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16 New Rural Lawyers, Access to Justice Problem Solved

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Last September we told you about South Dakota’s Project Rural Practice, which wanted to provide incentives to attorneys for practicing in rural areas. And South Dakota is now proud to announce that initiative has been signed into law.

South Dakota Chief Justice David Gilbertson applauds the bill and informs us that this bill makes South Dakota the first state in the nation to have legislation drafted specifically to assist recruit attorneys into rural parts of the state. South Dakota: Pioneers since the Oregon Trail (that’s actually not true. South Dakota has been so historically lame your baby sister couldn’t even die of dysentery as your oxen drowned while you were fording the river).

South Dakota has been a pioneer in reactionary legislation, though. About two weeks ago they became the first state in the nation to enact a law explicitly authorizing school employees to carry guns on the job. So maybe that will create some work for the new rural South Dakota lawyer.

Before you pack your bags and head out West (or North if you're in big hat country, or East if you're in grunge music country), let’s talk program specifics. You can read the full text of the bill here, but we’ll go ahead and hit the highlights for you.

This program will only be available to counties with a population of less than 10,000, of which (according to Wikipedia), South Dakota has 49. Interested counties will have to apply for the program to the Unified Judicial System of South Dakota, which will consider the county’s ability to support and sustain an attorney, including, among other things: the demographics of the county, age and number of the county bar, economic development in the county, proximity to other counties receiving assistance, and evaluation of the attorney seeking assistance. The county will also have to agree to pay 35% of the incentive payment.

The incentive payment is 5 equal annual installments, equivalent to 90% of the University of South Dakota’s School of Law resident tuition and fees, as determined on July 1 of this year. Current School of Law annual resident tuition and fees are $13,288, likely to increase before the next academic year, as tuition typically does. Increase aside, 90% of that is $11,959.20.

What do you have to do to get this not quite 12k a year, aside from being licensed in South Dakota and practicing law in a county of less than 10,000 people in South Dakota? You have to agree to practice law in that rural county for at least five years. You can also probably expect to hear something like, “Oh, so you can commit to Moody County for five years but not to me?!” from your significant other.

Other things to take note of? The law doesn’t allow more than 16 attorneys to participate in the program, and no new attorneys may be added after July 1, 2017. So you better apply soon.

If you’re worried about the fund running out of money to pay you, be one of the first to apply. The bill set aside $475,000 from the general fund for this program. Of the $11,959.20 the fund should pay you annually, the county you’ll call home is responsible for 35% ($4,185.72). The Unified Judicial System is authorized to receive another 15% ($1,793.88) from the State Bar. That leaves $5,988.60 to be paid by the Judicial System, assuming they take the Bar’s money, which they likely will. Multiply that by 5 and you get $29,943. That leaves enough money for to pay for 15.8 attorneys, based on current tuition. And don’t think that if you’re unlucky .8 person you can just quit a year early. If you breach your agreement under the program, you have to pay all the incentive money back, or risk disciplinary action from the State Bar.

But maybe we're being short sighted. Perhaps the budget does balance. All that's required is for USD's tuition to drop a little bit, in turn decreasing the support provided to each grad. It only needs to decrease 1.27%. So let's just see USD's historic tuition rates ...It's $12,340 this year, was $11,208 last year, and $7,498 back in 2004. So, tuition has gone up 10.1% since last year, and 65.6% over 8 years, so tuition is likely to be somewhere in the range of $17,000 in 2017 and $26,000 by the time the 5 years are up for the last entries into the program. Ugh...

As well intentioned as South Dakota's program is, one attorney for every 3 rural counties is hardly going to provide some great new access for the underserved, and there's probably going to be a budget shortfall later on. It's a classic case of too little, too little.

At least we haven't heard on strict requirements on what it means to practice law. $12,000 a year to turn away clients in the Badlands doesn't sound like the worse thing in the world.

Richard Epstein Said What About Regulating Law Schools

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NYU (go violets!) law professor Richard Epstein (go mono!) did an AMA on Reddit earlier today, and the top question asked of him was this:

Professor, thank you for taking some of your time to do this. I am an admirer of yours and am very interested to see how this goes. I am curious to hear your thoughts on current law school enrollment rates and costs given the state of the legal job market for new law school graduates. Do you think law schools owe a duty to their applicants to stop greedily taking in every eager mind that applies despite the economic prospects of that decision? What would you tell someone considering applying to law school right now if their reasoning was that it would be a solid career move?

And here is Epstein's response:

I am less paternalistic than you, and think that the innocents, so-called, have already scaled back their applications. But the market is tricky. It is stable at the top and if ever get a president with pro growth policies, business would expand. At the bottom, it is not a viable proposition with the current market format. It needs to be commoditized for it to work at a lower cost base. That requires corporate involvement which can then determine the mix of legal and para legal talents. But there is no cause for regulation. Information will travel quickly enough, as your question indicates.

First, wow, what a non-answer. Or at least, no an answer to the question asked. The questioner asked if law schools owe a duty to their students to behave with a bit of fiscal restraint, and additionally, what advice would he give to a prospective student applying to law school because of (perceived) career stability.

Professor Epstein answered that "it" needs to be commoditized, though it's not clear whether he means legal education or the delivery of legal services, and that corporations need to determine do something(?) to fix the ratio of lawyers to paralawyers.

And then he says two ridiculous things:

(1) There is no cause for regulation.

(2) Information will travel quickly enough.

No cause for regulation? How about all those law schools that publish fraudulent or at least willfully misleading employment data? There's no need to regulate them to prevent this sort of fraud? What about forging their LSAT/GPA data to make the school look like it's attracting better students? Is that a behavior the market self corrects in the absence of regulatory oversight? And how about requiring schools to give important information about scholarship retention rates, which the ABA recently required?

The response may be that regulations are useless because the ABA refuses to enforce them, but that doesn't mean that there isn't need to regulate the legal education industry. Besides, it's regulated like hell in ABA standards. What most people are asking for now in terms of increased regulation is to just require schools to not lie to prospective students quite so much. Or maybe Richard Epstein doesn't mind if his hamburgers are actually made from pink slime and horse meat, because the information will travel quickly enough.

Actually, no, it won't. Law schools hold all the information and while Law School Transparency has increased the amount of information out there through a mix of working with and shaming schools, the greatest tool for getting the info out there so it can spread is regulations requiring schools to publish the information.

In May of last year, LST asked NYU to improve its data disclosures. Here's what dean Ricky Revesz had to say in response:

I expect you are aware that, since the end of last year, we have added a substantial amount of employment data to the NYU Law website. If there is more information that would be suitable and helpful for us to provide, we are happy to consider doing that. For example, we are now looking into posting data of the type found in Table 12 of the NALP form (Source of Job by Employer Type), since that would likely be of interest to prospective and current students. Please let me know if there is additional information that you think would be helpful for us to publish.

Guess what data NYU still doesn't provide? The very table Ricky said they were "looking into" posting nearly a year ago. That, and all this other stuff:

  • Full-time and part-time employment by required/preferred credentials (“FT/PT Jobs”)
  • Classification of business jobs (“Business Jobs”)
  • Position held in a law firm (“Type of Law Firm Job”)
  • When the job was obtained (“Timing of Job Offer”)
  • Salaries by job type (“Employment Status Known” and “Employment Categories”)
  • Salaries by location (“Jobs Taken by Region” and “Location of Jobs”)
  • Salaries by firm size (“Size of Firm”)

NYU also fails to publish its ABA Employment chart, and its scholarship retention data, despite this being mandated by the ABA. Further, the salary data is publishes is in violation of ABA standards.

Do they know that "tool" and "box" are both derogatory?

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As promised about two months ago, the ABA has finally provided us with a toolbox- I mean, toolkit (box is too vaguely sexual)- to shatter the glass ceiling. It includes a glass cutter, hammer, and a tile saw, just to give every tool equal opportunity. It does not include protective eye or headgear because if you’re dumb enough to think the contents of the toolkit will generate equal pay, then you probably deserve a shard of glass to the eye (on the plus side, your skull is thick enough to protect you from most serious head trauma).

It may seem like I harp on this issue a lot. And I promise I’ll stop just as soon as the ABA stops being so stupid about it. And so begins today’s installment of Constitutional Daily’s Explanation of How the ABA Has Gotten Yet Another Women’s Issue Wrong. Brought to you by Constitutional Daily’s Token Woman.

Let’s start with what this mysterious toolkit actually includes. The ABA’s Gender Equity Task Force’s Toolkit for Gender Equity in Partner Compensation comes complete with the following:

Program agenda: just over 3 pages; apparently the Task Force is very into double spacing and bullets.

PowerPoint program: 14 slides, including 1 each for introduction, questions, and conclusion. Also includes several handy “insert bar logo here” boxes, so you can add a personal touch to your moronic presentation.

List of program materials: A half page document that includes links to 6 pdfs recommended as “background information for speakers” or handouts at the program.

Marketing information: a 2 page Word document that describes the program and lists “suggestions for attracting decision-makers,” as well as suggested dates, since you’re probably not capable of independently accessing a calendar if you’re actually going to use this thing.

And finally, a four page bibliography: described as an “extensive list of articles that can be referenced for more in-depth understanding of the issues.” It’s suggested that this be distributed to speakers (prior to the program) and to the audience at the program.

You may have noticed how often the word “program” appears in that list. Apparently, the whole “plan” of the Tool Kit is to have a presentation with a guest speaker and a panel discussion, and of course, handouts and PowerPoints.  It reminds us of the old Power Point slogan: PowerPoint -- Required for motivational speakers and inspiring accompanying handouts since 1990.

You may have also noticed how many “suggestions” the Task Force included in its Tool Kit materials. Kind of suggests even they think people dumb enough to use the Tool Kit will be too dumb to know how.

To its credit, the Tool Kit is slightly better than the ABA’s other suggestion of women networking with other women to fix the gender pay gap. But that’s largely because the Tool Kit doesn’t include a suggestion to present the program only to other women. In a bold step forward though, the ABA does suggest getting decision-makers to attend your program. This really is ground breaking, because prior ABA advice was to only try to influence the least influential people.

If you read over the material (although I have no earthly idea why you would, unless you’re trying to induce vomiting via eye-rolling-induced vertigo), you’ll probably notice that the ABA proffers no real solution to the gender wage gap problem. The program and all of its materials are essentially just a re-hashing of everything the ABA has already said about the issue.

One the one hand, I don’t know if I blame them too much for that. If you want to fix an issue, you have to identify it, explain why it’s a problem, and present that information to someone capable of addressing it.  You also have to convince that person that it is a real problem and that it’s a problem they want to spend energy, time, and money fixing. Uncharacteristically, I’m willing to give the ABA the benefit of the doubt here and say maybe that’s what they were trying to do.

On the other hand, the Tool Kit is still almost entirely useless, as most large firms have lockstep pay, at least for associates. Maybe you get a bigger bonus for having people in the right places throwing more work your way, but the gap for the actual salary is minimal, if existent.  Sure, there are bigger gaps at the partner pay level, but being made partner is also another game of who you know, and again, a big part of that pay comes from your bonus (more for bagging clients now than billing hours).

As for government attorneys, it’s pretty similar to associate pay, so far as salary. Again, knowing the right people may get you hired or promoted faster, but for employees on the same level and schedule, they’re typically getting paid the same amount, or within a very narrow range.

It seems like a lot of this involves who you know, and it does. But benefiting from knowing the right people isn’t just a government law job thing or a law job thing; it’s an every job thing.

Assuming there are no real differences between men and women and their lives and professional goals, there’s really only one way to end the gender wage gap: eliminate sexism. And good luck with that. I’m not suggesting in any capacity that sexism is good or right or should stick around, but it’s been a part of this country since its inception; heck, it’s been part of species since we had sexes. And while things have been improving, there’s a long way to go. We might as well suggest that patience will end the wage gap (actually, there’s very good reason to think that time will eventually cure this problem as much as it is curable, though that’s no consolation to a woman who was just relegated to the rank of permanent super-associate).

Of course, another option is to make all compensation even more formulaic than the six minute breakdown in a billable hour. Expanding the lockstep model with bonuses every so-many billable hours to all compensation levels. Surely that will make everyone more efficient and hardworking anyway, right? Of course not. Disregarding how much of my time I’d have to mark down as “bathroom” (I more or less live on coffee and Diet Coke), there’s a lot of work to be done in a law job that doesn’t fit into a formula, but nevertheless benefits the client or the firm. The few minutes of small talk I make with the prosecutor every time I call his office can’t be marked down on a timesheet, but they have helped me build a rapport with the guy so if I ask nicely and the situation is right, he’ll cut my client a break. At bigger firms and among higher ranks, you might not be the partner who bagged the whale client, but you’re the one who fields the GC’s late-night phone calls after the lead partner has gone home. You just can’t create a by-the-numbers compensation scheme that tanks into account all of the soft variables.

In the end, this Tool Kit is just another ABA contribution to the problem-with-women-in-the-law-problem. It’s chockfull of information that people who are interested in the issue already know, provides zero practical input on how to fix the issue, and of course is written in a tone that the speaker is somehow simultaneously writing and shaking her fist, so it’s totally going to change hearts and minds.

And for those of you snarky enough to suggest that fist-shaking sounds a lot like something I do, I’ll have you know that my hands are always open when they shake, and the shaking is induced by a combination of over-caffeination and stressing out about my actual job duties (you know, the shit you’re suppose to be taking care of to get ahead).

Chopper vs. Coppers

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You guys remember how in Live Free or Die Hard, John McClane ramps a cop car off a bridge support to take down a helicopter? Well, that’s something the Montreal police could’ve tried last night, except they aren’t Bruce Willis so instead they galloped off on their black horses to make an arrest. Wait, that’s not right either.

Yesterday afternoon, two adventurous Canadian inmates made a successful jail break via helicopter. Then they failed to evade recapture. Details as to how they almost pulled off this escape and how they were arrested are unclear. What is clear is what a terrible idea escape via helicopter is.

CNN reports that two men posed as tourists to go on a helicopter ride, and then once in the air, held a gun to the pilot’s head and directed him to the prison.  The helicopter hovered over the prison and two inmates climbed aboard. Less than 6 hours later, everyone involved was arrested.

What did they think was going to happen? It’s a bit troubling that we have to make this announcement, but PSA: unless you have enough fuel to make it to your volcanic island secret lair, escape via helicopter just isn’t going to work. They’re loud, they’re easy to spot, everyone around will be staring, and between air traffic control and being a freaking helicopter, they’re not particularly challenging to follow.

Even the guys who broke out of the Cook County jail in Chicago using bed sheets managed to repel down 15 stories and catch a cab drawing less attention. And, it took more than 2 weeks to catch one of them. Moral of their story: prison escape attempts work best when people don’t know you’re doing it. These two should’ve gone a little more Shawshank or Escape from Alcatraz and a little less Pascal Payet.

It’s not like hijacking a helicopter is comparable to hijacking a car. You hijack someone’s car, you can still kick them out and use their vehicle to get where you’re going; you don’t necessarily need the driver. A helicopter is a different story. Unless you’ve got a helicopter pilot license, you probably don’t know what you’re doing. You need the pilot, present in the cockpit, and alive. The odds that these guys were actually going to shoot him? Pretty minimal, given that they’d then enter a pretty rapid free-fall. There’s holding someone at gunpoint, which can be pretty effective, and then entering into a situation with mutually assured destruction. The pilot in this case didn’t figure the MAD angle out, or he did but didn’t want to be heroic. Either way though, your prison break plan is deeply flawed when your hostage can fly you to the police station and there’s nothing you can do about it.

Your helicopter plan is also pretty problematic when you get to the issue of what happens when you get out of the helicopter. The pilot knows where he let you off. If you haven’t been followed already, he’ll phone in your location. Heck, he can just take back off and aid in the pursuit.

You can kill the pilot, but that’s only if you’ve got the stomach for murder which not all criminals do. We couldn’t imagine Andy Dufresne shanking a guard on his way out. But even if you do kill the pilot, there’s still a matter of a helicopter on the ground pointing the cops in the direction of your escape.

I’ll give the preps a B+ for creativity, and A- for actually pulling off the helicopter-related part of the operation. But they set the bottom of the curve for common sense, thinking shit through, and the most important score of all: getting away with it. Getting away with it is basically the final exam in a class where the only grade is the final exam. The helicopter stunt is a check-plus for being prepared the one day you were on call. It’s still an overall F.

Page 16 of 339

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