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May 07, 2015

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S. Lubet

The Guys and Dolls character was named Big Jule (not Julie), and he was from Chicago (not Detroit).

Other than that, good post.

Bernie Burk

Oops, you're absolutely right; thank you. The post is corrected.

Bernie

out in the open

"and the resurgent defenders of certain long-discredited law-school practices"

Simkovic might say that he previously wasn't hiding the fact of where his funding is coming from these days (pro-law school interest groups), but I really think that there has a been a sea change in his partisanship since that disclosure.

David Yellen

Bernie,
I think the "critics" are absolutely right on this one. I'm biased, because I drafted the conditional scholarship disclosure proposal when I was on the ABA's Standards Review Committee. One notable fact is that since disclosure of this information has been required, a number of law schools have eliminated conditional scholarships (meaning that students keep their scholarships as long as they remain enrolled and in good standing). This suggests to me that the conditional scholarship "game" only worked when students could not figure out their chances of retaining their scholarship.

Brian Tamanaha

Bernie,

Thank you for speaking up for the integrity of legal academia. It is embarrassing that law professors would now rise up to defend employment reporting standards condemned by courts (per your last post) and scholarship policies criticized by outsiders (see New York Times "Bait and Switch" piece), practices which have since been repudiated and reformed by new ABA standards. I do not understand why Simkovic is re-raising these resolved issues, but it does not help us regain our collective credibility.

After reading these posts, I have begun to wonder whether a sense of professional responsibility is what separates the two sides in this discussion. It is not a coincidence that John Steele, you, and others who strongly condemn these practices have taught legal ethics.

Anon

Ha, ha, The New York Times? You're seriously offering them up as a respectable source? The same rag that posted an infamously terrible piece about higher education by that noted obesity expert? Why should anyone take them seriously when it comes to law schools?

Orin Kerr

Geez, Bernie, sit down -- sit down, you're rocking the boat.

(Seriously, another excellent post.)

terry malloy

Powerhouse post.

Every villain sees him or herself as a misunderstood hero.

The implosion of cultural capital law schools once enjoyed is a direct result of unethical and immoral profiteering through practices now defended by Sim.

Ethics, yes. Also a lack of any form of shame. If you were raised right, you know that taking advantage of the unwise is wrong. full stop.

Barry

"Simkovic might say that he previously wasn't hiding the fact of where his funding is coming from these days (pro-law school interest groups), but I really think that there has a been a sea change in his partisanship since that disclosure."

He has been on a one-person campaign to discredit himself ever since that first paper.

There comes a time in certain people's lives when it later becomes clear that they sold out, and sold out 100%.

(M)([a)(c)(K)

Going back to my days in law school, one of my Professors - if I recall correctly it Richard Allen Gordon - in contracts law - was at pains to teach a key point to law students "that there could be a wrong without a remedy." This was demonstrated by conduct that was clearly facially and morally wrong, with a clear victim - but a complete absence of remedies of consequences for that wrong. I forget the fact patter (it was more than a couple of decades ago) but I found myself explaining this issue recently in respect of a limited liability company that was judgment proof because it had effectively distributed its wealth to shareholders more than 18 months ago (not US law by the way.) Similarly, suppose in Baltimore the defendants in the Freddie Grey case all deploy the SODDI (or in this case TODDI) defence - since there are perhaps different occasions on which Grey could have been injured, they might all create reasonable doubt with respect to their own individual liability.

We can as lawyers (or maybe law professors) all accept that something has happened here that is morally reprehensible, but also that there is no legal remedy. I can accept that sly law school administrators can search around until they come up with some BLS unemployment reporting criterion used in some contexts and then argue that this criterion used in reporting law school employment data is not legally wrongful (at a stretch), but don't ask me to accept that it is morally correct - to demand that is "to p!ss down my leg and tell me its raining." Similarly, to claim that deceptive use of so-called scholarships is OK as is section stacking is legal may be true, but it is morally reprehensible, as is defending the practice.

Moreover, having read Simkovic's explanation of his views and the way he tried to justify the practice, I had to conclude that he quite simply an astonishingly callous individual.

Derek Tokaz

Have any of the critics objected to conditional scholarships in general? All I've seen is an objection to a lack of disclosure, especially when the odds of losing the scholarship are high.

It's as if the critics are saying "Ground beef really ought to be marked with the date it was packaged on," and Telman and Simkovic are responding with "Critics would have you believe hamburgers aren't delicious."

I expect better from the freshmen I teach.

terry malloy

I don't object to conditional scholarships in principal, provided the school explains how it explodes, and an honest likelihood of it going away based on the curve. There are still the same cognitive biases that make young people think they are special snowflakes, but if we found a way to combat that, half half the law schools would close tomorrow.

The way these worked in the past for many was like the movie "speed" except no one told the bus driver that he had to stay above 55mph. 1L grades come out and Bang, you're paying full freight. When you ask, Ursula says "didn't you read the fine print?"

Section stacking with conditional scholarship students, however, is immoral.

dupednontraditional

Thank you for this, Bernie. I find it appalling that people like Telman and Simkovic seem to honestly think there is nothing wrong with what you described above, and, in fact, it's actually a good thing! It's not a bug, it's a feature!

Particularly distressing and damning is the lame "students had access to this information the whole time..." blame-shifting and misdirection that has been going on for decades. Not in the early 2000s, they didn't. Or before. These arguments are spoken like true self-serving, cloistered academics who apparently don't worry about what impacts and externalities are derived from these theoretical positions.

In short, give people scholarships. Or don't. Take your pick. Uphold your "high academic standards" to boot. But law schools must stop stacking sections and then act with shock and amazement as if they had nothing to do with it when half the scholarships have to be "given back."

Deborah Merritt

Terrific post, Bernie! In addition to presenting an eloquent defense, you make some points that others (including me) hadn't thought to make. Thanks for all of your thoughtfulness.

Derek, I think most of the critics have objected to conditional scholarships even with disclosure. Bernie does so at the end of this post, and I did on mine at Law School Cafe (noting that disclosure addressed two of my objections but not the third). I suspect others have as well, although haven't gone back to check their writings.

The very fact that a significant number of law schools don't use these scholarships is telling in itself. Also, note that among schools reporting conditional scholarships, 20 have 0-2 students who lose those scholarships. These are schools that set a very low condition but one that is slightly above good standing. Almost half of all law schools have decided that high-forfeiture scholarships are the wrong way to treat their students.

Barry

Derek: "

Have any of the critics objected to conditional scholarships in general? All I've seen is an objection to a lack of disclosure, especially when the odds of losing the scholarship are high.

It's as if the critics are saying "Ground beef really ought to be marked with the date it was packaged on," and Telman and Simkovic are responding with "Critics would have you believe hamburgers aren't delicious."

I expect better from the freshmen I teach."

Your analogy is poor. The critics are pointing out *yet again* that many law schools are being slimy, and their defenders (1) claiming 'caveat emptor' without the honesty of explicitly saying it and (2) lying about the availability of information.

Going back to the title of this post, 90% of the light here and everywhere has been provided by the scambloggers, while 90% of the heat has been provided by the scammers.

Derek Tokaz

DJM,

I read the ending of Bernie's post as objecting not to merit-based scholarships in general, but schools intentionally exploiting optimism bias and giving scholarships to students who are expected (by the school) to lose them. That's different from objecting to merit-based scholarships writ large.

Your "hunger games" post seems to be making a similar argument, that there is something wrong about offering conditional scholarships with the expectation that students won't be able to keep them.

Compare that to a conditional scholarship where the is to have at least a C+ average where the curve is B/B+, and only 5% ever gets a C or lower in any class. Would you find that sort of condition problematic?

dupednontraditional

Derek: "Would you find that sort of condition problematic?"

It could indeed be problematic. But I think one could accidentally miss the forest for the trees here in that your point is not the major thrust of the discussion in this particular case. We can debate where that line should lie and run Monte Carlo simulations to our heart's content as a related-but-separate discussion.

anon

It is incredible that as misleading disclosures about employment outcomes and sharp (if not illegal, ok Bernie: yes, we get it) practices with respect to exploding scholarships fall away, it becomes easier to see where the tiny trickle that is the source of the entire river of opprobrium heaped on the "scammers" can be found.

That is, to defend the indefensible is a signal not of intellectual prowess (as in a good defense attorney in an adversarial system) but of sheer, unadulterated self interest.

anon

Reading this post and these comments gives one great insight into life in a non evidence based reality. It's quite disturbing.

confused by your post

TLDR version of the arguments in support of conditional scholarships by law schools:

1. they are disclosed
2. they motivate students to perform better
3. undergraduate programs use them
4. scarce scholarship dollars are used to reward those who work hard

I'd like to focus on Item 2 on the list. I agree that conditional scholarships probably do motivate law students to perform better. That does not make using them the right thing to do. Are there better ways to motivate students that don't involve this form of punishment? There are certainly those in legal education who are more than OK with the idea of punishment as a motivational tool. I mean above and beyond doling out bad grades and the consequences they may bring in a student's job search. Perhaps schools that want to use punishment to motivate should enact a pre-disclosed policy of posting the grades of poor performers publicly along with the students' picture next to their grades. Or perhaps a policy of caning the poor performers. These alternatives might achieve most of the motivational effects without imposing the large financial hit on the students.

I would also ask whether any professor with protection from poor performance due to tenure should be taken seriously when defending conditional scholarships.

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