Naive Realism & the Law School Debate.

Or, “Why can’t we have pretty things”?

Two recent articles in the Times have stirred yet more unproductive talk about the future of legal education (and by extension, the legal industry). This discussion ends up resembling high school debate: banal points, repeated at increasing volumes, similar in structure and form.

Elie Mystal (@ElieNYC), of Above the Law, has a pungent post up in which he laments this pathology. He first describes a twitter discussion he (and I and others) participated in, which ended in a place I’m pretty sure no one woke up feeling good about.

And people say that training in legal reasoning isn’t useful outside of lawyering, if you know what I mean. Mystal then tries to put the discussion in context. Putting aside some critical details, I think he’s onto something. Mystal, in his own way, is trying to figure out why why, in 2016, discussions between otherwise sane people about law school turn into flame wars. He says:

We need MORE lawyers: lawyers who can serve low-income clients, lawyers who can stem the tide of prosecutorial overreach, lawyers who bridge the gap in intellectual firepower between private firms and undermanned government agencies. But you can’t get those lawyers when they graduate from low-account diploma mills with $200,000 of debt and no ability to pass the bar exam

I think virtually every person who participates in discussing law school online (and offline) agrees in this vision. We disagree (maybe) about what to do next. Of the many fault lines, consider just one: how should law schools be accredited?

Many scambloggers seem to want to increase state supervision of law schools, presumably with the goal of shuttering schools that aren’t serving their customers. Thus, you get increasing calls to investigate schools that have admitted students whose entering credentials strongly suggest they won’t pass the bar. It’s fraud per se, scambloggers argue, to set up students to fail in that way. Schools dependent on that kind of revenue source really ought to be forced to close shop—if law professors are standing in the way of that logic, damn them!

I (and others, including some economically minded law professors) would take a different path: I’d decrease supervision radically (including, controversially, de-regulating disclosures), enable schools to try very different business models, and trust much more to a “competitive market”, while (hopefully) using the Bar Exam and a rigorous continuing, personal, re-accreditation system to protect clients. That would mean tolerating, or even celebrating, so-called diploma mills as institutions that enable students to cheaply access the right to take the bar. It would certainly entail permitting schools to teach without offering practical training, or teaching solely online despite evidence that such methods are unlikely to lead to well-trained lawyers. I’d happily permit schools to employ faculty without tenure, to teach entirely with adjuncts, or entirely with tenure track scholars who can’t teach at all. I’d jettison attendance requirements. Basically: I have zero confidence that the Bar, as an accreditation agency, has the welfare of clients, rather than incumbent lawyers, in mind.

But notice how little of the law school debate you read about in the Times, Above the Law, or law professor blogs is about these kind of operational questions. Instead, we’re almost always sidetracked by discussions of root causes and motive.

Back to Mystal’s post, which is worth quoting (and responding to) at length:

Why are there so many law professors still arrayed against meaningful reform? Why can’t we have nice things? Why are they fighting with me, instead of asking themselves why so many potential law students have rejected their product? I think there are three reasons, in order from least problematic to most:
1. Stupidity. I think that there are honestly some professors who were are very good at explaining Pennoyer v. Neff, but very bad at understanding the bimodal salary distribution curve. There are professors who just don’t understand what a killing blow it is to be $200,000 in debt and unable to pass the bar, or at least don’t understand how law school decisions cause that outcome as opposed to the mere personal inadequacies of the student. There’s probably a nicer word than “stupid” to describe these people, maybe it reads as “oblivious” to you, but in 2016 it reads as straight dumb to me.
Of course, most law professors aren’t dumb, so I have to consider more sinister motives.
2. Selfishness. Assuming that most law professors are fundamentally capable of understanding what’s going on, even if they don’t want to admit it, it’s still a leap for them to risk anything to fix it. While I think legal education reform is a way to save law schools in the long run, in the short term any meaningful reforms will likely result in the loss of jobs. At many law schools, reform already has.
As Lat mentioned, being a law professor is a great job. Why would you risk that sweet deal by agitating for reform? Isn’t your time better spent desperately defending your gravy train? If you disrespect your own students so much that you think their options were going $200,000 in debt OR doing nothing of significance with their three years and good credit ratings, it’s even easier to think that it’s a “solid investment” for them, since their investment is beyond great for law professors.
I think base selfishness explains some of the most vocal cheerleaders, but not the “silent majority” that kind of agree with those guys but don’t like to say so aloud because they know that they’ll look stupid (see point 1, supra). So I try to empathize with those professors and come to this.
3. Fear. It is hard to admit that the business model of your industry is failing. It tookdecades for print media to recognize the challenge of online media. It took years for online media to recognize the challenge of social media. How many years did Radio Shack, Tower Records, or Blockbuster hang around telling stockholders that they were still “solid investments”?
It takes real courage to admit that the way that you’ve done things is wrong, the market is onto your game, and it’s time to massively change what you are selling.
When I get into Twitter fights with law professors, I don’t see that kind of courage. Instead, I smell the fear. Noam Scheiber’s case study of one flailing law school punctured the little bubble these guys try to live in, and so they lashed out like wounded animals in so many ivory corners.
Luckily, reform does not require the courage of all men and women in the business of legal education. It takes only a few people with courage and vision to turn Blockbuster into Netflix.

That’s a hot take. But it’s not wrong. Law professors are highly motivated to ignore any ominous signs about legal education’s future. Even if we were all smart, fearless, saints, we live in communities organized around celebrating the value of the profession of lawyering (though the evidence on that problem is mixed). Very few law professors worked in mid-tier, mid-sized firms, where job security in 2016 is generally zilch, associates are evaluated using output based metrics which make ethical practice all but impossible, and the idea of law as a profession is frankly a joke. (Above the Law has covered this devolution well, to its credit.) Our self-worth, the communities we live in, and our resulting identity is bound up in being on the right side of a bet, which is that the future will look mostly like the past.

Will it? Long term, obviously not. The short- and medium term question seems open. Sure, there are data suggesting we’re in a readjustment following a business downturn. Like a flesh wound! And it is true that claims that the legal profession is an existential crisis are recurring and cyclical. Here’s an AALS report, from 1933

One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time — there was little work for the young lawyer — there were too many lawyers — a man couldn’t get started unless his forebears had been lawyers — banks and trust companies were taking away the business — and even collection agencies obtained powers of attorney to represent clients in the small claims court. . . .

And here’s the Texas Bar, from 1932:

There are too many lawyers in this country . . . many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.
Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming.

But I think there’s decent evidence (of various sorts) for the discontinuity position. Sometimes the sky is actually falling. The trend against the Bar’s monopoly is clear, and competitive markets kill incumbent monopolists. I’ll let Deadwood take it away:

My bottom line view is this: those nasty, trolling, scambloggers correctly grasp an important truth. Law school might be delivering a product with a short shelf life, and it’s consequently morally vital to drive down costs so as to reduce the contingent harm that tomorrow’s potential collapse will cause. I don’t know how to estimate that contingency, and, importantly, scambloggers don’t know either, but even the chance ought to make law professors and the institutions they teach in more open to risk taking in the name of cost reduction, if even to save their own hides. On the other hand, Mystal vastly overstates the ability of faculty to do a thing about cost, except for quitting. In the last 10–15 years, most faculties have lost that kind of operating control, if they ever had it. Generally we (functionally) get to choose the color of the drapes, the days we teach on, and who to hire (not even whether to hire.) Still, control and influence are different things. If there are professors in this country who aren’t pushing to raise non-JD revenue and lower JD-cost, shame on them.

But I think Elie makes a serious mistake when he attributes our pathological law school debate just to professors’ motivated reasoning. After all, as his critics point out, scambloggers are also economic actors with incentives— not to celebrate law school but rather to tear it down. Stories about law professors behaving badly (or just making news) drive traffic at Above the Law, and elsewhere. It’s no good to write an article saying that law schools are changing (glacially) in response to the times: page-views result from villains, victims and heroes. Law professors for years described their jobs as a loophole on life: jealousy is a nasty spur. And sometimes, reading scambloggers, I get the same sense I did the one time 12 years ago I volunteered to be pied in the face for a law school charity. What did Noam Schieber say? Anger at law professors is atavistic.

Given these motives, you often see law professors argue that scambloggers ignore relevant data to focus on anecdote. And to believe that deep oceans of money are seeking to change the American Legal Academy, through whatever convenient patsies are at hand. (About that last bit, I say: good lord, what nonsense.)

How can both educators and their antagonists both believe that the other side is ignoring the evidence while they themselves are seeing clearly and rationally?

I think we are all infected by a species of motivated thinking called naive realism. Dan Kahan describes how it works:

Naïve realism refers to an asymmetry in the ability of individuals to perceive the impact of identity-protective cognition. Individuals tend to attribute the beliefs of those who disagree with them to the biasing impact of their opponents’ values. Often they are right. In this respect, then, people are psychological “realists.” Nevertheless, in such situations individuals usually understand their own factual beliefs to reflect nothing more than “objective fact,” plain for anyone to see. In this regard, they are psychologically naïve about the contribution that group commitments make to their own perceptions.
Naïve realism makes exchanges between groups experiencing identity-protective cognition even more divisive. The (accurate) perception that a rival group’s members are reacting in a closed-minded fashion naturally spurs a group’s members to express resentment — the seeming baselessness of which provokes members of the former to experience and express the same. The intensity, and the evident polarization, of the disagreement magnifies the stake that individuals feel in defending their respective groups’ positions. Indeed, at that point, the debate is likely to take on meaning as a contest over the integrity and intelligence of those groups, fueling the participants’ incentives, conscious and unconscious, to deny the merits of any evidence that undercuts their respective views.

This description has always felt apt to me as a diagnosis of what the law school debate looks like. In his larger work, Kahan has striven to find techniques (vouching, expressively overdetermined writing) to lower the temperature on polarized debates. But such civilizing techniques can look like fighting against the incoming tide. And lecturing people about how to make arguments can be pedantic. That’s why I stick to the socratic method — learning by error, not instruction.

If you are reading this essay, you are familiar with the basic framework of this ongoing conversation. You are in one of the groups already, and you’ve already formed views about the evidence and its proponents. Unlike other recent entrants, I am skeptical of my own ability to convince you of my own position — which is that law school is, by and large, a really useful civilizing force that adds to our ability to live with one another in peace — by adducing additional facts. Indeed, I think that I’m exactly the wrong person to be making that kind of argument.

Though it’s true, gosh darn it.

In the end, I think we can’t have nice things because the debate about higher education is starting to look like the debate over climate change, genetically modified food, and guns. Mystal seems to grasp this as well:

Yikes. At least he didn’t suggest that most law schools are like Trump University!