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The Michael Brown shooting

[ 78 ] November 25, 2014 |

Some preliminary thoughts.

I wrote this piece before the GJ proceedings were released. As expected, Darren Wilson’s testimony is obviously very problematic, given his legal position. I haven’t had a chance to look at much else yet.

Why did Obama claim he couldn’t do what he in fact could do regarding immigration policy?

[ 41 ] November 21, 2014 |

I have a piece at the Daily Beast on this question.

The real reason is surely far more prosaic: Obama claimed he didn’t have the power to do things he had the power to do because the administration calculated that it was politically expedient for him to do so. By claiming that his hands were tied, the president hoped to put more pressure on Congress to pass an immigration reform bill, which would produce longer-term results than executive orders.

The gambit failed, and now the administration is being forced to try to finesse the president’s fairly unambiguous public flip-flop on the issue.

Obama’s real excuse, if he were to be candid on the issue—an option not available to him because of the same practical considerations that led him to engage in these sorts of tactics in the first place—is that it’s extremely difficult to get anything done in the American political system, for structural reasons that have nothing to do with the characteristics of particular presidents or legislatures.

The immigration reform bill the president favors, for instance, has passed the Senate and is apparently supported by a majority of current House members. But it can’t pass the House because the Tea Party wing of the GOP is holding the House Republican leadership hostage on immigration.

This is yet another illustration of how, as contemporary American politics becomes increasingly ideologically coherent, the many barriers to enacting legislation, aka governing, become increasingly difficult to leap.

Under these circumstances, the kind of unilateral executive action Obama is undertaking will become more and more common.

An awkward kind of justice

[ 142 ] November 18, 2014 |

“It’s very awkward,” O’Donnell said. “Isn’t it awkward?”

“It’s more than awkward, it’s a tragedy,” co-host Nicolle Wallace responded. “Either 13 women were raped by someone too powerful to face the criminal justice system or an innocent man is being falsely accused.

The kind of informal public shaming ritual to which Bill Cosby is now being subjected is obviously a potentially dangerous sort of social practice, at least in the abstract. In the concrete circumstances presented by what appears to be a very long history of serial sexual assault, it may be the only justice available to a perpetrator’s many victims. If the fourteen women who are known to have accused Cosby of sexual assaulting them are to be believed — and it’s almost impossible to come up with any plausible explanation for the collective nature of their stories other than that those stories are true — then of course the number of women Cosby has actually assaulted is likely to be much larger. (Update: Another woman, the model Janice Dickinson, has come forward with another accusation of sexual assault that closely tracks the details of the other stories).

For obvious reasons the criminal justice system is now of no use in regard to extracting any retribution for these crimes, although perhaps that system might still have deterrent value as to Cosby’s future acts, given the attention these accusations are now getting. As for lawsuits, women raped by rich and famous men rarely sue them, for reasons that are even more obvious. (One of Cosby’s accusers did sue him. The case settled out of court, but not before thirteen other women offered to testify that they too had been sexually assaulted by Cosby).

So the present spectacle may be, in the case of Cosby and his alleged victims, the only justice to be had.

(Several comments in the couple of previous threads on this subject have suggested that these accusations are only getting attention — from the media in general and from mighty LGM in particular — because Cosby is African American. [Edit: Denverite points out that the precise claim made by commenters in previous threads was that accusations of sexual assault against African American men are more or less automatically believed. But that's really just another way of saying such charges are given unjustified attention, since charges that are treated as unbelievable won't get nearly as much attention.] It’s difficult to describe the absurdity of this claim. What’s truly remarkable is that, nine years ago, fourteen women announced they were willing to testify under oath that one of the most famous entertainers in America sexually assaulted them, and the matter got relatively little media attention at the time — Scott noted this past February in the context of the Woody Allen story that he wasn’t aware that Bill Cosby had been accused by multiple women of sexual assault; I was similarly unaware of that fact, which by itself doesn’t prove anything, but is suggestive regarding the level of coverage the story received. If anything, this suggests that the role racism played in this story was to keep accusations against a “beloved” –i.e., acceptable to white people — black man from getting the attention they otherwise would have gotten.)

Further thoughts on tenure

[ 59 ] November 13, 2014 |

Yesterday I posted an interview with Kyle Graham, a Santa Clara law professor who has decided to forgo the tenure process, and instead remain on the faculty without the protections and privileges tenure affords. Graham’s reasons for doing so are interestingly idiosyncratic: basically, he thinks that there’s too much of a risk that tenure protections will cause him to become bad at his job.

I didn’t want to complicate that post with my own thoughts on his reasons, but the comments thread raised a number of noteworthy issues:

(1) Is Graham’s position undermining his colleagues, either at SCU or more broadly, by signaling to the administrative class that tenure is unnecessary? I agree, I think, with commenter Gregor Sansa’s view:

This guy’s choice can be criticized in a lot of ways. But it’s also true that we’re not him. Maybe he knows something about himself that we don’t, and he really would turn into “that guy” if he got tenure. In the end, stupid or not, it’s his choice to make, and I don’t think trying to shame him with talk of indirect solidarity is really fair.

(If he were crossing some metaphorical picket line, that would be a different story. But nobody is offering him extra salary to forgo tenure so that they can undermine the system. His choice is and will remain an aberration.)

(2) How much of a problem is “that guy” — the person who abuses the privileges of tenure — anyway? Surely the answer to this is inevitably going to vary enormously across institutions. It’s true that horror stories about lazy and/or incompetent professors are a favorite anecdotal device of (generally right-wing) critics of American academia — and perhaps in other countries as well — and that anecdotes aren’t data. But it’s also true that the stronger protections are against firing without just cause, the greater the costs of firing people for cause necessarily become, which in turn means that at some point some people who should be fired won’t be. In my view it’s better to acknowledge this as a cost of tenure, although one that can perhaps be minimized in various ways, rather than to deny that tenure protections have perverse effects on some people.

(3) The best defense of tenure is that it allows valuable work to be done that would otherwise not be done, or not be done as well, and that the benefits of this justify the (real) costs of the system. I’m not the person to judge the value of the academic and popular writing that I’ve done on the dysfunctions of contemporary American legal education, but I could not have done this work without the protections of tenure. While in some ways Graham’s decision to spur his future self to better performance by forgoing tenure protections seems to me admirable, in other ways it strikes me as a remarkably naive attitude toward the realities of employer-employee relations, both in the contemporary American university, and more generally.

(4) Yesterday, while reading a draft of a very interesting paper by a labor historian regarding ways in which Title VII of the Civil Rights Act may have undermined labor solidarity in the USA, I was reminded of the extent to which, in my experience, professional class people in this country don’t appreciate what at-will employment actually means, either as formal legal concept, or a practical economic and political reality. Again and again, I’ve encountered the vague belief among highly educated people that your employer can only fire you for “good reasons,” even though for the vast majority of American workers, even in the professional classes, this isn’t true. While I’m fairly sure that Graham himself isn’t laboring under this misapprehension (surely as a lawyer who has considered his formal legal options he knows what his current employment rights do and don’t entail) his apparent belief that, whatever his formal legal rights may or may not be, he won’t be fired by his employer as long as he’s doing a good job, is perhaps in its own idiosyncratic way a bit of evidence that Econ 101 models regarding “efficient behavior” by employers are taken too literally by people who should know better.

The uses (and potential abuses) of tenure: A conversation with Kyle Graham

[ 75 ] November 12, 2014 |

Recently Kyle Graham, a professor on the tenure track at Santa Clara Law School, announced on his new blog that he had decided not to seek tenure, and would instead remain an untenured member of the faculty:

So, I decided a while back that I didn’t want to apply for tenure, and advised the administration and (more recently) the faculty at Santa Clara Law of my decision. I reached this conclusion after conducting an inventory of my strengths and weaknesses. Pursuant to this census, I determined that, assuming I remain in academia, I’d probably be a better teacher and scholar without the cushion that tenure provides . . .

A few people (not necessarily on our faculty) have described my decision not to seek tenure as “nuts,” “insane,” and “incredibly stupid.” The basic notion being, that I had good odds of receiving tenure had I applied for it, that tenure has its benefits, and that only a great fool would reach for what he has been given reject these benefits when they’re there for the taking.

I think that this calculus holds true for a lot of other professors, but not for me. In passing up tenure, I have conceded that if the school wants to retain me, I will have to forego some of the perks (such as sabbaticals) normally associated with tenured status. And of course, I will be fair game for dismissal if I start to teach poorly; if I don’t produce useful scholarship; if (in my view, the unlikeliest timeline) I write something that powerful people actually notice, and don’t like; or if other reasons make it in the interest of the school to move on.

But that’s fine by me. I am 40 years old. I can’t predict the person I will be 20 years from now. I just know that while I’m something of a self-starter, I have tended to perform better when I have internalized at least some outside pressure to work hard. I don’t want to be that guy — the professor who gets tenure, and then sits on his hands and reads straight from the casebook in class. I don’t think I’d be that person even with tenure. But why take chances? And although a professor without tenure is more likely to get dismissed than one with tenured status, that’s OK, too. I see it as my job, going forward, to perform well enough to make certain that doesn’t happen. If it does, well, I’ve still got my bar card, and being a park ranger wasn’t so bad, either.

This is of course a very unusual decision — indeed at many (most?) institutions of higher education in America it’s not an option people have, as the tenure systems under which they work are up or out — and I asked Graham if he would answer a few questions about it. He agreed to do so, and I’m reproducing our conversation below: Read more…

Ann Althouse does journalism

[ 82 ] November 7, 2014 |

This was just brought to my attention. Not sure if serious, as the kids say on the Facebook:

[I]t’s a common journalistic practice to begin with an attention-getting anecdote that’s supposed to set up the sober, evidence-based analysis to follow, even though it’s often not all that connected. But this anecdote is just so weird, and it’s lacking in the details I would need to make sense of it even aside from whether it has much to do with the “law-school scam” topic.

Last April, David Frakt, a candidate for the deanship at the Florida Coastal School of Law was giving his job talk, we’re told, discussing “what he saw as the major problems facing the school: sharply declining enrollment, drastically reduced admissions standards, and low morale among employees.”

But midway through Frakt’s statistics-filled PowerPoint presentation, he was interrupted when Dennis Stone, the school’s president, entered the room. (Stone had been alerted to Frakt’s comments by e-mails and texts from faculty members in the room.) Stone told Frakt to stop “insulting” the faculty, and asked him to leave. Startled, Frakt requested that anyone in the room who felt insulted raise his or her hand. When no one did, he attempted to resume his presentation. But Stone told him that if he didn’t leave the premises immediately, security would be called. Frakt packed up his belongings and left.

First, we’re seeing the way social media can work within an institution. A speaker may be in a room, experiencing dominance and control over the group by standing and lecturing while they silently and seemingly politely listen, and yet a whole revolution could be going on in text. Objections to phrasings can be texted and twittered about. No one includes the speaker, who rambles along according to his plan. The audience — instead of interacting in the normal manner of human intercourse through the ages — summons an authority from outside the room, and this clownish character rescues the passive-aggressive audience from their oppression.

(If the lawprofs are modeling this insidious new form of classroom participation, they will get their comeuppance when students use it on them. The professor attempts to conduct a discussion, perhaps of some touchy issue like affirmative action or abortion, and the students look disengaged, but they are really having an intense discussion, hurling accusations around. The professor is a racist. The professor is a sexist. Next thing you know, the dean has been summoned, breaks into the classroom, and conducts and on-the-spot trial. Whoa! Get ready, lawprofs.)

Second, what did the faculty find so insulting that they demanded an intervention from an outsider? What would have been enough to propel Stone into the room to interrupt a candidate — mid-presentation — and kick him out? To threaten to call security?! It doesn’t make sense to portray this — as Campos does — as distress over the same old “law-school scam,” which is about the ratio of jobs to students and the high tuition, and so forth. Even if Frakt presented the statistics vividly and the economic situation at the Florida Coastal School of Law is dismal and disturbing, it would not justify the weird drama. The normal response would be to push the candidate with questions or to look at him blankly and, after the time for the talk was over or close enough to over, drift out of the room having decided to vote against him. It must be something more, and I’m irked at Campos for sticking this anecdote at the top as if it will make readers see the dreadful emergency that is the “law-school scam.”

Can somebody email me about what really happened that day? Without more, I would hypothesize that Frakt said some things about race and/or gender that got texted into what felt like a realization that racial/sexual harassment is going on right now. I would guess that Stone got a message that the school itself was condoning some kind of harassment and that he had an immediate duty to end it. Am I right?

The usual suspects

[ 76 ] November 6, 2014 |

Jeff Toobin has a piece in the New Yorker pointing out that increasingly stratified economics of the legal profession reflect larger social trends:

In the legal world, the haves are doing better than fine. In 1985, average profits per partner in The American Lawyer’s list of leading law firms was $309,000 ($623,000 in current dollars); today, the profits per partner for roughly the same group is about $1.5 million. These numbers hide an even greater disparity. Those at the very top of the pyramid—firms such as Wachtell, Lipton, Rosen & Katz; Quinn Emanuel Urquhart & Sullivan; Cravath, Swain & Moore; and a handful of others—are thriving as never before, with annual profits per partner in the multimillions.

But those at the bottom of the pyramid—recent law-school graduates—are struggling. A recent article in The Atlantic recited the grim numbers . . . [Yet] law schools have continued to cycle students through their doors and load them up with debt, in spite of the reduced demand for legal education (and for lawyers). Eighty-five percent of graduates now carry at least a hundred thousand dollars in debt. Even dubious operations, like the Thomas Jefferson School of Law, in San Diego, have kept their doors (and palms) open.

It’s clear that the nation needs fewer law schools, for many that remain are only offering their students false hopes of employment in exchange for big debt. These students are getting the legal-education equivalent of the subprime loans that helped sink the national economy. In this case, though, the risk to the broader public is small, while the indebted students may struggle with the burden for the rest of their lives. (The vast middle of the legal academy—at the big state schools, for instance—is doing only a little better than the schools at the bottom. For a full view of the depressing facts, see the superb Law School Transparency Web site.)

As with law firms, the top law schools are doing fine. Graduates of the most highly regarded institutions may not have the cornucopia of options that their predecessors enjoyed a few years ago, but few, if any, will go jobless. These students have large loans, too, but they’ll be able to repay them. As in days past, they will migrate to the big firms, where, by and large, their prospects are bright. And the cycle will continue: the rich (in credentials, at least initially) prospering, and the poor struggling. So it goes for lawyers—and, it seems, for everyone else.

(The last paragraph overstates in my view the extent to which graduates of even the most elite law schools are insulated from financial disaster, but Toobin’s general point is correct).

Speaking of New Yorkers, here’s a nice illustration of the perverse economic structure of the system:

New York Law School is a large, perpetually unranked law school, occupying a fancy new building that it put up on prime Tribeca real estate.

The school charges nearly $50,000 per year in tuition, and estimates the nine-month cost of living for students as $23,591 — a realistic figure for anywhere within reasonable commuting distance — meaning that someone paying full tuition who finances the cost of attendance with federal loans will rack up around $273,000 in debt, including interest, by the time the first federal loan payment comes due six months after graduation. Even someone with a 50% scholarship who takes out federal loans will have $180,000 in non-dischargeable loan debt. (Last year, fully half of all NYLS students paid sticker tuition, and 96.5% paid more than 50% of the sticker price).

Job outcomes for 2013 grads:

56% of graduates did not get a legal job within nine months of graduation.

Nearly 30% had no full time work of any kind.

More than 100 of 562 graduates were completely unemployed nine months after graduation.

5.7% of graduates (at most) got jobs with salaries that would theoretically allow them to begin to repay in a timely manner the average graduate’s debt load, even with that debt being paid back on the government’s 25-year extended repayment plan.

Meanwhile, on the other side of the accounting ledger:

In FY2013 the school reported earning $106,725,026 in revenue. More than $71 million of this came in the form of tuition (slightly less than 10% of this tuition was redistributed to students receiving “scholarships,” i.e., cross-subsidized tuition discounts, paid for by their less fortunate brethern).

Most of the rest of the school’s income came from the fruits of its financial investments, made possible by the collection of tuition revenues over many years. Note that NYLS has a very small endowment relative to its revenues — $32.3 million at the end of FY2013. These funds are of course almost all restricted by the terms under which they were donated. Such restrictions don’t apply to the “donations” students (or more accurately taxpayers, via federal loans) make in the form of tuition payments.

As of the end of FY2013 NYLS owned, outside of any endowment restrictions, more than $158,000,000 in publicly-traded securities, and $110,000,000 in other securities. In addition, the school has been engaging in the most straightforward (from an accounting perspective at least) financial speculation, in the form of interest rate swaps. Gambling on these financial derivatives cost the school $17,548,000 in losses in FY2012, while earning it $13,038,000 in FY2013.

Where is all this money going? Apparently, to a handful of favored faculty members, who, even by the standards of contemporary law schools, are drawing stupendous salaries and other forms of compensation.

Consider Prof. Marshall Tracht. Prof. Tacht entered legal academia 20 years ago, published three law review articles on the way to getting tenure at Hofstra (and apparently not much else since, besides teaching materials and brief notes for practitioners), then moved over to NYLS in 2008.

I asked a couple of colleagues who write in the areas in which Prof. Tracht specializes if they had ever heard of him. They hadn’t. Nevertheless, Prof. Tracht was paid $451,477 by NYLS (or more precisely by NYLS’s students, or more precisely yet by the taxpayers who unwittingly lent those students the money that in due course found its way into the professor’s accounts).

Five other NYLS faculty members (not counting the dean, who was paid $468,635) were paid between $327,892 and $383,499 in FY2013.

What possible justification could there be for this sort of thing? Let’s round up the usual suspects:

(1) NYLS must compete for top scholars in order to preserve and enhance its scholarly reputation.

NYLS has no scholarly reputation in the legal academic world.

(2) NYLS must compete for top scholars in order to preserve and enhance its place in the law school rankings.

NYLS place in the law school rankings is that it is unranked, i.e., tied for last place with about 65 other schools.

(3) NYLS must compete for top scholars in order to attract students who will want to study under various luminaries of the profession.

See (1) and (2) supra.

(4) NYLS is merely charging what the market will bear, and distributing the proceeds of these efficient market transactions to key employees on the basis of institutional self-interest, which, in an efficient market, results, in the long run, in socially beneficial outcomes.

This sounds somewhat more plausible if you say it to yourself in a robot voice.

Other people’s money

[ 16 ] November 5, 2014 |

Berkeley law professor Steven Solomon has a curious piece in the NYT today on how and why the Thomas Jefferson School of Law managed to survive, for now, by working out a deal with its creditors after defaulting on its bond obligations this summer.

Solomon argues that it doesn’t make financial sense for private creditors of free-standing schools, or central university administrators of university-affiliated schools (90% of ABA law schools are in the latter category) to close down a law school, at least while there’s any reasonable prospect of bringing revenues and expenses into balance:

[A] closed law school is worth little, or most likely nothing, to creditors. The value is only in the revenue stream it produces and perhaps its building. (You could say the books also, but these are increasingly fewer.) And these days, that revenue stream is down 20 to 40 percent, meaning that if law schools were for-profit businesses, most would be failures.

A troubled law school is like Dracula: hard to kill. Creditors will not do so because even keeping a struggling school alive means there is some possibility of repayment.

Most law schools, however, don’t have huge bonds to service, or at least, the debt they have is borne by the university. For these schools, the calculus is even easier. If a closed law school is worth nothing and a nice big building without students is useless, then keeping it open remains the only option.

Shutting down a law school at a larger university also puts the administrators and others out of work, with few options for employment. They have every incentive to keep the school alive.

This explains why, despite forecasts that up to a third of law schools could close, even the most financially dire have not. Instead, law schools are doing everything they can to push down costs hard and fast. Reports of layoffs of professors, buyouts and job cuts abound even for those with tenure. For years, central campuses sucked money out of law schools. Now they are keeping them alive.

Solomon sees all this as evidence that “the market” is working, if somewhat slowly and imperfectly:

The failure of law schools to close may also simply be a recognition that the market is adjusting to today’s realities. The struggle is pushing down the costs of operating a law school, and law schools are still valuable to universities. It may be tempting to shut them in these difficult times, but it can cost tens of millions to open a new one. Better to invest and cut back on expenses for a while and see what happens.

The status quo is likely to remain as some are forecasting that the bottom is almost here for law schools. This is how economics works: Markets tend to overshoot on the way up, and down.

Stephen Harper, author of The Lawyer Bubble, points out what’s missing from this analysis:

Solomon suggests that creditors made the only deal possible and the school is the ultimate winner. He gives little attention to the real losers in this latest example of a legal education market that is not working: Thomas Jefferson’s students, the legal profession, and taxpayers.

In retrospect, the restructuring agreement between the school and its bondholders reveals that a deal was always likely. That’s because both sides could use other people’s money to make it, as they have since 2008.

According to published reports, interest on the taxable portion of the 2008 bond issuance was 11 percent. Tax-exempt bondholders earned more than 7 percent interest. Thanks to federally-backed student tuition loans, taxpayers then subsidized the school’s revenue streams that provided quarterly interest and principal payments to those bondholders. (emphasis added)

That attending TJSL turns out to be a life-wrecking disaster for a very large proportion of its students is, as Harper emphasizes “irrelevant” in this sort of deeply dysfunctional market:

Thomas Jefferson’s low bar passage rate [54% in 2012] made no difference to most of its graduates because the full-time long-term bar passage-employment rate for the class of 2013 was 29 percent, as it was for the class of 2012.

Meanwhile, its perennially high tuition (currently $44,900 a year) put Thomas Jefferson #1 on the U.S. News list of schools whose students incurred the greatest law school indebtedness: $180,665 for the class of 2013 [Note that this figure doesn't include interest accrued during law school, so the average TJSL graduate has well over $200,000 in law school debt alone at graduation]. According to National Jurist, the school generates 95 percent of its income from tuition.

This invites an obvious question: How did the school survive so long and what is prolonging its life?

First, owing to unemployed recent graduates with massive student loans, bondholders received handsome quarterly payments for more than five years — much of it tax-exempt interest. The disconnect between student outcomes and the easy availability for federal loans blocked a true market response to a deteriorating situation. Bondholders should also give an appreciative nod to federal taxpayers who are guaranteeing those loans and will foot the bill for graduates entering income-based loan forgiveness programs.

Second, headlines touted Thomas Jefferson’s new deal as “slashing debt” by $87 million, but bondholders now own the law school building and will reportedly receive a market rate rent from the school — $5 million a year. Future student loans unrelated to student outcomes will provide those funds.

Third, the school issued $40 million in new bonds that will pay the current bondholders two percent. Student loan debt will make those payments possible.

Precisely.

Solomon doesn’t resist the urge to take a crack at certain unnamed critics of the law school status quo in America, who were supposedly enjoying “shivers of delight” at the prospect of seeing TJSL “keel over.” (Solomon links to an article in which I’m quoted using the latter phrase.) I’m not going to resist the urge to quote a couple of comments from the NYT site regarding his article:

Prof. Solomon’s stance in the face of this debacle is puzzling. He sardonically calls out the “shivers of delight” he attributes to critics such as Brian Tamanaha and Paul Campos who for years have been writing soberly and lucidly about these highly unethical operations that are just conduits of federal loan funds to overpaid faculty and administrators (the president/dean of Thomas Jefferson reportedly makes well over $500,00 per annum). Why Prof. Solomon feels called upon to defend this unconscionable system is a mystery.

To which another reader replies:

Yes, such a riddle wrapped up in an enigma why Prof. Solomon would support this money-printing operation. Someone please get the FBI on the case. We need answers, because I just can’t fathom why Berkeley law professor Solomon would support the Thomas Jefferson School of Law. It really makes no sense. I’m going to have to sleep on this one and see if I come up with some answers in the morning. Better yet, I’ll retain the services of an Ivy League consultant to perform an analysis on why Prof. Solomon would defend this institution. It’s a modern day mystery!

What are the odds of a SCOTUS vacancy by November 2015 and November 2016?

[ 114 ] November 5, 2014 |

Last spring, Jon Chait pointed out that if the Senate flipped to the GOP in November, this would have no significant short-term legislative consequences (with the House under GOP control no major legislation was going to be passed during the remainder of the Obama presidency in any event), but that such a flip would have profound consequences for presidential appointments in general, for potential SCOTUS nominations in particular, and for nominations to replace a right-wing justice in even more particularity.

Given the gradual breakdown of informal political norms regarding presidential appointments, and especially SCOTUS appointments, it’s now arguably become game theory 101 that no GOP-controlled Senate is going to allow Obama to appoint a SCOTUS justice at any point during the last two years of his presidency, and this is especially true for an appointment that would flip the SCOTUS, by replacing anyone other than Ginsberg, Breyer, Sotomayor, or Kagan:

It may seem implausible that Republicans would simply refuse to allow Obama to appoint any justice to such a vacancy. That is only because things that haven’t happened before are hard to imagine. But such a confrontation is not only a logical outcome but the most logical outcome. Voting to flip the Supreme Court would be, if not a political death warrant for a Republican Senator, then certainly taking one’s political life into one’s own hands. Politicians do not like political death warrants — certainly not for the benefit of the opposing party’s agenda.

The modern pattern in American politics is that tactics that are legally available, but never used for reasons of custom, eventually become used. The modern pattern is also that the Republican Party, which is the most ideologically cohesive and disciplined party, leads the way. McConnell did not create this pattern, but he is an important innovator.

McConnell was among the first political leaders to grasp that Republicans had everything to gain and nothing to lose from withholding support for every major element of Obama’s agenda — that the old Beltway folklore, which warned the opposition party that voters would punish them if they appeared obstructionist, had no basis in reality. Most people pay no attention to the details of policy, and form rough judgments on the basis of how much noise and controversy rises out of Washington. “It was absolutely critical that everybody be together because if the proponents of the bill were able to say it was bipartisan, it tended to convey to the public that this is O.K., they must have figured it out,” he confessed. Political scientists understood this reality perfectly well, but it was utterly strange to the old-line purveyors of Washington conventional wisdom. McConnell moneyballed the Senate.

It stands to reason that if and when new powers are laid at his disposal, McConnell will once again deploy them creatively. A potential Supreme Court crisis, in which the Senate simply refuses to let the president fill a vacancy on any remotely normal terms, is one possibility. Others may be brewing at this moment deep within McConnell’s extensive imagination.

What are the odds that such a vacancy will occur? This of course has to be a speculative calculation, but it’s far from completely speculative. We can begin with the general actuarial probabilities that one of the SCOTUS justices will die within the next year, or the next two years (The distinction is important because the practical consequences of, say, a potential 20-month vacancy on the SCOTUS are very different from those of a three or six-month vacancy).

While it’s true that population-wide probabilities are of limited value in regard to particular individuals, it’s also true that the various reasons one can come up with as to why they aren’t going to be accurate in a particular case tend to cancel each other out. For example, the SCOTUS justices are in the American upper class, which means that all other things being equal their life expectancies are better than those of Americans in general, but on the other hand they are doing high-stress work, especially in comparison to most geriatric individuals etc. etc.

Anyway . . .

Approximate probability of at least one SCOTUS justice dying by November 2015: 22.5%

Approximate probability of at least one SCOTUS justice dying by November 2016: 36.8%

Approximate probability of at least one conservative SCOTUS justice dying by November 2015: 14%

Approximate probability of at least one conservative SCOTUS justice dying by November 2016: 26.2%

Of course to the extent these probabilities are accurate, they establish a floor for possible SCOTUS vacancies. They must be enhanced by the odds of a justice retiring for health or other reasons, which are naturally far more speculative. If we assume the combined odds of all such events are equivalent to even half of the mortality risk currently faced by members of the American Politburo Supreme Court, then the odds of a SCOTUS vacancy during the remainder of Obama’s presidency rise to just about 50/50, and the odds of a swing SCOTUS vacancy arising with more than a year remaining in Obama’s term are better than one in five.

Would the latter circumstance lead to the SCOTUS having only eight justices (or less) for more than a year? I agree with Jon that the answer to that question is almost certainly yes. Whether that would create some sort of political or constitutional crisis is another question, regarding which I don’t have an opinion at the moment.

Statistical fun for the whole family: When will there no longer be anyone living who was alive during the 1800s?

[ 78 ] November 4, 2014 |

(I won’t say the 19th century, because pedants will insist that ended on December 31, 1900.)

This is a challenge for statistically-inclined LGMers.

As of today, there are still six people alive with verified birthdates prior to 1900. All are women. Four are Americans, the oldest is Japanese, and the youngest is Italian.

Their ages:

116 years 244 days
116 years 123 days
115 years 165 days
115 years 121 days
115 years 103 days
114 years 340 days

Per social security actuarial tables, an American woman has a life expectancy of .84 years on her 115th birthday, and a 72.95% probability of dying within the next 365 days. The comparable figures on her 116th birthday are .77 years and 77.33%. For her 117th birthday, they are .71 years and 81.82%. For her 118th birthday, they are .66 years and 85.90. For her 119th birthday, they are .60 years and 90.20%. I don’t have comparable figures for Japanese and Italians, but let’s assume they’re the same.

On what future date is there a 50% probability that there will no longer be any people alive who were born in the 1800s?

More on the Infilaw racket

[ 22 ] October 30, 2014 |

My article in the Atlantic on Infilaw’s law school operations has elicited a response from Ken Randall, formerly dean at Alabama, and currently President of Infilaw Ventures, which Infilaw describes as an effort to “extend education to the under-served nationally and internationally, focusing on student needs and outcomes.”

Randall’s reply consists largely of hand-waving, since the main points of my article — that all the Infilaw schools feature terrible employment outcomes, and absurdly high educational debt loads, which I estimate at more than $200,000 on average per graduate — aren’t open to dispute. Randall does claim that Florida Coastal, at least, has had great success in getting graduates with abysmal LSAT scores to pass the bar, although, as I point out in my response, he doesn’t provide the necessary data to test this claim.

I noted in the article that until very recently, Florida Coastal admitted relatively few such students (barely 10 percent of applicants with sub-145 LSAT scores were admitted in 2009; more than half of applicants with such scores were admitted last year). This means that the members of those Florida Coastal classes with large numbers of sub-145 matriculants have yet to attempt to pass the bar.

(A 144 LSAT represents the 23rd percentile score among all test-takers).

Coincidentally, within a few days of the publication of Randall’s letter, bar results for the July 2014 exam became available in Florida, Arizona, and North Carolina, where Infilaw’s three current schools (the consortium is now trying to acquire Charleston Law School, in the face of strong opposition from alumni and others) are located.

The 2014 bar exam results are particularly significant because, with the matriculation of the class of 2011, the Infilaw schools began to relax what admission standards they had maintained up until then, and they have continued to slash them even more radically in the years since. (The entering classes of 2011 made up almost all of the first-time takers of the 2014 bar from the three schools). Here are the 75th, 50th, and 25th LSAT scores for the entering classes at Florida Coastal, Arizona Summit, and Charlotte.

Florida Coastal

2009 153 150 147

2011 151 147 145

2013 148 144 141

Arizona Summit

2009 154 151 148

2011 151 148 146

2013 148 144 141

Charlotte

2009 153 151 148

2011 151 148 145

2013 149 144 141

Here is a percentile conversion chart for LSAT scores. While it is true that it’s important not to overstate the significance of the LSAT as a measure of overall intelligence, or as a predictor of an eventual ability to practice law at an acceptably competent level, it’s also true that there is a genuinely massive difference between an LSAT score in the low 150s and the low 140s.

Indeed, as I noted in my original article, while relatively little correlation can be found between LSAT scores and bar passage rates at higher levels, a strong relationship begins to appear as scores dip toward the 150 range. Prior to 2011, the Infilaw schools clearly strove to keep the median LSAT for their matriculants in the 150s, and to admit relatively few applicants with scores in the 140s, and especially in the low 140s. As the statistics above indicate, three years ago that policy started to give way to the need to keep sending large sums of money to Sterling Partners, the Chicago-based private equity firm that owns Infilaw, and the trend has accelerated since then.

In the article, I predicted that Infilaw graduates would soon begin to fail the bar in large numbers, since what little data existed regarding graduates with LSAT scores in the mid to low 140s (there was little data because until about three years ago only a tiny number of law graduates had such scores) suggested that even turning law school into a three-year bar review course — a pedagogical approach which has less than zero intellectual value, and no practical value for anything other than passing the bar — won’t be able to produce reasonable bar passage rates among these graduates.

The 2014 bar results for the three Infilaw schools provide grim evidence for this prediction. Up until this year, all three schools had mostly managed to maintain bar passage rates roughly similar to the average passage rate in their respective states. For example, Florida Coastal graduates who were first-time takers of the Florida bar passed the exam at rates of between 74.2% and 76.0% between 2010 and 2012 (the passage rate for all first-time takers in the state was between 77.6% and 80.0% during those years). Results were similar for Arizona Summit and Charlotte

This July, FCSL’s first-time passage rate fell to 58% — and that percentage was apparently the highest of the three Infilaw schools. July results for Arizona Summit revealed that 54.4% of first-time takers passed (compared to 89.2% and 88.6% of first-time takers from the state’s other two law schools). Meanwhile, 55% of Charlotte graduates passed the July, 2014 North Carolina bar.

Keep in mind that these results are for 2011 matriculants (and some 2010 part-time matriculants). In other words, there’s every reason to expect these terrible results — imagine graduating from law school with $200,000 in non-dischargeable educational loans and no law license — to get much worse, as the entry standards for the matriculating classes of 2013 at these schools were substantially worse than those for the classes of 2011.

Note too that Infilaw is going to considerable extremes to artificially pump up even these terrible numbers:

In addition, after the article’s publication, a former member of the school’s faculty revealed to me that Florida Coastal is now paying selected graduates $1,200 a month for seven months, if they agree to take bar-review and career-preparation courses for six months (!) rather than attempting to pass the July bar exam subsequent to their graduation.

(I was told last week that at least one of the other two Infilaw schools is employing a similar program).

All this adds up to what appears to be a decision on the part of Infilaw (and, ultimately, Sterling Partners) to engage in the higher educational equivalent of a bust-out scheme. Indeed, I was told recenlty by a faculty member at one of these schools that, during the 2010-11 application cycle, Infilaw made it quite explicit to the school’s faculty that they would no longer have any real say in admissions decisions, after some faculty members warned the school’s administration that many of the students the administration was choosing to admit during that cycle would have little or no chance of ever passing the bar.

And to those who ask why “the ABA” isn’t doing something about this, the answer can be found readily enough by considering the extent to which the ABA’s Section of Legal Education provides a textbook example of regulatory capture:

As [Randall's] letter illustrates, InfiLaw has pursued an aggressive strategy of purchasing the services of prominent figures in the ABA regulatory apparatus, such as himself, Jay Conison, and former Detroit Mayor Dennis Archer, who is currently both the chairman of InfiLaw’s National Policy Board and the head of an ABA committee charged with studying the financial structure of legal education.

This is not, in other words, what one would call a subtle operation.

Your honor, the murder of his parents has left my client an orphan

[ 15 ] October 20, 2014 |

Please take this into account when sentencing him for the crime.

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