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Losing It

[ 17 ] December 7, 2011 |

I’ve just gotten William Ian Miller’s new book, LOSING IT: in which an aging professor LAMENTS his shrinking BRAIN, which he flatters himself formerly did him Noble Service. It is, as anyone who has read Miller’s previous books can anticipate, mordantly hilarious:

Occasionally I flatter myself that I am earning my keep, contributing more than I am consuming. And unlike those football players and boxers who do not know when to quit, professors, like me, cannot be cut. Tenure and age discrimination laws let us keep working, which somehow does not seem the right word. Besides, there are always a couple of lazy colleagues whose real contribution to the enterprise is to make less lazy ones feel like we deliver value for the price. Never mind that my keep would fund four entry-level scholars in history or anthropology who are now unemployed: I still have kids of my own to feed, though I might be feeding them with someone else’s. Self-deception and wishful thinking, looking on the bright side in a self-interested way, keep us conveniently color blind to our real value, seeing black when the ink is red. Or simply not caring if it is red, when we see it.

Miller, who taught me (after a fashion) property law 25 years ago, was born at the beginning of the baby boom, while I was born near the end. I’m old enough now to read this passage with a genuine shudder of no longer abstract recognition, as opposed to laughing at it with the insouciance of a still-young man.

One of the many disadvantages of getting old is that it becomes increasingly difficult to recognize that the world is in fundamental ways no longer the world of your youth — that things have changed in a way to which you cannot relate, or to which you can only partially relate after a massive effort to break through the complacency which age gradually imposes on you like some sort of psychological sediment.

In dealing with my colleagues regarding the current crisis in American legal education, I find it’s remarkably difficult to get them to accept that there aren’t any new legal jobs. This wasn’t the way things were when they were younger, and so it simply can’t be the case. Or rather, they remember economic downturns from 20 or 30 years ago, and the difficulties people — perhaps even they — had getting jobs, and they think, this is like that, and everything turned out fine in the long run.

Both those beliefs are mistaken: everything didn’t turn out fine in the long run — for many years now huge numbers of law graduates haven’t ever really managed to have legal careers — and, more to the present point, this is not like that.

Recently I’ve been emphasizing that, according to long-term projections, American law schools are going to be turning out two graduates for every available legal job. It’s worth noting that the present situation is actually worse than that. According to the Bureau of Labor Statistics, the “legal sector” (this means everybody employed in a legally-related job, not just attorneys, i.e., paralegals, other admin staff, etc.) added 100 jobs in November. That’s in America. 100 jobs. Total.

This, by the way, counts as comparatively good news, since the legal sector is down 3,100 jobs since last November.

Assuming that within that sector lawyers aren’t being hired at a faster rate than other personnel, this means that, over the past year, ABA law schools haven’t cranked out two new lawyers for every available job, but rather that the ratio has been even worse than that.

There are no new jobs. This means that every new lawyer who gets a job is, as a matter of current economic reality, taking a job from a non-new lawyer who had one. (In some cases this will involve retirement, death, or a truly voluntary exit from the profession, but in many cases it won’t). People focus on the entry-level job market for attorneys, and of course that’s crucial, but they tend to forget that the problems of our industry go way beyond the fact that half of our newest crop of graduates aren’t getting real legal jobs of any sort. What about our graduates from two and four and six years ago, a large percentage of whom are losing their jobs, and are currently every bit as legally unemployed as our graduates who never got a legal job in the first place? Do we know what the percentage is for the graduates of our particular law school? We do not, because we have not made the relevant inquiries.

Again, there are no new jobs. On net, this is not hyperbole: it is a simple statistical truth. The “optimistic” take from the BLS is that things will soon get “better,” and we can get back to producing two new attorneys for every new legal job. But right now the American economy is losing legal jobs — and the ratio of new lawyers to available legal positions may well be quite a bit worse than two to one.


We can quit any time we want

[ 22 ] December 1, 2011 |

Law schools have become addicted to federal educational loan money. Under current law, schools can charge whatever they want for tuition, and the federal government will loan 100% of that amount, plus 100% of estimated living expenses, to any admitted student who isn’t in default on an educational loan, no questions asked. You don’t have to have a Ph.D. in economics (something an increasing number of law professors actually have, not that it seems to be doing any good in regard to this particular subject) to realize this is a recipe for reckless financial behavior on the part of everyone — students, schools, and the government — involved in these transactions.

These are very high-interest loans that aren’t dischargeable in bankruptcy, which means that the people who are borrowing the money will be doing severe damage to their financial futures if they aren’t able to repay the loans in a timely manner. Despite the best efforts of legal academia to hide the fact, it’s becoming increasingly clear that an actual majority of recent law school graduates and current students are or will soon find themselves in that precise position.

A crucial goal of the push for greater law school transparency is to make the specifics of this situation as clear as possible to three groups of people: prospective law students and their families, people working inside law schools, and government officials. The need to educate the first group is obvious: what’s not as immediately obvious is that it’s just as important to raise the consciousness of the people who draw their paychecks from law schools, and the people who make the laws that keep the ever-increasing supply of taxpayer-funded tuition money flowing.

People inside law schools need to be confronted with the real numbers for two reasons: First, some will feel moral qualms about making a living by selling a service which is leaving the majority of the people to whom they’re selling it worse off than they were before. Second, even those who don’t feel such qualms will, if they are prudently self-interested, recognize that they’re making their living off what in the long term is an unsustainable business model, and that it’s in their interest to change that model before it’s changed for them.

Government officials need to see the real numbers so they can reform a system that at present does immense damage to borrowers and then leaves taxpayers holding the bag.

How should the federal educational loan system be reformed? This is a complicated question, which of course applies to all of higher education. Here I’m merely suggesting what might make sense for law school loans, which by themselves represent a several-billion dollar a year “investment” on the part of law students and, ultimately, taxpayers.

The most obvious initial reform would involve the federal government refusing to allow law schools to stick the government with the bill for whatever amount of tuition the schools decide to charge. For example, the government could limit federal educational loans for law school tuition to $15,000 per year (this figure represents the average cost of private law school tuition, in current dollars, 25 years ago. Public law school tuition averaged a quarter of that). Schools that wanted to charge more tuition than that would be free to do so, but students would either have to come up with the money themselves, or borrow it from private lenders (these loans would be dischargeable in bankruptcy), or be granted the difference by the school in the form of scholarships.

Such a reform would only be a first step. The way higher education is paid for in this country is in need of a complete overhaul, and law schools are only a small part of the picture. Still, stopping the absurd practice of requiring taxpayers to pay literally whatever law schools decide they want to charge for law degrees is a good place to start.

Should noted philanthropist Ndamukong Suh have been suspended for two games?

[ 26 ] November 30, 2011 |


Sometimes we need to look beyond opinions from the usual suspects for a more nuanced treatment of these sorts of questions.

Blame it on Cain

[ 36 ] November 29, 2011 |

The news that Herman Cain is “reassessing” his presidential campaign after a woman’s claim that she had a 13-year extramarital affair with him became a news story once again illustrates the unfortunate tendency to confuse legitimate news stories with pure gossip whenever the word sex is involved.

The Cain campaign’s response to the claim attempts to take advantage of this confusion:

In a statement, Cain’s campaign called the accusations just another attempt to “derail the Cain Train.”

“The Cain Campaign is not surprised that another female accuser has come forward due to the fact that earlier allegations were unable to force Herman Cain to drop his presidential bid to renew America,” the campaign said in a statement.

The previous allegations against Cain all involve alleged sexual harassment on his part against his employees, i.e., a species of serious employment discrimination which is actionable under state and federal law, and they were, if credible, obviously of great relevance to Cain’s candidacy. A sexual liaison between consenting adults is a different matter altogether, but the Cain campaign is trying to take advantage of the widespread belief that sexual harassment is about personal sexual behavior per se, (or to put it more bluntly, that sexual harassment is just another word for crazy vengeful gold-digging tarts upset about whatever stuff women inexplicably get upset about), rather than about the abuse of power in an employment context.

Obama’s judge problem

[ 17 ] November 29, 2011 |

I have a piece in the Daily Beast, commenting on the fact that Obama’s judicial nominations are getting rejected by the ABA at four times the rate that Bush II’s and Clinton’s were.

The most prevalent form of degradation in academic life

[ 27 ] November 28, 2011 |

head in sand

Legal academia is very much on the defensive at the moment, which is all to the good. The mixture of outrage and pearl-clutching which greeted David Segal’s latest entry in his series in the New York Times on the state of American legal education is a sign of, if nothing else, the extent to which law school faculty and administrators are finally noticing that we are dealing with that most dreaded of things, a genuine public relations crisis. (Unlike the economic and personal disaster which has been overwhelming a growing percentage of our graduates for many years now, this is one crisis which cannot be ignored).

Given that reaction, this seems like a good time for a restatement of some fundamental points, to help avoid a deflection of the conversation into tangential issues such as the actual value of legal scholarship, how much law professors get paid, how much Socratic method nonsense still inhabits our classrooms, etc. (Many thanks to Matt Leichter’s invaluable Law School Tuition Bubble for collecting and analyzing much of the data cited below).

POINT ONE: Over the past 20 years, the share of the nation’s GDP attributable to the legal services sector has deteriorated significantly. In the late 1980s, the legal services sector represented slightly more than 2% of GDP (the same percentage as in the mid-1970s). As of 2009, that figure had declined to 1.37%. Contrary to the standard narrative within legal academia, which assumes an increasing or at least steady demand for legal services relative to overall economic growth, the demand for legal services within the American economy has been declining, relative to the rest of the economy, for the past two decades. In other words, “law” (as an economic entity) appears to be a mature industry in relative decline.

POINT TWO: The rate at which American law schools are producing aspiring lawyers far outstrips the demand for new lawyers, and this has been the case for many years now. The Bureau of Labor Statistics estimates that the economy will produce an average of approximately 24,400 new jobs for lawyers per year over the next decade. ABA-accredited law schools are producing 45,000 new graduates per year, while non-accredited schools produce several thousand more (Approximately 53,000 people pass state bar examinations each year). An important sub-point about these statistics is that the BLS estimates are not for how many jobs will be filled by new law school graduates: they are for all new legal jobs. What this means is one can’t assume, for instance, that half the 50,000 aspiring lawyers (conservatively speaking) that enter the market each year will get law jobs, since some of those new jobs are going to be taken by people already in the market for attorney jobs who were not currently employed as attorneys. Obviously, this problem gets worse over time, as the surplus of lawyers without law jobs continues to increase.

POINT THREE: The cost of law school is, in economic terms, arbitrary. Given the faith in well-functioning markets that well-functioning citizens in our society are expected to maintain, this point is extremely counter-intuitive, but it is, given points one and two, essentially undeniable. For more than twenty years now, the demand for the services of American law school graduates has been declining relative to the demand for other economic goods (not constantly, of course, but the overall trend is clearly negative). For much if not all of that same time, the output of American law schools has far exceeded the demand for that output, and now appears to be in a roughly two to one ratio. Yet since 1985, tuition at private law schools has increased by 2.5 times in real terms, while resident tuition at public law schools has increased more than fivefold, again in real terms. In other words, over the past quarter century, the relative change in the cost of acquiring a law degree has borne no rational relationship to the relative change in the value of a law degree.

POINT FOUR: There is, to this point, almost no sign that this arbitrary relationship between the change in the cost of acquiring law degrees and the change in their value is going to move toward a more orthodox economic relationship, in which the decreases in value trigger decreases in price. Law schools continue to raise tuition at far faster than the rate of inflation, and the market for the graduates of law schools — which it bears repeating has been bad relative to the rest of the economy for many years, for reasons that have nothing to do with the recession that began in 2008 — continues to deteriorate. An extrapolation of current trends into the very near future, i.e., four years from now, suggests that private law school tuition will average $50,000 per year, and will be more than $60,000 at some schools, while average resident tuition at public law schools will be as high as private law school tuition was in 2007. This means that the total cost (tuition and related expenses, plus opportunity cost) of attending law school will be approaching $300,000 for many students and will be at least $200,000 for the vast majority. Meanwhile, it appears that around half these graduates will not have real legal careers, defined as long-term employment in jobs requiring law degrees, and that indeed for a significant percentage of them acquiring a law degree will have made them less employable than they would have been otherwise (In other words, for these graduates, law school will have turned out to have been a bad investment even without regard to the direct costs and opportunity costs incurred by attending it).

POINT FIVE: These otherwise unsustainable trends are being maintained by a combination of unlimited federal educational loan money and, to a lesser extent, poor information regarding the actual relationship between the costs and benefits of acquiring a law degree. Any significant change in either of these factors, but especially the first, will lead to a massive disruption in the current economic structure of legal education in America.

Hast thou seen my anointed, TEBOW?

[ 68 ] November 27, 2011 |


A reading from the Book of Comebacks, Verses 3-13

Hast thou seen my anointed, TEBOW
For verily, there is none like him.
Let the heathen rage, for my BLESSING is upon him,
And I shall smite down those who mock him
Hurling them from their high places into
A slough of despond,
Until the LAMENTATIONS of their women
Fill the air, and they shall know him in his GREATNESS.

Let not the Chief nor the Raider lay strong hands upon him
For my WRATH shall blaze up against them;
And let the Charger give way before him
So that the scribes compose paens to his glory
And the minstrels sing A NEW SONG to his reign.

Seriously, this is starting to get weird.

Volunteers needed

[ 32 ] November 22, 2011 |

I’m working with a producer at a national news network to put together a segment on the employment and debt crisis among recent law school grads. We need someone who:

(1) Is a recent law school grad

(2) Has a large amount of law school debt (at least six figures)

(3) Is either unemployed or seriously underemployed

(4) Is struggling economically as a result

(5) Is articulate, and comfortable with the idea of being on camera

Ideally, this person will have gone to law school for reasons that would resonate sympathetically with a general audience, i.e., not because he or she was confident a law degree was going to make them rich. Also, this person should have relied on misleading employment statistics when deciding to go to law school and to incur large amounts of debt in order to do so. Having a family (spouse, and or child/children) is also a plus. It would be helpful if the person was either fairly close to the New York City area, or in the Denver metro area.

If you would like to participate, please email me ASAP at If you’re not a suitable candidate but know people who you think would be and who might be willing to participate, please forward them this request. Thanks in advance.

Verlander AL MVP

[ 40 ] November 21, 2011 |


This is yet another classic example of Rust Belt media bias. Personally if I see one more HBO special about the Tigers-Indians rivalry I’m going to puke. Meanwhile Derek Jeter put up MVP numbers yet again, but still toils in obscurity.

The cost of legal scholarship

[ 21 ] November 21, 2011 |


David Segal’s latest NYT piece in his continuing series of articles on the (dys)functions of legal education features among other things some calculations regarding the exponential growth in both the amount of legal scholarship that’s being published by American law school faculty, and the cost of that scholarship to law students (very few of whom have much if any interest in law as an academic subject, as opposed to as a means of making a living).

I have an article here on how those calculations were made, and will have more thoughts shortly on what all this portends for the mess that is the current state of American legal education.

Skin in the game

[ 12 ] November 20, 2011 |


Akhil Amar and Ian Ayres have a piece in Slate that features an ingenious scheme for requiring law schools to tie their own financial welfare more closely to that of their graduates. Amar and Ayres insist that if law schools want to continue to fund their operations via federal loan money, they should have to disclose the professional and economic status of their graduates — and not merely after graduation, but for a decade afterwards.

The latter point is becoming more important all the time, as it becomes increasingly the case that even those “lucky” graduates (perhaps 15% of all law school grads) who acquire high-paying big firm jobs at graduation find themselves scrambling for much-lower paying and less glamorous positions a few years later, while still carrying educational debt loads that can no longer be managed on the salaries they’ll now be making. (This assumes — and with every passing year it becomes a more problematic assumption — that laid-off big firm associates go on to get other legal jobs).

The authors also make an excellent point when they argue that schools should have to dis-aggregate graduate information in a way that would allow prospective students and people completing their first year to consider the long-term outcomes of graduates with records similar to their own (It’s one thing to think you’ll be the exception to the rule when you’re making that bet in a relative informational vacuum: it’s quite another when you realize before you enroll or after your first year that literally no graduate from your law school with your credentials is making as much as $60,000 per year three years after graduation).

But Amar and Ayres are well aware that greatly increased transparency only begins to address what they with refreshing straightforwardness call “the crisis facing legal education.” Their analysis recognizes that better information about employment and debt ties the financial fortunes of law schools to those of their graduates only indirectly. Further, as long as law schools don’t pay any collective price for the lottery ticket mentality of their more irrationally optimistic students, they’ll have no self-interested reasons not to continue to cultivate that mentality. Hence what’s needed is a device that will both help more students sober up before tossing good money after bad, and hit law schools in their pocketbooks when students who should drop out are given some powerful incentive to do so.

Amar’s and Ayres’ refund proposal — which would require law schools to give back half a student’s first-year tuition if the student drops out — does just this. It’s of course not the only way to force law schools to put more of their own skin in the game, but it’s a thoughtful attempt to grapple with what is perhaps the most fundamental financial problem with the current structure of legal education: that the rewards that flow from the billions of dollars in federal government loans taken out by law students every year are front-loaded onto the current bottom lines of law schools, while the risks of those loans are back-loaded onto students and (eventually) taxpayers.

I’m also glad to see the authors deal head on with the question of a potential conflict of interest:

In making this proposal, we might be accused of having an institutional conflict of interest. We’re pretty confident that few students at Yale (like few employees at Zappos) would take the bribe to quit early. But if we’re right, this is something about which to be proud. If 20 percent of the students at another school took the offer, applicants might think twice before enrolling. And if the percentage taking the rebate becomes too large, government should think twice before lending.

Precisely. No one (as far as I’m aware) has yet argued that a JD from Yale Law School is, all things considered, a bad bargain. On one level, the whole problem with contemporary legal education is that 199 other law schools are to greater and lesser extents trying to be Yale Law School, when it makes sense for perhaps five or ten of them to engage in that particular enterprise. The Yale model appears to work, by and large, for Yale graduates. A cheap knockoff (although cheap is hardly the right word) of the Yale model doesn’t work — in either academic or economic terms — for the vast majority of law students who are subjected to it.

This article is a very encouraging sign that people at the top of the legal academic hierarchy are coming to grips with the extent to which the basic economics of law school no longer make sense. Even more encouraging is Amar’s and Ayres’ recognition that what they quite properly call the crisis of contemporary American legal education requires a much more creative response than the kind of mildly reformist tweaking almost always advocated by people at the top of the social heap. That two people at the top of our particular heap have come up with such a response is very good news indeed.

If people protest and the media notice . . .

[ 42 ] November 16, 2011 |



. . . then The Terrorists will have won.


when people were freaking out over the Patriot Act and Homeland Security and all this other conveniently ready-to-go post-9/11 police state stuff, because it would obviously be just a matter of time before the whole apparatus was turned against non-Muslim Americans when they started getting complain-y about the social injustice and economic injustice and income inequality and endless recession and permanent unemployment? That day is now, and has been for some time. But it’s also now confirmed that it’s now, as some Justice Department official screwed up and admitted that the Department of Homeland Security coordinated the riot-cop raids on a dozen major #Occupy Wall Street demonstration camps nationwide yesterday and today. (Oh, and tonight, too: Seattle is being busted up by the riot cops right now, so be careful out there.)

In a completely unrelated story, this fall college football and basketball teams all over the country are wearing “camo” uniforms and even playing a game on an aircraft carrier to honor the troops.

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