Some of you have asked for the complete rankings of the Class of 2012 rates for graduates employed in full-time. long-term positions requiring Bar admission for reporting law schools located in the continental United States.
Some of you have asked for the complete rankings of the Class of 2012 rates for graduates employed in full-time. long-term positions requiring Bar admission for reporting law schools located in the continental United States.
The ABA recently reported that 56.2% of the 2012 graduates from ABA-approved law schools were employed in full-time, long-term positions required admission to the Bar.
According to my analysis of the data for the Class of 2012, for graduates of the 197 reporting law schools located in the continental United States, 56.9% were employed in such positions. As you might expect, those graduates are not equally distributed across those law schools. The employment rates at those schools ranged from a low of 21.5% to a high of 94.5%. The 25th, 50th and 75th percentiles were
The following chart shows the distribution of law-school employment rates in full-time, long term positions with Bar-admission required:
Over the course of the past month Professor Lauren Willis from Loyola-Los Angeles (who will be visiting at Harvard 2013-2014) has been blogging up a storm at Credit Slips about consumer financial education--not much value in it, she concludes. Mediocre financial education may make folks overconfident and even good financial education can quickly become dated in the fast-moving world consumer financial products and their savvy marketers. Nor do "nudges" have the welfare enhancing impact their designers had hoped to see.
I had the opportunity to interview Lauren as part of my ABI Resident Scholar gig. You can listen to the podcast here. It's rather long even after editing but I think it's worth the time to listen to an insightful run-down on the problems of consumer financial education and non-regulatory actions that can help folks from getting into a never-ending cycle of debt. A bit of a surprise to me--social investments in pre-natal care and early childhood education help develop "executive function" may have more long-term bang for the buck than regulation. These sorts of programs can do more than a perfunctory high school class and better disclosures to develop the ability to defer gratification in the face of financial need and incessent (and misleading) advertising for expensive financial products.
And given the recent VAP discussions, I'd also like to point folks to an earlier interview I did with Pamela Foohey, a VAP at the University of Illinois College of Law. Pamela and I discussed her soon-to-be-published piece on Chapter 11's of religious organizations. Turns out that such organizations have effectively used used Chapter 11 both to preseve equity in their real estate and continue to provide a community-center(ed)(ing) place of worship. Foohey concludes that the "placedness" of some entities makes a purely economic analysis of the application of bankruptcy law incomplete.
Well, not really. But there is one small way in which Texas’ payday loan and auto title loan law has incorporated recent research on behavioral economics before other states, so I thought I’d use that title because it may be one of the few chances in my life to do so.
Some behavioral economists have argued that disclosure regulation should inform consumers of how they are likely to interact with lending products by disclosing other consumers' patterns of use. Lauren Willis has an interesting series of posts on Credit Slips about disclosure regulations. In one in particular, she highlights the work of Marianne Bertrand and Adair Morse. Bertrand and Morse partnered with a payday lender and disclosed different information to different borrowers, including information about how long borrowers usually take to pay off their loans. They found that some of the disclosures affected borrowing behavior.
As proof that some academic work affects the real world at least, Texas has adopted this sort of approach in its disclosures about payday lending and title lending. It appears Texas adopted Bertrand and Morse’s approach almost completely. Even the graphics look the same – compare page 40 of Bertrand and Morse’s paper with Texas’ disclosure.
I started thinking about title loans several years ago, and one of the arguments that you see over and over is that we need to prohibit title lending because it causes a lot of people to lose their car and their only way to work. Title loans are short-term, high-cost, small-dollar loans that are secured by a vehicle that the borrower usually owns outright. They are often used by people who are already in a financial bind, so academics, policymakers, and consumer advocates are concerned about the distress caused by borrowers losing their way to work.
One time I asked a consumer advocate what evidence we had of this phenomenon, and I was surprised that we had none. Despite its preeminence in the discussion, no one had measured how many people were actually losing their means of getting to work. Policymakers relying on this justification were regulating blindfolded, so I began to work on the issue.
Thanks so much for the chance to be part of the Faculty Lounge this month. I’ve been reading since it was created, so I am happy to join in. I plan to blog about consumer credit issues–credit cards, title loans, and payday loans.
The Consumer Financial Protection Bureau recently asked students to tell the Bureau about students’ experiences with financial services like debit cards and bank accounts. As the Bureau points out, credit card companies have to disclose their agreements with colleges, but the relationships with these other financial service providers is still pretty murky. My big question is not for students but for colleges: Why are you still partnering up with credit card companies?
There are of course a lot of reasons from a public welfare standpoint that we might think it is bad for colleges to partner with credit card companies, but my question is purely about the business decision. Most colleges make only tiny sums of money from these partnerships, so why do they chance reputational harm or risk losing students who get overburdened by credit card debt?
Because of the CARD Act, the Federal Reserve gets information from credit card companies and colleges (and other college-related organizations like alumni associations) about their partnerships, and the Fed creates a report anyone can view. In 2009, for instance, 604 of the college-related organizations
(57.85%) made less than $10,000 under their agreements with issuers, with 219 making less than $1,000, and 99 making no money at all. The median payment for all of the colleges was $5,891. So, for most organizations, their agreement with the issuer had a negligible effect on their bottom line, compared to say, the tuition of a single student for a single year. Why stay in these relationships? What am I missing?
Regular FL blogger Eric Muller posed a very interesting and thoughtful question in this post Are We Sustaining a VAP Trap? He did not argue that there was a "VAP trap"; he was inviting thoughful inquiry and perhaps reconsideration of whether, all things considered, it makes sense (at least for some) to have such programs or to enter such programs in the current job market.
Here is a great post from Christine Hurt over at The Conglomerate which I think sums up the issue very well. The VAP Debate. The bottom line is that doing a VAP has always entailed uncertainty and is going to be more of a risk in a down market. And it is a down market right now, particularly since so many schools are doing precisely what so many of the critics of the status quo think they ought to do - to wit, downsizing their classes and thus not hiring new faculty.
Professor Hurt reports a few things that bear repeating: law schools pay VAPs, not the other way around, so this is NOT like being a student and not necessarily a cost savings for the school since, although VAPs are paid more than adjuncts, they are typically paid less than regular faculty and do not do any of the associated service faculty are expected to do and sometimes teach fewer courses (programs vary). Most school could get adjuncts to teach the same classes for less money. So the cheap labor thing just doesn't wash.
In the current environment, it may well be that some schools will cut back or eliminate their VAP programs. We will have to wait and see. As many have already observed, not all programs are the same. Some provide more opportunities to workshop papers, more mentoring, etc. than others. The Bigelow at Chicago is a well-known example.
At any rate, go to the Conglomerate to read Prof. Hurt's take on this issue.
This story from the New York Time's Sunday business section should give some pause to those who think that law students' debt plight is unique to law students. High Debt and Falling Demand Trap New Vets. Maybe no one that thinks that, but at times, judging from some of the commentary, it sure has seemed that way.
Now I bring this up, not as a kind of "things are tough all over," so there's no problem, get over it. Far from it. But if things are tough all over, at least debt-wise, in higher education, which they seem to be (and we haven't yet talked about the situation for graduate students in disciplines like English, Philosophy, History, etc.) then perhaps we should consider whether this is a systemic problem, especially since the Times also reports that at least in some quarters a 4 year degree is the new entry level standard previously represented by a high school degree. It Takes A B.A. to Find a Job as a File Clerk
If it is true that at least part of the law school debt problem is a reflection of wider social forces, that suggests it is one that is not necessarily going to be solved by tweaks of the law school curriculum (and let me just say here that I assume that it is always a good idea to be open to continuous revision and reform in light of new information and conditions, as long as we also try not to reflexively discard valuable practices which may be good) or changes in accreditation practices. Nevertheless, one aspect of this article stands out for me - the role played by the for-profit vet school. Could it be that the combination of a federal student loan program designed and launched before the era of for-profit higher education and the emergence of these institutions has driven some of the problem by saturating the market? Or could it be that a general faith in for-profit entities and identification with market-based analogies and imagery has infected higher ed in a way that has been harmful to students? Bemonaing the corporatization of higher education Don't know. And it would probably be hard to prove a connection. But it is food for thought.
Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post. (These would be extreme ends of the spectrum).
But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are. Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.
In contrast, a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out." And that is one of the problems raised in an earlier post on the value of scholarship. How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff. And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which may defy easy calculation in market terms.
There is an analog to this problem in advertising circles. The old joke goes: "I know that 50 % of my advertising budget is wasted. I just don't know which half!" For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully. The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.
For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue. Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal.
Crowdfunding, a variation on crowdsourcing, is an Internet-driven way to raise money apart from the traditional capital markets. Since the late naughts its use has increased from $530 million in 2009 to $2.8 billion in 2012. Thus far, however, crowdfunders have not been able to receive a stake in the object of their largesse. Thus, notwithstanding increasing crowdfunding revenues, most contributors are still driven by sympathy or personal interest and receive nothing more tangible than free T-shirts, movie tickets, and the like.
That should have changed a month ago. On April 15, 2012, President Obama signed the Jumpstart Our Business Startups (JOBS) Act that added a new exemption to the application of the Securities Act of 1933 for issuers that raise money through crowdfunding. The JOBS Act directed the SEC to issue regulations by the end of January but so far none have been forthcoming. One of these days, however, the regs will be issued and crowdfunding will add investment for profit to its current hipster image.
One of the perks of being ABI Resident Scholar is the opportunity to do smashups. So listen here if you like as I discuss using crowdfunding as a tool for businesses in financial distress. My conversationalist is David McGrail who has some interesting ideas about using crowdfunding to finance a Chapter 11 reorganization.
In short, the $1 million limit on a single issuer's use of crowdfunding will limit its utility to small cases. But even that's a plus because financially distressed small business debtors have a very hard time getting new capital. More important are changes the JOBS Act made to the exemptions from registration under Regulation D and Rule 144A of the Securities Act.
I don't need to pretend that I know next to nothing about securities law but McGrail knows more than a bit. I learned a lot talking with him and I think our conversation should interest many folks.
After teaching Contracts for nearly 15 years I've gradually come more to question the extent of its place in contemporary American life. Regardless of our theoretical justification for contract law--vindication of personal autonomy or increasing net social welfare--the increasing depth of penetration of contract into our lives leads me to be more easily convinced of the warrant for doctrines like unconscionability that, so to speak, upset the apple cart.
You can read a review of a book that gets where I'm heading here. Arlie Russell Hochschild's The Outsourced Self: Intimate Life in Market Times (2012) observes that we've moved from being objects of contract to its subjects. Contract is less a tool by which the self achieves its aims than a substitute for the self. "The more the market is the main game in town, the more hooked we get on what it sells, and the more convinced that paid expertise is what we lack and an even larger service mall is the only way to go.” From needs, to desires, to the most intimate decisions of our lives, our decisions are no longer found within the self formed as part of a community. Or, as the reviewer puts it, "Choices that used to be made based on communities of family, neighborhood or work are now being outsourced to 'consultants' in everything from clothes and style to baby names."
What has this to do with teaching Contracts? With the luxury of two three-credit semesters I've always taken the opportunity to explore the the why of contract law. Where does it fit and where should it fit in society? This is a fertile field of class discussion perhaps in part because of Regent's religious mission. Over the years, American Evangelicals, who make up a substantial portion of Regent's students, appear to have become slightly more skeptical of identifying market economics with the Christian gospel. Am I
starting to sound like Wendell Berry?
I hope no one misunderstands my expressions of discontent with the place of my field of teaching in American society as a suggestion that we replace contract law with central planning. Things could be worse. Far worse. Yet to the extent we permit limited subversions of the regime of private ordering, the law can show that values in addition to autonomy and welfare are important.
As I have previously observed, if you think there is no oversupply of recent and imminent law graduates, you live in a fantasy world. If you think that every underemployed law graduate in America is just too lazy, too stupid or too greedy to take one of the countless paying jobs just waiting out there to meet the legal needs of the poor (who have no money to pay you, despite their substantial and serious needs), you live in a fantasy world. If you think that there are untold thousands of wonderful, remunerative jobs that don’t require a law degree but that instantly become available to law graduates just because they have one, you live in a fantasy world. We have lots of data measuring the differences between what’s going on here on Earth, and what you think you see from Planet Pangloss.
But there is an equally corrosive rhetoric at the other extreme in this discussion, and it is just as pernicious and misleading. For example, this recent quote from Paul Campos in Fortune: “[I]t's like the subprime mortgage scandal without securitization. When people realize it's a worthless degree, the system is going to collapse.” Lest anyone accuse me of being a hater, let me be clear that I think Prof. Campos has done us all a great service in raising and focusing public discourse on a number of extremely serious and important issues regarding the current state of legal education, and has regularly contributed to the discussion with reasoned and empirically-based arguments about where we are and where we might be headed. My concern is his tendency to lapse into self-loathing (such as in this inaugural post on his blog and much of the rest of what he posted there that month) and hyperbole (such as the remark I just quoted), and the rage and panic it excites in many of his followers.
In a recent post, I called those indulging these rhetorical extremes “Pandemoniasts.” I was thinking of Milton’s Paradise Lost, and the prospect of Hell presented to the fallen angels from the site of the city they will build there, Pandaemonium, which sounds for all the world like this crew’s prospect of all life after law school:
The dismal Situation waste and wild,
A Dungeon horrible, on all sides round
As one great Furnace flamed, yet from those flames
No light, but rather darkness visible
Served only to discover sights of woe,
Regions of sorrow, doleful shades, where peace
And rest can never dwell, hope never comes
That comes to all; but torture without end . . . .
(Book I, lines 60-67, spelling modernized)
Before those on the waiting list for anger management start to pile on, let’s all be clear that there is in fact loads of misery in the post-law-school world. There are literally tens of thousands of recent law-school graduates who made six-figure investments in their legal educations, many of them incurring huge nondischargeable loans to do so, who cannot find full-time, long-term employment making any substantial use of what they paid so dearly in time and treasure to acquire. This distress is by no means evenly distributed across the graduates of all law schools, but it is having real and significant effects at almost all of them, including many very well and thoughtfully administered institutions such as the one where I am fortunate to work. This is nothing short of tragic, and of course it has to be addressed to reduce the numbers of future victims of this misfortune. (And we should never forget that prospective reform of the kind currently under discussion in many quarters does little for those already caught in the riptide of the shrinking law-job market. Disaster relief for those already swept out to sea will be the subject of a future post, and is something we should all be thinking about as well.)
That’s why I’ve argued that What Matters Most right now is that there are not enough law jobs for the recent and imminent law grads entering the workforce: Responding to precisely these circumstances, the relevant markets are already bringing powerful forces to bear. What happens when you make more of something (here, entry-level lawyers) than the market wants? Supply contracts and price falls until the market clears. And that’s exactly what’s going on right now. Law-school applications are down precipitously again this year (hat-tip to Dan Filler for the latest numbers) as more prospective law students conclude that the investment of time and money in a JD is not justified. The first-year class that started this past fall is smaller than the previous year’s by at least 10% at roughly half the accredited law schools in the United States. Many schools will shrink, and some will simply fail when they cannot attract enough of what they consider the right kind of applicants. Similarly, price competition among law schools for desirable matriculants is already increasing, right now mostly in the form of price-discounting through offers of financial aid, but with a few institutions freezing and reportedly considering reducing their tuitions.
Judging from the oversupply revealed by the employment numbers gathered and disseminated by the ABA Section on Legal Education, my relatively unscientific guess is that we can expect the number of seats in accredited law schools to shrink somewhere between 20% and 40% from its high in the class entering in the fall of 2010. My equally unscientific guess is that we can expect to see the reduction fairly quickly (on an academic timescale)—perhaps within the next 3-5 years.
This correction, which is obviously substantial, will create more dislocation and hardship. That is deeply regrettable. Students at institutions forced to close will have their studies disrupted, and perhaps terminated (with concomitant loss of their investment) if they cannot find an institution willing to accept them as transfers. The faculty and staff of those failed institutions will lose their jobs, and finding similar jobs elsewhere will be very difficult as many of the schools remaining downsize their own faculty and staff to serve reduced student bodies. (The difficulties I am hearing about from very accomplished and talented applicants for law-teaching jobs this year are just a small harbinger of things to come.) Schools that choose to compete by reducing price, either by selective awards of financial aid that allow them to price-discriminate more effectively, or by reducing nominal tuition rates across the board, will undoubtedly require their faculties to teach more and get paid less.
These hardships will not fall equally on every law school. The really interesting questions are which schools are going to be most quickly and profoundly affected and why. I have some thoughts about that, which I’ll share in a post soon to come. Readers’ predictions in the Comments are solicited. In the meantime, some schools are embracing the inevitable proactively (props to Dean Frank Wu at Hastings, for example, who decided last spring to reduce his census by 20% even though he could still fill 100% of his existing seats, thus seizing the opportunity to manage into and through the change), while others will undoubtedly be dragged down in price or numbers kicking and screaming (and denying and denying some more).
Those in the Schadenfreude brigade who take some joy in these prospects should be ashamed. When markets contract, many people suffer. But is this the end of the world as we know it? Is “the system” going to “collapse”? Don’t be ridiculous.
The legal profession is still an indispensable handmaiden to the American economy. Even with a deeply depressed economy and critical structural changes reducing the staffing and pricing of legal services, there are still countless disputes of all kinds to be resolved, still deals to be done, and more regulations than ever to comply with. There is an interesting debate to be had about whether, in the medium or longer term, the traditional model of conventionally defined legal services provided by guild-licensed professionals will survive (Gillian Hadfield and Richard Susskind, among others, think—with apologies to Prof. Hadfield for oversimplifying her complex and nuanced views—perhaps not). But right now, and for the foreseeable future, there is no responsible argument that every law degree is “worthless” or that “the system” is on the verge of “collapse.” Over 23,000 of the law students who graduated in 2011 had long-term, full-time jobs requiring a law license within nine months, and some modest (and I stress “modest”) complement on top of that found work towards which their law degrees made a real and significant difference. That’s a lot fewer than the 43,000+ who graduated that year, and some of those who succeeded in the job market are making only a marginal living. Those are very significant problems that have resulted in real and serious loss, disruption and pain to many thousands of disappointed graduates. But to suggest that soon no one will be attending law school because there are, or will be, no economically viable entry-level law jobs is absurd.
Bottom line: The legal academy is already shrinking, and that’s going to accelerate for a while—but it will slow and then stop. We have the choice to face the forces driving these changes thoughtfully and proactively, or to be dragged along willy-nilly. What we can’t do is resist them, and those who try will do so at their peril. When it’s done, we will likely be sadder, hopefully wiser, and certainly more modest in our dominion. “Better to reign in Hell than to serve in Heaven”? You tell me.
With thanks to the commenters and correspondents who responded to my original post on this subject with an absolutely fascinating range of views, I’m going to take another run at explaining why I’m still disappointed with the recent article by Law School Transparency co-founders and research director Kyle McEntee, Patrick Lynch and Derek Tokaz (to whom I will refer in this post interchangeably with LST, though I’m not sure whether they would agree with that). The paper, forthcoming in the University of Michigan Journal of Law Reform, is rather dramatically entitled “The Crisis in Legal Education: Dabbling in Disaster Planning.” Familiarity with my original post is not presupposed.
As I mentioned in my original post, I’ve always admired Law School Transparency—even, I’d like to think, before it was fashionable. There is a good deal to admire. LST and its principals recognized early in the collapse of the law-job market that law schools were doing a discreditably poor job of making available the information necessary for a rational person to determine whether or where to get a law degree. They believed that potential consumers of legal education would make better choices if they were better informed. They were pointed, patient and persistent in pressing for more and better disclosure. They were an instrumental part of the process that effected that change. And they’ve offered a number of thoughtful perspectives on the information they helped bring to light (I don’t particularly agree with a number of them, but I certainly respect the effort and empirically supported analysis that went into them).
So what’s my problem with “Dabbling in Disaster Planning” (beyond everything the title ought to tell you without asking further)? Here’s a catalogue of my most serious concerns:
Don’t overdramatize. Don’t let your urge to be the center of attention distract from the ideas and their merits. To those of you who pointed out that this was a vice of my original post (most of you in the most understated and appropriate way): you were right, and thank you. This vice appears in “Disaster Planning” in the overused and overwrought rhetoric of crisis that pervades a certain class of commentary about the current state of the legal academy and the legal profession. LST’s title tells us its paper is all about “Disaster Planning” to address the “Crisis in Legal Education.” And indeed the word “disaster” appears three times in the first paragraph of the Abstract alone, with two “cris[e]s” thrown in for good measure. By the third page, “the law school disaster” has been erected as the foil against which the paper’s recommendations are defined.
Don’t allow hysterical language to mask a failure to define the issue you need to address. So what is “the law school disaster” according to LST? I scoured over forty pages without finding an answer. While “Disaster Planning” trots out various inventories of misfortune, it fundamentally fails to identify the “disaster” it’s “planning” for, leaving us facing down that “disaster” armed only with the queasy uncertainty that we won’t know when we’re ready for it, how effectively we weathered it, or when it might be over.
Am I suggesting that there is nothing amiss in the legal academy or the legal job market? Of course not. Law schools; their faculty, staff and administrators; law students; law graduates; lawyers and legal employers—and by far most importantly, clients—are all currently awash in real, serious and substantial difficulties of various kinds. But which are causes, and which are effects, and which are which for what? Or to put it slightly differently, it’s pretty much impossible to solve a problem you haven’t defined; in fact, it’s difficult to speak coherently about a problem you haven’t defined. You end up with exasperated generalizations on the order of “life sucks; then you die” (which, I might observe, leaves you with innumerable inconsistent avenues to explore concerning whether or how to make life suck less, or end quicker).
Some measure of how serious an obstacle this tactic is to sound analysis can be found in the responses I received to this point in my original post. Several of you (including Kyle McEntee himself in a very thoughtful and measured Comment for which I thank him) chastised me for quibbling with LST when it was perfectly obvious what the “disaster” was—and each of you identified different issues! Mr. McEntee believes that “the disaster would be if legal education's traditional and important role in American society is further delegitimized”; others of you identified the problem as the excessive cost of legal education (a subject I will discuss in an upcoming post); still others pointed to the genuinely tragic flotilla of unemployed law grads currently marooned in a sea of debt.
That’s why I have devoted (some might suggest squandered) so many words in this space considering “What Matters Most.” For those no longer keeping score at home, what I think Matters Most—that is, what is most fundamentally a direct or indirect cause of more current hardships, and what would be most difficult, and least likely, to change—is the fact that there are significantly more recent and imminent law graduates than there are entry-level law jobs. You are invited to review my empirical and logical bases for the conclusion that this is What Matters Most right now (e.g., here and here), and fault my reasons in any way your reason will permit. But for heaven’s sake, let’s have a coherent and common-sense discussion about causes and effects grounded in actual facts and practical realities, and leave Henny Penny in the barnyard.
Whether you agree with my assessment of What Matters Most or not, defining the problem you want to solve is utterly essential. Beyond insignificant and temporary adjustments on the margin, law schools don’t create law jobs, and they don’t destroy them. Legal employers and clients do that, driven by their own economic exigencies. Law schools have been making the same mistakes that LST and others identify today in one form or another for close to 40 years, during which time legal employment saw essentially uninterrupted and unprecedentedly rapid growth at rates far in excess of the greater economy’s. There is no empirical evidence, and no coherent argument, that whatever you think law schools are doing wrong today made one-third or more of all entry-level law jobs suddenly disappear between 2008 and 2010. There is no empirical evidence, and no coherent argument, that any change to the substance or method of legal education today would bring any material portion of those recently disappeared jobs back into the economy.
What this means is that, if you’re trying to relieve the oversupply of recent law graduates (or the undersupply of entry-level law jobs), tinkering with law-school curricula or instruction methods will not meaningfully touch the problem. Nor will simply lowering the cost of a law degree, which as I’ve already suggested in this space, seems more likely to increase the number of unemployable graduates as reduced price stimulates demand. This is not to say that I endorse the current economics of law school, but that’s no excuse not to think through the plausible consequences of your policy prescriptions.
So while I do not question the seriousness and good faith with which LST advances its proposals, I hope none of you will question the seriousness and good faith with which I suggest that some of the ideas in “Disaster Planning” deserve some further thought and refinement. To put my examples in context, two of the big ideas around which LST wants to build an experimental “modular” law school are (i) shorter-term class “modules” lasting only a few weeks apiece in lieu of most full-term courses (a Colorado College model for those familiar with it) (ii) taught predominantly by adjuncts at a cost far lower than permanent faculty. In the remainder of this post, I’ll try to illustrate some recurring errors in LST's article that we can all try to avoid in our next efforts.
Don’t ignore the implications of your justifications. A number of the explanations offered for LST’s specific proposals don’t respond to broadly held perceptions of what’s broke; don’t hang together, or just don’t make much sense. For example, the authors praise the compressed class “module” structure because it “encourage[s] exploration of topics that would otherwise be considered too narrow in a semester-long curriculum structure.” But overbreadth of particular class offerings is not a common view of the current deficiency in curricular selection; if anything, excessive and impractical narrowness is. This does not necessarily mean that shorter “modules” are a bad idea; but it does mean that how they are selected, structured and coordinated is quite important. Future discussion should bring this essential factor, which is not addressed in the current paper, into play. Similarly, LST touts its proposed structure because it allows faculty to respond nimbly and rapidly to the curricular “input” and “demands” of students. This is not altogether surprising given that the authors are all recent law-school graduates. But the premise is not unlike criticizing a physician for bad patient service because she did not provide the diagnosis or prescribe the therapy the patient thinks he prefers. Most students come to law school having no idea what they need to learn to prepare themselves for one of the innumerably varied careers they have not yet chosen. The fact that some of the doctors may be loopy or self-involved is no reason to put the patients in charge of the asylum.
Don’t ignore inconvenient facts. One of the greatest challenges in formulating coherent law-school reform proposals is (as a number of you pointed out in response to my original post) how little we actually know about what works or why. Experimentation should be undertaken advisedly, since the guinea pigs are people who are gambling huge amounts of money and their future on the experiments’ outcome. So when we actually have empirical data, we are duty-bound to make the most of it. In this particular instance, LST—ordinarily an outspoken champion of better information driving better decisions—refuses. Dean Erwin Chemerinsky, the authors note, has pointed out that one of the serious objections to a very small core of full-time faculty surrounded by a cloud of adjuncts who wander in for their three-week modules and then disappear until next year (or forever) is that adjuncts regularly receive materially less positive student evaluations of their teaching in the aggregate than permanent faculty. One likely reason, Dean Chemerinsky has argued, is that whatever else teaching involves, it is a skill that benefits from practice. LST’s response is a series of unsupported assertions that the student evaluations are somehow comprehensively wrong, and that most practitioner adjuncts are really better teachers, both in their practices and at school, than most permanent law faculty (something not entirely obvious to anyone who has ever worked in a law firm, which none of the authors has for any length of time). While greater use of adjuncts may present other advantages—which, while not in my view as self-evident as the authors apparently believe, seem to deserve exploration and testing—it is at the very least self-defeating to deny years of actual empirical observation and evaluation by the very student population the authors wish to serve. Let’s use the facts we have, not pretend they don’t exist.
Don’t assume away the problems you perceive; recognize and try to solve them. No proposal is perfect. Good policy involves identifying the weaknesses in your suggestions and figuring out ways to avoid or ameliorate them. Bad policy leaves the problems you know are out there for someone else to take responsibility for (so at least the program’s failure won’t be your fault). For example, the authors concede that “[t]he sheer number of adjuncts may accentuate the problem of finding, scheduling, evaluating, and filtering competent teachers.” Their solution: “The . . . faculty must be actively managed in a way that ABA-approved law schools are not presently doing.” Any suggestions about the quantitative or qualitative nature of the “problems” their novel structure creates, or what any of those currently nonexistent techniques of “active manage[ment]” might involve? Nah, these mere operational details are delegated to a “module coordination staff, focused on the challenges distinctive to the modular structure,” who will somehow do what such currently nonexistent people have never done before “ensuring a sound and affordable legal education.” Any solution involving the adjunct cloud that LST favors cannot be taken seriously without some very detailed prescriptions for how to manage this very significant challenge.
LST deserves everyone’s gratitude for an earnest and courageous effort to advance the discussion on a miserably complicated and difficult set of problems. The execution leaves something to be desired for the reasons just discussed. But at a minimum, it highlights a number of the challenges that are going to have to be addressed before meaningful and effective reform will be possible. We can only hope that, as each of us comes forward with our own ideas, the mistakes we make are new.
Next time, my promised response to the crisis-mongers.
In the meantime, a Happy New Year to all.
This is not about Django. As much as I am dying to write a post about Tarantino's new film, my academic writing beckons.
Thank you, Patrick O'Donnell, for your earlier post and bibliography on teaching prison law. I'd like to add to Professor Dolovich's call for a curricular commitment to bringing prisons and prisoners into legal education: We should not forget to include a consideration of how antebellum slavery shaped the development of America's early penal institutions.
I am hard at work on a project that looks at the administration of slavery in antebellum Virginia through the institutional prisms of the county jail and the state penitentiary. Many (many) years ago, while trying to nail down a dissertation topic, I became interested in the practice of confining alleged fugitive slaves in local, southern jails until they were "claimed" by their owners. (Many folks confined in antebellum Virginia’s local jails were never accused of any crimes, and were most often merely suspected of being runaways.) Hunted down on the roads and in the countrysides, people of discernible African ancestry were presumed to be fugitive slaves; no law prevented their seizure and confinement upon such suspicion.
Few have considered the experiences of blacks in what might be considered "civil" custody during this period; beyond those excellent monographs on slaves-as-criminal defendants (Schwarz, etc.), this other history has gone (somewhat) untold. Penal institutions in this country have troubled pasts; introducing them to our students will both spark their interests and motivate further scholarly excursions (and activism) into the field.
Change is hard. Big changes are underway in the economics of the legal profession, and they are driving equally big changes in legal education. These changes have imposed genuinely tragic hardships, most immediately and directly on the aspiring lawyers trapped in their cross-currents. Those who entered law school in 2005 and later implicitly or explicitly made rational (or as time went on, at least not entirely irrational) assumptions that the legal economy would continue, mutatis mutandis, as it had for the last forty years or more, an endlessly rising tide lifting even the leakier and more crudely-finished boats. Sadly, and through little fault of their own, they were wrong, and at great personal cost—in time, in money and in life plans gone awry.
Change is scary. The fear is palpable among those speaking to current circumstances out of the academy, and has produced the two results that such fear predictably spawns: Rank denial and frank hysteria. Neither is merited. Today, prompted by yesterday’s much-downloaded op-ed in the New York Times, I speak to the Panglossians; my next post in this space will address the Pandemoniasts.
My message to Dr. Pangloss is simple: Stop and think. Please. You can’t whistle “Don’t Worry, Be Happy” loud enough to drown out the anxiety that is prompting this forced insouciance. And you are wasting valuable time and energy not only denying the existence of important questions you ought to be addressing, but potentially confusing others who will make errors they could have avoided and lose opportunities they could have claimed.
Those of you who remember my post on “What Matters Most (in legal ed these days)” (and blessings be upon you if you do) will recall that I suggested that by far the most salient feature of the legal education landscape today is that there are too many law graduates and too few law jobs. The Panglossians deny that this is true, or argue that it doesn’t matter if it is. In doing so, they depend almost entirely on wishful thinking masquerading as empirical assertion. While we would all be very interested in any meaningful empirical evidence supporting the Panglossian view, I haven’t seen any to date. And I have seen lots to the contrary.
Some of the Panglossian commentary is downright meanspirited, and takes the basic form that there are in fact lots of law jobs out there, but recent graduates are too lazy, too stupid, too greedy, or too ill-prepared by their law schools to claim them. When any evidence of the existence of this sea of unclaimed jobs is offered, it is generally either the fact that there is substantial unmet need for legal services among the poor and middle class; or that Nolo Press and Legal Zoom are still in business. Let’s be clear: There are now tens of thousands of unemployed or underemployed recent law graduates out there dying to make some use of their legal education. If they could make a living starting a practice at very low rates, they would do so. That’s how labor markets work. But as I have commented in this space previously, the poor are poor because they have no money; and the middle class have very little disposable income to devote to legal services not covered by insurance or contingent fees. As for Nolo Press and Legal Zoom, they are successful in the marketplace precisely because they offer very basic legal services at prices that are cheaper than virtually any practitioner can manage to charge and continue to eat regularly. Even still, there are plenty of ads for dirt-cheap flat-fee incorporations and uncontested divorces in your local yellow pages. The low-price market is saturated. Stop blaming the victims of a rapid and significant contraction in the entry-level legal job market for something they didn’t create and can’t overcome—which is what you're doing if you deny there are significantly too few law jobs, whether you do it by attacking recent law grads directly or by the tactics I turn to now.
Many Panglossian apologists suggest that everything is still just fine because a law degree has innumerable profitable uses beyond qualifying its recipient to get a license to practice. An example can be found in a well-respected law professor’s comment on Dan Filler’s recent post on the plummeting numbers of LSAT takers. This argument takes a range of forms that range from the (always unsupported) assertion that “lots” of the speaker’s graduates get “wonderful” jobs that make great use of a law degree but don’t require a law license, to the (equally unsupported) assertions that a law degree is ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates.
I would be delighted to see any empirical evidence supporting these assertions, but unfortunately there isn’t any of which I’m aware. Recent ABA employment outcome statistics devote a segregated category, called “JD Advantaged,” to jobs that do not require a law degree but for which the degree “provides a demonstrable advantage in obtaining or performing the job.” This is an overinclusive definition, because what we really ought to be looking for are the jobs for which a JD provides a sufficiently substantial advantage in hiring, retention or advancement that the holder’s investment in the degree is justified. After all, the fact that you get a job after graduating from law school, even one to which your legal knowledge is somehow relevant, does not necessarily mean that the job made the time and tuition worth it—especially if that job does not require a law license or even a law degree. But in all events, what the ABA employment statistics show is that this “JD Advantaged” category of jobs is, for most schools, a small proportion of what anyone might call placement success. Moreover, the number of such jobs for a law school’s graduates is significantly negatively correlated with that school’s prestige as measured by its US News ranking. In other words, at the schools where graduates have the most employment options, they choose significantly fewer of these “wonderful” jobs, further suggesting that they are second-best (or considerably worse) outcomes. As for the argument that law school somehow makes you so much better at everything that it’s worth whatever someone wants to charge you for it, I assume that requires no further discussion.
Finally, a few words about yesterday’s New York Times op-ed from the new dean at Case Western, unapologetically entitled “Law School Is Worth the Money.” There are several postings already online pointing out astonishing deficiencies in this Panglossian effort’s coherence and empirical support (which I borrow from as well as add to below; three pretty devastating ones are here, here and here), but I want to dwell briefly on two particularly egregious examples.
The op-ed argues that things are actually good for law grads today because the median law-job salary figure for 2011 graduates is $61,500. But unless you look closely, you won’t see that this is the median salary only among those who actually have law jobs in the first place. (The op-ed, and I, rely on statistics from NALP.) In other words, the op-ed’s median salary number doesn’t appear to take into account the pay (if any) of those graduates who have no law job, or no job at all. All told, that median is based on only the 36% of 2011 graduates who both had law jobs and reported their salaries. And what that means is that only 18% of the class of 2011 (half of the 36% on which the median is based) were confirmed to have had JD-required jobs that paid more than $61,500. In other words, the data on which the op-ed relies show that a randomly selected 2011 law grad had less than a one-in-five chance of getting a job as a lawyer that paid more than the $61,500 "median" salary that the op-ed offers as proof of a prospective law grad’s excellent prospects.
Similarly, the op-ed makes a great deal out of a comparison between a percentage of graduates who took jobs in private firms in 1998 (55%) vs. 2011 (50%), arguing that this shows that things are only a little worse now than they were at another time law-firm hiring was a relatively low portion of all law hiring. It fails to mention that the cited fraction is not the portion of all graduates who got private firm jobs, but rather only the percentage of students who got law jobs in the first place and whose jobs were at private firms. And according to NALP, a much greater percentage of law graduates in 1998 got full-time law jobs in the first place (something like 80% of all graduates, or perhaps more depending on how you count), while approximately 55% of all 2011 graduates got jobs requiring a law degree. In fact only 41% of law grads whose employment outcomes were reported to NALP got jobs at law firms. And some of those jobs—after three years and $200,000 worth of law school!—apparently were as secretaries, paralegals or clerks, or were only part-time. Take those out along with cases where a new grad is practicing as a solo (which is “getting a job” in name only), and less than 30% of the class of 2011 whose employment outcomes are known were employed at private law firms nine months after graduation. So this statistic compares most of an apple with a very thin slice of orange. (Not to mention that it is a meaningless thing to worry about in the first place, as there are many excellent law jobs in government and nonprofits, and many low-salary and low-satisfaction jobs in private law firms.)
One other frankly bizarre assertion in the Times needs brief mention. The op-ed argues that, even if entry-level hiring is at historic lows relative to number of graduates (which is likely the case even though the rest of the piece apparently tries to suggest otherwise), that doesn’t matter because first jobs don’t matter; it’s the subsequent positions that the law degree assertedly allows you to obtain later in life that really matter. Of course, we have no longitudinal data on the future job prospects of initially unemployed or underemployed law graduates because there has never been anything close to so many at once before. But does anyone seriously believe these folks are going to get a great second or third legal job without ever having had a first one? Or that any discriminating legal employer is going to see two years of flipping burgers, stocking store shelves or selling jeans as good preparation for law practice?
I could go on, but others already have. If a student turned in a paper with arguments like these in a class I was teaching on the legal profession, I know what grade I would give it. I encourage you to draw your own conclusions.
I close this post by reiterating my initial point: While none of this proves that the sky is as clear and cloudless as the Panglossian deniers would have you believe, none of it proves the sky is falling either. The Pandemoniast view I will discuss next time is, in my view, just as overwrought and undersupported as the Panglossian one. In the meantime, it’s time for the “Don’t Worry, Be Happy” crowd to impose on themselves the commitment to thoughtful and honest data-driven argument that I hope and assume they regularly urge on their students. Dr. Pangloss, heed thyself.
Much of tax law scholarship concerns how to improve tax compliance; in this literature, tax evasion is held out as normatively undesirable. A senior researcher at the London-based Royal Society of Arts recently published a paper in which he argues that tax evasion in the UK might (actually) be a good thing. In “Untapped Enterprise,” Benedict Dellot argues that the “informal economy” – those workers who do not declare their income for tax purposes – are an important part of the formal economy and that "formalization" itself is a process that occurs over the lifecycle of a business. In some parts of the developing world, for example, the informal economy accounts for up to 90% of GDP. The authors argue “If we rely too heavily on deterrence measures, we run the risk of derailing this[formalization] journey and preventing the entrepreneurial potential of thousands of hidden entrepreneurs from being realised.”
The study, of course, has some application limitations, but it’s an interesting read. Should tax policy accommodate certain forms of “productive” noncompliance? Does it already do so? I'd love to hear from some of our tax readers on this!
For those of you who noticed I hadn’t posted here lately, thanks for noticing. I’ve been listening and thinking, two virtues we all too often honor in the breach. What I’ve mostly been listening to and thinking about is the swelling threnody bemoaning—or in some cases celebrating—the impending Demise of Legal Education As We Know It.
What all this shouting about Fraud, Failure, Exsanguination, Plague and Death has given me is an appetite for some perspective. (My favorite Thanksgiving side dish, inexplicably not served in many American homes these days. Go figure.)
What kind of perspective? Let’s start with some clear thinking about What Matters Most in legal education’s current circumstances. What I mean by this is that we ought to start our discussion about What’s Broke and How To Fix It by isolating, among the many matters of legitimate concern at this time of profound and rapid change, which ones are the most fundamental—the ones that provide the necessary backdrop and context for the rest.
I’m going to start that effort here. I’m working on a longer piece that will explore these issues at greater length and with some effort at empirical support, but as the lamentations swell, I’ve become increasingly concerned that this question is getting drowned out, and at some considerable expense to clear thinking. In my efforts to isolate What Matters Most, I imagine I will exasperate quite a few of you who are understandably preoccupied with issues that I don’t think Matter Most. So let me be clear: The issues that I don’t think Matter Most are still very important, and deserve concerted attention. But those issues are not are the ones that necessarily define the context for plausible definitions of problems and solutions. First things first.
There are roughly three categories of contumely being heaped on the legal academy these days. Two of them have received disproportionate attention, and what’s striking is that they are pretty clearly not the ones that Matter Most. Those two are arrays of related contentions (1) that law school fails to prepare students for practice; and (2) that law school costs too much. Let me say again before readers start calling me names in the Comments that these concerns are, in one formulation or another, both quite important and quite well taken. But they’re not What Matters Most.
What Matters Most is that there are today significantly more seats in accredited American law schools than there are entry-level law jobs for the emerging graduates. This is obviously neither an original nor a novel observation; lots of people in addition to me have written about it. But its fundamental importance has received surprisingly little attention.
To appreciate why it’s important, let’s refine the observation a little. You can argue about how big the overproduction of law graduates is right now. Numerous commentators have focused on ABA employment statistics counting the number of law graduates who have found full-time, long-term jobs requiring a law license within nine months of graduation to argue that something like half of all recent law graduates are “unemployed” or “underemployed.” For reasons I have elaborated on previously in this space, I think this overcounts the number of law graduates unable to make good use of their law degrees in the job market. But however you count it, the overproduction is currently very substantial. I’m still working with the data, but I would estimate overproduction of law graduates today at about 1 in 3—that is, that roughly 1/3 of recent law graduates cannot get a job that makes good use of their law degrees.
You can also argue about how long the overproduction will last—that is, how much of this overproduction is cyclical, caused by depressed demand for legal services resulting from our depressed economy; and how much is structural, resulting from changes in the provision, staffing and pricing of legal services driven by changes in technology and business practices. The difference is critical, because cyclical forces should largely resolve themselves as the economy eventually improves, while structural forces should force long-term reduction in the demand for young lawyers regardless of the pace of economic recovery. I was on record early with the view that the changes we are observing in recent years are much more structural than cyclical in origin, and what has happened since has only confirmed that the sudden reductions in law jobs that have emerged since the economy crashed have resulted predominantly from pent-up structural forces that had been building for years.
If that’s right, What Matters Most is the current and foreseeable future overproduction of law graduates. Period. This matters more than law schools’ pervasive failures to prepare their students adequately for practice—failures that, by the way, have persisted for at least a generation and probably two during which demand for young lawyers grew rapidly and consistently. Why? Because the reason that substantial numbers of recent law graduates cannot get a law-related job is not for lack of practical training. It is for lack of jobs. Schools that improve their practical preparation may help their graduates seize a marginally greater share of the limited law jobs available, but they will not materially expand the job market. While my friends in the Crisis Chorus would probably liken this to improving your chances at Musical Deck-Chairs on the Professional Titanic, I reject this metaphor, but only because I deny the analogy to the Titanic, not the very apt analogy to musical chairs. Again, this is not to say that curricular reform is not very important and long overdue, but it is not What Matters Most.
Similarly, overproduction of law graduates matters more than the excessive cost of a law degree (and the indiscriminate availability of government lending to fuel its increase). Why? Because the reason that substantial numbers of recent law graduates can’t get a law-related job, or a law-related job that pays enough to service their student loan debt or economically justify the cost of their professional degree, is not mainly because they are overburdened with debt. It is because they are undersupplied with jobs. If there were any more law-related jobs available, even at very low pay, the unemployed and underemployed recent law graduates extant today would be swarming to fill them. But they don’t exist. And lowering the price of a law degree will not create more law jobs. In most markets, if you lower price, demand rises. So if you lower the price of a law degree, on the margin you will induce more people to apply to law school (lower cost; lower risk; why not see how I do?), and create an even greater oversupply of law graduates. Is this wise? Yet again, I am not suggesting that there is much good to say about the manner in which legal education is currently priced and funded. Nor am I suggesting that every law school should remain as expensive as it is. But I am suggesting that, if the markets want cheaper law degrees, ordinary price competition (with some interference from regulatory forces such as accreditation and licensure standards that may need attention) should help provide solutions. Watch for it in the next 12-24 months. But with all respect to Jimmy McMillan, I’m not prepared to join The Rent Is Too Damn High Party.
I’ll have more to say about this in coming months, but this post is already long enough. The long and the short of it is that What Matters Most is that there are too many law-school seats and not enough law-grad jobs. In most markets, what happens when there is an oversupply is that production and price fall until the market clears. That’s already happening today. Prospective law students have become aware of the undersupply of law jobs, and law-school applications are falling significantly. Many law schools appreciably reduced the size of their entering classes this fall in response to the falling number of qualified applicants. Price competition on tuition (right now predominantly through the tactical use of financial aid) is being reported. Many schools will shrink, and some will fail. Many will experiment with curricular, placement and financial innovations to meet the demands of the times and attract more and more-qualified applicants. Critically, all of this will be driven by the applicant pool’s perceptions about what kinds of value a law degree will furnish by the time you’re done getting one. And that’s why the oversupply of law-grad production and the undersupply of entry-level jobs are What Matters Most right now. The really interesting questions are which schools are going to be most and most quickly affected by these forces and how.
It happened. Yesterday, a Las Vegas business owner called in to a radio program to report that he had fired 22 employees because of President Obama’s reelection. The caller explained: “I never tell them which way to vote. I believe in the free system we have, I believe in the right to choose who they want to be president, but . . . I can’t wait around anymore, I have to be proactive.”
In the past several weeks, there’s been some discussion in the blogosphere over whether it is unlawful for an employer to attempt to influence employee voting choice by threatening adverse employment actions over the results of an election. In October, billionaire casino mogul Sheldon Adelson was criticized for instructing casino managers to distribute an “issues guide” to employees that suggested that the President’s positions on taxes, health care, and energy policy would threaten jobs while Mitt Romney’s positions on these same issues would “lead to working-class prosperity.” The Koch brothers similarly distributed materials threatening Georgia Pacific employees’ job security if Obama was reelected.
Are politically-motivated adverse employment actions ever legitimate? Where's the line between a reasonable business decision and political motivation? How would plaintiffs ever prove that impermissible considerations went into the decision?
It remains to be seen whether mass layoffs like the one in Las Vegas will be contested in court. The law on most of these types of employer communications is inconsistent and untested, so it’s interesting to consider (and would make a great student law review topic (hint hint)).
Two weeks ago, a man allegedly attempted to steal a Snickers™ bar from a 7-Eleven store in Brooklyn, New York. In response, three clerks accosted the man, tackled him, bit him, slammed his hand in the store’s doors, and stripped away his clothing, leaving him injured and nearly naked. The incident was captured by cameraphone video (warning: nudity, offensive language, and violence). The video shows the three store workers pushing, pulling, biting, and kicking the accused. (One can also see their faces when they realize that the incident is being recorded.) This incident has prompted a spirited discussion (at least among some New Yorkers) over whether the store clerks went “too far.” But what is “too far” in this context? Where does legitimate property security end and (illegitimate) violence begin?
Shoplifting is, admittedly, a major issue for the retail industry; theft accounts for billions of dollars in losses. And despite the economic effects of shoplifting, few shoplifters are ever caught. When shoplifters are apprehended, police intervention is not always available: Earlier this year, Dallas police announced that officers would not be dispatched for thefts totaling less than $50. Yet, while few people debate a retailer’s right to loss prevention, there is a line (in fact, a gulf) between loss prevention and brutality.
The 7-Eleven fracas has also prompted a conversation over whether the actions of the clerks were racially motivated. In recent years, New York City retailers have made news over their disparate treatment of suspected shoplifters of color. In 2006, Macy’s paid $600,000 to settle a case brought by former AG Eliot Spitzer over the retailer’s discriminatory treatment of black and Latino shoppers. In the Macy’s case, Latinos were five times more likely and blacks were three times more likely to be handcuffed than whites detained on allegations of shoplifting.
Troublingly, the 7-Eleven incident bears an eerie resemblance to another with which I have some familiarity. Imagine the scene: A girl visiting a chain grocery store allegedly puts a piece of candy into her pocket; before she leaves the store, the store manager detains her, binds her hands, and physically restrains her in view of passersby. The differences between this story and the 7-Eleven stripping are few: both involve national chains; both involve a single item of candy; both involve a retail employee responding to a suspected petty loss with disproportionate violence against a person of color. The primary difference between these incidents is that the 7-Eleven fracas occurred two weeks ago, while the situation involving the girl happened in 1930 in Jim Crow Georgia.
Charlie Mae Dowling, a twelve-year-old black girl, entered a Georgia A&P store, and picked up a single piece of candy from the floor. The store manager observed Dowling as she put the candy in her pocket; in response, he accosted her, forced her to pay for the candy, detained her, tied her hands together, physically forced her hands up above her head, and tied her to a rope suspended from the ceiling. The manager kept the girl in this position for two hours – during which time he threatened to kill her – until her mother arrived and paid the store $5 for the girl’s release. A civil jury later awarded Dowling money damages on the grounds that she had been "inhumanely assault[ed]" and "tortured" by the store manager (upheld on appeal at Great Atlantic & Pacific Tea Co. v. Dowling, 43 Ga.App. 549, 159 S.E. 609 (Ct. App. 1931)).
Research suggests that retail property security measures are differentially applied depending upon the race of the suspected shoplifter, with blacks and Latinos subject to physical restraints and criminal prosecutions more often than others. Without speculating over the motivations of these individual store clerks, I’d suggest that wherever violence is employed to protect property, we should be suspicious, as Daniel J. Sharfstein demonstrates in his brilliant article (on ssrn here) on the persuasive connection between property claims and violence against disfavored people. Sure, chasing down a thief may be an “expression of professionalism” (in Sharfstein’s words) for the store clerk, but I wonder how far a retailer should be allowed to go before liability attaches. In other words, are canings over candy ever within the bounds of legitimate property security?