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The justice system

[ 60 ] July 22, 2014 |

The murder of Dan Markel triggered a memory: On April 4, 1991, Mary Joe Frug was hacked to death with a seven-inch military-style knife, a couple of blocks from the home she shared with her husband Gerald Frug and their two children. (The crime remains unsolved). I had met Frug at a conference in Boulder a few days earlier, and this news made a particular impression on me.

A year to the day after her death, this happened:

On April 4, 1992, the Harvard Law Review held its annual gala banquet, when the torch of the nation’s most prestigious legal journal is passed to a new generation of editors. Among those invited: the murdered woman’s husband, Gerald Frug, a member of the Harvard Law School faculty. Had he attended, he would have found on his plate a parody of his wife’s last article. The parody, titled “He-Manifesto of Post-Mortem Legal Feminism,” was produced by the Law Review’s editors and paid for by the school. It depicted Ms. Frug as a humorless, sex-starved mediocrity and dubbed her the “Rigor-Mortis Professor of Law.”

The alleged satire poses a question that is certain to outlast all the finger-pointing, ducking, blaming, petitioning and posturing that has overtaken Cambridge in the nearly two weeks since the “joke” came to light: how can Harvard’s best and brightest, the men and women who will soon write the opinions of some of the nation’s most powerful judges, also be its cruelest and crudest?

Earlier this year, Ms. Frug’s article, “A Postmodern Feminist Legal Manifesto (An Unfinished Draft),” appeared posthumously in the Harvard Law Review. Several conservative editors fought unsuccessfully to block the piece, a bluntly worded examination of how, Ms. Frug maintained, the law perpetuated the subjugation of women.

As the banquet approached, the Law Review’s editors, their coveted, career-making judicial clerkships in hand, turned their efforts to the Harvard Law Revue, an annual send-up of the publication. Along with others who had opposed publication of the Frug article, Craig Coben and Kenneth Fenyo set about to lampoon it.

The result was a five-page, footnote-laden parody, saturated with inside jokes and sexual innuendoes. The article was purportedly dictated “from beyond the grave” by one Mary Doe, described as the “Rigor-Mortis Professor of Law, New England School of Law, 1981-1991″ and “wife of Gerald Frug, Professor of Law, Harvard Law School.” In it, Ms. Doe recounts childhood sexual fantasies about men in tight swim trunks, defended the use of obscenities in her scholarly work, and reflected on “the irony that I, a postmodern feminist, am being published because of my husband’s tenure here.”

“Postmodern feminists represent a diverse group of people,” the parody continued. “Some of us are intellectuals. Many are politically committed. Most are disillusioned. Others are just plain horny. But there is one thing that we have in common: we have no sense of humor.”

The memory of these events made me wonder what Coben and Fenyo have accomplished in the 22 years since they exhibited what might be interpreted as extreme psychopathic tendencies. (It’s worth noting in this context that, at least according to the two of them, none of their colleagues on the HLR objected to their “joke” before the fact).

The answer is that, in conventional terms, they have gone on to stellar careers in the business world:

Ken Fenyo has deep expertise in loyalty programs, digital coupons, personalized offers, e-commerce, and customer insights and analytics. He launched the retail industry’s first digital coupon program and has created new loyalty programs for Kroger, Caesars Entertainment, and General Mills among other companies. He is a frequent speaker on digital trends in retail including how mobile is transforming the shopping experience.

Ken completed the sale of YOU Technology, Inc. to Kroger (NYSE: KR) in February 2014. As CEO, Ken built the business into the retail industry’s largest digital coupon network delivering over 1 billion digital coupons to over 10 million shoppers at over 10,000 stores nationwide. YOU’s clients included over 20 leading retail chains and over 100 top brand advertisers. Prior to joining YOU, Ken was Vice President, Loyalty & Digital at Kroger, where he launched the industry’s first digital coupon program in November 2007, expanded Kroger’s fuel rewards program nationwide, created the new Kroger rewards loyalty program, and overhauled its $100 million personalized marketing program. Earlier in his career, Ken started a venture-funded e-commerce technology provider and served as a senior consultant with McKinsey & Company and Prophet Brand Strategy, where his clients included Caesars Entertainment, Time Warner, Dell, and HP. He has degrees from Stanford University and Harvard Law School.

Ken also apparently found love.

Meanwhile, Coben has also found his law degree to be remarkably versatile:

Bank of America Merrill Lynch (BoAML), which has been playing a leading role in some of the biggest transactions in the London market so far this year, has appointed a new head of UK equity capital markets (ECM).

The bank, which is advising on the Pets at Home flotation, the RSA rights issue and worked on the recent Kennedy Wilson share listing, is relocating James Fleming from its Hong Kong office to become head of UK ECM.

BoAML jumped from fifth place to second place in European ECM last year, due in part to its success in the UK. The bank sees the UK as the second most important market globally after the US and last year worked on the Royal Mail privatisation, the Barclays rights issue and the first sale of shares in Lloyds Bank.

Fleming, who has 16 years’ experience in ECM, will report to Craig Coben, the head of European ECM at BoAML.


It took a relatively obscure former British academic to propagate a theory of the financial crisis that would confirm what many people suspected all along: The “corporate psychopaths” at the helm of our financial institutions are to blame.

Clive R. Boddy, most recently a professor at the Nottingham Business School at Nottingham Trent University, says psychopaths are the 1 percent of “people who, perhaps due to physical factors to do with abnormal brain connectivity and chemistry” lack a “conscience, have few emotions and display an inability to have any feelings, sympathy or empathy for other people.”

As a result, Boddy argues in a recent issue of the Journal of Business Ethics, such people are “extraordinarily cold, much more calculating and ruthless towards others than most people are and therefore a menace to the companies they work for and to society.”

How do people with such obvious personality flaws make it to the top of seemingly successful corporations? Boddy says psychopaths take advantage of the “relative chaotic nature of the modern corporation,” including “rapid change, constant renewal” and high turnover of “key personnel.” Such circumstances allow them to ascend through a combination of “charm” and “charisma,” which makes “their behaviour invisible” and “makes them appear normal and even to be ideal leaders.”

It turns out that criticizing a law professor for publishing a bad law review article isn’t actually a violation of professional ethics

[ 87 ] July 17, 2014 |

Last fall Nancy Leong, a University of Denver law professor, decided to file a formal bar complaint against Dybbuk, a public defender and occasional scamblogger, on the basis of the claim that criticizing some of her writing in three blog posts and a handful of thread comments over a 14-month period constituted cyber-harassment. Not surprisingly, this claim ended up going nowhere, but not before Dybbuk was forced to spend several months and a significant amount of money defending himself against the administrative equivalent of a SLAPP suit.

While it’s heartening to see Leong’s attempt to silence a critic through frivolous quasi-litigation fail, it’s sobering to consider how easily legal and administrative processes can be abused in this fashion (See, for example, this “apology” extracted by the egregious Thomas M. Cooley School of Law from a cyber-critic).

A comment on legal scholarship

[ 100 ] July 15, 2014 |

Class Bias in Higher Education, a blog authored by Univ. of Florida law professor Jeffrey Harrison, is well worth reading. A recent post regarding the costs and benefits of legal academic publishing reminded me that I’ve been meaning to write about this edifying little incident:

A few months ago, a law student forwarded me a copy of a “law review article” submitted by Prof. X to Journal Y. The outgoing editorial staff of Y (a secondary journal at a semi-elite law school, run, as almost all law reviews in the US are, by law students) had accepted X’s article in the spring of 2012, for publication the following fall. My correspondent was part of the incoming staff, and he had been handed the task of editing and cite-checking X’s article. He discovered that, besides being poorly written, the article’s cited sources often failed to say what X’s article claimed they said.

In the world of law review publication, a poorly written article full of inaccurate citations constitutes a dog bites man story, but upon further review a bigger problem was discovered: X’s “article” was completely self-plagiarized. X had simply copy and pasted large sections of two of X’s previous publications, and tacked them together into a “new” 7600-word article. The only original material in the text was a single short transitional paragraph, designed to link together the C&P material.

The journal’s editors pointed out to X that X had signed a disclosure form averring that the material submitted to the journal had not been published previously, and then informed X that the journal would not be publishing the article (this all took place very late in the publication process). X was quite indignant about this, claiming that the cutting and pasting had created an original work. The journal’s faculty adviser was consulted, and after some back and forth the article was withdrawn, and nothing further came of the incident. (X’s institution was never informed about any of this).

I asked my correspondent to forward me X’s article. It was indeed word-for-word self-plagiarism, save for a couple of date and tense changes, and the 200-word transitional paragraph. Incidentally, besides being made up exclusively of already-published material, the “article” itself was something worse than worthless: a painfully amateurish and very poorly written diatribe about a couple of SCOTUS opinions, that would in all seriousness merit a C+ as a law student seminar paper, assuming our current generous standards of grade inflation. (X, btw, is a tenured full professor at a mid-tier law school).

My favorite detail of this story is that more than a year after the article was pulled, Prof. X was still listing it as a “featured publication” on X’s law school faculty web page, with a citation to the already-published volume of the journal in which the article was supposed to have appeared.

My correspondent:

The other thing to note is that our editors (including me) wasted months worth of time trying to get this in publishable form. Makes it all the more egregious that [X] would use all this free editing labor on the lark that [X] could get a third “publication” out of totally recycled ideas. [X] apparently put zero effort into this. I was publishing my own note in this same edition and editing [X] at the same time, so I spent many nights in the library past midnight working on both, and being held up by having to reread every source [X] quoted, since each source was prone to being misrepresented in [X's] own article.

. . . see also James Powell’s comment in the Zizek! plagiarism thread infra:

A lot of people are required to write things in order to get or keep their phony baloney jobs. But writing well is very hard and very time consuming.

Attention, Interest, Decision, Action

[ 106 ] July 2, 2014 |

Over the last few years, the Thomas Cooley School of Law has become something of a byword for what’s wrong with American legal education, so it’s fitting that it has become the first school to downsize by actually closing an entire campus:

As with most law schools across the country, Cooley’s enrollment and revenue have continued to decline. Despite our ongoing cost control efforts, it has become apparent that we must now reassess our costs, including our faculty and staff levels, in light of current enrollment. Thus, Cooley’s board of directors and administration are instituting a financial management plan designed to right size and reinvent the school. Unfortunately, and as has occurred at a number of other law schools, the plan will include faculty and staff layoffs. As part of the plan, Cooley will also hold off enrolling incoming first-term students at the Ann Arbor campus for fall 2014, though all currently enrolled Ann Arbor students will continue to be able to pursue the school’s full curriculum.

The plan includes the following features of particular interest to students:

• We will work to keep tuition increases as low as possible. Details will be available in the coming weeks.
• We will continue to reward students through our already generous scholarship program.
• The 2014/15 academic calendar will not change.
• Student services will not change.

We are confident that this plan will help us remain at the forefront of innovative approaches to legal education and continue to deliver the broad, high-quality access to legal instruction students have come to expect from Cooley.

(h/t ATL).

Between 2010 and 2013, the school’s first year class contacted from 1,583 students to 582, and with the continuing slide in applicants to law schools in general it’s not surprising that TCSL is enduring major financial strain. This is now apparently the case even though as little as two years ago the school was still practically printing money, as it extracted more than $90 million per year in net tuition revenue from its federal educational loan conduits students. Cooley’s most recent publicly available financial disclosure forms are from FY2012, and they reveal a healthy 14% profit margin in regard to revenues over expenses. Of course technically Cooley doesn’t generate any profits, since it’s a non-profit organization organized for charitable purposes, and therefore exempt from paying federal income taxes.

At the time the main beneficiaries of this charitable endeavor included President & Dean Don LeDuc, who pulled in $575,562 in reportable compensation, and $45,905 in other compensation, and ranting old man distinguished emeritus professor (and former chief justice of the Michigan supreme court) Thomas Brennan, who received $329,198 in reportable and $43,865 in unreportable compensation, for what the school itself characterized in its financial disclosures as an average weekly work load of five hours. (This works out to an hourly wage of $1,492.25 for those of you scoring at home).

. . . And keeping it all in the family:

Laura LeDuc has been promoted from assistant dean to the newly created position of Associate Dean for Planning, Assessment, and Accreditation. In her new role, LeDuc supervises the school’s institutional planning and assessment activities and oversees Cooley’s relationships with its two accrediting bodies, the ABA and the HLC. She is based at the school’s Lansing campus.

If there’s one thing we’ve learned about higher ed in America in the 21st century is that you can never have enough associate deans for planning, assessment etc. etc. (Laura LeDuc is Don LeDuc’s daughter. She was paid $108,385 in 2011-12 when she was a mere Director of Planning, so no doubt a generous raise is in order).

Note that Cooley’s attempts to “keep tuition increases as low as possible” have resulted in the school raising tuition from $28,625 in 2008 to $43,500 in 2013.

Expect a lot more developments along these lines over the course of the next 24 months or so.

Update: Law School Truth Center counts the human cost:

Now, because of the lies spread by selfish malcontents, a city of 110,000 is left with only one law school.

How much has law school tuition really gone up?

[ 35 ] June 25, 2014 |

A point sometimes made by defenders of the legal academic status quo is that while nominally tuition has gone up a lot, actual tuition increases have been much more moderate, because of the increasing prevalence of tuition discounting. Note that even to the extent that this claim were true, it would still be a very problematic defense of the price structure of law school, since tuition discounting shifts the costs of law school onto precisely those students who can least afford to pay a high price for their law degrees.

This is because tuition discounts go to students with better entrance credentials, with schools buying better entrance credentials as a consequence of their obsession (and to be fair, the obsession of clueless prospective law students) with the rankings nonsense. Those credentials correlate significantly — with an average positive correlation between LSAT/GPA and 1L grades of around .5 — with better grades, which in turn correlate with both high-paid employment and legal employment of any kind. Since for what ought to be obvious reasons better entrance credentials themselves correlate with higher SES, this system results in lower SES law students with worse long-term job prospects subsidizing the education of their higher SES classmates with better job prospects: the so-called “reverse Robin Hood” effect. And of course to the extent that high-paying or any legal employment is distributed on the basis of non-grade-based factors, this system is even more disadvantageous to lower SES law students, who don’t have comparable social connections and cultural capital on which to trade while hunting for jobs.

But exactly how much stealing from the poor to give to the richoptimizing of admissions outcomes on the basis of “merit” has been going on in American law schools over the past couple of decades, as cross-subsidizing of tuition through discounting has become more common? To my knowledge nobody has calculated the answer to that question. This post attempts to do so. Read more…

I guess FIFA doesn’t adhere to the one bite rule

[ 117 ] June 24, 2014 |



Spoilers ahead.

. . . apparently a Norwegian fan has pocketed nearly $1000 after having the foresight to lay down a bet that Suarez would bite an opponent at some point during the tournament.

Room for debate: Are gargantuan salaries for university presidents A Good Thing?

[ 90 ] June 24, 2014 |

In the course of carrying out its secret mission as an engine of left-wing insurrection, the New York Times has put together a debate on whether its desirable for university presidents to have increasingly enormous sums of cash shoveled into their bank accounts, at a time when the people who do most of the actual teaching in the contemporary university — adjuncts and graduate students — are being paid in scrip for beef jerky and discounted parking passes.

The Times’ crypto-revolutionary agenda is evident to anyone who considers the arguments put forth by the people (a lawyer and a law professor) the paper chose to defend the status quo.

Shorter Raymond D. Cotton: University presidents are paid so much these days for the same reasons corporate CEOS are paid so much these days. QED,or something.

Shorter Dorothy A. Brown: The real issue here is that the stupendous compensation packages of white male university presidents are on average slightly larger than the stupendous compensation packages of women and minority university presidents.

The only reasonable explanation for this kind of thing is that it’s actually intended to put pitchforks and torches in the hands of the academic proletariat.

Speaking of which, here are some comparative figures I’ve put together on changes in compensation at one major research university over the past 35 years. (All figures are in constant 2013 dollars).

. . . Note that Michigan is a top school, so its faculty salaries are quite a bit higher than average. Two years ago the AAUP found the average salaries for full, associate, and assistant professors at all American colleges and universities to be $113K, $77.5K, and $67.5K respectively. In other words it appears average tenure track faculty salaries in the US are about what they were at an elite public school 35 years ago.

Average salary for different categories of employees at the University of Michigan in 1979 and 2013:


1979: $34,017

2013: $32,214

Director of Athletics

1979: $173,274

2013: $850,000 base salary (Does not include $100,000 in deferred compensation, and a possible $200,000 bonus).

Full Professor

1979: $107,493

2013: $167,260

Associate Professor

1979: $77,153

2013: $114,071

Assistant Professor

1979: $61,119

2013: $100,048

Dean of the Law School:

1979: $169,075

2013: $420,000

Administrative Assistant/Secretary

1979: $45,985

2013: $43,078


1979: $216,000 salary (other compensation, if any, unknown, although it’s safe to assume use of the president’s house was included.)

2013: $603,357 base salary; $100,000 bonus in lieu of a raise; $100,000 additional annual retention bonus; $175,000 annual deferred compensation, $50,000 annual retirement pay, free use of residence and car.

Free advice for HR Clinton

[ 228 ] June 22, 2014 |

Stop saying stuff like this:

Bill and Hillary have reportedly made more than $100m since they left the White House in 2001. Yet that didn’t stop Hillary complaining to Diane Sawyer on ABC News that the couple had emerged from highest office “dead broke”, a comment that ranks for its tone deafness alongside John McCain’s admission in the 2008 presidential election that he couldn’t remember how many houses he owned.

America’s glaring income inequality is certain to be a central bone of contention in the 2016 presidential election. But with her huge personal wealth, how could Clinton possibly hope to be credible on this issue when people see her as part of the problem, not its solution?

“But they don’t see me as part of the problem,” she protests, “because we pay ordinary income tax, unlike a lot of people who are truly well off, not to name names; and we’ve done it through dint of hard work,” she says, letting off another burst of laughter.

Did FDR ever pretend to be anything but a member in bad standing of the American aristocracy? I don’t think he did — which is probably why so many of his peers hated him with special venom. And he welcomed their hatred.

How to do things with advanced degrees

[ 165 ] June 22, 2014 |

Bernie Burk points to some ominous parallels between institutional reactions to overproduction of JD and PhD degrees.

Burk’s target is a recent report from an MLA task force, which concluded that:

(1) The median time taken between entry into graduate school and receiving a humanities PhD is nine years.

(2) Only about 60% of recent PhD recipients in languages and literature are getting tenure-track jobs.

(3) (1) and (2) don’t lead to the conclusion that too many people are getting PhDs, because you can do a lot of things with a PhD besides teach in a tenure track position.

The discourse of Ph.D. overproduction is wrong,” said Russell A. Berman, who led the task force that wrote the report and is a professor of comparative literature and German studies at Stanford University. “What we need instead is a broadened understanding of career paths.”

Departments should be more clear with students from the start that tenure-track jobs are becoming harder to find, Mr. Berman said, and should also explain to students what else they could do with a language or literature Ph.D. Career options off the tenure track, he said, include teaching at community colleges and high schools, working at cultural institutions such as heritage museums and libraries, and putting skills to use in the private sector.

“The subject matter may, in fact, be far from literature,” Mr. Berman said, “but the rich professional formation acquired during the course of doctoral study can be put to good use.”

As Burk points out, this sounds very much like the “you can do so many things besides practice law” line that began to be pushed aggressively by legal academic administrators, when it started to become clear that large percentage of law graduates weren’t getting jobs as lawyers.

In law, there are a couple of big problems with that argument:

(1) While it’s true that there are some non-lawyer jobs for which a law degree provides an advantage to a candidate, there are also many jobs for which a law degree constitutes a disadvantage. Nobody to my knowledge has even attempted to estimate the net effect of the interplay of these two categories on the employment prospects of non-lawyer JDs.

(2) Even for non-lawyer jobs for which a JD provides an advantage, it’s implausible that the cost of getting a law degree justifies whatever advantage a law degree provides. From an ex ante perspective, somebody who ends up as a compliance officer or a landman or in an HR office or what have you probably wouldn’t have gone to law school if he or she could have foreseen that the investment in law school wouldn’t actually produce a career as a lawyer.

I know nothing about the non-academic job market for humanities PhDs, but even to my inexpert ears Berman’s examples sound more than a little problematic.

Spending an average of nine years (!) to get a PhD — 44% of the people in the MLA survey had spent ten years or more — in order to end up teaching high school sounds kind of nutty. As for teaching at community colleges, isn’t that market particularly saturated with adjunct positions?

I’m also under the impression that museum work is both extremely difficult to get and generally goes to people with specialized training in the field, while libraries are usually staffed by people trained as librarians.

Suggesting that people “put skills to use in the private sector” sounds suspiciously like a Stanford professor telling the kids to get off his lawn and go get a job doing job things.

Also, the 60% of recent humanities PhDs getting tenure track jobs figure quoted in the report seems more like an optimistic ballpark estimate than a rigorous conclusion, as it’s based on comparing the number of annual PhD recipients to the number of advertised tenure track jobs. That method seems to assume that advertised job positions are always filled, and that they’re filled by recent graduates of American PhD-granting institutions, as opposed to people who have trying to find a tenure-track job for several years, or graduates of non-American institutions.

In any case, it’s a morbidly interesting question as to whether on average it’s worse to be a new JD who can’t get a job as a lawyer, or a new PhD who can’t get an academic job. The new JD is probably going to have way more educational debt (the average educational debt of new JDs is around $150,000), but that has to be offset by the difference between three and nine years of opportunity costs. What neither of these people need are lectures from comfortably tenured academics about how, despite all appearances, the problem somehow isn’t that too many people are being trained at enormous expense for careers that don’t exist.

A simple plan

[ 50 ] June 19, 2014 |

The undergraduate who had been writing poems about killing people showed up for his appointment in my office carrying a black canvas backpack. He was slim and dark-haired, his mouth torqued into an uneasy smile. I had spoken several times about his violent ramblings to the campus police and to the university’s office of mental health, and this was what they came up with: I should invite the student to my office and calmly begin a conversation with the following question: “Do you have a plan to harm yourself or anyone else?”

They didn’t specify a course of action if the answer was yes.

My office is small and square, with glass on three sides; an oversize desk takes up most of the floor space. I seated the undergrad and his backpack in the corner, leaving the door ajar so he was partly behind it. In the open doorway, I seated the student’s graduate teaching instructor — a shy, soft-spoken young woman working on her master of fine arts in poetry. It was she who had reported to me, her faculty supervisor, that despite clear and repeated instructions, the undergrad was writing things that had nothing to do with class assignments — things that made the other students afraid.

She was to accompany me in the subtle art of interrogation, and the two of us had made an agreement: At any sign of a problem, she was to sprint out of the office, assuming that I would be immediately behind her. In order to follow us, the student would have to squeeze somewhat awkwardly between my desk and the propped-open door. . .

I realized I was avoiding a return to The Question. Perhaps stalling for time, I asked about hobbies. What did the student do when he wasn’t studying? Did he have an outlet for relieving stress, maybe something outdoors? Yes, he said, the backpack slouched against his leg like a faithful dog — guns. He’d been taking lessons at a shooting range.

This doesn’t seem like the sort of intervention that should be outsourced (insourced?) by a university’s ever-expanding administration to the school’s faculty, although it doesn’t surprise me that it was.

Are increases in law school and undergraduate tuition due to cuts in state funding for higher ed?

[ 97 ] June 18, 2014 |

It’s an article of faith among many progressives — see several comments in this thread for example — that the radical rise in tuition rates at public universities and law schools over the last few decades is in large part due to severe reductions in state aid to these institutions.

The actual numbers don’t support this belief: in fact they pretty much contradict it.

When reading what follows, I would ask readers who are enthusiastic supporters of public education in general, and public higher education in particular — as indeed I am — to imagine the arguments being made about supposed cuts to higher ed being applied to government spending they don’t like. In those contexts, I think, parallel claims that government spending on X or Y has been “slashed” would be considered transparently disingenuous by those who aren’t big fans of the military industrial complex, or farm subsidies, or tax breaks for SUV owners, or what have you.

As to the numbers themselves, I’ve found annual data on public university tuition and total state spending on higher ed going back to 1982. Here’s what they show: (Around two thirds of law students attend private institutions, or pay unsubsidized out of state tuition at public law schools, but for the purposes of argument I’ll accept the claim that rising resident tuition enables tuition increases at private schools).

Total state funding for higher education rose continually for the quarter century between 1982 and 2007, to the point where such funding was 55% higher, in constant dollars, at the end of that quarter century. This came as quite a surprise to me. I graduated from a public university in 1982, and have taught at another one since 1990, and for all of that time I’ve been hearing about the financial pressure put on public universities by cuts in state funding.

It turns out that university administrators and their publicity organs often use a rather special definition of what constitutes a “cut” in state funding for higher education, which they define as any relative decline in state tax revenues, relative to state spending overall. In this – and pretty much only this – sense, state funding for higher ed has “declined” over the course of the past several decades.

Now an alert reader will ask: shouldn’t the total level of state support for higher ed be adjusted for overall population growth? Yes it should – except the problem with this argument is that there weren’t more traditional college-age people in America in 2007 than there were in 1982, because in the early 1980s the tail end of the baby boom was passing through college.

It’s true that a much higher percentage of traditional college-age Americans are going to college now than in the early 1980s, to the point where by 2007, state subsidies per full-time equivalent public college and university student were only 10% higher than they had been in 1982 – but of course arguing that this means public support for higher ed rose only modestly during this time begs a bunch of crucial questions (Imagine arguing that military spending had “really” gone up by just 10%, because even though such spending was up by 55%, there were now 50% more people in the military).

It’s also true that state funding for higher ed declined sharply in the wake of the Great Recession, which put state budgets overall under tremendous stress, and that such funding is only now starting to recover. Total state funding for higher ed fell from $88.7 billion in 2007 to $72.2 billion in 2012, before beginning to climb again to $75.1 billion in 2013 (all figures are in 2013 dollars). This makes for a total increase in state funding for public colleges and universities between 1982 and 2013 of 32%, and no doubt the decline in such funding in the years immediately after the investment banks did a couple of trillion dollars of damage to the American economy played a role in tuition increases over the past five years.

But the vast majority of the increase in tuition at public universities in general, and public law schools in particular, has nothing to do with declines in state funding between 2008 and 2012, because the vast majority of that increase took place over the previous 25 years, when state support for higher ed was increasing sharply.

Average resident undergraduate tuition at public four-year institutions in 1982: $2,423 (2012$)
Average resident undergraduate tuition at public four-year institutions in 2007: $6,809 (2012$)
Average resident undergraduate tuition at public four-year institutions in 2012: $8,655

Average resident law school tuition at public law schools in 1985: $4,280 (2012$)
Average resident law school tuition at public law schools in 2007: $17,114 (2012$)
Average resident law school tuition at public law schools in 2012: $22,933

Public undergraduate tuition rose 181% in real terms between 1982 and 2007, while public law school tuition shot up an astounding 300% over this same period, even though, again, total state funding for higher education increased by 55% over this quarter century. (There were 74 public law schools in 1982, and 80 in 2007).

Total state funding for public higher education is not, of course, the same thing as total state funding for public law schools. Perhaps law schools have received a smaller proportionate share of the increases in state subsidies for higher ed over the past 30 years.

Nevertheless, the overall numbers here are so extreme that arguments to the effect that increases in public law school tuition are in any significant part due to cuts in state subsidies are surely wrong.

The tuition puzzle

[ 74 ] June 17, 2014 |

This is the first of what will probably be several posts about the extraordinary increases in law school tuition over the past half century (In this as in so many other respects, law school is merely a particularly extreme version of something that has happened all across higher education in America).

First, some numbers:

Law School Transparency has done a nice job graphing what has happened to law school tuition since 1985, in both current and inflation-adjusted dollars. Private law school tuition has gone from just over $16K to just under $42K in 2013 dollars. Public resident tuition has gone up even more sharply, from $4,300 to $23,000, again in constant inflation-adjusted dollars.

These numbers are startling enough, but they obscure the extent to which by the mid-1980s tuition had already skyrocketed over the course of the previous 25 years. LST is using data the ABA posts on its web site, which only go back to 1985. Looking back to 1960, private law school tuition averaged around $7000 in 2013 dollars, while public law school tuition was perhaps a third of that, i.e., essentially nominal (These estimates are based on Harvard’s and Michigan’s law school tuition at the time. They assume that tuition at HLS was around 20% higher than at the average private law school, which has been the norm over the past three decades, and that Michigan’s resident tuition was typical of state law school resident tuition. If anything this latter estimate probably overstates public law school resident tuition in the 1960s).

This is, in the context of normal economic activity, a remarkable situation. People often speak these days of a “tuition bubble,” but a classic price bubble involves a sharp short-term run-up in prices, followed by an even more sudden collapse when the bubble bursts. For example, the US housing market was relatively stable between 1970 and 2000, with median home prices staying between $150,000 and $180,000 in real terms. The housing bubble featured a five-year run up, during which the median price rose by nearly 70%, before falling back to pre-bubble levels just three years after the peak.

By contrast, the law school (and to a somewhat lesser extent, the higher ed) tuition “bubble” has now featured more than 50 years of basically continual real price increases, with essentially no retrenchment. This has led to prices rising in real terms not by 70% in the short term, but rather by 500% for private law schools and 900% for public law schools — and in the long and continuous term.

Is there anything else in the contemporary economy that has featured similar sustained price increases? The only examples I can think of are the ownership interests in certain professional sports teams, some extreme high end luxury goods –paintings by famous artists and the like — and of course health care, in regard to which spending per American increased by 7.6 times in real terms between 1960 and 2009.

The markets in NBA teams and Klimt paintings involve a few dozen extremely rich buyers, whose behavior can be explained readily enough by concepts such as the declining marginal utility of income and the perverse attractions of Veblen goods. The market for law degrees involves more than 100,000 people at any one time, while that for higher education in general involves more than ten million simultaneous purchasers. Why are Americans willing to pay literally five or ten times as much, in real terms, as people paid two and three and five decades ago for essentially the same thing?

In the case of health care, the answers are by now well known, involving the profound distortions created by third party payment systems, in the context of the purchase of a good that often doesn’t allow for any meaningful price competition. Indeed it’s now universally acknowledged by disinterested observers that the American medical system is a textbook example of massive market dysfunction, leading to severe overpayment for a good that is provided by the medical systems of every other developed economy for a small fraction of the price, with little or no loss of quality.

In the case of higher education in general, and law school in particular, the answers are not as well understood, in part because until very recently the American higher education establishment had done a masterful job of selling the idea that higher ed was a “great investment” at almost literally any price. Only in the last few years has that idea begun to be questioned in any serious and sustained way.

In subsequent posts I’m going to look at some of the factors that have produced this increasingly destructive social situation.

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