Disenchanted alumni have filed two more class actions against their law schools. In addition to Thomas Jefferson School of Law, Thomas M. Cooley Law School and New York Law School are now defending their former students’ fraud claims. NYLS said the claims were without merit and would defend against them in court. Cooley, the largest law school in the country, is pursuing a more aggressive strategy that earns it this closer look.
Cooley was founded in 1972 by now-retired Michigan Supreme Court Chief Justice Thomas E. Brennan. In 1996, dissatisfied with the subjectivity of U.S. News rankings methodology that, coincidentally, placed Cooley in its unranked lower tiers, Brennan began publishing his own recompilation of the ABA’s data. The latest edition appears on the school’s website. In it, Cooley’s overall ranking is #2. Harvard is #1; Yale is #10; Stanford is #30; and the University of Chicago is #41. (Exploring the different subjective judgments that underlie Brennan’s alternative system must await another day.)
Cooley’s 2010 graduate employment rate was 78.8% — 181st out of 193 accredited law schools on Justice Brennan’s latest list. The question that has morphed into litigation is what that rate means.
Kurzon Strauss LLP represents the plaintiffs in both of the latest suits. According to the Wall Street Journal, Cooley recently sued that firm “for propagating purportedly defamatory ads on the websites Cragislist and Facebook about the school. The postings were part of the law firm’s investigation into how law schools report employment statistics, according to firm partner Jesse Strauss.” Cooley also filed a separate defamation suit against four anonymous bloggers.
But escalation can amplify unwanted publicity; publicity creates the potential for visible missteps. Based on the Journal‘s report, I think Cooley made one:
“Jim Thelen, Cooley’s general counsel, said that if any of the plaintiffs or their attorneys has issue with how law schools report employment numbers, then they ought to take it up with the American Bar Association, which helps set criteria for collecting data, or even the Department of Education — but not with individual law schools. ‘These are nothing other than attempts to bring public attention to this issue,’ Mr. Thelen said.”
Actually, this is a double misstep, proving that sometimes the best comment is none at all. First, using the answers that Cooley and every other school provide to the ABA’s annual law school questionnaire may be today’s catchy sound bite, but it’s tomorrow’s dubious long-term strategy. The ABA doesn’t cash students’ tuition checks; their law schools do. Telling the world that unemployed graduates should take their concerns about the quality of post-graduation employment data elsewhere should send an unsettling message to any pre-law student who is listening.
Second, many litigants seek publicity; calling them out isn’t a defense — or particularly attractive. Attorneys tend to forget that lay audiences quickly develop a “The lady doth protest too much, methinks” reaction to lawyers’ public relations efforts. In fact, a non-lawyer who hears Thelen’s remarks could well wonder, “Well, why are they trying to bring public attention to the issue? Is there a problem?”
The underlying concern — assessing the quality of graduate employment rate data — isn’t unique to Cooley. Deans who understand the serious flaws in the ABA-required reporting methodology should have exposed them long ago, just as the NY Times finally did earlier this year. That most awaited the ABA’s recent directive on this topic evidences a pervasive failure of leadership. The ABA’s annual questionnaire has never prevented any school from doing more to inform prospective students, such as telling them who among their reportedly employed graduates have full-time jobs or positions requiring a legal degree.
Then again, lawyers and former judges run law schools. Sure, disgruntled students who incur enormous educational debt to get their degrees may claim to have been misled. But the defenses will always be many and the odds against certifying consumer fraud claims will forever be daunting. Beat the class and the case usually goes away.
On the other hand, if Dr. King was right that “the arc of the moral universe is long but it bends toward justice,” some law schools may discover that their public comments ring hollow and their short-term victories are pyrrhic.
The Belly of the Beast 
To me, the post-law school employment imbroglio is the long tail on the “golden age of prosperity unmatched by any other industry” (as the July 1, 2011 issue of the ABA Journal Law News Now put it).
Law schools were simply the supplier of people-inventory to sate the voracious hiring appetites of BigLaw firms enjoying unprecedented demand and pricing power, as evidenced by the annual rate increases and, later, associate salary increases. I have no data, but it wouldn’t surprise me if, during that time, every law school was able to place almost every graduate at a law firm of some kind, and those graduates who preferred to hang out a solo shingle did so in the confidence that there seemed to be someone willing to give them work.
Like all pyramids, it worked fine until the supply of new buyers dried up. Clients cut back or reallocated their legal service spending, creating a ripple of dislocation down through the law firm tiers. Just like that, demand for the lawyers in gestation at the law schools dropped precipitously.
The law schools’ problem seems to stem from their failure to acknowledge that the three-year law school cycle virtually guaranteed that a high percentage of students already enrolled would have difficulty finding jobs, and adjust students’ expectations in response to the seismic shift in demand.
If they had said in 2008, “Demand for new lawyers appears to be dropping, and it looks like it may be permanent rather than a short-term, recession-related dip. As a result, Dean’s List performance at a top-tier law school no longer assures you of a $160k BigLaw job. Obviously, all other firms will likely show diminished demand, too. Accordingly, each of you should consult with your counselor and evaluate your career plans in relation to this major development. The law remains a wonderful calling for many, but the underlying economics have changed.”
Had they done something that simple, the media would instead be talking about how foolish students were to blindly continue to pursue law careers despite being alerted to meaningfully lower demand, or at least to have formulated alternative plans that align with the new reality.