MoneyLaw

The better angels of our profession

2012-01-10T20:07:00.006-05:00

Adapted from the December 2011 issue of Louisville Bar Briefs and from The Cardinal Lawyer

With his series of articles on legal education, David Segal of the New York Times has left a deep impression. From the beginning of calendar year 2011, Segal has repeatedly criticized some aspects of contemporary legal education. In an age when lawyer salaries have not kept pace with ballooning law school costs and student debts, he has questioned the economic rationality of attending law school. He has accused some law schools of offering financial aid packages that are tied to maintenance of seemingly attainable grade point averages, which then evaporate in the face of tough grading curves and expose scholarship recipients to second- and third-year bills for full tuition. He has challenged universities to prove that they are not running law schools as cash cows for cross-subsidizing lower-revenue units on campus.

But nothing else in David Segal's portfolio has caught the legal academy's attention like his November 20, 2011, article called "After Law School, Associates Learn to Be Lawyers." This excerpt provides the flavor of the article as a whole:

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

In other words, "Everything I needed to know about law, I didn't learn in law school."

Read the rest of this post . . . .To cap things off, the Times published a staff editorial immediately after Segal's article on the contrast between law firms' expectations and law schools' priorities. "Legal Education Reform" called upon American law schools to adopt sweeping reforms, including wholesale reconsideration of its emphasis on legal reasoning, especially as demonstrated in appellate cases.

Law professors across the country have reacted rather strongly to the New York Times' series, particularly Segal's article on law faculty hiring and the staff editorial demanding law school reform. Those reactions have fallen into three broad categories. Elisabeth Kübler-Ross would be proud: Faced with this challenge to their dignity and their raison d'être, law professors collectively have covered nearly the entire emotional range of the grieving process. Some have reacted with denial and anger. Others actively try to bargain with other branches of the legal profession. Still others, albeit with some measure of depression, have done their best to accept appropriate criticism and to begin framing some form of meaningful, constructive response.

Let me begin with the angry deniers. For my part, I do not believe that law professors and law schools do themselves any favors, in an age of indebted students, unemployed law school graduates, and laid-off lawyers, to trash these criticisms as a "hatchet job" or (better yet) a "bile pile." It takes a deep measure of cynicism — petty selfishness, really — to characterize the Times as being motivated by their writers and editors' failure to get relatives into law school or past the bar exam. A second, less angry cohort of law professors fervently wants to believe that tough times in the legal profession are merely cyclical. Wait a year or two or five, so the wishing goes, and things will be back to the way they always were.

Count me in the third camp. The criticisms are real. They sting. All of us, from law schools and law students to lawyers and law firms, have to do something. Things could, things should be better.

There is, to be sure, much to criticize in the work of Segal and his Times colleagues. "After Law School, Associates Learn to Be Lawyers" makes serious factual errors. Segal mischaracterizes the content of law school courses on criminal law and criminal procedure. He represents as legal scholarship an article appearing in a philosophy journal. The Times as a whole seems to belittle the value of analytical legal reasoning and, correspondingly, to elevate certain formalities of legal practice (such as filing a certificate of merger). But to take issue with these minutiae, let alone to tee off in anger or resentment, is to pay no heed to the realities of modern legal practice. The business of delivering traditional legal services has lost much of its value. Along with the conventional lawyering model, the value of a generalist legal education has also plummeted. At once opportunistic and enterprising, all sorts of competitors — foreign lawyers, nonlegal professionals, actual lawyers who understand the urgencies of a mobile, technologically volatile age — are upsetting longstanding expectations about beginning salaries and the up-or-out partnership track. Cost-conscious clients distrust the billable hour. They are even more hostile to the idea of subsidizing the training of rookie lawyers who haven't learned all they needed during 90 credits of formal law school coursework.

As serendipity would have it, the entire episode coincided with my discovery of psychologist Steven Pinker's latest book, The Better Angels of Our Nature: Why Violence Has Declined. There is a single gem of wisdom in Pinker's book that seems particularly pertinent to this controversy. Pinker reports, on the basis of deep knowledge about human pyschology, that people systematically overestimate their own grievances and underestimate the pain borne by others. This bias transcends the notion that the grass is always greener on the other side of the fence. It's the regrettable tendency that we all have: believing that our grass alone is brown, and it's the fault of all our neighbors.

Demonizing the opposition is the root of all violence. And violence takes many forms. The ancient and modern societies of Pinker's book wage war. If only they took prisoners, rather than enslaving their enemies or slaying them outright. Lawyers, including those who teach law more often than they practice it, too often excel in inflicting emotional wounds for no apparent purpose except to assuage their own sense of hurt. When it comes to genuine reform of legal education and the profession it serves, casting Segal and the New York Times onto the "bile pile" of academic amusement and aggrandizement accomplishes absolutely nothing.

The hard truth is that law schools could stand to act more like law firms, paying closer heed to what lawyers actually do for a living. Law firms could stand to to act more like law schools, absorbing the cost and the responsibility of training their new recruits instead of expecting law professors to know skills best perfected far from the classroom. Law students would be well served to take a hard, financially sophisticated look at the out-of-pocket and opportunity costs of legal education, to say nothing of the strictly pecuniary returns on their investments in personal capital. The Socratic method and the parsing of written appellate opinions have a firm place in law school. But law schools and bar examiners and hiring partners should all work together to reconsider why and how we teach certain things. Sheer age and force of habit are terrible excuses for doing anything, much less forcing aspiring members of our profession to endure a three-year ordeal. The relative cheapness of traditional lecturing explains why it's more prevalent than hand-to-hand clinical teaching, but cost alone sheds at best incomplete light on the value of practical as well as intellectual training in law school. And no one, inside or outside the academy, has ever found the perfect way to convey subtle skills that arise over the course of a lifetime of professional activities and interpersonal relationships.

We have to start somewhere. Perhaps we can begin by admitting that everyone is in pain. Law students are in debt. Law schools face budget cuts. Law firms are enduring layoffs and lower per-partner payouts. For once, we might acknowledge that all of us have grievances, that our own complaints may be no more pressing than those of our companions. Fingers we have been too quick to point might yet touch what Abraham Lincoln called the mystic chords of memory — strings that can be struck only by the better angels of our profession.

The ratio of educational debt to income as a measure of law graduates’ viability

2012-01-05T10:27:00.003-05:00

I offer the following publicly available summary of my fuller paper, A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, which can be downloaded at http://bit.ly/DegreePracticalWisdom and has been discussed in this forum. I will be discussing this paper during my contribution to the deans' forum in the annual program of the Section on Socio-Economics at the 2012 meeting of the Association of American Law Schools in Washington, D.C.

This table defines marginal, adequate, and good levels of educational debt, relative to monthly or annual income, based on loans amortized over 25 years at a fixed rate of 6 percent:

Financial viability	EBER (educational back-end ratio) = monthly debt service / monthly gross income	EDAI = total debt / annual income
Good	0.04	0.5
Adequate	0.08	1.0
Marginal	0.12	1.5

The simplest measure of whether a student can afford law school is to project the ratio of future annual income to total law school debt. The most conservative assumption is that law school debt will equal three times tuition. I presume that students enter school with no other debt. I further presume that students can fund the cost of living without further borrowing. On those assumptions, the ratio of annual income to educational debt is simply the reciprocal of ratio of educational debt to annual income, with loan principal defined as annual tuition times three:

Ratio of annual salary to law school debt = annual salary / (annual tuition * 3)

Applying my definitions of good, adequate, and marginal financial viability to this ratio generates three very simple rules of thumb. To offer good financial viability, defined as a ratio of education debt to annual income no greater than 0.5, post-law school salary must exceed annual tuition by 6 to 1. Adequate financial viability is realized when annual salary reaches three years of tuition. A marginal level of financial viability requires a salary that is equal to two years’ tuition:

Tuition	Salary needed for good viability	Salary needed for adequate viability	Salary needed for marginal viability
$16,000	$96,000	$48,000	$32,000
$32,000	$192,000	$96,000	$64,000
$48,000	$288,000	$144,000	$96,000

Counter Offers and Prospect Theory

2011-12-10T22:48:00.011-05:00

One of the things you hear in law teaching is how salary increases are the result of counter offers. A faculty member gets an offer from another school and then asks her dean to match or beat it or she will leave. (I am not sure the dean's response is really a "counter offer" unless it's viewed as a response to an offer made by the the threatening faculty but that is for contracts teachers to figure out.)

Before getting into the main point, I think it is important to note that the number of offers faculty talk about having exceeds the number they actual have and this exceeds the number they would actually accept. In short, there is a bit of gaming. [A second point that is unrelated: Hey UT Law School, I need a loan.]

Most of the time when I hear of counter offers I think about prospect theory -- what is this obsession deans have with keeping people from leaving. So often their efforts are misguided. When it comes to faculty there are good loses and very few good keeps that are also controllable.

Offers from other schools fall into three categories; Ones the Dean cannot possibly keep the professor from taking, those that the person would not take even if the dean did nothing, and those in which the dean's actions may make a difference.

At my school we have had two people go to much better schools. The deans involved had no chance but foolishly acted like they did. Foolish not just because they had no chance but because these were good losses. It was a feather in our cap to have them move on and, perhaps, less of a feather if they had stayed becuase,alas, they would still be at UF. Similarly, when the professor is going "back home" or to a highly preferable geographic or life style setting, forget about it. Let them go.

When the offer is from a school down in the pecking order and the professor shows up to discuss it with the dean, it's a "tell" -- they have mixed feelings and it may just be posturing. They may or may not go and the dean may make a difference but should seriously consider not budging. Admittedly, this is related to my view that virtually all faculty at schools from 25 on down are fungible in that no students or alums and not many faculty will even notice they are gone. Still, just how many students is the person teaching? How flexible has he been? Does he pimp articles of others by badgering the law review? Does he work for the good of the whole or just for himself? This could well be another good loss. Plus there are few ways to undermine whatever morale there is than by giving a huge raise simply because a lesser school will pay him more money. I do not follow that logic but many deans rely only on short term or myopic logic.

Somewhere between these two good losses there are those a dean should try to avoid and he could make a difference. One reason to keep someone is simply to avoid the transaction costs of replacing him. If the potential increase in productivity from a replacement is low or negative and the money saved in transactions costs relatively high, it makes sense to try to hang onto the person up to a point. That point depends on the salary for the replacement.

My perception which is admittedly mostly anecdotal, is that deans have an irrational aversion to letting people go. Unless the person is really awful I've seen them stretch to keep them even when we would not hired them today as a lateral. I've even seen them cave into threats to leave and efforts to leave that did not pan out.

Ours is an odd profession. I remember being on the way to my first teaching job and this thought occurred: "I know a fair amount of economics [not as much as I thought I did] but I did not take any courses on teaching." A similar thought occurs to me when I look back at over 30 years of the decision making of administrators. "Most of these deans were law teachers and scholars and many of them not that good. Now they are in management. Have they taken any courses on management"

A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability

2011-12-01T19:47:00.007-05:00

Jim Chen, A Degree of Practical Wisdom: The Ratio of Educational Debt to Income as a Basic Measurement of Law School Graduates’ Economic Viability, 38 Wm. Mitchell L. Rev. (forthcoming 2012):

This article evaluates the economic viability of a student’s decision to borrow money in order to attend law school. For individuals, firms, and entire nations, the ratio of debt to income serves as a measure of economic stability. The ease with which a student can carry and retire educational debt after graduation may be the simplest measure of educational return on investment.

Mortgage lenders evaluate prospective borrowers' debt-to-income ratios. The spread between the front-end and back-end ratios in mortgage lending provides a basis for extrapolating the maximum amount of educational debt that a student should incur. Any student whose debt service exceeds the maximum permissible spread between mortgage lenders' front-end and back-end ratios will not be able to buy a house on credit.

These measures of affordability suggest that the maximum educational back-end ratio (EBER) should fall in a range between 8 and 12 percent of monthly gross income. Four percent would be even better. Other metrics of economic viability in servicing educational debt suggest that the ratio of total educational debt to annual income (EDAI) should range from an ideal 0.5 to a marginal 1.5.

EBER and EDAI are mathematically related ways of measuring the same thing: a student's ability to discharge educational debt through enhanced earnings. This article offers guidance on the use of these debt-to-income ratios to assess the economic viability of students who borrow money in order to attend law school.

To offer good financial viability, defined as a ratio of education debt to annual income no greater than 0.5, post-law school salary must exceed annual tuition by a factor of 6 to 1. Adequate financial viability is realized when annual salary matches or exceeds three years of law school tuition. A marginal, arguably minimally acceptable level of financial viability requires a salary that is equal to two years’ tuition. The following table compares some tuition benchmarks with the salary needed to ensure the good, adequate, and marginal levels of financial viability identified in this article:

Tuition Salary needed for good viability Salary needed for adequate viability Salary needed for marginal viability
$16,000 $96,000 $48,000 $32,000
$32,000 $192,000 $96,000 $64,000
$48,000 $288,000 $144,000 $96,000

Available for download on SSRN at http://ssrn.com/abstract=1967266. Highlighted by Paul Caron on Tax Law Prof Blog, by Karen Sloan in the National Law Journal, by Sam Favate on the Wall Street Journal's Law Blog, and by Debra Cassens Weiss in the ABA Journal. Paul Caron has kindly written a follow-up post.

David Segal's critiques of legal education and the academy's reaction

2011-11-28T06:44:00.008-05:00

David Segal of the New York Times has spent the better part of 2011 skewering American legal education. Academic reaction, though never favorable, reached a nadir when Segal assailed legal scholarship and the process for hiring law professors. This post is intended primarily as a way of documenting the Segal critique and some (though by no means all) of the academy's reaction to it.

Segal's articles:

The economic irrationality of the decision to attend law school
Allegedly deceptive practices in the awarding of law school scholarships
The economics of law school admissions
How the curricular priorities and hiring practices of law schools depart from legal employers' expectations
A Times "Room for Debate" forum, The Case Against Law School
A Times staff editorial, undoubtedly inspired by Segal's series, urging reform of legal education

Herewith a few responses to the Segal series and to the larger issues triggering this discussion:

Paul Caron's compilation of academic responses to David Segal
Paul Caron, Are Law Review Articles Worth $575 Million ($4,000 Per Student) Per Year?
Sarah Krakoff, David Segal's Paper Chase and Some Musings on Legal Education
Dan Farber, The Unexamined Life of the American Law School
Bill Henderson, The Hard Business Problems Facing U.S. Law Faculty
Michael Froomkin, Links to Postings on l'Affaire Segal
Daniel Martin Katz, Thoughts on the State of American Legal Education — The New York Times Editorial Edition
John Steele, 1.5 Cheers for Segal's Article
Matt Bodie, A Recipe for Trashing Legal Scholarship
Orin Kerr, What the NYT Article on Law Schools Gets Right
Frank Pasquale, New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You’re 100)
Brian Leiter, Another Hatchet Job on Law Schools
Scott Greenfield, Those Who Can't, Teach Law
Peter Tillers, Sequelae to Law School and Law Practice, and A Bit of Progress Immersed in Murk
Bruce Ackerman, The Law School Experience (letter to the editor of the New York Times
Stanley Fish, Teaching Law

Practical advice for new law professors: Grading on a curve

2011-11-25T22:10:00.015-05:00

Around this time of year, American law schools begin issuing offers for entry-level, tenure-track teaching positions. The typical new recruit has more experience with scholarship than with teaching, grading, or lesson-planning. MoneyLaw will offer some practical advice to some of these new law professors. I will start by explaining standard scoring, more colloquially known as grading on a curve.

Why? At a minimum, this forum takes some pleasure in indulging the holiday spirit of giving and sharing. More seriously, I am acutely aware that many American lawyers — and many of their teachers — tend to be innumerate. With regrettable frequency over the course of nearly two decades in the legal academy, I have heard tenured law professors assert that "there is no mechanical way to convert raw scores to scaled grades." The truth is much simpler: There is a set of practical problems that mathematics can solve. Standard scoring is one of them. Instead of being content to post the occasional exercise in refreshing my own quantitative skills, I will try to share a few things with newcomers to the academy — ideally, things not discussed at the law school hiring combine or during faculty orientation.

Most (though not all) American law schools enforce some form of constraint on the grades that their professors can assign. Wikipedia has collected a list of grade point average curves at American law schools. The subject arises with regularity in prelaw and law student blogs, and with good reason. Some law schools condition their students' retention of financial aid on the maintenance of a minimum GPA. If you know the mathematics of standard scoring, you can predict with a high degree of accuracy the probability of maintaining the threshold GPA throughout all three years of law school. Students and professors alike therefore have a stake in understanding the mathematics of grading.

Read the rest of this post . . . .In my experience, law professors who react instinctively, and perhaps even inanely, against grading on a curve do so for either or both of two reasons. One is simple ignorance, a byproduct of the innumeracy that might have prompted them to study law instead of a more quantitatively demanding discipline. The other is an inborn distrust of authority. That distrust often extends to school-wide rules on mean GPAs or grade distributions, as though divining the precise line between a C+ and a B- represented a central plank of academic freedom. The truth is that standard scoring leaves ample discretion for all instructors to evaluate their students and to distribute individual grades. The only constraint is that the mean grade in each course should fall within some range. (How tight that range should be, like almost every other subject imaginable, is the subject of some dispute among law professors.). Moreover, the exercise of "grading on a curve" is both mathematically elegant and logistically simple. You have no excuse for not grading on a curve.

Absent extraordinary circumstances, grades in any class will follow a normal, Gaussian distribution. Happily, grading a class means measuring an entire population. We can therefore use standardization techniques.

I will further assume, for clarity's sake, a straightforward map of points corresponding to letter grades. In increments of 0.333, progress from 0.000 for an F to 4.333 for an A+. In other words, a C+ is worth 2.333. A B- is worth 2.667. Many schools use no more than one significant digit after the decimal point, which leads to mathematical anomalies arising from crude rounding. At 2.3, a C+ is 0.3 points removed from a C, but 0.4 points removed from a B-.

Finally, I assume that the professor consistently adheres to some way, any way of assigning raw scores. Giving points for each valid argument and assigning percentages for each task accomplished represent merely two among many plausible methodologies. The real trick lies in converting these raw scores to standard scores.

Begin by calculating the z-score. The z-score, or simply z, may be computed according to this formula:

z = (x – μ) / σ

Where:

x  =  Raw score to be standardized
μ  =  Mean raw score
σ  =  Standard deviation

In practice, most values of z will be greater than -2 and less than 2. Absolute values of z exceeding 2 correspond to true outliers, and those students are either ironclad locks for the book award, or good candidates for receiving an F. In my own career, I have issued F's very sparingly because the D and D- minus grades carry roughly the same message without automatically depriving a student of academic credit. Generally speaking, if |z| > 2, I counsel removing the grade in question from the curving algorithm I am about to describe and assigning it "manually," after careful comparison to the other student performances that are closest to it.

If the target class mean is a C+, or 2.333, and the instructor is willing to stretch the distribution of grades from a dummy grade of F+ (0.333, or 2.333 - 2, as the midpoint between an F at 0.000 and a D- at 0.667), to A+ (4.333, or 2.333 + 2), then each student's grade can be very simply calculated:

g = 2.333 + z

This example works because it a special case, with very easy figures, of the more general formula for standardizing a set of normally distributed raw scores:

g = K + z * (M – K) / 2

Where:

g  =  Scaled grade
z  =  The z-score (standardized score) as defined above
K  =  Target class mean
M  =  Maximum grade point value, typically 4.333 in a system with an A+

The denominator in the final fraction, or 2, reflects the maximum absolute value of z that we realistically expect to encounter in this population. It would not be inappropriate to adjust this denominator slightly upward to catch not just most but all scores we expect to fall between the first and 99th percentiles. Nor is it inappropriate for an instructor to give close personal attention to exams whose z-scores approach -2. In the absence of a true F+ grade, a scaled grade of 0.333 invites discretion to choose between an F and a D- (or a D in universities that have abolished the grade of D-).

Substituting 2.333 for K and 4.333 for M yields the simpler formula above.

Recall my earlier observation that most (though not all) z-score values will fall between -2 and 2. In other words, -2 ≤ z ≤ 2 in most instances. If you divide the z-score range from -2 to 2 into equal bands of 0.5, and you envision all z-scores below -2 and all z-scores above 2 as bands of their own, you will find 10 zones corresponding very nicely to the 10 passing grades from D+ to A+, inclusive:

Minimum z-score	Letter grade
<-2.0	D+ (or lower, in truly extreme cases)
-2.0	C-
-1.5	C
-1.0	C+
-0.5	B-
0.0	B
+0.5	B+
+1.0	A-
+1.5	A
+2.0	A+

The closely related system of stanines (Standard Nines) also works very well with the grading scale I have just described. The United States military historically valued stanines as a way of translating the z-scores of standard scoring, which range across either side of zero, to a scale of single-digit integers from 1 to 9 inclusive. To use stanines, divide a Gaussian distribution into nine bands, centered on the fifth band. The second through eighth bands each traverse 0.35 standard deviations; the first and ninth stanine cover, respectively, the lowest and highest ends of the distribution. Assigning a B- (2.667) to the fifth stanine and moving one-third of a letter grade in each direction yields the following table of converted grades:

Stanine	Letter grade
1	D+ (or lower, in truly extreme cases)
2	C-
3	C
4	C+
5	B-
6	B
7	B+
8	A-
9	A (or A+, for truly outstanding performances)

As a final bonus, faithful readers of this forum will recognize that z-scores lie at the heart of the U.S. News rankings of law schools and other branches of American universities. Demystifying standard scoring in the classroom represents a modest but important first step toward demystifying one magazine's standards scores of competing classrooms.

The Skills Thing

2011-11-21T18:23:00.008-05:00

Jim has provided an excerpt from Sunday's NYT front page article on Law Schools. The article make some good points on the topic of legal scholarship. On the other hand, the article's whining about preparing students to practice law made me consider getting off the "more skills" bandwagon.

I was struck by a collective law firm sense of entitlement. This sense of entitlement seems to equate the bottom line interests of small and large firms with what law schools should be doing. Public law schools already provide a huge human capital subsidy to private law firms. (I've never understood why this started other than to subsidize the class of people who had property to protect.) Now the firms have their hands out asking for more. Closely related is the tendency for some law schools now to offer classes on "law firm management." Exactly why a public school should teach a law student to operate his or her business and not the manager of a laundromat is not clear to me.

There is another problem with the "skills" thing. Most of the people I know who talk about skills and even teach one version or another have not practiced law, practiced a very short period of time or practiced it 20 years ago or more. In fact, a 45 year old with twenty years of recent experience typically falls to the bottom of lists of possible hires.

I am also not sure I know what the word "skills" means. My fear is that to the extent the desire for more skills is voiced by those in law teaching it may have a self-referential component. If you are into mediation, guess what skill might mean to you. Same for arbitration, collaborative law and so on. And I sense there is an ideological element here as well.

Maybe public law schools should eliminate skills altogether or offer them at an enhanced level of tuition. After all, these highly "skilled" graduates would save law firms so much money they almost certainly would offer higher salaries to graduates that would off set the extra tuition. Of course, it is just possible the firms prefer to stay on the dole.

Everything I needed to practice law, I didn't learn in law school

2011-11-20T10:31:00.003-05:00

In his ongoing series of searing critiques of legal education, David Segal takes aim again at the excesses and shortcomings of American law schools. He describes this scene from "a crash course in legal training":

[T]he three people taking notes are not students. They are associates at a law firm called Drinker Biddle & Reath, hired to handle corporate transactions. And they have each spent three years and as much as $150,000 for a legal degree.

What they did not get, for all that time and money, was much practical training. Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

Legal education and the heir of Slytherin

2011-11-07T10:49:00.003-05:00

That was then. This is now.

In my own lifetime, fiction for young adults has moved from S.E. Hinton to J.K. Rowling. Gritty stories about rumbling gangsters at an Oklahoma high school have given way to soaring fantasies about dueling sorcerers at the Hogwarts School of Witchcraft and Wizardry. At heart, though, I still believe what John Steinbeck said in East of Eden: There is one story in the world, and only one. Whether the setting is Will Rogers High, Hogwarts, or the law school of your choosing, formal schooling often pits Socs against Greasers and Purebloods against Mudbloods. The narrative is one of epic, ceaseless competition between elites and outsiders.

If you've managed to miss one of the greatest cultural phenomena of the last generation, let me introduce you to the magical world of Harry Potter. The boy wizard finds himself locked in a life-and-death struggle against the irredeemably evil Lord Voldemort. In his own time as a student at Hogwarts, Voldemort revived an old grudge that the ancient wizard, Salazar Slytherin, held against those he felt unworthy to practice magic. As the self-anointed Heir of Slytherin, Voldemort sought to purge all Muggle-born witches and wizards from Hogwarts and the magical arts. Who are Muggles? We nonmagical folk are Muggles. Voldemort had no use for witches and wizards born of ordinary, nonmagical parents. In the mind of the Dark Lord, only those born to pure-blooded witches and wizards deserve to command the potions, incantations, and spells of his profession.

Read the rest of this post . . . .All of this prepares me to open one of the darkest chambers of secrets in law and legal education. Law schools and the country's largest law firms have long occupied — and jealously guarded — the most coveted corners in the American legal profession. Indeed, these institutions perpetuate each other's lock on power and prestige. Every city has its collection of "BigLaw" firms — highly leveraged partnerships performing a wide range of legal services on behalf of the corporate and institutional clients that control our society's greatest concentrations of wealth. BigLaw draws its talent from the most highly credentialed students emerging from our law schools. Without elite grades, no student stands a chance of scoring a BigLaw interview, let alone a BigLaw job.

At some schools, BigLaw does dig deeper in the talent pool. Of course, those schools are the prestigious ones with national reputations. Typically they're named for dead white men who conquered and paved North America, or else for big, wealthy states. At schools such as Harvard, Duke, or Vanderbilt, or Virginia, Michigan, or Berkeley, BigLaw historically has been willing to interview a broader spectrum of students. At schools that historically operated under a municipal charter and have dedicated themselves to the higher training and useful education of local youth, BigLaw has been decidedly pickier.

This is not an altogether flattering portrayal. I admit as much. In fairness, I will say this: My own corner of the profession, legal education, has been complicit in this elitist exercise. That is a severe understatement. Indeed, law schools collectively have elevated grades and rankings above all other considerations. Legal educators devised the elitist complex of grades, honors, law review credentials, and federal court clerkships on which BigLaw has built its entire model for evaluating talent. If anything, academia has doubled down on BigLaw's bet. We draw our own faculty ranks from an even more selective pool of candidates. BigLaw and American law schools have anointed their superstars on the basis of schools attended and grades attained when these lawyers and professors were students in their twenty-something years, as though ancient educational credentials represented the lone basis of membership in some sort of professional apostolic succession.

Excessive emphasis on pedigree over performance has pushed the legal profession to a point of reckoning. Hourly billing, at hundreds of dollars per hour and without regard to actual value delivered, is a barbarous relic that contemporary clients, sensitive to their own economic survival, have rightfully begun to reject. Law schools can no longer indulge the conventional assumption that they can focus entirely on training their students to "think like lawyers," without attention to concrete skills or the pragmatic nuances of actual practice. Every instance of mismatch between paper credentials and actual performance on the job signals incompleteness or even outright inaccuracy in the elite model of legal education and BigLaw recruitment. Every BigLaw hire that flames out after two unproductive years should prompt honest recognition of the limits of elite credentials. Honesty about the limits of the existing model of legal education should prompt all law schools to ensure their students a true return on their educational investment, to prepare all students not just to ace an exam or "book" a subject, but to be as fully prepared to serve clients and deliver results as a lawyer can be upon passing the bar exam.

This is not a jeremiad against legal education and elite law firms. All models of legal practice, in firms large and small, in government as in education and in philanthropy, deliver value to clients and to society at large. I believe wholeheartedly in the transformative power of legal education, motivated by a passion for teaching and informed by serious scholarship. For me to believe otherwise would force me to declare my own life an evil, bankrupt waste, and I emphatically believe that I have not lived in vain.

For good reason, jobs in BigLaw and the legal academy are very highly coveted. A BigLaw salary is one of the very few ways a new law school graduate can realize an immediate return on educational investment. Law professors earn very decent pay, with tenure, for intellectually stimulating work in an environment dedicated to educating youth and elevating society. If anything, though, the benefits of working in BigLaw or the legal academy affirmatively compound the heavy burden that its defenders must discharge. Those of us who care most about the legal profession and have gained the most from it owe a corresponding duty to take a hard look at the weaknesses of our shared calling. Whatever personal or professional inconvenience we may incur, those of us at the pinnacle of professional success must tell the truth.

How shall we make things better? I always recommend some combination of honesty and optimism. Speak the truth and point to hope. This message combines my own experience with insights from history and literature. The world in which S.E. Hinton came of age was one that locked the rival political ideologies of the Soviet bloc and the north Atlantic alliance in mortal combat. The world of Harry Potter is one that pits the virtuous Order of the Phoenix against Lord Voldemort's degenerate Death Eaters. Those stories, real and fantastic, teach us useful lessons. Extreme opponents often become agents of reconciliation. The greatest breakthrough between the Communist world and the West came when Richard Nixon, the consummate Cold Warrior, visited "Red" China. By contrast, those who prevail through conflict and confrontation often do so by virtue of some close connection to the enemy, perhaps even kinship. At the risk of spoiling J.K. Rowling's books and the movies inspired by them, I will tell you that Harry Potter ultimately defeats Voldemort on the strength of a mysterious connection that links the boy wizard to the Dark Lord's most treacherous powers. The intermediary who helps Harry harness those powers had himself been seduced in his youth by the Death Eaters. The power of the enemy, personally taken, holds the key to victory over that foe.

And so it must be that a critic of elite legal education, to be credible, must be one who has succeeded by its terms, both in school and in later professional life. With your indulgence, I'll make my argument very personal. In my twenties I enjoyed a double dose of privilege and prestige: Not only did I attend Harvard Law School alongside the future President of the United States; I also clerked at the Supreme Court of the United States. These experiences gave me the privilege of choosing between BigLaw and the legal academy. I spent many hours in my thirties divining some of the law's most intellectually challenging mysteries, from the use of macroeconomic indicators in utility regulation to the legal protection of biodiversity and functioning ecosystems as information platforms. All those things came to me, in large measure, because I turned in fantastic performances in torts, federal courts, and international business transactions. Those grades predicted intelligence of some relevance to the legal profession, and I worked my hardest to make good on the promise of my youth. But the task to which I have devoted my forties, that of managing a complex educational institution for the betterment of its students and the clients they will ultimately serve, is one that transcends my grades, my diplomas, my clerkships, and even the articles on my curriculum vitae. Everything I've done in life didn't get graded in law school. Grades were then. Life is now. As a firmly committed Muggle, I am no heir of Slytherin. Fate did bestow upon me a bundle of legal education's most elite experiences. And this is what I have learned since graduation: There is no value in prestige or credentials. There is only performance, and those who have the wisdom to prize it.

The Least Ethical?

2011-09-29T14:05:00.005-04:00

In what my wife calls my not real world life I typically come into contact with attorneys, law professors, students, and expert witnesses. Within each group I observe a great range of ethical standards although the pressures are always downward. Nevertheless like four racehorses, I think of the groups as racing to the bottom. In terms of shameless lying, expert witnesses are still in the lead. Have you ever compared what some law professor experts write and then the positions they take for money? And then there is the sad story of Robert Lucas -- Nobel Prize winner -- getting clobbered for his expert opinions.

The latest Law School cheating news -- Illinois -- makes me reconsider the ranking. Is it possible law faculties (including deans) have overtaken expert witnesses? I'd be inclined to give Illinois a break since the differences are small. If you are going to lie, why not go big time? On the other hand, just like getting the wrong change back in some foreign countries, the errors always seem to cut in one direction. These "mistakes" at the margin may affect the investment decisions of thousands of law students. Is there a remedy for them?

Still out there is the ethical question I asked about six weeks ago. One school lies. The other school spends thousands hiring its own students or recruiting transfer students or teaching new bar exam courses so it can "honestly" report its new numbers. But for the rankings, it would not have done any of this. Is redirecting resources in this way any worse than lying?

Just a perfect reflection

2011-08-21T23:52:00.002-04:00

Guster, Fa Fa

As economic fortunes fall anew and fear runs rampant, legal education is experiencing another season of regret. Recent graduates and even some students have come to regret their decision to attend law school. They're hardly alone.

Regret is nothing more than fermented wisdom, and I am a very wise man. There are moments when I fervently wish I could take my own academic advice, dispensed at greatest length in The Death of the Regulatory Compact: Sunk costs are just that, sunk. Time moves in one direction. So should we.

In this spirit I offer my readership this musical interlude. Its essential message is a familiar one. For those who might prefer T.S. Eliot's formulation over Guster's, I'll happily oblige:

What might have been and what has been
Point to one end, which is always present.
Footfalls echo in the memory
Down the passage which we did not take
Towards the door we never opened
Into the rose-garden.

Remember always that the detail of the pattern is movement.

Is Villanova Evil or Just Efficient?

2011-08-16T09:45:00.005-04:00

This story has been bouncing around for months but, as so often happens, I am the last to know. As I understand it, Villanova, to put it bluntly, lied.

I am wondering just how bad that is. Compare an alternative. A School adopts new and expensive programs because it will help in the rankings game. But for the rankings these programs would not be adopted. It hires its own grads, introduces bar prep courses, admits fewer first year students, increases transfers, and calls everyone a professor. Now it accurately reports its new and more impressive numbers. Putting aside the possibility that the rankings may have induced the school to do the right thing for the wrong reasons, is the second school less corrupt than a false reporting school?

Maybe Villanova just got the result it wanted at a lower cost and with less waste.

Taken for a ride

2011-08-10T23:13:00.002-04:00

AM Radio, Taken for a Ride

I can no longer ignore that, for a very large proportion of my students, law school has become something very much like a scam. . . . When people say 'law school is a scam,' what that really means, at the level of actual moral responsibility, is that law professors are scamming their students.

So laments the introductory post to Inside the Law School Scam, a confessional blog by an anonymous "tenured mid-career faculty member at a Tier One school." This fascinating contribution to the burgeoning online literature on the economics of legal education and law school graduates' job prospects is unique because it comes from the inside. In his critique of legal scholarship, this blogger, both tenured and anonymous, confesses that "students at the contemporary law school end up paying enormous amounts of money for something that they aren't getting, and in many cases wouldn't want even if it were being provided to them."

This is prose as potent as it is provocative. Inside the Law School Scam essentially argues that law schools and law professors are taking their students for a ride. I look forward to each installment of this anonymous blogger's saga.

Matasar criticizes the "inordinate scrutiny" given to law schools

2011-08-08T21:00:00.002-04:00

In the first segment of a two-part interview responding to David Segal's critique of law school economics, Richard Matasar says that law schools receive "inordinate scrutiny."

The economics of law school admissions

2011-07-17T18:56:00.005-04:00

It is now officially a muckraking crusade.

Three times this calendar year, David Segal of the New York Times has commanded the front page of the Sunday business section with an exposé of the business of law schools. First, he assailed the economic rationality of anyone electing to study law. Then came his attack on the use of deceptive scholarship awards to attract students and boost rankings. Now comes a more comprehensive broadside against the economics of law school admissions:

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

Meanwhile, David Leonhardt of the Times writes that the Great Recession refuses to ease into a renewed cycle of job growth because nothing has emerged to replace the economic model of consumer spending and easy debt that fueled the collapse in the first place.

The task of discerning the validity of these critiques and, if appropriate, applying the lessons learned to the project of reforming legal education is left as an exercise for the reader.

Which side are you on?

2011-06-18T01:54:00.002-04:00

In academia, this old question of labor-management relations has an especially odd twist.

Stanley Fish recounts a recent dispute over the reorganization of Idaho State University from seven to five colleges:

The story is a familiar and dispiriting one: the administration is accused of imposing its will in the face of strong opposition from the faculty, and the faculty is accused by the administration of being obstructionist and standing in the way of needed reforms.

For whom do you work? In almost any other line of work, the answer is clear: A "jeweler or accountant or court clerk" works for the owner of the enterprise, or at least the government agency, that issues her instructions and pays her for services properly rendered. Academia, for good or for ill, operates under no comparable clarity.

I leave to Stanley Fish the task of describing all the details of the Idaho State controversy. The crucial question was whether Idaho State's president has "the authority to try" to reorganize his university and to "live or die by the results," or whether instead he must "receive the faculty’s permission before he exercises his administrative judgment, the judgment for which, one assumes, he was hired?"

The American Association of University Professors and other proponents of shared governance demand much more than consultation. Shared governance rests on the notion of academic expertise. Precisely "because academics are experts in their subjects and in the art of teaching," shared governance assigns to faculty members the responsibility to make "core academic decisions." The question, as Fish poses it, is whether "academic expertise extend[s] to the planning and construction of buildings, the projection of budgets, the intricacies of the legislative process, the presentation of the university to the general public, the interface with industry and the relationship between university organization and budgets?"

The AAUP's report on the Idaho State affair leaves no doubt of that organization's answer: “It is no coincidence that many who seek to reduce higher education to a form of narrowly conceived job training are also in the forefront of efforts to replace shared governance with a corporate style of management.” One presumes that even the most diehard members of the AAUP hope someday to retire on the strength of corporate management, if only at TIAA-CREF and the publicly traded companies whose securities populate TIAA-CREF's mutual funds. I'll leave the solution of that conundrum as an exercise for the reader. This much is clear, though. When it comes to labor-management disputes, in academia as in Harlan County, there are no neutrals there.

Fidelity in transition

2011-06-18T01:47:00.002-04:00

» With apologies and an admiring nod to Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993). «

Bureaucracy is the bane of modern life, in all of its organizational manifestations. From this reality academia offer no escape. But there are lessons to be learned from things that universities, governments, and for-profit businesses have in common.

Academia, government, and private enterprise all offer variations on the theme of leadership and turnover. Because of their unique susceptibility to transitional disruption, startup companies and family-owned enterprises arguably have the most to gain from business succession planning. At the opposite end of the scale, Fortune 500 companies and the federal government also take care to anticipate and choreograph internal changes in personnel.

Academic institutions devote considerable energy (and with justification) making their best-laid plans in the event top-level managers resign, retire, or die. As I have discovered in my scholarly work on disaster law, preparing for these obvious contingencies is tantamount to the Maginot Line of academic succession planning. Preparing for an associate dean's departure rarely draws the same degree of advance planning, though quite arguably it should.

The job of the associate dean, after all, requires more detailed operational knowledge of an institution. This is especially true of the office of academic affairs, the function most often assigned to an associate dean. The associate dean is to the dean as the university provost is to the president. Hardly anyone aspires to the office; it is a bureaucratic soul that dreams someday of being an associate dean or a provost. The job is largely thankless, and the usual forms of compensation — a modest emolument, coupled with a slightly lighter teaching schedule — are barely commensurate, if at all, to the extra work.

To top it off, the pool of potential candidates is typically smaller. Decanal pools, in practice, can be quite deep. By contrast, associate deans are almost always drawn from the ranks of incumbent faculty. Though I have no empirical evidence to back this assumption, I do believe that turnover among associate deans exceeds that of deans.

In all settings, from business to academia and other nonprofit environments, best managerial practices demand anticipating the dull, the boring, the thoroughly unsexy. Taking care, more often than not, means thinking about ordinary places, ordinary things, and ordinary events — and then having the discipline to follow through.

Tenure in disfavor among college presidents

2011-05-23T06:24:00.002-04:00

A majority of college and university presidents surveyed by the Pew Research Center and the Chronicle of Higher Education effectively oppose tenure:

Less than a quarter of those surveyed said they would prefer full-time, tenured professors, while a whopping 69 percent reported to prefer that a majority — if not the entirety — of faculty work under annual or long-term contracts. . . .

Mark C. Taylor calculates in his book Crisis on Campus that someone who serves as an associate professor with tenure for five years and then becomes a full professor for 30 years sets a private university back $12.2 million and costs a public university $10 million during the same period of time. . . .

At public four-year institutions, 52 percent of presidents with previous faculty background favored tenure, while just 37 percent without faculty experience did. Among presidents of private four-year institutions, 35 percent who had formerly served as faculty favored tenure, compared with 20 percent of those without faculty experience.

Is there academic freedom in this controversy?

2011-05-17T18:19:00.003-04:00

Stanley Fish warrants frequent mention on MoneyLaw for his wisdom on academic freedom. In a recent New York Times blog post, Fish helps us filter legitimate claims of academic freedom from a noisy backdrop in which that principle is too readily invoked and thereby too easily cheapened. Fish cites more comprehensive works — especially Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of American Academic Freedom (2009) and Rodney A. Smolla, The Constitution Goes to College: Five Constitutional Ideas That Have Shaped the American University (2011) — but his own summary is worth reproducing here:

[A]cademic freedom is a useful notion only if it is narrowly defined. More things escape its ambit than fall within it. . . .

No one owns a course; no course has a right to be given; and no subject has a claim on university time and money. [Too many commentators] cry[] academic freedom whenever a university does something they don’t like, and by doing so, they cheapen the concept. . . .

[True academic] sin is to insist that a certain idea be discussed whether or not it has made its academic way because a few disappointed outsiders are willing to spend big bucks to get it inside. If, in the judgment of an instructor, “Atlas Shrugged” will contribute to a student’s understanding of a course’s subject, there is every reason to assign it. But if assigning “Atlas Shrugged” is the price for the receiving of monies and the university pays that price, it has indeed sold its soul. . . .

[A]cademic freedom issues legitimately arise . . . . when the university either allows its professors to appropriate the classroom for non-academic purposes . . . or allows itself to become the wholly owned subsidiary of another enterprise . . . .

U.S. Supreme Court Prediction Market

2011-04-30T12:33:00.001-04:00

Recently posted to SSRN: FantasySCOTUS: Crowdsourcing a Prediction Market for the Supreme Court, a draft paper by Josh Blackman, Adam Aft, & Corey Carpenter assessing the accuracy of the Harlan Institute's U.S. Supreme Court prediction market, FantasySCOTUS.org. The paper compares and contrasts the accuracy of FantasySCOTUS, which relied on a "wisdom of the crowd" approach, with the Supreme Court Forecasting Project, which relied on a computer model of Supreme Court decision making. From the paper's abstract:

During the October 2009 Supreme Court term, the 5,000 members made over 11,000 predictions for all 81 cases decided. Based on this data, FantasySCOTUS accurately predicted a majority of the cases, and the top-ranked experts predicted over 75% of the cases correctly. With this combined knowledge, we can now have a method to determine with a degree of certainty how the Justices will decide cases before they do. . . . During the October 2002 Term, the [FantasySCOTUS] Project’s model predicted 75% of the cases correctly, which was more accurate than the [Supreme Court] Forecasting Project’s experts, who only predicted 59.1% of the cases correctly. The FantasySCOTUS experts predicted 64.7% of the cases correctly, surpassing the Forecasting Project’s Experts, though the difference was not statistically significant. The Gold, Silver, and Bronze medalists in FantasySCOTUS scored staggering accuracy rates of 80%, 75% and 72% respectively (an average of 75.7%). The FantasySCOTUS top three experts not only outperformed the Forecasting Project’s experts, but they also slightly outperformed the Project’s model - 75.7% compared with 75%.

You can download a copy of the draft paper here.

[Crossposted at Agoraphilia, Midas Oracle, and MoneyLaw.]

Pants Down Part 2

2011-04-12T12:20:00.000-04:00

http://classbias.blogspot.com/2011/04/ncaa-and-law-schools.html

Pants Up

2011-04-01T15:43:00.005-04:00

I am sincerely sorry if the last post on this blog somehow spelled the end of any contributions. To try and make up for it, I want to try to get those pants pulled back up. The problem is that it is probably only a wishful thinking pants up. One of the things that stood out in the US News and World Report rankings this year was the decline of the University of Missouri Law School. I have tried unsuccessfully to determine the exact factors causing this decline and the limited information I could find suggests they were mainly financial. Nevertheless, here's what I would like to believe: Their ranking fell because they refused to game the system AND in the aftermath they did not fire their dean. Plus, in the prisoner's delimma world of gaming the system, that school's risk taking will be followed by others. I do not know if that is true but, if so, a big Pants Up to them.

Pants Down

2011-01-16T14:54:00.005-05:00

I guess I did not see it when it came out but now I have come across the Leiter ranking (or is an effort to allow others to rank) of the top 40 law schools. As I understand it, 331 respondents ranked 57 law school that are arguably in the top 40. The eventual ranking was then determined by taking each school and seeing how it did in head to head combat with each other school. The most wins gets you number 1 and so on. Yale is overall the winner and Harvard second.

Whether or not I have described the methodology exactly accurately, the most interesting part of the effort is the rankings of each respondent. Leiter picks on FSU a bit for its strategic voting. Rightfully so since FSU is ranked ahead of Yale on 35 ballots. Plus FSU has about 20 votes for the top law school in the land and most of the voters taking that view ranked all other schools as tied for last of 57. Remember, this gets FSU 20 x 56 wins in head to head competition. I can understand the FSU frustration. It is an excellent law school and overlooked but, sadly, their pants are down.

Plus, there are plenty of others with their pants around their ankles. Yale gets about 35 last place votes. In fact, Yale's high ranking is mostly the result last place votes (yes, worse of 57 schools) combining with many very high votes. It goes the other way too. A number of those voting for Yale as number one also rated every other school last. Think about it! You are a Yale grad and so worried about Yale's ranking, that you feel compelled to rank every other school as tied for worst. Harvard has a number of these as well. These voters, far more than FSUs, should look into therapy. There must be a limit to insecurity or a craving for status. Is it a sense of entitlement or are they just girlie men or women who did not get hugged enough? Well, here is a big internet hug so you can do your best not to create the same pathetic behavior in our own kids.

Even this way understates those with their butts hanging out. Miami gets a first place vote, also by someone ranking every other school last. So do Michigan, San Diego and others.

In fact, although I did not count, it appears that the most common ranking given was 57. How does that come about? It happens when someone votes the school he or she teaches at or the school he or she attended first and all other schools tied for last or 57th.

As I said, 331 people voted. I deeply appreciate those instances in which an obviously outside the top 15 school did not get a first place vote. I have no idea what percentage of those voting voted strategically. I did do this. I selected Boston College. I doubt any reasonable person thinks BC is the best or the worse law school of the 57 selected. Thus, I counted the number of last place or first place votes BC got as a rough and very very conservative estimate of the percentage of strategic voters. I get 79+ strategic votes out of 331. Twelve of them are from those who ranked FSU first.

Well, gotta go. I've got many hugs to deliver and my work is just beginning.

Class Participation: How and Why?

2011-01-12T13:11:00.005-05:00

I have been rethinking my approach to class participation, and invite your suggestions about how to grade that aspect of student performance, if at all.

Last semester, in Property I, I based 10% of the students' grades on class participation. They won points for class participation in a variety of ways, including serving on review teams, filling out short ungraded quizzes, and signing an "on deck" sheet for Socratic questioning. Despite those many inputs, I still ended up with a very tight cluster of scores, making it difficult to generate a curve that satisfied Chapman's somewhat challenging specs. (My other class, a Law & Economics seminar, raised similar problems.)

I've tried in the past scoring class participation on a more subjective basis, marking the seating chart immediately after class to indicate which students has won class participation points for contributing to discussion of the assigned materials. Although no student ever challenged that system for fairness, it admits the claim all too easily; I prefer more objective measures of performance. Also, I found that scoring students during or after each class, based on some rough measure of "added to class discussion," invited pestering along the lines of, "Did you count my performance, today, Professor Bell? I didn't see you mark the sheet, and you confess to being absent-minded." Fie on that.

I could give up entirely on grading class participation. I don't recall my profs at Chicago keeping track of student participation, after all, unless perhaps for casual dissection in the faculty lounge, and they taught very well. Perhaps I should just stick to exams, and run the risk of teaching to students unprepared for class and unrepentant about their ignorance.

I promised my students that, before I decided how to assess class participation in Property II, I would seek informed advice. If you have some to share, I would welcome hearing it, in the comments below or privately. Thank you.

Z-Scores in Model of 2011 USN&WR Law School Rankings

2010-12-16T14:21:00.002-05:00

As I have for each of the past several years, I this year again built a model of the most recent U.S. News and World Report ("USN&WR") law school rankings. This year's model matched the publishing rankings very nicely; comparing the model's scores with the published ones generated an r-squared of .997 (where 1 would indicate perfect correspondence). At the request of my readers, I here offer the weighted z-scores of the top-tier schools from last spring's (the "2011") USN&WR law school rankings:

Why do my fellow rankings geeks care about z-scores? In brief, these z-scores measure how well each school performed relative to its peers, thereby establishing its rank. (See here for a fuller explanation.) Because USN&WR uses z-scores to rank law schools, so too must any model of its rankings.

I weighted these z-scores simply by multiplying the z-score for each school, in each category of data, by the percentage that that category influences a school's overall score in USN&WR's rankings. That method of presenting z-scores has the virtue of highlighting which scores matter the most. You will thus generally find the largest weighted z-scores in the upper, left-hand corner of the chart, for instance, where lie both the most important categories of data and the law schools that scored the highest the rankings.

Consider, for instance, the weighted z-scores of .68 enjoyed by both Yale and Harvard under the "PeerRep" category. Numbers that large (comparatively speaking) overwhelm the effect of other measures of those schools' performances—the schools' BarRep scores, at .39 each, come in a distant second—and have twice the impact of the peer reputation scores of schools ranked as close as 20th from the top.

Using weighted z-scores also has the virtue of showing how very little influence many of the things that USN&WR measures have on its rankings. The weighted z-scores for Bar pass rates among top-tier schools, for instance, vary between only .07 and -.02.. Bar pass rates, however important to students, evidently do not matter much in USN&WR rankings.

Why did it take me so long to finish this year's model? In large part, you can blame my prepping two new classes (Property and a Law & Economics seminar) and serving on Chapman's Dean Search Committee (an effort that should soon conclude with our announcment of a fantastic new leader for our law school). Notably, though, some of the delay stems from how the ABA manages its statistical take-offs. The ABA recently abandoned its former practice of routinely sending electronic copies of its statistical take-offs at the request of any subscribing school. Allegedly, some Deans had complained that to make the data available electronically would make modeling the USN&WR rankings too easy. Nice try, Deans! Also, the ABA this year neglected to send several subscribing schools, including my own, even hardcopies of the statistical takeoffs. We got a prompt response from the ABA when we finally figured out that we we were not to blame for the missing take-offs, but the mix up still impeded my efforts. Again, though, geekery finally prevailed.

Interested in prior years' z-scores? Here are the ones from the 2010 rankings, the 2008 rankings, the 2007 rankings, the 2006 rankings, and the 2005 rankings.

[Crossposted at Agoraphilia, MoneyLaw.]

Can Empiricism Go to Law School?

2010-11-24T09:58:00.007-05:00

Most readers know the cautionary "Be careful what you wish for . . . ." There is a comparable concern for those doing empirical research -- you may not find what you are looking for. By "what you are looking for" I do no mean that you will find no answer but that you may not confirm what you hoped to confirm. For example, you might believe that positive student evaluations are correlated with actual learning and find that they are not. Or, that the amount of discipline meted out to high school students is unrelated to the number of white high school administrators.

If you are a true scholar/empiricist you may shrug and then report your findings. A cultural clash occurs, howevever, when empiricism meets legal scholarship. Most legal "scholarship" as I have written before, is not scholarship at all. It is, instead,"service" to one particular end or another with that end usually ultimately being tied to a political goal. Thus, as they were trained to do in law school, legal scholars start with a "client" ( a political inclination) and set out to muster whatever they can to show that their client is "true."

So what happens when an empiricist comes along. The answer is, it depends. Let's take two empiricists both of whom have done a pretty shotty job. The have interpreted data to mean certain things when they have no way of knowing and they do not acknowledge the problems. They take a small sample, they make no effort to verify whether a survey they use actually measures what they purport that it measures. So, two empiricists, equally sloppy.

What it depends on is not the care that went into the study but what the study discovered. Let's say the first study shows a high correlation between the amount of punishment meted out to high school minoriities and whether the principal is white. The other study shows that there is no correlation between punishment and race. Given the policital state legal education today, the first study will be deemed "interesting," and "persuavise." People are likely to ignore any methodological problems or explain why they are not the author's fault. Chances are the second study will get exactly the opposite treatment. It will be viewed as "sloppy." "poorly conceived" and amateurish. There may be whispers about racism because the author allowed the result to become public. If it is a job talk, scholar one has a job scholar; two is, as they say on Project Runway, "out."

Maybe you think this is not so bad. At least one of the sloppy scholars did not get away with it. The problem is this, you could change the hypothetical so that the second scholar had done a spendid, air tight, objective, totally verifiable, triple-checked study and come out with the same results. In the eyes of most law professors there would still be problems. For some reason, the study cannot be right because . . . . well ultimately because it did not produce the right outcome. Consequently the careful, honest and skilled researcher is also "out."

What does this mean for empirical research and law schools. The first reaction has been to resist empirical research in part, I think, for two reasons: law professors are threatened by what they do not know and law professors were concerned about what the numbers would show. Now, I think the future is "brighter." Well maybe not brighter but different. Law professors are likely to embrace empirical efforts as long as the results are the "right" ones and some empirical work will be valued.

So You Want to Go to Law School: The Series

2010-10-31T23:31:00.002-04:00

So You Want to Go to Law School, a viral video classic on the foibles of legal education and its relationship vel non to the practice of law, has become a full-blown series. David W. Kazzie, the author of the original video, will trace the adventures of Carrie-Ann Fox, an idealistic would-be lawyer, as she makes her way through law school. The first post-pilot installment introduces Will Graham, battle-hardened 2L, as Carrie-Ann's new friend with a sense of humor and shockingly deep insights into Lost and Grey's Anatomy:

Three Kinds of Diversity

2010-10-27T16:47:00.000-04:00

Diversity comes in many flavors. I here compare three types—diversity of skin color and sex, cultural diversity, and ideological diversity—and offer some observations about the distinctive costs and benefits of each. I conclude that, holding all else equal, a group of people having diverse colors and sexes will enjoy modest institutional gains at low cost, while a group touting ideological diversity runs the risk of high transaction costs but wins a shot at great intellectual gains. Groups with high cultural diversity fall in between those two extremes.

Diversity of skin color and sex appears on the face of a group, thus offering ready proof that its selection, such as through hiring and promotion, was not tainted with invidious discrimination. Holding all else equal—assuming, specifically, that the racially and sexually diverse group does not possess above-average cultural and ideological diversity—the costs of intra-group transactions remain low. Thus, for instance, might a facially diverse group of culturally and ideologically similar people get along very smoothly. Think, here, of an elite law school where every professor has absorbed Ivy League norms and all lean moderately left. They might bicker, of course; law professors specialize in that. But such a culturally and ideologically uniform group is not likely to host nasty public fights about ballot initiatives or the like.

Are there downsides to pursuing diversity of skin color and sex in hiring and promotion? Not if you can find enough well-qualified candidates, and not if you avoid discriminating against candidates for blameless having an uninteresting color or sex. Happily, it is not too hard to satisfy both conditions, these days.

Cultural diversity proves harder to document, and runs some risk of increasing intra-group transaction costs. Someone brought up solely within the confines of respectable East Coast institutions will have to work a bit to understand a peer raised Mormon, in Utah's backcountry. So, too, might differences of sexual orientation (which like cultural differences generally do not appear on a person's face) sometimes lead to innocent misunderstandings. Holding equal for other sorts of diversity, however, cultural differences offer many charms and few serious costs. Most of us, and especially those of us in academia, enjoy meeting friendly people with exotic backgrounds. When we share ideologies, moreover, meeting fellow travelers who differ from us suggests that our most heartfelt values transcend race, sex, and culture—a comforting, if somewhat smug, idea.

Ideological diversity, standing alone, proves at least as hard to document as cultural diversity—it does not appear on a person's face nor even, typically, in a person's dress or hairstyle—and much more likely to raise intra-group transaction costs. Religious differences prove largely intractable, though in polite society we tend to keep them private. Political differences, at least in American institutions, threaten to burst out into loud and public disagreements, however. Such frank exchanges can help each side to hone its arguments, of course, and thus offers the prospect of considerable gains both to the disputants and the group that harbors them both. But if local norms do not temper the tone and proper boundaries of ideological debate, transactions costs can easily soar, making it hard for a group to manage even run-of-the-mill functions efficiently.

In sum: diversity of skin color and sex offers few costs and modest benefits; cultural diversity creates slightly higher transaction costs but compensates with intriguing charms; and ideological diversity presents a high risk/high return strategy for institutions devoted to generating new and useful ideas.

[Crossposted at Agoraphilia, and MoneyLaw.]

Outsourcing Legal Education?

2010-10-27T12:35:00.005-04:00

The other day a pile of new course proposals by adjunct and non tenure track employees was delivered to the members of the curriculum committee. It made me wonder: How much of our curriculum is taught by people who did not go through a search process, have no role in faculty governance, or were not hired to be teachers. The number was high and growing. I doubt that makes us different from any other law school.

The one thing that all of these teachers have in common is that they are less expensive to use than tenure track professors. Also, I think it is generally true that they regard being able to say they are "professors" is a big deal to them.

I am not saying this is exploitation since these folks have choices but there a few things that seem amiss. (I do think the adjunct route is better for schools in highly populated areas were the choices are better, being able to say you are a "professor" is less important and the main qualification is not knowing someone on the faculty. )

First, what kind of rational hiring process spends tens of thousands of dollars in search expenses for professors on the one hand and conducts no search for those who will teach even more. I am not saying one is better but it's not a case in which the mix makes everything better.

Second, if the idea of a search is to ensure diversity and fair opportunities, why, if you take one position that involves teaching 3 courses and divide it in thirds, does the need for or desirability for a search disappear?

Third, part time teachers are cheap and seem desperate for the opportunity. Many have no say in governance and little contact with the school other than fitting in after work. Does this mean that power gravitates to the administration. More importantly, is that really a bad thing?

Distance learning, on line courses and degrees, externships, and part time teachers all involve outsourcing of a sort. The problem (or rather, the explanation) is not that it is driven by money grubbing management that hopes to make shareholders happy by cost cutting. In this case of outsourcing, no one gets richer.

I am not sure where this goes or even if I think it is wrong. I do not like it but that is a different matter. Most of this is cross-posted on classbias.

Encouragement For The Less Than Highly Motivated

2010-10-21T12:50:00.004-04:00

I'm not as big a fan as Jim of animations, but feel that it's time that some concern be shown for those who might struggle to stare down the cynics.

Remember, not everybody raises their hand in class.

So you want to go to law school?

2010-10-19T19:12:00.004-04:00

So you want to go to law school? Watch:

Congratulations to Wahoo Corner, the apparent origin of a video that is sure to become a viral classic for prelaw advisors, law students, lawyers, and even full-time legal academics. Hat tip to Donald Anton, Eric Fink, and Shubha Ghosh via Facebook.

Where Partners Come From: Finding the Brass Ring

2010-10-14T19:04:00.005-04:00

The ABA has become increasingly interested in outcome measures. US News uses relative bar pass rates and questionable at-grad and 9-month employment rates. Bill Henderson has looked at per capita NLJ first-year-associate hiring rates.

This post reports preliminary results of a study examining what many law students view as the ultimate outcome measure: partnership in a big firm. Specifically, it attempts to gauge how successful graduates of each US law school have been at obtaining big-firm partnership status over the past 25 years. The study is limited to current partners (October 2010) in US offices of the NLJ 250.

My research assistants have almost completed the task of collecting the relevant information for all 250 firms from Martindale-Hubbell on-line. I have personally quality-checked the spreadsheets for the five largest law firms in the United States, which collectively employ 13,942 US lawyers – 11% of all US lawyers employed by the NLJ 250. This post reports the results for those five firms. The five firms studied (with their two largest US offices, measured by number of partners) are:

Baker & McKenzie (Chicago, New York)
DLA Piper (Chicago, New York)
Jones Day (New York, Washington)
White & Case (New York, Washington)
Skadden Arps (New York, Washington)

Here follow the complete results, by rank and number of partners in those five firms nation-wide who obtained their JD degree within the past 25 years (I apologize for the awkward formatting):

1 Harvard 69
2 Georgetown 61
3 NYU 55
4 Columbia 52
5 Michigan 47
6 Northwestern 44
7 Chicago 42
8 Virginia 41
9 Texas 35
10 Fordham 34
11 UC Berkeley 29
12 UC Hastings 27
13 Duke 25
13 Ohio State 25
13 Pennsylvania 25
16 Notre Dame 23
17 Cornell 21
18 Boston U 20
18 George Wash 20
20 UCLA 19
21 Maryland 18
22 San Diego 16
23 American 15
23 Loyola Chicago 15
23 Loyola LA 15
23 Yale 15
27 Case Western 14
27 SMU 14
27 Stanford 14
30 St. John's 13
31 Chicago-Kent 11
31 San Francisco 11
31 Tulane 11
34 Emory 10
34 Houston 10
34 Illinois 10
34 USC 10
38 Boston College 9
38 Brooklyn 9
38 Georgia 9
38 Minnesota 9
38 Pittsburgh 9
38 Wisconsin 9
44 Cardozo 8
44 Cleveland State 8
44 DePaul 8
44 Indiana 8
44 Miami 8
44 Vanderbilt 8
44 Washington U 8
44 William & Mary 8
52 Catholic 7
52 John Marshall 7
54 UC Davis 6
55 Baylor 5
55 Duquesne 5
55 Pepperdine 5
55 Rutgers 5
59 Albany 4
59 George Mason 4
59 Hofstra 4
59 McGeorge 4
59 New York LS 4
59 SUNY Buffalo 4
59 Syracuse 4
59 Temple 4
59 Texas Tech 4
59 Tulsa 4
59 Washington 4
59 Washington & Lee 4
71 Akron 3
71 Baltimore 3
71 Brigham Young 3
71 Cal. Western 3
71 Drake 3
71 Florida 3
71 Franklin Pierce 3
71 Golden Gate 3
71 Mercer 3
71 Northeastern 3
71 Oregon 3
71 Santa Clara 3
71 South Texas 3
71 Villanova 3
71 Widener 3
86 Alabama 2
86 Arizona 2
86 Capital 2
86 Cincinnati 2
86 Colorado 2
86 Connecticut 2
86 Creighton 2
86 Dayton 2
86 Florida State 2
86 Iowa 2
86 Kansas 2
86 Louisville 2
86 Marquette 2
86 North Carolina 2
86 Ohio Northern 2
86 Pace 2
86 Seton Hall 2
86 Southwestern 2
86 Toledo 2
86 Washburn 2
86 Wayne State 2
107 Arizona State 1
107 Arkansas 1
107 Campbell 1
107 Denver 1
107 Detroit-Mercy 1
107 Howard 1
107 Louisiana State 1
107 Memphis 1
107 Missouri 1
107 New England 1
107 Oklahoma 1
107 Oklahoma City 1
107 Penn State 1
107 Southern Ill. 1
107 St. Louis 1
107 St. Thomas 1
107 Stetson 1
107 Suffolk 1
107 Tennessee 1
107 Thomas M. Cooley 1
107 Valparaiso 1
107 Vermont 1
107 Wake Forest 1
107 Western NE 1
107 Western State 1

Focusing on the top 50 law schools (by top-5-firm partners), 21 law schools outperform their 2010 US News ranking by 10 or more (e.g., San Francisco is ranked 67 places higher on this scale than in the 2010 US News rankings):

San Francisco 67
Loyola Chicago 64
St. John's 57
Loyola Los Angeles 48
Chicago-Kent 46
DePaul 43
San Diego 39
Pittsburgh 33
Case Western 28
UC Hastings 27
Miami 27
Houston 25
Brooklyn 23
Ohio State 22
Maryland 22
American 22
SMU 22
Fordham 20
Tulane 14
Georgetown 12
George Washington 10

Note: Cleveland State is ranked 44th on this measure, although third tier in US News, and therefore clearly belongs on the list of overperforming schools. Indiana is not evaluated for under- or overperformance, because Indiana graduates do not typically list the campus, and the two campuses are ranked differently by US News.

Further work

My next step is going to be to extend the analysis to the full NLJ 250. The fact that the five firms analyzed employ 11% of all lawyers employed nationwide by the NLJ 250 suggests that the results reported here are likely to be somewhat representative, but this needs to be confirmed. In particular, I expect that Harvard is a more likely recruiting target for firms further down the NLJ 250 list than its competitors. (In Los Angeles, for example, Harvard graduates are heavily represented among big-firm partners; Chicago graduates are not.)

I have also collected city-by-city data. Again, I expect it will show that few schools are actually national law schools – in the sense of producing significant numbers of big-firm partners in multiple cities. Here again, I expect Harvard to perform well.

Finally, I intend to compare the percentage that each school's graduates comprise of all entry-level hires with the percentage that that school's graduates comprise of the NLJ 250 partner population. In effect, I intend to compute a success/washout ratio for each school. My intuition is that firms hire very heavily at some schools because of the schools' prestige, notwithstanding the fact that few graduates of those schools ultimately become partners, and that the converse is true as well. This information may be useful to both students and hiring partners.

Point Counter-Point

2010-10-01T18:55:00.003-04:00

Since I received this in my email I suppose most other law professors did as well. It's about scholarly impact. I think an excellent and thoughtful reponse is this by Brian Tamanaha. Brian pretty much covers all the bases as far as the problems of counting as a way to assess scholarship.

More on UF Rent Boy Kerfluffle

2010-09-29T13:03:00.002-04:00

Over yonder.

Tenure, Academic Freedom, Broadcasting, and Bill Inserts

2010-09-24T22:48:00.008-04:00

You do not hear much about academic freedom from law professors because they rarely say anything controversial that anyone hears about. In fact, wouldn't it be far more interesting if someone were listening to us? It may seem odd that there is so little controversy given the iron clad protection we have. The reasons for the quiet, I think, can be traced to the fact that straying ideologically or culturally from the mainstream (of law professors that is) means you may be labeled "difficult" or "uncollegial" and these are career killers as much a being labeled a racist, whether true or not.

In fact, what an upside down situation it is. The biggest threats to academic freedom are clearly the professors themselves. Many scrutinize candidates for hiring and tenure to make sure they will "play ball" and I do not mean Moneyball. They want to make sure you are "tolerant" but what they mean is will you tolerate their intolerance.

What also concerns me is that, in state schools at least, faculty use taxpayer money to promote their only political agendas. Pleeeze do not tell me it's a matter of academic freedom. Academic freedom is what economists call a free good -- my speaking out hardly interferes with anyone else's. On the other hand, resources are limited and promoting one view with University resources means, by definition, that the resources are not available for something else.

Given the political inclinations of the vast majority of law faculty it reminds me of issues about equal time that arose in the context of telecommunications and then later in the context of inserts in utility bills. (The terms Red Lion, Consolidated Edison (or was it Central Hudson) and Pacific Gas and Electric come to mind but I am too busy now pushing my own agenda to look it up.) The idea in these instances was that speakers had special access due to a government granted privilege.

Of course, those wanting parity in those cases eventually lost to the incumbents. Nevertheless, law professors at state law schools are like a combination of broadcast licensees and public utilities. They are permitted to promote their personal views using the money of others. When that happens shouldn't the institution be required to subsidize as well those who dissent? Don't you just have a hunch that those with the political philosophy that led them to press for equal access or time in those other contexts would not hear of such a thing when it comes to their own special status?

Shameless self-promotion.

2010-09-10T13:03:00.000-04:00

See here.

Elite Relief

2010-09-10T11:13:00.002-04:00

If there is way to open doors for elites while closing them to others, law schools will find a way. And in the process they make some really questionable decisions from a economic perspective.

Take a recent policy adopted by UF. We now have a program of hiring people with "outstanding academic credentials" and with little or no scholarly record or teaching experience." (Yes it sounds like every other entry level hire.) They then work here with a reduced teaching load and summer grants for 1-4 semesters and, after our careful mentoring, go out to be recruited by other schools.

I'll give you one guess as to what outstanding academic credentials means to people who do law school hiring. It means people who have records like their own -- expensive and elite schools. (We stick closely to the Justice Scalia rule that silk purses are more readily made from elite grads than from your crummy old top of the class at say Wisconsin or Florida.) In this case, the candidates for relief are ones who had every conceivable advantage already and did not get a tenure track position by going through the meat market process. So what this appears to be is a relief program for elites who otherwise could not find a job.

I cannot comment on the relative productivity of our most recent hires who came from elite schools and seem to be doing well because we have no one here hired in the last six years, at least as I recall, who did not go the elite route and fit the profile even if it meant dipping pretty low in the class. As a general matter, however, at least, there is no correlation between elite credentials of any kind and productivity. In fact, it the may be inversely related.

So now we are taking it on ourselves to train elites who did not quite make the grade in the meat market. And then, after the investment is made and they are "all prettied up" out they out for someone else to hire. In other words we recoup none of the investment.

Wouldn't it make more sense to see if we can prepare potential law professors who did not have every opportunity to make the grade and fell short. Say someone ranked high from a decent state law school. Our "good deeds," as usual, extend only to those who look and think like us, no matter how conventional that may be.

I've been told we are doing this as part of a moral obligation to avoid free riding on other law schools. In the scheme of moral obligations that is an odd one. We are a State institution and have a duty to our stakeholders. Subsidizing the already privileged would not be ranked high, if ranked at all, among our moral obligations. Perhaps if we hired our own graduates it would make more sense but, although we pay others to hire them, we are apparently above that.

Maybe we plan to pay the relief candidates a significantly lower wage and this is a move to lower our teaching costs. In this way they "repay" us for our investment. This would not change any of the above but it would shift the silliness balance a bit to the other side. This, however was not part of the pitch.

Cross posted at classbias

New school

2010-08-26T17:53:00.002-04:00

The double entendre is very much intended, because the New School's new president is anything but old school.

The New York Times article announcing the appointment of Northwestern Law School dean David Van Zandt as president of the New School offers this delicious observation from soon-to-be President Van Zandt:

People want to know what the facts are, and through a lot of discussion, people can understand why change may be good. . . . [A]cademics tend to be the most liberal politically and the most conservative when it comes to changing their own organization.

Congratulations, and good luck.

The Soccer Plan for Law Professors

2010-08-22T14:52:00.007-04:00

The best soccer book I have read is Joe McGinniss' The Miracle of Castel di Sangro. Tim Parks' A Season with Verona is also good as is Hornsby's Fever Pitch. As soccer fans know, in the leagues within countries there are multiple levels. When a team finishes low in their level they are "relegated" to a lower level and teams who did well at the lower level are raised to play in a higher level. This all depends on rankings (Fellow readers of Castel di Sangro will have an appreciation of some unsavory aspects of this.)

Law schools do not have head to head, score keeping competition so there is no way to actually relegate a top 20 law school to the next 20 in the rankings if it is at the bottom of the 20. In way, USN&WR does some of this - a school can fall into a lower tier as mine did a couple of years ago and then fight its way back. But relying on USN&WR as a guide for this is a bit like asking Chauncy the Gardener to take care of a nuclear reactor.

But suppose there were some why of ranking faculty productivity alone -- pages published, teaching evaluation by those 5 year out of law school. You can see where I am going. Most law professors are tenured but does this rule out relegation, at least in this imaginary world. They get hired largely on the bases of credentials and tenured unless they monumentally screw up. So there really is nothing to do with the ones who are disappointing, except send them down a notch. The problem is that is hard to determine what it means to be relegated to a lesser school when lesser is not defined. On way around this is to relegate to a school where the productivity per faculty member is less than that at the underachiever's school. You could get promoted to you old school or higher by then outperforming the people at the new school.

I know there are many problems here. But you cannot get rid of tenured people and most law school deans do not have the money or courage to administer financial punishment. Surely there are antitrust issues but are they really as bad as the ones the NCAA has overcome by its lame "amateurism" rationale?

Best of all, in a Darwinian sense, schools can get rid of their mistake and professors will end up with their true Peers. Some will be relegated to Community Colleges, High school and out of the profession completely.

Ok, I guess I am kidding but not 100%.

Public Law School Faculty Salaries

2010-07-12T12:18:00.003-04:00

See here for a list of law faculty salaries at Arizona State, Florida, George Mason, Illinois, Michigan, Missouri (Columbia), North Carolina, Ohio State, Rutgers (Camden & Newark), SUNY (Buffalo), Texas, UC-Berkeley, UC-Davis, UC-Irvine, UCLA, Virginia, William & Mary, and Wisconsin.

Making the Grades

2010-06-22T14:22:00.001-04:00

The New York Times reports that at least ten law schools have raised their grade curves in the last two years. The new rationale for this timeworn response is that students need a competitive edge in a tight job market and higher gpa, however contrived, is just the thing. Ironically, by outing the culprit law schools, the New York Times has probably reversed any advantage their students might have reaped from the sudden lift in gpas.

The premise that a law school can give its graduates the edge in the job market simply by raising their gpas across the board is offensive. Rank in class and rank of law school provide much more useful comparative data than gpa, so the premise that higher gpas, all other things equal, will translate into more job opportunities is dubious. Even assuming that raising the grade curve for all students yields a benefit among a segment of the market (gpa fetishists), the benefit to students at a particular school is at best a wash. Students with otherwise lackluster gpas benefit at the expense of the top of the class who find it increasingly difficult and pointless to distinguish themselves from their peers. If everybody is special as a matter of law school policy, why bother with the time consuming ritual of studying?

Raising the grade curve may make a law faculty feel compassionate in the short run. But all it really accomplishes is to make the faculty less relevant to the market as an evaluator of relative quality. Expert faculty differentiation among students (via competitively awarded grades) is a huge part of what makes a JD valuable. If the market doesn’t perceive any meaningful differentiation among students on the basis of the grades we assign, we’ll be out of business in the blink of an eye. At the very least, we won’t be worth our current salaries.

Two things remain true regardless of the winds of grade inflation. I’d hire someone with a C+ in Corporate Tax over another with an A in (fluff of your choice) any day of the week. And, all students want A’s until the day everybody gets them.

Do Law Schools Golf?

2010-06-10T12:19:00.003-04:00

I used to ask my students whether they would be golfers or football players when they graduated. The distinction I was trying to make was between golf, a sport in which players observe the rules and actually report themselves with they violate them, and football, where there are also rules but the idea is to bend them and disregard them and hope not to be caught. So, a lineman holds a charging defensive end and it's a great play as long as he is not caught. In golf it is a matter of observing social norms or even principle. In football it is strictly a cost benefit analysis.

When I ask whether law schools golf I mean both the faculty and the institutions as a whole. For the institutions the best example to which these standards could be applied is the information that forms the basis of the USN&WR rankings. I'd say that the schools fit the football player model — it is not cheating unless you are caught.

How about faculties? The example here might be teaching evaluations and I'd say it is mixed. To be a golfer means to do what is best for the students to prepare them for practicing law. Sometimes that clashes with high teaching evaluations. For example, you may be a stickler for attendance, preparation and being on time because you believe those practices are consistent with professionalism in practice. On the other hand, you may not stress those things because you may then be regarded as being disrespectful and if your dean is big on student evaluations and keeping the students happy it's not a good thing for you. I will forgo the list of ways teachers can game the student evaluations. If enough people game them they become irrelevant. My own view is that even when not gamed only the very low ones or the very high ones signal that something is amiss in the classroom. Yes, I did say even very high ones are suspect — even on the rare occasions I get them.

So if law school administrations are operating by football player rules and a significant number of law professors are doing the same, what does that suggest about the example set for students. Should we expect them to do what we say or to do as we do?

I actually do not know but I hope it is not the latter. Maybe their parents have taught them golfing rules. On the other hand, many years ago a friend whose daughter filled the newspaper racks around campus told me that the only machine where there were consistent more papers taken than money left was the Law School. That is football player behavior and not a good sign.

Collateral Damage

2010-06-01T11:42:00.003-04:00

Law schools have now engaged in the USN&WR battle for several years and the collateral damages is mounting. I used to rail against my law school's participation in the war but now wish the Dean would go nuclear, whatever that means.

Most of the collateral damage is known to most of us. The biggest is huge publicity machines that turn out glossy magazine as schools fight for something comparable to economic rents. As best I can tell the biggest beneficiaries of these efforts are administrations who then can keep alums off their backs and keep their jobs. Faculties win too thought. Happier alums make for more contributions. I think we would all be astounded to compare most law school's publicity budgets of 1980 with what they are in 2010.

Other collateral damage is the hiring of one's own graduates in order to inflate the employment figures. Why is this collateral damage? Mainly it is a charitable contribution or welfare payment to already well-heeled people.

And then there is the endless fiddling with classes. The standard is to reduce the size of the entering class and admit more transfer students. Or report students as part time.

My reason for this post, since we have hashed this out before, is the impact of the new emphasis on GPA's and LSAT scores. I used to have the view that a state school should provide some opportunity for students who did not have the highest GPAs and LSAT scores. In favoring that view I did not think about the older applicants. What happens to a person who graduated with a 3.3 twenty years ago or more before grade inflation or who has an under 160 LSAT score but had not taken a standardized test for 25 years? The GPA/LSAT obsession pretty much closes them out even thought a 3.3 might be a 3.8 today. That person also offers age diversity to a school that generally admits 22-25 year olds who are wet behind their ears and have no idea what they want to do in life.

Shameless self-promotion, part n.

2010-05-27T00:21:00.000-04:00

See here. Our book came out in print today.

U.S. News: Less Transparency = More Fairness

2010-05-20T17:28:00.006-04:00

Robert Morse today announced that, in response to evidence that law schools had been gaming its rankings, U.S. News would change the way it estimates the "Employment at 9 Months" measure for schools that decline to report that figure. Paul Caron offers some background here. Said Morse: "U.S. News is planning to significantly change its estimate for the at-graduation rate employment for nonresponding schools in order to create an incentive for more law schools to report their actual at-graduation employment rate data. This new estimating procedure will not be released publicly before we publish the rankings."

I understand that U.S. News generated the formula it formerly used to estimate the Emp9 figure for non-reporting schools by running a regression comparing the Emp0 and Emp9 data from reporting schools. It used to puzzle me that U.S. News did not evidently re-run the regression each year, but rather stuck with the original estimate. In retrospect, though, I see that sticking to the same formula might have partially helped U.S. News offset the gaming it so dislikes. After all, as more and more schools with low numbers refused to report Emp9 data, opting to rely instead on the publicized formula, the correlation between Emp0 and Emp9 scores would change so as to favor non-reporting schools. Better to stick with the old formula, dated though it might be, than to increase the incentive to opt out of reporting.

U.S. News thus avoided a vicious cycle, but only at the cost of signaling to schools exactly when hiding Emp9 data would help their rankings. Will its new reticence work? Schools can now only guess at how U.S. News will turn Emp0 numbers into Emp9 estimates, and will rightly worry that they might misjudge the new cutoff. Even if big-E ethics does not counsel reporting Emp9 numbers, therefore, small-c conservatism will. Granted, a school might reason, "U.S. News will still try to find a reasonably accurate way to turn Emp0 data into Emp9 estimates, and it has always helped us to not report in the past, so it remains a gamble worth taking." But such schools should also rightly worry that U.S. News might throw a punitive little kick into its new formula, to encourage schools to worry more about accuracy than about rankings.

[Crossposted at Agoraphilia and MoneyLaw.]

Over 100 Law School Commencement Speakers

2010-05-19T22:02:00.001-04:00

Here.

Did 16 Law Schools Commit Rankings Malpractice?

2010-05-11T09:59:00.001-04:00

Here.

U.S. News Law School Rankings: Judicial Clerkships

2010-05-07T08:21:00.000-04:00

Here.

The Hand Rule

2010-04-27T14:12:00.002-04:00

Judge Learned Hand famously opined that if the burdens of preventing an accident outweigh its cost multiplied by its probability, it does not constitute carelessness to avoid those burdens. Doesn't that little gem make you want to break out in song? I've got just the thing: The Hand Rule, a little ditty I recently composed and played for some students at Chapman Law School.

Though I've yet to record The Hand Rule, I can offer you a .pdf of the lyrics and chords as well as a PowerPoint, complete with pictures of Learned Hand, to accompany the performance (both uncopyrighted). Here's a sample of a verse and the refrain:

In the case of Carrol Towing Co., Learned Hand set forth to show
The meaning of "reasonability."

Defendant failed to leave in charge, a man to watch its unmoored barge.
And plaintiff's cargo met calamity.

"Negligence!" plaintiff complained and on appeal, Judge Hand explained,
The proper scope of liability.

Learned, learned, Learned. Learned in the law was he.
Learned Judge Hand, Learned, he judged so learnedly!
So learn what the Hand Rule teaches: "There's no liability,
If the burden of the cost exceeds the loss times the probability."

Silly? Yes, but it gets students to pay attention and remember what they learn. So goes the modus operandi of the Law and Fun school.

[Crossposted at Agoraphilia and MoneyLaw.]

2011 U.S News Peer Reputation Rankings & Overall Rankings

2010-04-16T08:52:00.000-04:00

Full list here.

Chapman Dean Search--No Kidding!

2010-04-01T15:58:00.004-04:00

We here in the sober and serious groves of academe have no time for foolishness, April 1st or not. So while you may think I jest in claiming that some very lucky person will soon get to become the new Dean of Chapman University School of Law, I assure you that I jest not. This good news comes straight from Chapman's Dean Search Committee (on which I happen to serve).

Please consider this call for applications yourself, or share it with someone else you think might be ready a life in paradise, helping our law school speed toward its bright future.

____________________________________________________________

CHAPMAN UNIVERSITY SCHOOL OF LAW

DEAN

http://www.chapman.edu/law

March 24, 2010

The Chapman University School of Law invites applications and nominations for the position of Dean of the School of Law.

ABOUT THE SCHOOL OF LAW:

The Chapman University School of Law opened in 1995 and is located in the Historic Old Towne district in Orange, California. The School of Law is housed in Donald P. Kennedy Hall, a state-of-the-art facility completed in 1999. Chapman is fully accredited by the American Bar Association (ABA) and a member of the Association of American Law Schools (AALS).

The School of Law stands at an exciting and pivotal moment in its history. It already enjoys excellent students, accomplished faculty and outstanding facilities. The School of Law now seeks a dynamic intellectual leader to build on Chapman’s many successes and expand and improve its national reputation. The Chapman University School of Law seeks a Dean who will embrace and match our ambition to be recognized as one of the top 50 U.S. law schools.

EXCELLENT STUDENTS:

In 2009, the School of Law enrolled 547 J.D. and 76 LL.M. students. The median LSAT was 158 and the median G.P.A. was 3.43. According to the most current ABA data, this ranks Chapman #87 in median LSAT and #79 in median G.P.A. among ABA approved law schools.

Chapman students are increasingly successful on the California Bar Exam. Chapman’s first time takers passed at a rate of 81% on the July 2009 exam, earning a pass rate ranked 9th out of the 20 California ABA approved law schools (ahead of Pepperdine and the University of San Diego). Chapman’s bar passage rate on the July California Bar Exam has increased year-over-year for each of the past five years: 59% in 2005; 63% in 2006; 72% in 2007; 77% in 2008; and 81% in 2009.

Chapman’s students are extraordinarily happy with their law school experience. In the results of the Princeton Review’s annual survey of law students reported in the “Best Law Schools,” Chapman consistently ranks among the top ten law schools in the nation:

• Best Classroom Experience—#2 in 2010; #3 in 2009; and #7 in 2008.
• Best Quality of Life—#3 in 2010; #3 in 2009; and #1 in 2008.
• Best Professors—#7 in 2010; #7 in 2009; and #5 in 2008.
• Most Diverse Faculty—#9 in 2009.

Chapman’s admissions program is highly competitive. Applications for the Law School have increased 7% and 19% in the past two years and Chapman has admitted only 26% (2008) and 31% (2009) of its applicants.

CHAPMAN’S OUTSTANDING FACULTY:

The full-time faculty has grown in size to 48 full-time faculty members in 2009-2010. The expansion of faculty has included high impact lateral appointments and top caliber entry-level, visiting and program faculty members. The student/faculty ratio has fallen during this period to 8.9, one of the five lowest in the nation.

Also during this time, the Law School reformed its Legal Research and Writing Program from an adjunct model to full-time instructors with long-term renewable contracts, and greatly expanded its academic programs, including new certificate, LL.M., joint degree, summer abroad, and clinical programs.

Many of Chapman’s law faculty hold advanced degrees, including Ph.D.s from Oxford, Arizona, Virginia, Harvard, Minnesota and Claremont, LL.M.s or other advanced legal degrees from Yale, NYU, Pace, Michigan, Chapman and the University of Stockholm and Masters Degrees in diverse subjects such as Business Administration, Social Work, Philosophy, Economics, International Service, Latin American Studies and Political Science. The faculty also includes a Nobel Laureate and five former U.S. Supreme Court clerks who clerked for six different Supreme Court Justices.

Chapman professors excel as legal scholars, real world advocates, and passionate educators, representing a wide range of specialty areas and ideological views. The full-time faculty includes numerous chairpersons and committee members for important ABA and AALS committees, three members of the American Law Institute (one elected, one life and one ex-officio), a Fellow of the American Psychological Association, a Fellow of the American College of Tax Counsel, a member of the Advisory Board to Lexis/Nexus Publishing, a member of the British Academy of Film and Television Arts, a member of the Federal Reserve Board’s Consumer Advisory Council, several former partners in National Law Journal “Top 250” law firms, and the former President and COO of Village Roadshow Pictures.

Chapman’s law faculty includes numerous nationally-recognized book and casebook authors. The faculty is actively engaged in producing top scholarship. Faculty productivity has ranked in the top 50 U.S. law schools for the last four years. Chapman currently ranks #45 in “Total New Downloads” and #37 in “Total # of Downloads (all time)” on the Social Science Research Network among U.S. law schools.

The School of Law is home to the Center for Global Trade & Development, the Center for Lawyering & Trial Advocacy and the Center for Land Resources. Chapman offers its law students the opportunity to complete emphasis programs in Entertainment Law, Advocacy and Dispute Resolution, Environmental, Land Use & Real Estate (ENLURE), International Law and Tax Law. A joint JD/MBA is offered in conjunction with Chapman's acclaimed George L. Argyros School of Business and Economics, and a new JD/MFA in Film & Television Producing provides additional opportunities for hands-on learning in conjunction with Chapman's Dodge College of Film and Media Arts.

Although the school is relatively new, its programs have thrived. Chapman’s tax law program recently debuted in the 2010 U.S. News & World Report Law School Tax Law Specialty Rankings as a Top 25 tax law program. Chapman entered the rankings at number 17.

Chapman’s faculty also oversee a wide array of clinical opportunities, including the following: the Center for Constitutional Jurisprudence; the Alona Cortese Elder Law Clinic; the Ninth Circuit Appellate Clinic; the Family Violence Clinic; the Tax Law Clinic; the Entertainment Contracts Law Clinic; the Appellate Tax Advocacy Clinic; and the AMVETS Legal Clinic.

ABOUT THE LOCATION:

Orange County offers one of the best places to live in the United States. It is the country’s fifth largest county with more than 3 million people residing in many richly diverse ethnic, social, intellectual and environmental communities in 800 square miles. It boasts a diverse economy—so large that, if it were a nation, it would rate as the 32nd largest GNP internationally. And the weather is great, with an average of 258 days of mostly sun and average lows in January of 45 degrees.
Orange County includes numerous major attractions, including Disneyland, Knott’s Berry Farm, Angel Stadium (home of the Los Angeles Angels of Anaheim), the Honda Center (home of the Anaheim Ducks), and the Orange County Performing Arts Center, as well as some of the most beautiful beaches in the country. Short drives lead to the beauty and recreational opportunities of the Pacific Ocean, the San Bernardino and San Gabriel Mountains, low and high deserts, Los Angeles, San Diego and several major and international airports.

JOB DESCRIPTION:

The success of the Law School is integral to the success of Chapman University. Chapman University encompasses seven schools and colleges: Wilkinson College of Humanities and Social Sciences, George L. Argyros School of Business and Economics, Lawrence and Kristina Dodge College of Film and Media Arts, Schmid College of Science, College of Performing Arts, School of Law and College of Educational Studies. Named to the list of top universities in the nation by U.S. News & World Report and the Princeton Review, Chapman University enrolls more than 6,000 undergraduate, graduate and law students.
The Dean reports to the Chancellor of the University and serves as a key member of the Deans’ Council. The Dean provides leadership in all aspects of operation and evolution of the Law School. This includes academic affairs; administration and planning; student recruitment, enrollment management and financial aid; financial management and institutional advancement. The Dean is charged with increasing the quality and quantity of the academic, certificate and clinical programs and, enhancing the visibility of the Law School so that its reputation reflects the strong objective measures of quality already achieved. In addition, working closely with the Chancellor and the President, the Dean will be responsible for fund-raising and strengthening the link between scholarship and classroom excellence.

JOB QUALIFICATIONS:

Strong candidates will be superior managers and leaders who can develop and implement a clear vision for the school; who are able to develop a strong sense of community; who are respected by the faculty, trustees, alumni, and in the legal education community as a whole; who are effective fundraisers; who are strongly committed to diversity among faculty, students, and staff; who are able to foster scholarly productivity and teaching excellence; excellent communicators; and who are highly effective at attracting, retaining, and developing faculty, students, and staff.

APPLICATION PROCEDURE:

Chapman University is an Equal Opportunity Employer, committed to providing career opportunities to all people, without regard to race, color, religion, gender, age, national origin, sexual orientation, disability, or veteran status. The Dean Search Committee welcomes application and nominations of women and minorities.

The ten-member Dean Search Committee is chaired by Dr. Menas Kafatos, Vice Chancellor for Special Projects, and Dean, Schmid College of Science. The Committee invites applications, nominations and inquiries immediately. The Committee will conduct the search with confidentiality of all candidate information. References will not be contacted and candidacies will not be made public without the prior knowledge and approval of the candidate. The review of applications and nominations will continue until the position is filled.

All nominations and applications should be sent via email to:

Chapman School of Law Dean Search Committee
Dr. Menas Kafatos, Chair of the Search Committee
c/o Ms. Erika Curiel, Office of the Chancellor
Memorial Hall
One University Drive
Orange, California 92866

Email: curiel@chapman.edu

Phone: 714-997-6736

____________________________________________________________

Size doesn't matter. Really.

2010-03-16T01:49:00.003-04:00

Once again it's tournament time. The NCAA men's basketball tournament always seems to bring MoneyLaw themes to the fore. This year is no exception.

Consider this statistical study (.pdf download) by Scout.com of the factors that let talented players elude the major college teams of the six power conferences and slip down, so to speak, to the midmajors:

Perhaps the most telling analysis in the study comes from how to judge a player’s frame. Midmajor big men are often viewed a tick off by powerhouse programs. Be it too short, too skinny or too weak, there is always something holding them back. Guards may be too short or slow. Forwards may not have the proper size to be considered a power forward or the proper skills to be considered a small forward. . . .

[The study concludes] that midmajor programs should evaluate physical attributes differently.

“It seems that, for guards, size in both directions isn’t correlated with success. . . . For forwards, rather than needing both height and bulk, one or the other is enough if the other skills are there.”

Different sport, same result. The mismeasure of athletes — and presumably of students, lawyers, and professors as well — is a long-running theme in MoneyLaw. Some of the funniest passages in Michael Lewis's Moneyball (2004) involve the laughably misguided reliance of baseball scouts on their visual evaluation of prospects' physiques:

Whatever happened when an older man who failed to become a big league star looks at at a younger man with a view to imagining whether he might become a big league star, Billy [Beane] wanted nothing more to do with it. He'd been on the receiving end of the dreams of older men and he knew what they were worth. Over and over the old scouts will say, "The guy has a great body," or, "This guy may have the best body in the draft." And every time they do, Billy will say, "We're not selling jeans here," and deposit yet another highly touted player, beloved by the scouts, onto his shit list. [Id. at 31.]

Or even more crudely:

[Quoting Paul DePodesta:] "You know what gets me excited about a guy? I get excited about a guy when he has something about him that causes everyone else to overlook him and I know that it is something that just doesn't matter." When Brant Colamarino removes his shirt for the first time in an A's minor league locker room he inspires his coaches to inform Billy that "Colarmarino has titties." Colamarino ... does not look the way a young baseball player is meant to look. Titties are one of those things that just don't matter in a ballplayer. Billy's only question for the coaches was whether a male brassiere should be called a "manzier" or a "bro." [Id. at 116-17.]

Just Go to This Cite

2010-03-15T11:19:00.001-04:00

http://www.youtube.com/watch?v=mLC7Q3DTzi4

Well orchestrated

2010-02-28T16:12:00.002-05:00

From a former student's touching tribute to her violin teacher:

Mr. K. pushed us harder than our parents, harder than our other teachers, and through sheer force of will made us better than we had any right to be. He scared the daylight out of us.

I doubt any of us realized how much we loved him for it.

Power and Entitlement

2010-01-28T23:43:00.008-05:00

Nearly 5 years ago I wrote an article, "Law Faculty Ethics: Shirking, Capture and “The Matrix,”" 82 DETROIT MERCY LAW REVIEW 397 (2005), in which I identified the many ways I felt law professors were shirkers. I analogized it to regulatory capture in the sense that faculty who were supposed to govern law schools for the benefit of shareholders -- students, taxpayers, donors -- actually governed to benefit themselves. The range of questionable activities ran from teaching specialized low enrollment courses because the topic was of interest to the teacher (but not to very many students) to foreign boondoggles, pushing ideology in the classroom, and hiring and tenure decisions based on social and political considerations rather than the merits of the candidates. Over on Classbias, where I do most of my complaining about law professor behavior, I attribute much of this to a sense of entitlement.

I realize that many disagree but if you think I am a little bit right, a recent article in the Economist (January 23, 2010) is quite interesting. Psychologists were able to induce in subjects a sense of power or powerlessness. They then asked questions about the rightness or morality of various corrupt acts. Consistently the subjects with power viewed the same sleazy acts as less immoral when they did them than when those with less power did them. In short, power does corrupt.

The kicker in this was a further step. The experiments were repeated by adding the factor of a sense of entitlement. That is, some people were led to believe they deserved their positions of power while others were led to believe the opposite. Here, as you might expect, those with a sense of entitlement were more likely to abuse their power and not understand why there was a problem. After all, they are special.

This may help explain some faculty behavior. After all, law faculties are largely populated by children of privilege. (I wonder what the record is for the most expensive education. I think we have it.) Many times their sense of entitlement is over the top. They deserve, therefore, to teach what they want to teach at the time they want to teach it, they deserve that new furniture or to vote yes on tenure for a pal because they have been told, since birth, that they are special. Some have a virtually infinite capacity to explain why they are deserving and why they are on the moral high road whether or not they are. I am convinced that the most dangerous ones are those who have no sense at all of how their power and sense of entitlement affect their behavior. I'd say in hiring, a law school would do well to hire those without a sense of entitlement although I am not sure how one tests that other than taking a closer look at the socioeconomic background.

Having said all this, it is clear that it does not quite all fit together so simply. Looking at my own faculty which is as heavily populated by children of privilege as any other, I am not sure the corruption level is all that high. In fact "corruption" is not really on point. Self referential decision making and obliviousness to the welfare of the stakeholders is more accurate. It appears mainly in hiring or tenure decisions when people allow social and political factors to influence their votes or even the veracity of their reports on a candidate's reviews. I am not an administrator so I have no way of knowing how demanding people are with respect to exactly the right schedule or for extra travel money or research support. Maybe the most "corrupt" thing going on is looking the other way when someone else is engaged in an activity that cannot be linked to the welfare of the stakeholders. I attribute this to indifference and log rolling but it is shirking nonetheless.

More importantly, not all those with an elite education seem to feel entitled. Far from it. Plus, some of those who do not have an elite education seem to feel an extreme sense of entitlement. Maybe all that can be said is those with the elite educations are more likely to have a sense of entitlement and more likely to justify their anti stakeholder activities than those without the same background.

I'd still like to avoid hiring the privileged for reasons of diversity and because there is no known correlation between how highly ranked a school is and how productive its graduates will be as law professors. But when it comes to the corrupting potential of a sense of entitlement, it would nice to assess it directly by administering to each candidate an "entitlement test."

My Favorite Motions

2010-01-06T00:15:00.002-05:00

Faculty meetings may have their charms, but efficiency does not rank among them. Many a time I have looked around a room full of my colleagues, long minutes into a winding discussion of what was supposed to take only a few moments to resolve, considered the full agenda still stretching before us, and bemoaned the deadweight social costs of law school governance. Allow me, then, to share a couple of partial cures—one an old favorite and the other a new find—from Robert's Rules of Order.

I've long been a fan of "calling the question," as we casually style the motion at my school. Full-on Robert's geeks know it as the "Previous Question" motion. Call it what you like, you have to love its effect: It takes precedence over every debatable question and, if the motion carries, forces a vote on the issue under debate.

Suppose, for instance, that a handful of faculty members have been arguing back and forth about some relatively inconsequential motion for 20 minutes or so, as everyone else's attention wanders and more important business goes untended. You get the Chair to recognize you and simply say, "I move to call the question." Once the motion carries—and often with sighs of relief—you and your colleagues can vote on the trifling motion and move on to other topics. (Section 20 of the Rules offers caveats and details, but most law school faculties seem to manage, surprisingly enough, with less than the full panoply of formalities.) Try calling a question the next time a faculty meeting starts spinning its wheels. You—and most your colleagues—will enjoy the ride.

Calling the question does not cure all the inefficiencies that afflict faculty meetings, however. Because we law profs so love to hear ourselves speak, for instance, we sometimes run on (and on and on) a bit. Polite coughs, finger drumming, and the like usually suffices to keep our monopolizing tendencies in control, happily. In fact, it was only very recently that I found myself wondering what a fellow could do when those informal measures failed. Here, too, Robert's Rules offers a remedy: a Question of Order pertaining to decorum.

Roberts Rule's provides, in § 34, that "no member shall speak more than twice to the same question . . . nor longer than ten minutes at one time, without leave of the assembly, and the question upon granting the leave shall be decided by a two-thirds vote [§ 39] without debate." Upon encountering an infraction of that rule, you have the right to interrupt the speaker. As section 14 says, one who so objects "shall rise from his seat, and say, 'Mr. Chairman, I rise to a point of order.'" The Chair must then decide the issue immediately, without debate. If the Chair finds the challenged speaker out of order, and if anyone objects to the speaker continuing, he or she must cede the floor unless the assembly votes to grant leave.

That sounds like strong medicine, granted, and would doubtless ruffle some feathers. But faculty meetings pose a classic tragedy of the commons, one where just a few overly-talkative people risk consuming far more than their fair share of everyone else's time and attention. Raising a Question of Order can help you save you—and thus your school—from the perils of a grossly inefficient faculty meeting.

[Crossposted at Agoraphilia, MoneyLaw.]

Moneyball, Volleyball, and Faculty Productivity

2009-12-09T09:26:00.000-05:00

Here.

"Exploding Offers"

2009-12-09T08:55:00.005-05:00

Complaints about offers with deadlines perceived as short often ignore the realities facing non-top-tier schools and candidates.

Early in the hiring season, top-tier candidates begin getting offers from mid- to upper-level schools. Often, such schools have a ranked list of candidates to whom their deans are authorized to make offers. If a school's faculty has authorized the dean to make offers to, say, eight candidates to fill two slots, two offers will generally go out -- three if the dean has some financial flexibility and could live with the unexpected good luck of three acceptances.

Those slots are then out of play for the rest of the candidate field until the initial offerees make up their minds. The other six candidates the faculty has approved must sit around wondering what will happen next and when. They may face pressures from other schools lower on their preference list. They may need to begin planning to move their families. Too bad. They must wait until the initial offerees run the clock out -- as often happens.

Much of the commentary I've read about deadlines focuses on the needs of initial offerees -- typically the most highly credentialed candidates. But such candidates constitute only a small part of the entry-level pool.

Two practices create the problem to which expiring offers are a solution.

First, highly credentialed candidates commonly stockpile offers. Second, top law schools often expect candidates to wait around until mid- to late spring. Both practices inconvenience everyone else. The rest of us need the stockpiled slots released as quickly as possible so everyone else can get on with the process of finding an academic home. Short deadlines unclog the system.

Focusing solely on the "evil" of short deadlines assumes that stockpiling by highly credentialed candidates and mid- to late spring offers from top schools are themselves unproblematic. Even the language commonly used is loaded. Calling offers with short deadlines "exploding offers" is a lot like calling the estate tax the "death tax" -- it presupposes a particular normative outcome.

The simplest solution is already within candidates' control. Candidates who are concerned about short deadlines should ask about the offer policies of the back-up schools at which they are interviewing. They shouldn't interview at back-up schools to whose policies they object, take up offer slots that other candidates really want, and then complain about the deadlines. If enough top-tier candidates were to use as back-ups only schools willing to leave offers open for extended periods, such schools would presumably get more and better candidates. Schools that wanted to finish their entry-level hiring expeditiously wouldn't find their offer slots clogged by candidates who don't really want to teach there anyhow. Ultimately, the complaint about short deadlines is an assertion that all schools should be willing to serve as back-ups -- a premise with which one can reasonably disagree.

I agree that hardball tactics for the purpose of putting a candidate in an awkward position are reprehensible and counterproductive. But the issue of hardball tactics is analytically distinct from that of offer deadlines. The fact that some deans misuse offer deadlines does not mean that such deadlines -- even if short -- are themselves illegitimate. The contrary is in fact true: deadlines make the system work.

Hey Harvard

2009-12-04T08:59:00.006-05:00

I read that Harvard has abandoned its program that waived tuition in the third year for students committing to five years of public interest work.

I appears that economic hardship required the change but the Harvard President is also quoted as saying they did not know how easy it would be to get Harvard students to go into public interest work.

On the other hand the Harvard Crimson reports:

"This year, 58 third-year students signed up for the initiative, which has a budget of $3 million per year for a five-year period ending in 2012, . . . About 50 to 60 students entered public service after graduation in previous years before the start of the tuition waiver."

If I am reading the numbers correctly it was a program that had little or no impact on the number Harvard grads opting for public interest work. So, what amounted to a $40,000 payment or an $8,000 a year bump to the public service salary appears to have been unpersuasive. Even by putting a $40,000 thumb on the scale, Harvard evidently could not compete with the big firms and the starting salaries for its grads.

I have and idea for every school that receives applications for qualified candidates in excess the spots available and wants students to "explore" (in the words of Harvard's President) the possibility of public interest work. But be careful what you wish for and do this only if you are serious. Don't reduce tuition. In fact, you might raise it for those with well-heeled moms and dads and even for those so desperate to go to to your school that for them no debt is too great. Just make 5 years of public interest work a condition of admission.

Big Law in Los Angeles

2009-12-02T14:26:00.064-05:00

Top 20 Suppliers of Partners to the
Ten Largest Law Firms in Los Angeles
Over the Most Recent 25 and 10 Year Periods


                 Most Recent 25 Years  Most Recent 10 Years
    
Loyola-L.A.                51                                      9
UCLA                           51                                      7
Harvard                      48                                      8
USC                             38                                      6
Boalt                            31                                      5
Southwestern            26                                      6
Stanford                      19                                      1
Hastings                     18                                      2
Columbia                    16                                     1
Georgetown               15                                     1
NYU                              15                                    3
Yale                              12                                     1
Chicago                       10                                     1
San Diego                  10                                     1
BU                                   8                                     0
Pepperdine                  8                                     0
Santa Clara                  8                                     0
Boston College           7                                     2
Michigan                       7                                      0
Virginia                          7                                     1


Methodology

Number of partners in the 10 largest law firms in Los Angeles (Los Angeles County
offices only) admitted to the bar in 1984 or thereafter or 1999 or thereafter,
respectively. Year of admission to the bar is used as a proxy for year of
graduation. 10 largest law firms ranked by number of attorneys in L.A. County
offices per 2009 Los Angeles Business Journal Book of Lists. Search performed in
Martindale Hubbell on-line 11/27-30/2009. [I apologize for the ragged appearance
of the table. Tables are very difficult to create on this platform.]

Paging Billy Beane: Scholarly Productivity Lowers Reputation But Raises Salary

2009-11-30T14:58:00.001-05:00

Details here.

Bill Belichick, Moneyball Savant?

2009-11-18T22:14:00.000-05:00

Here.

2010 Princeton Review Law School Rankings

2009-10-21T11:14:00.003-04:00

Over on TaxProf Blog, I have published a series of rankings based on data extracted from the individual profiles of the 172 law schools in the 2010 edition of the Princeton Review's Best 172 Law Schools (with the University of Cincinnati College of Law on the cover). The rankings are based on a survey of 18,000 students at the 172 law schools, along with school statistics provided by administrators.

Blind Salarying

2009-10-10T11:20:00.014-04:00

It annoys me when people create new verbs like the radio ad we have down here announcing the dealership is "clearancing." But now I have my own -- salarying, which means making decisions about salaries.

At my school we blind grade which does not mean we cannot see the papers but that we do not know whose they are. The idea is that you might be inclined -- consciously or unconsciously to grade some agreeable people higher and others lower. And then there is the halo effect that may influence the grade you give someone who was really great in class but did not do so well on the exam.

If you think law school Deans are unaffected by personal views and halo effects, you are asking too much and I have some swamp land for sale in Forida. Thus, shouldn't law schools consider blind salarying? There is a difference, though, between deans and graders. Deans are closer to elected officials than most other professionals I know of. For elected officials the first priority is to do what is necessary to keep the job or, in deanspeak, not have a "failed deanship." In the "what is necessary" department I have seen some doozies including the world record one that was in this very sentence until my better judgment, in one of its rare appearances, said "Don't do it."

Blind salarying would mean salaries would be based on an objective assessment of productivity. I don't think that could be achieved by blotting off the names on yearly reports because Deans -- unlike faculty grading papers -- will know who did what. So, the blind grading should be done by a third party -- say a special committee of the AALS that analyzes faculty performance from each school each year and files a report -- almost like a big arbitration but there are are no "sides."

I fear some readers may not know that I realize this is unworkable. In the last AALS listing that included a category for Objective Law Professors there were only 27 entries and that was in 1955. Can you imagine what would happen today with blind salarying. The quality of work would depend largely on whether the reviewer agreed (as it probably did in 1955).

Aside from the objectivity matter, how would we define productivity? Here this a little more hope because we could at least agree on what it is not. There would be no correlation between salary and:

1. Unquestioning loyalty to the dean whether in the form of formal membership in the administration or cheer leading.

2. Threats to leave when one has tried and can not scare up an offer.

3. Threats to leave that the dean feels would make him or her look bad. This is very different from a departure that would actually damage the law school.

4. Never having uttered a public word in opposition to the dean.

5. Whining, butt-kissing and office visits to the dean. In fact salaries would be inversely related to the amount of time in the dean's office or on the phone with the dean.

6. Ingratiating efforts in the form of "advising" the dean on what is really going on with the faculty that she should know about not because she needs to know but because you want her to know you are on her side. Yes, I am talking about the self-appointed confidants.

7. Complaining about how overworked you are. On this I have a story. One semester a few first year teachers were asked to teach two 4 credit sections of the same course in the same semester. So, 8 hours in the semester. I did it and and I have to confess it was the easiest teaching load I ever hand. Eight of my 9 hour yearly teaching load (actually 10 that year) was taken care of with one preparation that I had done for years. The howling in the halls from others was deafening and you can bet the Dean was reminded every week of how they were going beyond what is expected. Of course, maybe they were craftier than I think and they were pulling the old "briar patch" trick.

8. Race, gender or sexual preference.

Maybe I have this all wrong and what we need is not blind salarying but X ray salarying. Here the dean would be required not simply to assess what the faculty member does that is obvious but what good and bad things actually go on. Is the faculty member a constant source of stress by virtue of gossip, exaggerations, and unwanted office visits? Very often the ingratiator is also a stress producer because he is so self absorbed he is not content to let the teaching and writing speak for itself.

Are We Worse than Thieves? What Rents are Law Professors and Law Schools Seeking?

2009-09-18T16:18:00.010-04:00

In his classic 1967 article on rent-seeking (which does not actually use the term because it had not been coined at that time) Gordon Tullock explained that the cost of theft was not that one person's property was taken by another. In fact, that transaction in isolation may increase welfare. The social costs were the reactions of those attempting to avoid theft and those refining their skills. Richard Posner extended the analysis when he wrote about the costs of monopoly. Again, it was not that some became richer at the expense of others but that enormous sums were invested in bringing about the redistribution. In neither case do the rent seeking, social-cost-producing efforts create new wealth.

Still, in the case of Tullock and Posner the social costs were at least about something. There was a "there" there in the form of a chunk of wealth to bicker over. But now we come to law professors and law schools.

Law professor efforts to self-promote have exploded. Included are repeated visits to the Dean asking for one thing or another, resume padding, massive mailings of reprints, posting SSRN download rankings, or, even better, emailing 200 friends asking them to download a recently posted article, churning out small symposia articles because deans often want to see lines on resumes as opposed to substance, playing the law review placement game, and just plain old smoozing ranging from name dropping to butt kissing. Very little of this seems designed to produce new wealth. If fact, think of the actual welfare-producing activities that could be undertaken with the same levels of energy -- smaller classes, more sections of needed courses, possibly even research into areas that are risky in terms of self promotion but could pay off big if something new or insightful were discovered or said. But this is the part that puzzles me. Whether the thief in Tullock's case or monopolist in Posner's, the prize is clear. What is the prize for law professors? Are these social costs expended to acquire rents that really do not exist or are only imagined? What are the rents law professors seek?

Law schools make the professors look like small potatoes when it comes to social costs. Aside from hiring their own graduates to up the employment level, they all employ squads of people whose jobs are to create social costs (of course, most lawyers do the same thing), produce huge glossy magazines that go straight to the trash, weasel around with who is a first year student as opposed to a transfer student or a part time student, select students with an eye to increasing one rating or another, and obsess over which stone is yet unturned in an effort to move up a notch. I don't need to go through the whole list but the point is that there is no production -- nothing socially beneficial happens. That's fine. The same is true of Tullock's thief and Posner's monopolist. But again, and here is the rub. What is the rent the law schools seek? Where is the pie that they are less interested in making bigger than in just assuring they get the biggest slice possible? What is it made of?

At least thieves and monopolists fight over something that exists. And they often internalize the cost of that effort. Law professors and law schools, on the other hand, may be worse. They do not know what the prize actually is; they just know they should want more; and the costs are internalized by others.

Huh?

2009-09-18T09:12:00.006-04:00

This is more properly a comment but since Moneylaw is close to dormant I decided to upgrade to an actual post. I read with interest the most recent posts about tax faculty rankings. I did this even though I have complained about drawing any inferences from the rankings other than SSRN may be pretty good at counting.

Beyond my usual concerns about the emails we all get that we have made the top 10 in one of SSRN's zillions of categories and its use of our works to sell advertising, I am also concerned about what those who post the lists believe they are communicating. I do not mean to pick just on the most recent tax listings because I have seen this with other listings.

I see two problems but maybe I am misunderstanding. As I understand it, a tax professor with, say, 10,000 downloads may have written a couple of tax articles that were moderately downloaded and then have 8000 downloads in other areas. In effect, the number of downloads, if it means anything, does not mean how widely downloaded (much less read or relied on) that author was as a tax professor. If you doubt this take a look at the downloads for the top two tax professors and see how many of the articles are actually tax articles. It would be possible to write one article on tax that was downloaded once and be ranking as at the top and, in fact, pull the entire tax department with you. I seems to me that any school wishing to move up could just ask its most downloaded scholar in any field to allow him or herself to be listed as a tax professor and added as a coauthor to one article. Am I wrong on this? By the way this is the charitable interpretation because I cannot tell whether to be considered one has to be a self-professed tax professor and have uploaded a tax article in the past year or just pass one of these tests. If it is the latter, any inferences to be drawn are even more sketchy.

The second problem is with the totals for schools. Isn't this somehow influenced by the size of the school and the number of people there who teach tax? Why not take the downloads of actual tax articles and divide by the number of tax faculty. And, of course, even this leaves out other types of works.

My sense is that if these SSRN rankings were subject to some kind of truth in advertising standards they would be found to be misleading because they seem to have so little to do with the actual tax productivity of a tax faculty or even the interest others have in that faculty's output. And, if the thought that goes into these postings were found in a scholarly article I doubt it would be publishable. In fact, the only place I have seen a similar willingness to stray from what would be acceptable care as a scholar is when academics perform as expert witnesses.

New Tax Faculty Rankings

2009-09-17T10:01:00.002-04:00

Graduate Tax Faculty Rankings (Michigan is #1)
Tax Professor Rankings (Louis Kaplow & Reuven Avi-Yonah are #1)
Tax Faculty Rankings (Michigan is #1)
Tax Faculty Metropolitan Area Rankings (Los Angeles is #1)

66% of the Time, Every Time

2009-09-07T13:50:00.011-04:00

When I began teaching economics something struck me during the first week. I knew a fair amount about economics -- much less than I thought -- but I had received not even a minute's worth of instruction on teaching. All I could think to do was read the book, more or less explain it in my own words using examples not in the book, and answer questions. There were no war stories for a first year teacher of microeconomic theory. One thing that gradually occurred to me is that a knowledge of economics, and then later of law, only accounted for about 66% of what I did as a teacher. And it also occurred me that while students see the professor while he or she is teaching, they only witness about 66% of what goes into teaching.

Other courses, common sense, and day to day experiences inform teaching yet their importance remains behind the scenes. One of the most useful courses I took was a required freshman level course in logic. I am not sure it is required or even offered any more but it did mean that I do not confuse causation and correlation. It also meant that I do my best to correct students who reason like this: "The professor does not need to take role because I attend regularly" Bizarre, right? But I have heard the very same "reasoning" from law professors. For example, "There is no need to have a rule requiring professors to take role because I already take role." I assume professors finding this acceptable also find it acceptable in class.

And then there was statistics. There I learned the difference between reliability and validity. Reliability means the tool you are using when applied to the same data gives you the same result. Validity means the tool is actually testing what you are intending to test. If you've got a tape measure that has been stretched it may consistently measure your waist at 32 inches even though is is 36 inches around. It's just not a valid test of your girth, although can surely be a source of great happiness.

The meaning of a normal distribution also came up and can be understood in the context of reasoning I have heard twice lately: "My method of testing is valid because it produced a normal distribution." I most recently heard this from someone administering a law exam to people with widely varying knowledge of English. The normal distribution means nothing about the validity of the test. My guess is that what she was testing was the ability to understand English. The normal distribution fixation is particularly odd. If the students in the class are normally distributed then, hopefully, the test result will reflect that. On the other hand, getting a normal distribution does not mean the same is true of the class itself. In fact, a normal distribution could just as easily cause concern about the test. Normal distributions are, however, convenient when grades must be assigned.

And now back to logic. Remember your high school math classes. Some teachers said to show your work and then gave you credit if you got everything thing right except, say, the final step. Others just machine graded.The problem is this. In most complex math problems there are many ways to get a wrong answer. Some reveal that the test taker did not have a clue. Some reveal that the test taker forgot to carry the one on the last step. The machine grader gives them the same credit although their knowledge and understanding are quite different. The teacher who requires the student to show his or her work makes a distinction because there is a distinction. Of course, the same is true in law where the issues are not simply complex but more nuanced.

This also relates to the point that students see only about 66% of what goes into teaching. Suppose you give a machine graded exam and there are 10 reasons that could explain a wrong answer. If most of the students are getting it wrong for the same reason, it suggests an opportunity to improve one's teaching the next term. (Unless, of course, the goal is not really to teach but to get a good distribution.) I assume the machine graded test givers just plow along without pin pointing the problem which may reflect their teaching as much as student diligence.

The all time prize for irrational testing actually goes to essay test givers who say something like "Answer 3 of the next 5 questions." There are many combinations of 3 out of 5 and each one represents a different test. In addition, a student could get an 80 of 100 on all five and do worse than a student who scores and 85 on three but would have scored a 60 on the other two. Pretty simple, right? This is, however, popular with the students and you know where that can lead.

I would not want to confuse causation and correlation but there is pattern. All of the reasoning that, at least to me, seems in error does make the lives of those making the errors easier. Could it be that reasoning is driven by convenience and self-interest?

How Top-Ranked Law Schools Got That Way, Pt. 3

2009-08-31T02:30:00.001-04:00

Part one and part two of this series focused on the top law schools in U.S. News and World Report's 2010 rankings, offering graphs and analysis to explain why those schools did so well. This part rounds out the series by way of contrast. Here, we focus on the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings.

The above chart shows the weighted and itemized z-scores of law schools about 1/3rd of the way from the top of the 2010 USN&WR rankings. Note the sharp downward jog at Over$/Stu—a residual effect, perhaps, of the stupendously large Over$/Stu numbers we earlier saw among the very top schools. Note, too, that three schools here—GMU, BYU, and American U.—buck the prevailing trend by earning lower scores under PeerRep than under BarRep (GMU's line hides behind BYU's). As you work down from the top of the rankings, GMU offers the first instance of that sort of inversion; all of the more highly ranked schools have larger itemized z-scores for PeerRep than for BarRep. It raises an interesting question; Why did lawyers and judges rank those schools so much more highly than fellow academics did?

The above chart shows the weighted, itemized z-scores of the law schools ranked 94-100 in the 2010 USN&WR rankings—about the middle of all of the 182 schools in the rankings. As we might have expected, the lines bounce around more wildly on the left, where they trace the impact of the more heavily weighted z-scores, than on the right, where z-scores matter relatively little, pro or con. Beyond that, however, no one pattern characterizes schools in this range.

The above chart shows the weighted and itemized z-scores of law schools that probably did the worst in the 2010 USN&WR rankings. I say, "probably," because USN&WR does not reveal the scores of schools in the bottom two tiers of its rankings; these eight schools did the worst in my model of the rankings. Given that uncertainty, as well as for reasons explained elsewhere, I decline to name these schools.

Here, as with the schools at the very top of the rankings, we see a relatively uniform set of lines. All of the lines trend upward, of course. These schools did badly in the rankings exactly because they earned strongly negative z-scores in the most heavily weighted categories, displayed to the left. Several of these schools did very badly on the Emp9 measure, and one had a materially poor BarPass score. Another of them did surprisingly well on Over$/Stu, perhaps demonstrating that, while the very top schools boasted very high Over$/Stu scores, no amount of expenditures-per-student can salvage otherwise dismal z-scores.

[Crossposted at Agoraphilia, MoneyLaw.]

Best Value Law Schools

2009-08-27T09:35:00.001-04:00

The National Jurist has released its ranking of the Best Value Law Schools in the September 2009 issue:

The National Jurist identified 65 law schools that carry a low price tag and are able to prepare their students incredibly well for today's competitive job market. In determining what makes a law school a "best value," we first looked at tuition, considering only public schools with an in-state tuition less than $25,000, and private schools with an annual tuition that comes in under $30,000. We then narrowed the playing field again by including only schools that had an employment rate of at least 85% and a school bar psasage rate that was higher than their state average. We then ranked schools, giving greatest weight to tuition, followed closely by employment statistics.

For a chart of the Top 25 Value Law Schools, and a chart of the Top 65 Value Law Schools with their corresponding U.S. News rank, see here.

"Annual" Multiple Choice Testing Post

2009-08-26T16:15:00.005-04:00

It's been nearly two years since my "annual" post opposing multiple choice examinations for law students. The last one generated some good comments and can be found here. I still find the question intriguing. Before going on a bit, some basics. First, I am writing about machine graded exams; not multiple choice or true/false with explanation questions which are actually short essays that focus the students on specific topics. Second, I am not really writing about the mixed exam in which some "objective" (what a crazy thing to call them) questions are included with the essays. Third, I sincerely want the multiple choice machine graded (MCMG) supporters to be right. I hate grading more than anything else associated with my job. Finally, I think the whole matter presents a wonderful opportunity to examine self governance. More specifically, has anyone actually studied the effects of MCMG exams as opposed to essay exams or is the trend toward MCMG exams strictly a matter of convenience?

Here is what I like to know: If you use MCMG aren't you teaching a different course than if you use essay exams. I am not saying the teacher is doing anything differently but aren't the students "hearing" and making note of different things? Which course should be taught?

Do teachers at the fancy schools use MCMG exams? If so, does that mean the today's law schools are hiring people who are good at MCMG exams? If so, is that reflected in their teaching, testing and ultimately their evaluation of today's students?

What does it mean when someone defends MCMG by saying it produced a "great curve" or a "normal distribution." Does that mean the students were tested on the right things, whatever they are? I suppose you would get a normal distribution if you used a soft-ball throwing contest.

What does it mean when someone defends MCMG by saying the same students do well on both types of tests. What is the connection between that and what they are learning and teaching effectiveness?

Has anyone using MCMG exams actually studied how to write "good" multiple choice questions?
As a comment to my last post on this, Nancy Rappaport had some interesting views.

If you use MCMG exams, how do you perform the diagnostic element of teaching and testing? By that I mean the process of identifying individual and group weaknesses in reasoning and expression so you can adjust your teaching the next time around.

Having said all this and revealed my distrust if MCMG exams, I realize that some of the same questions could be asked about essay exams. What is the connection between good essay exam writing and a student's potential as an attorney, judge or law professor? I think I have a better chance of spotting the ones with great potential when they are forced to reveal themselves in an essay. But, that too has not been tested. In effect, our testing needs to be tested.

At one level what worries me the most is the thought that if essay exams could be graded even faster than MCMG exams, a fair number of law professors would switch back and then defend the new position as consistent with good teaching and evaluation.

How Top-Ranked Law Schools Got That Way, Pt. 2

2009-08-23T14:56:00.003-04:00

In the first post in this series, I discussed the mysterious distribution of maximum z-scores in the top two tiers of law schools in U.S. News & World Report's 2010 rankings, and focused on the top-12 schools to solve that mystery. In brief, among the very top schools, employment nine months after graduation" ("Emp9") varies too little to make much of a difference in the schools' overall scores, whereas overhead expenditures/student ("Over$/Stu") varies so greatly as to almost swamp the impact of the other factors that USN&WR uses in its rankings. Here, in part two, I focus on the top 22 law schools in USN&WR's 2010 rankings. In addition to the Emp9 and Over$/Stu effects observed earlier, this wider study uncovers some other interesting patterns.

The above graph, "Weighted & Itemized Z-Scores, 2010 Model, Top-22 Schools," offers a snapshot comparison of how a wide swath of the top schools performed in the most recent USN&WR rankings. It reveals that the same effects we observed earlier, among just the top-12 schools, reach at least another ten schools down in the rankings. With the exception of Emory and Georgetown, Emp9 scores (indicated by the dark blue band) barely change from one top-22 school to another. Over$/Stu scores, in contrast (indicated by the middle green hue), vary widely; compare Yale's extraordinary performance on that measure with, for instance, Boston University's.

This graph also reveals some other interesting effects. Like the Emp9 measure, the Emp0 measure (for "Employment at Graduation," indicated in yellow-green) varies little from school to school. Indeed, it varies even less than the Emp9 measure does. Why so? Because all of these top schools reported such high employment rates. All but Minnesota reported Emp0 rates above 90%, and all but Georgetown, USC, and Washington U. reported rates above 95%.

These top 22 schools also reported very similar LSATs. Their weighted z-scores for that measure, indicated here in light blue, range from only.20 to .15. The weighed z-scores for GPA, in contrast, marked in dark green, range from .24 to .06.

As the graph indicates, the measures worth 3% or less of a school's overall score—student/faculty ratio, acceptance rate, Bar exam pass rate, financial aid expenditures/student, and library volumes and equivalents—in general make very little difference in the ranking of these schools. One exception to that rule pops up in the BarPass scores (in dark orange) of the California schools, which benefit from a quirk in the way that USN&WR measures Bar Pass rates. Another interesting exception appears in Harvard's Lib score (in white)—only thanks to its vastly larger law library does Harvard edge out Stanford in this ranking.

To best understand how a few law schools made it to the top of USN&WR's rankings, we should contrast their performances with those of the many schools that did not do as well. I'll thus sample the statistics of the law schools that ranked 41-51 in the most recent USN&WR rankings, those that ranked 94-100, and the eight schools that filled out the bottom of the rankings. Please look for that in the next post.

[Crossposted at Agoraphilia, MoneyLaw.]

How Top-Ranked Law Schools Got That Way, Pt. 1

2009-08-20T14:27:00.002-04:00

How do law schools make it to the top of the U.S. News & World Report rankings? USN&WR ranks law schools based on 12 factors, each of which counts for a certain percentage of a school's total score. Peer Reputation counts for 25% of each law school's overall score, for instance, whereas Bar Passage Rate counts for only 2%. More precisely, USN&WR calculates z-scores (dimensionless statistical measures of relative performance) for each of the 12 factors for each school, multiplies those z-scores by various percentages, and sums each school's weighted, itemized z-scores to generate an overall score the school. USN&WR then rescales the scores to run from 100 to zero and ranks law schools accordingly.

In earlier posts I described my model of the most recent U.S. News & World Report law school rankings (the "2010 Rankings"), quantified its accuracy, and published itemized z-scores for the top two tiers of schools. (Separately, I also suggested some reforms that might improve the rankings.) Studying those z-scores reveals a great deal about how the top-ranked law schools got that way. The lessons hardly jump out from the table of numbers, though, so allow me to here offer some illustrative graphs.

The above graph, "Weighted & Itemized Z-Scores of Top 100 Law Schools in Model of 2010 USN&WR Rankings," reveals an interesting phenomenon. The items on the left of the graph count for more of each school's overall score, whereas the items on right count for less. We would thus expect the line tracing the maximum weighted z-scores for each item to drop from a high, at PeerRep (a measure of a school's reputation, worth 25% of its overall score), to a low, at Lib (a measure of library volumes and equivalents, worth only .75%). Instead, however, the maximum line droops at Emp9 (employment nine months after graduation) and soars at Over$/Stu (overhead expenditures per student). The next graph helps to explain that mystery.

The above graph, "Weighted & Itemized Z-Scores, 2010 Model, Top-12 Schools," reveals two notable phenomena. First, the Emp9 z-scores, despite potentially counting for 14% of each school's overall score, lie so close together that they do little to distinguish one school from another. In practice, then, the Emp9 factor does not really affect 14% of these law schools' overall scores in the USN&WR rankings. (Much the same holds true of top schools outside of these 12, too.)

Second, the Over$/Stu z-scores range quite widely, with Yale having more than double the score of all but two schools, Harvard and Stanford, which themselves manage less than two-thirds Yale's Over$/Stu score. That wide spread gives the Over$/Stu score an especially powerful influence on Yale's overall score, making it almost as important as Yale's PeerRep score and much more important than any of the school's remaining 10 z-scores. In effect, Yale's extraordinary expenditures per student buy it a tenured slot at number one. (I observed a similar effect in last year's rankings.)

Other interesting patterns appear in "Weighted & Itemized Z-Scores, 2010 Model, Top-12 Schools." Note, for instance, that Virginia manages to remain in the top-12 despite an unusually low Over$/Stu score. The school's strong performance in other areas makes up the difference. Though it is not easy to discern from the graph, Virginia's reputation and GPA scores fall in the middle of these top-12 schools' scores. Northwestern offers something of a mirror image on that count, as it remains close to the bottom of the top-12 despite a disproportionately strong Over$/Stu score. The school's comparatively low PeerRep and BarRep scores (the lowest of those in the top-12) and GPA (nearly tied for the lowest) score pull it down; Northwestern's Over$/Stu score saves it.

[Since I find I'm running on a bit, I'll offer some other graphs and commentary in a later post or posts.]

[Crossposted at Agoraphilia, MoneyLaw.]

Transfer Fees

2009-08-17T11:31:00.003-04:00

I have not read Why England Lose: and other Curious Football Phenomena Explained by Simon Kuper and Stefan Szymanski but this excerpt of a review of the book in the August 13th issue of the Economist caught my eye:

"A third myth is that clubs cannot buy success. They can, so long as they spend on players’ wages rather than on transfers. Almost 90% of the variation in the positions of leading English teams is explained by wage bills. Transfer fees contribute little. New managers hoping to make their mark often waste money. Stars of recent World Cups or European championships are overrated. So are older players. So, curiously, are Brazilians and blonds."

I guess the best example of this in baseball is the Red Sox and Dice-K. But I wondered if there are transfer fees in law teaching and could the same phenomena be at work. I could only think of one transfer and and one that is like a transfer fee.

At my School, if you take a sabbatical you must come back for at least a year. If not, as I understand it, either the person leaving or, more likely the destination school must provide compensation. To me that is very similar to a transfer fee but certainly not of the magnitude of those you read about in soccer.

Another practice that has the same effect is the treatment of a trailing spouse. The trailing spouse matter usually involves privileged people who have come to believe that, unlike the lower classes, they should not be put to life's hard choices. At my University for a time (and maybe even now) there was a plan. If one department wanted to hire a person who had a trailing spouse, that department would pitch in 1/3 of the trailer's salary. The department hiring the trailer would pay 1/3 and the central administration would pay 1/3.

So, suppose a department found a good candidate and offered $100,000. The the trailing spouse matter is then raised and plan is put into action. The trailer's salary will be $90,ooo. Listing it as the trailer's salary is a nice way to let the trailer save face but in every reality, the new faculty member is being paid at least $130,000, not $100,000.

Is this a tranfer fee? Obviously it is not because ultimately it becomes, indirectly, part of the wage of the new hire. On the other hand, the first department had a budget to spend on the "player" of $100,000. If it had known that it really had a budget of $130,000 it could have shopped at a different and more productive level. Put differently, if the school had considered what it was actually paying for its new hire, it could have hired someone better. As with the transfer fee, for the total amount paid, a better decision could be made.

Are there other academic hiring transfer fees? Not sure.

Reforms Suggested by Modeling the Law School Rankings

2009-08-04T19:41:00.002-04:00

As I recently observed, the close fit between law schools' scores in U.S. News & World Report's rankings and the scores of those same schools in my model of the ranking "suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA . . . another." Since both Robert Morse, Director of Data Research for USN&WR, and the ABA Journal saw fit to comment on that observation, perhaps I should clarify a few points.

First, I have no way of knowing whether or not law schools misstated the facts, by accident or otherwise, to both the ABA and USN&WR. The fit between USN&WR's scores and my model's scores indicates only that law schools reported, or misreported, the same facts to each party.

Second, this sort of consistency test speaks only to those measures USN&WR uses in its rankings, that it does not publish with its rankings, and that the ABA collects from law schools: median LSAT, median GPA, overhead expenditures/student, financial aid/student, and library size. Measures that USN&WR uses and publishes—reputation among peers and at the Bar, employment nine months after graduation, employment at graduation, student/faculty ratio, acceptance rate, and Bar exam performance—go straight into my model, so I do not have occasion to test their consistency against ABA data. In some cases—the reputation scores and the employment at graduation measure, the ABA does not collect the data at all. This proves especially troubling with regard to the latter. We have little assurance that USN&WR double-checks what schools report under the heading of "Employment at Graduation," and no easy way to double-check that data ourselves.

Third, and consequently, USN&WR could improve the reliability of its rankings by implementing some simple reforms. I suggested three such reforms some time ago. USN&WR has largely implemented two of them by making its questionnaire more closely mirror the ABA's and by publishing corrections and explanations when it discovers errors in its rankings. (I claim no credit for that development, however; I assume that USN&WR acted of its own volition and in its own interest.)

Another of my suggested reforms remains as yet unrealized, however, so allow me to repeat it, here: USN&WR should publish all of the data that it uses in ranking law schools. It could easily make that data available on its website, if not in the print edition of its rankings. Doing so would both provide law students with useful information and allow others to help USN&WR double-check its figures.

To that, I now add this proposed reform: USN&WR should either convince the ABA to collect data on law school graduates' employment rates at graduation or discontinue using that data in its law school rankings. That data largely duplicates the more trustworthy (but still notoriously suspect) "Employment at Nine Months" data collected by the ABA and used by USN&WR in its rankings. And, unlike that data, law schools do not report "Employment at Graduation" numbers under the threat of ABA sanctions. We cannot trust the employment at graduation figures and USN&WR does not need them.

Among the reforms I suggested some two years ago I also included one directed at the ABA, calling on it to publish online, in an easily accessible format, all of the data that it collects from law schools and that USN&WR uses in its rankings. I fear that, in contrast to USN&WR, the ABA moved retrograde on that front. I leave that cause for another day, however; here I wanted to focus on what my model can tell us about USN&WR's rankings.

[Crossposted at Agoraphilia, MoneyLaw.]

MoneyBall MoneyLaw

2009-07-29T08:40:00.002-04:00

When I heard they were making a movie based on MoneyBall I could not sleep just thinking about who would play the key roles in the obvious sequel, MoneyLaw. Would some of us have bit parts? Alas, the MoneyBall movie has been deeply back burnered and, I think this means the MoneyLaw movie is similarly delayed but probably only for a millennium or two.

With respect to the actual Oakland A's there is good news and bad. They are in last place. But among last place teams they have or are tied for the best record. Somehow, if this were all switched to law schools and those who play the USN&WR game (and who doesn't?), I think we could show just how commendable this is. We would just create a category -- really awful law schools. Then rank within that category and in the decanal glossy it would read "A's Law School Ranked Tops in Field." Another possibility is just to be better but that is so much trouble.

Z-Scores in Model of 2010 USN&WR Law School Rankings

2009-07-23T15:23:00.002-04:00

If you want to know how U.S. News & World Report's law school rankings work, you'll want to know about z-scores. In very brief, z-scores measure how well each school performed relative to its peers, thereby establishing its rank. (See here for a fuller explanation.) My model of the rankings aims to recreate those z-scores, and thus the rankings themselves, by duplicating both the data and the methodology that USN&WR uses. Here are the results for the law schools most recently ranked in the top 100:

For cross-year comparisons, please see the similar reports I offered in 2005, 2006, 2007, and 2008. This year, in response to a reader's request, I've added various diagnostic measures, such as the mean, median, and standard deviation of each itemized category of data. As I did last year, I again provided weighted z-scores, meaning simply that I've multiplied the z-scores in each category of data by the percentage that category influences a school's overall score. That method of presenting z-scores has the virtue of highlighting which scores matter the most.

Unsurprisingly, you'll generally find the largest numbers in the upper, left-hand corner of the chart. There lie the most heavily-weighted z-scores of the law schools that scored the highest in USN&WR's rankings. Consider, for instance, the .71 weighted z-scores enjoyed by Yale and Harvard under the "PeerRep" category; those numbers nearly swamp the effect of other measures of those schools' performances, and have twice the impact of the peer reputation scores of schools ranked as close as 20th from the top.

This presentation of the data also shows how very little influence many of the things that USN&WR measures have on its rankings. The weighted z-scores for Bar pass rates, for instance, vary between only .07 and -.02, with a whole lot of zeros filling that span. Bar passage rates evidently do not matter much to any school's USN&WR score.

Rankings geeks will doubtless find close study of this table rewarding. I'm especially interested in the surprising impact of the top schools' overhead expenditures/student—a phenomenon that I discussed in some detail last year. Perhaps I'll return to that topic, and raise some new ones, in later posts. In the meantime, I welcome your own observations.

[Crossposted at Agoraphilia, MoneyLaw.]

Accuracy of the Model of the 2010 USN&WR Law School Rankings

2009-07-22T14:57:00.002-04:00

I earlier offered a snapshot comparison of the scores generated by my model of the 2010 U.S. News & World Report law school rankings and the original. After Robert Morse, director of data research for USN&WR, asked me if I could quantify the fit between the two data sets, I realized that others might share his curiosity. Here, then, are the r-squared measures (more precisely, the squares of the Pearson product moment correlation coefficients) for each of the models I've done over the past few years:

2010 rankings: 0.999
2009 rankings: 0.999
2008 rankings: 0.999
2007 rankings: 0.997
2006 rankings: 0.995

What do those numbers mean? In brief, an r-squared closer to 1 (or –1) shows a closer fit between the two data sets. It might seem a bit absurd to report these results out to three decimals, but I wanted to make clear that the model has yet to obtain results absolutely identical to those reported by USN&WR. I daresay, though, that any r-squared above .99 shows a pretty strong correlation.

[Crossposted at Agoraphilia and MoneyLaw.]

A Model of the 2010 USN&WR Law School Rankings

2009-07-16T19:03:00.004-04:00

As in every year since 2005, I this year again built a model of the law school rankings published by the U.S. News & World Report ("USN&WR"). Figuring out the rankings—the "2010" rankings, as USN&WR's calls them—proved especially trying this time around. USN&WR changed several parts of its methodology this year and the ABA, which distributes statistical data on which my model depends, fell far behind its usual publication schedule. Finally, though, the model ended up generating scores gratifyingly close to those that USN&WR assigned law schools. Here's a snap-shot comparison of the results:

For details about how and why I modeled USN&WR's law school rankings, as well as for similar snap-shots, see these posts from 2005, 2006, 2007, and 2008.

Perhaps in later posts I'll offer some reflections on what this year's model of the USN&WR rankings teaches. For now, I'll just offer this happy observation: The close fit between USN&WR's scores and the model's scores suggests that law schools did not try game the rankings by telling USN&WR one thing and the ABA (the source of much of the data used in my model) another. Even a skeptic of law school rankings can find something to like in that.

[Crossposted at Agoraphilia and MoneyLaw.]

A fresh take on rankings, redux

2009-07-04T14:03:00.002-04:00

I posted my latest thoughts on possible alternative rankings systems here. Would love your comments. Thanks, and happy 4th!

Moneyball: The Movie

2009-06-22T16:39:00.000-04:00

Details here.

Bill Gleason: Excellence within our means

2009-06-21T22:06:00.005-04:00

Bill Gleason of the University of Minnesota is the author of The Periodic Table and The Periodic Table, Too. He is an impassioned advocate for access, value, and integrity in higher education and — this must be said in the interest of full disclosure — an on-the-record fan of MoneyLaw. And again for the record, MoneyLaw is a big fan of Bill Gleason.

Bill addressed the University of Minnesota's Board of Regents at an open forum on June 17, 2009. UMN president Robert Bruininks was in the audience. His comments, styled as Excellence with our means, warrant close attention by anyone who cares about the academic and economic priorities of public universities in a time of retrenchment and recession. I am pleased to rebroadcast Bill's remarks and to republish a transcript of his remarks:

Click on the image of Bill Gleason to read the transcript of his remarks:

Thirty five years ago, as a new Minnesota Ph.D., I went down to Carleton to start my teaching career. The chemistry laboratory facilities were, at that time, much worse than those in the state's high schools. And yet Carleton, today, is widely acknowledged as one of the best institutions of its kind.

There is a lesson here that I have never forgotten: People, not buildings, are what makes an institution excellent.

An imperfect acknowledgment of this idea is our administration's use of the phrase “human capital.”

Along with reminding me of my old lesson about the primacy of people, this phrase reminds us all of the old caution to pay attention to what people do, much more than to what they say.

In the matter of the Bell Museum, the new biomedical research buildings, MoreU Park, and modification of the Regents scholarship program, the administration asks sacrifices of us. It also asks people to anticipate the possible loss of 1200 jobs. But while it asks others to make sacrifices, the administration doesn't make its own. A salary freeze at the level of $750K is not the same sort of sacrifice as that made by a person earning less than ten percent of this amount and ultimately losing his or her job.

We all wish the best for our university. But many of us disagree with the current priorities of the administration and have been saying so for quite some time. This administration has ignored those who do not subscribe to the goal of being one of the top three public research universities in the world.

People who think that we should be one of the best universities in the Big Ten have been called “doubters” by our president. This is disturbing.

The following words are addressed directly and respectfully to the Regents.

Your desire to support President Bruininks is admirable. But some things that I have witnessed at Board meetings over the past few years lead me to believe that more skepticism about the administration's priorities is in order. Signs of this skepticism have begun to emerge.

Last year some of the Regents dared suggest that perhaps there should be no alcohol in the stadium. I think they were right, but they were browbeaten by the stadium's strongest proponent.

One of the Regents has recently argued that cuts to employee tuition reimbursement are inappropriate.

Regent Larson pointed out last December that requesting a budgetary increase that included a new Bell Museum was a mistake in the current economic situation.

I hope the Regents will be sensitive to the charges of elitism or arrogance that can readily be made for inappropriate financial requests to the state legislature.

We share a common goal — an excellent university. But our priorities should recognize the primary importance of people as fundamental to our land grant mission. Our fellow citizens must be convinced that this is so. Only then will we be able make our shared goal of excellence a reality.

Thank you for the opportunity to make this statement.

Least complicated

2009-06-08T20:43:00.004-04:00

Least complicated

Some long ago when we were taught
That for whatever kind of puzzle you got
You just stick the right formula in
A solution for every fool

— Indigo Girls, Least Complicated, Swamp Ophelia (1994)

Yes, there is a connection to law. Read all about it in The Cardinal Lawyer.

Follow J.C. Redbird on Twitter

2009-06-05T17:21:00.002-04:00

» Adapted from The Cardinal Lawyer «
Twitter is a lightweight online platform that blends blogging and social networking. Its users "tweet" by answering a simple question: "What are you doing?" All answers are limited to 140 characters — the length of an SMS text message, minus 20 characters. Twitter has become a powerful weapon for marketing consumer goods, documenting brain surgery, and coordinating political protests. When even the New York Times, the grandest of conventional media sources, offers tips on Tweeting, you know that Twitter's time has come. And though predictions and prescriptions do differ, it does seem that Twitter — or something else capturing its blend of social networking, linking, and real-time searching — is here to stay.

Follow J.C. Redbird on Twitter!

My Twitter handle is J.C. Redbird. I would be honored if you would follow my tweets. To make sure that I follow your Twitter account in return, send me a private message inside Twitter, and I will take care to add you to my Twitter reading list.

With medium power comes no responsibility

2009-06-03T13:05:00.002-04:00

In his celebrated New York Times Magazine piece, The case for working with your hands, Matthew Crawford makes observations about middle managers that apply with full force to those of us who live academia's so-called "life of the mind":

Often as not, [craftsmen's workplace] crises do not end in redemption. Moments of elation are counterbalanced with failures, and these, too, are vivid, taking place right before your eyes. With stakes that are often high and immediate, the manual trades elicit heedful absorption in work. They are punctuated by moments of pleasure that take place against a darker backdrop: a keen awareness of catastrophe as an always-present possibility. The core experience is one of individual responsibility, supported by face-to-face interactions between tradesman and customer.

Contrast the experience of being a middle manager. This is a stock figure of ridicule, but the sociologist Robert Jackall spent years inhabiting the world of corporate managers, conducting interviews, and he poignantly describes the “moral maze” they feel trapped in. Like the mechanic, the manager faces the possibility of disaster at any time. But in his case these disasters feel arbitrary; they are typically a result of corporate restructurings, not of physics. A manager has to make many decisions for which he is accountable. Unlike an entrepreneur with his own business, however, his decisions can be reversed at any time by someone higher up the food chain (and there is always someone higher up the food chain). It’s important for your career that these reversals not look like defeats, and more generally you have to spend a lot of time managing what others think of you. Survival depends on a crucial insight: you can’t back down from an argument that you initially made in straightforward language, with moral conviction, without seeming to lose your integrity. So managers learn the art of provisional thinking and feeling, expressed in corporate doublespeak, and cultivate a lack of commitment to their own actions. Nothing is set in concrete the way it is when you are, for example, pouring concrete.

Frank: "So Far So Good"

2009-05-23T13:21:00.005-04:00

Of the people reading this, no more than a handful will have heard of Frank McCoy. He was my faculty colleague who passed away last night. He had not been active in some years but until the last few months he reported daily to his small cubby of an office about ten feet from mine.

The passing of Frank (who in the last few years always said "so far so good" when asked how he was doing) made me think of what law schools are becoming without the likes of Frank. Frank was the purest intellectual I have known. I am not sure he wrote anything for publication but Frank was the type of guy who you could drop off at a library at 8 in the morning and pick up at 8 at night and (as long as he got lunch) there would be no complaints. Frank lived in the world of history, languages, and ideas. I am confident he never looked at an article to see if he was cited, bargained up a law review article, counted downloads, networked, or self-promoted. All of that would have gotten in the way of his intellectual curiosity.

On the other hand, Frank could talk knowledgeably about just about anything. You could mention a current topic and he might pipe up with, "Yes, well Napoleon tried that." As recently as a little over a year ago I could hear him with his Russian tutor. He had no plans to go to Russia as far as I know but probably wanted to read some things in the original language. A year before that we were chatting about a social/legal issue that had arisen in France. He said. "Yes, I wrote a poem about that last week." I asked to see it. The next day he produced a crumpled piece of notebook paper with the poem -- in French.

Frank's background was a mystery to me. Rumors are that he had a prior life in the CIA or one of its predecessors. I imagined him as George Smiley. I wondered what he was doing in China and Japan at critical times and mostly what he was doing in Madagascar. This was only revealed when he saw and old Zenith Transatlantic short wave radio in my office and mentioned that was like the one he used in Madagascar.

I have written before that some of the smartest, best educated, and helpful people on faculties I have been on do not write, send out reprints, fly to this conference or that, or do any of the other things that are expected of modern law professors. They are dying off, though, as fast as WW II veterans. I am not sure a law school betters itself by replacing them with someone who has excelled at the law professor's version of grade grubbing -- stacking up lines on a resume. In fact, I think law schools are poorer as a result of the passing of people like Frank.

Child of Moneyball

2009-05-19T17:03:00.000-04:00

See here.

U.S. News to Correct Data, Not Rankings, of Brooklyn, Hawaii, and Nebraska

2009-05-08T09:10:00.002-04:00

See here.

Did 23 Law Schools Commit Rankings Malpractice?

2009-05-04T08:10:00.001-04:00

See here.

2010 U.S. News Law School Rankings

2009-04-27T07:03:00.001-04:00

Law Schools on Steroids

2009-04-26T11:37:00.004-04:00

The annual USN&WR rankings and the inevitable controversy that follows, steroid use by baseball players, and a recent article in the New Yorker ("Brain Gain," April 27, 2009) have made me realize that I am not sure what it means to cheat. It's not that I do not regard lying as cheating but things get very blurry after that.

You could say that cheating means everything that creates a perception that is not accurate.

In the law school ranking context, employment rates are suppose to reflect the demand of graduates so that applicants can assess their chances of landing jobs if they enroll at that law school. A school raises that number by hiring its own graduates. Is the School engaged in a misrepresentation? Does it matter that the number might have been achieved if the school had devoted more resources to placement.

In baseball, a player's average of 20 home runs a year jumps to 35 after the use of steroids. 35 might have been achieved with a conditioning program that would have been much more difficult than a few shots in the butt. Why does this concern law school officials who are quick to hire their own graduates or solicit applications from people with no chance of admission?

A student turns in four terms papers on time after several all-nighters aided by Adderall which was not prescribed or was prescribed after the student read up on how to describe the "right" symptoms to a physician. Or course, the same papers could have been submitted with less partying and more planning. Why would someone doing this give a second thought to steroid use?

I think cheating is increasingly defined by what someone else is doing. This seems especially true in the law school rankings game. Or maybe it is defined as being anything you would prefer not to reveal or feel compelled to defend. Or it could be that life is ultimately just a fucking free for all. Opps. Now I have cheated -- used the dreaded F-bomb in a blog which may cause idle web surfers to drop by looking for porn and send up the readership or, in another context, SSRN downloads.

Please pass the Adderall. I need to get my exam written by tomorrow.

The SSRN blog

2009-04-25T19:07:00.003-04:00

Not every coblogger at MoneyLaw necessarily agrees, but I do appreciate SSRN. And now we can follow the SSRN blog. According to SSRN's electronic press release:

[T]he SSRN Blog will provide updates regarding SSRN's eLibrary and services, weekly "Top Five" lists, and announcements of new networks, conferences, and presentations. It will also explore and share our perspective on issues such as Open Access, new publishing models and directions for scholarly research, and the technologies that affect us all.

Get a "Gift Certificate"

2009-04-23T21:55:00.006-04:00

My goodness! It is rating season already. This year the students at my School find that they are not at the tied-for-46th rated school but at the 51st. And since we are reducing the class size, next year's will likely find they are back in the 40s. In the meantime, the teaching is the same, the scholarship the same and, I suspect, job placement will not change. And no one seems to take seriously that wonderful graph (that was presented a couple of years ago by someone I'd like to mention but I've forgotten where I saw it) showing that the 30th school is separated from the 80th school by an eyelash. Just sneeze and you move up 10 places.

Somehow all of this reminds me of a joke I do not fully recall but the punch line was something like, "We've already determined what you are. We are just determining the price." And with Law Schools, is there a single one not tweaking the acceptance rate (Hey, is it true at one School gives itunes downloads to those who apply?), the employment figures, or mailing out forests of law porn? Of course not. So we know what Law Schools are. We are just determining how much they will pay for what they want. For those willing to go all the way, if you'll forgive my terminology, here are some ideas:

1. The 90% transfer student law school. Yes, admit a class of 10 with LSATs of 178 and GPAs of 4.0 (or even higher -- report 5.0 for the students who took advance placement college courses assuming they exist and, if they do not, just assume they do.) The rest of the students are transfers.

2. Get those acceptance percentages down. Potential applicants are selling cheap if they will settle for itune downloads. What about a $100 J.Crew gift certificate for applying? Cold cash is also perfectly acceptable. If each school will do this many good things happen. 1) My unemployed children can make a living by being professional applicants, 2) I will open an Expresso-like business and take a small percentage for submitting an application for my clients to every single law school in the country. There are any talented potential professional applicants in nursing homes, pre schools, and prison. I am pretty sure this is Pareto superior. The clients are happy, I am happy, and Law Schools will all have huge applicant pools and low acceptance percentages.

3. Pay the graduates of other schools not to work. Once you have hired every one of your own out-of-work graduates you hit 100% and that is as far as you can go. If you are serious about becoming a better law school (Opps, higher ranked school) pay the graduates of schools close to yours in the rankings to stay home. Yes, we are talking about a possible bidding war for law school graduates to do anything but work. (It's like a new occupation for which you are qualified only if you have a law degree.) Right now these unemployed grads think they have no leverage at all. Life to them, . . . well, sucks. In fact, they have tremendous leverage any time they threaten to become gainfully employed. They can auction off their right to take a job. This sounds more than faintly Coasian. After all, the law school placing the highest value on having the graduates of other law schools stay home wins and, winning by paying is efficient.

4. Be proactive about lowering the student-faculty ratio. Are there any maintenance workers, landscapers, or secretaries at your schools? Were you getting ready to say "yes." WRONG! They are now part of the faculty and, most likely, deservedly so. (I don't know, visiting-adjunct-lecturer sounds good). And those potential applicants at nursing homes, pre schools and prisons also make excellent faculty for distance learning. Your faculty swells and your ratio falls.

When you think about it, law schools are just scratching the surface of ways to improve.

Early Release of 2010 U.S. Law School Rankings

2009-04-20T11:10:00.001-04:00

Although the 2010 U.S. News Law School Rankings are scheduled for release on Thursday, April 23, the Internet is abuzz with early copies -- these scans of the Top 100 (via The Faculty Lounge) appear legitimate. TaxProf Blog lists the biggest moves among the Top 50 and 51-100.

Wilkins Micawber, dean and professor of law

2009-04-11T16:21:00.006-04:00

Annual income twenty pounds, annual expenditure nineteen pounds nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.

— Wilkins Micawber in Charles Dickens, David Copperfield

I've held the title "dean and professor of law" for nearly a thousand days, long enough to make me chuckle whenever I'm introduced as "the University of Louisville's new law school dean." I take it as a compliment, for I'll make no apologies for juniority.

I spent roughly the first third of those thousand days not having fully grasped what I now consider the most important tactical principle of educational management. If the most important strategic principle is Smoot's Law — namely, that return on student investment is the goal of professional education — then Wilkins Micawber's Principle offers the greatest snippet of tactical wisdom. Translated from the monetary jargon of England before currency decimalization, Micawber's Principle means simply this: live within your means.

Read the rest of this post . . . .I've learned this much in the past year and a half: Never let an economic crisis go to waste. The catastrophic decline in economic fortunes around the world has not spared American higher education, and that disaster gives moral succor to those of us who find our highest calling in doing more for our students with less from our appropriations and endowments.

The broader economy is witnessing the resurgence of the gleefully frugal: recession-happy people who "happily seek new ways to economize and take pride in outsaving the Joneses" by living a "mantra [of] cut, cut, cut — magazine and cable subscriptions, credit cards, fancy coffee drinks and your own hair." This phenomenon “implies a re-emergence of thrift as a value.”

A similar revival should sweep American higher education. Let me be clear about what I mean. I vehemently oppose hatchet jobs on educational budgets. In full accord with Leon Botstein, I believe that a recession is a time for expanding, not contracting, the academy's instructional resources. If you have to freeze something for its own sake, something I'd strongly oppose in any forum where I had a voice, I'd much rather freeze salaries (especially, and exclusively if I could, at the high end) than hiring.

But not all spending is equal. No less than private companies, universities are susceptible to what Herman Holtz, 100 Ways to Boost Your Firm's Profitability, has called "Taj Mahalitis." Ambitious, financially marginal organizations can easily fall victim to the urge to splurge, to present themselves to customers and competitors alike in grandiose fashion.

From law porn to lavish meals that feed no one besides our highest-paid employees, law schools have many ways to violate Micawber's Principle. The trick — admittedly so much more readily described than performed — is to separate types of spending that advance legitimate educational goals from those that don't.

That don't impress me much

2009-04-09T17:32:00.002-04:00

Chatting with a friend elsewhere in legal academia reminded me: Shania Twain, That Don't Impress Me Much, Come on Over (1997), is an anthem for all seasons. Enjoy!

The University of Louisville's law alumni magazine

2009-03-19T09:40:00.002-04:00

The vast majority of MoneyLaw's readers will never see the University of Louisville's law alumni magazine. I don't believe in law porn. Even if I did, I don't have the money to transmit any substantial amount of law porn in interstate commerce. But I am proud of the magazine and invite you to download the 2008-09 edition.

Sun deviled

2009-03-17T00:14:00.005-04:00

Arizona State University Research Park

Arizona State University, under president Michael Crow, aspired to become the New American University. ASU would enroll 100,000 students by 2020. It would eliminate disciplinary boundaries, spur research, fuel the economy, and serve the deserving and the underserved. Then the bottom dropped out:

[President Michael Crow] increas[ed] enrollment by nearly a third to 67,000 students, lur[ed] big-name professors and start[ed] interdisciplinary schools in areas like sustainability, projects with partners like the Mayo Clinic and Sichuan University in China, and dozens of new degree programs.

But this year, Mr. Crow’s plans have crashed into new budget realities, raising questions about how many public research universities the nation needs and whether universities like Arizona State, in their drive to become prominent research institutions, have lost focus on their public mission to provide solid undergraduate education for state residents.

These days, the headlines about Arizona State describe its enormous cuts.

The university has eliminated more than 500 jobs, including deans, department chairmen and hundreds of teaching assistants. Last month, Mr. Crow announced that the university would close 48 programs, cap enrollment and move up the freshman application deadline by five months. Every employee, from Mr. Crow down, will have 10 to 15 unpaid furlough days this spring.

Describing the $88 million hit that ASU has been asked to sustain since June 2008, the ASU Sun Devil declared, "The New American University has died; welcome to the Neutered American University."

Michael Crow and Arizona State are not alone. Jane Wellman, executive director of the Delta Project on Postsecondary Costs, Productivity and Accountability, identifies a nationwide "trend line" in “states disinvesting in higher education.”

Read the rest of this post . . . .Prestige and the idea of the public research university may be the first victims of multilateral educational disarmament. As Tamar Lewin of the New York Times reports,

not every university can be in the top 20. And in a time of shrinking state budgets, undergraduates at public universities will most likely pay the price in higher tuition, larger classes and less interaction with tenured professors. So it is a real question how many public research universities the nation can afford, and what share of resources should go to less expensive forms of education, like community colleges.

Say it ain't so, Joe!

Jane Wellman is even sharper in her criticism: “Universities aspire to prestige, and that is achieved by increasing selectivity, getting a research mission and having faculty do as little teaching as possible, not by teaching and learning, and taking students from Point A to Point B.”

Legal education is by no means immune to the clash between academic ambition and economic reality. Law schools over the last generation have increased selectivity, identified or sharpened their research mission, and endeavored to have faculty do as little teaching as possible. Here are some of the things we have done in the legal academy, mostly in pursuit of prestige and rankings:

We've slashed enrollments, to the extent that endowments or cash on hand (rarely) or our parent institutions' failure or reluctance to adopt resource-centered management (more often) has enabled us to trade forgone tuition revenues for marginally lower student-teacher ratios.

We've created centers, institutes, summer programs, dual-degree programs, LL.M. programs, and lecture series, often without regard to return on investment and, indeed, most typically as unfunded mandates.

We've doubled down on these expenditures by sending out tons of law porn to demonstrate just how conspicuously we can engage in extracurricular consumption.

We've dived headlong into an extremely expensive interdisciplinary movement whose benefits are uncertain but whose long-term costs (especially in tenured faculty salaries) are substantial and possibly crippling.

We've lowered the expected teaching load, at least at (relatively) elite institutions, from twelve to ten semester hours per year — so aggressively that some top-tier teaching candidates refuse to interview at schools that retain, for understandable economic reasons, the twelve-credit norm.

And all of this in the face of ever stronger evidence that the legal academy's current lifestyle is unsustainable. Mindful that a thousand days and a hundred thousand dollars of debt no longer buy what they used to, would-be students tarry in the wings before rushing into law school.

Nothing is irredeemable till it is past. Legal education would do well to heed the lessons that Michael Crow, one of the most visionary academic leaders of our time, has had to learn during times of extreme budgetary retrenchment in Arizona. Let us do our very best to translate dollars into concrete education results, being ever mindful that student tuition is the economic benchmark for everything we do as educators. In Sun Devil country and elsewhere, we may yet find our way out of the desert.

"The best and the brightest"

2009-03-15T23:21:00.005-04:00

AIG has gotten more than $170 billion in bailout money from the Treasury and the Federal Reserve. And now AIG has paid about $165 million in bonuses to the executives who brought the company to its knees.

A more politically foolish use of 0.1 percent of available cash can scarcely be imagined.

AIG chairman Edward G. Liddy's defense of these bonuses may be even more outlandish:

We cannot attract and retain the best and the brightest talent to lead and staff the A.I.G. businesses — which are now being operated principally on behalf of American taxpayers — if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury.

Raw intelligence is vastly overrated; elite educational credentials, even more so. But eclipsing these exercises in overpaying is the longstanding assumption that the very best talent in our society responds, in strictly Pavlovian fashion, to overwhelming sums of cash.

And even if you disagree with everything I've written so far, surely you would endorse this recommendation: It is time to retire the phrase, the best and the brightest, in all senses except the ironic, even sarcastic, sense in which that phrase was originally intended.

The Best and the Brightest was the title of a 1972 exposé by David Halberstam of foreign policy miscalculations by the Kennedy and Johnson administrations. For much of the next two decades, American geopolitics, crafted by none less than "the best and the brightest," wreaked havoc throughout Indochina:

It will take years, decades, perhaps lifetimes to shake American business culture of the fallacy that outrageous salaries are what valuable talent truly demands and deserves. In the meanwhile, I'll settle for a split second of humility regarding the true origins of the best and the brightest.

Testing the complete lawyer

2009-03-12T23:58:00.002-04:00

Being a lawyer is more than "thinking like a lawyer." So much more.

The LSAT at best tests certain aspects of "thinking like a lawyer."

So why not devise a test to assess the rest of what it means to think and act like a lawyer, what it really means to be a lawyer?

Sheldon Zedeck and Marjorie M. Shultz are trying to do just that:

To find out what applicant traits should figure in admissions decisions at law schools, [Zedeck and Shultz] coordinated individual interviews, focus groups and ultimately a survey of judges, law school professors, law firm clients and hundreds of graduates of Berkeley’s law school.

They asked, among other things, “If you were looking for a lawyer for an important matter for yourself, what qualities would you most look for? What kind of lawyer do you want to teach or be?”

The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from the Berkeley alumni of specific behavior by lawyers that were considered more or less effective.

Using the examples, Professor Shultz and Professor Zedeck developed a test that could be administered to law school applicants to measure their raw lawyerly talent.

Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.

It will be interesting to see what happens when Zedeck and Shultz apply their test over time and to a deeper pool than Berkeley alumni.