I know, I know. This is an easy one. Why don’t I pick on someone my own size, or something like that? Bear with me, please, Blogosphere. I just need to get this out of my system. Thank you.
So-called “casebooks” designed for use in law schools are nothing but reprinted public record. Of course, the compiler/editor of these books is a law scholar who takes credit for using his or her perspicacity to know which cases are important and which are not. The same scholar, or team of scholars, throws in marvelous little paragraphs here and there, along with other quips (gadzooks, but sometimes these other quips are even witty) to punctuate a higher legal point.
And voilà! The resulting 1,000-page tome puts you the diligent law student back about 160 smackers. But don’t worry: the financial aid office has already put a hefty item on your projected expenses for law books, so there should be a tidy sum waiting to be spent on these books once your student loan check comes through.
If you’re really lucky, there might even be a humorous cartoon or two inserted into the pages of your casebook. My Torts casebook even has a photograph of the Long Island train station where the intrepid Helen Palsgraf was hit by a flying scale, ever changing the legal world and its often impenetrable jargon forever.
I have a friend who passed the bar exam and kept telling me, “aces don’t read cases.” In other words, a successful lawyer not only doesn’t waste time reading cases; a successful lawyer knows that the act of reading and learning cases makes a younger lawyer too cocky and filled with information that is, at the end of the day, useless. That being said, it doesn’t take a Clarence Darrow to know that if you want to look good in front of your scowling law professor and scared-shitless colleagues, you’ll buy the books and read the cases. If you want to do well on the exams, on the other hand, you’ll listen to my friend. This is after all where you’ll be graded. Reading every word of these cases is going to waste your time something silly.
But what is it about the law book that reflects the smarmy corruption of the legal world in general? One such book I had to buy was a bunch of Xeroxed pages bound together with a spiral binding. It cost $70. When I asked the clerk at the bookstore if this was actually correct (shouldn’t $7 be the more likely price), she responded that it had copyrighted material in it so yes, of course, it should cost $70. Perhaps if I were smarter, this clerk intimated, I would know that too.
My Criminal Law professor actually published his own case book: a handsome hardback published by LexisNexis. That cost $80, some of which goes into his pocket. This price does not include the distinguished pipe you should smoke while reading it.
Some cases get reprinted twice. Tennessee v. Garner is in both my Criminal Procedure and Criminal Law books. Moore v. Regents of the University of California is in both my Property and Torts books. Perhaps that should be a clue to something: aren’t we wasting space by buying two books and buying the same case twice?
How about printing one big case book for all the courses, get rid of the commentary paragraphs, quips, and cartoons, and let the professors put their own spin on why one case is more important than the other? Better yet, since students all have access to Lexis and Westlaw, why not forget the casebooks altogether and just read the cases directly off our laptops?
Of course, most of the cases are edited so only the “important parts” have to be read. Again, it takes the perspicacity of a legal scholar to know how to edit the cases down. Still, the abridged versions of cases could be made available on the Internet somehow. There is a way to cut back on this waste of paper and money.
The only law book I had to buy that looked useful was the ALWD Manual. Unlike my other law books, this was a professionally edited reference book that was a guide to all legal abbreviations, citation style, and other useful information.
The ALWD Manual is used for legal writing classes, and it takes practice to master all the important stylistic details given in it. As someone who spent seven long years of his life dedicated to writing and editing for a major newspaper, I have learned the usefulness of a manual of style. Any graduate program has a course that introduces the student to the resources of a library and scholarly writing. In my day, the MLA Handbook was the guide for writing any research paper. This has been replaced by the American Psychological Association Manual of Style in most areas, although there are new styles being used, reflecting the rise of the Internet and the fact that any research paper might have literally thousands of sources--too numerous to list.
So I get to my legal writing course, and the teacher hands out a standard exercise, consisting of a poorly written legal memo that we are supposed to spruce up using the ALWD Manual. Was it fate, divine intervention, or just plain luck that I, the only professional writer in the course, was assigned the final segment of this exercise--the hardest part, the grand finale?
Here was the incorrect paragraph as stated in the exercise:
“Under proposed rules to the IRC published in the Federal Register/Vol 68. No. 131 pages 1107-1108 (Wed. July 9, 2003), even conversations between a client and the IRS auditor are protected. The proposed rules seek to amend the Code of Federal Regulations, 26 CFR Part 301, § 301.6104(b) (1999). 68 Fed. Reg. at 1112.”
And after searching through the ALWD manual, knowing that there was something tricky about this segment, I found the rule that was the key to the problem, which I’ll cite as “ALWD 19.3(e)” making the solution to the exercise look as follows:
“Under proposed rules to the I.R.C., even conversations between a client and the IRS auditor are protected. 68 Fed. Reg. 1107, 1112 (proposed July 9, 2003) (to be codified at 26 C.F.R. § 301.6104(b)).”
Mind you, this is what the author of this exercise intended. Right? OK, don’t spend a lot of time working it out or referring to your own ALWD Manual. Just take my word for it.
Alas, the poor teacher, a 30-something Vietnamese-American, using that sarcastic lawyer tone that I have never mastered, whether dishing it out or receiving, did what she could to tear apart my work. I was the only person in the class to come up with this solution. I also got the lowest grade in the class.
This same 30-something Vietnamese-American lawyer scolded me handsomely in class one day because I had used the word “charlatan” in an assignment. It was another of those situations (like the ALWD assignment) where I felt I was the only one in the class who was correct--everyone else was wrong. The teacher didn’t know what the word “charlatan” meant, and, although I can’t believe no one else in the class knew what the word meant either, the smartest girl in the class was the only one who chimed in at that moment, believing the word meant “a magician.”
20 minutes later, I was reading a case for contracts, Sullivan v. O’Connor, and there it was in the middle of the case: the word “charlatan.” But remember what my friend said, “aces don’t read cases.” I’ll say. They don’t read at all.
So why all the casebooks in law school? I know. Get yourself a dictionary and look up the word “charlatan.” Welcome to law school, young tykes!
Thursday, February 25, 2010
Sunday, February 21, 2010
Juricide: Businessmen Killing a Profession
Book Review: Douglas Litowitz, The Destruction of Young Lawyers: Beyond One L. Akron, Ohio: U of Akron P, 2006.
Read the comments to my blog and you’ll see that one commentator recommends this book by Dr. Douglas Litowitz. I bought it and, seven chapters and 144 pages later, I’m ready to discuss it in the form of a book review, even though I hope this is not too pretentious and following too closely my old profession of writing for newspapers.
As a lawyer, Litowitz is more discontented than disgruntled. Law was a lucrative career for him for five years of his life and, even though he suddenly quit his job in a huff at a large Chicago law firm to earn a PhD in philosophy, law appears to be the thing that most defines him as a thinker and, dare I say, even as a human being. He once taught at Ohio Northern University College of Law, but apparently not any more.
What then does his book, The Destruction of Young Lawyers, mean? Let’s be very careful here, splitting hairs if we have to: Litowitz’s point of view stems not from the dysfunction of trying to enter into the legal profession, although chapters two and three do touch upon law school and the bar exam, but the dystopia of what happens once you enter it. For those of us more concerned with getting through law school or getting a job, this book offers a sort of trickle-down theory, if not a vivid description of our own sour grapes.
As such, it’s also fair to first suspect a kiss-and-tell book. After all, what on earth is he complaining about if he made it through an elite law school and into a job in the legal profession? But as the story unfolds, we see someone trying to reach for more than what he has, realizing that once his goals have been achieved, they didn’t turn out to be what he wanted in the first place. Taken from this point of view, we might even see him as a 21st-century Henry David Thoreau, if not a much more articulate and voluminous version of Melville’s Bartleby, the Scrivener.
Granted, he is isolating himself from the impersonal professional environment he once belonged to and waxing philosophic about it. But to give Litowitz a fair shake, the reader needs to delve even deeper than this. There is a central, more timely issue to his thesis: the lawyer profession used to be noble, but now it has evolved into something sinister and immoral. To swallow this, we have to accept his own parody of Dickens: “It was the worst of times, it was the worst of times.”
He most admirably tries to put his finger on the problem by blaming money and the trend in America over the past few decades of putting wealth into the hands of only a few. Some of his statistics are very dramatic, pointing out that law firms of over 1,000 lawyers never even existed until only recently. The tricky tactic of law firms designating some lawyers as “associates” versus others as “junior partners” or something else, creates a money flow that goes only to the tippy top of an elaborate money pyramid. In light of our recent financial meltdown in America, this ought to be nothing new, but I suppose it unfortunately probably is.
Nonetheless, some of Litowitz’s examples do hit the mark. For example, his law firm defended an insurance company that insisted that a properly insured motorcycle victim couldn’t collect. The law firm was called upon to wholeheartedly and without reservation defend this insurance company’s despicably sneaky tactic of policy restructuring involving keeping clients informed of changes in their policies via junk mail with clauses embedded in it too tiny and verbose to notice.
Litowitz even supports these depictions by citing the very abstract legal theories by some influential scholars. He blames them for numbing the consciences of lawyers. For example, he reminds us of Duncan Kennedy, who has no qualms about dividing cases into categories of “cold” (i.e., a routine decision that states rules) and “hot” (i.e., a decision with a clear injustice that might distract law students from more important legal rules--like bait for a trap).
He even includes a penultimate chapter about the irony of technology: what is supposed to make life easier has made it far more complex. This seems like a bonus chapter that is slightly off topic, since technology certainly can’t really be part of a larger decay of the legal profession due to a lack of conscience. Then again, it shows that the decay does make lawyers unable to adapt to the new technology with common sense--instead of allowing computers to make brief-writing an easier task, lawyers simply use computers to over-edit.
As “morosely unhappy” as Litowitz depicts lawyers, I personally wanted him to go further. It’s interesting that he brings up the late Arthur Liman as his pick for a lawyer who led an ideal, productive career. He doesn’t mention that Liman was the lawyer who stared down Lt. Col. Oliver North in what turned out to be the most crucial legal moment of questioning in the Iran-Contra Affair--a moment that the far right in America would hold up as a shining example of the triumph of good (North) over evil (Liman, representing the liberal Senate). Please correct me if I’m wrong, but I believe the Rev. Jerry Falwell even sold video tapes of this exchange as an “inspirational” message to his followers.
Litowitz’s book came out before the financial meltdown of 2008 and before the reinvention of the American liberal movement that elected Barack Obama. It is not entirely in synch with these events, but does march tentatively to their rather slow but steady drum beat. (In contrast, I’m more the type that would rather hear the drum solo to “In-A-Gadda-Da-Vida” at this point in history.) I figure I’m about five years older than Litowitz, which gives me a slightly more mature outlook on the Reagan years, although it does leave me wondering how he can miss what I think is the biggest piece to his puzzle.
Litowitz even quotes Karl Marx extensively, as perhaps any good philosophy scholar should, but boy oh boy does that beg a big question here. He even mentions “socialism and libertarianism” at one point as extreme postures that law schools somehow filter out of their faculties’ political postures. I would take the biggest issue with Litowitz here, reminding him that there was a perceived victory in 1989 of America in the Cold War. America, with its pop culture quips and simplifications, went on to declare the victory of Capitalism over Communism--not just on some terrestrial battlefield, but in the universal battle of abstract ideas.
This version of events has declared Marx a quack once and for all, even though you’ll find Marx’s picture pinned up in classrooms throughout the vast expanse we call China. Come on. Isn’t it a bit too chic for Litowitz to now unapologetically turn to Marx? Maybe it is not.
An analysis of what has happened to our legal system, its decadence and even moral depravity, cannot be completely examined without linking it to the end of the Cold War and the subtle but distinct message that Capitalism is now the wave of the future. Perhaps Marx is Litowitz’s ultimately cryptic way of linking the decadence of the American legal system to the decadence of this Capitalism. But if so, he should never have mentioned Libertarianism as an extreme posture left out of law school--Libertarianism has been the formulaic voice of this new version of brutal Capitalism. Meanwhile, Socialism is still a bogeyman, not only in law school, but in just about every nook and cranny of the American media--currently trying to underscore a defeat of Obama’s health care reform movement.
Our legal system stems from English law, an often discombobulated collection of ritual, esoteric rules, and very flexible concepts and theories. Nonetheless, the English were also the first to implement laws for the poor and other victims of industrialization, long before Marx ever penned his Communist Manifesto. Somehow English law, even more than the Bible’s rigid laws and morality parables, has kept Western civilization from imploding upon itself. That’s what we should be learning in law school and implementing as lawyers.
Litowitz has stated a problem and briefly attempted to articulate a solution. He promised to do that at the beginning of The Destruction of Young Lawyers, and he delivers. What he doesn’t address and needs to address is the ongoing Reagan chimera. It was Reagan that swung the Supreme Court radically to the right in the late 1980s and turned the American legal system into the back-stabbing business that has become the prototype for all American businesses in this new “Capitalism.” He doesn't need to include Marx in his solution, but he does need to state the problem with a bigger scope and, yes, even a bigger urgency.
Read the comments to my blog and you’ll see that one commentator recommends this book by Dr. Douglas Litowitz. I bought it and, seven chapters and 144 pages later, I’m ready to discuss it in the form of a book review, even though I hope this is not too pretentious and following too closely my old profession of writing for newspapers.
As a lawyer, Litowitz is more discontented than disgruntled. Law was a lucrative career for him for five years of his life and, even though he suddenly quit his job in a huff at a large Chicago law firm to earn a PhD in philosophy, law appears to be the thing that most defines him as a thinker and, dare I say, even as a human being. He once taught at Ohio Northern University College of Law, but apparently not any more.
What then does his book, The Destruction of Young Lawyers, mean? Let’s be very careful here, splitting hairs if we have to: Litowitz’s point of view stems not from the dysfunction of trying to enter into the legal profession, although chapters two and three do touch upon law school and the bar exam, but the dystopia of what happens once you enter it. For those of us more concerned with getting through law school or getting a job, this book offers a sort of trickle-down theory, if not a vivid description of our own sour grapes.
As such, it’s also fair to first suspect a kiss-and-tell book. After all, what on earth is he complaining about if he made it through an elite law school and into a job in the legal profession? But as the story unfolds, we see someone trying to reach for more than what he has, realizing that once his goals have been achieved, they didn’t turn out to be what he wanted in the first place. Taken from this point of view, we might even see him as a 21st-century Henry David Thoreau, if not a much more articulate and voluminous version of Melville’s Bartleby, the Scrivener.
Granted, he is isolating himself from the impersonal professional environment he once belonged to and waxing philosophic about it. But to give Litowitz a fair shake, the reader needs to delve even deeper than this. There is a central, more timely issue to his thesis: the lawyer profession used to be noble, but now it has evolved into something sinister and immoral. To swallow this, we have to accept his own parody of Dickens: “It was the worst of times, it was the worst of times.”
He most admirably tries to put his finger on the problem by blaming money and the trend in America over the past few decades of putting wealth into the hands of only a few. Some of his statistics are very dramatic, pointing out that law firms of over 1,000 lawyers never even existed until only recently. The tricky tactic of law firms designating some lawyers as “associates” versus others as “junior partners” or something else, creates a money flow that goes only to the tippy top of an elaborate money pyramid. In light of our recent financial meltdown in America, this ought to be nothing new, but I suppose it unfortunately probably is.
Nonetheless, some of Litowitz’s examples do hit the mark. For example, his law firm defended an insurance company that insisted that a properly insured motorcycle victim couldn’t collect. The law firm was called upon to wholeheartedly and without reservation defend this insurance company’s despicably sneaky tactic of policy restructuring involving keeping clients informed of changes in their policies via junk mail with clauses embedded in it too tiny and verbose to notice.
Litowitz even supports these depictions by citing the very abstract legal theories by some influential scholars. He blames them for numbing the consciences of lawyers. For example, he reminds us of Duncan Kennedy, who has no qualms about dividing cases into categories of “cold” (i.e., a routine decision that states rules) and “hot” (i.e., a decision with a clear injustice that might distract law students from more important legal rules--like bait for a trap).
He even includes a penultimate chapter about the irony of technology: what is supposed to make life easier has made it far more complex. This seems like a bonus chapter that is slightly off topic, since technology certainly can’t really be part of a larger decay of the legal profession due to a lack of conscience. Then again, it shows that the decay does make lawyers unable to adapt to the new technology with common sense--instead of allowing computers to make brief-writing an easier task, lawyers simply use computers to over-edit.
As “morosely unhappy” as Litowitz depicts lawyers, I personally wanted him to go further. It’s interesting that he brings up the late Arthur Liman as his pick for a lawyer who led an ideal, productive career. He doesn’t mention that Liman was the lawyer who stared down Lt. Col. Oliver North in what turned out to be the most crucial legal moment of questioning in the Iran-Contra Affair--a moment that the far right in America would hold up as a shining example of the triumph of good (North) over evil (Liman, representing the liberal Senate). Please correct me if I’m wrong, but I believe the Rev. Jerry Falwell even sold video tapes of this exchange as an “inspirational” message to his followers.
Litowitz’s book came out before the financial meltdown of 2008 and before the reinvention of the American liberal movement that elected Barack Obama. It is not entirely in synch with these events, but does march tentatively to their rather slow but steady drum beat. (In contrast, I’m more the type that would rather hear the drum solo to “In-A-Gadda-Da-Vida” at this point in history.) I figure I’m about five years older than Litowitz, which gives me a slightly more mature outlook on the Reagan years, although it does leave me wondering how he can miss what I think is the biggest piece to his puzzle.
Litowitz even quotes Karl Marx extensively, as perhaps any good philosophy scholar should, but boy oh boy does that beg a big question here. He even mentions “socialism and libertarianism” at one point as extreme postures that law schools somehow filter out of their faculties’ political postures. I would take the biggest issue with Litowitz here, reminding him that there was a perceived victory in 1989 of America in the Cold War. America, with its pop culture quips and simplifications, went on to declare the victory of Capitalism over Communism--not just on some terrestrial battlefield, but in the universal battle of abstract ideas.
This version of events has declared Marx a quack once and for all, even though you’ll find Marx’s picture pinned up in classrooms throughout the vast expanse we call China. Come on. Isn’t it a bit too chic for Litowitz to now unapologetically turn to Marx? Maybe it is not.
An analysis of what has happened to our legal system, its decadence and even moral depravity, cannot be completely examined without linking it to the end of the Cold War and the subtle but distinct message that Capitalism is now the wave of the future. Perhaps Marx is Litowitz’s ultimately cryptic way of linking the decadence of the American legal system to the decadence of this Capitalism. But if so, he should never have mentioned Libertarianism as an extreme posture left out of law school--Libertarianism has been the formulaic voice of this new version of brutal Capitalism. Meanwhile, Socialism is still a bogeyman, not only in law school, but in just about every nook and cranny of the American media--currently trying to underscore a defeat of Obama’s health care reform movement.
Our legal system stems from English law, an often discombobulated collection of ritual, esoteric rules, and very flexible concepts and theories. Nonetheless, the English were also the first to implement laws for the poor and other victims of industrialization, long before Marx ever penned his Communist Manifesto. Somehow English law, even more than the Bible’s rigid laws and morality parables, has kept Western civilization from imploding upon itself. That’s what we should be learning in law school and implementing as lawyers.
Litowitz has stated a problem and briefly attempted to articulate a solution. He promised to do that at the beginning of The Destruction of Young Lawyers, and he delivers. What he doesn’t address and needs to address is the ongoing Reagan chimera. It was Reagan that swung the Supreme Court radically to the right in the late 1980s and turned the American legal system into the back-stabbing business that has become the prototype for all American businesses in this new “Capitalism.” He doesn't need to include Marx in his solution, but he does need to state the problem with a bigger scope and, yes, even a bigger urgency.
Friday, February 19, 2010
Heck, Go For Broke: Sue The Department of Education!
Law students should feel betrayed by a system that seemed to promise them so much and then pulled the rug out from under when jobs never materialized. The fact is, this is the American education system now catching up with law students.
Go back a couple of decades and you’ll find all sorts of dismayed young people fresh out of graduate school working at Xerox shops, tearing tickets at multiplexes, or driving delivery trucks. These were the kids that didn’t go into a “reliable” course of study such as law, business, engineering, or medicine. These were the history majors, philosophy majors, art majors, and anything else left over in what suddenly became the big bad pedagogical wasteland called the humanities.
Our American education system did not start out to be a trap for the young and idealistic, stripping them of their dreams and dignity. Ever since the 1980s, the effect has been a gradual metamorphosis, tempered by a new era of hardball business practices and the tail end of the Cold War--it wasn’t a victory for America, after all, it was a victory for Capitalism!
Along the way there were signs that this runaway Capitalism wasn’t quite the ticket to utopia the new age economists were predicting: the Savings and Loan debacle at the end of the 1980s, the dot.com bubble bursting in the 1990s, and now the meltdown of practically the entire financial system, thanks to a few bold speculators trying out Ponzi schemes and writing bogus mortgages.
Take it from one of these grumbling grads of yester-decade: you haven’t even seen the best of it yet. When I started law school in 2008 at the age of 50, the first order of business was to pay off a defaulted student loan before I could start borrowing the bigger student loans law school required. The student loan I had to pay off was from my masters degree in 1982, for which I had borrowed up to $12,000. The balance I had defaulted on was about $5,000. I defaulted on this $5,000 back in 1996 when I finished my PhD and couldn’t get any more deferments.
For 15 years of my life, I kept the Department of Education’s collection agencies on the run. If you ever default on your student loans, you’ll find quickly that the worst thing you can do is talk to them, try to reason with them. By the way, these agencies believe they are staying within the laws of debt collection but they are not: they will use abusive language, profanity, and deception to try to get you to hand over anything you might have lying around the house to make a payment. They will tell you that the Department of Education should not be “messed with” (sounds like a threat to me, however weird). When I somehow let slip that I did have a position as an adjunct professor, they found out where and tried to garnish wages. Because the school that had hired me was laundering my status improperly, with the unions by the way doing absolutely nothing on my behalf to correct the impropriety, I lost that “position.” It seemed the debt collection agency would rather I have no money coming in than enough money to pay them.
There is plenty of blame to go around for the state of affairs we live in today. The more you complain about it, the more you’ll get average Americans stepping forward to tell you that you should blame yourself. And guess what? You will start blaming yourself. The last thing you ever thought you’d be when you picked up that masters degree diploma was some sort of Horatio Alger story. Don’t the rags-to-riches stories always start out with the rags being worn by children (i.e., who were born into poverty)? Now we have well-fed, even bratty educated young adults who got straight As in graduate school slipping into poverty. But guess what, there are no riches at the end of the rainbow. They slip into poverty and stay there.
And do I really have to illustrate this for all those new-age economists who believe I’m unfairly engaging in some sort of class warfare? In 2001, I got a “job” at Barnes & Noble as a clerk. It was a minimum wage job, which meant that an 8-hour day earned you $40. Even if you could put in a 40-hour week, which they won’t let you do because then you’ll be full-time and eligible for benefits, you’d make $160 per week, $640 per month, $7,680 per year. The average rent in the area of this Barnes & Noble on Manhattan was $1800 per month. I also found out the hard way that this Barnes & Noble was engaging in a Wal Mart technique of changing your work schedule every week so you were supposed to keep your private, personal schedule free--they were trying to keep you from getting a second job. Most of the fellow workers at Barnes & Noble, a few of them with graduate degrees, couldn’t even get bank accounts: they would line up at the cash register to cash their paychecks every week. Better get used to this situation, young JDs, because this is what the powers that be in America have in store for you.
I take that back. Don’t get used to it. Above all, don’t blame yourself.
Let’s sue the Department of Education in a big class action suit. Above all, there is no reason why these student loan debts should be different than any other debts: if you can’t pay them back in seven years, they should be taken off the books. Here’s another interesting piece of information: in Germany and other European nations, there is no tuition. Money is actually seen as a corruption to the system. I'll drink to that!
The American education system is set up so that a young adult with no debt to his or her name, signs a piece of paper, and a seven-figure amount immediately goes from the Government into the coffers of a law school--a shiny building filled with air-conditioned offices. Remember the pages of material your financial aid office had you read before you signed the promissory note? They made you also sign a statement that if you are not satisfied with the education you get, you can’t claim your money back. What kind of legal issue does that raise?
The truth is, the Department of Education knows that the student loan system is improper and unethical. Why else would they have you sign all those documents and create a special class of loan that can never be written off the books? This is a special class of consumerism where in order to go to school, you have to sign away your rights. I can also speak from the experiences of a close member of my family that even though the Department of Education promises that the loans will be forgiven if you become disabled and unable to work, forget about them keeping this promise. It doesn’t matter how carefully you gather your doctors’ notes and put all your ducks in a row, the matter goes before an entirely anonymous “panel” of sorts that rejects your claim and sends it back to you on an unsigned form letter.
Used car dealers and snake oil salesmen have nothing on the Department of Education. Young idealistic students fresh out of undergraduate programs are not just keeping the buildings at law school shiny and the air-conditioning running. Their life blood is being tapped to pay for the families and comfortable life styles of their law professors. If this isn’t class warfare, what is?
Go back a couple of decades and you’ll find all sorts of dismayed young people fresh out of graduate school working at Xerox shops, tearing tickets at multiplexes, or driving delivery trucks. These were the kids that didn’t go into a “reliable” course of study such as law, business, engineering, or medicine. These were the history majors, philosophy majors, art majors, and anything else left over in what suddenly became the big bad pedagogical wasteland called the humanities.
Our American education system did not start out to be a trap for the young and idealistic, stripping them of their dreams and dignity. Ever since the 1980s, the effect has been a gradual metamorphosis, tempered by a new era of hardball business practices and the tail end of the Cold War--it wasn’t a victory for America, after all, it was a victory for Capitalism!
Along the way there were signs that this runaway Capitalism wasn’t quite the ticket to utopia the new age economists were predicting: the Savings and Loan debacle at the end of the 1980s, the dot.com bubble bursting in the 1990s, and now the meltdown of practically the entire financial system, thanks to a few bold speculators trying out Ponzi schemes and writing bogus mortgages.
Take it from one of these grumbling grads of yester-decade: you haven’t even seen the best of it yet. When I started law school in 2008 at the age of 50, the first order of business was to pay off a defaulted student loan before I could start borrowing the bigger student loans law school required. The student loan I had to pay off was from my masters degree in 1982, for which I had borrowed up to $12,000. The balance I had defaulted on was about $5,000. I defaulted on this $5,000 back in 1996 when I finished my PhD and couldn’t get any more deferments.
For 15 years of my life, I kept the Department of Education’s collection agencies on the run. If you ever default on your student loans, you’ll find quickly that the worst thing you can do is talk to them, try to reason with them. By the way, these agencies believe they are staying within the laws of debt collection but they are not: they will use abusive language, profanity, and deception to try to get you to hand over anything you might have lying around the house to make a payment. They will tell you that the Department of Education should not be “messed with” (sounds like a threat to me, however weird). When I somehow let slip that I did have a position as an adjunct professor, they found out where and tried to garnish wages. Because the school that had hired me was laundering my status improperly, with the unions by the way doing absolutely nothing on my behalf to correct the impropriety, I lost that “position.” It seemed the debt collection agency would rather I have no money coming in than enough money to pay them.
There is plenty of blame to go around for the state of affairs we live in today. The more you complain about it, the more you’ll get average Americans stepping forward to tell you that you should blame yourself. And guess what? You will start blaming yourself. The last thing you ever thought you’d be when you picked up that masters degree diploma was some sort of Horatio Alger story. Don’t the rags-to-riches stories always start out with the rags being worn by children (i.e., who were born into poverty)? Now we have well-fed, even bratty educated young adults who got straight As in graduate school slipping into poverty. But guess what, there are no riches at the end of the rainbow. They slip into poverty and stay there.
And do I really have to illustrate this for all those new-age economists who believe I’m unfairly engaging in some sort of class warfare? In 2001, I got a “job” at Barnes & Noble as a clerk. It was a minimum wage job, which meant that an 8-hour day earned you $40. Even if you could put in a 40-hour week, which they won’t let you do because then you’ll be full-time and eligible for benefits, you’d make $160 per week, $640 per month, $7,680 per year. The average rent in the area of this Barnes & Noble on Manhattan was $1800 per month. I also found out the hard way that this Barnes & Noble was engaging in a Wal Mart technique of changing your work schedule every week so you were supposed to keep your private, personal schedule free--they were trying to keep you from getting a second job. Most of the fellow workers at Barnes & Noble, a few of them with graduate degrees, couldn’t even get bank accounts: they would line up at the cash register to cash their paychecks every week. Better get used to this situation, young JDs, because this is what the powers that be in America have in store for you.
I take that back. Don’t get used to it. Above all, don’t blame yourself.
Let’s sue the Department of Education in a big class action suit. Above all, there is no reason why these student loan debts should be different than any other debts: if you can’t pay them back in seven years, they should be taken off the books. Here’s another interesting piece of information: in Germany and other European nations, there is no tuition. Money is actually seen as a corruption to the system. I'll drink to that!
The American education system is set up so that a young adult with no debt to his or her name, signs a piece of paper, and a seven-figure amount immediately goes from the Government into the coffers of a law school--a shiny building filled with air-conditioned offices. Remember the pages of material your financial aid office had you read before you signed the promissory note? They made you also sign a statement that if you are not satisfied with the education you get, you can’t claim your money back. What kind of legal issue does that raise?
The truth is, the Department of Education knows that the student loan system is improper and unethical. Why else would they have you sign all those documents and create a special class of loan that can never be written off the books? This is a special class of consumerism where in order to go to school, you have to sign away your rights. I can also speak from the experiences of a close member of my family that even though the Department of Education promises that the loans will be forgiven if you become disabled and unable to work, forget about them keeping this promise. It doesn’t matter how carefully you gather your doctors’ notes and put all your ducks in a row, the matter goes before an entirely anonymous “panel” of sorts that rejects your claim and sends it back to you on an unsigned form letter.
Used car dealers and snake oil salesmen have nothing on the Department of Education. Young idealistic students fresh out of undergraduate programs are not just keeping the buildings at law school shiny and the air-conditioning running. Their life blood is being tapped to pay for the families and comfortable life styles of their law professors. If this isn’t class warfare, what is?
Saturday, February 13, 2010
More LSAT Horrors: Composer John Cage
Yes, I’ve heard it many times before: when answering LSAT questions, forget, forget, forget what you know. The LSAT tests your “speed logic,” not your knowledge.
I tried hard to do this when practicing for the LSAT. Then came a question on a practice exam about the 20th-century composer John Cage (1912-1992).
I won’t call John Cage a friend of mine, since I only met him a couple of times, exchanged letters with him, and interviewed him once over the telephone for several hours for a newspaper story. I’ve also attended numerous performances of his music, sometimes performances he even attended or participated in. I’ve read several books he has published: Silence, A Year From Monday, M, and Empty Words. I even gave a lecture about another of his books/lectures, I-VI, at the University of Frankfurt in 1991.
So I’ll call John Cage a colleague of mine. I won’t call myself an expert in his music either, even though I’ve published articles about it and wrote about it prominently in my doctoral dissertation.
So guess what happens one day while taking an LSAT practice exam? In the reading comprehension section, I come across a text about John Cage. If you’ve taken the LSAT, you know the drill: read the text and answer eight or nine multiple-choice questions about it.
The clock was ticking and I had to forget, forget, forget what I knew about John Cage and read the text. I did my best. Then I graded the practice exam, and all of the questions I had answered about John Cage were wrong.
I was furious. Livid. What was this test supposed to determine, anyway? How well we misunderstand the arts so we can successfully become boring, humorless, tone-deaf lawyers?
I fired off an angry email to the publisher of the practice exam. They wrote me back, assuring me they were concerned, but wanted me to explain in detail what I thought the problem with the questions were.
So I sat down and took one question at a time, picking it all apart, trying to explain why the author of the questions had, of course, misunderstood John Cage’s philosophy, but, more importantly, misunderstood the gist of the text itself. Mostly, the text was a general description for the layperson of John Cage’s use of the word “indeterminacy.” Suffice it to say, this is a loaded word that Cage used satirically, tongue-in-cheek.
Here’s what the layperson doesn’t know. Cage was ribbing his arch-rival composer Milton Babbitt, a Princeton music and mathematics scholar who applied Arnold Schoenberg’s 12-tone system to his own music. Schoenberg, who was actually Cage’s teacher and called Cage a “genius,” approached his 12-tone technique methodically, not to mention mystically, but never with the mathematical rigor of Babbitt. In fact, I have always held that Babbitt made a mistake when he used the term “determinacy” to describe his method: one of his mathematician friends must have commented that Schoenberg’s 12-tone row was a “determinant,” which according to the dictionary means something that determines something else (Babbitt’s usage); but, most scientists can tell you that the mathematical definition of “determinant” is a set of elements in which each element is used once without repeating (a concise definition of Schoenberg’s 12-tone row).
The world of musicology may never acknowledge my observation, since I have been blacklisted and squeezed out of that world’s journals and academies many times over. Nonetheless, I must remember the LSAT mantra: forget, forget, forget.
So I did my best to forget, forget, forget. And sure, Cage wasn’t just making a joke, there was a genuine meaning attached to the word “indeterminacy” that applied to his music: he sometimes wrote music using “chance procedures,” such as rolling dice, as if he wasn’t “determining” the outcome--although it has often been said that both Cage and Babbitt were trying to do the same thing: maximize what the listener did not expect. The word “indeterminacy” could also apply to some of Cage’s written scores that either could be changed for every performance (“open form” pieces) or in which the performer had some freedom of interpretation as to what a symbol in the score might mean, if there is no explanation as to how to interpret it.
So the LSAT text was probably by an informed critic simply giving general descriptions of what Cage’s music was and a general idea of what the word “indeterminacy” might mean. The text was nothing unusual, something you might find in a newspaper or magazine. Suffice it to say that what the LSAT people did in making up questions about this text was sacrilegious.
For some reason, the LSAT people thought that Cage was talking about improvisation and jazz when he used the word “indeterminacy.” It is not necessarily egregious to say that Cage’s music involved some improvisation, although that is an issue that could be debated. Cage also influenced many jazz and rock musicians who improvised. What is egregious is trying to claim that Cage’s use of the word “indeterminacy” had anything to do with jazz or jazz improvisation.
This is not splitting hairs. The LSAT people simply misunderstood this text and based almost every question on this misinterpretation. I know I’m supposed to forget, forget, forget, but what on earth is going on here? Perhaps I should have changed my LSAT mantra to stupid, stupid, stupid.
I believe that legal education is on a veritable warpath to take over every other discipline in the scholarly world and reinterpret it their own way. That’s a leap in my logic from this incident involving John Cage, but I’m taking it. Together with other “competitive” degrees outside of science or engineering that are stepping stones into lucrative positions, like the MBA, the JD mill would like to be the king of the academic hill. They set up their law schools like Mensa societies and use their own “speed logic” to weed out the dummies. Unfortunately, in the end, it is cynical politics at its worst.
I tried as hard as I could to explain to the publisher of the LSAT practice exam why it was wrong to conceive that Cage had any interest in jazz, even based on the most liberal interpretation of the text at hand, but I never received an answer back. Meanwhile, onward LSAT soldiers, marching as to war! Perhaps lawyers will some day completely annex the topic of John Cage, distorting it into their own pointless characature, leaving us useless musicologists stewing in our own sour grapes. Obviously, they aren’t even interested in John Cage, but because it is “out there," lawyers must divide it and conquer it.
Then, some sunny day in their future, they can easily (without contention, dissent, or challenge) tell me the answers to my LSAT questions were wrong. They can even make me feel shame for getting those questions wrong. Until then, I proudly declare myself the bad boy of law.
I tried hard to do this when practicing for the LSAT. Then came a question on a practice exam about the 20th-century composer John Cage (1912-1992).
I won’t call John Cage a friend of mine, since I only met him a couple of times, exchanged letters with him, and interviewed him once over the telephone for several hours for a newspaper story. I’ve also attended numerous performances of his music, sometimes performances he even attended or participated in. I’ve read several books he has published: Silence, A Year From Monday, M, and Empty Words. I even gave a lecture about another of his books/lectures, I-VI, at the University of Frankfurt in 1991.
So I’ll call John Cage a colleague of mine. I won’t call myself an expert in his music either, even though I’ve published articles about it and wrote about it prominently in my doctoral dissertation.
So guess what happens one day while taking an LSAT practice exam? In the reading comprehension section, I come across a text about John Cage. If you’ve taken the LSAT, you know the drill: read the text and answer eight or nine multiple-choice questions about it.
The clock was ticking and I had to forget, forget, forget what I knew about John Cage and read the text. I did my best. Then I graded the practice exam, and all of the questions I had answered about John Cage were wrong.
I was furious. Livid. What was this test supposed to determine, anyway? How well we misunderstand the arts so we can successfully become boring, humorless, tone-deaf lawyers?
I fired off an angry email to the publisher of the practice exam. They wrote me back, assuring me they were concerned, but wanted me to explain in detail what I thought the problem with the questions were.
So I sat down and took one question at a time, picking it all apart, trying to explain why the author of the questions had, of course, misunderstood John Cage’s philosophy, but, more importantly, misunderstood the gist of the text itself. Mostly, the text was a general description for the layperson of John Cage’s use of the word “indeterminacy.” Suffice it to say, this is a loaded word that Cage used satirically, tongue-in-cheek.
Here’s what the layperson doesn’t know. Cage was ribbing his arch-rival composer Milton Babbitt, a Princeton music and mathematics scholar who applied Arnold Schoenberg’s 12-tone system to his own music. Schoenberg, who was actually Cage’s teacher and called Cage a “genius,” approached his 12-tone technique methodically, not to mention mystically, but never with the mathematical rigor of Babbitt. In fact, I have always held that Babbitt made a mistake when he used the term “determinacy” to describe his method: one of his mathematician friends must have commented that Schoenberg’s 12-tone row was a “determinant,” which according to the dictionary means something that determines something else (Babbitt’s usage); but, most scientists can tell you that the mathematical definition of “determinant” is a set of elements in which each element is used once without repeating (a concise definition of Schoenberg’s 12-tone row).
The world of musicology may never acknowledge my observation, since I have been blacklisted and squeezed out of that world’s journals and academies many times over. Nonetheless, I must remember the LSAT mantra: forget, forget, forget.
So I did my best to forget, forget, forget. And sure, Cage wasn’t just making a joke, there was a genuine meaning attached to the word “indeterminacy” that applied to his music: he sometimes wrote music using “chance procedures,” such as rolling dice, as if he wasn’t “determining” the outcome--although it has often been said that both Cage and Babbitt were trying to do the same thing: maximize what the listener did not expect. The word “indeterminacy” could also apply to some of Cage’s written scores that either could be changed for every performance (“open form” pieces) or in which the performer had some freedom of interpretation as to what a symbol in the score might mean, if there is no explanation as to how to interpret it.
So the LSAT text was probably by an informed critic simply giving general descriptions of what Cage’s music was and a general idea of what the word “indeterminacy” might mean. The text was nothing unusual, something you might find in a newspaper or magazine. Suffice it to say that what the LSAT people did in making up questions about this text was sacrilegious.
For some reason, the LSAT people thought that Cage was talking about improvisation and jazz when he used the word “indeterminacy.” It is not necessarily egregious to say that Cage’s music involved some improvisation, although that is an issue that could be debated. Cage also influenced many jazz and rock musicians who improvised. What is egregious is trying to claim that Cage’s use of the word “indeterminacy” had anything to do with jazz or jazz improvisation.
This is not splitting hairs. The LSAT people simply misunderstood this text and based almost every question on this misinterpretation. I know I’m supposed to forget, forget, forget, but what on earth is going on here? Perhaps I should have changed my LSAT mantra to stupid, stupid, stupid.
I believe that legal education is on a veritable warpath to take over every other discipline in the scholarly world and reinterpret it their own way. That’s a leap in my logic from this incident involving John Cage, but I’m taking it. Together with other “competitive” degrees outside of science or engineering that are stepping stones into lucrative positions, like the MBA, the JD mill would like to be the king of the academic hill. They set up their law schools like Mensa societies and use their own “speed logic” to weed out the dummies. Unfortunately, in the end, it is cynical politics at its worst.
I tried as hard as I could to explain to the publisher of the LSAT practice exam why it was wrong to conceive that Cage had any interest in jazz, even based on the most liberal interpretation of the text at hand, but I never received an answer back. Meanwhile, onward LSAT soldiers, marching as to war! Perhaps lawyers will some day completely annex the topic of John Cage, distorting it into their own pointless characature, leaving us useless musicologists stewing in our own sour grapes. Obviously, they aren’t even interested in John Cage, but because it is “out there," lawyers must divide it and conquer it.
Then, some sunny day in their future, they can easily (without contention, dissent, or challenge) tell me the answers to my LSAT questions were wrong. They can even make me feel shame for getting those questions wrong. Until then, I proudly declare myself the bad boy of law.
Monday, February 8, 2010
Why Not Sue Your Law School?
After all, they taught you how to do it. So do it.
Consider first suing them on a theory of promissory estoppel: you took out all those loans relying reasonably on explicit or implied promises that law school would be a stepping stone to a job decent enough to earn enough to pay the loans back. Whether you were academically disqualified after the first or second year or completed the JD, passed the bar, and still can’t find work, that school has some explaining to do.
Or, try a theory of fraud. St. Thomas University School of Law of Miami is a TTTT that culls routinely 25% of its 1Ls. Thomas Bentey, one of the these disgruntled, culled students, sued St. Thomas U. and others in 2006 for consumer fraud. No details were ever given about a settlement; apparently Bentey walked away from the suit the following year.
No matter what theory, keep in mind that Bentey stepped into a malestrom of mocking and derision from the Blogosphere just for exercising his right to sue. There were two distinct kinds of criticism. The first came from conservative-leaning pundits who thought Bentey had gaul to use the court system simply to say that the dog ate his homework. The other type came from law students themselves, testifying to their own hard work at earning every painstaking credit--Bentey obviously didn’t work as hard as they did.
Since law schools are so fond of also teaching legal analysis, let’s “IRAC” (Issue-Rule-Analysis-Conclusion) a case for both promissory estoppel and fraud. The first is from contract law, and the second is from torts.
If you use promissory estoppel, you’re suing for breach of contract. The elements are 1) a promise; 2) a promise which the promisor should reasonably expect to induce action; 3) the promise does induce such action; and 4) injustice can be avoided only by enforcement of the promise.
1) D: Law schools can always argue that they never make any promises to the students. They might mention statistics, such as “92% of our graduates get jobs within the first nine months of graduating,” but that’s not a promise. Even if they might have even cooked these statistics, it’s a statement not a promise.
P: But a promise, by legal definition, is a manifestation of intention to act, made as to justify a promisee in understanding that a commitment has been made. Law schools finesse their inductees, pampering them with glowing projections of their success stories. The entire package of disinformation is indeed a manifestation of intention to act and leads any reasonable person to believe that this law school is committed to the success of its students--all of its students.
2) D: Law schools can also argue that their spiel in getting law students to come to their schools, which involves a heaping helping of smiles and pats on the back during orientation sessions, as well as sitting in on lectures, is mere custom. Prospective students should reasonably know this, so the law school never realized the student would take the custom seriously and rely on it. Besides, everyone knows that lawyers are tricky.
P: We all should reasonably know that lawyers are tricky, but what about schools? Anyone who grows up in America is led to reasonably believe that schools are honest and will not be tricky about their statistics or their methods--that's the only custom at issue here. Until it becomes customary for schools themselves to be dishonest and this is clearly known to prospective students, caveat emptor in matters of education should not apply to them.
3) D: Law schools can point to many things that induce students into law, from family pressure to greed. Law schools are so competitive, that students apply to many schools and then pick the highest ranked school that accepts them. Law schools can claim that their promises, based on deceptive statistics or otherwise, therefore do not specifically induce a student.
P: In my own case, I showed up at my law school’s orientation and went through my first two months without having spent a dime on tuition. I was testing the waters and wanted to make sure this was going to work out before signing over my life in the form of student loans. It was my law school’s specific assurances that they had my best interests in mind, and I relied specifically on those assurances. If not, I would have walked away from law school without paying after my second month there.
4) D: The elusive concept of justice may always be in the eyes of the beholder, but schools maintain their integrity be preserving the power to cut those students not doing well from their programs. It is a just process to keep students free to make their own decisions--a freedom which includes taking the consequences of their own bad decisions.
P: It is never in good faith to bargain with deception. Puffing may be allowed and is a process of exaggerating the quality of what you are selling, but puffing is always supposed to be recognized as such. Deceiving a reasonable person always shows bad faith, and bad faith is always unjust. The only way injustice can be avoided is for the law school to pay back the money an injured former student lays out for tuition and living expenses.
Then there is fraud. Fraud has nine elements: 1) a representation; 2) falsity of representation; 3) materiality of representation; 4) speaker’s knowledge of the falsity; 5) speaker’s intent it should be relied on; 6) hearer’s ignorance of the falsity; 7) hearer’s reliance on the representation; 8) hearer’s right to rely on representation; and 9) hearer’s consequent and proximate injury caused by reliance.
1) granted: law schools make representations about their schools.
2) D: Although representations about the schools are sometimes deceptive, they are often carefully made to maintain some truth.
P: Here is an example of a claim made by a law school recently during its orientation, which I attended: “among students who maintain a ‘B’ average or better, 80% pass the bar on the first attempt.” That makes the school sound terrific. Keep in mind this school is a TTTT with a low first-time bar pass rate, usually more like 20-30%. If you do the math, based on their very brutal grading curve, 50-70% of their students maintain a “C” average. In their materials, it clearly says “no more than 25%” of their students maintain a “B” average or better. In other words, a class that starts out with 60 students the first year, winnows down to about 35 students after routine culling, and will have two to three students passing the bar on the first attempt. The numbers are clearly deceptive, but accurate. So far, this isn’t enough to prove falsity (although it is a pretty clear indicator that at least this school is being inordinately tricky). Then again, this same school mentioned its “attrition rate” after the first year of 10-20%, when its own description of the grading curve in a book handed out to prospective students clearly shows that it routinely culls 30% of 1Ls. “10-20%” is a falsity. It is typical for a law school to create deceptive statistics, but one can usually find the patently false claims mixed in with these deceptive claims.
3) D: Law schools argue that education is not about bar pass rates, culling, or even about getting a job afterward. It is about instilling a community of legal thinkers in order to develop their own legal philosophies. The only thing material about law school is the education itself.
P: This was the line I was handed when I sat down with the dean of my former law school after being academically disqualified after the first year: “I know you spent a lot of money, but just think of the education you got.” After all those deceptive statistics and promises that induced my reliance in the first place, the law school is telling me that it’s dedicated only to the education, not what these statistics indicate. There are many reasons why I went to law school, including just the joy of learning, but passing the bar and getting a job are clearly material to the decision. At my station in life, I was clearly attempting to better my professional career by signing on to this law school, not just enriching my life with knowledge.
4 & 5) D: Assuming a law student could prove that one of its statements was false, so many numbers were given, a mistake could always be made. In other words, they can always claim they never meant to make a false claim or trick anybody.
P: The real essence of the sleaze of law school is its knowledge that they are not only deceiving and spinning their numbers, but patently making false claims. No one knows better than the law school itself what their numbers are. That they calculate and prepare their deceptive and false claims carefully, reveals their knowledge of falsity, not to mention the level and sophistication of their trickery.
6) D: If a law student has taken the LSAT and researched law schools enough to apply for them, they should be aware of all the information out there available to them and the raw statistics about such things as culling and bar pass rates, let alone about jobs available to graduates.
P: Although it is true that a caveat emptor theory gives the law schools some leeway as to what they can expect their law students to know, this balancing test needs to be taken in context of the fact that no school that collects money from a Government agency in the form of student loans should be making any deceptive or false claims--at all. Law school “rankings” or law school guides published privately are not held to the same standard as the Government. Even if a student knew all the statistics published in law school guides, a law school accredited by the American Bar Association and that is capable of distributing Federally insured loans represents the final, “official” authority of all statistics and information. Students who are generally not accustom to their government lying to them should not be held to a caveat emptor theory.
7) D: Law schools can point out that other factors, such as family pressure or even greed, can motivate a student to study law; but P: clearly students rely on the deceptive and false claims of law schools when choosing where to study. Otherwise the law students wouldn’t bother to spin such sophisticated deception.
8) granted: a law student can chose any law school they are accepted into and they have a right to rely on any pitch the law school gives them.
9) D: Again, the law schools claim there couldn’t possibly be any damages since the law student invariably learns something from the experience.
P: But any student who falls prey to the deceptions and falsity of a law school runs the risk of damaging their professional career for the rest of their life. If any school is not working with honesty and integrity, they must return tuition and any other expenses that a student incurred. If a career is ruined because of a law school’s shenanigans, they should even collect money for future earnings, based on the careers they were promised by the law schools in the first place.
These are certainly not the only two theories from which a prima facie case could be made. Other torts, such as misrepresentation, could be similarly applied.
However, another significant factor comes into play: the 11th Amendment, as demonstrated in Lupert v. California State Bar, 761 F.2d 1325. Lawyers are all officers of the court and must be given the freedom to make statements in the course of their work even though they might be distortions of the truth. Of course, this type of immunity was granted to officers of the court so that they can participate in the adversarial justice system: a lawyer could not get far if he or she was sued every time someone was accused of committing a crime or having bad character.
Still, I was shocked with the issue of the 11th Amendment as used to defeat the plaintiff’s case in Lupert. 11th Amendment immunity is granted with the intention of justice being served in a court of law, not so that lawyers can run law schools on the side and make big bucks on extracting tuition from gullible young lawyer wannabees.
Lupert also states that no one has a right to be a lawyer. It is a case about a woman who fails the California “Baby Bar” (FYLSE) exam and complains that the test is too difficult, with a pass rate of only about 20%.
Perhaps no one has a right to be a lawyer, but if the law is to be respected, it needs to practice what it preaches. Lupert may not have had a good case, but I do believe Bentey probably did.
Unfortunately, lessons about life in the real world will show anyone trying to change the system that social activism is required, even if the legal case is sound. This is, after all, the same court system that hung witches in 1692, and protected and enforced the South’s racist policy of segregation for almost 100 years after the American Civil War.
We live in a competitive society that often ties itself up into knots trying to determine who should advance and who should be “fired” (as Donald Trump famously appears to draw pleasure from saying). I’ll always root for justice when it plays a role in this process, but justice for our justice system is an issue that gets complicated quickly.
If you must, sue your law school, but expect the same results as Bentey got, no matter how good your case is. Law schools, which are a part of the legal system, require pressure from the outside if change is to occur. So at least let’s keep blogging about them.
Consider first suing them on a theory of promissory estoppel: you took out all those loans relying reasonably on explicit or implied promises that law school would be a stepping stone to a job decent enough to earn enough to pay the loans back. Whether you were academically disqualified after the first or second year or completed the JD, passed the bar, and still can’t find work, that school has some explaining to do.
Or, try a theory of fraud. St. Thomas University School of Law of Miami is a TTTT that culls routinely 25% of its 1Ls. Thomas Bentey, one of the these disgruntled, culled students, sued St. Thomas U. and others in 2006 for consumer fraud. No details were ever given about a settlement; apparently Bentey walked away from the suit the following year.
No matter what theory, keep in mind that Bentey stepped into a malestrom of mocking and derision from the Blogosphere just for exercising his right to sue. There were two distinct kinds of criticism. The first came from conservative-leaning pundits who thought Bentey had gaul to use the court system simply to say that the dog ate his homework. The other type came from law students themselves, testifying to their own hard work at earning every painstaking credit--Bentey obviously didn’t work as hard as they did.
Since law schools are so fond of also teaching legal analysis, let’s “IRAC” (Issue-Rule-Analysis-Conclusion) a case for both promissory estoppel and fraud. The first is from contract law, and the second is from torts.
If you use promissory estoppel, you’re suing for breach of contract. The elements are 1) a promise; 2) a promise which the promisor should reasonably expect to induce action; 3) the promise does induce such action; and 4) injustice can be avoided only by enforcement of the promise.
1) D: Law schools can always argue that they never make any promises to the students. They might mention statistics, such as “92% of our graduates get jobs within the first nine months of graduating,” but that’s not a promise. Even if they might have even cooked these statistics, it’s a statement not a promise.
P: But a promise, by legal definition, is a manifestation of intention to act, made as to justify a promisee in understanding that a commitment has been made. Law schools finesse their inductees, pampering them with glowing projections of their success stories. The entire package of disinformation is indeed a manifestation of intention to act and leads any reasonable person to believe that this law school is committed to the success of its students--all of its students.
2) D: Law schools can also argue that their spiel in getting law students to come to their schools, which involves a heaping helping of smiles and pats on the back during orientation sessions, as well as sitting in on lectures, is mere custom. Prospective students should reasonably know this, so the law school never realized the student would take the custom seriously and rely on it. Besides, everyone knows that lawyers are tricky.
P: We all should reasonably know that lawyers are tricky, but what about schools? Anyone who grows up in America is led to reasonably believe that schools are honest and will not be tricky about their statistics or their methods--that's the only custom at issue here. Until it becomes customary for schools themselves to be dishonest and this is clearly known to prospective students, caveat emptor in matters of education should not apply to them.
3) D: Law schools can point to many things that induce students into law, from family pressure to greed. Law schools are so competitive, that students apply to many schools and then pick the highest ranked school that accepts them. Law schools can claim that their promises, based on deceptive statistics or otherwise, therefore do not specifically induce a student.
P: In my own case, I showed up at my law school’s orientation and went through my first two months without having spent a dime on tuition. I was testing the waters and wanted to make sure this was going to work out before signing over my life in the form of student loans. It was my law school’s specific assurances that they had my best interests in mind, and I relied specifically on those assurances. If not, I would have walked away from law school without paying after my second month there.
4) D: The elusive concept of justice may always be in the eyes of the beholder, but schools maintain their integrity be preserving the power to cut those students not doing well from their programs. It is a just process to keep students free to make their own decisions--a freedom which includes taking the consequences of their own bad decisions.
P: It is never in good faith to bargain with deception. Puffing may be allowed and is a process of exaggerating the quality of what you are selling, but puffing is always supposed to be recognized as such. Deceiving a reasonable person always shows bad faith, and bad faith is always unjust. The only way injustice can be avoided is for the law school to pay back the money an injured former student lays out for tuition and living expenses.
Then there is fraud. Fraud has nine elements: 1) a representation; 2) falsity of representation; 3) materiality of representation; 4) speaker’s knowledge of the falsity; 5) speaker’s intent it should be relied on; 6) hearer’s ignorance of the falsity; 7) hearer’s reliance on the representation; 8) hearer’s right to rely on representation; and 9) hearer’s consequent and proximate injury caused by reliance.
1) granted: law schools make representations about their schools.
2) D: Although representations about the schools are sometimes deceptive, they are often carefully made to maintain some truth.
P: Here is an example of a claim made by a law school recently during its orientation, which I attended: “among students who maintain a ‘B’ average or better, 80% pass the bar on the first attempt.” That makes the school sound terrific. Keep in mind this school is a TTTT with a low first-time bar pass rate, usually more like 20-30%. If you do the math, based on their very brutal grading curve, 50-70% of their students maintain a “C” average. In their materials, it clearly says “no more than 25%” of their students maintain a “B” average or better. In other words, a class that starts out with 60 students the first year, winnows down to about 35 students after routine culling, and will have two to three students passing the bar on the first attempt. The numbers are clearly deceptive, but accurate. So far, this isn’t enough to prove falsity (although it is a pretty clear indicator that at least this school is being inordinately tricky). Then again, this same school mentioned its “attrition rate” after the first year of 10-20%, when its own description of the grading curve in a book handed out to prospective students clearly shows that it routinely culls 30% of 1Ls. “10-20%” is a falsity. It is typical for a law school to create deceptive statistics, but one can usually find the patently false claims mixed in with these deceptive claims.
3) D: Law schools argue that education is not about bar pass rates, culling, or even about getting a job afterward. It is about instilling a community of legal thinkers in order to develop their own legal philosophies. The only thing material about law school is the education itself.
P: This was the line I was handed when I sat down with the dean of my former law school after being academically disqualified after the first year: “I know you spent a lot of money, but just think of the education you got.” After all those deceptive statistics and promises that induced my reliance in the first place, the law school is telling me that it’s dedicated only to the education, not what these statistics indicate. There are many reasons why I went to law school, including just the joy of learning, but passing the bar and getting a job are clearly material to the decision. At my station in life, I was clearly attempting to better my professional career by signing on to this law school, not just enriching my life with knowledge.
4 & 5) D: Assuming a law student could prove that one of its statements was false, so many numbers were given, a mistake could always be made. In other words, they can always claim they never meant to make a false claim or trick anybody.
P: The real essence of the sleaze of law school is its knowledge that they are not only deceiving and spinning their numbers, but patently making false claims. No one knows better than the law school itself what their numbers are. That they calculate and prepare their deceptive and false claims carefully, reveals their knowledge of falsity, not to mention the level and sophistication of their trickery.
6) D: If a law student has taken the LSAT and researched law schools enough to apply for them, they should be aware of all the information out there available to them and the raw statistics about such things as culling and bar pass rates, let alone about jobs available to graduates.
P: Although it is true that a caveat emptor theory gives the law schools some leeway as to what they can expect their law students to know, this balancing test needs to be taken in context of the fact that no school that collects money from a Government agency in the form of student loans should be making any deceptive or false claims--at all. Law school “rankings” or law school guides published privately are not held to the same standard as the Government. Even if a student knew all the statistics published in law school guides, a law school accredited by the American Bar Association and that is capable of distributing Federally insured loans represents the final, “official” authority of all statistics and information. Students who are generally not accustom to their government lying to them should not be held to a caveat emptor theory.
7) D: Law schools can point out that other factors, such as family pressure or even greed, can motivate a student to study law; but P: clearly students rely on the deceptive and false claims of law schools when choosing where to study. Otherwise the law students wouldn’t bother to spin such sophisticated deception.
8) granted: a law student can chose any law school they are accepted into and they have a right to rely on any pitch the law school gives them.
9) D: Again, the law schools claim there couldn’t possibly be any damages since the law student invariably learns something from the experience.
P: But any student who falls prey to the deceptions and falsity of a law school runs the risk of damaging their professional career for the rest of their life. If any school is not working with honesty and integrity, they must return tuition and any other expenses that a student incurred. If a career is ruined because of a law school’s shenanigans, they should even collect money for future earnings, based on the careers they were promised by the law schools in the first place.
These are certainly not the only two theories from which a prima facie case could be made. Other torts, such as misrepresentation, could be similarly applied.
However, another significant factor comes into play: the 11th Amendment, as demonstrated in Lupert v. California State Bar, 761 F.2d 1325. Lawyers are all officers of the court and must be given the freedom to make statements in the course of their work even though they might be distortions of the truth. Of course, this type of immunity was granted to officers of the court so that they can participate in the adversarial justice system: a lawyer could not get far if he or she was sued every time someone was accused of committing a crime or having bad character.
Still, I was shocked with the issue of the 11th Amendment as used to defeat the plaintiff’s case in Lupert. 11th Amendment immunity is granted with the intention of justice being served in a court of law, not so that lawyers can run law schools on the side and make big bucks on extracting tuition from gullible young lawyer wannabees.
Lupert also states that no one has a right to be a lawyer. It is a case about a woman who fails the California “Baby Bar” (FYLSE) exam and complains that the test is too difficult, with a pass rate of only about 20%.
Perhaps no one has a right to be a lawyer, but if the law is to be respected, it needs to practice what it preaches. Lupert may not have had a good case, but I do believe Bentey probably did.
Unfortunately, lessons about life in the real world will show anyone trying to change the system that social activism is required, even if the legal case is sound. This is, after all, the same court system that hung witches in 1692, and protected and enforced the South’s racist policy of segregation for almost 100 years after the American Civil War.
We live in a competitive society that often ties itself up into knots trying to determine who should advance and who should be “fired” (as Donald Trump famously appears to draw pleasure from saying). I’ll always root for justice when it plays a role in this process, but justice for our justice system is an issue that gets complicated quickly.
If you must, sue your law school, but expect the same results as Bentey got, no matter how good your case is. Law schools, which are a part of the legal system, require pressure from the outside if change is to occur. So at least let’s keep blogging about them.
Thursday, February 4, 2010
Law Goes to the Movies
When my law school first accepted me and I sent in the money that reserved my spot, I started receiving all sorts of school information in the mail. The materials didn’t seem all that interesting, but I read it all. Every bit of it.
Somewhere in all the descriptions of financial aid, assignments for the first week, and invitations to the orientation dinner, was a brief request from the associate dean that we rent the movie A Civil Action starring John Travolta and Robert Duvall and view it sometime over the summer. We’d view it again during orientation week and discuss it (no doubt using the semi-Socratic method). We were also “encouraged” to read the original book by Jonathan Harr before orientation week. “Encouraged” to read a book for law school? Is that an assignment?
I had seen A Civil Action on television years ago, but rented it anyway and watched it again without the commercial interruptions. I also went to my local Borders bookstore and purchased a new copy of the 500-page book. I read it twice that summer.
I figured I might have an advantage here, since I used to work as an editorial assistant for several famous movie critics, but more importantly, middle-age has set in and reading fat books from cover to cover is one of the pastimes that bored, frustrated middle-age adults acquire and even enjoy. Those young 1Ls won’t be able to compete with me there. Another incentive is that Harr’s book is really a terrific read. It won the National Book Critics Circle Award for Nonfiction. It reads like a great novel, even though it is a true story.
It’s all about a case involving a chemical spill in Woburn, Massachusetts, and a fairly young personal injury ace lawyer named Jan Schlichtmann (played by John Travolta in the film; the film was directed by Steven Zallian, who also wrote the screenplay for Schindler’s List and for several other major films). Schlichtmann’s nemesis is a crusty, irritable codger of a lawyer named Jerome Facher (played by Robert Duvall, who for his efforts received an Oscar nomination for best supporting actor). The cast was rounded out by lots of big names: Tony Shaloub, William Macy, Kathleen Quinlan, James Gandolfini, and Sydney Pollack. John Lithgow played Judge Walter Skinner, who presided over the tedious, never-ending case with a charming smile and glint in his eye. Dan Hedaya had one of the most powerful performances as the tough, defiant tanner whose plant is accused to dumping toxic chemicals. That’s the film, anyway.
For the book, Harr actually tagged along with Schlichtmann during the trial and many events of Schlichtmann’s personal life at the time. The difficult part of the case was trying to prove that eight children and several adults came down with leukemia as a result of chemical spills from two major corporations in Woburn. There were mountains of documents for Harr to read, from extensive testimony by scientists and plant workers, to up to eight different studies related to this investigation. There was medical data, chemical data, geological data, statistical data, and an equation for the natural flow of water. Still, the best part of the book was Harr’s personal involvement in the case as he shadowed Schlichtmann and even became personally involved in many of the case’s bizarre episodes.
Like the PG&E case in the movie Erin Brockovich, lawyers must prove cause and effect. No one knows what causes leukemia in the first place, so how were lawyers going to prove that the chemical in question, trichloroethylene or “TCE,” made people sick? There are still those scientists and lawyers in the PG&E case that claim that the court relied on “junk science,” since there was no scientific way to link the illnesses to the chemicals.
Then there was the problem of the two factories in question, owned by the large companies Beatrice and Grace. During the discovery portion of the case, the workers claimed they never used TCE, even though it had been found in the groundwater nearby. This was one of the really sticky points for me: they were lying under oath! Eventually, the workers changed their testimony and admitted they did use TCE, and they even admitted that at one point, several barrels of chemical waste were buried on the property. This was all depicted in the movie. The book did mention that the tough tanner (played by Dan Hedaya) was finally charged with perjury, but no one else was. That was one of the issues I wanted to discuss in a semi-Socratic way.
I had also wondered if one could even raise the issue of malice, since these workers even admitted that they knew they were breaking the law by dumping the chemicals. These workers also knew that at least the chemicals were dangerous to human health. At the time I didn’t know that if you do something for your profession, it can be argued that malice was not involved. Still, we all have buddies who dump their motor oil into vacant lots thinking that one lousy little spill isn’t going to hurt anyone. These people should know better, but do their deeds anyway, all under the pressure of “getting the job done.”
What didn’t come out in the movie were things I found most interesting about this case. For example, there is an entire chapter in the book on Rule 11 of the Federal Rules of Civil Procedure. This is a rule that allows the court to inflict punitive damages on any lawyer who files a frivolous law suit. This was brought up briefly in the film as a joke, and John Lithgow as Judge Skinner sort of laughs it off and dismisses it as such. The fact is that the real Judge Skinner did not think Rule 11 was a joke and in the end actually ruled that Schlichtmann had filed a frivolous law suit. I suppose it would have made the film too complicated, but what a major omission in this film!
Another thing about the film is that it left out an important character in the story, a famous lawyer who joined Schlichtmann’s team named Charles Nesson. It was Nesson who proposed that the lawsuit should ask for a half billion dollars (or one year’s combined profit from the two companies, Beatrice and Grace). He based this seemingly astronomical number on his own philosophy of what companies should owe in cases like this. In the film, Schlichtmann is depicted as rashly springing this number on his opponents during an important negotiation meeting to the surprise of his partners, with whom he did not consult. Of course, this makes Schlichtmann look like he’s out of control, although this never happened.
The most outrageous ommission in the film was that, according to Harr, Facher had withheld evidence during discovery. The defense team of lawyers had financed a 60-page study that according to the rules of discovery was supposed to have been disclosed to the plaintiffs. One of Facher’s colleagues was found guilty of deliberate misconduct over this matter, but certainly this incident as described in the book made Facher look much more unethical than Duvall portrayed him in the film.
These were my observations, anyway. Was I really prepared to share them to a lecture hall filled with bright young 1L students?
So orientation at my school commences and the associate dean, who also showed film clips from the Paper Chase and Legally Blonde, screened the film A Civil Action for us. When class discussion about the film commenced, I was one of the first to raise my hand. I began to talk about how the book differed from the film and the professor adjudicating the discussion stopped me and said, “well, if you’ve read the book...” as if I had done something wrong. I looked down the row I was sitting in and sure enough saw only one shy girl with a copy of the book in front of her. No one else apparently had read it--including the professor! And I thought they had “encouraged” us to read it!
This was my first bitter lesson in the semi-Socratic method: survival of the most loquacious. I tried to raise the issue of Facher’s character, but, alas, was shouted down--after all, based on Robert Duvall’s portrayal, what was there not to like about Facher? Was it really relevant if we like or dislike a lawyer? Not to the law. The professor responded to my issue of malice by neither agreeing or disagreeing with me, but by saying that she was considered one of the most respected experts in malice in her field.
There was little else to add to this class discussion, except what were the cursory impressions of the most outspoken students after seeing the film--for the first time. Are you listening to this Socrates? This is being done in your name!
At least I got to express that I felt justice had not been served. Schlichtmann and his law firm were completely ruined by this case, and although the government finally stepped in and penalized Beatrice and Grace for their misdeeds, the general feeling I got from both the film and book is that the families of the victims were never adequately compensated. Those lawyers advocating “junk science” would disagree with me, but certainly there were other things that entered the realm of what could be called paranoid conspiracy theories.
Several times in the book, Schlichtmann appears to break down and all but accuse Judge Skinner of being on the take. Harr frames these statements in the book as if they were coming out of the mouth of a man on the verge of insanity, but why has it become such a stretch to even suspect that such judges could be improperly influenced? Harr never even considers this, even though he carefully depicts the unjust way Judge Skinner divided the trial into sections, allowing Beatrice to be acquitted before the victims could even testify. Perhaps Harr feared some sort of lawsuit had he seriously considered bribery in this case. I personally don’t think Schlichtmann, after what I read, would have broke down far enough to be clinically paranoid--even if his black Porsche was being repossessed and he didn’t have enough money to pay his tailor. It is an ommission on Harr’s part to not go into detail as to why Schlichtmann thought Skinner had perhaps been bribed.
As a distant note of irony for conspiracy theorists, the book also mentioned that Schlichtmann had worked nine months for his criminal law professor at Cornell, G. Robert Blakey, for the House Special Committee on Assassinations in the late 1970s. This was the committee that re-investigated the assassinations of John F. Kennedy and Rev. Martin Luther King, Jr., and, although they did not solve these crimes, came up with new theories and found both murders to be the result of conspiracies. Blakey stepped in at the last minute, under pressure it is alleged, to soften the stance of the original, tougher prosecutor, Richard Sprague.
I’m old enough to have seen these hearings live on television. Maybe we should have watched tapes of those during orientation instead of this movie. Or maybe we should leave movies to our leisure and not try to teach law from them.
Somewhere in all the descriptions of financial aid, assignments for the first week, and invitations to the orientation dinner, was a brief request from the associate dean that we rent the movie A Civil Action starring John Travolta and Robert Duvall and view it sometime over the summer. We’d view it again during orientation week and discuss it (no doubt using the semi-Socratic method). We were also “encouraged” to read the original book by Jonathan Harr before orientation week. “Encouraged” to read a book for law school? Is that an assignment?
I had seen A Civil Action on television years ago, but rented it anyway and watched it again without the commercial interruptions. I also went to my local Borders bookstore and purchased a new copy of the 500-page book. I read it twice that summer.
I figured I might have an advantage here, since I used to work as an editorial assistant for several famous movie critics, but more importantly, middle-age has set in and reading fat books from cover to cover is one of the pastimes that bored, frustrated middle-age adults acquire and even enjoy. Those young 1Ls won’t be able to compete with me there. Another incentive is that Harr’s book is really a terrific read. It won the National Book Critics Circle Award for Nonfiction. It reads like a great novel, even though it is a true story.
It’s all about a case involving a chemical spill in Woburn, Massachusetts, and a fairly young personal injury ace lawyer named Jan Schlichtmann (played by John Travolta in the film; the film was directed by Steven Zallian, who also wrote the screenplay for Schindler’s List and for several other major films). Schlichtmann’s nemesis is a crusty, irritable codger of a lawyer named Jerome Facher (played by Robert Duvall, who for his efforts received an Oscar nomination for best supporting actor). The cast was rounded out by lots of big names: Tony Shaloub, William Macy, Kathleen Quinlan, James Gandolfini, and Sydney Pollack. John Lithgow played Judge Walter Skinner, who presided over the tedious, never-ending case with a charming smile and glint in his eye. Dan Hedaya had one of the most powerful performances as the tough, defiant tanner whose plant is accused to dumping toxic chemicals. That’s the film, anyway.
For the book, Harr actually tagged along with Schlichtmann during the trial and many events of Schlichtmann’s personal life at the time. The difficult part of the case was trying to prove that eight children and several adults came down with leukemia as a result of chemical spills from two major corporations in Woburn. There were mountains of documents for Harr to read, from extensive testimony by scientists and plant workers, to up to eight different studies related to this investigation. There was medical data, chemical data, geological data, statistical data, and an equation for the natural flow of water. Still, the best part of the book was Harr’s personal involvement in the case as he shadowed Schlichtmann and even became personally involved in many of the case’s bizarre episodes.
Like the PG&E case in the movie Erin Brockovich, lawyers must prove cause and effect. No one knows what causes leukemia in the first place, so how were lawyers going to prove that the chemical in question, trichloroethylene or “TCE,” made people sick? There are still those scientists and lawyers in the PG&E case that claim that the court relied on “junk science,” since there was no scientific way to link the illnesses to the chemicals.
Then there was the problem of the two factories in question, owned by the large companies Beatrice and Grace. During the discovery portion of the case, the workers claimed they never used TCE, even though it had been found in the groundwater nearby. This was one of the really sticky points for me: they were lying under oath! Eventually, the workers changed their testimony and admitted they did use TCE, and they even admitted that at one point, several barrels of chemical waste were buried on the property. This was all depicted in the movie. The book did mention that the tough tanner (played by Dan Hedaya) was finally charged with perjury, but no one else was. That was one of the issues I wanted to discuss in a semi-Socratic way.
I had also wondered if one could even raise the issue of malice, since these workers even admitted that they knew they were breaking the law by dumping the chemicals. These workers also knew that at least the chemicals were dangerous to human health. At the time I didn’t know that if you do something for your profession, it can be argued that malice was not involved. Still, we all have buddies who dump their motor oil into vacant lots thinking that one lousy little spill isn’t going to hurt anyone. These people should know better, but do their deeds anyway, all under the pressure of “getting the job done.”
What didn’t come out in the movie were things I found most interesting about this case. For example, there is an entire chapter in the book on Rule 11 of the Federal Rules of Civil Procedure. This is a rule that allows the court to inflict punitive damages on any lawyer who files a frivolous law suit. This was brought up briefly in the film as a joke, and John Lithgow as Judge Skinner sort of laughs it off and dismisses it as such. The fact is that the real Judge Skinner did not think Rule 11 was a joke and in the end actually ruled that Schlichtmann had filed a frivolous law suit. I suppose it would have made the film too complicated, but what a major omission in this film!
Another thing about the film is that it left out an important character in the story, a famous lawyer who joined Schlichtmann’s team named Charles Nesson. It was Nesson who proposed that the lawsuit should ask for a half billion dollars (or one year’s combined profit from the two companies, Beatrice and Grace). He based this seemingly astronomical number on his own philosophy of what companies should owe in cases like this. In the film, Schlichtmann is depicted as rashly springing this number on his opponents during an important negotiation meeting to the surprise of his partners, with whom he did not consult. Of course, this makes Schlichtmann look like he’s out of control, although this never happened.
The most outrageous ommission in the film was that, according to Harr, Facher had withheld evidence during discovery. The defense team of lawyers had financed a 60-page study that according to the rules of discovery was supposed to have been disclosed to the plaintiffs. One of Facher’s colleagues was found guilty of deliberate misconduct over this matter, but certainly this incident as described in the book made Facher look much more unethical than Duvall portrayed him in the film.
These were my observations, anyway. Was I really prepared to share them to a lecture hall filled with bright young 1L students?
So orientation at my school commences and the associate dean, who also showed film clips from the Paper Chase and Legally Blonde, screened the film A Civil Action for us. When class discussion about the film commenced, I was one of the first to raise my hand. I began to talk about how the book differed from the film and the professor adjudicating the discussion stopped me and said, “well, if you’ve read the book...” as if I had done something wrong. I looked down the row I was sitting in and sure enough saw only one shy girl with a copy of the book in front of her. No one else apparently had read it--including the professor! And I thought they had “encouraged” us to read it!
This was my first bitter lesson in the semi-Socratic method: survival of the most loquacious. I tried to raise the issue of Facher’s character, but, alas, was shouted down--after all, based on Robert Duvall’s portrayal, what was there not to like about Facher? Was it really relevant if we like or dislike a lawyer? Not to the law. The professor responded to my issue of malice by neither agreeing or disagreeing with me, but by saying that she was considered one of the most respected experts in malice in her field.
There was little else to add to this class discussion, except what were the cursory impressions of the most outspoken students after seeing the film--for the first time. Are you listening to this Socrates? This is being done in your name!
At least I got to express that I felt justice had not been served. Schlichtmann and his law firm were completely ruined by this case, and although the government finally stepped in and penalized Beatrice and Grace for their misdeeds, the general feeling I got from both the film and book is that the families of the victims were never adequately compensated. Those lawyers advocating “junk science” would disagree with me, but certainly there were other things that entered the realm of what could be called paranoid conspiracy theories.
Several times in the book, Schlichtmann appears to break down and all but accuse Judge Skinner of being on the take. Harr frames these statements in the book as if they were coming out of the mouth of a man on the verge of insanity, but why has it become such a stretch to even suspect that such judges could be improperly influenced? Harr never even considers this, even though he carefully depicts the unjust way Judge Skinner divided the trial into sections, allowing Beatrice to be acquitted before the victims could even testify. Perhaps Harr feared some sort of lawsuit had he seriously considered bribery in this case. I personally don’t think Schlichtmann, after what I read, would have broke down far enough to be clinically paranoid--even if his black Porsche was being repossessed and he didn’t have enough money to pay his tailor. It is an ommission on Harr’s part to not go into detail as to why Schlichtmann thought Skinner had perhaps been bribed.
As a distant note of irony for conspiracy theorists, the book also mentioned that Schlichtmann had worked nine months for his criminal law professor at Cornell, G. Robert Blakey, for the House Special Committee on Assassinations in the late 1970s. This was the committee that re-investigated the assassinations of John F. Kennedy and Rev. Martin Luther King, Jr., and, although they did not solve these crimes, came up with new theories and found both murders to be the result of conspiracies. Blakey stepped in at the last minute, under pressure it is alleged, to soften the stance of the original, tougher prosecutor, Richard Sprague.
I’m old enough to have seen these hearings live on television. Maybe we should have watched tapes of those during orientation instead of this movie. Or maybe we should leave movies to our leisure and not try to teach law from them.
Tuesday, February 2, 2010
TTT, Correspondence Schools, and “Read-Only”
There is a maxim I live by: good is good; bad is bad. As insipid as this sounds, it works. There is a naive mentality that believes that if a concert pianist practices on a lousy piano, he or she will be all that much better when playing a good piano. Wrong. It doesn’t work that way, and I shouldn’t have to explain this any further.
Same thing with law schools. If you have a really sharp legal mind, you can’t expect to go to a crappy college and be their star student. A crappy college usually holds the good people back (bad is bad).
Unfortunately, this does not hold in the legal world mentality with its LSAT exams and class rankings. The legal world tends to think of education as a humongous footrace. Once someone says “go," the fastest law student will always prevail. Unfortunately, this mentality causes more problems than it solves, as does any blunt, impatient philosophy that aspires toward meritocracy.
In all the blogging I’ve seen about how worthless TTT schools are, mostly in terms of how difficult it is to get a job upon graduation, the situation could be hashed out even further. I’ve also read on these blogs that the only law schools that will get you a good position are the T14 law schools (that is, Yale, Harvard, Stanford, Columbia, Cornell, Duke, U of Chicago, U of P, NYU, Virginia, Berkeley, U of M, Georgetown, and Northwestern--not necessarily in that order). This can’t be altogether true since some of the professors at my TTT were from these very schools (at least I assume they are not making big bucks teaching torts to 1Ls).
If you come from a family of lawyers, and they are going to get you a job upon passing the bar, attending a TTT will work fine for you--it might even be fun. If you are going cold turkey into law, as I did, even getting into Harvard won’t assure you that you are going to get placed into a lucrative position. Then again, I can’t imagine Harvard making some of the blatant errors that my own TTT has made--the good schools nurture themselves to the point where they analyze sophisticated problems in a sophisticated way (good is good).
Even if the college rankings done by US News & World Reports were accurate, there is still a big difference between getting into a school they rank in the teens and one ranked in the nineties. Going further down the line, among TTTs, you’ll even find that some are accredited by the ABA, while others are not. Some are only night schools. Some are only “correspondence” schools (that is, all of the course work is done over the Internet).
Before you start screaming “diploma mill” or something worse, these correspondence schools are recognized by at least some state bars as valid alternatives to preparing for the bar, even if they are not accredited by the ABA. State bars vary in their rules as to what schools they will recognize, but depending on what state you want to practice law in, you should visit its state bar Website and determine if a correspondence school might work for you.
You can get a correspondence school for less than $300 a month. Why on earth would you then take a chance with a TTT and keep racking up those $50K per annum bills?
Then there is the “read-only” method of preparation for the bar. This is truly the old-fashioned way of essentially working one-on-one with a judge or lawyer, who will in turn vouch for your progress in preparing for the bar. The rules in my state are that a judge prepares you in three years, while a lawyer will prepare you in four. The correspondence schools I’ve dealt with are essentially just extensions of this method anyway, since they have a judge on call who vouches for the progress of the matriculated students.
The problem then becomes finding a judge or lawyer who will do this for you. One judge I talked to was against the “read-only” method because she felt that the community you get in a school was important. Law school, she said, was more than preparing for the bar, it had to be something that instilled a legal philosophy.
Personally, I’ve had my one year of TTT and that was plenty. At the moment, the only thing I care about is finishing this thing in the cheapest possible way. If I can’t find a judge who will supervise by “read-only” preparation, I’ll take the correspondence school.
These are not only alternatives to becoming a practicing lawyer, but alternatives to framing the TTT problem and law schools in general. I still believe the root of the problem lies in the mentality of lawyers and businessmen who have allowed competition to intoxicate them way beyond what their bloated egos can comprehend. Life is not a football game, fellahs.
Until this is addressed, get to the bar through an alternative method. It’s cheaper.
Same thing with law schools. If you have a really sharp legal mind, you can’t expect to go to a crappy college and be their star student. A crappy college usually holds the good people back (bad is bad).
Unfortunately, this does not hold in the legal world mentality with its LSAT exams and class rankings. The legal world tends to think of education as a humongous footrace. Once someone says “go," the fastest law student will always prevail. Unfortunately, this mentality causes more problems than it solves, as does any blunt, impatient philosophy that aspires toward meritocracy.
In all the blogging I’ve seen about how worthless TTT schools are, mostly in terms of how difficult it is to get a job upon graduation, the situation could be hashed out even further. I’ve also read on these blogs that the only law schools that will get you a good position are the T14 law schools (that is, Yale, Harvard, Stanford, Columbia, Cornell, Duke, U of Chicago, U of P, NYU, Virginia, Berkeley, U of M, Georgetown, and Northwestern--not necessarily in that order). This can’t be altogether true since some of the professors at my TTT were from these very schools (at least I assume they are not making big bucks teaching torts to 1Ls).
If you come from a family of lawyers, and they are going to get you a job upon passing the bar, attending a TTT will work fine for you--it might even be fun. If you are going cold turkey into law, as I did, even getting into Harvard won’t assure you that you are going to get placed into a lucrative position. Then again, I can’t imagine Harvard making some of the blatant errors that my own TTT has made--the good schools nurture themselves to the point where they analyze sophisticated problems in a sophisticated way (good is good).
Even if the college rankings done by US News & World Reports were accurate, there is still a big difference between getting into a school they rank in the teens and one ranked in the nineties. Going further down the line, among TTTs, you’ll even find that some are accredited by the ABA, while others are not. Some are only night schools. Some are only “correspondence” schools (that is, all of the course work is done over the Internet).
Before you start screaming “diploma mill” or something worse, these correspondence schools are recognized by at least some state bars as valid alternatives to preparing for the bar, even if they are not accredited by the ABA. State bars vary in their rules as to what schools they will recognize, but depending on what state you want to practice law in, you should visit its state bar Website and determine if a correspondence school might work for you.
You can get a correspondence school for less than $300 a month. Why on earth would you then take a chance with a TTT and keep racking up those $50K per annum bills?
Then there is the “read-only” method of preparation for the bar. This is truly the old-fashioned way of essentially working one-on-one with a judge or lawyer, who will in turn vouch for your progress in preparing for the bar. The rules in my state are that a judge prepares you in three years, while a lawyer will prepare you in four. The correspondence schools I’ve dealt with are essentially just extensions of this method anyway, since they have a judge on call who vouches for the progress of the matriculated students.
The problem then becomes finding a judge or lawyer who will do this for you. One judge I talked to was against the “read-only” method because she felt that the community you get in a school was important. Law school, she said, was more than preparing for the bar, it had to be something that instilled a legal philosophy.
Personally, I’ve had my one year of TTT and that was plenty. At the moment, the only thing I care about is finishing this thing in the cheapest possible way. If I can’t find a judge who will supervise by “read-only” preparation, I’ll take the correspondence school.
These are not only alternatives to becoming a practicing lawyer, but alternatives to framing the TTT problem and law schools in general. I still believe the root of the problem lies in the mentality of lawyers and businessmen who have allowed competition to intoxicate them way beyond what their bloated egos can comprehend. Life is not a football game, fellahs.
Until this is addressed, get to the bar through an alternative method. It’s cheaper.
Monday, February 1, 2010
Warm, Cozy, Cuddly Lawyers
When I lived in the Washington DC area, I once went to a job fair advertised in the newspaper. I got connected there to what seemed to be a legitimate modeling agency. Their business consisted of getting their workers to comb the streets on foot, passing out business cards to anyone that looked like they could be a model. By the way, ugly people can also be hired as models given the appropriate sort of advertisement. In other words, anyone could be a possible model with the “right look.”
If any of the model prospects “discovered" by the on-foot scout called the number on the business card he or she was handed, they would not be immediately recruited, but would receive information about this modeling agency’s school. In fact, 60 Minutes did an exposé on this scam, especially as it entailed underage teenagers who were recruited by scouts and then in turn begged their parents to attend the modeling schools, sometimes with tuitions that racked up quickly into the tens of thousands of dollars. Although the graduates of these schools completed their studies successfully, they never got work as models.
The bottom line? No one needs to go to school to be a model.
Here’s a leap, but one I intend to argue later: no one needs to go to school to be a lawyer either.
Whatever you think about free enterprise and caveat emptor, these modeling schools are still scams. They intentionally cheat people. They are businesses that live off of dreams they implant in their heads of their victims. They are businesses that suck money out of their victims and give them very little in return. They are businesses fully aware that they are going to take money (lots of money) from unsuspecting people and then close their doors tight to them. They are truly bunco artists.
But the best of bunco artists know that you can never sting the victim without finesse. You have to be classy. You have to make the victim relax and trust you. You have to dress sharp and grease the victim’s palm a little, if not a lot. Stroke their vanity. Speak fast. Get your mark giddy.
Welcome to law school. Law school is the ultimate bunco operation. And guess what? They know it!
If you’ve been through a law school’s orientation, you know how they operate. First they stroke your vanity: “congratulations on being accepted to our school; you are now one of us.” Law schools have their own halls of fame and traditions. These are deliberately and unrelentlessly instilled upon you before you even get to learn how to “IRAC” or fondly appreciate the writing style of Justice Benjamin Cardozo.
And never underestimate the power of food. They feed you! For free! Sumptuous orientation dinners. BBQs. Cocktail mixers. Boxes of pizza stacked all in a row, according to their ingredients. Boxes of bagels and coffee all free for the taking during your first “mid-term.”
Then there are the seating charts! You get to glance briefly at them as you enter the lecture hall. There you are on the seating chart with your name and picture. You belong somewhere. Over there. Next to the cute blond girl with the tie-dyed t-shirt.
Like any graduate school, there are the visits from celebrities. Go see a television personality talk. It’s free. You can even ask this personality a question or two, if you screw up your courage and ask them something.
Everywhere you go, the lawyers are warm, cozy, and cuddly. They brag about how generous they are. You hear anecdotes about alumni, who are now actively employed in the legal profession. You are bathed in abundance. In fact, you never knew lawyers could be so nice.
Then it happens. You are cut out of their program. In the back of your mind, you knew this was possible, but you were convinced it wouldn’t happen to you. Some law schools cut up to 30% of their first-year students, all based on a brutal curve. Your work could even be satisfactory, but someone has to get that “C-." If there is anything unusual about your writing style or thought process, or probably even if you are more confident than the others and can memorize cases and rules better than the others, the professors will put your exam on the bottom of the stack. They have the power, after all, to find the new star lawyers for tomorrow and they intend to use it, not out of a sense of responsibility, but out of the little extra charge they get from the feeling of the power of a kingmaker.
You were certain that the people who were cut would be the people not ready for graduate school in the first place. You were certain that the people who were cut would be people not engaged in the whole spirit of the school, who sat quietly in the back row, and never went to parties. You were certain that if you raised your hand and answered questions correctly, or related a case efficiently and accurately when called upon, you were on the right path. But, alas you weren’t. And there are no comments from the teacher about what is wrong with your work. You are going to be cut from their program, and someone has to be cut, so just sit back and let yourself be that poor “stung” victim who has little else to do but squirm.
Then it dawns on you. You’ve been set up! You’ve been cheated.
I already have a PhD, so there’s no excuse about being ready for graduate studies. I raised my hand in class. I wrote things carefully and thoroughly. I’m a professional journalist with over 300 publications, after all. I have more experience than most of these law professors in writing. In fact, in dealing with family health matters and other financial matters, I’ve probably even been in court more than these professors. But to these lawyers, something isn’t quite right. Hm. Let’s give the “C-” to this guy.
All the good feeling being coddled by law school purges away as the first round of grades start trickling in. That’s when you can finally get the opportunity to look into the faces of these law professors and see them for what they are: blank and soulless. They have to be that way. They are not responsible for your demise, the system is. They are all just barnacles on a massive ship that is carrying them somewhere they are not even privy to. And didn’t these same law professors tell you repeatedly that it doesn’t matter who is right or wrong, you must be prepared to argue both sides of an issue?
You now visit the professors during their office hours with the purpose of going over the exams with them, but they have already developed a method to deal with you. If you show them mistakes they made in correcting things, they know precisely how to hem and haw. Some of them won’t even return the exams to you, but make you “check them out” like a library book--view them for a few days, but they must be returned. Don’t make a copy of the model answer either (sort of like tearing off that mattress label under penalty of law). And if your exam had multiple choice questions on it that were graded by computer, you’ll never even know what answers you answered incorrectly, because you’ll only get the written portion of your exam back.
Different professors have different styles of sitting down with the students: some snowball through the session, trying not to give you a moment to even think; others snarl at you (no joke about this); others roll up their sleeves and circumlocute until you are literally dizzy.
But if you are lucky to get a law professor who thinks he or she is intrepid enough to look you in the eye and take any punch you might throw, you’ll see just exactly where the tens of thousands of dollars you spent on this so-called “education” went. These intrepid law professors, who no doubt once intimidated you when you hadn’t yet got your lawyering sea legs, are little else than scared puppies working for a system that feeds and clothes them, but does not encourage or require them to either teach or participate in the grand dialogue that is the academic side of legal profession. That doesn’t mean they won’t teach or participate as academicians, but it does mean that when pressed, you’ll see that they haven’t mastered the intricacies of law that they pretended to clobber you over the head with during their lectures. They are lazy, in fact. They are all style, no substance. They are not even intellectuals.
Let me emphasize this one more time: the system is cheating you, not the law professors. These law professors know that they cannot possibly be the legal experts they are expected to be, who can peruse and read one hundred exams every semester and competently separate the legal wheat from the chaff. They can’t do this and keep up with new developments in the law because no one can.
That leaves this prestidigitation they call processing law students. Like the modeling agency mentioned earlier, law schools hope they can keep enough people satisfied to keep up appearances, while taking the money of the other poor victims. They hope the victims will suck it up and just leave their school quietly once they are academically disqualified. In other words, they are like any other bunco artist. The best stings are those too embarrassed to report their loss to the police.
At least this sting has a blog. He also has $36,000 in debt that a certain law school induced him to spend so that its law professors will have money to put braces on their children’s faces and make payments on their BMWs. He has to admit, on the other hand, that he did get free pizza and bagels now and then. He also got important lessons about, let’s face it, an evil and corrupt system.
If any of the model prospects “discovered" by the on-foot scout called the number on the business card he or she was handed, they would not be immediately recruited, but would receive information about this modeling agency’s school. In fact, 60 Minutes did an exposé on this scam, especially as it entailed underage teenagers who were recruited by scouts and then in turn begged their parents to attend the modeling schools, sometimes with tuitions that racked up quickly into the tens of thousands of dollars. Although the graduates of these schools completed their studies successfully, they never got work as models.
The bottom line? No one needs to go to school to be a model.
Here’s a leap, but one I intend to argue later: no one needs to go to school to be a lawyer either.
Whatever you think about free enterprise and caveat emptor, these modeling schools are still scams. They intentionally cheat people. They are businesses that live off of dreams they implant in their heads of their victims. They are businesses that suck money out of their victims and give them very little in return. They are businesses fully aware that they are going to take money (lots of money) from unsuspecting people and then close their doors tight to them. They are truly bunco artists.
But the best of bunco artists know that you can never sting the victim without finesse. You have to be classy. You have to make the victim relax and trust you. You have to dress sharp and grease the victim’s palm a little, if not a lot. Stroke their vanity. Speak fast. Get your mark giddy.
Welcome to law school. Law school is the ultimate bunco operation. And guess what? They know it!
If you’ve been through a law school’s orientation, you know how they operate. First they stroke your vanity: “congratulations on being accepted to our school; you are now one of us.” Law schools have their own halls of fame and traditions. These are deliberately and unrelentlessly instilled upon you before you even get to learn how to “IRAC” or fondly appreciate the writing style of Justice Benjamin Cardozo.
And never underestimate the power of food. They feed you! For free! Sumptuous orientation dinners. BBQs. Cocktail mixers. Boxes of pizza stacked all in a row, according to their ingredients. Boxes of bagels and coffee all free for the taking during your first “mid-term.”
Then there are the seating charts! You get to glance briefly at them as you enter the lecture hall. There you are on the seating chart with your name and picture. You belong somewhere. Over there. Next to the cute blond girl with the tie-dyed t-shirt.
Like any graduate school, there are the visits from celebrities. Go see a television personality talk. It’s free. You can even ask this personality a question or two, if you screw up your courage and ask them something.
Everywhere you go, the lawyers are warm, cozy, and cuddly. They brag about how generous they are. You hear anecdotes about alumni, who are now actively employed in the legal profession. You are bathed in abundance. In fact, you never knew lawyers could be so nice.
Then it happens. You are cut out of their program. In the back of your mind, you knew this was possible, but you were convinced it wouldn’t happen to you. Some law schools cut up to 30% of their first-year students, all based on a brutal curve. Your work could even be satisfactory, but someone has to get that “C-." If there is anything unusual about your writing style or thought process, or probably even if you are more confident than the others and can memorize cases and rules better than the others, the professors will put your exam on the bottom of the stack. They have the power, after all, to find the new star lawyers for tomorrow and they intend to use it, not out of a sense of responsibility, but out of the little extra charge they get from the feeling of the power of a kingmaker.
You were certain that the people who were cut would be the people not ready for graduate school in the first place. You were certain that the people who were cut would be people not engaged in the whole spirit of the school, who sat quietly in the back row, and never went to parties. You were certain that if you raised your hand and answered questions correctly, or related a case efficiently and accurately when called upon, you were on the right path. But, alas you weren’t. And there are no comments from the teacher about what is wrong with your work. You are going to be cut from their program, and someone has to be cut, so just sit back and let yourself be that poor “stung” victim who has little else to do but squirm.
Then it dawns on you. You’ve been set up! You’ve been cheated.
I already have a PhD, so there’s no excuse about being ready for graduate studies. I raised my hand in class. I wrote things carefully and thoroughly. I’m a professional journalist with over 300 publications, after all. I have more experience than most of these law professors in writing. In fact, in dealing with family health matters and other financial matters, I’ve probably even been in court more than these professors. But to these lawyers, something isn’t quite right. Hm. Let’s give the “C-” to this guy.
All the good feeling being coddled by law school purges away as the first round of grades start trickling in. That’s when you can finally get the opportunity to look into the faces of these law professors and see them for what they are: blank and soulless. They have to be that way. They are not responsible for your demise, the system is. They are all just barnacles on a massive ship that is carrying them somewhere they are not even privy to. And didn’t these same law professors tell you repeatedly that it doesn’t matter who is right or wrong, you must be prepared to argue both sides of an issue?
You now visit the professors during their office hours with the purpose of going over the exams with them, but they have already developed a method to deal with you. If you show them mistakes they made in correcting things, they know precisely how to hem and haw. Some of them won’t even return the exams to you, but make you “check them out” like a library book--view them for a few days, but they must be returned. Don’t make a copy of the model answer either (sort of like tearing off that mattress label under penalty of law). And if your exam had multiple choice questions on it that were graded by computer, you’ll never even know what answers you answered incorrectly, because you’ll only get the written portion of your exam back.
Different professors have different styles of sitting down with the students: some snowball through the session, trying not to give you a moment to even think; others snarl at you (no joke about this); others roll up their sleeves and circumlocute until you are literally dizzy.
But if you are lucky to get a law professor who thinks he or she is intrepid enough to look you in the eye and take any punch you might throw, you’ll see just exactly where the tens of thousands of dollars you spent on this so-called “education” went. These intrepid law professors, who no doubt once intimidated you when you hadn’t yet got your lawyering sea legs, are little else than scared puppies working for a system that feeds and clothes them, but does not encourage or require them to either teach or participate in the grand dialogue that is the academic side of legal profession. That doesn’t mean they won’t teach or participate as academicians, but it does mean that when pressed, you’ll see that they haven’t mastered the intricacies of law that they pretended to clobber you over the head with during their lectures. They are lazy, in fact. They are all style, no substance. They are not even intellectuals.
Let me emphasize this one more time: the system is cheating you, not the law professors. These law professors know that they cannot possibly be the legal experts they are expected to be, who can peruse and read one hundred exams every semester and competently separate the legal wheat from the chaff. They can’t do this and keep up with new developments in the law because no one can.
That leaves this prestidigitation they call processing law students. Like the modeling agency mentioned earlier, law schools hope they can keep enough people satisfied to keep up appearances, while taking the money of the other poor victims. They hope the victims will suck it up and just leave their school quietly once they are academically disqualified. In other words, they are like any other bunco artist. The best stings are those too embarrassed to report their loss to the police.
At least this sting has a blog. He also has $36,000 in debt that a certain law school induced him to spend so that its law professors will have money to put braces on their children’s faces and make payments on their BMWs. He has to admit, on the other hand, that he did get free pizza and bagels now and then. He also got important lessons about, let’s face it, an evil and corrupt system.
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