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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.

An awkward kind of justice

[ 142 ] November 18, 2014 |

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

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

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

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

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

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

Further thoughts on tenure

[ 59 ] November 13, 2014 |

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

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

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

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

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

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

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

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

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

[ 75 ] November 12, 2014 |

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

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

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

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

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

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

Ann Althouse does journalism

[ 82 ] November 7, 2014 |

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

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

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

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

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

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

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

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

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