Showing us where the conservertarian movement to restore the law of the Gilded Age is headed, Phillip Hamburger has a forthcoming book called Is Administrative Law Unlawful? “that answers this question in the affirmative.” Unfortunately for him, Adrian Vermeule has read it:
But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistake about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.
In the first section, I’ll try to reconstruct Hamburger’s critique, whose basic ambiguity arises from the fact that Hamburger is impenetrably obscure about what he means by “lawful” and “unlawful.” Those terms are only loosely related to the ordinary lawyers’ sense. In my view, the best reconstruction is that Hamburger thinks that there are deep unwritten principles of Anglo-American constitutional order, derived from the views of English common-law judges; departures from those principles are “unlawful.” In the second section, I’ll try to show that the book’s arguments are premised on simple, material and fatal misunderstandings of what is being criticized, and never do engage the common and central arguments offered in defense of the administrative state. In the conclusion, I’ll consider a suggestion that the book is only masquerading as legal theory, and should instead be understood as a different genre altogether — something like dystopian constitutional fiction. Although the suggestion is illuminating, and tempting, I don’t think it applies here.
It’s definitely all worth reading if you’re interested in that kind of thing.
Just days before the start of the new school year, Suffolk University Wednesday abruptly replaced president James McCarthy with a year remaining on his contract, and tapped a veteran educator with a reputation for turning around struggling colleges to serve as interim leader.
At an afternoon meeting, the university’s board of trustees voted unanimously to appoint Norman R. Smith, 68, who is best known for his tenure at Wagner College in New York City, where he led a small school on the brink of closing to new prominence.
Smith, who will begin next week, said he was first approached about the Suffolk position just two weeks ago.
“This has happened very fast,” he said. “They didn’t want to go internally, but wanted to have a seamless start for the fall.”
The law school seems to be at the center of the school’s financial problems:
The unexpected change in leadership comes as Suffolk seeks to stabilize its finances and attract students in the college-dense region. Facing a decline in enrollment and revenue, the university announced in June it would freeze employee salaries for the next fiscal year. It also offered buyouts to all law school faculty members with tenure or renewable long-term contracts.
Unfortunately the university’s most recent publicly available tax filings are now two years old, but they reveal a heavily tuition-dependent school with a small endowment and very large bond liabilities (I assume the latter are products of the typical grandiose building schemes that have infested the American higher ed empire over the course of the last generation).
In FY2012 Suffolk was carrying nearly $400,000,000 in debt, versus total assets of just over $600,000,000, half of which were comprised of the downtown Boston real estate which the school currently occupies. Almost 95% of the school’s revenue came from tuition. The school paid its former president David Sargent — his presidential tenure was from 1989 through 2010 — just under $1.2 million in FY2012, which seems like a very prolonged and passionate golden handshake. Sargent began his “academic” career as a member of Suffolk law school faculty, and eventually became the school’s dean. The law school’s then-new building was named after him in 1999 in the midst of his reign, which seems rather tacky, but I’m probably failing to appreciate what a “transformative” figure he was etc. etc. (Actually he appears to have been forced out in 2010, after much outcry over his increasingly grotesque compensation packages).
Speaking of the law school, the striking news that the university has offered buyouts to all of its tenured faculty raises some questions regarding the school’s financial status. Suffolk Law by itself generates about one fifth of the university’s total tuition revenue. Recall that tuition revenue makes up almost all of the university’s operating income, so the if the law school catches a cold the larger institution may soon develop pneumonia.
What’s the impetus for trying to seriously downsize the law faculty? Is the law school losing money, or not making enough surplus income for the university? I’ve calculated how much net tuition revenue the law school cranked out in FY2013 per full-time faculty member:
Full time sticker tuition: $24.8 million
Full time discounted tuition: $15.7 million
Part time sticker tuition: $12.6 million
Part time discounted tuition: $4.4 million
Total JD tuition revenue: $57.5 million
Non JD tuition revenue: $1.3 million
Total tuition revenue: $58.8 million
Total tuition revenue per full-time faculty member: $632,258
Note this isn’t the law school’s total revenue, as it omits endowment income, annual gifts, grants and contracts, rentals etc. Let’s assume all of the latter comprise only 5% of the law school’s total revenue (frankly it probably isn’t much higher than that). That would mean the school was generating around $670,000 in annual revenue per full-time faculty member in FY2013 (the school’s dozens of adjuncts are of course paid next to nothing — probably a few hundred thousand dollars collectively).
It’s hard to believe the law school can’t generate some surplus income for the university on the basis of those figures, despite the inevitable existence of various Assistant Vice Deans For Achieving Bureaucratic Rectitude, paying the debt on the school’s fancy relatively new digs, and so forth. On the other hand, the law school is dealing with plunging demand: while class sizes have yet to be much affected, the school has moved from a mildly selective to a quasi-open admissions model. In 2004 the school admitted 40% of its applicants; last year that figure was 77%, and the median LSAT score of matriculating students has plunged from the 67th to the 41st percentile.
All this raises the question of whether the ongoing crisis in American legal education is creating an opportunity for central university administrators to engage in draconian cuts, in order to restore their law schools to something of a cash cow status, after years of profligate law school spending in the severely negative sum pursuit of rankings and “prestige.” Of course the answer to that question will vary across institutions, but at many universities I suspect the answer will be yes.
Thirty-six hours after the Obama administration banned importation of the classic brand of AK-47 assault rifles as part of sanctions against Russia, a Maryland dealer specializing in the weapon took stock of its inventory.
There was nothing left.
Laboring almost nonstop, workers at Atlantic Firearms in Bishopville, a Worcester County community on the Eastern Shore, had shipped hundreds of Russian-made AK-47s — an assault rifle prized by both consumers and despots — as buyers wiped out gun dealers’ inventories around the country. The frenzy was brought on, in part, by a suspicion among some gun owners that the Russia-Ukraine conflict was a backdoor excuse to ban guns many Democrats don’t like. Some customers bought eight to 10 rifles for nearly $1,000 each or more, stockpiling them as investments.
Did Putin and Obama meet secretly at the G-20 in September 2013, arranging a plan by which Putin could carve up Ukraine and Obama could carve up our Second Amendment rights? It would be irresponsible not to speculate!
I don’t have time for a major post on Labor Day, as I have just completed the manuscript draft of my logging book and am exhausted. But I do have 116 This Day in Labor History posts, helpfully archived, for your perusal. That ought to serve your Labor Day needs.
Some links for your reading pleasure…
- Turns out the German weren’t actually tracking Patton’s contributions on a white board.
- Jacobin’s history of pro-wrestling.
- My argument with Loomis over Hamilton, Storified
- The US Navy’s indoor ocean.
- An appreciation of Phil Hartman.
- Putin and rationality.
- The depths of crazy in this story are, for all practical purposes, unfathomable.
There were lots of cats hanging around soldiers during World War I. They were cute. That is all.
UC Davis law school dean Kevin Johnson was crowing to the media last week about a surge in applications to his school, in the midst of a shrinking national applicant pool that has hit California schools particularly hard:
Law school applications nationwide dropped again in 2014. But at least one California school is defying the trend.
UC-Davis School of Law saw its applicant pool surge by nearly 25 percent.
The school had ramped up outreach efforts and eliminated its $75 application fee, said Dean Kevin Johnson, adding that he was “pleasantly surprised” by the results.
UC Davis received 3,007 applications, nipping at the heels of UC-Hastings College of the Law in San Francisco, which received 3,118. . .
“I do think the market is coming back,” he said. “And I do think the nay sayers of law schools and being a lawyer, their days are limited in number.”
Davis got 2,420 applications in 2013, when the school was charging $75 to apply. Readers may be wondering why dropping the price of applying from $75 to zero produced such a relatively modest increase in applications: the answer, in part, is that to apply to an ABA law school you have to pay LSAC $21 to process your application materials, in addition to whatever the individual school charges, so applying to Davis still costs money.
I bet Dean Johnson would be “pleasantly surprised” by yet another surge in applications in this coming application cycle if Davis started actually paying people to apply (by for example sending them an I-tunes gift card, although I imagine cash money would be even more effective, if somewhat less discreet).
Leaving aside the dishonesty and/or cluelessness of touting an increase in demand that’s almost wholly the product of a 100% price cut, Johnson’s crack about “the market’s” comeback, and how this comeback augers the Twilight of the Naysayers makes no sense on its face, since he’s boasting about how well Davis is doing in comparison to a steep ongoing decline at other law schools. (Note that even with the increase produced by its new giveaway strategy, applications to Davis are still down 25% relative to four years ago).
UC Davis Law School resident tuition and mandatory fees:
A for-profit grift mill is shutting down:
After years of enrollment losses, Anthem Education, a for-profit chain of colleges and career institutes, filed for bankruptcy Monday. The company has abruptly shut down a number of its campuses, leaving state agencies struggling to funnel displaced students into other institutions. Nine more campuses may close today, Anthem officials said.
This is actually good news for existing students and taxpayers, since the loans will mostly now be dischargable.
In Oregon/Idaho, the ABA isn’t willing to go along with a new scam as of now, although the grift is still in operation:
Nearly half of the third- and second-year students at Concordia Law School in Boise, Idaho, have left the school in the last three weeks after it failed to get provisional accreditation from the American Bar Association.
Without accreditation, Concordia Law grads cannot take the Bar exam in Idaho, and most other states, necessary to get a license. At least 48 of the school’s 102 third-year and second-year law students have withdrawn, transferred or taken temporary leave from Concordia, school officials said Thursday.
The story is unusually candid about why a school was started to issue essentially worthless degrees in a saturated market:
The situation provides a glimpse into the business of higher education.
Amid difficult times in due to high costs and tough competition, Concordia has launched a dramatic diversification effort, opening the law school and a popular on-line master’s in education program.
The new programs have successfully grown Concordia’s annual revenue from $80 million to $100 million, according to school officials in Portland.
Inconsiderate of the ABA to interfere with this program of revenue maximization scheme.
Between 1935 and 1945, photographers employed by the Farm Security Administration documented the nation and its people as it suffered through and emerged from the Great Depression. 170,000 images remain. Yale University has now placed them online for your exploration and you can even explore by county, which is incredibly awesome. Have fun!!
I find cemeteries pretty fascinating places for a number of reasons. First, I have a bit of a weird hobby of visiting the graves of random famous people from American history that interest me in some way. You can only imagine how much my wife loves random stops at cemeteries. I am going to start a series one of these days about the various people who I have visited in the ground. Sometimes they are horrible people like Henry Clay Frick. Other times, well, just random famous people. Like just the other day, I visited the grave of former Wilderness Society head Howard Zahniser, which I actually have reason to blog about in more detail in a couple of days. Why did I visit the grave of Howard Zahniser? Isn’t the better question why haven’t you visited the grave of Howard Zahniser?
Anyway, that’s just part of my interest in cemeteries. Because cemeteries are also public green spaces, albeit of an odd kind. In many towns, they are the nicest parks around. When I am with my wife, who teaches at a university in a very small town a couple of states over from Rhode Island, I run in the cemetery. Other people use them too–walking the dog, taking the babies on a stroll, etc. And of course for mourning and remembrance. Anyway, maybe it’s because I’m a historian and one more interested in the lives of everyday people than the famous, but when I run through the cemetery, I keep thinking, “Who are these people.” I was running the other day and passed the grave of a man named Jose Garcia, who died in 2000. How did this man, who I assume (rightly or wrongly) came from Mexico or maybe Puerto Rico, end up in this 99% white and very politically and racially conservative town (evidently the official town color is camo based upon the dress of the citizenry)? What was it like for him? What is his story? How did he end up there? What are the stories of everyone else? What was life like here in the 1950s? In the 1890s? Through the hard times and the good times?
I suppose there are some who think people shouldn’t run through cemeteries, and certainly if there’s any, uh, activity going on, I turn around. But I think that by at least thinking about these people and wondering about them, it’s honoring them in a certain way. Some of them were no doubt horrible human beings who committed heinous crimes, treated their families like garbage, and were unloved. Others were great people who made the lives around them better. Who knows. But I’d like to think that when I’m dead and buried in the ground, that someone might run past my marker and think, who was that guy? Kind of gives a person something to die for.