The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

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Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was CompStat — the NYPD’s use of statistical analysis to focus police presence in places where it was needed most — with significant results on the occurrence of crime in those “hot spots.” The NYPD also began aggressively stopping and frisking people who fit the profile — not a racial profile, as everyone where it was happening were of the same race, but instead a “social” profile of “the thousand small clues that policemen recognized already.” Poor communities had to put up with more police intrusion, but they benefited from “a disproportionate gain in crime reduced.” (And though the NYPD uses stop-and-frisks of low-level offenders to identify them in the system in case they commit a real crime later, the other police forces around the country use it to actually lock up marijuana possessors — an offense that’s been decriminalized in New York since forever, but that still gets you jail everywhere else, it seems.) The result in New York City has been criminals being forced to stop committing crimes brazenly in public — many have either taken their activities indoors (and thus ended much need for violent turf wars) or stopped altogether.

Preventing criminals from doing their thing in place A did not lead others to do it in place B, but rather to nobody doing it at all. People stopped getting used to crime happening, stopped seeing people they knew committing crimes, and THAT was the biggest factor of all.

So what really happened was a cultural shift. Crime stopped being so much “something everyone’s doing,” and so much less likely to be something an individual would consider. Conservatives don’t like this, because it means it’s pointless to get tough on criminals. Liberals don’t like this, because it means it’s pointless to be nice to criminals.

So back to prison. If it doesn’t rehabilitate anyone, and it has hardly any deterrent effect whatsoever, then nobody should be in prison for a nonviolent crime. Locking up marijuana dealers and Ponzi schemers is pointless. They’d be just as deterred by the threat of lost reputation and assets, and having to do community service as their new full-time job — and if that won’t deter them then prison won’t either. Instead, prison should be reserved for that one person in a thousand who is a violent threat, or who has committed a truly awful crime.

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 It’s a lovely bit of writing, and our TL;DR précis doesn’t do it justice. Longtime readers of The Criminal Lawyer will note some common ideas, so it’s no surprise that we think so highly of it.

There’s a lot of scholarship going on right now about what’s wrong (and what’s right) with the American criminal justice system. Gopnik does a good job of summarizing what’s being published out there right now, and putting his own spin on it. Of course there are things we’d say differently, things we disagree with, points we think unrealistic. We could add plenty of things like how poor minority communities in the late ’90s actually teamed up with law enforcement, voluntarily and expressly waiving some of their Fourth Amendment rights to enable the cops to catch the drug dealers who were destroying their neighborhoods. We could argue that the whole “Northern/Southern” thing is a load of hogwash on both sides. We could take issue with the characterization of what conservatives actually believe. Still, we’re here not to bury Gopnik, but to praise him. This one’s not about what we think, for a change.

So give it a read. You won’t regret it.

In this Information Age, it is hard to grasp sometimes that everybody does not know everything. And yet it is so. It is common knowledge, for example, that dinosaur fossils are the bones of creatures that lived scores of millions of years ago, that terrorist hijackers flew planes into the World Trade Center and the Pentagon, and that eyewitness identification testimony is statistically as reliable as a ’78 Chevy. And yet there are tons of people who sincerely believe that fossils are just a few thousand years old, that the U.S. government conducted 9-11, and that an eyewitness I.D. is the be-all-and-end-all of Truth.

Actually, it’s not fair to lump the I.D. believers in with 9-11 conspiracy theorists, Genesis literalists, truthers and the like. The others are sort of fringe-y. But if you put 12 ordinary citizens in a jury box, of good intelligence and sound common sense, and the victim points dead at the defendant and says “there is no doubt in my mind, THAT is the man who raped me…” you can almost hear all twelve minds slamming shut. They’ve heard all they need to hear. So far as they’re concerned, this case is over.

This despite the fact that study after study after study reinforces the fact that eyewitness testimony sucks.

And innocent people go to jail — or worse — because of it.

So you can imagine how keen the legal world was to get the Supreme Court’s decision in Perry v. New Hampshire, which came down yesterday. Perry, identified by an eyewitness as someone she’d seen breaking into cars, argued that Due Process required a judicial hearing on the reliability of that testimony before it could be admitted at trial.

Which was the exact wrong thing to argue.

Due Process requires that the government makes sure that it does not do things that make its identification procedures unreliable. It does not require that a judge do the jury’s job. Particularly when that job — weighing the reliability of a given bit of testimony — is incredibly fact-specific.

And especially given all the evidence of all the various factors that go into making eyewitness testimony unreliable — racial differences, time lapse, focus of attention, lighting, familiarity, stress, presence of a weapon, etc. — what judge in his right mind is going to want to be the one deciding whether this particular eyewitness’s memory is good enough?

So it’s hardly any surprise that the Supreme Court balked at Perry’s Due Process argument. By a vote of 8-1 (former prosecutor Sotomayor as the lone dissenter, none better to know the power of the EW ID) the Supremes held that, unless law enforcement is alleged to have gotten the I.D. under unnecessarily suggestive circumstances, there’s no Due Process issue and certainly no reason for a pre-trial hearing on reliability.

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No, what Perry could have argued for is either (1) a rebuttable presumption, as a rule of evidence, that eyewitness testimony is inadmissible; or (2) allowing defendants to provide jurors with all the reasons why eyewitness testimony is not as reliable as they might think.

The first option is, frankly, stupid. But it’s the logical conclusion from the givens presented in his argument and those of the various amici, that eyewitness testimony is about as per se unreliable as it gets. If we can be forgiven a straw man here, it’s akin to the proscription against most hearsay. Hearsay is not permitted unless it’s deemed exceptionally reliable. So why not have the same rule for eyewitness testimony? Because hearsay is not prohibited because of its unreliability. It is prohibited because it cannot be tested, cross-examined, challenged. It’s a confrontation issue, not a reliability issue. Hearsay that is allowed comes in because it is so reliable that confrontation just isn’t an issue (in theory). Evidence is not precluded because it is unreliable. If something is unreliable, it is up to the other side to make sure the jury sees how unreliable it is.

As Justice Scalia implied during oral argument, unreliable eyewitness testimony is no different from any other unreliable evidence. But in practice, it is treated very differently. Sure, a judge might let the defense attorney cross-examine the witness on the lighting conditions, whether she had a gun in her face, and whatnot. And maybe the judge will let him make common-sense arguments to the jury in his closing about why that identification was wrong. But few if any will allow the defense to put on expert evidence demonstrating why this particular testimony might be wrong.

Eyewitness testimony is almost unique in this regard. Any other evidence the government might put on, the defense gets to put on its own evidence of why the government’s was wrong. Their expert says the stolen trade secret was worth a billion dollars? Your expert can testify why it was worth $12.98. Their witness says the bullet was fired from the apartment across the street? Your expert can show that it came from down the block and was deflected on striking the window. But if their witness testifies that she recognizes your client as the guy what done it, can you put on an expert to show that people of her race distinguish faces by looking at features that aren’t all that variable in people of the defendant’s race? Or that almost nobody with a gun shoved in their face in a dark alley for five seconds is going to form a clear memory of what the shover’s face looked like? Or that now, three years later, after countless retellings and waking nightmares and reassessments, the witness’s memory is nowhere near as accurate as it seems?

In most states, the answer is No. It’s either prohibited, or it’s up to the discretion of a trial judge, who’s likely to say no. (And the usual reason for prohibiting such testimony, irony of ironies, is that it’s such common knowledge that expert testimony is unnecessary.)

What Perry should have argued for, then, is to do exactly what Scalia suggested: treat eyewitness testimony like any other kind of testimony. Give defendants a chance to pry open those minds that snapped shut during the in-court I.D. Give defendants a chance to confront the evidence against them in a meaningful manner. When everyone in the world except for jurors, apparently, knows that eyewitness memory is godawful, give defendants the chance to educate them, at least to the extent that it applies to that particular case. While you’re at it, let jurors be instructed on factors affecting reliability if you like (as suggested by the majority opinion), but if you believe jury instructions make a difference one way or the other…

It’s not a Due Process issue. It’s a Confrontation issue. Allowing the defense to confront eyewitnesses and challenge their presumed accuracy is the issue. It’s not about shifting the fact-finding role to a pre-trial hearing, to assess things beyond the government’s process. Perry’s argument strikes us as not only stupid, but a waste of a perfectly good opportunity to have made some progress in this area. As it is, we may now be stuck in the status quo a few years longer than we might have been.

Thanks a lot.

Injustice is what we’re getting. The newspapers are starting to pick up on it lately, but it’s been building for a long time. People getting prosecuted for federal felonies, when all they did was unwittingly violate some obscure regulation, without any intent to break any law.

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the rules by which a society lives. If life were a board game, law would be the sheet of instructions. In circumstance A, you can do either B or C, but you’re not allowed to do D unless E. But that’s not exactly accurate. There are plenty of rules by which we live that do not count as law. Politeness, morality, custom, tradition — there are tons of rules that apply to us that, though they may perhaps even be more important or powerful than law, are not law. Law is different. It’s that subset of societal rules that are imposed by an authority, fixed, only changeable by official act of that authority, applicable to everyone unless their own exceptions say otherwise, and perhaps most critically they are enforceable by that authority. The nature of the authority itself doesn’t really matter — it could be religious or political, dictatorial or democratic. Neither does the source of the law matter — it could be imposed by a supernatural being and thus unchallengable by mere humans, it could be crafted by delegated experts or judges or tyrants, it could be legislated in and out of existence by popular vote. What matters is that there is some authority, that the authority defines particular rules for everyone to follow, and that the rules are enforced by that authority.

There are different kinds of law. Some law is statutory, created by legislators or rulers with legislative authority. When most people think of laws, they’re thinking of statutes. Some law is regulatory, created not by a legislative authority but by a governmental agency or ministry. Regulations are rules for dealing with that agency or ministry, or for otherwise statutory subjects that have been delegated to the agency’s rulemakers. Regulations typically affect people such as those receiving government funds or whose actions have significant effect on the general population. A third type of law, common law, is created by judicial decisions that try to clarify what the enforceable rules actually mean, including customs that are so strong and important as to merit enforcement. Finally, constitutions are the laws of how governments are to exist and operate, and what their general authority is and is not. (Some countries’ constitutions are more akin to legislation, but that just means they’re using the word wrong.) These kinds of law exist at almost every level of society, from local community rules to international law.

The law may have more or less effect on a given society, depending on how much it adheres to the rule of law. A society that gives greater precedence to familial, tribal or commercial ties than it gives to the law is going to behave differently than one where the law is expected to apply to everyone regardless. Feuding behavior is better understood in a context of the rule of law (or more particularly, its absence) than a sociologist’s context of simultaneous social distance and closeness. Ditto for criminal consequences, civil lawsuits and commercial transactions. A “hostile takeover” has a much different meaning on Wall Street than it does in a society where one’s contracts and property rights are only enforceable to the extent you’re bigger and stronger and better-armed and better-connected than your competitors. Apart from the rule of law, different societies vary in their acknowledgement of particular human rights, property rights, and even how enforceable law is seen to be. And some laws are more of an idealized vision of how a society sees itself, than an accurate codification of what is really acceptable. So law itself is going to have different weights and values in different societies.

Governmental intrusion is another concept that’s important to understand. It’s not the same thing as law. It is when an authority interferes with a person or another authority. When the police frisk you or eavesdrop on you or arrest you or incarcerate you, that is not the creation of more law but a governmental intrusion that is either permitted by existing law or not. When the federal government takes over a state function, supersedes a local prosecution, or dictates a county’s educational policy on pain of a funding cut, that is not the creation of more law but a governmental intrusion on another government that is either permitted by existing law or not. Governmental intrusions are a critical variable in studies of human conflicts and interaction, and they must be understood for what they are. They are not law, but acts subject to the law.

Governmental enforcement is another important concept. Enforcement is a big part of what makes law Law, but it is not law. When a plaintiff wins a case, the government now empowers him to collect his compensation from the defendant, using the state’s courts and sheriffs to do so if necessary. That does not create more law, but more authority for enforcement. When two parties enter into a binding contract, as opposed to a less-binding agreement, there is not more law but instead authority for the government to enforce the agreement. When a defendant is convicted of a crime, that does not create more law but rather authority to enforce the law by imposing punishment.

Punishment is also different from law. Punishment is a severe form of governmental intrusion depriving a citizen or subject of life, liberty or property, or inflicting pain or distress, as a consequence for violating certain laws. Not just any laws, but those laws deemed so necessary for public safety and security and decency that violation requires just such extreme measures — either to dissuade that person or others from doing the same, to remove the threat from society, to otherwise make the criminal less likely to reoffend, or to satisfy a visceral desire for vengeance. Imposing more punishment does not create more law, but is instead a function of the application of existing law to individual circumstances.

It is important to understand why government intrusion, enforcement and punishment vary from circumstance to circumstance. But to do so, one must understand what they are. Lumping them together is not useful, and further lumping them in with the concept of law is epistemologically counterproductive.

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Separating these and other important concepts would, however, be very useful to the practitioner of Pure Sociology. Social distance, for example, plays an enormous role in the creation of law, its applicability or exception, and its outcomes. But it plays out in different ways.

In more traditional, localized and homogenous societies, law and the rules of conflict resolution are more likely to come from custom, moral authority, or religious belief. They aren’t likely to be codified in any particular way. Kinship and personal relations are much more important in how the rules are applied, or whether they apply at all.

But as societies grow larger, more structured, more heterogenous and complex — with more interactions, kinds of conflict, and opportunities for conflict — there is a greater need for fixed general laws, explicit formal rules, and a rule of law making them applicable to everyone equally. As society becomes more complex, it creates a greater demand for law. As human interactions become more likely to involve people unconnected by kinship or loyalty, the demand grows for clear systems of conflict resolution and enforcement.

Interactions between individuals within a tribal society are going to have different variables and outcomes than those of a large post-industrial society. To accurately predict what people and institutions will do, these differences must be understood. The same goes for international relations — the citizens of a post-industrial nation are going to perceive a conflict differently than members of a more traditional society, and they are going to perceive different potential solutions, dramatically affecting what the outcome will be. To understand an internal genocide, borderless terrorism or a full-on war, one must understand how the particular peoples perceive the rules by which they must live.

It can be hard to do, of course, because people generally don’t understand their own rules very clearly. They may have a sense of what’s right and wrong, what’s done and not done, but they may not be able to explain the philosophical principles on which those conclusions are founded. Real conflict resolution requires serious drilling down to the core principles underlying the competing positions, to either find common principles on which to base a solution, or to make plain the hidden causes of the conflict and thus enable the crafting of a workable resolution. Sociologists and philosophers can do real good here.

The same goes for the crafting of criminal laws, sentencing policies and rehabilitative programs — sociologists with a real understanding of not only what is going on but why, and what solutions are most likely to get the desired result, can be a source of great justice in the world.

But only if they are careful in their study. They cannot measure the myriad normative values, formal rules, and patterns of interpersonal and governmental interaction, unless they can first name what they are measuring. If you’re lumping everything into the same bucket, you’re not going to do anyone any favors.

We have more and more college graduates these days, but is it doing any good?

On our first day of college, at UVA back in the late summer of ’87, we didn’t feel the usual nervous excitement one gets from moving away from home, meeting new roommates, trudging through the various long lines to register for classes and get ID cards etc., and hearing the old “look to your left, look to your right” speech. We didn’t feel that way partly because we’d already been there and done that and more at military school, but mostly because we were feeling another emotion entirely that completely overpowered all the rest. It’s an emotion we can’t quite name, though there’s probably a great name for it in German — a great hopeful sensation of “at last, it’s about time!”

We were stoked to finally start getting an education. After years and years of schooling, we were ready to get learning. College for us wasn’t a prerequisite for getting a job or anything like that — it was a chance to gain as much knowledge about as many different subjects as we could cram into four (ultimately five) years. A chance, moreover, to learn how to use that knowledge and apply it and, maybe, start contributing to it. A truly liberal education that would prepare us for pretty much any future by preparing us to think critically and analytically and have the basic underlying data to do it well.

Back in 1987, most of our friends thought we were out of our mind. Most of them were there to get ready for a career, whether it be in engineering, business, architecture, teaching, or the arts. Or a career yet to be determined once they found the right major. Going to college was mainly about getting a good job after graduation.

Now in 2011, that seems even more the case than ever. College is seen as a prerequisite for a good job, period. Many kids are told this from kindergarten through high school, but it’s such an implicit societal assumption these days, that even if it wasn’t drilled into them they’ve picked it up by osmosis.

The problem is, college these days is not something you can rely on to prepare you for a job, unless you’re pursuing a technical degree in the soft or applied sciences.

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Here’s how education is supposed to work:

1. Elementary school — Here, you learn the fundamentals. The basic facts and skills needed just to get by in modern society. Reading, writing, arithmetic. Essential points of science. Socialization and roughly what our society is.
2. High school — Here, you learn to be a functioning grownup. The details get filled in, the skills get honed. A graduate from high school is prepared to manage a household budget, plan one’s future, understand social issues and vote intelligently. Graduates of an intellectual bent are prepared to enter college and hit the ground running without any remedial catching-up courses. Everyone is prepared to enter the job market at the bottom and work their way up. Those who wish to work in jobs not requiring so much of the intellectual education have learned basic skills or have even started being certified. Very few graduates are what one would consider “unskilled,” and so very few are earning minimum wage after graduation.
3. College — There are two kinds of higher education. There is the specialized schooling required for entry into intellect-intensive careers such as engineering, medicine and the law. There is also the classical liberal education that provides a broad set of data, the analytical ability to think about and cross-reference it all, and the rational skills to make sense and new ideas.
4. Post-graduate programs — These are for those few jobs where higher education is still not enough, or for those desiring to remain in academia.

That’s how it’s supposed to work. Here’s how it does work:

1. Elementary school — Whether or not the fundamentals get covered depends almost entirely on variables outside of school, such as family environment and neighborhood attitudes. Science is weak or nonexistent.
2. High school — Elementary school with electives.
3. College — High school that costs a lot of money. Those who do not have the intellectual wherewithal to succeed in college go anyway, because they need to. Those who do have the intellectual wherewithal are either in soft/applied science programs that most now quit because they’re too hard, or they’re in liberal arts programs that largely fail to provide the benefits of a liberal arts education. And those who do succeed in graduating with the ability to think clearly about a broad scope of knowledge find that the job market doesn’t pay enough for it to justify all those student loans.
4. Professional school — Specialized schooling required for entry into intellect-intensive careers. Medical school is probably necessary, as are some engineering and science programs. Law school spends the first year teaching students the analytical thinking skills they should have picked up in a college philosophy class, the fact-checking skills they should have picked up in an undergraduate history seminar, and the rules of human interaction that should have been garnered in a few well-chosen classes in economics, psychology and sociology.
5. Other graduate school — An apprenticeship for a job in academia, or a specialized program for a corporate management position.

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It didn’t use(d) to be this way. What happened?

Good intentions. Lots of good intentions.

We forbade hiring based on IQ, even when above-average intelligence is a prerequisite for a given job. This turned a bachelor’s degree in any old thing into a proxy for an intelligence test. It meant you were smart enough to have gotten into college and to have completed the 120 hours or so of coursework without washing out.

We made other forms of work seem comparatively undesirable. An office job was “cushy.” Labor was somehow “menial.” Service jobs were “dead-end.”

We somehow got the idea that office workers are simply better paid. Not true. As we’ve often said, a good plumber makes as much as a good lawyer, starts working 7 years sooner with no debt, works fewer hours, has a better quality of life, etc. (Other lawyers will tell you the same thing.) Most college graduates in those tall office buildings are in cubicles à la “Office Space” and “Dilbert.” The big bucks are made by a small number who got lucky, maxed out a natural talent, or took some big risks.

At the same time, because a college degree was so damn important, not only were too many people going to college, but there was incredible pressure to start inflating grades. “D” and “F” grades practically disappeared. The “C” average became a “B” or even “B+” average for just a passing grasp of the subject area. (Well, not in math and science, because the answers are either right or wrong. Can’t magically lift a 70% “C” to an 85% “B” just because you were enthusiastic or creative in getting the answers wrong. And of course that leads to a lot of math/science majors leaving the program for softer majors with higher grades.)

Meanwhile, the K-12 education in math and especially science turned to shit. Ever since Sputnik, it’s been priority number one sorta kinda well not really. That’s okay, if we need scientists or mathematicians we can always import them from India.

K-12 also lost all but the most fundamental “teach-to-the-test” stuff under “No Child Left Behind,” but that’s just a symptom of a greater Federal involvement in local schooling, dictating the fad of the day under the threat of withholding massive federal funding. Schools focus, not on teaching, as much as on compliance with an astonishing array of regulations and diktats from well-meaning bureaucrats and policy makers.

The market value of a college education went down, because with all the failings of K-12 schools, college became what high school used to be.

The market value of a college education also went down, because all of a sudden everyone was getting one.

The cost of that education rose insanely fast, meanwhile, because the government subsidized student loans and thus the price the market would bear. That’s fine when the economy is inflating like a balloon, but as with any other Ponzi scheme it all falls apart when the bubble bursts. The return on investment goes from shaky to nil.

And now you get a lot of millennials upset that they held up their end of the deal and got those college degrees, but society is stiffing them on its end of the deal to provide them with the good jobs.

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A well-educated citizenry is an absolute must in any modern society. Citizens who can manage their own families, run their own localities, elect the right people to manage governmental affairs, understand what their government is doing and hold it properly accountable, run their businesses and build prosperity. These things do not come to those who were not taught the basics, who were coddled and rewarded for mediocrity, and who are left unprepared to succeed once they’ve acquired their diploma.

We may be the most interconnected people ever, thanks to the internet, with the greatest access to knowledge ever. But we are not turning out enough adults with the wherewithal to take proper advantage of it.

We have tons of college graduates, but too few educated people.

If you’re looking to start an argument with a loved one, or a fight, moral relativism is an excellent way to start. Specifically the position that, because different people do have different ideas of what is and is not ethical, your loved one’s morals are not true. Nor are they any more valid than the morals of someone who thinks very differently. And in fact, all ethical positions are equally valid and deserving of respect. This position strikes many as not only absurd but insulting, which may lead them to strike you.

After all, just because someone thinks that they’re doing the right thing, that doesn’t make it so, right? A fanatic who kills random bystanders in order to make a point may think it’s the height of propriety, and others may agree with him, but they’re wrong. Right? There are some things that are just wrong, and a relativist position that such attitudes are as valid as any other is equally wrong. Right?

Well, we’re not going to get into all that here. What got us onto this was a report in Scientific American that you can scientifically determine whether or not someone is a relativist. That could be useful, if for no other reason than to avoid situations where someone gets punched in the nose.

The magazine reports that “a simple mental puzzle” can determine whether someone is a relativist, or “an absolutist who embraces only one ‘true’ answer to these weighty conundrums.” This is the result of a study by Geoffrey Goodwin an John Darley. You can take a sample question at the link, if you like, but it really just boils down to whether or not, in a situation with multiple possible outcomes, you think through those outcomes when arriving at your answer.

That’s really not terribly useful, unfortunately. It’s only a test of clear, orderly thinking. The kind of brains used by chess players, mechanics troubleshooting a system, computer programmers, and even the occasional lawyer. It’s sadly true that too few people do think so clearly, but plenty do. And plenty of them are moral absolutists. The ability to consider different possibilities and perspectives certainly goes well with relativism, but it is neither a prerequisite nor a cause nor a strong correlate.

Criminal law, of course, is the embodiment of absolutism. What is crime, but the codification of a society’s morality — a list of those acts that are so ethically wrong that they must be punished. It doesn’t matter if an individual or ethnic group within the society doesn’t share the codified morals — they may think it’s perfectly fine if not laudable to do a certain thing, but the law says otherwise and they’re going to be subject to it. And appearances to the contrary, many very smart people with clear logical minds are behind our criminal jurisprudence. They may have the ability to be relativists, but it’d be difficult to call them by that name.

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Still, it’s fascinating that someone actually bothered to take a philosophical idea, and do science to it.

Originally, of course, philosophy was how we learned about the world — we thought about it and compared notes to see which ideas held up the best and made the most sense. But the scientific method has replaced philosophy. You have an idea about how the world works? Test it and see if you’re right. In recent decades, the science of the mind has gotten astonishingly good. Brain science is rapidly answering a heck of a lot of questions that used to be the sole province of philosophers. So philosophers have retreated to areas not easily testable, stuff that isn’t exactly science, but where ideas can still be floated and debated and explored. Stuff like morality, free will, etc. One thing that has been fairly constant, however, is that philosophers do not go into the lab. They do not construct double-blind experiments, perform regression analysis, or any of that. The only experiments they perform are thought experiments.

Until lately, however. Goodwin and Darley may not have constructed the best experiment, and they may not have drawn the most accurate conclusions from it, but the important thing is that they did it. They got out of their armchairs, and into the lab. And they’re not alone. A new wave of young philosophers is starting to apply modern cognitive science in attempts to figure out why people think what they think, and why they feel what they feel. This is progress, and it is excellent. The “sounds good to me” theories of the faculty lounge may start to be replaced with an understanding of how things actually are. Such a change would be as remarkable and important as was the realization that stuff is made of atoms.

To call this revolutionary would be no exaggeration. Doing science to philosophy may well result in knowledge that is uncomfortable, that may shake our understanding of human behavior, that may alter bedrock principles of society. People are people, and they’ll always do what they do, but this could be an inflection point in the evolution of what their society does, of what is and is not “civilized.”

Obviously, criminal law may be affected. An act that society wants to punish at the moment may, for some particular individual down the road, be something that we no longer want to punish. Just as penalties for children and the mentally retarded have evolved somewhat by a greater understanding of their ability to know or control what they’re doing, so we may see more defenses arise for others who, for one reason or another, are not culpable. We may see more actions as having been justified. We may see more as accidental or otherwise beyond one’s control. The philosophical purposes of punishment may have to be revisited, to balance greater understanding of why things happen against the interests of public safety. Defendants may see harsher treatment, too — being penalized or punished more for the mere risk that they pose, rather than for acts already committed. What kinds of punishments work, what doesn’t, what is cruel and unusual — all that could easily require re-evaluation.

No matter how rapid the scientific advances, though, the legal and policy advances won’t come fast. Even in these days of instantaneous worldwide communication, it still takes time for philosophies to evolve. First, the science has to do its work, and then it’ll likely take a generation or two for any new ideas to shake out and take root. Or longer.

And there will likely be a number of alternative and conflicting approaches to any new understanding of how the mind works. Some may even be more valid than others.

How does that strike you?

One of our favorite topics here at the Criminal Lawyer has been the interaction of brain science and criminal law. So it’s with a pleased tip of the hat to Mark Bennett that we have the video linked above, an excellent summary of modern neuroscience as it applies to deep policies of our jurisprudence — Culpability, free will, the purposes of punishment, and how (or whether) to punish. The lecture was given about a year and a half ago by David Eagleman, a neuroscientist with a gift for explaining the stuff to non-scientists like us.

Most popularized science is weighed down with histories of how we got here, rather than discussions of where “here” is and where we might be going next. It’s a necessity, but unlike most popularizers Eagleman manages to cover that ground in just the first half of the lecture, rather than the more usual first 80%. So if you want to cut to the chase, you can skip to around the 15-minute mark. We enjoyed watching it all the way through, however. Once he gets going, he neatly and clearly presents ideas that many should find challenging — not because they undermine criminal jurisprudence, but because they challenge much that it merely presumes.

One particularly challenging idea of his is that, as we understand more and more how the brain works, and especially the smaller and smaller role that free will plays in our actions, the less focused on culpability we should be. Rather than focusing on whether or not an individual was responsible for a criminal act, the law should instead care about his future risk to society. If he’s going to be dangerous, then put him in jail to protect us from him, instead of as a retroactive punishment for a crime that may never happen again. The actuarial data are getting strong enough to identify reasonably-accurate predictors of recidivism, so why not focus on removing the likely recidivists and rehabilitating the rest?

Of course, as we mentioned the other day, there’s an inherent injustice when you punish someone for acts they have not yet committed, just because there’s a statistical chance that they might do so at some point in the future. That kind of penalty must be reserved for those who have actually demonstrated themselves to be incorrigible, those who reoffend as soon as they get the chance. Punishment must always be backwards-looking, based on what really happened, and not on what may come to pass.

We have quibbles with some other points he makes, as we always do when people from other disciplines discuss the policy underpinnings of criminal jurisprudence. But on the whole, this is a worthwhile watch, and we’d like to hear what you think of it.

“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.

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There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.

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But what did the justices actually say today? That might give a better clue to what they might be thinking. Our take is a Roberts-Scalia-Kennedy-Thomas-Ginsburg-Alito majority against a Sixth Amendment remedy. Here are some selected quotes from the Lafler argument (the Frye argument is left as an exercise to the reader):

CJ Roberts — “How are you ever going to know that the defendant would have accepted the plea agreement? Because by not accepting it he has a chance of going scot-free. He’s going to have a fair trial, that’s the assumption, and he may be acquitted … presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not?”

Scalia — “Have you provided ineffective assistance of counsel if you are a lousy bargainer?” | “This man deserved to get the sentence he got, didn’t he? He had a full and fair trial. A jury of 12 people, finding him guilty beyond a reasonable doubt, determined that he deserved that sentence. How could it be unfair to give him the sentence that he deserved?” | “We reinstate the offer, okay. He accepts the offer and it goes to the judge and the judge says, ‘no, this is outrageous. No, I’m not going to approve of this plea bargain.’ What happens then?” | “There is no prejudice unless [the defendant] would have accepted the deal. How are you going to know that he would have? Of course he is going to say that he would have, but how is a trial judge going to make a credibility determination on that?”

Kennedy — “Let’s say the remedy is it goes back before the judge … I should ignore everything that I learned during the trial?”

Breyer — “As I’ve looked at it, I don’t see the ineffective assistance of counsel within the AEDPA meaning…. So what am I supposed to do about that? … In my own opinion at this moment, perhaps no one else’s, there is no ineffective assistance of counsel such that the Sixth Circuit could set that aside.” | “So if you are the defense counsel, the best thing for you to do is not communicate any plea offer you get, and then if your client is found guilty, then you can go back and say, ‘oh by the way, I didn’t tell you about this,’ and he gets a whole new trial?”

Ginsburg — “Explain why defective advice causing a plea, that qualifies [for relief], but defective advice causing a defendant to turn down a plea does not?” | “That [the defendant would have gotten a better deal] is certainly controverted, because of two interventions: The prosecutor can say ‘no deal; I’m withdrawing it,’ even after an initial acceptance; and the judge can say, ‘I think 51 to 68 is entirely improper for what this man did.”

Alito — “What if it had come to the prosecutor’s attention during this intervening time that your client had committed four or five other shootings? Would you still be entitled to specific performance?” | “Do you think it’s feasible to draw a distinction between this case, where there was arguably inaccurate legal advice, and the case in which the defense attorney simply makes a terribly mistaken calculation about the chances of a favorable verdict at trial?”

Sotomayor — “Counsel, isn’t there a right to make a critical decision on whether to accept or reject a plea bargain, once offered?” | “How can a trial be fair when the attorney is going into trial thinking [the stupid advice he’d given when counseling against taking a plea]?”

Kagan — “Here the person is sitting in prison for three times as long as he would have been sitting in prison had he had effective assistance of counsel at the plea bargaining stage, so why doesn’t that just meet the requirements of Strickland, both deficiency and prejudice … and … a different outcome.” | “You don’t contest that plea bargaining is a critical phase, entitling somebody to a lawyer and to an effective lawyer, do you? … Because we have said that many times, isn’t that right?” | “To deprive somebody of a lawyer at that stage of the process, where 98 percent of the action occurs, is inconsistent with the Sixth Amendment — that’s what we’ve said, isn’t that right?” | “Have you ever seen a critical phase before in our Sixth Amendment jurisprudence where the right to a lawyer depends upon what happens during that critical phase — where if one outcome results there is no Sixth Amendment right, but if another outcome results there is?”

Thomas — “…”

So yeah, we’re calling it 6-3. What’s your call?

Over at Edge, in a short video, we get an intriguing look at criminal justice from the perspective of neurological science.

Put all this together, as you can see here, and we discover little areas that are brighter than others. And this is all now easily done, as everyone knows, in brain imaging labs. The specificity of actually combining the centers (where information gets processed) with the actual wiring to those centers has been a very recent development, such that it can be done in humans in vivo, which is to say, in your normal college sophomore. We can actually locate their brain networks, their paths: whether they have a certain kind of connectivity, whether they don’t, and whether there may be an abnormality in them, which leads to some kind of behavioral clinical syndrome.

In terms of the Neuroscience and Justice Program, all this leads to the fact that that’s the defendant. And how is neuroscience supposed to pull this stuff together and speak to whether someone is less culpable because of a brain state?

Then you say, well, okay, fine. But then you go a little deeper and you realize, well, this brain is a very complicated thing. It works on many layers from molecules up to the cerebral cortex; it works on different time scales; it’s processing with high frequency information, low frequency information. All of this is, in fact, then changing on a background of aging and development: The brain is constantly changing.

How do you tie this together to capture what someone’s brain state might be at a particular time when a criminal act was performed? And I should have said it more clearly — most of this project was carried out asking, “Is there going to be neuroscience evidence that’s going to make various criminal defendants less culpable for their crime?”

Well, probably not. Even if this were to become reality — which it isn’t, yet — the whole focus of mens rea culpability is what the defendant’s mental state was at the time he committed the act. Even if police officers were equipped with infallible handheld brain scanners, so they could get a mental reading at the moment of arrest (and oh, the fascinating Fourth Amendment issues there!), the moment of the crime is past. The reading is not evidence of what the brain was doing five days ago, or even five minutes ago.

And at any rate, it’s not usable science yet. So why bother thinking about it now?

To his credit, the speaker, neuroscientist Michael Gazzaniga, admits as much.

Now, the practicing lawyer asks “is this thing useful, can we use it tomorrow? Can we use it the next day? Can’t? Out. Next problem.” So, after four years of this I realize, look, the fact of the matter is that from a scientific point of view, the use of sophisticated neuroscientific information in the courtroom is problematic at the present.

But then he says “it will be used in powerful ways in our lifetime.” What powerful ways? Mainly the ability to show that someone simply couldn’t have thought a certain way, because his brain doesn’t work that way. This defendant shouldn’t be punished like a normal adult, because his brain isn’t wired like a normal adult, and he could not have had the same mens rea as one would otherwise expect under the circumstances. Research is showing that children and teenagers are wired differently, as well, which could affect juvenile justice.

That’s useful for the defense. It could be a valuable tool in raising defenses showing that mens rea was lacking, because it couldn’t have existed. Not useful for prosecutors, more than showing that it was just as theoretically possible as for any normal human, which is sort of presumed for everyone anyway. So yay for science.

Another way it’s expected to be useful, however, is preventing future crimes. Stopping the next mass-murderer before he actually starts shooting kids on campus and whatnot. Of course, we immediately get creeped out the second anyone starts talking like that. Restraining people — punishing them — for stuff the might conceivably do in the future, but haven’t done yet, goes against all notions of justice in our culture.

He tries to mollify this by focusing on recidivists, and by not mentioning any particular method of dealing with them. He rolls out some impressive data — 25% of the people in prison are “measured psychopaths,” and they make up 600,000 of the 800,000 psychopaths in the country as presently measured. The actuarial data is good enough to be able to predict, with 70% accuracy, whether a given inmate will reoffend (and get caught) after getting out.

70% accuracy is nothing to sneeze at. But even 100% accuracy isn’t worth much. Even if you could guarantee with certainty that Inmate Jones will reoffend, you still can’t punish him until he actually does it. You can deny him parole, but he’ll still get out when his present term is up. You can make parole, or post-release supervision, more diligent and restrictive, but that will also expire. And there’s nothing more you can do to Jones until he actually reoffends.

For this tool to work as a useful preventer of future acts, the government would have to take away people’s liberties before they’ve done anything wrong. And our culture isn’t willing for that to happen. It would take a drastic change in the perception of individual rights against government action, in this country, before such protective measures would be countenanced. And that’s not likely to happen in this lifetime or many more. Our society is simply willing to accept the small risk of future harm that comes with our individual liberties.

The lecture ends with a nifty digression on an issue which has long plagued philosophers (who never seem to actually conduct experiments to test their hypotheses, silly geese), and which neuroscience (yay, scientific method) is now beginning to answer: whether free will, as commonly understood, even exists. The science is pointing to “no.” The mind is more of an automaton than one might think. That said, however, Gazzaniga says that responsibility is a cultural construct, and those who violate cultural rules must still be held accountable so that society can function. There is much in this, fodder perhaps for several thousand pages of treatises and monographs, not to mention countless hours of late-night dorm debates. But if the answer really is “no, there is no such thing as free will,” then where does that leave mens rea? How can any act be intentional, if everything is essentially predestined? Might as well revert to something like “everything that happens is according to God’s plan,” and leave all punishment to the afterlife. Or reinstate simple removal from society as the main purpose of punishment — lock ‘em up and throw away the key, banish them, or save the expense and just hang ‘em. Their mental state is irrelevant; they’re a threat to the rest of us, and that’s all that matters.

Thank goodness the idea of free will is so entrenched, then. No matter what science may learn, we seriously doubt that people will easily disbelieve their own perceived independence of thought and deed. So that particular hell is probably best left to science fiction.

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.

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Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.

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With respect to the bar exam, as we’ve said before, nobody in their right mind believes that the bar exam is a reliable indicator of who is or isn’t going to make a good lawyer. It doesn’t test any of the stuff lawyers actually need to know — how to advise this client, how to plan for contingencies and deal with them before they arise, how to get this piece of evidence admitted, how to draft that particular contract, how to write that particular will so the family doesn’t kill each other ten years from now.

All the bar exam tests is the ability to cram, memorize, and regurgitate. It doesn’t even require much proficiency, at that. A passing grade — a D — is all that’s needed. As bars go, this one ain’t that high.

The bar exam is more of a hazing ritual than a measure of quality. More along the lines of “we had to go through it, so you’re gonna have to go through it, too.” It’s not really there to ensure a minimum standard of ability, and it doesn’t even test for ability to practice. It’s just a rite of passage, one last effort to weed out those few who are so obviously incapable that they can’t even pass this.

As with law school, the answer is not to eliminate the barrier, but to make it meaningful.

How can the bar exam be meaningful? It should be practice-specific. Those who would defend the lives and liberty of criminal defendants need to prove they know what they’re doing. Those who would handle estates and end-of-life issues need to demonstrate the judgment and knowledge necessary to protect the interests of those who cannot speak for themselves, without doing further harm. Those who would work on transactional deals need to show they can protect their client’s assets and livelihoods. It would be more akin to a board certification in medicine.

And unlike the bar exam, you wouldn’t just take it once. The law changes, necessary skills change, people change. A lawyer who was just fine in criminal law ten years ago, but who hasn’t kept up with changes in the law and the courts, could be shockingly bad today. Re-certification should be required periodically.  Once every five years or so would seem best to keep pace with the rest of the world. And for those who actually practice and know what they’re doing, this shouldn’t be anything to worry about.

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But Mr. Winston argues not to increase the barriers to entry, but to remove them. Why?

Eliminating the need for a JD would let non-lawyers compete with lawyers. Non-lawyers who don’t have to pay back all those student loans, who don’t incur all the same costs of entering the profession, could compete better on price. This would drive down the cost of legal representation, and so benefit “the poor.” (He also mentions those “who might be unrepresented in criminal matters like hearings because they could not afford a lawyer,” but that’s not really a concern what with Gideon and Wainwright and all.) Costs would also be driven down by a Wal-Mart economy of scale and corporate-driven efficiency (an odd position for a Brookings scholar to take, we’d have thought).

Lower prices would create more employment for new JDs, because they’d be paid less (increasing supply of positions) and the demand for their services would go up as prices fell.

For reasons that are unclear, he says his solution would also enhance consumer choice by enabling more and better “Consumer Reports”-like ratings of lawyer quality. Clients Consumers would be able to weed out the truly competent from the dishonest and incompetent. Consumers would come to know what credentials and evaluations are more useful, and which are not, for evaluating lawyers.

That’s pretty much it.

The problem is not that clients are being priced out of representation, however. People who need a lawyer in this country are rarely unable to find one. It may hurt to pay for it, but when a lawyer is really needed, the obstacles are rarely insurmountable. And there are lawyers serving pretty much every price point, including free. The purported problem is a false one, and so does not call out for a solution. Furthermore, efficiency pricing à la Wal-Mart is only useful for a handful of services which involve high volumes of extremely uniform matters. Legal services involving any degree of individual variation require greater investments of time and thought, which are deadly to an efficiency practice. Either the client requiring individual attention doesn’t get it (see Malpractice, this index), or the volume must be reduced to deal with it. In most legal practices, this simply doesn’t work.

Nor is it true that that the (admitted) dearth of meaningful criteria for comparison of lawyers is caused by the barriers to entering the profession. Letting more people provide legal services does not create more opportunities for meaningful evaluation. On the contrary, it just creates more opportunity for dishonesty, as ethics rules for lawyer advertising are supplanted by the cost-benefit considerations of mere commercial speech. It would only be easier to tout one’s supposed credentials, without making it any easier to check their validity. An organized effort to evaluate individual lawyers is doomed to failure, given the vast number of lawyers to be assessed (Avvo, mentioned in the op-ed, already tries to do this, but is limited to assessment of public records, scatter-shot client reviews, and self-serving lawyer participation).

He gives undue weight to client consumer reviews, saying that “by sharing their experiences, consumers would understand more fully which credentials and evaluations are the most accurate and useful signals of competence and value.” Nothing could be further from the truth. Clients are usually very bad at determining which traits are useful in evaluating a potential lawyer. The important traits are sound judgment, thorough relevant knowledge, meaningful experience (or a proven ability to learn fast in younger models), and demonstrable skills and a track record. Clients tend not to be able to assess these things themselves, and so (when they are wise) get referrals from trusted lawyers and from others they know who have already gone through the experience and found out what made their lawyer good or bad. When they are unwise, clients focus on less-important, sometimes bizarre, criteria (though these are probably clients a good lawyer doesn’t want to deal with in the first place).

Moreover, different clients value different things. Most consumers of legal services, believe it or not, value other things more highly than price. A criminal defendant’s freedom and reputation, for example, may powerfully overshadow concerns with the cost of representation. A business owner looking to do a deal may be much more concerned with a job well done than with finding the lowest-cost provider. Other clients may not value results as highly, but may still place more value on their relationship with counsel, or on consistency, or on availability, or on any number of other considerations all vastly more important than price. The clients who are most concerned with price tend to be those seeking rudimentary services (which we agree often don’t really require a JD to perform), and they are a small minority.

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Those who seek to remove the barriers to entering the profession would do a disservice to the very clients they seek to help. Clients need more competent lawyers, not more lawyers to choose from. Making it easier for any random ass to offer legal services only increases the odds that some poor soul will pay for them, and suffer badly for it. It can only increase the odds of an unsophisticated person, in real need of help, simply getting shafted instead.

People go to lawyers when they need help, when they need someone to handle their affairs for them in an important way. The client puts his trust, his property, his life, in another person’s hands. Those hands need to be safe. Letting market forces eventually shake out all the unsafe hands is not how you do it.

The fact that this even needs to be said is shocking.