The Rosenbury Deanship and Class Bias

 

Laura Rosenbury became the Dean of UF law after a failed search in which the central administration was pushing of all people, Anthony Acosta. Why she was selected in the second search no one knew. Her faculty interviews were fine but not unusual. Now as everyone knows, she will be the President of Barnard. Quite a step up I would say and a little mysterious since she has had no experience with undergrads, has only a law degree, and writes for non referred journals. 

Still, when she was hired the Law School was pretty much a wreck and, therefore, the Provost must have seen in her a grittiness that would lead to risk taking and major changes. He was right. The improvements she made cannot be underestimated. When she was hired the Law School was  an outlaw operation. It ignored University policy on most things and that was corrected. It had so-called centers  in specific areas of law that made no sense in terms of UF's mission and were out of compliance with what it meant to be a center according to University regulations. Most were abolished. 

When she arrived students wanting to be associated with a journal by writing on had to write on a different topic for each journal. It made no sense to put then through this torture. That changed. The primary law review advisor  had a vise like grip on the job. He was replaced by a scholar and some practices that I never quite understood were ended. 

The LLM in Tax was a sleepy little segment of the law school. It was highly ranked because there were so few LLMs in tax and had, at times, some big names in the area. When she arrived the applicant pool was poor, few people were regarded as nationally know tax scholars, and there was talk of disbanding it all together. One way or another (there is a whole story on this) the program came under intense scrutiny, Changes were made.

For the first time in 10 years committee assignment began to make sense. This too is a long story but I will cut it short by saying the former dean seemed to have a single objective -- to keep being dean. Consequently, committee assignments appeared to be driven by political considerations.

I am positive there are more things she accomplished and I cannot say what role any of these factors entered into her "promotion" to Barnard. Also these changes did not require an infusion of funds from the central administration.

So was there a down side? She was know to lose her temper sometimes and at others break out in tears when things did not go her  way. She vetoed faculty candidates, so I have been told, that did not attend the "right" schools.  I have heard of but was not witness to instances of abusive behavior toward staff -- only those beneath her, if course. As far as those above her he was the ultimate yes person. As an example, when here only a short time she was introduced to a group as young a vivacious by a student, This was a big deal to her an she even wrote about it. But within a few years she was carrying out DeSantis' orders and labelling the new hand picked right wing President the "embodiment of   academic freedom."  Ambition breeds hypocrisy.

Her biggest public claim to fame came by raising the Law School ranking from the mid 40s in the USNews rankings to the high 20s. This is where class bias and ambition over all come in.  A large part of raising the ranking was to raise the average LSAT scores of the entering class in two steps. First, she lowered the size of the class. This does not mean she rejected unqualified candidates. Plenty of qualified candidates were rejected. "Qualified" took on a new definition. It was not longer qualified to successfully complete law school and become a productive attorney. No, qualified became who would make Laura Rosenbury look like an effective dean.. 

The second step, was to enter the market for high LSATs and GPAs. I mean literally buying students with high scores by paying them thousands of dollar in tuition waivers and stipends. I asked many of them why they chose Florida and the consistent answer was "it made me the best deal." 

What does this have to do with class bias. I know of no studies that do not show a positive correlation between socioeconomic class and standardize tests scores like the LSAT. I do not know you how GPA correlates with socioeconomic class but I suspect it is also positive.

 Where does the  massive infusion of  money come that is used to subsidize students who already have advantages over the less affluent?  Quite honestly, I do not know but to some extent, the Provost seems to have given Rosenbury a blank check. But where does it originate?  Maybe some comes from law students and others stuck with paying tuition and taking out loans to do so. Some from grants from alums and some from taxpayers. If it all comes from wealthy alums that is one thing although it still seems crazy to subsidize those who least need it. I doubt Rosenbury gave a damn where it came from. If any comes from taxpayers, no matter how laundered by the State or the University, then it becomes a redistribution from those in lower socioeconomic classes  to the relative well off. In short, as all elitists, Laura Rosenbury used those less well off to promote herself and. in some measure catch the eye of Barnard.  The elites always figure out a way to do that.

Modeling Citation and Download Data in Legal Scholarship

James Ming Chen, Modeling Citation and Download Data in Legal Scholarship, http://ssrn.com/abstract=905316:

Impact factors among law reviews provide a measure of influence among these journals and the schools that publish them. Downloads from the Social Science Research Network (SSRN) serve a similar function. Bibliometrics is rapidly emerging as a preferred alternative to more subjective assessments of academic prestige and influence. Law should embrace this trend.

This paper evaluates the underlying mathematics of law review impact factors and per-author SSRN download rates by institution. Both of these measures follow the sort of stretched exponential distribution that characterizes many right-skewed distributions found in the natural and social sciences. Indeed, an ordinary exponential distribution — that is, a stretched exponential distribution with an exponent of 1 — generates strikingly accurate, even beautiful, models of both phenomena. Mindful of physicist Hermann Weyl's admonition that any choice between truth and beauty should favor beauty, I freely admit to sacrificing some marginal improvement in the descriptive accuracy of my model in order to develop the elegant mathematics of the ordinary exponential distribution.

Further elaboration of this model of law review impact factors as an exponential distribution yields the Gini coefficient of the secondary legal literature, to the extent that each journal's influence is expressed by its impact factor. An identical analysis applies to law school prestige as measured by per-author download rates on SSRN. The remarkable result of this inequality computation is that the Gini coefficient of legal academia, when prestige in this field is modeled according to an ordinary exponential distribution, is exactly 1/2. That outcome that is determined analytically rather than empirically. The inverse Simpson index similarly reflects an exact twofold reduction in the second-order diversity of law review publishing and academic prestige as measured through SSRN downloads. Modeling law review impact factors and SSRN download rates according to ordinary exponential distributions gives rise to a powerful mathematical tool for assessing influence among law journals and law schools

Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates

James Ming Chen, Weighted-Average Methodologies for Evaluating Bar Examination Passage Rates, available at http://ssrn.com/abstract=2532800:

There are few truly “national” law schools in the United States. Most American law schools in the United States have a “dominant” state bar. A greater number of the graduates of nearly any law school take the bar examination administered by one state than any other bar examination. The American Bar Association and U.S. News and World Report's law school rankings rely on bar passage rates for the single largest cohort within any school’s graduating class. But the modal passage rate is misleading as a measure of any one school’s overall bar passage rates. The modal passage rate also fails to facilitate direct comparisons of bar examination performance at different schools.

To evaluate the overall bar examination performance of the graduates of any law school, I propose the use of weighted-average methodologies. Ideally, we should be able to measure, by use of weighted averages, each school’s bar passage z-score. Since the data needed to conduct proper standard scoring is extremely difficult, if not impossible, to procure, I propose a simplified weighted-average methodology. The weighted average of school-specific bar passage rates by jurisdiction, minus the weighted average of passage rates from all jurisdictions where its graduates, enables us to evaluate each school's bar exam performance, relative to the bar passage rate in its modal state, and relative to the weighted average bar passage rate across the entire United States.

In the interest of completeness, I propose two other methodologies. One of those methodologies is based on ratios, in emulation of U.S. News and World Report’s law school rankings. The other is based on what I consider a reasonable parametric estimate of standard deviations in state-wide bar passage rates weighted by school, through which we can estimate z-scores for bar exam passage rates for all states and all schools.

Teaching law, without a care in this world

Titian, Girolamo and Cardinal Marco Corner Investing Marco, Abbot of Carrara, with His Benefice (ca. 1520)

As the legal academy debates tenure, Fortune magazine takes notice:

When businesses run into trouble, managers move to reduce salaries and expenditures. If only it were that simple for the multimillion-dollar law school industry, which is up against the wall trying to balance plummeting budgets while maintaining employees' academic freedom.

Law school deans' cost-cutting efforts are colliding with decades of strong job protections — short of incompetence or financial emergency — that have been granted to full-time professors. The academic ranks let out a collective sigh when the American Bar Association decided to examine whether to jettison or curb the tenure system.

It didn't take long for some 600 tenured law professors to warn that unpopular views would be stifled if tenure were diminished and have urged that any changes to the system be scotched. Many professors fear being pushed aside for cheaper, less experienced replacements.

Law school deans, meanwhile, have been remarkably silent. . . .

Self-Adjusting Weighted Averages in Standard Scoring

Herewith a methods paper for the benefit of law professors and other university instructors who seek a sensible alternative to all-or-nothing final exams:

James Ming Chen, Self-Adjusting Weighted Averages in Standard Scoring, available at http://ssrn.com/abstract=2397637.

Like many of their counterparts in university teaching, law professors routinely rely on all-or-nothing final examinations. But all-or-nothing final exams put enormous pressure on students, who often labor for months with no meaningful feedback on their mastery of the material.

One alternative to the all-or-nothing final exam consists of administering some sort of initial graded assignment. Assigning a relatively modest weight to the initial assignment maintains the primacy of the comprehensive final exam. To further minimize the pressure that accompanies the initial assignment, I propose an algorithm for adjusting the weight of the grade on the initial assignment so that students who boost their performance by the time of the final exam will benefit from their improvement. By the same token, students who do well on the initial assignment may wish to “lock in” some of the benefit of that performance as a hedge against declining performance on the final exam.

The method for self-adjusting weighted averages described in this paper achieves both of those objectives. It does so in strictly parametric terms, thereby removing guesswork and potential capriciousness in grading decisions. By using the standard logistic function to adjust the relative weight of z-scores, the method prescribed in this paper preserves the symmetry inherent in the presumptively elliptical distribution of grades.

The secret underlying this methods paper, such as it is, involves the application of the standard logistic curve to the computation of weighted arithmetic means.

Cnidarians and academic life

O cnidarians! Cnidaria are the phylum of invertebrates including jellyfish, coral, and hydroids. They lack spine, but they sting. Their name is derived from the Greek word κνίδη, which means nettle. Many cnidarians — namely, those in subphylum Anthozoa — are sessile. Even the free-swimming Medusozoa, which subphylum includes jellyfishes, are rather limited in their locomotive power. The relevance of cnidarians to university life is left as an exercise for the reader.

Although this post arguably belongs in Biolaw rather than MoneyLaw, a wonderful New York Times video prompted me to post it here. Glaucus atlanticus, a nudibranch, enthusiastically and safely feeds off the infamous Portuguese man o' war. This little sea slug's ingenuity is well worth the three minutes needed to watch the video. May all of us who toil in acadème be inspired by the example of Glaucus atlanticus. Though cnidarians prevail throughout this vast ocean, there are ways to leverage their venom into defenses of our own and, indeed, to thrive on a diet of stinging nematocysts. Bon appetit!

New Directions in Law Faculty Signatures

Dear Phillip:

Please find enclosed a reprint of my latest article, "Special Pasta Recipes: Law, Culture, and Subordination: Is There A Way Out of Here." 34 Oklahoma State City Law School Just a Few Yards South of the McDonand's Law, Policy and Cooking Review, 345 (2013). I though you might be interested  in it because I cited an article that cited yours.

Best Wishes. Hope to see you at the annual meeting.


Chad

Chadworths Osbourn
Professor of Law and Associate Director of Foreign Program, Associate Director of Family Law Institute, Designated Decanal Ass Kisser, Soon to Be (STB) Associate Director of Muffins
Ben and Jerry's Law School
University of Western New Hampshire
Freemont, New Hampshire
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For my next to latest book see:http://www.amazon.com/Privilege-Reader-Michael-S-Kimmel/dp/0813344263/ref=sr_1_3?s=books&ie=UTF8&qid=1372378749&sr=1-3&keywords=privilege
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Led Pledge of Allegiance in Fifth Grade Ms. Stoney's Class
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White House Appointments: Pending

The Venns of Faculty Governance

I see that Professor Campos is finished with his effort to expose the Law School Scam.  I read his blog once or twice but felt like I knew and agreed with most of what he was saying so I did not keep up.  Judging by some of his enemies, how wrong could he be?

Frankly, I am pretty much out of gas on my far more modest Classbias blog too. It has always had a goal that was a bit different than that of Professor Campos. Its goal was to reveal the persistent and destructive effects of institutions run by elites for their own ends.

Here is one more effort to explain the problem.  The people I know can be placed along a continuum. At one end are the "demanders." These are the folks who feel entitled to virtually everything and "demand" that their desires be met. Slipping along the continuum we come to the "askers." What ever they can think of, they ask for. At the far end are the people who do not demand or ask. If you know anything about relative deprivation, you know that to demand or ask you have to be in a context in which things are perceived as possible for people like you. For example, I remember a few years ago when two new faculty hires were told they would be given a certain sum for moving expenses. The reaction of one way, "What? They will actually pay for me to move. What a great surprise." The reaction of the other was "I cannot possible move for such a small amount." The important thing to note is that there is no correlation between need, merit, productivity, student welfare or institutional success and a person's position on that continuum.

In addition, administrators say yes to these requests and demands for a host of reasons other than student or institutional welfare. For example, an administrator may say yes just to avoid the harassment or to make sure he or she is not accused of 'insensitivity" to one political group or another. Or, the administrator may be concerned that the asker/demander is capable influencing others to believe he or she has been unreasonable.

Here is my best try at using Venn diagrams to illustrate the problem. The larger two circles are things people ask for or demand and reasons administrators say yes. The smaller circles within each one show things asked for or demanded that are consistent with student or institutional welfare and the times administrators say yes for reasons related to student or institutional welfare. That tiny overlap in the middle shows how much these interest coincide. A much larger area indicates when requests and demands that have nothing to do with student or institutional welfare get a yes answer.


Cross-posted at Classbias

Measuring the downside risk of law school attendance

I am very grateful for the opportunity to present comments to the American Bar Association’s Task Force on the Future of Legal Education, in a session at at the midyear meeting of the ABA in Dallas, Texas, on February 9, 2013. The task force has been "charged with making recommendations to the American Bar Association on how law schools, the ABA, and other groups and organizations can take concrete steps to address issues concerning the economics of legal education and its delivery." The following paper, Measuring the Downside Risk of Law School Attendance, provides the technical background for my comments:

Legal education has come under severe political pressure, both external and internal, for its perceived failure to deliver tangible economic benefits to law students. In fairness, legal education is not alone. The financial crisis of 2008 and the economic recession triggered by it have forced many other industries, including the private practice of law, to reevaluate their balance of costs and benefits. Many institutions, even entire industries. must now endure stress-testing in the form of debt-to-income or debt-to-capital ratios. In this document, I shall focus on student welfare, especially the core economic question of whether law school attendance delivers a valuable return on students’ investment. I shall also describe the tools, drawn from quantitative finance and econometrics, that I would use to evaluate downside risk and inequality within any cohort of law school graduates.

Formal citation: Jim Chen, Measuring the Downside Risk of Law School Attendance, available at http://ssrn.com/abstract=2214337 or http://bit.ly/DownsideRiskLawSchool.

Take The Classroom Back

Newberry College in Columbia, South Carolina, will offer a major in social media.

The college, for its part, explains that this is one of the first interdisciplinary social media majors. It says it blends graphic design, communications, business, marketing, psychology, and statistics, and that social media is such a vital part of marketing and other business habits that it'll be a valuable qualification with a likely career path ahead of it. One way students will learn mobile marketing, the college says (via Fox 57), is by designing QR codes, "those little black and white scanners you use with your smartphone." Apparently this is the "hot new way" to do marketing with mobile phones.
So...last time we looked, the QR code was frowned upon by almost everyone, everywhere (though it does linger in the U.S.). And surely one worry is that by the time students graduate in 2017, with the course starting in 2013, the rocket-speed development of social media itself will have outpaced their education.

No, this isn't from the Onion, but from educators who are trying to become relevant in a young person's world by getting ahead of the curve, even though there is neither a chance of success nor a need to turn culture into coursework, and cater to the interests of children.

What teenager wouldn't be enticed by a major in Facebook with a minor in Pinterest?  Of course, if they offered this a decade ago, the major would have been Netscape and they would be working the counter at Dairy Queen today, if they were lucky.

What type of educator panders to youth culture in this way?  All types, actually.

Having taken lawprofs to task for the inexcusable failure rate on the bar exam, it's worthwhile to consider what has gone terribly wrong in the classroom. It's not that lawprofs aren't smart enough to adequately educate law students, though their interest in pedagogy as compared to indulgent scholarship is in question. But, from what I know of law professors in general, they want to teach students well, even if it's not their primary focus.

So if it isn't their capability to teach or knowledge of the law, then what? 

My surmise is that a core problem is that lawprofs have allowed the inmates to take over the asylum. Law students today have a very different perspective of their relative worth. They believe their opinions are important. Stemming from an excess of unwarranted self-esteem and entitlement, borne of years of coddling, they view themselves as peers of their professors.

They have questions, and demand not only prompt answers, but answers that validate them. The will not tolerate the Socratic Method, as it belittles them and reflects a lack of respect.  There are no longer wrong answers in law school, but just answers not as right as they could have been. And when a student disagrees, asserting that his answer is every bit as good as the one the professor "suggests," they have no qualms about informing the professor of her error.

What does not happen anymore is a professor informing a law student that they are wrong. Dead, completely wrong. Totally wrong. There is no Kingsfield to hand Hart a dime.  Any lawprof foolish enough to do so would learn that he was "condescending and disrespectful." 

And why, an old lawyer wonders, would any lawprof care what a law student thought of him? The dark side of empiricism, evaluations. I asked a lawprof for whom I have enormous respect what drives lawprofs to give a damn about evaluations. This is what I was told:

Deans probably give popular teachers a bit more money in salary, although it's hard to know for sure and varies Dean to Dean. Bad teaching evals can make a lateral move less likely and tenure harder, too, although that's probably only if the evaluations are really bad.   But I suspect the real reason professors care is that everyone wants to be popular, and to feel like their work is valued.  And for professors, evaluations are like their grades, and professors tend to be Type A people who are competitive and want to get high grades.

This is a shocking and deeply disturbing explanation.  A law professor cannot, by definition, be "condescending" to a law student. There is a reason why one is the teacher and the other the student. The teacher possesses superior knowledge. The student is an empty vessel, waiting to be filled with the teacher's knowledge.  At least that was the old concept, before they needed the permission and approval of students to teach them.

Plus, law students tend to be a pretty nice people, and it's natural to want the nice people you work with to like you back.

Law professors do not "work with" law students. They teach law students. Or at least they used to, and many of us thought that was still the job. 

Even though practicing lawyers may not know what happens in the classroom these days, we can see the attitude on blogs, Twitter, Facebook, etc., where law students are so bold as to school us on the law. One of my favorite examples was on Twitter, where a law student would twit her opinions on the law to me, which were ignorant and juvenile, and I told her so and explained why.  She was outraged that I didn't respect her views, at my snide, arrogant and condescending attitude.

I responded that the fact that I acknowledged her existence at all was a demonstration of respect far beyond what she deserved. In what universe does a law student get to demand the attention of an experienced lawyer?  In her universe, I was told. In her universe, she was entitled to demand my attention and respect, and my failure to comply with her demands, and in the manner she demanded, made me unworthy.

Dear Lawprofs:  Take back your classroom.  These are not your peers, your colleagues. Perhaps one day they will be, but not now. When you seek their approval, you forfeit your authority to teach them.  If they are wrong, someone must tell them they are wrong. If they lack the capacity to become a lawyer, someone must give them a dime and tell them to call their mother. 

But they won't like you?  Too bad. Your job is not to be liked, but to teach blobs of clay to become lawyers. You do not need any more permission than the fact they sit in your classroom.  They disagree with what you say? Too bad. They are students. They know nothing. That's why they're there.  Their feelings will be hurt if you don't apologize for anything less than glowing validation of their every thought, and they will take it out on you in their evaluations?

That's why they pay you the big bucks.

The expectation of students is that you will honor and respect them, no matter what.  They can be wrong, yet you will find something positive to say because they cannot handle the slightest hint of criticism. They are fragile. They are delicate. They are special.  And since you want them to like you, you pander to their demands. 

As the bar exam results prove, this hasn't helped them to meet the minimal level of competency to become a lawyer. As unemployment rates prove, they are about to learn what real disappointment means. And as their skill in the representation of clients proves, real life will not be nearly as kind to their fragile self-esteem as you were.

You have done them no favors. You have not done your job. Perhaps they are now your dearest pals, but they didn't need a friend. They needed a teacher.

As I pay attention to what lawprofs say and do, I also pay attention to what law students and new lawyers say and do. Some are remarkably astute. Some are mind-bogglingly misguided. They hate me for telling them when they are wrong. They call me snide, arrogant and condescending. And I don't give a damn. They are not my peers, but children in dire need of guidance that no one else is willing to give them. 

Of course, they won't listen to me. I don't coddle them and rub their little tummies. So as long as you concern yourselves more with sweet words on their evaluations, law students will continue to emerge from your classrooms incapable of the rigors of law and unsafe for clients. But who cares, as long as they like you. 

This is the pedagogy you've created and perpetuated. If you have any balls at all, take back your classroom and teach your students well.  Hurt their feelings whenever their feelings need to be hurt. That may be the most important lesson you can ever teach them.  And stop caring more about your validation than what these ignorant, entitled misfits will do to clients some day.

Cross posted at Simple Justice.

National Jurist's 25 most influential people in legal education

The National Jurist has named its 25 finalists for the title of the most influential person in legal education. I am honored and humbled to have been named as a finalist.

These are the finalists, in alphabetical order:

• Catherine Carpenter, Professor, Southwestern Law School
• Paul Campos, Professor, University of Colorado Law School
• Erwin Chemerinsky, Dean, University of California Irvine School of Law
• Jim Chen
• Hiram Chodosh, Dean, University of Utah S.J. Quinney College of Law
• The Faculty of Washington and Lee School of Law
• Bryant Garth, Dean Emeritus and Professor, Southwestern Law School
• John Garvey, Professor, University of New Hampshire School of Law
• Claudio Grossman, Dean, American University Washington College of Law
• Phoebe Haddon, Dean, University of Maryland Francis King Carey School of Law
• William Henderson, Professor, Indiana University Maurer School of Law – Bloomington
• Kevin Johnson, Dean, University of California Davis School of Law
• David Levi, Dean, Duke University School of Law
• Lizabeth Moody, Professor and Dean Emeritus, Stetson University College of Law
• Jerry Organ, Professor, University of St. Thomas School of Law — Minneapolis
• John O'Brien, Dean, New England Law Boston
• Sophie Sparrow, Professor, University of New Hampshire School of Law
• Richard Sander, Professor, University of California at Los Angeles School of Law
• Brian Tamanaha, Professor, Washington University School of Law
• William Treanor, Dean and Executive VP, Georgetown University Law Center
• Kyle McEntee, Co-founder, Law School Transparency
• Blake Morant, Dean, Wake Forest University School of Law
• Patricia White, Dean, University of Miami School of Law
• Philip Weiser, Dean, University of Colorado Law School
• Frank H. Wu, Chancellor & Dean, University of California, Hastings College of the Law

Update: Paul Caron of the Tax Law Prof Blog has provided coverage of this list. For me, the honor of being named to this list closes a circle that began when the National Jurist quoted me in an article on change in legal education — like its glacial equivalent, slow to progress but inexorable and epochal in its eventual effect. I do hope to live long enough to see the triumph of reform over reaction.

Say sayonara to "Spidey sense"

A CBS News profile of Nate Silver, author of 538.

Not that we should expect law professors, a group whose political sensitivities vastly exceed its collective quantitative talent, to have taken close note, but the 2012 election staged "a pitched battle between two self-assured rivals: those who relied on an unscientific mixture of experience, anecdotal details and 'Spidey sense,'and those who stuck to cold, hard numbers." Quite unsurprisingly, the quants won.

In MoneyLaw terms, the lesson for legal education should be obvious. Law as a purely instinctive enterprise is giving way — in many respects, it has already given way — to law as a branch of engineering and the quantitative arts. This forum will have many future occasions to demonstrate exactly why this is true. For now, sit back and just enjoy the show.

Money Law Question?

I can provide a reason for why it is appropriate to ask this of moneylaw readers but let's just assume I have and get right to the question.

Many schools have increased their number of transfer students. We all know why. Typically when they enter their slates are clean as far a GPA and their final GPA and class rank will be based on the last two years.

At many schools there is a lower curve in the first year than in selected second year courses. For example, small sections and seminars may have a higher curve -- 3.6 as opposed to 3.2.  For all practical purposes this means the average curve in upper level coures is higher than the first year curve. The outcome is that transfer students are ranked and recieve  honors based on a higher curve than non transfer students who are saddled with their first semester grades that are on average lower than upper level grades.

The perception is that transfer students then have an advantage as far a class rank, honor, GAP, etc.

I am asking if  your school or any school you know of has reacted to this by normalizing grades or creating two rankings or eliminating the dual curve or at all? Thanks.

ARM-twisting "A Degree of Practical Wisdom": A one-year readjustment of legal education's debt-based stress test

Roughly a year ago, I posted what was then the preliminary version of 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. 1185 (2012) (available online at http://ssrn.com/abstract=1967266 or http://bit.ly/DegreePracticalWisdom). After a year of summarizing and presenting A Degree of Practical Wisdom before multiple audiences and subjecting its model to the test of actual, real-world applications, I have decided to propose some modifications in my model. Think of it as the annual ARM-twisting that accompanies any adjustable-rate mortgage.

A Degree of Practical Wisdom argued that law schools should subject themselves to one form of stress-testing: measuring the ratio of their students’ educational debt to those students’ post-graduation incomes. My original analysis used mortgage lending policies, as developed by private lenders and by the Federal Home Administration, to identify three ratios of monthly debt service to monthly gross income:

1. Marginal: 0.12
2. Adequate: 0.08
3. Good: 0.04

On the assumption that the most affordable loan terms allow law school graduates to amortize their loans at 6 percent interest over 25 years, the foregoing versions of the “educational back-end ratio” correspond to the following ratios of (law school) educational debt to (gross) annual income:

1. Good: 0.5
2. Adequate: 1.0
3. Marginal: 1.5

In the year since I first posted A Degree of Practical Wisdom and invited commentary on it, I have had the benefit of "field testing." Drawing upon efforts of my own and by others to apply my stress tests, I now propose a modest readjustment of my approach for assessing recent law school graduates' economic viability. I will restate ratios of debt to income as their reciprocals — as ratios of income to debt — in order to focus attention on the different salary outcomes achieved by recent law school graduates. I will also relax the stringency of my original stress tests. It turns out that almost no law school graduates begin with an annual income double their level of law school debt. A 2:1 ratio of annual gross income to law school debt is the reciprocal of the “good” 0.5 ratio of debt to income. I will readjust this highest level of economic attainment to a ratio of 3:2. I will also rename the three levels of economic attainment:

1. Excellent: A 3:2 ratio of annual gross income to total law school debt
2. Healthy: A 1:1 ratio
3. Viable: A 2:3 ratio

Multiplying by 1.5 (or 3:2) closes the gap between the viable and healthy levels, or the healthy and excellent levels. Relative to my original level of "good" economic performance, the new "excellent" category actually reflects a slightly higher debt burden. The reciprocal of an "excellent" 3:2 ratio of annual income to total debt means that the ratio of law school debt to annual income is 2:3. The corresponding ratio of law school debt service to gross annual income is approximately 5.33 percent.

The new ratios sacrifice some of my original model's elegance for real-world utility in a legal services market where very, very few entrants can expect to win an annual salary whose face value is double their level of law school debt. Then again, the 1.5 (or 3:2) ratio that describes the transition between each of the new categories — from viable to healthy and again from healthy to excellent — has an elegance all of its own. A 1.5 ratio is reasonably close to (1 + √5)/2 (approximately 1.618) or φ, the celebrated golden ratio of Pythagorean mathematics. In an age when grades and tuition rates have inflated faster than salaries and the gross domestic product, we may take solace in the legal academy's own version of the "Aurea mediocritas."

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Editor's note: For the images in this post, I tip my hat to Scottish artist Judith I. Bridgland.

Big law firm suicide

In The better angels of our profession, I sorted law professors into three camps according to their reaction to recession and industry-wide restructuring in the legal profession. Because the revolution in legal education and law practice has not abated, I believe that the time has come to perform a little triage.

One deeply cynical camp refuses to change business as usual. To comfort themselves, members of this camp have their sinecures and the self-satisfaction drawn from academic achievements as irrelevant as they are ancient. At their worst, this camp's partisans gleefully trash critics who have been insightful and courageous enough to identify serious flaws in law schools and law firms. Once upon a time, I took umbrage at people this petty and this selfish. With age comes wisdom — These days I just remind myself: "[It] [d]oesn't mean that much to me / To mean that much to you." Live and learn; live and let live. All it took to rediscover the the right motivation was to remember this bit of sound advice: we should strive "to make a positive difference in the world, not to win popularity contests among people we don't respect."

I will therefore devote the bulk of my efforts to persuading a second group: that "less angry cohort [that] fervently wants to believe that tough times in the legal profession are merely cyclical." Their wish appears to be this: "Wait a year or two or five, . . . and things will be back to the way they always were."

More than just a river in Egypt.

No, they won't. We have ever stronger reason to believe that the legal profession and the academy that feeds it have both undergone permanent, structural change. Adapt or die.

This, at any rate, is my position. This view, I believe, commands a meaningful fraction among lawyers, judges, and law professors. The latest evidence of permanent, structural change comes via Bruce MacEwen of Adam Smith, Esq., with a further hat tip to Debra Cassens Weiss. MacEwen points to the prevalence of economically suicidal, cut-rate fees among law firms as evidence of "excess capacity" and "enormous pricing pressure just to cover fixed costs." Those firms have the thinnest of margins for error: "A law firm cannot really lose money for even one year and remain viable . . . because that’s what they pay their partners with."

I speak with greatest urgency to fellow legal academics and to law firm partners who fit the life stage that David Bowie once described as "[t]oo old to lose it, too young to choose it." It's sad to watch these law firms, some at the pinnacle of the profession, cannibalize themselves and their employees. The clock waits so patiently on their song. They walk past a café, but they don't eat when they've lived too long. Oh no no no: We may be witnessing big law firm suicide.

Cranes and skyhooks

In his latest contribution to MoneyLaw, Jeff Harrison minces no words in expressing disdain for legal skyhooks:

Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. . . . In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas [of legal scholarship].

Jeff's rightful condemnation of skyhooks reminds me of Daniel C. Dennett's 1995 masterpiece on the philosophy of science, Darwin's Dangerous Idea: Evolution and the Meanings of Life. Dennett says this of skyhooks: ""Skyhooks would be wonderful things to have, great for lifting unwieldy objects out of difficult circumstances, and speeding up all sorts of construction projects." Id. at 74. Alas, skyhooks not only don't exist; they can't ever exist.

An unhealthy reliance on skyhooks is fatal to any scientific enterprise. That includes law. Dennett's prescription for biology is one that we lawyers would be well served to embrace. For every skyhook on which we have wagered our professional lives, we must strive to build a genuine crane. In biology, that means finding molecular building blocks for every process. Nothing quite that concrete drives legal science. But we would be remiss if we did not seek, in every act of pedagogy and scholarship, (1) to affirmatively propel the enterprise of subjecting human behavior to the governance of rules, (2) by means of a crane real enough to be falsified by empirical tools at the hands of an independent and politically honest broker. In law as in any other scientific discipline, skyhooks have no place. We're too busy building things to accommodate such idle indulgences.

Sky Hook -- One or Two Words?

That actually may be the title of an 80 page law review article with 300 footnotes.  That article has not been written but, if it were, it might be more interesting than most of what is published.

It has been some time since I wrote to complain about the surplus of law review articles. I've forgotten what it came to when I multiplied it all out but, lets see: 200 law schools, 2 reviews per schools, 4 issues per year, 5  articles per issue. I think that is 8000 per year. Five articles per issue is probably high but not when you throw in student notes and comments.

That seems like way too many to be of any use especially if you agree with my friend who said to me: "Jeff, what are we doing? Law schools are not good professional schools, they are not really graduate schools, and the vast majority of teachers are not scholars." I would have put the last part of that a bit differently. I'd say, whether they are or could be scholars, they do not do that much scholarship. By that I mean something other than a brief for one side of an issue or another.

So, 8000 articles but it gets worse. In a recent article, Monroe Freedman describes some writing about legal ethics as comparable to engineers writing about sky hooks. Plus, they write about the implications of sky hooks for air traffic. In short, it is completely irrelevant to anyone but about 10 people who are genuinely intrigued or building resumes. His comments could be applied to all areas.  In fact, the most skyhooky article I have ever seen was about the efficient breach and recently published by the Virginia Law Review.  I think these articles are mainly written by privileged people who would be happier in other departments but the money and jobs are not there. While not  privileged, I do not exclude myself. I can spend hours wondering about the efficient breach when I actually do not think it exists and, if it did, we would not know it. But it still spins around in my head (but perhaps not in print since my own offering is still looking for a home).

Oh no, it gets even worse than worse. What we do to the people we hire? We tell them to add to the total or they will lose their jobs. In short, they are required to make a bad situation worse in order to get a life time job making it worse still.

And thanks to the pandering to U.S.N & W.R. it gets even  . . . .  worse. If your school is like mine, it is all about numbers. Three articles of almost any quality are better than one very fine article. I would be hesitant to tell a new hire to write one very fine article and expect to get promoted. Like teaching, flash has replaced substance as the standard.

So, is there a point at which this crashes and burns or has it already and what we have now is the debris?

Scholarships at Risk: The Mathematics of Merit Stipulations in Law School Financial Aid

I have posted the following article to my SSRN page —

Jim Chen, Scholarships at Risk: The Mathematics of Merit Stipulations in Law School Financial Aid, available for download at http://ssrn.com/abstract=2133018 or http://bit.ly/MeritStipulations:

Many law schools in the United States condition financial aid grants on the recipients’ maintenance of a certain grade point average. These merit stipulations require students to meet or exceed minimum academic standards in order to keep all or part of their financial aid. Law students should take merit stipulations into account when they decide whether to accept an offer of admission paired with a conditional grant of financial aid. By all accounts, they do not. Law schools should transparently disclose the likely effect of merit stipulations on their financial aid awards. By all accounts, law schools do no such thing. Absent external coercion, they are unlikely to change their current practices. In the absence of industry-wide standards counseling full disclosure of financial aid practices, this article will try to equip law school applicants with the mathematical tools to assess the real impact of merit stipulations on their financial well being.

This article first presents very simple models for discounting financial aid awards for the risk of failure to uphold a merit stipulation. It outlines a simple methodology for calculating the expected value of a financial aid award subject to a merit stipulation. The article also evaluates one extraordinary circumstance in which a law school has implicitly revealed its break-even point — the amount of aid that the school would award if it did not impose any merit stipulations.

Building upon those foundations, this article performs a comprehensive analysis of law school grades and merit stipulations as artifacts of the standard normal distribution. It performs three distinct tasks. This article defines standard scores and explains how law school grading is based on the relationship between the standard score of each student’s raw score and the mean and standard deviation of of the distribution as a whole. This article then describes the risk of failure to satisfy a merit stipulation in terms of the normal distribution’s cumulative distribution function. For those instances in which the risk of failure to satisfy a particular school’s merit stipulation is known, this article demonstrates how to use the inverse cumulative distribution function to estimate the mean and standard deviation of a school’s grade distribution. As a bonus, this final exercise provides an introduction to value-at-risk analysis, a leading tool for assessing risk in global capital markets.

Update: Paul Caron has kindly highlighted this article in the TaxProf Blog. Above the Law, JD Journal, Law School Expert, the Legal Skills Profs Blog, and the Clinton Law Firm Blog have also provided coverage.

Punt baby punt

The shocking conclusion to the 1972 Iron Bowl (Auburn 17, Alabama 16), better known by the name, Punt Bama Punt.

Readers who have patiently stayed with this forum through the years know that MoneyLaw loves sports metaphors. And why ever not? How many people do you know who not only can decipher the market participant exception to the dormant commerce clause but also can explain why the play action pass is the mirror image of the draw play?

In law as in football, punting is the most cowardly play. Gregg Easterbrook, who numbers among those colossal figures who stride both law and football (albeit by proxy through his judicially renowned brother), has long derided preposterous punts. Yet coaches call punts all the time. Unless the ball is inside the opponents' 30 or the game situation absolutely compels a different play, punting is football's default fourth down option.

The shocking — and totally bold — no-kicks-needed conclusion to the 2007 Fiesta Bowl: Boise State 36, Oklahoma 35.

We know why. Punting happens precisely because leaders coaches are cowards. They would rather lose meekly than boldly give their teams a chance to win. It's an obvious manifestation of prospect theory. Losing hurts worse than winning feels good. This is especially true when everyone blames the coach for a botched quick-out on fourth-and-6, but no one credits the coach if the play opens the door to an epic comeback. But they should. It takes real guts to call a hook-and-ladder, a halfback pass, and a Statute of Liberty on consecutive fail-and-lose plays.

To the rescue comes this item in America's newspaper of record. As a season of new academic beginnings and renewed gridiron combat looms before us, I commend it to MoneyLaw's readership. Enjoy.

Read the rest of this post . . . .

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From Adam Himmelsbach, Punting Less Can Be Rewarding, but Coaches Aren’t Risking Jobs on It, New York Times, August 19, 2012:

Although some statistics show there are often better options on fourth down, teams continue to punt, punt and then punt some more. But what if they did not? What if the punt was punted?

Last week, San Diego State Coach Rocky Long said he might consider going for first downs when his team faced fourth downs past midfield this year. His intentions rekindled a debate about the value of the punt, a play some think is a product of coaches’ conservatism and resistance to change.

“Coaches tend to be risk averse,” said Dr. Ben Alamar, a professor of sports management at Menlo College in Atherton, Calif., who has studied N.F.L. statistics. “People are typically uncomfortable moving away from the norms.”

David Romer, a professor of political economy at the University of California, Berkeley, published a paper in 2005 on the statistics of punting that has become the gospel for the antipunting faction. Romer, who analyzed data from N.F.L. games from 1998 to 2004, determined, among other things, that teams should not punt when facing fourth-and-4 yards or less, regardless of field position.

“Of course, there are times when punting is a good idea, . . . just not nearly as many as football coaches seem to think.”

Brian Burke, the publisher of advancednflstats.com, said teams should go for a first down when they faced fourth-and-1, or when it was fourth down from the opponent’s 35 to 40. Burke also said that he believed that teams should try to score a touchdown when facing fourth-and-goal from the 6 or closer, assuming a last-second field goal is not called for.

“If everyone agrees out of fear or ignorance to sort of play ultraconservative, nobody really has an advantage,” Burke said. “There’s no development, no evolution. Coaches have strategies that are generations behind where the sport really is. It’s going to take someone to stick their neck out.”

Coaches are hesitant to take the plunge because a string of failed fourth-down attempts could leave them vulnerable to criticism and affect their job security more than a conservative menu of punts ever could.

“From different eras, there was a mind-set that playing the field-possession game is a good thing, because it turned the ball to the other team 40 yards away and allows them to make a mistake,” the former Tennessee coach Phillip Fulmer said. “Coaches, by nature, are a little bit defensive in their thinking.”

According to Dr. Curt Lox, a professor of kinesiology and sports psychology at Southern Illinois-Edwardsville, the candidates best in position to experiment with a punt-free strategy are those who are so established and successful that they are almost immune to criticism of their strategy, or those who are unknown underdogs with nothing to lose.

Kevin Kelley, the head coach at Pulaski Academy in Little Rock, Ark., fit the second description when he was hired in 2003. That year, he came across a grainy VHS tape of a professor espousing the potential virtues of a punt-free lifestyle. Kelley was intrigued and has since become perhaps the most unorthodox coach in the nation.

His high school team does onside kicks after almost every score. It does not use a punt returner, because Kelley believes fumbles and penalties occur more often than strong returns. And it does not punt. Last season, the Bruins went 14-0 and won the Class 4A state title.

“It was easy to convince the players, because they grow up playing PlayStation and Madden and they don’t punt in those games, so they don’t want to punt in real games,” Kelley said. “The fans were a different story.”

When Kelley unveiled his aggressive offense, his tactics were questioned by Pulaski administrators and school board members. Once, when Pulaski defied its own logic and punted, it received a standing ovation from the home crowd.

“I remember turning around and saying, ‘You’re the only people in the history of football that stand and cheer for a punt,’ ” Kelley said. . . .

Kelley’s offense thrives because the possibilities are endless. Third-and-7 is not necessarily a passing down, and third-and-inches is not necessarily a running down.

“And God help the defense on first-and-10,” Kelley said, “because we can literally do anything.”

In recent years, Kelley has consulted with college and N.F.L. teams. He said one offensive coordinator for a team in the Big 12 Conference was enthralled by the idea of never punting, but the head coach was spooked by the risks. Then the offensive coordinator became a head coach, and he got cold feet, too.

Kelley has shared his philosophy with two A.F.C. coaches whose hesitancy outweighed their curiosity.

“These coaches are making millions of dollars, and if they lose close games doing it the traditional way, they’ll probably keep their jobs,” Kelley said.

Video bonus: Another shocking — and totally bold — no-kicks-needed conclusion, the Little Giants play that gave Michigan State a 34-31 overtime victory over Notre Dame in 2010.

Just enjoy the show

For nearly six years, MoneyLaw has asked us to pause in law's pleasures and count its many fears. The All-Star Break is the annual eye of the storm in the ecclesiastical calendar of the Church of Baseball. These moments provide the perfect occasion for reflection and introspection.

From the beginning, MoneyLaw has drawn its literary inspiration from Moneyball. In 2011, after at least one major false start, the big screen finally provided a home for Michael Lewis's bestselling profile of Billy Beane and his pursuit of the art of winning an unfair game.

The movie version of Moneyball is a distinct and worthy work in its own right. Among its subplots, the movie highlights the quiet heroism of Scott Hatteberg, the washed-up catcher that Billy Beane rescued, reclaimed, and repackaged as a first baseman who could run up pitch counts, draw walks, and bash long balls. Hatteberg ultimately brought more honor to the Oakland uniform than the likes of Mark McGwire, Jason Giambi, and Jose Canseco.

Perhaps the movie's most pleasant surprise was its musical Leitmotif, a catchy tune by Lenka. Those of us who admire Billy Beane know, in some cases far too personally and far too painfully, how hard it can be to win the last game of the season. For that group — for all of us who are just a little bit caught in the middle, for whom life is a maze and love is a riddle — a break in the action represents our best chance to let it go and just enjoy the show:

The Linda Hypothetical and Testing

Most readers are familiar with the Kahneman and Tversky  classic Linda hypothetical which involves this fact pattern and the follow-up question: "Linda is thirty-one years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in antinuclear demonstrations.”

Which alternative is more probable?
 (1) Linda is a bank teller.
 (2) Linda is a bank teller and is active in the feminist movement.

Most people choose (2) over one although it is illogical to do so since it includes (1) and involves a joint and, thus, lower probability.

I've never been a believer in the Linda hypothetical. First, I am not sure it tells us as much about logic as it does interpretation. Having listed feminist as a possibility in choice (2), "not a feminist" may be inferred to be included in (1). If so,both are examples of joint probability. I am also not sure if many people know what "more probable" means. Suppose one reads that as "best" answer meaning the one that captures Linda in a more precise fashion. Finally, how about telling subjects this is a test on logic?  In short, is the test a valid test of reasoning?

For law professors, especially those using multiple choice machine graded exams the same questions are relevant.  There are many reasons for choosing a wrong answer and sometimes the answers reveal more about the teaching and testing than the students. On the typical essay exam or multiple choice with explanation test  the teacher can assess the quality of the question by examining why people missed it. Flaws in the questions are revealed. On a machine graded exam the process of "testing the test" needs to happen before the test is used. I wonder how many machine graders either copy the questions from another source and assume the questions are pretested or actually do test the questions by having a sample of students answer the questions and then debrief those giving the wrong answer. I am betting not many. Ironically, when the of issue machine graded testing comes up many of the defenses are also illogical.