Category: Legal

  • How Lawyers Shield a Broken Industry

    How Lawyers Shield a Broken Industry

    In the long decline of American higher education, a certain class of professionals has quietly prospered—lawyers who specialize in defending institutions from the consequences of their own behavior. These attorneys rarely appear in public debates over student debt, predatory recruitment, or collapsing regional colleges. Yet their fingerprints are everywhere: in courtroom strategies designed to run out the clock, in motions that narrow the rights of borrowers, in settlement agreements that mask wrongdoing without forcing structural reform. They are the legal custodians of an industry that has spent decades avoiding accountability.

    These lawyers often frame their role as neutral, simply providing representation to clients who need it. But the nature of the representation matters. When institutions mislead students, inflate job-placement claims, push them into unaffordable debt, or fire whistleblowers who object to unethical practices, these firms defend the institution—not the student, not the truth, and certainly not the public interest. Litigation summaries and public communications frequently present a parallel universe in which colleges are the victims, regulators are overreaching meddlers, and students who seek restitution are opportunists or pawns of political forces.

    The legal work is highly lucrative. In many cases, struggling institutions spend more on their attorneys than they do on direct student support. Colleges on the brink of closure still find six-figure retainers to fight state attorney general investigations or borrower defense claims. Public institutions use taxpayer dollars to shield themselves from transparency, all while students—particularly first-generation, low-income, and working-class students—absorb the losses. Attorneys in this sector are acutely aware of the harms their clients may have caused, yet their work consistently prioritizes institutional preservation over student restitution.

    The history of this defense strategy is well documented. In 2011, federal courts began seeing cases from former students challenging institutions for misleading claims, untransferable credits, and failure to provide promised training. Courts often compelled arbitration, effectively removing class action rights and leaving individual students to pursue costly and complex proceedings alone. This pattern set a precedent: institutional defense relied on procedural tools rather than addressing substantive misconduct. Between 2012 and 2013, state supreme courts upheld arbitration clauses that stripped students of collective redress, signaling to institutions that strategic legal defenses could block accountability. Students’ claims of misrepresentation, fraud, and breaches of enrollment agreements were repeatedly forced into private arbitration. The courts emphasized procedural enforcement over consideration of the underlying harms, allowing institutions to continue operating without public scrutiny.

    From 2015 to 2018, the Department of Education’s Inspector General documented widespread mismanagement of federal Title IV funds, showing that hundreds of millions in federal loans were issued to students at institutions that were later found to have misrepresented outcomes or violated federal regulations. Lawsuits brought by former students during this period, including allegations under the False Claims Act, were often dismissed or compelled to arbitration. Institutions were shielded, while borrowers were left with debt and limited recourse.

    In 2018 and 2019, state attorneys general filed enforcement actions against multiple institutions for fraudulent recruitment practices and misrepresentation of accreditation status. In almost every case, institutions relied on their legal teams to secure procedural victories: dismissal of class action claims, enforcement of arbitration clauses, and delays in settlements. While regulators attempted to intervene, the structural power of corporate legal defense delayed, diluted, or obscured accountability. During the COVID-19 pandemic in 2020–2021, students sued institutions for failure to provide adequate online instruction and for abrupt changes in course delivery. Defense attorneys successfully argued that enrollment agreements allowed these operational changes, resulting in widespread dismissal of student claims. Again, institutional defense won the day while students absorbed the financial and educational consequences.

    From 2022 to 2025, the Borrower Defense to Repayment program and the SAVE Plan promised relief for students harmed by mismanaged institutions. Yet litigation and regulatory challenges have slowed implementation. Institutions and their attorneys have repeatedly used procedural maneuvers to contest forgiveness, compel arbitration, or delay repayments, leaving thousands of students in limbo while debt accumulates. Throughout this period, legal strategy has consistently prioritized institutional survival over student restitution. Arbitration clauses, procedural dismissals, and regulatory delay have allowed colleges and universities to maintain access to federal funds, complete mergers, or restructure under bankruptcy protection, all while leaving harmed students with debt, disrupted education, and minimal legal recourse.

    These attorneys also help shape the narratives consumed by policymakers, journalists, and college trustees. Public-facing summaries often downplay institutional misconduct and amplify court decisions that limit student rights. They rarely acknowledge the emotional and financial devastation suffered by borrowers or the systemic risks created when institutions know their lawyers can absorb most of the blow. Instead, they champion a legal environment that treats higher education primarily as a business subject to claims risk, not as a public trust.

    Justice, in this ecosystem, becomes a matter of resources. Students and former employees face a wall of corporate legal expertise, while institutions with long records of abuse continue to operate behind settlements and sealed agreements. Attorneys who could use their considerable skills to protect the most vulnerable instead use them to reinforce a system that extracts value from students and leaves them to fend for themselves once the promises fall apart.

    The Higher Education Inquirer has long documented the College Meltdown: the closures, the debt, the failed oversight, and the human cost. But the meltdown is not only a story about administrators, investors, or federal agencies. It is also a story about the lawyers who defend the indefensible and who help maintain a higher education marketplace where accountability is optional and harm is routine. They may sleep well, but only because the consequences of their work are borne by others.

    The question is not how they sleep at night. The question is how many more students will lose before the legal strategies that protect institutions are no longer enough to protect the industry itself.

    Sources:

    U.S. Department of Education, Borrower Defense to Repayment decision data, 2022–2025

    Government Accountability Office (GAO), “For-Profit Colleges: Student Outcomes and Federal Oversight,” 2021

    Department of Education Office of Federal Student Aid, Borrower Defense decisions, 2020–2025

    State Attorneys General filings and enforcement actions against higher education institutions, 2018–2023

    U.S. Department of Education Office of Inspector General, audits and reports on Title IV program compliance, 2015–2022

    GAO report on arbitration clauses in for-profit colleges, 2018

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  • To ‘think like a lawyer’: some thoughts on the pedagogy of international law

    To ‘think like a lawyer’: some thoughts on the pedagogy of international law

    by Paolo Amorosa & Sebastián Machado

    Most law professors face a similar challenge when designing their courses: how to explain to students the enduring gap between what the law says and how it functions in reality. One of the foundational assumptions of legal education is that law is more than just the written rules found in statutes, bills, or constitutions. Without an understanding of how these rules influence a judge’s decision-making, they remain little more than pretty playthings: abstract ideas with no real-world impact. This realist approach in domestic legal education helps bridge the divide between legal theory and practice; the same arguments might apply in most disciplines and fields with a similar divide between theory and practice. If you can examine a rule and confidently predict how it will be applied, you are engaging in the most basic form of legal research. But consider a legal system without a centralised rule-making authority or a single, binding interpreter – no supreme legislature or final court to settle disputes definitively. This is the reality of international law. While there are many judicial and quasi-judicial bodies, there is no universal, mandatory forum for resolving disputes, and most conflicts never reach a formal judgment. Instead, states, international organizations, and individuals all contribute to shaping the rules by advocating for their preferred interpretations, hoping to sway the broader consensus. International lawyers refer to this evolving consensus as the ‘invisible college of international lawyers’, a term that captures the discipline’s informal, socially constructed boundaries. In essence, international law is what international lawyers do.

    Teaching international law, then, comes with an added layer of complexity: the lack of formal structures undermines legal certainty. Every international lawyer, to some degree, can influence the field. Through journal articles, blog posts, social media debates, or legal practice, they argue for their version of the correct interpretation of a rule. Academics may even challenge established meanings, making persuasive cases that defy the literal text of foundational documents like the UN Charter.

    This is why international lawyers often say that the law is made, not found. Unlike domestic legal systems, where rules are either codified (as in civil law) or derived from judicial precedent (as in common law), international law is fundamentally discursive. This creates a twofold problem. First, without an authoritative interpreter, there is no clear way to separate theory from practice. A legal advisor in a Foreign Ministry might frame a state’s actions as part of a new trend that modifies a rule (such as pre-emptive self-defense), while others denounce it as a violation (like Article 51 of the UN Charter). In this environment, the line between legal theory and practice dissolves. Second, with no objective boundaries to the discipline, the distinction between mainstream international law and critical approaches collapses. What remains is the professor’s choice: which version of the law to teach.

    Yet teaching international law does not require taking a stance on the theory-practice divide, because that divide is not inherent to the discipline. Law professors are not bound by the same rigid distinctions as, say, natural scientists, who must separate theoretical models from empirical observation. Instead, legal education can bypass this dichotomy entirely by focusing on the deeper conditions that shape how we understand both theory and practice. Rather than treating practice as a constraint on theory, students can learn to apply theoretical insights pragmatically. This approach allows law schools to teach practical skills without forcing an artificial separation between legal thought and legal action, following larger trends in pedagogical training outside legal academia.

    Still, many international law professors struggle with curriculum design because of these perceived divides. On one hand, students must master a baseline of doctrinal knowledge to enter legal practice. On the other, mere knowledge acquisition is not enough – students must also develop the ability to analyse, synthesise, and critically evaluate legal arguments. A well-rounded legal education should cultivate these higher-order skills, enabling students to engage in meta-cognitive reflection about the law they are learning.

    Moreover, there is no strong evidence that ‘thinking like a lawyer’ is a unique cognitive skill. Legal reasoning shares much with other forms of reasoning, meaning that better teaching methods alone will not necessarily produce better lawyers. Instead, what matters is equipping students with evaluative tools to interpret and refine legal arguments. By treating core legal knowledge as a foundation rather than a rigid boundary, and critical thinking as a method for engaging with that knowledge, the supposed divide between mainstream and critical approaches begins to fade.

    The same logic applies to the theory-practice debate. The tension between these approaches persists only if we assume they are mutually exclusive. Law schools often face criticism from practitioners who argue that graduates lack practical skills, while academics defend the importance of theoretical training. But must these roles be in conflict?

    Perhaps the real issue in international law is not the existence of these divides, but our insistence on treating them as inevitable. If there is little evidence that ‘thinking like a lawyer’ is a distinct cognitive skill, there is even less reason to impose it as a rigid framework for international legal education. Instead, we might focus on cultivating adaptable, reflective practitioners who can navigate both theory and practice – not as opposing forces, but as complementary dimensions of the same discipline. This is a lesson relevant for many if not all professional disciplines.

    Sebastian Machado Ramírez is Postdoctoral Researcher at the University of Helsinki, where he works on the PRIVIGO project examining private governance and international law. He holds a PhD from the University of Melbourne, where his dissertation analyzed interpretive approaches in the law governing the use of force.

    Paolo Amorosa is University Lecturer in International Law at the University of Helsinki. He holds a PhD from the same institution and specializes in the history and theory of international law and human rights. His monograph Rewriting the History of the Law of Nations (OUP 2019) critically re-examines the ideological foundations of international law’s canon.

    Author: SRHE News Blog

    An international learned society, concerned with supporting research and researchers into Higher Education

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