Monday, May 6, 2013

The Bat Signal Answered: Richard Epstein and Ben Barros Fight Back

First, today, we have Ben Barros, continuing his tour de scam at Faculty Lounge. After last week's unscientific straw poll, today we get this longwinded effort attacking the idea that there's been major structural changes in the legal industry. If he were NOT scamming, comments like these would be an assault of basic reasoning and clearly in derogation of the man's intellectual abilities:

In the document review world, technological change has probably created more work in the last 20 years (by exponentially increasing the number of documents to be reviewed) than it has eliminated (by automating parts of the process). It is also worth noting that while certain aspects of document review can be performed by trained monkeys (and thus can be automated), other parts require the work of human beings exercising judgment. More importantly to the subject of this particular post, I don’t see change in the document review world in the last few years that is different in kind than change that had occurred in the prior 15, making it unlikely that any changes in this area are the cause of the present relatively poor job market.

Assault on basic reasoning: assumes - with no more than anecdote - that an entire sub-industry is constant from 1990s to today; ignores possibility that 1990s doc review is a cause of fundamental structural shifts; ignores other sources of labor (non-lawyers, off-shoring), ignores recent court decisions that have allowed fully-automated programs to replace "human beings exercising judgment."

Form documents have been available on the internet for a while, so I’m skeptical that Legal Zoom et al. have much to do with the current job market.

Assault on basic reasoning: assumes internet form documents haven't been negatively affecting legal market since their inception.

I see very little reflection of systemic change in the alumni study described in my prior post. Most of the people included in the study are doing work in traditional legal settings. 

Assault on basic reasoning: Concludes that there is little systemic change in technology affecting the overall legal market (and hence jobs) because people still work in "traditional legal settings." 

I am old enough to have lived through several economic cycles. In both booms and busts, there is a tendency to talk as if the current situation will be permanent. During the last boom, there was a lot of talk about how technology-created increases in productivity would lead never-ending growth. During the ‘80s, there was a lot of talk about how the US economy was never going to recover, and about how Japan would dominate the world economy in ‘90s and beyond. I think we need to be very careful in both booms and busts not to become overly convinced that our current situation is the result of permanent change.

Assault on basic reasoning: drank Steve Diamond's coffee.

Obviously, we must assume that he is straight-up shilling and quite deftly refuting one reason why people grab the special snowflakes and stop them from enrolling in Widener.

Barros put in a nice effort, but he picked a poor day to show up at the gunfight because marching around the saloon is Richard motherfuckin' Epstein, and he brought a shotgun to review Steven Harper's book, and he apparently doesn't care that if people think about what he's saying, people will think he's gone mad:

[T]he author ignores the more salient fact that the vast majority of big firms have avoided this grisly fate. Mr. Harper never looks into how these savvy firms survive in a tough environment. They do so, in part, by avoiding overstaffing, by cutting bad clients and by paying premium wages to young associates—many of whom, debts paid, happily bail out for less stressful work as in-house counsel for companies or in the government and nonprofit sectors. 

Epstein - this is one of America's foremost legal minds - claims that large law firms are "savvy" by overpaying 25-year olds who leave, debt free, by their own volition to take the respectable job, probably of their choosing.

Why, didn't you see it? The profile in FORBES about Huge & Bloated, LLP, where they praised the market innovation of making indentured serfs work 90 hours weeks to free themselves of debt bondage so they could do WHATEVER THEY WANTED? And that to fund the system they inflate bills to get America's most prestige-crazed businesses to overpay for those Harvard-educated eyes? What cunning business acumen! What skill!

View labor as disposable and interchangeable, overwork everyone, and overcharge customers. Someone got an MBA!

Of course, Epstein's anti-anti-scam swordplay crosses with Barros':

Mr. Harper misses the most significant recent dislocation in the practice of law, which is at the consumer end of the market: the rise of low-cost online law firms like LegalZoom and RocketLawyer that aid clients in drafting standard partnerships, wills, leases and the like. These firms pose a mortal threat to sole practitioners, not to Big Law.

Of course, the death of sole practitioners has nothing to do with the long-term sustainability of larger law firms. Nope!

But my favorite part of either article is this gem of a paragraph by Epstein (again, one of America'sforemost legal minds):

[L]aw schools can't just be "practical training" centers, as Mr. Harper would have them; they must make sure that their students grasp the fundamentals of legal theory and doctrine. Future lawyers must also be capable of connecting law with collateral disciplines ranging from corporate finance to game theory to cognitive psychology.
The best lawyers I know don't want law schools to turn out graduates with less knowledge and more gimmicks; they want better-educated lawyers who can hit the ground running. If 50 years ago students could make good use of three years of a law-school education, they certainly can do so in today's vastly more complicated world.

You tell 'em, Dick! Practical education is a "gimmick!"

Hours of dull legal theory worked 50 years ago, so obviously it can work today, in a much more complicated world, where lawyers want grads who can hit the ground running!

If asbestos built houses 50 years ago, certainly it can work today!

If women stayed home and babysat the offspring 50 years ago, certainly they can all do so today!

If 50 years ago people could get by with an 8th-grade education, certainly they can do so in today's vastly more complicated world!

There is no conceivable way that Richard Epstein is this fucking stupid, so again, the only logical conclusion is that it's a complex shilling attempt to ensure that the best and brightest still enroll in the University of Chicago.

It's clearly of a different level than a certain colleague's thuggery, but we here at the Center applaud his standing up against expensive practical legal education and in favor of easy-profit low-standard theory.

Thankfully, lawyers enter law school with no ability to connect arguments to cognitive psychology or game theory. Otherwise, they would see right through what Epstein and Barros are doing and find themselves a different profession.

But they're dumb, and Epstein and Barros are not, so PROFIT$.

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