Comment on the ABA Task Force Working Paper

Here's the paper:  ABA Task Force Working Paper

Here's my comment:  Dogpoop.

Let's start with a theme that legitimately perturbed me:

The Task Force has resolved these challenges [you "resolved" them?] by structuring the Working Paper as a field manual for people of good faith who wish to improve legal education as a public and private good... 

Moralizing and blaming are no productive.  What is needed instead is a dispassionate and pragmatic examination of the current situation that begins with a presumption of good faith on the part of all participants.... 

For the past five years, participants in the system of legal education have responded to the environmental and structural stresses and challenges with good faith and increasing commitment.

There absolutely is a place for pragmatism and dispassionate evaluation.  But there's also a place for anger and moral outrage, and such is necessary to a proper evaluation.  This situation has caused a lot of real financial pain for thousands of graduates over the last decade (at a minimum - likely more like three decades).  People attended law school wanting to invest three years to have a thirty or forty year career and they wound up carrying the albatross of student loan debt and structural unemployability.  If you REALLY want to "solve" the problem, you have to address the problem, and the problem is that real life people have wound up real life broke and real life miserable because this system failed them.  If there wasn't passion involved, this wouldn't be a credited topic of discussion among the landed gentry.

And on what basis should I presume good faith?  Why isn't there a place for moralizing?  Systemic problems don't arise in a vacuum.  There are good people in this system, but there's clearly exploiters.

We know for a fact that this system has liars in it.  We know that Villanova, Illinois, and Rutgers have committed blameworthy acts.  We know that a claim for fraud against Thomas Jefferson has made it to discovery.  We know that Don Leduc, Larry Mitchell, Stephen Sheppard, Claudio Grossman, Jay Conison, Patrick Hobbs, and others have made ridiculous statements, some on a regular basis.  We know that Indiana Tech sold and built a law school on totally bogus premises.  Where was the good faith in publishing bogus employment and salary statistics, which probably 3/4 of law schools did?  Where is the good faith in dressing down unemployed alumni?

There's no good faith in propaganda, Task Forcers.


If law school really is a partial public good (see p. 6), how does the Task Force believe it's improper to assign moral blame to the lying liars who have abused the public good?  The ONLY way for this Task Force to have any genuine reform credibility would be to excoriate the worst of the propagandists for being utterly full of shit.  Maybe there are honest deans, but I simply can't believe them when they tell me I should think the lying liars in the system have been acting in neutral, clean good faith.  Life doesn't work that way, and people whose six figure incomes are dependent on a new crop of decent students showing up aren't objective.

If you can't see the whole problem, how the hell are you going to cure it?

The Task Force also makes some errors that make me question the effort that went into this work despite the involvement of such august people and a year of time.

For example, on page 6, they call legal education a "private good" because it "provides those who pursue it with skills, knowledge, and credentials that will enable them to earn a livelihood."  But then two paragraphs later, they state that medical education "is mostly seen as a public good."  Really?!?

On page 9, they essentially rewrite the history of higher education and claim that the rise of a job-oriented or consumer outlook of legal education is new.  It's not.  People have always gone to law school for the job that came after it.  Law school was no more a trip for personal development in the 50s than it is today.  The difference is that law schools could get away with a generic Socratic education in the 50s in ways they simply cannot today for a variety of reasons I won't get into.  They act like this "shift" is the reason for the demand for consumer information.  No, the demand for consumer disclosures is because the law schools have spent the last fifteen years lying about employment outcomes.  And here's where their insistence on "good faith" clouds a proper diagnosis.

On page 11, they make at least two erroneous statements.  First, that "students...who do not receive substantial scholarships pay for their education through loans."  Uh, usually even students who DO get substantial scholarships have to take out loans (how many 24-year-olds have 40k lying around for living expenses?).  Second, they claim that loan repayment can be a burden (certainly true), "particularly in the early part of a career when earnings my be low."  This, too, misses a central truth:  earnings for this generation of lawyers do not or will not necessarily rise ten or twenty years out.  There's a very good chance new BigLaw associates will never, ever make more than they do in their third year before being hustled back to the revolving door.

If you don't understand the problem in full, you cannot cure the problem in full.  The Task Force all but accuses the scambloggers of bad faith, but at least they (or we, I guess) understand the way the world works.

On page 13, they completely muck up economics.  After noting that "the supply of lawyers appears to exceed demand in some sectors of the economy," they claim there is a low supply of lawyers in rural areas and there is a need for low-income representation.  These are not sectors of the economy, nor do they represent real demand for legal services.  It's simply a way for the Task Force to somehow qualify the gross oversupply of lawyers with faulty logic.

The most sensible part of the whole Paper is on pages 15-16 regarding faculty culture at law schools.  But even then they fall short in pointing out the factors that cause faculty members to resist change.  It isn't just a cultural issue, but also an economic one.  Whether law professors want to admit it or not, many law professors must maintain the status quo to maintain their present lifestyles.  From an ideological perspective, most law professors are progressive and would be open to areas of reform if it didn't involve their livelihood.

On page 17-18, they identify targets of their report.  This is the American Bar Association's task force, mind you.  Of the fourteen entities listed, not one reads "law students" or "licensed attorneys" or "juris doctor holders."  They list "law firms," but that is not the same (if they think it is, they're more lost than I thought).  Instead, they list the federal government.  That's great...until you get to the targeted recommendations on page 30-34 and there's no mention of curtailing or more heavily regulating the GradPlus loan program or other law school financing mechanisms.  I guess that was just an oversight?  Oh, wait, they say they were limited by time and resources to make any recommendation.  (p. 23).  Really?  It's your own damned industry!  You've got like 20+ people on this thing and they've had a year.  Give me a break.

And I suppose the idea of actually increasing standards (they vaguely mention this as a possibility on p. 19) and/or cutting the number of accredited law schools in half was an oversight, too.  It's a legitimate proposal that's been made by numerous people.  I'll make it here, and I'm doing so in good faith:  roughly one third of the law schools in the United States serve no purpose but to enrich private parties at public expense and should close, and one way to accomplish that is by increasing regulation by tying accreditation to market outcomes.

Speaking of which, the word "employment" is not mentioned anywhere in their "general themes of reform" section.  It doesn't appear between pages 13 and 33.  On the latter, it suggests only that law schools develop a "clear statement" about legal education and employment outcomes.  The word "jobs" doesn't appear after page 12.  "Career" is barely mentioned.  The words "salary" and "salaries" are completely absent from the entire 34 pages of the Paper.

Remember, this problem came to light because graduates of law schools could not find gainful employment and sufficient salaries to repay their law school debt.  The ABA Task Force has decided to issue a 34-page report that basically concedes the problem and spends the remaining pages word-vomiting vague principles and passing the buck off on to the same people who have been screwing it up for the last thirty years.

I'm going to decline to address the specific recommendations on pages 30-34, as I can't even agree with the focus of the Task Force's paper, their failure to actually address it to law students or practicing lawyers (you know, the people your trade organization ostensibly represents), I disagree with much of the foundation of their Paper, I disagree that the problem is really and complex and multifaceted as the interested parties present it to be, and I especially disagree that we can presume good faith of the same people who have trampled all over the concept in recent years.

Yes, they acknowledge some problems.  But they can't even see some of the basic problems and reasons for the resultant situation and miss the mark on many others.  The doctor found three symptoms when the patient had six.  Oops.

Here's the worst:  The fundamental tension isn't one between public good and private good.  It's one between the financial incentives and positioning of generation A vs. the financial disadvantages and positioning of generation B.  All the rest of this gibberish is really just a sideshow.  This whole shitball developed because bankruptcy discharge was removed and the loan spigot got turned on full blast and law schools, being fundamentally economic actors, gulped it up, and, being sociological actors, phrased everything to make themselves look noble while doing so.  Law schools were in the unique position that they could claim credibly that some graduates made bank and the ABA did nothing to stop the former generation from exploiting the latter under the circumstances.  THAT'S the real tension, and until the Task Force realizes that, I can't take it seriously.

They're basically misdiagnosing the cause, which makes their treatment suggestions unworthy of consideration.  This system has cancer and they're claiming it's dyspepsia.  I don't care what the treatment is, it won't work unless you attack the tumor.  We need surgery or chemotherapy, not some pills and observation suggestions.