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What you need you have to borrow

[ 316 ] January 7, 2014 |

The DOE’s proposed budget for FY2014 extends the benefits of the Pay As You Earn (PAYE) plan to everyone’s eligible Income-Based Repayment (IBR) loans. As of now only people who hadn’t taken out any federal educational loans prior to October 2007 are eligible for PAYE.

These plans work like this: if the federal government (or, prior to 2010, private lenders participating in the FFEL program, but not other private loans) lends you money to go to school, and you suffer a “partial financial hardship,” you can pay a reduced amount on your loans as long as the hardship exists. The definition of a partial financial hardship is that the portion of someone’s adjusted gross income that doesn’t exceed 150% of the federal poverty line isn’t subject to debt repayment as long as the hardship exists. So if you don’t make more than 150% of the federal poverty line you don’t have to make any payments on your eligible educational loans. As for AGI 150% above the poverty line, you have to pay 15% of that under IBR, and 10% under PAYE, toward your loans as long as you’re eligible (eligibility gradually decreases and can eventually disappear to the extent that someone’s AGI increases faster than inflation).

Here’s a concrete example, using the more generous PAYE provisions, rather than the original IBR system. Suppose Bill takes out $100,000 in federal educational loans while going to undergrad and law school, and graduates with $100,000 in principal debt (Bill’s total debt will be higher, since interest will have already accrued on all of the loans that are unsubsidized, which at the post-graduate level is now all of them, but let’s stipulate that Bill paid the interest on the loans while in school to keep this simple). Bill gets a job that gives him an AGI of $40,000 (this is probably about the median for current law school graduates), and he gets raises that outstrip inflation by 25% each year for 20 years. At the end of that period, Bill will have made $74,000 in payments — an amount which will have covered just slightly over half of the interest that accumulated on the loans over this time (interest on federal government loans in income contingent repayment plans does not capitalize, but it does accrue).

Bill will at this point still owe $100,000 in principal and $73,000 in unpaid interest. This combined amount is then forgiven, and the sum of $173,000 is imputed to Bill as income.

Now one one level this is a “good” deal for Bill, who has not been tossed in debtor’s prison, or had his wages garnished (technically speaking anyway), or had liens placed on his property should he have acquired some, etc. In addition, using a standard discount rate Bill has made $44,000 in payments, reduced to net present value, so in terms of NPV he only paid back 44% of a $100K interest-free loan, which is certainly a better deal than he would have gotten from Tony Soprano or Chase. (Depending on his current economic circumstances he may have a big tax bill though. The good news is that if he and his loved ones are still broke he won’t).

On the other hand, what this “deal” adds up to is, under current tax law, a 23% annual hike in what would otherwise be Bill’s effective tax rate, for each year over the next two decades.

IBR and PAYE, in other words, constitute a gigantic functional backdoor tax hike on (primarily) the middle class and striving working class and poor youth of America, by a political establishment that would rather allow higher education to feed unmolested at the trough of government loans, while passing the costs of doing so onto college attenders and taxpayers via the kind of massively regressive and grotesquely generationally-skewed tax hike that could lead to actual social unrest in even this sleepy republic, if it were not so cleverly disguised.

Is it better than nothing? Absolutely. Is it in anyway an acceptable alternative to returning to a system of higher education that allows those who had the poor judgment not to be born to the Quality to pursue that education at a price that won’t require them to indenture themselves to the government? Absolutely not.

Ten years gone

[ 134 ] January 6, 2014 |

Apparently Iraq is once again on the verge of full-blown civil war:

On Thursday, The New York Times startled many—and should have outraged and depressed many more—when it reported that Sunni militants aligned with Al Qaeda were starting a serious uprising in Anbar province in Iraq and threatening to take over Ramadi and Falluja.

You remember those cities—scenes of so much bloodshed in the years after our trumped-up 2003 invasion. In fact, one of three American lives lost in the ten-year war expired in “pacifying” Anbar. Then there are the tens of thousands of Iraqi lives lost in that province, and the utter devastation of Falluja (and lingering health defects). What a tragedy, what a waste, even as war criminal Bush draws praise for his paintings of dogs and Cheney earns applause on Leno. The Times reported:

The violence in Ramadi and Falluja had implications beyond Anbar’s borders, as the Sunni militants fought beneath the same banner as the most hard-line jihadists they have inspired in Syria—the Islamic State of Iraq and Syria, or ISIS. That fighting, and a deadly bombing in Beirut on Thursday, provided the latest evidence that the Syrian civil war was helping breed bloodshed and sectarian violence around the region, further destabilizing Lebanon and Iraq while fueling a resurgence of radical Islamist fighters.

Then yesterday came word that Falluja has fallen to the Al Qaeda rebels and also the key town of Karma (yes, that’s the very apt name). One senior police official in Anbar said Saturday that “Falluja is completely under the control of Al Qaeda.” Helluva job, Bushie.

Then, this morning, Richard Engel of NBC tweeted: “Both US and iran offering to help baghdad fight off al-qaeda in western Iraq. If attack on area comes, could be start of s/t big.”

Law School Lemmings

[ 104 ] January 6, 2014 |

Law School Lemmings is a two-month old web site, that features Twitter messages from prospective and current law students. In legal cyberspace, “lemming” has become a metaphor for the behavior of naive mostly young people, who heedlessly hurl themselves into a world of enormous non-dischargeable debt and poor employment prospects.

The site also provides readers with a handy compendium of resources for prospective law students who are willing to research what they’re thinking about getting into before they actually get into it.

The tweets suggest that among the main reasons people apply to law school are:

(1) The belief that people with law degrees make a lot of money, and that they make a lot of money because they have law degrees.

(2) The belief that being a lawyer (a status which the authors of these tweets conflate routinely with having a law degree) is a prestigious social identity.

(3) The recognition that enrolling in law school provides people with a respectable three-year response to the question, “so what are you up to these days?”

(4) The realization that student loans can pay one’s rent.

(5) Legally Blonde. I’ve never seen this movie, which given my professional interests seems like a major oversight (It really is amazing how often it’s cited as an inspirational text by prospective students, usually in the sort of half-joking way that is itself revelatory).

Anyway, the site is by turns mordantly amusing, sobering, depressing, and inspiring — it’s both a reminder of the vast improvement in the quantity and the quality of the information available to prospective law students today (this week marks the third anniversary of the publication of David Segal’s front-page New York Times article, “Is Law School a Losing Game?”), and of the degree to which the facts about legal education and the legal profession are still percolating slowly into the general cultural consciousness.

What is college (and professional school) for?

[ 146 ] January 2, 2014 |

This post isn’t making an argument. Instead it presents some thoughts and questions regarding higher education, in the context of various recent internet items.

(1) Today’s New York Times features a piece about the arguably predatory tactics of the private agency the federal government employs to help collect student loan debt. Unlike almost any other debt, student loans aren’t dischargeable in bankruptcy except under very narrow circumstances (circumstances that the agency featured in the article has fought successfully to have narrowed even further).

Supporters of the agency’s tactics say they are necessary to hold borrowers accountable. “For every dollar that the aggressive debt-collection firm fails to recoup, that’s a dollar that someone else is going to have to pay,” said G. Marcus Cole, a law professor at Stanford University.

Professor Cole added that if it were easy to discharge student loans in bankruptcy, lenders would simply not lend money to students without clear assets or prospects. “We need a standard like that to be able to allow students who can’t afford an education to be able to borrow,” he said.

This is an odd position to take, given that, after the Obama administration’s 2010 reforms, the overwhelming majority of educational lending in America is now done by the federal government, rather than private lenders. Taxpayers should not be expected to subsidize bad loans, but neither should the government be using student lending as a revenue generator. As a practical matter, egalitarian-sounding arguments about “access” end up being arguments for letting schools charge prices that don’t bear a reasonable relation to whatever return students and their families can expect to get from attending those schools, and then sticking somebody other than those schools, namely students, their families, and taxpayers, with the bill.

(2) On the other hand, higher education is to some extent a public, rather than a merely private, good. As such, arguments for a certain amount of public subsidy make sense. But that subsidy should be direct, rather than channeled through a massively inefficient system of public lending. Speaking of which, I was looking at tuition prices for universities in the 1970s, and was struck by the extent to which the cost of going to even the best public universities at that time was almost purely opportunity cost (which of course is itself always significant).

For example, here’s 1975 undergraduate resident tuition at the flagship university of a state whose government at the time was apparently under the control of communists:

Nominal: $390
2013 Dollars: $1,690

That state is (or rather was) Texas.

(3) Last week the Wall Street Journal published an interesting book review, decrying how in America today undergraduate students and professors (the piece was clearly written from the perspective of a tenure-track professor, rather than that of the precariat of contract instructors/adjuncts who do more and more of the actual classroom teaching at our universities) are locked in what the reviewer termed an invidious mutually assured non-destruction pact:

Education thus has degenerated into a game of “trap the rat,” whereby the student and instructor view each other as adversaries. Winning or losing is determined by how much the students can be forced to study. This will never be a formula for excellence, which requires intense focus, discipline and diligence that are utterly lacking among our distracted, indifferent students. Such diligence requires emotional engagement. Engagement could be with the material, the professors, or even a competitive goal, but the idea that students can obtain a serious education even with their disengaged, credentialist attitudes is a delusion.

The professoriate plays along because teachers know they have a good racket going. They would rather be refining their research or their backhand than attending to tedious undergraduates. The result is an implicit mutually assured nondestruction pact in which the students and faculty ignore each other to the best of their abilities. This disengagement guarantees poor outcomes, as well as the eventual replacement of the professoriate by technology. When professors don’t even know your name, they become remote figures of ridicule and tedium and are viewed as part of a system to be played rather than a useful resource.

To be fair, cadres of indefatigable souls labor tirelessly in thankless ignominy in the bowels of sundry ivory dungeons. Jokers in a deck stacked against them, they are ensnared in a classic reward system from hell.

All parties are strongly incentivized to maintain low standards. It is well known that friendly, entertaining professors make for a pleasant classroom, good reviews and minimal complaints. Contrarily, faculty have no incentives to punish plagiarism and cheating, to flunk students or to write negative letters of reference, to assiduously mark up illiterate prose in lieu of merely adding a grade and a few comments, or to enforce standards generally. Indeed, these acts are rarely rewarded but frequently punished, even litigated. Mass failure, always a temptation, is not an option. Under this regimen, it is a testament to the faculty that any standards remain at all.

As tuition has skyrocketed, education has shifted from being a public good to a private, consumer product. Students are induced into debt because they are repeatedly bludgeoned with news about the average-income increments that accrue to additional education. This is exacerbated by the ready availability of student loans, obligations that cannot be discharged in bankruptcy.

In parallel, successive generations of students have become increasingly consumerist in their attitudes, and all but the most well-heeled institutions readily give the consumers what they want in order to generate tuition revenue. Competition for students forces universities to invest in and promote their recreational value. Perhaps the largest scam is that these institutions have an incentive to retain paying students who have little chance of graduating. This is presented as a kindness under the guise of “student retention.” The student, or the taxpayer in the case of default, ends up holding the bag, whereas the institution gets off scot free. Withholding government funding from institutions with low graduation rates would only encourage the further abandonment of standards.

So students get what they want: a “five year party” eventuating in painlessly achieved “Wizard of Oz” diplomas. This creates a classic tragedy of the commons in which individuals overuse a shared resource—in this case the market value of the sheepskin. Students, implicitly following the screening theory that credentials are little more than signals of intelligence and personal qualities, follow a mini-max strategy: minimize the effort, maximize the probability of obtaining a degree. The decrement in the value of the sheepskin inflicted by each student is small, but the cumulative effect is that the resource will become valueless.

Of course faculty complaints about student apathy and fecklessness are as old as the university itself, but that cautionary historical fact doesn’t mean that structural criticisms of this sort are mistaken.

A friend who teaches undergraduates at a research university told me recently that he is finding it increasingly difficult to resist the enormous pressures pushing in the direction of simply not caring about teaching. Chief among these is that he’s well aware he will never be rewarded by either his administrative superiors (who only care about research, or rather publications) or his students (most of whom only care about receiving the maximum grade for the minimum effort) for the effort he puts into trying to make sure somebody learns something worth learning.

(4) Then we have this curious plea from a law professor, who asks whether we want to treat the education of lawyers like that of hairdressers and people who repair televisions:

Most schools of hair dressing, television repair and the like are free-standing, and not located in universities. The instructors are not called professors, and they do not receive either the pay or the prestige associated with being a professor. There are few, if any distributional requirements. Rather, instruction is devoted almost entirely to the skills necessary to find employment as a hair dresser, television repair person and the like.

One hundred years ago, law schools made a self-conscious decision to be a part of the universities. . . law professors began to teach such subjects as constitutional law because they wanted to be part of the university and not be considered employees of a trade school. Persons teaching law wanted to be professors. They wanted the pay and prestige associated with being professors. Most important, they came to believe that a university rather than a trade school education was necessary for a well-trained lawyer, even if that entailed significant time teaching subjects and skills that might not immediately help the student find employment and writing articles that were not of immediate use for judges. Both lawyers and those who trained lawyers, the founders of modern legal education believed, needed to be aware of developments in the humanities and social sciences, and that such knowledge could be gained only if law schools were vital parts of universities.

What’s curious about this is that the relevant parallel for law schools (post-graduate institutions training people to join a profession) would seem to be medical and dental and veterinary schools, which as far as I’m aware spend almost no time teaching their students about “developments in the humanities and the social sciences” (that is, on liberal education in classic sense). Also, humanities and social science professors may be amused by the notion of law professors wanting “the pay associated with” their particular vocations.

The political aesthetics of marijuana legalization

[ 49 ] January 1, 2014 |

As you’ve probably heard, Colorado has embraced reefer madness. Ironically, Denver was the site of the opening salvo in the federal government’s long war against the semi-innocuous substance:

Seventy-six years ago, a guy named Samuel Caldwell became the first person arrested and prosecuted under a federal charge of selling marijuana, after drug-enforcement agents busted him with 3 pounds of cannabis in his apartment at 17th and Lawrence streets. So historically significant was the moment that the nation’s leading anti-marijuana crusader, Federal Bureau of Narcotics chief Harry Anslinger, came to Denver to watch the trial.

“These men,” Anslinger said of Denver authorities afterward, “have shown the way to other district attorneys throughout the nation.”

A key element in the politics of legalization has involved transforming the optics of the reform movement:

For decades after, [Isaac] Campos said, marijuana activists had little traction in debating prohibition. Cannabis users were a marginalized group numbering far fewer than the masses who agitated to overturn alcohol prohibition. The 1960s and ’70s placed marijuana within the nation’s counterculture, but Campos said that also spurred a backlash against pot when it became a symbol of the culture war.

But in the early 2000s, activist groups pulled themselves together and found several big-money funders, pushing marijuana into the mainstream in a way that is challenging prohibition across the country.

“Now you have these kind of buttoned-up guys in suits with short hair saying, ‘Look, these policies are irrational,’ ” Campos said.

Enter a guy in a suit with short hair in Colorado in 2005.

Five years before Mason Tvert arrived in Colorado, voters in the state had approved medical marijuana but little had yet come from it. Tvert’s goals, though always incremental, were much bigger: He was gunning for legalization. Starting with a campaign on college campuses comparing the harms of marijuana to alcohol, Tvert branched out to municipal campaigns in Denver and a failed statewide initiative before helping launch the successful legalization campaign in 2012.

His strategy was pretty basic. He wanted to get people to care less about marijuana, not more.

“The overall progression is that people care less and less about this issue,” Tvert said. “There might be more interest in it, but overall there’s less hysteria, and it’s becoming more of a normal, public policy issue. It’s become more boring.”

Nevertheless the legal status of the drug in Colorado remains in a gray zone. The drug’s sale for both medical and recreational purposes is still illegal under federal law, even as the current federal government gives assurances that it’s not going to really enforce its laws on the matter. Still, medical marijuana clinics find it’s very difficult to get financing from banks, or credit card companies, because the feds have let it be known that they’re not inclined to tolerate actually loaning money to a legal business if they don’t like that kind of business. It seems likely this attitude will be even more pronounced toward the recreational sale of the substance.

In addition, it’s not yet clear whether the state bar association will permit Colorado lawyers to provide useful legal advice to those in the newly legalized business.

Still, today marks important moment in the nation’s slow march toward more rational policies in regard to mind-altering substances.

A pettiness

[ 118 ] December 31, 2013 |

“Law Grad Working Retail” is a new blog, authored by a 2013 law school graduate who got no-offered by a fancy firm (This means he wasn’t offered a post-graduation position as an associate, after he spent the summer following his second year of law school working at the firm. Such an offer is normally the only way to get an entry-level lawyer job with such firms).

At present, he is spending the Christmas rush season selling perfume at an upscale Chicago department store. The blog seems to be down at the moment, but it is full of mordantly hilarious and sometimes touching vignettes of life as an over-educated and under-employed twentysomething, trying to make sense of what remains, given lifelong exposure to propaganda about the economic value of higher education, a profoundly confusing situation.

The author’s co-workers quiz him regularly on legal matters:

“LawGrad, you a lawyer,” Shaina began, “can Julian sue the store?”

“For what?”

“You know, accusing him of stealing because he’s Mexican.”

“But he was stealing.”

“So he can’t sue?”


Bitterness sometimes threatens to overwhelm him, such as when he realizes that a photograph behind the perfume counter features the very building in which he spent the summer after his 2L year, or when he ducks behind that counter to avoid being seen by a former classmate. But for the most part he retains a healthy sense of perspective on his situation (which includes the practical challenges of living in what sounds like a fairly dreadful $800 per month apartment with his wife, another underemployed recent college graduate, in the Ukrainian Village section of Chicago.)

The blog’s December 28th entry is the best one yet, describing the emotions of people who come to the counter not to buy anything, but to use a bit of the store’s samples of classic colognes to capture a redolent memory of a lost love, or some other moment from their past.

I hope the author finds success and happiness, perhaps as a lawyer, but perhaps more plausibly in the literary world.

Anyway, I let the author know I admired his work, and gave him some unsolicited advice about avoiding repeating some sexist remarks that marred some of his early posts. In the sort of coincidence that poets love and logicians loathe, I shortly thereafter got a call from a very prominent legal academic, who has been vigorous supporter of my work critiquing law schools. Prof. X wanted to give me his view on my two posts last week regarding Prof. Nancy Leong. That view is:

(1) Leong was wrong to file a bar complaint against one of her on line critics.

(2) A lot of Leong’s scholarship is bad.

(3) A couple of Leong’s more recent pieces on remedies, in particular one in the Virginia Law Review, are quite good, and represent the kind of work legal academics in particular can do which may have practical and/or scholarly value.

(4) I don’t know what Leong’s motives were for blogging extensively about her online critics, and filing a bar complaint against one of them, and I shouldn’t have imputed crass careerism as a primary motivator for her actions.

(5) In short, while some of my criticisms of Leong’s actions were justified, I mishandled those criticisms in a way that distracted from legitimate issues (the abuse of the bar’s disciplinary process; what sort of legal academic work has value, and how much should students be expected to subsidize it., etc).

It seems to me on reflection that Prof. X’s observations regarding this matter are just, and that I should apologize to Leong for imputing base motives for her actions, although I still believe that she was very much in the wrong to file a bar complaint against an online critic of some of her scholarship. And so I do so now, in the spirit of the coming New Year.

A snake came to my water-trough
On a hot, hot day, and I in pyjamas for the heat,
To drink there.

In the deep, strange-scented shade of the great dark carob-tree
I came down the steps with my pitcher
And must wait, must stand and wait, for there he was at the trough before

He reached down from a fissure in the earth-wall in the gloom
And trailed his yellow-brown slackness soft-bellied down, over the edge of
the stone trough
And rested his throat upon the stone bottom,
And where the water had dripped from the tap, in a small clearness,
He sipped with his straight mouth,
Softly drank through his straight gums, into his slack long body,

Someone was before me at my water-trough,
And I, like a second comer, waiting.

He lifted his head from his drinking, as cattle do,
And looked at me vaguely, as drinking cattle do,
And flickered his two-forked tongue from his lips, and mused a moment,
And stooped and drank a little more,
Being earth-brown, earth-golden from the burning bowels of the earth
On the day of Sicilian July, with Etna smoking.
The voice of my education said to me
He must be killed,
For in Sicily the black, black snakes are innocent, the gold are venomous.

And voices in me said, If you were a man
You would take a stick and break him now, and finish him off.

But must I confess how I liked him,
How glad I was he had come like a guest in quiet, to drink at my water-trough
And depart peaceful, pacified, and thankless,
Into the burning bowels of this earth?

Was it cowardice, that I dared not kill him? Was it perversity, that I longed to talk to him? Was it humility, to feel so honoured?
I felt so honoured.

And yet those voices:
If you were not afraid, you would kill him!

And truly I was afraid, I was most afraid, But even so, honoured still more
That he should seek my hospitality
From out the dark door of the secret earth.

He drank enough
And lifted his head, dreamily, as one who has drunken,
And flickered his tongue like a forked night on the air, so black,
Seeming to lick his lips,
And looked around like a god, unseeing, into the air,
And slowly turned his head,
And slowly, very slowly, as if thrice adream,
Proceeded to draw his slow length curving round
And climb again the broken bank of my wall-face.

And as he put his head into that dreadful hole,
And as he slowly drew up, snake-easing his shoulders, and entered farther,
A sort of horror, a sort of protest against his withdrawing into that horrid black hole,
Deliberately going into the blackness, and slowly drawing himself after,
Overcame me now his back was turned.

I looked round, I put down my pitcher,
I picked up a clumsy log
And threw it at the water-trough with a clatter.

I think it did not hit him,
But suddenly that part of him that was left behind convulsed in undignified haste.
Writhed like lightning, and was gone
Into the black hole, the earth-lipped fissure in the wall-front,
At which, in the intense still noon, I stared with fascination.

And immediately I regretted it.
I thought how paltry, how vulgar, what a mean act!
I despised myself and the voices of my accursed human education.

And I thought of the albatross
And I wished he would come back, my snake.

For he seemed to me again like a king,
Like a king in exile, uncrowned in the underworld,
Now due to be crowned again.

And so, I missed my chance with one of the lords
Of life.
And I have something to expiate:
A pettiness.

D.H. Lawrence

“Redskin” and the historical record

[ 122 ] December 31, 2013 |

Yesterday I quoted a column by George Will, which concluded with the absurd implication that because “Oklahoma” is derived from a compound of two Choctaw words which taken together mean “red people,” Pajama Boy and his ilk are engaging in liberal fascism etc. by trying to force the Washington football franchise from changing its now-offensive name. That post links to an article which demonstrates conclusively that George Marshall, who changed the team’s nickname to Redskins from Braves, was an 180-proof racist in regard to African Americans. The article, however, also strongly implies that Marshall made this change because the word redskin was more offensive to non-racist sensibilities than the team’s former name.

The commenter Bloix pointed out in comments that there seems to be no real evidence for this implication, or for the article’s assertion that the origin of the name is connected to the practice of scalping:

The linked article does not explain the history of the name. It merely observes, accurately, that George Marshall was a racist who hated black people. The history of the name is this:

In 1930, Marshall bought a failing team, the Newark Tornadoes, and moved it to Boston. At that time, pro football was a marginal sport, far less popular than baseball (and college football, horse racing, and boxing, for that matter), and teams generally couldn’t afford to build their own stadiums. Marshall’s team played at the ball park of the then-Boston baseball Braves, and Marshall gave the team the same name – it was common for football teams to take the name of the baseball team whose park they played in.

After one season, the team left the Braves’ field and moved to Fenway Park, home of the Red Sox, and Marshall needed to change the name. He decided to stay with the Indian theme he’d started with Braves, both for continuity and because his coach, Lone Star Dietz, claimed to be part Sioux. The name Redskins had the added advantage of echoing the name Red Sox.

That’s the origin of the name. Although Marshall hated black people, there’s no indication that he had any animosity towards Indians, and as noted he hired a coach who he believed was part Indian (there’s evidence today that Dietz was not Indian, but Marshall wouldn’t have known that). There was a strain of Southern racism that had romanticized views of the noble red man, and Marshall may have shared those attitudes.

It’s worth noting, IMHO, that today the Redskins have many loyal fans from the African-American community of DC, and that the Redskin logo is, so far as I am aware, the only logo in any major sport that depicts a dark-skinned person respectfully. You can travel around the DC area in football season and you will see dozens of people prominently displaying – on hats, jackets, sweats, and car stickers – a portrait of a handsome and dignified man whose skin color is the same as theirs.

BTW, the claim that “redskin” originates from scalping or skinning is false. It is absolutely true that some state and local governments offered bounties for Indian scalps, but there are no instances of the use of the word “redskin” in that context.

It’s been established the origin of the word “redskin” is first found in early 19th century translations of Indian statements in meetings and negotiations with whites (both in English and in French, where it appears as peaux rouges). For example, when representatives of a number of Indian tribes met with President Madison in the White House, one of the Indian chiefs made a statement that includes a phrase translated as “red skins.” Not surprisingly, the Indian leaders had no word for Indians collectively, and they settled on the term meaning “red skin” in their various languages. So the word originated in statements made by Indians to refer to themselves in dealings with whites.

James Fenimore Cooper picked it up and put in the mouths of his Indian characters — entirely respectfully –in his Leatherstocking Tales (e.g. “The Last of the Mohicans”) and from there it entered the vernacular of ordinary Americans. The negative implications did not originate with the word, but with people who later adopted the word.

I’ve linked to the leading article on this issue in comments on this blog in the past. Anyone interested can find it easily – it was written by a Smithsonian Institution anthropologist and linguist whose name escapes me.

The article Bloix references is here.

There are of course excellent reasons for changing the franchise’s name, but the claim that George Marshall changed the team name from Braves to Redskins because the former wasn’t racist enough for him is apparently not one of them, and I should have considered Tomasky’s argument to that effect more critically before linking to it.

The higher learning in America

[ 105 ] December 30, 2013 |


Final graph of the year’s final column by the nation’s leading conservative opinionator:

Finally, a regularly recurring fever of progressive indignation about the name of Washington’s professional football team again waned without success, which means Oklahoma will not have to change its name. “Oklahoma” is a compound of two Choctaw words, “okla” meaning people, and “homma” meaning red.

Background on the origins of Washington’s NFL franchise’s nickname here.

Apropos of nothing in particular I have been told by German speakers that their language includes a term that means “a face that is crying out for a fist.”

Universities, money, and intellectual freedom

[ 74 ] December 28, 2013 |

Following up on Erik’s post referencing today’s NYT piece about the potentially invidious effects of industry funding academia (or academics), I’d like to throw out a few hypotheticals, some of which are closely related to some current goings-on in legal academia that I won’t discuss directly at this time. These hypotheticals all touch on the increasingly fraught issue of the extent to which donors should be given the power to shape the intellectual structure of an institution via restricted gifts. (The issue is increasingly fraught because universities are becoming increasingly dependent on private giving in general, and restricted donations in particular, to fund their operations).

Of course all restricted gifts dedicated to supporting research have this effect to some extent: for example if someone endows a chair for the study of constitutional law or financial regulation, that means that relatively more of the institution’s resources will be dedicated to the study of constitutional law or financial regulation than would otherwise be the case. So all restricted gifts are “ideological” in this sense. But what about the following?

A chair in originalist constitutional theory.

A chair in the legal rights of the unborn.

A chair in reproductive rights.

A chair in Marxist legal thought.

A free enterprise chair.

Which of these, if any, would be problematic, and why? Should a dean consult with a law school’s faculty before accepting a donation for some of these purposes? Does it matter if the school is public or private? What other considerations ought to be relevant?

. . . to sharpen the question a bit, at what point to the terms of the gift become sufficiently restrictive that it ought to be rejected? As phrased, all of these gifts strongly imply the donor’s desire to see a certain political project advanced. But what if the terms of the gift are explicit? For example: “This chair will be dedicated to producing scholarship that advances [originalist constitutional theory, the legal rights of the unborn, reproductive rights, Marxist legal thought, the legal protection of free enterprise].”

The myth of the government/public interest backup plan

[ 42 ] December 28, 2013 |

From my correspondence, it appears a significant number of potential law students still think of becoming a government lawyer as a kind of backup plan, if their aspirations to get a job with a large law firm don’t work out.

There are at least two big problems with this:

(1) Public law jobs have become far more competitive than they used to be, for three reasons. First, funding cutbacks have created hiring freezes and slowdowns at all levels of government hiring. Second, the severe contraction in the legal employment market means there are far more experienced attorneys now who are willing to consider taking what are advertised as entry-level jobs. Third, the combination of spiraling law graduate debt (the average law graduate now has around $150,000 of educational debt by the time he or she becomes licensed to practice) and the Public Service Loan Forgiveness program, which forgives all federal educational debt after tens years of non-profit employment (and doesn’t treat the forgiven amount as taxable income) means that from a purely economic perspective, government legal jobs are far more valuable than they used to be to law graduates, despite usually featuring modest entry-level salaries.

(2) For those who are fortunate enough to get such jobs (getting one now generally requires a demonstrated commitment to government legal work, that pretty much disqualifies people who aim for big firm jobs and miss), holding onto them is now apparently much harder than it used to be, at least in places like New York City. A correspondent writes:

I do not know about anything outside of my own observations in NYC, but I have no doubt that there is similar trend in other big jurisdictions with an enormous glut of new lawyers.

Basically, it is like this:

In the olden days, i.e. 15 years ago and more, it was normal for the middle to lower portion of a law school class to search for jobs in small law and government. Prosecutors offices had slightly higher standards than PD offices. PD offices were often seen as enclaves of law students with low GPAs. Most of the lawyers who wanted to work for DA/PD offices could find a job within a year. If you wanted to stay in these jobs, you could. Even if you stayed working in a non-prestigious trial unit for 10 years, it was easy to stay under the radar, collect raises every few years, and perhaps wait for a higher position to open. Or you could go solo by joining the (now dwindling) assigned counsel programs.

Now, the PD offices in NYC all get thousands of applications a year. NYC has five or six PD offices, two per borough except in Staten Island. Also, there are other PD organizations like the Appellate Defenders. There are other family law organizations, civil Legal Aid, etc. It is very confusing, there are tons of government funded organizations and mini-firms.

All of them now follow a more-or-less standardized application timeline due to the enormous floods of applications. It is like applying to law school all over again. You submit in the fall and provide cover letters, resumes, answers to essay questions, writing samples, letters of recommendation, etc. They spend a few months going through the thousands of applications, grant a few hundred interviews, and then pick a few lucky winners.

Most of it is based on nepotism. As I mentioned, I won a felony trial from a case I took over from one of the top trial attorneys at the Bronx defenders, yet they would not even grant me an interview this year (although they are interviewing some 3Ls). This proves beyond any doubt that this organization and others choose candidates based on factors other than experience (such as connections and other behind the doors decisions that they never have to answer for).

But even if you get hired by one of these DA/PD organizations, it is not the end of the struggle. In the DA/PD organizations, you are assigned to misdemeanors for the first two years. Many organizations can get rid of you after the first two years for any reason, or they can promote you to low-level felonies, grand jury stuff, that sort of thing. Some people move between departments, like they go from vehicular crimes to sex crimes to narcotics, etc. But for the most part, the offices now look more like pyramids than they did in the olden days. If you get stuck doing low-level crimes for more than a few years without getting promoted to a higher level of responsibility or supervisory role, you will be booted eventually. Why would they keep you doing low level crimes for more than a few years, paying you raises every two years? Instead, they can replace you with a new desperate law student who can do the same work for the lowest possible pay grade.

Now, plenty of people voluntarily leave DA/PD offices for greener pastures after a few years — which has always happened. But the pastures are not so green on the other side, so there is less of this. Most people know that going solo is risky at best.

I feel lucky that I made close to what I would have as an entry level PD this year (without benefits). It makes me feel like I actually have more job security and a greater capacity to increase my income by continuing to figure out the best ways to market my niche services. And I may get onto some of the assigned counsel panels in the next few years, which would give me a steady income (the bar associations block new lawyers from these panels until they have a few years of experience). In some ways, I feel lucky to have started the solo journey now instead of ending up here after doing a few years with PD organizations and suddenly getting booted because I did not make friends with the right supervisor. It is better to get the foundation of the solo practice started sooner rather than later, I guess.

But that is also scary when you think about it. Again, the DA/PD organizations are a bit of a scam for the thousands of people who think that they can stay in government jobs to wait out the 10-year loan forgiveness…because many of them will not last that long.

When will technology undercut sports attendance?

[ 146 ] December 26, 2013 |

Here are two assertions that don’t seem contestable:

(1) The cost of attending most major sporting events has been rising in real terms for decades.

(2) The cost of watching most major sporting events via remote technology has been plunging, especially in recent years.

The second point might require a bit of elaboration. “Cost” in this context means the relation between the price of watching a sporting event other than by attending in person, and the quality of that experience. That experience has been improving at a very rapid rate in recent years: for example, watching a high definition broadcast of a sports event on a 50-inch screen costs a sports fan today perhaps one-twentieth of what purchasing such an experience would have cost a decade ago. (HDTV is an especially superior technology for sports viewing).

In addition, the variety of games available for remote viewing, and the technologies available for viewing them other than standard televisions (computers, mobile devices etc.) are vastly superior to what they were even a few years ago.

As a simple matter of economics, these trends can’t both continue indefinitely. 40 years ago the average NFL ticket cost $30 in 2013 dollars: this year the average is probably over $100 when you include the cost of private seat licenses. And the cost of parking and concessions has risen even faster than ticket prices. Meanwhile a giant television with a superb picture costs in real dollars what what a 12-inch portable black and white TV that pulled in a fuzzy broadcast of two games per weekend cost a generation ago, and you can for a fairly modest price watch literally every NFL game of the season on your IPhone if you so desire.

On the other hand . . . people have been predicting that broadcasting sports events would kill the live gate ever since the invention of television, and pretty much precisely the opposite has happened: as more sports have become available on TV (and now through other technologies as well), the live gate for major sports events, in America at least, has continued to grow.

Still, it must be true that there’s a tipping point. Whether we’re beginning to see the signs of such a tipping point is an open question, but it’s perhaps notable that both NFL and major college football attendance has dipped a bit over the past few years.

I would guess that football is much more vulnerable to the live gate being undercut by viewing technology than baseball for a couple of reasons:

(1) The experience of watching baseball is much more degraded, aesthetically speaking, by remote viewing than that of watching football (In this regard basketball, which is pretty much perfect for TV, should be even more vulnerable, while hockey should be even less vulnerable than baseball).

(2) Football is played in terrible weather far more often than baseball.

But again, while it seems that live attendance at major sports should suffer from the combination of rising prices for actual attendance and the declining cost of remote viewing, there’s still little evidence this is actually beginning to happen in a significant way. Still, this now more than 20-year-old passage from Nick Hornby’s Fever Pitch remains resonant:


Pete and I left around twelve, I guess, for a three p.m., Sunday afternoon kick-off, and got there just in time. It was an awful game, unspeakable, a nil-nil draw in freezing conditions … and it was live on television, so we could have stayed at home. My powers of self-analysis fail me completely here: I don’t know why we went. We just did.

I didn’t see a live League game on television until 1983, and neither did anyone else of my generation. When I was a kid there wasn’t so much football on TV: an hour on Saturday night, an hour on Sunday afternoon, sometimes an hour midweek, when our clubs had European games. We got to see an entire ninety minutes only very rarely. Occasional England games were shown live; then there was the FA Cup Final, and maybe the European Cup Final … two or three live club games a year, maximum.

That was obviously ridiculous. Even Cup semi-finals, or Championship deciders, weren’t televised live; sometimes the stations weren’t even allowed to show us highlights. (When Liverpool just pipped QPR for the Championship in 1976, we got to see the goals on the news,but that was all; there was a whole set of incomprehensible rules about TV coverage that no one understood.) So despite satellite technology,and colour televisions, and 24-inch screens, we had to sit with our ears pressed against transistor radios. Eventually the clubs realised that there was big money to be made, and the TV companies were happy to give it to them; the behaviour of the Football League thereafter has resembled that of the mythical convent girl. The League will let anybody do anything they want – change the time of the kick-off, or the day of the game, or the teams, or the shirts, it doesn’t matter; nothing is too much trouble for them. Meanwhile the fans, the paying customers, are regarded as amenable and gullible idiots. The date advertised on your ticket is meaningless: if ITV or BBC want to change the fixture to a time more convenient to them, they will do so. In 1991, Arsenal fans intending to travel to the crucial match at Sunderland found that after a little television interference (kick-off was changed from three to five),the last train to London left before the game finished. Who cared? Just us, nobody important.

I will continue to attend televised games at Highbury, mostly because I’ve already paid for my ticket. But, sod it, I’m not going to travel to Coventry or Sunderland or anywhere else if I can sit at home and watch the match, and I hope lots of other people do the same. Television will notice our absence, one day. In the end, however much they mike up the crowd, they will be unable to create any atmosphere whatsoever, because there will be nobody there: we’ll all be at home, watching the box. And when that happens, I hope that the managers and the chairmen spare us the pompous and embittered column in the programme complaining about our fickleness.

See also:

This sounds unfortunate

[ 78 ] December 24, 2013 |

Martin Scorsese and Leonardo DiCaprio certainly have the talent to make a good movie about Wall Street scandals, but per Yglesias it sounds like they’ve produced a film that will find great favor in the board rooms of the great and the not so good:

By focusing on cases of egregious criminal fraud the movie elides the real scandal, which, as is often the case, is about what’s legal. If you have a 401(k) plan through your employer or an IRA or other investment account through your bank, the financial institution may try to set you up with a “financial adviser” to help steer your investment decision-making. This person will claim to be giving you advice in your own interest but in fact is under no legal or professional obligation to advance your interests. His real job is to steer you into high fee products that are lucrative for his employer. This is not criminal fraud that the FBI will investigate. It’s not a civil offense that the SEC will investigate. It’s not illegal. The Labor Department tried to change the rule and impose a fiduciary standard at least for employer-sponsored plans but congress stepped in to tell them no. You’re never going to have a world without some sociopaths breaking the rules (read Josh Levin’s amazing reporting for a spectacular example) but what we have is a world where congress steps in to make sure that deliberately peddling bad advice to middle-class savers isn’t against the rules.

At any rate, a few different things are going on in the movie but the main thing is that Stratton Oakmont is operating what’s called a “boiler room” (see 2000’s Boiler Room for a more straightforward treatment) where you use aggressive sales tactics to market thinly traded very cheap stocks that trade “over the counter” rather than on an exchange. Your aggressive sales tactics work better if you lie (“pump and dump,” which is illegal) and can be made even more profitable if you turn yourself into a “bucket shop” (where your transactions are basically fake, which is also illegal).

This kind of fraud is a real thing, and it especially happens when you have a prolonged boom (as we did in the 1980s and 1990s stock market), but I think that if you’re a major Wall Street executive or work for one of the bank lobbies you have to be very happy with this film. Indeed, very happy in general that Hollywood keeps churning out stories with this kind of focus. Everything Stratton Oakmont is shown as doing has been illegal for years and the enforcement, though imperfect, is real. What’s more, like the more recent story of Bernie Madoff, they weren’t just perpetrating frauds they were a whole fake firm. These guys in this movie aren’t real Wall Street guys. They have tacky outer-boroughs accents and no education. The idea that the FBI and the SEC need to do a more rigorous job of keeping sleazy drug-addled deviants from posing as real stock brokers and investment advisers is the most comfortable possible reform proposal for the real Titans of Finance, most of whom are perfectly respectable people with respectable accents and real degrees from prestigious universities. You have to rein them in not with exciting wiretaps but with boring regulations on leverage and liquidity. And this doesn’t even begin to touch the larger questions around the financialization of the economy.

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