Global Economic Trend Analysis: September 2006

The legal profession ... and one of its oppressed corners

S. Alan Childress, Michael S. Frisch, and Jeffery M. Lipshaw have begun blogging on the legal profession. One of their first posts revisits an oldie-but-goodie, Nancy Levit, Keeping Feminism in its Place: Sex Segregation and the Domestication of Female Academics, 49 Kan. L. Rev. 775 (2001):

Alexey Tyranov, Young Housewife (ca. 1840)
[W]omen are being “domesticated” in the legal academy. * * * [This] article examines occupational sex segregation and role differentiation between male and female law professors, demonstrating statistically that in legal academia, women are congregated in lower-ranking, lower-paying, lower-prestige positions. It also traces how segregation by sex persists in substantive course teaching assignments. Female law professors are much more likely than male law professors to teach substantive courses addressing familial issues, as well as skills courses that demand intensive labor and student nurturing. In addition, female law professors are performing a disproportionate share of domestic chores within the law school relative to their numbers on faculties - they are doing more of the occupational equivalent of the “housework” and the “childcare” than their male counterparts. The article looks at the ways both women and men are disadvantaged by importing traditional domestic behaviors into the workplace.

Professor Levit's article now finds new life through SSRN. For their part, Messrs. Childress, Frisch, and Lipshaw promise interesting insights on the legal profession, which after all includes the legal academy.

Class Bias: Part 3

Then I got Mary pregnant
and man that was all she wrote
And for my nineteenth birthday I got a union card and a wedding coat
We went down to the courthouse
and the judge put it all to rest
No wedding day smiles no walk down the aisle
No flowers no wedding dress

The River, Springsteen

Parts one and two of my discussion of class bias in law school hiring addressed the different perspective that economically disadvantaged people (e.d.p.'s) bring to the job and the ways more of this perspective would improve the service, teaching and research of the institution. This last installment is about finding those people. In a sense Jim Chen has made all of this easier. I am tempted simply to say: do everything he outlined in his latest piece, but first screen out all candidates who attended private schools or high-tuition state schools.

There is also another short cut way to describe it. Most law professors know how to find good e.d.p.'s – all it takes is acting counter-intuitively. It’s along the lines of "if it tastes good or feels good, it is probably not good for your health." In hiring, if you feel comfortable with and connected to the candidate, it’s probably bad for the School. That is what it is about, right? The School? Or is it about hanging out with similarly privileged buds?

There is some profiling to be done here, but it is okay here since the only groups affected are those who are economically advantaged or disadvantaged. I concede that screening out all private school and high tuition schools can mean losing some good candidates but, if you take a look at the numbers published in the latest issue of the Economist (September 23, 2006, p. 38), you are mainly passing up on beneficiaries of affirmative action for the privileged. Moreover, what we know is that the only things positively correlated with expensive credentials is the probability of landing a law school teaching job and the level at which one’s articles are placed. There appears to be no correlation between expensive credentials and the ability to carry on an interesting conversation about art, music, history or not to be hopelessly boring.

So narrow the universe to candidates who excelled at inexpensive (some State) law schools. Then narrow your scope to the top ten – not top 10% -- in the class. Now it gets tougher because some e.d.p.'s will try pass for privileged (pfp). With hard work you can “out” most of them. You want to eliminate anyone who traveled widely in the summer, spent any semesters abroad, and did not work at some menial job for, at least, some summers. The keepers are ones with crooked teeth and pock marks. For a woman, look for a skirt that is a bit too short, heels too high, or too much make up. (For men the make up is OK only on Elvis impersonators -- in fact, maybe a per se hire.) Gold jewelry on a man or a woman is a good sign. Any inkling of a mullet is a definite yes for a man as is a jacket with a double vented back or a tie that is too wide or too narrow.

You have narrowed the universe to e.d.p.'s. Some of those who have figured out how to pfp will also be eliminated. Not a big loss because they may also pfp in their service, teaching, and research.

Now proceed to the Chen questions and you’ve got it.

Finally, a word on race. Race is not per se indicative of economic disadvantage. That’s not to say there are not arguments for considering race for other reasons but in recent years, at least in my hiring experience, there is a tendency for law faculty to feel most comfortable with minorities from private or high priced schools who have professional level parents. These folks are indistinguishable from whites in terms of their sense of entitlement. Thus, even with minorities it is important to look beyond the surface.

Breaking the elitist stranglehold: Three modest proposals

Yes, I still owe a more comprehensive response to Paul Horwitz and Bill Henderson. But since putting the Moneyball into MoneyLaw, as Bill might say, will take a substantial number of posts, I feel no hesitation in directing immediate attention to Bill Araiza's powerful post, "More reflections on hiring." Here are the choicest portions of Bill's post:

With a market that is so deep in talent, it’s easy for most schools to focus on non-risky candidates, that is, those that have all the right standard credentials (a J.D. from a top-10 law school, a clerkship, etc.). Many decision-makers in the process have incentives to do this. Appointments committees will get less flack from their faculties about not doing a good enough filtering job and will have to do less of a sales job to avoid an embarrassing and potentially faction-based “no proceed” vote at the hiring meeting. The “institution builders” among the faculty will feel more comfortable that they haven’t chosen someone who might trigger a difficult and unpleasant tenure fight a few years down the line. Faculty obsessed with rankings, or whose own self-worth turns in part on the prestige of their institution, will feel good when the next “New Faculty” brochure goes out in the Fall touting the school’s newest bright young things. * * *

[N]obody gets criticized for hiring the last Harvard B.A. /Yale J.D. /Second Circuit clerk with an article placed in top-20 journal. Unless you happen to have a dissenter among the faculty -– or better yet, on the appointments committee. Such a dissenter protests the uncritical reliance on standard credentials. She may be motivated by a concern that the process of racking up the standard credentials is one that is not fully open to women, people of color or people from lower socio-economic classes (see, e.g., the recent news about the dearth of female Supreme Court clerks). Or she may just be disenchanted by what can seem at times the cookie-cutter nature of so many top-tier candidates.

The problem, as Bill succinctly and accurately concludes, is that the dissenter faces almost insurmountable odds: "in a deep field of candidates it’s natural for committees to look for reasons to reject people, and difficult for someone to justify an idiosyncratic choice in a way that allows the chooser to conclude that he’s choosing methodically."

Count me among the dissenters. But Bill is absolutely right: if we dissenters expect to do more than merely "object[] to the process, or to its results," we need to start "offering affirmative suggestions either for how to do a search differently or who different to choose for the screening interview."

Very well then. I offer three modest proposals, all tempered by my recognition of their implausibility, that might begin to chip away at the elitist stranglehold on law faculty hiring:

1. Use prior publication as a threshold qualification and stick to it. The best predictor of future inclination toward scholarship is past production of scholarship. Of course, scholarly propensity doesn't exhaust the list of traits that law schools should consider when hiring faculty members. But if we are going to consider it, and I agree wholeheartedly that we should, doesn't it make sense to use an accurate gauge? Remember what Bill Henderson said nearly a year ago in his review of findings by Bernard Black, Paul Caron, and Rafael Gely: "only two variables ha[ve] any predictive power for 'more and better' scholarship: (1) number of articles before first tenure-track job, and (2) publication of a student note."

Let me be explicit. This standard demands that a faculty appointments committee be willing to stand firm against hiring anyone who has not published scholarship beyond a student note. It requires that full-time teachers of law actually read other people's scholarship. These tasks demand courage and hard work, two traits in short supply on law school faculties.

On the other hand, the use of prior publication as an absolute threshold has the refreshing effect of leveling the playing field in favor of hard-working candidates who have managed to publish articles. This criterion also neutralizes the existing tendency to favor candidates with sterling credentials, even when the ratio of those credentials to actual pages published defies mathematically definition.

2. Develop more rigorous quantitive measures of academic performance. Part of the goal of MoneyLaw is to document existing quantitative measures of academic performance and perhaps even to encourage the creation of new ones. But the obstacles to this strategy are formidable:

Some qualities pertinent to the hiring decision (teaching ability, character, ethics, etc.) defy quantitative measurement. I would give up summer research grants in perpetuity for the ability to silently excise any colleague whose Neigung nach Arschlochkeit negates whatever intellectual value his or her scholarship brings to my school. (Apologies for not translating the very colloquial German; German Wikipedia's page for Arschloch explains much and puts you within one link of its English counterpart.) But this isn't a trait that lends itself to bibliometric measurement.

Ours is by and large an innumerate profession, and the least numerate among us often take the greatest pride in their rejection of all things quantitative -- not to mention the deepest umbrage at anyone who would upset that pride.

There is significant disagreement, even among those law professors who are willing to rely on "the numbers," over which traits should be measured.

Entry-level candidates (but not laterals) often lack enough experience to lend themselves to meaningful quantitative evaluation.

The underlying mathematics of any one measure may be sufficiently daunting, even for the quantitatively inclined, to dilute or even negate the value of that measure as a workable guide to academic performance. In drafting my recent working paper on law journal impact factors, for instance, I ran into the problem of justifying my resort to a stretched exponential distribution rather than a power law for modeling differences in influence among law journals. Say what? And all this for a measure that sheds some light on the use of law review rankings as a gauge of law school performance, a factor that is of limited value, or might even be potentially damaging, in the evaluation of individual appointments candidates.

3. Develop a short-form way of allowing candidates to describe themselves to their recruiters. Rather notoriously, the SAT has interposed an essay as an additional barrier between high school students and college. Actually, this might not be such a bad idea. What if we law professors asked some simple questions of our would-be future colleagues? At the very least, this would impart some real value to the otherwise frustrating eyestrain that is the AALS's Faculty Appointments Register form.

As matters stand, the FAR form allows candidates plenty of space to destroy their job prospects by expressing geographic biases. Why not ask some truly revealing questions, preferably quick jabs for which jobseekers can't prepare? I propose this not entirely facetious list:

Do you speak some language besides English? If not, why not? Or perhaps you might tell us about your favorite book.

3, 4, 5, and 5, 12, 13 are Pythagorean triplets, or integer solutions to the Pythagorean Theorem, a² + b² = c². Quick. Name another triplet.

Name your favorite song or other musical composition and explain why.

Ballet, football, baseball, fencing, yoga, aerobics. Pick one, either to watch or to perform. Then explain.

It's late June, and you observe the waning moon setting. What time is it, more or less?

Please recount one thing you've done to a friend that you wish you could undo.

What is your greatest weakness, and why should we hire you in spite of it?

Okay. Just as a lark. What is your favorite plant or animal, and why?

Let me be clear: this is an utterly unworkable list of questions, and I do not seriously propose that any scout team at the AALS hiring conference ask these questions. But the range of traits that questions of this sort might gauge is not altogether irrelevant to any enterprise that demands great intelligence, which presumably includes law teaching. Perhaps you just have to be in the right frame of mind to appreciate the point.

More realistically, we might ask all entry-level candidates to describe, in some manageable number of words (100, 250, 500), a research agenda that they hope to accomplish before petitioning for tenure. Again, any filter that enables a candidate with less stellar credentials to demonstrate his or her fitness for the legal academy is one worth considering.

Why Abandon Average LSAT Scores for High Ones?

Imagine yourself as the American Bar Association Section of Legal Education and Admission to the Bar. You have been asked to approve a policy recommendation, originating from the Questionnaire Committee, that looks likely to: 1) Make LSAT scores less accurate at predicting law school success; 2) Increase the LSAT scores of Caucasian and Asian American law school applicants relative to the LSAT scores of applicants in other racial or ethnic groups; and 3) Double the number of law school applicants who expend time, effort, and money retaking the LSAT. What do you do?

Regardless of what you would have done, the real ABA adopted the policy recommendation in question. In other words, the ABA Section of Legal Education and Admission to the Bar decided last June to change the definition of the LSAT data it collects from its member law schools each year. Whereas formerly it had asked law schools to use each student's average LSAT score in calculating the 25th, median, and 75th percentile LSAT of entering classes, the ABA will now ask law schools to use each student's highest score in calculating those figures. The 2006 version of the Annual Questionnaire that the ABA requires each member law school to complete already reflects the policy change. U.S. News & World Report's questionnaire will doubtless follow suit.

How could that seemingly minor change to the ABA's definition of "LSAT score" have the effects described above? Sam Stonefield did an admirable job, in his May 24, 2006 letter to the Section of Legal Education, of explaining why. To his able analysis, I would add only a reference to a research study by the very organization that administers the LSAT—the Law School Admission Council: The Performance of Repeat Test Takers On the Law School Admission Test: 1997–1998 Through 2003–2004 Testing Years (TR-04-02). It reports that among those who took the LSAT more than once, "the mean score gains in descending order have been for Caucasian and Asian American (2.9 points), Mexican American (2.7 points), Puerto Rican and Hispanic (2.4 points), and African American (2.0 points) test takers." Retaking the LSAT thus seems to help most the people who need help least.

If you successfully imagined you were the ABA Section of Legal Education and Admission to the Bar, perhaps you can tell me why that body decided to start ignoring repeat test-takers' average LSAT scores in favor of their high LSAT scores. I'm having trouble with that mental exercise. My natural skepticism keeps getting in the way. It causes me to dwell on the likelihood that LSAC stands to make a lot of money thanks to the policy change, which will lead many more students to retake the LSAT, and on the fact that the ABA's member law schools own and operate LSAC. Curious about the details of that organizational relationship, I've requested the LSAC's federal tax returns for the past three years. Perhaps the details in those dry documents will stimulate my imagination, making it easier for me to understand the reasons for the ABA's policy change.

[Crossposted to Agoraphilia.]

Billy Beane hates the Mets, and so do I

Please God, not another Subway Series!

Of late, Bill Henderson and Paul Horwitz have paid me the huge compliment of praising the creation of MoneyLaw and contesting some of the hit-and-run items I have posted on this forum. Paul has staged a two-part series, first addressing MoneyLaw's treatment of credentials and then questioning whether my belief in "pure potential with no credentials" can be squared with Sexton-style law school marketing. Bill, for his part, laid down a very soft gauntlet by asking, "Where's the Moneyball in MoneyLaw?" "Jim," he says, "you need a theory."

Yes, I owe these gentlemen, and the MoneyLaw readership at large, a fuller theoretical account. But that account could take several weeks' worth of posts, and I am blogging from a hotel room in a foreign country. So for now I will offer a series of short confessionals. Along the way I hope to hint at some of what motivates my thinking on performance, credentialing, and prestige in legal academia.

Confession #1: Now that my law school has more or less filled its AALS dance card, I don't mind revealing that I no longer look at the law school, graduate school, or judicial clerkship fields in the Faculty Appointments Register form, except to anticipate, perchance to defuse, the potentially fatuous use of these credentials to bypass worthy faculty candidates. When you can read and you can count, and virtually every plausible candidate in this market has produced at least one draft article, credentials become worse than worthless. They divert attention from the real task at hand, which is evaluating a candidate's scholarly and pedagogical potential. Recall the basic lesson of federal securities law: past performance is no guarantee of future performance, but it is better than any other type of available evidence.

So yes. I'll look for the usual markers of academic prestige, which do correlate (albeit poorly) with probable future performance, but almost entirely for the defensive purpose of fending off the destructive use of credentials in evaluating faculty candidates.

Confession #2: Why do I hate credentials so much? I do hold a nice clutch of them — a fancy law school degree, an exalted law review position, and a very gaudy (if ideologically crippling) pair of federal clerkships. I learned a great deal from Judge Luttig and Justice Thomas, not least my instinctive distrust of theory and ideology and my corresponding preference for pragmatism. Yes, I did well in my youth, and I have a nice little academic perch for my trouble. But I now know that I went to law school for the wrong reasons and wish I had done almost anything else.

Let me explain by recalling one of my sports heroes, Billy Beane. Michael Lewis's Moneyball recounts how Beane allowed the prospect of being a high pick, perhaps even the first overall pick, in baseball's amateur draft to steer him away from playing collegiate baseball for Stanford. Beane went on to win the 270-foot dash at the combine and sign as the fifth overall pick with the New York Mets. His career as a baseball player, to put it mildly, stank. He came to regard signing with the Mets as the biggest mistake of his professional life.

When I took the LSAT in 1986, during the summer before my senior year in college, I wanted more desperately than anything else to have a credential, any credential, that would give me a little more credibility with the academic elite. Two degrees from Emory University and a good taste of engineering from Georgia Tech, so I imagined, would not stand the social test of the national academic elite. Law school appealed to me because it required no real prerequisites, because I was told I had a good shot at a top school, and because law had a realistically attainable elite track running through, well, law review and a judicial clerkship. An actual love of law — well, that was optional. How do I feel two decades later? Let's just say that my feeling toward the law today is comparable to the typical Edith Wharton character's view of marriage.

Yes, I aced the credential quest, version 2.0, and thereby buried what I considered a disappointing run through version 1.0. And acing law school has enabled me essentially to make a healthy living as a full-time intellectual dilettante and a part-time managerial maverick. It's materially comfortable to be a member of the sinecured secular priesthood called academia. But like my hero Billy Beane, I know deep down that I should never have enrolled at Harvard Law School, which will forever live in my heart as the educational equivalent of the New York Mets — not intrinsically evil by any stretch, but a constant reminder of making lifelong commitments for all the wrong reasons. And like Billy, my only realistic option going forward is to try my hardest to succeed on somewhat contrarian terms in a line of work I wish I'd never embraced as my own.

Belles and balls

Herewith a quick plug for items inside and outside the Jurisdynamics Network:

Jurisdynamics is running a long feature on football, Michael Lewis's latest book, and the comparative merits of America's 11-player and 9-player sports. (Disculpe al mundo latino: No escribo del fútbol, que todavía no es entre esos deportes. Tenemos que esperar unos años más.)

Jurisdynamics heroine Belle Lettre has posted MoneyLaw: The student edition. How can we possibly resist?

Amigos y lectores, read and enjoy.

The Maz: MoneyLaw's medal of merit

Bill Mazeroski, known primarily for great defensive play at second base for the Pittsburgh Pirates, walks off with the 1960 World Series championship.

MoneyLaw hereby inaugurates The Mazeroski, a medal of merit conferred upon individuals whose contributions to the advance of legal academia are as considerable as they are quiet. "The Maz" is named for Bill Mazeroski, who played seventeen seasons at second base for the Pittsburgh Pirates. The defining moment of Mazeroski's career came in 1960, when he hit the only game 7 walk-off home run in World Series history. Maz's blast ended a legendary series that many regard as the nadir in the otherwise glamorous postseason history of the New York Yankees.

Indeed, the 1960 World Series is a miniature Hall of Fame for underrated ballplayers. Maz's walk-off homer made a champion for the first time of one of baseball's all-time heroes on and off the field, Roberto Clemente. The young Clemente was so underappreciated that the National League's Most Valuable Player award for 1960 went to fellow Pirate Dick Groat. The American League's MVP? None other than Roger Maris, who would play his entire career in the shadow of the glitzier Mickey Mantle and soon would be victimized by baseball's most unjust asterisk. To complete the picture, the World Series' Most Valuable Player award went to Mazeroski's opposite number at second base, the Yankees' Bobby Richardson. Among all these unsung heroes, though, Mazeroski emerged, and his walk-off homer at Forbes Field remains baseball's enduring symbol of underdog triumph.

Nominate MoneyLaw's next Maz!

Mazeroski rounds third

Do you know someone who deserves a Maz? Let us know. Ordinary e-mail is fine, but webmail via the Jurisdynamics Network is even niftier.

The inaugural winner of MoneyLaw's Maz award is John Doyle, associate law librarian at the Washington & Lee University Law Library. John's signature achievement is the very understated, modestly named database, Law Journals: Submissions and Ranking. This database, especially as supplemented by its update blog, provides legal scholars all the information they need to submit articles to law reviews around the world. Unlike ExpressO, John's database is completely free. MoneyLaw strongly favors and encourages the use of John Doyle's database as an alternative to its expensive and exploitative counterpart. And unlike ExpressO, the "Doyle database" (as it is known to its aficionados) provides bibliometric information that is as useful as it is extensive. There may not be a deeper source of information about the underlying architecture of legal scholarship.

Congratulations, John Doyle!

It isn't true that the modal player in legal academia is a marketing genius whose copious capacity for self-promotion exceeds his or her actual record of academic achievement. It only seems that way. The Maz is intended to reward the worthiest of workers behind the front lines, the quiet individuals who have been too busy building databases, scholarly portfolios, or even entire institutions to promote themselves or otherwise to play the political games that are the bane of legal academia.

ABA to Make Law School Data More Accessible

I have good news for my fellow rankings geeks! The American Bar Association has agreed to make the quantitative data contained in The Official Guide to ABA-Approved Law Schools available in a format congenial to number-crunching. David Rosenlieb, the ABA's Data Specialist, told me last Friday that the organization's website will soon offer the data in a downloadable Excel file.

Formerly, the ABA had made that data available only in comparatively unwieldy hardcopy or PDF formats. That made using the ABA data to duplicate and double-check the U.S. News & World Report law school rankings unnecessarily difficult. By making the quantitative data from the Official Guide available in a downloadable Excel file, the ABA will have partially fulfilled one of the reforms I suggested for improving the way the U.S. News & World Report law school rankings work.

I am very grateful to David for acting on my proposal. Notably, however, the ABA must do still more to empower researchers to replicate the USN&WR rankings. USN&WR follows the ABA's lead in collecting financial data about the law schools it ranks. Specifically, the USN&WR rankings use five categories of ABA-defined financial data:

Total Instruction and Administration;
Library Operations;
Law School Miscellaneous Expenses;
Tuition Reimbursement, Grants, and Loan Forgiveness; and
Indirect Financial Aid.

Although the ABA collects that same financial data, it does not publish it in the Official Guide. Instead, it makes the data available only to the Dean of each of its member law schools, in statistical "take-offs" it marks as confidential. That will have to change if, as I've suggested, the ABA makes publicly available all the data that it has and that the USN&WR rankings use.

Why does the ABA hesitate to release that vital financial data? When earlier I described the details of the ABA's data collection and dissemination practices, I surmised that it restricted access to schools' financial data in order to increase its revenue. More recently, however, my better-at-deciphering-law-school-politics half (who runs USD Law School's very cool Entrepreneurship Clinic) came up with an alternative explanation for the ABA's secrecy: Law schools probably want to keep the magnitude of some expenditures--especially those relating to law profs' salaries--hidden from alums and other potential donors. Better, from a fund-raising point of view, to draw a veil over law school expenditures and instead focus on revenue shortfalls.

Whatever the reasons for the ABA's reticence, I hope they do not dissuade it from publicly disclosing law schools' financial data. As I've explained to David, it would suffice for purposes of replicating the USN&WR rankings to combine the categories described above into three numbers for each school: Total Instruction and Administration; Library Operations plus Law School Miscellaneous Expenses; and Tuition Reimbursement, Grants, and Loan Forgiveness plus Indirect Financial Aid. (The ABA would also have to release that data from each of the last two years.) That sort of obscuring tactic might help assuage concerns that disclosing the data will eat into the revenues that the ABA gets from its take-offs and that law schools get from ignorant donors. David has told me he will look into the issue. For now, we rankings geeks can only wait with bated breath.

[Crossposted to Agoraphilia.]

Education Group Proposes New College Rankings System as Alternative to U.S. News

Education Sector released a report this morning, College Rankings Reformed: The Case for a New Order in Higher Education:

New research and advances in technology in the last several years have led to a host of new metrics and data sources that together offer an unprecedented opportunity to measure how well colleges and universities are preparing their undergraduate students. The new measures provide information about a range of important factors like teaching quality, student learning, graduation rates, and success after college. Many of them are eye-opening, suggesting that existing rankings badly mislead students and parents about the “best” colleges and universities. Some institutions currently mired in the lower reaches of the U.S. News rankings show outstanding results, while some of the exclusive institutions so prized by striving students don't live up to their reputations for excellence. The wealth of valuable new information provides the possibility of replacing existing college rankings with a vastly improved ranking system. This report explains what the new measures can show, how those measures can be combined into new college rankings, and why the new rankings would benefit both students and colleges.

For more, see:

Class Bias: Part 2

Keep you doped with religion and sex and TV.
And you think you're so clever and class less and free.
But you're still fucking peasants as far as I can see.
A working class hero is something to be.
Working Class Hero, John Lennon

In part one of this three part series, I discussed the different perspective of those who were economically disadvantaged people. I also noted that I am not confident that e.d.p.s (OK, no pun intended) share a view of how specific issues should be decided. Instead, I wrote about bringing a needed perspective to teaching and research. I should have included service as well, especially faculty governance. At the outset, however, consider the proposition that is opposite of the one I will discuss: The quality of legal education is increased by systematically excluding e.d.p.s from the profession. I doubt many would say they agree with that view. On the other hand, maybe actions speak louder than words.

With respect to governance, I have noted that when in the company of other professors with working class backgrounds, we seem to have a greater understanding of the fact that we are making decisions about spending the money of others. Colleagues with senses of entitlement, on the other hand, are less likely to have a vision of those who actually pay the bills. (Do they ever think of the convenience store worker or stock person at Wal-Mart when deciding that a summer program in France would be just the thing?) Recognition of concepts like “can we afford” something or “is this the best use of the money” seems to follow more readily when someone has been forced to deal with those same issues in his or her own life.

This sense of fiduciary obligation affects the way in which e.d.p.s approach teaching as well. A sense of entitlement seems to go hand in hand with canceling classes at the drop of a hat, taking off a couple of weeks in the middle of the semester for a foreign conference, teaching a self-indulgent course with a tiny enrollment, and feeling annoyed if students ask too many questions. It comes down to a view, shared by the children of privilege, that law schools exist for the faculty as opposed to the reality that faculty are but an input. Think how everything changes when faculty realize that they are not there to be served but to serve – and their jobs depend on serving. For those who have had a lifetime of being served, this an alien perspective.

When it comes to the substance of teaching and research, it is not that e.d.p.s are better, only different, and that teaching and scholarship are enriched by different perspectives. For example, a contracts teacher who has experienced being on the losing end of an exploitative contract is better able to understand the illusion of Pareto superiority and discuss, in real terms, the failings of contract law (as it has been shaped to serve those of privileged classes). My hunch is that this same perspective carries over to any course in which there is an interactive element.

Finally, on scholarship. Where do the ideas for articles come from? What fuels the analysis? That spontaneous flash that leads to questions or that leads to analysis and research is akin to “taste” – here a taste for which questions one will devote his or her life to. Taste is hardly the result of eight or more years in college. Different life experiences result in different tastes. Look at most faculties. Which people are writing about race? About woman and families? About environmental questions? There is a self-referential and oft times a self-interested element to how tastes are formed. In each case, there is a story that connects the person’s life with the direction his or her research has taken. Now compare a faculty that has screens out an entire segment of life experiences and compare its diversity and quality with one that purposefully includes all qualified people, whether or not they increase social comfort. My case is simple: when it comes to the analysis of law and the teaching of future attorneys, the second faculty is superior.

Are you ready for some fútbol?

Ah, if only educational outcomes were as crisp as those in sports. They aren't, of course, but far be it from a forum named MoneyLaw to ignore the world of sports as a source of wisdom.

Consider Mobility between Employers and Assortative Matching: Field Evidence from Soccer Data, a new paper by Uruguayan scholar Nestor Gandelman:

Job mobility is an outstanding characteristic of most labor markets. However, the economic literature for the most part has focused on occupational choice and has not paid attention to whether this mobility implies movements to better or worse firms. One reason for this is that in general it is not possible to establish if the new employer is better or worse than the previous employer. In sports markets there is a very natural way to rank firms (clubs). We exploit this simple idea to study the determinants of promotions and demotions of workers between employers and empirically test the existence of assortative matching. We find that performance is positively correlated with player's career. There is a matching between good teams and good players and vice versa. Players with better performance have higher probabilities of being promoted and players with worse performance have higher probabilities of being demoted. Older players and players that have been transfered in the past have higher mobility but not a clear tendency to be promoted or demoted.

One facet of international soccer (and other sports overseas) that is missing from American sports is relegation. Perform badly, and you are banished to a lower league. Imagine: the Kansas City Royals would have been consigned to the Pacific Coast League long ago, with the resulting American League vacancy available to the likes of the Salt Lake City Buzz or the Scranton-Wilkes Barre Red Barons.

How relegation might work in academia is left as an exercise for the reader.

Gracías a D. Daniel Sokol por la noticia de este desarollo en la literatura universitaria sobre el deporte de fútbol y sus jugadores.

Conceived in sin and born in corruption

Man is conceived in sin and born in corruption and he passeth from the stink of the didie to the stench of the shroud.

-- Willie Stark in All the King's Men

MoneyLaw, according to its fiercest critic, "is going to become the poster child for corrupt law professors." Hey, it's great to have something to aspire to. Herewith Merriam-Webster's online definition of corrupt (adj.):

Main Entry: ²corrupt
Function: adjective
Etymology: Middle English, from Anglo-French or Latin; Anglo-French, from Latin corruptus
1 a : morally degenerate and perverted : DEPRAVED b : characterized by improper conduct (as bribery or the selling of favors) [corrupt judges]
2 : PUTRID, TAINTED
3 : adulterated or debased by change from an original or correct condition [a corrupt version of the text]
synonym see VICIOUS
- cor·rupt·ly /-'r&p(t)-lE/ adverb
- cor·rupt·ness /-'r&p(t)-n&s/ noun

Morally degenerate. Perverted. Depraved. Putrid. Tainted. Stern stuff, really. These are epithets generally reserved for bribe-taking, graft-dealing, cigar-chomping pols named Willie, Huey, or Gene. Growing up in Georgia (ours, not theirs), I always aspired to Southern feudal lord status. And now I've achieved it, teaching law up north. I know corruption when I see it.

Tell you what. This is the Jurisdynamics Network, technological playground of webmaster extraordinaire, Gil Grantmore. We'll put the question to a poll.

I've listed six activities in the poll at right. The first option is what Brian Leiter calls "Sextonism." The second is what the Chapman University School of Law has been caught doing. The third is my admittedly obnoxious characterization of some of the anti-Chapman reaction. The fourth, fifth, and sixth options are there for readers to point fingers at themselves, other readers, or legal academia more generally.

There it is. Polls will stay open throughout the weekend. Remember: it's one person, one vote, or at least one IP address, one vote. Gil Grantmore's polling technology is unscientific, but not corrupt.

Rock of sages

Having declared in this forum my unmitigated embrace of meritocracy, of valuing performance over pedigree in every instance, I know there is no turning back. Meritocracy unmodified may be the most unforgivable of ideologies in a profession beholden to a view of "academic quality" derived more from privilege and prestige than from perspiration and performance.

I do aspire to intellectual magnanimity. Those who find greater value in the traditional indicia of pedigree are hereby invited to tell me why and/or tell me off. For my part, I offer my own tentative list of core principles for evaluating academic talent, whether on an individual or an institutional basis:

Pedigree never matters. Performance always does.

In gauging performance, you can measure anything you want except other professors' opinions. In other words . . . .

No academic ratings system is valid if it depends in whole or in part on a subjective survey of academic reputation.

Stripped of all surplusage, this "rock of sages" explains why I am highly skeptical of this prominent survey of academic quality among law schools and, for that matter, of this much ballyhooed alternative. As much as Brian Leiter's Law School Rankings have sharpened the legal academy's assessment of itself, no true advance will occur until law professors shed reputation as an explicit component of academic quality.

The real meaning of "Sextonism"

Brian Leiter has defined "Sextonism" in derisive, even derogatory, terms:

"Sextonism," after former NYU Law School Dean John Sexton (now President of NYU), is a disease familiar to law faculty, in which a good school suddenly lapses in to uncontrolled and utterly laughable hyperbole in describing its faculty and accomplishments to its professional peers. The NYU alumni magazine, which was sent to all law faculty nationwide, was so plagued by Sextonism that a Stanford professor memorably dubbed it "law porn."

By making a weekly ritual of railing against instances of such putatively odious behavior, Brian has ensured a place for "Sextonism" in the language and culture of American legal academia.

So what exactly has John Sexton done to deserve this opprobrium? Nothing besides catapulting New York University and its law school into the first rank of American educational institutions. If what John Sexton has done is an offense against academia, then we should all be so crass. Law school deans named in Brian Leiter's "Sextonism watch" should be tagged as potential candidates for more prominent jobs in educational administration.

Henceforth in this forum, at least when I am writing, the term Sextonism shall denote the adroit (if not altogether credible) promotion of an educational institution among its constituents and its rivals alike. Because Sextonism is an expression of administrative virtue rather than a self-righteous vice, the term carries no negative connotations whatsoever.

I am tempted to match every "Sextonism watch" from Leiter Law School with a corresponding post praising effective Sextonism. Instead of rewarding Brian Leiter's rather perverse transformation, I think I will focus on the unsung heroes of academic quality. I shall create a new designation, that of MoneyLaw Idol, after the style of the Jurisdynamic Idol competition. As worthy as John Sexton would be, I suspect he has honors enough. Besides, I prefer the quieter, more studious type, one who has made a real contribution to the genuine understanding of academic quality. Another John, less prominent than Mr. Sexton, comes readily to mind.

The care and feeding of living fossils: an official SSRN guide

This forum has already made much of the ritual abuse to which certain self-appointed guardians of academic purity have subjected the Chapman University School of Law for uploading old papers onto SSRN. This stunt has been castigated as "an amazing display of hubris" and a singularly "corrupt" instance of the unforgivable sin of "Sextonism." One observer went so far as to praise these acts of public flagellation as "an unsung virtue of blogging."

What exactly "Sextonism" represents and how the professoriate should react to it will be the subject of MoneyLaw attention momentarily. For now it suffices to demonstrate that Chapman, for all the perfidy that it was accused of committing, did nothing extraordinary beyond following SSRN's advice regarding older papers.

These are excerpts from SSRN's instructions to authors aspiring to be listed among the network's "Top Law Authors":

How can I get the rest of my papers up on SSRN?

You can post your older papers on SSRN by submitting them through the My Papers link in SSRN HQ. You can post any paper no matter how old as long as you have the electronic rights to the paper. You can post almost any paper published before the mid 1990's because almost all publisher copyright agreements before that time typically did not include electronic rights. Note, however, that any published papers older than one year will generally not be announced through our email abstracting journals. ...

And SSRN's advice for "[i]ncreasing readership for your papers (and download counts)"? Herewith the network's four-step guide to download glory:

Include the URL for your SSRN Author Home Page at the bottom of your email signature.
Keep only one copy of each paper on the web and post it on SSRN.
Post your old papers on SSRN.
Caution: Do not try to game the system.

As far as I can tell, Chapman did nothing wrong except trying to master the art of winning an unfair academic game. Promotional misconduct should be made of sterner stuff. Want live demonstrations of "corruption" and "hubris"? Follow . . . these . . . links

Reparations Pro and Con

This post is about money and law (and some other stuff as well)--though not the usual subject for MoneyLaw. It's about Reparations Pro and Con, which is now out; so I thought I'd post a little about it. It's a book I struggled with for a number of years and the more I think about reparations, the more complex they seem to become. Reparations talk involves lots of issues central to American history and to law. It reminds me of the statement of Joe Strummer, formerly of The Clash, which was widely publicized at the time of his death in December 2002, that "If you ain't thinkin' about [hu]man[s] and God and law, then you ain't thinkin' about nothin'." Reparations talk combines all three of those and a lot more.

My favorite parts of Reparations Pro and Con are the beginning and the end--because the beginning sets up many of the issues at stake in reparations talk and the end pulls the strings together and tries to guess where this is all going. It's about the gap between white and black wealth and about how we view American history: as a place of opportunity or oppression? And how we think about opportunities today, as well. There's a lot of other stuff in between--like what role, if any, the government should play in correcting for past injustices and whether it is fair to ask those who did not commit racial crimes to help correct the vestiges of them now. For propertyprofs, there are some great meta-issues, like the judiciary's role in taking land away from Native Americans.

I think the reparations movement is moving in the direction of talking about the past, rather then asking for any kind of payments. So I'm predicting we're going to see more in the way of truth commissions, like the 1898 Wilmington Riot Commission and the Tulsa Riot Commission. Some of this may happen through the work of individual historians (like Reconstructing the Dreamland). And I think we're going to see more in the way of businesses and colleges investigating their past (like Brown University's Steering Committee on Slavery and Justice and the discussion at the University of Virginia about slavery on its campus).

Of course, there's a lot more in the book, including a chapter on the case against reparations and a little bit on cemeteries and monuments. I hope you'll take a look at it and recommend it to your local library. Here is some more on the book at Oxford's website.

Alfred L. Brophy

Objective Indicators of "Cool" Law Profs?

Ok, so the internet's lit up with discussion of who is the "coolest" law prof. Obviously, everyone who engages in this discussion is, by virtue of doing that much navel-gazing, way, way uncool. (So, hi, Paul Horwitz. You and I can stand together in the corner with our dunce caps on.)

I'm delighted that Alex Long of Oklahoma City University is a leading candidate. Anyone who's creative enough to look at citations to songs in legal scholarship deserves consideration. (By the way, Alex, in the next iteration of your article, you might cite my invocation of The Clash's Joe Strummer's statement that "if you ain't thinkin' about [hu]mans and God and law, then you ain't thinkin' about nothin." It's not a lyric, but it fits with your overall interest in articles that invoke musicians' insights.) Paul Butler's another great candidate.

All of this leads the social scientist in me to ask: is there a way to quantify coolness? As a notorious square, I'm not sure I'm even qualified to talk in general terms about how to define cool. I would submit, however, that appearing in pop culture is one (one--not the exclusive) indicator of "cool."

I would think that one of my favorite law profs, Randall Kennedy, has got to be on anyone's short list. As discussed here earlier, he was quoted in Cosmo. Even more importantly, there was an episode of Boston Public devoted to his book on the N-word. Jessica Litman of the University of Michigan was quoted in Rolling Stone. Again, I'm looking for objective indicators of coolness--and I think that being quoted in leading pop culture magazines is a good indicator. Time for our friend and Money-Law superhero John Doyle of Washington and Lee Law School to compile some stats on this....

Seems to me that coolness is associated in part with marching to your own drum. So we shouldn't care too much about who's acting in ways that others approve (though approval of others obviously is somewhat important--see above). That's why I think coolness is not necessarily associated with youngsters. Maybe older people are cooler than younger. At a legal history conference in Austin some years ago, I was wandering around downtown on Halloween and one of my friends (I won't embarrass him by naming him but I will say that he's an awesome legal historian), said "groovey!" Ah, just the perfect phrase for that evening.

How much is coolness related to language? It's less important whether your writing or speech sounds like it's been run through the Ali G translator--er, Da Ali G translata--than if you have some new, humane ideas, isn't it? If you want to see a work informed by hip hop and rich with insights on law and humane ideas, I'd recommend Imani Perry's wonderful Prophets of the Hood.

Of course, maybe in deciding on something like "coolness" we ought to be using some less easily quantifiable factors: like who's producing innovative scholarship? Our own Jim Chen wrote what my favorite librarian (who is notoriously critical of scholarship) called the best article she's read in a long time. And Jim's facility with pop music makes him cool; I actually laughed when I read this entry.

In addition to Randall Kennedy, Jessica Litman, and Imani Perry, let me nominate Mitch Crusto of Loyola Law School, New Orleans. Mitch has written some terrific work on race in the nineteenth century. Take a look at it--it's, well, cool....

Al Brophy

Why the Faculty Recruitment Conference is like my favorite Mary Tyler Moore episode.

There was an episode of MTM in which Mary was very depressed, and Ted told her, in his most solemn and sad voice, "I know how you feel. You wake up . . . , have some breakfast . . . , go to work . . . , work a little . . . , have lunch . . . , work a little more . . . , go home . . . , have dinner . . . , and go to bed. What you need to do is [said by Ted with the utmost enthusiasm]: Wake up! Have some breakfast! Go to work! Work a little! Have lunch! Work a little more! Go home! Have dinner! Go to bed!" In other words: do the same thing that you did before, but with a better attitude.

Good life lesson, but it also reminded me of interviewing for faculty positions at the recruitment conference. One of the best things that the AALS does (I hope it still does this) is open the conference w/some dos and don'ts for interviewing. In essence, candidates who aren't familiar with what appointment committees are expecting to hear get a little mentoring beforehand. One message that was clear is that the modal answer to the question, "why do you want to change careers?" was supposed to be "I find myself hiding out in the library thinking about issues that I want to research, and I can't do that kind of scholarship in my current job." So I had an image of everyone who was looking for a job that year saying the exact same thing to each committee, with the difference between getting invited back or not being the level of enthusiasm (believability?) with which a candidate said the right thing.

There's nothing wrong with having the need to write be the reason for seeking an academic post, but I think that those who start their answer with talking about teaching run a risk that they won't be considered "serious" candidates at some schools. I've heard some people say that candidates who lead with wanting to teach won't be productive scholars (a hoary old saw if ever I heard one). Part of the problem is, again, the discomfort created by different types of candidates. My POV is that the very best professors do both research and teaching well and take both very, very seriously. Answering the question of why someone wants to become an academic by leading with a desire to teach shouldn't be the kiss of death for a candidate.

All potential with no credentials

I don't know what scientific significance to extract from the evident delight that critics (Hodnicki, Leiter, Markel) are taking in Chapman University's claim to SSRN glory. MoneyLaw contributor Tom Bell's defense and rejoinder make intuitively sound observations about the uses and misuses of SSRN downloads. What is striking to me, on a strictly emotional level, is how thoroughly the legal professoriate remains enthralled by academic rank.

How dare Chapman, tier four school that it is, claim to outperform Harvard? How terribly uppity of those folks from Orange County. And how dare these people with 75th percentile finishes at tier two schools clutter the AALS recruiting conference! Send them back to East Dakota State. Newly arrived MoneyLaw contributors Nancy Rapoport and Jeff Harrison have skewered these offensive expressions of elitist privilege. As MoneyLaw's founder and administrator, I am proud that Tom, Nancy, and Jeff are writing for this forum.

The time has come, I think, to begin developing a truly meritocratic agenda that gives the right amount of weight to the perceived prestige of a law school, whether the question arises in connection with the value of that school's scholarly output or the desirability of that school's graduates. Here is the short version:

Credentials don't matter. Performance does.

As one of my favorite rock stars, Liz Phair, might say, you just need to be whip-smart. Like Liz, I'll take anyone who is "all potential with no credentials." Put your words down on paper and get them published, and I'll take you any time, any place ahead of a top graduate of a top law school who prefers basking in elite glory over getting the job done.

To be sure, there are people who have overcome the handicap of three, seven, sometimes even ten years of education at Harvard, Yale, Princeton, and Oxford. Among them rank some -- but by no means all -- of the real stars of this business. Whatever our own academic credentials, we as law professors should strive toward making our business more meritocratic. Will true meritocracy ever come to pass? Now that would be somebody's miracle.

Things that faculty appointments committees should know (if they don't already)

1. People choose to attend particular law schools for all sorts of reasons, but I don't know too many who choose a law school based on whether or not that school is a good "feeder" school for budding law professors. Don't punish the candidate for his choice of law school. Look beyond the group membership (choice of law school) to the candidate's talent.
2. The best predictor of future performance is past performance (of the same skills). Therefore, a high GPA (which is a very nice thing--don't get me wrong) is not as good a predictor of potential scholarly performance as is past scholarly performance (e.g., a law review note, articles published while the person is working as a lawyer, etc.). Experience as an appellate court clerk IS useful; the prestige of a particular clerkship (judge, court) is not.
3. Not everyone goes into the faculty recruitment conference having been prepped by mentors. That means that the answers that the candidate gives during the screening interview may not be the "standard" answers (e.g., "I have wanted to write since I was a zygote"; "Teaching? Sure, it's important, but I live for my writing").
4. Candidates can hear you clicking your pen over and over during the interview.
5. Law schools grow by having a variety of different types of professors with different backgrounds and interests, but some of those backgrounds and interests may put you outside of your comfort level. Be open to the decision not to replicate yourself in your hiring choices.

Tomorrow I'll explain why the Faculty Appointments Conference interviews remind me of one of my favorite Mary Tyler Moore episodes.

Nancy Rapoport joins MoneyLaw

MoneyLaw is very pleased to welcome Nancy Rapoport as its newest contributor. Professor Rapoport is a member of the faculty of the University of Houston Law Center, which she served as dean from July 2000 through May 2006. Over the course of a distinguished academic career, which has included a stint as the dean of the University of Nebraska College of Law (1998-2000) and coauthorship of Enron: Corporate Fiascos and Their Implications (2004), Professor Rapoport has also managed to secure her own Internet Movie Database biography.

Please join MoneyLaw in welcoming the multitalented and fascinating Nancy Rapoport to its corps of contributors.

Validity of SSRN's "# of New Papers" Measure

I earlier related the kerfuffle that followed Chapman Law School's acknowledgement of its recent success in the SSRN's "# of New Papers" measure. A skeptic might conclude that Chapman drew criticism primarily because it "acted above its station," daring to trumpet that it had bested the champions of USN&WR's law school rankings. Perhaps so. I find more interesting, however, the claim that Chapman erred in describing the SSRN's "# of New Papers" measure as a "key scholarly output ranking." Outlandish puffery or accurate reporting?

Bernard Black and Paul Caron consider the utility of SSRN's measures in their paper, "Ranking Law Schools: Using SSRN to Measure Scholarly Performance," 81 Ind. L. J. 83 (2006). They argue that both the number of posted papers and the number of downloads “play a valuable role in the rankings tapestry," offering new and potentially more accurate alternatives to the USN&WR rankings.

Black and Caron observe, moreover, that measures of the number of papers posted to SSRN arguably offer a more accurate measure of genuine scholarship than measures of the number of papers downloaded from the network. Why so? Because the latter offers more opportunities for gaming the system. Though I again admit that I'm not purely disinterested in the matter, I thus conclude that the SSRN's "# of New Papers" does plausibly qualify as a key measure of scholarly output.

Granted, none of the SSRN's rankings work perfectly. In particular, as I observed in my earlier post, the "# of New Papers" measure could stand some improvement. Black and Caron put it this way: “The SSRN measures have important field and other biases. Still, they offer up-and-coming schools a way to ‘show their stuff,’ long before the US News rankings respond to the school’s improvement. That alone is an important contribution.”

[Crossposted to Agoraphilia.]

Class Differences: Part 1

Give me your hungry, your tired your poor I'll piss on em
Thats what the statue of bigotry says
Your poor huddled masses, lets club em to death
And get it over with and just dump em on the boulevard.
Lou Reed, Dirty Blvd.

Professor Brophy has put me on the spot by asking about the specifics of class-sensitive hiring. As I see it, there are three questions. What do I mean by economic diversity? Second, what does economic diversity bring to the table? Finally, how would one go about hiring for this type of diversity? (I’d prefer not to use the term “affirmative action” which seems to have different and shifting meanings.) Before addressing these issues – one per week – I want to add a qualification. My focus is purely utilitarian. Will an increase in economic diversity (assuming the premise that it does not currently exist is correct) enhance teaching and research? Although I personally feel that children of poor and working class families have been excluded and there are issues of equity to consider, that is not my concern here. For now at least, I am not willing to ask today’s taxpayers to compensate today’s working class children because of what may or may not have happened to their parents. In the context of public schools, that may be nothing more than an intra-class redistribution.

To me class differences in the classroom and in scholarship are not about likely positions on specific issues. If that is what I were after, I am not sure economic diversity would get me there. (Plus, to be honest I am weary of hiring decision based on how the candidate is likely to vote on specific issues.) I am thinking about a different perspective or sensitivity. I know this gets uncomfortable but a good example of what I mean by sensitivity or awareness involves an experience I had a few years ago when I shared a cab with a very privileged colleague – one I have enormous respect for. It was a battered cab with a driver whose clothes and demeanor said “working class.” She noticed a radar detector on his dash and attempted to engage the driver in a conversation about it. He nodded in response to her attempts. Somewhere along the line she announced with a big grin, “We got our radar detector from the Sharper Image Catalogue!” (This was several years ago when the Sharper Image had just come on the scene and carried with it some status.) She said it as though they had now bonded and would begin sharing Sharper Image stories. He was deer in the headlights. She was clueless that she was from a class of people who were inundated with Shaper Image catalogues and he was from a class that had not heard of the Sharper Image. This is all very dated now. Shaper Image has been exposed is now discounting on Ebay. So, substitute in this story something like the Design Within Reach catalogue. Or, virtually anything from San Francisco, of course.

This is just an example but I see the same disconnect played out repeatedly. I have talked to students who were turned down by my colleagues for research assistant jobs, but I did not tell them that jewelry, wide lapels, crooked teeth, and make-up make law professors nervous. Similarly, I have been in job interviews for teaching positions that were dismal because the candidate could not connect with interviewers by name dropping Guido, Cass, Eric or Ian; discussing biking in Italy or anything in the New Yorker; and let it drop that having a brand new car, as opposed to a fashionably old Volvo or Mercedes, would be cool.

If you agree that there are differences, the next question is whether having people on a faculty with this different sensitivity would make teaching and research richer. I will have a go at that next week.

New York and California Schools' Bar Pass Rates and Rankings

On Monday, I wrote a little about the correlations between schools' bar pass rates and some other attributes, like their US News rankings. To add a little more to this discussion, here's a table that compares New York and California schools.

Correlations Between Average Percentages of Graduates of Specific Law Schools Who Pass the New York or California Bar Examination and Selected Attributes of Their Schools

	New York	California
Attribute	r	r
peer assessment	.91	.84
Lawyer/Judge assessment	.92	.84
GPA, 25th percentile	.88	.87
GPA, 75th % percentile	.89	.88
GPA midpoint	.89	.88
LSAT, 25th % percentile	.93	.89
LSAT, 75th % percentile	.91	.90
LSAT, midpoint	.92	.90
	n=22	n=18

All correlations are statistically significant at p < .0001.
The LSAT and GPA sure have a high correlation with bar exam; whether those measure something important to the practice of law is a separate issue, of course.

Alfred L. Brophy

SSRN v. USN&WR v. Truth

Chapman University School of Law did very well in the most recent Social Sciences Research Network (SSRN) rankings. Chapman topped all other law schools in the number of new papers posted in the last 12 months, and ranked 71 out of the 353 schools in the total number of downloads over that same period. So much, so good. Chapman apparently ruffled some feathers, however, by publicly acknowledging its success.

Joseph A. Hodnicki, Associate Director for Library Operations at the University of Cincinnati Law Library, characterized Chapman's announcement as "an amazing display of hubris . . ." Prof. Dan Markel, of FSU Law School, agreed, praising Hodnicki's "super post puncturing Chapman School of Law's inflated claim to outperform Yale, Harvard, etc. . . ." And, yet, Chapman plainly did outperform its counterparts in terms of what the SSRN rankings measure. What's the problem, then?

The SSRN's "# of New Papers" measure does not discriminate between old and new publications. Hodnicki complains that Chapman aced that measure because some of its faculty members recently posted on SSRN papers they published years ago. (Hodnicki seems more comfortable with Chapman's top-100 debut in the SSRN's "total downloads" measure.) I agree with Hodnicki insofar as he thinks the SSRN should do a better job of gauging law schools' scholarly performance. Indeed, I'll go farther: I'd bet that the SSRN defines "# of New Papers" as it does in order to encourage the posting of old papers, which helps to increase the size and value of the SSRN database.

The SSRN's "# of New Papers" measure thus merits criticism—of SSRN. Chapman perhaps committed a gaucherie, granted, in trumpeting its success. And perhaps, as a member of Chapman's faculty, I lack a sufficiently objective view of the matter. It seems to me, though, that Chapman caught flack for truthfully reporting that it did a good job at sharing its scholars' work with the world. Why criticize Chapman for that?

Hodnicki tries to discredit Chapman's achievement by citing the school's low reputation score in the U.S. News & World Report rankings. As I've explained elsewhere, though, Chapman's (presently) low reputation score in the USN&WR rankings says more about law school ranking games than it does the school's actual qualities. The most USN&WR recent rankings credited Chapman with:

a median LSAT (156) above that of USN&WR's third tier (155);
an average GPA (3.31) closer to the third tier's (3.39) than the fourth's (3.22);
an employment at nine months figure equal to the third tier's (91%);
an acceptance rate (30.2%) better than the third tier's median (35.0%); and
a Bar pass/jurisdiction figure (109.3%) better than the second tier median (103.9%).

I'm happy to join Hodnicki and anyone else in casting a skeptical eye on the SSRN rankings. Let's aim our fire at the SSRN, though, rather than on the schools it ranks. And let's not assume that USN&WR's reputation scores offer a more accurate measure of law school quality.

Update: See this more recent post for an analysis of the validity of SSRN's "# of New Papers" measure.

[Crossposted to Agoraphilia.]

Harrison on Class Bias in Law School Hiring

I'd also like to welcome Professor Harrison to MoneyLaw. I'm honored to be in his company.

I've just read his thought-provoking 1992 essay in the Journal of Legal Education (available here from Hein On-Line) on "Thoughts on Class Bias in Law School Hiring," which I enjoyed. I look forward to hearing more of his thoughts on this important topic.

I think it may be appropriate to consider a job candidate's economic background (I don't think we're thinking so much about their class-identity as their economic background, though I may be wrong) in hiring. I think that people who've overcome obstacles and presents a comparable record to those who've have more advantages are generally a better bet. Also, people who've had fewer opportunities may be--though I know individual cases vary--more likely to take advantage of the opporuntities that are presented to them. So my reason for giving the nod in hiring to people from poorer economic backgrounds has more to do with my sense of who'll perform better at the job than with what "different perspectives" they bring to the table. (The American studies person in my thinks of Horatio Alger here, hence the image.)

That leads me to two questions from Harrison's 1992 article. First, if we're going to support affirmative action based on economic background on the grounds of diversity, what are the particular perspectives that people who grew up poorer will bring? In property (one of the areas I know best), I might hazard a couple of guesses: that people from poorer backgrounds will be more likely than others to know how hard it is to make ends meet and thus be more supportive of tenants' rights, more forgiving of people who're behind on their mortgage payments, and more forgiving of people who fail to pay their taxes on time (some thoughts about that over at my home blog, propertyprof). They may also be more likely to support public access to beaches--a variant of what I'm calling aloha jurisprudence. I can envision some other places where this would matter: on admissions committees, for instance, people from poorer than average backgrounds might be advocates for those didn't face those same obstacles.

Without replaying all of the Randall Kennedy--Richard Delgado debt on "racial critiques of academia," however, I'd like to hear a little bit more about what affirmative action in this context is likely to do. As I say, I think there are solid reasons (including fairness) for doing this. I'd just like to be a little more explicit about the reasons.

Second, I'm interested in hearing more about how one might design a workable affirmative action plan based on economic background (or class, if Professor Harrison prefers). How will this work. Ask about whether the candidates' parents graduated from high school or from college? Whether they (or their grandparents) were able to read? Whether their family ever received public assistance? Had an income greater than $40,000/year? One of the many things that struck me when I was arrived in law school lo' those many years ago was how few people were from (what I thought of then as) truly disadvantaged backgrounds there were.

I'm very much looking forward to this discussion. I think these are precisely the kinds of issues that MoneyLaw ought to be talking about.

Alfred L. Brophy

The Top 25 Law School Tax Faculties

Theodore P. Seto (Loyola-L.A.) has updated his monthly rankings of the Top 25 U.S. Law School Tax Faculties, as measured by the number of SSRN downloads (through 9/1/06):

For more details, see here.

California Schools' Bar Pass Rates

Given Bill Henderson's suggestions over at elsblog that schools ought to do something more to help our students pass the bar (and that schools with low pass rates and high attrition ought to disclose those facts), I thought I'd look a little more deeply at the relationship between student quality, perceived school quality, and bar pass rates. I haven't paid much attention to bar pass rates in the past (most of my interest has been in developing a measure to supplement the notoriously static peer assessment scores and I've been looking at citations to schools' main law review. (My most recent paper is here).

I looked at California, which has eighteen ABA-accredited schools (and therefore a lot of easily accessible data thanks to US News) and ran a few correlations. The correlations of bar pass rate and US News peer assessment, lawyer/judge assessment, 25th percentile gpa, 75th percentile gpa, 25th percentile LSAT, 75th percentile LSAT, LSAT midpoint, percent of applicants accepted, and student/faculty ratio are in the table below.

Some things jump out: like how highly bar pass rate is correlated with perceived quality (as measured by peer assessment) and law student quality. None of this is surprising, but it suggests again that US News peer assessments are measuring essentially the same thing as student quality, which in turn measures essentially the same thing as bar pass rates. How all this relates to the quality of output, I am unsure. But it makes more understandable law schools' focus on LSAT--particularly if they are concerned, as they seem to be, about their bar pass rates.

Correlations between BarPass% and following variables:
Variable	r	p
Peer	.84	.00
LawJ	.84	.00
GPA25	.87	.00
GPA75	.88	.00
GPAmid	.88	.00
LSAT25	.89	.00
LSAT75	.90	.00
LSATmid	.90	.00
Accept%	-.63	.00
Student/Fac	-.70	.00

(N = 18)

The plot below illustrates the correlation between bar pass rate and LSAT mid-point of a school's students, for California law schools.