For the recommendations, please ignore entirely the textbook’s treatment of the religion clauses. Denver University has a separate class on them, so my class will be entirely on Speech, Press, Petition, Assembly, and Association.

Personally, I prefer textbooks which put their subject in historical context and order, which is one of the reasons I use Randy Barnett’s textbook for Con Law I and Con Law II. Like Barnett, I also prefer textbooks which pay attention to “the Constitution outside the courts,” and not just to Supreme Court cases.

Finally, I like to show students how to use one part of the Constitution to help understand another part. So I would be particularly interested in textbooks that highlight the First Amendment’s interplay with the Copyright clause,  the Fourteenth Amendment, and so on. I will of course give careful study to Eugene Volokh, The First Amendment and Related Statutes, Problems, Cases and Policy Arguments (4th ed.).

Perhaps I am too cynical, but a common theme of these recommendations seems to be that students should be more directed towards the practice needs of the recommender’s speciality area. Transactional lawyers tend to suggest more transactional training, judges suggest more doctrine, etc. I suppose that’s understandable: Like the blind men with an elephant, we assume that the corner of the legal world we experience reflects the legal market as a whole. Still, that trend makes me a bit skeptical that curricular reform is the answer to current problems in legal education. This aside about employment prospects for graduates of existing programs with new “innovative” curricula seems worth noting:

As ardently as law firm leaders and other practitioners say they want law schools to step up and better train lawyers, the legal hiring market has yet to signal that it recognizes the value of innovative teaching and curricula, said William Henderson, a professor at Indiana University Maurer School of Law – Bloom­ington who studies the profession.

“There’s no employer out there right now — not law firms, not the Department of Justice, not the ACLU — that are seeking out these graduates. These programs haven’t affected hiring patterns,” Henderson said.

Maybe that’s because employers haven’t realized the value of curricular innovations. But it might also be because curricular innovations have less of an impact on the skills and knowledge base of law school graduates than their proponents realize.

To get back on track, law schools should shift their curricula back to core courses and away from the interdisciplinary classes that have grown in popularity, he said . . .

Cabranes lamented the move by law schools toward specialized, often interdisciplinary courses that can displace “black-letter” law courses — criminal and civil procedure, evidence and federal courts. He related a story about a friend’s child who enrolled in a law school clinic focusing on housing court — but who had never taken a property law course.

Core law courses should come before clinics and interdisciplinary work, even if the latter are more popular with students and faculty, he said.

I’d love to see an empirical study on how much, if at all, the differences in what courses students take impact their skill sets and influence careers as lawyers. These days, most courses after the first year are elective, and students can take a wide range of classes. Students can decide to take all basic doctrinal classes or all “law and” classes. They can take a lot of clinic credits (at most schools, at least) or none. Or they can take a mix of classes here and there, blending different kinds of classes. The diverse choices of different students would seem to allow examination of whether such choices make any difference — or at least if the students who opted for one set of courses ended up with different careers than ones who opted for a different set. I’d be very interested to know if there’s any difference; my first guess is that there is little or none.

Hat tip: Brian Leiter

[A new law school] needs the seal of approval of the American Bar Association, the government-anointed regulator of law schools.

That means complying with a long list of standards that shape the composition of the faculty, the library and dozens of other particulars. The basic blueprint was established by elite institutions more than a century ago, and according to critics, it all but prohibits the law-school equivalent of the Honda Civic — a low-cost model that delivers.

Instead, virtually every one of the country’s 200 A.B.A.-accredited schools, from the lowliest to the most prestigious, has to build a Cadillac, or at least come close. Duncan’s library costs $750,000 a year to maintain — a bargain when compared with competitors….

The lack of affordable law school options, scholars say, helps explain why so many Americans don’t hire lawyers.

“People like to say there are too many lawyers,” says Prof. Andrew Morriss of the University of Alabama School of Law. “There are too many lawyers who charge $300 an hour. There aren’t too many lawyers who will handle a divorce at a reasonable rate, or handle a bankruptcy at a reasonable rate. But there is no way to be that lawyer and service $150,000 worth of debt.”

This helps explain a paradox: the United States churns out roughly 45,000 lawyers a year, but survey after survey finds enormous unmet need for legal services, particularly in low- and middle-income communities…..

It’s not just that many lawyers are prohibitively expensive. It is that when it comes to legal expertise, there are not a lot of cheaper alternatives — not in the United States, anyway. Britain, on the other hand, has a long menu of options, including a tier of professionals called legal executives, who are licensed after getting the equivalent of a community college degree. Counsel is also

available from nonlawyers at a variety of nonprofits. And you can buy a simple divorce over the Internet for a set fee, or pay for customized legal advice, online or by phone.

“In the U.S., people and businesses have only one place to go for all their legal help — lawyers who graduated from an A.B.A.-approved law school and who follow mostly A.B.A. rules about how they run their practice,” says Gillian Hadfield, a professor at the Gould School of Law of the University of Southern California. “Everyone else who offers legal advice is engaged in the unauthorized practice of law….”

Consider business schools, [Emory law professor] George Shepherd says.

If your dream is to work at Goldman Sachs, “you can go to Harvard Business School and spend a couple hundred thousand dollars, in tuition and forgone earnings,” he says. “If you just want to move up the management ranks at Macy’s, you can take part-time evening classes and spend $10,000 for a degree. The part-time school may not be accredited, but this gets to the difference — state law says you can become an attorney only if you attend an accredited law school. There’s no law that says you need to attend an accredited business school in order to practice business.”

Professor Shepherd says aspiring lawyers should have the same choices as aspiring executives and managers….

A result is an expensive quandary for potential clients, says Professor Morriss of the University of Alabama. “Maybe you need a plumber,” he says. “But you have to hire a brain surgeon.”

These are not new arguments. Critics of the ABA accreditation system have making the same points for years. Milton Friedman did so as far back as the 1950s. I myself did called for the abolition of the ABA’s legal role in the process in this 2006 post:

To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry.

Although the New York Times article breaks little new ground, it has great value in bringing this issue to a wider audience.

I do have one possible quibble with the article. Segal implies (though he does not say so directly) that all or most existing law schools support the ABA accreditation system. This is far from universally true. In my experience, many administrators and faculty at relatively highly ranked schools (say the top sixty or seventy) either oppose the system outright, or at least would not object to liberalization of the rules. These schools don’t benefit much from excluding marginal new competitors, and the ABA accreditation process saddles them with unwanted expenses and administrative burdens. Harvard and Yale (or, for that matter, George Washington or George Mason) are not likely to lose students and faculty to startup law schools, even if the latter have lower tuition. By contrast, low-ranked schools (e.g. – the bottom 30-40%) tend to support ABA accreditation because they are the ones most likely to be threatened by new competition. Being a member of the ABA-sponsored cartel is often their most valuable economic asset, and they are loath to give it up.

I’m not suggesting that the higher-ranked schools are completely blameless. If more of their faculty and administrators were to speak out against the status quo, we might see greater pressure for change. Hopefully, Segal’s article will help generate a broader debate on the issue.

Richard Posner made this point nicely in his 2007 essay celebrating the life of his late colleague Bernard Meltzer. Posner begins by describing the professional identities of law professors before the 1960s:

Law professors used to identify primarily with the legal profession and secondarily with the university. . . . Law professors in that earlier era were hired after a few years of practice, on the basis of evidence (heavily weighted by performance as a law student) of possessing superlative skills of legal analysis. A law professor was expected to be a superb lawyer and to see his primary role as instructing generations of law students so that they would become good, and some of them superb, lawyers—instructing them by precept but also by example, by being a role model; and the role was that of a practicing lawyer.

That all changes starting in the 1960s, Posner argues: Now law professors identify academics first, and with the legal profession second or not at all. Posner argues that this switch has real costs to students, as law professors who identified with the legal profession served as role models for students who were trying to master the craft of lawyering:

Even at the most intellectually ambitious of the modern law schools, a large majority of students will become and remain practicing lawyers; and there is a good deal more to the practice of law than economics, or philosophy, or feminism, or theories of race. There is the knack of reading cases and statutes creatively, there is a largish body of basic legal concepts that every practicing lawyer should internalize, there is a bag of rhetorical tricks to be acquired along with a professional demeanor, a procedural system to be mastered, a subtle sense (“judgment”) of just how far one can go in stretching the limits of established legal doctrines to be absorbed.

Posner then argues that while you wouldn’t want every law professor to be completely oriented to the profession, law schools should strive for balance between the profession-oriented legal academics and the university-oriented legal academics.

[The practical lawyer's sense] cannot be the entirety of the modern lawyer’s professional equipment, and their inculcation cannot be the entirety of a first-rate modern legal education, because the law has become too deeply interfused with the methods and insights of other fields—and the law schools are still lagging badly in attempting to overcome the shameful aversion of most law students to statistics, math, science, and technology. Maybe at the law schools that have the brightest students only a third of the instruction should be in the traditional mold. But to reach that level the law schools will have to start hiring teachers who identify more strongly with the practicing profession than they do with academia.

I don’t know what the right balance is, but I do think that students are best served when their classes are taught by professors with a mix of approaches.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above.

This required introductory course examines the role of the United States Supreme Court and, in particular, the Court’s power in exercising judicial review in cases interpreting the U.S. Constitution. The course focuses primarily on two topics. First is the doctrine of Separation of Powers: examining the structure and interrelationship of the three branches of the federal government, Congress, the Executive Branch, and the federal judiciary. Second is the doctrine of Federalism: the relationship and power distribution between the federal government and state governments. In addition, all sections will devote part of the course to an introduction to at least one aspect of the large field of individual constitutional rights. The specific rights covered will vary by instructor. . . .  Students who wish to gain a deeper understanding of these topics are strongly encouraged to take Constitutional Law (Advanced): Individual Rights.

My particular class will pay special attention to some topics of great modern relevance: the interstate commerce power and the N&P clause, since the Supreme Court will be hearing the most important case in decades on those topics. We will also get into some depth on the President’s war powers under Article II, since those were the subject of much debate under Bush, and remain so under the current administration–including the war with Libya.

I’ll be using Randy Barnett’s textbook, which is mostly chronological. One of the main purposes of the class is for students to learn how to practice constitutional law using originalism AND using living constitutionalism. The latter necessitates a chronological approach, since to counsel clients on how the Constitution might change in the future (or might change now), one must understand how the application of the Constitution has varied during different periods in American history.

In the class, I will explain some key facts in American history, for the benefit of students who may not have much history background. Some students, though, might want to do some additional reading to deepen their knowledge. So what American history survey book would commenters recommend for such students? I’d strongly prefer that the book be available in paperback, and not tremendously long, since first-year students have plenty of reading to do already.

FOLLOW-UP: Things are worse than I had feared. Several commenters mentioned some great books (e.g., Gordon Wood), but I want a survey that goes from no later than 1776 through most of American history. No textbooks for AP or college US History, although I wish my students had the time and the money for the Schlesinger textbook. No books that focus on a particular issue, even if it’s a broad one (e.g., Eric Foner’s book). I’m certainly not going to inflict Howard Zinn on my students. I read the 1st edition of People’s History almost as soon as it came out, and enjoyed it. But that’s definitely not the starting point for someone to learn the actual history of the United States; it’s a book for someone who already knows a lot of American history, and can discern the difference between some neglected stories that Zinn tells, and the incredible amount of chaff. Bill Bennett did so much damage to the Constitution during the Bush administration that I recoil from using his book in a constitutional law class. So in the realm of affordable survey paperbacks, we’re down to Brogan’s Penguin History and Paul Johnson’s A History of the American People. Based on Amazon reviews, each book is way too didactic for my purposes. Not that the distinguished authors are not entitled to their points of view; I just want something without such a heavy hand. At this point, I’m leaning towards telling students to buy Samuel Eliot Morrison’s Oxford History, which ends in 1963, but is available used for almost nothing, plus shipping. Or his more recent Concise History of the American Republic, also available used for very good prices.

Those who argue for diversity in higher education implicitly envision a school that has a “critical mass” of whites, blacks, Jews, Hispanics, and other groups. Such a university may well be internally diverse (at least in an ethnic sense), but if every school pursues this ideal, than they will all look more or less alike on the ethnic dimension, or whatever other criterion is chosen as the focus of diversity promotion. There will be diversity within institutions, but very little diversity across institutions.

By contrast, if Brandeis continues to be a distinctively Jewish school, Brigham Young continues to be a distinctively Mormon school, and so on, these schools can make unique contributions to American higher education that might otherwise be lost. Although Brandeis and BYU may not be internally diverse, they definitely add to the overall diversity of the American higher education system in two important ways. First, they give students who want to attend a distinctively Jewish or Mormon school an option they would not have if all schools stick to the internal diversity model. Second, faculty at a distinctively Jewish or Mormon school might well pursue research on subjects that are ignored or at least deemphasized at other types of institutions. Brandeis’ traditional focus on hiring faculty who study the history of Judaism and the Jewish people is an example of the latter.

To be sure, a school built around a particular group identity will have weaknesses as well as strengths. But the weaknesses are offset by the fact that there will always be hundreds of other schools that do not try to foster a distinctive group identity. Students and faculty who don’t want to be associated with a distinctively Jewish school have plenty of options, even if they can’t attend Brandeis. The question is not whether there should be a large number of internally diverse schools, but whether all schools should be that way.

What I said about diversity across schools also applies to diversity between student groups within a given school. By having a distinctive Jewish student group, black student group, Christian group, and so on, diversity across groups is enhanced even if these groups are not internally diverse (indeed, sometimes precisely because they aren’t). Obviously, internally homogenous student groups have limitations. But those are to some extent offset by the fact that there are usually many other student groups available, including many that are not focused on a specific ethnic or religious identity.

For reasons I have indicated in the past (e.g. here, here and here), I have various reservations about the diversity-promoting affirmative action policies currently practiced by most universities. But that does not undermine the point that there are real benefits to having a wide range of student groups, including some which are internally homogeneous.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? I am not sure that either of us has hit upon exactly the right approach. But I do think that we should apply tighter standards to our participation in these kinds of briefs than seems to be the norm today. Otherwise, as Fallon suggests, we end up using the intellectual authority we have based on scholarship within our fields of expertise to influence courts on issues about which we actually know very little.

An alternative norm is that a law professor might sign an amicus brief on an issue outside his expertise in such a way as to indicate that he’s doing so in his capacity as an ordinary citizen rather than as an academic expert. This approach is, I think, entirely ethical. Experts are not the only ones entitled to express opinions on legal issues, including in amicus briefs. But it does, of course, tend to defeat the main reason why people solicit law professors’ signatures on amicus briefs in the first place. A brief joined by “Professor Joe Blow, constitutional law scholar,” looks a lot more impressive than one signed by “Joe Blow, acting in his capacity as an ordinary citizen.”

For decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.

Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance….

What if the barriers to entry were simply done away with?

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

At the same time, if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.

Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.

See also his recent coauthored book on this subject.

I have made similar arguments in previous posts, here, here, here, and here. In this post, I explained why it’s better to eliminate the bar exam requirement than try to reform it.

To be clear, neither Winston nor I are suggesting that either law schools or bar exams should made illegal. We merely advocate eliminating the laws forbidding people to practice law without having these two credentials. Consumers, however, might still prefer lawyers who have gone to law school and/or passed a bar exam to those who have not. Moreover, with their legal monopoly gone, law schools will have incentives to provide better legal education and bar associations will have stronger incentives to design tests that really do correlate well with future performance as a lawyer. Voluntary certification has many advantages over the present bar exam system, some of which I covered here:

Voluntary certification is another useful tool for consumers. If state-mandated bar exams were abolished, both bar associations and other private groups would still be free to certify lawyers using either tests or other standards they deem appropriate. If lawyers certified by the bar association are generally more competent than others, sophisticated clients will soon realize that, and the knowledge will quickly trickle down to less sophisticated ones. Over time, lawyers certified by the bar association will command higher salaries and enjoy more prestige than those who are not.

Superficially, voluntary certification seems little different from the old bar exam system. After all, lawyers would still have incentives to meet standards established by some professional organization. However, there are three big differences. First, abolishing state-mandated exams allows different certification systems to compete against each other. This stimulates improvement in standards over time and also increases consumer choice. Second, since no certifying body will have a monopoly, these groups will have strong incentives to improve the quality of their certification systems. If the bar association’s certification system turn out to be inferior to that of the Better Business Bureau, for example, fewer consumers will pay attention to it, and fewer lawyers will pay to take the bar association’s test. For this reason, a bar association that didn’t have a legal monopoly on certification is likely to produce a better test than one that does.

Finally, with multiple certification systems, we would no longer have to have a “one size fits all” system that sets standards for all lawyers and all clients. It could well be that Certification A better meets the needs of some clients, while others have reason to prefer B, and still others need no certification system at all.

Market competition and voluntary certification might not be able to eliminate all need for regulation of lawyer quality. For example, there is the issue of what to do in situations where clients have no real choice, as in the case of court-appointed lawyers for indigent criminal defendants. However, it does obviate the need for crude licensing regimes such as the bar exam that completely block access to the profession to anyone who doesn’t pass.

It’s open season on legal education — falling applications, lawsuits by former students and dooms day warnings about the legal job market. The rampant bad publicity has taken on a sensational flair. Popular blogs and even established news forums are peppered with anecdotes about law school graduates drowning in debt with no good options for the future.

But as is often the case with anecdotes, these compelling tales of woe represent exceptions…

Lawyers have not been immune to the effects of the recent recession. However, they have fared much better than most workers. According to U.S. Department of Labor data, the unemployment rate for lawyers was 1.5 percent in 2010 — more than six times lower than the overall rate of 9.6 percent. Since 2009, while the overall unemployment rate has remained above 9 percent, the rate for lawyers has exceeded 2 percent only once. It is true that unemployment among lawyers has increased significantly over the last few years (it was barely 1 percent in 2007), but the increase pales when compared to other occupations.

Salary data show that the vast majority of lawyers earn relatively high salaries. According to the U.S. Census Bureau, lawyers boast the fourth highest median salary behind medical doctors, dentists and CEOs (some of whom have law degrees). While the majority of occupations have median salaries between $20,000 and $49,999, the median for lawyers in 2010 was almost $113,000. Again, this was the median — the actual midpoint — which means the majority of lawyers made six-figures.

Predictably, starting salaries for new lawyers tend to fall below the median for the profession as a whole, but they still tend to be relatively high. According to NALP, the class of 2010 had a median starting salary of $63,000, a respectable living for a new entrant into any profession. On the downside, the 2010 median was $9,000 lower than the year before. But declining wages have buffeted the entire economy. Fortunately, as the economy sputters back to life, salaries are unlikely to continue falling at the same rate — if at all.

Note that most of the data Taylor relies on comes from the Labor Department and the Census Bureau rather than NALP, which has been criticized for relying on overly optimistic data provided by law schools.

I advanced similar challenges to the conventional wisdom on the legal job market here and here. In this post, I noted that the long-term prospects for the legal profession are likely to be good, because the demand for lawyers is largely driven by the amount and complexity of laws – and that complexity is rapidly increasing.

Some will probably accuse me of wanting to make law seem more attractive than it is because I am a law professor. I preemptively addressed that charge here:

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.

I have also long argued that too many choose law school as a sort of default option without giving sufficient thought to the question of whether they’re really likely to be happy as lawyers or entering one of the other professions for which a J.D. is valuable. Law is a lucrative profession and likely to remain so. But many lawyers work long hours at tasks that a lot of people would find boring and repetitive.

I’m far from happy about the continued financial health of the legal profession. Much of it stems from the growth of government and the increasing complexity of our legal system, both trends that I oppose. I also oppose the bar exam, ABA accreditation of law schools, and other government policies that artificially inflate lawyers’ salaries by protecting them from competition. These types of policies make it very hard for the poor and lower-middle class to afford basic legal services, which I think is a problem far more worthy of concern than the supposed financial woes of lawyers.

If the long-run demand for legal services really did decline drastically, I would see it as a positive sign. But that’s not what seems to be happening right now. Like most other professions, lawyers have suffered during the current recession, and entry-level job prospects have worsened. But, as Taylor explains, these economy-wide trends are actually much less severe among lawyers than in most other fields.

UPDATE: Some commenters and others claim that the Labor Department data on lawyer pay and unemployment rates are invalid because they don’t take account of people who have left the legal profession entirely. I responded to similar claims here:

[I]t seems unlikely that there is large Marxian “reserve army” of unemployed lawyers [or JDs who would like to return to the legal profession] out there. If there were, one would expect lawyer salaries to drop substantially as competition from the unemployed drives down the pay of those who have jobs, especially at the lower ends of the distribution (e.g. — the 10th and 25th percentiles noted in the post [both of which are relatively high figures]). Yet the Labor Department data shows lawyer salaries holding fairly steady. For example, today’s [2010] 10th percentile salary of $55,000 per year is actually slightly higher than the prerecession 2007 figure. That would be highly improbable if there were large-scale unemployment among lawyers [or if there was a large number of JDs outside the legal profession, but willing to reenter it].

In addition, it seems highly unlikely that nearly all JDs who can’t find jobs as lawyers, but want them leave the profession almost immediately, thereby keeping the unemployment figure at the low measured rate of 2%. One would expect them to hang around somewhat longer than that. The bottom line is that, although the official 2% figure may not be fully accurate, it is still likely that unemployment for lawyers is far lower than in the economy as a whole.

Today, it is more possible than ever for professors at lower-ranking schools to have a big influence. For example, 2009 data shows that even the then-untenured bloggers here at the VC had citation counts comparable to those of tenured law professors at top ten-ranked schools, (and none of us teach at schools ranked in the top 15). The same can be said for other VCers teaching outside the top fifteen, such as David Bernstein, David Post, and Todd Zywicki. And the VC itself is an example of how professors at lower-ranked schools can have an impact on public debate, as well as academic discourse.

Modern technology makes it easier for scholars at lesser-known schools to get their work noticed. Thanks to Westlaw, Lexis, and SSRN, well as good old e-mail, you can easily make your work available to interested colleagues even if you aren’t being invited to conferences and workshops at the top 15 schools. Four VCers who don’t teach at top 15 schools are among the top 150 lawprofs in the world in lifetime SSRN downloads, led by Orin Kerr (No. 13), and Todd Zywicki (No. 71). There are numerous non-VCers from non-top 15 schools who rank that high as well. And once you build up enough of a reputation by these other means, the conference and workshop invitations will start to come in too. The internet and the blogosphere also make it easier for non-top 15 professors to influence public debate, if they are so inclined.

There’s no denying that professors at the best-known schools have a real advantage. It’s certainly easier to attract attention to your work if you’re a professor at Yale than if you’re at Podunk U (or George Mason, for that matter). The big name school gives you instant credibility that a lower-ranked school doesn’t. But if you do enough good work and use modern technology to promote it, you can have an impact wherever you are.

UPDATE: Eric Muller writes that “Ilya Somin is of course right that those of us on law faculties below the “Top Fifteen” can do things that have a big impact. But he’s only half right, because he’s only talking about the impact we can have on each other (and on our citation practices).” That’s not entirely true. I also mentioned the impact lawprofs can have on public debate outside the academy. Eric goes on to note that professors at any level can also have an impact on their students and local communities. That’s clearly true. But I don’t think anyone doubts it, which is why I didn’t mention it. What is more debatable is whether professors at lower-ranked schools can influence academic and public debate in their fields.

Some of these professors give sound advice. But the very fact that these folks wound up at the very top schools means that their experiences were exceptional, and they may not have a great sense of the overall market. In addition, for obvious reasons professors at these schools are inclined to think that the market is much more of a meritocracy than it actually is (which isn’t to say that merit doesn’t play a huge role in hiring, just that many other factors also play a role; it’s not that the top schools don’t hire meritorious candidates, it’s that meritorious candidates don’t always get hired by the top schools, or, in some cases, get any jobs at all).

Here are a few examples of terrible advice that I’ve heard students get from their references at top ten law schools:

(1) Go on the job market directly out of your clerkship, with no practical legal experience (and no Ph.D.) because it will signal how serious you are about academia. (This may have worked in the old days, but ONLY if you had a Supreme Court clerkship, which the individual in question did not.)

(2) Don’t bother going into the legal academy unless you can get a job at a top fifteen law school, otherwise you are better off working at a law firm; no one pays attention to what people at lower-ranked law schools have to say, so you will just get frustrated if you wind up at one of them. (Actually, being a law professor at any law school with a good academic environment is one of the best jobs in the world; people do move up; and people do pay attention to good scholarship emanating from outside the top 15).

(3) Prominently display your (otherwise irrelevant) ideological credentials (in this case, officership in a Federalist Society student chapter) on your teaching applications. (Why? Why? Why?)

(4) Sending out a law review article? Start with the top 20 law reviews, and see what happens. (That works if you’re teaching at Harvard or Yale, not if you aren’t even a professor yet.)

(5) Attended a lower-ranked school first year of law school, and then transferred? If anyone asks about it, be dismissive of your original school, to show that you always knew you were better than that. (Any committee you interview with will have at least one member who has friends at that school and will be insulted for them, plus word will get back to your original school where you will have now lost your friends.)

I could go on. But the basic point is, you should double-check any advice you get from your elite-law-school references with professors teaching at less lofty schools, especially ones who have served on appointments committees. Even if you only have a passing acquaintance with such individuals, they are usually quite willing to spend a few minutes to help out future academics.

• At the “Top 13″ schools, 32.3% of faculty members have Ph.D.s. The most prevalent subject area for the Ph.D. was economics, with 9.2% of faculty members having an economics Ph.D. (see page 23)
• At the next tier of schools, those ranked 14 to 26, the proportion of Ph.Ds dropped: 20.4% have a Ph.D. of some kind, with 4.1% having a Ph.D. in economics (see page 23)
• Of the faculty at the Top 26 schools taken together, 979 have only a J.D. degree; 294 have a J.D. and a Ph.D; and 65 have only a Ph.D. and no J.D. (see page 21)

Thanks to Al Brophy at the Faculty Lounge for the link.

1. In my view, Paul Campos’s blog has been useful. If Campos had written his blog using his real name, few would have paid attention. By hiding his identity, and by claiming that he hid it to avoid repercussions, Campos created the impression that he was taking a very courageous and daring step. That impression is what made the blog newsworthy, and that newsworthiness led to press coverage. That press coverage generated eyeballs, and it led to people talking about the issues. Campos’s expressed fear of repercussions was basically false, but his plan to generate attention worked quite well. If you think that the law schools could benefit from more discussion these issues — as I do — then that’s a good thing on the whole.

2. The law school scam blogs often overlook the important difference between a law school’s administration and its teaching faculty, and their arguments sometimes miss the mark because of it. In my view, the blogs have some legitimate complaints about the lack of transparency at some law schools; of the way scholarships are structured; and the way tuition is set. Those are important issues. We should talk more about them. But for the most part, decisions about those issues are made by the law school administration instead of the teaching faculty.

Students may not be fully aware of the difference between the administration and teaching faculty, but it’s a pretty important one. If you’ll let me paint with a very broad brush, the Dean and Associate Deans run the law school and determine the school’s policies while the professors teach their classes, grade their exams, and write their articles. The kinds of law school policies attacked by the scam blogs are mostly in the realm of law school administration. The professors who make up the teaching faculty usually learn about these things when they read them in the New York Times or Above the Law just like everybody else. That doesn’t mean the professors should escape criticism. But there’s a big difference between the guilt of creating a bad policy and the guilt of not learning that the policy exists where you work.

3. Building on (2) above, I think the scam blogs should see professors as natural allies on these issues instead of natural enemies. Some of the blogs envision professors as enemies because the professors seem to have a sweet life and students aren’t finding jobs. They reason that professors are scamming students by getting their sweet life based on the students’ suffering. But many of the students are suffering right now mostly because of the weak economy for lawyers. The professors don’t control that economy today any more than they controlled it five years ago when the economy for lawyers was booming.

More broadly, I think there’s less of a gap between the interests of the professors and the students than the blogs imagine. A lot of the professors share the same concerns that the students do. They want law school to be the best value, and to give the best education, and to train students to get the best careers. They’re frustrated by the status quo, and they want to they are open to new ways of doing business. Setting up a bogus faculty-vs-students narrative draws eyeballs to a blog. But it also alienates the group that is most able and willing to enact reforms that could actually improve things.

On balance, I think David is right. As he points out, the speaking engagements that really help an academic career are those attended by other academics. And professors rarely attend events sponsored by student groups. They also give little or no weight to speeches before student groups in making hiring and promotion decisions.

Like David, I have spoken at many Fed Soc student chapter events. When I first started doing Fed Soc talks, I almost never saw a faculty member in the audience. Later, as my academic work became better known, I did start to see some (though not much more than David’s estimated median of about one per speech). Most of these academics, however, were people who already knew me or at least had an interest in my work. They would probably have continued to follow my scholarship even if they hadn’t come to the Fed Soc event.

Speaking to student audiences can help an academic career indirectly because it improves your public speaking skills. On balance, however, the academic who wants to maximize his career prospects would do better to spend the same time writing more articles and/or speaking at faculty events.

The real benefit of Fed Soc speaking engagements is the opportunity to influence public debate by presenting your ideas to a wider audience. That’s the main reason why I do it (also, it’s fun!). It’s also, of course, the reason why the Fed Soc sponsors these events in the first place. But I don’t expect it to do much for my career prospects as an academic.

To the extent that Fed Soc speaking invitations are an advantage for right of center scholars, they are offset by American Constitution Society speaking opportunities for liberals. Like Fed Soc, the ACS has chapters at nearly all major law schools, and they too regularly bring in outside speakers. I’ve spoken at several ACS events myself (I was invited to provide ideological balance on a panel with multiple participants). But just as Fed Soc chapters invite primarily libertarians and conservatives, ACS chapters understandably invite mostly liberals.

It’s also worth noting that many law schools have research centers that, while formally neutral, actually focus primarily on left of center ideas. Consider, for example, the many law schools with “social justice” research centers. Few if any top law schools have similar research centers organized around libertarian or conservative issues. Most research centers regularly sponsor academic conferences that invite outside speakers. And unlike speaking events organized by student groups, events organized by faculty-run research centers often do attract a large faculty audience and have a real impact on professors’ career prospects.

I don’t object to the presence of these research centers. Even when they are not ideologically neutral, they can still make useful contributions to scholarship. But the speaking opportunities they offer to faculty have much greater career-enhancing value than those provided by student groups such as Fed Soc or ACS.

Is change afoot?  Will law schools become more transparent, or alter their scholarship policies?  CWRU School of Law’s incoming dean, Lawrence Mitchell, announced last week that he  will suspend the law school’s policy requiring scholarship recipients to maintain GPAs above those required to remain in good academic standing for currently enrolled and incoming students.  He explained the change this way:

Our policy was grounded in the sensible notion that students who are granted merit-based financial aid should be expected to continue to perform at the same level that led us to grant that aid. However, with mandatory curves, a significant number of students who do perform acceptably well find that they drop below the line for a variety of reasons unrelated to effort. Especially in times of economic uncertainty and hardship in the legal market, I felt it was both inhumane and unproductive to continue a policy that, instead of improving student performance, placed additional pressure and created undue anxiety among students that could hinder their performance.

Let me throw my two cents in. I think part of the problem is that incoming law students are unaware of how law schools use merit scholarships. At one time, a law school that threw a merit scholarship at you would likely have done so because it was dying to get a student well above the school’s median entering student. If so, the recipient of the scholarship could have a reasonable expectation that he would do well enough first year to retain the scholarship.

U.S. News has changed the calculus. Let’s say a law school has a 155 median LSAT, and for U.S. News purposes wants to raise that median to 157. Will the law school chase after students with scores in the mid-160s? Probably not. A 157 or 158 is worth just as much to the school as a 165. Thus, a dean trying to use his scholarship resources efficiently will offer money to the 157s and 158s (who can be lured easier and for less money), and may not even admit the 165s (so as to improve the school’s acceptance ratio, another U.S. News criterion).

These 157s and 158s will be at or only slightly above the law school’s new median, and taking into account GPA, work experience, difficulty of college major, and so on, in some cases may be expected to perform below the class average.

So I suspect that some incoming law students see a merit scholarship as a vote of confidence that they are significantly academically superior to their classmates, when in fact the are likely very close to the median. And it is that disconnect that likely accounts for much of the regret that kicks in when a “merit scholar” student realizes that he is studying just as hard as his classmates, but is struggling to maintain the above-average GPA he needs to retain his scholarship.

Larsen ranks schools on the basis of the percentage of students and faculty who are African-American, Hispanic, or Asian, with a bonus if that percentage is significantly higher than the percentage of these groups in the state population. Under this system, most of the schools that get the highest possible rating (“A+”) turn out to be historically black schools where the student body is overwhelmingly black. Ironically, many of these schools are actually not especially diverse if that concept is understood as having a wide range of different groups represented by a “critical mass” in the student body, the theory adopted by the Supreme court in Grutter v. Bollinger as a justification for affirmative action. For example, one of the schools with an A+ rating is Howard University, where the student body is 78% African-American. Why should Howard be considered any more diverse than a school that is 78% white?

If, as Larsen says, the purpose of pursuing diversity is to ensure that a broad range of “viewpoints” is represented in the classroom, thereby giving students “a better education and classes more reflective of the world,” her ranking system makes no sense. From that standpoint, a school that is 78% black or 78% Hispanic is no better than one that is 78% white.

Howard and other historically black schools should not be blamed for their lack of diversity. Indeed, as I have argued elsewhere, relative homogeneity within some schools promotes the laudable goal of diversity across institutions. But we should not pretend that such schools have unusually high internal diversity.

Moreover, it makes no sense to focus only on the representation of three groups defined by crude racial categories. Rather, a true diversity ranking would have to take account a wide range of ethnic, religious, political and other groups. Swedes, Utah Mormons, and Bulgarians all have different and unique cultures that could contribute to viewpoint diversity. But under Larsen’s approach, their presence actually lowers a school’s diversity ranking because it increases the percentage of the student body that counts as “white” rather than “minority.”

Larsen’s system makes somewhat better sense if the real goal is not diversity but compensatory justice for groups that have suffered historic discrimination in the US. Blacks, Asian-Americans, and to a much lesser extent Hispanics qualify on that basis. This compensatory justice rationale for affirmative action is, in my view, much more defensible than “diversity,” though certainly not a completely unproblematic one. But the two rationales are different from each other and call for widely divergent policies. If Larsen and the National Jurist are actually promoting compensatory justice for victimized minority groups rather than diversity, they should say so explicitly and drop the diversity rhetoric, which is an extremely poor fit with their ranking system.

For some of my past criticisms of the US News rankings see here and here.

Now that that’s cleared up, you can sleep soundly.

A substantial part (25%) of a school’s ranking depends on ratings by randomly selected professors at other schools. Another 15% is based on a survey of randomly selected lawyers and judges.

Here’s the problem: there are some 190 ABA-accredited law schools in the US. The average professor doesn’t know much about what is going on at the vast majority of them. If I spent my time keeping up with the faculty publications, curricula, student quality, and so forth, at the other 190 law schools, I wouldn’t have any time left over to do my own research and teaching….. I suspect that the same is true of the lawyers and judges. They too have their own work to do, and therefore can’t spend their time keeping track of the doings at dozens of law schools.

David is also right to suggest that a school’s average LSAT score is the best shorthand measure of its quality. It’s the students who have the biggest impact on the schools’ reputation with employers. If you want a useful measure of faculty quality, check out Brian Leiter’s ranking. Leiter rates scholarship, which is not the same thing as teaching. Some excellent scholars are terrible teachers. On average, however, good scholars are likely to be better teachers than mediocre ones, in part because they know their subject better. Moreover, a professor’s scholarship is generally the most important indicator of his influence in his field, which in turn impacts his ability to help students get ahead in that specialty.

Like David, I sometimes get questions from people who want to go to law school in order to work in some particular field. As a constitutional law professor, I often get queries from people who want to practice “constitutional law.” When I get such a question, I always start out by asking what the student means. “Constitutional law” covers so many different issues that it’s impossible for anyone to be an expert on all of them. Most lawyers specialize.

The good news is that there are many law jobs where constitutional law comes into play on a regular basis. If you are a criminal lawyer, you will probably often run into Fourth Amendment issues. If you represent a newspaper or TV station, you will often get First Amendment issues. So if your goal is simply to work in a practice area where you regularly deal with constitutional law cases, there are many options to choose from. Just pick the area of constitutional law that interests you and find out which industries, criminal defense practices, or government agencies routinely litigate cases in that field.

If, however, you want to work on cutting edge constitutional law cases that set major new precedents, your options are much more limited. Some public interest firms such as the ACLU or the Institute for Justice do indeed litigate cases like that regularly. So do a few major specialized appellate firms, many of them in Washington, DC. But if you want to get a job with any of these organizations right after law school, you probably have to attend one of the most prestigious thirty or forty schools (here, the US New rankings are a relatively good proxy) and do very well there, usually in the top 10-15% of your class or better. It also helps to do a clerkship with a federal appellate court. If you don’t have those credentials, you can still work your way into a top public interest or appellate job by becoming a successful litigator elsewhere and then lateraling. But it won’t be easy, since lots of other capable people want to do the same thing.

Like cutting-edge constitutional law, international law (mentioned by David), is also a highly competitive field. As he notes, you are unlikely to get a job in it if you don’t speak a foreign language and aren’t a graduate of a top law school. But all is not lost. If you are monolingual, you can fix that problem by studying foreign languages! In most major cities, reasonably priced night school language courses are readily available. I’m learning Spanish that way right now. The foreign languages you learn will probably be valuable even if you don’t end up becoming an international law practitioner; I’m not one myself, but my knowledge of Russian and French has still helped me a lot in various ways. While in law school, you should also take courses on the law and politics of whatever part of the world you want to focus on in your future international law work.

Finally, international law, like constitutional law, is a large and diverse field. Before trying to get into it, you should have some idea as to what type of international law you want to do. For example, there are far more opportunities in international commercial law than in more widely publicized areas such as international human rights law.

First, U.S. News has several methodological problems. E.g.:

Consider how U.S. News ranked part-time programs [for the first time in 2009]–it sent out a survey asking professors and deans to list fifteen schools with outstanding part-time programs. I am rather confident that no more than a tiny percentage of those who responded to this question are familiar with the particularities of different schools’ part-time programs. Unlike some of our worthy competitors, for example, at George Mason (ranked 5th in the part-time rankings) ALL tenured and tenure-track professors teach in the evening, and evening students are eligible for all students activities including law review. I can’t imagine why a professor at, say, Valparaiso Law School, would be aware of such details, but U.S. News didn’t bother to even attempt to take such factors into account. [As suggested below, the best way to rank the relative desirability of part-time programs is by the LSAT scores of matriculating students.]

Advice for prospective law students:

There are three groups of law schools: the handful of truly “national” law schools, which place almost everywhere; the somewhat larger group of “strong academic” law schools, which place many graduates regionally but also have the reputation to get you a job elsewhere with a little legwork; and the regional law schools, which don’t have placement pull nationally but place their grads locally, often with great success. If you have been admitted only to regional law schools, rankings and the such should be almost entirely irrelevant to you; you should be attending law school in the city in which you would like to live and practice.

The only ranking you should consider with any seriousness:

If you must rely on ranking and desire a superior alternative to U.S. News, look at matriculating students’ LSAT scores. The wisdom of crowds suggests that tens of thousands of law students making hundreds of thousands decisions about accepting and rejecting offers of admission, taking into account everything that prospective law students take into account–location, academic reputation, faculty quality, clinics, placement, specialties, cost, and so forth–provide far more useful information than the hamhanded U.S. News rankings. And unlike GPA, LSAT scores are both a reasonable proxy for student quality (at least when considered across an entire school’s student body) and are not really manipulable by the law schools. [Addendum: You should also consider bar passage rates; no sense spending three years and 100K only to find yourself unemployable as an attorney. And if you are admitted to a law school with LSATs significantly below the schools' median, for whatever reason, you should ask very directly what percentage of students with LSATs within a couple of points of yours have successfully completed law school and passed the bar over the past decade. If the school won't tell you, go somewhere else. LSAT scores don't predict law school performance that well overall, but law school administrators know that that LSATs below a certain lever tend to be highly predictive of failure at their school--but admit students with such LSAT scores anyway.]

Of course, no student is the average student, and anyone about to devote three years and a lot of money to law school should consider how his individual interests and needs may vary from the median. But as a rough approximation as to the true desirability of a law school, I don’t think you can go very far wrong with LSAT scores.

UPDATE: Over the years, I’ve met quite a few prospective law students who express an interest in practicing “international law” [by which, to be clear, neither they nor I mean representing clients in U.S. courts in matters that happen to have an international component.] I always ask, “Do you speak any foreign languages?” “Have you ever lived abroad?” “Do you have the sort of LSAT score that will get you into one of the nation’s top law schools?” The answers are almost always “no,” “no,” and “no.” I then politely try to disabuse them of the notion that there is a significant chance that a monolingual graduate of a middling law school with no international experience will find a job in “international law,” public or private. It’s a simple matter of supply and demand. If you fall into this category, consider yourself warned.

There’s no direct way to measure the quality of an institution — how well a college manages to inform, inspire, and challenge its students. So the U.S. News algorithm relies instead relies instead on proxies for quality — and the proxies for educational quality turn out to be flimsy at best. …

[The U.S. News rankings don't] include price. Both its college rankings and its law-school rankings reward schools for devoting lots of financial resources to educating their students, but not for being affordable. Why? [Robert] Morse admitted that there was no formal reason for that position. It was just a feeling. … U.S. News thinks that schools that spend lots of money on their students are nicer than those that don’t, and that this niceness ought to be factored into the equation of desirability. …

[G]iven that the rising cost of college has become a significant social problem in the United States in recent years, you can make a strong case that a school ought to be rewarded for being affordable. So suppose we… re-rank law schools based on … a three-factor ranking, counting value for the dollar at 40%, LSAT scores at 40%, and faculty publishing at 20% . …

Like Gladwell, I have been very critical of the US News ranking system. In a 2006 post, I too made the point that the US News formula perversely rewards schools for inefficient spending (if School A and School B are exactly the same, except that A spends more money, US News rewards A for its inefficiency).

I therefore welcome Gladwell’s elimination of this error. I also welcome his focus on student and faculty quality. These are by far the most important elements of any law school. Obviously, I am also happy that George Mason ranks very high in Gladwell’s survey (19th), ahead of big-name schools such as Cornell, NYU, and Berkeley. That’s more than 20 slots better than our latest US News ranking. I don’t believe that we actually deserve to rank ahead of all the schools that Gladwell ranks lower than us. But I do think that we are underrated by US News. Our success in Gladwell’s ranking reflects our high student LSAT scores (a median of 164 in 2010), and the high productivity of our faculty, which is also evident in Brian Leiter’s ranking of faculty quality. GMU also does well on Gladwell’s tuition measure, though the University has forced us to raise tuition in recent years.

At the same time, I have some reservations about Gladwell’s heavy emphasis on tuition. I think it both overvalues tuition relative to other factors and may unintentionally confuse applicants by heavily emphasizing a factor they can easily judge for themselves, thereby making it more difficult for them to assess a school’s ranking on other dimensions. For example, the no. 2 ranked law school by Gladwell’s methodology is BYU. It beats schools like Harvard and Yale (ranked 3 and 4) because of its much lower tuition. Let’s assume that choosing BYU over Yale or Harvard saves the student a total of $50,000 over three years. If choosing Harvard instead would have given the student a $3000 inflation-adjusted boost in his or her average annual income, he or she will still suffer a net loss of $40,000 over a thirty year career in practice; that figure goes down slightly if we include interest payments, but not much, since there will also be foregone interest income on the lost extra earnings. And the $3000 estimate probably understates the true size of the Harvard premium. It also takes no account of the prestige of the student’s job, how interesting the work is, and how well-respected the degree is outside the region where the school is located. Many applicants will care about at least some of these considerations in addition to pay.

BYU is a very good school. I’m not saying it’s always wrong for applicants to choose it over a rival that is superior on conventional measures of school quality. If you want to practice in Utah and/or attend a distinctively Mormon institution, it’s perfectly rational to choose BYU over a school with a significantly stronger faculty and student body. If you reject a much stronger school primarily to save money, however, it’s probably an unwise decision. Tuition differences are an excellent reason to choose one school over another if the quality gap between them is modest, but not if it’s very large.

The second problem with Gladwell’s emphasis on tuition is that it’s a factor that applicants can easily rate for themselves. It’s simple for applicants to find out what tuition each school charges, and compare one to another. The really relevant number here, of course, is not the average tuition that Gladwell uses in his study, but the financial aid package the school offers to the individual applicant in question, which is yet another limitation of Gladwell’s approach. From an applicant’s standpoint, it doesn’t matter how much the other students at School X are paying; what’s important is how much they’re going to charge you.

On the other hand, it’s more difficult for applicants to assess such factors as student and faculty quality on their own. A ranking system that includes both tuition and these other factors in its formula makes it harder for students to use the system to assess the more difficult to understand factors, since a large component of each school’s ranking will be determined by tuition instead. If I’m considering attending BYU, what I would like to see is a clear measure of what I’m getting for my tuition payment relative to what I would get at the other schools, not a ranking that confounds tuition with quality in a way that makes it hard to tell whether a school’s ranking is driven by tuition (a variable the applicant already knows about) or quality. A good ranking system, therefore, should focus on factors that are difficult for applicants to assess on their own. The point is not that tuition is unimportant. It obviously does matter. It’s that prospective students can assess it for themselves.

Despite these criticisms, Gladwell’s system is a useful addition to the rankings market. A ranking can still provide useful information even if it has significant flaws. Law school applicants would be wrong to base their decisions solely or primarily on Gladwell’s methodology. But it’s entirely reasonable to consider it along with other information, including other rankings systems.

UPDATE: Looking around the internet, there is a division of opinion between commentators who interpret Gladwell as attacking US News while presenting what he thinks is a superior system, and those who believe that he’s hostile to rankings as such. The fact that there is this much disagreement over what he means is a sign that the article isn’t as clear as it probably should have been. In any event, Gladwell clearly does seem to believe that his approach is better than the US News system, which suggests that he thinks some ranking systems are better than others, even if all are ultimately flawed. In my view, we cannot and will not dispense with rankings entirely, so it makes good sense to analyze their strengths and weaknesses, regardless of whether Gladwell agrees or not.

As Miller points out, the Pentagon may have reasons for its own for choosing not to establish ROTC programs at some elite schools. And there are those in the military who strongly dislike elite academia. Thus, some schools might not get ROTC programs any time soon even if university administrators support the idea. Still, nothing prevents university officials from announcing that they would now welcome the return of ROTC programs if the military is interested. President Obama urged them to do just that in his recent State of the Union speech.

The same point applies to law schools. After having lost a Supreme Court case over the issue, law schools were forced to permit military recruiters to interview on campus as a condition of receiving federal funding under the Solomon Amendment. In the aftermath of this legal defeat, most law schools admitted recruiters, but continued to emphasize that they were doing so under duress. Some also adopted various “ameliorative practices” required by the American Association of Law Schools, and designed to emphasize their opposition to the presence of military recruiters. Both the AALS and individual schools should repeal the varous ameliorative practices and officially indicate that they now voluntarily welcome military recruiters on the same basis as other interviewers. As recently as May 2010, the AALS emphasized that its opposition to military recruiters should not be interpreted as “antimilitary,” but was instead merely an effort to oppose discrimination against gays and lesbians. The time has come to live up to those principles.

For reasons I outlined here, I think that it was wrong to exclude ROTC and military recruiters even while DADT was in force, despite the fact that I also believe that that policy was a serious injustice. Regardless, with DADT on its way out there is no longer any plausible reason for universities to exclude either ROTC programs or military recruiters.

UPDATE: The Harvard Crimson, Harvard’s main student newspaper, just published an editorial calling for the return of ROTC to campus [HT: Harvard student and Crimson writer Yair Rosenberg:

Just as DADT represented an outdated prejudice directed toward gay American citizens, the absence of ROTC now stands as a relic of an outdated bias against the American armed forces. When ROTC was expelled from Harvard in 1969, military enlistment was mandatory, as was ROTC participation on countless U.S. campuses. Today, absent its prior objectionable compulsory and discriminatory policies, ROTC deserves recognition as a legitimate pre-professional track at Harvard. The university supports pre-law, pre-med and pre-business activities on the part of its students; it should support pre-military study as well. Further, the same access to Harvard’s student body that is granted to recruiters for countless career paths should be given to the U.S. military….

We remind those who would oppose this move that President Faust and other Harvard administrators have repeatedly predicated the return of ROTC upon the repeal of DADT. Thus, should the university backtrack on its public commitment, its political credibility will be greatly impaired, as will Harvard’s ability to influence future legislation with similar pronouncements.

Nowadays the word “hypertrophy” is used mainly to denote a class of diseases in which an organ grows to an abnormal size because of the uncontrolled growth of the cells that constitute it. But the word is still used occasionally to denote a structure or activity that has grown far beyond any apparent functional need. An example is the Egyptian pyramids. The pharaohs needed a secure burial place because they were buried with valuable possessions that they believed they would need in the afterlife. But security didn’t require an immense pyramid of stones above the burial place….

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Judge Posner is one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Legal Forum [correction: U of Chicago Law Review] article on the subject. I am pleased to to follow in the footsteps of the world’s most distinguished legal scholar on this issue. I do worry, however, that his Egyptian pyramid analogy is a bit too generous to the Bluebook. While the pyramids were excessive relative to the pharaohs’ actual needs, they at least have tremendous esthetic value. By contrast, I doubt that tourists will will ever flock to see copies of the Bluebook. Indeed, rare is the person who ever opens up the Bluebook when he doesn’t absolutely have to.

Soon after my original 2006 post advocating Bluebook abolition, I wrote a follow-up explaining why perverse incentives prevent most law journal editors from moving to a better citation system. Not much has happened in the last five years to make me more optimistic. However, as President Obama once said, “Hope is not blind optimism…. Hope is that thing inside us that insists, despite all the evidence to the contrary, that something better awaits us if we have the courage to reach for it, work for it, and fight for it.” So I, along with Judge Posner, will continue to advocate the abolition of the Bluebook. If we ever succeed, it will be an example of change we can believe in.

UPDATE: It’s worth noting that appended to Posner’s article is a copy of the highly simplified citation system that he uses in his judicial opinions. It’s not only vastly superior to the Bluebook. It’s also better than the University of Chicago Maroon Book and other standard alternatives. As I have argued in the past, switching to the Maroon Book would be a vast improvement over the Bluebook. But Posner’s system is even better than the Maroon Book, because it is much simpler, but doesn’t sacrifice anything essential for readers to be able to check citations. [I have corrected a typo in the first sentence of this update. Thanks to commenters and Eugene Volokh for pointing it out].

UPDATE #2: Commenter Andrew puts the point better than me, and perhaps better even than Posner:

I disagree with this blog post. People far and wide will indeed flock to see the Blue Book, just as they flock to see the pyramids — when the Blue Book reaches the size of the pyramids.

But before that happens, I hope that the legions who slave away with the Blue Book will rise up and flee from bondage, across the great desert toward the promised citation system that Posner has brought down from the Sixth Circuit [note by IS: actually the Seventh Circuit]. And the people shall rejoice as legal fees drop and tuition abates, and no more shall multitudes bow before false idols manufactured in Cambridge, Massachusetts.

committee members have also questioned whether the ABA should be making rules that financially benefit the Law School Admission Council—the organization that administers the LSAT.

“It’s a wealthy institution,” Yellen said. “So many people take the LSAT. Why is the ABA ensuring its future success?”

Hmm. The ABA is a wealthy institution. For no good reason, law schools can’t get accredited, and in most states their students can’t take the bar, unless they meet a host of expensive and sometimes arbitrary ABA requirements. So,

“David Bernstein questions whether state legislatures and supreme courts should be making rules that financially benefit the ABA–the organization that has a monopoly over law school accreditation. “It’s a wealthy institution, that exists to benefit its members at the expense of the public,” Bernstein said. “Superfluous ABA rules add dramatically to the cost of a legal education. Why are state governments ensuring its future success?”

• supply of lawyers outstripping demand, now and into the future;
• cost of legal education outstripping the ability to repay on most lawyers’ salaries;
• oversupply of law schools (leading to oversupply of lawyers, but in fact contributing its own frictions in bringing supply and demand to clear);
• huge information gaps making it difficult at best for would-be students to make a decision;
• inaccurate and gamed information supplied by law schools on employment and salaries of graduates.

The article traces through several law grads, with a particular focus on a graduate of Thomas Jefferson law school in San Diego, who has racked up several hundred thousand dollars in debt – if he were paying the monthly payments, they would be around $3,000 a month, if I recall the article correctly.  He himself says that he’s not so good at keeping track of that sort of thing.  The debt is not dischargeable in bankruptcy, so he and his girlfriend have simply gone off the employment or any other kind of income grid, pretty much.

A lot of readers of the article will be unimpressed with the young man’s cavalier attitude both to running up the debt – including on remarkably idiotic things, like trips abroad – and to repayment at all.  But while we all should take a lesson – I for one take a deep breath and hope that my own kid would not make these kinds of mistakes – there’s also a fact that it was only in the last two years or so that the vast majority of middle class people would have had any real question either about the ability to repay the debt or, more fundamentally, that more education was automatically a good thing.  More human capital investment, good, and professional education like law, better still.  It is only in the last two years, frankly, that very many of us – I include myself – have been thinking about higher education ROI.  I’m not at all sure that we can hang it on some admittedly not so bright kid for going with the assumptions that all the rest of us have gone with.

As I’ve noted in some earlier posts about 21st century jobs, there’s also something quite dismaying in the fact that, for the first time I can remember in my adult life, we seem to be concluding that investment in human capital is not worth it.  That might be true because the training is idiotic and not really “human capital investment” at all, but more like summer camp.

But the much more worrying possibility is that structural problems in the US economy mean that there isn’t a need for professionally skilled labor, because the economy can’t deploy people to these higher skilled tasks.  In the case of lawyers, or people who might have become lawyers, that might be because capital has been wasted in pointless things that didn’t pay off, and now there isn’t enough capital to invest in new things for which lawyers – yes, even lawyers – would be useful in making happen.  It can, and certainly has, happened to engineers, too, over the past fifty years.

To the extent that is a structural, rather than cyclical, new normal for the economy, that is dismaying and disheartening.  One can say that in that case, deploying would-be lawyers or, for that matter, engineers, into subsistence farming is, under those conditions, the most efficient available deployment of their labor.  But of course that would be true by definition.  The wastage compared to a better organized economy is enormous and finally tragic.

That is true, by the way, of the young man featured in the story.  He might be a genial idiot, when it comes to practicalities, but it does seem unlikely that even his talents, impressive or meager as they might be, are best deployed in our economy trying to avoid doing anything that earns any money, because of an unsustainable debt load.  From a social welfare perspective, his human capital is mis-deployed – while also being true that the moral hazard of a massive bailout of misplaced expectations of student loans is disastrous, quite apart from the cost.  It’s striking in the article that waiting for a political fix to his problems seems to be his overall strategy.  That’s scary all by itself.

However, it was finally this comment that attracted my attention from the standpoint of teaching law and economics to law students: consider the ways in which this statement is not quite right:

“Law school might not be worth it for another 10 or 15 years,” he says, “but the riskier approach always has the bigger payoff.”

Critique the last half of that statement.

I suppose that I’m meant to be impressed that Justice Alito is visiting the law school. Duly noted. I can’t imagine ANY reason other than the quality of faculty, students, staff, and alumni, why Justice Alito would take time from his busy schedule to visit the University of Hawaii in January.

UPDATE: More at Legal Ethics Forum.

I do have a paper at this conference – on drones, but not really on the law of targeted killing and drone warfare.  (Yale’s Paul Kahn is kind enough to serve as commentator on Wednesday.)  Tentatively titled, “Every death a targeted killing,” it aims to ask, speculatively, what effects a fully realized technological and legal and moral regime of targeted killing using drones would look like.  What would be the features of such a condition for conflict?  It does not attempt to address this for all conflicts – but suggests that, in the special case of counterterrorism, it enables the growth of an “intelligence-driven” form of conflict that individuates every killing, rather than targeting an undifferentiated mass of combatants.  If one takes that from a moral standpoint, targeted killing has the same proportionality rules as any other weapon, then it pays exactly the same heed to non-combatants; by contrast, it pays far more attention to the status and role of combatants.  The paper is in early draft form, in any case, so will get revised before I even post a working draft to SSRN.

Consider a routine criminal case. The investigator has one role: Determine if a crime has been committed and who committed it while complying with the relevant constitutional and statutory rules for gathering evidence. The prosecutor has a second role: Determine if the evidence is sufficient to prove the case beyond a reasonable doubt and if justice will be served by a prosecution. The grand jury has a third role: Determine if there is probable cause to permit charges to be brought. The defense attorney has a fourth role: Fight like hell, within the ethical rules, to defend the client. The trial judge has a fifth role: Make appropriate evidentiary rulings, ensure a fair trial, instruct the jury properly on the law, and, if the jury convicts, determine the appropriate sentence under the relevant sentencing scheme. The trial jury has a sixth role: Determine if there is proof of the elements of the crime beyond a reasonable doubt. On appeal, the appellate court has a seventh role: Review the lower court judgments under the appropriate standard of review. Each institution has its role, its appropriate job based on the breakdown of power among the different institutions created by and regulated under the law. It’s a big part about how lawyers think.

This understanding of institutional roles provides a source of endless frustration among non-lawyers. For non-lawyers, thinking about institutional roles can seem utterly ridiculous. It can come off as hiding behind technicalities and an almost pathological aversion to the common sense and the justice of the situation. But to lawyers, it’s just about how we think: It all reflects our background understanding, so intuitive after a while that we rarely consciously see it, that the law often distributes power among different institutions.

My impression over the years has been that the student body at GMU is more or less evenly split between liberals and conservatives, which I’m pretty sure would make the student body much less conservative than at schools like Regent or BYU.

So I decided to do an informal, optional, and anonymous survey of the students in my Con Law I section, who represent about half of our 2L day class. Here are the results:

Q Which of these is closest to your political views?

1. Green 0
2. Very Liberal 5
3. Liberal 10
4. Moderately Liberal 9
5. Moderate 7
6. Moderately Conservative 11
7. Conservative 3
8. Very Conservative 4
9. Libertarian 6
10. Other 0

Note that there are more “very liberal” students than “very conservative” students, and way more “liberal” than “conservative students. And even if you put “libertarian” students into the conservative camp (unfairly, in my opinion), you still wind up with a 24-24 left-right tie.

Some students suggested to me that there might be some self-selection of liberal students into my section, and that their class year might be more liberal than average. Even if one or both of these things are true (and I have no way of measuring them), it’s unlikely that they have such a large effect on the results that they undermine the general point, that GMU students aren’t nearly as conservative as what Princeton Review would suggest, and indeed are reasonably well-balanced ideologically.

So why, if P.R. is accurate, do students perceive their colleagues as being so conservative? I can think of at least two plausible explanations. First, unlike the runner-up schools (Regent, BYU, Ave Maria, Samford), GMU is neither a religious school, nor is it located in a conservative part of the country. Rather, the school is in Arlington, a liberal county, and next to D.C., an even more liberal jurisdiction. Our students often come from liberal universities in the Northeast and Mid-Atlantic. So compared to what one might expect from a secular law school in a liberal part of the world, the student body seems quite conservative. And indeed, there is no other school on P.R.’s top 10 list that is not either religious, located in a conservative region, or both.

Second, some (small) fraction of GMU students come here precisely because they prefer a non-overwhelmingly-left-wing political environment, which is what they would get at every one of the schools we primarily compete with for students. These students are disproportionately likely to speak up in class, and thus make the student body seem more conservative than it really is.