In the comments to my "Persuading the 'Personal Responsibility' Crowd" thread a debate broke out about whether or not the law schools are committing fraud. In my view the answer is a resounding Yes, in the context of actuality and not legality. From a legal perspective it will depend on individual states' fraud statutes and case law, the specific facts at issue, etc.
In one of the comments to that thread, poster "Just Sayin" responded in part:
And no they aren't screwing people over by publishing false employment numbers. That's to be expected. More so we were all encouraged to go to law school by family members and the thought of being rich.To which I responded, Anonymously (being too lazy to log in):
In your view, should it be perfectly permissible for used car dealers to "rollback" the mileage on cars and then tell purchasers that the vehicles have much less mileage than they actually do? If a buyer purchases a vehicle with 60,000 actual miles on it but pays the price for a vehicle with 25,000 miles after relying on the odometer that showed 25,000 miles, is that the buyer's fault?To which "Just Sayin" responded:
That analogy doesn't hold up. Sorry. When law schools say hey 95% of people with law degrees from our school gets a job. So when one buys X, there's a high possibility that you can do Y. They aren't selling you a future job, their product is a law school education. Whatever you pay, or whatever the market is saying, you will still get a law school education. Essentially, they can lie all they want about a future job, because that's not what they are selling. Its shady nonetheless, but fraud no.This brings us to the crux of the issue. What exactly are the law schools selling? Are the law schools at the very least guilty of fraudulent inducement?
Onto your analogy where a used car salesman sells you a car that they purposefully rolled back the meter. Pretty much they are selling you a crappy car, not the potential of X happening do to you buying the car. This is more equivalent to a law school promising you a great education but instead giving you crap..... actually this is true too.
Lastly, sooner or later, we have to stop lying to ourselves as to why we went to law school. We all were either talked into it by family, who said "wow you can argue well, you'll be a great lawyer some day" or by watching an endless number of law dramas. Really, no matter what the job numbers were, we weren't going to not go. We had to prove how smart we were, or to make their degrees worth something.
I submit a resounding Yes in answer to the second question. The law schools know exactly what they are doing and why they are doing it when they publish their employment stats. They publish this information because they know that students will look at it and use it as part of their decision making process. They also know that the information is facially false and, on-the-surface, fraudulently misleading in spite of whatever qualifications they add. They also know that their statistics will not stick out like a sore thumb because all of the other competing law schools are publishing similar stats with similar intent. The law schools also know that the vast majority of the general populace knows nothing about the reality of the legal job market and that most of their prospective students are naive, feel that they have few other options for earning a respectable income, and have been indoctrinated with the notion that higher education, especially the attainment of a professional degree, guarantees earning a high income. In other words, the law schools know that their prospective customers are already very much predisposed to believing and falling for their fraudulent employment statistics. (This is not written with the intention of being a strict a legal analysis; just a discussion about actuality.)
Addressing the first question, what exactly are the law schools selling? I think most reasonable people would agree that a vehicle's mileage is a property of the vehicle and that rolling back the odometer is an act of fraud. So what exactly are students purchasing when they buy a legal education? They are not merely purchasing a generic fungible legal education, but rather a legal education specifically from School X. They are buying School X's legal education. Likewise, an automobile purchaser is not merely buying a generic and fungible automobile, but a specific brand of automobile. ("I bought a Lexus, not a Kia.")
So, what property is it, exactly, that fundamentally differentiates the legal education provided by School X from that of School Y in the context of a purchasing decision? What makes one law school a Lexus and the other a Kia? Could it be the library? Get real. Could it be the "quality of the education"? That might play a role to an extent, but the vast majority of students have little information about that. Could it be the location and environs? That's certainly a large factor. However, ultimately, the dispositive factor for students who attend for vocational reasons, is, "Will my chances of obtaining a good legal job be higher at School X than at School Y?"
Thus, the product a given law school is selling is not merely a generic and fungible legal education. Instead, a legal education's fundamental distinguishing characteristic is how the education and its school's graduates are valued by hiring decision makers in the legal and business community for upper middle class jobs that provide a career path. This is not merely a minor characteristic such as a tree on the lawn in front of the law school building, a famous faculty member, or a book in the library. Rather, how a school's legal education and graduates are valued by hiring partners is the essential, defining characteristic that distinguishes the legal education at School X from that at School Y. A law school's published employment statistics are intended to provide information about how hiring decision makers in the legal and business community regard the quality of the education and its graduates! They are not just for show. They are not in brochures by accident. They are published specifically with the intention of conveying that sort of information. It is almost exactly analogous to a vehicle's odometer reading. Therefore, the value given to a law school's education and its graduates by hiring decision makers is an essential, crucially integral, overwhelming part of the product a law school is selling. It is not merely the paint job or radio on a motor vehicle, nor is it a vehicle's ill-defined reputation for quality or prestige of ownership. Rather, the proper analogy is that it's the entire powertrain, cooling system, and chassis! Just as the fundamental purpose for purchasing an automobile is transportation from point A to point B, the fundamental purpose of purchasing a legal education for the vast majority of law school graduates is to obtain secure lifelong upper middle class employment in the legal profession.
That is the real product. That is what the law schools are selling, and that is why, in my opinion, they are engaging in outright fraud and not merely fraudulent inducement. (This is my personal opinion and not a specific legal analysis. Don't attempt to violate the First Amendment and try to sue me over my opinion, bro.)
Do students rely on these employment statistics? Would they choose not to attend if they had complete employment information? You betcha! The published statistics, in spite of any qualifications they might have, are believable because all of the other law schools have similar statistics and they are implicitly sanctioned by the American Bar Association. If the real statistics were published and prominently displayed and publicized, law school attendance would drop precipitously for the exact same reason that people aren't flooding into graduate schools for PhDs in Art History, Women's Studies, Philosophy, and the like. Who in their right mind would risk going into $80,000-$200,000 worth of student loan debt that cannot be discharged in bankruptcy for less than a Roulette Wheel's chance of obtaining a return on investment?
I don't know if the plaintiffs in the law school lawsuits can win from a legal perspective. I do know that we should win the moral argument. In other words, it is pretty indubitable that duped law school graduates own the moral high ground. Our movement needs to seize, secure, and maintain this moral high ground if we are ever to accomplish anything.