Open Letter to the New York State Bar Association

I didn’t intend to write anything about the new mandatory 50-hour pro bono requirement New York will impose on its bar applicants next year, figuring I had nothing new to add. However, I received an e-mail from the New York State Bar Association’s Office of the President, saying:

In his Law Day speech on Tuesday, Chief Judge Jonathan Lippman announced that beginning next year, people seeking admission to the bar in New York will be required to perform at least 50 hours of pro bono service at some point prior to their application. According to Chief Judge Lippman’s speech, this service can be performed during law school, or prior to the admission process. (Text of Lippman’s speech: http://www.courts.state.ny.us/whatsnew/Transcript-of-LawDay-Speech-May1-2012.pdf)

The New York State Bar Association has not yet seen any written version of this new requirement, but will follow the matter closely. In the meantime, we are interested in our members’ reactions and comments. Email us at probonocomments@nysba.org.

It appears the new requirement was hatched without the NYSBA’s knowledge, which surprises me. If I were to politic it, I’d reckon that the request for members’ reactions suggest the association is nonplussed by the announcement and doesn’t know how to proceed, so since it asked, I sent this e-mail with the appropriate subject line, “All Oblige and No Noblesse Makes Law a Dull Profession.” It gets a little sharp at the end, but that’s where the muse took me.

**********

Dear NYSBA,

Thank you for asking NYSBA members for their opinions about Chief Judge Jonathan Lippman’s announcement regarding the new mandatory 50-hour pro bono requirement applicants to the New York bar will have to meet before admission. This issue is important to me not just because I have friends in law school who might seek licensing in New York but because I research the cost and value of legal education in the United States on my blog, The Law School Tuition Bubble, and in my submissions to the Am Law Daily. Here are my thoughts.

Judge Lippman grounds the new pro bono requirement in a belief that holding a law license entails a “responsibility” (a word he uses five times) that demands a sacrifice on the lawyer’s part. For example, he opens his Law Day 2012 speech saying, “Those who are privileged to call ourselves lawyers have a special duty as the gatekeepers of justice to participate in preserving what we hold so dear.”

Unfortunately, as a lawyer of four years, I do not know what privileges Judge Lippman is referring to. He never lists them in his speech, and I will not waste my time looking for a “List of Lawyers’ Privileges” on the State Judiciary’s Web site, for I suspect there is none. Indeed, since I am currently licensed but not practicing, I barely see myself as a lawyer. I rarely refer to myself as one, and when people ask me what I do for a living, I tell them that I am a “writer,” a profession that does not come with any “privilege” I know of. Although I intend to renew my license this summer, there is a growing possibility that I will never use it again, though I believe I am more likely to than my peers.

Thus, from my standpoint a law license allows a person to represent people before a court. That is it. There is no other grand responsibility be it “pressing,” “special,” “social,” or “professional” as Judge Lippman qualifies it. Pro bono service should be done out of a lawyer’s magnanimity, not the requirements of bar authorities. I would take a different opinion if the law schools and the bar colluded to engineer a shortage of attorneys in New York to ensure stable practices for them. Were that the case, then I would easily be able to work as an attorney and collect economic rents along with my wages. In this circumstance, I would feel honor-bound to provide free legal services, and I would simultaneously argue that an artificial scarcity of lawyers is fundamentally unjust. (Ironically, Judge Lippman disagrees, for a mandatory pro bono requirement discharged only in New York will hamper out-state petitioners’ applications.)

However, there is no shortage of lawyers in New York. The State Department of Labor projects that between 2008 and 2018, 1,700 new lawyer jobs will open each year due to both growth and replacement. Meanwhile, the state’s 15 law schools graduated nearly 5,000 people in 2010, and there is no Shangri-La legal market in the United States for them to move to. Many will never practice law in any meaningful way.

Although Judge Lippman is correct that many poor people need legal services, one wonders why aspiring lawyers should be ordered to provide them. Bar applicants often lack experience as lawyers, and since they will mostly be providing their services through programs organized by their law schools, they will ultimately be paying wealthy institutions money to supervise their service. Given how much law school costs—especially in New York—there is a high probability that there will be no net social benefit from these programs: Law students will indenture themselves to the U.S. Department of Education to help the poor—something they can do more effectively by not going to law school.

At the same time, neither judicial authorities nor the ABA (i.e. those who are “privileged to call themselves lawyers”) has shown any interest in advocating eliminating the monumentally wasteful federal student loan program or reforming the law to enable the tens of thousands of lawyers who owe excessive debt on their degrees to reduce or discharge their loans in bankruptcy. Instead, these “gatekeepers of justice” quietly prefer to shift the problem onto future taxpayers. It is in this context that I find appeals to lawyers’ “special responsibility” to serve the poor galling. Consequently, I do not support the new pro bono requirement.

Thank you for considering my thoughts,

Matt Leichter, Esq.

New York Spared a 16th Law School, for Now

Emily Melas, Daniel O’Connor, and Nate Fleming, “Plans for law school tabled by BU officials,” in Pipe Dream (State University of New York (SUNY) Binghamton newspaper)

It appears SUNY Binghamton’s law school has gone wherever law schools go when they’re tabled indefinitely, like Wilkes-Barre in Pennsylvania.

“There are law schools right now who are not filling up their seats, there are graduates from law schools who aren’t getting jobs, and so the environment right now to found a new law school isn’t a particularly favorable one,” [Vice President for Academic Affairs Brian] Rose said.

Remember, it’s good to open law schools as long as it appears that law schools are doing well. Graduates’ long term outcomes aren’t to be considered. Okay, that’s not true; they do consider graduates’ long term outcomes but only in the most outrageously irresponsible manner conceived, such as Indiana Tech.

In order to create an accredited law school, the University took steps to gain approval from the New York State Division of the Budget, the SUNY Board of Trustees, the Board of Regents and the governor, as well as the American Bar Association. The University secured $3 million in state funding for the initial design and planning stages of the law school.

Please don’t say the $3 million has already been disbursed.

As to more law schools in New York … Query: What are the actual graduation plus nine-month outcomes for SUNY Buffalo and City University of New York law grads? What are their five-year career outcomes? Twenty-year outcomes? What about New York’s other 13 private law schools? The rest in the region? The J.D. plants in New England?

Also, since law degrees are very easy to find in the northeast, why should New York’s taxpayers (esp. the ones who already have to subsidize all the real estate speculators midstate and upstate who just got their property taxes capped) subsidize training for something they can import from elsewhere? Or worse, subsidize training that can be exported to different states?

Public legal education may be cheap, but is it necessary?

NYSBA Journal Article Relies on Several Logical Fallacies to ‘Connect the Dots’ on Legal Education’s Outlook

Gary Munneke, “Race to the Finish Line: Legal Education, Jobs and the Stuff dreams are made of,” New York State Bar Association Journal

Citing his 40-years’ observation of the legal job market, Pace Law School professor Gary Munneke writes, “So when I say the writers and bloggers in the legal press have missed the mark in their criticism of legal education, it is not without recognizing that there is some merit in what they have to say.” (11) Professor Munneke is a frequent contributor to the NYSBA Journal. I’ve liked some of his past articles, particularly one about the end of general practitioners last year. He’s only touched on legal education briefly, until this month’s Journal. It’s not good, and because the article isn’t on line yet (check here later), I’ll quote it extensively. He writes:

“It is true that the recession of 2008-2009 seriously undermined the job market for both new and experienced lawyers. It is also true that legal education is expensive, and many students pay for it through loans that have to be repaid after graduation. And it is well documented that some law schools misstated employment and other statistics in the tight, competitive job market of recent years. But connecting the dots in this case does not lead to a conclusion that our system of legal education is bankrupt or that law school is not an excellent career choice for many students. This article will attempt to re-connect the dots in a way that more accurately reflects contemporary legal education and the job market for lawyers.” (11)

At least Munneke leaves us with no questions as to where he stands on the issues. Instead of giving us hard evidence, though, (who exactly is saying that the system is “bankrupt,” aside from scambloggers? And what does this mean?) he essentially opens by telling us that “everyone” has known about legal education’s problems: high tuition and few high-paying jobs, yet this is a non-sequitur. Our focus is the law degree’s value, not whether criticisms are novel. Moreover, it’s not just “some law schools” that misstate their employment data. Anyone who even skims Law School Transparency’s Winter 2012 Transparency Index Report can see the embarrassing results, law school by law school. Worse, in 2011 it also came to light that at least two schools, Villanova and Illinois, had been defrauding the ABA for years with inaccurate incoming student data. Munneke whitewashes these problems.

Munneke’s article then confuses readers. Beneath a header titled, “The Good News,” he writes:

“Signs abound that the market for legal services is picking up, in concert with the general economy … It is not likely, however, that we will return to those halcyon days before 2008.” (12)

This, much less the subsequent paragraphs predicting the rise of staff attorneys, pro se litigants, and online non-lawyers, does not sound like “good news” for the median 2L in most law schools.

“With respect to graduates who go to work for small firms, government agencies, not-for-profits and other organizations, anecdotal evidence suggests that they do pay their bills and repay their loans. Chicken Littles who cry that it cannot be done are simply wrong. Thousands of law school graduates have been following this path for years. It may not be as easy to get by when you are making $60,000 compared to $160,000, but somehow you do it, and you survive.” (13)

Is this satire?

The problem is that like most law students, Munneke believes the $60,000 jobs are there for graduates if they want them, unless they decide to make the noble sacrifice and choose to work for $30,000 helping the destitute. On the one hand, Munneke thinks the economy will create enough law-ish jobs for everyone to pay down their debt, but on the other he says that things won’t be as good as they used to be. This is the “good news.” I can only explain this dissonance by assuming Munneke is committing the lawyer/J.D. equivocation fallacy. Sure, people in small firms, government agencies, and nonprofits have law degrees, but that’s not what happens to everyone who completes law school. For example, how many Pace grads over the last decade have defaulted on their loans?

If you knew where this was headed, you’re right. Munneke’s next point: the unsinkable, versatile juris doctor.

“[T]hose who claim that there are not enough legal jobs to go around fail to understand that the job market for lawyers is incredibly elastic, because a law degree is incredibly malleable and flexible.” (13)

Munneke leans on the findings of a 40-year-old ABA task force study that researched the “oversupply of lawyers” and determined that if law graduates couldn’t find work in law firms, they went to work in non-legal jobs. This is another straw man argument. Reformers are not committing the Luddite fallacy, arguing that law grads who can’t find work as lawyers never work a day in their lives again. But have heart, for Munneke anticipates this:

“[A] legal education provides training that will give you an advantage in the job market – both in getting the job and performing the job. What the [ABA] Task Force discovered in the 1970s remains true today.” (14)

He then provides an endnote to a book he coauthored, Nonlegal Careers for Lawyers.

Now, I’m not criticizing Munneke for citing his book in the endnote or even writing one on the topic. I’m sure plenty of lawyers would like to go into non-legal careers, and it gives them good advice. Rather, I’m going to point out two things. One, I have yet to see anyone quantify the “advantage in the job market” that a law degree provides. Even reputable organizations researching the topic make the shocking methodological error of equivocating holding a juris doctor and working as a lawyer, such as the Pew Center’s “Is College Worth It,” and Georgetown’s “The College Payoff.” Any skills taught in law school can be learned in a solid undergraduate program—and should be. Two, many lawyers seeking alternative careers are pretty intelligent to begin with. I seriously doubt law school (much less college) found them as lazy dolts and forged them into precision workers. This is a post hoc fallacy: you went to law school, then you became a good worker, therefore law school made you a good worker. At this point, I’ll add a line from the BLS’ Occupational Outlook Handbook that I typically underemphasize:

“As in the past, some graduates may have to accept positions outside of their field of interest or for which they feel overqualified.”

Notice that “overqualification” here is based on a “feeling,” not on an empirical observation that the graduate’s qualifications exceed the employer’s demands. This is the heart of the rebuttal to the versatile juris doctor: it’s unfalsifiable. Law school ends up working out for everyone regardless of the outcomes, be they monetary or intangible, particularly higher workplace autonomy. Yet, it’s one thing if people who can’t find lawyer jobs earn some premium for their law degree elsewhere, but it’s another if the degree provides no benefit or a detriment. The BLS is open to this possibility; Munneke is not. Ultimately, he provides no reason for us to believe that making diligent workers requires $120,000 in tuition debt, plus living costs and forgone income.

Which leads me to my favored elephant: Munneke doesn’t discuss the federal student loan program’s impact on how legal education is financed. Sure, he says law schools should be more “cost-effective,” but throughout his article, he implies that tuition increases are accidental. No discussion on the Direct Loan Program, bankruptcy nondischargeability, or any serious inquiry as to why law school needs to be expensive. It just is. He’s perfectly content to let taxpayers loan unlimited sums to law students like it’s Monopoly money, no matter what their future incomes are or how many loans on IBR will have to be canceled 25 years after graduation. Again, this is a straw man, or well, an invisible straw man argument. For example, in 2011 Brian Tamanaha wrote on the intersection between federal education policy and legal education, I’ve also researched it as well, but Munneke declines to directly engage these claims.

“There is no evidence that people will stop coming to law school, nor is there evidence that they should.” (14)

On the contrary, we’re seeing a decline in applications and LSAT takers, and there’s good reason to believe that marginal law schools will see shortfalls in desired applicants.

(I’m assuming February 2012 LSATs are the same as 2011, so this is conservative.)

And there’s plenty of evidence, which Munneke characterizes as “anecdotal” in the beginning of his article, that a law degree is not a good investment. For example, law students going on to IBR would suggest law degrees aren’t self-sustaining. Also, Herwig Schlunk recently redid his 2009 calculations and found that everyone loses money on law school. University of Louisville dean Jim Chen conducted similar calculations and their implications lead to the same conclusion. Batting these efforts away as “anecdotal” reflects either an unwillingness to research contrary evidence or a deliberate attempt at evading them.

Yes, it’s true that law schools didn’t cause the housing bust and overall wage stagnation in America, but Munneke’s attempt at “reconnecting the dots” on legal education employs so many logical fallacies that I think it’s worthwhile to list them for the sake of practice:

  • Straw men
    • Who is claiming legal education is “bankrupt”? What do they mean by this? Is this a commonly held view?
    • Who is saying that graduates will be permanently unemployed? Is this a commonly held view?
  • Argument from authority
    • Munneke’s experience over 40 years, while interesting, is not evidence of legal education’s value.
  • Hasty generalization
    • Munneke’s experience of graduating during a recession in 1973 is not comparable to those graduating in 2009 due to differing economic factors and the nondischargeability of student loan debt.
  • Non-sequitur
    • “‘Everyone’ has known about legal education has problems, therefore critics are saying nothing new.” That doesn’t mean they’re wrong.
  • Post hoc ergo propter hoc
    • “Lawyers are good workers, therefore law school makes people good workers.”
  • (Hidden) Argument from incredulity
    • “Knowledge and skills picked up in law school can’t possibly be learned elsewhere for cheaper.”
  • Unfalsifiable claim
    • “The juris doctor is so versatile that everyone who obtains one still finds gainful employment, even outside the legal profession.”
  • Composition fallacy:
    • “There’s no evidence that people will stop going to law school.” There were fewer applicants in 2009 than we would’ve expected, and now there’s a decline, so won’t some law schools be more adversely by the applicant shortfall than others?
  • Invisible straw men (ignoring contrary evidence)
    • What about reformers who criticize the Direct Loan Program?
    • What about reformers who are looking at the root cause of tuition increases?
    • What those asking about the responsibility the profession has to ensuring tax dollars are well-spent on legal education?
    • What about those who point out that the number of people applying to law school is dropping?
    • What about those who calculate that law school requires an income-to-debt ratio of 2.0 or higher?

Then there are a few borderline cases.

  • Equivocation
    • “Lawyers can be found in good jobs, therefore all law graduates have access to good jobs.”
  • Misleading statement
    • “Some law schools are misstating their employment data.”
  • Refusing to research contrary information
    • How many law grads have defaulted on their loans?
    • How many require family help to pay them?
    • How many are on Income-Based Repayment or Income Contingent Repayment?
    • What are their income-to-debt ratios?
    • How many law grads believe they are underutilized in their work?

I count nine (really eight) classes of clear logical fallacies in Munneke’s article, along with three classes that are judgment calls, and that’s only from excerpts gleaned from reading the article twice in one evening without taking detailed notes. I also didn’t need a legal education to see them (okay, my grad degree did, like, 25 percent of the work). Gary Munneke did not connect the dots on what’s really going on in legal education and disserved NYSBA Journal readers as a consequence.

Update on News in the Law School World

There were a bunch of articles I couldn’t get around to this past week, and they’re worth consolidating into one post.

(1)  Law School Lawsuits

New York Law School fights class-action suit over job rates,” Thompson Reuters.

NYLS’s attorney states:

“The allegations are not only baseless, but also belied by the plaintiffs’ own complaint, which demonstrates this case has nothing to do with New York Law School and everything to do with a crusade against the entire law school industry.”

The graduates’ attorney says:

“The fact remains that when our clients paid the annual tuition of over $40,000 to attend New York Law School, they did so based on New York Law School’s misleading representation that they had an over 90 percent chance of getting a job, and that those jobs paid certain salaries,” [Jesse] Strauss said. “That representation is demonstrably false.”

We’ll see how this plays out.

(2)  University of Baltimore Law School

Karen Sloan, “Following dean’s resignation, Baltimore relents on law school money,” National Law Journal.

Debra Cassens Weiss, “U of Baltimore Law School to Retain More Money After Outgoing Dean’s Protest,” ABA Journal.

Sam Favate, “Law Schools Recover Lost Cash, As Grads Seek Tuition Refunds,” Wall Street Journal.

A few months ago, U Baltimore asked Phillip Closius to resign after he blew the whistle on the university for allegedly over-taxing the law school to pay for other university programs.

“Under the new funding agreement, an estimated 90% of the funds generated by the law school will return to it, [Baltimore Law Professor] Meyerson said. The arrangement ensures that law student tuition will not increase next year. Students were informed by e-mail that the administration would try to minimize future tuition increases.”

A year without tuition increases is good, but whether they will occur is indisputable.

(3)  Irate Senators

Coburn, Boxer Call for Department of Education to Examine Questions of Law School Transparency,” Office of Senator Barbara Boxer.

Senators Barbara Boxer’s and Tom Coburn’s joint press release opens with, “To help better inform Congress as it prepares to reform the Higher Education Act…” Reform the HEA? What’s on the table here? This is the first I’ve heard of planned HEA reform. Returning to the lawsuits:

The New York Times found the same school [NYLS] is ranked in the bottom third of all law schools in the country and has tuition and fees set at $47,800 a year but reported to prospective students median starting salaries rivaling graduates of the best schools in the nation “even though most of its graduates, in fact, find work at less than half that amount.”

Ouch. Even if NYLS wins its motion to dismiss, it’ll still have to convince legislators that it’s not doing anything wrong.

Other reports question whether or not law schools are properly disclosing their graduation rates to prospective students.

Graduation rates? I’ve never heard of law schools concealing their graduation rates.

The senators then ask the Department of Education to provide them with the following things:

1. The current enrollments, as well as the historical growth of enrollments, at American law schools – in the aggregate, and also by sector (i.e., private, public, for-profit).

2. Current tuition and fee rates, as well as the historical growth of tuition and fees, at American law schools – in the aggregate, and also by sector (i.e., private, public, for-profit).

3. The percentage of law school revenue generated that is retained to administer legal education, operate law school facilities, and the percentage and dollar amount used for other, non-legal educational purposes by the broader university system. If possible, please provide specific examples of what activities and expenses law school revenues are being used to support if such revenue does not support legal education directly.

4. The amount of federal and private educational loan debt legal students carried upon graduation, again in the aggregate and across sectors.

5. The current bar passage rates and graduation rates of students at American law schools, again in the aggregate and across sectors.

6. The job placement rates of American law school graduates; indicating whether such jobs are full- or part-time positions, whether they require a law degree, and whether they were maintained a year after employment.

Enrollments and tuition are publicly available, though it may require dumpster-diving into paper editions of the Official Guide to go back ten years (1. & 2.). Revenue will be in universities’ hands (3.). I’ll publish federal and private debt data very soon (4.). Graduation and bar passage rates are mostly available in the Official Guide. I use “mostly” because bar exam data are published in calendar years while graduation rates are in school years, and not all graduates immediately take the bar exam (5.). Job placement rates? Good luck prying that from the law schools or NALP. The primary difficulty with legal education reform via self-reported employment data by law school is that it’s trying to gather the highest-hanging fruit to reform the system when BLS data already tell us there’s a structural overproduction of juris doctors (6.).

(4)  Can law schools save themselves?

Kyle McEntee & Patrick J. Lynch (“LST”), “Do law schools defraud students?New York Post.

Brian Tamanaha, “The Depth and Breadth of Misleading Employment Numbers by Law Schools (And How to Solve It),” Balkinization.

These two pieces bring up some subtle points worth my editorializing. First, the LST editorial refers to prospective law students as “consumers,” a term I dislike not because it hints of mindless consumerism, but because it tries to take a neutral view of the Direct Loan Program. For instance:

This year, ABA-approved law schools will get at least $4 billion in taxpayer support, thanks to the government’s decision in 2010 to directly lend to students. But when graduates can’t find jobs that allow full loan repayment, they either default or sign up for hardship programs. The taxpayers are on the hook for the lost interest income and unpaid loan principal.

So isn’t the Direct Loan Program the bigger problem rather than law school employment data? It’s not the law schools’ fault that the bank is knowingly loaning money to students whom it knows will not work as attorneys according to its own employment projections. Maybe the government shouldn’t nationalize credit markets and then guarantee the loans to itself.

There are a few more points I disagreed with in the editorial, but I didn’t start this blog to criticize transparency advocates when they’re not the ones profiting from the current system. The important line, though, is towards the end:

Whether tuition drops because consumers finally receive the real employment statistics, or because the government stops lending essentially unlimited amounts of money to students, schools will need to either reimagine the kind of education they provide or close down.

Okay, I give LST credit for putting Direct Loan reform on the table, but there are two false dilemmas in this passage. One, the choice is not between transparency and student debt reform. Both are necessary. Two, LST is offering the legal academy a Biblical ultimatum: Reform or close, which assumes there’s a face-saving option for law schools. There is none. Law schools will close, regardless of what reforms they choose to implement and especially if they essentially admit to the public that they are nonperforming institutions wasting Direct Loan dollars, or worse, wasting Direct Loan dollars and redirecting them to other university programs.

Contrast LST’s internal reform belief with Brian Tamanaha’s suggested transparency proposal:

The law school funny number problem is out of control. And it won’t stop on its own. Anyone who thinks the fix will come from the current ABA efforts to provide greater transparency is deluded.

There is only one possible solution in the short run. The deans at the top 20 law schools must sit together in a room, agree on the standards, and personally guarantee the veracity of what they report. All the other law schools will follow (or be embarrassed by continuing to post ridiculously implausible salary numbers). This must be done soon, before the next cycle of numbers comes around.

Tamanaha’s solution is realistic, but it comes with two costs. One, he knows full well that the transparency trickle-down effect will wipe out the unranked law schools because no one will take U.S. News’s rankings seriously if the Ivy League law schools all suddenly dropped into the middle hundred. Second, look at who’s in charge here. The most reputable law schools potentially have more power than the ABA Section of Legal Education, which is nominally superior to them. It would be quite a rebuke of the Section indeed.

Tamanaha’s proposal, though, is the limit of what some law schools can do to save themselves. Mandating or shaming law schools into disclosing that their graduates have poor career prospects is all but asking them to commit suicide as well as potentially open themselves up to more lawsuits.

A Hypothetical Class of 2014 Law Student’s Journey into Debt

[UPDATE: Unpaid interest on IBR does not capitalize onto loan principal. Calculations below are, regrettably, mistaken.]

Recently, Inside the Law School Scam’s LawProf discussed the amount of law school debt a student may expect to take on and provided NALP figures of starting salaries as a comparison. LawProf used some research I provided, and I’m grateful for his linkback to the LSTB. Unfortunately, some of what I sent him was inaccurate due to my own error (esp. how much Stafford Loan borrowing is possible), so I’ve decided to create a detailed hypothetical of law school loan repayment based on current, applicable law. To that end, I taught myself the dark art of loan amortization—something they should teach in junior high school, not that I blame mine. This post will show us how much law school debt a class of 2014 student might reasonably take on given a few assumptions. They are:

  1. No undergraduate debt (ha!)
  2. No scholarships
  3. No savings, job, income, work-study, family connections, etc.
  4. Full-time status maintained throughout law school and graduation within three years
  5. Eligibility for all relevant loans
  6. Attendance at New York Law School. Why? Not to beat up on it, but because its tuition guarantee program removes the tuition increase variable from the calculation. Indeed, I freely admit that NYLS’s unusually high price tag and high cost of living skew the results towards significantly more debt than a typical 1L will start taking on this year. That said, accuracy is important to this project, and as you’ll soon see, the interest and repayment rates are so high that it doesn’t really matter.
  7. Interest accrues monthly, which in reality is not true. Interest on student loans actually accrues daily, but it won’t cause too much inaccuracy in the hypothetical.
  8. …And every other common sense assumption required to make this work.

Law students are eligible for three types of loans: Subsidized Stafford Loans, Unsubsidized Stafford Loans, and Grad PLUS Loans (for professional students). Subsidized Stafford Loans are limited to $8,500 per year, though this will change next year when provisions of the Debt Ceiling Bill go into effect and make law students ineligible for Subsidized Stafford Loans. Unsubsidized Stafford Loans cover an additional $12,000 of tuition, up to $20,500 total. Both types of loans have an annual interest rate of 6.8% and a fee of 1.0%, which is taken out of the loan at the time of origination. Interest does not accrue on Subsidized Stafford Loans while the student is enrolled at least part-time. Unsubsidized Stafford Loans accrue interest immediately. Both loans can be deferred until graduation, after which they are eligible for a six-month grace period during which interest accrues but payments are not demanded. The grace period means that from the time of the last set of disbursements (we’ll assume in August before the 3L year begins and graduation is in May) until repayment first occurs, fifteen months will transpire. This means the grace period ends in the November after graduation, and the first payment will be due in December.

Grad PLUS loans are similar to Unsubsidized Stafford Loans except their annual interest rate is 7.9% and the origination fee is 4.0%. Grad PLUS loans now make it possible for law students to finance not only their full law school tuition minus available Stafford Loans but also to provide for living expenses. The government’s rationale behind this is that professional education is rigorous, so students shouldn’t have to work outside of class. Its heart is in the right place but the results are grotesque.

Because there’s a limit to the amount one can borrow in Stafford Loans each year ($20,500), we’ll go through three scenarios of Grad PLUS Loan borrowing based on how much the student borrows for living expenses: living alone, with family, and not using Grad PLUS loans for living expenses at all. I’ll also include repayment plans except the graduated repayment plan (10 years) and the extended graduate repayment plan (25 years) because I have no idea how to calculate them. You can use ED’s website for that if you are interested. Student debtors are ineligible for extended repayment plans (fixed or graduated) if the principal on their debts is below $30,000, which will pose a problem for the Subsidized Stafford Loans in our example.

I will also give two examples for each scenario placing our graduate on Income-Based Repayment (IBR). IBR calculates a monthly payment based on gross income, family size, total loan principal, their average interest rate, and cost of living. I do not know when the repayment rate is calculated or recalculated each year. After 25 years, the government cancels the loans, leaving the student debtor to pay income tax on the forgiven sum. Thanks to the Health Care and Education Reconciliation Act of 2010, new borrowers in 2014 will have their loans forgiven after only 20 years. I interpret this to mean that people who begin borrowing in 2014 will have the shorter IBR time frame. The government covers interest on subsidized loans for the first three years of repayment if the graduate’s monthly repayment rate does not. I am fairly sure this applies to three years of payments and excludes the grace period. While the monthly payment is partly determined by the average interest rate of all the loans, I believe the payments are distributed among the loans in proportion to the loans’ share of the total remaining principal, and interest on the loans accrues according to their listed rates, not the average.

In the first sub-scenario, our hero will live alone, earn the mythical Biglaw $160,000 starting salary at month zero, and live within the continental United States for cost of living purposes. In the second sub-scenario, our hero will be married to a spouse with no IBR-eligible debt, file jointly, have two children, earn a combined gross income of $70,000 to start, and also live within the continental United States. Yes, I’m assuming the kids will live with their parents for at least 25 years (unless our hero had some combination of two kids and parents living under the same roof over that time period). It won’t save them a whole lot of money, but it is a perverse incentive to keep kids at home just to have cheaper IBR payments.

I will not use IBR’s complementary program, Income Contingent Repayment, which cancels loans after 10 years for graduates who work in the public interest (though income tax on the forgiveness isn’t required). In normal economic times, incomes grow, so I will give our hero a two percent raise every year.

Here’s an outline of what happens to our hero.

I. Grad PLUS Goes to Living Expenses (Alone)

A. Standard Repayment Plan: 10 Years

B. Extended Repayment Plan (Fixed): 25 Years

C. IBR

1. Biglaw ($160,000)

2. Middle Income ($70,000)

II. Grad PLUS Goes to Living Expenses (w/ Family)

A. Standard Repayment Plan: 10 Years

B. Extended Repayment Plan (Fixed): 25 Years

C. IBR

1. Biglaw ($160,000)

2. Middle Income ($70,000)

III. Grad PLUS Goes to Tuition Only

A. Standard Repayment Plan: 10 Years

B. Extended Repayment Plan (Fixed): 25 Years

C. IBR

1. Biglaw ($160,000)

2. Middle Income ($70,000)

IV. Conclusion

I. Grad PLUS Goes to Living Expenses (Alone)

TUITION YEAR TOTAL SUB’D STAFFORD LOANS TOTAL UNSUB’D STAFFORD LOANS GRAD PLUS (TUITION) GRAD PLUS (LIVING EXPENSES) TOTAL GRAD PLUS LOANS (w/FEES)
$47,800 1L $8,415.00 $11,880.00 $27,505.00 $23,323.00 $48,794.88
$47,800 2L $8,415.00 $32,982.84 $27,505.00 >$23,323.00 >$101,444.56
$47,800 3L $8,415.00 $55,520.67 $27,505.00 >$23,323.00 >$158,253.56
GRACE $8,705.19 $60,431.80 >$174,622.22

*****

YEAR TOTAL
1L $69,089.88
2L >$142,842.40
3L >$222,189.23
GRACE >$243,759.22

A. Standard Repayment Plan: 10 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $695.45 $23,022.40 $83,454.20
GRAD PLUS $174,622.22 7.9% $2,109.43 $78,510.04 $253,132.26
GRAND TOTAL → $243,759.22 $2,905.06 $104,848.78 $348,608.00

B. Extended Repayment Plan (Fixed): 25 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $419.44 $65,400.42 $125,832.23
GRAD PLUS $174,622.22 7.9% $1,336.22 $226,239.37 $400,861.59
GRAND TOTAL → $243,759.22 $1,855.84 $294,956.14 $538,715.36

C. IBR

1. Biglaw ($160,000)

Here, our hero’s income grows to the point that after nine years of IBR, he or she is kicked into a standard repayment plan. Moreover, the original minimum payment, $1,795, covers the interest on the Subsidized Stafford Loans for the first three years, meaning our hero does not benefit from the government’s IBR interest subsidy.

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST TOTAL PAID
$243,759.22 7.35% $1,795.00 – $2,173.03 $233,502.37 $229,099.26 $472,858.47

2. Middle Income ($70,000)

In this scenario, our hero’s family’s income never grows to the point of kicking them off IBR. Consequently, the government saves $1,212.26 by subsidizing the interest on Subsidized Stafford Loan for three years. Nevertheless, the Department of Education stands to lose more than a million dollars by financing our hero’s legal education and living expenses. The term for this? “Negative amortization.”

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST PAID TOTAL PAID
$243,759.22 7.35% $455 – $995 $115,170.51 $211,380.00 $211,380.00

*****

AMOUNT OF INTEREST SUBSIDIZED REMAINING SUB’D STAFFORD LOAN PRINCIPAL (REMAINING SUB’D STAFFORD LOAN PRINCIPAL W/O SUBSIDY) GOV’T SAVINGS DUE TO 3-YEAR INTEREST SUBSIDY FORGIVEN PRINCIPAL AFTER 25 YEARS TOTAL GOVERNMENT LOSSES
$1,212.26 $27,074.69 ($31,174.55) $2,887.60 $1,063,628.12 $1,064,840.39

II. Grad PLUS Goes to Living Expenses (w/ Family)

TUITION YEAR TOTAL SUB’D STAFFORD LOANS TOTAL UNSUB’D STAFFORD LOANS GRAD PLUS (TUITION) GRAD PLUS (LIVING EXPENSES) TOTAL GRAD PLUS LOANS (w/FEES)
$47,800 1L $8,415.00 $11,880.00 $27,505.00 $10,474.00 $36,459.84
$47,800 2L $8,415.00 $32,982.84 $27,505.00 >$10,474.00 >$75,800.01
$47,800 3L $8,415.00 $55,520.67 $27,505.00 >$10,474.00 >$118,248.05
GRACE $8,705.19 $60,431.80 >$130,478.82

*****

YEAR TOTAL
1L $56,754.84
2L >$117,197.85
3L >$182,183.72
GRACE >$199,615.81

A. Standard Repayment Plan: 10 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $695.45 $23,022.40 $83,454.20
GRAD PLUS $130,478.82 7.9% $1,576.18 $58,663.15 $189,141.96
GRAND TOTAL → $199,615.81 $2,371.81 $85,001.90 $284,617.70

B. Extended Repayment Plan (Fixed): 25 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $419.44 $65,400.42 $125,832.23
GRAD PLUS $130,478.82 7.9% $998.43 $169,048.72 $299,527.53
GRAND TOTAL → $199,615.81 $1,518.05 $437,381.30 $237,765.49

C. IBR

1. Biglaw ($160,000)

Same results as I.C.1., except this time, our hero’s lower starting debt level means that he or she will be kicked off IBR after only four years.

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST TOTAL PAID
$199,615.81 7.35% $1,795.00 – $1,973.63 $211,299.27 $126,412.61 $326,028.42

2. Middle Income ($70,000)

Readers will note that our hero pays the exact same amount living with family as living alone, though the government still loses three quarters of a million dollars.

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST PAID TOTAL PAID
$199,615.81 7.35% $455 – $995 $115,170.51 $211,380.00 $211,380.00

*****

AMOUNT OF INTEREST SUBSIDIZED REMAINING SUB’D STAFFORD LOAN PRINCIPAL (REMAINING SUB’D STAFFORD LOAN PRINCIPAL W/O SUBSIDY) GOV’T SAVINGS DUE TO 3-YEAR INTEREST SUBSIDY FORGIVEN PRINCIPAL AFTER 25 YEARS TOTAL GOVERNMENT LOSSES
$1,081.86 $24,168.33 ($27,445.98) $2,195.79 $753,381.79 $754,463.64

III. Grad PLUS Goes to Tuition Only

TUITION YEAR TOTAL SUB’D STAFFORD LOANS TOTAL UNSUB’D STAFFORD LOANS GRAD PLUS (TUITION) GRAD PLUS (LIVING EXPENSES) TOTAL GRAD PLUS LOANS (w/FEES)
$47,800 1L $8,415.00 $11,880.00 $27,505.00 $0.00 $28,651.04
$47,800 2L $8,415.00 $32,982.84 $27,505.00 $0.00 >$59,565.52
$47,800 3L $8,415.00 $55,520.67 $27,505.00 $0.00 >$92,922.23
GRACE $8,705.19 $60,431.80 >$102,533.47

*****

YEAR TOTAL
1L $48,946.04
2L >$100,963.36
3L >$156,857.91
GRACE >$171,670.47

A. Standard Repayment Plan: 10 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $695.45 $23,022.40 $83,454.20
GRAD PLUS $102,533.47 7.9% $1,238.60 $46,099.02 $148,632.49
GRAND TOTAL → $171,640.47 $2,034.23 $72,437.77 $244,108.23

B. Extended Repayment Plan (Fixed): 25 Years

LOAN PRINCIPAL INTEREST RATE MONTHLY PAYMENT TOTAL INTEREST TOTAL PAID
SUB’D STAFFORD $8,705.19 6.8% $100.18 $3,316.35 $12,021.54
UNSUB’D STAFFORD $60,431.80 6.8% $419.44 $65,400.42 $125,823.23
GRAD PLUS $102,533.47 7.9% $784.59 $132,843.24 $235,376.71
GRAND TOTAL → $171,640.47 $1,304.21 $201,560.01 $373,230.48

C. IBR

1. Biglaw ($160,000)

By using Grad PLUS loans for tuition only, our hero is kicked off IBR after only two years.

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST TOTAL PAID
$171,640.47 7.35% $1,795.00 – $1,807.50 $203,020.87 $88,649.12 $260,319.58

2. Middle Income ($70,000)

Readers should take note of this scenario because in better economic times and less severe law graduate oversupply, it would probably be the one most similar to graduates from $45k/year law schools on IBR. Again, the graduate pays the exact same amount as if he or she had borrowed the full amount of Grad PLUS Loans. Despite our law graduate’s frugality, the Department of Education will lose more than half a million dollars after 25 years.

PRINCIPAL AVERAGE INTEREST RATE MONTHLY PAYMENT END INCOME TOTAL INTEREST PAID TOTAL PAID
$171,640.47 7.35% $455 – $995 $115,170.51 $211,380.00 $211,380.00

*****

AMOUNT OF INTEREST SUBSIDIZED REMAINING SUB’D STAFFORD LOAN PRINCIPAL (REMAINING SUB’D STAFFORD LOAN PRINCIPAL W/O SUBSIDY) GOV’T SAVINGS DUE TO 3-YEAR INTEREST SUBSIDY FORGIVEN PRINCIPAL AFTER 25 YEARS TOTAL GOVERNMENT LOSSES
$962.80 $21,441.58  ($24,049.84) $1,645.45 $558,587.96 $559,550.76

IV. Conclusion

I have five points:

(1) Much rending of garments and gnashing of teeth accompanies the notion of 21 year-olds taking on law school debts without understanding their implications. Although law students have only one set of circumstances on which to base their repayment decisions rather than the twelve the hypothetical depicted, I found this particular project unusually difficult, and this comes from a guy who enjoyed doing integration by parts problems in his high school calculus class. In other words, calculating loan repayment plans, total interest, types of loans available, interest on loans in school or after a grace period, subsidized interest for three years on IBR, projected income increases, etc. to within one month of repayment is hard even for adults who don’t blush at math and spreadsheets. At least with cars or mortgages, borrowers already have an income and know what they can afford (to say nothing of at least some bankruptcy protections). However, as I’ve written on several occasions in the past, even if law graduates were required to be implanted with graduate employment tracking chips in the bases of their skulls to receive their diplomas, there is still almost no way a prospective law student can know ex ante what his or her income will be starting out, much less over the course of a law career—except that it’s certain to be far less than what’s necessary to cover a monthly payment on a Standard Repayment Plan. Additionally, the fact that Congress can and does capriciously change the terms of student loans throws a wrench into current students’ borrowing plans.

(2) There is nothing remotely standard about the Standard Repayment Plan. In all three scenarios, our hero was paying at least $2,000 per month. That’s $24,000 per year and would require at least $160,000 in income to constitute only 15% of his or her gross income. Congress and the Department of Education must know that most law graduates do not make this kind of money, yet they allow the lending to go on. How can university administrators not know either? It shocks my conscience. Even without using Grad PLUS loans for living expenses, an NYLS 1L can expect to cough up $1,304.21 each month (15% of a $104,338.40 salary) for 25 years on an extended repayment plan, which at least will be somewhat eroded with 25 years of inflation.

(3) It occurred to me that Grad PLUS loans are the government’s way of trying to help grad and professional students avoid taking on private loans. The changes to the bankruptcy law made private student loans death traps in 2005, and Grad PLUS loans came into being soon afterwards. It may’ve been part of the BAPCPA too, but it only just now occurred to me. As you can see with green blobs on the graphs, Grad PLUS loans were by far the largest component of law school debt. Not as bad as private loans, but certainly not as good as the lower interest Staffords.

(4) The most surprising thing I found is that unless a law graduate gets a Biglaw starting salary—which I believe will soon deflate rapidly—how much they borrow ultimately won’t matter. Once a fledging lawyer’s initial salary fails to produce a payment that covers the monthly interest, he or she might as well have borrowed as much money from the government as possible and spent it. That’s not to say I condone it, and I absolutely discourage people from taking on this kind of debt just because IBR exists. Not only does Congress flip-flop on student lending laws, but borrowing that kind of money is simply irresponsible for those who know better. The moral hazard IBR creates is even worse than I imagined.

(5) Speaking of which, don’t get me wrong, IBR is far better than loan repayment without it. Although, once a lawyer fails to make Biglaw or a Biglaw salary, the government has already made a bad loan. What does all this mean exactly? Not that the government literally spends an extra million dollars on high-cost law degrees when it cancels their debts but that it could’ve spent that money on something more practical. Under the current system, the Department of Education stands to lose roughly one billion dollars per 1,000 to 2,000 law students who attend law schools charging $45,000 in tuition per graduating class when the loans are canceled. As I wrote at the beginning, using NYLS’s tuition guarantee program does mean using a law school whose tuition is unusually high, just outside the first standard deviation of average private law school tuition, so in hindsight it’s not the best case for broad analysis, even if the purpose of the hypothetical is accuracy. However, the tuition bubble pauses for no one, even when incoming enrollments are dropping, and today’s second standard deviation will be the average in four years according to my projections. As a footnote, law schools charging what is now below average private school tuition, $35,000 per year, cost the government one billion dollars in “middle income” IBR cancellations per 4,500 to 5,000 students per graduating class, and yes, the law graduate will still pay the same $211,380 as everyone else.

While these analysis didn’t account for inflation and increased income tax revenue from lawyers, if any, legal education will cost the republic tens of billions of dollars for far less value than it provides.

NYT Supports Private Student Loan Bankruptcy Reform, Protects Financialized Dept. of ED

After trashing for-profit universities, the New York Times editorial, “Relief for Student Debtors” adds this:

It had long been the case that federally backed student loans were protected during bankruptcy proceedings. That is reasonable, since those loans were backed by taxpayer dollars and flexibly structured so that borrowers could receive deferment in tough times and resume payments when their finances improved. The country has a compelling interest in making it as difficult as possible for student borrowers to elude payment for federal loans.

Sort of. Congress extended the “undue hardship” exception on federal student loans into perpetuity in 1998. Before then, the law required people to wait seven years before discharging federal student loans. Even then, the exception has always been a solution in search of a problem. Default rates in the late 1970s never reached 1% when it was first enacted. Contrary to the Times’ belief, the bankruptcy restrictions obscure the fact that the government has a far more compelling interest in (a) ensuring consumers have purchasing power (economic growth), and (b) using its money towards productive purposes, which is the inherent problem to government lending because it is by definition taking on a greater risk than the private sector is willing to. Otherwise, normal banks would be making the loans themselves.

As a result of this “crowding-out per se,” the government tries to protect its inherently high-risk investment by changing the bankruptcy code, but that makes borrowers debt zombies, which runs contrary to the purpose of increasing their productivity through education. So the government sways the opposite direction, creating hardship deferments and income-based repayment programs, but then it starts losing more money on the loans while universities live high on the hog until at some point, tuition increases so high that the Direct Lending Program could be replaced with a cheaper, more effective national university system. The New York Times Editorial Board does not understand the Hegelian ouroborous Congress spawned by financializing the Department of Education. I suspect it will take a few more years until it and other mainstream media do.

In other news…

I eschewed the news on Hurricane Irene and favored the National Hurricane Service’s reports.  The whole time the government predicted it’d be a severe tropical storm by the time it hit NYC, so I wasn’t terribly worried–mostly annoyed that Bloomberg shut down the subway system. On Sunday I strolled around and found a bar near my home that had this to say:

Now tropical cyclones talk to me through drinking establishments.

The Lemmings Are All Right: Richard Matasar Responds to David Segal

Anyone who read last weekend’s New York Times piece, “Law School Economics: Ka-Ching!” by David Segal should also take the time to read NYLS dean Richard Matasar’s response, “Law School Cost, Educational Outcomes, and a Reformer’s Agenda,” on NYLS’s website. Matasar keeps his cool and provides the written pieces he sent to Segal before the article’s publication. Today’s special is what exactly caused NYLS’s large class of 2009.

Segal:

[NYLS] increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded.

Matasar:

For the prior 3 years our yield rate—the percentage of students who received offers, who accepted those offers, and enrolled—had been relatively steady. From 2008 to 2009, however, the yield rate increased by 10 percent, meaning that even though we accepted fewer students than the prior year (approximately 150 fewer), 170 more students enrolled. While we can’t say with certainty why this happened, we can look to the economic downturn, the opening of the new building which was receiving rave reviews, and the fact that we were coming off of a record high bar pass rate of 93.6 percent as reasons why more applicants chose to come. Again, enrollment can be very unpredictable.

So: Segal argues the 2009 1L bounce was deliberate and reckless on NYLS’s part; Matasar counters that it’s not NYLS’s fault people were clamoring to go there for its building, high bar passage rates, and law school’s low opportunity cost.

Except they weren’t.

Aside from the fact that the economic downturn translated to only a slight bump in law school applicants, NYLS saw none of this. Indeed, according to Official Guide data NYLS suffered a 25% applicant drop in 2009, complicating the story.

Instead of cobbling together an HTML table, here’s a screen capture of NYLS’s incoming classes from 2004 to 2010 according to the Official Guide.

So full-time applicants dropped 28% and part-time applicants 11%. Segal didn’t research this, and Dean Matasar has no reason to tell anyone. At some point in 2009 NYLS’s admissions office must have realized there was a problem, and it altered its acceptance strategy accordingly.

Starting with part-time students, it looks like Segal is right: NYLS deliberately accepted more applicants predicting they would matriculate. For full-time applicants, one might think that by extending fewer offers than in previous years, NYLS was expecting a smaller incoming class, but that wasn’t what it did. Bear in mind the “Offer %” was 10% higher than in previous years despite the lower numeric acceptance rate. Had it accepted 45% of its full-time applicants, with 20% matriculating, it would have an incoming class of 306, similar to 2006, which was an unusually low matriculation year for NYLS.

When a drop in applications occurs, the quality of the applicants (LSAT & GPA) drops as well. The bell curve contracts and shifts rightward towards zero. Looking at the full-time class of 2009, I characterize what happened to NYLS as a “downshift.” NYLS had to compromise accepting students with lower-than-usual credentials against under-enrolling its incoming class. It accepted 212 fewer applicants, but it inaccurately predicted the matriculation yield. Consequently, Matasar is right to the extent that NYLS didn’t predict the willingness of people who got B’s in college to go to NYLS over those who got B+’s.

I suspect geography explains the downshift. The only other law schools in New York State that accepted the kinds of students that NYLS did in 2009 were Albany, Syracuse, and Touro. Albany and Syracuse are mid-state, and Touro is beyond Gatsby Country on Long Island, making it more attractive to New Jersey-based applicants.[i] In 2009 NYLS accidentally discovered that it is in a prime location to serve the market for B-average prospective law students. In 2010, NYLS adapted again by accepting its usual number of part-time applicants, roughly, but it reduced its numbers of offers despite a slight increase in full-time applicants. Its matriculation yield was still 10% higher than before 2009, but the incoming class largely recovered to median B+ college students, though the high-end GPAs were slightly lower. It will be interesting to see what happens to NYLS in fall 2011. However, of the 2,000 or so fewer NYLS applicants in 2009 and 2010, some of them may have realized a law career would not be available to them if they went to NYLS.

The good news that Segal missed and Matasar declined to mention is that not all lemmings jump.


[i] Supposedly West Egg is a parody of Great Neck, which is northwest of Central Islip, but it was a good line so I couldn’t pass it up.

Two Quick Comments on David Segal’s Portrait of Richard Matasar

(1)  Law schools cannot self-terminate.

I suppose it’s safe to say that when NYLS dean Richard Matasar stepped down, I was easier on him than David Segal is in today’s NYT piece, “Law School Economics: Ka-Ching!” My personal opinion that I realized after I published my piece is that if you want to be a reformer who acts against your own interests, you must show some noblesse oblige. That means you do not criticize your peers’ practices while making half a million dollars off your students’ debt. You take a voluntary pay cut to show that you are serious, and you make enrollment cuts like Albany Law School supposedly did over the last decade. If you get ousted, you go back to teaching. At some point one must be willing to lose for one’s principles. Matasar’s ineffectualness/perceived hypocrisy never surprised or shocked me. To me it’s obvious that non-Ivy League law schools have no hope of internal reform without losing their place in the U.S. News rankings and by consequence access to high LSAT-scoring applicants, for they should realize by now that the legal education system has over-expanded and will certainly contract. If they’re not going to make symbolic gestures personally, reformers at lower status law schools might as well save their breath and tell the board of trustees that it’s time to close up shop.

(2)  Demand for legal education and demand for lawyers is not the same thing. One must fall.

Segal writes:

[T]here’s no business like the business of law school. The basic rules of a market economy — even golden oldies, like a link between supply and demand — just don’t apply. Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

It should be clear: demand for lawyers is separate from demand for law degrees, and the ABA’s goal of law as an elite profession contradicts its concurrent goal of law as a democratic profession open to the masses (especially minorities, which is the ABA’s biggest insecurity). That’s the basic problem, and as J-Dog opined before taking a blogging break, the irreconcilable conflict entails the solution: Either:

(a)   A Gorbechev figure takes over at the ABA and initiates law school accreditation perestroika that circumvents antitrust concerns: minimum LSAT score requirements, mandatory experience in a legal position, or mandatory undergraduate course streams. Such reforms would smash the legal education system, and enrollments would fall to what they were in the 1960s. Law remains a selective, elite profession.

(b)  Water down legal education requirements (especially the costly wasteful ones) to the point that nearly anyone can get a law license provided they meet certain minimum criteria. Law becomes a democratic profession.

Until some kind of formal change is adopted, expect more legal education volatility: wary applicants, warier bondholders, and defiant law school behavior (like Vermont’s increasing its tuition and LL.M. students to compensate for declining JD enrollment).

Links Head Soup—Even More Media Coverage on Law Schools

There is really a lot of press on law schools this week! HomelessLawyerPostingFromLibrary found three good ones (Lawyers Against the Law School Scam, “Is There Blood in the Water?”).

(1) Razib Khan, “The ‘Law School Scam’ Media Bubble,” in Gene Expression (Discover Magazine)

Khan jokes that not only is there a law school bubble but there’s also a bubble in legal education media coverage. I like how he characterized the problem, and he appears to give credit to scambloggers:

As it is, law schools, and higher education more generally, has a other-peoples’-money problem right now. At some point the music will stop, people will be left holding the bag, and the bubble will burst.

The fact that the mainstream media is now devoting so much time to the issue is a good sign that there’s a change in the offing. Outrage and disillusionment has percolated out far enough socially that this is a story that many people are interested in.

Which leads us to one of his cites:

(2) David Segal, “Law Students Lose the Grant Game as Schools Win,” in the New York Times

The only time I called law school a “scam” was an old reference to Kaplan’s Concord Law School, and even that was based on a newspaper article’s characterization of its business practice of targeting returned U.S. soldiers for online legal education. Reading Segal’s latest piece (he must really be enjoying this topic) on enticing students with scholarships they’re highly likely to lose after only one year makes me wonder.

As with all things on legal education coverage, even this one is old news. Back in late 2008, Elawrence’s Blog published a post titled, “The Law School Scholarship Scandal.” A few law students accused St. John’s University law school not just of offering merit scholarships that its students had a good likelihood of losing, but that St. John’s even packed its merit students into the same sections to “curve out” even more of them, hoping they’d continue anyway paying sticker price.

(3) Steven Harper, “Debt Loading,” in The AmLaw Daily

Speaking of calling law school a “scam,” Harper used the F-word.

Fraud can be overt–by commission–or it can occur by omission when there’s a duty to speak. Revealing good facts can create an obligation to disclose the bad ones. Greater candor won’t stop the flow of talented applicants to law schools. Nor should it. The legal profession is still a noble calling. But it has also become a way for some educational institutions improperly to persuade the next generation to mortgage its own future–literally. [emphasis added]

Okay, he didn’t use it directly, but it’s still in context. I also take the emphasized portion to mean that Professor Harper doesn’t think transparency alone will solve the problem.

Some call it the next big bubble. If it bursts, I’m not sure what that will mean. Because of statutory revisions in 2005, bankruptcy doesn’t discharge student loan debt unless the difficult “undue hardship” test is met. The era of big bailouts has passed, so that’s an unlikely solution as well.

Legal education rakes in a lot of money, but nothing like the $8 trillion housing bubble, though there’d be lost revenue and jobs in law schools, casebook publishing, and related supplemental learning services (Kaplan, BarBri). To preemptively broaden the scope of the debate: Legal education IS NOT the canary in the coalmine. Quite the opposite, it is your lead miner keeling over due to lung rot. Why? Because professional education is a double-down bet for college graduates with unmarketable degrees. Given the high youth unemployment and student debt levels, you can see that young Americans are out of economic options.

Perhaps we’ll see a new growth industry in the revival of an ancient concept: debtors prisons. Law school deans who lost sight of their true obligations to their students and their profession should run them–without pay.

Harper’s statement about debtors’ prisons allows me to add some value from HomelessLawyerPostingFromLibrary, this time it’s an off-Broadway play I saw last week:

(4) Laurel Haines, Future Anxiety, directed by Jim Simpson at the Flea Theater, New York

Set in a melted-down Eaarth, Haines’ play conveys a deep pessimism towards humanity, part Futurama and part Deep 13. While the play could’ve used a touch more poignancy, its humor and tempo reminded me of the Minneapolis improvs I went to while in high school. In Haines’ future, the Steven Harpers of the world don’t just get debtors’ prisons: they get a government (such as it is) agency called the “Collections Bureau,” which sends agents to debt defaulters’ homes to arrest them and then ship them to Hong Kong as slave labor. That probably won’t happen in our world, but to respond to Harper’s earlier point on the bubble: the bank bailout for legal education creditors is already in place. Law students and taxpayers get stuck with the bill. Will universities get off scot free? No idea.

Task Force to NYSBA and Law Schools: More Debate + Transparency Please

Instead of the clichéd approach of finger-pointing between and among law schools, employers and the bar, the Task Force recommends an approach in which the various sectors and stakeholders work together to undertake the professional formation of young lawyers. [Report from the NYSBA Task Force on the Future of the Legal Profession, Page 38]

On Friday, the New York State Bar Association’s (NYSBA) Task Force on the Future of the Legal Profession published its report on the NYSBA website. Unlike your typical ABA committee, the Task Force wasn’t crammed full of law school deans along with token general counsel; only five of fifty-eight members were law faculty, including New York’s legal education prognosts, Prof. Rachel Littman of Pace and Dean Richard Matasar of NYLS. This is as real a deal as you’ll get from a very large non-integrated state bar association.

Excluding the executive summary, the Task Force devoted about two-fifths of the 102-page report to legal education and lawyer training, and it has some worthwhile ideas like mandatory mentoring. Skipping to the meat on pages 66-67, it appears the Task Force finds plenty of poo to fling around. I’ll itemize my response:

Helping New Lawyers Form a Professional Identity

IV. Attending to the National Debate Regarding Law School Debt

Recent commentators within and outside legal education argue that the current structural and business model of law schools is no longer sustainable. These commentators call attention to the burden our current economic model places on unsuspecting law students while law school administrators point out the stranglehold that U.S. News & World Report’s criteria and rankings have on law school finances.

(1)  I find it hard to sympathize with the law school administrators’ hatred of U.S. News. Law schools’ core business is training lawyers, not earning a magazine’s approval.

(2)  Whenever someone says “X” is unsustainable, I take it seriously, whether it’s someone warning about an $8 trillion housing bubble or someone mistakenly thinking the national debt is going to wipe us out. Such claims demand prompt, correct responses. So, the NYSBA Task Force’s shoulder-shrug at people claiming the legal education system is unsustainable confuses me. If true, the Task Force should be sounding the alarm before thousands of students matriculate to New York’s fifteen law schools this fall. If not, the Task Force needs to say why not.

Escalating law school tuition, drastically increased student debt, and the high probability that most debt-burdened law graduates will not quickly obtain high paying employment has not only created an economic nightmare but a real moral and ethical challenge for law schools and the profession. [Emphasis original]

(3)  Spot on. Watchya gonna (recommend the NYSBA) do about it? Answer further down.

Law schools must continue to examine the real cost in human terms that flows from new graduates carrying such large debt loads and ensure more realistic financial expectations for those entering law school by providing more transparency in employment data. However, a balance needs to be struck. Law schools cannot afford to be saddled with additional, costly regulatory requirements, nor should applicants from disadvantaged economic or diverse social backgrounds be discouraged from entering the profession in the attempt to create “realistic expectations.”

(4)  “Continue to examine”? The truth is that no matter how much a law school frets over its debt-burdened graduates, it took on none of the financial risk—not just the information risk that transparency attempts to equalize—but the financial risk of its graduates’ failures. Law schools aren’t going to examine “the real cost in human terms” any more than they already do. Either their graduates are employed or they’re not, and law schools get paid from current law students not former ones.

(5)  I’m not here to do the transparency people’s work for them, but as far as I know, they just want the raw data law schools already collect and transmit to NALP made directly available to applicants. This is not a “costly regulatory requirement,” especially if a magazine can have a “stranglehold” on their finances.

(6)  The “economic or diverse social backgrounds” stuff is a red herring for a few reasons:

  1. The deans of the non-ABA-accredited Massachusetts School of Law tout they can do the job of a private law school for $15,000 per year. I’m not here to do MSL’s work either, but it’s contradictory—not to mention confusing—for the Task Force to claim that law schools are strapped for cash appeasing U.S. News and then lament how we need the poor and the diverse to pay as much as law schools feel like charging to enter the profession.
  2. “Realistic expectations” does not mean patronizing the poor and the diverse: why would they want to enter a profession that doesn’t provide them with upward mobility or meaningful social visibility? Why would they want to jump into an “economic nightmare”?
  3. If law schools were so concerned about the profession’s accessibility, I wholeheartedly invite them to change their business model from unlimited federal debt financing to equity investment such as human capital contracts. Law schools could be paid from ten percent of their graduates’ incomes for ten years after graduation. What would that do to those law schools that care more about their U.S. News ranking than providing a valuable education? To quote Michael C. Macchiarola and Abraham Arun, “If a school doubts its own value proposition, it might think about becoming an unschool; and we will all be better off…No one should be overly sympathetic to the plight of these schools; expensive, lower-tier schools in their current form never represented a good deal for non-upper income students to begin with.” [129-130]. Ouch.

At the same time, law firms that decry the lack of practice-ready law graduates need to examine whether their own hiring criteria are based on elitism or fundamental lawyering ability and skills. For example, do large-firm employers request interviews with those law students who have excelled in clinical experiences, or do they simply emphasize more heavily those who have the best GPAs from the most prestigious institutions or who have law review credentials?

(7)  I suspect the Biglaw example is another, albeit unintentional, red herring to distract us from the oversupply problem. It’s one thing for employers to capriciously hire graduates based on pedigree when others are demonstrably better (theoretically the market would correct for their incompetence), and I suspect this happened until the recent past. It’s another thing for employers to use credentials to filter hopelessly large stacks of resumes to save time. Here’s something for law school administrators to internalize as they’re being choked by U.S. News: Legal employers don’t need you; they are under no obligation to hire all of your graduates no matter how qualified they are, and if you fail, as I predict many will, you will not be missed.

Yes, that's actually what Stanford said to justify its 5.75% tuition increase for Fall 2011.

 

The Task Force’s recommendations aren’t bad (the uniform bar exam and psychometric testing are good ideas [page 69]), but it’s all you’ll get from an authority without power. As for what the Task Force thinks the NYSBA should do about its “economic nightmare and moral and ethical challenge for law schools and the profession”: participate in the debate and ask the law schools to be transparent.

V. Support Appropriate and Realistic Entry Into the Profession

15. The Task Force recommends that NYSBA closely monitor the issue of law student debt. The issue of debt, combined with the decreased hiring due to the economic downturn, has a tremendous impact on the future of the legal profession. NYSBA should play an active role in all aspects of the national debate regarding law school debt and full disclosure of tuition costs and job prospects, including working cooperatively with other entities to develop ways to reduce the impact of student debt on the future of the legal profession and to promote greater transparency regarding the cost of legal education and prospects of employment.

18. All law schools should provide accurate and meaningful information to entering and current students regarding the job market, career options, and their placement of recent graduates both at the J.D. and at the LL.M level. Self-reported information should be audited and include data concerning recent graduates hired by private sector employers, including size of firm, starting salary, type of position (e.g., partnership track, staff attorney, temporary, other), geographic location of employer, substantive area(s) of practice, and diversity, particularly at the leadership and equity-partner levels. [Pages 71, 72]

I’d like to see the NYSBA play an active role in the national debate regarding law school debt.

If you can’t tell whether I’m being sarcastic, the good news for you is that I can’t either. Bar association heavyweights have had plenty of time to educate themselves on the law school debt crisis, and while the Task Force should’ve mentioned Income-Based Repayment as an alleviation, there really isn’t a lot left to debate. No one seriously believes law schools are undercharging their students, aside from law schools like Stanford recently. Nor does anyone seriously believe demand for legal services will increase rapidly to accommodate all the juris doctor-holders who want to enter or desire reentry to the profession.

As for transparency, I’ll say it again: law schools must take on the financial risk of their graduates’ failures not just the information risk. Even with full transparency post-bubble, there will still be underemployed law graduates whose tuition effectively subsidizes the educations of their successful classmates. Admittedly, I’m more partial to human capital contracts than Macchiarola and Arun’s 10-year put option, but the effect would largely be the same. Changing the financing mechanism actually makes transparency easier as it would be a natural function of law school revenue collection.

After listing some more admirable recommendations (I don’t mean to belittle them, but I can only write so much), the Task Force backstabs its readers’ in the dignity:

VII. Work With U.S. News & World Report

21. The Task Force recommends that NYSBA meet with representatives of U.S. News & World Report to discuss current methodologies and to proposed changes to the U.S. News methodology that are aligned with improvement to the profession outlined in this Report. [Page 73]

Bob Morse accompanied by his merry half-dozen subordinates create nationwide rankings for all of higher education. Such is his power that the NYSBA Task Force feels it’s necessary to negotiate with him over his ranking methodology. Of all the players who least deserve a seat at the table when discussing the Future of the Legal Profession, it’s a magazine, yet the Task Force thinks the NYSBA has some kind of leverage over Bob Morse. It does not. U.S. News will keep doing what it can to sell magazines, and Bob Morse has no interest in the legal profession’s future beyond his own and his employer’s valid profit motive. If his rankings have a “stranglehold on law school finances,” it’s because law schools can raise tuition indefinitely without bearing any risk for failing to provide value. Paragraph 21 indicates that the Task Force doesn’t want to consider that.

I didn't know U.S. News looked like this either.

 

The New York bar’s situation isn’t enviable. New York should be infamous for increasing its number of law schools by 50% during a period of economic and demographic decline in the 1970s and 1980s, and there’s no evidence suggesting that the newer schools are remarkably good at exporting graduates elsewhere, though CUNY is unusually cheap and Cardozo has a good reputation considering it’s, like, four in law school years. New York’s thirteen private law schools are all over the average in cost, though some of them are very well regarded, and living expenses are very high. New York’s law schools, especially the disreputable ones in the southern part of the state, are ticking tuition time bombs. The Task Force wants the bar to avoid the “clichéd finger-pointing between and among law schools, employers and the bar,” but it won’t. Put simply, the Task Force can’t suggest numerous changes to lawyer training without taking a concrete opinion on the legal education system’s sustainability. Thus, it seems pretty clear that those pointing fingers at the law schools are right.

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