Something wicked this way comes

Just got an email from my faculty assistant regarding the twentieth edition of the Bluebook.  Her email included a Passover-style four questions, to which I could not respond “no” quickly enough:

1.  Will you need a complimentary online version of The Bluebook (20th ed)?

2.  Will you need the Teacher’s Manual, Understanding and Mastering the Bluebook, by Barris (20th ed)?

3.  Will you need a complimentary online program to use along with the teacher’s manual, Understanding and Mastering the Bluebook Interactive Exercises (20th ed)?

4.  Will you need Interactive Citation Workbook for the Bluebook: a Uniform System of Citation (20th ed)?

As I argue in detail here, we don’t have to take this lying down.  Let’s not let a bunch of law students dictate how we teach legal citation to our students.

A proposal so good it will never be adopted

Every once in a while, I read something so smart it makes me wish I’d written it.  In today’s Washington Post, David Lat of Above The Law suggests that the federal government either stop lending people money to go to law school or “impose per-student or per-school caps on loan amounts” as a way of forcing law schools to lower their tuition.

Let’s consider what would happen if the government actually adopted the most radical of Lat’s proposals and simply stopped lending people money for law school.  Surely a lot fewer people would go to law school.  Law schools would, as Lat writes, be forced to lower tuition, but they wouldn’t lower it to zero. A lot of people would not be able to afford law school, even at the reduced prices, and would not be approved for private loans.  These people simply would not go to law school.  This is a good thing, because law schools currently enroll and graduate way too many people in comparison to the actual demand for new lawyers.  In 2012 and 2013, law schools produced 46,364 and 46,776 graduates respectively, but only 57% of those graduates obtained full-time jobs requiring bar passage.

Inevitably, some law schools would be forced to close.  Again, this is a good thing.  This country doesn’t need 200 law schools, and unfortunately, there are a lot of predatory law schools with dismal employment statistics.  (Lat mentions that just 22.9 percent of Cooley Law School’s 2013 graduates got jobs as lawyers.)

The main argument for preserving the current system of taxpayer-subsidized legal education goes something like this:  fairness, blah blah blah, elitism, blah blah blah, opportunity.  (Maybe throw in something about underserved communities.)  The idea is that without federal loans, only people who are rich or “elite” would be able to go to law school, and that’s not fair.  Rich people could still go to law school because they could just pay for it, as they do now.  “Elite” people–for example, those admitted to T14 law schools–could still go to law school because private lenders would happily loan them money based on their earning potential.  Everyone else would be screwed.

The problem with this argument is that way too many people are screwed under the current system; they’re just screwed differently.  Instead of being told they can’t go to law school, they’re told they can, as long as they don’t mind borrowing $150,000, and they don’t realize until it’s too late that their job prospects are terrible.

There is no inalienable right to a legal education.  It’s not something that should be accessible to anyone, regardless of one’s ability to pay or demonstrated potential for success.

In the interest of full disclosure, I financed my legal education through a combination of grants, personal savings, and yes, federal student loans.  (OH THE HYPOCRISY!  Federal loans for me, but not for thee!)  How do I sleep at night?  Well, I went to Michigan, and my predictors suggested–correctly, it turned out–that I would do OK there.  Doing OK at Michigan Law in the late 1990s and early 2000s meant a virtually guaranteed six-figure salary.  My combined debt from undergrad and law school was around $110,000, and I paid it off in five years.  The federal government made money off its loans to me.  Had there been no federal student loans available when I entered law school in 1999, presumably some private lender would have been happy to loan me money for law school.

That Steven Solomon column: maybe not so “smart” after all

After Professor Steven Solomon published a column in the New York Times about the legal market last week, I called the piece “smart” and said my only problem with it was the pointlessness of asking whether now is a good time to go to law school.  Well, it turns out there are some other problems with Solomon’s column, as Kyle McEntee of Law School Transparency pointed out on Above The Law.  I can’t improve on McEntee’s commentary, so I’ll just recommend that you read it.

Whenever one writes about the legal job market, it’s important that all statistics used be accurate and complete.  It’s now clear to me that Solomon’s column falls short.

Is now a good time to talk about whether now is a good time to go to law school?

Professor Steven Davidoff Solomon published a smart piece in the New York Times last week about “signs of vigorous life in the legal job market.”  The article is remarkably balanced, giving equal time to arguments against going to law school.  My only problem with the article is that it starts by asking whether now is a good time to go to law school.  It’s such a stupid, meaningless question–the only answer one can ever give is “it depends”–and yet it keeps coming up again and again.

Asking whether now is a good time to go to law school is a bit like asking whether it’s a good time to stay at a hotel.  In order to provide any kind of helpful answer, I’d need to know a lot more about the person considering hotels:  Where are you right now?  Where are the hotels you’re thinking of checking into?  Which hotels are you considering, and how much will they charge you?  What is your financial situation?  Why are you thinking of staying at a hotel?  Where will you sleep on the nights in question if you don’t stay at a hotel?

Just as there are a lot of hotels, there are a lot of law schools in the United States, and talking about them in general terms makes no sense.  There really is never a bad time to attend Yale, Harvard, or Stanford, as long as you want to be a lawyer.  Graduates from those law schools have excellent job prospects even in bad economic times.

On the other hand, there is never a good time to enroll in a law school like Cooley, regardless of what its President might tell you.  In 2013, the most recent year for which data is available on Cooley’s website, only 308 of the school’s 1143 graduates–that’s 27%–secured full-time, long-term jobs requiring bar passage.  Cooley’s employment statistics vary from year to year, but its placement numbers are never anywhere near high enough to justify paying its $43,540 annual tuition.

There are a lot of law schools–nearly 200–in between Yale/Harvard/Stanford and Cooley.  Is now a good time to go to one of those schools?  Again, it depends, and it depends much more on why you want to go to law school and what schools you get into than on the current or projected market for legal services.

The consequences of a bad decision to go to law school are much more serious than the consequences of a bad decision to stay at a hotel.  Law school can leave a person hundreds of thousands of dollars in debt, unemployed, and with little hope of finding a job as a practicing lawyer.  In deciding whether to attend law school, prospective students should choose wisely, and that probably means avoiding, or at least avoiding deciding based on, articles on whether it’s a good time to go to law school.

Thoughts on the Indiana RFRA controversy

Here’s a really good explanation from Slate, written by three law professors, of how the controversial Indiana law absolutely gives businesses a license to discriminate against gays.  I will now try to write something intelligent, or at least coherent, about this controversy.

Consider the case of a photography company that refuses, on religious grounds, to photograph a same-sex wedding.  This is not a hypothetical:  as the Slate piece explained, this actually happened in New Mexico, resulting in a lawsuit that went all the way to that state’s Supreme Court.

As a preliminary matter, I question whether any religion really requires that its adherents not provide photography services to same-sex weddings.  There’s obviously nothing about wedding photography in the Bible, and if Jesus were around today, I think he’d probably say it’s OK to take the pictures.  But I’ll grant that there are some Christian photographers out there who would refuse to work a same-sex wedding not out of bigotry but based on sincere religious beliefs, however misguided I find those beliefs.

So what should happen?  There are at least four options:

1.  One option, which I completely reject, is to stand with the photographers, to praise and defend these brave soldiers in the War on Christianity.  This is probably what Governor Pence believes in his heart, and what truly horrible people like Rick Santorum will say out loud.

2.  Another option, which a lot of people on the left treat as the obviously correct answer, is to use government power to force the photographers to work the wedding.  This can presumably be done by making gays a protected class and characterizing the photographers’ refusal as discrimination–which it surely is, even though it may be motivated by sincere religious beliefs.  It is not obvious to me that this is the best answer, or the only answer that a supporter of gay rights can give.

3.  Another option is to treat the photographers with love and respect and hope they come around eventually.  This approach has been advocated at times by the writer and gay-rights pioneer Andrew Sullivan, although I can’t find a good example right now.  Using race as an analogy, there probably aren’t many business in the U.S. today that would discriminate against African-Americans if they could.  Public opinion is moving rapidly in the direction of acceptance of and support for gay people.  In time, this will cease to be an issue.  We can speed the process by treating people like the Christian photographers with love and respect.

It’s important to recognize that this third option doesn’t do much of anything for the gay couple looking for a wedding photographer, and it certainly does seem unfair to have to tell them, you’re out of luck, I hope you can find another photographer.

4.  The last option that I can think of is sort of the opposite of option 3.  You still don’t involve the government, but you declare war on the Christian photographers.  You organize a boycott.  You use the internet to publicize their discriminatory policies.  You generally do everything you can to make it as difficult as possible for companies to do business this way.

I must admit that as someone who leans libertarian, I am partial to this fourth option.  The problem, of course, is that it could leave the same-sex couple in an even worse position than the third option would.  Suppose the groom and groom live in a small, conservative town where just about everyone shares the religious beliefs of the photographers.  The boycott is never going to get off the ground.  You’d probably end up with a Chick-fil-A situation where huge numbers of people rally in support of the photographers.

In the end, I don’t know what the answer is, but I do think my fellow gay rights supporters should occasionally question whether more government intervention is always the right solution.

Bar Exam Under Fire

Interesting article the other day in the New York Times.  A few states are looking into allowing people to practice law without first passing the bar exam.  Wisconsin is the only state that currently does this, but the article explains that Arizona, Iowa, and New Hampshire have at least considered no longer requiring bar passage as a prerequisite for legal practice.

I wish I could give you a strong take on this–either “this is fantastic!” or “this is horrible!”–but I’m afraid I’m somewhere in the middle on this.  The purpose of the bar exam is to protect consumers of legal services from . . . well, this is where it gets tricky.  The only thing we can say for sure is that we’re protecting them from being represented by attorneys who have not passed their state’s bar exam.  The idea, of course, is that in order to pass the bar you have to be reasonably smart and hard-working, and clients surely deserve attorneys who are both of those things.  One could argue that people who pass the bar exam also know a lot about the law, but in my experience that kind of stops being true within a few hours of completing the exam.

Some question whether the bar exam really tests how smart people are as opposed to testing their ability to memorize rules, which I agree isn’t all that essential to good lawyering.  However, the two bar exams I took, Florida and California, both contained significant writing and analysis components.  In California, as I recall, the multiple choice section accounted for just one third of the test (two half-day sessions in a three-day exam).

In the article, Professor Kristin Booth Glen of CUNY criticizes the bar exam as being part of a “guild mentality that there should be a barrier to prevent the legal market from being flooded during times when fewer jobs are available.”  The problem with this argument is that there absolutely should be barriers to prevent the market from being flooded and, more important, to prevent people from going to law school and then not getting a job practicing law.  However, those barriers should be erected at the front end, before students accumulate $172k in debt.

In the end, I’m open to bar exam alternatives as long as they ensure, to the extent possible, that those permitted to practice law are reasonably smart and diligent.  This is where New Hampshire’s program, which I’ve criticized before, falls short.  I would have no problem waiving the bar passage requirement for people who graduate, say, in the top 10% of the class at a top 10 law school.  That is a very impressive accomplishment, and one that tells me much more about a person’s fitness to practice law than does passing a single exam, however difficult it may be.  Of course, nobody is proposing waiving the bar passage requirement for those people, and any such proposal would immediately be met with complaints of elitism and exclusion.  (Never mind that as a client, I would want an elite attorney, and I’d want the legal profession to exclude a lot of people.)

Don’t all apply at once now

This post may be somewhat controversial, as it’s critical of another law school.  But I simply cannot let this pass without comment.  A few days ago I received an email with a job listing from the University of Florida Levin College of Law.  U-F is seeking applicants for a Lecturer position in its Legal Drafting Program.  So far, so good.  The listing goes on to state that the salary for the position will be $50,000-$53,000, “commensurate with qualifications and experience.”  What the listing does not say but should is this:  “the work you would do in this job is not particularly important to, or valued by, the law school.”  Not only is the salary shockingly low (Gainesville is cheap, but it’s not that cheap), but the range is the narrowest I’ve ever seen in a job listing in this field.  So the other message being conveyed here is that it is not important to U-F that this position be filled by someone with outstanding qualifications and experience.  In fact, we know exactly how much that’s worth to U-F:  $3,000.



The always-excitable Above The Law is reporting that Charleston School of Law is offering buyouts to some of its tenured professors.  Apparently this is big news to ATL, and the headline even includes the word “yikes.”  I’ve been operating on the assumption that most law schools are currently offering buyouts to tenured professors, with varying levels of both aggressiveness and formality.  I doubt many schools are sending letters like Charleston did, but I think it’s safe to assume that just about every law school in the country is doing whatever it can to cut spending and increase revenue.  Enrollment is down just about everywhere, which means revenue is down.  Schools have to do something.

Consider the following hypothetical:  somewhere in America today, a tenured law professor making $250,000 a year walks into her dean’s office and says, “I’m thinking of leaving.  What’s it worth to ya?”  I don’t think many deans would respond by saying, “get out of my office right now and continue to work here for another 25 years.”  No, I think the response just about anywhere would be to negotiate some kind of buyout.

A Word to the Wise

I’m continually amazed at how little my students know about Microsoft Word.  It’s gotten so bad that one of my colleagues has explored offering some kind of training course for the students.  I think that in any law office or organization where our students will work after graduation, there will be an expectation that everyone working there knows the basics of Word.  You should know what track changes are and how they work, what the red and green underlining means, how to indent a paragraph, how to create one-inch margins, etc.  None of this is difficult, but not knowing this stuff really affects the quality of a legal document.

Scott Walker: Winning

If you’re having trouble falling asleep tonight, this WaPo piece on Scott Walker should do the trick.  The Post went digging through Gov. Walker’s past, including talking to a bunch of people who knew him thirty years ago.  What did they learn?  Well, it seems our next President was late for French class in college.  VERY late.  And not just once, but several times.

Assuming Walker’s campaign can recover from this shocking revelation, he will eventually need to explain the central mystery explored in the article:  what kind of person running for student-body president has a campaign manager?  Seriously, is this really a thing?  Did he have a press secretary too?  A body man?  Bundlers?

Anyway, if Walker really is going to be the GOP nominee, as some of the talking heads claim to believe, the next 21 months are going to be incredibly boring.