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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.

Anna

       Anna

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:

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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.”

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https://secure.gravatar.com/avatar/d0eb53e35fd7ff80bc2268a515adb7e2

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.

 

 

 

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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.

FREE ONLINE CLE 

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

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Must See FREE CLE/
E-Discovery: Leveling the Playing Field

On Demand Webinar

Click here for 1.0 hrs. of general CLE credit.

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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.

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 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

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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

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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

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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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Life is more than conflict. It’s also about love, emotion and devotion.

And as regular readers know, with three rescues in our household, I have a particular soft spot for dogs and their special connections to us.

This touching, heartwarming video, which was forwarded to me just this morning says it as well anything I’ve seen in a while.

 

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(A heartfelt hat tip to Jay for telling me about it).

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Big Finish! | by massless

A while back, someone recommended John Molloy’s 2004 book, The Fraternity: Judges and Lawyers in Collusion. Molloy? I wondered. Wasn’t that the guy who wrote the now dog-tired advice book on sartorial corporate success?

Wrong guy I discovered. The Fraternity was written by the late John F. Molloy — not John T. Molloy. That’s a world of difference. The former was a lawyer-turned-judge-turned-lawyer and the other was a researcher and consultant who first made his bones advising New York City law firms on how clothes could enhance the credibility and authority of young lawyers before judges and juries.

Nevertheless, I finally read The Fraternity. But as it turns out, the old Dress for Success guru’s book, which I read two lifetimes ago was eminently more useful by comparison.

Instead, I was disappointed by the self-proclaimed “confessional diatribe” by the late Tucson, Arizona jurist John Fitzgerald Molloy. Long on confession and short on redemption, it was also empty of promise. With so much discussion about the Fraternity’s self-serving, profit-seeking grip on the legal system, where were the practical prescriptions?

Clarks Pie | by Capt' Gorgeous

Among Judge Molloy’s pie-in-the-sky suggestions: Eliminate the exclusionary rule. Reduce peremptory challenges. Keep lawyers out of juvenile courts in favor of trained social workers. Take away the plaintiff’s first and last argument in a civil trial. Stop random selection of juries in favor of jurors selected by public officials. Limit the bench to only those with trial experience. Ban judges from working as lawyers after serving on the bench.

In whose lifetime will those sky pies be eaten?

To be fair, there’s enough in Judge Molloy’s wisp of a 244-page memoir sans index to justify the book’s subtitle, “Lawyers and Judges in Collusion.” But the problem is that it mostly reeks of cognitive dissonance, i.e., the conflict that results from simultaneously holding inconsistent beliefs and attitudes. It’s like the chow hound who complains about his meal while asking for a third helping.

Out of both sides.

On the one hand, Judge Molloy regales his readers with how much money he made as a trial lawyer after leaving the bench, even admitting “We were infatuated with the flow of delightful cash.” And to make certain you’re suitably impressed, he goes as far as helpfully calculating the present value of his old law firm earnings.

But then on the other hand and only at the end of his career, does the 74-year old former trial and appellate judge belatedly call for incremental reform of a legal system that’s been “massaged” by “a Fraternity composed of lawyers and judges . . . into something quite different from what was intended — one that derives powers from claiming to have come from our Forefathers, but which in fact is a system that has been restructured, almost beyond recognition, by the Fraternity, for the benefit of the Fraternity.”

NYC: New York Supreme Court, Appellate Division | by wallyg

Indeed, concluding his recollections of his service on Arizona’s appellate bench, he writes, “In reviewing this chapter, I realize that I may have given the impression that as an appellate judge I was a brave dissenter, always leaning against the tornadic winds of the Fraternity’s movement toward more litigation and more lawyer-profit. The written record gives lie to such a claim.”

Sort of undercuts the argument for reform, that it’s made — only after you’ve gotten yours. Better I think what Edna St. Vincent Millay said long ago about penance, “But if I can’t be sorry, why I might as well be glad.”

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Photo Credits: “Big Finish” by Chris Wetherell at Flickr Creative Commons Attribution; other photos via Morguefile.com;”Clark’s Pie,” by Ben Salter at Flickr Creative Commons Attribution; “NYC: New York Supreme Court, Appellate Division,” by Wally Gobetz at Flickr Creative Commons Attribution.

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There was a very good Op-ed in this morning’s New York Times, Steven Harper’s “Too Many Law Students, Too Few Legal Jobs.”

I know. It’s all been said before, especially by the now declining scamblog movement.

But I still encourage you to read it, especially since Harper again challenges the American Bar Association (ABA) to do something about the dysfunctional system it’s had such a strong hand in perpetuating: law schools “operating without financial accountability and free of the constraints that characterize a functioning market.” As Harper and others have critiqued, despite its recent task force on the future of legal education, the ABA persists in doing little to effectuate real reforms concerning law school funding, tuition pricing, student debt loads and earnings potential.

Bite and breadth.

The criticisms about the state of legal education have also been made before with arguably more bite — but with equal breadth by law school professor and reform advocate Paul Campos. Indeed, in September 2014, writing in The Atlantic, Paul Campos summarized the problem like this:

“. . . the Congressional Budget Office projected that Americans will incur nearly $1.3 trillion in student debt over the next 11 years. That figure is in addition to the more than $1 trillion of such debt that remains outstanding today. This is the inevitable consequence of an interwoven set of largely unchallenged assumptions: the idea that a college degree—and increasingly, thanks to rampant credential inflation, a graduate degree—should serve as a kind of minimum entrance requirement into the shrinking American middle class; the widespread belief that educational debt is always “good” debt; the related belief that the higher earnings of degreed workers are wholly caused by higher education, as opposed to being significantly correlated with it; the presumption that unlimited federal loan money should finance these beliefs; and the quiet acceptance of the reckless spending within the academy that all this money has entailed.” See The Law-School Scam

Harper, a former big law partner, has like Professor Campos, opined extensively on the same topics, including in his 2013 book, The Lawyer Bubble: A Profession in Crisis and more recently in his law review article, Bankruptcy and Bad Behavior – The Real Moral Hazard: Law Schools Exploiting Market Dysfunction.

The themes are familiar ones, including the law school market dysfunction and how “Current federal student loan and bankruptcy policies encourage all law school deans to maximize tuition and fill classrooms, regardless of their students’ job prospects upon graduation.”

And as Harper explains, a “law school moral hazard” has been created where having incentives to do so, persons take more and more risks because someone else will bear the burden of those risks. He says this moral hazard has combined “with prelaw students’ unrealistic expectations about their careers to produce enormous debt for a JD degree that, for many graduates, does not even lead to a JD-required job.”

Meantime, as Harper and Campos are so good at reminding, for law schools this just means pay no mind as their beat goes on.

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Photo Credits: All photos via morguefile.com

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