The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.

As a law professor who obtained my non-law degrees from Penn, I’m intrigued by the flurry of commentaries on advocating the following set of values:

“Get married before you have children and strive to stay married for their sake.  Get the education you need for gainful employment, work hard, and avoid idleness.  Go the extra mile for your employer or client.  Be a patriot, ready to serve the country.  Be neighborly, civic-minded, and charitable.  Avoid coarse language in public.  Be respectful of authority.  Eschew substance abuse and crime.”

Penn鈥檚 founder, Ben Franklin, famously believed that laws without morals are in vain, but Wax and Alexander do not seem to share this activist view.  Their goal, which did not enlist government to regulate morals, is a modest one. They seek only to persuade.

Wax and Alexander contextualized their advice by:  (1) explaining how it overlaps with the practices of a subset of society in the 1950s; (2) explicitly conceding that their preferred mid-century values resided amongst abhorrent contemporaneous ones; (3) characterizing the preferred values as “bourgeois”; and (4) critically providing modern examples of counter-values in sub-cultures of each of the three largest cohorts in America.  And then all hell broke loose.

Addressing (even listing) all of the responses to Wax and Alexander — some of which assume extraordinary hermeneutic skill at the discovery of hidden meaning in simple language — is well beyond the scope of this piece. Furthermore, I do not write in order to necessarily agree with all the claims made by Wax and Alexander; for example, as a government-transparency scholar, I believe it is no less important to respect public authority than to preserve avenues for questioning it.

One of the milder reactions to the Wax/Alexander op-ed was the cultural-relativistic claim that promoting one set of values above others is inherently bad. Penn Law Dean Ted Ruger — to his credit in this often speech-squelching time — :  “as a scholar and educator I reject emphatically any claim that a single cultural tradition is better than all others.”

While it’s possible to adopt such a view (emphatic or otherwise), this proposition is inconsistent with how most participants in modern Western culture actually operate.  For example, modern Western culture holds that women are equal to men and should be treated so. We’ve enshrined this notion into vast realms of the law so as to punish non-culturally-conforming behavior.

As such, modern Western culture adherents typically believe that the Saudi cultural tradition of subjugating women is not only bad for America, they believe it is bad for Saudis.  In other words, the equality of women in Western culture is clearly viewed as a morally superior norm, regardless of cultural tradition. After all, cultures aren’t preferences regarding ice-cream flavors, which don’t reflect any greater belief system.  Thus, while I prefer chocolate gelato over vanilla, I don’t care whether you disagree when choosing the contents of your cone.  In contrast, I believe in treating women equally, and I care greatly if you act on a contrary conviction.

Indeed, the notion that one set of values is superior to others is ubiquitous in American society, drives much of American politics today, and explains the activities of various advocacy groups.  If you have any doubt, then just try to engage three strangers in a discussion of abortion, gun rights/control, and health care.  You likely won’t find many value relativists.

And we see the same phenomenon amongst religions and religious people throughout this country.  The dominant religious groups in the U.S. believe in G-d and in the supremacy of their view of divinity.  That doesn’t mean they don’t respect or tolerate others’ beliefs and practices.  But let’s be clear, most religious groups believe they’re right and everyone else is wrong (or, at least, less right).

Accordingly, anyone who rejects the claim that a single cultural tradition is better than all others is necessarily not a subscriber to most religions (or has, perhaps, defined the term “cultural tradition” in a meaningless fashion).  This supremely relativistic philosophy is a minority view that is largely reserved to cultural elites and academics, albeit not all of them.

In fact, the Wax/Alexander proposal is not a moral claim of cultural optimality at all.  Rather, they assert, about their bucket of values, that “[a]dherence was a major contributor to the productivity, educational gains, and social coherence of that period.”  This consequentialist position is ultimately subject to empirical verification.  At minimum, it’s a plausible hypothesis — so much so, in fact, as to be mildly banal.

Thus, at bottom, Wax and Anderson have stated a position that certain values lead to better individual and collective outcomes.  If discussants were to address the substance going forward, they would marshal evidence in support of their positions.  Penn Law’s dean chose a different path.  He — somewhat ironically, given his position — eschews the debate entirely.  He’s free to do so, no doubt, but I don’t think that should stop the rest of us from engaging in an intellectual discourse regarding how to improve the well-being of Americans.

*Robert Steinbuch joined the Bowen School of Law faculty in 2005 after several years in government and private practice. Professor Steinbuch’s government service includes working for the United States Court of Appeals, the United States Department of Justice, and United States Senate Judiciary Committee. Recently, Professor Steinbuch served as a Fulbright Scholar and continues as a Peer Reviewer. Professor Steinbuch recently coauthored, along with John Watkins and Richard Peltz-Steele, the Arkansas Supreme Court cited treatise: The Arkansas Freedom of Information Act, Sixth Edition.

The post Waxing Nostalgic appeared first on The Arkansas Journal of Social Change and Public Service.

Law schools鈥攑articularly those struggling to stay above water under contemporary economic challenges and the changing dynamics in legal education鈥攕hould act in conformity with the ethical rules that govern lawyers. The professional rules of legal ethics require attorneys to act with full candor towards a court.[1] In litigation, this not only means that lawyers are bound not to misrepresent facts to decision-makers; but more, lawyers are actually required to disclose authority that is contrary to their client’s position. This does not prevent, of course, lawyers from properly arguing that the law should be changed or modified, but the rules of professionalism require attorneys to predicate such arguments on an honest understanding鈥攁nd, critically, forthright description鈥攐f the law as it exists.

In the context of legal education, this professional obligation would translate into law schools approaching their decision-makers鈥攑rospective students who are struggling with the question as to whether to undertake the burden of financing a legal education, as well as choosing among competing institutions鈥攚ith full candor.

Rather than cherry-picking data that could confuse鈥攐r, in the worst case, are designed to mislead鈥攑rospective students in order to entice them to bring their tuition dollars to a law school struggling to enroll enough students to meet operating expenses, law schools should embody the ethical obligation to be completely candid with future students, i.e., law schools should model professionalism. The legal profession itself will eventually expect the same of the graduates of those law schools once these former students are in practice.

As such, law schools should, inter alia, be fully forthcoming about prospects for post-graduate employment and salaries, i.e., the single largest recruiting tool for law schools. Unfortunately, recent history demonstrates that this has not always occurred.

A few years ago, for example, several law schools were sued for providing misleading employment information to increase their academic profiles in national rankings and to attract consumers directly.[2] While these suits generally have not been successful, false reporting by some law schools of admissions data aptly resulted in several significant American Bar Association (ABA) actions against them. Most notably, the ABA censured and fined the University of Illinois when it falsified its admissions data for several years.[3]  The school was forced to pay an unprecedented $250k in fines.[4] The school commissioned a report that came to the conclusion that the culpable bad acts were the responsibility of a rogue admissions officer.[5]   Similarly, Villanova Law School was censured for “reprehensible behavior” when it falsified its admissions data.[6]

Thereafter, the ABA updated its Standard 509, which requires law schools to publish basic consumer information, such as admissions and job placement data.[7] While the material that must be provided to the public is limited, the core component of the Standard does, appropriately, mandate that law schools publish their data in a fair and accurate manner so as not to fuddle the minds of potential consumers.

Too often, however, schools view their preeminent goal as attracting students to attend their institutions. These schools focus on advertising and marketing to maximize enrollment of (hopefully) qualified students. Marketing and advertising efforts, however, are not generally the same as full candor. While we expect salespeople not to lie, we appropriately understand them as partisan advocates presenting a slanted perspective. We do not typically expect law schools to do the same, nor should we accept such behavior. Schools should frankly disclose to applicants their chances of success based upon their academic profiles, as well as their likely post-graduation employment opportunities.[8]

As such, law schools focusing on advertising and marketing confront three challenges:  First, how to truthfully describe the value of a legal education in general. Second, how to truthfully describe themselves. Third, how to honestly assist students in deciding whether and where to go to law school.

In addressing these questions, law schools need to maintain their educational function and uphold their ethical obligations while seeking students. That means that schools should only seek to populate their classes with those qualified students who have made informed decisions and who have a realistic opportunity at success. To do so, schools themselves must affirmatively present the complete, unvarnished truth about both the costs and benefits of going to law school in general, the value of attending the individual institution in particular, and, perhaps most importantly, the individual student’s likelihood of success. This notion challenges a simple model of marketing focused on revenue enhancement.

This approach has precedent. For example, doctors are required to fully inform patients about the specific risks and potential benefits of any course of action. Indeed, even if a doctor pursues a treatment plan that is prudent, the doctor will have failed to fulfill her obligations to the patient if she did not fully inform him of the relevant data. And a doctor will be held responsible for that failure, particularly if the outcome is suboptimal, yet predictable.

Along a similar vein, one law school offered modest refunds to students unable to get post-graduation employment.[9]  While this program is not premised on the school failing to properly inform students, it creates a positive鈥攊ndeed financial鈥攊ncentive to do exactly that.

The full-candor approach stands in contrast to, say, the stereotype of used-car salespeople, who only present one-sided information. The point is that one would not (or, at least, should not) take advice from a used-car salesperson on the value of buying another dealer’s car or not buying a car at all. But one generally would take advice from a doctor on whether to have a procedure and, if so, whether to have the particular doctor perform it. Doctors are expected, indeed, required, to inform patients when not to purchase the doctor’s services. Law schools should do the same, i.e., act like the fiduciaries that lawyers and doctors are鈥攁nd used-car salespeople are not.

The application of this overarching principle presents difficulties arising from the facts that the value of law school is highly dependent on idiosyncratic factors of individual students and strongly related to which law schools the students are contemplating attending. Thus, just because a student is qualified does not mean she should go to law school at all. And, the value of attending law school might depend highly on the quality of the law schools she is considering. Schools ought to evaluate students’ individual needs in making recommendations, and schools must put their financial interests second to what is best for students in advising about legal education. This does not always occur.

Take, for example, a law professor who expressed concern that administrators might look askance at him for advising a student to transfer to a top-tier school from a lower-ranked institution. And consider another colleague who described how an administrator refused to assist students who seek to transfer, regardless of the objective quality of that decision in any particular instance. Thus, in both cases, the impression was created, or reality existed, that the schools put their interests above the students at issue, i.e., that schools are acting like advocates not educators. That is inappropriate and violates the notions of candor described above.

As academics, we cannot eschew the responsibility to provide the bad news along with the good based on some newfound, opportunistic allegiance to concepts of caveat emptor that are completely antithetical to the long-standing self-professed educational obligations of law faculties.

For example, when some suggested that recent literature鈥攄escribing the average salary for attorneys as approximately $150,000鈥攚ould be useful to recruit law students, it became clear that critically important information was missing. As the ABA wrote last year:  “Because graduates鈥� salary data can so easily be misleading, schools that publish salary information must take special care to ensure that it complies with the ‘complete, accurate, and not misleading’ requirements of Standard 509.”[10]

The mere recitation of the average lawyer salary is not only unhelpful, it’s, in fact, misleading. Here is why:

First, the National Association for Law Placement (NALP) regularly describes the bimodal pay distribution for new lawyers, which largely persists throughout attorneys’ careers.[11]   This somewhat sophisticated locution indicates the simple fact that starting-lawyer salaries basically fall into two groups:  higher and lower. And this bifurcation generally follows the dichotomy of top versus lower-tiered schools. Thus, the mean salary proves to be an unreasonable goal for those in the lower mode.

A recent study by the ABA of law graduates from 2000 further examined the nuances of attorney pay beyond a banal reference to average lawyer salaries.[12] For this group who graduated 15 years ago, the median pay for full-time-employed graduates from top-10 law schools was almost $75,000 more than those from fourth-tier schools.[13] That is a significant difference, which, of course, is not reflected in an average-salary description.

Second, as Akane Otani of Bloomberg News highlighted, the average debt-load for recent law graduates is only slightly less than the median $150,000 annual salary.[14] As economists always stress, costs must be adequately evaluated. Spending $2 to earn $1 is, needless to say, not a good strategy.

Moreover, Otani references the reality that only discussing average salaries critically ignores consideration of both unemployed graduates and those who are working not as lawyers.[15] Thus, the average income (not salary) of all law graduates (rather than only those employed as lawyers) is a far better measure.

Third, a recent article by Florida State University law professor Lawrence Krieger and University of Missouri psychology professor Kennon Sheldon determined that 55% of responding lawyers indicated they earned less than they expected, while 32% met their salary expectations and 13% earned more.[16]  Indeed, as the title of the article implies, law schools should use data to inform students of the likelihood of success.

Moreover, the Krieger-Sheldon study found that, on the whole, attorneys in public service were happier than those in BigLaw.[17] Of course, these happier lawyers earn far less than the mean attorney salary, as well. These facts need to be discussed with prospective students.

As a consequence of their analysis鈥攖he ABA Journal reported鈥擪rieger and Sheldon themselves cautioned that 鈥渆ncouraging new people to enter the profession for high earnings (even if expectations were accurate) could result in a pool of future attorneys predisposed to disappointment and lower well-being in their careers as well as in law school.鈥漑18]

Practicing law can be an enjoyable and rewarding vocation, but students should not pursue it believing they will get rich quickly or easily. And law schools looking for revenue shouldn’t mislead prospective students to the contrary. Plenty of better means to achieve riches exist.

With the aid of law schools embodying principles of professionalism described herein, students can make sober and calculated analyses regarding the financial and non-financial costs and benefits of going to law school. That is the appropriate way to handle such an important decision.

* Robert Steinbuch is a Professor of Law at the 糖心Vlog传媒LR Bowen School of Law and a Fulbright Scholar. He lectures and writes on various subjects including legal education.

[1] Model Rules of Prof鈥檒 Conduct R. 3.3 (1983).

[2] Joel F. Murray, Do U.S. Law Schools That Report False or Misleading Employment Statistics Violate Consumer Protection Laws?, 15 J. Consumer & Com. L. 12 (2012); Jack Crittenden, 12 More Law Schools Sued over Employment Data, Nat鈥檒 Jurist (Feb. 1, 2012), http://www.nationaljurist.com/content/12-more-law-schools-sued-over-employment-data.

[3] Jodi S. Cohen, University of Illinois Law School Censured, Fined $250,000, Chicago Tribune (July 25, 2012), http://articles.chicagotribune.com/2012-07-25/news/ct-met-u-of-i-law-sanctions-20120725_1_aba-s-council-law-school-dean-paul-pless.

[4] Id.

[5] Jodi S. Cohen, A University of Illinois Law Dean Resigns after Report Details Manipulations of Admissions Data: School Will Spend $1 Million on Investigation, Chicago Tribune (Nov. 08, 2011), http://articles.chicagotribune.com/2011-11-08/news/ct-met-u-of-i-law-school-1108-20111108_1_lsat-score-test-scores-data-analysis.

[6] Nathan Koppel, ABA Censures Villanova Law School for 鈥淩eprehensible鈥� Conduct, Wall St. J. (Aug. 16, 2011), http://www.wsj.com/articles/BL-LB-40620.

[7] Daniel O. Bernstine, The State of Law School Admissions: Where Are We in 2014?, 83 Bar Examiner 12, 17 (June 2014).

[8] See Nic Horton, Sullivan Speaks About Bowen Law鈥檚 Financial Troubles, The Arkansas Project (April 24, 2014), http://www.thearkansasproject.com/sullivan-speaks-about-bowen-laws-financial-troubles/.

[9] Law School’s 15% Refund to Grads Who Can’t Find Jobs, Inside Higher Education (July 13, 2015), https://www.insidehighered.com/quicktakes/2015/07/13/law-schools-15-refund-grads-who-cant-find-jobs.

[10] A.B.A. Section on Legal Education and Admission to the Bar, Managing Director鈥檚 Guidance Memo Standard 509 (July 14, 2014).

[11] Salary Distribution Curves, Nat鈥檒 Ass鈥檔 L. Placement, http://www.nalp.org/salarydistrib.

[12] Debra Cassens Weiss, ABA’s After the JD’ Study Shows Many Leave Law Practice, A.B.A. J. (Apr 1, 2014), http://www.abajournal.com/mobile/mag_article/after_the_jd_study_shows_many_leave_law_practice.

[13] Id.

[14] Akane Otani, Why Huge Salaries Don’t Necessarily Make Law Grads Rich, Bloomberg News (October 22, 2014), http://www.bloomberg.com/bw/articles/2014-10-22/law-school-grads-make-good-salaries-but-have-high-debt-and-few-jobs.

[15] Id.

[16] Lawrence S. Krieger with Kennon M. Sheldon, Ph.D., What Makes Lawyers Happy?: A Data-Driven Prescription to Redefine Professional Success, 83 Geo. Wash. L. Rev. 554 (2015).

[17] Id.

[18] Debra Cassens Weiss, Lawyers in Prestige Positions Aren鈥檛 as Happy as Those in Public Service Jobs, Study Finds, A.B.A. J. (March 17, 2014), http://www.abajournal.com/mobile/article/lawyers_in_prestige_positions_arent_as_happy_as_those_in_public_service-job/.

The post Law Schools Should Stop Misleading Prospective Students in Pursuit of their Desperately Sought Tuition Dollars appeared first on The Arkansas Journal of Social Change and Public Service.