In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
There Has Got To Be A Better Way (Law School, Part 5)
Note: This post is part of our League Symposium on Higher Education in the 21st Century. You can read the introductory post for the Symposium here. To see a list of all posts in the Symposium so far, click here. This is the fifth of five posts I offer about law school.
In my first four posts about law school, I’ve raised the issues of good or bad reasons to go to law school and unrealistically high expectations for what law will be like, all the hoops you have to jump through to get in to law school, the unpleasant process of moving through legal education to licensure, and the unimpressively small pot of gold awaiting your journey to the end of that rainbow. I’ve painted a cynical, pessimistic picture. Deliberately. If you do go to law school after reading all this, at least you’ll do it with your eyes open.
But today, I’m going to tell you that there are ways legal education and the practice of law can be improved from the way things are. I’m going to be optimistic instead of cynical for a change. Now, there’s no silver bullet making legal education and the practice of law more humane. But there are some changes we might consider which would make things better than they are now. Over time, maybe even much better.
The Tuition Is Too Damn High.
Simply put, incurring $200,000 in debt to get a law degree is completely unreasonable compared to the compensation the typical lawyer makes. If you hit it big as a plaintiff’s attorney, or are making Biglaw bucks right out of the starting gate, that’s one thing. But that’s not most people.
Universities need to stop looking at law schools as “profit centers” because doing so does their law students a tremendous long-term disservice. They need to charge a fair tuition with an eye towards their graduates’ likely incomes. Considering my own situation, I’m still years away from repaying my law school debt, having had to refinance it several times during rough patches in my career. I would spare others these burdens in the future.
The obvious question is, “How much tuition would be fair, Burt?” I say, about $20,000 a year, which is less than half what the going rate is for a top-tier school. I reach that number reverse-working the math for what a new lawyer working a realistic sort of job would earn, aiming at a payment of about 10% of pre-tax income in student loan payments. As one advances in one’s career and earns more money over time, the early repayment of a student loan should become a realistic option, or if nothing else the weight of the debt should become lighter.
The good news is that there are schools which are having serious conversations and discussions about this. The bad news is, it’s very difficult to get institutions to change course towards less profit and less income, and for those students who do get top Biglaw jobs, the tuition and resulting debt isn’t unmanageable, and nearly everyone hopes for those kinds of jobs. Scholarships and grants are available but in substantially less amount than for undergraduate or other kinds of graduate education. So overt reduction of tuition, motivated by a benevolent desire to generate alumni who aren’t shackled by debt, is not likely to occur.
What does drive tuition costs down is competition. So for that, we need to think a bit about the still-developing force impelling change throughout higher education, which is the idea that education need not have a physical footprint anywhere.
I can’t think of a good reason why law school can’t be taught over the computer. Videoconferencing is good enough that professors and students can see one anothers’ faces and react to them. Study is done at home anyway, research is done on the computer anyway.
Given this, there is less need for a substantial physical plant for a law school than even for a regular university. So it’s sort of surprising that there’s so few distance learning modeled law schools yet in existence. The most watched of these is called Concord Law School, affiliated with an established online undergraduate college, Kaplan University. While some Concord’s core concepts are intriguing, it lacks ABA accreditation and ABA accreditation is simply not in the cards for distance learning law schools anytime soon.
Some state bars will recognize a degree earned online, but not all. In California, if you do not attend an accredited law school, you can still gain admission to the bar, provided that after your first year you pass an examination testing in first-year subjects commonly called “the Baby Bar.” Concord makes all of its students take the Baby Bar whether they intend to practice in California or not, and touts that almost half of its students pass this test (as opposed to just over a third for all takers overall).
I’m unsure of what the proper standard for excellence here ought to be. My intuition is that this falls short of it. Nevertheless, I wish Concord well because it seems to be willing to explore new ideas — it offers an “executive J.D.” which does not aim itself at practicing law but does describe theoretical underpinnings of law for those with an interest in it. Might be good for those students looking to glean actual business use out of an understanding of law. It’s a creative idea, anyway. Concord’s annual tuition of just under $10,000 a year seems to be a fair and reasonable price for what they’re offering.
For all of its cruelty towards unprepared students, I do think the Socratic method works well for teaching law. That’s because it really does prepare a student for court, for learning how to listen to a question and answer it — a skill which, given the number of self-represented parties I see in court almost daily, turns out to be rather unusual. Over time, the student learns not only how to listen and answer, but how to answer persuasively, and therein lies the art. That requires practice if nothing else. And internet videoconferencing has become good enough that a professor in location X and a student in location Y can now have the kind of back-and-forth necessary for Socratic examination to occur.
So the day is coming, maybe not in the near future thanks to the ABA but in the foreseeable future, when videoconferenced classes, all-online libraries, and coordination between students, law school administrations, local attorneys and courts for practicums are considered appropriate means to obtaining a law degree. The traditional bricks-and-mortar academy needs to do more than simply sneer at this to hope it goes away, because it won’t.
And not all classes have to be taught Socratically. More traditional lecture-and-research formats are used now in many law school classes and have been for a while. And particularly when there’s a specialized set of knowledge that needs to be conveyed before further work can be done, an instructor lecturing and fielding questions is ideal. I can think of lots of subject areas of law where things are so askew that this would be important: tax, bankruptcy, and intellectual property are all pretty arcane in their intellectual constructs and some professorial hand-holding is important to get people started. In fact, how much of this stuff ought law schools to be teaching in the first place?
Three Years Is Too Damn Long.
Looking back on my own law school experience, there is no particular reason I could not have studied every bar class in the curriculum and sat for the bar exam by the time I’d completed my second year. The extra year’s worth of classes were often interesting, and the trial law practicum a source of both pride and confidence for me, and the publication of my law journal article also a source of pride and a significant academic achievement. But none of that was particularly necessary.
This is certainly the most common sort of law school reform idea out there and the big objection is that it would require law professors to take a one-third pay cut, and they’d all bail out of the academy to go to Biglaw and keep their incomes up. I’m skeptical of this criticism. Consider, for example, the University of Texas’ law school, a top-tier program.
UT Law has an enrollment of 1,065 and charges $32,376 in-state tuition and $48,075 out-of-state tuition. I cannot readily find a statistic for how many students are in-state. UT Law has a large faculty, 76 full-time and 78 part-time or adjunct professors. The full-time faculty includes the President of the University of Texas-Austin, five who share duties with the Lyndon B. Johnson School of Public Affairs, one who shares duties with the “B” school, and sixty-four of whom hold named chairs, from which I infer that the seats are at least partially endowed from non-tuition sources.
If we assume that each of these full-time staff make money competitive with (but less than) Biglaw, they’re getting total compensation in the neighborhood of $200,000 a year. I can’t know for sure, but it would be a very generous compensation indeed if 50% of that pay went to the part-time and adjunct professors. Even if so, that’s total faculty compensation of $23,000,000. An unknown and unknowable amount of this compensation is deferred from the fact that nearly 85% of the full-time faculty spots are endowed.
If we assume that half of the students pay out-of-state tuition, that’s a total inflow of $42,832,308 per year in tuition money, whether that comes from the student’s pocket, grants or scholarships, or loans. After the major expense of paying the faculty, that leaves roughly $20,000,000 a year, plus the net from faculty chair endowments, plus other endowments, from which essentially the only other major expenses are maintenance of the law school’s physical plant and library, which is not inconsiderable. I find it hard to believe that this much money does not generate inflow into UT’s overall revenues.
As a business model, without considering how much money is involved in the endowments, the law school looks like it’s operating at about a +40% margin. Cutting revenues by one-third but leaving faculty compensation intact would leave the school operating at about a break-even point, which doesn’t seem so awful considering that it’s a public university. If UT unilaterally cut its law school curriculum to two years (assuming the ABA would accredit such a thing, of course) what the broader University of Texas system would lose would not be faculty but what would in any other context be called “profit.”
If UT were to cut faculty compensation by one-third instead, it would be retaining its own “profit” from the law school at the expense of paying its highly-skilled staff less for their labor. Many of whom would accept the pay cut because they know academic work is much more pleasant than would be going back to Biglaw, and/or they already have their own money anyway.
The fact of the matter is, two years is enough time to teach every bar subject and the legal academy has more than enough financial space to absorb the reduced revenues from a shorter curriculum. Breadth requirements are wonderful and specialty classes for those who have a good idea of the kind of work they want to do are very helpful. But whether we reform to the idea of specialty licenses, or keep the general-purpose licenses that exist now, it would be child’s play to structure a two-year curriculum that provides the intellectual foundations for the practice of law. It would be a bit more complex, but again well within the ability of educators today, to structure pared-down curricula aimed specifically at particular kinds of practice.
We Don’t Need General Purpose Lawyers For Everything.
Particularly now that I’m practicing, I find that a lot of my work is repetitive in nature. I deal with the same concepts over and over again, and I’m not alone. Other attorneys who work in different disciplines suffer from the same thing — it changes the way you think and you lose the ability to deal with things outside your bailiwick. If I’m going to stick to my knitting anyway then why not regulate the profession as such?
One way to handle that is to create a new kind of professional: someone in between a general-purpose lawyer and a paralegal, competent to handle particular kinds of cases but not entitled to deal with things beyond their area of focus. And given that, less education need be given and such education as is given would be focused and maybe produce a high degree of expertise. The State of Washington is currently exploring this idea in the real world by licensing what it calls “legal technicians.” The Washington State legal technicians could prepare court documents and render legal advice within their areas of licensure without attorney supervision, but not represent a client in court. The program is brand-new; the first licenses were only issued in September of 2012.
I’m optimistic because I think that a) paralegals in practice do this stuff right now, with less education and regulation than what is required by Washington’s licensing scheme, and most of the time, nothing bad happens, b) the licensing will get people with more complex problems requiring general-purpose lawyers integrated into the legal system rather than operating on its fringes on the strength of shoot-from-the-hip “advice,” and c) most kinds of “real people law” is repetitious and not particularly complex and therefore does not require a comprehensive knowledge of the scope conveyed in a traditional three-year law school.
My fear is that the education available for technicians will be short on the nuts-and-bolts side of things — what form do you fill out to initiate a divorce, how do you subpoena documents from a third party — and the technicians will need experienced attorneys to supervise them to get started until those skills get mastered. Rather like my criticism of paralegal education right now.
Washington’s system doesn’t mean that the general-purpose law degree has to go away — indeed, the general-purpose lawyer remains the principal actor within Washington’s justice system. But it means not everyone pursues the general-purpose law license.
So think about the next step — limited purpose law licenses. A step above the legal technician is the focused attorney. If what I really want to do is be a prosecutor, then I can go to criminal law school and learn how to prosecute or defend a criminal case. I don’t need to worry about intellectual property or divorce because that’s not what I intend to do. Maybe if I’m going to handle employment cases, business disputes, and real property work (as I actually do), it’s not so important that I have knowledge about criminal procedure, marital property, or tax. As a practical matter, if some of those issues arise in a case I’m handling, what I do in real life is ask a colleague who practices in those areas.
Medical doctors generally get general purpose licenses: the medical license lets a doctor do boob jobs, open heart surgery, contraceptive counseling, or allergy diagnosis. The medical profession relies on the doctor to set her own limits and regulate her own practice within her own competency. But contractors get specialty licenses — there are general contractors but there are also HVAC guys and companies that do only electric and landscaping. Those licenses are relatively easier and cheaper to get because those contractors are going to be doing only specific kinds of work. Maybe law can be more like construction and less like medicine.
Kudos to Washington for undertaking the experiment. May it bring competent advice to real people in Washington at an affordable cost, and serve as a model for further reforms across the country. For that matter, around the world. And if we look around the world to see how other countries do it, we might just see something a bit more radical than we’re used to, and if we keep an open mind long enough we might just see some wisdom in the systems of our friends overseas.
“Demote” Law To An Undergraduate Degree.
Law is already specialized field of study and taking students right out of high school and plunging them into it might actually work. There would be a good deal of general government, political science stuff involved in the base of the curriculum, and some economics and history would be unavoidable too. But if we were to imagine two years of basic lower-division undergraduate liberal arts curriculum with an emphasis on political science, and then two years of upper-division undergraduate study in torts, contracts, procedure, and so on, we might fashion a challenging but credible way to convey the important concepts of law school to an undergraduate.
And as long as we’re being radical, why are we trying to cram all of this into a traditional four-year program anyway? Plenty of students take five years to get an undergraduate degree as it is; why not craft a five-year program?
I can see it, as an intellectual matter. The idea seems radical, but it really isn’t. After all, this is how it’s done in most countries other than the United States.
My real concern is that eighteen-year-olds embarking on this sort of course of study wouldn’t have a clue what they were getting themselves into. It’s probably good, not from an intellectual perspective but rather an emotional one, that law students have at least the minimal maturity and minimal life experience to have completed college before embarking on something that affects their future clients’ lives so intimately as handling their legal work.
The idea is not really fleshed out very well. And a general-purpose law degree does require some in-depth study of higher-tier concepts. Certainly doing such a thing would require a higher degree of structure in the course of study than most liberal arts majors are accustomed to seeing, and it would be a difficult thing to do. Such a program would have a high washout rate. And the maturity thing bugs me a lot: I got my license at age 24 and damn, was I naïve when I started out.
Nevertheless, I’ve heard this idea in more than one place, so I float it out there for you. It ought to be possible. Other nations do it and it works out fine. And other kinds of professions also structure their day-to-day practices differently than law, and consequently educate, train, and incentivize differently than law. If we lawyers get over our arrogance, we might find that other kinds of service industries offer constructive models.
The concept of “value billing” is more of a reform to the legal profession rather than the legal academy, but it’s one that would if embraced create happier (and who knows, maybe even better-paid) lawyers and if it were embraced, the legal academy would begin to conform to fit it. The concept here is not to bill by the hour or by the case (either through a contingent fee or a flat fee paid up front), but rather to bill flat fees for specific tasks. Come to think of it, this might create happier clients too.
Academically, a switch from the prevailing paradigm in hourly billing to task-based billing would create a premium in efficiency. Research skills and writing skills would be taught with greater emphasis because the lawyer who can produce good-enough work faster will have an edge. To be sure, there are bespoke motions that must be done sometimes, and appropriate charges should be made for such work, but most work is routine-to-rote, changing only numbers and names from case to case to case.
A legal profession that embraced value billing would be possible only if courts would enforce value billing on attorney’s fee motions. In some kinds of cases, one of the remedies available to a prevailing party is to have the other party pay their attorney’s fees. You can write that in to your contracts, and some statutes do this fee-shifting as well. But courts are married to the idea of “lodestar billing,” which is the traditional model I wrote about yesterday. Take the time an attorney spent doing the work and multiply it by a number that appropriately values the attorney’s work and market conditions — $300 an hour in my area for all but the most junior lawyers. The idea that “This demurrer costs $3,000 and it doesn’t matter which attorney did the work or how long it took to do it” is still foreign to most courts.
A legal academy that prepared students to do this sort of flat-fee value billing well would emphasize the standardization of the task, the ready discernment of factual elements to be embraced and analyzed by the motion, and probably result in the motion being faster, clearer, and simpler to write. This could produce higher profit margins for the lawyers able to pull it off, higher client satisfaction from predictability and fairness in the billing itself, faster and more uniform processing of the work in court because the clarity of the drafting would improve, and an academy more focused on teaching practice rather than theory, particularly at its middle and lower tiers.
I can’t help but think that some, or all, of these ideas would make for happier lawyers burdened less by debt and able to deliver quality services to their clients at a fair price.
As a society, we can’t do without the legal profession and the justice system, but that doesn’t mean it has to be the way it is or that it has to exact such a toll on its most important actors. There is a lot of drudgery and a lot of stress in law; it can’t all be reformed out. There is a lot of nonsense in legal education; it won’t be all reformed out and even if it were surely new nonsense would flood in to fill the vacuum. But there’s no reason it can’t get better. Plenty of people want it to get better. Making it better will involve analyzing some new ideas and new ideas are sometimes kind of scary and face resistance simply because they are new and scary. A profession predicated upon the idea of precedent — following the example of the past — is inherently going to be difficult to reform.
I’m convinced that we can move forward, that the legal profession will move closer to fulfilling the promises it made to my generation of attorneys about the pleasure, products, and profitability of practice. Maybe the changes happen only one law school at a time, one law firm at a time, one judge at a time. But if I thought it was all hopeless and bleak, I’d have opted out of the profession a long time ago and figured out something else to do with my life. I’m still around, though, and not just because I can’t think of anything better to do.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.