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On bullshit and law schools

[ 73 ] December 13, 2011 |

25 years ago a Princeton philosophy professor named Harry Frankfurt published an interesting essay called “On Bullshit.” The essay distinguished between the liar and the bullshitter as follows: The liar believes that A is the case, but he wants to convince you both that Z is the case, and that he believes Z is the case. The bullshitter, by contrast, wants to convince you that Z is the case and that he believes Z is the case, but he is indifferent as to whether Z is the case or not:

The fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it. This does not mean that his speech is anarchically impulsive, but that the motive guiding and controlling it is unconcerned with how the things about which he speaks truly are.

Read more…


An early Christmas present for the prospective law school class of 2015

[ 37 ] December 12, 2011 |

I’ve been looking at some of the discussion threads at, which advertises itself as “created to provide you with the necessary information to successfully navigate you through the law school application process and find the ideal law school, so that your next three years can be as rewarding and enjoyable as possible.” This seems like a useful public service, to which in this season of giving I’d like to add my own contribution. Read more…

“Theft” is such an unpleasant word

[ 27 ] December 9, 2011 |

If I were the dean of a law school that was getting sued for luring students to my school via wildly misleading employment and salary figures, here’s what Item One on my day planner would not be: “Publish op-ed full of wildly misleading employment figures in legal employment magazine.”

But I’m not Nelson Miller, dean of the Thomas M. Cooley School of Law’s Grand Rapids campus. The charitable interpretation of Miller’s defense of legal education as a “value proposition,” as they say in the B-school literature, is that he is a profoundly stupid man who is incapable of understanding even the simplest statistical arguments. The realistic interpretation is that he is a profoundly dishonest man, who is quite capable of making what he fully realizes are utterly misleading arguments, if doing so is necessary, in his calculated view, to preserve his salary.

But again, even leaving the ethics of lying your ass off in public aside, I don’t believe a prudential calculation regarding present circumstances would lead to the conclusion that it’s wise for Cooley administrators, of all people, to publish “arguments” of this sort:

According to the U.S. Bureau of Labor Statistics, lawyer unemployment rose from 1.1 percent in 2007 to 1.9 percent in 2008 and 2.3 percent in 2009 but fell to 1.5 percent in 2010. Between 2000 and 2010, the number of unemployed lawyers grew from 9,000 to 16,000, but only from 12,000 to 16,000 between 2007 and 2010 during the depth of the recession. Contrast these small numbers to 1,040,000 employed lawyers and to much greater job losses in other fields. New law jobs arose even in the teeth of recession. From 2000 to 2010, the economy created another 123,000 lawyer jobs while adding only 7,000 unemployed lawyers. Employed lawyers grew by 39,000 from 2007 to 2010 across the recession.

Dean Miller’s argument is that there are more than one million employed lawyers in America, and only 16,000 unemployed attorneys in our fair nation, so going to law school right now, especially a law school like Cooley that prepares its graduates to practice law, is a wise investment. I actually laughed out loud typing that sentence. Seriously, why is this guy wasting his talents as a law school dean when he should be arguing that his client has a constitutional right to pave over Lake Tahoe, or that the victim of this so-called crime stabbed himself in the back repeatedly?

I’m not going to bother pointing out what’s so absurd about this “analysis,” since Matt Leichter has already thoroughly trashed Miller’s preposterous claims (twice!). Instead I’m going to touch briefly on a couple of related issues.

First, what exactly is the ABA accreditation process good for if it lets a place like Cooley rip off nearly 4000 law students per year? Yes, you read that right: Cooley currently has 3,931 J.D. candidates: one out of every 38 law students at an ABA law school currently goes to one of Cooley’s four campuses. Right now it appears the ABA accreditation machine is giving both lawyers and the public the worst of both worlds: the extra costs associated with regulatory barriers to entry, without the benefits — to lawyers obviously — of cartel-level prices, or of higher quality legal services to the public. (In terms of the latter, how much “quality control” is being maintained by a system that allows Cooley to accept 84.4% of its full-time applicants, as it did last year?).

Second, what is the matter with these people? By “these people” I mean legal administrators, not naive young people in a lemming-like race to get ripped off by supposedly respectable authority figures at the top of a supposedly respectable profession. I guess the answer could be as simple as that some people will do anything for money.

The dean of the University of Texas School of Law was forced to step down Thursday amid criticism by some faculty members about his allocation of donated funds to professors.

Larry Sager had planned to conclude his deanship at the end of the 2011-12 academic year. But UT President William Powers Jr., a former law dean who named Sager his successor in 2006, told the American-Statesman that the faculty had become so divided over Sager’s leadership that an immediate change was needed.

Apparently, Sager’s “leadership” included extracting a half million dollar “forgivable loan” for himself from the law school’s private funds (Jurisprudential puzzler for you soon-to-be unemployed UT law students: if you take out a loan that doesn’t have to be repaid, is that really a loan, or more of a gift to yourself?). But Sagar’s generosity didn’t just extend to himself:

UT records obtained by the American-Statesman under the Texas Public Information Act show that a number of law professors received sizable funds from the foundation, in some cases hundreds of thousands of dollars. Powers and Sager said those outlays are made on the dean’s recommendation. Jon Newton, president of the foundation, confirmed that.

“Every member of the faculty with a named professorship or chair gets summer support and/or a salary supplement from the foundation,” Powers said. “Sometimes we help people with mortgage loans and things of that sort.”

Hmmmm. Exactly how much “help” do these people need? (According to public records the average salary of UT law professors is north of $200K a year, not including fringe benefits, loans that don’t have to be repaid, and things of that sort. Apparently these “forgivable loans” were retention payments, i.e., the school “loaned” professors money that they wouldn’t have to repay as long as they didn’t leave during the duration of the “loan.” So Sagar essentially paid himself $100,000 per year, on top of his annual $380K salary, not to quit his job.).

The foundation outlays and other compensation information were originally requested by three law professors. One of them, Jack Sampson, said the records speak for themselves.

“This is above my pay grade,” Sampson said. “I don’t need to comment, and I don’t think I should comment.”

The records show that some faculty and staff members at the law school have complained of being underpaid or discriminated against because of their gender, age or ethnicity. In some of those cases, sizable settlements resulted.

Linda Mullenix , a law professor who complained of “pay discrimination,” received a $20,000 raise and a $250,000 forgivable loan. Laura Castro, who had been a spokeswoman for the law school, received $101,292, the honorific title of “visiting scholar” and use of an office for a year.

Maybe Dean Miller should use these inspiring examples for another article how well getting a JD can pay off these days, so to speak.

O tempora! O mores!

What’s the Matter with Kansas?

[ 24 ] December 8, 2011 |

Charlie Weis? Srsly?

To refresh recollections, Weis, who had zero college coaching experience and no head coaching experience of any kind, got hired by Notre Dame on the basis of his ability to put together mediocre NFL offenses while burdened with Tom Brady as his quarterback. At ND he had a couple of good seasons with Ty Willingham’s players then proceeded to do a spectacular face plant on the field over the next three, while off it alienating everyone connected with the program with his tactlessness and arrogance — a combination which inspired ND to spend 2/3rds of the money in the world to get rid of him, after they had imprudently signed him to a ten-year extension seven games into his head coaching career.

After a one-year stint back in the NFL as KC’s offensive coordinator, he took the same position with Florida and proceeded to put together the 102nd best offense in Division I college football (out of 119 teams). This earned him a three million dollar per year contract with the hapless Jayhawks.

In short it would be difficult to come up with a worse hire if you were trying. Of course this is a school that fired a guy one year after he took a perennially hopeless program to the Orange Bowl, then turned around and fired his successor two years later while owing him six million dollars in buyout money.

Best Twitter line so far.

UPDATE [SL]: The analysis of Paul’s fellow UM alum Jon Chait remains definitive. Also, I’m pretty sure the Internet Constitution requires us to post this book cover:

UPDATE 2 [EL]: Bobby Bowden on the hiring of Weis: “You got to be kidding me. He’s going to be the head coach?”

The future of Albert Pujols

[ 51 ] December 8, 2011 |

The Pujols signing is interesting in that it’s taking place in an era in which we have vastly more information about likely long-term player value than we had even a few years ago. There are a couple of complicating factors to analyzing the Angels’ decision. First, it’s unclear that Pujols will actually turn 32 next month. If he’s even a year or two older that changes the calculus significantly. Second, we live in an age of better baseball through chemistry, so older data about player aging patterns may not be completely applicable (this isn’t meant to imply anything about Phat Albert’s training regimen in particular).

Anyway, this kind of decision seems to me to illustrate something Taleb calls “the cemetery problem” in The Black Swan — the natural psychological tendency to pay more attention to more visible than less visible data. The idea is that there are lots of great baseball players who have had great seasons in their mid and even late 30s, so it’s reasonable to expect that the Angels will get six or seven outstanding seasons out of Pujols, and that the last three years or so of his contract (when even the most optimistic predictors will admit it’s unlikely he’ll be better than an average first baseman) can be thought of as a signing bonus the team had to pay in order to get all those future great seasons from him.

It’s true that various baseball superstars have had several great seasons between age 32 and 38. (Leaving aside Barry Bonds for obvious reasons 38 seems to be the outer limit). What’s much less obvious is that there are a far larger number of superstars who have had only one or two — or no — great seasons after age 31. We’re far more likely to pay attention the first group of seasons than the second group, because the second group is essentially a cemetery for the failure of former greatness.

Here’s a list from Win Shares that represents the overall percentage value of the greatest 250 or so players in baseball history by age. The players reach their maximum combined value (100%) at 26, and essentially maintain it through age 31, at which they still have 93% of their highest value. Then this happens:

32: 90%
33: 82%
34: 72%
35: 65%
36: 55%
37: 37%
38: 26%

Now starting at age 36 a significant number of the players in the cohort start falling out of the league altogether, which obviously affects the total percentage value in a strong way, but on the other hand there have been lots of truly great players who were completely finished at age 37, and there’s no guarantee that Pujols won’t be one of them.

I think it’s a terrible contract.

Losing It

[ 17 ] December 7, 2011 |

I’ve just gotten William Ian Miller’s new book, LOSING IT: in which an aging professor LAMENTS his shrinking BRAIN, which he flatters himself formerly did him Noble Service. It is, as anyone who has read Miller’s previous books can anticipate, mordantly hilarious:

Occasionally I flatter myself that I am earning my keep, contributing more than I am consuming. And unlike those football players and boxers who do not know when to quit, professors, like me, cannot be cut. Tenure and age discrimination laws let us keep working, which somehow does not seem the right word. Besides, there are always a couple of lazy colleagues whose real contribution to the enterprise is to make less lazy ones feel like we deliver value for the price. Never mind that my keep would fund four entry-level scholars in history or anthropology who are now unemployed: I still have kids of my own to feed, though I might be feeding them with someone else’s. Self-deception and wishful thinking, looking on the bright side in a self-interested way, keep us conveniently color blind to our real value, seeing black when the ink is red. Or simply not caring if it is red, when we see it.

Miller, who taught me (after a fashion) property law 25 years ago, was born at the beginning of the baby boom, while I was born near the end. I’m old enough now to read this passage with a genuine shudder of no longer abstract recognition, as opposed to laughing at it with the insouciance of a still-young man.

One of the many disadvantages of getting old is that it becomes increasingly difficult to recognize that the world is in fundamental ways no longer the world of your youth — that things have changed in a way to which you cannot relate, or to which you can only partially relate after a massive effort to break through the complacency which age gradually imposes on you like some sort of psychological sediment.

In dealing with my colleagues regarding the current crisis in American legal education, I find it’s remarkably difficult to get them to accept that there aren’t any new legal jobs. This wasn’t the way things were when they were younger, and so it simply can’t be the case. Or rather, they remember economic downturns from 20 or 30 years ago, and the difficulties people — perhaps even they — had getting jobs, and they think, this is like that, and everything turned out fine in the long run.

Both those beliefs are mistaken: everything didn’t turn out fine in the long run — for many years now huge numbers of law graduates haven’t ever really managed to have legal careers — and, more to the present point, this is not like that.

Recently I’ve been emphasizing that, according to long-term projections, American law schools are going to be turning out two graduates for every available legal job. It’s worth noting that the present situation is actually worse than that. According to the Bureau of Labor Statistics, the “legal sector” (this means everybody employed in a legally-related job, not just attorneys, i.e., paralegals, other admin staff, etc.) added 100 jobs in November. That’s in America. 100 jobs. Total.

This, by the way, counts as comparatively good news, since the legal sector is down 3,100 jobs since last November.

Assuming that within that sector lawyers aren’t being hired at a faster rate than other personnel, this means that, over the past year, ABA law schools haven’t cranked out two new lawyers for every available job, but rather that the ratio has been even worse than that.

There are no new jobs. This means that every new lawyer who gets a job is, as a matter of current economic reality, taking a job from a non-new lawyer who had one. (In some cases this will involve retirement, death, or a truly voluntary exit from the profession, but in many cases it won’t). People focus on the entry-level job market for attorneys, and of course that’s crucial, but they tend to forget that the problems of our industry go way beyond the fact that half of our newest crop of graduates aren’t getting real legal jobs of any sort. What about our graduates from two and four and six years ago, a large percentage of whom are losing their jobs, and are currently every bit as legally unemployed as our graduates who never got a legal job in the first place? Do we know what the percentage is for the graduates of our particular law school? We do not, because we have not made the relevant inquiries.

Again, there are no new jobs. On net, this is not hyperbole: it is a simple statistical truth. The “optimistic” take from the BLS is that things will soon get “better,” and we can get back to producing two new attorneys for every new legal job. But right now the American economy is losing legal jobs — and the ratio of new lawyers to available legal positions may well be quite a bit worse than two to one.

We can quit any time we want

[ 22 ] December 1, 2011 |

Law schools have become addicted to federal educational loan money. Under current law, schools can charge whatever they want for tuition, and the federal government will loan 100% of that amount, plus 100% of estimated living expenses, to any admitted student who isn’t in default on an educational loan, no questions asked. You don’t have to have a Ph.D. in economics (something an increasing number of law professors actually have, not that it seems to be doing any good in regard to this particular subject) to realize this is a recipe for reckless financial behavior on the part of everyone — students, schools, and the government — involved in these transactions.

These are very high-interest loans that aren’t dischargeable in bankruptcy, which means that the people who are borrowing the money will be doing severe damage to their financial futures if they aren’t able to repay the loans in a timely manner. Despite the best efforts of legal academia to hide the fact, it’s becoming increasingly clear that an actual majority of recent law school graduates and current students are or will soon find themselves in that precise position.

A crucial goal of the push for greater law school transparency is to make the specifics of this situation as clear as possible to three groups of people: prospective law students and their families, people working inside law schools, and government officials. The need to educate the first group is obvious: what’s not as immediately obvious is that it’s just as important to raise the consciousness of the people who draw their paychecks from law schools, and the people who make the laws that keep the ever-increasing supply of taxpayer-funded tuition money flowing.

People inside law schools need to be confronted with the real numbers for two reasons: First, some will feel moral qualms about making a living by selling a service which is leaving the majority of the people to whom they’re selling it worse off than they were before. Second, even those who don’t feel such qualms will, if they are prudently self-interested, recognize that they’re making their living off what in the long term is an unsustainable business model, and that it’s in their interest to change that model before it’s changed for them.

Government officials need to see the real numbers so they can reform a system that at present does immense damage to borrowers and then leaves taxpayers holding the bag.

How should the federal educational loan system be reformed? This is a complicated question, which of course applies to all of higher education. Here I’m merely suggesting what might make sense for law school loans, which by themselves represent a several-billion dollar a year “investment” on the part of law students and, ultimately, taxpayers.

The most obvious initial reform would involve the federal government refusing to allow law schools to stick the government with the bill for whatever amount of tuition the schools decide to charge. For example, the government could limit federal educational loans for law school tuition to $15,000 per year (this figure represents the average cost of private law school tuition, in current dollars, 25 years ago. Public law school tuition averaged a quarter of that). Schools that wanted to charge more tuition than that would be free to do so, but students would either have to come up with the money themselves, or borrow it from private lenders (these loans would be dischargeable in bankruptcy), or be granted the difference by the school in the form of scholarships.

Such a reform would only be a first step. The way higher education is paid for in this country is in need of a complete overhaul, and law schools are only a small part of the picture. Still, stopping the absurd practice of requiring taxpayers to pay literally whatever law schools decide they want to charge for law degrees is a good place to start.

Should noted philanthropist Ndamukong Suh have been suspended for two games?

[ 26 ] November 30, 2011 |


Sometimes we need to look beyond opinions from the usual suspects for a more nuanced treatment of these sorts of questions.

Blame it on Cain

[ 36 ] November 29, 2011 |

The news that Herman Cain is “reassessing” his presidential campaign after a woman’s claim that she had a 13-year extramarital affair with him became a news story once again illustrates the unfortunate tendency to confuse legitimate news stories with pure gossip whenever the word sex is involved.

The Cain campaign’s response to the claim attempts to take advantage of this confusion:

In a statement, Cain’s campaign called the accusations just another attempt to “derail the Cain Train.”

“The Cain Campaign is not surprised that another female accuser has come forward due to the fact that earlier allegations were unable to force Herman Cain to drop his presidential bid to renew America,” the campaign said in a statement.

The previous allegations against Cain all involve alleged sexual harassment on his part against his employees, i.e., a species of serious employment discrimination which is actionable under state and federal law, and they were, if credible, obviously of great relevance to Cain’s candidacy. A sexual liaison between consenting adults is a different matter altogether, but the Cain campaign is trying to take advantage of the widespread belief that sexual harassment is about personal sexual behavior per se, (or to put it more bluntly, that sexual harassment is just another word for crazy vengeful gold-digging tarts upset about whatever stuff women inexplicably get upset about), rather than about the abuse of power in an employment context.

Obama’s judge problem

[ 17 ] November 29, 2011 |

I have a piece in the Daily Beast, commenting on the fact that Obama’s judicial nominations are getting rejected by the ABA at four times the rate that Bush II’s and Clinton’s were.

The most prevalent form of degradation in academic life

[ 27 ] November 28, 2011 |

head in sand

Legal academia is very much on the defensive at the moment, which is all to the good. The mixture of outrage and pearl-clutching which greeted David Segal’s latest entry in his series in the New York Times on the state of American legal education is a sign of, if nothing else, the extent to which law school faculty and administrators are finally noticing that we are dealing with that most dreaded of things, a genuine public relations crisis. (Unlike the economic and personal disaster which has been overwhelming a growing percentage of our graduates for many years now, this is one crisis which cannot be ignored).

Given that reaction, this seems like a good time for a restatement of some fundamental points, to help avoid a deflection of the conversation into tangential issues such as the actual value of legal scholarship, how much law professors get paid, how much Socratic method nonsense still inhabits our classrooms, etc. (Many thanks to Matt Leichter’s invaluable Law School Tuition Bubble for collecting and analyzing much of the data cited below).

POINT ONE: Over the past 20 years, the share of the nation’s GDP attributable to the legal services sector has deteriorated significantly. In the late 1980s, the legal services sector represented slightly more than 2% of GDP (the same percentage as in the mid-1970s). As of 2009, that figure had declined to 1.37%. Contrary to the standard narrative within legal academia, which assumes an increasing or at least steady demand for legal services relative to overall economic growth, the demand for legal services within the American economy has been declining, relative to the rest of the economy, for the past two decades. In other words, “law” (as an economic entity) appears to be a mature industry in relative decline.

POINT TWO: The rate at which American law schools are producing aspiring lawyers far outstrips the demand for new lawyers, and this has been the case for many years now. The Bureau of Labor Statistics estimates that the economy will produce an average of approximately 24,400 new jobs for lawyers per year over the next decade. ABA-accredited law schools are producing 45,000 new graduates per year, while non-accredited schools produce several thousand more (Approximately 53,000 people pass state bar examinations each year). An important sub-point about these statistics is that the BLS estimates are not for how many jobs will be filled by new law school graduates: they are for all new legal jobs. What this means is one can’t assume, for instance, that half the 50,000 aspiring lawyers (conservatively speaking) that enter the market each year will get law jobs, since some of those new jobs are going to be taken by people already in the market for attorney jobs who were not currently employed as attorneys. Obviously, this problem gets worse over time, as the surplus of lawyers without law jobs continues to increase.

POINT THREE: The cost of law school is, in economic terms, arbitrary. Given the faith in well-functioning markets that well-functioning citizens in our society are expected to maintain, this point is extremely counter-intuitive, but it is, given points one and two, essentially undeniable. For more than twenty years now, the demand for the services of American law school graduates has been declining relative to the demand for other economic goods (not constantly, of course, but the overall trend is clearly negative). For much if not all of that same time, the output of American law schools has far exceeded the demand for that output, and now appears to be in a roughly two to one ratio. Yet since 1985, tuition at private law schools has increased by 2.5 times in real terms, while resident tuition at public law schools has increased more than fivefold, again in real terms. In other words, over the past quarter century, the relative change in the cost of acquiring a law degree has borne no rational relationship to the relative change in the value of a law degree.

POINT FOUR: There is, to this point, almost no sign that this arbitrary relationship between the change in the cost of acquiring law degrees and the change in their value is going to move toward a more orthodox economic relationship, in which the decreases in value trigger decreases in price. Law schools continue to raise tuition at far faster than the rate of inflation, and the market for the graduates of law schools — which it bears repeating has been bad relative to the rest of the economy for many years, for reasons that have nothing to do with the recession that began in 2008 — continues to deteriorate. An extrapolation of current trends into the very near future, i.e., four years from now, suggests that private law school tuition will average $50,000 per year, and will be more than $60,000 at some schools, while average resident tuition at public law schools will be as high as private law school tuition was in 2007. This means that the total cost (tuition and related expenses, plus opportunity cost) of attending law school will be approaching $300,000 for many students and will be at least $200,000 for the vast majority. Meanwhile, it appears that around half these graduates will not have real legal careers, defined as long-term employment in jobs requiring law degrees, and that indeed for a significant percentage of them acquiring a law degree will have made them less employable than they would have been otherwise (In other words, for these graduates, law school will have turned out to have been a bad investment even without regard to the direct costs and opportunity costs incurred by attending it).

POINT FIVE: These otherwise unsustainable trends are being maintained by a combination of unlimited federal educational loan money and, to a lesser extent, poor information regarding the actual relationship between the costs and benefits of acquiring a law degree. Any significant change in either of these factors, but especially the first, will lead to a massive disruption in the current economic structure of legal education in America.

Hast thou seen my anointed, TEBOW?

[ 68 ] November 27, 2011 |


A reading from the Book of Comebacks, Verses 3-13

Hast thou seen my anointed, TEBOW
For verily, there is none like him.
Let the heathen rage, for my BLESSING is upon him,
And I shall smite down those who mock him
Hurling them from their high places into
A slough of despond,
Until the LAMENTATIONS of their women
Fill the air, and they shall know him in his GREATNESS.

Let not the Chief nor the Raider lay strong hands upon him
For my WRATH shall blaze up against them;
And let the Charger give way before him
So that the scribes compose paens to his glory
And the minstrels sing A NEW SONG to his reign.

Seriously, this is starting to get weird.

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