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Draining the legal academic swamp

[ 39 ] March 30, 2017 |

Two and a half years ago, I published an article which among other things documented how David Frakt got expelled from his own job talk at the Florida Coastal School of Law, where he had been invited to interview for the deanship:

Frakt pointed out to the faculty that the Lsat scores of entering students correlate fairly strongly with the probability that those students will eventually pass a state bar examination, which is of course a prerequisite for actually becoming a lawyer. He noted that according to statistics from the Law School Admission Council—the organization that administers the Lsat—scores higher than those in the 60th percentile correlate with a low risk of failing to eventually pass a bar exam. Scores ranking from the 60th to the 40th percentile, by contrast, correlate with a moderate but rapidly increasing risk of failure. Scores below the 40th percentile correlate with a high risk of failure, and scores below the 25th percentile correlate with an extreme risk of failure, to the point where it is quite unlikely that someone with an Lsat score below 145 will ever pass a bar exam.

In the class Florida Coastal had just admitted, then, more than half the students were unlikely to ever pass the bar. But Frakt emphasized that the actual situation the school’s eventual 2017 graduates would face was likely to be even worse than this. In each of the past two years, about 20 percent of Florida Coastal’s first-year class transferred to other law schools. These students essentially made up the top fifth of their classes in terms of law-school grades. This is significant because high law-school grades have an even stronger correlation with passing the bar than high Lsat scores do. In other words, if only half an entering class had a decent chance of eventually passing the bar, and nearly half of those students wound up transferring elsewhere …

Lawyers may be notoriously bad at math, but this equation was simple enough. The ABA requires schools to maintain certain bar-passage rates, or they risk losing their accreditation. Indeed, the ABA’s standards state that “a law school shall not admit applicants who do not appear capable of … being admitted to the bar.” By admitting so many students who, upon graduation, seemed unlikely ever to pass the bar, Frakt pointed out, Florida Coastal was running a serious risk of being put on probation and eventually de-accredited, which would put the school in a financial death spiral. (A loss of accreditation would make it impossible for students to receive federal loans and, crucially, would prevent students from taking the bar exam in many states.)

It was at about this point in Frakt’s presentation that Dennis Stone, the school’s president, entered the room and told Frakt that if he didn’t leave immediately, security would be called. (When The Atlantic reached out to InfiLaw for comment, the company said that Frakt’s presentation was “based upon clearly erroneous information about the school’s accreditation status and key data points,” and that Stone decided “to end the presentation rather than put up with further insults to the faculty and school from a candidate who had no chance to obtain the position.”)

Schadenfreude is not a pretty emotion (although it’s a rather pretty word — those wacky Germans!), but it would require superhuman virtue on Frakt’s part not to be reveling in the ongoing collapse of Infilaw’s sleazy empire.  Now, after exactly the sort of complete collapse of bar passage rates that Frakt predicted would happen has happened, the ABA has put two of the three Infilaw schools on probation.  Federal educational loan funds have been denied to Charlotte students, and the University of New Haven has pulled out of a projected alliance with the school.   (Thanks to an LGM reader for sending me a copy of the letter he just received from the president of New Haven, informing him that UNH had decided against any affiliation. On a related note, see this furious op-ed Elie Mystal published in the Times, which Scott linked to a few days ago, excoriating Bethune-Cookman for hooking up with Arizona Summit.)

Florida Coastal for the moment retains the distinction of being the only one of the Infilaw schools not on the ABA regulatory equivalent of death row, but its bar passage rate is also plunging as predicted, although not as precipitously as that of its sister schools.  These atrocious bar passage results were achieved even in the wake of a program that pays selected Infilaw graduates not to take the bar exam.  Arizona Summit has even instituted a brand-new requirement that current students pass a mock bar exam before they’re eligible to graduate.  Besides being cartoonishly evil, this is probably illegal, in the sense that it’s a breach of the school’s implied contract with its current students.

It remains to be seen if Betsy DeVos rides to at least the temporary rescue of Infilaw, by ordering the Department of Education to reverse its decision to cut off federal loan funds to Charlotte, and to not cut them off to Arizona Summit, now that the latter school has also been placed on probation by the ABA.  But for the moment at least, Infilaw is on the run, and its corporate masters are reportedly eager to unload what has become a less than sterling investment.



Why was Jennifer Bard fired from the University of Cincinnati’s law school deanship?

[ 36 ] March 24, 2017 |

Jennifer Bard was hired in July of 2015 to stop the bleeding at the University of Cincinnati’s law school. The school was running a multi-million dollar operating deficit: a consequence of a decline in effective tuition from JD students from approximately $9.3 million in 2011 to $4.5 million in 2015 (both figures are in 2015 dollars, and are based on my calculations drawn from 509 disclosure forms).

The law school’s situation in this regard was hardly unique.  I’ve just completed a study which concludes that between 2011 and 2015, effective tuition per student at non-elite (non T-14, though I guess it’s now T-13) law schools fell by about 12.5% in real terms, which, when combined with a 25% enrollment drop, adds up to something like a 35% decline in tuition revenue.  (This drop is disguised by sticker tuition prices, which rose 16% over this time frame, but which are increasingly irrelevant.  Discounts on sticker increased by 60% over the course of those four years).  Since most non-elite schools get 75% to 95% of their operating revenue from tuition, a lot of law schools are in the same straits as Cincinnati, i.e., dire.

The central administration brought Bard in to fix this, but last fall, little more than a year after she took over, a number of UC faculty were already plotting a vote of no confidence.  Apparently Bard’s offenses included trying to merge the law library into the university-wide system, requiring pre-approval for faculty travel, and requiring submission of travel receipts.  A few weeks later the interim provost set up some sort of mediation process, but just a couple of months into that process he decided to fire Bard instead.  (Firing a dean who isn’t even two years into a five-year contract is extremely unusual, at least in the law school world, and usually only happens in the wake of some sort genuine scandal).

Who knows what the whole story is here, but it’s worth mentioning that this wouldn’t be the first time that a woman was elevated to this type of leadership position and then fired shortly thereafter because of what, on their surface at least, seem like complaints that are as petty as they are predictable. (Travel receipts???).

Anyway, a lot of law school faculty seem to have trouble grasping that if you’re spending more than you’re bringing in, you leave yourself dependent on the kindness of strangers, aka, the forbearance of the central administration. And more than a few central administrators would under these circumstances give the faculty an offer they couldn’t refuse, rather than firing the person who had just been brought in to clean up somebody else’s mess.

The art of the deal

[ 173 ] March 23, 2017 |

Per John Harwood, the Freedom Caucus went into the WH meeting demanding not just the repeal of the EHBs, but also of Title 1, which is the ban on pre-existing conditions, allowing children until Age 26, the ban on lifetime limits, etc.   This makes the whole thing a non-starter, so no vote today.

Imagine what a mess this would be if a master negotiator wasn’t steering the ship of state.

[SL] Good reporting on this from DeBonis/Eilperin/Weigel. While it’s important to “credit” Trump, let us not forget the superb leadership of America’s foremost policy wonk, Paul Ryan.

What’s the average post-tax income of the 50 million least entrepreneurial, disruptive, and paradigm-shattering Americans?

[ 32 ] March 23, 2017 |

There are about 50 million people, approximately, who live in households at the 20th percentile of household income or lower (There were 126 million households in the US in 2015, with an average size of 2.54 people, but the least-wealthy households include a disproportionate number of single-person households, so 50 million is a ballpark estimate. That’s roughly the population of England).

The 20th percentile of household income in 2015 was $22,800, and the 10th percentile was $13,250.  And while these people are almost all part of Mitt Romney’s famous 47% who pay no or negative net federal income taxes, they still do pay a lot of other sorts of taxes, namely payroll, Medicare, state, and local taxes.  Citizens for Tax Justice estimated back in 2012 that the bottom 20% of taxpayers paid an effective tax rate of 17.4%.  If we estimate the average pre-tax income of these 50 million Americans as $14,000, that makes for an average post-tax income of $963.67 dollars per month.  For everything.  For everybody in the household.

These are the 50 million people who, according to the repeal and replace crowd, are supposed to stop buying the fanciest new Iphone as soon as it comes out, and buy private medical insurance instead, once the market works its magic.  That’s one heck of a trick, as they say down on the dirty boulevard.


Trump’s campaign manager was paid $10 million per year to be an agent for Putin

[ 154 ] March 22, 2017 |

Secret agent man.

WASHINGTON (AP) — President Donald Trump’s former campaign chairman, Paul Manafort, secretly worked for a Russian billionaire to advance the interests of Russian President Vladimir Putin a decade ago and proposed an ambitious political strategy to undermine anti-Russian opposition across former Soviet republics, The Associated Press has learned. The work appears to contradict assertions by the Trump administration and Manafort himself that he never worked for Russian interests.

Manafort proposed in a confidential strategy plan as early as June 2005 that he would influence politics, business dealings and news coverage inside the United States, Europe and the former Soviet republics to benefit the Putin government, even as U.S.-Russia relations under Republican President George W. Bush grew worse. Manafort pitched the plans to Russian aluminum magnate Oleg Deripaska, a close Putin ally with whom Manafort eventually signed a $10 million annual contract beginning in 2006, according to interviews with several people familiar with payments to Manafort and business records obtained by the AP. Manafort and Deripaska maintained a business relationship until at least 2009, according to one person familiar with the work.

“We are now of the belief that this model can greatly benefit the Putin Government if employed at the correct levels with the appropriate commitment to success,” Manafort wrote in the 2005 memo to Deripaska. The effort, Manafort wrote, “will be offering a great service that can re-focus, both internally and externally, the policies of the Putin government.”

Manafort’s plans were laid out in documents obtained by the AP that included strategy memoranda and records showing international wire transfers for millions of dollars. How much work Manafort performed under the contract was unclear.

It’s also unclear whether Manafort used an unsecured email server when he committed treason in return for tens of millions of dollars.


The decline in driving among young American adults

[ 249 ] March 21, 2017 |

When considering what to say to a law school applicant looking at various schools at various price points, I was surprised to learn that he has never learned to drive.  (This came up because he currently envisions himself working for a small firm in a rural part of an east coast state, which could be difficult even without having to rely on the basically non-existent mass transit options in such environs.)

He’s about to graduate from college, which led me to wonder how common it is for Americans at various ages to be non-drivers.  The best proxy for this — not a perfect one of course — is whether people have driver’s licenses.  If you had asked me to guess I would have said that something like 95% of people in their early 20s are licensed to drive. And in fact this would have been a tolerably close estimate when I was that age: in 1983, 91.8% of 20-24 year olds were licensed.

Yet it turns out that today, nearly one in every four 20-24 year olds (23.3%) doesn’t have a driver’s license. The decline since 1983 among 25-39 year olds is also striking, with the percentage declining from 95.6 to 85.1 in the 25-29 cohort, from 96.5 to 86.6 among 30 to 34 year olds, and 94.9 to 87.9 in the 35-39 age range.  (All latter figures are for 2014).

At the other end of the spectrum, there’s been a huge increase in geriatric drivers.  In 1983, only 55% of Americans 70 or older had a driver’s license (I find that number shockingly low. I would guess it reflects far lower percentages of car ownership per household in the mid-20th century, with one consequence being that many households never acquired more than one driver at most.  I also wonder what the gender breakdown looks like in this regard).  In 2014 that figure had risen to 79%.  When one considers that the number of old people in the US has nearly doubled over the past 35 years, we may soon be facing a crisis of perpetual left turn signaling.

As for why young people are so much less likely to be drivers than 30 years ago, is this a product of increasing urbanization?  The declining economic status of millennials relative to their boomer parents?  All that crazy “rap” music?

Relatedly, what do people who don’t have driver’s licenses do for identification purposes?  What card do they produce when they’re carded?  How do they vote?  If they look like they might be Mexican, how do they prove their legal residence for the purpose of being able to frequent fine dining establishments?

Anyway, there’s something happening here, though what it is ain’t exactly clear (that’s what the comments section is for naturally).

RIP Chuck Berry

[ 94 ] March 18, 2017 |

Chuck Berry has died.  It’s difficult to overstate the role Berry played in the early development of rock & roll, as it was known back in the day.  On his 90th birthday last October, it was announced that he would be releasing his first album since the 1970s, although I gather similar announcements had been made in recent years.

This might be my favorite live Rolling Stones performance.


The new hysteria over campus speech

[ 464 ] March 12, 2017 |

The incident earlier this month at Middlebury College, at which Charles Murray was shouted down while attempting to give a talk, and a professor who was accompanying him was physically assaulted when she and Murray were attempting to leave, has led to a new round of hand-wringing over how Kids Today just want their safe spaces and lazy rivers, the supposed flourishing of left-wing intolerance on college campuses, the revivification of the ghost of Herbert Marcuse, etc.

The leader in the clubhouse for the most over the top take on these developments is Yale law professor Stephen Carter:

Here’s what’s scariest about the last week’s incident at Middlebury College, where protesters shouted down the social scientist Charles Murray and injured a professor who was escorting him from the venue: It felt like an everyday event. So common has such odious behavior become that it’s tempting to greet it with a shrug . . .

The downshouters will go on behaving deplorably, and reminding the rest of us that the true harbinger of an authoritarian future lives not in the White House but in the groves of academe.

Let’s make one thing perfectly clear, as Richard Nixon used to say.  OK two things:

(1) College students who exercise a heckler’s veto — that is, who don’t merely protest, but actually try to shut down a speaker at an institutionally-sanctioned event — should be punished (in the wake of adequate due process of course) by their college or university.  Such punishment might include expulsion from the school under certain circumstances.

(2) Physical assault should be prosecuted.

That being said, the notion that the behavior of a handful of idiot undergraduates at one event at one hyper-elite college is a true harbinger of an authoritarian future — as opposed to say the election of Donald Trump as president of the United States — is dangerous nonsense.

But halt, sayeth the William Nelson Cromwell Professor of Law. Hast thou not heard that the name of the Middlebury Morons is legion?

According to the Foundation for Individual Rights in Education, 2016 saw a record number of efforts to keep controversial speakers from being heard on campus — and that’s just in the U.S. To be sure, not all of the attempts succeeded, and the number catalogued, 42, is but a small fraction of the many outsiders who give addresses at colleges and universities each year. The real number of rejected speakers is certainly much higher, once we add in all the people not invited in the first place because some member of this or that committee objects to their views, or because campus authorities fear trouble. But even one would be too many.

By my count the actual number of “rejected speakers,” per the data base Carter cites, is 24.  They include things like the singer Common having an invitation to give a commencement speech revoked because police groups protested that he was the author of “a song in which he depicted a woman convicted of killing a police officer as a victim.”

They also include attempts by various people to stop giant checks from being handed out to the likes of Condi Rice for giving commencement speeches — i.e., wholly commendable efforts to resist this particularly obnoxious form of pseudo-intellectual grifting.  (Carter thinks those efforts are a form of illegitimate censorship as well).

And more than a quarter of the attempted dis-invitations were aimed at Milo Yiannopoulos, a professional attention seeker, whose total lifetime contribution to actual intellectual debate in even the broadest sense of the phrase can be calculated as approximately zero.

As Carter coyly acknowledges, the total number of talks on potentially politically sensitive topics at American colleges and universities in any one year must reach seven figures (There are four thousand such institutions in the US, so if you assume an average of one such talk per day per institution — surely a gross underestimate — that’s 1,460,000  opportunities for civil discourse-destroying protest).  So tens of thousands — at least — politically controversial talks take place at American institutions of higher learning for every one that leads to any (overt) attempt to keep that talk from taking place.

But even one such attempt is too many, says Carter.  Does he actually want to defend that position?  Universities are ongoing exercises in massive content discrimination, and indeed have to be by their very nature.  The notion that universities should be open to all viewpoints is so ridiculous that it’s hard to believe anyone would defend it, except at the highest level of abstraction, which is the level at which such defenses invariably take place.

Universities should not be open to the viewpoints of Holocaust deniers or Sandy Hook truthers, to pick just a couple of a basically unlimited number of possible examples, because such views are false, and false views should not be given a forum within institutions dedicated to the pursuit of truth.

But where do you draw the line?  You draw it right here, every day, that’s where.  (“Right here” being within the university itself).  But who should have the authority to make decisions about what constitutes a controversial view that deserves a hearing, and what is misguided nonsense, or a noxious calculated lie, or a paranoid delusion? We should — we being the members of the scholarly community — BECAUSE THAT’S LITERALLY OUR JOB, or part of it, anyway.

Sorry for shouting but come on.

The point is that, within the university at least, viewpoint tolerance is not and cannot possibly be some sort of absolute value.  It’s a pragmatic tool in the pursuit of truth, and, like all such tools, it has its limits.   Duly invited speakers should not be shouted down, let alone physically attacked, but making the decision whether a speaker should be heard in the first place is not “censorship,” unless censorship means making distinctions between speech that is likely to advance the mission of the university and that which will not.  And if making that distinction is illegitimate, then intellectual life itself becomes totally impossible.


Being here

[ 34 ] March 10, 2017 |

The opening of this week’s episode reveals that laughter is the best patent medicine:

President Trump has a new outlook on the legitimacy of the government’s monthly jobs reports, White House press secretary Sean Spicer said on Friday.

Asked about Trump’s past dismissal of Bureau of Labor Statistics jobs numbers in the past in light of Friday’s strong economic report, Spicer quoted the president:

“I talked to the president prior to this, and he said to quote him very clearly: ‘They may have been phony in the past, but it’s very real now.'”

Spicer and reporters present laughed, though it wasn’t immediately clear whether Trump was joking.

And the hijinks only get more outrageous from there!  You won’t want to miss a minute, and in fact you can’t, because this show is also called reality! Or “reality,” as the case may be.

After all, we are not communists

[ 100 ] March 10, 2017 |

Hillary Clinton has an op-ed in the New York Times today, attacking the GOP’s proposed Obamacare replacement:

The central debate in the old era was big government versus small government, the market versus the state. But now you’ve got millions of people growing up in social and cultural chaos and not getting the skills they need to thrive in a technological society. This is not a problem you can solve with tax cuts.

And if you don’t solve this problem, voters around the world have demonstrated that they’re quite willing to destroy market mechanisms to get the security they crave. They will trash free trade, cut legal skilled immigration, attack modern finance and choose state-run corporatism over dynamic free market capitalism.

The core of the new era is this: If you want to preserve the market, you have to have a strong state that enables people to thrive in it. If you are pro-market, you have to be pro-state. You can come up with innovative ways to deliver state services, like affordable health care, but you can’t just leave people on their own. The social fabric, the safety net and the human capital sources just aren’t strong enough.

Oh wait that’s actually David Brooks.

Of course Brooks has to preface his implicit conclusion that Democrats rather than Republicans should be running America with a bunch of both sides do it nonsense about how if only Obama had concentrated on real problems, like the decline of Western Civilization, instead of wasting time on trivialities such as coming up with innovative ways to deliver state services like affordable health care the ACA, then we wouldn’t be in the present mess.

Over at Slate Reihan Salam comes to essentially the same conclusion:

This is the right way for Republicans to talk about the cost of the safety net: If there’s a conflict between rich people’s money and the lives of ordinary Americans, we’re going to choose the latter every time. But Ryan couldn’t pitch his plan in these terms, because he needed to demonstrate that he could shrink the size of government. If he wasn’t going to cut Medicare and was going to cut taxes, he had to slash safety-net spending somewhere else. That’s why he proposed wildly unrealistic reductions in the growth of federal Medicaid spending. His message wound up being completely muddled. We need to cut spending because we’re facing a debt crisis … but we’re also going to cut taxes. It is vitally important that we protect the safety net for old people … but we’re going to slash it for poor people.  . . .

How can Paul Ryan and his allies send a more coherent message around the American Health Care Act? A good starting point would be to forget about cutting Obamacare’s taxes on households earning more than $200,000. It’s not that Republicans are opposed to cutting those taxes. It’s just that their priorities should lie elsewhere, namely in ensuring that vulnerable people don’t get screwed. If Ryan can’t get behind that message, his health care bill deserves to fail.

But of course Ryan can’t get behind that message, because upper class tax cuts make up Paul Ryan’s — and indeed the contemporary GOP’s — only actual agenda.  All the culture war stuff is just so much dry ice smoke at a bad rock concert.

Brooks and Salam are basically Eisenhower Republicans, aka the contemporary Democratic Party.  They just can’t quite come out of that particular closet yet, even to themselves.


Law school with a $92,200 nine-month cost of attendance decides to make itself more affordable

[ 32 ] March 9, 2017 |

By allowing students to take a test that costs $160 rather than one that costs $227.  Harvard is increasing its cost of attendance by nearly $4,000 this fall, marking the 3,573rd year in a row that the law school has raised tuition faster than the inflation rate.

I assume HLS is gaming the rankings here in some way (it just slipped to third behind Stanford — sad!) by allowing applicants to submit a GRE instead of an LSAT score.   But ideology is a hell of a drug, so no doubt they’ve actually talked themselves into sincerely believing this is all about “access.”

BTW the law school’s endowment was $1.8 billion as of last June, which works out to about $50,000 of expendable endowment income annually for every JD student.

The destruction of American public legal education

[ 23 ] March 6, 2017 |

I’ve been working on an article about the history of tuition at American law schools. Spoiler: it went up by roughly 1100% in constant dollars over a 55-year span, but then started going down on an average effective per student basis about five years ago, because increased transparency required law schools to slash sticker prices radically for about half their matriculants.  The upshot is that today roughly half of all law students are paying sticker tuition (which is higher than ever) or fairly close to it, while the other half are getting bigly discounts off sticker.  Further spoliation: this cross-subsidization flows on average from poorer students to richer ones, and from ethnic minorities to white students, for reasons you can probably guess.

Anyway, the big surprise to me in looking at all this closely was how public law school resident tuition didn’t go up much at all relative to either private law school tuition, or increases in family income ,at least through the mid-1980s.  Since then it’s gone completely crazy though.

The other stat that really jumped out at me was how robustly median family income grew in the 1950s and 1960s, and how amazingly flat it’s been for the past 40+ years.  (Note that family income is about 20% higher than household income, since the census defines a family as two or more people related by blood or marriage or adoption living together, while a household can be one person, or two or more unrelated people domiciled together.) . Here’s a small section:

To be as affordable today as public law school tuition was in 2006, relative to what family income was at that time, a family has to make $105,000.

To be as affordable today as public law school tuition was in 1996, relative to what family income was at that time, a family has to make $189,000.

To be as affordable today as public law school tuition was in 1986, relative to what family income was at that time, a family has make $342,000.

To be as affordable today as public law school tuition was in 1974, relative to what family income was at that time, a family  has make $453,000.

To be as affordable today as public law school tuition was in 1956, relative to what family income was at that time, a family has to make $547,000.

Several things are evident from these numbers. First, the enormous run-up in private law school tuition between the mid-1950s and the mid-1970s was to some extent ameliorated by the rapid rise in the income of American families during this time. In the eighteen years between 1956 and 1974, real median family income grew by nearly 50%, from $42,675 to $63,552 in 2017 dollars.

Indeed, these same increases in family income mostly offset the rise in public law school tuition, which remained roughly as affordable as it had been two decades earlier, in relative terms.  Yet over the next four decades, law school tuition continued to rise at a breakneck pace, even as family income growth slowed to a crawl. By 2015, median family income was just 12.6% higher than it had been 41 years earlier, while private law school tuition had increased by 297% in constant dollars since then, and public law school resident tuition had risen by a mind-boggling 690%, even after adjusting for inflation.

Thus, the devastating consequences of rapidly increasing tuition and flat income growth are seen in their starkest form when considering the effect of these dual trends on the affordability of public legal education in particular.   When compared to family income, public law schools now cost considerably more than private law schools did as recently as the 1980s, let alone in the decades before then.  Resident tuition at public law schools is now higher, in real terms, than the tuition charged by Harvard and Yale law schools when a large percentage of today’s law professors attended the latter institutions.

Note: Median family income was $70,697 in 2015.



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