Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Constitutional Daily

Pow! Right in the LSAC!

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Last week a California judge issued a preliminary injunction on enforcement of a bill that would ban the LSAC from reporting to law schools when LSAT test takers received extra time on the exam.

At the risk of being redundant, this kind of reporting, often called flagging, is not new for the LSAC.  It’s business as usual. When an applicant receives extra time for the LSAT, the LSAC already sends a statement along with the applicant’s score “advising that the applicants score(s) should be interpreted with great sensitivity and flexibility.”

This is something that test takers seeking this accommodation are aware of when they apply for the accommodation; it’s all located on the same page, with clever headings like “additional considerations.”

The injunction was issued in large part because the law banning flagging directly targeted the LSAC: no other standardized testing organization was mentioned (not even the organization that administers the MCAT, which also flags scores).

The singling out of the LSAC aside, there’s a pretty reasonable argument on behalf of continuing to flag LSAT scores. While the specifics aren’t uniform across the spectrum, law school grades are at least in part graded on a curve, meaning students are constantly compared to one another for purposes of determining grades.

The LSAT is not much different, nor should it be. If you buy into the argument that the LSAT is a good indicator of law school success – and law schools do – then maintaining the integrity of the LSAT “curve” is critical to the accuracy of the score.

 

Sure, there’s the argument that flagging isolates test takers who receive extra time, and that’s correct. But the LSAT, just like law school and much of legal practice is a competition, and if you’re competing under a different set of rules then the people evaluating you based on your score ought to know. In fact, if you’re taking the LSAT with extra time, you’re not just taking it with different rules – the time pressure is essential to the LSAT, so you’re really taking a materially different exam. Harder to argue that this fact shouldn’t be disclosed.

And it’s even harder to argue that you’re being harmed by the disclosure. Law schools are incredibly liberal institutions and aren’t exactly known for discriminating against people with disabilities. Besides, schools really only care about LSAT numbers for reporting to US News and improving their rank, so they don’t care how you got your score so long as it raises their median.

If you’re worried about being treated differently because of your disability, there’s a very easy solution. Just don’t request extra time. If you want to be treated the same, then really be treated the same. Or even better, you can just not take the LSAT, avoid law school, and go do something productive with your life instead. Sure beats complaining that your masochistic career goals aren’t accommodating enough.

Valdosta State University President Gets Tough Lesson On Meaning of "Upon Advice of Counsel"

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If you're a fan of The Fire (Foundation for Individual Rights in Education), then you're probably familiar with the story of Hayden Barnes, a student at Valdosta State University who was expelled for criticizing university president Ronald Zaccari's pet parking garage project. After posting a collage on Facebook, which he sent to no one, Zaccari declared him a "clear and present danger" to the university and had him administratively withdrawn without a hearing. [See a rather crappy black and white scan of the collage here.]

Long story short, Fire got involved and five years later a jury found Zaccari personally liable for $50,000 in damages for violating Barnes's rights to free speech and due process. [More details here.]

We're going to skip over most of the legal battle though and get down to what has to be the worst legal defense in the history of legal defenses. The university president tried to argue that he had qualified immunity, an argument rejected at the district level and on appeal. Qualified immunity is a defense that protects government officials (state university personnel are included) when they engage in an action that violates someone's civil rights but which was not a clear violation of established law. For instance, if a search warrant contains a novel defect, and at trial the court find that the execution of the warrant was unconstitutional, the police officers executing the warrant will probably be immune from personal liability because the defect was novel. The Fourth Amendment might still cause the evidence to be tossed out, but you can't go after the cops for damages because we don't expect every government official to be a constitutional scholar capable of figuring out issues that are not already established law.

In this suit, Zaccari was faced with the fact that case law already clearly established that students facing expulsion from public universities are entitled to due process. For the qualified immunity complaint, Zaccari argues that he sought advice from the in-house counsel at Valdosta and relied on that advice. We'll let you read why exactly that argument failed:

The court is unpersuaded by Zaccari’s argument that he is entitled to qualified immunity because he “sought out legal advice” from Gaskins and Neely and relied on their advice. The law is clearly established in the Eleventh Circuit that “due process requires notice and some opportunity for hearing before a student at a tax-supported college is expelled for misconduct.” Dixon v. Alabama State Board of Education, 294 F.2d at 151. Moreover, the court finds Zaccari’s assertion that he relied upon the advice of Gaskins and Neely disingenuous. The undisputed facts show that Zaccari ignored the lawyers’ warnings that withdrawing Barnes would require due process in executing his administrative withdrawal of Barnes. The court declines to accept Zaccari’s argument that because he sought legal advice from Gaskins and Neely, both of whom advised against the President’s withdrawal of Barnes, Zaccari is still entitled to qualified immunity even though he took action contrary to the advice. Accordingly, the court denies Zaccari’s motion for summary judgment as to Count 4 of Barnes’s complaint.

"How was I supposed to know what I was doing was unconstitutional? I even asked my lawyers about it!"

"Your lawyers told you it was unconstitutional, you idiot! Now pay $50,000."

[Read the full opinion here.]

Maybe the Post Office and DMV need to have a chat

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Neither school zones or red lights or gloom of night stays these couriers from the moseying ambivalence of completing their rounds. Wait, is that not USPS’s creed? Actually, they don’t have an official motto at all. Just an inscription engraved on the outside of the James A. Farley Post Office in NYC, which is ripped off from the Greek work of Herodotus. Anyway, what were we talking about?

Oh, right. In East Cleveland, Ohio, the Postal Service is claiming immunity from $700 worth of traffic tickets. According to their senior litigation counsel, the Postal Service is exempt from paying the fines because they “enjoy federal immunity from state and local regulation.”

The $700 comes from running five red lights, and two instances of speeding in a school zone. To be fair, school zones may be the only areas where a mail truck is capable of getting far enough above the speed limit (typically 11mph) to get a ticket.

The traffic offenses were recorded via camera by American Traffic Solutions (ATS) and then billed to the Postal Service. And then the finger pointing begins.

USPS itself may have immunity, but its employees do not. ATS points out that USPS’s own handbook says employees are required to obey traffic laws and rules. But the citations weren’t issued to employees; they were issued to the Postal Service.

The camera citation includes a picture of the license plate of the vehicle while the vehicle is committing the alleged offense. No citations were issued by police officers in a traffic stop, and no citations were issued to individuals.

One would think it wouldn’t be exceptionally difficult to look at the vehicle license plate, find out who drives that vehicle, and then ascertain who was driving on the date and at the time of the citation. But what do we know? Maybe Postal Service employees play a USPS version of musical chairs after driving off the lot every morning. Maybe the time that game takes, coupled with the confusion of a potentially new route every day is part of the delay in delivery. Maybe we’re making shit up.

The Postal Service claims that no legal system exists to transfer liability for the tickets from the Postal Service to its employees. We’re not so sure about that one. Assuming this game of musical postal trucks to be a figment of our imagination, it would seem that the Postal Service could pretty easily follow our suggestion above and provide the names of those drivers to the prosecuting authority. Then the matter is out of their hands and they aren’t responsible. Sort of like that package you had insured that got lost. Sure, you had it insured up to $200, but you didn’t really expect to get more than $60 for it, right?

If someone really wants to prosecute this, make them do the work for it. Seems plausible that someone could amend the complaint, or perhaps even re-file it.

Speaking of working for it, the Postal Service’s senior litigation counsel makes $118,645 a year. That’s $57 an hour if she works 40 hours a week every week of the year (which is unlikely, so her actual hourly rate is likely higher). Even at $57/hour, if she spends more than a work day and a half dealing with this in any capacity, it costs the Postal Service more to pay to her to “handle” it than it would to pay the tickets.  Then again, with billions of dollars of deficit, what’s a few hundred more?

The main source of revenue the USPS uses to pay her salary is junk mail. According to some, junk mail is beloved to seniors, sometimes the only communication they receive, and makes them feel like they’re part of the real world. So, in order to make sure that junk mail is delivered in a timely manner to grandma, we’re going to send mail trucks doing 41+ in a 25mph school zone, potentially killing the grandkids who can offer actual interaction with the outside world.

Or maybe grandma is in cahoots with the post office, and this is revenge for not writing her a thank you note last Christmas. And no fines, legal fees, or other wasteful spending will deter her plan. It’s not like she’s going to be around to pay off the debt.

 

Do ABA standards protect against professor malfeasance? No.

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Yesterday Above the Law broke the story of one of the biggest grading SNAFUs of all time. Fordham law professor Robert Kaczorowski used for his con law exam questions that had been written by another professor, and made public. Apparently the answers had also been made public, and so students using that other professor's exam as a study aid gained a huge advantage over their peers. The school's initial response was to allow students to take a new exam and accept the higher of the two grades, but this plan was quickly scrapped and replaced by the chance to have the grade replaced with the average of the two test grades, or the average of grades from other classes that semester.

And Fordham just said fuck it. Because of the grading irregularities, students could not use their con law grade in calculating their GPA or class rank. Vice Dean Shiela Foster explains:

We (the administration) understand that this is not ideal, and may even seem unfair, from your perspective. However, we have sought to balance the equities involved, including the fact that other Constitutional Law sections are obligated under our rules to adhere to the mandatory curve.

Balance the equities my aching ass! If you wanted to balance the equities, you'd grab Kaczorowski by the ear, drag him to his office, and force him to write a new exam, administer it to the students, and have that one grade be the basis of the class grade. Sure, it might be unfair to students who did well on the first exam, but since it's graded on a curve, the students doing the best will largely be those who had the exam answers before hand, so it's still a pretty equitable outcome.

But what Foster means by balancing the equities is that she had to find a solution that would require no extra effort on the part of the faculty or staff, especially the faculty member whose screw up caused the whole problem. The balancing test goes something like this:

1. Does anyone involved have tenure?

End of balancing test.

 

On ATL a commenter asked if this violates the ABA standards. At first we thought this a laughable idea, because the ABA standards are incredibly lax. But, then decided that the balance of the equities required at least taking a look. Standard 301 provides:

(a) A law school shall maintain an educational program that prepares its students for admission to the bar, and effective and responsible participation in the legal profession.

(b) A law school shall ensure that all students have reasonably comparable opportunities to take advantage of the school’s educational program, co-curricular programs, and other educational benefits.

And Interpretation 301-3:

Among the factors to be considered in assessing the extent to which a law school complies with this Standard are the rigor of its academic program, including its assessment of student performance, and the bar passage rates of its graduates.

The case against the professor: Being graded in a single class, as well as having a cumulative GPA (which is used by the school in awarding certain honors) is an educational benefit, and the grading scheme in this class is far from reasonably comparative to other con law sections. Professors giving different exams is reasonable; a professor giving no graded exam is not.

The case for the professor: The grade isn't part of your education, and Interpretation 301-3 is meant to clarify 301(a) not 301(b).

Against the prof: Standard 401 provides:

A law school shall have a faculty whose qualifications and experience are appropriate to the stated mission of the law school and to maintaining a program of legal education consistent with the requirements of Standards 301 and 302. The faculty shall possess a high degree of competence, as demonstrated by its education, experience in teaching or practice, teaching effectiveness, and scholarly research and writing.

For the prof: This is a question of laziness, not competence. I can write my own exam. I chose not to.

Closing argument against the prof: Look at your stupid fucking face!

Closing argument for the prof: TTTenure secure!

ABA's advice to women is just precious

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Another day, another problem-with-women-in-the-law piece that perpetuates the women-in-the-law problem.

The ABAJ has apparently mastered time travel, because yesterday they published this piece, dated February 1, 2013, by our ABA President, Laurel Bellows, about shattering the glass ceiling. Bellows takes umbrage with a number of statistics in the latest National Association of Women Lawyer’s survey, which can be found here.

President Bellows starts off by saying:

Time and time again, I have asked myself and others the same questions: Why are female lawyers still grossly underrepresented in positions of real power, influence and leadership? Why is there still such a disparity in pay between female equity partners and their male colleagues performing exactly the same work? Why are female lawyers still shut out of the choice assignments and limited in access to major clients?

Funny, because time and time again, we find ourselves asking when anyone is going to actually try to answer these same questions. Interesting that she hasn’t attempted to answer the inquiries she seems to have been wrestling with for so long.

If you want something to stop happening, you have to examine why it’s happening. Is this sex discrimination? Are women just making different (arguably better) career decisions? Is this a problem in the legal field, or an issue across multiple professions?

If you’re looking for answers to those questions, don’t bother reading her post. But don’t worry, because even without knowing or attempting to understand why this happens, Bellows has solutions for them. Get excited.

Solution #1: a task force will develop a “pay equity toolkit” complete with model pay recommendations and tips for women to negotiate higher pay. Perfect. Problem solved. Because obviously all firms really need is for someone to point out that the pay isn’t equal and then write out numbers that would make it equal. And of course, all that's needed to bring about parity in negotiation skill and results is an ABA bulletin.

Solution #2: networking. Right. Because all women need to make equal money in law (after the toolkit, of course) is to talk to other women. Then, just like that, women will make more money and be more represented in law. Not sure how many times we’ll have to say this, but women talking to other women will not solve the not-enough-women-in-the-law problem. In fact, the not-enough-women-in-the-law problem is probably in part due to women not talking to enough men. You don't rise through the ranks and bring in clients by spending all your time networking with women. If men are the managing partners and CEOs, then you're going to get ahead by talking to men, not women.

 

We have some questions of our own, and you’ve probably heard some of this from us before. While pondering these questions, did it occur to her that there might be a good reason for fewer women in the top ranks of law firms?  Like maybe women are being more rational than men and deciding that a $500,000 paycheck for 3000 hours a year is totally better than a $1M check for 4000 hours?

She's presuming that the outcomes men get are the most desirable. Yet, if we look at things like amount of parental leave taken, we could just as well ask why aren't men getting as much time off as women? And why do men get 7 fewer potential years in the workforce due to dying so much younger?

Further, there isn’t much evidence to support that this pay gap and underrepresentation in management is unique to the legal field. Only 18 of the Fortune 500 had female CEOs in 2012. That’s a record high, and yet still only 3.6% of Fortune 500 companies are run by women, compared to the 10% that don’t even have a woman on their boards. [HuffPo]

Compare that to the 4% of firms with a woman as the firm-wide managing partner and the 20% of positions held by women on a firm’s highest governance committee. It looks like women in the law are doing better than women in Fortune 500 businesses. Maybe instead of trying to fix what's happening in law, other industries should be emulating it.

So let’s look at a broader scale. Nationwide, women typically make 77 cents to a man’s dollar, which means the 89% women in law are making compared to men is higher than average.

The NAWL survey says median hours for women, billable and total, are lagging behind men at all levels. It also says the pay gap cannot be explained by differences in billable hours, total hours, or books of business. If that’s the case, then doesn’t the underrepresentation of women in the field suggest women are making a rational decision? If you know your pay scale won’t be equal or based on quantifiable work product, then aren’t you making a smarter choice by not taking that job?

This is exactly the problem. The survey goes as far to explain what isn’t causing the pay gap, but doesn’t look into what is. And the ABA President doesn’t help anything by accepting this and offering solutions based on.. well, based on nothing.

By no means are we suggesting this conversation isn’t one we should have. Instead, we’re advocating that it’s a conversation that needs to be taken further and include more participants. Like men and people outside the legal profession. Actually try to find out why these things are happening instead of just asking why. And stop coming up with solutions without knowing why the problem is occurring in the first place.

Coming Soon: A Bar Exam for Teachers

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If you ask a teacher about her job, she'll tell you that she's underpaid, overworked, under appreciated, that her job is the most challenging and important one in the world (second only to being a mother), and by the way, have you seen how much professional athletes make?

But if you were to ask the American Federation of Teachers about the job, they'd tell you that teachers freaking suck at it. That's why the AFT, along with the national teachers' union, and the Department of Education are pushing for a "bar exam" for teachers. [NPR]

One of the root causes of teachers graduating unqualified to teach is that education programs operate with largely open admissions policies. According to NPR's Claudio Sanchez:

There are huge differences in how we attract and select people to become teachers and lawyers and doctors. Law schools and medical schools have really tough admissions standards; education schools don't.

To anyone who's gone to law school, that might seem shocking, as law students tend to think it's just medical schools that have real admissions standards. The joke goes that when you take the MCAT it's to see if you get into medical school, and when you take the LSAT it's to see which law school you get in to. But, lawyers are perhaps living in a bit of an intellectually elite bubble. The lowest LSAT 25th percentile at an ABA accredited school is 143, at Southern University. That's low, but it's still the 20th percentile. Only 13 schools have LSAT 25s below 149, the 40th percentile. And when you consider that a lot of substandard students self-select out of the law school dream and never take the LSAT, that further pushes up admissions standards.

At Harvard's Education Masters program, the average GRE verbal score was only at the 83rd percentile. A law school with similar standards would at best place in the mid-40s, but most likely be second tier. You can get in to a top education grad program with a 3.0 UGPA. That low and applying to law school? You'll either need to be an LSAT/GPA splitter, or else learn to lie about what law school you're attending.

The teacher's "bar exam" wouldn't actually look like the bar exam at all. It's just a term used because the lady leading the effort used to be a lawyer. Rather than a general knowledge exam, it would be a single subject test to become qualified to teach in that particular area.

We expect to see teachers and local unions lining up behind the idea, primarily because it will cut off the flow of cheaper, younger teachers into the market, and help boost the reputation of the profession. Though, if current teachers are expected to also pass the exam, we can expect that the whole thing will be scrapped and decried as an effort to demean and terrorize the hardest working people in the country, and you're probably union-busting to boot.

 

And by the way, average starting salaries for teachers look a whole lot like the left side of the bi-modal distribution of starting salaries for lawyers. Less debt, less stress, shorter hours, summer vacations, union protection, and a shiny pension plan. If you can get into a mediocre law school, you can probably get into a top education program with a pile of funding. So if you're wondering "what else can I do with my BA in English and Poli Sci," consider going into teaching instead.

We Agree With Lawrence Solan About BigLaw Pay

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Brooklyn Law school professor Larry Solan has been taking a lot of flack for an article he wrote for HuffPo with a modest proposal for easing the economic pinch on recent grads, and helping them get on the job training:

Legal education is said to be in crisis. Law school applications are down sharply as prospective law students question whether the high cost of legal education is worth it. A good part of the declining interest results from the loss of entry-level jobs at large law firms, which typically pay salaries high enough to offset post-graduation debt.

[...] Why not cut associate pay in the early years? For example, offer them $75,000, $125,000 and $175,000 for the first three years, respectively. This salary cut will permit firms to continue to train the next generation of elite lawyers in substantial numbers, while shifting some of the cost of training its most junior associates from the clients to the trainees themselves. Moreover, although large firms face pressure to remain competitive, the promise of these substantial raises should be a significant enticement to attract the best talent. Finally, savvy business clients will respect and choose firms that honestly link compensation to the realities of the market.

Naturally, saying that BigLaw associates should start out making less than half what they currently do, and less than what's needed to manage the average law school debtload, doesn't make one a lot of friends. But we know the true story behind Solan's article. The fact of the matter is that the evil masterminds behind HuffPo unfairly edited Solan's original piece in order to make him look like a total asshole. With a little bit of cyber-sleuthing and meta-data analysis, we've been able to uncover a deleted section of the article:

The salary reductions would of course not happen in isolation. While bringing associate salaries back to a mid-1990s level, we'd also reduce the average salary salaries for tenured professors from $154,000 to $104,000, and for assistant professors from $94,000 to $73,000, increase the minimum teaching load from 1/1 to 2/2, with many professors teaching a 3/2 load, and reduce tuition from $50,000 per year to $20,000. We would likewise expect other schools to follow suit, and for state schools to bring their rates down to the mid-1990s levels of $7-10,000 per year.

Far from absurd, this proposal is now entirely reasonable. Solan's argument continues:

The total tuition rate for students would drop by about $90,000, and with students graduating with an average of $100,000 of debt now, the numbers would drop to less than $10,000. Instead of paying $1150 a month on loans, grads would be paying $115. The $75,000 pay rate is still low, but when it comes with more than $12,000 in reduced (after-tax) expenses, it starts to look not quite so bad. Plus, the low debt loads will mean students aren't tied to Big Law jobs that they're not well matched with just to pay off their loans, and more students will be able to pursue public interest jobs without even needing the support of LRAP or other programs.

It's too bad Solan's article wasn't published in its entirety, because his model for moving forward makes a lot more sense than the idiotic ideas that actually ended up on HuffPo.

Vermont legislature considers giving old people all their drugs at once

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The Vermont legislature is considering an assisted suicide bill, and no, this isn't a joke about letting Vermont Law School die with dignity. Though we could make a Vermont Law School suicide joke. And in fact, we will.

Just how many cars do you have to leave running in Debevoise Hall to kill Vermont Law School?

Or in the alternative:

I bet it's going to be hell arranging a murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-murder-suicide pact.

 

The bill is modeled on Oregon's law, and would allow a terminally ill patient with less than six months to live to be prescribed a lethal dose of barbiturates, but only after seeking a second opinion to confirm the terminality of the disease, and only after the patient has made three requests within a 15 day period, two oral and one written.

Disability advocates oppose the bill, claiming that sick people will be unduly influenced by their family's wishes to get grandma out of the way. Or some nonsense. Because apparently being terminally ill and suffering means you're no longer a moral agent, capable of making your own decisions. ...Maybe we're misunderstanding the term advocate here. Shouldn't advocates want these people to have as many rights available as possible, and give them the option of reducing their own suffering? Folks can get confusing some times.

And it's not just the disability rights people, the far right people are also confusing on this one. On the one hand, you can't be given a lethal dose of pain killers to help you die peacefully and with dignity (and by "give" we mean prescribe, the doctor doesn't actually stick you with the needle), but on the other hand you can walk into a gun store in Vermont and without a license or any waiting period, you can pick up a gun and go blow your brains out.

Vermont must have an incredible powerful crime scene cleanup lobby.

[Press Herald]

Things you can do with a JD: Collect welfare benefits

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Hole, hat, or clown. We're not entirely sure which sort of ass GULC law prof Philip Schrag is. Last November he published an article in the Georgetown Journal of Legal Ethics titled Failing Law Schools -- Brian Tamanaha's Misguided Missile. (It's there to read if you want, but please don't needlessly boost his SSRN download rank.) The main point of his paper is that Tamanaha is too hard on Income Based Repayment (IBR), and doesn't appreciate how it makes law school "affordable." Here's an excerpt:

Tamanaha’s entire discussion of student debt, however, makes it clear that his characterization of the loan repayment burden is based on his assumption that students should expect to repay this debt (plus accumulating interest) by paying the same monthly amount, every month, over a period of exactly ten years. All of his examples of debt repayment hardship assume that the proper method of repayment is “standard” ten-year repayment. Of course that method of repayment is unaffordable for a person with a debt of $100,000 or more and an income of $63,000. To illustrate the hardship, Tamanaha gives us a hypothetical student, Sarah, with a debt of $120,000 and a combined interest rate of 7.25 percent. He notes that her monthly loan payment (based on straight-line amortization of the loan—that is, the same payment each month for ten years) would be about $1,400. If she had the average salary of $63,000, he points out, then after taxes, loan repayment and rent, she would have only $775 a month to spend on food, transportation, her phone bill and all other living expenses. “It’s not doable,” he concludes, and he is correct: the $1,400 a month of loan repayment would be 27 percent of her pre-tax salary. A thirty-year repayment plan is equally unattractive, because even a thirty-year straight-line repayment schedule would require her to repay $800 a month, still a hefty sum, and because of the accumulating interest, she would pay nearly $300,000 during the 30 year period.

In 2007, however, the United States Congress solved Sarah’s problem. It created the Income-based Repayment (IBR) option. By electing this method of repaying her loan, Sarah could limit her annual payment to 15 percent of her discretionary income, defined as her adjusted gross income minus 150 percent of the poverty level for a family of her family’s size. [...]

So with IBR and PAYE, law school for Sarah is quite affordable, even if she starts professional life at a salary of only $63,000 and serves private clients rather than working in a public service entity. But instead of praising these programs that enable Sarah to afford law school, Professor Tamanaha disparages them and (except for those who plan to choose PSLF) does not take them seriously as a solution to the problem of costly graduate education. “Short of a corporate job,” he writes, “a person with [educational debt of $100,000 or more] must obtain a salary above the national average, which most law graduates fail to achieve.”

Now, here's the thing that Schrag doesn't seem to get about IBR: It's basically a welfare program. There's not really any better way to describe it. The government is saying "You don't make enough money, so we're going to give you some extra money." That's welfare.

Tamanaha's entire discussion of student debt fails to take into account that a graduate earning $14,000 a year will not only make no loan payments under IBR, but will be entitled to an additional $1,800 a year in SNAP benefits.

Does that sound like a solution to the problem to you? Well, to Schrag, it might. But to the rest of us, we understand that there is a world of difference between mitigating a problem and solving it. The problem is that the typical law school graduates are earning only about half of what they need in order to reasonably manage their debtloads. Reducing the cost of education would solve that problem. Having the government pick up the check is just, quite literally, passing the buck.

Tamanaha's entire discussion of health insurance fails to take into account that an uninsured individual will not be turned away if he seeks treatment at an emergency room, rather than with a "standard" primary care physician. Tamanaha disparages this use of emergency medical care, and does not take ERs seriously as a solution to the problem of costly health insurance.

Walk a mile in my ankelet

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A prosecutor in central Illinois (or southern Illinois, to Chicagoans) is wearing an electronic ankle monitor for a week to “see how it works” so he can “respond to any complaints that somebody has.” Marion County Prosecuting Attorney Tom Redington wants to walk an electronically monitored mile in offender’s shoes. Not a bad idea, Tom.

This idea, in its abstract, is not a novel one. Prosecutors have been known to do ride-alongs with police officers and attend LIDAR demonstrations. Understanding how a tool used by your office functions is a great idea. Walking a mile in an offender’s shoes is quite a different one.

A prosecutor can take an hour of his day, meet up with the police on the interstate, and watch them run a speed trap. He can operate the radar gun, hear the calls go out on the radio, and maybe the cops will even let him run the lights and sirens. That’s understanding how LIDAR and speed traps work. Getting pulled over by an officer as part of a LIDAR-run speed trap is walking a mile in an offender’s shoes.

You can see where we’re going with this. Strapping on an ankle monitor for a week is not the same as understanding how the thing works in the context that you’re using it.

The prosecutor tells us that the bracelet program is going to become a part of probation. To qualify for the bracelet, the offender must pay $10 a day for it, and the average length of time an offender will be expected to wear the bracelet is 90 days. He says the county has a problem with knowing if people actually went to the AA meetings or did the community service they said they did.

He also believes that this week long trial run of him wearing the bracelet will help him defend it in court, saying,  "Someday when this comes up in court I can stand up and say to the judge, ‘Look, it's no trouble to wear this because I did it.'"

Sometimes people just make this too easy.

If you want to understand how the anklelet works in the context of the punishment, then you need to do the actual punishment. Is Redington shelling out the $10 a day? Is he going to AA meetings? Is he doing community service? Is someone showing up at his door if he enters an “exclusion zone”? Does he understand that a week and 3 months are not at all comparable in this context?

As for that bit about problems with this coming up in court, since when is a prosecutor’s personal anecdote sufficient proof of anything? Further, since this prosecutor isn’t actually using the bracelet the way offenders will, how would such an anecdote even be relevant? Maybe he can speak to complaints about chafing, or trying to shower with the thing on, but he'll be completely ignorant to the realities of having your every movement tracked.

If you want to understand prison life, you don’t put on an orange jumpsuit and go about your daily life. You go to prison. Ask Tobias Fünke about his research for his role as Frightened Inmate #2. Ted Conover wanted to understand the life of prison guards, so he strapped on a baton and a heavy set of keys and started walking the halls of Sing Sing.

Speaking of going to prison, if you truly want to walk the offender walk, Mr. Redington, why not spend 10 days in county? “You’ll get day for day good time, so you’ll probably be out in 5 if you behave. When can you turn yourself in?” How many times have you heard yourself say that?

Even short jail sentences aren’t pleasant. Are you ready to be printed, stripped, photographed, and have your tattoos and birthmarks documented? Are you excited for those cozy, standard-county-issued undies and whatever size shirt and pant combo they have available? Don’t forget those shoes, sandals that are so bad they make Crocs look good.  Then the cell sharing, showering sharing, meal and sleep regiment you’ll be subjected to. Could you imagine how screwed up your life would suddenly become if you had to spend the next 2 weeks in jail?

Yeah, we didn’t think so. It’s a nice thought, Mr. Redington. But the thought doesn’t count when it’s this ill-conceived.

Page 9 of 136

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