Mr. Rosen, Mr. Donoghue and Mr. Pak — all Republicans — testified that Mr. Trump was not seeking their legal advice, but strong-arming them to violate their oaths of office, undermine the results of the election and subvert the Constitution.
What stopped him? Two things: 1) Lawyers with a basic core of ethics that required fidelity to bedrock democratic values; and 2) the general incompetence of the plotters (cf. events of Jan 6, 2020).
I believe this has important implications for how we teach law students. More discussion of (or paeans to?) the values of the rule of law in a democratic society may be in order. At least until the Supreme Court makes ashes of it in our mouths, at which point…what?…Edward Luttwak?
I don’t know if this is an eight-year thing, like some sort of intellectual cicada, but we’ve been here before. Back in 2013, major newspapers published a bunch of articles purporting to show that a J.D. was a bad investment financially. This led to a purported (and in my view slightly over-done) rebuttal, The Economic Value of a Law Degree, by Michael Simkovic and Frank McIntyre; Simkovic in particular then took to the blogs to defend his corner.
Now, we’re back to it again: today the Wall Street Journal published Law School Loses Luster as Debts Mount and Salaries Stagnate, which generalizes from undoubtedley true tales of people who borrowed too much ($300,000 in some cases, a chunk being undergraduate debt), and were not able to find jobs after law school that allowed them to pay it back in a reasonable time, or at all.
In fact, the story last time was more complicated than it appeared from the newspapers. And yes, law school tuition is too damn high, but that’s the rack rate and law schools discounted a lot back then and do even more of it now. More generally, at least eight years ago, whether a J.D. was worth it turned out to be much more complex issue than journalists seem to be willing to accept.
I wrote a bunch of blog posts trying to sort through the mess then, and I think they’re still relevant now. A key conclusion was that for law graduates who paid full freight and ended up in the bottom quartile of the law-graduate income distribution [NB: that is not the same as being in the bottom quarter of the class in a given school–this is a national earnings number, and one I suspect skews hard towards grads from bottom-feeding law schools] law school might be a bad financial investment. Another point was the obvious one, that when you start law school it’s pretty hard to know if you will be one of those people, and some of the folks who borrow a ton might be the very people with an inflated estimate of their prospects and abilities.
Here are some links to my posts in the first round:
In his latest, Simkovic notes two key facts that he says undermine the WSJ article’s analysis. First, during the COVID recession, there has been a program of national forbearance on loan repayment. Second,
During this period, law graduates and other highly educated workers have faired relatively well, at least judging from the imperfect data that is currently available (see also here and here). Lawyers continue to earn high salaries, their employment numbers have not appreciably declined, and unemployment rates in legal occupations, at 3 percent, are lower than in most fields.
At first glance, this seems plausible. But it does not change three facts. First, there were and are a group of people who borrow a lot, especially those with substantial debt from college. A subset of that group do not get the high-paying jobs they were counting on after law school (and an even smaller subset can’t find legal work at all) and find themselves in various forms of financial difficulties ranging from not making payments to a long-term debt overhang that limits future choices in life. Second, these sub-groups are a small minority of law graduates, although the number for whom a J.D. does not turn out to be profitable could be up to a quarter of all graduates, depending on various assumptions. Third, current law school practices do not protect this group from what you might call the risk of buyer’s remorse–of course, that sort of protection against one’s own life choices is generally rare.
It’s possible to imagine some partial solutions. For example, I’d like to see educational debt more easily discharged in bankruptcy; right now discharge is much too hard.
And, there might be things law schools could do on their own too, but they are not cheap. For example, wouldn’t it be cool if some law school offered students the option of a substantial refund–say 50%?–to students who (1) had a high debt load and (2) did very poorly in their first semester or maybe their first year and (3) decided to drop out after they got their grades. It’s true that we don’t know that low grades mean low salaries–indeed there are many anecdotes of people doing badly in law school and then making a mint as a trial lawyer or an entrepreneur–but that has to be a higher-risk strategy for a student. Who knows, maybe the law school could ask for a small surcharge in exchange for this form of insurance. But I dream.
Daniel Ravicher started and runs a successful entrepreneurship clinic (the “Startup Practicum”) at the University of Miami School of Law. His office happens to be in the same pod as mine, so back in the days when people saw people I would see him from time to time. Like an increasing number of the people who teach students in law these days, Ravicher is not a tenured member of the faculty, and indeed was not hired for his scholarship. Instead he was hired for his skills, and has a term renewable contract.
He’s recently taken to social media – and even Fox TV – to claim he’s been fired for his pro-Trump tweets and other speech, or is about to be, or may not have his contract renewed when it expires. As far as I have been able to ascertain, at least the first two of these claims are simply false. The fate of the third lies well in the future.
While Ravicher has behaved badly – lying about your employer counts as behaving badly in my book – the University has, with one exception (discussed rather far below) [Update: as described in more detail below, according to the Dean, even this wasn’t anywhere as bad as the story that had been going around], behaved quite well, and held, so far at least, to its fundamental commitments to academic freedom.
But first, some lengthy background.
1. The Applicable Rules
The University of Miami, which has substantial powers to dictate rules regarding the terms of faculty employment to the law school, has an extensive Faculty Manual, which describes various rights and duty of the faculty. As regards freedom of speech and academic freedom, the Manual makes no distinction between tenured and non-tenured faculty, although its provisions do not in many cases apply to “staff” who are hired in a different manner and in some cases have fewer rights against dismissal for various reasons.
“Faculty members shall have full freedom of expression as teachers, researchers, scholars, and/or artists; this includes freedom to present their work, to advocate solutions to human problems, and to criticize existing institutions. This freedom does not abrogate faculty members’ responsibility to perform their academic duties or obligations they may have assumed in accepting support for research. Research activities are also subject to University policies such as those on patents, copyrights, and inventions as set forth in the Faculty Manual.
“Faculty members shall have freedom in the classroom in discussing the subject but should avoid persistently introducing material that has no relation to that subject.
“When speaking or writing as members of society, faculty members retain all the rights shared with other members of society and shall be free from University censorship or discipline. It should be remembered that the public may judge a profession and the University by public utterances by faculty members. Faculty members thus should make every effort to indicate whether they are acting as spokespersons for the University or are speaking in a private capacity.”
That is a nice statement, and a pretty absolute rule. But wait, there’s more. Continue reading →
University of Miami School of Law Dean Anthony Varona led the effort to draft and disseminate the letter, and acknowledged the striking nature of the requests.
“Our letter was the result of an extraordinary team effort, that resulted in a letter proposing extraordinary measures—all reflecting the extraordinary challenges faced by our graduating students, the legal profession as a whole, and the society that depends on us for legal services,” Varona said.
Full text of the Florida Deans’ Letter re COVID-19. It is a very good letter, carefully crafted for its audience, one which if rumor is to be believed has absolutely no chance in hell of adopting a Wisconsin-like plan of just waiving in graduates of Florida law schools without an exam. So the question then becomes, what is the next-best plan. The Deans suggest a very complex plan to administer the bar exam — all over the state — in socially distanced law school classrooms, or alternately to extend the existing Certified Legal Intern (CLI) program to permit graduates who clear their character and fitness investigation to practice law under supervision until they have the opportunity to pass the bar exam. Currently that program is limited to actual law students; the proposal is a one-time change to extend it a couple of years beyond graduation.