Deans often defend the high salaries of their professors by claiming that they're required in order to entice brilliant scholars away from Big Law (as if someone who wants to be an academic would really be keen on the Big Law environment). The response from the reform crowd is largely that once away from Big Law, profs can't get back in the game. Maybe professors in certain specialty areas could, or ones with big names who are hired more for the prestige they bring than their actual skill, but rank and file profs teaching fox hunting cases and dormant commerce clause wouldn't find a junior partnership position in a Vault 50 firm.
But instead of theorycrafting, what if someone actually conducted an experiment? Release a law professor back into the wild, and see what happens.
Such an experiment was conducted. We have the video:
Afraid Obama is going to take your AR15? Better move to The Citadel.
No, not the military college, but the right wing extremist compound in Idaho. Technically, it's just an idea so far, but as far as ideas go it's pretty stupid. It's planned to be a 1000 acre fortress city, housing 3500-7000 families, with another 1000-2000 acres of farmland outside the curtain walls. Here's the artist concept:
Yo dawg, I heard you liked gated communities...
The best part of The Citadel is that living there requires signing the Patriot Agreement. There's a bit of liberty talk in the preamble, but pretty quickly the agreement jumps into what the Citadel is really all about, guns:
Two: Every able-bodied Patriot aged 13 and older governed by this Agreement shall annually demonstrate proficiency with the rifle of his/her choice by hitting a man-sized steel target at 100 yards with open sights at the Citadel range. Each Resident shall have 10 shots and must hit the target at least 7 times.
Three: Every able-bodied Patriot aged 13 and older governed by this Agreement shall annually demonstrate proficiency with a handgun of choice by hitting a man-sized steel target at 25 yards with open sights at the Citadel range. Each Resident shall have 10 shots and must hit the target at least 7 times.
Four: Every able-bodied Patriot of age within the Citadel will maintain one AR15 variant in 5.56mm NATO, at least 5 magazines and 1,000 rounds of ammunition. The responsibility for maintaining functional arms and ammunition levels for every member of the household shall fall to the head of household. Every able-bodied Patriot will be responsible for maintaining a Tactical Go Bag or Muster Kit to satisfy the Minuteman concept. Details TBD and posted elsewhere.
These people are nuts. And not just normal "Obama's gonna take yer guns" nuts, but self-contradictory gun nuts. The requirement that you maintain a basic level of proficiency isn't that far out there. Many countries have mandatory military service for the purpose of creating a larger force that can be drawn from in times of war. Basically, everyone has to be part of the national guard here. What's ridiculous is the third requirement, that everyone be required to own an AR15. You have to both be a marksman, and be armed with a weapon designed for a mode of combat known as "spray and pray." That's like requiring everyone be able to cook and have proficiency in nutrition science, and also keep a stockpile of government cheese.
And then there's this bit of crazy nonsense:
Eight: All Patriots, who are of age and are not legally restricted from bearing firearms, shall agree to remain armed with a loaded sidearm whenever visiting the Citadel Town Center. Firearm shall be on-the-person and under the control of the Resident, not merely stored in a vehicle.
Yeah, that sounds like a place we'd want to hang out. Everyone is required to bring a gun with them. And since it's the big park in the middle of the community, it's probably the location where things like barbecues and wedding receptions and other celebrations will take place. And those events involve a lot of drinking. So no saying "I'm gonna drink tonight, and it's probably a good idea that I leave my gun at home." No siree! Gotta make all your bad decisions while armed.
While the requirements to own and be proficient with a weapon might mesh with the Citadel's general purpose, the requirement to carry a gun in the central park is just bizarre. Oh, and by the way, here is their general purpose, or specifically, the threat they want to prepare against:
The Citadel is primarily designed to defend against a grid-down, economic collapse scenario. When most people ask this question they are thinking in terms of defending against violent action but there are other aspects to defending ourselves. Self-sufficiency in terms of food, water and energy are also a form of defense against a collapse scenario, so these are a major part of our plan.
All sorts of rules about keeping armed, and there's another rule about being proficient in field medicine and basic survivalism, but if you really want to prepare against an economic collapse, you only need a small force of sharpshooters to defend against roving bands of thieves. What's more important to the long term survival of the community is renewable healthy foods. Citadel families are required to keep a year's worth of food stuffs, but it's all going to be canned, processed crap. Their farmland will likely be used for corn and potatoes, creating a diet of largely grains and starch. Odds are the society would collapse from a health epidemic long before the American economy and society collapsed.
We don't mean to discourage the Citadel or paranoid, heavily armed, poorly educated people who want to join the community. By all means, please do. Please, move to a secluded spot in Idaho behind high walls and towers where we can keep ourselves safe from you.
You know that reputation lawyers have for screwing people?
Yeah, that's not going anywhere. Quite the opposite actually, they're finding new ways to screw people, and for even more trivial reasons.
Seth Quest was a man with a dream. Or, a product idea. He designed an iPad stand, took his concept to Kickstarter, the crowd sourced fundraising site, and got over 400 investors to pool $35,000 to get his product launched.
Quest didn't really know what he was doing though, and had no experience in launching a business or producing a physical product, and the venture soon collapsed. After several months, Quest called it quits and returned the money to the investors. He may have been foolish for jumping in unprepared, but he sounds like a decent enough guy. It's not like he paid himself a salary with the money and left the investors empty handed.
That wasn't enough for Neil Singh though. You see, Neil is a lawyer, and by extension, an asshat. Neil was pissed that he didn't get the iPad stand he was promised (Kickstarter projects typically offer an incentive for funding, such as a copy of whatever is being made). So of course, asshat lawyer Neil sued.
Is a creator legally obligated to fulfill the promises of their project?
Yes. Kickstarter's Terms of Use require creators to fulfill all rewards of their project or refund any backer whose reward they do not or cannot fulfill.
But, this was too confusing for Neil, a trained attorney. He even admits that the fault of not understanding the system was on his end:
To me, it looked like a cool thing you could buy. If you give me $70, I'll send you one of them.' I didn't do any due diligence. I didn't think I had to. I'm not investing. I'm not doing the same sort of things a potential shareholder would do. I'm just buying a product.
For a normal person, after "I didn't do any due diligence," would come "but I got my money back, so I'm not going to do something idiotic, like sue." Or even if you don't understand Kickstarter but really do just think you're buying a product, the mental process for a normal person is something like, "Too bad the product got called off, but I got my money refunded, so no harm done." But here's Neil's actual mental process, in his own words:
For me, this is why I became a lawyer. I guess I'm more of an idealist than anything else. It just ticked me off.
Really? This is why you became a lawyer? So when you get pissed off because you made a dumb mistake you can go screw someone else over? ...Sounds about right.
Neil did eventually drop the suit though. Too bad defending against it left Quest bankrupt.
Last November, Los Angeles County approved a ballot measure (by about 55%) requiring the use of condoms during sex scenes in adult films. Los Angeles County is home to San Fernando Valley, where the vast majority of adult films in the US are filmed and produced because its geography allows it collect runoff from the Hollywood and Beverly Hills.
By and large, adult entertainment producers and performers were against the measure, claiming customers didn’t want to see condoms in porn. Porn production companies declared they would file suit against the measure if it passed. And so they did.
The suit was filed on behalf of Vivid Entertainment and two adult performers last week, asserting that requiring performers to wear condoms is a violation of their First Amendment rights. Chief advocate for the measure, the AIDS Healthcare Foundation, contends the measure is about safety in a commercial endeavor and the freedom of expression argument is hollow.
We don’t have any skin in the game, but we might encourage someone to consider the statutory ambiguity angle. The full text of Ballot Measure B can be found here, but in relevant part, says, “The use of condoms is required for all acts of anal or vaginal sex during the production of adult films to protect performers from sexually tramsmitted [sic] infections.”
What the measure doesn’t include are definitions for condom, anal sex, vaginal sex, production, performer, or sexually transmitted or tramsmitted infections. Sure, we could use common sense or a dictionary for some of those terms, but that’s the crux of the statutory ambiguity argument: the terms are vague or undefined.
Is cunnilingus considered vaginal sex? Does it matter how the condom is being used? If one dude is penetrating another dude’s ass, which one is required to wear the condom, or are both? What about sex with strap-ons?
Certainly seems a bit difficult to require performers to wear protection during certain acts when there isn’t a definition of those acts. No offense to porn stars, but these are porn stars, not experts in statutory interpretation.
It also seems a bit difficult to imagine the Los Angeles County Department of Health sitting down to hammer out the details of those definitions. At the next board meeting, are they going to put “10:00AM – 11:00AM: defining anal sex” on the agenda? How many times will they say “anus” before there’s no one left smirking? Not wanting to discuss a topic isn’t a defense against an ambiguity argument. If the legislature wants to walk the walk, they should have to talk the talk. And since they don't want to talk the talk enough to even run a spell check on their bill, it's probably best they concede defeat and learn a lesson from the Japanese. In Japan, genitalia in porn have to be pixilated. So what did the porn industry do in response?
Tentacle sex.
You can try to regulate it all you want, but porn will find a way.
Earlier this week, a California traffic judge ruled that a corporation is not a person for purposes of the carpool lane. Well, duh. When the motorist was pulled over in the carpool lane, he handed the officer incorporation papers for a family charity. The officer was unconvinced, wrote the ticket, and sometime prior to showing up to court, the driver got an attorney.
At first we wondered how the driver got an attorney, and now we’re kind of wondering why he let this particular attorney represent him. The attorney is a man named Ford Greene, who has deprogrammed himself from brainwashing by the Moonie Cult, and has dedicated his life to exposing and suing large authoritarian organizations, like Scientology. Check out his website- even we can’t make this stuff up.
Apparently the driver and his attorney both struggle a little with understanding what corporate personhood is, and because we are such kind souls, here’s a little crash course (pun intended).
1 USC §1 holds that when interpreting an act of Congress, the term person shall include corporations. The Supreme Court has recognized since the 1800s that corporations have the same right to make and enforce contracts as natural persons. The issue gained attention in 2010 with the Citizens United case, where the Supreme Court held that political spending is a form of protected speech under the First Amendment, and the government can’t keep corporations from spending money to support or denounce individual candidates in elections. Essentially, corporations can own property, enter contracts, sue and be sued, and spend their money however they wish (so long as it’s not a violation of the business judgment rule or any other laws, but we’re not getting into that today).
The point the driver was trying to make is that there are problems with allowing corporations to be considered persons. He’s been waiting to have this particular “legal battle.” We won’t necessarily disagree with his point, but we will say he’s a moron if he thought a traffic ticket was going to overturn close to 200 years of legal precedent. To his credit, the California Motor Vehicle Code does define person to include corporations, and the carpool signs say “2 or more persons.” The argument that the sign is vague isn’t incorrect, but it is silly. A corporation couldn’t drive a car on its own, let alone drive all of its corporation friends to lunch.
Even if we pretend for a minute to buy this corporation as person for purposes of the carpool lane argument, what would be sufficient to represent a corporation? A sheath of incorporation papers wasn’t. If he’d had the board of directors, shareholders, or the registered agent in the car, this wouldn’t be an issue because he never would’ve gotten the ticket. Any of those would’ve been a second person, therefore meeting the carpool lane requirements. If a corporation gets sued, it’s represented by an attorney. If a corporation goes to court, a person shows up; no one’s putting incorporation papers on the witness stand and cross examining them.
The driver says he expected to lose and plans to appeal. Maybe months or years from now, we’ll find out that we were wrong, that higher courts do buy this guy’s argument. But for now, we’re giving this guy an A for effort, F for common sense, and a WTF for hiring that lawyer.
Actually, an F for effort, because you don't get an A for effort when that effort is going towards something that gets you an F for common sense.
Steve Diamond is at it again, this time with a 5,500 word rambling defense of law schools. He kicks off his blog post by first asserting that before the financial collapse, there was nothing law schools could or should have been doing differently.
The law school is a “scam” argument depends, in my view, on some tendentious ideas. A “scam” implies that law schools take people’s money and leave them with nothing. It is a serious charge. It is in my view unsustainable. It appears to depend on the idea that law schools bore some responsibility for the sudden and unpredictable collapse in the job market in post-08 period. But there is no disclosure language or data I am aware of that could have been provided to law students in, let’s say, 2006 that would have allowed students to plan for the waterfall towards which they were headed.
The scam argument is actually that law schools take students' money and leave them with something of much less value than advertised, not that they leave them with nothing. But, that's a side issue. What we want to take up is the question of what schools should have been doing back in 2006. Further down the post he hits this point again:
There was nothing I can think of that law schools could have done in 2006 to warn aspiring lawyers about the crash of 2008. An argument that law schools “should have known” the good times would not last forever reminds me of the old saying that a broken clock is right, twice a day. There is zero chance that a large complicated bureaucracy, which the modern university has become, can turn on a dime in response to vague fears of a future calamity.
This is a professor who is supposedly some sort of expert on corporate governance and finance, and he can't figure out what law schools could have done differently. It's not really that difficult to figure out. Three little words, really:
Minimize.
Risk.
Exposure.
For the 2004-05 school year, Santa Clara (Diamond's home turf) charged $30,750 in tuition. By the 2007-08 school year, tuition had increased to $35,250. That's a 14.6% increase in just three years.
Over that same period of time however, Santa Clara did increase the percentage of students receiving scholarships. In 2004-05, 26.9% of students received scholarships, while in 2007-08 the number was 39% [data is for full time students]. That single number doesn't tell the whole story though. Most of the additional aid went towards scholarships that were less than half of tuition. Of the 12.1% more students receiving scholarships, 8.8% went to scholarships of less than half tuition, while only 2.3% went to half or more. The median scholarship amount fell from $12,000 to $10,000 over this period.
For the 2004-05 school year, a student receiving the median award would pay $18,750. By 2007-08, that amount had increased to $25,250. So, for students receiving the median award, tuition increased by 34.7% in three years. And don't forget the 61% of the class receiving no award, for whom tuition rose 14.6%.
So what could law schools have done before the crash? Peg tuition increases to inflation to keep them from getting out of control. It wouldn't have prevented the crash, but it would man students finding themselves struggling in the market have $15,000-20,000 less of debt to worry about.
More importantly though, they could have cut class sizes. Steve thinks this is ludicrous though:
Any member of a board of trustees who heard a proposal from a law school dean in 2006 to reduce admissions likely would have asked for that dean’s resignation!
That's not necessarily the case. There are many schools of all sorts of sizes, and it's not likely that the dean of Yale regularly sees his head on the chopping block for not increasing their size up to that of Harvard. And since LSATs, GPAs, and selectivity go into a school's US News rank, a dean ought to be able to convincingly argue that by cutting class sizes the school can increase its rank and become a more elite, prestigious institution.
That's the self-serving political argument though. What the dean, if he's concerned about minimizing risk exposure to his students should have been arguing is that even in 2006 law schools nationwide were producing at least 10,000 too many graduates, and that tuition growth was unsustainable.
You don’t need to see the cliff to know to step on the brakes. All you need to know is that with this much fog it’s probably not a great idea to push the car from 90 to 100mph.
That’s what Santa Clara and other law schools should have done before the crash. Now let’s look at what they’ve done sense then, counting the 2008-09 school year as when schools could reasonable have begun responding.
In 2008-09, tuition was $36,750, and by 2011-12 it had risen to $41,790, a 13.7% increase. That’s just a little bit lower than the 14.6% increase in the three years before the crash. Doesn’t look like SCU really responded in terms of sticker price.
Since the crash, Santa Clara has greatly increased the number of students receiving scholarships. In 2008-09, 40.5% of full-time students received some award, and by 2011-12 that number had increased to 47.4%. But, just like with the pre-crash increase in scholarships, Santa Clara has focused on lower end awards. Students receiving an award of less than half tuition has increased from 31% to 43%, while students receiving awards of half or greater has shrunk from 9.5% to 4.4%. The median grant in 2008-09 had gone up to $12,000, but by 2011-12 it was back down to $10,000. Since a full ride at SCU is now 4x the median award, the added low-end scholarships probably don't make up for the lost high-end ones. Ouch.
A student with a median award in 2008-09 was paying $24,750. A student with a median award in 2011-12 was paying $31,790. That's $1000 more than a student receiving no scholarship in 2004-05. And of course, for the majority of current students receiving no scholarships, the situation is much worse.
While Steve Diamond can argue about hindsight bias and how it wasn’t reasonable to rein in tuition back in 2006, it’s clear that even knowing we were going over a cliff Santa Clara (just like pretty much every school) chose not to respond.
Before the crash, schools should have been working to minimize risk to students. After the crash, they should have been working on damage control. They did neither. And there’s a cynical, but likely true, reason why. Professors didn’t get laid off when the market crashed, and they didn’t see their salaries slashed by 15% over the next 3 years. They didn’t minimize risk exposure because for professors there was none. They’re not too worried about minimizing harm because they’re not being harmed.
The ABA released a report this morning offering some suggestions to help alleviate the indigent defense crisis. Namely, the report suggests “reclassification and diversion” of minor offenses. Reclassification is essentially decriminalization; diversion we don’t take much issue with.
At first glance, decriminalization/reclassification doesn’t sound too bad. But, then you remember that decriminalizing an offense doesn’t eliminate it as an offense, it eliminates it as a criminal offense, meaning it’s still a civil offense, and therefore punishable by a fine. Which, in and of itself isn’t so bad; fining people for possessing small amounts of marijuana is better that stamping them with a criminal drug offender label.
But, the issue in the report is alleviating the “indigent defense crisis,” not reducing potential offenses on one’s criminal record. And the indigent defense crisis is that public defenders are overworked, in large part because so many people charged with minor infractions qualify for public defender assistance. Offering a monetary-only penalty for an offense doesn’t help poor people. They don’t have money; that’s why they qualify for public defenders.
Let’s say we do this- how does it ultimately play out? What happens when these fines go unpaid- because it’s almost a guarantee that a good percentage of them will. Will people be arrested and jailed, perhaps held until they pay? Will further civil action be pursued: perhaps a judgment, then an order to enforce the judgment, then the lien or garnishment process? Sure, the public defender’s workload was reduced, but will the prosecutor’s now increase? At what cost- and who will pay for that?
The report’s solution does help the public defender workload- at the expense of the people who (used to) be a part of it. It basically says, “Hey, what if we reclassify these offenses so you don’t have a right to counsel?”
In effect, it penalizes the poor for being poor. Let’s take away your right to counsel, and then expect you to resolve the issue on your own by paying a fine with money you don’t have. How helpful. Under the current regime there might not be enough legal advice to go around, but at least poor defendants are often walking away from the courtroom with nothing more than probation for a non-violent drug offense. Under the ABA-approved regime, they’ll be staring down contempt charges.
By now, there's a good chance you've seen Case Western's Dean Mitchell trying to explain on Bloomberg Law that there is no oversupply of lawyers. His argument came up in the context of Bloomberg's Lee Pacchia telling him that the BLS projects there will be 75,000 new law jobs created of the next decade, while law schools produce some 400,000 new graduates. Here's the video, analysis follows:
Mitchell argues there is no oversupply of lawyers, and that there is in fact an undersupply. Just look at the poor! They can't get lawyers, so therefor we must increase the supply to bring down the cost of legal services. Two things.
First, it doesn't work like that. The poor will never have money for legal services because the definition of being poor is not having money. Increasing funding for public defense and legal aid will help, not producing more lawyers.
Second, the point is that there is an oversupply of law school graduates. If they're not going off to small towns to serve the poor, producing more of them isn't going to create any different results. Something about insanity...
Debt is a problem, high tuition is a problem. I should point out that ninety percent of my class receives financial aid at a mean financial aid offer of twenty-five thousand dollars a year. So, people talk about the sticker prices of law schools, but we discount fairly heavily.
If only the facts bore that out. The official ABA data for Case Western reports that 70.3% of students received scholarships, not 90%, and the median amount is $9,333. Yes, the median is a different number than the mean (the average, to you mathless scrubs), but it's unlikely his mean number is correct based on this median.
To make an average $25,000 work, for every student getting a scholarship of $9,333 or less, there would need to be one getting $41,000 or more. But only 10% of Case Western students get a scholarship of $21,000 or more, and no one gets higher than $42,560 (full tuition).
Mitchell did say "financial aid" rather than "scholarships," and schools do often describe loans as "financial aid," but the context of the remark was that students are not paying sticker price. In that context, the reasonable interpretation of his comment was that 90% of students are receiving aid, and that the average award is greater than a 50% markdown on tuition.
We'd love to hear an explanation of how these numbers work out, but our best guess is that they don't, and that they're simply untrue.
What is true is that 90.1% of Case Western Reserve's graduates take on student debt, with an average debtload of $98,900.
[Edit: Added "So, people talk about the sticker prices of law schools, but we discount fairly heavily," to the above quotation. This statement, specifically the term "discount" supports our view that he means a scholarship, and not loans.]
Speaking on the issue of transparency, Dean Mitchell again departed from reality:
The ABA has been refining reporting statistics, along with NALP. We have from the very first tried our very best to be as transparent as we can.
Credentials by job type (Whether business, government, academic, and public interest jobs required bar passage, were JD advantage, professional, or non-professional positions)
Types of jobs at law firm (attorneys, paralegals, etc)
Timing of job offer (before graduation, between graduation and bar passage, after bar passage)
Source of job (OCI, returning to a previous employer, etc)
Number of employed graduates who are looking for a different job
Any salary data other than the overall numbers for the class; Case Western is missing salaries broken down by employer type, by credentials, geography, etc.
Either Dean Mitchell is lying about trying his very best to be transparent, or his very best sucks.
Then Mitchell opines on employment outcomes for Case Western grads:
I suspect if you look a year out, things will change dramatically. I'm really confident if you looked a year and a half out they would.
He's speaking here about Case Western's 38% Under-Employment Score. That means 38% of Case Western graduates are unemployed (and seeking employment), in part time or short term jobs, in non-professional jobs, or seeking another degree. What forms the basis of his confidence?
Absolutely nothing.
He admits that he has no data on what happens to students a year or a year and a half after graduation. But in Dean Mitchell's mind, all that matters is that he forms a good feeling about job prospects. Actual employment is unnecessary, just assume a can opener. (And assume some cans, too. Unemployed law grads get hungry.)
In addition to Dean Mitchell's comments running the gamut from "not true" to "just don't care if it's true," we also get this gem:
[Pacchia] As you're running through the revenues issues and the expenditures that your institution faces, it sounds like you're running a business at the end of the day, or facing challenges similar to someone running a business.
[Mitchell] Well of course we're running a business at the end of the day. The fact the object of the business is very special, that is, education, makes it no less a business...
There is the heart of the problem. At the end of the day, you're a businessman, not an educator. Businesses operate in the interests of their shareholders, and in the education business the equivalent party are the tenured faculty. Keeping tuition low and degree value high becomes secondary to keeping professor salaries high, keeping professor workloads low, and supporting professors' research and other academic or social endeavors.
Yes, universities do face financial realities, but you should be an educator first, and an educator last, and a businessman only in between and as necessary.
Dean Mitchell concludes by explaining that it's wrong to look at the value of law school in normal financial return on investment terms, and that there are other important rewards that a job can offer. As an example, he cites his own career, and how he left a job he couldn't stand going to, took a 2/3 pay cut, and became a professor.
Bad example, Larry. You can't say "Look at me, I found something more important than money" when transitioning to a job that pays more than $100,000. When Case Western pays its professors a public interest salary instead of a Big Law salary, then you can talk about there being more to law school than a fat paycheck.
If you're a law blogger, then this morning it's quite likely you got an e-mail from the new media contact at Lawyers.com, offering to have their crack team of legal minds weigh in if you should happen to be writing a story with a legal component. But who ever heard of a law blog writing on such topics? It'll probably never come up.
Keith over at Associate's Mind posted his response, explaining how dumb it is to blanket spam all over law bloggers, people who are well positioned to mock you for your ticky tacky marketing.
And mock we will! See if you can spot the mistake:
