"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.

Monday, March 27, 2017

TL;DR and fraud perpetrated by law professors in law review submissions for purposes of self-promotion - a problem at the core of consumer-duping with the notions of presumed integrity and competence of licensed law school graduates for purposes of establishing attorney monopoly on court representation

As I have been writing in this blog for several years, attorney regulation in the United States is a scam established for one declared purpose (protection of consumers, with the exception of the illiterate, unemployed and criminal defendants), but existing for quite another - establishing and protection of the monopoly of the legal profession for the "practice of law" services which nobody knows what it is because what constitutes practice of law is not clearly defined in any jurisdiction across the United States.

The usual contention of proponents of attorney regulation (which did not exist in the present form until the economic crisis, The Great Depression of the 1930s when attorneys started to aggressively protect their turf from competitors when numbers of paying clients increasingly shrunk) is:

  1. consumers need to be protected from incompetent and unscrupulous lawyers;
  2. with attorney regulation, consumers at least know that by hiring a licensed attorney, they get a provider who meets the minimum requirements of competency and integrity, plus is under disciplinary rules.
First, being under disciplinary rules (under some punitive law) does not prevent that law to be broken and does not make people who are affected by the law any more honest.

Had it been to the contrary, we would not have had murders, thefts or other crimes prohibited by the Criminal Code. 

We somehow have enough rationality not to presume honesty in regular people because of existence of a Criminal Code, so, by the same logic, there is no basis to presume honesty in providers of any services simply because there exists a disciplinary code.

Second, as I wrote before, law schools do not provide the necessary training to practice law in the areas of the greatest need:

  • civil rights litigation;
  • evictions;
  • family court litigation in:
    • custody;
    • child neglect and abuse proceedings for defense of parents
  • divorce litigation;
  • foreclosure litigation;
  • consumer debt litigation;
  • prisoner conditions litigation.
Third, law licenses given by states to attorneys are general law licenses allowing attorneys to practice in all areas of law, even those for which they never took courses in law school and never were tested on the bar exam.

For example, defense in child neglect/abuse proceeding (a very complex area of litigation involving constitutional parental rights and rampant fabrication of cases by social services in order to get government funds for operation) was never, as far as my research could reveal, on the bar exam, so when a consumer hires (or is assigned) a licensed attorney in child neglect or abuse proceedings, the consumer may be assured that the attorney WAS NOT taught this subject in law school and WAS NOT tested on this subject in the bar exam.

The only "seminars" law schools hold on this subject, as far as I know, are taught by prosecutors and social workers, from the point of view of prosecution, and those seminars are not mandatory law school education.

Nor are there mandatory law school courses on defense in eviction proceedings, consumer (credit card) debt, foreclosures, civil rights litigation or any other issues affecting the poor, in areas where the "justice gap" in the U.S. is the worst.

  • reciprocity agreements between the majority of states in the U.S. allow attorneys to get admitted, after 5 years of practice in one states, without a bar examination testing the law of the other state, while
  • licensing information does not reflect whether a particular attorney was admitted with or without a bar exam, and
  • attorney admission information is private and not disclosable to consumers on Freedom of Information Requests (I tried in New York, and will run a separate blog as to our exchange with the New York State Court Administration).
So, when hiring a licensed attorney, a consumer cannot be assured, simply because an attorney has a license, whether he or she has taken a bar examination at all, and whether the attorney took courses in law school in the laws of the particular state at all.

Fifth, in view of
  • unemployment;
  • rapidly shrinking middle class,
  • shrinking market of paying clients of legal services,
  • shrinking employment market for attorneys,
the number of high-quality students applying to law schools is also shrinking, causing some law school deans to blame the supposed "toughness" of the law exam (not the student material law schools accept in order to get government tuition loan money from them), see here and here.

In view of those shrinking numbers of good incoming law students, it would be unreasonable for consumer to expect good product being miraculously made by law schools out of bad raw material.

But, there is one more problem, a core problem that was not so far in the limelight, and was not so much considered and addressed by the public:

Sixth, the quality of the law faculty.

Law professors are presumed to be law experts.

They are allowed to file amicus briefs with courts, testify before Legislatures in order to lobby for or against certain laws and/or candidates, their collective "letters" for or against certain initiatives, or for or against certain ethical violations of public servants, are widely regarded by the public as statements by presumed oracles of truth - they are professors of law, after all.

After all, even with good initial material in law schools, no good product (law graduates) can be produced without a good faculty, and the worse the incoming raw material (law students), the better should be the law faculty in order to be able to bring law students up to fit the requirements of the law in order to protect consumers rights and justify attorney monopoly for "the practice of law", including court representation.  In other words, right now, with the declining quality of incoming law students, law professors must be miracle workers to turn that bunch around in order for them to pass law exams which previous generations of law students passed without much ado - and without law school deans blaming the testing system for their own enrollment errors.

So, how are the law faculty, who are now supposed to be miracle workers expected to make, let's say, something out of nothing, or, without such extremes, good product out of bad, or worse-than-before quality raw material?

Wisconsin attorney Michael Cicchini describes, in excruciating detail, the process of law review publication - which is used by law professors for self-promotion, and by law schools for informing their hiring and promotion decisions for law school faculty.

So, here is how it works.

First, there is an impression that nobody in the process of hiring/promotion of law professors, or publication of law reviews, reads anything - because there is too much to read and too much work to do.

The attitude of "TL;DR" (too long, do not read) is familiar to me from how courts operate - for a disfavored party (and courts are increasingly political nowadays, which is now openly acknowledged, and results in fiery debates in appointment hearings of even U.S. Supreme Court justices, so there is nearly always a favored and a disfavored party) you either did not provide enough information to rule in your favor, or you provided too much information, so that the amount of your information causes the judge a headache to even think of reading it, so the judge:

So, apparently the legal education, the institution that must produce licensed attorneys, those legal service providers with presumed competence and integrity, the very presumed competence and integrity which justifies attorney monopoly and criminal laws against "unauthorized practice of law" even if there are not enough licensed attorneys who would be willing to provide legal services affordable to the majority of the American public, adheres to the same principle of TL;DR.

Law professors are hired and promoted on TL;DR basis: nobody reads their publications, but everybody looks at their resumes whether they HAD publications in law reviews of "higher-ranked" schools.  If they had, they are hired automatically.

It should be noted that law professors are also the only professors whose publications are:

  1. accepted for publication not by peer-reviewed magazines ("peers" being scholars of the same level), but by yet uneducated subordinates, LAW STUDENTS (all law reviews are run by law student editors and staff), those same students who:
    1. pay tuition (and law professors' salary out of that tuition); and
    2. who are dependent on law professors in grading and recommendations decisions (especially where, for law review editors, such recommendations may be for clerkships with judges that may spearhead their careers, income and influence for the years to come), so their own future career depends on favors of law professors;
  2. who are not required to have a PhD degree to teach in a grad-school level university (law school).
So, the level of scholarship in law professors may be lacking based on:

(1) educational level of professors; and
(2) educational level of the uneducated subordinates whose decision it is to accept or reject a law review article for publication.
According to Michael Cicchini's article, law professors usually need to submit publications to higher-ranked law schools (to student editors of law reviews of higher-ranked law schools) in order to be TL;DR'd into better, more lucrative, more paying, more politically influential, positions (to be hired or promoted by better law schools).

Law review student editors of higher-ranking law schools also have too much work on their hands - daunting law school courses, as well as supposedly reading thousands of submissions from wannabe professors who want their law review articles to be published for self-promotion purposes.

So, higher-ranking law review editors also cut corners and TL;DR those submissions, they accept for publication only those submissions for which lower-ranked law schools already made offers - likely, without reading.

So, obtaining offers from lower-ranked law schools becomes a priority for law professors in order to receive "expedited review" and have their publications TL;DR-accepted for publication by a higher-ranked law schools, in order to be TL;DR hired or promoted in the future.

The lower-ranked law schools, thus, become a stepping stone for self-promotion of law professors (from all law schools), so lower-ranked law schools will continue to recruit students no matter how bad the incoming material is, because they are the necessary part of law professors' self-promotion game.

But, lower-ranked law review student editors are also overwhelmed with publication requests (majority of which is openly fraudulent, where law professors apply without any intention of ever being published in a lower-ranked law review, and, if the trick of soliciting a better offer from a higher-ranked law school by using an offer from the lower school does not work, professors simply decline to publish in the lower-ranked law school, preferring their supposedly "valuable" law review article to rather never reach readers and die, rather than be published in a "lowly" and non-prestigious place).

So, in both low- and high-ranking law reviews, law school editors are approached by their own professors, or professor friends of their own professors, and are "recommended" to take this or that law review article for publication.  And, given how dependent law review student editors' careers are on grading and recommendation decisions of their law school professors, law review student editors TL;DR offers of publication to the desired professor candidates.

That is fraud.

But that is not the entirety of fraud.

Moreover, some professors skip even that, and simply fake the lower-ranking offers in order to obtain an "expedited" upper-ranking publication - and, according to Michael Cicchini's law review article, published online, professors claim (anonymously) in their own online forum that there is nothing wrong in such forging and that, given the stakes, every law professor should do that - which says a lot about ethics of law professors in general.

According to Michael Cicchini's research of law professor online forums, it has become a set custom for law professors to submit their law review articles simultaneously to at least 150 law reviews at the same time, fishing for better offers in order to advance "up the food chain".

In order to sieve out not only bad submissions, but also fraudulent submissions meant only to solicit an offer in order to use it to get a TL;DR offer at a higher law review (see the practice described above), many law schools require submissions of law review articles to be made through paid submission systems - Scholastica,

charging $6.50 per each submission to each law school law review, and ExpressO,

charging $3.10 for the same.

150 (at least) submissions times $6.50 = $975.00

That is the cost of submission of one article by one law school professor to 150 law schools. 

Most law schools cover these costs of submissions of articles, passing these costs to the already overburdened-by-loans law students.

Professors accept that perk, and abuse it rampantly by making submissions PAID by law students to law reviews where professors never expect to accept an offer - professors waste student money for a chance to move up the ladder and use the potential offer from a lower-ranked law school in order to submit to a higher-ranked law school.

That waste of law student money is not made in order for the publication to see the light of day and reach the public (which is, I am sure, how covering such costs for law professors by law schools is presented to law school boards of trustees, and the low per-submission cost, just $6.50, or just $3.10, is used for that purpose, too). 

On the opposite, law professors, after having wasted that money and after having received those offers, decide not to publish their work at all, if their trick of using the offer as a stepping stone for a better offer in a higher-ranking law review does not work.

Let's also recognize that many law schools are state universities existing on taxpayer money and having their tuition rates subsidized by state taxpayers, and that many other law schools are public charities existing on tax-exempt donations.

So, taxpayers and law students are duped by law professors into paying for their self-promotion games, in order to get lazy employers to hire them without looking what exactly they published, just by looking at the rank of publishing law review.

Consider that
  • nearly all law school professors are also "lawyers in good standing" in at least one state bound by ethical rules (that is a hiring requirement, you can verify it by searching any jobs search engine, like, for example,, for job requirements for law professors), on top of being bound by rules of ethics of not doing harm to students and engaging in good faith scholarship, not just self-promotion for money;
  • that by submitting, at the employer's (law students') expense articles for publication that the professor knows is false - where the professor is soliciting an offer without ever meaning of publishing the article in that law review, the professor commits fraud upon his employer, the law school to which it is submitting the publication, and the law students who fund his submission fees; and,
  • that many professors participating in that fraud are professors of legal ethics, setting an example for other students how to behave in their for lifetime careers.

The end result also is that student law review editors (those who then become lawyers and list the fact that they were law review editors in their law school as a point of advertisement and self-promotion until the day they die) who are supposed to be an example for the rest of the law student body, learn very early on, before even becoming licensed attorneys, that ethics in the legal profession are reduced to convenient declarations, and swept aside when ethics stand in the way of self-promotion for financial reasons.

And, the end result is, from this practice there arises:
  • a presumption of DIShonesty and lack of competence of law professors, who are hired not because of the true value of their "scholarship" had any value, but because they managed to brush considerations of ethics and honesty aside and "move up the food chain" in law review publications, including by:
    • waste of public/students' money;
    • using their position of power over law student editors to elicit offers for themselves, or;
    • openly forging low-ranking offers in order to cut through the chase and have their article submitted on "expedited review" to a higher-ranking law school, not to be published in general, as in - getting their word out their into the marketplace of ideas for the public to see, but to be published by a higher-ranking source in order to promote themselves in terms of their personal financial well-being and influence;
  • and a presumption of DIShonesty and laziness of law school faculties hiring just based on publications in certain high-ranking schools mentioned, without reading them, and a presumption of DIShonesty of law school students who are law review editors and who later become law clerks to judges and judges.

One medicine may be valuable in this regard: exposure.

Since law schools provide a public benefit - prepare lawyers who ensure, as part of lawyer monopoly, access to court which is a constitutional right of every American and non-American located on American soil - they are all subject to Freedom of Information Laws.

Law schools are financed from the following sources:

  • tax exempt private donations - where the tax exemption is subsidized by the government, thus subjecting the law school using the subsidy to FOIL requests;
  • state funds (for state law schools) - and then funding of such schools are public records as direct funding by the government;
  • law school students' tuition, most of which comes from government-subsidized student loans - thus, also subjecting the use of such funds to state and federal freedom of information laws.

I believe that each professor's law review submission costs, subsidized by employer, is FOILable, and then can be comparable as to where the professor actually did publish his article.

Also, since professors are funded in their submission costs by their employers, their scholarship is part of the school's own self-promotion, and all offers to publish are also subject to FOIL.

Then, offers to publish and costs may be compared with professor's own listed publications - which each professor proudly places on his public resume, in order to see which offers the professor used to go "up the food chain", which law school students the professor overburdened and used as stepping stones, and how much law student money the professor wasted on submissions.

Moreover, law students may use FOIL as tool to verify, before they pay their tuition and before they apply to various schools, as to what percentage of their tuition will be paid to cover this fraudulent practice.

I am considering to start filing such FOIL requests with law schools, and will, of course, publish any responses.

Stay tuned.

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