Friday, October 21, 2011

The Next Big Law School Scandal

Just a guess but I think it will be externship programs or at least some of them. These programs vary I am sure, but it appears they all have in common the payment to a school by students for credit. That's fine, but when students pay schools it's not clear what they are getting other than credit. Some may have enriching externships that prepare them for the practice of law and some may be fetching coffee. Part of the problem is that the ABA or AALS version of a site visit to check on what is going on seems to be satisfied by having someone (a pal perhaps) at another school check or (am I getting this right?) just calling the site.

On top of that, what are the standards for what the student does? I've seen some that say "meaningful legal experience." That really does not narrow it down much. I got a speeding ticket once and that was a meaningful legal experience. There is precious little meat on the bones of what is actualy required.

There is another factor that maybe bothers only me. The students pay essentially to work for others. This subsidization is not so worrisome when those others are public entities but when they are private, it is free labor for the purpose of generating a profit for others. This all becomes a bit fishy. Shouldn't the students in these cases be paid?

Now toss in the fact that in some places faculty are paid on the basis of how many externships they generate. Sounds like giving the faculty member a finder's fee or a cut of the school's take for selling credit to students.

I am not informed enough about the politics of the relations between the ABA, the AALS and law schools but, from this informed perspective it appears like a huge case of the AALS looking the other way because no one has the courage to really ask "What is going on." Or, perhaps they know exactly what is going on.

Tuesday, October 11, 2011

More on the New Cronyism

I was pretty happy to see that over on PrawfsBlawg, Howard Wasserman­­­­ wrote a comment on my New Cronyism post (scroll two down) and it was followed by several – too many to read – comments. One thing is certain; there is no class warfare in law teaching. The privileged won long ago and many rushed to defend the stacked deck in the form of a practice that means privileged people help other privileged people cut in line when it comes to jobs. Make no mistake. This is not like a pal letting you cut in line for a theater ticket that will not be sold out anyway. No, these pals let significant others cut in line and there are not enough tickets. Every job claimed under the cronyism system is unavailable to someone else.

Among the comments was a fair amount of defensiveness by those for whom cronyism worked. That is to be expected. Some of the logic of the arguments, thought, left me worried about what goes on in teaching students how to think. And, of course, there is the infinite capacity to rationalize which I suppose we all put to good or ill use from time to time.

For example, the fact that partner hiring does not always work to mean more privilege for the privileged does not mean my general point is wrong. Second, the fact that someone got a job for a partner and it worked out fine or the University is pretty darn happy is silly. Surely every law professor knows and understands the notion of opportunity costs. With this type of thinking if you buy a car without shopping around you would also conclude – for no reason in particular – that you bought the best car.

Some folks seem rattled by my notion that law professors were pretty much fungible and, thus, any school that caves into the leverage of “if you want to hire me you must find a job for my partner” is taking the bait. Perhaps fungible is the wrong word to use here but it never ceases to amaze me at how quickly a school gets over the departure of someone and how little lasting effect there is of not hiring someone in the first place. I know it is hard to come to grips with the fact that you are not as big a shot as you thought but let's be real about the number of people who could do our jobs. I’ll stick to my position on this. Nevertheless, even if profs were not replaceable, fungible, whatever, you would have to balance that against the downside of not even looking at people who may be better than the trailer.

And, then there was something like “We we did not consider these people we would be limiting our choices.” WTF. I am not talking about not hiring married people. No it’s a matter of not hiring based on to whom they are married. If you put a thumb on the scale because a candidate is a partner of someone you want, you are already limiting your choices

Somewhere in all of the comments there was a sense of entitlement -- but we can't both get jobs if a school will not hire a couple. I hardly know what to say. You are both adults with more educations than 90% of the out of work people in the USA. Get a real job.

The most baffling thing is the lack of discussion of what is actually going on. Suppose a candidate comes along whom people thing is hot stuff and she has a spouse that would not have been looked at. Then suppose the “hire my partner” chip is played. If the partner is hired it is simply a higher salary for the wanted spouse. Antitrust experts will recognize this as just a form of tying and really all the benefits in the form of a job for the not-really-wanted partner can be attributed to the wanted spouse.

Is there really any difference between the "hire my partner" demand and a demand for a higher salary? Please don’t say it is because the spouse is doing something. As long as he or she would not have been hired in a completely anonymous process, the subsidy exists. For example, a hot candidate could say “I’ll come for 20K more” or “I'll come at the offered salary but my partner, who does not work, would like 20K for spending money” or "I'll come if my partner gets to cutin line for a job in legal writing or in the Spanish department." In contracts, I think that is consideration, there is nothing illusory about it, and it is a result of what the hot shot offers, not her partner. Next we may have the (single) hot property saying. "I’ll come for the lower salary but your next hire must be a single person about my age of whom I approve for a possible dating relationship." Ultimately, if they both would not have been hired on their individual merits, there is a subsidy. If I were a hot shot I would say I needed both a good salary and a really cool dog.

My point that seemed to be lost on many is that the system is rigged. It’s a cousin of legacy admissions to elite schools. The rigging is pervasive in America and the class version of it has long escaped the attention of law school (and you know why).

I conceded in my original post that I prefer not to have partnership faculty. I’ve seen it work OK and I have seen it be very divisive. If you have a couple and they both bubble up in an anonymous process and you also have 2 candidates who are their equal but not partners, I prefer the latter. If one or both are untenured, I feel even stronger. Why would the greater probability of greater diversity be less favored? This, though, is a different matter than a system of hiring that is rigged in so many ways it could pass for a the Santa Maria (and it is even older.)

Thursday, October 06, 2011

The Law Suits Against Law Schools

I have only skimmed the complaint in the suit against Cooley but I assume the remaining cases must be based on the same theme -- Schools lied, students relied. For many reasons I'd be surprised if a class were certified and, if one is not, many attorneys and plaintiffs will lose interest. Still I applaud the effort and hope what legal education was not willing to clean up somehow becomes cleaner.

The whole matter is an indictment of people in my profession. We have known about this and participated at least by our silence for years. On the other hand, I have yet to hear of a faculty member badgering the dean to hire more of our own grads or admit more transfer students or offer more bar oriented courses. Unless I am missing something, most faculty would like the School to be ranked higher but are not losing sleep about it. After all, a higher ranking does not mean we are doing a better job and a lower one does not mean are students are less prepared.

Yes, most of us have stood by but my impression is that the vocal supporters of doing what ever is necessary are alums. I have heard that at my School, if we drop in the rankings, the alums have fits. I am not sure whether it is because we compete with FSU and they are terrified we could drop behind them in the US News and World Report "rankings" or because they somehow think that the education they had here is of lower quality if we drop. I am also not sure why we don't ignore them. Perhaps because we want their money. On the other hand, if they are serious about action and not whining, they could hire a few more or our graduates at better salaries.

Ultimately, though, when a public school begins hawking its products or programs like pajama jeans (Just saw them in an infomercial last night) an misrepresenting its outcomes, it's not much different than the government paying $16 for a muffin or $200 for a toilet seat. It stinks.