The Volokh Conspiracy

Last week, the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning the collection of union dues for public school employees in Michigan. In Bailey v. Callaghan, a divided panel upheld Michigan’s Public Act 53 which provides: ““A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” In other words, under this law, public school employee unions (including teachers’ unions) cannot rely upon payroll deductions to collect union dues and fees, but must shoulder the burden of collecting member dues themselves.

Unions challenged PA 53 on First Amendment and Equal Protection grounds. Judge Kethledge, joined by Judge Gibbons, made quick work of the union claims. Writing for the court, Judge Kethledge explained,

The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions” for union activities, id.; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.

Judge Kethledge rejected the union efforts to distinguish Ysura and summarily dispatched the Equal Protection claim under rational basis scrutiny.

Judge Stranch dissented, arguing Ysura did not control. Here is how she summarized her dissent:

The majority spills little ink in its dismissal of the school unions’ free-speech challenge. In doing so, it mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination. Most concerning to me, however, is the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a “check on union power.” The foundational requirement of viewpoint neutrality means little if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state. The unanswered constitutional question in this case is whether the government may burden expression it disagrees with by selectively restricting access to public resources that facilitate that expression. The answer is no. The majority wrongly concludes otherwise.

This morning the U.S. Court of Appeals for the Sixth Circuit decided Romeike v. Holder.  Judge Sutton’s opinion for the court begins:

Uwe and Hannelore Romeike have five children, ages twelve, eleven, nine, seven and two, at least at the time this dispute began. Rather than send their children to the local public schools, they would prefer to teach them at home, largely for religious reasons. The powers that be refused to let them do so and prosecuted them for truancy when they disobeyed orders to return the children to school. Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution. As a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum.

Judge Rogers also adds this brief concurrence:

At one point in the petitioners’ brief, they assert that “the sole question before this Court is whether Germany is violating binding norms of international law through its treatment of homeschoolers.” Petitioners’ Br. 37. Our role, however, is not that of an international court adjudicating Germany’s obligations to other countries in respect of its own citizens. Instead we sit as a court of the United States, enforcing statutes that implement some of the international obligations of the United States to other countries in respect of asylum applicants. As explained by the majority opinion, those obligations are fully met in this case.

In a 6-1 decision, the Supreme Court of Louisiana has ruled that a statewide educational voucher plan is unconstitutional. The decision is here.

New York Times coverage of the mid-year ABA meeting, and the report of its Task Force on the Future of Legal Education, here.

Real gun-free zones (enforced by metal detectors backed up by armed security guards) are fine for certain buildings. Pretend gun-free zones (bans on gun carrying by licensed people, but no procedures to keep out criminal gun carriers, and exacerbated by the absence of armed security) are magnets for mass killers. There is a reason why mass killers frequently attack schools, movie theaters, or shopping malls which are pretend gun-free zones.

My article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, 42 Connecticut Law Review 515 (2009), examines the policy arguments. The article details some (but far from all) of the instances in which a lawfully-armed person at the scene has thwarted attempted mass murders. The reason that everyone knows about Sandy Hook Elementary, and few people know about Pearl High School is that the latter had a Vice-Principal with a gun.

NRA Executive Vice President Wayne LaPierre’s call for armed guards in schools is a good idea. Especially in light of the copycat effect which results from heavy media coverage of notorious crimes, the policy ought to be implemented right away.

Opponents of LaPierre’s proposal say, wrongly, that armed security at Columbine did no good. At Columbine High School, the attack coincided with the “school resource officer” (a sheriff’s deputy) being off-campus.  The officer returned during the start of the attacks, and fired some long-distance shots at the killers, who were on the school porch. Those shots drove the killers into the school building, and saved the lives of several students who had been wounded. Atrociously, the officer failed to pursue the killers into the building. Dozens of additional officers arrived within minutes, but none of them entered the building either, even though an open 911 line indicated that killings were taking place in the library, while police stood outside, near the library door, just a few feet away. At least 11 of the 13 Columbine deaths could have been prevented if the police had acted promptly. Fortunately, since Columbine, police tactics have changed drastically, to emphasize that whoever is at the scene should immediately and aggressively counter-attack an active shooter. Unlike gangsters or ordinary street thugs, mass killers tend to be weaklings and cowards who crumble quickly at armed resistance.

The limitation of LaPierre’s proposal is that a single guard cannot cover a large building simultaneously, and on a large campus, such as Virginia Tech, campus police may be spread too thin to provide prompt protection.

So LaPierre’s idea ought to be supplemented by the Utah model: if a teacher has (after a fingerprint-based background check, and a safety training class) been issued a permit to carry a concealed handgun throughout the state, there should not be a special exception which prevents the teacher from carrying at her place of employment.

People raise all sorts of speculative objections to this policy. But the Utah experience refutes the speculation. The policy has been in effect for years in Utah, and there have never been any problems caused by armed teachers. Not a single one.

At Utah public colleges and universities, the same law has applied for years, so that school employees, and students who are least 21 years old, can carry lawfully. That has been the rule at Colorado State University since 2003, at almost all other Colorado public institutions of higher education since 2010, at the final hold-out (the University of Colorado) since early 2012, when CU lost 7-0 in the Colorado Supreme Court. Opponents have raised all sorts of hysterical scenarios (e.g., 18-year-olds bringing Kalashnikov rifles to a kegger; students pulling a gun during a heated debate in a literature class), but of course none of these scenarios have come to pass.

The various gun control proposals of President Obama, Mayor Bloomberg, Senator Feinstein, and Rep. McCarthy might or might not be a good ideas in themselves, but even under a best-case scenario, they are not going to instantly and drastically reduce the death toll from mass shootings. Pervasive armed resistance–the abolition of pretend gun-free zones–would have that effect.

To recognize and then eliminate the deadly peril of pretend gun-free zones does not preclude a person from also supporting new gun controls, or improvements in mental health care, or less glamorization of criminal violence by  Hollywood, or whatever else the person thinks could be helpful in in the long run. In the short run, stopping the next Sandy Hook means ending the deadly policy which gave the killer 20 minutes (until people with guns, the police, finally arrived) to fire 150 shots and repeatedly change magazines, murdering at leisure.

In response to my post arguing that we should grant voting rights to politically knowledgeable children, Paul Horwitz of Prawfsblawg makes the following suggestion:

What spurred this post is Ilya Somin’s argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it’s hard not to see how this proposal wouldn’t give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I’m just going to go ahead and consider this Ilya’s very subtle case for overruling San Antonio School District v. Rodriguez [the 1973 decision that ruled that there is no constitutional right to equal education spending].

Paul is, of course, entitled to interpret my argument however he wants. But I have no desire to overrule Rodriguez. Setting aside the legal merits of the case, extensive evidence compiled by economists Eric Hanushek and Alfred Lindseth shows that increasing education spending in public schools does little or nothing to increase educational achievement. On the other hand, I would be happy if my child-voting proposal were paired with increased school choice, which does have a demonstrated record of increasing educational achievement among poor minority children.

That said, I think the child-voting proposal could potentially be implemented even in the absence of increasing school choice. Most studies of racial attitudes suggest that racism is correlated with age (the young are much less likely to be racist than their elders) and inversely correlated with knowledge and education (the knowledgeable and educated are less likely to be racist). Therefore, even if knowledgeable children are disproportionately likely to be white and/or wealthy, the resulting electorate is not likely to be more hostile to minorities than the one we have now, and may well be less so. Much evidence also suggests that there is little correlation between political attitudes and narrow self-interest (after controlling for other variables that affect political opinion). So it’s unlikely that knowledgeable children (or knowledgeable adults) would seek to promote policies that benefit the rich or some narrow interest group at the expense of the general public or the poor. Indeed, at this point in history, the young, including the well-educated young, are disproportionately liberal Democrats.

Finally, it’s worth noting that the unequal historical impact of literacy and knowledge tests was in considerable part the result of biased application. Unbiased test administration would have a much less skewed effect. And, obviously, racial or ethnic bias in test administration would today (unlike in the Jim Crow era) be grounds for lawsuits under the Voting Rights Act and the Fourteenth and Fifteenth Amendments.

That said, as I noted in my original post, I do take seriously the danger that incumbent political leaders would try to skew the test to favor their political supporters and disfavor opponents. I don’t at this point have anything approaching a complete solution to this problem. But I’m not convinced it’s completely intractable either. One possible approach would be to leave the design of the test to a politically balanced, nonpartisan commission. Some election scholars believe that this approach has helped solve the comparable problem of gerrymandering of political districts in favor of the incumbent party in places like Nebraska. But I admit that for my proposal to actually work in practice, this issue would have to studied much more carefully.

UPDATE: I should note that I’m aware that the Voting Rights Act of 1965 suspended the use of tests for voting in much of the country because they had been used to exclude African-Americans. It’s likely that the Act would have to be modified to permit knowledge tests for minors in order for my proposal to be allowed in states covered by that section of the Act. I think there are obvious and important differences between using knowledge tests to exclude adults, and using them to include children who otherwise would be categorically barred from voting in any case. In any event, allowing states to use knowledge tests for children is still compatible with also giving both individuals and the federal government to sue states that attempt to use the test for purposes of racial or ethnic discrimination, whether by designing it in a biased way, or through unequal enforcement.

From 25 Spanish Plays for Emergent Readers (K-1, Scholastic), an item from a play about planets:

Neptuno: Yo soy Neptuno. Nunca estoy solo. ¡Mi pequeño amigo Pluton esta a mi lado todo el tiempo!

I’m not much on Spanish, but I’m told this means,

Neptune: I am Neptune. I am never alone. My little friend Pluto is by side always!

Except that the minimum distance between Neptune and Pluto is apparently 17 AU (i.e., 17 times the distance from the Earth to the Sun), which is more than half the distance between Neptune and the Sun. Wolfram Alpha reports that, right now, Pluto and Neptune are 28.47 AU apart; that’s almost as far as the current distance between Neptune and the Earth (29.49 AU). Pluto and Neptune don’t travel together at all. (The statement in the play would have been true if Pluton had been taking about his pequeño amigo Caronte.)

I realize that kids’ plays aren’t always supposed to be completely accurate, and that’s fine as to parts that are obviously fictionalized (e.g., Neptune talking). But if the statements sound like they might be accurate, why not make sure that they are accurate — especially in a play that teachers are likely to see as a way to teach children both Spanish and some very basic things about astronomy?

USA Today reports that a boy in an Oklahoma City kindergarten was required to turn his t-shirt inside-out because it violated state policy concerning appropriate school attire.

Cooper Barton, 5, comes from a family of Michigan fans. He went to school wearing a maize and blue shirt with “The Big House,” the nickname for Michigan’s 114,000-seat stadium, written on the front. The school principal made Cooper turn the shirt inside out due to the state policy.

The rule is among many restricting clothing and dress in the city schools. It came into effect in 2005 after suggestions from a gang task force. On the list of banned items, non-Oklahoma college dress falls directly in between gang symbol haircuts and “satanic cult dress, witchcraft and related symbols.”

More here.

Remember how George W. Bush crafted an education “compromise” with Sen. Edward Kennedy and other leading Democrats? The federal government would significantly increase its spending on education, and in return the states would be held to strict, enforceable standards to improve public education, especially for the poor. Many of us predicted that the money would flow, but eventually the standards would go.

I’m not especially surprised, therefore, to read the following in the Times: “In just five months, the Obama administration has freed schools in more than half the nation from central provisions of the No Child Left Behind education law, raising the question of whether the decade-old federal program has been essentially nullified.”

There’s a definite lesson in this for those who want to pursue “spend money now, in return for reforms in the future,” or “raise taxes now in return for future spending cuts” policies. And it’s a lesson that’s hardly novel.

This past week, the Department of Education announced it would allow states to obtain waivers under the No Child Left Behind Act, but “would set a “high bar on flexibility.”. (HT: Neal McCluskey) According to the announcement:

states can get relief from provisions of the Elementary and Secondary Education Act—or No Child Left Behind (NCLB)—in exchange for serious state-led efforts to close achievement gaps, promote rigorous accountability, and ensure that all students are on track to graduate college- and career-ready.

Specifically, according this fact sheet, a State may receive flexibility if it develops a “rigorous and comprehensive plan” to address “three critical areas” the Department of Education believes will “improve educational outcomes for all students, close achievement gaps and increase equity, and improve the quality of instruction.” Encouraging school districts to emphasize these three “critical areas” may or may not be a good idea, but it is highly problematic if (as it appears) the Department of Education is imposing these conditions without statutory authorization.

The NCLB Act allows for waivers of statutory and regulatory requirements placed on state recipients of federal education funds in Section 9401.  This provision identifies things a state must do to be eligible for a waiver, including showings a state must make, but it does not impose any of the conditions detailed in the Department of Education’s announcement. For example, Section 9401 requires a state to explain how the waiver will enable the state to ” increase the quality of instruction for students” and “improve the academic achievement of students,” but the Department of Education’s new requirements seem to go much farther than this. Moreover, nothing in Section 9401 appears to authorize the Secretary of Education from setting additional conditions on waiver requests.  So has the Department of Education over-stepped its bounds? It has before.

In Virginia Department of Education v. Riley (4th Cir. 1997), an en banc panel of the U.S. Court of Appeals for the Fourth Circuit held that the Department of Education could not impose conditions on the receipt of federal funds under the Individuals with Disabilities Education Act (“IDEA”) beyond those expressly identified or authorized in the statute itself. According to the court, “Language which, at best, only implicitly conditions the receipt of federal funding on the fulfillment of certain conditions is insufficient to impose on the state the condition sought.” Since, the court found, “at most” the statute “only implicitly” conditioned state receipt of funds on additional requirements, it could not be imposed on a non-consenting state. The court emphasized that this clear-statement rule was particularly important in an area, such as education, that is the traditional province of the states.

Is the Department of Education repeating the mistake it made in Riley? It appears that way to me, but some caveats are in order. First, it is possible that the Department of Education could defend these conditions as an explication or elaboration of the waiver requirements in the statute. I think this is a stretch given the actual statutory language, particularly in light of Riley, but it’s possible. Second, a state would probably have to seek a waiver without fulfilling all of the new requirements and get denied before it could challenge the new conditions in court. This makes a challenge less likely — and certainly a ways off. Moreover, the Department of Education could try and deflect any legal challenge by denying that it has formally adopted these conditions as actual requirements and not basing any future waiver denial on a state’s failure to meet the new conditions. Finally, I should note that I relied upon the provision identified by the Department of Education in explaining the policy, but I may have over-looked some other provision in NCLB that could be cited as authority for this waiver requirement.

UPDATE: I accidentally published a horribly garbled version of this post. I apologize and it has been fixed.

The Atlantic‘s Daniel Indiviglio highlights the enormous growth in student loan debt over the past twelve years.

Indiviglio comments:

This chart looks like a mistake, but it’s correct. Student loan debt has grown by 511% over this period. In the first quarter of 1999, just $90 billion in student loans were outstanding. As of the second quarter of 2011, that balance had ballooned to $550 billion.

The chart above is striking for another reason. See that blue line for all other debt but student loans? This wasn’t just any average period in history for household debt. This period included the inflation of a housing bubble so gigantic that it caused the financial sector to collapse and led to the worst recession since the Great Depression. But that other debt growth? It’s dwarfed by student loan growth

It should be apparent that this trend can’t continue — and won’t.  The only question is what will cause it to change.

As an amendment to a broader bill on education. Details here, from the Austin American-Statesman. Campus carry already passed the House as a stand-alone bill, so it seems likely that the House will concur with the Senate amendment. Texas Governor Rick Perry has repeatedly indicated his support for the measure. The floor discussion of the amendment should be available here, in RealPlayer format (although the Senate site warns that the stream has compatability problems with RealPlayer 14).

If enacted, the bill would only authorize carry by persons who have already been licensed by the State of Texas to carry throughout the state. Permit applications require fingerprinting for the background check, and passing a safety training class. Permits are only issued to persons aged 21 or older. Of course a licensee may not carry a firearm while intoxicated. Texas Penal Code 40.035(d). For a guide to the Texas concealed handgun laws, which in many respects are more restrictive than the handgun carry licensing laws of many other states, see this document from the Texas Department of Public Safety. 

For discussion of the policy issues involving campus carry, see my article Pretend ‘Gun-Free’ School Zones: A Deadly Legal Fiction, from the Connecticut Law Review. As the article observes, campus carry has been the rule for years at public colleges and universities in Utah, and at Colorado State University, among others. There have been no reports of problems.

Are students learning anything in college?  The research of NYU sociologist suggests that, at least for a sizable portion of undergraduates, the answer is “no.”  Here are reports on Arum’s work from McClatchy and USA Today. As characterized in these stories, Arum’s research finds that a large proportion of undergraduate students are not learning to write, think critically, or engage in complex reasoning.  The amount of time spent studying is quite small, and students can attend years of college with little to show for it.

Last week, co-blogger Jonathan Adler noted the publication of a new edition of Huckleberry Finn that replaces all of the book’s many uses of the word “nigger” with “slave” in order to make it more palatable to modern teachers who want to assign the book to students. In this recent column, prominent black linguist John McWhorter criticizes such efforts to sanitize a classic:

NewSouth Books would seem to be creating a baby-food version of Huckleberry Finn, with the n-word replaced by “slave” because of feedback from teachers who claim the book has become “unteachable.”

I see. Eighth-graders are too unformed to understand the difference between someone calling someone else the n-word and an author using the word in an ancient book to reveal characters as ignorant. Interesting, given that the same eighth-graders hear the same word used by rappers daily and understand the difference between that usage — as a term of endearment — and the epithet one....

[I]s it really that adolescents can’t comprehend the layers inherent in the word and its usage? Are people younger than 18 really so foggy about the notion that social conditions change over time? And isn’t showing the open use of the word in the past part of showing how far America has come? And meanwhile, it’s hard not to notice that the typical black view regarding NewSouth’s action is that it would be a whitewashing of history. Black people want their kids to see the real Huckleberry Finn.

McWhorter’s objection (and mine) is not to the mere publication of the sanitized version of Finn. If there are people who want to read it, that’s fine. Rather, the problem is with its use as a teaching tool in schools. Part of the value of assigning the book is the way it accurately portrays (and condemns) the widespread racism of the era it depicts. Censoring out the word “nigger” undercuts its educational value. In mid-nineteenth century America, many whites – especially poorly educated ones like Huck Finn – routinely used the the word in everyday speech. That fact reflected the ubiquity of racism, and as, McWhorter puts it, should not be whitewashed away.

Moreover, many other great works of literature also portray attitudes that are reprehensible and offensive. Unlike Twain, many other great authors actually endorsed such attitudes rather than condemned them. For example, some of the works of Shakespeare, Dickens, and Dostoevsky (The Merchant of Venice, Oliver Twist, etc.) reflect the widespread anti-Semitism of their time, a prejudice that these authors at least partially shared. Should all such works also be sanitized before assigning them to high school students? As McWhorter explains, educators would do better to explain the relevant historical context to their students instead of trying to shield them from literary depictions of offensive words and attitudes.

UPDATE: I have tried to find polling data on the subject of whether the majority of blacks really do oppose efforts to sanitize Huckleberry Finn, as McWhorter says. Unfortunately, a brief search didn’t find any relevant surveys. If any of our readers can point me to any such polls, I would be grateful. However, I am only interested in polls based on random samples, not internet polls with self-selected respondents, who may not be representative.

UPDATE #2: It’s also worth noting that replacing “nigger” with “slave” might obscure the meaning of the original text in some places, for example when the word is used to refer to blacks who weren’t slaves, thereby potentially confusing some readers.

Probably many readers have seen this New York Times article, offering a lengthy and well-reported analysis in the Business Pages by David Segal of whether law school is a worthwhile investment.  The analysis points to a couple of different factors, including:

• supply of lawyers outstripping demand, now and into the future;
• cost of legal education outstripping the ability to repay on most lawyers’ salaries;
• oversupply of law schools (leading to oversupply of lawyers, but in fact contributing its own frictions in bringing supply and demand to clear);
• huge information gaps making it difficult at best for would-be students to make a decision;
• inaccurate and gamed information supplied by law schools on employment and salaries of graduates.

The article traces through several law grads, with a particular focus on a graduate of Thomas Jefferson law school in San Diego, who has racked up several hundred thousand dollars in debt – if he were paying the monthly payments, they would be around $3,000 a month, if I recall the article correctly.  He himself says that he’s not so good at keeping track of that sort of thing.  The debt is not dischargeable in bankruptcy, so he and his girlfriend have simply gone off the employment or any other kind of income grid, pretty much.

A lot of readers of the article will be unimpressed with the young man’s cavalier attitude both to running up the debt – including on remarkably idiotic things, like trips abroad – and to repayment at all.  But while we all should take a lesson – I for one take a deep breath and hope that my own kid would not make these kinds of mistakes – there’s also a fact that it was only in the last two years or so that the vast majority of middle class people would have had any real question either about the ability to repay the debt or, more fundamentally, that more education was automatically a good thing.  More human capital investment, good, and professional education like law, better still.  It is only in the last two years, frankly, that very many of us – I include myself – have been thinking about higher education ROI.  I’m not at all sure that we can hang it on some admittedly not so bright kid for going with the assumptions that all the rest of us have gone with.

As I’ve noted in some earlier posts about 21st century jobs, there’s also something quite dismaying in the fact that, for the first time I can remember in my adult life, we seem to be concluding that investment in human capital is not worth it.  That might be true because the training is idiotic and not really “human capital investment” at all, but more like summer camp.

But the much more worrying possibility is that structural problems in the US economy mean that there isn’t a need for professionally skilled labor, because the economy can’t deploy people to these higher skilled tasks.  In the case of lawyers, or people who might have become lawyers, that might be because capital has been wasted in pointless things that didn’t pay off, and now there isn’t enough capital to invest in new things for which lawyers – yes, even lawyers – would be useful in making happen.  It can, and certainly has, happened to engineers, too, over the past fifty years.

To the extent that is a structural, rather than cyclical, new normal for the economy, that is dismaying and disheartening.  One can say that in that case, deploying would-be lawyers or, for that matter, engineers, into subsistence farming is, under those conditions, the most efficient available deployment of their labor.  But of course that would be true by definition.  The wastage compared to a better organized economy is enormous and finally tragic.

That is true, by the way, of the young man featured in the story.  He might be a genial idiot, when it comes to practicalities, but it does seem unlikely that even his talents, impressive or meager as they might be, are best deployed in our economy trying to avoid doing anything that earns any money, because of an unsustainable debt load.  From a social welfare perspective, his human capital is mis-deployed – while also being true that the moral hazard of a massive bailout of misplaced expectations of student loans is disastrous, quite apart from the cost.  It’s striking in the article that waiting for a political fix to his problems seems to be his overall strategy.  That’s scary all by itself.

However, it was finally this comment that attracted my attention from the standpoint of teaching law and economics to law students: consider the ways in which this statement is not quite right:

“Law school might not be worth it for another 10 or 15 years,” he says, “but the riskier approach always has the bigger payoff.”

Critique the last half of that statement.