Reformers, Futile Gesturers, Blamers, and Loss-Cutters: Adventures in Anger, Personal Responsibility, and Positive Thinking

I open with sources; doodles to follow.

Heather Diersen, “Dear Law School: It’s All Your Fault. Signed, Recent Grad,” in JDs Rising

Mary Beth Marklein, “Grads Taking Law Schools to Task for Poor Job Market,” in USA Today

Don Peck, “How a New Jobless Era Will Transform America,” in The Atlantic

Susan Carter Liebel, “Don’t Be a Victim of the ‘Victim Mentality’,” in Build a Solo Practice at Solo-Practice University

Diersen’s post represents a typical response to legal education’s critics, for example:

[I]f I were smart enough to get into law school, I should be smart enough to know that there have always been too many lawyers.  There are too many lawyers because private (and some public) law schools are money-making businesses…While I sympathize with the recent grads on the job hunt and agree with the criticism against law schools’ admittance and career service practices – law school was my choice, every loan I took out was my choice, and the job market…well, it is tight in nearly every field.  I cannot blame the schools for failing to put a warning label on their applications stating: “Likely to cause debt and unemployment.” [Emphasis Original]

Marklein’s article is somewhat similar, referring to scam bloggers, Zenovia Evans’ hunger strike, and Roger Gordon’s litigation attempt to gain bar admission after only two years of law school to avoid adding more to his $175,000 of student debt.  Kelsey May, a 2010 Tulsa grad who wrote a book, What the L? 25 Things We Wish We’d Known Before Going to Law School, is loosely quoted, saying, “[T]he anger is ‘misplaced. … There should be some level of (personal) responsibility.’”[i] [ii]

There’s a lot going on in this mess of anger, responsibility, and the future.  Thinking on the subject prompted me to create a typology of who’s who in these disagreements.  There are four groups, each with their own audiences and goals.  I call them: Reformers, Futile Gesturers, Blamers, and Loss-Cutters.  These terms are an observation and aren’t meant to be exclusive or exhaustive.

 

The Soft Boys rock.

 

Reformers:

Not just anyone who criticizes law school practices but those especially focusing on employment statistics, tuition, and prestige.  The most visible group consists of those running pseudonymous scam blogs, and they are remarkably angry.  Do they not take responsibility for their actions as Diersen argues?  I don’t think so at all, and for moral and persuasive authority, I turn to Brian Tamanaha’s thoughts on the scam blogs:

Look past the occasional vulgarity and disgusting pictures. Don’t dismiss the posters as whiners. To a person they accept responsibility for their poor decisions. But they make a strong case that something is deeply wrong with law schools.

Tamanaha’s thoughts prompt me to ask: who are scam bloggers’ audiences?  Primarily 0Ls, those considering law school, but also other recent graduates.  Why though?  This delves into the phenomenology of advice-giving (told you I was a philosophy major!).[iii] Scam bloggers don’t want others to end up in their positions.  In that sense they’re trying to be productive.  Every person they steer away from law school is a life (and in some cases a marriage) saved.  lawis4losers claims he’s turned seventy people away from law school, which means millions of dollars saved from nonperforming student debt.

The problem with scam blogs?  As Tamanaha concedes, they’re vulgar.  They frequently refer to law students and 0Ls as “lemmings,” which undoubtedly alienates readers they’d otherwise convince, including Diersen perhaps.  The vulgarity comes about in large part due to scam bloggers’ second audience: other law graduates.  Is it productive?  Depends where it’s directed, leading back to May’s comment on misplaced anger.  It appears the choice is characterized as between anger or blame on oneself for going to law school or on the law school for its salary and employment statistics. The significance of blaming institutions depends on whether the institutions can change themselves, which I’ll address in the next section.

We should also be aware that there’s a healthy assortment of older practitioners and law professors who’ve arrived at similar conclusions, just without the anger (in order of how strongly they characterize the tuition bubble):

Jerome Kowalski [iv] (republished at JD Supra)

Brian Tamanaha

Christine Hurt

Richard Sander (at UCLA, this was a new find for me)

Professor Bainbridge

Herwig Schlunk

David Van Zandt (to a degree, his break-even starting salary is too unrealistic for me)

Bill Henderson & Dean Donald Polden (to a far lesser degree because they criticize employment statistics while accepting tuition increases)

Futile Gesturers:

There’s a difference between someone who reviews doc by day and blogs by night and someone who starves herself hoping to convince law schools to adopt transparent employment statistics.  The first takes a position to help flesh and blood 0Ls and the other exercises in futile gestures at trying to make law schools change their practices.  However, the difference isn’t just the audience but it exposes an underlying assumption: Futile Gesturers think the monolithic legal education system can be reformed by individual acts.  Suing the state bar to get a law license for less debt: similarly futile.  When Diersen describes law schools as “money-making businesses” she means they will not change themselves, and her joke about a warning label on law school applications reminds me of anti-smoking reforms.[v] A graduate who directly attacks law schools is a lot like a lung cancer-victim suing a tobacco company.  On the one hand, we all know smoking causes this, expecting the smoker to get it too, but on the other, we know the tobacco companies don’t care.  By contrast, when state attorneys general bring home multi-billion dollar settlements from tobacco companies, we consider it a just victory.  Under what circumstances, though, should we expect someone to realize that institutions like law schools are “money-making business” as Diersen asserts?  I’ll give my take in the next section.

Simply put, reform is a collective effort begun by people with some leverage.  Rosa Parks had leverage; Roger Gordon does not.  By contrast, scam bloggers recognize they have more leverage over 0Ls than they do over state licensing authorities and are essentially going for the lowest-hanging fruit.  Finally, I hate to say it, but Law School Transparency, given its lack of enforcement power, is also a futile effort because it has no leverage over law schools or the ABA.

Blamers:

I resisted the urge to name this category “victim-blamers” because Blamers don’t see today’s 4Ls+ as victims of anything beyond economic circumstances and personal flaws.  As you can imagine, I don’t have much use for Blamers only because they have no use at all.  Their audience doesn’t need to be lectured, and I fail to see what Blamers’ goals are.  They appear not to be actively convincing people to avoid law school when they themselves understand the risks, and I’ve never seen one give constructive advice to someone who’s unemployed and permanently in debt.  Importantly, they hold an assumption that even Futile Gesturers don’t: Blamers simply do not believe legal education can be reformed, as evidenced by Diersen’s joke about a warning label on law school applications.

Here’s my take on the Blamer worldview.  When you make a mistake in life, you own up to it and don’t you dare lament it publicly.  You’re smart enough to know that there’s no free lunch.  It is somewhat solipsistic and risks the fundamental attribution error.

This sentiment isn’t totally unfair and I adopt it myself in certain circumstances, but I always think of the two words every bankruptcy attorney uses: fresh start.  Most recent grads with high debt and subsequent graduates will have no chance at that and are doomed to unproductive lives until the bankruptcy code is inevitably reformed.

Here, Peck’s writing on unemployment’s effects on people, particularly the young, becomes salient.  Even though reform is almost certain, it will leave lasting scars on young people who were unable to use their educations fruitfully.

Returning to Diersen’s statement that law schools are “money-making business”, remember that Diersen is right in one respect: jobs are scarce in all fields; in other words, what young lawyers are experiencing is cyclical and not structural unemployment, yet.  Also recall that the difference between cyclical and structural employment is largely circumstantial.  When jobs start returning, people will move into those fields, regardless of what they were doing before.  The problem with the legal sector is largely based on its history.  In the past, employers saw the juris doctor’s signaling value (hey, they ain’t easy to get) and rewarded it accordingly.  Consequently, law schools had no incentive to modernize their century-old curriculum, and tuition increases (before Biglaw starting salaries created the bi-modal starting salary curve) appeared reasonable.  Even if the law schools were over-saturating the market, it didn’t matter because people could move into other fields.  If they didn’t enjoy law, it was easy to view that as a personal decision.  However, now that the housing bubble has burst, law schools are paralyzed: they’re stuck competing over rankings in an over-saturated industry, they mayn’t have direct control over their tuition, and worse, graduates with high student debt loads can’t move into other fields, and even if they could the bankruptcy code cripples their future livelihoods.  It should come as no surprise that graduates turn on their law schools.

Loss-Cutters:

 

You don't know "Boot to the Head" by Dr. Demento? Must I explain every reference to you??

 

Our final group is similar to Blamers in that its target audience is 4Ls+, but its goals differ.  Essentially, a Loss-Cutter holds many of the Blamers’ assumptions about how the world is but is more pragmatic (and therefore sympathetic).  They may suggest going solo (as Liebel does), into a different field (which isn’t an option now), or they may recommend moving abroad.  They may be able to convince a scam blogger that his or her anger is counterproductive, and that he or she needs to find a new creative outlet.

Leibel provides practical advice, though lawis4losers and others argue going solo has a low chance of success.  She also lauds the power of positive thinking over the “victim mentality”.  Again, the victim mentality emerges from the psychological cost of transitioning from one career to another in the context of mass unemployment. If a law degree required a 6-week seminar for $5,000, there would be no scam bloggers and fewer reform advocates.  We know (aside from some dirt-cheap public schools and the Massachusetts School of Law) that legal education is nowhere near this cheap.  It’s understandable, especially with current tuition prices creeping over $150,000 (plus living expenses) over three years that those making this investment be disappointed when it doesn’t pay off and they can’t escape the debt.  Thus, I think there’s an important hair to be split here.  It’s one thing to be a victim; it’s another thing to be a helpless victim.

Conclusion:

If you couldn’t tell, this wasn’t an easy post for me to write, but I’ll try to distill a few lessons.

1. If you think an institution that injures people can reform itself, then protesting it is worthwhile.
2. If you don’t think an institution that injures people can reform itself, you should divert others from it and promote reform via external sources.
3. If you’re a victim of institutional failure and can move on, move on.
4. If you’re a victim of institutional failure and cannot move on, you’re anger at that institution is justified.

Use your best judgment defining the terms used above.

As for the tuition bubble, it’s fitting that a blog titled “JDs Rising” prompted this post, especially because it’s based in a state almost in the third standard deviation of lawyers per capita: Minnesota.  As a side note, I’m acquainted with one of its contributors.  Anyway, I find the tagline, “A blog for a new generation of Minnesota lawyers,” especially ironic.  Minnesota’s new lawyers (and new lawyers elsewhere) who’re making strides in their careers are not the main characters in the story of the legal profession’s future; instead, the story centers on the throng of young attorneys graduating to their parents’ houses, and worse.  This is a group of people who’re victims not just of the legal profession’s failure to adapt, but of a government that refuses to create jobs for them, or give them a fresh start from their debt.  Brian Tamanaha is correct that we should not look at them as whiners; rather, we should look at them for what they really are: a growing, highly educated constituency waiting to be mobilized.

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[i] I wonder what was excluded within her ellipsis…

 

[ii] As a side note, I’m glad to see Marklein contacted Richard Vedder, the human capital contract advocate.  I’m interested in further comparing human capital contracts to student loans in the future as there are some problems with the former that haven’t been addressed yet.

[iii] I should also point out that giving advice is something lawyers should get.  *sigh*

[iv] The link is to a revised version of Kowalski’s article, “What If They Built a Law School and Nobody Came?” also noteworthy because it includes an appreciated reference to The Law School Tuition Bubble.

[v] I dunno, given that attending law school post-housing crash is almost a certain loss, perhaps treating law schools like tobacco companies isn’t too far off.  Indeed, Kowalski directly argues that such a warning is necessary.