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Jeb Bush is running for president

[ 199 ] December 16, 2014 |


Of the United States of America.

OK technically he’s “actively exploring the possibility.” We all know that’s like actively exploring the possibility of of drinking this can of Dale’s Pale Ale I just opened.

So, campaign slogans?

I’ll start: “In five years the Bush family will be completely legitimate.”

BTW Chelsea Clinton becomes constitutionally eligible for the office in February. (If you turn 35 after the general election but before the Electoral College vote are you eligible? What about after the College but before the inauguration? What if you’re from a culture that calls people “35” during their 35th year of life? I’ve heard Germans do this. They’re not constitutionally eligible though).

Law school fires (or otherwise terminates with extreme prejudice) nearly 60% of its faculty

[ 19 ] December 13, 2014 |


Long-time LGM readers may remember the Western Michigan Thomas M. Cooley Law School from such posts as “Change the Name if the Product’s Weak,” “If Your Lies Are Really Egregious They Don’t Count as Fraud,” and “SLAPP Suits As Experiential Learning.”

Because certain irresponsible critics have been spreading what WMUTMCLS’s Dean and President for Life Don LeDuc has characterized as the “myth” that it has become difficult for graduates of low-ranked law schools to get jobs as lawyers, the school’s federal student loan conduits enrollment has declined from just under 4,000 JD students four years ago to 1,754 this fall. This led WMUTMCLS to announce in August that it was laying off some faculty, although as is the way of such things, the school was very vague regarding how extensive these layoffs would be.

“The process is not complete. I don’t have numbers for you,” Robb told the Lansing City Pulse last Thursday. “And I don’t know that we will release numbers, frankly.”

One source told the Lansing City Pulse that layoffs could be higher than 50 percent. Asked about the number, Robb told the publication, “I think you’re hearing wrong.”

This week’s publication of ABA 509 disclosure forms answers the question that Cooley wouldn’t.

Full Time Faculty:

Spring 2011: 101

Fall 2011: 106

Spring 2012: 110

Fall 2012: 103

Spring 2013: 117

Fall 2013: 115

Spring 2014: 119

Fall 2014: 49

Holy new gilded age Batman. (Among other things these numbers illustrate how LeDuc and Co. seemed to have made the mistake of believing their own propaganda about how prosperity was just around the corner, as the school increased the size of its faculty even after its applicant pool collapsed.)

I guess firing 70 of your 119 full-time faculty in one fell swoop in the kind of gust of creative destruction that’s necessary to protect those precious non-profit margins, that allowed the school to pay President for Life LeDuc $675,626 last year, and kicking $373,550 to the school’s founder Thomas Brennan, for what the school estimated to be five hours of “work” per week, while still maintaining a net surplus of $2.5 million in revenues over expenses. (Additionally I’ve been told — although I will hasten to add before I get served again that I don’t know whether this is actually the case — that WMUTMCLS is a veritable hive of nepotism for the relatives of the school’s powers that be, comparable in this and in no other regard, to a classic Francis Ford Coppola film).

I can’t remember at the moment if I’ve already written about the possibility that law schools will use the genuine need for significant financial restructuring as an excuse to “down-size,” in the all-too-common sense of getting rid of people in reverse proportion to both the magnitude of their salaries and the extent to which they do any useful work.

And sure enough, when we look at the category “Deans, librarians and others who teach” (this doesn’t include adjuncts, who are by definition part-time) we find:

Spring 2011: 25

Fall 2011: 26

Spring 2012: 31

Fall 2012: 28

Spring 2013: 26

Fall 2013: 27

Spring 2014: 24

Fall 2014: 26

This principle explains why staff are always fired before faculty, junior faculty are always fired before their senior colleagues, and why the most useless and highly paid administrators will, along with other remarkably adaptive species, inherit the post-apocalyptic earth.

Law school first year enrollment lowest since 1973 (and other assorted data points)

[ 29 ] December 12, 2014 |

The ABA has put up 509 disclosure forms for 2014. A few preliminary tidbits for possible discussion:

(1) ABA schools enrolled 37,924 1Ls this year. This is the lowest total since 1973, when there were 26% fewer ABA law schools, and student-faculty ratios were approximately 35 to 1 (they were 13.6 to 1 last year).

(2) LSAT scores for low-ranked schools continue to plummet to heretofore unprecedented depths. Not surprisingly, the Infilaw schools are once again leading the way, with Charlotte recording an astounding 142 median LSAT score for its entering class (17.8th percentile) and an even more eyebrow-raising 138 for the class’s 25th percentile. This means that a quarter of the entering class scored somewhere in the bottom ten percent of all LSAT test takers (To score in the 10th percentile of the test, you have to get 34 of 100 questions correct, on a test where answering randomly will produce on average 20 correct answers. Another way of putting this is that people with 138 LSAT scores are answering about one of every six questions correctly, excluding random effects. This is on a test where a few people record perfect scores every year, and thousands of test takers answer at least five of every six questions correctly.)

(3) This year’s 509s include much more information regarding transfers. In this regard, Washington DC law schools reveal legal academic nature red in tooth and claw: American lost 100 1Ls (more than a fifth of the class) to other law schools, with George Washington alone taking 54 American transfers (Georgetown took another 13). A startling aspect of this crosstown traffic is that the median 1L grades of the transfers George Washington accepted were barely above the median 1L grade curve at American, which appears to mean that GW took any American 1L in the top half of the class who applied for transfer. The median LSAT for 2013 GW matrics was in the 92nd percentile, while American matrics were in the 71st, which illustrates how the transfer system is the equivalent of money laundering as applied to academic credentials (only the LSATs of 1L students count for rankings purposes.)

(4) An even more flamboyant example of this game is provided by the hostile symbiosis between Arizona State and yet another Infilaw outfit, Arizona Summit. ASU took 66 transfers, meaning that more than a third of this year’s 2L ASU class spent their first year of law school somewhere else (last year’s ASU 1L class was only 128 students). Exactly two thirds of these transfers — 44 — were escapees from Arizona Summit. Median LSAT for 2013 ASU matrics: 86th percentile. Median LSAT for 2013 Arizona Summit matrics: 23rd percentile.

The upper middle class

[ 99 ] December 11, 2014 |

Chris Rock, New York magazine interview:

For all the current conversation about income inequality, class is still sort of the elephant in the room.

Oh, people don’t even know. If poor people knew how rich rich people are, there would be riots in the streets. If the average person could see the Virgin Airlines first-class lounge,* they’d go, “What? What? This is food, and it’s free, and they … what? Massage? Are you kidding me?

*Offers spa treatments, “expert mixologists,” and, at Heathrow, a “lodge and viewing deck” with an “après-ski vibe.”

Once a social system has moved all or nearly all of its members above the level of brute starvation, wealth and poverty soon become inherently relative concepts, but that doesn’t make them any less real. One of the consequences of living in an extremely rich country which features increasingly extreme wealth stratification is that people who would have been considered rich fifteen minutes ago are suddenly part of the “upper middle class.”

Take, for example, what has happened to economic relations within the American university. It’s well known that American colleges and universities must increase their operating budgets every year at rates faster than inflation because of reasons, and therefore it becomes inevitable, given the contemporary economic structure of the country as a whole, that these institutions will spend enormous amounts of time and money currying favor with super-wealthy potential donors. Giving money to a “non-profit” educational institution provides the masters of the universe with sweet tax breaks, while allowing them to indulge in the ego-gratifying pleasures of plastering their names all over various buildings and centers and even whole schools and colleges.

And so it has come to pass that the highest-paid people within universities (aside from some football and men’s basketball coaches, which is a subject for another day) are those employees who are responsible for, respectively, kowtowing before the great and the good, and investing the proceeds gathered up by successful administrative mendicants.

Thus the highest-paid employee of Columbia University is this guy, who runs the school’s endowment, and who was paid more than five million dollars in FY2013 for his trouble.

Meanwhile the university’s president, Lee Bollinger, had to scrape by on a hair under $3.4 million in total compensation. (Bollinger was one of 36 presidents of American private colleges and universities who were paid more than one million dollars last year).

Bollinger got into academic life more than 40 years ago as an assistant professor at the University of Michigan’s law school. By 1979 he was a full professor, and was pulling down $31,500 per year ($103,000 in 2014$). The following year the university’s new president, Harold Shapiro, earned a salary of $75,000 ($215,000 in 2014$).

Now the thing is I bet Lee Bollinger doesn’t feel very rich, despite the fact that he makes, in real, inflation-adjusted terms, more money every two weeks than he did in an entire year back when he was a full professor at an elite law school, before he got into the administrative rackets (Bollinger was provost at Dartmouth and president of Michigan before ascending to his present position).

After all Bollinger’s job consists largely of hobnobbing with people who “earn” more in two weeks than he makes in year. And some of those people make less in a year than some other people make every two weeks.

Which is how an academic who makes three and a half million per year ends up feeling sort of “upper middle class.”

Law school applications continue to decline

[ 34 ] December 8, 2014 |

The first applicant data are now available for this law school admissions cycle. They indicate that applications will be down for the fifth straight year, although it appears the pace of decline is likely slowing. The less than completely bad news, from the perspective of law school and university administrators, is that the year over year decline in applicants (8.5%) is considerably smaller than the comparable decline at the same point in the previous two cycles. If this pattern holds — that is, if the year over year decline in applicant totals lessens over the course of the entire cycle — the final number of applicants may be down only slightly, or may even flatten out completely, compared to last year. (On the other hand, applicant totals declined by 38% between 2010 and 2013, so a repeat of the 2013 numbers is likely to still be a very big problem for a number of schools.)

Assuming for the moment that the current 8.5% decline holds for the entire cycle, this will yield a total of 49,600 applicants (ABA law schools admitted 60,400 applicants four years ago). Given the tuition-dependent structure of most law school budgets, it’s no surprise that admission standards have been declining even faster than applicant totals, with the result that while 55.6% of all applicant were admitted to at least one school ten years ago, last year that total had risen to 76.9%, and that number was probably a percentage point or two higher for this fall’s entering class.

If we assume that the trend toward open admissions policies at the bottom 50 or so schools continues, and that 80% of all applicants are admitted somewhere, this will yield 39,670 admissions, which in turn, given the consistent tendency of 86% to 88% of all admitted applicants to matriculate at some school, produces a predicted first year class of 2015 of approximately 34,500.

This would mean that, while the 201 ABA law schools operating in 2009-2011 matriculated a total of 153,900 1Ls in those three years, the 203 ABA law schools (yes, the ABA is still approving more law schools, while none have as yet closed) operating in 2013-15 will matriculate a total of 111,975 in those three years — meaning that the average school will have gone from having (leaving aside attrition and the fractional complexities created by part-time four-year programs) 766 JD students to 552: a 28% decline.

And because schools have been offering larger and larger “scholarships” (tuition discounts, subsidized by students paying full boat) to more and more of their students, the decline in tuition revenue is on average probably even larger. And of course “on average” is a deceptive concept: while schools near the top of the legal academic hierarchy have for the most part neither reduced their class sizes nor their effective tuition rates, many of those in the middle and toward the bottom are getting hammered by declines in tuition revenue of 40% and 50% (many low ranked schools depend on tuition for 90% to 97% of their operating revenues).

It’s not surprising that all this has resulted in hiring freezes, aggressive buyout programs, and straight-up layoffs of staff and even tenure-track and tenured faculty at some schools. What is perhaps a bit surprising is that no school has actually closed yet, or formally merged with an erstwhile competitor.

This can probably be explained by two factors:

(1) As Thomas Jefferson’s (the law school, not the president, after which it was so aptly named, considering his habit of borrowing money he couldn’t pay back) recent bond restructuring illustrates, creditors won’t shut down a free-standing law school if there’s any reasonable prospect that the school’s income stream going forward will be more valuable than its — usually modest — liquidation value. And that income stream will still consist of millions and even tens of millions of dollars of annual tuition revenue, courtesy of unsecured loans, provided unwittingly by taxpayers to people who need to demonstrate to such schools that they have the ability to sign their names to government loan documents.

(2) University central administrators don’t want to incur the reputational costs of closing a law school, at least until it becomes perfectly clear, as Richard Nixon used to say, that no amount of restructuring and economic “recovery” is going to stop the red ink from flowing in the foreseeable future.

We shall see if that time is now approaching. In any case, it’s good to see that the law school reform movement has produced at least some significant pressure toward the eventual rationalization of the economic structure of American legal education.

The market at work

[ 92 ] December 8, 2014 |


New England 23
San Diego 14

Game situation:

San Diego at 8:41
S.Gostkowski kicks 65 yards from NE 35 to end zone, Touchback.
1st and 10 at SD 20 (8:41) (Shotgun) P.Rivers pass short middle to D.Brown to SD 44 for 24 yards (D.McCourty, B.Browner).
1st and 10 at SD 44 (7:56) (Shotgun) P.Rivers pass incomplete short left to M.Floyd [A.Ayers].
2nd and 10 at SD 44 (7:49) (Shotgun) P.Rivers sacked at SD 43 for -1 yards (sack split by Chr.Jones and S.Siliga).
3rd and 11 at SD 43 (7:06) (Shotgun) P.Rivers right end to 50 for 7 yards (D.McCourty).
4th and 4 at 50 (6:28) N.Novak punts 38 yards to NE 12, Center-M.Windt, fair catch by D.Amendola.
SD DRIVE TOTALS: 4 plays, 30 yards, 2:23
New England at 6:18

How much do these guys get paid to figure this stuff out?

Is this money being well spent?

This paper examines a single, narrow decision—the choice on fourth down in the
National Football League between kicking and trying for a first down—as a case
study of the standard view that competition in the goods, capital, and labor markets
leads firms to make maximizing choices. Play-by-play data and dynamic
programming are used to estimate the average payoffs to kicking and trying for a
first down under different circumstances. Examination of teams’ actual decisions
shows systematic, clear-cut, and overwhelmingly statistically significant departures
from the decisions that would maximize teams’ chances of winning. Possible
reasons for the departures are considered.

Bill Belichick has read Romer’s paper.

Speaking of labor markets, game announcers Al Michaels and Cris Collingsworth, who according to the Internet get paid $5 million and $2 million respectively, did not consider San Diego’s decision to punt in this situation worthy of any comment.

Another obesity-related death

[ 181 ] December 3, 2014 |

A grand jury in New York on Wednesday decided not to indict white police officer Daniel Pantaleo in the July choke hold death of Eric Garner, an unarmed black man, according to two law enforcement officials.

During the fatal encounter July 17 Garner raised both hands in the air and told the officers not to touch him. Seconds later, a video shows an officer behind Garner grab him in a choke hold and pull him to the sidewalk, rolling him onto his stomach.

“I can’t breathe! I can’t breathe!” Garner said repeatedly, his cries muffled into the pavement.

The grand jury was made up of 14 white and nine nonwhite members.

The cause of Garner’s death was “compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police,” the medical examiner’s office has said. The death was ruled a homicide.

The New York City Police Department prohibits choke holds.

The original lede in the Times’ story described the scene below as a “violent confrontation,” between Eric Garner and the police, which sounds like a much more symmetrical encounter than evidence suggests (The story has since been edited to remove that phrase. This archived version retains the word “confronation,” but the adjective “violent” was gone already):

Killing the mentally ill

[ 32 ] December 2, 2014 |

Update: The 5th Circuit has stayed Panetti’s execution.

Scott has already written about the appalling case of Scott Panetti, a severely mentally ill man who is scheduled to be executed tomorrow by the state of Texas. There seems to be no real doubt that Panetti has been a deeply delusional paranoid schizophrenic for decades, and was fully in the grip of his illness when he killed his in-laws in 1992. (Claims by prosecutors that he is faking are, in the face of a mountain of evidence, including more than a dozen psychiatric hospitalizations, frivolous on their face).

Panetti’s case is so egregious that a coalition of prominent conservatives, many of them death penalty supporters, are calling on Texas governor Rick Perry to do what he can to commute Panetti’s death sentence (Although Perry doesn’t have unilateral authority to do so, he can grant a stay and put pressure on the Texas Board of Pardons, whose members he appoints, to grant a commutation).

This week, the list of conservative supporters grew as more prominent figures sent a new letter to Perry urging clemency. Among those signing: former Virginia attorney general Ken Cuccinelli; Dave Keene, opinion editor of the Washington Times; Reagan biographer Craig Shirley; American Enterprise Institute scholar Charles Murray; Floyd Brown—best known as the producer of the famous Willie Horton ad during the 1988 presidential campaign; longtime Republican National Committee member Morton Blackwell; Maggie Gallagher, the former head of the anti-gay marriage group National Organization for Marriage, and many others. They write, “Mr. Panetti is one of the most seriously mentally ill prisoners on death row in the United States. Rather than serving as a measured response to murder, the execution of Mr. Panetti would only serve to undermine the public’s faith in a fair and moral justice system.” . . .

It’s also unusual for conservative Christians to support a clemency petition like Panetti’s. The last time evangelicals really rallied en masse to prevent a pending execution was in 1998, in the case of Karla Faye Tucker, who converted to Christianity in prison and became a conservative cause célèbre. Despite the pleadings of evangelicals such as Pat Robertson, then-Texas Gov. George W. Bush, went ahead with the execution, and Tucker became the first woman executed in the state since 1863.

The Panetti case is different. His religious fervor is the product of a brain disorder, and the evangelicals’ opposition to his execution is not related to his religious proclamations. It is more of a reflection of the shift in public attitudes regarding capital punishment that has been driven by the growing number of exonerations of death row inmates, the high number of mentally ill and disabled people sentenced to die, and the inefficient and expensive administration of capital punishment. “A lot of conservatives are late to realize that the whole criminal-justice system is part of the government,” says Richard Viguerie, a prominent conservative leader and an ardent opponent of the death penalty.

In fact even the most directly affected survivor of Panetti’s violence — his ex-wife, the daughter of Panetti’s victims — has said she believes he is deeply sick and should be spared.

The only real advocate for killing a man who is, mentally and morally speaking, a helpless victim of his illness, is the faceless nameless “criminal justice system,” that moves forward inexorably towards its predetermined destination.

The problem with eyewitness testimony

[ 13 ] November 26, 2014 |

More on the legal process in the killing of Michael Brown.

A host of psychological factors make eyewitness testimony far from reliable. . .The easiest way to sum up those factors is this: People are as a general matter actually quite bad at recalling accurately what they’ve witnessed, and, worse yet, they (we) tend to have great confidence in our ability to recall events accurately. More perversely still, people attempting to judge the credibility of eyewitnesses put great stock in the level of confidence a witness displays in regard to the accuracy of the witness’s recall, even though experimental psychology has demonstrated that there is no correlation between such confidence and accurate recall.

Many other factors conspire to make eyewitness testimony unreliable: confirmation bias leads us to see what we expect to see, even if it isn’t actually there, while misinformation effects produce false memories of things that never happened. A famous example of the latter is a Dutch psychology experiment in which more than half of the subjects recalled seeing film footage of an airliner crashing into a building, after researchers referenced the footage in interviews with the subjects. Although the plane crash was a real event that the subjects all recalled vividly, no footage of the crash ever existed.

In another famous experiment, subjects were asked to count the number of passes made by two basketball teams wearing different colored jerseys. In the midst of the game, a man in a gorilla suit walked slowly across the court. When asked afterward if they had noticed anything unusual during the game, nearly half of the subjects didn’t recall anything noteworthy. Such experiments illustrate our tendency to miss even the most obvious evidence when we are under various kinds of cognitive stress.

A potential solution to the law school graduate employment crisis

[ 71 ] November 25, 2014 |


HBO is backing a documentary based on “Going Clear,” a book about Scientology and Hollywood — and isn’t taking any chances with the legal side of things.

“We have probably 160 lawyers” looking at the film, HBO Documentary Films President Sheila Nevins told The Hollywood Reporter. . .

“Going Clear,” by Pulitzer Prize-winning writer Lawrence Wright (“The Looming Tower”), digs into the life of Scientology founder L. Ron Hubbard and the influence his church has had on its believers, many of whom have close ties to Hollywood
Among Tinseltown’s famous Scientologists are John Travolta and Tom Cruise.

Some of Wright’s findings, including claims of abuse, didn’t go over well with the church.
“The stories of alleged physical abuse are lies concocted by a small group of self-corroborating confessed liars. The hard evidence clearly shows that no such conduct ever occurred and that in fact there is evidence that shows it did NOT occur,” the group’s spokeswoman, Karin Pouw, told CNN’s Miguel Marquez in 2013.

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.

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