Anti-Law School Scam Blogging Drastically Effecting Law School Application Rates

by Savir Punia, UMN Law Student, MJLST Staff

Thumbnail-Savir-Punia.jpgThe reports of Law School’s death are greatly exaggerated. At least I am hoping that is true. As a current law student I find myself frequenting blogs, websites and articles focused on the state of the law profession hoping I don’t become another “casualty” of law school. Since 2008, it has been a badly kept secret that the law profession is struggling and the internet is full of recent JD graduates sharing horror stories of their experiences in law school. Lucille A. Jewel‘s article, You’re Doing It Wrong: How the Anti-Law School Scam Blogging Movement Can Shape the Legal Profession, in Issue 12.1 of the Minnesota Journal of Law, Science & Technology, discusses just this, a community of malcontent JD graduates who have gathered together online to share personal stories and discourage others from going to law school.

While the argument of whether law school still remains a good investment is still debated, there is one result that has occurred due to the “Law School Scam Blogging” movement, applications are drastically down. According to the Law School Admission Council (LSAC), law school applications are headed for a 30-year low. LSAC expects there to be only 54,000 applications for the current enrollment cycle, which is down 20 percent from last year and a whopping 28 percent from 2010. Furthermore, the 54,000 law school application for this year is almost half of what it was in 2004 when there were 100,000 applications. This is in stark contrast to any other graduate or professional training school (except veterinary school). According to Debra W. Stewart, president of the Council of Graduate Schools, first-time enrollment to masters of business degree programs were steady – a 0.8 percent increase among Americans in 2011. Moreover, these graduate programs experienced a thirteen percent increase in foreign graduate enrollment, and this is after a substantial decade of growth in those degree programs. Unfortunately, an American legal education has less appeal to international students because an American legal education is highly dependent on the American legal system. An American legal education is not easily translatable to other country’s legal system.

This large drop off in applications to law school is strongly connected to the perceived lack of job opportunities in the legal market and much of that perception has been fueled by the rise of blogging JDs. Jewel discusses the impact of the “Anti Law-School Scam Blogging Movement” on the legal profession and the tensions it has created within among the legal community. It is not difficult at all for one to discover threads, memes and new articles discussing the bleak job opportunities new grads face coupled with the prospect of paying back large amounts of student debt taken on to complete law school. These bloggers have claimed their former institutions mislead them into thinking there were rosy career prospects at the end of law school, only to be left unemployed or working at jobs making a fraction of what they were promised outside of the legal profession. They have impacted current law students and potential law students by using a style that aims to shame law schools through the use of vitriolic blog posts. The impact this network has created clearly is beginning to show itself as law schools are struggling to find enough applicants to fill their classes. In fact, the class of 2015 at the University of Minnesota Law School was considerably smaller than the class of 2014 (of which I am a part of), due to the smaller applicant pool my school was faced with.

In my opinion, there exists a terrible disconnect in the legal profession. My personal decision to attend law school did weigh the potential of bleak career prospects before I ultimately decided on attending law school. Now as an insider of the law school community, I find the picture painted by these bloggers to be somewhat different than reality. The two biggest platforms that the bloggers have rested their thesis on according to Jewel are “that law schools are producing an oversupply of lawyers and law schools have purposely over-inflated post-graduation employment data in order to draw in more law students, and that, in essence, law schools and professional institutions, such as the American Bar Association (ABA) should be ashamed of themselves.” While post-graduation employment data has not been proven to be misleading nor has it been proven innocent, it is a topic I will choose to avoid for purposes of this blog. My main contention is with the argument of an oversupply of lawyers in the United States. Currently, there exists a severe shortage of legal help for low-income individuals. New York State’s chief judge, Jonathon Lippman, has responded to this by moving ahead with a groundbreaking rule requiring law students to perform 50 hours of pro bono legal services as a condition of admission to the state bar. Other states are seriously considering this requirement as well. Furthermore, according to Gillian K. Hadfield, professor of law and economics at the University of Southern California, there is a mismatch between demand and supply. She went on to say, that there is exploding demand for legal services for “ordinary folk lawyers” and “big corporate ones.”

To me, like Professor Hadfield believes, there is an atmosphere of feast or famine in the legal profession. Law students lucky enough to receive a high paying internship with a corporate law firm find themselves with high paying internships and post-graduation salaries in the six figures, but public interest and low income legal work often results in unpaid internships and extremely low paying full time positions, commonly below $40,000. Additionally, temporary doc review jobs with terrible working conditions and low paying hourly work muddle the market even more. It is not the oversupply of lawyers that has resulted in bleak career opportunities but a failure by the legal community to create business models that adequately address demand. There is demand from large corporations, who are dissatisfied with the high fees and unsatisfying results produced by large firms, for good attorneys according to Hilliard. Also legal access for “ordinary folk” is extremely strained; there simply aren’t enough attorneys in this line of work to satisfy demand. This is something I have experienced personally, as I am constantly helping my parents find an attorney for their small business who can work on their legal issues in a timely fashion, not an easy task. They have yet to find a good attorney who isn’t overwhelmed by the amount of work they have on their plates. This indicates to me that there is a large amount of demand, at least for good attorneys for small businesses, and the legal profession has failed to keep pace.

A disconnect between the supply of attorneys and the demand for their services is apparent. Too many students are forced to compete for relatively few big law jobs that pay enough to make a legal education a sound investment. The demand for attorneys for small businesses and individuals is high but current legal professions have skewed the funneling of new attorneys to fields of law in oversupply. There is much discussion of change at the education level of the legal field, but no one is discussing the change at the professional level. The legal field has to change the way it does business. Big law firms are not in a rush to change because they continue to enjoy profitability, and their partners regularly take home checks in the seven figures. But big law shouldn’t be required to carry the responsibility of leading; they have a successful business model. Solutions must come from individuals within the legal community to match unsatisfied demand for legal services with an adequately compensated supply of attorneys. When the catalyst for change will come is unclear, but maybe the drastic fall in law school applications will serve as the catalyst for change, or it could exasperate the situation further, but one thing is certain, the demand for affordable and quality legal services does exist.

Will the Good Deed of Respondent John Wiley & Sons, Inc. Go Unpunished?

by David Hanna, MJLST Lead Article Editor, UMN J.D./M.S. in Chemistry Joint Degree Candidate

Thumbnail-David-Hanna-II.jpgOn February 7, 2013, John Wiley & Sons, Inc. [“Wiley”] announced that it would make 12,200 Online Books available in eighty developing countries through the Research4Life initiatives of HINARI (the World Health Organization’s Health InterNetwork Access to Research Initiative.), AGORA (Access to Global Online Research in Agriculture) and OARE ( Online Access to Research in the Environment). With Wiley’s contribution, Research4Life can now boast an impressive number of almost 30,000 peer reviewed scientific journals, books and databases made available to developing countries for free or for low cost access. With the Supreme Court of the United States [“SCOTUS”] currently deciding the fate for Wiley in a pending case against petitioner Supap Kirtsaeng d/b/a Bluechristine99 [“Kirtsaeng”], could Wiley’s charitable contributions come at a more convenient time?

On October 29, 2012, SCOTUS heard oral arguments on behalf of petitioner Kirtsaeng and respondent Wiley in a case involving the first-sale doctrine in copyright law which enables owners to sell or transfer copyrighted items to other parties without seeking permission from the original copyright holder. In the case, SCOTUS is deciding on the particular issue of whether the first-sale doctrine applies to copies of copyrighted works made and legally acquired outside the United States and then imported into the United States.

How does the “good guy” fit into the picture? Wiley brought a copyright infringement suit against Kirtsaeng, a graduate foreign student currently in the United States who had been receiving textbooks produced by Wiley Asia from his family and friends outside of the United States and then selling them for a profit on eBay. In responding to Wiley’s suit, Kirtsaeng presented the first-sale doctrine as a defense. Both the District Court and Second Circuit denied Kirtsaeng the “first sale” doctrine and ruled that the defense did not apply to foreign-manufactured books.

The Minnesota Journal of Law Science & Technology’s recent publication, “John Wiley & Sons, Inc. v. Kirtsaeng: The Uncertain Future of the First-Sale Doctrine,” identifies the important implications of SCOTUS’s upcoming decision on the U.S. economy. Author Benjamin Hamborg states, “In an already struggling economy, the last thing that the country needs is precedent giving companies a further incentive to move manufacturing plants overseas.”

Will Wiley’s recent contributions cast a positive light on the company while SCOTUS decides whether to uphold the lower courts’ holding which denied a first-sale doctrine defense to Kirtsaeng? Will SCOTUS consider the implications of the case on this country’s disintegrating economy? Now, Kirtsaeng has to worry not only about his pending copyright infringement case before the superior court of the land but also about his opponent’s charitable good deed. Perhaps, Kirtsaeng might find it in his best interest between now and the time SCOTUS releases its decision to make a charitable donation from some of the profits earned from his book buying and selling business.

Searching for .08: Marijuana Laws and the Problem of Detecting “Drugged Driving”

by Nathanial Weimer, UMN Law Student, MJLST Staff

Thumbnail-Nathanial-Weimer.jpgWe’ve all seen the commercial. Some car comes swerving down the road, veering in and out of the proper lane and generally wreaking havoc on the neighborhood. Upon being pulled over, the driver is visibly intoxicated and the police officer quickly notices. The officer breathalyzes the driver, and if alcohol is found takes the driver back to the station for blood testing. If the driver’s blood alcohol level reaches .08, it creates a presumption that the he or she was driving under the influence of alcohol. The law enforcement process is simple and mostly effective, even if the car wasn’t actually filled with the driver’s drink of the night.

The recent passage of laws in Washington and Colorado legalizing the recreational use of marijuana will obviously increase the number of “drugged drivers” on the roads. At first glance, this might not seem like an issue–after all, police have a fairly simple method for measuring whether, and to what extent, someone is intoxicated by alcohol. Seemingly, they could employ a similar system for marijuana (driving under the influence of marijuana is, of course, still illegal). It turns out, however, that detecting the influence of marijuana presents a different set of challenges that law enforcement will have to grapple with.

The legal question for a drug DUI is whether or not one’s driving was impaired by the influence of the drug. One prominent marijuana detection method is the blood test, which measures the amount of tetrahydrocannabinol (THC), the psychoactive component in marijuana, in the blood. If some amount is found, that indicates recent use. There are problems with this test, though. First of all, THC blood levels don’t indicate the time of use because THC remains in the blood for a long period of time, according to DUI Blog. Some say it remains for days, while others claim the period can be weeks or months. Regardless, the point is that THC may be present while the effects of the drug are not; since the legal standard is impairment, a THC finding of a certain level does not necessarily meet that burden.

Effectiveness aside, blood tests also fall short from the perspective of administrative ease and individual rights. As might be expected, conducting and interpreting blood tests is time consuming and costly. As also might be expected, it’s a frustration to the driver to have to submit to a blood test taken at a police station, especially if it comes back negative. While traffic safety is clearly an important concern, well worth a few false alarms, it’s clear that a “drugged driving” detection system suffers from the lack of a breathalyzer-like device that can quickly indicate marijuana use and support blood testing of a driver.

Users, too, have a need for a short-term test that can be easily administered and understood. Drinkers of alcohol should have a general idea of their intoxication, at least up to the point where they know they should no longer drive. Most drinks have a known amount of alcohol in them, the alcohol is roughly the same strength, and there is only one way to ingest them. Marijuana on the other hand varies in strength depending on type, has multiple methods of ingestion which also vary the strength of the drug’s effect, and it’s more difficult to keep track of the amount consumed. Legal users who have ingested hours earlier and feel no effects may wonder whether their THC level is acceptable.

Technological development has provided a few solutions to the problem of short term detection. One “new” test (it is currently used in Australia and other places) is the saliva test. According to a blog on The Verge, this test is done by swabbing the driver’s mouth, can be completed within 3-5 minutes, and can measure the presence of marijuana for a few hours after ingestion. This would solve the invasiveness issue and the short-term issue. However, the amount consumed cannot be measured, and there are also accuracy based concerns–the test tends toward reporting false negatives. Still, the saliva test seems to be a promising tool for law enforcement in the future.

Another potential solution is being developed by Intelligent Fingerprinting, which is working on a fingerprint drug screening method. The device would use “high sensitivity detection reagents to identify metabolite substances in the sweat contained in fingerprints”, and would compute results in a matter of minutes. While this test would similarly fail to pinpoint the time of ingestion, or the level of impairment, it could be a very useful roadside tool. This device is still in development, however, and could still be a few years away.

With the new marijuana laws in Colorado and Washington, the pressure is on law enforcement to effectively detect drivers under the drug’s influence. While the ultimate step may be to conclusively link detection to impairment, the current step that must be taken is the development of a non-intrusive, short term device that can accurately measure a driver’s chemical levels. Possibly the saliva test will satisfy this need; possibly inventors have yet to create a viable device. In the meantime, it’s important to be careful while driving–especially if you see a car swerving like it’s in a commercial, and it’s entirely filled with smoke.

Pharmacists Refusing to Dispense OTC Birth Control

by Katelyn DeRuyter, UMN Law Student, MJLST Staff

Thumbnail-Katelyn-DeRuyter.jpgCan your access to a legal method of birth control be blocked by your pharmacist? It seems likely. Although emergency contraception (EC) is legal in America and a recent poll found that 77% of Americans object to pharmacies refusing to fill birth control prescriptions, a woman that goes to pick up EC may face a denial of the drug by her pharmacist. According to the Appellate Court of Illinois Fourth District, in recent case Morr-Fitz, Inc. v. Quinn, the state’s “Conscience Act” (protecting health care personnel from liability when they refuse to act due to their conscience) protects pharmacists who refuse to dispense EC. Illinois is not alone in providing pharmacists the ability to deny EC. Six states have laws that explicitly permit pharmacists to refuse to administer EC. Five more states (including IL) have “conscience clause” laws that are worded broadly enough that pharmacists may be included.

Under the Patient Protection and Affordable Care Act, as of August 1, 2012 medical insurance plans must completely cover the costs for birth control–including emergency contraception–STD screenings and many other preventive health measures for women. Depending on which articles you read, this expansion in required insurance coverage either marks a hallmark step in women’s rights or an egregious affront to one of this country’s ideological pillars–the freedom of religion. Regardless of your stance on the new legislation, the fact remains that increased financial access to such services is meaningless if physical access is blocked. This is especially true in regard to emergency contraception which must be taken as soon as possible after intercourse in order to be effective. Thus when a pharmacist refuses to provide access to EC, they are putting their objections to EC above a woman’s right to exercise control over her body.

In Pharmacists and the “Morning-After Pill”: Creating Room for Conscience Behind the Counter, published in Volume 7 issue 1 of the Minnesota Journal of Law, Science & Technology, Tony J. Kriesel faces this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer EC. Kriesel starts with the proposition that EC can be viewed as an abortive drug. It is this possibility of EC acting as an abortive that motivates pharmacists’ denials. Whether or not EC is considered an abortive drug depends on at what point in reproduction one considers pregnancy to have begun. If pregnancy begins when the egg is fertilized, then EC can act as an abortive if taken during ovulation. If taken during ovulation, EC prevents the egg from implanting in the lining of the uterus, thus causing the fertilized egg to be aborted. However if pregnancy begins when a fertilized egg successfully implants in the lining of the uterus, then EC is not abortive but acts like all other forms of birth control and simply keeps a potentially viable pregnancy from beginning.

After acknowledging there is controversy in the medical community over whether fertilization or implantation begins pregnancy, Kriesel asserts that EC is in fact an abortive and that pharmacists can constitutionally refuse to administer the drug. Kriesel’s legal analysis of this issue focuses on the protections provided to the pharmacist by the free exercise clause of the First Amendment and the fact that a woman’s right to EC (regardless of its classification as an abortive) does not entail a right to have access to EC wherever is most convenient.

The U.S. Supreme Court has not addressed this question of whether a pharmacy or individual pharmacist can constitutionally refuse to administer emergency contraception (EC). What are your thoughts on the issue? Can (and should) states pass laws that allow pharmacists to deny access to a legal form of birth control? Does the right to freedom of religious expression trump a woman’s right to exercise control over her body?

Are DNA databases the future of our criminal justice system?

by Jennifer Nomura, UMN Law Student, MJLST Staff

Thumbnail-Jennifer-Nomura.jpgDNA is a key piece of evidence in criminal trials. But despite what we see on Law and Order and CSI, obtaining a DNA sample from potential suspects isn’t always easy. In an episode of a popular crime-solving TV show, detectives are shown following a number of potential suspects. The detectives pick up used tissues and discarded cigarettes from a long list of suspects in order to obtain DNA samples from each of them. Is that the criminal justice system of the future? A system where a thrown away coffee cup could be used to obtain a DNA sample from an individual, without them even knowing?

In the murder investigation of 10-year-old Jessica Ridgeway, DNA evidence is expected to play a key role in the trial. DNA of the suspect, 17-year-old Austin Sigg, was found on Ridgeway’s backpack, and Ridgeway’s DNA was found in Sigg’s home.

The prosecution in the Ridgeway case is expected to use the DNA recovered from the backpack and Sigg’s home to link him to the murder. The defense is expected to argue that the evidence recovered is unreliable. A mainstream news story, “DNA Will Play Pivotal Role in Ridgeway Case” discusses how DNA evidence can be unreliable by using the example that an innocent sneeze on the backpack could lead someone to be a murder suspect. That is an extreme example, but maybe it raises a valid point.

David H. Kaye, in The Science of DNA Identification: From the Laboratory to the Courtroom (and Beyond), raised concern over the obtainment and future use of DNA in the criminal justice system. Kaye discussed that while DNA can lead to a guilty suspect being put in jail, we should be cautious about how detectives obtain DNA from suspects and what they do with the DNA afterwards. Kaye raises questions such as: how did the police obtain a DNA sample from the suspect, was DNA obtained from other suspects during the investigation (ones who were ultimately decided to be innocent), and will the DNA sample from those other suspects be put into a criminal database to potentially be used in future investigations? These are questions that we should keep in mind as our criminal justice systems evolves.