Law School Transparency Jumps the Rails (Or, Why I’m Still Disappointed with LST’s Latest Contribution to the Discussion on Law-School Reform)

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.

--Bernie

Comments

[john]

"I was unaware of the fact that LST and the witch hunters at Con Daily are linked. Who else was not aware of that?"

That you were surprised is, at this point in the discussion, to be expected. But I think the answer to your question about who else was surprised is probably clost to zero.

If you click on the 'About LST' tab on the home page of LST, you can find this:

Research Director
Derek Tokaz is a licensed New York attorney with a J.D. from New York University School of Law and a B.A. in Philosophy and English from the University of Alabama. He is Editor-in-Chief of Constitutional Daily, a legal humor blog recognized in the 2011 ABA Journal Blawg 100. He is currently pursuing a Masters in Fine Arts from American University.

"I was certainly surprised to learn that Professor Merritt is engaged in a new joint venture with Law School Transparency"

Again, I can't emphasize enough that you need to click on those 'About' tabs on the home page of a website if you want to know "about" the people behind the website. From Law School Cafe:

Cafe Manager and Contributors

Deborah J Merritt manages the Law School Cafe; she is the site’s primary moderator and contributor. DJM is also the John Deaver Drinko/Baker & Hostetler Chair in Law, at Ohio State University’s Moritz College of Law, but the Cafe is an independent project. Deborah has written about many facets of legal education, teaches in both doctrinal classrooms and clinics, and has developed a seminar on the Business of Law.

Kyle McEntee, the Executive Director of Law School Transparency, is the Cafe’s co-moderator, frequent contributor, and website designer. The Law School Cafe is a partner site of Law School Transparency.

"So, again, now, Bernie, what tone do you feel it is appropriate to take with people who call for a law professor to be "forced" out of his job because of what they now admit were false claims that he had not been truthful? Will you join me in calling for Con Daily to retract that call? Will Faculty Lounge as a community do so?"

Just so everybody knows, this is Steve's idea of a witch hunt(from Con Daily):

Steve Diamond isn't just flying into outer space, he's approaching escape velocity. And Santa Clara lets this guy teach business law and corporate finance. Lucky for him, he has tenure, but if we were SCU students, we'd under-enroll his classes until he was forced out.

[Steve Diamond]

Hmm, still no 990. Wonder why. Perhaps LST is not a tax exempt charity after all? Otherwise why violate IRS regulations? Nothing wrong with being a taxable entity but I think it would be important to tell donors that.

[can't believe a thread like this is possible]

the post and comments are a shanda. professor burk, please delete them and please remember that the tone you choose for the post can set the tone for the comments to follow. it is possible to ask hard questions in a polite way.

[Concerned_Citizen]

Professor Burk, thank you; in my opinion a very good post and very good criticisms and questions for LST's paper. Hopefully the LST personnel will take your post to heart and use it to improve their future efforts.

I have read through most of the comments here. I think that Kyle McEntree deserves and enormous amount of credit for responding politely and clearly despite professor Diamond's provocations.

And likewise, Professor Burk deserves credit in the comments here for responding fairly and carefully to commenters here, each in turn, even in his measured response and questions to professor Diamond, which professor Diamond saw fit to ignore, choosing instead a very weak and transparent deflection technique.

As for Professor Diamond himself. Well, it is not uncommon to find this sort of behaviour in comments sections. What is uncommon is to see this sort of extremely poor behaviour from a law professor who signs his own name to such utterly juvenile rubbish.

[Concerned_Citizen]

for "can't believe a thread like this is possible", why do you blame Professor Burk's tone selected for his post, for the tone that came out in the comments?

What precisely was it that you detect in the tone of the original post that engendered the ("can't believe [it] is possible") tone in the comments section?

This is a serious question.

[Tax Lawyer]

My guess is that LST is a Tennessee nonprofit that has not filed a 501(c)(3) application (Form 1023). I base this on the fact that it does not appear in the IRS database listing all nonprofits that have filed a 990-N or 990. The LST website does not claim that they are a 501(c)(3), just that they are a nonprofit, which does accurately describe the Tennessee statute under which they are incorporated. There is no shame in not being a 501(c)(3)- it just means donations aren't tax deductible. They are still bound by the Tennessee law on public benefit corporations.

This might be wrong, but it is a guess based on what I could find on the IRS website on charities,http://apps.irs.gov/app/eos/ , the Tennessee Secretary of State website, and the LST website.

[Steve Diamond]

I believe they are incorporated in Georgia as Law School Transparency, Inc., with a license in Tennessee as a foreign corporation. They appear to be behind on their fees owed to Georgia, also.

[john]

"the post and comments are a shanda"

If you think these comments are a shanda, you should Steve in action over at JD Underground.

http://www.jdunderground.com/all/thread.php?threadId=39271

[john]

"They appear to be behind on their fees owed to Georgia, also."

First their website was down, now they are late on fees. I think it's pretty obvious they are up to something shady. Good work, Steve! And remember to keep plenty of tinfoil on hand.

[Steve Diamond]

John (or Kyle if you are still taking an interest), I take it you know something about LST.

Can you tell me why Kyle McEntee told the ABA this year that he was looking for $500,000 in angel funding for LST? WIll early stage donors also be able to invest at the same valuation as the angel funders? How far along is your funding search?

Is that linked to it has not become a tax exempt entity and thus has not, apparently, filed a 990 or 990N?

Do you think that potential donors should be told that their donations are not going to a tax exempt non profit or is that something they should try to figure out by themselves?

Do you think it is misleading to post nominal tuition numbers in red on your website when the actual cost of law school is impacted by so many other factors?

Can you tell us the names of LST's advisory board members?

Can you describe the nature of all of LST's partnerships and other relationships in particular with, if any, ad based sites like Con Daily?

Thank you for any light you can shed on this.

[john]

"John ... I take it you know something about LST."

You thought wrong. I'm just really good at things like clicking on 'About' tabs and searching the IRS and Sec. of State websites when I want to find something out about a company.

"Thank you for any light you can shed on this."

You're welcome.

[john]

I can give you my personal opinion on the following question, though:

"Do you think it is misleading to post nominal tuition numbers in red on your website when the actual cost of law school is impacted by so many other factors?"

No. Nominal tuition is the starting point, and for many students, also the ending point. If schools want to be more transparent about scholarships, average debt on graduation, etc., I would certainly applaud that. And I am sure the people at LST would add the information to the school profiles if that information was available.

How many students at SCU pay sticker? How many get 10, 25, 50 ... off? How many of the people getting a discount are able to retain that for the second year, for the third year?

If you think this information will make SCU more attractive, then why doesn't SCU release it? It would seem to be in their best interest.

[Tax Lawyer]

John, were you able to find LST on the IRS website? (I don't really care about this whole thing one way or the other, but I am curious whether I am good at finding things on the IRS website!)

Steve, even if they are not a 501(c)(3) (and this is a simple fact that I'm sure one of the LST guys can clear up), they are still a nonprofit, and still required to act in the interest of the public instead of their shareholders. There's nothing particularly important about becoming tax-exempt, except to encourage more donations (because it makes the donations deductible). And the way that it works usually isn't that people get letters telling them that their donations AREN'T tax deductible. Instead, for cash donations to be deductible, the entity must provide documentation (usually a letter) stating that the donations ARE deductible.

[Steve Diamond]

Instead of suing why not have SBA heads convene national dialogue with ABA and AALS? Class action lawyers want the money and are going after low hanging fruit. The jump to sue tells something about law school culture. Meaningful change requires deeper institutional commitment from all constituencies.

Effective disclosure together with support for tenure and academic freedom is critical to prevent this crisis from being exploited by those who would return law schools back to the white male dominated days of Kingsfield.

[john]

"John, were you able to find LST on the IRS website?"
No, my reference to the IRS website was just me giving Steve a hard time for not being able to figure out that the 990 he was demanding didn't exist because it wasn't required.

[john]

"Instead of suing why not have SBA heads convene national dialogue with ABA and AALS?"

And how long do you suppose that might take? How many people's lives would be destroyed during the wait?

"Effective disclosure together with support for tenure and academic freedom is critical to prevent this crisis from being exploited by those who would return law schools back to the white male dominated days of Kingsfield."

How does overproducing lawyers help minorities? How does overcharging for a law degree help minorities? This might be the biggest non-sequitur yet. Please explain how Tamahana, Campos, LST, or whoever else, are trying to return law schools back to the white male dominated days of Kingsfield.

[newbie]

Professor Diamond,

I have been following this debate pretty intently. I must say that I have greatly enjoyed. I think that there were some good points on both sides, and your intent to see behind the motivation of LST is understandable given the situation.

But the original post was about law school reform, LST's role in it, and provided some very practical suggestions by professor Burk, which I applaud. But what likely was meant to provoke meaningful discussion, both on this post and in the real world. But it has deteriorated into the law school reform version of the "birther" debate. And like the birther debate, you quest has sucessfully sidetracked attention away from the problems; I am sure this is intentional. Might LST's motives be less than crystal clear? Maybe. Frankly, I don't care. Apart from a vague reference to listing "nominal" tuition costs as opposed some other cost of tuition (January 07, 2013 at 02:24 AM), I have not seen you point to anything inaccurate or misleading about their numbers. And you do not really explain why the nominal tuition would be misleading anyway. And all of this talk of violating IRS regulations--in my opinion--runs dangerously close to defamation. But I digress.

To explain myself: I am living the JD nightmare. I am a 2011 magna cum laude graduate of a 80-something ranked law school. I am unemployed, I cannot currently support my debt, and I have recently come to grips with the fact that I may very well be poor for the rest of my life. But this is not my school's fault. I started in 2008, right before the market tanked. I should have hit eject, but I didn't (little bit of special snowflake syndrome there). I take full responsibility for my situation, while attributing just a bit to bad luck for the sake of sanity. In trying to figure out how I could so catastrophically destroy my life by simply going to school, I came across ITLSS. And, to my dismay, I realize that I am not alone. My only point here is to disclose my perspective: a new grad living the worst case JD scenario and relative newcomer to the debate. And I am currently squeaking out a practice as a solo, in a town filled with new Cooley grads (and please note, nothing wrong with Cooley grads except sheer volume), so I see what effect a glut of grads has on the market, professionalism and overall practice in the area.

[Steve Diamond]

If dialogue had occurred first we would have results by now. Three years wasted.

Women and minorities have historically have a tougher time accessing the legal profession. A proposal to create a two tier system with only adjunct style teaching at second tier will mean expensive top tier accessible to only those with the resources. Second tier adjunct schools will resemble "shove it down their" throats non-theoretical approach that once dominated law schools, precisely what we have tried to move away from with increased tenure protections for clinical professors and improved access to the legal field.

[Law prof who expects honesty]

LST has done some good things, but I do have concerns about the ethics of the Con Daily author after reading this post: http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=650:here-is-a-dime-use-it-to-phone-a-friend&catid=38:there-and-never-back-again&Itemid=65

[John Steele]

Steve,

Could you explain that last point a little more? We currently have a situation where the cost of law school is one of the factors leading to significant to severe under-representation of the middle and working classes in law school and the legal profession. That hits the African-American and Latino participation rates particularly hard.

Why, then, would it more inclusive to raise law school prices and insist upon a one-size-fits-all system? Are you saying that have a greater diversity of law school options will (1) actually decrease the number of URMs attending law school; (2) have no impact on the number of URMs attending law school; or (3) increase the number of URMs but prevent them from obtaining the more prestigious sorts of JDs?

If the answer is (3), wouldn't your argument then reduce to: "it's better for lots of the lower socio-economic groups and URMs to get no JD than to have them attend a non-prestigious institution"?

Also, isn't it a logical error to talk about "creating" a two-tier system if we already have one?