Law School, Debt, and Discrimination

Law school is more than a professional training ground. Our graduates play a special and privileged role in the nation’s politics and culture. They know—or should know—the language of the law, the vehicle broadly capable of moving society from where it is to where it aspires to be, and ideally aimed at achieving justice in the case of individuals wronged by the state, a neighbor, or simple bad luck. This special role for lawyers adds significance to questions of who goes to law school and what law students do after they graduate. Law graduates’ career decisions have practical effects on access to justice; for example, new lawyers may choose to serve, or not to serve, poor, historically subordinated communities. Decisions about careers also link access to justice to student financing of law school. The more law students must borrow to pay for their education, the more pressure they are under to pursue higher-paying jobs to manage repayment. While empirical evidence of the impact of indebtedness on decision-making is scarce, the data we do have suggests that more borrowing for law school correlates with a lower likelihood of seeking a career devoted to the public interest. The correlation makes sense, because public interest careers tend to pay less. The more students must pay for law school, the more likely it is that they will seek more lucrative careers

ESSAY: Insiders, Outsiders, & Fair Access: Identifying Culpable Insider Trading

The Supreme Court’s insider trading doctrine has become increasingly convoluted as each effort to cope with novel fact patterns results in a new rule not tethered to principled understanding of the nature of the wrong committed. That this is not a terribly controversial claim is evidence of how far the Court’s jurisprudence has drifted. This essay proposes that the early error was abandonment of concern for third parties who trade on exchanges but who do not enjoy legal access to information possessed by insiders or tippees who receive information from insiders. The Court’s error, the essay contends, rests on a flawed conception of the nature of the unfairness that the penalties for insider trading respond to: it is inequality of access resulting from an insider’s relationship to the source of information. Justices Blackmun and Marshall made this observation in a dissent nearly forty years ago, and this essay contends that the case for acting upon it has only grown stronger as the regulatory environment and investor capabilities have evolved. The essay proposes a relatively modest regulatory reform, accelerating the regulatory requirement that insiders disclose transactions, to protect third party investors and discourage insider misconduct by leveraging the speed and sophistication of modern securities markets. In an effort to help shift debate away from questions of the duty owed by insiders to their principals, the essay contends that future reforms should be guided by the goal of protecting outsider investors

The Narrative and Rhetoric of Student Debt

The swirl of concerns about and criticisms of the cost of higher education and the debt burdens taken on by students masks a deeper confusion over the goals student aid should pursue and over reforms to enable achievement of those goals. This Article explores how the rhetoric used in public discussion of college cost and student borrowing can get in the way of what would be a difficult but critically important debate over goals. Higher education is a personal, private “investment” that must be “worth it” to the student; student “aid,” flexible loan repayment plans, even debt forgiveness, all aim to make the financing of this investment easier but also may “unfairly favor” certain career choices over others. The very words used in these descriptions have consequences for how higher education is understood. They invoke assumptions about the values higher-education policy should pursue and get in the way of seeing choices implicitly already made, choices that should be explicitly analyzed and debated. Reform efforts in this area will turn on politics—a field highly susceptible to rhetoric—and ignoring the implications of choices of words runs a grave risk of foreclosing possibilities

The Sequential Movement Challenge of Higher Education Access

Too often, discussion of how best to promote greater and more equitable access to higher education in the United States centers on a single set of challenges when in fact they are many, varied, and interrelated. There is the challenge of student diversity: the student body at the most elite institutions does not look like the population of the nation as a whole. There is the burden of cost: the price of higher education both deters potential students and burdens those who must borrow to enroll, whether they graduate or not. There are disturbing disparities in standardized test scores: the admissions criteria used by institutions that are most selective disfavor applicants whose families earn lower incomes and who are African American or Latino. There is the performance of for-profit higher education providers: these institutions produce worse outcomes for students, in the form of low completion rates, greater debt burdens, and greater likelihood of default, and they disproportionately serve students who are poor and African American or Latino. There is the potentially regressive effect of so-called merit aid: financial aid practices used by competitive colleges and universities to improve their placement in rankings work against recruitment of students who have greater financial need and in favor of those with higher test scores, who tend to be those whose families have more wealth or higher incomes. The goal of this Essay is to map the terrain and suggest possible implications of relationships among race, class, institutional incentives, measures of merit, and debt for possible reform. To be clear, the Essay assumes that greater and more equitable access to higher education is the ultimate ambition of both federal policy and institutional practice. Equitable access to higher education opportunity is an appropriate and critical question for legal scholars. Lawmakers and courts have given shape to the architecture that makes opportunity more available to some and less available to others. Historically, legal challenges to exclusive practices of colleges and universities have opened the gates for members of marginalized and subordinated groups.And regardless of the usefulness of the courts, legislation has, will, and must implement reforms. Part I of this Essay examines the role race plays in access to higher education. Part II assesses the role of wealth. Part III discusses the implications of conventional assessments of merit. Part IV examines the potentially important role played by academic support to help enrolled students achieve graduation. Part V discusses the impact of borrowing and indebtedness. In conclusion, Part VI identifies political obstacles to effective reform informed by recognition of the relationships previously analyzed in the preceding parts

Private Offerings and Public Ends: Reconsidering the Regime for Classification of Investors under the Securities Act of 1933

Investment in private offerings of securities, those that take place off of public exchanges and that are exempt from federal disclosure rules applicable to public offerings, is primarily available to investors on the basis of wealth. The wealthy are presumed sophisticated enough to make informed decisions about what to buy without mandatory disclosures applicable to public offerings. Yet the financial crisis of 2008 made clear that wealthy and ostensibly sophisticated investors can make tremendous mistakes and suffer enormous losses. Those losses are a problem when the investor serves a public goal, such as providing income to public sector employees. This Article argues that investment in private offerings by institutions serving a public mission should be limited to ensure that public ends are protected