job. So what we’re producing is something that’s coming to more and more resemble the old apprenticeship system of lawyer training, but with a $200,000+ license fee tacked on.

Naturally this is making it increasingly implausible for people who don’t come from serious money to actually become real lawyers. In the new gilded age, that might even be the whole point.

Women and law graduate overproduction

[ 66 ] November 20, 2012 |

Departure memo sent by a former junior associate at a large law firm:


A day in the life of Ms. X (and many others here, I presume):

4:00am: Hear baby screaming, hope I am dreaming, realize I’m not, sleep walk to nursery, give her a pacifier and put her back to sleep
4:45am: Finally get back to bed
5:30am: Alarm goes off, hit snooze
6:00am: See the shadow of a small person standing at my bedroom door, realize it is my son who has wet the bed (time to change the sheets)
6:15am: Hear baby screaming, make a bottle, turn on another excruciating episode of Backyardigans, feed baby
7:00am: Find some clean clothes for the kids, get them dressed
7:30am: Realize that I am still in my pajamas and haven’t showered, so pull hair back in a ponytail and throw on a suit
8:00am: Pile into the car, drive the kids to daycare
8:15am: TRAFFIC
9:00am: finally arrive at daycare, baby spits up on suit, get kids to their classrooms, realize I have a conference call in 15 minutes
9:20am: Run into my office, dial-in to conference call 5 minutes late and realize that no one would have known whether or not I was on the call, but take notes anyway
9:30am: Get an email that my time is late, Again! Enter my time
10:00am: Team meeting; leave with a 50-item to-do list
11:00am: Attempt to prioritize to-do list and start tasks; start an email delegating a portion of the tasks (then, remember there is no one under me)
2:00pm: Realize I forgot to eat lunch, so go to the 9th floor kitchen to score some leftovers
2:30pm: Get a frantic email from a client needing an answer to a question by COB today
2:45pm: postpone work on task number 2 of 50 from to-do list and attempt to draft a response to client’s question
4:30pm: send draft response to Senior Associate and Partner for review
5:00pm: receive conflicting comments from Senior Associate and Partner (one in new version and one in track changes); attempt to reconcile; send redline
5:30pm: wait for approval to send response to client; realize that I am going to be late picking up the kids from daycare ($5 for each minute late)
5:50pm: get approval; quickly send response to client
6:00pm: race to daycare to get the kids (they are the last two there)
6:30pm: TRAFFIC with a side of screaming kids who are starving
7:15pm: Finally arrive home, throw chicken nuggets in the microwave, feed the family
7:45pm: Negotiate with husband over who will do bathtime and bedtime routine; lose
8:00pm: Bath, pajamas, books, bed
9:00pm: Kids are finally asleep, check blackberry and have 25 unread messages
9:15pm: Make a cup of coffee and open laptop; login to Citrix
9:45pm: Citrix finally loads; start task number 2
11:30pm: Wake up and realize I fell asleep at my desk; make more coffee; get through task number 3
1:00am: Jump in the shower (lord knows I won’t have time in the morning)
1:30am: Finally go to bed


Needless to say, I have not been able to simultaneously meet the demands of career and family, so have chosen to leave private practice, and the practice of law (at least for now). I truly admire all of you that have been able to juggle your career and family and do not envy what a challenge it is trying to do each well. I appreciate those of you who have been incredibly understanding of my family obligations over the past few years, and especially the last several months. I have learned so much from so many of you and hope to keep in touch for years to come (a special thank you to A, W, G and D). Please call or email anytime – my personal contact information is listed below.

Read more…