Consumer Law & Policy Blog

Legal Education Reform

We have blogged (for instance, here, here, and here) on the topic whether law students, as consumers of legal education, are being served well by law schools. Now, Brent Newton has written "The Ninty-Five Theses: Systemic Reforms of American Legal Education and Licensure."

Yes, the article actually has 95 theses. Here are a few of them: #5, "There are too many law schools, too many law students, and too many law professors based on our country’s current model of providing legal services."; #22, "The typical first-year law school curriculum is woefully outdated."; #26, "In its current model, American legal education cannot offer a compelling justification for the third year of law school."; and #71, "Interactions between law professors and students outside of the classroom are inadequate."

For what it's worth, I'll mention one thesis that struck me as largely incorrect and misguided, at least based on my personal experience. Thesis #66 is that "[a] substantial number of full-time law professors are indifferent or even disdainful towards practitioners, judges, and the practice of law." I am a long-time practitioner who has also taught at five law schools -- three over substantial periods. With a few exceptions (of course), I have found that full-time law professors greatly value the presence of practitioners on their faculties and seek to learn from them. To be sure, full-time law professors, like many members of the public, are skeptical or critical of some practices of the legal profession. But why shouldn't they be? Isn't it worth asking, for instance, whether the legal profession is too protectionist? Whether it is permitted too much self regulation? Whether it adequately serves the needs of the middle class and the poor?

Read the entire article, and decide for yourself whether Newton has supported his theses. Here's the abstract for those of you who want a summary before deciding whether to dive in:

Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform – root to branch.

Every major decision made by a law school should reflect a genuine fiduciary commitment to their students – with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.

With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary – beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies – they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially – with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able) – for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.

Arlen Specter on Supreme Court Recusal

Former Senator Arlen Specter explains in in this op-ed why Supreme Court justices should not be the judges -- as they are now -- on their own recusal from cases in which they or their family members may have any interest. Specter points to the Citizens United case, in which some people maintained that Justice Thomas should have recused because of his wife's interest in the outcome and yet it was up to Justice Thomas alone to decide whether he should have recused.

Study: Student Borrowers Lack Understanding of Loan Terms

Bloomberg coverage here. The evidence continues to mount that written disclosures of loan terms have not been effective to inform borrowers.

The Impact of Pliva v. Mensing on Generic Drug Suits

The New York Times reports that "[a]cross the country, dozens of lawsuits against generic pharmaceutical companies are being dismissed" based on the Supreme Court's holding in Pliva v. Mensing that FDA regulations preempt failure-to-warn claims against generic drug manufacturers. Whether a drug is brand-name or generic "has become the deciding factor in whether a patient can seek legal recourse from a drug company."

Social Security Suspending Annual Benefits Statements For Most Americans

Do you like receiving in the mail those annual statements from the Social Security Administration telling you how much money you will receive when you retire? The statements explain how much you will get if you take "early" retirement at age 62 or wait until the full retirement age (which ranges between 66 and 67, depending on your birth year). As Michael Hiltzik explains in this interesting article, the Social Security Administration has suspended, for budgetary reasons, the annual statement for everyone except near-retirees 60 and older.

The annual notices were the brainchild of Senator Daniel Moynihan, who got Congress to write them into the Social Security Act in 1989. In addition to providing people with useful financial information, the statements were intended to promote understanding of, and perhaps support for, the program. The agency hopes to restore the annual notices if it gets enough money from Congress for the next budget year. In the meantime, the agency is working to make the information available on line, but that hasn't happened yet.

Peter Murray: Could the French Notary System Have Prevented the Subprime Meltdown Here?

Peter L. Murray of

Harvard has written French Notaries and the American Mortgage Crisis, a book chapter. Here's the abstract:

The crisis in real estate mortgage lending that erupted in the United States in 2007 shook the foundations of the American financial system. The crisis was caused in part by mortgage loan originators, who lent improvidently to unqualified buyers on over-valued property, and by unsophisticated and ill-advised borrowers, who undertook obligations that they did not understand and were unable to bear over time.

To what extent would this crisis have been preventable had the mortgage loan documentation system provided neutral and independent advice to borrowers as well as lenders about their contemplated real estate and loan transactions? The American system of real estate conveyancing and mortgaging provides buyers-mortgagors, in particular, with no effective advice at the time they enter into what are often the biggest legal transactions of their lives.

In France, on the other hand, the institution of the civil law notary offers all parties to a real estate purchase and mortgage transaction neutral and independent legal advice and transaction completion. French mortgages thus tend to be more “mainstream,” with fewer one-sided terms than in their American counterparts. This kind of neutral transactional advice and documentation appears to be cost-effective in comparison with the classical common law model of individual lawyers representing all parties. The expense of individual representation often leads, as a practical matter, to weaker parties, such as home buyers, going without representation or advice at all.

Although some have speculated that a notarial system would have reined in the excesses that culminated in the American financial crisis, probably that goes too far. Greed and short-sightedness on the part of lenders and borrowers alike lay at the root of the mortgage “meltdown.” Neutral documentation professionals based on a civil law notarial model might have been able to affect the most extreme transactions. They would not be substitutes for strong regulation of mortgage loan origination function and the entities in that business.

The Moral Limits of Markets

At this blog, we are concerned -- rightly I think -- about advancing policies that will improve consumers' economic well being. The idea is that, to a point, economic well being is a good in itself and can enhance other forms of well being. We often want markets to work fairly and efficiently. But do we want a market for everything?

Political philosopher Michael Sandel says no in this article, and he worries that, in recent years, too many things are being bought and sold. Here are some of his examples of unusual commodies for sale:

• A prison-cell upgrade: $90 a night. In Santa Ana, California, and some other cities, nonviolent offenders can pay for a clean, quiet jail cell, without any non-paying prisoners to disturb them.

• The right to shoot an endangered black rhino: $250,000. South Africa has begun letting some ranchers sell hunters the right to kill a limited number of rhinos, to give the ranchers an incentive to raise and protect the endangered species.

• Your doctor’s cellphone number: $1,500 and up per year. A growing number of “concierge” doctors offer cellphone access and same-day appointments for patients willing to pay annual fees ranging from $1,500 to $25,000.

• The right to immigrate to the United States: $500,000. Foreigners who invest $500,000 and create at least 10 full-time jobs in an area of high unemployment are eligible for a green card that entitles them to permanent residency.

    And there are lot of non-traditional ways of making money these days:

• If you are a second-grader in an underachieving Dallas school, read a book: $2. To encourage reading, schools pay kids for each book they read.

• Sell space on your forehead to display commercial advertising: $10,000. A single mother in Utah who needed money for her son’s education was paid $10,000 by an online casino to install a permanent tattoo of the casino’s Web address on her forehead. Temporary tattoo ads earn less.

Why should we care about this? Sandel offers two basic reasons:

First, consider inequality. In a society where everything is for sale, life is harder for those of modest means. The more money can buy, the more affluence—or the lack of it—matters. If the only advantage of affluence were the ability to afford yachts, sports cars, and fancy vacations, inequalities of income and wealth would matter less than they do today. But as money comes to buy more and more, the distribution of income and wealth looms larger.

The second reason we should hesitate to put everything up for sale is more difficult to describe. It is not about inequality and fairness but about the corrosive tendency of markets. Putting a price on the good things in life can corrupt them. That’s because markets don’t only allocate goods; they express and promote certain attitudes toward the goods being exchanged. Paying kids to read books might get them to read more, but might also teach them to regard reading as a chore rather than a source of intrinsic satisfaction. Hiring foreign mercenaries to fight our wars might spare the lives of our citizens, but might also corrupt the meaning of citizenship.

Shouldn't Federal Menu Labeling Rules Apply to Junk Food Sold at Movie Theaters?

As the Center for Science in the Public Interest explains:

[I]n 2010, Congress passed a law to post calorie information on menus and menu boards at chain restaurants, on vending machines, and at other establishments with restaurant-type food, like movie theaters and supermarkets. But, the Obama Administration and industry lobbyists want to exempt movie theaters and alcoholic beverages and perhaps supermarkets and convenience stores.

A tub of movie-theater popcorn contains up to 1200 calories, so you can see why the theaters don't want consumers to know that. But why does the Obama Administration agree? It's not that the posting of calories at movie theaters is more difficult than, say, at McDonald's or Wendy's. After all, movies theaters in New York City are already required by local law to post calorie information on the food they sell and appear to be complying with little problem.

Watch this video to learn what's at stake. The video is also embedded below:

 

 

Matt Stoller: On Foreclosure Fraud, One of the Good Guys Gets a Win for a Change

Here.  This is a passionately-written piece, to say the least.  An excerpt:

Going up against the banks is not easy.  What these banks do to ensure that their opponents (their real opponents, not the pliant risk-averse operations like the Center for Responsible Lending) are weak is starve them of funds, over-lawyer them, smear them with PR, and basically do anything they can to ensure that it is painful, lonely, agonizing, and horrible to stand up for your rights and the rights of others.  Another one of these heroic figures, Lisa Epstein, was smeared in a juvenile report put out by the Florida Inspector General back in January.  Florida attorneys June Clarkson and Theresa Edwards were fired by Attorney General Pam Bondi, and their reputations savaged.  There’s a lot more to the story, of course.  It’s just a very narrow slice of what I saw.

UPDATE: A commenter has persuaded me that I should note that my own experiences with CRL have been extremely positive, and that in my experience their work and staff are outstanding.  When I post things to this Blog, it isn't always because I agree with them; sometimes it's because I think the views will be of interest to the readers of the Blog.

Did Ben Bernanke Save the Economy?

Federal Reserve Chair Ben Bernanke is hated by people on the left and right. But according to this article by Roger Lowenstein in the April 2012 Atlantic, he saved the American economy. Among many things, the article contains a brief history of the Fed.