The Volokh Conspiracy

With law school scam blogs being in the blogospheric news these days, I wanted to offer a few thoughts.

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.

Brian Leiter argues that the opportunity to speak at Federalist Society student chapters is an important career advantage for conservative and libertarian academics. Co-blogger David Bernstein believes otherwise.

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.

The recent NYT story on law schools’ use of grade-contingent, merit-based scholarships to recruit 1Ls has prompted substantial discussion in the blawgosphere (including here and here).   At some schools, a substantial proportion (if not a majority) of the incoming 1L class may receive merit scholarships that are contingent upon the maintenance of an above-average GPA.  Given mandatory law school curves, this virtually ensures that a significant number of students will lose their scholarships after the first year.  Is this sort of policy fair? Are incoming students aware of the conditions placed on their scholarships?  Law School Transparency has also called for greater disclosure of law school scholarship policies, a proposal endorsed by U.S. News Robert Morse.

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.

Paul Caron of TaxProf links here to various reactions to the purported scandal that not all 1Ls who receive scholarships can expect to maintain a high enough GPA to retain them.

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.

In the National Jurist, Rebecca Larsen has an article ranking law schools on the basis of “diversity.” At Balkinization, lawprof Jason Mazzone makes some cogent criticisms of her approach.

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.

This year’s US News law school rankings are now available. For what it’s worth, George Mason has moved up slightly to number 40, while UCLA – home of senior conspirator Eugene Volokh – ranks 16th.

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

The rankings aren’t officially out until tomorrow, but there has been a serious leak. Thanks to a prematurely released press release dated tomorrow, I can report that the University of Arkansas Law School is ranked number 84 for 2012.

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

I agree with much of the advice that co-blogger David Bernstein offers on law school rankings and admissions. I don’t think that the US News rankings are completely useless, but their utility is indeed limited by various methodological weaknesses, such as those that I pointed out here and here. The most fundamental problem is that the rankings are primarily based on surveys of academics, lawyers, and judges who have no idea of what goes on at most of the schools they rank:

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.

With U.S. News rankings due out tomorrow, I thought I’d repeat part of a post from two years ago.

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.

In the New Yorker, well-known writer Malcolm Gladwell has an article presenting his own law school ranking system. Gladwell is highly critical of the US News rankings, and believes his approach is superior (fuller, subscription-only version here):

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.

At the Weekly Standard blog, Cheryl Miller asks whether the repeal of Don’t Ask Don’t Tell will lead to the return of ROTC programs to elite university campuses [HT: here]. In recent years, university officials have defended the exclusion of ROTC from campus as a way of countering the military’ discrimination against gays and lesbians, and have vehemently denied that they are antimilitary. With the end of DADT, that obstacle to ROTC should be removed.

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.

Almost five years ago, I wrote a post arguing for the abolition of the Bluebook, the standard system of legal citation used by most law journals. As I argued there and in several subsequent posts (e.g. here), I think the Bluebook is vastly more complicated than it should be, and creates an enormous waste of time and effort. But I’m a Bluebook cheerleader compared to Judge Richard Posner, whose recent Yale Law Journal article criticizing the Bluebook was recently linked by Senior Conspirator Eugene Volokh:

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.

According to the National Law Journal, the ABA is considering dropping its requirement that law school applicants take the LSAT. Loyola Chicago Dean David Yellin, a member of the relevant ABA committee, notes that

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?”

Probably many readers have seen this New York Times article, offering a lengthy and well-reported analysis in the Business Pages by David Segal of whether law school is a worthwhile investment.  The analysis points to a couple of different factors, including:

• 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.

In today’s mail, I received a promotional postcard (part of the genre known as “law porn”) announcing that the University of Hawaii School of Law “Welcomes 2011 Jurist-in-Residence U.S. Supreme Court Associate Justice Samuel Anthony Alito, Jr., January 24-28, 2011.”

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.

Bridget Crawford wonders why practicing lawyers don’t much like legal academics. Professor Bainbridge offers an explanation. Rick Garnett responds with some qualifications.

UPDATE: More at Legal Ethics Forum.

I am privileged this week to be in attendance at a marvelous conference at NYU celebrating the 35th anniversary of Michael Walzer’s Just and Unjust Wars, with Professor Walzer himself in attendance, and a host of luminaries among moral philosophy, law, and other fields.  I don’t really have internet access at the conference, and the papers are all in preliminary form, but if you want to know much of my thinking about Just and Unjust Wars, I have many posts on the subject – many of them trying to tease out exactly what kind of theory I think Walzer offers, set against the range of ethics of war positions, over at my now-abandoned, archival blog.  (Search the Walzer posts.) I think I will do a series of Walzer related posts here, if I can get internet access, drawing on the conference and my earlier blog posts.  Kudos to Joseph Weiler, Gabby Blum, and Ian Scobbie for pulling this marvelous conference together.

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.

I was thinking recently, after teaching a first-year law class, that one of the key aspects of “thinking like a lawyer” is understanding institutional roles. The law often breaks down power among different institutions, with each institution getting one part of a broader problem. That means that each institution only has limited power, and the question of how that institution is supposed to act is limited by the specific grant of power given to that particular institution. Of course, the lines won’t always be clear as to exactly what powers are given to each institution: Sometimes the lines are murky. But the basic idea of thinking of each institution based on its role is an important part of thinking like a lawyer.

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.

The new Princeton Review rankings state that George Mason has the “most conservative students” “based on student assessment of the political bent of the student body at large”.

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.

The Princeton Review has just released its 2011 law school guide book, “The Best 172 Law Schools,” which includes rankings based upon extensive student surveys.  According to their press release (cached here), Brown University’s law school ranked number one in the “best professors” survey category.  Congratulations to all our friends on Brown’s law faculty.  (Hat tip: Dan Filler.)

NOTE: On this page, the Princeton Review lists Boston University as having the law school with the “best professors.”  Therefore it is possible that the press release just contains a typo.  Then again, the student survey respondents may well think Brown has great law professors — even better than those at Princeton and Dartmouth.

CoConspirator Todd’s post on the growth of administrative staff at universities raises a further question for me.  Considered as a public choice/incentives question, what are the rational incentives of university administrators regarding faculty tenure?  We have had some interesting discussions here at VC on the policy considerations on tenure – I’ll weigh in on them at some point, but not today – but in this post I have another kind of question.

If the study to which Todd links is correct, and administrative staff is growing in this way, along with an accumulation of administrative power within universities, what are the incentives of university administrators with respect to the institution of faculty tenure?  Would they tend to disfavor tenure because it empowers faculty potentially vis a vis administrators?  Because administrators would prefer to see faculty as employees or, perhaps, simply independent contractors?  Rather than a potentially competing source of university governance on the traditional (and somewhat mythical, at least in the past few decades) “collegial” model?  Or are their incentives something else altogether?

That is, I am asking a very specific question regarding the rational incentives of university administrators.  (Please comment only if you have something that goes to that question, and please, no rants or off-topic disquisitions.)

Here’s an interesting finding: Among the Top 50 law schools, the gender balance on law review and in leadership positions on law review almost exactly matches the gender balance of the law school student bodies as a whole (about 55% men, 45% women).

According to Paul Caron at TaxProf Blog, Forbes magazine is planning to issue a new set of law school rankings to compete with the ubiquitous US News rankings. It is a good thing that a prominent publication is going to create a competing ranking system. The US News rankings have many well-known flaws, such as those I described in this post.

The US News rankings do provide some valuable information and certainly aren’t completely worthless. But this market is long overdue for some additional competition.

Caron’s post includes Forbes’ ranking of the top 50 undergraduate colleges. The list is interesting. But there is one glaring error: My alma mater, Amherst College, is ranked No. 3, behind traditional rival Williams which is ranked No. 1. Any ranking methodology that ranks the Fairest College lower than the Purple Cows must have a serious flaw somewhere. Hopefully, the Forbes law school rankings will be better-designed.

There are a couple of academic business law blogs I read regularly – particularly The Conglomerate and Truth on the Market.  So I was flattered to see that Larry Ribstein, at Truth on the Market, put up a short comment on a short essay of mine that appeared last semester in my school’s short-form essay journal, Business Law Brief, “Do Lawyers and Law Professors Have Any Comparative Advantages in Opining on Financial Regulatory Reform?”  My essay is only 5000 words, and is a not much revised version of a brown bag lunch talk I gave to (dismayed and depressed) business law students last term at my school, a pep talk on what I think are lawyerly comparative advantages, despite everything.  It’s not a deep academic work, that is, and needs to be read that way.  But I have always liked it, and was glad to see it published in reasonably short and readable form.

Professor Ribstein is one of the leading scholars in business law, and in a couple of distinct-yet-related areas. They include the law of unincorporated business entities – his book The Rise of the Uncorporation is outstanding, one that I assigned to my private equity class this past term with good results.  But he is also a leading commentator on the business model of the law firm and Big Law – including (not insignificantly for my essay, aimed in part at law students trying to figure out the new realities of the law job market) the implications of the changes in the broader legal market for legal education.  And add to that a subject increasingly dear to my heart – the nature of fiduciary duty in a world in which the nature of business entities is shifting.

The Truth on the Market post is titled “Why Lawyers?”:

Anderson wonders whether “the skills of the lawyer and law professor are, at most, those of scribe seeking clearly to write down policy positions necessarily reached elsewhere?” He argues that there are two important things lawyers and law professors know.

First, as he says in the abstract, “a particular disciplinary appreciation in the law for the ‘thick’ relationships of agency, fiduciary, loyalty, and care that bind together institutions far more than the simplification of ‘nexus of contracts’ can capture.”

Second, and perhaps more importantly, Anderson says … “lawyers have a better appreciation than other disciplines of the ways in which financial instruments used in markets as though they were economic equivalents are not actually legal equivalents[.]”  The essay discusses the lawyer concept of repos as more than just the financial equivalent of a secured loan but, legally, a spot sale and contract to repurchase. Under ordinary circumstances the financial idea may be good enough. But under conditions of stress – that is, in a financial crisis – the lawyer’s concept comes to the fore. And then only lawyers can provide the critical information that helps the market put a value on the contingency.

But Professor Ribstein then turns to point out that figuring out this comparative advantage for lawyers, if such it genuinely is, requires some urgent thinking, by lawyers and by legal educators.  He would disagree with parts of the analysis in the essay – in part about the idea that the nexus of contracts improperly obscures rather than clarifies duties in the new business structures, and perhaps as well with the specific example I use concerning repos.  But as he says, if legal education does not figure out its intellectual competitive advantages, and not just those of guild-privileged access of being lawyers with a license, then law as a field will discover that it has been overtaken by others.  ”Why lawyers?” in other words, as Professor Ribstein concludes, is a way of asking the classic question of legal education, what does it mean to “think like a lawyer?”

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions … agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   Continue reading ‘Financial Regulation Reform – AALS Call for Papers’ »