The First Year, They Scare You to Death

-- By AlexBuonocore - 16 Feb 2012

The Law School as Publicly Responsible

The United States, as a country, invests countless dollars into legal education every year. A problem exists, therefore, if that money is being spent inefficiently. This essay will suggest that the money is being spent inefficiently, that law schools are at the heart of the allocation problem, and that the schools have a social responsibility to address the situation. To begin, two separate arguments will be used to establish the suggestion that law schools are publicly responsible institutions. First, law schools benefit massively from state-subsidized loans that allow the vast majority of students to attend. It is impossible to deny that easily accessible funds vastly increase the demand for seats in the law school. This demand helps to fund labor, research, and prestige, all highly sought by modern law schools. Second, law schools benefit from the state-enforced licensing regime. Each state’s bar association requires a degree from an accredited law school. In other words, if you want to be a lawyer practicing in the United States, you better be ready to pay the requisite tuition costs. Law schools benefit from an increased demand as a result of this state-enforced requirement. Beyond merely increasing demand for seats, this educational monopoly thoroughly establishes the importance of the schools to the law system itself. The strength and scope of the law school’s social responsibility is not important to the argument, it is only relevant that such a responsibility exists. Law schools are socially responsible to the state because they benefit from state restrictions. Accepting that, then it is not difficult to accept the premise that law schools owe some duty of responsible resource allocation. This essay will explore the waste problem created by the theory that first year law students worry, rather than practice or learn. If we find that the law school creates the problem, then, as a socially responsible institution, the law school has a responsibility to address it.

Mr. Morningside's Expensive Time

Law school is incredibly expensive. Tens of thousands of students pay tens of thousands of dollars of tax-payer secured debt to these institutions. These institutions, on the rationale of preparation, exclude thousands of the most expensive young adults (in terms of total societal cost of education) from contributing to society for the majority of three years. Assuming that these students would be contributing to society in some ways otherwise (perhaps a more difficult assumption since 2008), every second that a law student is not contributing to either her own development or the development of the law is deadweight loss to society. Given the amount of resources allocated to these students, both before and during law school, these wasted moments are incredibly expensive. Given this reality, it is striking how much time is wasted in law school in the form of uncertainty. Let me illustrate hypothetically. Robinson Morningside is a first year law student at Columbia Law School. For nearly a year before stepping foot into Manhattan, Mr. Morningside hears from friends, relatives, and the national media about the importance of first year grades. He becomes convinced that, if he does not get an A- in torts, then upon death he will pass a small fortune of interest-accruing, non-dischargeable student loan debt to his heirs at law. The problem, however, is that Mr. Morningside has no idea of how to score well in torts. He learns that the final exam is in the form of a three hour “issue spotter,” and he begins to abhor hours in the classroom because the professor never discusses how to do well on the actual test. Mr. Morningside quickly recognizes that any bit of information that cannot be squeezed into an issue spotter answer is all but irrelevant to his goal of achieving high grades. The law student spends hours and hours worrying about this mystical test and what he should write on it. These incredibly expensive hours could have been put to any number of different uses, including learning the law.

The Origin

Law students are advised not to worry about grades or job prospects, and yet they all do. The explanation comes in the form of the mountain of dollars that it takes to attend an American law school. A student borrowing two hundred thousand for law school (assuming absolutely no previous debt) will owe $2300 a month in debt payments over ten years at the federal subsidized interest rate of 6.8%. The non-dischargeable guarantee of owing nearly thirty thousand dollars a year in debt payments after graduation dramatically alters the student’s approach to law school. Law students generally were not professionals in previous lives. Many attend law school three months after graduating from undergraduate. Taking on hundreds of thousands of dollars of debt, without ever having earned a salary, creates incredible anxiety for the student. All of a sudden, the student needs the $160,000 salary upon graduation. The student needs to be in the top third of his class. The student needs the A- in torts. With a six figure Citibank debt notice in his dresser drawer, Mr. Morningside does exactly what we don’t want him to do. He busies himself worrying about the issue spotter, and the subtleties that make up the law pass right through his ears.

The Waste

The student, the schools, the courts, and the law firms all suffer as a result of this deadweight loss. Instead of learning the cases, the theories, or doing socially valuable pro bono work, our law students worry about their debt, their tests, and their interviews. If schools are socially responsible and firms are interested in acquiring higher quality talent, then perhaps they should consider a completely alternative evaluation system to the issue spotting exam. That is, if they actually do wish to reward the careful and rigorous study of law that we all presume makes a great advocate.

This draft is puzzling, oddly argued and wildly vehement in the wrong places. Why bother arguing that the (essentially irrelevant) federal loan guarantee is the source of an obligation to teach well placed on law schools? If teachers can't find any other obligation to teach their students than the presence of government regulations reducing friction in the lending market, it should be apparent that there will be much social stress on other problems before one comes to the psychological discomfort produced in grade-grubbing Harvard, Yale or Columbia law students.

The wildness of the panic about debt, moreover, seems to me equally strained and unbelievable. If one didn't want to contract so much debt straight out of college, one could attend a cheaper law school, or work and save in order to pay more of one's own way. Once could, as I have suggested, work more effectively and profitably while in law school. Law school debt is smaller than most lawyers' home mortgages. If one were worrying about household debt levels in America—and one should—the debt levels of young lawyers would not be anywhere near the most worrisome.

But the essay's position isn't even that the debt is the problem. The problem is that the debt prevents the student from learning because the student is too worried about getting good grades. This, again, presents a tangle of confusions. Don't students who don't owe money worry about grades? Don't students who have no debt neglect the long-term educational benefit of mastering material in order to cram for the exam?

So it begins to appear as if the point about social responsibility and the point about the debt are both diversions, and that the real issue is about how learning is prevented by the exam. But isn't the point of the "issue spotter" that lawyers need to know the law comprehensively, so that they can translate what they are told by clients, witnesses and others into the physiology of claims and defenses: rights, duties, liabilities, immunities and privileges? The exam, in that sense, is a simulation of lawyers' experience, testing the budding lawyer's ability to translate from the factual language of life into the concepts and vocabulary of law, seeing what's relevant, discarding what is not, capturing a snapshot of the process from which all counseling, advising, litigating and legislating springs. The way to prepare for the exam is to learn the law, to read cases and see how facts are translated into the concepts of law, and to learn all the hallmarks of the issues that will arise in the analysis of situations presenting the fundamental forms of civil liability.

Which makes it appear that the point about the exam interfering with learning is also, partially, insubstantial. The essay, in short, reproduces its real subject, which is the paralysis of thought induced by panic. For myself, the real subject seems to be the unavailability of counseling and advising to help the student understand both her intellectual situation at the outset of law school and his material professional prospects in a changing society.

I don't know what to do with this draft in order to make it better. It seems to me to want fairly severe editing, to isolate the argument that really matters to you from the surrounding arguments pointed in other directions, and to present that argument coolly, without overstress, in its own social and intellectual context.

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