Thursday, October 8, 2015

Touro! Touro! Touro! ...Bombed

If you'll recall, almost two years ago, I reported that Touro was bringing a class action on behalf of all ABA schools to judicially declare a legitimately sham law school a "diploma mill" because Touro got duped and let one student through the cracks and apparently wound up in litigation.

As I wrote at the time:
1.  Touro obviously has standing to bring a declaratory judgment action against another for making representations addressed to a third party that the third party made subsequently to Touro.
I had forgotten about this important issue entirely until a friendly commenter (you know who you are - thanks!) tipped me off last week that the court had issued an order dismissing the case.
Oh, cruel wheels of justice, with your gnashing spokes like axes against the soul!
You can view all of the moving papers and orders through this site here.  The order states that "Touro fails to sufficiently allege its standing, i.e. that it has a "legally protectible interest, that is in direct issue or jeopardy, in order to invoke the remedy of declaratory judgment.""

This, of course, is a grave injustice.  As Americans, we all have the right to file class actions against parties with whom we have no direct dealings to declare them whatever mean words we want.  For example, if I wanted to bring a class action on behalf of all accredited, legitimate law school supporters that Paul Campos is an "opium-smoking three-toed sloth," that's my right as an American.

Although Touro lost, one has to give credit to Touro and its general counsel, who fought the good fight and gave Touro's first-tier students a first-tier lesson in "fuck it" civil litigation.  For example:
  • Touro apparently brought a class action pro se, which normally wouldn't be viewed as advisable or proper (or allowed at all, at least in federal court, see Rule 23(g)), but let's call it innovation.
  •  In Touro's response to Novus' motion to dismiss, Touro pulls out one of the most essential tools in the civil litigator's kit: indignant bluster, accompanied with its cousin, barrage of conclusory adjectives (from page one alone of the memorandum: "defendant's nefarious operation...specious motion...well-founded opposing affidavits...smoke-and-mirrors legal argument....).
  • Touro also delivers a nice serving of language errors, almost certainly to give the brief that nearly flushing shitlaw feel.  For example, "slight-of-hand" is used (1), and the brief states that "Novus prays on the market and in turn its students pray on Touro and other law schools." (6)  The second mistake is particularly ingenious, as it puns on the idea of Touro being both infallible and a victim at the same time.
  • The brief spends two and a half pages discussing personal jurisdiction, which does not seem like it was even (or seriously) at issue.  Classic misdirection.
  • In addition to a barrage of case law, there's citations to a treatise and two law review articles.  Lord knows lawyers need to cite to those more often.  Lead by example, superheros.  Lead by example.
  • Finally, there's the clunky metaphor, another favorite of small law all-stars. "Novus has shot its sham degrees out from California, and those degrees have landed in New York...." (1).  "The legal education community finds itself faced with a consequential choice between two roads, which are long and different [but are they open?  -ed].  At least one of the roads is shrouded in legal uncertainty...And one road must be chosen....We are at a crossroads. The road should not end at the pleading stage...." (10).
Here's to hoping the appeal goes well...if there's one thing we all must do, it's stamp out law schools that trade in overpriced or worthless degrees that may only yield a $500k premium. 
The sanctity of the ABA-approved million dollar degree must be preserved.


  1. Such excellent litigation from Touro. I'm glad to see that future lawyers are learning from institutions that really know how to handle cases.

  2. If you are from Touro, apparently you are either a predicate or you are pray.

  3. From paragraph 129 of Touro’s amended complaint: “If Novus graduates could erroneously be accepted to Plaintiffs’ LLM program, on account of misleading or false representations perpetuated by the Defendant, other law schools could be similarly hoodwinked.”

    As I understand it, Touro could not establish a justiciable controversy in part because Novus never made any representations to Touro.

    However, there are persons who did make false representations directly to Touro and other lower-tier schools --namely, their own students. In personal statements in law school applications, many kids with subpar academic credentials assert that they will make great lawyers. In reliance, the schools admit these kids into their JD programs. And then these kids graduate and embarrass their law schools with their dismal bar passage rates and employment numbers.

    A class action suit by law schools against their unsuccessful alumni may be warranted, with relief in the form of a declaratory judgment that every accredited law school is a success and justice mill.

  4. Dear Dean Raful,

    You are a good, decent, fair man. You see what is going on in the legal profession. It is a fight for crumbs caused by a grotesque oversaturation, government layoffs and eliminated jobs costing thousands of attorney jobs. Were supposed to be an honorable profession, the bulwark of democracy, promoting, protecting and defending that wonder document given to us during a hot summer in Philadelphia. Some say it was a miracle. I agree with your fight here. Many very lowly law schools and for profit law schools dishonor that "Miracle" and yet they are ABA accredited diploma mills. Touro is not one of them. What you need to do is get on the ABA accrediting and legal education committee and use your expertise, energy and experience to save legal education and ultimately, the profession. It does not involve stupid curricula changes such as "practice ready attorneys." You learn on the job and or become a Public Defender or prosecutor. Please Dean Raful, do this....

  5. Plain and simple. A lawyer used to be a respected member of the community, sought out for advice and good counsel. Today, the value of our profession and advanced degrees have been diluted because of the ABA and the diploma mills. Everyone one of us is "just another lawyer," even if you went to Harvard or Yale. Nothing special anymore, just like a Cadillac. You can rent a Cadillac or lease one on the cheap because they are not unique. A Hyundai with extra chrome. At one time, owning a Cadillac was something special, just like being an attorney.