A "Torrent of Words" on the Value of Law School

Frank Pasquale

Professor Tamanaha (BT) complains that Simkovic and MacIntyre (SM) have unleashed a "torrent of words" in response to his criticism. So let's focus on their core points:

1) BT claimed that 16 years of data was insufficient for their study. SM have demonstrated that "We use better (and more) data than studies Tamanaha praised in his book."  BT appears to have a double standard: predictions of doom get a pass, but SM's work merited vituperative attacks immediately upon its release.


Posted 8:33 AM by Frank Pasquale [link]

Leiter's Contradictory Conclusion

Brian Tamanaha

Typical Brian Leiter. He cannot just say why he thinks you are wrong: he sets out to destroy you, ruin your credibility and reputation, and grind your face in the dirt. Leiter says I owe the world an apology—that I must abase myself and do public penance for writing Failing Law Schools—because Simkovic and McIntyre’s (S&M) study has definitively proven me wrong. Remarkably, for all his bluster, when Leiter lays out “what I think we know and don't know,” he repeats one of my main objections to their study.

Before getting to that, I feel compelled to say that I have long been anticipating his “destroy Tamanaha” assault for reasons entirely apart from the current debate over legal education. We have skirmished on various subjects over the past fifteen or so years, but my greatest offense is having the temerity to challenge his interpretation of the formalists and the realists—in particular my argument in Beyond the Formalist-Realist Divide that the conventional story about the formalist age is a myth. Leiter alludes to this dispute in his post: “in the areas where I have expert knowledge, [Tamanaha’s work] has always been a bit notorious for its confusions and theoretical overreaching, especially in its desire to make startling claims, the evidence and the arguments be damned.”

Leiter considers himself the world’s foremost authority on formalism and realism, so anyone who disagrees with him is obviously wrong. Thus it must come as some discomfort to Leiter that a major new historical study, David Rabban’s Law’s History, is consistent with my core argument that our conventional image of the so-called formalist age is false. Robert Gordon blurbs the book, “This is a pioneering study of American historical jurisprudence in the late nineteenth century. It is comprehensive, meticulous, and deeply learned….And it is eye-opening: the standard picture of this era's legal scholars as political reactionaries and abstract deductive 'formalists' cannot possibly survive this splendid and important book.”

As for legal education, based upon a single study Leiter again leaps to judgment and condemns me in a vicious fashion. This debate assuredly has become tiresome for readers, so I will not rehash the details, but instead will briefly comment on his three basic statements about what we know from their study.

1. The vast majority of those who got a JD over the last two decades are better off, financially, than similar individuals who stopped with the BA.

S&M have issued a torrent of words in response to my various criticisms, but what they have not justified is their earnings comparison between the bottom 25th percentile law grads and the bottom 25th percentile bachelor’s holders. This flies in the face of their finding that law grads are above average in GPA’s and test scores, in wealth, in quality of undergraduate college, etc. If we believe that 25th percentile law grads, had they not gone to law school, would likely have been as successful as median bachelor’s holders, their conclusion fundamentally changes.

2. We don't know if other post-graduate degrees are more worthwhile, financially, than the JD; Simkovic & McIntyre did not attempt to address that systematically.

Correct.

3. We don't know if the economic pattern for JD-holders will hold for the future, though Simkovic & McIntyre adduce some evidence that it will.

Correct. This is a stunning statement to read, after the opprobrium Leiter heaps on me, since this is this precisely what I have been arguing.

When stripped to its core, S&M’s argument is that the past generation of law grads (who entered law school in the 1970s, 1980s, and 1990s) reaped an earnings premium of “hundreds of thousands of dollars” at the 25th percentile, therefore, current law students will reap the same. If we don’t know whether this pattern will hold, however, then how can they (and Leiter) express such confidence that people who chose to forgo law school today are making a terrible mistake?

Leiter weakly papers this over by saying S&M “adduce some evidence” that the pattern will continue. But we must not forget that their study omits the dismal results suffered by law grads from 2009, 2010, 2011, 2012, 2013, and counting. (That’s about 200,000 new law grads not captured in their study.) And lots of people, including managing partners of law firms, have expressed the view that the legal job market is undergoing a fundamental transition. The bottom line is that we don’t know. So how can Leiter condemn me for being wrong when the ultimate answer turns on this unresolved question?

Fighting with Leiter is a losing proposition, so I will stop with a final comment. As he often does, Leiter quotes an email from an anonymous colleague who supports his position. I get lots of supportive emails from law profs, including some that make unflattering observations about Leiter, which I will not reprint.
But I must say I laughed when I read Leiter’s unnamed professor remark that I was defending a “profitable franchise.” This enterprise has been anything but “profitable” for me. I have vowed to donate all proceeds from the book to student fellowships, and so far have given much more to this than the royalties I have received. On top of that, I have offended many colleagues across legal academia. This book has been a professional disaster for me, as I anticipated it would be. And Leiter is doing his utmost to make sure of it.


Posted 4:12 PM by Brian Tamanaha [link] (60) comments

CAC, Lawrence Lessig File Brief in McCutcheon v. FEC Urging New Look at Framers’ Understanding of Corruption

David Gans

Posted 12:17 PM by David Gans [link] (92) comments

Let the Supreme Court Handle Appointments to the FISA Courts

Guest Blogger

James E. Pfander

There may be a simple solution to the perceived problem of bias in the appointment of judges to the Foreign Intelligence Surveillance Courts (or FISA courts): shift the appointment power away from the Chief Justice and give it back to the Supreme Court.

Such a move would address the concern that the Chief Justice, John G. Roberts, has appointed mostly Republican judges to that court, as reported in the New York Times on Friday. The shift may well be required by the Constitution, which provides for Congress to vest the power to appoint inferior officers in the “courts of law” but does not authorize the assignment of any appointment power to the Chief. Or so I argue, anyway, in a recent paper, “The Chief Justice, the Appointment of Inferior Officers, and the ‘Court of Law’ Requirement,” 107 Nw. U. L. Rev. 1125 (2013).

Since the 1920s, Congress has assigned a growing bureaucratic portfolio to the Chief Justice of the United States. The Chief presides over the Judicial Conference of the United States, the top policy-making wing of the federal judiciary, and makes a host of important appointments and designations. For example, the Chief chooses the director of the Administrative Office of the US Courts, the judicial branch’s top administrator, and fills vacancies on the various committees that report to the Conference. Finally, the Chief designates sitting federal judges to serve on such adjudicatory bodies as the Judicial Panel on Multi-District Litigation and the secretive FISA courts whose work has drawn closer scrutiny in recent weeks.

Scholars and journalists have criticized the Chief’s appointment and designation role before. Both Chief Justices Burger and Rehnquist were said to have appointed more Republicans to key posts, such as the special division of the D.C. Circuit that presided over the selection of independent prosecutors. While such criticisms can be overdrawn, assignment of appointive power to a single person will inevitably raise questions about the motivations that inform the selection process. The Chief could allay these concerns by creating a more transparent process in which the Court participates as a Court in the selection and designation of top-ranking judicial branch officials.

The practice of court-based appointment has surprisingly strong support in our constitutional culture, notwithstanding recent practice. The nation’s first Chief Justice, John Jay, followed the lead of the First Congress in implementing a practice of court-based appointment. As he prepared to convene the Supreme Court’s first session (in February 1790), he was flooded with petitions from job seekers. Jay replied that appointments to offices in the judicial branch were not his to make but were the responsibility of the Supreme Court itself. And he arranged to have the first appointments made by order of the court and entered on the public record.

Jay’s actions may have reflected his considered view that the Constitution requires this approach. While the President makes appointments to major offices with the advice and consent of the Senate, the Appointment Clause of Article II allows Congress to vest the appointment of inferior officers in the “courts of law.” It makes no provision, however, for the vesting of appointment power in the chief judge or justice of those courts. While the history of the provision is complex, the framers may have acted in part out of a desire to prevent the distribution of patronage by chief judges.

The Constitution’s judicial article confirms the wisdom of court-based appointments. Article III creates a hierarchical judicial branch: it place one Supreme Court at the top of the judicial heap and designates all other courts and tribunals “inferior” to that Court. The logic of judicial hierarchy suggests that officers working within the judiciary should remain “inferior” to the Court, rather than to the Chief Justice of that court.

Some uncertainty remains about the proper scope of the Court’s role in appointments and designations; much would have to be worked out by the Justices themselves. For example, it may be difficult to separate the power to appoint new officials from the task of designating sitting Article III judges to tackle new chores (something the Chief Justice has done since the nineteenth century). But the transfer of appointment and designation power to the Court could improve the process without overburdening the institution. The Chief could still take the lead in preparing a list of prospective candidates, but the process of deliberation by the Court could lead to a more balanced slate of appointments and designations. Notably, the requirement of court-based appointments applies only to “inferior officers” and does not extend to the thousands of employees within the judicial branch whose appointment could interfere with the Court’s important work. In the end, an oversight role for the Court would conform to the constitutional design and help to dispel lingering doubts about modern forms of judicial patronage.

James Pfander is the Owen L. Coon Professor of Law at Northwestern University School of Law. You can reach him by e-mail at j-pfander at law.northwestern.edu
Posted 11:30 AM by Guest Blogger [link]

Panel on War Powers at the Wilson Center

Stephen Griffin

Thanks to an invitation from the Wilson Center in DC, I will be speaking on my book Long Wars and the Constitution in a live webcast next Thursday morning August 1.  Here is the link.  Those of  you on the APSA Law Courts list received an announcement of the publication this month of a related book, Mariah Zeisberg's War Powers: The Politics of Constitutional Authority.  I'm sorry that Mariah couldn't appear on the panel due to a conflict.  I don't mean to speak for her, but I believe we both feel that the traditional debate on war powers could use a fresh departure.  I think it is one of the purposes of both books to provide it.  Scholars specializing in foreign affairs and national security policy (as well as presidential and congressional decision making) who have had an interest in war powers yet have been turned off by the somewhat stale constitutional debate, may be especially interested in both books.
Posted 2:53 PM by Stephen Griffin [link]

Short Term Versus Long Term Perspective

Brian Tamanaha

I fear my criticisms of Simkovic and McIntyre's million dollar law degree study, and their responses, have produced more heat than light. No doubt I bear substantial responsibility for this because I have been in attack mode throughout. Perhaps I can bring this debate to a more useful level by indicating how my position can be reconciled with theirs.

We use different frameworks of analysis. My analysis in Failing Law Schools was avowedly short term (I said next 5 to 10 years) and focused on the financial risk of attending particular bands of law schools (especially expensive law schools with poor employment results). Their analysis is long term (looking at the return over an entire career) and covers the entire pool of law grads.

Their study has convinced me that I was wrong to exclusively focus on the short term--the long term return at the 25th percentile is better than I would have guessed (assuming the validity of their numbers for the sake of this discussion, although the doubts I raised remain). For two reasons, however, I continue to believe my short term analysis is more appropriate. First, the legal employment market remains very poor (even as the general economy has improved), and economists agree that people who enter job markets during down times suffer lower lifetime earnings. No one knows when the turn-around will happen and how strong the recovery will be--the people who entered law school in 2009 and 2010 betting that the job market would improve are now struggling. Second, as Simkovic and McIntyre acknowledge, the risks differ by individual school. They suggest that IBR helps mitigates this risk for those grads who cannot manage the debt, and I agree; yet IBR cannot be considered entirely positive (20 years on a debt relief program with a potentially large tax hit at the end). Both considerations reduce the chance that students who enter particularly risky law schools today will achieve the lifetime earnings value found in their study at the 25th percentile (I care only about the bottom, where the risk of a negative return is greatest).

So perhaps our fundamental difference comes down to this question: When thinking about the risks and returns of attending law school today, is the short term or the long term perspective more illuminating? Of course both should be kept in mind (ignoring the long term was my error), but which one counts for more?
Posted 1:28 PM by Brian Tamanaha [link] (56) comments

And the Shenanigans Begin

Joseph Fishkin

After Shelby County v. Holder, the big question was how different things would really be. After all, plenty of places, including states with highly contentious fights about election procedures and redistricting such as Ohio and Pennsylvania, have never been covered anyway. Was Section 5 really holding back a flood of election changes across the South that would negatively affect minority voters? Or were voting rights advocates’ fears overblown?

As of today it has been a month since Shelby County, and we’re starting to find out. In short, it looks like the voting rights advocates knew what they were talking about.  (As did Justice Ginsburg, who told the AP today, “I didn't want to be right, but sadly I am.”)  With impressive speed, formerly-covered jurisdictions are enacting and implementing major voting changes that will negatively affect minority voters—as well as the poor, elderly, and young voters who were the indirect beneficiaries of Section 5’s protections. Some of these changes are getting a lot of attention, such as the fusillade of statewide changes in North Carolina, where things have now escalated to the point of sit-ins and protests. In Florida, aggressive voter roll purges are set to resume—a story that will undoubtedly get some national attention because of memories of the Florida voter purge in 2000 that removed from the rolls a number of eligible voters many times larger than Bush’s margin of victory.  (And indeed, the architect of the purge set to begin now in 2013 is the very same guy who orchestrated that infamous 2000 purge effort.) North Carolina and Florida were only ever partially covered by the formula the Court struck down in Shelby County, but that was enough to prevent changes like these. In the absence of Section 5, we’re off to the races.

However, the greatest impact of Shelby County will likely be at the local level—in places where media scrutiny is minimal, and litigation resources meager.  You will hear less about these local cases.  But I think that's a problem; they are really where the action is.  And so, via the excellent Texas Redistricting blog (which has links to all the filings and so on), today I bring you the following report from Beaumont, Texas, a small city of about 120,000 in the southeast corner of the state, on the Gulf Coast south of the piney woods. The population is about 45% black; four out of seven school board members are black.  Voting is pretty racially polarized.  This is a convoluted tale, as these tales often are. But in brief, three candidates who lost in the last election to three of the four black school board members are trying to get a state court to oust those three black incumbents and install them (the losing candidates) instead. The losing candidates pulled off a sneaky, and rather brazen, subterfuge: they filed candidate papers for a special election that had not yet been announced, and then subsequently convinced a state court that state law required ordering the election, with a retroactive filing deadline that had already passed. Since the three black incumbents did not file candidate papers—understandably, since no election had been called for their seats, and they are only halfway through their terms—the non-black challengers say the court should just install them, the challengers, as winners by default.  The Beaumont situation provides a particularly clear case of a local shenanigan that could occur only because of the demise of Section 5, for reasons I'll explain below the fold.

Read more »
Posted 3:21 PM by Joseph Fishkin [link]

Teaching Materials for the Marriage Cases

JB

[These are the discussion notes for the Marriage Cases, United States v. Windsor and Hollingsworth v. Perry. A version of these notes will appear in the 2013 Supplement to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition).]

[United States v. Windsor]

Discussion

1. Faux federalism? Justice Kennedy's opinion begins by invoking federalism principles but then veers off and notes that “[t]he State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.”  What role does the state—and the balance between the states and the federal government—play in the majority opinion? Kennedy suggests that “the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. . .  [and] enhanced the recognition, dignity, and protection of the class in their own community.”  The federal government then demeaned (or sought to harm) that relationship by refusing to recognize it when the state does. Does this mean that same-sex relationships would lack either sufficient dignity or sufficient constitutional protection if states had not recognized them?

Read more »
Posted 9:00 AM by JB [link]

Why Tamanaha's "This Time is Different" Critique Fails

Frank Pasquale

Professor Tamanaha's post today expresses deep skepticism about the predictive value of the article "The Economic Value of a Law Degree." Unfortunately, his caution about extrapolation is mainly reserved for academic work he disagrees with.  For Tamanaha, the prophets of lawyers' doom are far more credible than this empirical study. I don't think that's fair, for several reasons I'll give below.

Tamanaha cites a recent New Republic story on Mayer Brown as evidence that law is indeed being disrupted. Here's a response to that piece:

From the cover lines and title (“Big Law in Free Fall,” “The Last Days of Big Law”) to an outlandishly flimsy [prediction] (claiming just one in 10 top firms will survive the imminent apocalypse, or so says “one common hypothesis” that then never gets explained or examined), the story looks at one sore throat and proclaims it a cancer pandemic. Its prognosis on the death of the mid-sized full-service firm echoes a forecast made so many times it has lost all credibility.

Tamanaha also cites several authors who believe the current downturn is structural, not cyclical. A few responses:
Read more »
Posted 10:35 AM by Frank Pasquale [link]

Why the "Million Dollar Law Degree" Study Fails (Final Post)

Brian Tamanaha

My first post criticizing Simkovic and McIntyre’s (S&M) study showed how they overstated the earnings premium from a law degree. My second post showed that the only way to make a useful risk assessment is on a per school basis, and that it is indeed risky to attend a bunch of law schools today. In this final post I will expose what I believe is the most profound flaw in their analysis—and I will apologize for one thing I did wrong.

Let me begin by repeating their core claim: S&M have identified “historic earnings norms” that reflect what people who attend law school today are likely to earn over the course of their careers. They claim that even law grads at the bottom quartile stand to earn “hundreds of thousands of dollars” above what they would have earned without the degree.

We must separate two issues: 1) do their “earnings premiums” accurately represent historic law grad earnings?; and 2) are these earnings likely to hold for the coming generation? For their claims to have merit, they must establish both #1 and #2.


HOW DOES ONE ESTABLISH “HISTORIC NORMS” WITH PREDICTIVE VALUE?

Though it is fundamental to their analysis, this question is not addressed anywhere in their paper. S&M just count earnings data from 1996-2011, and call the results a “historic norm.” To constitute a “historic norm,” however, the earnings during these 16 years must be representative of law grad earnings over time. In other words, if we were to take a 16-year slice of law grad earnings at any random period in the past century, we would come up with roughly the same earnings (inflation adjusted). But S&M did not actually look at any other years of law grad earnings. So they cannot possibly know that this 16-year earnings slice is representative.

In response to this argument, S&M will likely say that they used the best data available. But that is non-responsive. If that’s the best data available, then the logically necessary conclusion is that they cannot determine whether this 16-year slice indeed represents a “historic norm.” The fact that they don’t have enough data to answer the question does not give them license to assume the answer.

The negative answer to #1 is enough to vitiate the predictive value of their study. In the absence of any empirical evidence (even rudimentary) that this 16-year slice is representative of lawyer earnings over time, then it has no bearing on what law grads will earn going forward because it has no predictive weight.


WILL EARNINGS OF THE COMING GENERATION RESEMBLE THE PAST?Read more »
Posted 6:16 AM by Brian Tamanaha [link] (77) comments

Steinzor on the Obama Safety and Health Legacy

Frank Pasquale

My colleague Rena Steinzor offers a valuable perspective on the Obama Administration's labor record.  She notes that there is a very real possibility that Obama "will finish eight years in office having promulgated only two rules to address grave threats to worker safety and health."  What else needs to be addressed? Plenty, according to Steinzor: 

Because of lax rules, workers handling n-propyl-bromide, an extraordinarily toxic chemical used in furniture glue that causes severe nerve damage after short exposures, retire on disability in their forties. Construction workers get lung cancer from inhaled silica (sand); workers are immolated in combustible dust explosions. Workers who handle beryllium and diacetyl have waited for years for OSHA to set more stringent limits on exposures that cause life-threatening lung and other diseases. 

Left entirely out of the official regulatory agenda are rules on (1) infectious diseases (promised by Michaels soon after he was confirmed); (2) safe patient handling to avoid ergonomic injury in the health care industry; and (3) standards for heat stress in outdoor occupations, especially agriculture—a seeming no-brainer as climate change produces temperatures in the range of 110° degrees in southern fields. Two weeks ago a postal worker in Massachusetts collapsed and died after trudging around in high temperatures; imagine what is going on with migrant workers in Texas.

As with green energy, there is much the Obama Administration could do now to ease the plight of exploited workers. 
Posted 6:43 PM by Frank Pasquale [link]

Simkovic's Response to Tamanaha on "The Economic Value of a Law Degree"

Frank Pasquale

Brian Tamanaha previously told Inside Higher Education that our research only looked at average earnings premiums and did not consider the low end of the distribution.  Dylan Matthews at the Washington Post reported that Professor Tamanaha’s description of our research was “false.”

Tamanaha’s description of our approach to ability sorting constitutes a gross misreading of our research.  Tamanaha also references the wrong chart for earnings premium trends and misinterprets confidence intervals.  And his description of our present value calculations is way off the mark. 

SIPP was substantially redesigned in 1996 to increase sample size and improve data quality.  Combining different versions of SIPP could have introduced methodological problems. 

Posted 9:45 AM by Frank Pasquale [link]

How the "Million Dollar Law Degree" Study Understates Risk (Part I)

Brian Tamanaha

In my last post, I argued that Michael Simkovic and Frank McIntyre’s study, “The Economic Value of a Law Degree” (new title), substantially overstates the value of a law degree. Their article challenges my argument in Failing Law Schools that getting a law degree today can be financially risky, especially for students who attend expensive low ranked law schools. As Simkovic writes, “we disagree with [Tamanaha’s] conclusions about the riskiness of a law degree because data on law degree holders does not support his conclusions.” Their study proves, they say, that even law grads at the bottom quartile stand to obtain “hundreds of thousands of dollars” in net lifetime earnings above what they would have earned had they not gone to law school.

Here are a few statistics behind my position. Graduates of the class of 2012 of Thomas Jefferson had average debt of $168,800. Nine months after graduation, only 28.8% had landed full time jobs as lawyers lasting at least a year. At California Western law school, the same numbers are $167,867 and 43.8%; at Phoenix law school, $162,627 and 43.6%; at New York Law School, $154,647 and 39.6%; at Southwestern law school, $147,976 and 44.1%; at Whittier law school, $143,536 and 34.1%. And so on. Because interest on law school loans begins to accrue immediately, another $15,000 or so is added to these amounts by graduation day. (These numbers do not include undergrad debt, which averages more that $25,000). The majority of grads who do land lawyer jobs work in small firms, which typically pay $60,000 or less, far below the amount necessary to manage standard monthly loan payments on debt this large. They will even struggle to make monthly loan payments on the extended 25-year plan (which adds a huge amount of interest). They will have little choice but to enter IBR, a government sponsored debt relief program, which has negative consequences of its own.

We can skip all the analysis and cut to the heart of the matter with a simple question: Would Simkovic and McIntyre recommend to a friend (who was not admitted to a better school, and who would end up with debt levels this high) that she should go ahead and enroll in one of these law schools (or others like it)? Would they tell their friend that she would likely come out ahead by “hundreds of thousands of dollars” even if she does not land a job as a lawyer after graduation?

Or would Simkovic and McIntyre express reservations, try to talk her out of it, tell her about the financial risks, warn her that she will be paying back the debt for twenty years or more, tell her that perhaps she should keep working in her current job and maybe retake the LSAT in the hope of getting a better score?

If they give the latter response, then they do not in fact disagree with my position.




Posted 4:10 AM by Brian Tamanaha [link] (115) comments

Excellent Symposium on Mark S. Weiner's "The Rule of the Clan"

Frank Pasquale

Balkinization readers may be interested in the excellent symposium organized by Deven Desai at Concurring Opinions on Mark S. Weiner's book, The Rule of the Clan. The book raises some fundamental issues about legal theory, as Weiner explains:

The rule of the clan encompasses three contemporary phenomena: First, and most prominently, I mean the legal structures and cultural values of societies organized primarily on the basis of kinship—societies in which extended family membership is vital for social and legal action and in which individuals have little choice but to maintain a strong clan identity. Today these societies include Afghanistan and Yemen, but they have existed across history and throughout the world.

Second, by the rule of the clan I mean the political arrangements of societies governed by what the U.N.’s 2004 Arab Human Development Report calls “clannism.” These societies possess the outward trappings of a modern state but are founded on informal patronage networks, especially those of kinship, and traditional ideals of patriarchal family authority—under which the state treats citizens not as autonomous actors but rather as troublesome dependents to be managed. Clannism often characterizes rentier societies struggling under the continuing legacy of colonial subordination.

Third, and most broadly, by the rule of the clan I mean the antiliberal social and legal organizations that tend to grow in the absence of state authority or when the state is weak. These groups include some dedicated to unlawful activity, such as petty criminal gangs, the Mafia, and international crime syndicates, which in their feuding patterns and cultural markers of solidarity look a great deal like clans and in many respects act like them.

I argue that in all its forms, the rule of the clan diminishes the status of the autonomous individual because the weakness of the state fosters a culture of group honor and shame.

Michael Lind has argued that "libertarians are wrong about how to organize a society because they embrace a philosophy that has never been tried." Weiner's book may make a libertarian case for a strong central state, since that allows individual liberty to flourish in ways that would not be possible when, predictably, clans fill the vacuum left by weak central authority. Whether clannism is antithetical to, or an inevitable part of, libertarian institutions is a difficult question.
Posted 4:42 PM by Frank Pasquale [link]

How "The Million Dollar Law Degree" Study Systematically Overstates Value: Three Choices that Skewed the Results

Brian Tamanaha

Michael Simkovic and Frank McIntyre (S&M) have created a sensation with the release of their new study purporting to show that a law degree has a value of $1,000,000. Legal educators cheered and skeptics jeered.

S&M pitch the article as a crushing empirical refutation of the argument I press in Failing Law Schools that getting a law degree today can be financially risky, especially for students who attend expensive low ranked law schools. Simkovic writes, “we disagree with [Tamanaha’s] conclusions about the riskiness of a law degree because data on law degree holders does not support his conclusions.” So confident are they in their findings that they warn prospective students: “many college graduates who follow the critics’ advice and skip law school will forego a lucrative career and face higher long-term risks of financial hardship.”

All sides in this debate carry the same responsibility, of course, because if S&M are wrong, people who follow their advice risk serious financial hardship. Thus it is incumbent on all of us to consider these issues carefully and honestly.

Everyone agrees that many lawyers make a good living, so the significance of their study is at the bottom, where the greatest risk lies. S&M assert that even law graduates at the lower end of the earnings spectrum, including grads who don’t land jobs as lawyers, stand to earn “hundreds of thousands” of dollars over what they would have obtained with a bachelor’s degree alone. Great news for all!

Unfortunately, it’s not true.

Let me state up front that their study contributes to the debate over the value of a law degree. Let me also confirm that their study is far more sophisticated than my admittedly crude efforts. But as the saying goes, it is far better to be approximately right than precisely wrong. Despite having the external trappings of precision and rigor, their study is faulty and misleading.


S&M OVERSTATE THE ECONOMIC VALUE OF A DEGREE OVER THE PAST TWO DECADES

Their analysis is based upon data provided by United States Census Bureau’s Survey of Income and Program Participation (SIPP), which tracks earnings over time by educational degree. The authors examine the earnings of people with law degrees from 1996 to 2011, and compare this to the earnings of people with bachelor’s degrees (in selected majors) over the same period. The “JD earnings premium” they identify is the difference between the two.

The great strength of their study, S&M say, is that it is a “long term” examination which establishes “historic norms”—thereby providing a much more reliable picture of lawyer earnings than my own immediate short term focus. The credibility of their study rests entirely upon this claim.

All their talk of “historic norms,” however, is puffed up exaggeration: 16 years is neither “long” nor remotely enough time to establish “historic norms.”

Had S&M extended their study by just four years—to 1992, covering twenty years in all—they would have found reduced “earnings premium” for law grads. This is because the legal job market suffered a severe recession from 1992 to 1998, while the general economic recession had ended in early 1992. (The downturn in the legal market is visible in Figure 2, p.9.) Since the “earnings premium” is the difference between the earnings of bachelor’s degree holders and law degree holders, it constricts when the general economy does relatively well while the legal market does relatively poorly. That was precisely the situation between 1992 and 1998.

There is no doubt that including 1992 to 1995 in their study would measurably reduce the “earnings premium.” In Figure 6 (p. 35), S&M set forth the earnings premium in four blocks: 1996-99, 2000-03, 2004-07, and 2008-2011. 1996-99 has the lowest earnings premium among the four (substantially below average)—and it is likely that the 1992-95 premium would be lower still because the legal market was down for all four years, whereas it was beginning to recover in 1998. Had 1992-95 been included, it would have constituted 1/5 of the total, undoubtedly bringing down the overall “earnings premium” by no small amount.

As other critics have pointed out, furthermore, their study does not include the earnings of the graduating classes of 2009, 2010, and 2011 (not to forget 2012 and 2013)—which have suffered devastatingly poor job results. (The earnings included in the study through 2011 are only for 2008 grads and earlier.)Read more »
Posted 5:48 AM by Brian Tamanaha [link] (95) comments

Teaching Materials for Fisher v. University of Texas

JB

[These are the discussion notes for Fisher v. University of Texas at Austin. A version of these notes will appear in the 2013 Supplement to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition).]


Posted 4:31 PM by JB [link]

"Preserving the Constitution"

Sandy Levinson

I have just discovered that the presentations given at a  panel on "Preserving the Constitution," which was part of a conference at Princeton in May, sponsored by the James Madison Program in American Ideals and Institutions,  headed by Robert George, are available on C-Span, http://www.c-spanvideo.org/program/Preservingt.  The first talk is by Amherst Professor Hadley Arkes, followed by myself, University of Virginia Professor of Government James Ceaser, and Georgetown Law Center Professor Louis Michael Seidman, with some comments by Harvard Professor  Harvey Mansfield, Jr., the honoree of the conference.  As you might gather, there was a genuine diversity of views represented on the panel (though I was the only person advocating a new constitutional convention).

UDATEe:  I've been taken to task for referring to this panel, which did indeed consist entirely of white males (and middle-aged and even older to boot), as offering a "genuine diversity of views" with regard to the issue under discussion, i.e., the desirability of venerating/preserving the existing Constitution as against more-or-less ignoring it (Mike Seidman's argument in On Constitutional Disobedience) or having a new constitutional convention for the purpose of considering necessary amendments in order to make it less dangerously pathological.  I don't want to argue that our panel was an absolutely perfect panel, nothing better than which could possibly be imagined, and I will readily agree that some topics of debate cry out for "diversity" as that term is often defined, often remarkably unhelpfully--see the opening essay in my book Wrestling With Diversity--in our contemporary public language (including, especially, the opinions of the United States Supreme Court, by whomever written).  But I continue to believe that the panel put together by Robert George in fact provided conflict of ideas, courteously but strongly presented, relevant to the issue of constitutional preservation.  I do not think there would have been anywhere near the relevant intellectual diversity had, for example, Justice Thomas replaced Mike Seidman or Sandra Day O'Connor spoken in my stead.  With very mixed feelings, I have decided to allow comments, though, perhaps naively, I would far prefer that they actually address the various presentations available courtesy of C-Span instead of the higher metaphysics of "diversity," save for those people who actually take the trouble to track down and read my book! 
Posted 7:39 PM by Sandy Levinson [link] (12) comments

Did Election Fraud Help Win the Civil War?

Rick Pildes

Over at Election Law Blog, I posted on a question at the intersection of elections and the politics of the Civil War.  Since I thought readers (and contributors) of this blog might have the additional historical information I'm looking for, I thought I would cross-post here. The question is whether President Lincoln would have been politically paralyzed after 1863 but for fraud that enabled the Republican Party to retain effective control of the U.S. House.
Posted 4:48 PM by Rick Pildes [link] (9) comments

Teaching Materials for Shelby County v. Holder

JB

As I did last year, I'm publishing an early draft of the discussion notes I've prepared for teaching some of the major cases of the Supreme Court Term. A version of these discussion notes will appear in the 2013 Supplement to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition).

We are planning to publish the 6th edition in 2014.  Much of the material in the supplement will probably not make it into the next edition, and so I'm publishing it here for future use by law professors and students.  Today I'm publishing the discussion notes for Shelby County. I'll follow up with notes for three or four other cases over the course of the week.

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Posted 2:55 PM by JB [link]

The River of Purchasing Power Dries Up at Detroit

Frank Pasquale

This rise of [robotized manufacturing] violates the deal that the capitalists made with American consumers after the great Depression, which is that they would provide people with well-paying jobs and the workers in turn would buy the commodities the factories produced, in a cycle of consumerism. If the goods can be produced without many workers, and if the workers then end up suffering long-term unemployment (as Detroit does), then who will buy the consumer goods? Capitalism can survive one Detroit, but what if we are heading toward having quite a few of them?

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Posted 7:54 AM by Frank Pasquale [link]

Documentary on Indonesian War Crimes Strikes a Chord

Frank Pasquale

The documentary "The Act of Killing" appears to be an extraordinary commentary on the violent anti-communism of Suharto's Indonesia. As Francine Prose notes, "the country’s right-wing leaders recruited gangs of thugs to wipe out suspected Communists with messy, improvisatory, but astonishing efficiency; estimates of the number killed during this period range from 500,000 to a million or more." As in Vietnam, it appears that extremism in the defense of liberty was no vice.

As gangs become a tool of the prison industry in the US (or vice versa), the following observations from participants in the documentary are a striking commentary on the relativity of law in extreme scenarios:

On screen, one unrepentant murderer mocks the notion of human rights: “The Geneva conventions may be today’s morality,” he says, “but tomorrow we’ll have the Jakarta Conventions and dump the Geneva Conventions. War crimes are defined by the winners. I’m a winner. So I can make my own definition.”

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Posted 8:33 AM by Frank Pasquale [link]

Extramajoritarian Rules

Gerard N. Magliocca

The recent clash in the Senate over the nuclear option is an excellent example of what I am calling an "extramajoritarian rule" in a draft paper.  An extramajoritarian rule is something that a majority with a strong preference can use to work its will.  Such a procedure is legal, but it is rarely used because it is inconsistent with other practices that are designed to protect minority rights or structure political debate.  We spend a lot of time in constitutional theory arguing about supermajority rules, but they only measure the breadth of support.  Extramajoritarian rules, by contrast, measure intensity and are often triggered by what we might call extraminoritarian obstruction.

Below the fold are some examples:


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Posted 4:24 PM by Gerard N. Magliocca [link] (4) comments

Backstop Federalism

Joseph Fishkin

Or, the improbable story of why same-sex couples may have a chance on the Texas health insurance exchange

Suppose two guys, let’s call them Austin and Travis, marry in Massachusetts.  Then they move to Texas.  Texas law says they’re not married.  The federal government’s view (after Windsor) is more complex.  They are married for some purposes and not for others.  A great deal of legal energy is now being poured into the question of when yes and when no.  One set of issues has to with tax law: for instance, the tax credits federal law provides for purchasing health insurance on the new state exchanges.  I have no special insight into how that question will be resolved, but for purposes of the argument of this post let’s suppose the federal government makes an administrative decision to treat Austin and Travis as married (this is the so-called “state of celebration” rule: if you were legally married where you had your ceremony, then you stay married wherever else you go).  In that case, it seems to me, Austin and Travis will have no trouble obtaining family health insurance coverage and family subsidies—rather than being treated as single individuals—on the Texas health insurance exchange, with coverage to begin January 1, 2014.

But wait, you might say.  Not so fast.  What about Texas law?  Doesn’t Texas law, indeed, the Texas Constitution, which clearly prohibits treating Austin and Travis as married, have something to say about this?  I don’t think so.  Before we even begin to get to possible questions of preemption, there is a threshold matter: For political reasons, Texas has wiped its hands of having anything to do with its health insurance exchange, leaving the federal government to build one by default, and run it.  In other words, the health insurance exchange in Texas is not going to be an example of “cooperative federalism.”  Quite the opposite.  It’s going to look more like Head Start or the EITC: a straight-up federal program that bypasses the state government more or less entirely, and goes directly to the people.  For that reason, it’s very hard to see how the Texas Constitution would apply in any way to this program.  (Which, under the circumstances, is a very good thing.)

My interests in this post are two.  First, where does this leave cooperative federalism—a paradigm that may not be especially well adapted to the current political world, in which the politics of one party (the Republicans) increasingly requires vociferous resistance to new federal programs rather than cooperative implementation?  And second, how should federal legislation accommodate this new political reality?  The Affordable Care Act’s solution—creating a federal backstop in case of state resistance—is an excellent model that deserves more attention.  It offers state legislators in conservative states a chance strike their preferred political pose of resistance to federal authority in a way that does little damage to, and in fact advances, the substantive goals of federal policy.

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Posted 1:27 PM by Joseph Fishkin [link]

Simkovic and McIntyre on Law School Outcomes

Frank Pasquale

Brian Tamanaha has often argued that "getting a law degree outside of top law school – and especially at bottom law schools –is a risky proposition." Fortunately, my former colleague Mike Simkovic and Frank McIntyre have now helped quantify the risk in a useful way. Here are their findings:

Roughly the top 15 to 20 percent of law school graduates obtain a lifetime earnings premium worth more than $1.1 million as of the start of law school. Roughly the next 30 to 35 percent obtain an earnings premium between $1.1 million and $600,000. In the lower half of the distribution, roughly the first 30 to 35 percent obtain an earnings premium between $350,000 and $600,000. Roughly the bottom 15 to 20 percent obtain an earnings premium below $350,000.

These numbers are pre-tax and pre-tuition. Even toward the bottom of the distribution, even after taxes, and even after tuition, a law degree is a profitable investment. And that is before income based repayment, which can substantially reduce the risk at the bottom of the distribution.

This paper should fundamentally change the conversation on the value of a legal education. As noted on page 56, one of the most widely cited studies critiquing the value of a legal education "applies real discount rates of between 8 and 27 percent (i.e., nominal rates of 11 to 30 percent) [and] effectively suggests that law graduates see their real incomes decline every year of their working lives and peak in their first year after law school—--an implication that several economists have explicitly rejected as unlikely." Predicting the future is always difficult, but labor economics can at least suggest some basic ground rules for analysis. Following those rules, Simkovic and McIntyre have come to conclusions starkly different than those in the extant literature.
Posted 10:09 AM by Frank Pasquale [link]