The myth of the “reasonable consumer”

Here’s the key passage in Judge Melvin Schweitzer’s decision, granting New York Law School’s motion to the dismiss the class action suit brought against it by nine graduates for publishing misleading employment and salary data:

The court does not view these post-graduate employment statistics to be misleading in a material way for a reasonable consumer acting reasonably. By anyone’s definition, reasonable consumers — college graduates — seriously considering law schools are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post-college options, such as applying for professional school. These reasonable consumers have available to them any number of sources of information to review when making their decisions.

The statistics to which the court refers are overall employment rates, nine months after graduation, hovering around 90% for the NYLS classes of 2005-2010, and salary statistics which, for the classes of 2005 and 2006, didn’t disclose the percentage of graduates reporting salaries, but included the purportedly limiting caveat “based upon salaries reported.” Although the school did start disclosing what percentage of graduates the salary statistics were based on beginning with the class of 2007 (that is, in materials published no earlier than the spring of 2008), it’s important to note that eight of the nine plaintiffs enrolled in NYLS prior to 2008, that is, prior to NYLS’ disclosure of this obviously crucial piece of information.

Judge Schweitzer’s argument, in a nutshell, is that:

(a) Potential law students are sophisticated consumers of education.

(b) NYLS didn’t affirmatively represent that the nine-month graduate employment rate included only legal employment.

(c) NYLS didn’t affirmatively represent that the average salary statistics it published were statistically representative.

(d) Because potential law students are sophisticated consumers, and have various sources of information available to them other than the representations made to them by law schools regarding the schools’ employment and salary data, they know or should know that employment and salary statistics such as those presented by NYLS would be misleading if taken at face value.

(e) Therefore, potential law students who take such statistics at face value are being unreasonable, and, since New York consumer protection law protects only reasonable consumers, it doesn’t protect the plaintiffs in this instance.

It’s hardly an exaggeration to say the judge accepted a “it’s your fault if you took us at our word” defense on the part of NYLS. The judge seems to have taken the view that, as long as a law school doesn’t literally lie, factually true statements that might well be expected to mislead an “ordinary” reasonable consumer — and would therefore constitute actionable conduct — should not mislead a “sophisticated” consumer, and should therefore not give rise to legal liability. In other words, the judge appears to be holding potential law students to a higher standard than ordinary consumers, because they are college graduates, and therefore “capable of sifting through data and weighing alternatives” in a way that at least impliedly grants them less protection under consumer protection laws than would be given to less educated people.

It goes without saying that, in the usual manner of such things, the judge provides no evidence for the assertion that potential law students are (or should be?) less prone to getting ripped off by slick salespeople than their less educated brethren. It’s simply asserted as self-evident that this is the case, which one would think would raise the question of how exactly law schools manage to enroll tens of thousands of obviously “unreasonable” consumers of professional education every year, given the wonders of our information age. (It also goes without saying that this question remains unraised).

The judge is essentially taking the perspective of this commenter:

[Law schools] expected [students] to understand the “contract” involved in law school admission and matriculation. How?

They expected you to read all the info, not just from their schools, and ask questions–especially when you noticed discrepancies or didn’t understand or weren’t sure about something you read or heard.

They expected you to talk to lawyers practicing the kind of law you want to practice–and not just alumni of the schools you were considering, to learn their perspective on the politics of hiring and promotions, what the day-to-day work is like (does it match your expectations? how hard is it to work 70-80 hours a week, really?), and what they see as the future of the field.

They expected you to take an active part in your career development, to make a point of doing well in interviews, to conduct a comprehensive job search (not refuse to interview with any firm outside of BigLaw).

So it comes back to greed–and the willful blindness it inspires in prospective law school students.

I characterized this position as “if you had been thinking like a lawyer, you would have known lawyers would lie to you,” which non-plussed the commenter, who replied in high dudgeon (what does that mean anyway?):

No, you are wrong. If prospective law students would simply adhere to the old warning “buyer beware” — and not be blinded by their need to believe they are smarter and more special than everyone else, and therefore are guaranteed first-job placement success at a BigLaw firm — they would do a thorough job investigating their options for law school. The result of these investigation might lead them to determine that they should not go to law school at all, and instead pursue a different career. (I’m starting to think this may be true for you, too, as you seem to be a frustrated academic.)

Your cynicism is sickening. Lying is not the default communication mode for lawyers or law school administrators.

I have no real idea of the extent to which lying is the default communication mode for lawyers — like almost all legal academics I know very little about lawyers — but I do know a lot about law school administrators, and in fact when it comes to the issues discussed in this blog, lying is the default communication mode for a very large number of such people. In any case, a soon-to-be unemployed Columbia law student’s response gets to the point, although with less delicacy and circumspection than is considered proper among the Quality:

Are you aware that [prospective law students] actually, mentally CANNOT do this? It’s not a matter of being smart. The optimism bias is hardwired into our DNA. The rational actor model has been thoroughly discredited. Pick up a fucking newspaper.

Yes, precisely. Judge Schweitzer is living in the comfortable fantasy world of “rational actors,” where reasonable people decide on reasonable courses of action in a reasonably reasonable way. Out in the real world, “the market” for places in law school consists in large part of inexperienced, unworldly, non-cynical, irrepressibly optimistic young people who have been socialized successfully to believe that law school personnel operate by a more exalted code than that found among carnival barkers and used car salesmen. In other words, people who have not yet learned to “think like a lawyer,” i.e., a cynical pessimist who takes it for granted that

(a) In an “arms-length” transaction somebody is going to try to rip you off at least up to the very limits of the law, if not well beyond it; and

(b) Everything is an arms-length transaction.

Their bad, as Judge Schweitzer might as well have said. They should have learned to think like lawyers before they went to law school.