The Volokh Conspiracy

Instapundit points us in the direction of Joseph Bottum’s First Things blog post yesterday; also Althouse’s comment:

[W]hile I was [at NYU Law School] I saw posters for a lecture this afternoon by Eugene Volokh on the structure of slippery-slope arguments.  ... the posters for Volokh’s talk read, as I remember: “Founder of The Volokh Conspiracy blog and Gary T. Schwartz Professor of Law at UCLA.”

I wonder how the Schwartz family feels about that. Indeed, I wonder how UCLA law school feels. For that matter, I wonder how I feel. Since when has even a blog as interesting as the The Volokh Conspiracy trumped, for a law-school audience, a chair at a major law school and all the speaker’s academic publications?  A fascinating change in the culture of things.

Well, heck (and  not speaking for Eugene), I feel pretty darn good as a coat-tails participant at VC!

Is this the ‘Australian Sound’? My class is covering information asymmetries as transaction costs affecting pure Coase Theorem analysis, and we will soon come to classic information asymmetries found in agent — principal relationships.  I am thinking of using this as a pedagogical tool.

Consider Eric Roberts’ soliloquy on agent-principal relations, and the many ironies involved.  (Midway through — the focus here is not on the political discussion at the beginning, but the Australian sound debate midway through.)  Good teaching tool?  (Also, the Coke jingle by Tim Finn is surely one of the best around, and I’m amazed that the real Coke corporation never figured out it had a winner.)

Above the Law has a very interesting post summarizing a talk given by the Dean of Northwestern Law School, David Van Zandt, at a PLI conference on law firm management — Dean Van Zandt talks about the model of law school education and tries to approximate the median starting salary for a lawyer to make legal education pay.  His conclusion is — $65,000.

ATL has some discussion of that number, what it reflects and how derived, as well as other models that suggest the figure is much higher.  But equally interesting is the discussion of changes in the teaching model at law schools, including the introduction of a 2 year degree, and curricular changes.

[W]hat salary would you have to earn upon graduation in order to make going to law school an economically rational decision?  Van Zandt and some of his Northwestern colleagues did a study to determine the added value of a J.D. degree. They concluded that the break-even starting salary for a law school graduate is $65,000. Put another way, going to a law school with a median salary upon graduation that’s below $65,000 is not a wise investment.

Schools with median starting salaries under $65,000, which generally land somewhere in the 70s in the U.S. News & World Report rankings, are not good values. They need to either lower their cost to students and/or improve job opportunities for their graduates, according to Van Zandt.

(A break-even point of $65K seems low to [ATL], given high law school tuition, the borrowing costs associated with student loans, and the opportunity cost of going to law school when you could be earning a salary in some other industry. We’ve reached out to Dean Van Zandt to ask for more detail about the data he utilized and the assumptions he made in reaching his conclusion. Another academic, Herwig Schlunk of Vanderbilt Law, believes that the break-even point is much higher.)

The New York Times ran a much emailed piece talking about the declining value of a top-tier law degree, and now law professor Sarah Waldeck has followed up at Concurring Opinions with a blog post urging potential law students to be very tough-minded in deciding whether to go to law school:

Forty-five thousand dollars per year (plus other costs) seems like a lot to pay for such uncertain prospects.  But the number of people sitting for the LSAT this year suggests that quite a few will be willing to pay it; soon we’ll have a clearer picture of how many LSAT scores will materialize into actual applications.

Of course, this year law school applications will be partly driven by the lack of opportunity costs. Graduating college students face generally dismal employment prospects regardless of what field they want to enter.   But I suspect that optimism bias plays just as large a role in student decision-making.   No matter what the economy, some lawyers will be wildly successful.  Many prospective students are inclined to think that they will be part of this group, no matter how daunting the odds against it.  On the more rational side of the analysis, it’s also true that law school historically has proven itself a relatively good place to weather out bad economic times.

What is different this time around, however, is that no one is yet sure whether the changes in legal markets and in law firms are permanent, or whether things will eventually return to what we had come to think of as normal.  If you haven’t always wanted to practice law, or if you’re considering a law school that is not one of the best in the nation, or if the law school isn’t offering to pay for you to attend, my advice is to wait to see how this plays out.

Law schools know that many prospective students will ignore this kind of advice, at least for now. The decision to admit students—and to encourage them to attend—has a moral component, especially when law schools know that some students (many? most?) will face diminished prospects upon graduation.  Law schools, the ABA and the AALS have a continuing dialogue about what constitutes a quality legal education.  Now they should be talking about concrete steps that are responsive to the changing legal market.  In the short term, and at a minimum, law schools would seem to have the obligation to hold tuition steady.  In the long term, and if these market changes are permanent, universities need to ask hard questions about whether the number of law school seats should be determined by how many people want to go to law school or how many lawyers the market can absorb.  This, in turn, would raise a series of questions about class size as well as the propriety of establishing new law schools.

I am not very good with graphic design, illustration, and anything that requires good visual instincts.  So I don’t really regard myself as fit to have an opinion about this.  However, a current debate at my school is between Old Logo:

And New Logo:

Opinions at the school seem to be divided; naturally, a Facebook protest page got formed, WCL: What A Crappy Logo.  I don’t know — my Beloved Wife tells me I’m not the guy to pick out a snapshot and get the good one.  So I thought I would ask you, although I know of course that this is a nearly irresistible invitation to put your game face on.  (It also got picked up at Above the Law, but ATL does specialize in being snotty, so even if New Logo were the greatest in the world, it would come in for a bit of sneer.)

[Adapted from previous years– Ed.] Grades are being released at law schools around the country, and I thought I would offer some some comments about grades for our many law student readers (especially 1Ls). I wanted to address two questions: First, how important are first-year grades, and second, are law school grades random? 

I’ll start with a few thoughts on the importance of 1L grades. Yes, 1L grades ordinarily are very important in the short term. There are so many law students and so many employers that employers tend to rely on proxies to to determine which law students will make the best attorneys. The most obvious proxies are an applicant’s school and GPA, largely because there isn’t much else to go on when the applicant is only a student. The basic problem is limited information. Employers need an easy way to screen candidates down to a small enough group to interview, and the school/GPA combo is a quick and easy screen. Different employers look for different combos: some employers favor school A over school B, others B over A (generally depending on whether big shots at the firm went to school A or B). And some employers focus more on grades than others. In general, though, the school/GPA combo is used as a sorting mechanism by legal employers hiring people out of law school. 

With that said, I suspect that fall 1L exam grades are often less important than people think. This is true for two main reasons. First, lots of people find that their first-semester grades are pretty different from their later semester grades. It takes some students more time than others to get “the game” of how to answer a law school exam question, and when they do their grades go way up. that certainly was true fr me. Second, your law school GPA is less important — and in many cases, completely irrelevant — after your first job. Once you’re out of school for a bit, people care whether you are a good attorney, not your law school GPA. 

Finally, it’s important not to let lower-than-expected grades become a self-fulfilling prophecy. Recognize the psychological game going on here: many students expect their fall 1L grades to give them a lightning bolt of insight about their future in the legal profession. Too many students think that grades are destiny, and begin to take steps to readjust their expectations to what they think is their destiny. A student who gets a B+ in Torts and a B in Contracts just might think to herself, “Well, maybe I should practice tort law, because I’m better at that.” Some students react to the sting of lower-than-expected grades by tuning out, by deciding law is dumb, and by concluding that they just aren’t good at it.

I urge students not to take that path. All grades do is measure how well you did relative to your classmates on a few 3-hour exams taken at a particular place at a particular time. They’re a snapshot of the judgment of one particular professor, rather than a Scarlet Letter sewn on for life that reflect your ability in that field. (I say that as someone who earned a B+ in his fall 1L Criminal Law & Procedure course and now teaches and writes in the field.) 

Plus, a negative attitude only makes it less likely your grades will improve. If you tune out, you’ll only make it more likely that you won’t do as well as you should next time. My advice is to stick with it: Get your old exams back, review them, and make sure you know what you did wrong. Then have faith in yourself and your smarts that you can improve your grades in the spring.

Okay, on to the next question: Are law school grades random? Many students think so. They usually reach this conclusion after getting back their grades, and finding that they had better grades in the classes they hated and expected to fail than in the classes they loved and expected to ace. There’s no rhyme or reason to these silly letters, the thinking goes.

Not quite. To be sure, grades are at least a little bit random. For example, different professors have different approaches when they grade. Some pore over exams for hours, others read them pretty quickly. Some use a point system that gives you credit for mentioning an argument, others focus more on how skillfully you make the arguments. Some take off points for incorrect answers, others just don’t add any. Some care about how well you write, others don’t. Plus, it is by nature extremely difficult (if not impossible) to turn essay exams into a reliable and objective numerical score that accurately measures legal ability. The process requires judgment, judgment brings discretion, and discretion can be unpredictable.

But there are two important reasons why grades may seem random when they are not. First, in law it’s hard to know how much or how little you know. It’s surprisingly easy to have a false sense of security, or a false sense of insecurity, about an exam. Most law school exam questions are “issue spotters,” and it’s quite hard to gauge how well you answered an issue-spotter. If you miss all of the big difficult issues, you will think that the problem is easy for you and that you totally aced it. If you see all of the big issues, you will think that the problem is impossibly hard and consider yourself a miserable failure for being unable to know for sure how to resolve all of the difficult questions. The more you know, the more you see the difficulties of the problem and the more you know how little you know. Of course, the student who sees all of the hard issues on an exam and grapples with those difficulties gets the highest grade. The student who misses the issues and wrongly thinks the hard questions are easy does poorly.

The second reason grades may seem random is that grades are curved. You are graded not on how well you did in an absolute sense, but rather on how well you did relative to everyone else in your class. This means that your grades won’t necessarily correlate with the quality of your answers: Instead, they correlate with the quality of your answers relative to your classmates. If you totally clicked with crim law, but hated and never understood civ pro, you may get a higher grade in civ pro than crim because lots of other people in the class felt the same way. (And as a crim law prof, I have to say, who can blame them?) Similarly, if the exam in a particular class was unusually hard, you may end up with a top grade in the course simply because you were less lost than most of your classmates. Self-perceptions of performance won’t always match the curve-induced reality.

Somewhat surprisingly the Society of American Law Teachers study on minority matriculation to law school didn’t give data for all Hispanics. Instead, it focused on Mexican-Americans alone, concluding that their “representation” has “trended downward since 1993.” Most law schools target Hispanics as a group for affirmative action admissions, not Mexican-Americans alone. It could be that overall Hispanic matriculations have gone up, even if the Mexican-American figures have stayed constant or declined slightly (as the SALT study shows). According to Law School Admissions Council data (the same source SALT used), it turns out that the percentage of “Hispanic/Latino” students among matriculating law students has increased from 3.6% in 2000 to 5.1% in 2008, even as the percentage of “Mexican-American/Chicano” applicants has declined slightly from 1.7% to 1.4%. Unfortunately, the LSAC hasn’t posted data going back all the way to 1993 on its website, so we can’t look at the full period covered in the SALT study (1993–2008). But if the 2000–2008 figures are representative of the total period, this suggests that the percentage of Mexican-Americans has declined slightly in large part because law schools are hitting their targets for Hispanic admissions by taking more students from other Hispanic groups, such as Puerto Ricans, Cuban-Americans, and Dominicans. 

Obviously, “Hispanic” is a somewhat arbitrary and socially constructed category. But the fact remains that it, not the Mexican-American subcategory, is the main focus of most relevant affirmative action programs. Mexican-Americans are far from the only group that is considered “Hispanic” as that term is used in both ordinary speech and law school admissions policies. And under either the compensatory justice or diversity rationales for AA, it is difficult to see why Mexican-Americans deserve greater consideration than other Hispanic groups.

UPDATE: In this January 2008 post, co-blogger David Bernstein cited LSAC data showing that matriculation by non-Mexican-American Hispanics went up substantially between 1992 and 2005. Unfortunately, that data no longer seems to be available at the LSAC website.

UPDATE #2: In the comments and in a recent post, David points out that Mexican-American matriculation numbers seem to be decreasing in large part because fewer are applying than back in 1993. That may well be so. However, the two theories are not mutually exclusive. Applications may have decreased in part because, at the margin, Mexican-American applicants face increasing competition from other Hispanic groups for affirmative action admission slots. As David points out, Mexican-American applicants may also have been disproportionately impacted by the end of admissions preferences in California state universities, a state where they constitute a particularly high percentage of the Hispanic population. The main point, however, is that it is misleading to consider Mexican-American admissions numbers in isolation from those of Hispanics as a whole.

UPDATE #3: Another relevant factor is that the SALT study nowhere explains the definition of “Mexican-American” they have been using. Presumably, it is based on the definition used in data from the Law School Admissions Council, which in turn relies on self-identification by law school applicants. It is entirely possible that, since 1993, more Mexican-Americans applicants have been self-identifying as generic “Hispanic/Latino” rather than “Mexican-American/Chicano” both of which appear to be options available on LSAC forms, judging by the data compiled on the LSAC website.

UPDATE #4: For some reasons, all links to the LSAC site go back to their main website, and I cannot figure out how to link to particular subpages. All I can do is point readers to their main site, which is here. The specific numbers I have been citing can be found by clicking the “data” icon on their front page, and going to “Matriculants by Ethnicity” from there (in the case of the first set of numbers I discuss), and “Ethnic/Gender Volume Summary” for the second. Sorry for the confusion, but I think it’s a problem with the LSAC website.

A few days back, while I was away at the Federalist Society Faculty Division conference in New Orleans, Orin linked to a study out of Columbia’s “SALT” that reported declines in the percentage of African Americans and Mexican Americans matriculating in American law schools since 1993.

Orin tentatively attributed this decline to law schools becoming increasingly concerned about LSAT and GPA scores because these scores are so important to schools’ U.S. News rankings.

I have two related comments.  First, even if we assume that 1993 is the appropriate baseline year (and the study never explains why it is), we see that 9,577 African Americans and 1,434 Mexican Americans applied to law schools in 1992–93, compared to 9,030 and 1,130, respectively, in 2007-08.  In other words, there was a total of just over 11,000 African American and Mexican American applicants  at the beginning of the study period, compared to just 10,160 fifteen years later.  Nevertheless, almost exactly the same number of law students from these two groups matriculated in 2008 as in 1993: 4,060  in 2008, compared to 4,142 in 1993.

So, even though in 2008 there were almost one thousand fewer applicants, only eighty-two fewer individuals matriculated, meaning that a higher percentage of applicants ultimately matriculated.  And this despite the fact that in the interim, public law schools in several states, including, notably, California, Florida, and Michigan, have been legally barred from considering race in admissions.

So, in fact, there is no reason to think based on the statistics provided that law schools have become any less vigorous in their admission of African Americans and Mexican Americans.  ([Corrected:] The study claims that members of the two groups who apply to law school are increasingly well-qualified, but oddly enough, while the study notes an increase in GPAs and LSAT scores, it doesn’t compare these with the increases, if any, of other law school applicants.   Moreover, with regard to LSATs, African Americans’ applicants’ (median? average?) LSAT has increased from 142.6 to 143.7, but the significance of this increase is unclear; 143.7 is still well below the normal cutoff for the vast majority of law schools.

And that leads to my second comment.  U.S News is often blamed for discouraging law schools from admitting minority applicants with low GPAs or LSATs.  Indeed, I’ve heard that one reason various ABA poobahs pushed to require more “diversity” in admissions was the vague sense that some law schools were “cheating” by reducing their minority admissions to improve their U.S. News ranking.

U.S. News, however, only considers, and only has considered, medians, not averages.  While it’s possible to imagine scenarios in which the last few candidates a law school is considering include “diversity” candidates with below median scores and white or Asian candidates with above median scores, in practice in the vast majority of cases the choice will be between “diversity” candidates with below median scores in either LSAT or both GPA and LSATs, and non-minority candidates who are in a similar position.

So, for example, if a law school had one slot left, and the LSAT median of the students who had thus far committed to attending was 160 and the GPA median was 3.3, it wouldn’t make any difference for U.S. News purposes whether the school admited (a) a diversity candidate with a 148 and a 3.32, or a non-diversity candidate with a 157 and a 3.4, or (b) a diversity candidate with a 154 and a 2.7, or a non-diversity candidate with a 155 and a 3.0.  It’s therefore unlikely that U.S. News plays much of a role in discouraging law schools from digging deeper into the applicant pool to admit diversity candidates.

UPDATE: Ilya, above, points to a previous post of mine that I had forgotten about, regarding a similar study from the same crew.  I wrote then, “There are some real oddities with this study. First, the LSAC apparently changed its data collection methods in 2000, and an LSAC page (go to the “Data” link) warns that data starting that year is not comparable to earlier data, which would seem to make the entire exercise of comparing data from 1992 to data in 2005 moot.”  So this “study” is even more dubious than I first thought.

Attorney Mark Greenbaum has a widely quoted column in the LA Times arguing that there is a glut of lawyers in the marketplace, and that the American Bar Association should combat this trend by reducing the number of accredited law schools:

Remember the old joke about 20,000 lawyers at the bottom of the sea being “a good start”? Well, in an interesting twist, thousands of lawyers now find themselves drowning in the unemployment line as the legal sector is being badly saturated with attorneys.

Part of the problem can be traced to the American Bar Assn., which continues to allow unneeded new schools to open and refuses to properly regulate the schools, many of which release numbers that paint an overly rosy picture of employment prospects for their recent graduates. There is a finite number of jobs for lawyers, and this continual flood of graduates only suppresses wages. Because the ABA has repeatedly signaled its unwillingness to adapt to this changing reality, the federal government should consider taking steps to stop the rapid flow of attorneys into a marketplace that cannot sustain them.

From 2004 through 2008, the field grew less than 1% per year on average, going from 735,000 people making a living as attorneys to just 760,000, with the Bureau of Labor Statistics postulating that the field will grow at the same rate through 2016. Taking into account retirements, deaths and that the bureau’s data is pre-recession, the number of new positions is likely to be fewer than 30,000 per year. That is far fewer than what’s needed to accommodate the 45,000 juris doctors graduating from U.S. law schools each year....

The U.S. Department of Education should strip the ABA of its accreditor status and give the authority to an organization that is free of conflicts of interest, such as the Assn. of American Law Schools or a new group. Although the AALS is made up of law schools, it is an independent, nonprofit, academic — not professional — group, which could be expected to maintain the viability and status of the profession, properly regulate law schools, curtail the opening of new programs and perhaps even shut down unneeded schools. 

I. The Data on Lawyers’ Wages.

Pity the poor lawyers whose wages are being “suppressed.” Based on Greenbaum’s account, one might think that many lawyers are scraping to get by at best. According to the Labor Department, however, the median annual salary of lawyers was over $110,000 in 2008, and even lawyers at the 25th percentile of pay in the profession made some $74,000 per year. Despite the recession (which began just before 2008), this is up slightly up in inflation-adjusted terms compared to the median in 2000 ($88,000, which translates to about $109,000 in 2008 dollars). Note that these are median salaries, not means, so the figures aren’t being inflated by the very high pay of a few elite lawyers at the top of the distribution. 

Even if lawyers’ pay were to go down significantly, they would still be near the top of the income distribution, and would still be making more money than liberal arts graduates without science, engineering, or math skills could earn in most other fields. Obviously, the present recession has lowered wages and increased unemployment among lawyers. But the same can be said for virtually every other profession. The bottom line is that most lawyers are extremely well off, and don’t need any special government assistance to prop up their incomes.

II. The Demand and Supply of Lawyers is Not Fixed.

Greenbaum’s argument also relies on several economic fallacies. First, he assumes that the number of jobs for lawyers is fixed and insensitive to price. In reality, of course, an increasing number of lawyers will, other things equal, lead to a decline in pay, which in turn would lead to increased hiring. Of course, other things may not be equal. After all, the demand for lawyers is driven by the scope and complexity of law. Given the growth of government, the expansion of regulation of many types, and the increasing complexity of most areas of law, it is likely that the clients will have more need of legal services over time. Thus, it’s possible that the number of lawyers could increase significantly even as lawyer pay continues to rise.

Greenbaum’s second error is his implicit assumption that potential law school applicants are indifferent to expected costs and benefits. If the return to legal education drops, it is likely that fewer people will apply to law school, and some current lawyers will leave the profession. As with most other fields, market prices give people roughly accurate information on the demand and supply of labor. There is no need for the ABA or the federal government to try to regulate the supply of lawyers. Market competition will do that (and would do an even better job if not for the legal restrictions on entry into the profession discussed below). Indeed, ABA or federal government planners will probably do a far worse job than the market in trying to determine how many lawyers we need. Central planning of the legal profession is likely to encounter the same information problems that bedevil other types of central planning.

III. The ABA Seeks to Reduce the Number of Lawyers, not Increase it.

Finally, Greenbaum contends that the ABA has a “conflict of interest” that leads it to accredit too many law schools. The truth is the exact opposite. The ABA is an interest group representing lawyers. Like members of other professions, lawyers have an incentive to limit entry into their field in order restrict competition and increase their own pay. To say that the ABA has an interest in increasing the number of lawyers is much like saying that UAW workers at GM and Ford have an interest in increasing the number of imported Japanese cars. And indeed, the ABA imposes dubious accreditation requirements that make it very hard to start new law schools. At the state level, bar associations restrict entry into the profession by forcing would-be lawyers to pass bar exams that test enormous amounts of information that most lawyers don’t actually need to know to do their jobs. It’s also worth mentioning that the ABA and state bar associations artificially reduce the number of lawyers by requiring lawyers to spend 3 years at an ABA-accredited law school in the first place. Many lawyers could probably perform reasonably well even after just one or two years of legal education, or after an apprenticeship with a firm. The latter was the standard path into the legal profession in the 19th and early 20th century. Abraham Lincoln was one of many who entered the profession by that route, even though he had almost no formal education of any kind. 

For very similar reasons, Greenbaum is wrong to assume that the AALS is free of conflicts of interest. After all, the AALS is an organization composed of existing law schools, most of which don’t want to see new competitors enter the industry.

Far from accrediting too many law schools, the ABA and state bar associations are running a cartel system that has the effect of driving up the cost of legal services. The poor especially often find it difficult to pay for basic legal services.

It’s understandable that lawyers would like to reduce competition in their field so that their pay might go up. People in most other professions probably feel the same way. The rest of us, however, should take a skeptical view of such special pleading (actually, the rest of you, since I’m a lawyer myself).

CONFLICT OF INTEREST WATCH: I’m sure someone will argue that I’m just saying this because, as a law professor, it’s in my interest for people to believe that going to law school is a good deal. Maybe so. But note that I advocate several reforms that are definitely not in the interest of law professors, such as allowing people to join the profession through apprenticeships, eliminating the legal requirement of spending 3 years in law school, and so on. More broadly, I favor greatly reducing scope and complexity of American law, which cuts against the longterm interests of both lawyers and law professors. As I argued back in October, the best way to safely reduce the number of lawyers is to reduce the number of laws.

The Wall Street Journal has an entertaining article on the front page (Justin Lahart, Jan. 2, 2010), recounting tales of economists as hard bargainers and, well, cheapskates.  The article opens noting that the annual professional meetings occur the week after New Year, when hotel costs are generally low, and this year are taking place in Atlanta:

Academic economists gather in Atlanta this weekend for their annual meetings, always held the first weekend after New Year’s Day. That’s not only because it coincides with holidays at most universities. A post-holiday lull in business travel also puts hotel rates near the lowest point of the year.

Economists are often cheapskates.

The economists make cities bid against each other to hold their convention, and don’t care so much about beaches, golf courses or other frills. It’s like buying a car, explains the American Economic Association’s secretary-treasurer, John Siegfried, an economist at Vanderbilt University.

The rest of the article has entertaining stories of people like Keynes and Milton Friedman.  But let me stick with professional conferences.  We law professors are also holding professional conventions this week, as are many other academic groups, such as the MLA.  Price is part of the timing; so is, as the article notes, the general agreement to schedule academic calendars across the country’s institutions in order to hold the professional meetings before classes resume.

Update: I didn’t realize that this economics conference is also a job market and not just professional confab — definitely changes the picture.  Here is an interesting comment, pulled up from below:

As someone pretty close to the economics AEA meetings, I think the article misses the point about these meetings: they aren’t in fancy places because a huge swath of attendees are graduate students doing job market interviews. These students basically have 0 willingness to pay for beaches or casinos at this point. Economics conferences are often held in really expensive and fancy places, but the winter meetings are different. Maybe I’m overestimating the importance of this factor, but it seems at least worth mentioning.

But we law professors hold our meetings in places like San Diego and, this year, New Orleans.  What does this say about us, compared to the economists?  More interested in rent-seeking than being good agents on behalf of our institutional principals?  More efficient rent-seeking public-choicers than the economists (I mean ‘rent-seeking’ here in the sense of, we won’t come if you hold it in Minneapolis in January, so ...)?  We care more about golf and beaches?  We’re better at golfing and surfing and, in New Orleans, eating?  Our meetings are more boring to attend, so we need better venues to attract conference-goers?  Our attendees are so dedicated to their conference sessions, it doesn’t matter whether they’re held in San Diego or Moose Jaw (in winter and summer, below fold)?

Continue reading ‘Economists as Cheapskates? Law Professors as Conference Seekers of Golf and Surfing?’ »

I am delighted to say that President Obama has supplied me with what to say to students coming to complain about receiving a B+ in my classes — a semi-regular occurrence, in these days of grade inflation.  (I have a sneaky feeling that my student evaluations are going to take a nosedive this term, having advised the students that I had allowed the curve to creep up too high in the last couple of years, and that I intended to “take the liquidity out of the Anderson grading supply.”  I explained this in great detail in the first week of class, when there was still time to drop, and even earlier in a pre-enrollment memo, but clearly not everyone believed it.)  However, if Professor Obama awards himself a B+ for his first year, how can my students not be pleased with one from Professor Anderson for their accomplishments this term?

My law school’s Librarian and Associate Dean, Billie Jo Kaufman, sent around this latest newsletter from the Law School Admissions Council re a new study on how law schools move resources around in order to maximize USNWR rankings (thanks Billie Jo!).  Here is part of the LSAC executive summary:

Fear of Failing:  the Effects of U.S. News & World Report Rankings on U.S. Law Schools, by Michael Sauder, and Wendy Espeland.  Love ‘em or hate ‘em, the rankings are a fact of life for law schools.  This report looks at the effect of the USN rankings on legal education, and it’s not peripheral.

From the Executive Summary:

One general effect of the USN rankings on law schools is that it has created pressure on law school administrators to redistribute resources in ways that maximize their scores on the criteria used by USN to create the rankings, even if they are skeptical that this is a productive use of these resources. This redistribution is illustrated by two examples mentioned consistently by the administrators interviewed: (a) increases in marketing expenditures aimed toward raising reputation scores in the USN survey and (b) increases in merit scholarships intended to improve the statistical profile of incoming classes. A more subtle form of resource redistribution is also described in this section: the adoption of strategies by some schools to “game” the rankings.

Some forms of this redistribution comes in the forms of brochures and other publications designed to enhance a school’s reputation, which is a full 40% of the ranking.  Many administrators acknowledge that many these enhancing publications are probably not read before being recycled (go green!), but peer pressure makes them spend upwards of $100,000 to produce and distribute these publications anyway.  Library volume count, by the way, represents 0.75% of the weight of an over all score.  That explains much more as to why academic law libraries are hardly ever enhanced with an eye to the rankings.

Schools game the system by giving out financial aid to students with high LSAT scores as a way of bringing in a higher quality metric to the entering class and student body as a whole.  Some schools create part-time or probationary programs to keep the academically weaker students off the books.  Student quality (LSAT, GPA) is 12.5% of the full ranking.  Things such as need-based scholarships, enhancements to programs, improved quality to areas of the school not affecting the rankings all tend to take a back seat at the most rankings-obsessed schools.  The pressure on admissions and career services offices is tremendous.  Schools put up with it because potential students do take rankings seriously.  Rankings even affects faculty recruitment and the ability of faculty to publish in quality journals.  While none of this is a surprise, the report is a nice compilation of how schools have adapted their budgets and practices to account for their survey information.  There is also a nice table that breaks down the ranking standards and weights.

The report is available on the LSAC site.  Because of the way the site is constructed, there is no direct URL.  However, anyone interested in finding it should start at the main LSAC page, click on Research Data from the menu bar running across the top of the screen, roll over the graphic for Research and select Grant Reports.  The report should be available from the page that comes up.  It’s numbered GR-07–02.  [MG]

One question I have long had about LSAT scores is whether they tend to favor the youngest applicants.  My brother the neuro-psychiatrist points out to me that IQ scores on average tend to go down starting quite early in adulthood, and suggests that particularly the logical games section of the LSAT functions like an IQ test.  If that were true, and younger takers of the LSAT had higher scores, other things equal, and if USNWR put enough pressure at the margin for higher LSAT scores (even for small increments, and I suspect the rankings do indeed create such marginal pressures), then the result might favor younger law classes. 

And yet, if age is the thing that matters, the students being taken younger today will turn into those same “less smart” people tomorrow, so apart from the LSAT scores themselves, what is the advantage in this?  Do we as law schools think that in those younger years, those higher scores mean we can teach more advanced stuff in school?  Do we think that this compensates for having students who already know something of the world that lawyers regulate and intermediate?  I, for one, think that professional school is more professional, not less, if students are not coming direct from undergraduate studies — and I do not favor in the least a “trade school” model of legal education.  Rather, a thoroughly intellectual law study that takes advantage of the fact that students are not entirely operating in their imaginations about the world of work.

Why do I think think this matters?  Because, if true, it tends to squeeze out students who have spent significant years doing work in the real world — as (again, if true) merely an artifact of age.  I think offhand of one person — Harvard undergraduate, did very well there in economics, near perfect SATs — who has spent the last eight years first learning Arabic, and then reporting for various wire services from the Middle East.  Well, he can see the writing on the wall in journalism, and wants to go to law school.  From the standpoint of the tests, however, he was smarter and a better bet as a law student when he first got out of Harvard undergrad.  He’s in Cairo but does not think, probably correctly, that coming back to do Kaplan would make that much difference and, frankly, it’s an idiotic idea.  (My sense of this is anecdotal, of course, but I can think of various people like him — I don’t mean folks who might be considered “interesting” even if not “smart” in the usual terms — I mean people who have all their lives been “smart” in the sense of top schools, top test scores, but find that after significant time doing something real, test performance is not what it used to be.) 

In the past, someone like him would be considered an interesting possibility for Harvard or Yale law, and the LSAT score would be a consideration, but taking him would not damage the school’s USNWR scores.  Now, the USNWR rankings mean that if the school decides that someone like him means smart + worldly experience + willingness to do something (in those years) other than practice for the LSAT while being an analyst on Wall St, well, it will cost the school.  Its LSAT composite goes down.  If I’m right about the underlying assumption of age and LSAT score, on the margin, taking these older, experienced people, even the ones who, earlier in life, have hit the standard “smart” benchmarks, is a real hit to the school’s rankings.

Anecdotally, I think this is happening.  No data to really know, but I suspect it has affected the composition of law classes, in terms of age and experience outside of school.  Anyone know of data that would tend to confirm or disconfirm this?

Louis Menand’s new article The Ph.D. Problem: On the professionalization of faculty life, doctoral training, and the academy’s self-renewal. Cliff Notes version: the academy (the tenured folks who run things) have every incentive to take in huge numbers of Ph.D. candidates, and turn them into ABD drones to teach undergraduates–even though about half of them will never finish the Ph.D. program, and half of those that do finish will never get a tenure-track job. The result is the over-production of Ph.D.‘s who are highly specialized but who are not very good at doing the things that universities should foster (e.g., teaching to non-specialists, intellectually engaging with the world outside the academy). The hyper-specialization puts non-tenured people (including Ph.D. candidates, and young teachers) at the mercy of the rigid political correctness of the tenured folks. Ten years of time invested in getting a Ph.D. in Comparative Literature leaves you with almost no job choices in your field, if you get blackballed for non-p.c. attitudes. 

“[T]he most important function of the system, both for purposes of its continued survival and for purposes of controlling the market for its products, is the production of the producers. The academic disciplines effectively monopolize (or attempt to monopolize) the production of knowledge in their fields, and they monopolize the production of knowledge producers as well.” Menard applies the above statement to law as well as to humanities Ph.D. programs, but as he explicates, the problem is a lot worse in the Ph.D. context, because the credential takes so much longer to obtain.

In a recent post, Orin expresses doubts about whether the “traditional” form of the Socratic method is still used in many law schools. If by “traditional form” he means something like what is portrayed in The Paper Chase, I agree that not many use it. Very few lawprofs are as obnoxious as the mythical Professor Kingsfield. But, in my experience of teaching at three different US law schools over the last six years, a large number of professors do still use the Socratic Method in the sense of spending the bulk of their class time cold-calling on students and asking them questions about legal doctrine. A recent report on The Faculty Lounge blog states that most entry-level candidates on the lawprof job market say that they intend to use “soft Socratic” method as their primary teaching tool, by which they mean that they “like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared.” To the extent that it still involves large amounts of cold-calling (as in most cases it does), “soft” Socratic method has many of the same shortcomings as the “hard” version. I discuss some of those problems here and here.

I don’t claim that all law professors should completely abjure all aspects of SM; I use some elements of it myself. For example, I have students sign up to be “on call” a couple times during the semester, when I assign myself the right to call on them involuntarily. But I only devote a minority of the class time to this activity, and don’t use SM at all in classes with fewer than 30 or 35 people. The optimal level of SM probably varies from class to class and teacher to teacher. However, I do think that the method is still overused by many professors and that, overall, we would do well move to closer to the teaching methods used by social science and humanities professors in the US and law professors abroad. 

One of the standard defenses of the Socratic method, which I criticized in my last post and here, is adherence to tradition. If American lawprofs have been using the method for decades, there must be something to it. Who are we to question the approach that worked so well for Professor Kingsfield?

I am generally skeptical of the “Burkean conservative” case for traditionalism. But I do recognize that voluntarily adopted (as opposed to coercively imposed) traditions have some value and may be entitled to a measure of deference. Perhaps the Socratic method is an example of this kind of tradition. No one forced lawprofs to use it, and law students could potentially have chosen to attend schools that don’t use it — a preference they might have imposed on lawprofs through market pressure. On other hand, the AALS [update: should have said ABA] certification cartel diminishes competition in the market for legal education and makes it much harder for new schools to enter the field and gain a competitive edge by emphasizing novel teaching methods.

In any event, the tradition-based argument for the Socratic method fails even on its own terms. It ignores the fact that virtually every academic discipline other than law has a long tradition of not using the Socratic method. That includes professors who teach courses on legal issues in political science, economics, history, and philosophy departments. Similarly, the Socratic method isn’t generally used by law professors in other countries, including other Anglophone common law jurisdictions such as Britain, Canada, and Australia. There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties. Relative to the traditions of most of the academic world, the widespread use of the Socratic method in American legal academia is an outlier. That doesn’t by itself prove that the Socratic method is wrong. But it does suggest that it can’t be justified merely on the basis of tradition.

By nature, I am a highly verbal, nonvisual person. I learn best by reading books or listening to lectures. I rarely benefit from looking at tables, charts, pictures, and the like. I’m the kind of guy who can’t drive to an unfamiliar destination without a detailed mapquest itinerary telling me exactly which turns to take; otherwise, I’m sure to get lost. This learning style is hardly unusual for a law professor, or indeed for most humanities and social science academics (with the exception of those who regularly use quantitative methods in their work). Unfortunately, when teaching, we lawprofs often assume that all the students have the same learning style as we do. Most of the time, we operate either in pure lecture mode or use the Socratic method. Yet at least some of the students are not like us. They may be visual learners, or otherwise diverge from the pure oral learning style. For visual learners, it helps to have handouts, tables, graphs and other tools that go beyond oral lecturing. Yet, in my experience, many law professors either don’t use these at all, or only do so very rarely. 

The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else. Not only is SM a purely oral method of teaching, it is a particularly difficult one for non-oral learners to follow. Even for the orally gifted, it is often hard to pick out the really important information from the morass of indeterminate questions posed by the instructor and often flawed answers given by the student in the hot seat. 

Fortunately, there are many possible solutions to this problem, not all of which involve giving up the Socratic method entirely. For example, professors can use SM during only part of the class, and use handouts, tables, power point or other visual displays during other parts. I find that the simple practice of summarizing the key points about a case or article at the end of the class discussion of it also helps students who might otherwise be lost catch up. I also use handouts with tables and draw on the board more than most law professors do, though probably not as much as I should. There are many different ways to skin this particular cat, and mine aren’t the best for every professor. But the beginning of wisdom is to at least recognize that there is a problem. Fortunately, many lawprofs have begun to move away from SM in recent years, and some have also begun to make greater use of visual materials.

Of course all of this proceeds on the perhaps naive assumption that the goal of class is to convey the subject matter to the students, and get them to understand it as well as possible. I know that SM and other purely oral teaching methods are sometimes defended on the very different ground that they teach students to “think like a lawyer.” I addressed these arguments here and here. In brief, I don’t believe that legal reasoning is fundamentally different from other types of logical reasoning; I don’t think that SM is a particularly good way to teach legal reasoning, relative to other methods. Finally, I believe that the primary objective of law school subject matter classes should be to teach the specific subject at hand rather than general legal skills such as trial advocacy, which are better conveyed in specialized courses taught by experts or in extracurricular activities such as clinics.

At bottom, I don’t want to teach my students to “think like a lawyer.” I’m not even convinced that any such thing exists. Instead, I want them to be able to think in an informed, rigorous way about the subject I’m teaching. That is the best contribution a subject matter expert like me can make to their legal education. Achieving that goal requires paying attention to different learning styles in order to ensure that as many people as possible come away from my classes with a genuine understanding of the material we covered. 

I’ve been asked to step in and teach a 1L elective course on law and economics this spring, covering for a colleague who has taken a high level economics post in the administration.  I have to pick a textbook very soon.  The course is for second semester 1Ls, and my goal is to attract 1Ls who did not major in business or economics as undergrads, and make it comprehensible to them.

That means that I don’t want it to be super-math heavy.  It also needs to focus around the 1L courses that they’ve been taking — antitrust and IP and my own corporate finance won’t work, because they come in later years, and so it needs to focus around contracts, tort, property, criminal law.  In addition, it is only a two unit, once a week class, so it can’t cover vast swathes of material, and in fact very far from it.  I’ve never taught the basic, intro law and econ class before, and I’ve never taught 1Ls, so it should be an exciting pedagogical experience — for me, at least!  I’d be grateful for suggestions in two categories:

• Main text — please tell me why this would be a useful textbook, given my constraints above.
• Supplemental texts, such as short introductions on game theory, statistics, supplemental readings on law and econ, etc., but specifically with law students in mind.

Paul Caron, at TaxProf, has posted some executive summary parts and the link to a GAO report on drivers of law school cost as well as minority enrollment.  Regarding costs of legal education, the GAO summary says:

According to law school officials, the move to a more hands-on, resource-intensive approach to legal education and competition among schools for higher rankings appear to be the main factors driving the cost of law school, while ABA accreditation requirements appear to play a minor role. Additionally, officials at public law schools reported that recent decreases in state funding are a contributor to rising tuition at public schools.

Very interesting post over at TaxProfBlog — the screen shots include a number of powerpoint charts and graphs from the GAO report.  I agree with the GAO report and its surveyed law school officials that accreditation plays very little role in driving up law school costs, and that rankings are an important driver.  They are also an important driver in things schools spend money on that drive up costs, such as faculty student ratios, for example.

I also believe, however — but wouldn’t try to defend here — that law schools respond to the availability of federal dollars and capture that money from students, and that law school tuition rates reflect perceptions of the return on investment available to students in going to work for law firms.  At least in my discussions with fellow professors who have some idea about law school economics, the thought is that mid tier schools found that they could place more of their students into large law firms, not necessarily the very top firms, but large workhorse firms that paid well.

And in my discussions with professors, the concerns are two-fold.  First, that if the big law model is genuinely collapsing into the long term, then the returns on law school investment might well be declining to ... what, exactly?  Well, for those of us here in Washington DC, it might be to something closer to what government lawyers earn.  Not to be sneezed at, heaven knows, particularly if you factor in the security and benefits, but not necessarily the returns long term that can support the rate of tuition increases at even mid tier schools like my own.

Second, if the USG becomes the lender directly, the pressure on it to intervene in the tuition “market” (I use that term very loosely indeed) and impose some cost controls is strong.  That could well be characterized, and might actually be, a regulatory mechanism for ensuring that subsidies aimed at students don’t wind up in the hands of a law school oligopoly.  Or not.  At least, that’s the substance of conversations I have with friends at a variety of schools in roughly my school’s tier.

Given the fascination of law professors with all things having to do with the ranking and dissection of the law school world, is it possible that someone has already done a genuine empirical study of the cost structures of law schools and their implied or explicit business models?

As a side note, I certainly find that I think harder than I used to about whether I am providing value to students, and I think of it as dollar value and return on long term investment.  I treat myself a lot more as an educational fiduciary than I used to.  I’m not alone in that, I suspect — I had a fascinating dinner conversation with a friend who teaches comp lit at a top five university; he told me that he thinks all the time about what he is going to convey and what it should mean, particularly as it is not professional education — it is inherently long term and about learning to think, reason, interpret, and write effectively, and in the context of the humanities and values.  He has a son about to enter college and it is on his mind same as it is on mine.  Yet it’s easier, really, for me to answer that teaching in a professional school — I don’t mean that the humanities, literature, etc., are not important, far from it, but that it’s an easier pedagogical question in a law school or medical school than in a literature department.

That means, from my point of view, thinking about law student education and what I think they need that they are not professionally able to determine for themselves.  I’m not an agent for a principal, I’m a fiduciary for an only partly competent principal.  My best advice, I suppose, is that you need a mix of plumbing classes and grad school classes; classes that teach you about the nuts and bolts, but also classes that teach you to think creatively and amply, because the field is not static, at least not in American law.  It might mean law and economics, to learn to think in a forward manner about incentives, for some students; and to learn to write and interpret difficult texts for others; and still something else for others.

Students, on the other hand, tend to think they know more than they do about what they need from law school, and at the extreme end, tend to think of themselves as the purchasers of a very expensive commodity called legal education, and I am the guy on the other side of the Starbuck’s counter purveying it to them.  Wants and needs.  There was a song about that, right?

That was the subject of a recent symposium at Denver University’s law school. The DU Law Review’s online publication, DUProcess, published several short articles on the topic.  I wrote on Connecting Laypeople with the Law Through Blogs, and began: “Blogging is creating a Golden Age of legal scholarship.  For the first time in the memory of any living person, legal scholarship is now connecting with an audience beyond the world of law professors and legal professionals.” I argued that law blogging provides readers with much better coverage of important appellate cases than does the MSM, and as an example pointed to Dale Carpenter’s VC posts on gay marriage cases. I also suggested that comment threads on legal blogs provide people with an opportunity that, in the olden days, mostly belonged only to on-campus law students: having a serious, enjoyable pro/con discussion of legal issues. Checking on Westlaw, I found that of the 291 law review citations to the Volokh Conspiracy, five were to comments. Lastly, I suggest that law blogging continues a salutrary trend which began nearly four centuries ago:

Starting around 1250, courts in England began operating in French.  After hundreds of years, the legal language had turned into something called “law French,” which was a confusing amalgam of English and of a French that no French person would ever speak. The new American colonists jettisoned law French.  In America, the law was stated positively in statutes written in straightforward English comprehensible to ordinary people.

The writing of statutes in plain English was one of the methods by which the Americans ensured that the law was under the control of the people, rather than imposed from above.  One of the causes for the cynicism which many modern Americans feel about government in general, and law in particular, is the degree to which the laws Americans must obey have become as incomprehensible to a normal, literate American as law French was to a normal, literate Englishman.

Scholarly legal blogging is a wholesome, constructive development, in the tradition of the plain English statutory writing of our American ancestors four hundred years ago.  By making law, and legal scholarship, more accessible to the lay public, law bloggers are reconnecting American law with the American people.

In the same symposium, Sam Kamin writes briefly on how professors use law blogging to enhance their traditional writing. Alan Chen discusses the use of blogs in faculty hiring or promotion. Student Joe Aguilar explains Race to the Bottom, DU’s joint faculty-student blog on corporate governance.

If you’re interested in the role of blogs in legal education, you might also enjoy Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings by J. Robert Brown, Jr., and David I. C. Thomson’s book Law School 2.0: Legal Education for a Digital Age. Thomson argues that the new electronic media can–and should–lead to more profound changes in legal education than anything that has occurred in the last hundred years. If you want to check out some of the book’s ideas before buying, a 2008 paper by Thomson sets up the issue, and another paper details how legal writing can be taught well in an online-only class.

I’m considering submitting two new course proposals to our curriculum committee at our law school here in DC.  I’d be grateful for your pedagogical advice.

One would be a reading-research seminar in law and economics on the current state of debate over the Efficient Market Hypothesis.  I imagine we would read some standard economics articles and material running back over the last few decades, including classics like A Random Walk Down Wall Street, but also a couple of recent books on the debate, including Justin Fox’s The Myth of the Rational Market, and perhaps Dick Posner’s book, among other things.   One specifically law school connection would be to help students understand how the theory underpins much regulation, how courts view cases, many parts of the law itself.

The second class would be on financial derivatives, considered as contracts.  We already have a class on derivative regulation at my school — this would be a class specifically on the contracts themselves, and the economic context in which the derivatives are used.

Would those seem like useful seminar courses for business law students in their third year of law school?  Or yet another example of professor doing what interests him without much attention as to pedagogical utility?  We are a solid mid tier school, in DC; many, many of our students go into government regulatory agencies dealing with the economy.

That’s the topic of a lunchtime symposium at Denver University, Sturm College of Law, on Wednesday, Sept. 30. Details here. Presenters will be Professors Alan Chen,  Sam Kamin, and me. Kamin is the author of, inter alia, How the Blogs Saved Law School: Why a Diversity of Voices Will Undermine the U.S. News Rankings. The symposium is the first public event for the DU Law Review’s on-line supplement, DUProcess; each of the speakers will write a short item about blogs and academia for DUProcess.