Tuesday, January 30, 2007

BAR/BRI Lawsuit

There's an article in the January 26, 2007 issue of the ABA Journal E-Report on the status of Park v. Thomson Corp., No. 05 Civ. 2931 (SDNY 2005). Park is a class action suit against BAR/BRI. In short, the suit alleges that more than 300,000 students and lawyers were monopolistically overcharged about $1,000 apiece for BAR/BRI bar review courses. That's a lot of damages. The ABA Journal reports that the SDNY has denied a motion to dismiss the claims. A similar article appears on Law.com--which goes into more detail than the ABA Journal article. Particularly interesting to me is how Judge Learned Hand's classic "30/60/90 rule" from the Alcoa case is relevant here: that 30% market share presumptively is not a monopoly, that 60% may or may not be, and that 90% market share presumptively indicates a monopoly. In this case, BAR/BRI has 80 to 90% of the bar prep market.

As for blogging about this case, perhaps the experience of Law Prof Eric Goldman should wave me off. He blogged about this case a few months ago; look what happened to him. Maybe I should proclaim my ignorance too.

Scratch everything I just said in this post.


wha? said...

It indicates that the PL's are still throwing out a wide net for evidence. Although they don't have to be unless they choose to, many bloggers like to function as opinion-journalists. Goldman had several posts on the case. Goldman opined to reporters on the case. Goldman was probably one of the only people out there intentionally making his opinions on the case known to the public. It's not unreasonable for the PL's to assume that he must have some factual basis for the formation of his opinions. Even if he doesn't, the PL's can try to sneak him in as a fact witness, although the fact that he's a professor and he would be expounding would make him an 'expert' in the juries' minds w/o having to qualify him as one.

Anonymous said...

Of course BarBri is a monopolist -- milking the sheep for all they can get, the duty of all monopolists.

And where did they get the idea and the leverage needed to create this monopoly? From the ABA itself, the champion of the "accredited" law school as the sine qua non for admission to the bar.

The groups that really need suing are the ABA and the states that delegate bar admission to this gang of self-serving protectionists.

I just completed a move from a state with a liberal admissions policy for practicing attorneys to one that is, to say the least, exceedingly hostile to the foreign attorney so rude as to horn in on the guild's turf. As a result, the state bar will extract hundreds of dollars to do a "character and fitness" investigation much like the LAST one, completed three years ago, when the penetrating inquiry produced followup questions that I was required to address such as this one: "You claim to have lived in Maryland but were employed in Washington DC. Please explain the discrepancy."

Then I will have to spend more than $500 just for the privilege of sitting the bar exam again, a test that really should be titled "The Malpractice Olympics," as the only reasonable response to all the essay questions is "Let me research this and get back to you." The MBE is simply a game of skill that is perfectly amenable to study with very little law knowledge at all--a few weeks study with MicroMash or PMBR all but guarantees passage.

Oh, and I get to wait until July to accomplish this important work ... because the Guild only provides two exams a year. Imagine if the DMV only offered driving exams twice a year--it's ridiculous, of course, but it's just as valid for the bar exam. With computer-controlled exam bank technology, anyone should be able to go to any testing center at any time and take the bar exam -- if the point was to ascertain that the applicant possessed some minimal standard of knowledge (the "rules of the legal road" as it were).

Instead, the bar exam is simply the capstone of the entire edifice devoted to raising salaries by anti-competitive practices that, were they engaged in by the members of any OTHER trade, would result in immediate and determined attacks by lawyers.

So why pick on BarBri for simply doing what Lawyers, as as an institutional whole, do best: ganging up on those applying to join the club, hiding behind the dodge that practicing law is a "privilege" that the organized bar has a right to ration out (to its own advantage in every case).

If the bar exam meant a goddamn thing it would be required every five years, the way physician's assistants have to sit their recertification exams every so many years. Instead it's simply a way to choke off the flow into the profession, reduce supply and increase salaries. So complaining that a fellow parasite like BarBri has too much market power is more than a bit like the pot and the kettle.

wha? said...

I don't see where the bar exam chokes off the flow very effectively....I think the better analogy is a traffic checkpoint where crooked cops shakedown drivers. Everybody that wants to get through will get through, whether qualified or not (as you indicated, a few weeks with review & testing strategy courses, and the bar is imminently passable)...it's just a matter of how much you're willing to pay.

Hunter S. Thompson coined a phrase for the types that set up systems like this. It starts with 'Rat' and ends with 'Bastards'.

Anonymous said...

Point taken; the crooked cop at the traffic stop analogy is very apt.

But my point still obtains--because when everyone knows that crooked cops do shakedowns on certain routes, lots of good people avoid those routes.

Plenty of good people who would make decent attorneys don't even make the attempt because they don't see a path that doesn't saddle them with huge debt from law school (a crooked cop/traffic stop in itself) and make them insanely vulnerable to further shakedowns like the bar review course scam. They see what driven strivers the law rewards and recoil from them.