"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!" - Benjamin Franklin -
Long Live the Republic!
Long Live Liberty!
Two wolves and a lamb voting on what to have for lunch.
Long Live the Republic!
Long Live Liberty!
The 2008 U.S. News Rankings and an Apology
I discovered yesterday, to my great dismay, that the version of my article on the U.S. News law school rankings currently posted on SSRN was the wrong version -- old and incomplete. In particular, it does not include the portions of the article on managing rankings and on improving U.S. News' methodology. On Monday, I will arrange to have the most recent version posted. My sincere apologies.
U.S. News' staff informs me that the new ("2008") rankings, made public today, were computed using a methodology identical to the methodology used last year. Even the equation used to estimate employment rates at graduation for schools not supplying such rates was retained unchanged. Although I plan to update my numbers, my analysis of that methodology therefore remains on point.
Based on a preliminary review of the 2008 rankings, the conclusion of my current draft continues to express my bottom-line views:
"What I have found most interesting in analyzing U.S. News' rankings are the surprises in the nitty-gritty details. It would be impossible to summarize even a small portion of those surprises here. I came to this project with the assumption that there was probably some core of validity and reliability to the rankings, despite all of our complaints. I leave concluding that that core is very small, if indeed it exists at all.
"Law school deans know that rankings management is a red queen's race -- one must sprint just to stay in place. In the U.S. News world, the race sometimes goes to the school with the greatest flexibility to manage its numbers and the will to do so. This is not necessarily the school that provides the best education for its students, the best working environment for its faculty, or the best graduates for prospective employers. But that is the world in which we currently live.
"I have made a number of recommendations as to how to improve the validity and reliability of U.S. News' rankings. I am not optimistic they will be followed. I conclude, therefore, by pointing out what many others have said before me: The situation will likely improve significantly only when multiple widely-read ranking systems come to compete.
"Currently, in my view, the ABA contributes significantly to U.S. News' monopoly. The ABA requires compilation of great amounts of information, thereby making U.S. News' rankings possible. But it keeps most of that information secret, at least within the time frames relevant to possible entrants to the law school ranking business. This secrecy, in turn, raises significant barriers to entry for possible U.S. News competitors. My ultimate recommendation to the ABA would be to post the most relevant variables it collects promptly and publicly on the internet and waive copyright protection with respect to that posting. Competitor rankings would inevitably spring up. Students, faculty, and employers would be much better served. And the world of legal education would cease to be forced to dance to a single piper's tune."
U.S. News' staff informs me that the new ("2008") rankings, made public today, were computed using a methodology identical to the methodology used last year. Even the equation used to estimate employment rates at graduation for schools not supplying such rates was retained unchanged. Although I plan to update my numbers, my analysis of that methodology therefore remains on point.
Based on a preliminary review of the 2008 rankings, the conclusion of my current draft continues to express my bottom-line views:
"What I have found most interesting in analyzing U.S. News' rankings are the surprises in the nitty-gritty details. It would be impossible to summarize even a small portion of those surprises here. I came to this project with the assumption that there was probably some core of validity and reliability to the rankings, despite all of our complaints. I leave concluding that that core is very small, if indeed it exists at all.
"Law school deans know that rankings management is a red queen's race -- one must sprint just to stay in place. In the U.S. News world, the race sometimes goes to the school with the greatest flexibility to manage its numbers and the will to do so. This is not necessarily the school that provides the best education for its students, the best working environment for its faculty, or the best graduates for prospective employers. But that is the world in which we currently live.
"I have made a number of recommendations as to how to improve the validity and reliability of U.S. News' rankings. I am not optimistic they will be followed. I conclude, therefore, by pointing out what many others have said before me: The situation will likely improve significantly only when multiple widely-read ranking systems come to compete.
"Currently, in my view, the ABA contributes significantly to U.S. News' monopoly. The ABA requires compilation of great amounts of information, thereby making U.S. News' rankings possible. But it keeps most of that information secret, at least within the time frames relevant to possible entrants to the law school ranking business. This secrecy, in turn, raises significant barriers to entry for possible U.S. News competitors. My ultimate recommendation to the ABA would be to post the most relevant variables it collects promptly and publicly on the internet and waive copyright protection with respect to that posting. Competitor rankings would inevitably spring up. Students, faculty, and employers would be much better served. And the world of legal education would cease to be forced to dance to a single piper's tune."
Los Angeles Business License Tax Errors
Some new or small businesses in the City of Los Angeles who filed their business tax renewal on time, and qualified for exemptions from tax, are receiving Notices from the Office of Finance indicating they owe tax, interest, and penalties. If you believe you have received such a notice in error, contact your business lawyer, accountant, or the City of Los Angeles Office of Finance directly for resolution:
http://www.lacity.org/finance/
http://www.lacity.org/finance/
New 2008 U.S. News Law School Rankings
As Nancy noted, the new 2008 U.S. News & World Report Law School Rankings are scheduled to be released on Friday. But they have leaked out today in the blogosphere. On TaxProf Blog, I compare the 2008 Top 25 with the 2007 Top 25, and note the biggest upward and downward moves among the Top 100.
Kudos to Bill Henderson for his analysis of the Vault study
Take a look at his post, Vault Top 25 Underrated Schools: What Does It Mean? With the Henderson/Morriss work, Tom Bell's work, and Ted Seto's work, there's a lot of interesting stuff written on the rankings--all of which will be more timely than ever this coming Friday.
The How, Who, and Why of Strategic Emp9 Reporting
In a prior post, I described how U.S. News & World Report calculates law schools' "employment at 9 months" figures and observed that its "Emp9" formula encourages semantic slight-of-hand. Specifically, a law school can score notably higher in USN&WR's rankings by characterizing a graduate as "unemployed and not seeking work" rather than as "unemployed and studying for the Bar full-time." I closed that post with several questions, which I here start tackling.
Why does that classification strategy benefit law schools?
Working through the details of USN&WR's Emp9 formula, spelled out in my prior post, makes evident why a law school benefits from classifying its gradates as "unemployed and not seeking work" instead of "unemployed and studying for the Bar full-time." Putting students in the former category decreases the denominator in USN&WR's Emp9 formula, thus increasing a school's Emp9 score. Calling a student "unemployed and studying for the Bar full-time" has no like effect.
Recur to the randomly chosen example I used earlier: American University School of Law. In the fall of 2005, it reported to the ABA (and thus presumably to USN&WR) that it had had 16 students "unemployed and not seeking work" and 3 students "unemployed and studying for the Bar full-time" nine months after their 2004 graduation. Those figures, together with others used by USN&WR, gave it a 97.2% Emp9 in the 2007 rankings (which issued in March of 2006). Suppose that American had classified all 19 of those students as "unemployed and not seeking work." In that event, it would have boasted a Emp9 of 98.1%. Conversely, if it had classified all 19 as "unemployed and studying for the Bar full-time," it would have had an Emp9 of only 92.7%.
Which law schools pursue that strategy?
I do not know which law schools, if any, have embraced the characterization strategy I've described. I am not privy to any law school's deliberations on that count—not even my own school's. I venture, however, that if a law school has opportunistically pushed graduates into the "unemployed and not seeking work" category and out of the "unemployed and studying for the Bar full-time" one, it will tend to report a large percentage of graduates in the former category relative to the latter one.
To identify which law schools might have done that, I drew on data in the 2007 ABA-LSAC Official Guide to ABA-Approved Law Schools. I collected it in an Excel file, together with Emp9 data from last year's USN&WR rankings, and offer it to you for the asking; just drop me a line. (Contrary to what it promised last fall, the ABA has still not made its data available in an easily downloaded format.)
I invite you to analyze that data as you see fit. As I said, though, comparing a law school's "unemployed and not seeking work" figure with its "unemployed and studying for the Bar full-time" might help us to determine—not "prove"!—which law schools have reported placement data in ways that improved their Emp9 scores. When I subtracted the latter measure from the former, I found that these schools had "strategic reporting indicator" scores above 5%:
Again, I emphasize that I do not know why the law schools listed above had so many graduates "unemployed and not seeking work" relative to "unemployed and studying for the Bar full-time." I've written to a couple of those schools seeking explanations, but as yet gotten no replies. For now, all I can say is that the law schools listed above, as well as many other schools with notably high though lesser "strategic reporting indicator" scores, reported placement numbers in a pattern consistent with what we would expect from a school that categorized its graduates so as to maximize its USN&WR ranking.
How much do they benefit from it?
Because the Emp9 measure counts for 14% of a law school's score in the rankings, and because most schools' scores cluster in a narrow range, relatively small changes in a school's Emp9 measure can have a large effect on its ranking. Ted Seto documents that phenomenon quite ably in his excellent paper. To give you an idea of how much strategically categorizing graduates can help a law school, allow me to run some numbers through my model of the 2007 rankings.
The 2007 USN&WR rankings, for instance, credited UCLA with a 99.7% Emp9, an overall score of 71, and a rank of 15. Suppose, however, that UCLA had reported not the "unemployed and not seeking work" and "unemployed and studying for the Bar full-time" percentages related above, but rather the average percentages reported by all law schools ranked by USN&WR—2.3% and 3.0%, respectively. In that event, holding all else equal, UCLA would have had a 90.0% Emp9, an overall score of about 68, and a rank of 17—neck-in-neck with its cross-town rival, USC.
I here pause again, leaving for now unaddressed these questions: "Is that [i.e., strategic Emp9 reporting] ethical?" "How did we get into the mess?" and "How do we get out of it?" I'm not very sure, yet, about my answers. (With regard to the last two, at least, Andy P. Morriss' and William D. Henderson's impressive draft paper offers some leads.) Please feel free to comment here, or to email me, if you have your own answers.
[Crossposted to Agoraphilia.]
Earlier posts about Emp9 measure:
Why does that classification strategy benefit law schools?
Working through the details of USN&WR's Emp9 formula, spelled out in my prior post, makes evident why a law school benefits from classifying its gradates as "unemployed and not seeking work" instead of "unemployed and studying for the Bar full-time." Putting students in the former category decreases the denominator in USN&WR's Emp9 formula, thus increasing a school's Emp9 score. Calling a student "unemployed and studying for the Bar full-time" has no like effect.
Recur to the randomly chosen example I used earlier: American University School of Law. In the fall of 2005, it reported to the ABA (and thus presumably to USN&WR) that it had had 16 students "unemployed and not seeking work" and 3 students "unemployed and studying for the Bar full-time" nine months after their 2004 graduation. Those figures, together with others used by USN&WR, gave it a 97.2% Emp9 in the 2007 rankings (which issued in March of 2006). Suppose that American had classified all 19 of those students as "unemployed and not seeking work." In that event, it would have boasted a Emp9 of 98.1%. Conversely, if it had classified all 19 as "unemployed and studying for the Bar full-time," it would have had an Emp9 of only 92.7%.
Which law schools pursue that strategy?
I do not know which law schools, if any, have embraced the characterization strategy I've described. I am not privy to any law school's deliberations on that count—not even my own school's. I venture, however, that if a law school has opportunistically pushed graduates into the "unemployed and not seeking work" category and out of the "unemployed and studying for the Bar full-time" one, it will tend to report a large percentage of graduates in the former category relative to the latter one.
To identify which law schools might have done that, I drew on data in the 2007 ABA-LSAC Official Guide to ABA-Approved Law Schools. I collected it in an Excel file, together with Emp9 data from last year's USN&WR rankings, and offer it to you for the asking; just drop me a line. (Contrary to what it promised last fall, the ABA has still not made its data available in an easily downloaded format.)
I invite you to analyze that data as you see fit. As I said, though, comparing a law school's "unemployed and not seeking work" figure with its "unemployed and studying for the Bar full-time" might help us to determine—not "prove"!—which law schools have reported placement data in ways that improved their Emp9 scores. When I subtracted the latter measure from the former, I found that these schools had "strategic reporting indicator" scores above 5%:
Again, I emphasize that I do not know why the law schools listed above had so many graduates "unemployed and not seeking work" relative to "unemployed and studying for the Bar full-time." I've written to a couple of those schools seeking explanations, but as yet gotten no replies. For now, all I can say is that the law schools listed above, as well as many other schools with notably high though lesser "strategic reporting indicator" scores, reported placement numbers in a pattern consistent with what we would expect from a school that categorized its graduates so as to maximize its USN&WR ranking.
How much do they benefit from it?
Because the Emp9 measure counts for 14% of a law school's score in the rankings, and because most schools' scores cluster in a narrow range, relatively small changes in a school's Emp9 measure can have a large effect on its ranking. Ted Seto documents that phenomenon quite ably in his excellent paper. To give you an idea of how much strategically categorizing graduates can help a law school, allow me to run some numbers through my model of the 2007 rankings.
The 2007 USN&WR rankings, for instance, credited UCLA with a 99.7% Emp9, an overall score of 71, and a rank of 15. Suppose, however, that UCLA had reported not the "unemployed and not seeking work" and "unemployed and studying for the Bar full-time" percentages related above, but rather the average percentages reported by all law schools ranked by USN&WR—2.3% and 3.0%, respectively. In that event, holding all else equal, UCLA would have had a 90.0% Emp9, an overall score of about 68, and a rank of 17—neck-in-neck with its cross-town rival, USC.
I here pause again, leaving for now unaddressed these questions: "Is that [i.e., strategic Emp9 reporting] ethical?" "How did we get into the mess?" and "How do we get out of it?" I'm not very sure, yet, about my answers. (With regard to the last two, at least, Andy P. Morriss' and William D. Henderson's impressive draft paper offers some leads.) Please feel free to comment here, or to email me, if you have your own answers.
[Crossposted to Agoraphilia.]
Earlier posts about Emp9 measure:
We're number, uh, something?
It's that time of year again. Spring's in the air, and the latest USNWR rankings are going to be going out on Wednesday ("embargoed" until Friday or until someone leaks them, which will inevitably come first). In law schools' latest defensive moves to minimize the effect that the USNWR rankings have on (pick one)
1. I'm glad that I'm someone who can sit back and watch this year, as last year's episode was the continuation of some serious unpleasantness when I was the dean. (Take a look at the "Preview of some Managing by Ambush material," located on the right-hand side of my blog, if you're interested in rehashing the experience.) I don't envy the deans, each of whom has to decide what, if anything, to do with this year's ranking. Except for a few schools, deans have a no-win dilemma. Be nice to your dean. He or she is already chewing more antacids than usual.
2. Schools are doing the same freakin' things with the Vault survey, with its whopping 512 respondents, that they do with USNWR's rankings. They're touting where they sit on the "most underrated" lists. (Think I'm kidding? See this use, for one.) I agree with Vault that all of the schools in the various underrated lists (including some of my old stomping grounds--Ohio State, Houston--and my future school, Boyd/UNLV) are much better than USNWR indicates in its yearly rankings. (You can read comments about the underrated schools by region by clicking on any of Vault's "read comments" entries and then scrolling up and down for comments on other schools.)
What Vault's list cannot mean, however, is that some of the underrated schools are more underrated than others. Even if it were possible to distinguish among these schools with certain statistically significant factors, a meager 512 comments by recruiters just doesn't cut it.
3. Therefore, before the annual "we're number N!" madness begins, let's just take a note from the pages of Susan Powter, of the "stop the insanity!" infomercials. You want to refer to USNWR's rankings? Fine. You want to refer to Vault's "underrated" list? Fine again. You want to count SSRN downloads, or "top 10 downloads," or "downloads without provocatively titled articles," or any other measure of quality or status? Fine, fine, fine. But please don't prove to the world that you forgot to take a statistics course in college. Use any of these studies for what they say, but please don't use any study's ranking of law schools from 1-194 to argue that the rankings separate each school from another by real, immutable differences. They don't: they bunch certain schools together along certain characteristics. Take a look at my diagram on page 361 of Eating Our Cake and Having It, Too: Why Real Change is so Difficult in Law Schools, which illustrates the bunching effect.
Are there differences among schools? Of course there are, and some of those differences actually matter. But the real differences involve things that mean far more than mere numbers, and they can't be teased out by easily manipulable studies.
- the schools' self-image,
- ability to recruit faculty and students, or
- relationships with various stakeholders,
various other rankings have emerged as possible enhancements of / substitutes for the USNWR rankings. Among these possibilities are SSRN downloads (with or without the "top 3 authors" per school counted) and the latest Vault rankings of the 25 most undervalued schools. (See MoneyLaw's post on the Vault rankings here.)
A couple of thoughts before this year's madness begins:1. I'm glad that I'm someone who can sit back and watch this year, as last year's episode was the continuation of some serious unpleasantness when I was the dean. (Take a look at the "Preview of some Managing by Ambush material," located on the right-hand side of my blog, if you're interested in rehashing the experience.) I don't envy the deans, each of whom has to decide what, if anything, to do with this year's ranking. Except for a few schools, deans have a no-win dilemma. Be nice to your dean. He or she is already chewing more antacids than usual.
2. Schools are doing the same freakin' things with the Vault survey, with its whopping 512 respondents, that they do with USNWR's rankings. They're touting where they sit on the "most underrated" lists. (Think I'm kidding? See this use, for one.) I agree with Vault that all of the schools in the various underrated lists (including some of my old stomping grounds--Ohio State, Houston--and my future school, Boyd/UNLV) are much better than USNWR indicates in its yearly rankings. (You can read comments about the underrated schools by region by clicking on any of Vault's "read comments" entries and then scrolling up and down for comments on other schools.)
What Vault's list cannot mean, however, is that some of the underrated schools are more underrated than others. Even if it were possible to distinguish among these schools with certain statistically significant factors, a meager 512 comments by recruiters just doesn't cut it.
3. Therefore, before the annual "we're number N!" madness begins, let's just take a note from the pages of Susan Powter, of the "stop the insanity!" infomercials. You want to refer to USNWR's rankings? Fine. You want to refer to Vault's "underrated" list? Fine again. You want to count SSRN downloads, or "top 10 downloads," or "downloads without provocatively titled articles," or any other measure of quality or status? Fine, fine, fine. But please don't prove to the world that you forgot to take a statistics course in college. Use any of these studies for what they say, but please don't use any study's ranking of law schools from 1-194 to argue that the rankings separate each school from another by real, immutable differences. They don't: they bunch certain schools together along certain characteristics. Take a look at my diagram on page 361 of Eating Our Cake and Having It, Too: Why Real Change is so Difficult in Law Schools, which illustrates the bunching effect.
Are there differences among schools? Of course there are, and some of those differences actually matter. But the real differences involve things that mean far more than mere numbers, and they can't be teased out by easily manipulable studies.
Taking the Honor out of Honorary:Go Florida!
Right up until the fall of 2000 there were (I am estimating) at least ten or so people on the face of the earth who did not know that Florida is the wackiest state of them all. Then, thanks to Jeb, Katherine, and the eventual judicial coup d'etat the word was "out."Last week we were at it again although this time it was not a shoot out, harassing Congressional pages, vicious Disney characters, or marauding ex astronauts. It was the no vote of the faculty senate on an honorary degree for Jeb.
Like 99% of the people I know, whether Jeb gets an honorary degree is not something I lose sleep over but only in Florida could you have all at the same time:
1. One person explaining that honorary degrees are for accomplished scholars when politicos are regular recipients.
1. One person explaining that honorary degrees are for accomplished scholars when politicos are regular recipients.
2. Another person saying Jeb does not deserve one because he did not spend enough of the State's money on UF. (This logic also rules out Mother Teresa.)
3. Calling for the University President's resignation because he was critical of the University Senate's "academic" decision.Other than than another indication of chaos of Universities, what does this have to do with MoneyLaw? Well, take a closer look at number 2. Number two is the institutional version of how many law professors evaluate virtually everything: Is it good for me? If the answer is "yes" then you are an effective administrator. If the answer is "no" you are, by definition, awful. Put in different terms it is the "my approval" is for sale approach. It is also the "University" as an end, not a means to an end.
If it were my decision, Jeb's name would not have been in the running but not because he has not done anything for me lately. But, if that is the test, why not just sell honorary degrees to the highest bidders. How about 10 per year? You can even buy more than one if you bid enough. Hey, I'll take 7 and pass them out as party favors!!
I better stop now because I feel myself easing into another related matter I have already brought up on classbias. Did you ever notice that faculty members who scoff the most at "law and economics" actually think and behave the most like the rational self-interested people of economic theory?
Top 25 Most Underrated Law Schools
On TaxProf Blog, I blogged Vault's new ranking of the Top 25 Most Underrated Law Schools, based on 512 votes by legal recruiting professionals (law firm recruiting managers, law firm hiring partners, and corporate counsel). Here are the Top 10 Most Underrated Law Schools:
- Emory
- Fordham
- Howard
- Chicago-Kent
- Oregon
- George Mason
- Illinois
- William & Mary
- Vanderbilt
- Georgia
For the full list, see here. For other underrated law schools by region, see here.
Boston Legal takes on the Income Tax
Click the Pic, to View the Clip
Keep in mind, on this episode of ‘Boston Legal’ they are taking on the issue of a “tax protestor”. Ed and Elaine Brown are not tax protestors; they pay all lawful taxes. They merely refuse to pay “taxes” that they are not liable for. And being that Ed and Elaine Brown are not liable for an income tax, they choose not to donate to the internal revenue service. Why anybody would voluntarily donate to the IRS, when no law requires them to do so, is beyond me.
Organized Crime
While I was reading my first letter from Chuck Conces from the Newago County Jail, the telephone rang. It was Hannah Dahl, daughter of Dr. Phil Dahl. Hannah is 20 years old and a friend of the family’s. She grew up with my daughters. Hannah asked if she could give my information to her father who is serving time in a Virginia penitentiary for non-payment of income taxes. I gave Hannah my information, and told her I would be looking forward to a letter from her father. I guess I’ll be getting lots of inmate mail.
Phil Dahl was a Stockbridge, Mi. dentist. He has 13 children and never turned anyone away because they didn’t have dental insurance or couldn’t afford to pay for his service. If you couldn’t pay Phil, he would barter the fee or wave it altogether. Phil is a salt of the earth kind of guy. You can’t help but like him. Several years ago Dr. Phil told me about his decision to not pay the income tax. It was because of this government’s practice to subsidize abortion clinics. Phil was adamant; he would not allow his money to be used for that purpose. READ ON...
New Law School Rankings Metric: YouTube Views
Over on TaxProf Blog, I plugged the rap video that my Civ Pro colleague Adam Steinman has entered in TurboTax's Tax Rap contest:
The MoneyLaw angle? My tongue-in-cheek suggestion that we should add YouTube video views to SSRN downloads as a new law school rankings metric!
How U.S. News Calculates "Employment at 9 Months"
What would you call someone who, unemployed nine months after graduating from law school, studies full-time for the Bar exam? "Hard-working"? "Hopeful"? "Miserable"? Try: "A classification pitfall for unwary law schools."
What a law school calls such graduates can have a significant impact on its U.S. News & World Report ranking. A school's "employment at 9 months" score counts for 14% of its overall score in the rankings. Furthermore, because reported placement rates vary relatively little across law schools, a few percentage points can make a big difference. The upshot: A law school's "employment at nine months" score, and thus its overall score in the rankings, may to an unwarranted extent reflect slippery semantics rather than hard facts. I here detail how U.S. News calculates the "employment at nine months" measure and thereby set things up to explain how a law school might exploit the formula to improve its USN&WR ranking.
Every fall, the American Bar Association ("ABA") sends a questionnaire to the law schools it accredits asking, among other things, about the employment status of each school's graduates nine months after graduation. Questionnaire Part 1, question 25b, asks a school to fit each such student into either "graduates whose employment status is unknown" or "graduates whose employment status is known." The latter category contains the following subdivisions:
U.S. News & World Report ("USN&WR") likewise sends the law schools it ranks a questionnaire each fall. With regard to questions concerning employment, as in many other areas, USN&WR asks each such school to repeat the answers it gave to the ABA. USN&WR thus collects data under each of the headings listed above. It does not handle the data the same way the ABA does, however.
Judging from the 2007 ABA-LSAC Official Guide to ABA-Approved Law Schools, the ABA calculates the percentage of graduates employed 9 months after graduation by simply dividing the number of graduates a school reports as "Employed" by the number the school reports as "Employment status known." So, for instance, the 2007 Guide reports that American University School of Law (to pick a school at random) had 301 employed graduates out of the 338 graduates the school had tracked down, meaning that 301/338, or 89.1%, of American's graduates were employed 9 months after graduation.
In the law school rankings it worked up based on that same year's data (the "2007" rankings published last spring), however, USN&WR says that 97.2% of American Law School's graduates were employed nine months after graduation. Whence comes that figure? USN&WR does not publish all the details of its calculations. We can easily figure it out, however, by combining what USN&WR does say about its rankings methodology and a bit of reverse engineering. That effort reveals that USN&WR calculates a law school's "Employment at 9 months" (or "Emp9") score thusly:
["Employed" + ("Employment status unknown" * .25) + "Pursuing graduate degrees"]
divided by
[All graduates – "Unemployed not seeking employment"].
(The data labels in quotes come from the ABA-LSAC Guide. "All graduates" equates to "Employment status known" plus "Employment status unknown.") American University Law School's "Emp9" score in the USN&WR rankings thus equals [301 + (4 *.25) + 15]/(342-16) = 317/326 = 97.2%.
My fellow ranking geeks should find that information alone quite interesting. Don't thank me, though; credit someone who prefers to remain anonymous for putting me on notice that USN&WR's "Emp9" formula differs from the ABA's. More significantly, my source also tipped me off as to why law school administrators should care very much about how USN&WR's formula (mal)functions. In brief, USN&WR's Emp9 formula allows a law school to score notably higher in the rankings by characterizing those of its graduates both unemployed and studying full-time for the Bar as "unemployed and not seeking work" rather than as "unemployed and studying for the Bar full-time."
I for now leave as an exercise for reader such questions as: "Why does that classification strategy benefit law schools?" "Which law schools pursue that strategy?" "How much do they benefit from it?" "Is that ethical?" "How did we get into the mess?" and "How do we get out of it?" Time and guts permitting, I'll offer my own answers in a later post.
[Crossposted to Agoraphilia.]
Earlier post about Emp9 measure:
What a law school calls such graduates can have a significant impact on its U.S. News & World Report ranking. A school's "employment at 9 months" score counts for 14% of its overall score in the rankings. Furthermore, because reported placement rates vary relatively little across law schools, a few percentage points can make a big difference. The upshot: A law school's "employment at nine months" score, and thus its overall score in the rankings, may to an unwarranted extent reflect slippery semantics rather than hard facts. I here detail how U.S. News calculates the "employment at nine months" measure and thereby set things up to explain how a law school might exploit the formula to improve its USN&WR ranking.
Every fall, the American Bar Association ("ABA") sends a questionnaire to the law schools it accredits asking, among other things, about the employment status of each school's graduates nine months after graduation. Questionnaire Part 1, question 25b, asks a school to fit each such student into either "graduates whose employment status is unknown" or "graduates whose employment status is known." The latter category contains the following subdivisions:
- Graduates known to be employed;
- Graduates who are enrolled in a full-time degree program;
- Graduates who are unemployed and seeking work;
- Graduates who are unemployed and studying for the bar full-time; and
- Graduates who are unemployed and NOT seeking work.
U.S. News & World Report ("USN&WR") likewise sends the law schools it ranks a questionnaire each fall. With regard to questions concerning employment, as in many other areas, USN&WR asks each such school to repeat the answers it gave to the ABA. USN&WR thus collects data under each of the headings listed above. It does not handle the data the same way the ABA does, however.
Judging from the 2007 ABA-LSAC Official Guide to ABA-Approved Law Schools, the ABA calculates the percentage of graduates employed 9 months after graduation by simply dividing the number of graduates a school reports as "Employed" by the number the school reports as "Employment status known." So, for instance, the 2007 Guide reports that American University School of Law (to pick a school at random) had 301 employed graduates out of the 338 graduates the school had tracked down, meaning that 301/338, or 89.1%, of American's graduates were employed 9 months after graduation.
In the law school rankings it worked up based on that same year's data (the "2007" rankings published last spring), however, USN&WR says that 97.2% of American Law School's graduates were employed nine months after graduation. Whence comes that figure? USN&WR does not publish all the details of its calculations. We can easily figure it out, however, by combining what USN&WR does say about its rankings methodology and a bit of reverse engineering. That effort reveals that USN&WR calculates a law school's "Employment at 9 months" (or "Emp9") score thusly:
["Employed" + ("Employment status unknown" * .25) + "Pursuing graduate degrees"]
divided by
[All graduates – "Unemployed not seeking employment"].
(The data labels in quotes come from the ABA-LSAC Guide. "All graduates" equates to "Employment status known" plus "Employment status unknown.") American University Law School's "Emp9" score in the USN&WR rankings thus equals [301 + (4 *.25) + 15]/(342-16) = 317/326 = 97.2%.
My fellow ranking geeks should find that information alone quite interesting. Don't thank me, though; credit someone who prefers to remain anonymous for putting me on notice that USN&WR's "Emp9" formula differs from the ABA's. More significantly, my source also tipped me off as to why law school administrators should care very much about how USN&WR's formula (mal)functions. In brief, USN&WR's Emp9 formula allows a law school to score notably higher in the rankings by characterizing those of its graduates both unemployed and studying full-time for the Bar as "unemployed and not seeking work" rather than as "unemployed and studying for the Bar full-time."
I for now leave as an exercise for reader such questions as: "Why does that classification strategy benefit law schools?" "Which law schools pursue that strategy?" "How much do they benefit from it?" "Is that ethical?" "How did we get into the mess?" and "How do we get out of it?" Time and guts permitting, I'll offer my own answers in a later post.
[Crossposted to Agoraphilia.]
Earlier post about Emp9 measure:
Too Smart?
This is just a theory (so don't get all bristly) connected to the discussion of whether what we write is relevant. Maybe there is a bigger issue. Other than teaching, how much of what law professors do is relevant only for each other? Based on the study I conducted about five minutes ago, not that long ago when you really think about it,I would say about 55.2 % -- give or take 1 or 2 %.Here is the catch. Being a law professor is only in part about teaching, research, and service in the interest of making others better off. Instead it is an exercise in self justifcation and one-ups-man-ship. Something along the line of "I must be important because Professor Jones at Elite Law School spoke to me at the annual meeting on Post-Natal law." Ego, that is. It's got to be that way or a fair percentage of law professors would be very very bored. Hell, I 'm bored already writing this and I am not all that smart -- just ask my wife.
The fact is that you de not have to be very smart to be a good law professor. Just being a little smart and preparing for class will be fine for the teaching part. Most students will be far behind. Not all mind you, but most. On the scholarship side . . . Can we talk?? There are no concepts in law that tax the brain like those found in economics, math, physics, engineering or philosophy. Zero. Any halfway decent law teacher can teach any law course given enough time to prepare. On the other hand there are very smart people who end up in law teaching. So what does that mean? They can be bored to death writing for state and federal court judges or they strut their stuff for other smart law professors. It means they need to write really smart articles in order to impress other people who are also smart -- way smarter, in fact, than necessary to do everything a law teacher needs to do. And so there is a awful lot of self-indulgent ultimately irrelevant writing. But it does make those who can do it feel better.
Ed Brown wants you to see where your tax dollar is going!
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If an article falls in a forest....
Blogs and listservs are abuzz with reactions to Adam Liptak's When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant. Coupled with the recent traffic about Brian Leiter's new rankings using SSRN downloads, including Brian's rankings themselves, Ted Seto's takes on Brian's work (here, here, and here), and Chris Fairman's take (here). Add to this discussion Al Brophy's post (here) reacting to Adam Liptak's post, along with the multiplicity of posts on blogging as scholarship (the easiest way to get to all of these is here), and what you get is the question of whether we're entering a paradigm shift regarding legal scholarship.
Here are some assumptions on my part:
1. It used to matter, especially pre-tenure, where one published one's work, because electronic databases like Westlaw and Lexis were expensive, and so one's work would receive more attention if it had been published in law reviews to which key players (judges, other academics, and attorneys) were likely to subscribe.
2. SSRN, Bepress, and websites generally now make it easier for researchers to find articles without having to pay for Westlaw and Lexis searches or having to maintain a lot of subscriptions for major law reviews.
3. Certain specialty law reviews get more attention from key players than do certain general law reviews. For example, I'm more likely to read something published in the Georgetown Journal of Legal Ethics than in [insert name of general law review here].
4. Law review publishing takes time. Lots of time. Articles come out long after they're written, and some articles lose traction because of the delay. Blogs, on the other hand, provide immediate gratification due to immediate (or near-immediate) publication.
5. Blogging as scholarship is still new. Some folks believe that the major players aren't, well, playing yet:
Brian Leiter, "Blogs as Scholarship" Conference at Harvard. My guess is that we'll need some more empirical work to figure out if more and more big names are blogging--and whether blogging is actually a great way to turn some great people into bigger names than they'd be w/o blogging. (Am I the only one who remembers that, for almost all law reviews, third-year law students select which articles get published and that, for many of them--and formerly many of us--their decisions may stem as much from personal preference, of the "I hate Subject X" variety, and from eyeballing the ease of editing and cite-checking as they do from an understanding of what makes an article important?)
Here's my rather long-winded point: the discussion of how best to develop and disseminate scholarship that counts (i.e., gets used) is important, but as we start shifting the paradigm away from traditional top-50 law reviews (and why that cutoff number?), we run the risk of moving to downloads as yet another number to feed into the USNWR rankings. (See Jeff Harrison's Which Tail Wags? post.) Once we use downloads--or even "top 50 reviews"--as a shadow variable for the real issue, we're in real "angels dancing on the heads of pins" territory.
The real issue: is our scholarship of use to some community, whether that community be other academics, judges, legislators, attorneys, or students? If it's not, why not?
Here are some assumptions on my part:
1. It used to matter, especially pre-tenure, where one published one's work, because electronic databases like Westlaw and Lexis were expensive, and so one's work would receive more attention if it had been published in law reviews to which key players (judges, other academics, and attorneys) were likely to subscribe.
2. SSRN, Bepress, and websites generally now make it easier for researchers to find articles without having to pay for Westlaw and Lexis searches or having to maintain a lot of subscriptions for major law reviews.
3. Certain specialty law reviews get more attention from key players than do certain general law reviews. For example, I'm more likely to read something published in the Georgetown Journal of Legal Ethics than in [insert name of general law review here].
4. Law review publishing takes time. Lots of time. Articles come out long after they're written, and some articles lose traction because of the delay. Blogs, on the other hand, provide immediate gratification due to immediate (or near-immediate) publication.
5. Blogging as scholarship is still new. Some folks believe that the major players aren't, well, playing yet:
The other main limitation of blogs as forums for serious scholarly
debate--tactfully not noted by Kate [Litvak]--is that only a miniscule number of
first-rate legal scholars in any field actually blog on scholarly topics;
indeed, if you subtract the Chicago faculty blog and Balkinization, "miniscule"
may overstate the number of leading lights in their fields who blog in their
areas of scholarly expertise (you can probably count the remainder on one
hand). I find it hard to see how blogs can have much significant scholarly
impact when the most significant scholars rarely participate in the forum, or,
at least, rarely participate for scholarly purposes.
Brian Leiter, "Blogs as Scholarship" Conference at Harvard. My guess is that we'll need some more empirical work to figure out if more and more big names are blogging--and whether blogging is actually a great way to turn some great people into bigger names than they'd be w/o blogging. (Am I the only one who remembers that, for almost all law reviews, third-year law students select which articles get published and that, for many of them--and formerly many of us--their decisions may stem as much from personal preference, of the "I hate Subject X" variety, and from eyeballing the ease of editing and cite-checking as they do from an understanding of what makes an article important?)
Here's my rather long-winded point: the discussion of how best to develop and disseminate scholarship that counts (i.e., gets used) is important, but as we start shifting the paradigm away from traditional top-50 law reviews (and why that cutoff number?), we run the risk of moving to downloads as yet another number to feed into the USNWR rankings. (See Jeff Harrison's Which Tail Wags? post.) Once we use downloads--or even "top 50 reviews"--as a shadow variable for the real issue, we're in real "angels dancing on the heads of pins" territory.
The real issue: is our scholarship of use to some community, whether that community be other academics, judges, legislators, attorneys, or students? If it's not, why not?
Chris Fairman on SSRN rankings
Chris Fairman has given me permission to post this one for him:
The recent posts here by Ted Seto and Jeff Harrison have already highlighted many of the inherent problems with ranking systems—especially those based on SSRN download data. Trying to measure law faculty quality based on SSRN download statistics alone is unwise. Trying to rank law faculties based on SSRN downloads while selectively excluding some data, however, is unjustified. Brian Leiter’s latest rankings, however, do just that. His new Most Downloaded Law Faculties 2006 excludes a single author, me. I offer a number of reasons for what’s wrong with this methodology in an new essay—you guessed it—posted on SSRN. My colleagues at Ohio State, Doug Berman and Ruth Colker, also point out the problems with this exclusion in a post at Law School Innovation, “SSRN rankings and Leiter's (rank?) omission.” Over at Feminist Law Professors, Ann Bartow too has a post “Fuck, SSRN Rankings” (do note the important comma in the title) where she also takes him to task for the exclusion. While Leiter’s Law School Rankings have done much to help us all think about the criteria that should go into any ranking system, this latest addition and its selective exclusion is a step in the wrong direction.
The recent posts here by Ted Seto and Jeff Harrison have already highlighted many of the inherent problems with ranking systems—especially those based on SSRN download data. Trying to measure law faculty quality based on SSRN download statistics alone is unwise. Trying to rank law faculties based on SSRN downloads while selectively excluding some data, however, is unjustified. Brian Leiter’s latest rankings, however, do just that. His new Most Downloaded Law Faculties 2006 excludes a single author, me. I offer a number of reasons for what’s wrong with this methodology in an new essay—you guessed it—posted on SSRN. My colleagues at Ohio State, Doug Berman and Ruth Colker, also point out the problems with this exclusion in a post at Law School Innovation, “SSRN rankings and Leiter's (rank?) omission.” Over at Feminist Law Professors, Ann Bartow too has a post “Fuck, SSRN Rankings” (do note the important comma in the title) where she also takes him to task for the exclusion. While Leiter’s Law School Rankings have done much to help us all think about the criteria that should go into any ranking system, this latest addition and its selective exclusion is a step in the wrong direction.
Ted Seto on SSRN rankings
Ted said that I could post this for him, in response to a comment I added to his first post on this subject, here:
1. I have no idea what to do about bepress. One of my tax colleagues recently reported over 1400 bepress downloads. Her bepress downloads would probably make her one of the top 20 most downloaded tax professors in the U.S. But for reasons that escape me, bepress is willing to tell her her download counts, but will not make the same information available to anyone else. Her solution has been to vow never to post in full text on bepress again. Not a great solution, but I can't really blame her.
2. I've responded by full post to the issue you raise regarding per capita computations. I would add that in the course of generating my monthly tax faculty rankings, I've explored the SSRN posting of several hundred scholars in some depth. Many of the most productive are not tenured or tenure-track. Some are emeritus, some clinical. If the numerator includes their downloads, the denominator must count them as well. The reverse is also true. My wife, not a tax geek, is a clinical contract professor here at Loyola. Although the ABA counts her as only half a faculty member because of her administrative duties, her list of publications is longer than mine. Her most recent placements were at Utah, Minnesota, and U Pa. I have a hard time taking the position that her publications should not be taken into account in ranking the scholarly accomplishments of our school. But any reasonable per capita protocol would require that her productivity be omitted.
3. The fact that some authors decline to post on SSRN is, as you note, a real problem. As rankings based on SSRN downloads have proliferated, however, there is evidence that deans are placing pressure on authors to post. In addition to enhancing SSRN ranking, posting moves legal scholarship much closer to the open source model advocated by Larry Solum. I myself find that because of SSRN, folks who do not have free access to Lexis and Westlaw read and cite my work. (I am surprised to find myself cited in papers posted on European university websites.) My guess is that in the long run, the non-posting problem will largely disappear. Indeed, my recent contract with the U Pa Law Review REQUIRED that I post the article on SSRN.
4. I agree that citation counts are valuable. Two points: (1) They are incredibly expensive to do. I recently spent 3 RA-semesters trying to develop a citation count system that would avoid some of the most obvious problems with such systems and could be routinely updated. I gave up after concluding that the project was simply too expensive. (2) Citations measure something different, and not necessarily more valuable, than downloads. I read lots of work that I will never cite. I would not characterize such work as less useful. A lot of the articles I cite in my own work are there (frankly) to satisfy student editors; many are articles I do not consider particularly good or interesting. But I only download articles if I think they are likely to be worth the time it will take to read them. I am not, of course, advocating SSRN download counts in lieu of citation counts. Citation counts have their place; I simply do not have the time to do them properly.
Hope the foregoing thoughts are helpful.
Ted
1. I have no idea what to do about bepress. One of my tax colleagues recently reported over 1400 bepress downloads. Her bepress downloads would probably make her one of the top 20 most downloaded tax professors in the U.S. But for reasons that escape me, bepress is willing to tell her her download counts, but will not make the same information available to anyone else. Her solution has been to vow never to post in full text on bepress again. Not a great solution, but I can't really blame her.
2. I've responded by full post to the issue you raise regarding per capita computations. I would add that in the course of generating my monthly tax faculty rankings, I've explored the SSRN posting of several hundred scholars in some depth. Many of the most productive are not tenured or tenure-track. Some are emeritus, some clinical. If the numerator includes their downloads, the denominator must count them as well. The reverse is also true. My wife, not a tax geek, is a clinical contract professor here at Loyola. Although the ABA counts her as only half a faculty member because of her administrative duties, her list of publications is longer than mine. Her most recent placements were at Utah, Minnesota, and U Pa. I have a hard time taking the position that her publications should not be taken into account in ranking the scholarly accomplishments of our school. But any reasonable per capita protocol would require that her productivity be omitted.
3. The fact that some authors decline to post on SSRN is, as you note, a real problem. As rankings based on SSRN downloads have proliferated, however, there is evidence that deans are placing pressure on authors to post. In addition to enhancing SSRN ranking, posting moves legal scholarship much closer to the open source model advocated by Larry Solum. I myself find that because of SSRN, folks who do not have free access to Lexis and Westlaw read and cite my work. (I am surprised to find myself cited in papers posted on European university websites.) My guess is that in the long run, the non-posting problem will largely disappear. Indeed, my recent contract with the U Pa Law Review REQUIRED that I post the article on SSRN.
4. I agree that citation counts are valuable. Two points: (1) They are incredibly expensive to do. I recently spent 3 RA-semesters trying to develop a citation count system that would avoid some of the most obvious problems with such systems and could be routinely updated. I gave up after concluding that the project was simply too expensive. (2) Citations measure something different, and not necessarily more valuable, than downloads. I read lots of work that I will never cite. I would not characterize such work as less useful. A lot of the articles I cite in my own work are there (frankly) to satisfy student editors; many are articles I do not consider particularly good or interesting. But I only download articles if I think they are likely to be worth the time it will take to read them. I am not, of course, advocating SSRN download counts in lieu of citation counts. Citation counts have their place; I simply do not have the time to do them properly.
Hope the foregoing thoughts are helpful.
Ted
Time To Make A Stand! We are putting our lives on the line!
Its your turn now!
This will not go away!
Want to make a difference?
Want a 30% raise on your yearly salary?
Do your part and say NO to the IRS because there is NO law!
Show ED The Law! @ http://www.ShowEdTheLaw.com/
Show Ed the Law and get $1,000,000+ in commercial property!
{16th Amendment and Title 26 are NOT the law!}
~Post this everywhere!
This will not go away!
Want to make a difference?
Want a 30% raise on your yearly salary?
Do your part and say NO to the IRS because there is NO law!
Show ED The Law! @ http://www.ShowEdTheLaw.com/
Show Ed the Law and get $1,000,000+ in commercial property!
{16th Amendment and Title 26 are NOT the law!}
Time To Make A Stand!
~Post this everywhere!
The Declining Importance of Law Reviews
You will be interested in Adam Liptak's article in this morning's New York Times, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant. It begins with this sobering assessment:
Here's another sample:
UPDATE: Not surprisingly, everyone is talking about this article on the net and in Tuscaloosa. Our friends over at els blog and at tax prof are talking about the New York Law Journal version of the story. At our Federalist Society talk today, several people asked me about the article. I detect satisfaction among some with the hypothesis that academics have marginalized themselves by writing on esoteric subjects.
So that set me to thinking, how might we test whether it's changes in the academy or changes in the judiciary or both that account for the decline in judicial citations to law reviews. I thought that perhaps we could use a treatise as a benchmark. If there have been changes over time in citation practices, that might tell us something. And so I ran a simple search in the westlaw allstates file, Powell /9 "Real Property", from 1980, 1990, and 2000. There's been some surprising changes over time. In 1980, there were 71 hits; in 1990, 57, and in 2000, 35. So there's been a decline in citations. (I need to know more than I do about the database, but my sense is that the number of reported decisions has been increasing over those years. I also know that the Cardozo Law Review study was concerned with federal court citations of leading law reviews--but I was looking for a quick test of my hypothesis and looking for Powell citations in the F.2d and F.3d wouldn't make a lot of sense.) Based on this admittedly tiny sample, looks like some of what's changing is that judges are looking less to academic work--even academic work that's very attentive to doctrine.
“I haven’t opened up a law review in years,” said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. “No one speaks of them. No one relies on them.”
Lots for the money-law crowd to talk about here. Of course, I continue to believe that law reviews are a good gauge of the intellectual climate of their parent law schools.The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.
“If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”
To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.
UPDATE: Not surprisingly, everyone is talking about this article on the net and in Tuscaloosa. Our friends over at els blog and at tax prof are talking about the New York Law Journal version of the story. At our Federalist Society talk today, several people asked me about the article. I detect satisfaction among some with the hypothesis that academics have marginalized themselves by writing on esoteric subjects.
So that set me to thinking, how might we test whether it's changes in the academy or changes in the judiciary or both that account for the decline in judicial citations to law reviews. I thought that perhaps we could use a treatise as a benchmark. If there have been changes over time in citation practices, that might tell us something. And so I ran a simple search in the westlaw allstates file, Powell /9 "Real Property", from 1980, 1990, and 2000. There's been some surprising changes over time. In 1980, there were 71 hits; in 1990, 57, and in 2000, 35. So there's been a decline in citations. (I need to know more than I do about the database, but my sense is that the number of reported decisions has been increasing over those years. I also know that the Cardozo Law Review study was concerned with federal court citations of leading law reviews--but I was looking for a quick test of my hypothesis and looking for Powell citations in the F.2d and F.3d wouldn't make a lot of sense.) Based on this admittedly tiny sample, looks like some of what's changing is that judges are looking less to academic work--even academic work that's very attentive to doctrine.
Common Sense By Thomas Paine
Hat Tip to www.FreeAudio.org for the Audio.
"I draw my idea of the form of government from a principle in nature...that the more simple a thing is, the less liable it is to be disordered, and the easier repaired when disordered." ~ Thomas Paine ~
Void for vagueness is a legal concept in American constitutional law.
Kent Hovind is currently a Political Prisoner
Kent Hovind CSE 103 Class 06
Hat Tip to Speek for the Video Link
MySpace censor’s viral Ed & Elaine Brown bulletin code.
It really is telling about what America has become a dictatorial power where corporate America will go so far as to censor free speech and stifle the tax honesty movement. About a week or two ago, I created an Ed and Elaine Brown bulletin in a User friendly format so that it could be easily self replicated by fellow patriots, making the reposting of said bulletin a very simple thing to do.
It was a huge hit among the MySpace community, Ed and Elaine Brown supporters from all parts of the U.S. helped to make the bulletin viral by spreading the message in support of showing Ed the law. However much to my dismay, I started to notice that the bulletin would no longer post. It was almost as if part of the code was flagged in some secret MySpace bulletin moderation database, so that when any one tried to repost the bulletin it would simply fail to appear on the board.
Just to be sure, I contacted several MySpace friends to confirm, they were not able to post the bulletin either. So one week the code works, and everything is just peachy, and the next week a dark shadow is cast upon truth seekers everywhere, and we experience a cold shudder of outright blatant censorship. I’m thinking that MySpace, does not want the revolution to be televised….? I wonder why, I wonder who is pulling their strings ? I wonder if this article has enough power of persuasion to release the block on my bulletin? Time will most certainly tell. Visit this link to see the bulletin in question.
Relevant Supreme Court Decisions
"The income tax system is a self-reporting and self-assessing one. It is based upon voluntary assessment and payment not distraint"
Flora v. United States, 362 U.S. 145 176
"Doubt relative to statutory construction should be resolved in favor of the individual, not the government"
Greyhound Corp. v. United States, 495 F2d 863
"The legal right of an individual to decrease or altogether avoid his/her taxes by means which the law permits cannot be doubted"
Gregory v. Helvering, 293 U.S. 465
"Congress cannot by any definition (of income in this case) it may adopt, conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully expressed.
"Eisner v. Macomber, 252 U.S. 189
"In construing federal revenue statute, Supreme Court gives no weight to Treasury regulation which attempts to add to statute something which is not there." United States v. Calamaro, 354 U.S. 351 (1957), 1 L. Ed. 2d 1394, 77 S. Ct. 1138 (1957)
"Treasury regulations can add nothing to income as defined by Congress"
Blatt Co. v. United States, 59 S. Ct. 472
"The extension of tax by implication is not favored"
Reinecke v. Gardner, 277 U.S. 239
"All laws, rules and practices which are repugnant to the Constitution are null and void"
Marbury v. Madison, 5th US (2 Cranch) 137, 180
"It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon"
Boyd v. United States, 116 U.S. 616, 635
"The 16th Amendment does not justify the taxation of persons or things previously immune. It was intended only to remove all occasions for any apportionment of income taxes among the states. It does not authorize a tax on a salary"
Evans V. Gore, 253 U.S. 245
"In numerous cases where the IRS has sought enforcement of its summons pursuant to statute, courts have held that a taxpayer may refuse production of personal books and records by assertion of his privilege against self-incrimination."
Hill v. Philpott, 445 F2d 144, 146
"To penalize the failure to give a statement which is self-incriminatory, is beyond the power of Congress"
United States v. Lombardo, 228 F. 980,981
"The requirement of an offence committed willfully is not met, therefore, if a taxpayer has relied in good faith upon a prior decision of this court"
United States v Bishop, 412 U.S. 346, 361
"A personal right that is not transferable or assignable is also not taxable. Damages for alienation of affections, defamation of personal character do not constitute income
"United States v. Kaiser, 80 S.Ct. 1264
"Income means gains/profit from property severed from capitol, however invested or employed. Income is not a wage or compensation fro any type of labor"
Stapler v. United States, 21 F.Supp 737 at 739
"Tax on income derived from property was the equivalent of a direct tax on the income-producing property itself and must be apportioned in accordance with provisions of Article I of the Constitution"
Home Mutual Insurance Co v. Commissioner of Internal Revenue, 639 F2d 333
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them"
Miranda v. Arizona, 384 U.S. 436, 491
"Because Federal courts are limited in jurisdiction, the presumption is that it is without jurisdiction unless the contrary affirmatively appears."
Grace v. American Central Insurance Co., 109 U.S. 278
"Courts have no power to rewrite legislative enactments to give effect to their ideas of policy and fitness or the desirability of symmetry in statutes."
Busse v. Commissioner of Internal Revenue, 479 F2d 1143
"The Fifth Amendment applies alike to criminal and civil proceedings"
McCarthy v. Arndstein, 266 U.S. 34
"If the defendant had a subjective good faith belief, no matter ow unreasonable, that he was not required to file a tax return, the government cannot establish that the defendant acted willfully"
Cheek v. United States, 498 U.S. 192
"(b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial"
Thomas v. Review Board of the Indiana..., 450 U.S. 107
"The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321 U.S. 573; cf. Grosjean v. American Press Co., 297 U.S. 233. On the other hand, [374 U.S. 398, 403] the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145; Jacobson v. Massachusetts, 197 U.S. 11; Prince v. Massachusetts, 321 U.S. 158; Cleveland v. United States, 329 U.S. 14.Sherbert v. Verner, 374 U.S. 398
"It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. 6 American [374 U.S. 398, 405] Communications Assn. v. Douds, 339 U.S. 382, 390; Wieman v. Updegraff, 344 U.S. 183,191-192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156. For example, in Flemming v. Nestor, 363 U.S. 603, 611, the Court recognized with respect to Federal Social Security benefits that "[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U.S. 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms."Sherbert v. Verner, 374 U.S. 398
"Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. Connecticut, 310 U.S. 296, 303; Reynolds v. United States, 98 U.S. 145, 166."Braunfeld v Brown, 366 U.S. 599
"For religious freedom - the freedom to believe and to practice strange and, it may be, foreign creeds - has classically been one of the highest values of our society. See, e. g., Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Jones v. City of Opelika, 319 U.S. 103 (1943); Martin v.City of Struthers, 319 U.S. 141 (1943); Follett v. Town of McCormick, 321 U.S. 573 (1944); Marsh v. Alabama, 326 U.S. 501, 510 (1946). Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while [366 U.S. 599, 613] deploring some incidental phraseology. See Kovacs v. Cooper, 336 U.S. 77, 89, 95-96 (1949) (concurring opinion); but cf. Ullmann v. United States, 350 U.S. 422 (1956). The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of the City of New Orleans, 3 How. 589, 600 (1845), and foreshadowed by a prescient footnote in United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), must now be taken to be settled"Braunfeld v Brown, 366 U.S. 599
"We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981) (citing Sherbert v. Verner, 374 U.S. 398, at 404); [476 U.S. 693, 707] but the nature of the burden is relevant to the standard the government must meet to justify the burden."Bowen v. Roy, 476 U.S. 693
"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981)
"The federal government has nothing approaching a police power"
United States v. Lopez
"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar"
United States v. Goldenberg, 168 U.S. 95
"Special provision is made in the Constitution for the cession of jurisdiction from the states over places where the federal government shall establish forts or other military works. And it is only in these places, or in territories of the United States, where it can exercise a general jurisdiction"
[New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)]
"All legislation is prima facie territorial"
[American Banana Co. v. U.S. Fruit, 213, U.S. 347 at 357-358]
"There is a canon of legislative construction which teaches Congress that, unless a contrary intent appears [legislation] is meant to apply only within territorial jurisdiction of the United States."
[U.S. v. Spelar, 338 U.S. 217 at 222]
"the United States never held any municipal sovereignty, jurisdiction, or right of soil in Alabama or any of the new states which were formed ... The United States has no Constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted ..."
[Pollard v. Hagan, 44 U.S.C. 212, 221, 223]
"... the states are separate sovereigns with respect to the federal government"
[Heath v. Alabama, 474 U.S. 82]
"No sanction can be imposed absent proof of jurisdiction"
[Stanard v. Olesen, 74 S. Ct.768]
"Once challenged, jurisdiction cannot be ‘assumed’, it must be proved to exist."
[Stuck v. Medical Examiners, 94 Ca2d 751.211 P2s 389]
"Jurisdiction, once challenged, cannot be assumed and must be decided."
[Maine v. Thiboutot, 100 S. Ct. 250]
"... Federal jurisdiction cannot be assumed, but must be clearly shown."
[Brooks v. Yawkey, 200 F. 2d 633]
"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings"
[Hagans v. Lavine, 415 U.S. 528]
"If any tribunal finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed."
[Louisville R.R. v. Motley, 211 U.S. 149, 29 S. Ct. 42]
Other cases also such as McNutt v. G.M., 56 S. Ct. 789,80 L. Ed. 1135, Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272, Basso v. U.P.L., 495 F 2d. 906, Thomson v. Gaskiel, 62 S. Ct. 673, 83 L. Ed. 111, and Albrecht v U.S., 273 U.S. 1, also all confirm, that, when challenged, jurisdiction must be documented, shown, and proven, to lawfully exist before a cause may lawfully proceed in the courts.
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously". [...Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example...] Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
[Olmstead v. United States, 277 U.S. 438 (1928)]
Hat Tip to www.tax-freedom.com for the above research.
Flora v. United States, 362 U.S. 145 176
"Doubt relative to statutory construction should be resolved in favor of the individual, not the government"
Greyhound Corp. v. United States, 495 F2d 863
"The legal right of an individual to decrease or altogether avoid his/her taxes by means which the law permits cannot be doubted"
Gregory v. Helvering, 293 U.S. 465
"Congress cannot by any definition (of income in this case) it may adopt, conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully expressed.
"Eisner v. Macomber, 252 U.S. 189
"In construing federal revenue statute, Supreme Court gives no weight to Treasury regulation which attempts to add to statute something which is not there." United States v. Calamaro, 354 U.S. 351 (1957), 1 L. Ed. 2d 1394, 77 S. Ct. 1138 (1957)
"Treasury regulations can add nothing to income as defined by Congress"
Blatt Co. v. United States, 59 S. Ct. 472
"The extension of tax by implication is not favored"
Reinecke v. Gardner, 277 U.S. 239
"All laws, rules and practices which are repugnant to the Constitution are null and void"
Marbury v. Madison, 5th US (2 Cranch) 137, 180
"It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon"
Boyd v. United States, 116 U.S. 616, 635
"The 16th Amendment does not justify the taxation of persons or things previously immune. It was intended only to remove all occasions for any apportionment of income taxes among the states. It does not authorize a tax on a salary"
Evans V. Gore, 253 U.S. 245
"In numerous cases where the IRS has sought enforcement of its summons pursuant to statute, courts have held that a taxpayer may refuse production of personal books and records by assertion of his privilege against self-incrimination."
Hill v. Philpott, 445 F2d 144, 146
"To penalize the failure to give a statement which is self-incriminatory, is beyond the power of Congress"
United States v. Lombardo, 228 F. 980,981
"The requirement of an offence committed willfully is not met, therefore, if a taxpayer has relied in good faith upon a prior decision of this court"
United States v Bishop, 412 U.S. 346, 361
"A personal right that is not transferable or assignable is also not taxable. Damages for alienation of affections, defamation of personal character do not constitute income
"United States v. Kaiser, 80 S.Ct. 1264
"Income means gains/profit from property severed from capitol, however invested or employed. Income is not a wage or compensation fro any type of labor"
Stapler v. United States, 21 F.Supp 737 at 739
"Tax on income derived from property was the equivalent of a direct tax on the income-producing property itself and must be apportioned in accordance with provisions of Article I of the Constitution"
Home Mutual Insurance Co v. Commissioner of Internal Revenue, 639 F2d 333
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them"
Miranda v. Arizona, 384 U.S. 436, 491
"Because Federal courts are limited in jurisdiction, the presumption is that it is without jurisdiction unless the contrary affirmatively appears."
Grace v. American Central Insurance Co., 109 U.S. 278
"Courts have no power to rewrite legislative enactments to give effect to their ideas of policy and fitness or the desirability of symmetry in statutes."
Busse v. Commissioner of Internal Revenue, 479 F2d 1143
"The Fifth Amendment applies alike to criminal and civil proceedings"
McCarthy v. Arndstein, 266 U.S. 34
"If the defendant had a subjective good faith belief, no matter ow unreasonable, that he was not required to file a tax return, the government cannot establish that the defendant acted willfully"
Cheek v. United States, 498 U.S. 192
"(b) A person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program. It is true that the Indiana law does not compel a violation of conscience, but where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial"
Thomas v. Review Board of the Indiana..., 450 U.S. 107
"The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U.S. 105; Follett v. McCormick, 321 U.S. 573; cf. Grosjean v. American Press Co., 297 U.S. 233. On the other hand, [374 U.S. 398, 403] the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U.S. 145; Jacobson v. Massachusetts, 197 U.S. 11; Prince v. Massachusetts, 321 U.S. 158; Cleveland v. United States, 329 U.S. 14.Sherbert v. Verner, 374 U.S. 398
"It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. 6 American [374 U.S. 398, 405] Communications Assn. v. Douds, 339 U.S. 382, 390; Wieman v. Updegraff, 344 U.S. 183,191-192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155-156. For example, in Flemming v. Nestor, 363 U.S. 603, 611, the Court recognized with respect to Federal Social Security benefits that "[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause." In Speiser v. Randall, 357 U.S. 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms."Sherbert v. Verner, 374 U.S. 398
"Certain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation. Compulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute. Cantwell v. Connecticut, 310 U.S. 296, 303; Reynolds v. United States, 98 U.S. 145, 166."Braunfeld v Brown, 366 U.S. 599
"For religious freedom - the freedom to believe and to practice strange and, it may be, foreign creeds - has classically been one of the highest values of our society. See, e. g., Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Jones v. City of Opelika, 319 U.S. 103 (1943); Martin v.City of Struthers, 319 U.S. 141 (1943); Follett v. Town of McCormick, 321 U.S. 573 (1944); Marsh v. Alabama, 326 U.S. 501, 510 (1946). Even the most concentrated and fully articulated attack on this high standard has seemingly admitted its validity in principle, while [366 U.S. 599, 613] deploring some incidental phraseology. See Kovacs v. Cooper, 336 U.S. 77, 89, 95-96 (1949) (concurring opinion); but cf. Ullmann v. United States, 350 U.S. 422 (1956). The honored place of religious freedom in our constitutional hierarchy, suggested long ago by the argument of counsel in Permoli v. Municipality No. 1 of the City of New Orleans, 3 How. 589, 600 (1845), and foreshadowed by a prescient footnote in United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938), must now be taken to be settled"Braunfeld v Brown, 366 U.S. 599
"We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons. Although the denial of government benefits over religious objection can raise serious Free Exercise problems, these two very different forms of government action are not governed by the same constitutional standard. A governmental burden on religious liberty is not insulated from review simply because it is indirect, Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981) (citing Sherbert v. Verner, 374 U.S. 398, at 404); [476 U.S. 693, 707] but the nature of the burden is relevant to the standard the government must meet to justify the burden."Bowen v. Roy, 476 U.S. 693
"Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 717-718 (1981)
"The federal government has nothing approaching a police power"
United States v. Lopez
"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of the words and the rules of grammar"
United States v. Goldenberg, 168 U.S. 95
"Special provision is made in the Constitution for the cession of jurisdiction from the states over places where the federal government shall establish forts or other military works. And it is only in these places, or in territories of the United States, where it can exercise a general jurisdiction"
[New Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836)]
"All legislation is prima facie territorial"
[American Banana Co. v. U.S. Fruit, 213, U.S. 347 at 357-358]
"There is a canon of legislative construction which teaches Congress that, unless a contrary intent appears [legislation] is meant to apply only within territorial jurisdiction of the United States."
[U.S. v. Spelar, 338 U.S. 217 at 222]
"the United States never held any municipal sovereignty, jurisdiction, or right of soil in Alabama or any of the new states which were formed ... The United States has no Constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a state or elsewhere, except in the cases in which it is expressly granted ..."
[Pollard v. Hagan, 44 U.S.C. 212, 221, 223]
"... the states are separate sovereigns with respect to the federal government"
[Heath v. Alabama, 474 U.S. 82]
"No sanction can be imposed absent proof of jurisdiction"
[Stanard v. Olesen, 74 S. Ct.768]
"Once challenged, jurisdiction cannot be ‘assumed’, it must be proved to exist."
[Stuck v. Medical Examiners, 94 Ca2d 751.211 P2s 389]
"Jurisdiction, once challenged, cannot be assumed and must be decided."
[Maine v. Thiboutot, 100 S. Ct. 250]
"... Federal jurisdiction cannot be assumed, but must be clearly shown."
[Brooks v. Yawkey, 200 F. 2d 633]
"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings"
[Hagans v. Lavine, 415 U.S. 528]
"If any tribunal finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed."
[Louisville R.R. v. Motley, 211 U.S. 149, 29 S. Ct. 42]
Other cases also such as McNutt v. G.M., 56 S. Ct. 789,80 L. Ed. 1135, Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272, Basso v. U.P.L., 495 F 2d. 906, Thomson v. Gaskiel, 62 S. Ct. 673, 83 L. Ed. 111, and Albrecht v U.S., 273 U.S. 1, also all confirm, that, when challenged, jurisdiction must be documented, shown, and proven, to lawfully exist before a cause may lawfully proceed in the courts.
"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously". [...Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example...] Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
[Olmstead v. United States, 277 U.S. 438 (1928)]
Hat Tip to www.tax-freedom.com for the above research.
More on The Commons
A week or so ago I wrote about the willingness of those who make appeals to collegiality to behave in the least collegial fashion possible by heaping externalities on their colleagues. To some extent I was attempting to distinguish "facial collegiality" -- let's have lunch, how's your family, benign sounding emails -- from "substantive collegiality." I listed several sources of likely externalities and, substantive uncollegiality.1. Refusals to teach in the summer. (If there is to be a program, others have to do it.)
2. Capping classes when not essential and, if it is, not teaching multiple sections. (X number of students need Y number of credits; someone will have to teach them.)
3. Demanding and getting reduced teaching loads. (As with number 2, more teaching for others)
4. Pre-Holiday class cancellation. (Pressure on those who do not.)
5. High grades. (Pressure on all to raise grades or suffer the wrath of the students.)
6. Demanding a specific teaching schedule. (Other fill in the remaining times and days.)
7. Demanding to teach highly specialized courses. (Others will have to teach the law courses.)
8. Gobbling up travel funds for whimsical trips. (Never fine but worse if there is limited money.)
There are others but you get the drift: Others in the law school help "pay" for these things.
One commentator wrote to ask why I was surprised. Mary Reilly wrote to tell about trying to explain the externalities of high grades at a faculty meeting and being discounted.
Their reactions and playing out the theme a bit further led to three thoughts:
1. How can people who teach so much about property rights, and identifying and reacting to externalities not understand the implications of those teachings in the context of the day to day life of a law school.? Is it another case of avoiding any analysis that creates dissonance? I see this all the time in scholarship so it makes sense that it is at work when assessing one's own behavior.
2. How far does the failure to internalize have to go before a law school begins to experience something like the “tragedy of the commons?” Here it is a bit tricky. It may not be that the “sheep” go out and find there is little to graze on. Instead the output is a bit different – students who are not as prepared for the bar exam or for practicing law as they should be and the amount and quality of scholarship declines. Plus, real as opposed to nominal collegiality falls.
3. To an economist, any cost imposed on another is an externality. On the other hand, it is only when law comes into the picture and defines rights that it has a practical meaning. This is because, in the absence of private contracts (hard to do with 30-60 people), or a solution to the prisoner’s dilemma (not solved on my faculty at least), clearly defined rights and enforcement are essential.This is, of course, where deans come into the picture. Without clearly defined – not made up on an ad hoc basis – rules that everyone understands and which are backed by sanctions, the feeding frenzy is on and the commons is doomed.
This may sound like a tall order for administrators. Maybe, but shouldn’t the overall health of the law school be their highest priority? Ironically, consistent with my usual tendency, I have painted a relative positive a picture here. Rather than “rationalizers” of the commons by which I mean bringing order to the commons, many deans facilitate its destruction by avoiding controversy, rarely saying no to an externality producer, having no predictable standards, refusing to take responsibility for what happens under their watch, and taking actions that will pit one faculty member against another.
Interesting that the "nicest" administrators and faculty members may actually be the most destructive to the commons.
In Defense of Ed and Elaine Brown
What kind of a creature is man that he may be tortured, tormented, and killed in a scheme to exploit his labor?
The question must be asked because that's what income taxes do, they terrorize, torment, and kill people in a benighted scheme to exploit human labor. The question must be asked with urgency because the feds are about to kill Ed and Elaine Brown in their effort to exploit the Brown's labor.
Consider the following analogy. In my home state of Maine, where logging is a major industry, a few people still use horses to work in the woods. When a logger uses a horse to twitch timber from the forest out to a wood yard, he's exploiting the horse's labor, there wouldn't be anything wrong with that - a horse is that kind of creature. However, if the horse displeased the logger in some way, and if the logger deliberately killed the horse while exploiting its labor - if he beat it to death with a whip - that would be a crime. In Maine it would be aggravated cruelty to animals, a felony. But if the feds kill Ed and Elaine Brown in their effort to exploit the Brown's labor, there will be no crime - none whatsoever.
How come?
If you terrorize, torment, and kill a horse while exploiting its labor, it's a crime. Why, then, is it not a crime to terrorize, torment, and kill a man while exploiting his labor?
It defies logic. A logger who killed a horse while attempting to exploit its labor would face a serious charge, but a federal agent who kills a human being while attempting to exploit human labor would face no charges at all. Not even a misdemeanor. In fact, if Ruby Ridge and Waco are indicative, he'd get a medal and a pay raise.
Imagine the details for a moment. A man is working a horse in the forest. For some reason he gets upset with the animal. He then begins to savagely beat the horse with a whip, maiming it. Still enraged, the logger shoots and kills the terrorized beast.
That's considered a crime in every state in the union. And it should be. None of God's living, breathing, feeling creatures should be treated like that so someone may benefit from their sweat and toil. Well, Ed and Elaine Brown are two of God's living, breathing, felling creatures. Yet, federal agents in their scheme to exploit their sweat and toil have plagued the Browns for months. They have tormented them with a sham trial and with the prospect that they will lose their freedom forever. Ed and Elaine Brown face the haunting reality that, like Irwin Schiff, they will receive what's tantamount to a life sentence and die in prison. Tell me that prospect isn't terror and its infliction won't be torment.
And the brutality began months before the Brown's courtroom tribulations. On December 2, 2004 some 30 armed federal agents, including a four-member sniper team, backed up by the local and state police, stormed into Ed and Elaine Brown's home, thus perpetrating a daunting act of terror. Now, the most savage aspect of the whole ordeal is so imminent, that before these words reach the public, the Browns could be dead - and not to collect a legitimate levy; but to impose upon free men a modern form of servitude that armed overseers call a tax.
Neither do I casually call federal tax collectors overseers. Tax collector collect taxes, overseers violently and lethally exploit the labor of individuals. Let me repeat: Tax collectors collect taxes, overseers violently and lethally exploit the labor of individuals.
To directly tax our labor is to directly exploit our labor. Thus, the most insincere argument regarding IRS agents is that they don't violently and lethally exploit our labor; they undeniably do. By this definition they are overseers. And by this definition the armed agents who raided the Brown's home in December 2004, those who now dragoon the couple, threatening their lives, are overseers.
Please don't miss the point: With implements of coercion - such as whips, chains, prison keys, guns, and the like, backed up by the power to kill - overseers coerce the solitary laborer, watching his every productive move from sunrise to sunset without end. Thus, when collecting a so-called tax on our labor, agents from the federal government who coercively watch our every productive move from sunrise to sunset - backed by the power to kill - are once again defined as overseers. To call them tax collectors imperils the nation.
By whatever name they are called, overseers are like a dead canary in a mine, and freedom-loving people must grasp their significance before it's too late. Overseers represent an economic system in which human suffering and human death are casually accepted byproducts of exploiting human labor. Those who toil cannot be fully human; they cannot be truly free. It's impossible. Historically, people have known this.
It's incredible. I'm talking about brutal central governments that accepts human suffering and human death as part of a nationwide scheme to exploit the toiling masses, and I'm talking about the United States of America; not Communist Cuba or Red China, but America. That's inconceivable, but yet it's true.
Neither do I casually call what's happening to Ed and Elaine Brown servitude. After all, no worker can be free if he toils in the presence of overseers; especially legions of them. And why doesn't being killed for your labor make you a slave? What horror other than death - even in the form of a threat - must exist for servitude to exist? Does your master really need the power to buy and sell you? Or does he merely need the right to kill you for your labor, even though that right lies at the end of a long, tortuous process of Kangaroo law and is seldom used?
Historically, a worker who was free from death or crushing punishment only if he prostituted his labor to a violent oppressor was a slave. Due to income taxes, American workers are free from death and crushing punishment only if we prostitute our labor to one of the most violent oppressors in American history, the IRS. Why, then, are we not slaves?
Certainly, we are not chattel slaves - we are wage slaves.
Neither do I casually use the term wage slavery. It's not merely a cute phrase that allows frustrated people to blow off steam. Look at what's happening to Ed Brown and his wife Elaine and you will see the brutal force and deadly might of wage slavery. It's an extremely real and exceptionally potent form of human bondage. It will destroy a worker economically. It will take his liberty. It will take his life. That's real servitude, and it's as cute as an unseen cancer.
But whatever word you use to describe the condition under which we suffer all of our productive lives, from sunrise to sunset without end, the word freedom won't do. In fact, the question should be so much, "Is this slavery?" Even though it is. The question should be, "Is this freedom?" It should be, "Is this the proper role of government?"
So, then, is what we have freedom?
Any worker who's managed with a chain is a slave. I repeat: Any worker who's managed with a chain is a slave. And if you want to see our chains, go to a federal prison. Or better yet, do the patriotic thing. Refuse to be a slave - refuse to pay your taxes. When you do, after a long, torturous process of Kangaroo law, the chains by which you are managed will be placed around your wrists and ankles. You will then be dragged off to a prison and become a worker managed by men with guns - just like Irwin Schiff and countless others.
How can that be freedom? Why isn't that servitude? Why doesn't being a worker who's placed in chains, imprisoned and managed by men with guns make you a slave? What other torment must exist for slavery to exist?
Just because your condition isn't exactly like slaves in the Old South - just because the state doesn't have the right to buy or sell you, doesn't mean you have all the rights to which you're naturally entitled by you Creator. It doesn't mean that being our overseer, as defined earlier, is the proper role of government.
One difference between chattel slavery and the servitude we suffer is that our masters in Washington, D.C. can't sell us down the river, as sometimes happened in the Antebellum South. No, they can't sell us down the river - but they can send us up the river, like they want to do to Ed and Elaine Brown, as they've done to Irwin Schiff and countless others. They can send us up the river to federal prisons, like the ones at Leavenworth, Kansas; Marion, Illinois; and Florence, Colorado.
At Florence, Colorado, one segregation unit has soundproof cells in which prisoners are confined for twenty-three hours a day, seven days a week, year after year after year, from sunrise to sunset without end. It's hell on earth.
Tell me, if in a scheme to exploit your labor you're suffering Hell on earth in solitary confinement, why are you not a slave? If you're a worker - not a murderer, a rapist, or a terrorist, but a worker - who's confined twenty-three house a day in a soundproof cell, year after year after year, what other kind of agonizing torment must exist for slavery to exist? Must you really feel your master's lash upon your back?
Or you you're a worker who can be sent up the river to a more conventional prison - to exploit your labor in particular and the labor of millions of others in general - why doesn't that produce servitude?
In the Old South, people sent down the river - to exploit their labor in particular and the labor of millions of others in general - were separated from their spouses and children; that was part of the punishment, part of the threat - if you did not prostitute your labor to a violent oppressor, the violent oppressor would tear apart your family.
Today, people sent up the river - to exploit their labor in particular and the labor of millions of others in general - are separated from their spouses and children; that's part of the threat, part of the punishment - if you don't prostitute your labor to the IRS, the IRS will tear apart your family. As they tried to do to Ed Brown, whose wife was ordered by her overseer - disguised as a federal judge - to have no physical contact with her husband. After a few weeks of being apart, Elaine Brown bravely returned to her husband's side and put her family back together, which the feds now promise to destroy through lethal violence.
Tell me, if in a scheme to exploit your labor, someone can tear apart your family, why isn't that servitude, regardless of the scheme? More to the point, how can that be freedom? How can a person threatened in such a way be said to enjoy all the rights to which he is naturally entitled? How can destroying families be the proper role of government?
I've made a distinction between tax collectors and overseers. Allow me to carry that a little further. Let me distinguish between a place of punishment and detention set aside for murderers and a place for punishment and detention set aside to aid the state in its exploitation of the toiling masses - one terrorized worker at a time.
A place of punishment and detention set aside for murderers is a prison. A place of punishment and detention set aside for workers is a gulag.
If anyone thinks the term "gulag" is too strong, fine. But the linguistic problem remains. On one hand, you have a place for punishment and detention that has been set aside to deal with murderers. On the other hand, you have a place for punishment and detention that has been set aside to control workers. There's a tremendous difference in that, and, like a dead canary in a mine, it shouldn't be ignored. It should be acknowledged. It should be verbalized. To call a gulag a prison imperils the nation.
Consequently, a murderer who's confined in a soundproof cell for twenty-three hours a day is in a prison. But a worker who's confined in a soundproof cell for twenty-three hours a day is in a gulag. And what American worthy of the name will declare that building and maintaining places of punishment and detention to control the toiling masses - one terrified worker at a time - is the proper role of government? It isn't. It's not the freedom to which we are naturally entitled by our Creator. How can a worker be free if he toils in the shadow of a gulag?
Let me again compare the exploitation of animal and human labor.
I believe most Americans will agree that our nation must not be a place where the vicious death of an animal is an acceptable part of exploiting animal labor, the violation of that precept being a crime. Why, then, can't we agree that our nation must be a place where the vicious death of a person is an acceptable part of exploiting human labor? Why can't we agree that violating that precept is a crime? Am I missing some complex philosophical construct that prohibits lethal brutality from being used against nonhuman sources of labor but allows it against human sources of labor? What kind of creature does that make man?
Let us also examine our reaction to these two different fatal scenarios, the former being hypothetical while the plight of Ed and Elaine Brown is all too real.
If animal lovers received news of a logger who abused a work horse as I've described, there would be a national outcry. The news media would be in a frenzy. Animal rights activists would scream that justice could not exist until the brutal logger was arrested, tried, convicted, and punished. And if that cold-hearted woodman threatened another horse, then from across the nation untold numbers of people would arise, throngs would begin to converge on the scene of impending slaughter, vowing to defend that animal to the death.
Tell me America, if you would do that for an animal, why not do as much for a human being? Why not arise en mass and converge on Plainfield, New Hampshire, vowing to defend Ed and Elaine Brown to the death? If horses were being brutalized and killed in Plainfield, New Hampshire to exploit their labor, and no one spoke up or no one came, it would speak volumes about the nation's soul. Well, Ed and Elaine Brown are being brutalized - and one day they will be killed in the federal government's scheme to exploit their labor - and you have not said a word, you have not come. Where is your soul?
Neither do I casually say the following - Ed and Elaine Brown will not be the last patriots to take the stand they have taken, which is - Live Free or Die. Others will step forward because the federal courts are utterly corrupt. Look at what happened to Irwin Schiff. Mr. Schiff committed no crime - for which he received a mock trial and a life sentence. And if in a scheme to exploit your labor, you lose your freedom for the rest of your life, as Mr. Schiff did, why are you not a slave? What other kind of excruciating pain must you suffer before servitude exists?
Others will be forced to take the stand the Browns have been forced to take because the federal government's murder of Gordon Kahl, their badgering Alex Council to suicide, the fate of Irwin Schiff, the on-going siege in New Hampshire have taught patriots a painful lesson - federal judges ignore both the Constitution and the law, there will stubbornly defy reason; pushed into a corner by the right, there will nonetheless defend to the bitter end their peculiar institution of violently and lethally exploiting our labor, which they piously call a tax. Thus, there is no recourse in the courts.
Adding to our dilemma is the fact that the national press is filled with whores, liars, lost souls, and a few shipwrecked seekers of truth - some like Robinson Crusoe, some like Gillian. But as a group, they keep the masses snoring in a drooling servitude.
Thus, there is no refuge except God and the gun for a man who would not live as a slave - which is what we do when we refuse to be workers managed by chains and men with guns; which is what we do when we refuse to toil in the presence of overseers and gulags.
Ultimately, there is no hope for any of us unless we go to Plainfield, New Hampshire and defend Ed and Elaine Brown. The Brown's fate is our fate. As the Browns go, so goes our freedom. You need not stay for the duration, but for a month, a week, or a day. It will speak volumes about your soul. It will send a message to the elected aristocracy in Washington, D.C. a message; that the people are armed and possess the spirit of resistance.
And if you cannot stand with the Browns, why not stand up where you are? Why not raise your voice in protest? Why not tell our de facto masters that any free man or free woman who is killed in a scheme to exploit human labor has been murdered; those who do the killing are murderers; that justice will not exist until all such murderers are arrested, tried, convicted, and punished for their crimes - including execution, where warranted.
Why not stand up before the Founding Mothers and the Founding Fathers - and when asked the question: What kind of creature is a man that he may be terrorized, tormented, and killed in a scheme to exploit his labor, why not get in the overseer's face and with clenched teeth say - Man is not that kind of creature - no more so that a horse.
Glenn David.
The Law by Frederic Bastiat
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Theft By Deception - Deciphering The Federal Income Tax
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