As many regular readers know, I’ve been constantly rankled by the well-meant, but shortsighted, push to divest from private prisons. I don’t think private prisons are the ultimate evil in U.S. incarceration (though they are definitely a nauseating symptom); all the horrors Chad Goerzen and I talk about in our new book FESTER occurred in public prisons and jails. More importantly, in reality, whoever pushes for divestment has too naive a perspective on how the market works. Public prisons are all but privatized on the inside. The utilities are privatized. Healthcare is provided by private contractors. Commissary is often essential as supplementation because the food is inedible. Anything beyond “bare life”, as Agamben called it, is monetized. In Cheap on Crime I spent a whole chapter explaining how this came to be: in the last few decades, and increasingly since the financial crisis, the basic conceptualization of incarcerated people has shifted from wards of the state to consumers of services. Accordingly, everything, including the actual stay in jail, is monetized, and costs are rolled onto the “customers.”
This has been especially notorious in the context of phone call. There is a long and atrocious history of litigation surrounding the dirty deals between government agencies and phone companies, and anyone who has been incarcerated, or who has called someone who is incarcerated, knows what the upshot was. There’s a lot of cumbersome bureaucracy one has to deal with to even create an account with the phone company (I personally spent hours on the phone with GTL trying to set up my account. Their robocalls are not customer friendly, and I can only imagine people despairing of them if they try to call from work or while they try to survive in some other way.) And that’s if people want to be able to accept collect calls from prison. For those who don’t, there’s the issue of accounts of the people inside. While having the conversation, both parties can hear the “dings” charging the money every few minutes (ka-Ching!). The phone calls get disconnected and one has to call again (ka-Ching!) And if it turns out the phone call was disconnected because the account is depleted, you have to deal with that right away (ka-Ching!) True to the logic I explained in Cheap on Crime and elsewhere, singling out the private sector is making a naive mistake. It takes two for tango, and you bet the only reason this extortive system existed for as long as it did was that sheriffs AND phone companies both stood to gain.
Beyond the obvious issue that people in prison don’t tend to be flush in terms of personal wealth, and therefore there’s a class justice aspect to the new legislation, there are a few more, which expand the conversation. The first is that, beyond phone calls, California’s plant is not conducive to keeping contact with families. Our prisons are located in remote, rural counties, and many people’s families live in dense urban areas. If an Oakland family wants to visit their relative, who is incarcerated in, say, Pelican Bay, they have to plan for an 8-hour trip and a night at a hotel. Public transit is nonexistent and hotels jack up the prices. We also don’t offer vacations at home, which many prison systems in the world do. Until recently, when tablets were provided to people for video visits (partly to simplify complex in-person visitation protocols during the pandemic) it was very difficult for people to stay in touch with their families. The phone call costs were just part of this problem.
There is also the fact that contact with one’s family is known to be the main factor in recidivism prevention. One of my main conclusions in Cheap on Crime was that saving money by eliminating rehabilitation programs, reentry efforts, and the like–what I called “tough ‘n’ cheap”–ends up costing more money by driving the “revolving door” phenomenon. When we talk about “justice reinvestment” it really should be exactly that: in order to save, we have to spend in the right places. Whatever we spend in phone bills we will recoup in people who come home to a supportive family and a helpful community and get the help and love they need during the first few years after release, when the risk of recidivism is at its highest point.
Finally, there is the serious problem of knowing what is happening behind bars. Phone calls are essential not only for keeping in touch with the outside, but also for notifying supporters, lawyers, advocates, and journalists about things that happen away from the public eye, where negligence, incompetence, and sometimes downright cruelty and sadism can produce terrible civil rights violations. In the early months of the San Quentin COVID-19 outbreak, prison authorities prevented people from making phone calls, assuming they would infect each other through the phone (we now know COVID-19 is airborne, but at the time, as some of you might remember, this was not yet widely known and lots of folks were obsessing about cleaning surfaces.) Consequently, for several weeks we didn’t know what was going on, and concerns about housing, food, adherence to masking protocols, etc., were high (and, as it turned out, justified.) Chad Goerzen and I talk about this in FESTER (which comes out from UC Press in 2024.)
For all these reasons, I think this is a terrific initiative. I really hope people use it in ways that are beneficial to their reentry and nourishing for their relationships.
It all started, for me, with this Atlantic article, which portended the death of college essays. Everyone around me is playing with AI playgrounds such as this one or this one, asking it to write essays, haikus, recipes, ads, and whatnot. The results are often amusing and quite shocking in how superficially okay they are. My colleague Brian Frye even produced this valiant attempt to get the thing to do a meta-discussion of its own inherent dishonesty. And here I am, about to grade twelve seminar papers (in addition to 90 exams, thank you very much), wondering if I should even bother running them through Turnitin to detect plagiarism. It appears that the new plagiarism tools have birthed new plagiarism detection tools unique to AI, and this is surely not the last move in this game, as the arms race to artificially produce text indistinguishable from a human thought product is bound to get more and more sophisticated.
My first reaction to all this was utter despair and the sense that the human race–or, at least, the subsection of it that includes educators like me–has become obsolete. The singularity is nigh! Our flimsy protections are Asimov’s three laws of robotics! Then I got to thinking and chatting with a few friends.
My point of departure is that I hate plagiarism and all that is related to it in academic work. I can see people borrowing from themselves in the course of closely related projects (kind of like Mozart or Beethoven), but generally speaking, the concept of plagiarism should not be confusing or morally gray. As a colleague defines it, there are two types of ideas in any academic work: those that come from your head and those that come from other places. The latter set has to be properly attributed. That’s basically it.
At the same time, I have serious doubts about the utility of aggressive anti-plagiarism enforcement in law schools, for three main reasons. First, given what we know about the development of adolescent brains, most of the folks we encounter are in their early twenties, when their prefrontal cortex is still growing and developing. That, as we know from a trilogy of Supreme Court cases interpreting innovations in developmental psychology and neuroimaging, is the part of the brain responsible for weighing consequences, resisting peer pressure, and delaying gratification. In my almost twenty years of academic teaching, I’ve seen some people truly change and mature just in the course of the three or four years that I’ve been exposed to them. In one case, I testified on behalf of a recent graduate at the State Bar Court. This guy was involved in a pretty serious case of academic dishonesty in his first year of law school, and when I met him–at the beginning of his second year–he was still rather immature compared to others. But I got to teach him throughout his law school career and was profoundly impressed by how much he had changed during that time. In his last semester with me he was not only contrite about what he had done (y’all already know what I think about expressions of remorse) but also much more mature; had produced a superb piece of original, empirical work for one of my courses; and developed much more sophisticated thinking about social problems. A lot of these cases, even when severe, reflect the sort of immaturity that people can put behind them if the process is sufficiently educational and rehabilitative.
Relatedly, my second concern about aggressive enforcement against plagiarists in law school has to do with the bar’s reaction to law school sanctions for academic dishonesty. A couple of years ago i conducted and published an interview-based study of the moral character determination of the California State Bar. For this project, I interviewed ten people with criminal records who succeeded in becoming licensed California attorneys, a few ethics lawyers that represent people in moral character cases, and the bar officials responsible for these determinations. What I learned (and I’m not sure this is still true, but it was true as of 2020), was that bar officials look at the candidates’ disclosures and their official records, including their law school records, and classify their personal histories into one of four groups according to their severity. Law school dishonesties are generally classified as Level Four, partly because they are relatively recent and partly because they reflect misbehavior that the bar officials think is directly representative of what kind of lawyers these folks will be, ethics-wise. Much as I think that consequences are important, I’m not sure that every plagiarism case merits the complete destruction of a future that a person poured considerable funds, intellectual and emotional effort into, certainly not without very serious forewarning in the law school admissions process and in the first year.
Finally, and perhaps most importantly, I think that our approach to originality, scholarly sparkle, and the use of AI as well as most conventional sources raises serious questions about what law schools are even supposed to be. Many of us in legal academia are realizing, as we make our first steps in education, that our students, overall, are very different from us, and that most of us teach in very different institutions than the ones we ourselves studied in. New faculty hires tend to prioritize people from very few select institutions, with additional prestige-granting characteristics such as advanced degrees, clerkships, or visiting professorships. This means that most of us will be teaching people who want to be lawyers, not scholars. While many of my students are smart, quick thinkers, I rarely encounter people who I think would be a great fit for grad school. Moreover, even those who are well suited for doctoral pursuits are not that excited to incur more debt after three years of law school; rather, they’re pretty eager to enter the job market and start working off their colossal debt. For the most part, these folks are entering a profession in which producing highfalutin’ scholarly works is utterly unnecessary. Yes, they need to be able to write a persuasive brief and a punchy motion to suppress, but they don’t really need to compose lengthy law review articles. For the few that are inclined to do this, we can create a special honors track that requires a scholarly product. We don’t need to demand this of everyone, certainly not at the many schools that don’t feed into legal academia.
So, if I were Queen of the World, these would be my recommendations:
Completely change law school pedagogy away from producing descriptive/critical scholarship to lawyerly problem-solving. Focus the entire curriculum on hypotheticals, simulations, and the like. Forget about conventional lecturing and Socratic inquisitions and spend your time, instead, solving problems in class. I already do this in my big lecture courses. My students receive all the material in the form of readings and lecturettes, such as this one:
When the students show up for class, I spend minimal time explaining the doctrine and lead a quick discussion of critiques and finer points. Most of our time is spent working through simulations in small groups. Often, but not always, this consists of a series of hypothetical problems. Sometimes the students have to negotiate plea deals, write motions to suppress, pick a jury, or use the Federal Sentencing Guidelines to sentence a defendant. I think we get a lot more lawyerly bang for our buck this way. I started using this pedagogy during the pandemic, to liven up the Zoom situation, and have transitioned to in-person flipped classroom, because I truly think this is the optimal way to teach law to people who aspire to be actual lawyers.
Restructure the role of law review editorial staff (that is, if we choose not to get rid of law journals altogether, which I think would be a pretty good thing to do for various reasons.) Students who are not interested in writing notes for the sole purpose of writing notes should not have to write them. They have their hands full editing the submitted works of other folks, which is, after all, what the law journal market is for.
Shift the definition of the writing requirement. Why is it that we ask people who have no scholarly aspirations to produce original scholarship? Yes, lawyers should definitely know how to write–they must learn to write lawyerly work product: briefs, motions, letters to clients, etc. Why not define a few of these basic forms of legal writing and require that, throughout people’s legal education, they tick each box? It doesn’t have to be independent, shapeless work: these products can be assigned as part of lecture courses, clinics, externships, and the like. The added benefit of this strategy is that, when workplaces invariably ask their applicants (our students) to provide a writing sample, the sample will actually mirror what the job expects.
Create an honors track for aspiring academics or, even better, shift aspiring academics to a JSD degree. Sure, there will still be folks who want to be academics, and that’s great. I’ve always thought it outrageous that people can seek academic careers with an educational record that is basically identical to that of their students; that is, that your only qualification for being a teacher is having been a good student yourself (sometimes quite recently.) No other legal academic system in the world works like this, and no other U.S. disciplinary department works like this: students everywhere EXCEPT American law schools are taught by people who have a far more extensive higher education background, far more practice background, or both, than they do. It seems to me that in order to not be “those who can’t do, teach,” each of us in pedagogy needs to bring something very substantial to the table, either in the scholarship or in the practice realms. Given that legal scholars are expected to produce legal scholarship, it’s worthwhile signaling as early as law school that people who aspire to academic careers will be well served by receiving some training in scholarly writing (not what lawyers do for a living! what academics do for a living) and that can be provided, at minimum, through an honors track that requires a piece of traditional scholarship. By making this track both self-selected and selective, we ensure that we don’t have to scan a boatload of papers for plagiarism, because presumably whoever is interested in working in the business of original thinking wants to do original thinking (or perhaps not? but at least detection should be easy with fewer suspects.) Alternatively, let’s encourage people who want to be scholars to pursue a bona fides Ph.D. program (as a joint degree with their J.D.) or get a JSD from their law school (requiring a written dissertation, which could also feed their first few articles and possibly their first book.)
Yes, the singularity heralds some unwelcome news to legal education. But it is a good opportunity to consider what we’re here for and to reinvent ourselves in more relevant ways.
And now I really need to stop bloviating and put a dent in this exam pile. Godspeed!
 I’m especially grateful to Paul Belonick, Hadar Dancig-Rosenberg, and Emily Murphy for our conversations about this.
 I’m grateful to David Takacs for this crystal clear formulation
I’m so happy to share with you my recent appearance on Karina Inkster’s amazing podcast, the No Bullshit Vegan Podcast, which offers fantastic advice to plant-based folks who want to kick butt athletically. I got to talk about animal rescue, the Smithfield trial, raising a vegan kid, endurance and strength sports, and lots of other cool topics. 🙂 You can listen to the podcast here.