At Concurring Opinions, Dave Hoffman takes the “law school fail” discussion down a different path than others, raising the question of what role an individual law professor plays in advising the student.  After reminiscing about learning to dance at an Arthur Murray franchise, Dave muses:

But it got me to wondering about an issue tangentially raised by David Segal’s  embarrassingly  error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive. But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”) (Footnote [yes, footnote] omitted.)

Chances are you will never see a paragraph as jam-packed with insults as that one, and still come off as reasonably civil.  Well played, Dave.  But I digress.

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

While Dave sets up his question with a strawman right up front (note the “very moment” language), it remains that this is less about winning the point than about the deeply personal responsibility and decision of making or breaking some kid’s life.  It’s a huge decision, a life changing decision.  And a student has asked for help making it.

Dave answers his own question:

So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades.  (True, if success means money earned.)  I tell them that I felt confused in my first semester.  (True, and it’s also true that Contracts was my least favorite, and least understood, class.)  I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace.  (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.)  I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.  In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.

Good answer?  Maybe, notwithstanding its Pollyanna-ish, rose-colored approach, material omissions and, most importantly, potential abdication of responsibility.  It’s understandable that Dave doesn’t relish the unpleasant job of telling a student that they aren’t cut out for the law.  I doubt he’s motivated by his conflicted need for a pay check, but more by the awesome responsibility of ruining a student’s dreams.

The strawman built into the inquiry, that the lawprof is put into the position of making a snap judgment, that “very moment” thing, needs to be addressed.  The lawprof has had the opportunity to see the student in action over the course of a semester, to hear his discussion, to assess his ability to reason and articulate reasoning.  It’s not like he’s never seen the student seeking advice before that very moment.  He does, or should, have a pretty good feel for the person asking, and have some the experience as a lawyer and professor to know whether the rosy future speech is appropriate.

Even if he wants to find out more, say speak with other profs, the student doesn’t have a gun to his head to demand an answer that very moment.  So what if you tell the  student that you need some time to think about it before giving a response.  It’s not like the student can make you answer immediately.

But more importantly, there is a duty on the part of a lawprof to give an honest assessment.  Both legal and moral.  By encouraging the student to remain in law school, you induce him to sink in more money, perhaps shoulder more debt, and commit himself to a career in the law.  Like the Arthur Murray dance teacher, you’ve told the student that he’s got a future as a dancer.  If that’s not true, then your inducement is a fraud. You’re a lawprof. You ought to know if the student isn’t going to cut it.

The moral piece, however, is the one that Dave Hoffman should find most persuasive. I’m sure he cares deeply about his students and wants the best for them.  Sometimes, the best is to break their hearts, dash their dreams, burst their bubble.  It’s cruel to encourage someone to pursue a career, and an expensive one at that, when they just don’t have what it takes.  Sure, it’s unpleasant.  But nobody said that responsibility was limited to pleasant things.

And i would take this one step farther.  If a lawprof becomes aware of a student who isn’t cut out to be a lawyer, then the moral duty is to hand him a dime and tell him to call his mother.  Even if he doesn’t ask for advice.  Culling the herd to those who belong is a responsibility of law school, and it’s about time lawprofs lived up to their unpleasant responsibility of brutal honesty.  That’s why they pay you the big bucks.