Monday, January 31, 2011

Another One Bites the Dust

Earlier today, a federal judge in Pensacola, Florida ruled that the 2010 Patient Protection and Affordable Care Act is unconstitutional. From here on out, we can fill in the rest of the blanks without doing any research whatsoever. Yes, the judge was appointed by a Republican President -- the judge is on senior status, so it must be Reagan -- and no, it is not a coincidence that the suit ended up in Pensacola, Florida -- lots of conservative judges up there -- and yes, the judge ruled that the law exceeds Congress' commerce power. That about covers it.

The response from the Obama administration is not surprising. They don't like the opinion. But far more interesting is the notion that this ruling can actually affect the law going forward.  In the words of an administration official, for example, "You could have governors come out tomorrow and say my state will no longer enforce this law because this judge said the whole things is unconstitutional." But this was true before this judge ruled down in Pensacola, and it is not much different from a governor coming out next week and saying that they will support the law because two judges upheld it months before. This one ruling doesn't change anything. Curiously, the judge did refuse to enjoin the law while the parties appeal the decision, yet suggested that his declaratory judgment is "the functional equivalent of an injunction." Whatever that means.

Also quite interesting, if expected, is the reaction from Republican leaders. They praised the ruling.  Not a word about judicial overreaching, or about activist federal judges causing havoc with the work of our political branches. Not a word. I wonder what Senator Sessions thinks of this one. I can only imagine.

I have four questions.

Whether law school is a losing game is not the right question

Not a day goes by that a friend or acquaintance does not ask me about the Times piece a few weeks ago that posited whether law school is "a losing game."  This is because law graduates incur great debt to acquire their law degrees only to enter into an over-burdened market that will not provide adequate jobs for all.  At the center of this mess are the law schools, which massage their numbers in order to win (or not lose) the rankings game.  According to my colleague Bill Henderson, “Enron-type accounting standards have become the norm.” Things are so bad, he says, that “[e]very time I look at this data, I feel dirty.”

The examples can be quite disheartening.  Most troubling are the numbers that involve students and jobs.  What does it mean to be working right after graduation, for example, or nine months after?  Waiting tables counts, or stocking shelves at the local grocery store.  Worse yet are anecdotes of law schools hiring their own graduates for short periods of time in order to count them as "working," whether at graduation or nine months later.

Henderson calls this state of affairs an open secret, and he is certainly right about that.  My first reaction upon seeing the the Times piece was one of surprise tinged with incredulity.  I could not believe, that is, that people did not know about this.  How could they not?  Or put another way, how could law schools keep their actions secret for as long as they have?

Sunday, January 30, 2011

Understanding What Drives the Modern University (hint: it is not academics)

For those who wonder when the decline of the American empire began in earnest, look no further than this Sunday's sports edition of the New York Times.  In its front page, you will find a story about a school in Texas spending $60 million dollars to built what the Times labels a "palace," also commonly known as a football stadium.  In these difficult economic times, this community put the question to a vote, whether to pass a $119 million bond to finance the project as well as a few other projects, and it passed by a resounding 63% of the vote.  

I cannot speak about other states, but in my home state of Indiana, communities went to the voters this past election to ask for money to finance basic school needs, and were largely rebuffed.  It is all about priorities, I say.