Friday Links

Behold, the cover of Sam Hill: Private Eye #4, published way, way back in 1950. In that issue, we see that a trial is taking place, and Sam Hill, “America’s hard-boiled, wise-cracking sleuth,” is called to the stand to testify as a witness. “Careful what you say, Sam!” says a villain. “My boys will be watching you.”  Undeterred, Sam replies, “Tell ‘em to listen real close, too! They’ll hear the whole truth and nothing but!” Replies another gangster: “If we do, you’ll never leave that witness chair alive!” This is some frightful courtroom conduct. We trust that Sam stayed true to his guns, testified against the criminals, and justice triumphed in the end. Surely he did, right?

As you know, we here at Abnormal Use are big fans of the rock group R.E.M. Back in September, we wrote an obituary of sorts when the band announced it’s break-up after 31 years. We bring that up so as to direct you to this fantastic piece at The Onion AV Club, in which writer Steve Hyden explores his life-long love the band. It’s the first component of a multi-part series in which he explores the band’s output, starting with the material from the late 1980s, when he first encountered the group and its music.

Speaking of music, a columnist at The Philly Post has published a piece called “Why I Hate Bruce Springsteen.”  What the heck? We’re going to have to ask our blog pals Steve McConnell of the Drug and Device Law blog and Max Kennerly of the Litigation & Trial law blog to investigate this blasphemy. (Hat Tip: @blogness).

In a post entitled “Brainstorming Warning Labels for Purchases of a Legal Education,” Attorney Indy at the Mercho Legal Services blog responds to our writer Frances Zacher’s series of posts this week on legal education.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

The Cost of Legal Education and Unintended Consequences

Over the past few days, in our series on legal education and the idea of law school as a product, we’ve been examining legal education through the lens of product liability law.  We’ve discussed whether legal education is defectively designed, examined warnings that might be appropriate, debated the risk/benefit analysis of the cost of legal education, and explored potential remedies.

We want to explore another issue with you: the concept of unintended consequences.

Recently, the Wall Street Journal Law Blog featured a story about Yale Law School’s loan forgiveness program.  Before the recession, the program subsidized student loans, in full, for those graduates earning less than $60,000 per year in public sector jobs.  For those earning a larger salary, the graduate bore some burden, but the loans were still heavily subsidized.  Going forward, however, “due to more conservative budget projections as a result of the recession,” the program will only fully subsidize loans for those earning less than $50,000, and expect varying [read: additional] contributions on a sliding scale for those earning more.  As the article points out, several law schools have similar loan forgiveness programs.

What does this all mean?  As we discussed in prior posts, the cost of a legal education continues to rise, and increasingly, students are turning to loans to bridge the gap between what they can pay and what schools charge for tuition.  As tuition increases, the ability of students to repay the loans decreases, especially for those students who want to pursue careers with legal aid or other similar agencies or the government.

On top of that, schools may start to re-examine their loan forgiveness programs, as Yale has done, and they may not be able to be quite as generous as they once were.  The result may be a public sector in dire need of well-educated, experienced lawyers, with no pool of candidates to choose from because they can’t afford to work for such low salaries.

If you take this analysis to its most cynical end, then we wind up with a legal system in which access to legal representation is limited to those who can pay the lawyers who have to earn large salaries to pay back their student debt.  Follow me?  It’s a depressing prediction, but we are left with the enduring fact that lawyers who may owe Access Group or Sallie Mae close to $100,000, we can’t fulfill the Atticus Finch fantasy of working for vegetables.

Remedies for Unreasonably Defective Law Schools

So far, in our series this week on viewing law school as a potentially defective product, we’ve discussed whether the current law school curriculum is defective, or if the warnings about the cost of law school versus the job prospects are inadequate. If we assume one (or both) of those is true, what is the remedy?  How should students or graduates be compensated or made whole for a law school’s shortcomings?  This is not a mere academic exercise.  As reported by the Wall Street Journal Law Blog, lawsuits are being filed against law schools on a variety of theories.  Additional reports can be found here by the National Review and here by Yahoo! Finance.  A more recent, and comprehensive article also appeared in dritoday entitled “Educational Malpractice.”  Read it here.

Here are a few remedies that have been proposed.

1.  Cold Hard Cash. One idea might be a refund of the money a student paid to attend the law school in question.  That’s what the plaintiffs in the class actions filed against Thomas M. Cooley Law School and New York Law School seek; those plaintiffs want $200 million or more in refunds. Two Yale Law professors advocate a preemptive strike of sorts along these lines.  Why not, they write in a Slate article, pay a student back part of his or her tuition if the student quits after the first year of law school?  Here is what professors Amar and Ayres say about why this remedy might work:

A half-tuition rebate splits the loss of an aborted legal career between the school and the student. Each has skin in the game, so students will not go to law school lightly, and law schools will have better incentives not to admit students likely to fail.

The idea is to mark the end of the first year, after students have received their grades, as a salient decision-making point. At that time, students will have learned more about their legal abilities and inclinations. Law schools will also have learned more about each student’s abilities, and schools could now disclose how previous students with similar first-year grades fared after graduation. Students accepting the offer would be choosing to quit not just their school, but the pursuit of a law degree. Anyone who took the money but re-enrolled in another law school—within, say, five years—would have to repay the rebate.  This would guard against the risk that good students would take the rebate and transfer to another school just to reduce their cost of becoming a lawyer.

An interesting idea.

2.  More Pie. Have you ever heard the joke about the winner of the pie-eating contest winning more pie?  Well, if you like that tale of woe and pie, you’ll love this approach to the law school dilemma.  According to an article in The New York Post, the City University of New York School of Law is offering some students an additional semester at the school – on the house – if the school believes the student may not pass the bar examination on the first attempt.  Because the remedy for someone who is terrible at law school after three years thereof – you guessed it – is more law school!

3.  A Different Approach Altogether. If law school in its current form is untenable, what can be done to fix it?  Some law schools focus on this part of the equation, including Washington and Lee University School of Law and Baylor Law School, which offer curricula that, in part, defy the traditional, Socratic method/case study formula or emphasize practical training over the theoretical.  Perhaps the solution is to emphasize the practical side of legal education, and teach students, for example, what a set of discovery looks like before they enter the workforce.  This approach might provide graduates an advantage over their competition and make them more marketable in the workforce.

Whatever the remedy, it is clear that something has to change, and change fast.  Again, we look to a report on The Wall Street Journal Law Blog suggesting that the lawsuits being filed against law schools are more than bad press – they can be bad business too, and even affect a school’s credit rating.  Even if the students can’t get a school’s attention, maybe that will.

Warning: Your J.D. May Not Be Worth What You Paid For It

As product liability lawyers, we here at Abnormal Use acknowledge the existence of inherently dangerous products or items that, at the very least, can do cause serious damage if not handled properly or operated the proper fashion.   Accordingly, we often analyze whether there should be warnings on a product, and if so, what they should say and how they should say it.  As a society, we don’t always remove such products from the market, but we have decided that we want to make certain that consumers realize what they can do to protect themselves when using such products. Certainly, there is nothing controversial about those sentiments.

The same might be said for law schools. Most of us have been out of law school for some time now, and as such, we may have forgotten the price we paid to practice in our current profession (at least in those brief moments when we can forget those monthly student loan statements).  As this Associated Press article indicates, tuition at top private law schools can top $30,000 per year.  Very few students can afford that princely sum.  Furthermore, many students feel compelled to attend the best law school which will admit them, and thus, they may be less likely to be awarded scholarships from that institution.  So, these newly minted law students turn to lending institutions for financial assistance. As set forth in this article, the average educational debt for a student graduating from a private law school is $106,000, and $70,000 for those students who attended a public law school, an increase of 50 percent between 2001 and 2010.  The ABA Journal further reported that, according to U.S. News & World Report, in 2010, 85 percent of law school graduates from accredited schools carried an average debt load of $98,500.

Yikes.

Now, that wouldn’t be such an obstacle if new lawyers could practice for a few years and repay those loans with great ease and little fanfare.  But we all know that’s not the case, especially these days.

Problem #1:  Getting hired.  During these troubled/troubling times, there are fewer jobs for graduates of any educational institution, much less law school.  For some time now, we’ve read about law firms instituting hiring freezes, relying on lateral hires rather than gambling on recent graduates, or even laying off lawyers and other support staff.  We don’t need to spend more time on this cheery subject.

Problem #2:  Earning enough money to repay one’s loans in a reasonable amount of time.  That’s the real trick, isn’t it?  As law students, few of us suspected that we’d be able to wear this t-shirt immediately upon graduation:

On the flip side, as noble and idealized as it may sound, we didn’t want to live like we have been paid in vegetables, like Atticus Finch in To Kill a Mockingbird. According to the National Association for Law Placement, the median starting salary in 2010 for law school grduates was $63,000, as reported by the ABA Journal here.  That amount simply isn’t enough to confront the average student loan debt.

Jim Chen, dean of the University of Louisville Louis D. Brandeis School of Law, recently crunched the numbers and published an article entitled “A Degree of Practical Wisdom:  The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduate’s Economic Viability.”  A good summary of Chen’s article can be found at the Wall Street Journal’s Law Blog here.

Chen’s conclusion?  In order to attain a “good” level of financial viability (defined as being able to take on more debt and be “very financially secure”), a law school graduate must earn six times the amount of annual tuition he or she paid for school.  So the average private school grad (where the bill usually starts around $30,000 per year) must earn $180,000 per year salary to have a “good” level of financial viability.

We’d like to point out one thing in particular about the WSJ Law Blog article.  It states the median salary for lawyers was $113,000 in 2010.  This accounts, however, for all lawyers, no matter how long they have been practicing; it also tracks lawyer salaries, not law grad salaries.  For that, we would refer you back to Problem #1 – getting that law job in the first place.  It’s also a bit deceiving in that most of the lawyers who are paying this student debt are new lawyers, who would be earning the lowest figures of that median scale.  We think the more accurate figure, therefore, is the $63,000 figure.

So, if we were to design a warning for a legal education, what would it say?  One option:

WARNING:  You may not be able to pay these loans back during your lifetime.

We would argue, however, that this warning might not be adequate.  Instead, consider this stronger, more accurate warning:

WARNING:  Go to law school, and you may wind up bankrupt and still liable for the student loan debt.

The data supports the warning, unfortunately.  Reuters reports that according to Access Group, a bigwig in the law school loan debt industry, “law-school loan debts started rising in 2008 and peaked toward the end of 2010, when students were defaulting at twice the expected rate.” Indeed, Reuters recounts the story of one law grad who filed for Chapter 7 bankruptcy protection even before she graduated but is still stuck with the law school bill.  Under federal law, student loan debt is only discharged if the repayment would cause the debtor “undue hardship,” which, as the article points out, is extremely hard to meet.  In fact, the only account we found where law loan debt was discharged in bankruptcy was here, and involved a student who had failed the bar exam three times and a retiring judge who openly defied the District Court that remanded his decision.

A warning (of sorts) is in the works.  As reported here and here by the Wall Street Journal Law Blog, the American Bar Association is making changes to the way it collects job data from law schools, as well as the way in which law schools report job statistics, with the goal of increasing “clarity, accuracy, and accountability.”  No longer will law schools be able to count baristas at Starbucks as one of their “employed grads” within nine months of graduation; schools must disclose whether their graduates found jobs in the legal field.  The ABA also wants to create some consequences for inaccurate reporting, such as its recent public censure of Villanova University School of Law in August of this year for reporting inflated and inaccurate GPA’s and LSAT scores.  Perhaps the new requirements will stem the tide of lawsuits by grads and students against their lawsuits for misleading them about job placement numbers, as reported here.

Or maybe not.  After all, law schools allegedly train us to be lawyers.  What better on-the-job training, so to speak, than suing the institution that taught you everything you know about the law?

Legal Education: A Products Liability Approach

As lawyers, we have all been consumers of one common product: law school.  We know some attorneys who truly loved law school; we certainly know a number of others who detested it.  Interestingly enough, in our experience, a lawyer’s love or hate of law school has no bearing on whether or not he or she enjoys the actual practice of law. Why do we bring that up today? We here at Abnormal Use focus on products: their design, implementation, cost, and, sometimes, better alternatives.  This week, in a series of posts by our own Frances Zacher, we plan to scrutinize the law school formula as a product in the same fashion and debate the following questions:

Is law school defectively designed? Nearly early American lawyer practicing today is the product of a very traditional three year curriculum, from the first year Socratic method and standard set of classes focusing on the jurisprudence of no jurisdiction in particular, to a second year full of law journal responsibilities and moot court competitions, to a third year during which most students spend more time in job interviews, golf courses, and bars than in the law school classroom or the library.  Is there a better way?  Would a different model better prepare us for the practice of law itself?  We will talk to a few commentators who have attempted to address these issues at their own law schools.

Warning:  Your legal education may not be worth the price. Currently brewing in higher education and legal education is a huge debate centered squarely on the issue of return on investment.  What disclosures should law schools make to prospective students about job placement percentages, starting salaries, and the quantitative and qualitative value of a legal education from a particular institution?  Lawsuits are popping up all over the country over these very issues, and we will explore their merits and debate the issues that underlie them.

What is the appropriate remedy? If law school is defectively designed, or if the warnings are not sufficient for law school, what should be the remedy?  Plaintiffs suing law schools – and in some cases, the law schools themselves – are exploring a few different potential remedies, from tuition reimbursement to extra classes for free.  Are any of these remedies adequate?

By taking a products liability approach to these questions, we hope to gain some insight into what exactly is behind these big debates in legal education today, and perhaps, glance into the future and explore what law school might look like in the near future.  We hope you’ll share your thoughts with us along the way.

Friday Links

No comic book covers today for this edition of Friday Links, dear readers. It’s an Abnormal Use tradition to see Bruce Springsteen and the E Street Band whenever they come to the region, and so it was this past Monday evening when we found ourselves at Springsteen’s concert at the Greensboro Coliseum in Greensboro, North Carolina.  Present for the show were editor Jim Dedman and author Phil Reeves (along with non-blogger GWB attorney Art Howson). You can find the great set list here (and note that he played “Because the Night!”). We don’t blog enough about Springsteen. Not too long ago, we paused to reflect upon the passing of Springsteen’s saxophonist, Clarence Clemons, who passed away last summer at 69.  In that post, we included a photograph taken at Springsteen’s 2009 Greenville, South Carolina show at the Bilo Center, at which we captured a photograph of E Street Band member Steven Van Zandt holding a handmade sign made by Reeves.  What a day that was. (Oh, and if you haven’t heard it already, here is a link to Bruce Springsteen’s keynote address at the recent South by Southwest music festival in Austin, Texas.).

Whoa! We just learned that we were named the “Blog of the Month” for January 2012 by the Penn State Dickinson School of Law Alumni Connection! Thank you!

The wonderful TweetsofOld Twitter account reports on an 1884 Louisiana on the job injury.  We wonder if it was litigated.

This week, Philip K. Howard at The Atlantic asked “Should the Courts Be Allowed to Repeal Obsolete Law?” An interesting read, that..

This week, Abnormal Use broke through into a new medium, taking the public airwaves by storm.  Our own writer Nick Farr was a guest on KUCI-FM‘s “The Docket” to discuss the legacy of My Cousin Vinny.  Nick enjoyed some great conversation with host Evan Simon about the film and its practical application in our legal careers.  In case you missed it, we understand that a podcast of that interview may be forthcoming.  Keep checking for updates!

Philip Morris Not Liable for Fire Started by Cigarette

Recently, in Sarro v. Philip Morris USA, Inc., No. 08-10224-MLW (D. Mass. Mar. 7, 2012), a Massachusetts federal court held that Philip Morris (“PM”) was not liable for a fire that killed a woman when she fell asleep with a lit cigarette. In 2007, the plaintiff, as administratrix of the woman’s estate, sued the tobacco giant in Massachusetts state court alleging that the defective design and manufacture of the cigarettes caused the fire. After the case was removed, the federal court dismissed the product liability claims in 2009. Until the court’s recent decision, the plaintiff maintained a separate claim alleging that the woman was killed by PM’s willful and wanton conduct.

The woman started smoking on July 31, 1968, her fourteenth birthday, allegedly due to PM’s marketing campaign. In the years that followed, she became addicted to cigarettes. In 2004, while in an impaired state, the women lit and fell asleep with the Marlboro cigarette that caused the fire at her home. Essentially, the plaintiff alleged that had PM not engaged in the willful and wanton conduct of advertising cigarettes to consumers in 1968, the woman would have not fallen asleep with a lit cigarette in 2004. Even though the theory tests the outer limits of proximate causation, it does make some sense in a crazy temporal but-for-this, but-for-that way.  We suppose.

The Court indicated that PM could be held liable only if

[T]he evidence is sufficient to prove that prior to July 31, 1968, it knew, or had reason to know, of facts creating a high degree of risk or physical harm to others, but it did not realize or appreciate the high degree of risk involved, although a reasonable actor in its position would have done so.

Unable to find any evidence that PM, in marketing cigarettes prior to July 31, 1968, should have been aware of the probability that the woman would become addicted, smoke while impaired, and die due to a fire started by a cigarette, the Court granted PM’s motion for summary judgment. The Court got this one right.  Not only does this case present a series of “but for” facts reminiscent of a Torts exam, it also begs the question:  Don’t we assume the risk of fire when falling asleep with a lit object?  Regardless of PM’s culpability in marketing cigarettes, the hazard of falling asleep with a lit object should be apparent to us all.  Perhaps the plaintiff could have presented a reasonable alternative design for a self-terminating cigarette had her product liability claims not been dismissed back in 2009.  While we wait for those results, we may want to consider electronic cigarettes.

How To Blog: A Primer (And Not A Boring Primer, Either)

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his most recent submission was published at that site.  The topic:  ”How To Blog: A Primer (And Not A Boring Primer, Either).” We’ve been doing this blogging thing for more than two years now, and so we are often asked by readers and friends, “How does one actually write a blog entry?”

Here’s part of his response to that question:

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.

Click here to read the full post.

TV Review: USA’s “Fairly Legal” with Sarah Shahi (Season 2)

USA’s “Fairly Legal” returned to the television airwaves this past Friday.  Having just spent a whole week on My Cousin Vinny posts, we felt no constraints in returning to pop culture and offering you this review of the second season premiere.  Last  year, we interviewed the show’s creator and then-producer Michael Sardo, which you can peruse here.  Sardo was replaced this season by producer Peter Ocko. Although it’s been some time since we here at Abnormal Use watched the show, we figured now was as good a time as any to revisit it.

As you may recall, “Fairly Legal” centers around a young mediator and former attorney named Kate Reed (Sarah Shahi) who works for a San Francisco law firm started by her late father.  As the series opened last year, Kate’s father had just died, leaving her and the firm to adjust to the loss.  To make things worse for Kate, the firm is now headed by her cold stepmother and new boss Lauren Reed (Virginia Williams).  Needless to say, the two of them,who are relatively close in age, by the way, don’t get along well.  As if this wasn’t enough, Kate is going through a divorce with her estranged husband Justin Patrick (Micheal Trucco), an assistant district attorney.

Directed by Anton Cropper, “Satisfaction,” the first episode of the new season, lacked a certain polish. Admirably, Ocko seems to be steering the show away from its mediation of the week formula in favor of a more detailed character study. However, much of  ”Satisfaction” was still dominated by the central case of the week.  Kate attempts to mediate a chemical exposure case involving a plaintiff who wants not money but the truth. (We here at Abnormal Use are still waiting for a mediation like that).  Instead of impartially serving as a mediator, Kate scurries about the office doing her best Erin Brockovich impression.   Of course, as we noted in our review of the pilot, one of Kate’s flaws as a character is that she injects herself into the case when she is supposed to remain a neutral figure.  As we noted then:

Kate is an idealist. She shows up at one client’s house late one night and encourages him to “do the right thing” – something which is contrary to his own wishes and best interests. Her managing partner advises her that a non-client criminal defendant is not worth attention – and Kate responds sarcastically that she should “never let an innocent kid’s life stand in the way of our legal fees.” She lectures her district attorney ex-husband about justice and truth being higher than the laws that are held up as sacred and immutable. The difficulty she faces – and what is bound to become a central theme of the show – is her philosophy and its conflict with the daily back and forth of the legal profession (which she comes to understand are just as important, but not more, than her own idealism).

That said, if last season’s pilot was any indicator, there is an immense amount of confusion over the role of a mediator in the show.  Kate, at times, assists her firm’s clients, although in the pilot, she had gone so far as to resign from the bar, meaning she is no longer a lawyer.  As a mediator, she strays so far beyond the confines of that role that it is a wonder that she accomplished anything at all.  In fact, it is curious that after a year of such antics that she is continuing to receive mediation referrals in any way, shape, or form.

However, a bright spot in the episode was the addition of new character Ben Grogan (Ryan Johnson), an ambulance chaser type who strikes a deal to become a partner at the now struggling Reed & Reed (although we’re curious why this free wheeling and independent litigator would want to a join stuffy defense firm like Reed & Reed – or why a stuffy defense firm would find itself so troubled that it would join forces with a flamboyant Plaintiff’s attorney). Interesting story lines to come include the Reed & Reed firm facing financial distress and Justin’s confession of infidelity.  In the end, though, we suspect that if viewers possess any pre-existing knowledge of the inner workings of the legal system generally, or mediation specifically, this show, with its errors and misrepresentations, may offer only frustration.

If you’re still interested, the show airs Fridays at 9pm Eastern/8pm Central on the USA Network.  In case you missed this week’s episode (or any of last season), you can catch them all on Hulu.  They are on the books for 13 more episodes this season.

Abnormal Use To Be Featured on KUCI-FM’s “The Docket” Radio Program Tonight

Yes, yes, we know. You may be suffering from a bit of My Cousin Vinny overkill after last week. But, as you know, we here at Abnormal Use recently celebrated the twentieth anniversary of the release of the beloved 1992 legal comedy. We offered our reflections and lessons learned from the film. We presented interviews with the film’s director, screenwriter/co-producer, and actors James Rebhorn, Mitchell Whitfield, and Raynor Scheine. We even unearthed and reviewed Joe Pesci’s 1998 concept album done in the character of Vinny. After all that, the legal blogosphere is overly saturated with references to the film. The public airwaves, however, are not.

If after all of that  you still crave more Vinny-related content, you’re in luck. Tonight, Abnormal Use hits the radio airwaves. That’s right, dear readers. This very night, March 19, 2012, at 7:30 p.m. Eastern time, you can tune to “The Docket” on The University of California at Irvine’s KUCI-FM college radio station. On that program, own writer Nick Farr will discuss the film and its legacy with host Evan Simon. (You need not be in California to listen, either. You can access a live Internet stream of the station here). “The Docket” focuses on current legal issues and bills itself as “the joy of law school without the exams.” Sounds like the perfect place for Vinny and Abnormal Use.