New York

NYT Op-Ed Provides Mostly Irrelevant, Unsubstantiated Reasons for Two-Year Legal Education

Daniel B. Rodriguez and Samuel Estreicher, “Make Law Schools Earn a Third Year,” New York Times, January 17, 2013.

Right off the bat, Rodriguez and Estreicher mean well when praising New York’s discussion about reducing its legal education requirement from three years to two. Unlike others who’ve written op-eds for the Grey Lady in the past, I believe they are working in good faith, and make no mistake I’m fine with reducing the number of credits people need for law school.

…But I’m not fine with doing it for irrelevant or incorrect reasons because it doesn’t solve the underlying problems. For instance, the op-ed’s banner (the text in the tab at the top of your browser) reads:

Practicing Law Should Not Mean Living in Bankruptcy

Clearly the authors have never heard of Income-Based Repayment or Income-Contingent Repayment. These policies make it quite easy to practice law (or do anything else for that matter) if one has excessive student loan debt.

The piece, unfortunately, sprawls around, but here’s a list of claims as they appear:

(1)  Law school will be more accessible to low-income students

Law school is already over-accessible. People can finance their degrees plus living expenses with unlimited federal loan dollars. The problem is their low-incomes after they graduate (to the extent they’re not caused by the depression), their non-lawyer jobs (ditto), and the law school debt the government will write-off in twenty years.

(2)  Two-year legal ed. will help the next generation of law students avoid a heavy debt burden.

The solution to the problem must address the paramaters of the problem. Between 1999 and 2011, four of New York’s 13 private law schools joined the buy-two-get-one-free club because their tuitions grew by fifty percent in constant dollars. Another two probably crested the line this year, but I ain’t checking. Hacking off a year of law school (scholarship redistribution aside) only sets most of them back to the late 1990s. There’s no reason to believe it’ll halt future tuition increases because it doesn’t address their cause.

(3)  Legal education in the United States will improve.

Yay! I get to agree with someone! Y-A-Y!

Students would have the option to forgo that third year, save the high cost of tuition and, ideally, find a job right away that puts their legal training to work.

Yes, but less time in law school does not create jobs.

Myriad services are now being outsourced (often abroad) to nonlawyers, and the number of positions with large firms is dwindling, making it harder for graduating students — many of whom are saddled with six-figure student-loan debts — to find work at the outset of their careers that can even begin to pay off their obligations.

Such prospects are discouraging many young people from pursuing law degrees, and pushing away lower-income students the most.

I’ve never seen any evidence whatsoever that poor people are being “discouraged” from law school due to the fear of outsourcing and low pay. I suspect that it’s mostly wealthier people who have gotten the message and that the people enrolling today aren’t from the class that reads The New York Times.

Then again, I barely read The New York Times, except the international section, the addictive obits, and Krugman’s blog.

Law schools must do a better job of containing these costs. We also need more financial aid for students.

But the financial aid is already over-generous. That’s why law schools don’t feel the need to contain costs: So long as there’s a core of people willing to pay whatever absurd amount of money the marginal law school is willing to charge, nominal tuition will continue to increase.

As of today, there is no marginal law school because they’re still viable despite the applicant nosedive. That may change, but even if law schools close the first one left standing won’t slash its tuition, move into a smaller building, cancel its profs’ tenure, or force academics to teach full course loads.

While this wouldn’t increase the number of available jobs…

Yes, because less time in law school does not create jobs.

…A two-year option would allow many newly minted lawyers to pursue careers in the public interest or to work at smaller firms that serve lower- or average-income Americans, thereby fulfilling a largely unmet need. As it is now, many young lawyers say they would love to follow this path but cannot afford to because of their onerous debts.

But new grads have IBR and ICR. Their debts are not an issue (for the majority). The problem is that poor people are poor, not that lawyers’ debts are preventing them from charging $1.77 per hour.

Many law students can, with the appropriate course work, learn in the first two years of law school what they need to get started in their legal careers.

Most people who attend elite law schools can probably pass a bar exam with one year of self-study.

With this reform, law schools would have an obvious financial incentive to design creative curriculums that law students would want to pursue — a third-year program of advanced training that would allow those who wished it to become more effective litigators, specialize or better prepare for the real-world legal challenges that lie ahead.

Maybe, but creative curricula do not create jobs.

Those who graduate from rigorous three-year programs will not only emerge with sharper legal skills, but also be more essential to employers, raising the rate of job placement out of law school.

Sharper education will not create jobs. (Come on guys, you’re making me lose readers!)

A handful of states, including New York, allow individuals to take the bar after working for a law office for a number of years, in lieu of going to law school, though this approach is seldom used.

I’m glad Rodriguez and Estreicher brought this up because it raises a very important question: Why is this route seldom used? What does law school offer that law office preparation does not? What are the law students paying for? In theory (there is a theory behind mandatory legal education, right?), law school improves the likelihood of bar passage for those who might otherwise fail, but given the LSAT-bar passage correlation, it probably doesn’t. If people need some formal education to pass a bar exam, why not let the evil grubby free market provide it (without unlimited student loans)? Maybe people go to law school because they (rightly) think no decent-paying legal employer will hire them if they don’t buy the degree from a prestigious institution. If signaling value is all that law schools sell, then why do we need the ABA to regulate them, lend their students unlimited sums, and let them operate tax free?

Some will argue that the two-year option would only create unequal classes of lawyers and glut the marketplace with attorneys who don’t have the skills and training that generations of law school graduates before them have had.

We doubt this will occur. And in any case, the risk ought to be balanced with the varied needs of the American people for legal services.

Count me out of this “some,” for as I said at the beginning, a two-year law school is better than a three-year because it saves law students’ time and money, though it will throw recent grads under the bus by glutting the market even more (bet they can’t wait to send those employment data to U.S. News). I just think that legal educators need to come up with better reasons for why people should have to attend law school before becoming lawyers. I certainly don’t see how a two-year lawyer balances the needs of the American people. The beneficiaries are the students and taxpayers, but comprehensive reform would serve them better.

.

.

.

Wait, I take it all back. These are flawless arguments. I’m willing to sell out for these irrelevant justifications for shortening law school because maybe in another 15 years when tuition grows by another fifty percent, some law professors will write another op-ed for the Times rationalizing one-year law schools.

NYT Obituaries Are a Time-Suck

Stay clear, whatever you do. While searching for Japanese filmmaker Nagisa Oshima’s obit, I ran into this one today, “Jeffrey O’Connell, Legal Scholar of No-Fault Coverage, Dies at 84“:

In 1965 Mr. O’Connell joined with Robert E. Keeton, another law professor, to write “Basic Protection for the Traffic Victim: A Blueprint for Reforming Automobile Insurance,” a book in which they proposed to do away with a system in which an accident victim had to sue another driver to collect damages, in most cases from the second driver’s insurer.

The authors proposed that the victim’s own insurance company would pay the damages instead, regardless of who was at fault. The other driver would recover damages from his own insurance company.

Except for cases of extreme loss, in which lawsuits would be permitted, suits to get greater sums would be prohibited, depriving personal-injury lawyers of a ready supply of clients.

As a result, the authors contended, everyone could be quickly compensated, and administrative costs, particularly legal ones, would be curbed. Logically, insurance payouts would drop, meaning car owners’ premiums could be reduced.

Everyone who’s taken the New York bar knows about the no-fault system, which at least was simpler to understand than the elective share statute. If I recall, accident victims can only sue other drivers if their injuries are over $50,000 and they are “catastrophic” in character, or something like that.

Does the system work? Legendary scamblogger L4L of Big Debt, Small Law says “No.”

Okay, he didn’t just say no, he wrote a delightfully satirical post in March of 2010 on the subject that I will reprint. I cannot vouch for the veracity of any of L4L’s claims, but his point that no-fault can be easily defrauded is plausible.

If anything, the insurance defense sweatshops were latecomers to outsourcing’s bandwagon. We speak from experience here, having launched our legal “career” from a $40 K a year downtown no-fault mill (no kids, that number’s not missing a digit) back in 2006. Sweet Jesus, the memories. King’s Civil Court, 141 Livingston Street, Brooklyn. The infamous 9th floor “no-fault” part.

How fondly we recall the motions being wheeled into chambers via a rusted Pathmark shopping cart, its wheels buckling under the weight of so much legal toilet paper. John, the grouchy but loveable court clerk, had Stage IV throat cancer and would hack blood while rasping at us losers to “shut the Fuck up and listen for your case” during calendar call.

He wasn’t kidding. John kept a .38 special, sans holster, tucked in the waistband of his trousers. Sometimes he’d hammer a stapler inside a steel wastebasket to get the attention of us barristers when the din of no-fault bickering crossed a certain decibel level. Hell, even a chainsaw operator would cringe at how loud that place could get. We still awake at night with ears ringing, recalling the nightmare of $347 neck-brace negotiations. Those old “dollar collars.”

That said, John was one of the few good guys you’ll meet in the miserable sewer of ShitLaw practice. He realized full well what a pathetic waste of time the entire charade was, and how poorly paid we were paid to boot. Your humble narrator’s constant complaining once led him to announce: “if you monkeys ever form a union, you’ve found your shop steward.” They just don’t make ‘em like John anymore. Blue-collar Brooklyn all the way. A Mets fan. God bless the old bastard. Cancer long since carried him away to that big courtroom in the sky.

For those unfamiliar with no-fault practice, a brief primer: It’s the legal equivalent of stamping license plates in a prison metalshop, only at lower wages and more authoritarian working conditions. In NY State, a driver’s own insurance company pays medical expenses and lost wages regardless of accident fault. This moronic idea, hatched by “policy” wonks in the NY legislature, naturally resulted in systemic and wholesale disaster. To wit:

Mobsters get two junkyard cars, register & insure them, and then recruit homeless dudes and illegal immigrants to stage minor accidents. The police are summoned, an accident report prepared, and the scammers then begin “treating” at bogus outer-borough medical mills operated by the crime syndicate. The insurance carrier is then billed for the phony “treatments” plus a truckload of phantom medical supplies like canes, neck braces, massage units, and so on. NY even allows billing for quack “medicine” like aromatherapy, acupuncture and other witch-doctor nonsense.

Like the Lilliputians in Gulliver’s Travels, these parasites teamed up to hamstring the insurance carriers. Remember kids: a cloud of mosquitoes tops a tiger’s death toll any day. The rules & caselaw all favor this infectious swamp of scammers, and billions have been stolen from NY drivers as a result of this ongoing heist. Shady collections law firms “buy” collections files from the clinics at 50 cents on the dollar, file Summary Judgment motions, and then just wait for the case to come up on calendar. For every victory, the medical mill gets an additional cash kickback. The byzantine rules and massive deluge of cases (150+ a day in Brooklyn alone) make it death by a thousand cuts for the carriers, who simply raise rates rather than pay a living wage for the cases to be properly litigated.

That doesn’t stop the occasional IDH (Insurance Defense Hero) from slipping thru now and then. All veterans of ShitLaw know the type. These barristers make up for their abysmal salaries in bare-knuckle belligerence and “fighting the good fight.” Unlike the usual hung-over, half-asleep J.C. Penney clad schlubs of ShitLaw, the IDH struts into court like Clint Eastwood entering a saloon. For their 40 K a year they’d take a bullet for Geico or Allstate, and take it with pride. Every case is like “High Noon.” One almost expects an IDH to come flying into depositions wearing tights and a Superman cape. We’ve often thought of pitching this character as an action-hero cartoon. Just imagine:

“Slower on the LSAT than a lobotomy victim, more powerless than a day-old fart, able to cut n’ paste huge motions with a single click- what’s that flying into court?

It’s a BIRD-it’s a PLANE- no, it’s the INSURANCE DEFENDER !”

Hell, we’d watch it. So would you.

Today it’s not uncommon for no-fault associates (or what’s left of them) to earn as little as 25 K a year,with turnover measured in hours opposed to months. After just 6 weeks at my first no-fault gig, I’d already risen 7 seniority notches on the letterhead. But wait: this “firm” gets even funnier:

Too stingy to buy motion-exhibit tabs, they’d instead have us cannibalize incoming papers for their office-supply content.

“Just pry apart the Velotex binding and yank the fuckers out”, said the partner. He even had a custom-bent screwdriver designed just for that purpose. We associates swapped these exhibit tabs like inmates trade smokes. An “Exhibit A” and other high-alphabet letters were always in short supply, whereas a “Q” was common as cabbage. Whenever someone quit we’d quickly plunder his desk to “stock up” on these much-needed supplies. One nasty, rodent-like guy who’d lasted 10 months had a real motherlode: eight “A’s” and eleven “B’s” stashed in his drawer. Or should I say “under his drawer.” Well hidden-the prick. For what motion he was saving them I have no idea. We called him “the squirrel.”

This dump also printed us our own cheesy business cards on that perforated cardstock you can buy at Staples. For laughs I’d bring the whole sheet into court and just rip them off as needed, like a dispenser. Once I gave this hot Wilson Elser chick a whole uncut page of them, but she never called me.

Sadly, my once-rising star was an elevator to nowhere. Insurance defense work is so boilerplate and mindless that many firms “dump” experienced associates once a certain salary threshold is reached (roughly 60-65 K). Five year’s experience isn’t worth much more than five minutes, and it’s simply more cost effective to “keep the line moving” with freshly minted suckers from Car’Bozo, Brooklyn, NYLS and other gutter schools than pay experienced associates a living wage. Now that Bangalore &Co. are handling all the paper-churning, these insurance “firms” can simply troll craigslist for per-diem clowns to show up in court and bicker over the cases for as little as $25 a file. Like the Joads in The Grapes of Wrath, these migrant barristers wander the court system like fruit pickers.

The work was beyond mindless. Like the A-Team, if you’ve seen one episode, you’ve seen ‘em all. The characters changed while the script stayed the same. Day after day, year after year, squads of TTT grads trekked off to court, got yelled at/berated by court personnel, and limped back to the office to cut n’ paste the next day’s sad mountain of paperwork together. “Lateral” options from this practice area included can & bottle scrounging, panhandling on the 7 train, or becoming assistant fry cook at Burger King.

You can read the rest here (17-20).

But I Thought There Were No Cheap Lawyers…

If you did, then I recommend Daniel Fisher’s article in Forbes, “Class-Action Firms Capitalize on Wretched Market for Law-School Grads.”

Fisher managed to find a lawyer (or two with the same name) who went from charging $500 for a fixed-fee case a few years ago to $1.5 million for 2,711 hours of “legal” work in a class action lawsuit against Citigroup—except there’s no evidence he received anything close to that kind of compensation because he was contract attorney. He was billed out at $550 per hour when according to an anonymous source on the same job the contractors were paid a $35 rate at most. If the case lasted two years, that’s about $47,500 annually. That’s not the worst salary to have in the city, but it’s one-fifteenth what he was billed at, which might vex clients and the class action lawsuit activists mentioned at the end of the piece.

I liked Fisher’s article, especially the well-deserved mention of Tom the Temp’s Temporary Attorney: The Sweatshop Edition, which might be the earliest scamblog, starting in late 2005. What’s surprising though is that Fisher added the law school tack at all because it wasn’t really necessary. The story’s really about the very large multiplier between the contracting rate and the billing rate. I suspect that if this piece came out three years ago, it would’ve noted the contractors’ student loans only in passing. Instead, in 2013 we get:

Many of the temp attorneys on the Citigroup case graduated from law school in the past five years, some of them from prestigious schools like NYU and Georgetown.

Whoa.

I can’t say I expected Forbes to present the legal contracting world through the eyes of Big Debt Small Law.

Business Insider Article Shows Why Measuring Applications Alone Isn’t Helpful to Readers

Aleksi Tzatzev, “Despite Getting Sued By Graduates, This Low-Ranked Law School Has More Applicants Than Ever,” Business Insider.

The article’s opening speaks for itself:

“While some other law schools are struggling to attract applicants, New York Law School is doing better than ever.”

Additionally, according to the dean quoted in the article, NYLS received 5,998 applications in 2011, up from 4,510 in 2010 and even 5,606 in 2008.

The photo, however, is my favorite part.

I just wish I knew who was saying “People want to go to our school!” because while it’s literally correct, relative to other law schools nationally it’s not.

I should preface by saying that I’m not going to delve into part-time applications, which the dean above is obviously doing. Tracking full-timers is enough of a burden, so there will be a little apples/fruits comparison going on here, but most of the fruit are apples.

In 2008, NYLS received 4,721 full-time applications, 3,685 in 2010, and 5,054 in 2011. This is all fine and good, but the number of applications doesn’t matter so as the number of people who ultimately show up, which is why I torture readers with arcane stats like the number of “full-time matriculations per 100 applications.” This figure has the benefit of giving an estimate of how good a fit law students are with their law schools, the higher the better. Tracking it against law schools’ acceptance rates helps us distinguish between law schools that reject many of their applicants and applicants who reject the law schools they apply to, like that one in the lower right whose name we daren’t utter. Discovering schools that tend to accept more applicants who are willing to show up tells us something that the rankings don’t as it measures what applicants are thinking rather than what U.S. News wants them to think. This doesn’t mean such schools’ outcomes are any better, but that’s a little off-topic today.

In 2011, NYLS had 7.42 matriculants per 100 applications, way down from 14.11 a year earlier. An inauspicious fall, but it’s not the only New York Law School in those parts of the chart, just north of St. John’s but south of Hofstra and Pace. NYLS accepted 45.4 percent of its full-time applicants (the fourth fifth of all law schools), and its yield was only 16.3 percent (25th lowest for 2011, the bottom fifth system-wide). The size of its full-time entering class was only 375, down from 520 in 2010, the smallest class since 2004.

Although NYLS had a large haul of applications, the vast majority of them apparently preferred going elsewhere. A better title for the article would be, “Sued by Graduates, This Low-Ranked Law School Is Only Slightly More Preferred Than St. John’s, but Less Than Hofstra and Pace.”

You are, of course, invited to take Business Insider‘s survey on whether you believe law school is worth the cost of tuition.

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?