Up in smoke

In pursuit of a simpler life, a Harvard Law graduate burns his diploma:

Hat tip: The ABA Journal Weekly and Legal Blog Watch.

Distributive Justice in Law Schools

Sometimes I feel like it's Bill Henderson's world, and I'm just living in it and trying to help connect the dots. So when John McCain talks about "spreading the wealth," I start thinking about distributive justice, specifically who gets what in the law schools that employ some of us, collect tuition from others, and ask still others for money every once in a while.

Our current system of no competition on educational quality among law schools, which I'm trying to help address with the Race to the Top project (download the Voter's Guide to the U.S. News survey here), has serious consequences for distributive justice in law schools.

The first is how we allocate the scarce resources of admission slots and financial aid. I talked a bit about this yesterday, but the basic answer is LSAT scores, as Henderson recently demonstrated. Financial aid and fundraising priorities goes to buying LSAT scores to move up in the rankings, when it could be going to expanding loan repayment programs for public interest or government jobs, or any number of other priorities.

Now, competing for the best students through merit-based aid doesn't sound so bad -- a bit of a waste of money from a public-good perspective -- but not terrible. Until you think about how merit is defined: test-taking speed, wihch is what the LSAT is about in large part.

And, as Bill Henderson has demonstrated in what has to be one of the most important law review article of the past twenty years, the only reason why the LSAT is a good predictor of law school grades is because most law school grades are determined by these time-pressured exams, having little to do with analytic ability or other skills relevant to quality lawyering, and everything to do with speed.

Which brings us to distributive justice problem #2: the next scarce resource we allocate is access to top jobs -- at most law schools, they're only accessible to the top of the class.

And what Henderson and others have demonstrated is that who falls where on the curve is different depending on the assessment method professors choose. That is, if you use a few short memo assignments instead of a time-pressured final exam to determine the grades, different people will get "As" and access to the top jobs. Doing memo assignments -- or final exams with word limits and no heavy time pressure (take-home, 6-8 hr, etc.)-- does a much better job of sorting people by analytic ability and work ethic than the time-pressured final exam. Mike Madison (Pittsburgh) and others have ably discussed the virtue of memo assignments -- one benefit for professors is that doing most of the grading during the semester frees up valuable time for uninterrupted writing at the end. I've found this to be a huge benefit, and on take-home exams or memo assignments, I've never had a problem doing a curve.

So the question for those law professors (until this year, myself included) who continue to use time-pressured exams to determine most of the grades is: why are you choosing speedocracy over meritocracy?

In the status quo, the speedy high-scoring LSAT folks get the best grades on the first-year time-pressured exams that determine grades, giving them the access to the top jobs that generally pay the most, making them the least in need of significant financial aid, while continuing to receive the most aid.

I'm not the first to criticize legal education on such grounds, I realize, but anyone else think it's time for a change? Law professors can act locally, of course, but competition on quality, through the U.S. News rankings, is the easiest way to do this globally and bring about the change we need. In the Voters' Guide we published earlier this week, we highlighted a set of schools that use "best practices" in legal education such as multiple assessments, feedback during the semester, and less reliance on time-pressured exams -- if U.S. News voters would award these schools high marks, we could have a race to the top that would help students learn more and better, and make law schools more meritocratic.

You can contact us at rtttlaw@gmail.com if you want to help; we could use it. In the meantime, I'll shut up for a while until after this other election. Thanks for listening.

Average and Marginal

I think being a scholar and being a good teacher overlap. I am not convinced that writing and being a good teacher overlap. I have a small sample on this but some of the brightest and most insightful law professors I have known do not write very much. (Maybe they actually know something the rest of us have missed.) On the other hand, some of the least interesting have a list of publications a mile a long.

Even though being a scholar and good teacher may overlap I am not sure they are commensurates. If they were, we could come up with a measure of law teacher performance that accounts for both. I don't have a good label for that like economists have for all things good -- utility. But let's say it is called "condex" (as in contribution + index) and each faculty member would have a condex number based on scholarship and teaching. (I leave out service because at many schools service is directly related to what the dean asks you to do. If you are among the "ins" or really annoying, the dean appoints you and then awards you for doing what ever it was.)

So everyone has a condex number and there is a faculty average condex. This would nice because we could then get into the process of raising the average by working at the margin. By margin here I mean any change. For example if the average height of a basketball team is 6' 5" we raise the average by adding a player who is taller than the average. The new player is at the margin.

In faculty tenure decisions, the only way to raise the average condex is to tenure people who are above the current average. In effect, this means saying no to people who are better than nearly half of the existing faculty. It's hard to do but existing tenured faculty who are unwilling to do it (because, let's say and as I have heard, it would upset things socially) are shirkers. In fact, a claim that someone should be tenured because he or she did more that an already tenured person -- or even half of the tenured faculty -- is a non starter and a sure way to stagnate a faculty. Existing tenured faculty, above or below average, are sunk costs.

But what if a school really has aspirations? Does the average/marginal analysis work then? Going back to the basketball analogy. Suppose the team average is 6'5" but your goal is to have a team that averages 6'8". Now the strategy changes and the players in the 6'5" to 6'8" range should be skipped. Sure, adding a player who is 6'7" gets you closer to where you want to go but at the same time increases the size of the base you are attempting to improve on and uses up a roster spot for a 6'11" player.

So too with law faculties. A faculty dedicated to improving itself should understand and be willing to reject people who are actually better than half or even most of the incumbents. Adding someone near the average does little and actually hurts in the long run.

Law Schools Competing On Quality

Why should anyone care about the stupid U.S. News survey anyway? According to a commonly held view, the rankings are silly, and the thing to do is ignore them. But I think this view is quite misguided.

It turns out – and this is the basic premise of the Race to the Top project that I helped start recently -- that a major obstacle to the improvement of legal education generally is the lack of competition on quality among peer institutions, and that this lack of competition also leads to other bad consequences for law schools like spending lots of money on buying LSAT scores and shifting full-time students into "part-time" programs. And the easiest way to address both sets of problems is by taking the U.S. News rankings more seriously, not less, and focusing on this survey.

What would such competition look like? In the Voter's Guide we sent out earlier this week to U.S. News voters, we said: "For example, take Penn and Northwestern, two national schools that compete for students and are close in the overall rankings. Both have very high student satisfaction and bar passage rates. But consider the curricular differences in areas particularly important in preparing students for practice: Northwestern has top-10 (or close) legal writing, clinical, dispute resolution and trial advocacy programs in last year's U.S. News surveys of faculty in these fields. Penn is not ranked in any of these areas, and is one of the few remaining law schools that uses third-year law students to teach 1Ls legal research and writing. Northwestern is also moving towards an increasingly innovative, practice-oriented curriculum, all of which suggests that Northwestern has a higher-quality J.D. program than Penn."

This kind of head-to-head comparison is completely lacking -- there's been no information out there on the relative quality of the education provided at different schools -- and as a result, U.S. News voters simply replicate the previous year's overall US News rankings when filling out the surveys. Glossy brochures notwithstanding, these quality assessment ratings rarely change from year to year, and when they do change over time, it is in response to a shift in a school's overall ranking (driven by higher LSAT scores, for example), not any underlying shift -- of reality or perception -- on the quality of the JD program. By the way, if you don't like the criteria used above to compare schools, would love to hear what existing data you would look to instead in assessing the relative quality of a school's JD program.

To understand why the lack of competition on quality has other bad consequences, recall there are four basic components of the U.S. News formula:
40%: Quality Assessment, from surveys of law professors (25%)
and lawyers/judges (15%)
25%: Student Selectivity, from LSAT Scores (12.5%), UGPAs (10%),
and Acceptance Rate (2.5%)
20%: Placement Success, from Emp rates at graduation (4%), 9 months
out (14%), and Bar Passage (2%)
15%: Faculty Resources, from Expenditures per student (11.25%),
Student-Faculty Ratio (3%), and Volumes in Library (.75%)

So since schools can't move up on the quality factor (40%) in the rankings, what do they do? They start competing on the next biggest category in the U.S. News formula -- LSAT scores and undergraduate GPAs -- by emphasizing these things more in admissions, and throwing money at (buying) higher credentials. Bill Henderson provides evidence of this trend here. How much money is your school spending on "merit-based" financial aid, and how is merit determined? I'm guessing it's not based on valuable graduate training in another discipline, interesting work experience that indicates potential excellence as a lawyer, or being the first in the family to go to a professional school.

Are we really any better than Baylor, which literally paid people to retake the SAT? I'm not so sure. Here's our deal: take that Kaplan course if you can afford it, work really hard studying for the LSAT, and if you're speedy enough, we'll give you a full ride. Sounds like paying for LSAT scores to me; we're only a tad more subtle.

The good news is we can fix this if we want to. It's actually not this pesky magazine controlling our priorities -- we (law professors and lawyers) control the U.S. News rankings, 40% of it, the largest category by far. If we have real competition on quality, there will be less need for schools to compete on other things. We just need to get enough information flowing to make competition on quality possible, and then start filling out the survey accordingly. I hope those voting this month and next will start now.

Introducing the First Voter's Guide to U.S. News

It's the final days of the election for many law professors: that is, the U.S. News survey asking voters to assess the quality of each school's JD program is due on Thursday. The Race to the Top project, which Dave Fagundes and I started a few months ago, just put out our first Voters' Guide in time for the final voting from the academy, and in advance of the lawyers/judges survey next month. We emailed it yesterday to all the law professor voters, but if you didn't get it by chance, you can download it at our website here.

For another indicator of the quality of the JD program, look at the student satisfaction data extracted from The Princeton Review by Paul Caron over at TaxProf Blog -- the key is to compare peer institutions in order to give different ratings to competitors, and thereby promote competition on quality. If everyone in the top 20 gets the same score -- a "5," for example -- then they just end up competing on who can throw the most money at students with high LSAT scores. This is essentially the status quo.

Over the next few days, I'll say more on why people who care about things like justice and meritocracy should care about this U.S. News survey -- yes, there's a presidential election, a global economic crisis, a quite-possibly innocent man about to be executed here in Georgia, and a few other things -- but this isn't just navel-gazing. It matters.

Why legal writing matters

Rick Garnett contests a point that Jason Solomon made recently on MoneyLaw: legal writing is too important to consign to third-year law students. In commentary on Rick's Prawfsblawg post, Larry Rosenthal makes some powerful points:

1. Legal writing is an awfully important skill. It is probably the only skill that employers will expect recent graduates to have . . . .


2. Successful legal writing is a difficult skill to learn. I spent many years supervising young lawyers in a rather sophisticated appellate practice. Rarely did a recent graduate display much competence until after at least a year of work. . . .


3. It is extremely unlikely that someone who has cannot write well will be [a] successful teacher of legal writing. Yet, substantial experience is generally a necessary if not sufficient condition for being able to write well. . . .


4. The typical 3L has very little writing experience — the 1L [legal research and writing] curriculum, maybe a law review note, and a few memos produced at a summer job that probably were not very good.


5. A law school that hires individuals with enough experience to have a high level of briefwriting skills and the ability to teach them will confer on its students a substantial advantage in the job market.

That last point, it bears remembering, goes to the heart of why law students burn a thousand days and often incur more than $100,000 in undischargeable debt: to get jobs.

Profs playing poker

In academic life, nothing is certain except death, taxes, and strategic voting on faculty appointments. The emergence of a strong candidate poses a serious dilemma for incumbent faculty members who approach prospective appointments with a strictly selfish agenda of maximizing private utility. Having smart colleagues enhances the faculty's overall reputation. But introducing a smart colleague also threatens to disturb the faculty's existing pecking order. Payouts from enhanced reputation are shared and diffuse. By contrast, selfish professors perceive significant losses from their (probably exaggerated) fears of diminished relative status within the faculty. As a result, this sort of self-interest often counsels suspicion, publicly expressed doubts, and eventually a negative vote on an otherwise deserving appointments candidate.

In her description of an idealized research scientist, whose "preference satisfaction requires that there be a vibrant research community in which she can participate," Katherine Strandburg provides a vivid metaphor that aptly describes the inherent tension in strategic voting on faculty appointments:

[T]he [academic] community is somewhat analogous to a poker club. People join the club because they enjoy a good game of poker. They want to win because the resulting take will provide the stakes for their participation in the next round, but winning everything will end the game. Moreover, when the question of admitting new members to the club arises, the players have mixed motives — admitting less competent players increases the present members’ chances of winning, but undermines the quality of the game, making it less enjoyable for the members both collectively and individually.

Curiosity-Driven Research and University Technology Transfer, 16 Advances in the Study of Entrepreneurship, Innovation and Economic Growth 97 (2005), reprinted in University Entrepreneurship and Technology Transfer: Process, Design, and Intellectual Property 93, 101 (Gary D. Libecap ed., 2008).

Selfishly strategic voting damages academic values in general and the well-being of the affected faculty in particular. As Brett Dennen would say:

There ain’t no reason things are this way It's how they always been and they intend to stay I can't explain why we live this way We do it everyday.

The public-regarding members of a faculty face a remedial task that is much more easily proclaimed than performed: change the terms of the game of academic poker so that this sort of strategic voting yields lower private payouts. The size of the pot — perhaps even the poker game itself — hangs in the balance.

Smoot

»  Reprinted from The Cardinal Lawyer  «

October 2008 marks the fiftieth anniversary of the night that immortalized the name of Oliver R. Smoot. In 1958, Smoot was a freshman at M.I.T. and a pledge in the Lambda Chi Alpha fraternity. On the evening of October 4, Smoot's fraternity brothers decided that he had the right height (5 feet, 7 inches) and the right name to serve as a human yardstick for measuring the Massachusetts Avenue Bridge between Cambridge and Boston. Over and over the brothers of LXA tumbled Oliver Smoot. When the night was over, Lambda Chi Alpha triumphantly declared that the Mass. Ave. Bridge spanned 364.4 Smoots, plus or minus one ear.

After graduating from M.I.T., Smoot literally set high standards. He earned a law degree at Georgetown. Smoot went on to serve not only as president of the International Organization for Standardization (ISO), but also as chairman of the American National Standards Institute (ANSI). Upon his recent retirement from ANSI, Smoot gave lengthy interviews to his alma mater, the Washington Post, and National Public Radio.

The Smoot is now a unit of measurement corresponding to 67 inches, or 170.18 centimeters en système métrique. Google Calculator and Google Earth offer users the option of calculating distances in Smoots. Just remember that 10 feet equals 1.79104478 Smoots.

Here's why Smoot matters to education:Oliver Smoot's long, restless night in October 1958 made his name synonymous with the student as a unit of measurement. His fraternity brothers envisioned the measurement in question solely in terms of distance. They can be forgiven for their shortsightedness; they were merely engineers, after all, not lawyers, let alone full-time educators or academic administrators. A little bit of visionary academic leadership readily transforms the Smoot into a unit of financial measurement.

The Massachusetts Institute of Technology has never confirmed or denied my suspicion, but I imagine that young Oliver Smoot paid full fare to attend M.I.T. In financial rather than spatial terms, a year's tuition equals one Smoot. To be sure, the precise measure of a Smoot varies locally — public in-state tuition, public out-of-state tuition, and private tuition notoriously and dramatically vary. But from the student's perspective, a Smoot is a Smoot. One Smoot represents the amount, net of grant-based financial aid but not of student debt, that a student must pay her or his school for one year's instruction.

It turns out that the Smoot is an extraordinarily powerful measure of academic finance. Schools can best honor their obligation to their true constituents — the people who pay for the entire educational apparatus and experience — by measuring, and (ideally) justifying, their expenditures according to how many students must pay full tuition in order to finance a particular item of spending. At the University of Louisville School of Law, for instance, a single in-state Smoot can fund the nonsalary portion of the budget of the career services office. If supplemented by a student technology fee and a modest budgetary allocation from the University of Louisville's central budget, two Smoots will cover the Law School's ordinary technology needs for a year. Three Smoots will give every willing student at the Law School the chance to take part in an intercollegiate moot court competition. A full year's expert instruction, in the form of a tenure-track or tenured professor, costs anywhere between five and ten Smoots. And so on.

Despite their legendary competitiveness, law students rarely if ever flip their junior counterparts end over end simply to make an intellectual point. But like their counterparts in engineering, nursing, medicine, business, music, and the liberal arts, law students do pay tuition. I promise to run this Law School on the same basis my students pay for their education: One Smoot at a time.

The University of Louisville's law faculty SSRN aggregator page

»  Reprinted from The Cardinal Lawyer  «

The University of Louisville is justifiably proud of its law faculty and of the high-impact academic work generated by this community of scholars. In earlier posts (like this and this and this), The Cardinal Lawyer has made much of SSRN.Despite its small size, and despite having taken active part in SSRN for less than two years, the University of Louisville ranks 41st among American law schools in recent SSRN downloads and 57th in all-time downloads as of October 12, 2008.

Many law professors and some law schools make an effort to promote papers available for download from SSRN. The University of Louisville has taken aggressive measures to promote its entire faculty's SSRN portfolio. Louisville publishes an SSRN aggregator page that collects every faculty member's contributions to the SSRN database as they are made. A summary of each article, complete with a link to that article's own SSRN page, appears on the aggregator page. And best of all, in harmony with Law 2.0 and the thoroughly interconnected environment in which contemporary legal education operates, the University of Louisville's faculty SSRN aggregator page has its own RSS feed .

Louisville's own SSRN aggregator page complements but does not replace the University of Louisville School of Law Legal Studies Research Paper Series on SSRN. This series has its own subscription mechanism. Like other subscribers, I receive periodic updates by e-mail and can click through to my colleagues' most recent work.

One byproduct of Louisville's faculty-wide SSRN aggregator is an individual SSRN aggregator page for each member of the faculty. Consider, for example, the SSRN treasure troves associated with my colleague, Judith D. Fischer. Judy's University of Louisville-generated SSRN aggregator page and regular SSRN page testify to a prolific and creative mind. For my own part, I am considering the possibility of linking to my own UofL-generated SSRN aggregator page wherever I have already seen fit to promote my regular SSRN page. Through its facility with scripts and feeds, Louisville's information technology staff has given the entire faculty many weapons for heightening awareness, within the academy and among members of the public at large, of the powerful legal scholarship being generated at the University of Louisville.

Small ball

Philadelphia Phillies general manager Pat Gillick has long been a MoneyLaw favorite, and not simply because his team has passed the New York Mets on the last day of regular-season play two years in a row. As Gillick's Phillies prepare to face the Tampa Bay Rays in the 2008 World Series, MoneyLaw can learn some lessons from one of baseball's wiliest, quietest assemblers of talent on the cheap.

Lovers of melodrama may wish that this year's fall classic would have pitted the Los Angeles Dodgers' Manny Ramirez against his old team, the Boston Red Sox. Network executives hungry for bicoastal eyeballs and advertising revenues certainly miss Manny. In MoneyLaw terms, though, the downmarket Phillies and Rays will supply more compelling baseball.

ESPN writer Jayson Stark explains how heavily the National League champion Phillies depend on low-profile, low-salary role players:

The Phillies . . . are never the team that makes The Big Move. They don't sign the richest, most famous free agent on the market. They don't trade for the most seductive name on the July trading-deadline menu.

Instead, they skulk along below the talk-show radar, looking for names that never make the lead story on "SportsCenter," sometimes names that barely even dent the transactions column. . . .

Those aren't players you build a team around. They're not the names you'll find on the grand World Series marquee. But add them to a cast of homegrown stars . . . and here's what those guys become:

Players you win with.

Finding those kinds of players has been the house specialty of GM Pat Gillick for, oh, about three decades now. And 11 trips to the postseason later, with four different franchises, it's beginning to look as if he's onto something.

Pat Gillick "paid extra-special attention to . . . smaller details — and to how those little moves helped glue their bigger pieces together." Stark summarizes "the moral of the 2008 Phillies" in these terms: Winning isn't always about dollars. It isn't about the trading deadline. It isn't about making headlines during free agency season. "It's about finding pieces of all shapes and sizes — and then making them fit."

Of seven under-the-radar players that Jayson Stark has identified as key contributors to the 2008 Phillies' success — Matt Stairs, Jayson Werth, Greg Dobbs, Scott Eyre, J.C. Romero, Chad Durbin, and Jamie Moyer — the Phillies signed three as free agents for barely more than $2 million combined (roughly one percent of the salaries that the New York Yankees paid this year so that their team could begin golfing and fishing in October), traded for another three by giving up four lightly regarded minor leaguers, and claimed yet another off waivers. This is what they delivered:

• "The three hitters combined for 35 homers and a .283 average in 661 at-bats."


• "The four pitchers went 28-15 with a 3.27 ERA and two saves in 357 1/3 innings."

Make no mistake. Those are fantastic results. Law schools would be ecstatic to enjoy comparable results from subtle little moves involving entry-level hires, relatively junior lateral hires, and incentives to reward high-yield incumbent talent.

I hasten to add that the Tampa Bay Rays are a compelling story in themselves. They won the American League pennant with the lowest payroll in the AL and the second-lowest payroll in Major League baseball. In terms of marginal wins per marginal payroll dollar, the Rays were baseball's most efficient team. Pat Gillick's Phillies will have to work to beat the Rays' highly accomplished southpaw, Scott Kazmir. Most New York baseball fans will recognize Scott Kazmir. Since 2004, he has been dealing for Tampa Bay. Yankees fans see plenty of him every year on the YES network. Mets fans get to imagine what might have been, because Mets management dealt him for very little short-term gain at the 2004 trading deadline in a failed drive for the NL East title. This October, Kazmir will face Pat Gillick's Phillies in the World Series. New York's two royally paid Major League baseball teams will get to watch — on television.

Penn's Rankings Problem

As U.S. News voters figure out what rating to give each school, and start focusing more on educational quality, Penn Law seems to be quite well-positioned -- sky-high student satisfaction ("academic experience" rating of 96 in Princeton Review), great bar passage rates, on curriculum, we'll have to see what they submit for their "Best Practices" survey today (thanks to all who have submitted so far!).

But Penn faces a real ceiling on these "quality assessment" surveys: its legal writing program. Like Yale, it's taught by 3Ls. This ceiling prevents Penn from having an "outstanding" JD program ("5"), instead, I'm inclined to think they should get a "4" ("strong"). Particularly where one of its chief competitors, Northwestern, has top-10 legal writing, clinical, dispute-resolution and trial advocacy programs (Penn's nowhere on any of these lists, from last year's U.S. News surveys) and an increasingly innovative, practice-oriented curriculum, all of which point to a "5" in the survey, Penn needs to fix this soon.

Here's what the recently released Princeton Review "Best 174 Law Schools" says: "The only gripe that many Penn students express is with the first-year legal writing program. While some report positive experiences, many complain that the program is of poor quality and 'instructed by third-year law students that often don't have a lot of real-world experience outside of the summer clerking opportunities.'"

Remember, the question in the U.S. News survey is to rate 1-5 the quality of the school's J.D. program, and so some relevant indicators include: bar passage rates relative to entering credentials; levels of student engagement and satisfaction from the recently released Princeton Review law school rankings <http://www.princetonreview.com/law-school-rankings.aspx?uidbadge=%07> and implementation of findings from the Law School Survey of Student Engagement; and the strength of the curriculum, particularly in critical areas like legal writing and clinical offerings.

Why give so much weight to legal writing? Three reasons: (1) one of the most important skills for lawyering; (2) arguably the most important class in law school (I think so); and (3) frequent complaints from lawyers about new graduates' ability to communicate effectively in various forms.

So Penn, it's time to spend some money on real legal writing professors. The people who head Penn and Yale's progams may be terrific, but there's only so much one person can do. The law student instructors may be doing a good job given what they know, but... they're law students. Georgetown has moved away from this model in last few years -- are there any more schools out there that still do this? My colleague Hillel Levin's excellent and ongoing series of posts on legal research and writing didn't even mention this 3L model -- I assume, because it's so rare these days.

Last year, Penn's quality assessment # was 4.4 from lawyers/judges, and 4.3 from law professors. I would have been inclined to recommend giving Penn a "5", and still want to see what they submit on Best Practices of course -- but until Penn beefs up legal writing, I'm inclined to give Penn a "4" and hope you do the same.

Criticisms of this approach to the survey are always welcome, but you need an alternative. Right now, hundreds of professors and next month, lawyers, are doing the survey, mostly based on no information at all, and in the process, profoundly shaping the institutional incentives facing law schools.

Bar Passage: A Key Factor to Look To in USN Voting

For those filling out the U.S. News survey rating the academic quality of JD programs across the country, one logical question is what kind of information one ought to look at to make such determinations. Here's one key piece of data: bar passage rates relative to entering credentials.

So if we look at schools that have students with not-great entering credentials, but high bar passage rates in recent years -- that's a good signal that the quality of the JD program is relatively strong.

Two possible objections (and others welcome) on this as a metric: first, this encourages and rewards "teaching to the bar." My response is: well, the school that has pulled off one of the biggest bar-passage miracles of recent times, New York.Law School, raised bar passage rates -- 57% to 90% -- primarily by teaching struggling students analytic skills. See Dean Matasar's description of how they did it here (p. 3 of pdf). Intensive training in analytic skills for struggling students? Sounds good to me.


Second objection is: bar passage is already included in the U.S. News formula -- why double count it? The response is: bar passage counts for next to nothing (2%) in the US news formula, and it's considered on an absolute, not relative, basis. So Yale gets essentially the same credit for achieving a 90% bar passage rate in New York as New York Law School does, working with students with far lower entering credentials.


Below is the list we have so far, and thanks to Bill Henderson for pointing us in the direction of some of these schools. I'm quite sure we're missing some, and we're working on finalizing the list for that Voters' Guide out next week -- so please let us know other schools that might be considered to be in this category.

Schools that Achieve High Bar Passage Rates Relative to Entering Credentials:
Campbell (NC)
Cardozo
Duquesne (PA)
Florida Coastal
Florida International
Mercer (GA)
New York Law School
North Carolina Central
Northeastern
Texas Tech
University of Memphis
University of San Francisco

Voter Fraud in U.S. News Surveys?

In ranking law schools, U.S. News and World Report weights peer reputation more heavily than any other measure of quality. A school's reputation among its peers counts for 25% of its overall score in the rankings (the next-most important measure, in contrast, counts for only 15%). How does USN&WR calculate a school's peer reputation? It says that it relies on surveys sent to "law school deans, deans of academic affairs, the chair of faculty appointments, and the most recently tenured faculty members" of each of the ABA-accredited law schools that it ranks. In truth, however, other people also get the chance to vote on USN&WR's reputation surveys.

Two people recently and independently told me that they had received USN&WR reputational surveys even though they do not fit any of the criteria—law school dean, dean of academic affairs, etc.—that USN&WR has published. Both people work at law schools. One of my informants told me that he/she got the forms both at his/her present employer and at a law school she worked at earlier. My other informant told me that he/she knows of a similarly situated person who likewise got an apparently unauthorized USN&WR reputation survey. Both informants asked that I not identify them—hence my coy phrasing—but their claims strike me as completely credible.

Those few anecdotes do not, of course, establish how often USN&WR sends reputation surveys to people other than those it (says it) intends to poll. Notably, however, the reports I've received came to me unbidden, simply because I have a reputation as a rankings geek. Query how many more such cases a comprehensive investigation would uncover; a lot, I'd guess.

Query, too, whether USN&WR really means to send surveys to people such as those who contacted me. Perhaps it has a "secret list" of reputation survey recipients, people whose opinions it holds in high regard but whom it wants to safeguard from the taint of law school public relations campaigns designed to influence USN&WR voters. Yet another caveat: Perhaps USN&WR manages to screen out reputation surveys that get filled out and returned by unqualified parties.

We thus have, as yet, no solid proof that voter fraud materially affects the way that USN&WR ranks law schools. We do, however, have reason to wonder whether the most important part of USN&WR's rankings really works as advertised.


[Crossposted at Agoraphilia, MoneyLaw, and College Life O.C.]

Mike Alstott: An all-MoneyLaw fullback

Fullback is a football position that MoneyLaw simply has to admire. It lacks glamor — fullbacks are usually asked to block, and most of them weigh less than other blockers, let alone would-be tacklers. When fullbacks run the ball, they leave glamor behind in their pursuit of yards. No speed, no agility, just raw power on power.

The Tampa Bay Buccaneers will honor retired fullback Mike Alstott this weekend. So should MoneyLaw. ESPN writer Pat Yasinskas explains why:

I think about [Mike Alstott] every year when the draft comes around and people start talking about 40-yard-dash times, vertical leaping ability and potential.

I was sitting in Tampa Bay general manager Rich McKay's office one day during the 1997 season when Tony Dungy's Bucs were just starting to get good. I was working on a story about how the Bucs had used the draft to build this team. We started to talk about Alstott and McKay made a comment that floored me and, then, made me realize how brilliant it was in its simplicity. . . .

"When we drafted Mike Alsott, we drafted a guy with absolutely no potential," McKay said. "We knew he wasn't going to get any better than he was. But he was already a very good football player and that was good enough for us."

Moral of the story: Take the guy that's the good football player over the guy who is just an athlete. The football player has produced. The other guy just has potential. Production should be more important than potential.

Once again, as in football, so too in academia. Production matters more than potential.

The Next Front in the Rankings War: Paying Admitted Students to Retake the LSAT?

I previously blogged the rankings implications of the new early admission programs at Illinois and Michigan for admitting their undergrads without taking the LSAT. Today's Chronicle of Higher Education and Inside Higher Ed bring news of the next front in the rankings war: paying admitted freshmen to retake the SAT and offering large financial rewards for those whose scores go up by certain levels. This rankings dodge would work for law schools, since the ABA now requires schools to report a student's highest LSAT score among multiple tests. We'll see if any law schools will incentivize the entering Fall 2009 class to take the February 2009 LSAT. For more, see TaxProf Blog.

And the Winner of the "Best Law Porn" Award is...

UCLA! We can judge "law porn" -- the glossy brochures that arrive in the mailboxes of of law professors, lawyers and judges this time of year -- on any number of dimensions: aesthetics, weight, ability to convey excitement, number of articles in top journals per square inch, etc.

My key metric is relevance, and that' s where UCLA's submission this cycle stands out. After all, these mailings are not just designed to create warm and fuzzy feelings towards the school, though they are that. They are designed to get the recipients to answer a particular question asked by U.S. News -- rate the "academic quality of their J.D. program" on a scale of 1-5 -- higher than the person would otherwise.

And to answer that question, the cover story of UCLA's law-porn magazine, "How UCLA Law Trains Lawyers", available here (see p. 34 of the pdf), provides highly relevant information on things like curriculum and the use of pedagogic techniques backed by research on learning theory. I read about how UCLA offers skills-oriented courses for transactional practice, which more law schools need and students want, and I'm turning my internal U.S. News dial upward.

In contrast, the glossy lists of articles provided by most schools -- and I actually like the glance at who's writing what during the 10-second stroll from my mailbox to my office -- provide next to no information to help answer the question U.S. News asks, and what consumers want to know: the quality of one law school's J.D. program versus its competitors.

After all, there's no point in comparing Harvard to Baylor: In filling out the survey, you want to speak directly to the U.S. News consumers -- prospective students who have particular LSATs and GPAs and a limited set of choices, and prospective employers who have a particular place in the market, and will choose from a certain set of schools on where to hire. The role of law professors and lawyers in the U.S. News formula is to assess the quality of one's school's legal education versus another, the "value added" to a particular student who enters law school with certain analytic and other skills, and will emerge with some additional training of relevance to being a lawyer. UCLA or USC? NYU or Columbia? Baylor or Texas Tech?

Of course, we can't just listen to the schools' own propaganda: we can look to other indicators like bar passage rates relative to entering credentials; levels of student engagement and satisfaction from the recently released Princeton Review law school rankings and implementation of findings from the Law School Survey of Student Engagement; and highly-rated programs in critical areas like legal writing and clinics. To get more information relevant to the quality of schools' JD programs, the project I helped start a few months ago, Race to the Top, has a survey out to all law schools, available here, on the degree to which they use "best practices" in legal education -- it's due this Friday, October 17.

Early next week, we'll deliver some information directly to U.S. News voters in law schools (you can sign-up for the "Voters' Guide" here) about how certain schools do in these categories, and again next month when lawyers and judges receive their survey -- as far as we know, this is the only information they'll get from a source other than the schools themselves to help fill out the survey. This will just be a first cut, and will simply highlight schools that are strong in at least one of these categories.

There will be other opportunities to be highlighted in the months ahead, and we don't quite have enough data yet to do a more definitive list of top "value added" law schools that score highly on a range of these indicators. But this time of year -- US News voting time -- is a critical time in the life of law schools and those that inhabit them. Let's take advantage, and create a race to the top in legal education.

For now, I'm thinking UCLA could be in the "outstanding" ("5") category, but would welcome thoughts.

The accidental administrator

Als Gregor Samsa eines Morgens aus unruhigen Träumen erwachte, fand er sich in seinem Bett zu einem ungeheueren akademischen Verwalter verwandelt.* * As Gregor Samsa awoke one morning from uneasy dreams he found himself transformed in his bed into a monstrous academic administrator.

The AALS hiring combine is upon us. These days, hardly anyone gets a law teaching job who doesn't appear in the AALS's Faculty Appointments Register. Among the hundreds of candidates who will vie for a tenure-track appointment, surely a few future deans, provosts, and presidents lurk. Yet few if any of those candidates will imagine themselves destined for administrative rather than academic work.

A friend of mine with no professional connection whatsoever to academia brought to my attention a fascinating essay by Sharon Stephens Brehm, an academic psychologist whose career has included stints as president of the American Psychological Association and chancellor of Indiana University at Bloomington. Chancellor Stephens Brehm writes:

[I]n 16 years as an academic administrator, I never met a student or a faculty member who said that his or her goal in life was to be a provost . . . . On the other hand, I have met a fair number of students (but no faculty) who said they wanted to be a college or university president. Students aspiring to a presidency are always a bit startled when I tell them that to want to be a president is equivalent to wanting to be a basketball player after spending several decades as a figure skater. Because most presidents in higher education have a doctoral degree and initially are employed full-time as a professor, their original motivation was to teach and contribute to their discipline through scholarship, research, or creative activity. Surely there are some individuals who decide early on that they want to be a president (or provost or dean), but typically academic administration is an unanticipated, often accidental diversion from one's original academic career path.

Sharon Stephens Brehm, Coming Full Circle: From Academe to Administration to Academe, in Career Paths in Psychology: Where Your Degree Can Take You (Robert J. Sternberg ed., 2d ed. 2006).

Chancellor Stephens Brehm's essay makes fascinating reading for three categories of people:

1. Anyone contemplating the jump from academe to administration.
2. Anyone who has made the jump and still wonders what happened that odd morning after a night of uneasy dreams.
3. Anyone interested in ensuring that academia attracts, retains, and rewards the best administrators available to it.

I plan to return to this theme from time to time — probably whenever I feel that special tingle in my antennae.

U.S. News Survey: Vote Quality, Not Reputation

The U.S. News surveys -- the primary determinant of the overall rankings -- are now in the boxes of hundreds of law professors around the country, due in a few weeks. Next month, it's the lawyers' turn. Discussion in the blogosphere and elsewhere have referred to these as "reputation" surveys, which is misleading -- so let's stop doing so. Respondents are supposed to be actually assessing the quality of each school's JD program. U.S. News used to call them "reputation" surveys, but has not since 2002. The label, nonetheless, persists. This may seem like a small point, but I think it's quite important.


Here's what U.S. News asks law professors: "Identify the law schools you are familiar with, and then rate the academic quality of their J.D. program at each of these schools. Consider all factors that contribute to or give evidence of the excellence of the school's J.D. program, for example, curriculum, record of scholarship, quality of faculty and graduates."


U.S. News calls this its "quality assessment" surveys. They're asking law professors as experts on legal education, not as experts on public opinion ("reputation"). And lawyers and judges are asked the same thing as experts in lawyering (to assess "academic quality") except they are asked to particularly consider the degree to which schools prepare students for practice.


So if you were considering Yale, for example, and thought the question was what is the school's reputation on a scale of 1-5, of course the answer is "outstanding" ("5") or at least "strong" ("4") -- after all, it's the #1 law school in the country, according to the dominant rankings system! But if you were actually assessing the quality of their J.D. program, you might take into account the low student satisfaction ratings relative to their peers; the bar passage rate in New York, where most of its graduates take the bar, that were lower than Cornell and Cardozo last year, among others, despite its students having the highest entering credentials; and the fact that first-year students get most of their feedback in Legal Writing from upper-level law students, leading to legions of complaints from lawyers and judges about the work product of Yale summer associates and entry-level lawyers. And so you might say that the academic quality of the school's J.D. program was more like "adequate" ("2") or "good" ("3"), and rate the school as such.


By sticking with "reputation," we're not answering the question (as we often scold our students for doing), and also saying it's OK to answer the survey year after year according to last year's U.S. News rankings (which after all determine reputation) and in the absence of any real information on relative educational quality. The result is no competition on the quality of the service provided (legal education), and instead various attempts to "game" the rankings by buying LSAT scores (how much does your school spend on this practice?), shifting students into a part-time program, reducing the size of the first-year class, and other devices.


Time for a change. For a different approach that actually focuses on assessing quality, see here, and I'll have some more thoughts on available indicators to look to in the days ahead. And no, faculty scholarship, which has little to do with the quality of a school's JD program and is a poor proxy, won't be one of them.

Are SSRN and USN&WR All That Different?

Like many others I make use of SSRN. But then again I also read the USN&WR rankings. Now I think they may be equally meaningful or meaningless. Recently a friend and I coauthored an article and posted it. In a few days we were receiving the top ten for recently submitted articles. It's not that the number of downloads was high. It was that most of the top ten categories were quite narrow. So, we racked up this honor for "Randomized Social Experiments and SE: Primary Taxonomy (Topic)." Actually I do not know if this is one or two categories nor what our paper could possibly have to do with "experiments" however defined. Maybe the word "Malthusian" in the title explains it. After all, the last time I looked one of the top downloads was "Fuck."

And then there was the notice for the same article informing us that we climbed to the top ten in "PT: Tax Policy (Topic) and SE: Primary Taxonomy (Topic)." And another notice for "PPTSR: Other (Topic), PPTSR: Other (Topic) and PT: Tax Policy (Topic)." I am just quoting these notices but it appears that there are four different ones.

Like USN&WR this seem pretty meaningless to me. Yet like USN&WR my fear is that these top ten lists are taken seriously. Are they going to begin appearing in decanal glossies? Will SSRN finally get to the point of creating a category for each professor so we can all be in the top ten in something.

Increasingly SSRN reminds of the letters I get telling me that my son has been "elected" to the Who's Who of High School Students and all I have to do is pay $50 to have his name listed and receive a copy of the book. Oh, and I need to fill out a form about my son because they actually do not know anything about him.

Is SSRN "false applause" similar to USN&WR? Maybe. In the day of cost free downloading I think it is similar. It is as subject to manipulation? Sure it is. The right title will get you a glance and maybe even a download whether the article is read or tossed in recycling after gathering dust for a few weeks. Or just write to everyone cited or thanked to alert them to your new posting and BAM! you've got a bunch of download right there. And then you can tell your Dean or list it on your resume. You are so important!

Schattenfreude: Endlich ein juristischer Ausdruck

I owe a debt of gratitude to Hubert Humphrey, Pete Townshend, Mick Jagger, Allen Tate, and William Wordsworth. Schattenfreude, an idea that has obsessed Jurisdynamics in image and in word, has finally found an explicitly legal expression. I invite you to read about the legal treatment of Schattenfreude at The Cardinal Lawyer.

What IS a good part-time program?

Over on my own blog, I've talked a bit about the new part-time program rankings that USNWR is proposing and the new part of this year's questionnaire that asks voters to name up to 15 "good" part-time programs (see here). Setting aside the misnomer--most of the students in the part-time programs work about full-and-a-half-time, between their "day jobs" and studying for law schools--I have to wonder what constitutes a "good" part-time program.

Is it the availability of good teachers for the program? A good selection of classes? Mentoring for the part-time students? The ability to provide the students with some semblance of the extracurricular activities that the full-time students experience? How well the graduates perform? Whether enough of the graduates get plum jobs after graduation?

This question is timely for two reasons: because it's the right question for educational reasons and because other USNWR voters are filling out their ballots now. I'd love to hear your thoughts.

Fall guys

	October is the cruelest month, especially if you spend foolishly

Hail October, once again, and in 2008 as in 2007, the Mets' pain is MoneyLaw's gain. For the first time in 15 years, Major League Baseball will conduct a postseason blissfully devoid of New York teams. For the first time in 102 years, both Chicago teams are represented. And somewhere between those free-spending states of mind, Florida is home to the sport's most efficient teams.

In the balance of this post, I promise, there lurks a MoneyLaw payoff . . . .Long, long ago, in a post called Marginal MoneyLaw: What law schools can learn from bad baseball teams, I extolled the famed sabermetrician Doug Pappas's Marginal Payroll/Marginal Wins formula as a model for understanding shrewd and spendthrift approaches to academic spending. The extremely abbreviated version of the story is this: Armed with nothing more than each Major League team's salary, the MLB Players Association's minimum salary (currently $390,000 per year), baseball's final regular season standings, and some empirically justifiable assumptions about minimal competence in baseball, you can compute how much in marginal payroll each team paid for each marginal win over the .300 winning percentage that a team of 25 minimum-wage ballplayers (plus three comparable players on the disabled list) would have delivered.

Comparing the marginal payroll/marginal win ratio with a team's final record yields four categories:

1. Low payroll, winning team: an efficient team that made the most of limited resources.


2. High payroll, winning team: a wealthy team that bought its way to success.


3. Low payroll, losing team: a team that didn't spend enough win, or otherwise failed to leverage its modest spending into competitiveness.


4. High payroll, losing team: lousy, free-spending management. Hardcore baseball fans will enjoy this list of the most bloated and underperforming teams of the past two decades.

The analogy to academic management should be obvious.

I have uploaded a set of spreadsheets calculating marginal payroll per marginal win for all Major League Baseball teams in 2008. The following table expresses MP/MW for all teams in descending order of winning percentage:

Team	Payroll	Winning %	MP/MW
LAA	$119,216,333	0.617	$2,106,933
CUB	$118,595,833	0.602	$2,197,355
TB	$43,820,598	0.599	$679,764
BOS	$133,440,037	0.586	$2,640,518
PHI	$98,269,881	0.568	$2,012,670
MIL	$81,004,167	0.556	$1,692,854
NYY	$209,081,579	0.549	$4,904,990
NYM	$138,293,378	0.549	$3,152,806
CWS	$121,152,667	0.546	$2,765,913
MIN	$62,182,767	0.540	$1,319,161
HOU	$88,930,415	0.534	$2,056,469
STL	$100,624,450	0.531	$2,398,515
TOR	$98,641,957	0.531	$2,345,507
FLA	$21,836,500	0.522	$303,897
LAD	$118,536,038	0.519	$3,040,001
ARI	$66,202,713	0.506	$1,655,171
CLE	$78,970,067	0.500	$2,100,311
TEX	$68,239,551	0.488	$1,885,512
OAK	$47,967,126	0.466	$1,378,968
KC	$58,245,500	0.463	$1,792,633
DET	$138,685,197	0.457	$5,030,126
CIN	$74,277,695	0.457	$2,494,397
COL	$68,655,500	0.457	$2,273,051
ATL	$102,424,018	0.444	$3,910,428
SF	$76,904,500	0.444	$2,819,850
BAL	$67,196,248	0.422	$2,839,029
PIT	$49,365,283	0.414	$2,089,418
SD	$73,677,617	0.389	$4,358,168
SEA	$117,993,982	0.377	$8,634,999
WAS	$54,961,000	0.366	$4,090,574

I've posted the complete set of tables as a Google spreadsheet, organized in the following fashion:

1. Sorted by payroll, in descending order
2. Sorted by winning percentage, in descending order
3. Sorted by marginal payroll per marginal win, in descending order
4. Sorted by marginal payroll per marginal win, in ascending order

The 2008 Seattle Mariners, rated the fourth worst combination of high salary and poor performance since 1990, deserve special mention. The woeful (61-101) Mariners' $8,634,999 in marginal payroll per marginal win falls squarely between the combined MP/MW figures for the four playoff teams in each of the two major leagues:

National League: $8,942,880
Los Angeles Dodgers	$3,040,001
Chicago Cubs	$2,197,355
Philadelphia Phillies	$2,012,670
Milwaukee Brewers	$1,692,854

American League: $8,193,128
Chicago White Sox	$2,765,913
Boston Red Sox	$2,640,518
Los Angeles Angels	$2,106,933
Tampa Bay Rays	$679,764

The Mariners' profligacy sheds light on another aspect of the 2008 baseball season. For the first time since 1993, baseball's postseason involves no teams from New York. The Yankees ($4,904,990) and Mets ($3,152,806) combined to spend $8,057,796 in marginal payroll per marginal win, nearly as much as the Mariners. The two Chicago teams were hardly paragons of efficiency, but both are still playing baseball. And Florida's two teams, the AL-leading Tampa Bay Rays ($679,764) and the Florida Marlins ($303,897, posted a combined 181-142 record while keeping their combined MP/MW figure below $1 million. The Rays kept the Yankees in third place, which in baseball terms (if not horse racing) is out of the money, while the Marlins, for the second consecutive season, eliminated the Mets at Shea Stadium on the final weekend of the regular season.

All of which goes to show that some baseball teams can spend money profligately and still stink, while others can spend frugally and still shine. Perhaps law schools should take note.

Law and Collective Responsibility

Tonight the PSU Law and Philosophy Society will meet to take up the question of collective responsibility for the current financial crisis. I regret I cannot attend the meeting set for 6:00 PM at Webster's Cafe on Allen Street. My role in collective responsibility for kids, dinner and laundry interfere with my freedom to sip coffee and talk about philosophical implications of just about anything.

If I could be there, I'd add to Plato's reflections, those of columnist George Will on the financial crisis appearing yesterday in the Washington Post and elsewhere. Will observes that "[w]e are waist deep in evasions because one cannot talk sense about the cultural roots of the financial crisis without transgressing this cardinal principle of politics: Never shall be heard a discouraging word about the public."

The public, he notes, typically admonishes government to run its budget the way households supposedly do, matching expenses with income. This time, though, the public decided "it would be jolly fun to budget the way the government does, hitching outlays to appetites." This time, it is painfully clear that all of us not-so-secretly delight in deficit spending, both for our household budgets and for our collective big one.

The usual populist riposte to government action, to contrast the virtue of the people with the vice of some unpopular minority, falls flat. The rhetoric that would in the past elevate the wisdom and thrift of Main Street above the greed and excesses of Wall Street belies the new truth that the folks on Main Street have been just as greedy and excessive. They bought real estate on speculation with borrowed money for more than they could afford. They knew exactly what they were doing. Now their only pretense at preserving virtue is the last defense of scoundrels, the devil made us do it.

This time, we are all in it together, the collective and the individual. The proposed legislation snaking through the House of Representatives today marks what may be a new era in our understanding of justice, freedom and the scope of government relative to individuals.

Best wishes Law and Philosophy Society. May the wisdom of the ages be with you.

Tenure: Use it (on behalf of those who don't have it) or lose it

By way of Erin O'Connor's Critical Mass comes Andrew Ross's very interesting twist on tenure in the most recent issue of Academe, the magazine of the American Association of University Professors:

For those who still see tenure primarily as a form of job security, the larger economic context should be plain. On the landscape of work, there is less and less terra firma. No one, not even in the traditional professions, can any longer expect a fixed pattern of employment in the course of his or her lifetime. The rise in the percentage of contingent workers, both in low-end service sectors and in high-wage occupations, has been steady and shows no sign of leveling off. . . .

[T]enure is a tough sell to a general public for whom job security is more and more a fading memory. The case is even more complicated in the academic public sphere, where, for the contingent majority of permatemps, the privileges that accompany tenure are little more than a mirage in the desert. . . .

The primary reason for the existence of tenure . . . is to guarantee the right to academic freedom, not the right to lifetime employment. In principle, either tenure or academic freedom could subsist on its own, though in practice, job security is usually a precondition of the right to speak one’s mind freely. . . .

The upshot of Ross's essay? Those who value tenure would be well advised to use it to vindicate the welfare of two groups:

1. Those without it in a profession that, more and more, is treating tenure as the domain of a sinecured, privileged few.


2. Even more compellingly, workers in trades and professions that know neither job security nor expressive freedom.

Bonus link: From the parallel world of K-12 education comes this remarkable article shedding light on the District of Columbia's public schools' campaign to persuade teachers to expose themselves to the risk of dismissal for poor performance, in exchange for a chance to earn more than $100,000 a year.