"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, March 11, 2017

Harvard Law School setting up a trend of putting more makeup on a decaying corpse

In January of 2016, a prominent legal blog "Above The Law" published an article about a "controversial" decision of the Arizona Law School to accept students not only based on their LSAT (Law School Aptitude Test), but also on their GRE test scores.

GREs are subject tests in specific subjects towards further acceptance into graduate schools, not necessarily law schools.

It is apparent that measuring an undergraduate's achievements in chemistry or physics may not be a good measuring stick to figure out whether he will be a good attorney.

Moreover, graduate degrees in biology, chemistry, literature and the English language, and physics do not require licensure, the only profession out of the GRE Subject Tests, psychology, and GRE in psychology is not the only test accepted when GREs are accepted by law schools.

Yet, the whole idea of attorney regulation and licensing is presented to the public as a vetting process by the government for the consumers of integrity and competence of attorneys as the only people in the United States allowed to represent people in and out of court and draft documents securing legal rights.

Part of that vetting is standardization of legal education and making sure that when a consumer finally hires a licensed attorney who was:

  1. selected and accepted by a law school;
  2. successfully completed the supposedly rigorous law school curriculum;
  3. passed the bar examination
the consumer can be assured of at least a minimally acceptable level of competence of such a licensed attorney.

LSAT was used as a prediction tool of performance of law students in law school, testing specifically language and logical skills:

While testing college graduates on "reading comprehension" as a threshold for admission to law schools might look funny (that skill, after all, is taught in kindergarten), the level of that skill tested, and the way it is tested in LSAT can easily fail an English honors college major.

You are given approximately 1 minute 35 seconds per question, you are required, during that time, to read large spans of texts from various areas of human knowledge (as lawyers routinely have to do), and you have to "turn on a dime" in your thinking, instantly grasping what is the gist of the issues involved in order to be able to answer the "split-hairs" questions.

That is not how English majors are taught.  Once again, you cannot really prepare for an LSAT.  You either have in you that agility of intellectual reaction, or you don't.

The difference of LSAT from GRE is that you cannot predict the topics (as in biology you are tested in biology and in chemistry - in chemistry) of the texts you are required to instantly comprehend, see the logic and answer questions.

That's why accepting GRE tests instead of LSAT tests is a step down for law schools - which will necessarily tell upon a further raising numbers of graduates of law schools failing bar exams.  You cannot expect good quality at the exit of law school if you do not require good quality at the entrance, good quality for this particular profession.

Above The Law picked up the problem a year ago in criticizing Arizona Law School's decision to accept GREs in lieu of LSATs as "controversial".

Moreover, Above The Law clearly pinpointed two "not so altruistic" reasons as letting incoming students save time and money on having to undergo two exams (GRE and LSAT) instead of one-fits-all for all graduate schools (GRE):
  1. the measure was meant to address declining enrollment in law schools, and was directed at the bottom-line of law schools as businesses (here goes good solid law school education as cornerstone of promises to the public that attorney regulation is necessary, and that law school education provides a presumption of competency to the consumer);
  2. the measure was meant to keep law school rankings afloat since the ranking system, US News and World Report, ranks law schools, among other criteria, by incoming LSAT scores, but did not do that yet as to incoming GRE scores
When a school lures people into a gigantic lifetime investment by pretending to be what it is not, is a type of fraud.

Lawsuits against law schools for failure to notify students of the waning prospects for employment on graduation are on the rise, see, for example, here, here and here.

It is interesting that, like in other aspects of attorney rights, attorneys are not entitled, in the eyes of the courts and the public, to the same rights, even against education fraud, as other people.

This country was, at the very same time, vigorously criticizing Trump University for alleged fraud upon students, and no less vigorously criticizing a law student who dared to sue her law school for the same thing, education fraud.

So, a year ago, according to Above the Law, Arizona Law School engaged in "controversial" behavior in order to:

  1. duck erosion in enrollment, and
  2. duck erosion in rankings.
Since Arizona Law School is also an ABA-certified law school, and the ABA certification presupposes LSATs as entrance tests to law schools, the Arizona Law School also likely violated the conditions of its accreditation by starting to accept GREs in lieu of LSATs.

"”The law school has submitted a study, … which the law school believes meets this requirement of the standards,” says Currier. “A review of that study will be done and considered by the ABA Accreditation Committee, which works under the council. That review, as are most matters related to a law school’s compliance with accreditation standards, is a confidential matter under the rules of the law school accreditation process.”

So, a law school, seeking to lure more students who may fail in the future legal employment market, and to bamboozle the public that consumers can still rely on the product of that trick as "presumption of competence" of licensed attorneys, provided a study (which it obviously paid for) that pretended that the law school decision is supported by science.

And, the ABA is reviewing that study in secret, even though the study is on the most important topic of public concern

We do not see the outrage in the press, social media, ACLU is not up in arms, and law professors are not writing any complaints.  Well, they won't.  How can they?  If enrollment in law school goes south the way it is now, they may not be professors for long, so any measures to stop that tendency, even if by trick, would be good.  As a matter of legal ethics.

Fast forward to 2017.

Now, the Harvard Law School did the same, announcing that it will accept GREs in lieu of LSATs.

What was a "controversial" decision and a shady business meant to raise enrollment and hide poor rankings by bamboozling the incoming students to apply and pay tuition (by burdening themselves with giant student loans), and by bamboozling the public into believing that such education will serve as a presumption of competence of licensed attorneys - is suddenly starting to become mainstream, simply because Harvard Law School decided to do it, too.

After all, "when Harvard sneezes, everybody gets a cold" - which really says a lot about independent thinking of providers of legal education in the U.S.

Of course, Harvard does not have a problem with enrollment - or does it?

Now that Harvard sneezed, ABA gets a cold, and

Now that Harvard said that it is ok for the honorable profession to bamboozle the incoming student body and the public in this particular way, the ABA jumped and will put a seal of approval on it.

Yet, putting cosmetics on a corpse does not usually revive it.

Nothing, not lowering the requirements at the bar exam, not lowering the requirements at the entrance to law school, is going to help when the legal profession has its collective head in the sand and refuses to see the writing on the wall - deregulation of the profession is coming.

Either the legal profession as it is today will be destroyed because of the onslaught of technology - which hit the legal profession from both sides (I wrote about it, coincidentally, in July of 2016, at the same time when ABA was secretly considering the "study" from Arizona Law School to drop admission requirements for law students):

1) the rich - with ROSS artificial intelligence legal research system:

2) and the poor - with the DoNotPay computer bot that is now successfully advising how to defend against traffic tickets AND file refugee applications;

and where it is predicted by artificial intelligence industry insiders that robots will replace the majority of lawyers within a short 10 years.

In Netherlands, England and Canada, people are already resolving their disputes, from custody of children to claims of nuisance, through computer bots.

Or, it will come because of the "justice gap" that the legal profession, by creating monopoly for court representation, created, where the majority of the legal profession gravitates towards serving the poor, and the majority of the public, financing the regulation of the legal profession, remains holding the empty bag of promises and unable to afford an attorney.

Or, it will come because, by the use of disciplinary proceedings against solo and small firm attorneys as a tool of eliminating competitors (and critics of systemic flaws in attorney regulation and the justice system as a whole, including judicial misconduct), the little guys and gals will be eliminated, and there will come a fight between the giants who will devour one another.

Or, it will come through the so-called "disbundling" of legal services, which is already happening through proliferation of companies offering information and "do it yourself" forms to consumers.

Or, it will come, as it is already happening now, with the further drying up of the young people willing to put on themselves a crushing debt of law school with very unsteady promise of employment, and a real risk of having investment of their lifetime be destroyed because an attorney does the right thing, raises a sensitive issue in court, like judicial bias and/or misconduct - and in the process pisses off a judge.

No matter what combination of factors will change the legal profession to the point of elimination of, possibly, the majority of attorney jobs as we see them now, within a very short time - it is coming.  Fast.

Having a giant like Harvard put a seal of approval on an otherwise fraudulent move to further conceal problems in the market of legal services, in order to trigger a responsive reaction in the "opinion leaders" and to set a new trend of putting makeup on a corpse won't change that trend.

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