Archive for the ‘Culture’ Category

In some parts of the world, the first day of May is May Day or International Workers Day. But thanks to a proclamation during President Eisenhower’s administration, May 1st in the U.S. is Law Day. It’s meant as the day each year to celebrate the rule of law in society. So quite appropriately comes a timely news story to momentarily ease the otherwise burdened cynical heart.

The salutary tonic is administered through the story of Judge Lou Olivera, a North Carolina District Court jurist, whose extraordinary compassion provides the welcome antidote. This past April 13th, Judge Olivera sentenced former Green Beret Joseph Serna to spend 24 hours in jail for a probation violation. Serna is a retired Army veteran who served almost 20 years. Deployed four times to Afghanistan, he earned three Purple Hearts and was almost killed three times. But since leaving the service, Serna has struggled with post traumatic stress disorder (PTSD).

To cope, Serna has self-medicated with alcohol. As a consequence, he has run afoul of the law. Having violated his probation with a DUI, he appeared in Judge Olivera’s courtroom last month. Judge Olivera, himself a Gulf War veteran, runs the county’s Veterans Treatment Court.

“I gave Joe a night in jail because he had to be held accountable,” the judge later explained. But concerned that sentencing Serna in isolation for a night would trigger his PTSD, Judge Olivera did something truly remarkable. He decided to spend the night with Serna in the one-man cell. They spent the time talking about their military experiences. Serna said it felt like “a father-son conversation.”

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“May I ask what you’re doing?” asked the thickly accented Germanic voice through the trees.

I’d just parked my car and planned to walk one of our dogs on a recent afternoon. After riding over 3 hours in the back seat, she needed to do what dogs do. We’d alighted in what I once thought was a friendly neighborhood, the kind of welcoming place you might be happy to live in. Indeed, the location is next to one of our favorite local golf courses.

My plastic bag was in one hand and our leashed tail wagger was in the other. She blissfully sniffed the grass next to the public sidewalk while I looked up at the unexpected questioner. Through the branches, I saw he was a tall ruddy-faced senior standing in the yard of the adjoining residence.

“I’m walking my dog,” I answered as though not patently obvious even to the half-sighted. “Why are you asking?” I inquired.

Pachuco | by gabofr

“We have a neighborhood block watch,” he replied sharply. “Well, good for you,” I rejoined now understanding what this was really about.

Not that I wear my sensitivities on my sleeve. Still, I used to wonder — but no longer do — about the point in life when age, appearance or socioeconomic status finally insulates from small-minded prejudice. It never does.

Those sculpted and fired by intolerance see what they want to see. No matter if you dress neatly or drive a nice car. Or are past your middle earlies and are minding your own business on a sunny public walkway with a contented canine. For folks partial to a preferentially homogeneous community, there goes the sidewalk. You can take the Latino out of the ‘barrio’ but you never take the barrio out of the Latino.

Ethnic stereotyping and racial profiling are part of growing up in urban America.

fp031216-02 | by fontplaydotcom

And as a son of Boyle Heights, I was no stranger to it, especially in adolescence and early adulthood. I had my share, including at the hands of L.A.’s ‘finest.’

“May I ask you not to come onto my driveway,” the stranger inhospitably admonished. “Don’t worry, I have no intention,” I answered as he turned and walked away.“And you’re a friendly one,” I added.

Not that he went away. He turned and stood in his open garage and looked on and frowned. Just another bigoted day in the neighborhood.


Credits: “Pachuco,” by Gabriel Flores Romero at Flickr Creative Commons Attribution; “fp031216-02,” by Dennis Hill at Flickr Creative Commons Attribution.

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File:John Balfour Vanity Fair 1 May 1886.jpgAt one end of the spectrum, there’s news that lawyer hourly rates among the so-called guilded circle have topped $1,500 per hour. According to a report in the Wall Street Journal, these aren’t even the top end rates. The most highly specialized among these legal elites, buoyed by inelastic supply and demand, can command almost $2,000 per hour. The rarefied set billing at these rates undertake price be damned high-profile litigation. Or they’re handling antitrust, mega mergers, acquisitions, tax, and large bankruptcy restructures.

There’s a wrinkle, though, to all this high-priced gold. According to Altman Weil’s 2014 survey, while overall big firm billing rates have gone up by 4%, on average firms have been discounting hourly rates by 21 to 30%.

Then there’s the other end of the news cycle. It’s the story about the Spanish civil servant employed by a city-owned water utility who hadn’t been at work for almost six years — but no one had noticed. Talk about an employee adding ‘value’ for clueless bosses. He was only found out when his employer tried to recognize him for 20 years of service. No gold watch but a certificate. After an investigation was opened, it was learned he “did absolutely no work” from 2007 to 2010 prior to his 2011 retirement. Some $30,000 is being sought in restitution.

The story reminded me of the lazy person’s 10 commandments that I once posted about. It concerned a scientific global study by “Lancet” that ranked nations according to the laziness of their populations. I hasten to add that I cast no aspersions on the Spaniards.

Of course the real reason for bringing up $1500+ hourly rates is to make the point these rates are highly atypical — even aberrational. Among the other 99% billing by the hour, those rates are unheard of and totally unrepresentative. Indeed, that’s precisely why the über hourly rate report was so newsworthy. Most lawyers aren’t doing so well.

https://upload.wikimedia.org/wikipedia/commons/thumb/9/9a/Big_Mac_hamburger.jpg/278px-Big_Mac_hamburger.jpgAs a matter of fact, I still remember when Jay Foonberg in his famous How to Start and Build A Law Practice was advising new lawyers without a notion of how to set hourly rates — to use burgernomics. In other words, he suggested indexing their fees to the local cost of a McDonald’s Big Mac. The suggestion was certainly more art than science. Use a multiple of 10 of the cost of a Big Mac — or something like that.

I haven’t had a Big Mac in years so I don’t know what they cost these days. Suffice it to say, however, that at an exalted $1500+ per hour that’s likely a multiple of some 400 to 1.

In Arizona, according to the most recent lawyer economics report, the median annual income was $75,000 for sole practitioners. Along with small firms, solos make up 2/3 of all lawyers. Other data suggests median lawyer annual income across the country might even be less. See “How about a raise?”

But for all I know there might be a big firm hereabouts charging 400X the cost of a Big Mac. But like I said, I haven’t had a Big Mac in a long time.


Credits: Caricature of John Blair Balfour PC MP. Caption read “the Lord Advocate” by Leslie Ward at Vanity Fair via Wikimedia Commons, public domain;”A McDonald’s Big Mac hamburger, as bought in the United States,” by Evan-Amos via Wikimedia Commons, Creative Commons.

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“What’s black and tan and looks good on a lawyer?

A Doberman,” was the answer to an unfunny lawyer joke.



But it was no joke for me. Our beloved Doberman, Anna, spent her last day on earth on December 26th. She was just days shy of her 13th birthday. What a sad way to punctuate Christmas.

As for looking good on a lawyer, that she did whenever she leaned on me. She was a beautiful girl. And leaning is what Dobermans do. Called the “Dobie lean,” it’s a breed trait.

Dobermans don’t give kisses to show affection. They lean on you instead. Often misunderstood and unfairly dismissed as ‘scary,’ in truth Dobermans are just as a friend once described, “They’re Golden Retrievers in Doberman skin.”  And Anna was among the gentlest souls — ever. Although watchful, there wasn’t a mean bone in her.

The past few years, Anna ailed from chronic arthritis. We’d managed it for her. But the past two months, it increased in severity. Frailer and ever more unsteady, her quality of life took a nosedive.

When that happens, those of us who bring these treasured creatures into their forever homes must at the end, honor the pact we make at the beginning.

It’s best summed up by “A Dog’s Plea,” author unknown. For years I kept a framed copy on my office wall.

“Treat me kindly, my beloved friend, for no heart in all the world is more grateful for kindness than the loving heart of me.

“Do not break my spirit with a stick, for although I should lick your hand between blows, your patience and understanding will quickly teach me the things you would have me learn.

“Speak to me often, for your voice is the world’s sweetest music, as you must know by the fierce wagging of my tail when your footsteps falls upon my waiting ear.

“Please take me inside when it is cold and wet, for I am a domesticated animal, no longer accustomed to bitter elements. I ask no greater glory than the privilege of sitting at your feet beside the hearth. Keep my pan filled with fresh water, for I cannot tell you when I suffer thirst.

“Feed me clean food that I may stay well, to romp and play and do your bidding, to walk by your side and stand ready, willing and able to protect you with my life, should your life be in danger.

“And, my friend, when I am very old, and I no longer enjoy good health, hearing and sight, do not make heroic efforts to keep me going. I am not having any fun. Please see that my trusting life is taken gently. I shall leave this earth knowing with the last breath I draw that my fate was always safest in your hands.”

On Anna’s death, a nephew said he admired the courage we have to love our dogs because we are willing to endure the pain of their loss. The reality is that losing these cherished family pets gets harder not easier. But you do it because of love as my favorite modern poet, Mary Oliver, wrote of her late dog, Percy:


I Ask Percy How I Should Live My Life
Mary Oliver

“Love, love, love, says Percy.
And hurry as fast as you can
along the shining beach, or the rubble, or the dust.

“Then, go to sleep.
Give up your body heat, your beating heart.
Then, trust.”



She remains my profile avatar and muse for this blog.

I will miss Anna’s companionable presence and her soft nudges on my left elbow while I worked at my desk. I will miss her soft murmurings as she’d run in place asleep on her side, dreaming of chasing jack rabbits. I will miss her turning upside down four paws up and scratching at the air. I will miss her loud powerful barks at the start of every walk. Like a bygone town crier, she’d announce to the neighborhood “here I am” and all’s right with the world.

Next to persistently asking for never-ending pats on her head and hanging out with those she loved, there wasn’t anything better than a walk.

Years ago on our walks in No. Nevada, she’d remind me of another favorite Mary Oliver poem, “Spring” and especially the lines, “Meanwhile, my dog runs off, noses down packed leaves into damp, mysterious tunnels. He says the smells are rising now stiff and lively;

“. . . My dog returns and barks fiercely, he says each secret body is the richest advisor, deep in the black earth such fuming nuggets of joy!”

I’ll always think of Anna as our own fuming nugget of joy.

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photoMandatory state bars long ago lost their ability to surprise. Just when you think tin-eared insularity reaches its limits — wait two beats — there’s always more.

Last month, for example, in his President’s Message: Task Force to Tackle Unauthorized Practice of Law, the Nevada State Bar President after first announcing a new bar task force to study the U.S. Supreme Court’s 6-3 decision against state-sponsored protectionism in North Carolina Board of Dental Examiners v. Federal Trade Commission, then surprisingly segued into a clarion call for more ways “to protect the public interest” from the unauthorized practice of law. Methinks he reached the wrong conclusion.

As a matter of fact, the North Carolina Dental Board case runs counter to self-regulated active market participants fostering anti-competitive regulations and actions for their own — not the public’s benefit. Writing for the majority, Justice Anthony Kennedy explained “Active market participants cannot be allowed to regulate their own markets free from antitrust accountability. When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. If a state wants to rely on active market participants as regulators, it must provide active supervision.”

No wonder those who aren’t state bar presidents are reading the case as “a blow for consumers and economic freedom.” Others even opine it may “drill down into bar associations’ [anti-trust] immunity.”

But no worries apparently in Nevada. In fact, some mandatory bars are acting as though the ruling has no impact since mandatory bar governing boards are either under the “active supervision” of state supreme courts or because lawyer regulation comes under the state supreme court or because bars don’t define what constitutes the practice of law (UPL).

In Arizona, where what constitutes the practice of law has been progressively diluted first, by court-certified legal document preparers exempted from UPL by supreme court rule and soon by the rumored introduction of Washington State-styled Limited License Legal Technicians, I predict the besainted Arizona Bar will declare itself anti-competitively pure.

But at least one mandatory state bar association has decided to pay half attention to what happened to North Carolina’s dentists. The State Bar of Washington announced last week it was suspending some ethics opinions because of antitrust concerns.

Bright line test.

Outside the insular world of bar associations, public interest and consumer groups are also weighing in. In a letter to California’s Attorney General earlier this year, consumer interest representatives asked for an inquiry of all state regulatory bodies in California.

Calling the North Carolina decision a “bright-line minimum test,” the public interest groups wrote, “Those controlling the decisions that might restrain trade may not be “active market participants” in the trade regulated. For every agency so afflicted, the legal status of those making such decisions is clear – they are, in the words of the Court, “nonsovereign actors” who lack any state sovereign immunity whatever. Their decisions are no different than a decision undertaken by a cartel or private combination of competitors. You are invited to review the decision en toto and draw your own conclusions, or to refer it and this letter to the leading antitrust prosecutors and experts in your jurisdiction.”

Concerning lawyers and state bar associations, in a footnote the correspondents declared, “By way of illustration: State bars controlled by attorneys rarely discipline for excessive billing or intellectual dishonesty. Few require any demonstration whatever of competence in the actual practice area of law relied upon by clients. Few require malpractice insurance, or in any way ameliorate the harm from attorney incompetence.

“The point is, each of the many agencies within your state is empowered to carve out momentous exceptions from federal antitrust law, and those decisions in particular require a level of independence from the implicit focus of current practitioners.”

The woes of the amici.

Before the decision, some mandatory state bars had signed onto the North Carolina Bar’s amicus brief asking the Supreme Court to overturn the Fourth Circuit. They’d claimed that upholding the Fourth Circuit would interfere with the state sovereign’s ability to regulate state-licensed professionals and state public protection laws. See “SCOTUS’ Upcoming Decision Could Leave State Bar Associations Toothless.”

They cited 4 likely gloom and doom impairments:

“(1) The limited resources available to prosecute lawyer misconduct and to prevent the unauthorized practice of law will be diverted to litigating whether the state bar’s action has been actively supervised in a manner sufficient to provide state action immunity.
(2) State bars will have to defend expensive antitrust actions even though states explicitly authorize the state bars to regulate the conduct being challenged.
(3) Lawyers will be reluctant to serve as bar councilors for fear of being sued—and of being held individually liable—in treble damage antitrust actions.
(4) Councilors who do agree to serve may be deterred from fulfilling their state authorized enforcement duties against defendants who threaten antitrust claims.”

Ironically, given the subsequent underwhelmed attitudes of some state bars in the case’s aftermath, the woes of the amici may have been overwrought pretense or much ado about nada. Perhaps the Justices were right to pay no mind.

Such little reaction despite all those supposed impairments. It appears the sky was never going to fall.

Or I’m wrong after all. No clue may be better than half-a-clue.





Photo Credits: “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; Other photos via Morguefile.com, no attribution required.




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I was having my weekly bowl of pho — but not at the phonetically mischievous Beaverton, Oregon restaurant pictured above. If you don’t know, the Vietnamese rice noodle and beef soup known as pho is pronounced ‘fuh.’ You figure out the rest.

P1060297 | by Longster47

In any event, I was slurping and reading about an Aussie-Vietnamese hoaxer who’d punked the news and online social media. The faker falsely claimed Facebook had discriminated against him by repeatedly shutting down his Facebook profile over accusations he was using a fake name. He claimed his name was ‘Phuc Dat Bich’ and even posted an online image of his passport to ‘prove’ it was really his given name.

But Facebook was right after all. The name was fake, all part of an elaborate social media spoof perpetrated by a 23-year old Melbourne, Australia man named Tin Le or Thien Nguyen — if you believe someone else who later claimed to have known “Phuc” from his school days.

Phonetic political correctness.

facebook-needs-why-you-lying-button-ecardThe hoaxer explained that he’d created the phonetically rude ‘Phuc Dat Bich’ name hoax to fool the media and to tweak Facebook over its real names policy. “I’ve never believed it’s necessary for it to be mandatory to have your entire name to be published on social media,” he expounded. “People should be free to use any name they desire. Facebook needs to understand that it is utterly impossible to legitimise a place where there will always be pranksters and tricksters,” he added.

B.S. on the Web.

So no surprise. The web is full of hoaxes, urban legends, falsely attributed quotes, netlore and just pasture-variety bull. A healthy dose of skepticism ought to be axiomatic, especially when it comes to much of what ‘goes viral’ on the Internet.

Just this week there was another bogus story, ‘World’s biggest’ drug kingpin El Chapo declares war on ISIS. More bull, this time from a misunderstood satirist. Memo to literary device humorist — it’s not satire if no one gets it. But also blame the 24/7 all-news-all-the-time media that irresponsibly runs stories without bothering to fact-check. Chapo didn’t threaten “true terror” in an encrypted email to Isis leaders. It was another hoax.

Not long ago, one pundit contended the Internet had birthed a “Golden Age of Fact-Checking.” I’m still not buying what she was selling. Fact-checking when it happens is mostly of the shamelessly belated kind or of the indefinitely postponed variety. See Truth, Lies, and the Internet – The Atlantic

https://upload.wikimedia.org/wikipedia/commons/thumb/b/b1/Bsahead.png/240px-Bsahead.pngInternet B.S. is particularly endemic in email and social media chain letters. Last month, somebody emailed me an essay falsely attributed to football coach turned sports commentator Lou Holtz. The “Two Americas” essay I received was entitled “Lou Holtz Nails It!” — although, he didn’t. It was authored by someone else a lot less famous than Lou.

Fortunately, with year-end upon us and lawyers scrambling to complete last-minute calendar CLE, now’s as good a time as any to turn away from lies, nonsense and cow pie capers. I’m happy to provide instead the latest FREE CLE updates.

And while “CLE as practiced has little or no verifiable impact on attorney competence or public protection” — comply we must.

The usual disclaimers about jurisdictional creditworthiness, continued availability, and content quality apply.


Legal Advantage

Best Practices in Biotechnology Prior Art Searching

December 14, 2015 – 12 PM EST

Duration: 1 Hour

Cost: Free

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Best Practices in Electrical Engineering Prior Art Searching

December 18, 2015 – 12 PM EST

Duration: 1 Hour

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Best Practices in Mechanical Engineering Prior Art Searching

December 23, 2015 – 12 PM EST

Duration: 1 Hour

Cost: Free

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Best Practices in Patent Illustration

January 05, 2016 – 12 PM EST

Duration: 1 Hour

Cost: Free

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January 12, 2016 – 12 PM EST

Duration: 1 Hour

Cost: Free


Lawyers Mutual Insurance Company

Must See FREE CLE/
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On Demand Webinar

Click here for 1.0 hrs. of general CLE credit.


Clifford Law Offices – Continuing Legal Education Program

2016 Webinar: “The Ethics of Pre-Trial and Trial Work”

Date: Thursday, Feb. 18, 2016

Time: 2:30-4:30 p.m.

 Practising Law Institute (PLI)
 CT Corporation
January 12th 2016 1:00pm EDT
 National Consumer Law Center (NCLC)

 On Demand Archive

Don’t Settle for Less: Tips for Negotiating Settlement Agreements

The Color of Debt: Racial Disparity in Debt Collection Lawsuits

Representing Clients in Guardianship Actions: Winning the Case for Supported Decision Making

Discovery: Getting the Information You Need


Bloomberg BNA

Big Law Business: Lawyer Mobility – Ethical Issues Arising from Lateral Hires, Partner Withdrawals and Law Firm Dissolutions

Thursday, December 17, 2015
1:00 PM to 2:30 PM ET

Attorney Misconduct: Causes, Consequences, and How to Avoid It

Thursday, January 7, 2016
1:00 PM to 2:30 PM ET


American Society of Law, Medicine and Ethics (ASLME)

The Network for Public Health Law

On Demand Webinars – Various

Motorcycle Helmet Laws: Innovative Approaches to Reducing Injury


Photo Credits: Morguefile.com; KC vs Pho, by Longster 47 at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License;”BS ahead, check for references” via Wikimedia Commons File:Bsahead.svg.


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https://i1.wp.com/cdn.morguefile.com/imageData/public/files/s/sideshowmom/preview/fldr_2005_04_20/file0002043695191.jpghttps://i1.wp.com/cdn.morguefile.com/imageData/public/files/s/Seemann/11/l/14170495919qjki.jpgProving there are turkeys after Thanksgiving, a couple of career law school académicos opined in Black Friday’s Washington Post championing “low-bono” legal services so that “talented young lawyers will devote an early stage of their career to communities in need.”

William Treanor, Georgetown Law Center Executive Vice President, Dean and Professor of Law, and Jane Aiken, Vice Dean, Associate Dean (Experiential Education) and Professor of Law at the same school, are the noblesse oblige promoters of that well-worn access to justice idea. The glut of new, unemployed young lawyers, they reckon, can charge “affordable fees” so that working people earning too much to qualify for legal aid can obtain legal representation.

https://upload.wikimedia.org/wikipedia/commons/thumb/0/09/Ivory_Towers_-_geograph.org.uk_-_1650865.jpg/180px-Ivory_Towers_-_geograph.org.uk_-_1650865.jpgSince most people can’t afford to hire a lawyer, low-bono is a laudable enough idea — even if it comes from a pair of insular ivory tower inhabitants who from their CVs appear not to have any experience running their own law practices where they had to make their monthly nut.

This lack of real-world client-contact lawyer experience, however, is hardly disqualifying for Ivory Tower residency, as my buddy The Legal Watchdog has often pointed out. And so they blithely declare,“While pro-bono work is offered for free, the low-bono models provide adequate financial support for attorneys.” So much for the cursory conjecture of the comfortably clueless.

Young business man standing pulling his pockets inside out uid“Lower-income residents who don’t qualify for free legal aid but can’t afford lawyers suffer devastating consequences in court,” they complain citing the sad tale of a sixty year-old widow evicted from her home. “And yet even as they fall, unrepresented, through the cracks, we keep hearing about a glut of unemployed lawyers, many of them recent law-school graduates,” as though vaguely remembering a regurgitated classroom abstraction. Harder to ignore is the haughty self-serving skepticism, “we keep hearing about a glut of unemployed lawyers.” This must mean if they don’t believe it — it must not be true.

The reality is that for some time, it’s been well documented that new lawyers graduate with “soul crushing, crippling” six-figure debt. Indeed, the financial obligations are so humongous that it’s impossible for them to service those loans without a reasonably paying job. And while the economy has improved since the depths of the recession, good paying law-related work is still hard to come by. So it’s hard to conceive how jobless, low-income or no income recent law school graduates straddled with over $150,000 in debt will be in any position to “devote an early stage of their career to communities in need” when they themselves are card-carrying members of those communities.

You’d think these two well-placed high level Georgetowners would know better. Or that they’d concede at least to save face, that law school graduate debt is no abstraction — especially at Georgetown. According to the latest US News & World Report, Georgetown University  is 12th on the list of “Which law school graduates have the most debt?” with an average 2014 graduate indebtedness of $150,529 and with 79% of its grads with debt.

Any news from the jungle? | by HikingArtist.com

But unfortunately, with very few exceptions, law school professors, deans and administrators would rather not acknowledge the elephant-sized schools vs. students conflict of interest or the post-graduate employment risks and high cost realities of attending law school. As Pulitzer Prize winning NY Times writer David Segal famously wrote 4 years ago: “Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.”

Being very smart, though, I have no doubt there’s one reality they can’t ignore: “Fewer and Fewer Students Are Applying to Law School.” Also see: “Enrollment at Law Schools Continues to Decline.”

In the end, the solution, which they will eventually come to albeit not quietly and not before some law schools close will be an approach along the lines just recommended for universities by Washington Post business columnist Steven Pearlstein. He advocates greatly improving productivity, cutting overhead and lowering the overall tuition cost. See “Four tough things universities should do to rein in costs.”

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