The House voted overwhelmingly today to repeal the 1913 law. Now that both the Senate and the House have passed the bill, the bill will go to Governor Patrick, who is expected to sign it. As a result of the repeal of the old statute, gay and lesbian couples residing in other states will now be permitted to marry in Massachusetts even if their home states would not permit them to marry in their home states. See the Blue Mass Group Blog for more. My previous post on this story is here.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
YouTube Divorce - A Failed Strategy
To follow up on the YouTube Divorce of Tricia Walsh-Smith, which I discussed here this past April (after which Tricia continued her tirades and crazy antics on YouTube, all of which I ignored), it appears that Tricia's adventurous approach to fighting her contested divorce has not helped her one bit.
Back in April, I thought Tricia had the craziness out of her system, as she appeared to have gotten smart after her first YouTube video by hiring a good lawyer who would prevent her from using YouTube again. But I was wrong. She apparently either ignored good advice from her lawyers (most likely) or she didn't get any. Thus she persisted in smearing her husband in further YouTube videos.
Now the judge has found that Tricia conducted a "calculated and callous campaign to embarrass and humiliate her husband and his daughters." The judge both ordered her to leave the New York apartment from which she complained on the first video that her husband had tried to evict her, and also refused to void her prenuptial agreement as she had sought. See Family Lore: Walsh-Smith: "Calculated and callous" .
If you really feel like airing dirty laundry in public, you should consult a good lawyer first. But then you should follow that good lawyer's advice, even though the advice will almost always be: No, don't do it. Keep it private.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Back in April, I thought Tricia had the craziness out of her system, as she appeared to have gotten smart after her first YouTube video by hiring a good lawyer who would prevent her from using YouTube again. But I was wrong. She apparently either ignored good advice from her lawyers (most likely) or she didn't get any. Thus she persisted in smearing her husband in further YouTube videos.
Now the judge has found that Tricia conducted a "calculated and callous campaign to embarrass and humiliate her husband and his daughters." The judge both ordered her to leave the New York apartment from which she complained on the first video that her husband had tried to evict her, and also refused to void her prenuptial agreement as she had sought. See Family Lore: Walsh-Smith: "Calculated and callous" .
If you really feel like airing dirty laundry in public, you should consult a good lawyer first. But then you should follow that good lawyer's advice, even though the advice will almost always be: No, don't do it. Keep it private.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Massachusetts Legislature Moves Toward Equality for Gay and Lesbian Couples
Despite the fact that the Massachusetts Senate recently passed Senate Bill 800, which would repeal the 1913 law that prohibits non-resident gay and lesbian couples from marrying in Massachusetts unless their home state also would recognize their marriage, the House has yet to take up and pass the bill, and has until July 31 before its current session ends. See the New England Blade's most recent article from Thursday: House Ends Week Still Silent on 1913 Law; Bill Sent for Third Reading; Session Ends Next Week, and for more background the earlier article of Wednesday, July 23 (quoted below). Pressure from the advocates for marriage equality may overcome some political resistance in the House. Hopefully the advocates will prevail, and then the measure will go to the desk of Governor Patrick, who is expected to sign it into law.
In other, more decidedly positive news, also from the New England Blade: "The Massachusetts State Senate on Wednesday, July 23, by voice vote, passed the MassHealth Equality Bill H.B. 4107, which would grant married same-sex couples in Massachusetts the same access to Medicaid benefits as heterosexual couples. Currently, federal Defense of Marriage Act regulations prohibit same-sex couples legally married in Massachusetts from being treated as each other’s spouses for the purposes of federal benefits programs, including Medicaid, which is uniquely funded by both state and federal dollars. The bill passed in the House last week. Once the House and Senate agree on slight differences in language, the bill will go to Gov. Deval Patrick’s desk, who is expected to sign it into law...."
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
In other, more decidedly positive news, also from the New England Blade: "The Massachusetts State Senate on Wednesday, July 23, by voice vote, passed the MassHealth Equality Bill H.B. 4107, which would grant married same-sex couples in Massachusetts the same access to Medicaid benefits as heterosexual couples. Currently, federal Defense of Marriage Act regulations prohibit same-sex couples legally married in Massachusetts from being treated as each other’s spouses for the purposes of federal benefits programs, including Medicaid, which is uniquely funded by both state and federal dollars. The bill passed in the House last week. Once the House and Senate agree on slight differences in language, the bill will go to Gov. Deval Patrick’s desk, who is expected to sign it into law...."
EXCERPT FROM NEW ENGLAND BLADE ARTICLE, JULY 23:
The House of Representatives, by the New England Blade print deadline, had not taken up Senate Bill 800, which, if passed, would repeal the 1913 law thatprohibits non-resident same-sex couples from getting married in Massachusetts unless their home state would recognize their marriage.
But despite the looming end of the current legislative session — July 31 — House Speaker Sal DiMasi remains committed to bringing the issue before the full House soon, said his spokesperson, David Guarino.
“It is something we hope to bring up in the next few days,” David Guarino, spokesperson for DiMasi, said on Tuesday. “Speaker DiMasi is a strong supporter of it and hopeful to get this done this session.”
Guarino did not return a call made to him on Wednesday.
MassEquality said on Wednesday that“it’s still very likely that it will come up before the end of the session,” and asked its membership to contact their respective legislators. The Massachusetts Gay and Lesbian Caucus has also urged its membership to contact their legislators.
“The Senate acted quickly and decisively but the House may be a more difficult battle,” says the Caucus in an e-mail to its membership on Tuesday. “Our opponents have generated thousands of calls and e-mails to Representatives to stop our Repeal lobbying, and they’re having an impact. Now is the time to act. We need you to e-mail your state Representative and urge her/him to support the repeal.”
The State House News reported on Monday that some House members are concerned about taking up the repeal of the 1913 law during an election year, which has left doors open, says MassResistance, for opponents of the bill to talk with representatives.
“Last Thursday we sent people to personally visit every House office at the State House. They sat down with staff members and made them read our handouts explaining the facts about this issue,” said MassResistance in its blog(http://www.massresistance.org/). “They got both good and bad responses. Some were very supportive, some quite hostile. But we got the message across.”
....
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Double Standards and Gender Inequality
I want to point out a few more articles on gender equality (or inequality) I have read while on vacation this past week. I'm always interested in debates between those looking for fairness for women and those who seek fairness for men. If I can't find common ground, I at least hope to get a little closer to the Truth by paying close attention to the gender dialectic.
First, I recently read the following article by Jed Hresko, Deputy Director of Fathers & Families, UK Equality Commission Chief: Maternity Leave Hurts Women in the Workplace, from the Fathers & Families Blog. It discusses the inequality of granting maternity leave, but not paternity leave, and the negative policy impacts, on women and men, of such policies of gender inequality. The article discusses current circumstances in the UK, but also alludes to the recent Massachusetts Commission Against Discrimination pronouncement that our own Maternity Leave Act would be held to apply to men, despite the discriminatory text that remains in the written law. (I have already discussed this MCAD news here.) Hresko's article is insightful, and in my view, its message is spot on.
Also I came upon the following book review in the New York Times: Endangered Species or Still the Enemy? by Liesl Schillinger, in the July 13, 2008 New York Times. The article discusses both Save the Males: Why Men Matter, Why Women Should Care, by Kathleen Parker, and He's a Stud, She's a Slut And 49 Other Double Standards Every Woman Should Know, by Jessica Valenti.
I have read earlier writings by both of these very different social commentators, and have found much of great value in each. I will definitely be looking for these books the next time I find myself in a bookstore.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
First, I recently read the following article by Jed Hresko, Deputy Director of Fathers & Families, UK Equality Commission Chief: Maternity Leave Hurts Women in the Workplace, from the Fathers & Families Blog. It discusses the inequality of granting maternity leave, but not paternity leave, and the negative policy impacts, on women and men, of such policies of gender inequality. The article discusses current circumstances in the UK, but also alludes to the recent Massachusetts Commission Against Discrimination pronouncement that our own Maternity Leave Act would be held to apply to men, despite the discriminatory text that remains in the written law. (I have already discussed this MCAD news here.) Hresko's article is insightful, and in my view, its message is spot on.
Also I came upon the following book review in the New York Times: Endangered Species or Still the Enemy? by Liesl Schillinger, in the July 13, 2008 New York Times. The article discusses both Save the Males: Why Men Matter, Why Women Should Care, by Kathleen Parker, and He's a Stud, She's a Slut And 49 Other Double Standards Every Woman Should Know, by Jessica Valenti.
I have read earlier writings by both of these very different social commentators, and have found much of great value in each. I will definitely be looking for these books the next time I find myself in a bookstore.
EXCERPT FROM NEW YORK TIMES BOOK REVIEW BY LIESL SCHILLINGER:
AT last: Dan Quayle has a defender. In “Save the Males,” a scorching jeremiad against the forces that have demoralized the American male over the last 20 years, the conservative columnist Kathleen Parker writes that Dan Quayle “was right” to blame the TV show “Murphy Brown” for injuring family values. In 1992, when the show’s title character (played by Candice Bergen) decided to have a baby on her own, Ms. Parker writes, she “attractively delivered the message that men are not essential for family.”
The result of our society’s absorption of this message? “A new generation of child-men, perpetual adolescents who see no point in growing up.” Judd Apatow... got any quibble with that?
Sharp, silver-tongued and greatly exercised, Ms. Parker identifies many other agents of male distress as well — from “pole-dancing moms and prostitots decked in baby hookerware” to films and music that portray men as “dolts, bullies, brutes, deadbeats, rapists, sexual predators, and wife beaters.”
Ms. Parker was raised by her father and by four stepmothers (her mother died when she was little). Today, she is the mother (and stepmother) of sons only.
As a result of her “total immersion in maledom,” she understandably feels great sympathy for the troubles that boys and men have in building a secure, reputable identity in go-girl America. She makes the charge that our society discounts the importance of men as fathers and husbands, and does too little to make men feel self-assured in schools, in the workplace, the family and even the military.
Judging by a plethora of recent magazine articles, books and even presidential campaign speeches, this may be true. But if it is, who’s to blame? While the author doesn’t let Hollywood and the intelligentsia off scot-free, the chief offenders in her mind are the people in push-up bras ... liberated women.
As she sees it, an entire generation of men have lost their moral compass because women decided to flash skin instead of flashing behavioral cue cards that say: Respect. Protect. Marry. Provide.
If empowered women choose to look out for themselves, she asks, what are men to do? She raises the specter of “fake wombs,” which would allow men “weary of being used as sperm donors and human A.T.M.’s” to at last “enjoy a level playing field.”
“Save the Males” is one of two new books, each of them arresting, entertaining and serious in its own way, that inspect the battlefield of the sexes in America, and come to opposing conclusions about the nature of the conflict. The disparity would almost be funny if the outcome didn’t matter so much.
THE other book, “He’s a Stud, She’s a Slut,” was written by Jessica Valenti, a gutsy young third-wave feminist. (As Ms. Parker vividly puts it, first-wave feminists “got women the vote,” the second wave “got them employed and divorced,” and the third wave “is busy making them porn stars.”)
Ms. Valenti is the founder of the blog Feministing.com, and published a book called “Full Frontal Feminism.” Her new book tracks 50 double standards that punish female assertiveness (for instance, “He’s Angry, She’s PMSing,” “He’s Dating a Younger Woman, She’s a Cougar,” “He’s Childless, She’s Selfish.”)Eerily, both Ms. Parker and Ms. Valenti single out some of the same signs of change for comment. Both are freaked out by Bratz dolls. To Ms. Valenti, they show that, when toymakers “aren’t telling little girls that they should grow up to be happy homemakers, they’re telling them to be sexual.” To Ms. Parker, the dolls prove that little girls are “in training to drive boys wild,” inculcating sluttish dress habits that booby trap the workplace when they grow up to wear “provocative clothes that get men’s mind off their business.”
....
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Obama: Can We Have a Choice, Not an Echo?
I have come out in favor of Obama, and have contributed to his campaign, just as I did to John Kerry's four years ago. But I have, like others, been very unhappy with Obama's flip on FISA, and his other moves to the "center." I always really hate this point of presidential campaigns when we seem to get an echo, rather than a choice, with the Democrats running to the middle and trying to look tough and presidential on war ("defense") issues, and the Republicans trying to act "compassionate" in their "conservatism."
Well it didn't really work for Dukakis when he appeared in an army tank. It didn't work for Gore when he chose as his running mate the warloving, empire-building de facto Republican Joe Lieberman. It didn't work for Kerry when he tried to convince us that not only was he a windsurfer, but also a hunter who loved guns. I wonder if Obama's new gunloving gestures will work. Of course, it is the Iraq and Afghanistan (and possibly Iran) wars and related issues that worry me most about our prospective new commander in chief.
Will we have the Republicrats and the Demopublicans again, as Ralph Nader has justifiably complained in elections past? I keep hoping that this time will be a real break, a real change, a choice not an echo.
Obama, please prove me wrong. I'll support you to the end. I supported Kerry through his flip-flops and his pandering to the "middle" and I will support you as well. But let's please have a choice, not an echo. The echos of Kerry and Gore to the "compassionate conservatism" of Bush led to close elections - close elections that, whether actually won by Bush, put Bush in the White House where he proved to be neither compassionate nor conservative.
We need to win by a convincing margin, by offering up a real alternative to more of the same bullshit. End the war now in Iraq, bring home the troops, and start no further wars for the neocons or oil industry lobbyists. Maybe after we change our foreign policy, we will then be able to make some progressive changes in spending and taxing priorities, after decades of irrational policies that have shifted more and more wealth from the poor and middle class to the rich. I'm doubtful we will be so lucky to get to that point any time soon. But here's hoping.
Well it didn't really work for Dukakis when he appeared in an army tank. It didn't work for Gore when he chose as his running mate the warloving, empire-building de facto Republican Joe Lieberman. It didn't work for Kerry when he tried to convince us that not only was he a windsurfer, but also a hunter who loved guns. I wonder if Obama's new gunloving gestures will work. Of course, it is the Iraq and Afghanistan (and possibly Iran) wars and related issues that worry me most about our prospective new commander in chief.
Will we have the Republicrats and the Demopublicans again, as Ralph Nader has justifiably complained in elections past? I keep hoping that this time will be a real break, a real change, a choice not an echo.
Obama, please prove me wrong. I'll support you to the end. I supported Kerry through his flip-flops and his pandering to the "middle" and I will support you as well. But let's please have a choice, not an echo. The echos of Kerry and Gore to the "compassionate conservatism" of Bush led to close elections - close elections that, whether actually won by Bush, put Bush in the White House where he proved to be neither compassionate nor conservative.
We need to win by a convincing margin, by offering up a real alternative to more of the same bullshit. End the war now in Iraq, bring home the troops, and start no further wars for the neocons or oil industry lobbyists. Maybe after we change our foreign policy, we will then be able to make some progressive changes in spending and taxing priorities, after decades of irrational policies that have shifted more and more wealth from the poor and middle class to the rich. I'm doubtful we will be so lucky to get to that point any time soon. But here's hoping.
Federal Minimum Wage Increase
The federal minimum wage increases from $5.85 to $6.55 per hour, effective today, July 24, 2008. The minimum wage will increase to $7.25 next year.
Note that the California minimum wage applicable to California employers and employees is already higher than the current or future federal increases.
Note that the California minimum wage applicable to California employers and employees is already higher than the current or future federal increases.
Wood
Ever since Jim Chen started on the dead wood idea I cannot get it out of my mind. (You may interpret that sentence however you like.) As I understood the term when I started teaching it referred to people who did not write whether or not they had ever written. That definition is pretty narrow. All wood that is not growing is dead wood or at least I think that is the case. Dead wood, in fact, holds up houses and builds new ones. But even assuming the term makes some sense at least dead wood is far from the worst wood form.Take faculty who talk big, are hugely self promotional and write and say nothing of consequence. I think composite "wood" might be the term here. So you might say in reference to your faculty, "We've got some composite over there." What is that? Something that is not what it appears to be and inside it's a bit crumbly. To me the composites are worse than dead wood. On second thought maybe the composites are actually balsa.
And then there is dry rot. That must be worse than dead wood. I think the term applies not to non writers -- after all they can be good citizens and tireless teachers. No, the dry rot label goes to those who do very little in any category but still affect what an institution does. Maybe they just volunteer to arrange foreign programs in adult Disney World -- Western Europe. They are worse than dead wood because they can undermine the structure and suck other things under with them. Thankfully, I think dry rot is relatively rare.
And then my favorite faculty members to whom Jim alluded recently. Yes the Making Nice, Knowing Better, Doing Nothing crowd. These are the ultimate free riders and followers of the Not-Really-New-York-Times rule. They know better and could shape an institution for the better but they are found, figuratively speaking, quaking under their desks for fear of saying anything controversial. When a Dean or a University President enters a room that portion of the brain that forms the words "I disagree" suddenly nods off. To call these folks spineless is an insult to invertebrates everywhere. Would root rot fit here? Poison Ivy? Snake wood? Maybe it is necessary to move to another phylum. I am thinking Echinodermata which includes the mighty sea cucumber, but I would like to stick to the wood metaphor. So why not pulp, as in wood pulp, and anyone who has lived near or passed by a wood pulp plant will understand why.
Hockey goons and law school Arschlöcher: A multimedia hat trick for MoneyLaw
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In blogging, if not in legal scholarship, one sometimes gets the feeling that one has scored a hat trick. So it is with Plus/minus and the problem of measuring Arschlochkeit. To celebrate the success of my post suggesting the use of hockey's plus/minus statistic as a basis for measuring goon-like behavior in law teaching, and to thank my readers for some very useful comments, I'm posting the following hat trick of YouTube videos:
1. Faithful MoneyLaw reader Ani Onomous has all but dared me to post Warren Zevon's Hit Somebody. I'll gladly sink to the challenge:
2. My dear friend, Guy Charles, evidently feeling free to read and comment on blogs now that he has finished his stint as an interim dean, suggests that I have mistakenly equated "deadwood" status with Arschlochkeit. Guy, as they say on the patinoires where Québecois players came to dominate hockey, tu as tort. Ever since I introduced the term Arschloch and all of its derivatives to MoneyLaw, I have taken pains to identify Arschlochkeit as a function of selfish, rude, destructive behavior, and not a function of mere scholarly failure.
I do agree with Guy Charles, and very much so, that "the fundamental problem is having someone on your team or faculty who will intentionally harm his/her colleagues to benefit themselves." And I suspect that Guy speaks from personal knowledge when he correctly observes that "[t]he only way to deal with the Arschloch is to leave the institution." In his honor, I'm posting this video of the notorious hockey goon, Tie Domi, fighting his own teammate in Helsinki:
3. This of course is MoneyLaw, and we should try at least occasionally to quantify our instincts. I've discovered, quite happily, that at least one website, HockeyGoon.Com, has defined "goon" status according to this formula:
PIM — 10G — 5A
Games
Games
where PIM = penalty minutes, G = goals, and A = assists. The idea is to count penalty minutes per game, discounted by behavior (scoring and helping teammates score) that actually contributes to the team's offensive well-being. Remarkably, seventeen players with at least 1500 penalty minutes exceed 2.00 on the goon scale, which is to say that they served, on average, at least one whole minor penalty per game, even after accounting for opponents' successful power plays and sharply discounting for any goals or assists these goons actually managed to register. Tie Domi, for what it's worth, is third all-time with 3406 NHL penalty minutes, but ranks a relatively modest 21st in the goon squad because he has accumulated enough goals and assists to reduce his goon statistic to 1.73. In terms of the plus/minus statistic that started this entire discussion, Domi has a career total of -54.
Learning of this formula has brought me so much pleasure that I feel compelled to display a hockey fight so popular that it has won nearly 10 million YouTube views. Surely this is ice hockey's video equivalent of Chris Fairman's SSRN download, Fuck.
So let's get started on building a formula for Arschlochkeit, the academic equivalent of hockey goonery directed at one's own teammates. In the interest of avoiding further damage to Tie Domi's reputation — Mr. Domi, after all, plays hockey in lieu of teaching law — I propose giving our model Arschloch an easily remembered name. How about Lars Rogersson? The real Lars Rogersson is an erstwhile European soccer player who happens to have exactly the sort of name you'd imagine of a hockey goon from Stockholm or Malmö.
Of our model goon, Lars Rogersson, we need to ask three questions:
- What traits make Professor Rogersson such an Arschloch?
- Can we quantify the essential, indispensable components of Professor Rogersson's Arschlochkeit?
- Can we weave those quantifiable components into an easily calculated, meaningful metric that separates Arschlöcher like Lars Rogersson from decent, well-intentioned, and valuable team players in the legal academy?
Plus/minus and the problem of measuring Arschlochkeit
I misspoke when I asserted recently that MoneyLaw strongly prefers baseball and football to hockey. It turns out that hockey maintains a statistic that may hold the key to an ongoing exchange between this forum and Concurring Opinions over the impact of tenure on the intellectual and social behavior of professors.
After Dave Hoffman's initial post asserting the absence of a "deadwood" effect, my response and Dave's rejoinder appear to have swung the focus (at least for now) from the impact of tenure on productivity to the problem of patrolling against Arschlochkeit. In commentary on my post, Ani Onomous rightly observes that personnel decisions based on perceived Arschlochkeit have the potential to negate MoneyLaw principles. It therefore behooves this project — or "movement," as Dave so generously calls us — to find some sort of empirical way of measuring Arschlochkeit.
As it happens, organized hockey has been recording a statistic called the plus/minus. Plus/minus is quite simple: it measures the team goal differential when a specific player is on the ice. According to LCS Hockey's thoughtful analysis of plus/minus, this metric awards "a plus . . . to all skaters on the ice when their team scores at even-strength or short-handed" and assesses "[a] minus . . . to all skaters on the ice when their team yields an even-strength or short-handed goal." (Those familiar with hockey will notice that power-play goals in favor of the team with superior manpower do not advance plus/minus.) The upshot is that if your team scores while you are skating, you gain plus/minus points. If the other team scores on you, your plus/minus regresses.The problem is that plus/minus is a team-dependent statistic and requires further analysis before it sheds light on individual talent (or its absence). As LCS Hockey observes: "One player can only do so much. He could be the best defensive player in the history of the game, but if he's out there with four stiffs and a sieve, chances are he's going to finish on the minus side of the ledger." Hockey's challenge reminds me of the problem that Paul Edelman and I faced over the course of our Most Dangerous Justice series of articles (parts 1, 2, 3), which attempted to discern voting power on the Supreme Court on the basis of each Justice's participation in winning coalitions.
Again, from LCS Hockey:
Lousy teams are going to have lousy plus-minus ratings. The expansion 1974-75 Washington Capitals, perhaps the worst team in NHL history, owned nine of the 13 worst plus-minuses that season, including Bill Mikkelson's -82, which still stands as the record for futility. In fact, not one Capital player that season finished as a plus, a natural result of being outscored 446 to 181.But filtering plus/minus figures by overall team performance does shed light on individual players' value. For example, a player who is +15 on a powerful offensive team may well be less valuable than a player who posts a valiant +10 on a poor defensive team. A player who posts a negative plus/minus figure for a Stanley Cup-winning squad is an affirmative liability.
Plus/minus is robust enough to capture value from different positions in hockey. Both Bobby Orr (lifetime +597, pictured above in one of his most triumphant moments) and Wayne "The Great One" Gretzky (+518) are among professional hockey's all-time plus/minus greats, even though they played different positions in radically different styles. The statistic recognizes lifelong consistency: Ray Bourque (+528) holds the third-highest plus/minus in NHL history without ever winning a single-season plus/minus title.All that remains is to find an academic equivalent of team goals, for and against, that would power an analogue of plus/minus in our profession. Alas, like obscenity, Arschlochkeit defies definition, let alone quantification, even though we know it when we see it. People who threaten junior colleagues with negative tenure votes on nonacademic grounds are Arschlöcher. So are those who invite other colleagues to think of the school's top administrators according to invidious racial stereotypes (going so far as to describe one administrator as "lazy and shiftless" and another as "crafty and inscrutable"). [Yes, Mr. Worst-Professor-in-America, I'm talking about you.] But these are hardly things that get tracked on Westlaw and SSRN.
Perhaps it's time to revisit a post I wrote long ago, suggesting things faculty governance might learn from Wikipedia. Wikipedia's list of policies identifies a wide range of antisocial behaviors that can scarcely be tolerated in that collaborative environment. These range from the obvious — personal attacks, legal threats, general incivility — to forms of conduct that are as colorful as they are crass — sock puppetry, edit warring. Courtesy of plus/minus, hockey teaches us to count team-wide outcomes and to notice who's skating when good and bad things happen. And courtesy of Wikipedia, we may yet learn what things to count, in an enterprise where goals elude definition, let alone trigger celebratory lights and sirens. The grand problem of knowing what to do with this information remains. In the meanwhile, though, we'd do well simply to take some preliminary steps: deciding what the quantifiable constituents of Arschlochkeit are and undertaking to measure them.
LSA: Job Market Risk Index
(Cross-posted to Law School Almanac)
It's not news that the job market is tough for new lawyers right now. But how bad is it? And how bad will it get? Lets look at some recent figures. According to the U.S. Department of Labor, Bureau of Labor Statistics, there were 761,000 lawyers working in America in 2006. The BLS projects that this number will grow by 11% over the decade from 2006 to 2016. That means that we should have about 83,710 new jobs for attorneys by 2016, or an average of about 8,371 new jobs per year.
In order to guess at the overall employment outlook for new lawyers, we have to guess at the number that might retire as well. Retirements should, in theory at least, create more jobs for new attorneys. The ratio won't be one to one, because law firms hire and fire new associates based on overall market conditions, not based on the number of partners retiring or senior associates promoted to partner each year. But to keep this simple we'll just assume that one retirement equals more or less one opening.
So lets look at some history (PDF). The first table here shows the number of JDs awarded by ABA approved law schools for the years 1966 through 1995:
Click here to read the rest of this post . . . .It seems reasonable to assume that lawyers who graduated somewhere in this time frame will make up most of those retiring over the 2006 - 2016 decade. Those called to the bar in 1966 had worked for 40 years at the start of the period, and those admitted in 1986 had worked for 20. The numbers marked as BEST and WORST seem like the largest and smallest numbers of attorneys that might retire in the near future. The BEST case assumes that retirees come mainly from the largest cohort of those admitted from 1986 to 1995. The WORST case assumes that retirees are mainly those from the 1966 to 1975 period. The MIDDLE case is the average of these two.
The table below shows the results of adding estimated retirees and average new jobs to figure BEST, MIDDLE, and WORST cases for the number of jobs per year available to new attorneys. From these figures, it seems that in the best case we might have jobs for 96% of new JDs over the next decade. But the middle or worst cases would leave 25 - 45% of new lawyers out of work each year.
The projected number of new JDS per year comes from the next table, which shows the number of degrees awarded in 2006 by all ABA approved law schools. This table also shows the JMRI score for each school. Schools are sorted in descending order of US News Combined Reputation Score. The JMRI is a measure of the proportion of the total openings for new lawyers each year that could be filled by a given school's graduates and the graduates of all schools higher up in the listing. For example, the formula for Stanford is:
JMRI = JDS(Stanford + Yale + Harvard) / JOBS(MIDDLE) * 1,000
So the classes of Stanford and the two schools above it could fill 2.9% of available jobs each year -- as projected in the MIDDLE case -- resulting in a JMRI score of 29. The BEST and WORST columns use a similar formula but give alternative measures for those cases. A JMRI score of 1,000 or higher may be cause for some concern.
This is only a crude metric because of course the job market doesn't fill from top to bottom in strict reputation score order. Law firms tend to hire from a certain number of national schools and then from local schools in their region -- not indiscriminately from all schools in the country. Larger firms tend to hire more graduates from national schools, and smaller firms do more of their hiring locally. Also, students at a "riskier" school with very high grades and prior work experience in high demand may have much better prospects than graduates with no such assets at a less "risky" school. So the JMRI score is just a relative estimate of the overall risk of not finding a job for graduates of different schools -- not an absolute predictor of the outlook for lawyers from any one school.
Of course, the cases all assume job growth for new lawyers will at least match BLS projections. Given the current rumors of mass layoffs, mergers, and even some firms folding, that may or may not happen. The new JD figures per year also do not include graduates from recently approved schools at Charlotte, Elon, and Drexel ... or UC Irvine ... or the ten new law schools now under proposal or development. They also include no graduates from the Peking University Law School, which according to Bill Henderson also has plans to seek ABA accreditation.
It's not news that the job market is tough for new lawyers right now. But how bad is it? And how bad will it get? Lets look at some recent figures. According to the U.S. Department of Labor, Bureau of Labor Statistics, there were 761,000 lawyers working in America in 2006. The BLS projects that this number will grow by 11% over the decade from 2006 to 2016. That means that we should have about 83,710 new jobs for attorneys by 2016, or an average of about 8,371 new jobs per year.
In order to guess at the overall employment outlook for new lawyers, we have to guess at the number that might retire as well. Retirements should, in theory at least, create more jobs for new attorneys. The ratio won't be one to one, because law firms hire and fire new associates based on overall market conditions, not based on the number of partners retiring or senior associates promoted to partner each year. But to keep this simple we'll just assume that one retirement equals more or less one opening.
So lets look at some history (PDF). The first table here shows the number of JDs awarded by ABA approved law schools for the years 1966 through 1995:
Click here to read the rest of this post . . . .It seems reasonable to assume that lawyers who graduated somewhere in this time frame will make up most of those retiring over the 2006 - 2016 decade. Those called to the bar in 1966 had worked for 40 years at the start of the period, and those admitted in 1986 had worked for 20. The numbers marked as BEST and WORST seem like the largest and smallest numbers of attorneys that might retire in the near future. The BEST case assumes that retirees come mainly from the largest cohort of those admitted from 1986 to 1995. The WORST case assumes that retirees are mainly those from the 1966 to 1975 period. The MIDDLE case is the average of these two.
The table below shows the results of adding estimated retirees and average new jobs to figure BEST, MIDDLE, and WORST cases for the number of jobs per year available to new attorneys. From these figures, it seems that in the best case we might have jobs for 96% of new JDs over the next decade. But the middle or worst cases would leave 25 - 45% of new lawyers out of work each year.
The projected number of new JDS per year comes from the next table, which shows the number of degrees awarded in 2006 by all ABA approved law schools. This table also shows the JMRI score for each school. Schools are sorted in descending order of US News Combined Reputation Score. The JMRI is a measure of the proportion of the total openings for new lawyers each year that could be filled by a given school's graduates and the graduates of all schools higher up in the listing. For example, the formula for Stanford is:
JMRI = JDS(Stanford + Yale + Harvard) / JOBS(MIDDLE) * 1,000
So the classes of Stanford and the two schools above it could fill 2.9% of available jobs each year -- as projected in the MIDDLE case -- resulting in a JMRI score of 29. The BEST and WORST columns use a similar formula but give alternative measures for those cases. A JMRI score of 1,000 or higher may be cause for some concern.
This is only a crude metric because of course the job market doesn't fill from top to bottom in strict reputation score order. Law firms tend to hire from a certain number of national schools and then from local schools in their region -- not indiscriminately from all schools in the country. Larger firms tend to hire more graduates from national schools, and smaller firms do more of their hiring locally. Also, students at a "riskier" school with very high grades and prior work experience in high demand may have much better prospects than graduates with no such assets at a less "risky" school. So the JMRI score is just a relative estimate of the overall risk of not finding a job for graduates of different schools -- not an absolute predictor of the outlook for lawyers from any one school.
Of course, the cases all assume job growth for new lawyers will at least match BLS projections. Given the current rumors of mass layoffs, mergers, and even some firms folding, that may or may not happen. The new JD figures per year also do not include graduates from recently approved schools at Charlotte, Elon, and Drexel ... or UC Irvine ... or the ten new law schools now under proposal or development. They also include no graduates from the Peking University Law School, which according to Bill Henderson also has plans to seek ABA accreditation.
What Concurring Opinions gets wrong about MoneyLaw
Deadwood: It isn't so much about the place as it is about the cast of characters.
Dave Hoffman of Concurring Opinions asserts: "The Moneylaw movement is decidedly anti-tenure." Jeff Harrison has his own view, of course, but I come neither to praise nor to bury tenure. The institution of academic tenure is here to stay, and not even MoneyLaw's most dedicated partisans are so foolhardy as to abort their careers by touching academia's third rail. Besides, if I've learned anything in this business, it is this truth: One's ability to accomplish things and to effect genuine change is inversely related to the extent to which one speaks one's mind.
So, if you're expecting me, as an early adopter of the "MoneyLaw movement" — seriously, has anyone ever written more flattering words about this blog, especially in the course of trashing one of its premises? — to condemn tenure, you'll have to wait a long time, and in vain. I'll also decline the temptation to quarrel with Dave Hoffman on sabermetric and bibliometric matters, except to observe in passing that Role Models in Finance: Lessons from Life Cycle Productivity of Prolific Scholars focuses on the effect of tenure on highly prolific "role model[]" finance scholars, as distinct from "the average finance Ph.D." Jeff Harrison, effectively and consistently, has exposed deep veins of timidity in the academy. And I have already exhorted fellow professors to write boldly, on the understanding that cowardice is a profound vice. As a result, I have neither occasion nor inclination to contest the notion that tenure protects academic freedom and inspires innovative teaching and scholarship.
But bold and honest talk about tenure should focus on two drawbacks that even the most ardent defenders of the institution would be hard pressed to deny:
- Far worse than tenure's marginal propensity, if any, to encourage loafing and to shelter unproductive faculty members from real accountability is its elimination of meaningful sanctions against odiously selfish, institutionally destructive faculty members. All it takes is one rabid rodent to infect the entire horde.
For a sense of the intensity with which MoneyLaw has addressed this issue, consider this: The German word Arschloch and its plural form, Arschlöcher, have appeared no fewer than 12 times in previous MoneyLaw posts. In academia's eternal morality play, where character matters far more than talent, the negative impact of Arschlochkeit (the condition of being an Arschloch) far outweighs any adverse productivity effects attributable to tenure. - Except perhaps at Yale and other schools where as many as one out of twelve graduates is a law professor, tenure insidiously separates professors from a realistic appreciation of their students' professional futures. At Louisville, the admittedly small base of 6,000 alumni might have a half-dozen members who work as law professors or federal judges. Literally 99.9 percent of our alumni are working without the benefit of a form of lifelong job protection that law professors rarely if ever subject to serious scrutiny. If we intend seriously as legal academics to serve our students and our graduates, it behooves us to focus on the professional conditions that they will face.
Lawyers versus Clients and Lawyers versus Professors
Jeff Harrison's post just below on how lawyers versus economists frame the same problem provides a nice segue to a thought piece I just posted on SSRN - but this is about how normal people versus lawyers versus law professors go about making judgments.
(Call me a fool, but I like to get stuff out there as early as I can short of being humiliated. I am okay with merely embarrassed). I have wrestled now for four years on the precipice either of an practitioner who thought too much like a professor (actually, that accusation goes back a long time), or a professor who was tainted by so many years of practice. I think Tevye in Fiddler on the Roof spoke to this: "a fish could marry a bird, but where would they live?
I've posted a short and preliminary essay that reflects what I've been thinking about and reading about over the summer, and it has to do with the theory and practice of judgment - how judgment differs as between clients and practicing lawyers, and in turn, how it differs between practicing lawyers and the professors who taught them. The piece is entitled Law's Illusion: Scientific Jurisprudence and the Struggle with Judgment. Here's the abstract:
Why are there two fairly clear chasms that affect practicing lawyers - one between themselves and their clients, and one between themselves and their professors? Both have to do with the irreducibility of judgment - perceiving regularities, applying rules to new situations, and deciding in advance what to do. I suspect Kant was right over two centuries ago, and there has not been much progress theorizing about it since then (even after the behavioral theorists like Tversky and Kahnemann and popular expositors like Malcolm Gladwell); judgment, either the inductive inferences from what we observe to what we generalize, or the leap from what we generalize to what to do next, is not teachable, but only achievable through practice. Practicing lawyers are reductivists in comparison to their clients - reducing the complex world through the "science" of law to a model; professors are reductivists in comparison to their students - either reducing the practice to a rational science, or avoiding the question of judgment at all.
This is a thought piece preliminary to a more detailed treatment of the idea.
(By the way, this is the first time I've posted a new piece on SSRN in a while; the system is improved, but still capable of being screwed up. Key advice: remember to click the "save" button to the upper right when you are done with each entry.)
Auction Approach v. No good Deed Approach
There is a story I tell to law and economics students to illustrate a difference between the economist's perspective and the law professor's perspective. It is about an experience I had at my first law teaching job. I visited the economics department and learned that the economists had decided who got which office in a new building by using an auction. Later that day, I passed this information on to my law colleagues and every one of them asked instinctively, "Who got the money?" To me, as I tell my students, it illustrates the difference between allocative and distributive concerns. (Now I understand from one of my well-read colleagues, some schools use auctions to allocate spots in courses to students. The currency is a set number of "points" which are assigned to the students.)When I tell this story to students or even to colleagues a fair amount of eye rolling takes place -- "oh those crazy economists!" I admit to joining in and snickering. Now I think the economists were way ahead of the game and much more was going on than allocative efficiency.
For example, a the sticky issue at law schools is teaching schedule -- times, days, numbers of hours, capping courses. There are others like travel expenses but let's stay with teaching schedule.
At some point professors are asked what their preferences are for the next year. Let's consider possible responses at each end of a continuum of responses. At one end:
"I will teach Advanced Restitution from the Perspective of the Elderly at 1o, Wednesday. Cap 12 students."
On the other end: "I can teach any of the following 8 courses whenever they are needed the most."
Does the first statement reflect an actual need (like a standing appointment for an appendectomy at 8 AM or six days of physical therapy a week)? Not likely. Just a preference.
Does the second statement actually reflect no preference? Just as unlikely.Another difference is the willingness of person one or those over on that end of the continuum to spend time badgering, slipping down to the dean's office and quietly closing the door, or expecting something in return for being flexible, etc. (Low opportunity costs, I know, but that is another post about the theory that one's value to a law school is inversely related to the amount of time spent with the dean or any administrator at the faculty member's request.) They exact a "price" for not getting what they want.
So, the differences in these statements do not reflect a difference in need or a difference in strength of preference. There are at least two other possibilities. One is a difference in sense of entitlement. The other is a difference in moral development with the first person, ironically, fitting the economist's definition of being narrowly self-interested and the second person having a sense of community.
At most schools my guess is that teaching loads are, in large part, allocated -- except with respect to the instances in which student needs are observed -- on the bases of sense of entitlement, level of moral development, and opportunity costs associated with time spent badgering.
Whatever the economists were achieving back in the office auction had to be superior to this. So how about a dean assigning to each faculty member 500 points and letting the bidding on schedules begin?
Two final points. Is this the fault of deans? A year ago I would have blazed away and said yes. Clearly, community minded professors make it possible for deans to "serve" those with a sense of entitlement and I still think too many do respond to squeaky gates but I have come to believe that they cannot be responsible for the moral development of their faculties. That was what mom and dad were supposed to have done.
Second. Would this ever happen? Of course not. That would require those with a sense of entitlement to see themselves as no different than the rest of the faculty. And, it would violate the important elitist rule of never revealing what you really want because then you have revealed a weakness.
LSA: Law School Clusters
(Cross-posted to Law School Almanac)
After pointing out the more severe flaws in the Legal Education Value Added Rankings, I spent some time reading Linda Wightman's LSAC National Longitudinal Bar Passage Study (based on a cohort of students who started law school in 1991). With respect to "valued added" concepts in legal education, one conclusion of this study stands out: LSAT scores and law school GPA have the strongest predictive value for bar passage rates, but results for students with the same LSAT and LGPA differ significantly between certain of the six "clusters" of schools which the study identified.
Wightman identified one group of schools ("Cluster 3") in which students having the same LSAT score and LGPA seemed to have higher success in passing the bar relative to several other clusters. And she found the greatest gap between the success of students with the same LSAT and LGPA who attend schools in Cluster 6 vs. those in Cluster 3. There were lesser gaps in outcomes for schools in Clusters 2 and 5 compared with those in Cluster 3. And two of the clusters (1 and 4) had no significant difference in success rates from Cluster 3 (also an interesting conclusion). Finally, the differences were greatest between students attending schools in different clusters when those students had a lower LSAT score and law school GPA.
Click here to read the rest of this post . . . .Wightman points out that the study does not establish any causal connection between attending schools in different clusters. And it is a little hard to identify example schools from the various clusters, not the least because for most schools the values of the variables involved in the study have shifted greatly in the past seventeen years. But regardless what schools made up what clusters in 1990, Wightman's basic method remains compelling -- finding significant variables on which law schools tend to naturally cluster, and then examining how outcomes differ between those clusters.
I'm trying now to understand the math behind the clustering procedure and to repeat the process using current data, to see what clusters might emerge today. As a first step in that process, I composed data from the ABA Official Guide to Law Schools (2008 Edition) to replicate the variables Wightman described in her smaller study: Clustering Law Schools Using Variables That Describe Cost, Selectivity, and Student Body Characteristics (PDF). I've only gotten as far as calculating summary statistics and Z-scores, but those results seemed striking enough to merit posting on their own (*). The variables Wightman used for clustering and which I have recalculated are:
ENROLL FT: Full-time enrollment
S/F RATIO: Student to faculty ratio
MIN %: Percent minority enrollment (first-year)
ACC %: Acceptance rate (total)
LSAT: Median LSAT for entering full-time students
UGPA: Median undergraduate GPA for entering full-time students
TUITION: Full-time resident tuition and fees
I have not done any hypothesis tests to determine which changes are statistically significant, but just eyeballing the data seems to reveal some notable shifts.
Enrollment: The mean and standard deviation have both dropped, suggesting a convergence of all schools toward lower full-time enrollment.
Faculty: The S/F ratio has dropped by a good bit, but the standard deviation has widened. Schools seem to be employing noticeably more faculty overall, but they may also have scattered quite a bit in the magnitude and direction of change on this measure.
Minorities: The mean percentage of minority enrollment has increased from 16% to 21%, but the standard deviation is about the same -- basically the entire curve took a step to the right. One question we may have is which minorities are counted for the purpose of "minority enrollment." I am not sure whether Wightman's figures only include certain minorities, or if she used the Total Minority numbers from the ABA as I did (and as I assumed she did).
Selectivity: The overall distribution of acceptance rates has hardly changed at all, but academic index parameters have changed a lot. Schools as a whole appear to have become much more selective on GPA and much less selective on LSAT scores. Wightman's studies uses LSAT scores from the old scale, and I could not find a score percentile table from 1991 anywhere online (if anyone out there happens to have a copy of one, please let me know). I made a rough attempt to equate the scoring scales, from which I guessed that a 36 on the old scale was around the 85th percentile. The current mean of 158 falls at the 75th percentile. Median GPAs, meanwhile, have shifted upward more than 0.20, but the standard deviation has stayed about the same. Here again, it looks like the whole curve just shifted right by quite a bit (grade inflation, anyone ... ?).
Cost: The standard deviation for total tuition and fees today is larger than the mean was seventeen years ago -- enough said.
(*) As Wightman did, I excluded a handful of schools from these statistics: 1) The three ABA approved schools in Puerto Rico; and 2) The "one law school that enrolls part-time students almost exclusively."
After pointing out the more severe flaws in the Legal Education Value Added Rankings, I spent some time reading Linda Wightman's LSAC National Longitudinal Bar Passage Study (based on a cohort of students who started law school in 1991). With respect to "valued added" concepts in legal education, one conclusion of this study stands out: LSAT scores and law school GPA have the strongest predictive value for bar passage rates, but results for students with the same LSAT and LGPA differ significantly between certain of the six "clusters" of schools which the study identified.
Wightman identified one group of schools ("Cluster 3") in which students having the same LSAT score and LGPA seemed to have higher success in passing the bar relative to several other clusters. And she found the greatest gap between the success of students with the same LSAT and LGPA who attend schools in Cluster 6 vs. those in Cluster 3. There were lesser gaps in outcomes for schools in Clusters 2 and 5 compared with those in Cluster 3. And two of the clusters (1 and 4) had no significant difference in success rates from Cluster 3 (also an interesting conclusion). Finally, the differences were greatest between students attending schools in different clusters when those students had a lower LSAT score and law school GPA.
Click here to read the rest of this post . . . .Wightman points out that the study does not establish any causal connection between attending schools in different clusters. And it is a little hard to identify example schools from the various clusters, not the least because for most schools the values of the variables involved in the study have shifted greatly in the past seventeen years. But regardless what schools made up what clusters in 1990, Wightman's basic method remains compelling -- finding significant variables on which law schools tend to naturally cluster, and then examining how outcomes differ between those clusters.
I'm trying now to understand the math behind the clustering procedure and to repeat the process using current data, to see what clusters might emerge today. As a first step in that process, I composed data from the ABA Official Guide to Law Schools (2008 Edition) to replicate the variables Wightman described in her smaller study: Clustering Law Schools Using Variables That Describe Cost, Selectivity, and Student Body Characteristics (PDF). I've only gotten as far as calculating summary statistics and Z-scores, but those results seemed striking enough to merit posting on their own (*). The variables Wightman used for clustering and which I have recalculated are:
ENROLL FT: Full-time enrollment
S/F RATIO: Student to faculty ratio
MIN %: Percent minority enrollment (first-year)
ACC %: Acceptance rate (total)
LSAT: Median LSAT for entering full-time students
UGPA: Median undergraduate GPA for entering full-time students
TUITION: Full-time resident tuition and fees
I have not done any hypothesis tests to determine which changes are statistically significant, but just eyeballing the data seems to reveal some notable shifts.
Enrollment: The mean and standard deviation have both dropped, suggesting a convergence of all schools toward lower full-time enrollment.
Faculty: The S/F ratio has dropped by a good bit, but the standard deviation has widened. Schools seem to be employing noticeably more faculty overall, but they may also have scattered quite a bit in the magnitude and direction of change on this measure.
Minorities: The mean percentage of minority enrollment has increased from 16% to 21%, but the standard deviation is about the same -- basically the entire curve took a step to the right. One question we may have is which minorities are counted for the purpose of "minority enrollment." I am not sure whether Wightman's figures only include certain minorities, or if she used the Total Minority numbers from the ABA as I did (and as I assumed she did).
Selectivity: The overall distribution of acceptance rates has hardly changed at all, but academic index parameters have changed a lot. Schools as a whole appear to have become much more selective on GPA and much less selective on LSAT scores. Wightman's studies uses LSAT scores from the old scale, and I could not find a score percentile table from 1991 anywhere online (if anyone out there happens to have a copy of one, please let me know). I made a rough attempt to equate the scoring scales, from which I guessed that a 36 on the old scale was around the 85th percentile. The current mean of 158 falls at the 75th percentile. Median GPAs, meanwhile, have shifted upward more than 0.20, but the standard deviation has stayed about the same. Here again, it looks like the whole curve just shifted right by quite a bit (grade inflation, anyone ... ?).
Cost: The standard deviation for total tuition and fees today is larger than the mean was seventeen years ago -- enough said.
(*) As Wightman did, I excluded a handful of schools from these statistics: 1) The three ABA approved schools in Puerto Rico; and 2) The "one law school that enrolls part-time students almost exclusively."
The blog post of the year
It's only July, and MoneyLaw strongly prefers football and baseball to hockey, but the triumphant lifting of the Stanley Cup sets the right tone. Bill Henderson has written what I consider to be the most important blog post of the year: How the "Cravath system" created the bi-modal distribution. Indeed, if there is a more compelling read among recent publications for those who care about law students, legal education, and the legal profession, I do not know it.
Here are the lessons I take away from Bill's powerful post and his even more devastating working paper:
- The love of credentials has become the root of all evil.
- The current system is unsustainable, and many firms that persist in the teeth of client discontent and an eroding economy will be — and will deserve to be — crushed and melted.
- There is a way out that enables firms, lawyers, and law schools to maximize human capital in law.
Bright Knight
From the National Law Journal and the ABA Journal comes news that legal academia should take to heart in its own domain.
Holland & Knight is a big firm. It operates 22 offices throughout the United States and in China and Mexico. Its 1100 lawyers make Holland & Knight the 18th largest law firm in the country.
But Holland hasn't been wholly profitable of late. In 2007 it was only one of three firms in The American Lawyer's list of the 100 highest-grossing law firms to show a decline in profits. This setback came after layoffs in 2002 and 2005 that snared 110 lawyers and 240 staffers.
Relative to many other megafirms, Holland pays lower associate salaries and nets lower profits per partner. The tradeoff, according to firm tradition, is a pleasant work environment.
Newly elected managing partner Steven Sonberg is responding to client demands for lower fees and increasingly accessible partners with two initiatives.
First, Holland & Knight will discount its fees for some clients in exchange for success fees. Successful cases would yield more revenue for Holland. The new fee structure responds to concerns expressed by midsized, entrepreneurial companies.
[Hushed whispers rush through MoneyLaw's audience. "Imagine that," remarks one stunned reader. "Accountability. Performance-based compensation."]
Second, Holland has pledged to change expectations regarding partners and their performance. Steven Sonberg intends to increase partner productivity in response to clients' demands for instant responses and on-call lawyering. Partners who can’t meet billable hour requirements may be fired:
"The days of partners 50 and older playing golf on Wednesdays are long gone. There is no tenure here."
Holland & Knight is a big firm. It operates 22 offices throughout the United States and in China and Mexico. Its 1100 lawyers make Holland & Knight the 18th largest law firm in the country.
But Holland hasn't been wholly profitable of late. In 2007 it was only one of three firms in The American Lawyer's list of the 100 highest-grossing law firms to show a decline in profits. This setback came after layoffs in 2002 and 2005 that snared 110 lawyers and 240 staffers.
Relative to many other megafirms, Holland pays lower associate salaries and nets lower profits per partner. The tradeoff, according to firm tradition, is a pleasant work environment.
Newly elected managing partner Steven Sonberg is responding to client demands for lower fees and increasingly accessible partners with two initiatives.First, Holland & Knight will discount its fees for some clients in exchange for success fees. Successful cases would yield more revenue for Holland. The new fee structure responds to concerns expressed by midsized, entrepreneurial companies.
[Hushed whispers rush through MoneyLaw's audience. "Imagine that," remarks one stunned reader. "Accountability. Performance-based compensation."]
Second, Holland has pledged to change expectations regarding partners and their performance. Steven Sonberg intends to increase partner productivity in response to clients' demands for instant responses and on-call lawyering. Partners who can’t meet billable hour requirements may be fired:
"The days of partners 50 and older playing golf on Wednesdays are long gone. There is no tenure here."
LSA: Legal Education Value Added
I mentioned in writing about my work on alumni networks that we would look at some problems with the Legal Education Value Added Rankings in a future post. So, this is that post -- and in the context of Jason Solomon's recent series on this topic, this seems a perfect time for it. (*)
As with the ANNR study, I think the method used to calculate the LEVA scores is explained well enough in my original posts. So here I'll just focus on pointing out the grosser flaws in that method. My basic premise for the LEVA score is that the academic index of entering students for each law school might have some relation to the success of those students in passing the bar exam. So we might expect a school's bar passage rate (or rather, the difference between the school's pass rate and its primary jurisdiction's pass rate) to coincide with the academic indexes of students that it enrolls.
If we sort all schools from top to bottom by bar exam "performance" and again by median student academic index, then we might expect the order to be pretty much the same (again, assuming that academic index correlates at all with bar exam success). And we might measure value added (or subtracted) by looking at schools that have large gaps between their positions in these two lists. In order to see the problems with this approach, lets look again at numbers reported to the ABA by the Notre Dame and Thomas M. Cooley law schools:
As I pointed out in my earlier post, the first problem here is that schools only report bar exam results for students taking the exam in one or two jurisdictions. For each school we can only see outcomes for 28 - 38% of students who earned J.D. degrees. We have no idea whether the rest of the graduating class even took a bar exam anywhere else, or if they did how many passed. Schools may know these outcomes, but as of today they do not report them to the ABA -- at least not as part of the public dataset that appears in the Official Guide.
Click here to read the rest of this post . . . .Just as the low response rates on employment surveys at some schools suggest significant selection bias in their results, the scant coverage of these bar passage reports also suggests great caution in using their results for any serious purpose. If we had full results, then we might find that the passage rate for all graduates tracks closely with that of the minority results disclosed. But we might also find that many graduates not covered by the report never even bothered to take the exam, or that they took it and failed at a much higher rate than those who took an exam in the primary jurisdiction.
There may be no good source of full bar exam results for all schools today. Some states disclose pass rates by school for all takers, but I am not aware if all states give out such full results. Even if states have the data, it could be a huge amount of work for someone to aggregate all of it. I do not know whether most schools collect full results or not. If they do, then it seems a simple matter for the ABA to request and report data on all graduates.
But there are further problems with using the pass rate as well, which are: 1) Pass rates vary widely by state; 2) The pass/fail criteria is so coarse that it may have only limited correlation with any other factor; and 3) Even with full reports of those who take the exam, pass rates may reflect significant extinction bias relative to the population of entering students. I tried to adjust in a crude way for jurisdiction variances in the LEVA formula, but nothing can overcome the basic coarseness issue. And the extinction bias which plagues the ANNR measure operates here to just as great a degree -- by definition only those students who succeed in graduating can even attempt the bar exam.
Also, the population level data reported for academic index and pass rate do not allow us to pair inputs and outputs per student -- which we would need to do in order to truly measure how outcomes vary for students with the same indexes at different schools. And I assumed for the purpose of the LEVA measure that an index composed of the median GPA and median LSAT at each school approximates the academic index of the "median" student at that school. But this may be wildly inaccurate, because the medians for each component are reported separately.
If a school accepts many students with "split" numbers, for instance, then they might actually enroll no students at all with a composite index close to one composed of the reported medians. A school might accept 100 students with an LSAT of 170 and GPA of 2.0, and 100 others with an LSAT of 150 and a GPA of 4.0. And their reported medians might be identical with those of a school that filled its class with 160/3.0 candidates. But these could be very different populations in terms of how well they perform on the licensing exam, even with identical courses of instruction during law school.
As Jason and commentors on his series mention (and as Andrew Morriss and William Henderson suggest), what we really want are paired input and output metrics, with some rough sort of theoretical correlation, and with sufficiently granular results. With that data we could mark the changes from before to after per student, calculate the median change for graduates from each school, and see how that metric compares between schools.
Jeff Harrison posted recently about how law schools in Brazil apparently figured this out a while ago. If we had a data set with paired LSAT and MBE/MPRE scores for graduates of all schools, then that would make for about the best input vs. output metric we're likely to get. It would be far from ideal, but still an order of magnitude better than what we have now. I'm not sure if LSAC or NALP include MBE scores in their longitudinal studies, but anyone with access to their public use datasets could answer that. If they do, then those data might provide the foundation for something approaching a valid measure of educational value add, at least for an initial study.
Such a study would not give a complete measure of "quality," but it would at least measure effectiveness in preparing students to perform well on the licensing exam and enter practice. And while that is not a complete and sufficient measure of quality in a program, I would argue that it's at least one necessary component. This added to the elements of student engagement suggested by Jason would make for a really valuable and informative ranking of program quality, and one that students could use to make some rational decisions on which school to attend.
Jason cites Russell Korobkin's proposal that the function of rankings as a signalling mechanism is not a bug -- it's a "feature." Korobkin's point is well taken, and many candidates rely on the USN&WR rankings for this very reason. But most candidates also have to choose from a number of schools of similar "signalling value" in deciding where to apply or attend, and this is where it seems that true measures of engagement, effectiveness, and "quality" can inform.
A genuine quality measure, and one that was widely relied upon by candidates, would inspire schools even at similar and very high levels of "prestige" to compete with each other on "quality." And a useful quality metric would allow candidates to make much more informed cost / benefit choices between schools that are otherwise hard to distinguish with existing rankings. That would promote Korobkin's suggested goal of using rankings to encourage schools to produce a public good (high "quality" education) which might otherwise be less available than we would like.
I like Jason's idea of using responses to the Princeton review surveys to create a sharper view of educational quality than reputation surveys and citation counts. Unlike reputation surveys, citation metrics at least touch some thing that law schools actually do, but that thing may or may not relate well to teaching law students to be good lawyers. As Jim suggests in his Bibliometric Manifesto, we ought to be able to use quantitative metrics like student survey results as a mirror for qualitative value in legal education -- as long as we have the right metrics.
But there are still questions about any metric based on self-reports of engagement or satisfaction. I wonder, for instance, how much correlation we might find between the lists of schools with the best and worst academic experiences and those with the highest and lowest assigned medians in their grading curves.
At the very least, the actions that schools could take to improve their performance on metrics like these seem like things we might actually want them to do. As we all know by now, metrics do not just inform behavior -- they inspire it as well. And between the two effects -- informing and inspiring -- the latter is most often the greater.
(*) Some of the material here is reproduced or adapted from earlier comments or emails of mine related to Jason's series.
As with the ANNR study, I think the method used to calculate the LEVA scores is explained well enough in my original posts. So here I'll just focus on pointing out the grosser flaws in that method. My basic premise for the LEVA score is that the academic index of entering students for each law school might have some relation to the success of those students in passing the bar exam. So we might expect a school's bar passage rate (or rather, the difference between the school's pass rate and its primary jurisdiction's pass rate) to coincide with the academic indexes of students that it enrolls.
If we sort all schools from top to bottom by bar exam "performance" and again by median student academic index, then we might expect the order to be pretty much the same (again, assuming that academic index correlates at all with bar exam success). And we might measure value added (or subtracted) by looking at schools that have large gaps between their positions in these two lists. In order to see the problems with this approach, lets look again at numbers reported to the ABA by the Notre Dame and Thomas M. Cooley law schools:
NUMBER OF GRADUATES ND TC
------------------------------------
Awarded JD degree: 184 805
Sitting for bar exam: 69 229
Passing bar exam: 62 183
Bar passage rate: 0.90 0.80
------------------------------------
As I pointed out in my earlier post, the first problem here is that schools only report bar exam results for students taking the exam in one or two jurisdictions. For each school we can only see outcomes for 28 - 38% of students who earned J.D. degrees. We have no idea whether the rest of the graduating class even took a bar exam anywhere else, or if they did how many passed. Schools may know these outcomes, but as of today they do not report them to the ABA -- at least not as part of the public dataset that appears in the Official Guide.
Click here to read the rest of this post . . . .Just as the low response rates on employment surveys at some schools suggest significant selection bias in their results, the scant coverage of these bar passage reports also suggests great caution in using their results for any serious purpose. If we had full results, then we might find that the passage rate for all graduates tracks closely with that of the minority results disclosed. But we might also find that many graduates not covered by the report never even bothered to take the exam, or that they took it and failed at a much higher rate than those who took an exam in the primary jurisdiction.
There may be no good source of full bar exam results for all schools today. Some states disclose pass rates by school for all takers, but I am not aware if all states give out such full results. Even if states have the data, it could be a huge amount of work for someone to aggregate all of it. I do not know whether most schools collect full results or not. If they do, then it seems a simple matter for the ABA to request and report data on all graduates.
But there are further problems with using the pass rate as well, which are: 1) Pass rates vary widely by state; 2) The pass/fail criteria is so coarse that it may have only limited correlation with any other factor; and 3) Even with full reports of those who take the exam, pass rates may reflect significant extinction bias relative to the population of entering students. I tried to adjust in a crude way for jurisdiction variances in the LEVA formula, but nothing can overcome the basic coarseness issue. And the extinction bias which plagues the ANNR measure operates here to just as great a degree -- by definition only those students who succeed in graduating can even attempt the bar exam.
Also, the population level data reported for academic index and pass rate do not allow us to pair inputs and outputs per student -- which we would need to do in order to truly measure how outcomes vary for students with the same indexes at different schools. And I assumed for the purpose of the LEVA measure that an index composed of the median GPA and median LSAT at each school approximates the academic index of the "median" student at that school. But this may be wildly inaccurate, because the medians for each component are reported separately.
If a school accepts many students with "split" numbers, for instance, then they might actually enroll no students at all with a composite index close to one composed of the reported medians. A school might accept 100 students with an LSAT of 170 and GPA of 2.0, and 100 others with an LSAT of 150 and a GPA of 4.0. And their reported medians might be identical with those of a school that filled its class with 160/3.0 candidates. But these could be very different populations in terms of how well they perform on the licensing exam, even with identical courses of instruction during law school.
As Jason and commentors on his series mention (and as Andrew Morriss and William Henderson suggest), what we really want are paired input and output metrics, with some rough sort of theoretical correlation, and with sufficiently granular results. With that data we could mark the changes from before to after per student, calculate the median change for graduates from each school, and see how that metric compares between schools.
Jeff Harrison posted recently about how law schools in Brazil apparently figured this out a while ago. If we had a data set with paired LSAT and MBE/MPRE scores for graduates of all schools, then that would make for about the best input vs. output metric we're likely to get. It would be far from ideal, but still an order of magnitude better than what we have now. I'm not sure if LSAC or NALP include MBE scores in their longitudinal studies, but anyone with access to their public use datasets could answer that. If they do, then those data might provide the foundation for something approaching a valid measure of educational value add, at least for an initial study.
Such a study would not give a complete measure of "quality," but it would at least measure effectiveness in preparing students to perform well on the licensing exam and enter practice. And while that is not a complete and sufficient measure of quality in a program, I would argue that it's at least one necessary component. This added to the elements of student engagement suggested by Jason would make for a really valuable and informative ranking of program quality, and one that students could use to make some rational decisions on which school to attend.
Jason cites Russell Korobkin's proposal that the function of rankings as a signalling mechanism is not a bug -- it's a "feature." Korobkin's point is well taken, and many candidates rely on the USN&WR rankings for this very reason. But most candidates also have to choose from a number of schools of similar "signalling value" in deciding where to apply or attend, and this is where it seems that true measures of engagement, effectiveness, and "quality" can inform.
A genuine quality measure, and one that was widely relied upon by candidates, would inspire schools even at similar and very high levels of "prestige" to compete with each other on "quality." And a useful quality metric would allow candidates to make much more informed cost / benefit choices between schools that are otherwise hard to distinguish with existing rankings. That would promote Korobkin's suggested goal of using rankings to encourage schools to produce a public good (high "quality" education) which might otherwise be less available than we would like.
I like Jason's idea of using responses to the Princeton review surveys to create a sharper view of educational quality than reputation surveys and citation counts. Unlike reputation surveys, citation metrics at least touch some thing that law schools actually do, but that thing may or may not relate well to teaching law students to be good lawyers. As Jim suggests in his Bibliometric Manifesto, we ought to be able to use quantitative metrics like student survey results as a mirror for qualitative value in legal education -- as long as we have the right metrics.
But there are still questions about any metric based on self-reports of engagement or satisfaction. I wonder, for instance, how much correlation we might find between the lists of schools with the best and worst academic experiences and those with the highest and lowest assigned medians in their grading curves.
At the very least, the actions that schools could take to improve their performance on metrics like these seem like things we might actually want them to do. As we all know by now, metrics do not just inform behavior -- they inspire it as well. And between the two effects -- informing and inspiring -- the latter is most often the greater.
(*) Some of the material here is reproduced or adapted from earlier comments or emails of mine related to Jason's series.
Did Tenure Fail?
I have tenure and am happy about it. But when you think about it, isn't tenure pretty crazy? It may not be as crazy as voting yes, as many Venezuelans did, on the issue of whether to have a permanent president but it is similar. In both cases, people (in the public law school case, taxpayers with faculties acting as their agents) give up options about the future and get precious little in return. The only reason to pre-commit is to obtain a payoff. It's an investment.
Why would any institution make a deal like this?Does anyone really think that the quality of efforts to teach people about the law or how to be lawyers would fall? Exactly how would this work? The good professors would be draw away into practice and replaced by bad ones. Two problems here. Look around you. How many of the people in law teaching could and would leave for a job in practice? Do you really think there are not plenty of competent people willing to fill their positions? And, what's tenure to them. They do not have it and likely never will.
Would eliminating tenure change scholarship? When is the last time a law professor said anything controversial enough to engender widespread complaints? Now stack them up against those who will never say anything at all. Many of them have First Amendment protections anyway. Although they rarely need protection from complainers outside their schools (And please don't say they are so few attacks on professors because would be attackers know tenure exists.), it may be that they need protection from within the law school. What sort of people would need this protection other that whistle-blowers? The only ones I can think of are those who toil away on long term projects that are risky in that they may or may not result in "findings" worthy of publication. As it turns out, though, this kind of scholarship -- the kind that involves actually testing ideas and taking on tough projects is already rare. I am not sure it would be much worse as people with tenure clamor to rack up numbers no matter what substance is behind the numbers and administrators encourage and reward this behavior in part to puff up decanal glossies. Plus, remember tenure also protects those who do not even play the game at either level.
I am happy to have tenure but, as an institution hasn't it failed?
Why would any institution make a deal like this?Does anyone really think that the quality of efforts to teach people about the law or how to be lawyers would fall? Exactly how would this work? The good professors would be draw away into practice and replaced by bad ones. Two problems here. Look around you. How many of the people in law teaching could and would leave for a job in practice? Do you really think there are not plenty of competent people willing to fill their positions? And, what's tenure to them. They do not have it and likely never will.
Would eliminating tenure change scholarship? When is the last time a law professor said anything controversial enough to engender widespread complaints? Now stack them up against those who will never say anything at all. Many of them have First Amendment protections anyway. Although they rarely need protection from complainers outside their schools (And please don't say they are so few attacks on professors because would be attackers know tenure exists.), it may be that they need protection from within the law school. What sort of people would need this protection other that whistle-blowers? The only ones I can think of are those who toil away on long term projects that are risky in that they may or may not result in "findings" worthy of publication. As it turns out, though, this kind of scholarship -- the kind that involves actually testing ideas and taking on tough projects is already rare. I am not sure it would be much worse as people with tenure clamor to rack up numbers no matter what substance is behind the numbers and administrators encourage and reward this behavior in part to puff up decanal glossies. Plus, remember tenure also protects those who do not even play the game at either level.
I am happy to have tenure but, as an institution hasn't it failed?
Value-Added Law Schools
Jason Solomon (Georgia) has an interesting series of posts on PrawsBlawg on taking back the U.S. News law school rankings and producing a "Voters' Guide" to assess the "value added" for students at different law schools:
- Preparing to Vote...for U.S. News (7/7/08)
- What Are We Voting About in US News? (7/8/08)
- What Would Leiter Do? (7/9/08)
- Do We Need to Further Incentivize Scholarship, Not Education? (7/10/08)
- The Legacies of U.S. News's Robert Morse, AALS's Susan Prager, and Us (7/11/08)
- How To Compare Value Added Across Law Schools (7/14/08)
- The Educational Quality of Law Schools: What's the Relevant Data? (7/15/08)
- Paul Caron, Moneyball, and the Most Important Chart In the History of Legal Education (7/16/08)
Employee versus Independent Contractor
California's Employment Development Department (EDD), in conjunction with the Internal Revenue Service (IRS), is offering a seminar on employment status issues; that is, whether a worker is an employee or independent contractor. The seminar is available live from time to time, but also online as a webinar or on CD, free. The seminar offers an overview of California law in this area, as well as debunking some common employer misconceptions.
CA EDD Payroll Tax Seminars
CA EDD Payroll Tax Seminars
More On Same-Sex Marriage Recognition in Other States
It's hard to keep up, but here are two more recent articles from Findlaw's Writ on issues related to same-sex marriage. These both deal with issues regarding the legal treatment of same-sex marriages in states that do not have same-sex marriage:
*The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose, by Joanna Grossman, whose writing thus far proves her to be, at least to me, the foremost academic expert on these issues.
*The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States, an interesting piece by Chicago attorney Steve Sanders.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
*The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose, by Joanna Grossman, whose writing thus far proves her to be, at least to me, the foremost academic expert on these issues.
*The Case for a Right of Marriage Recognition: Why Fourteenth Amendment Due Process Should Protect Same-Sex Couples Who Change States, an interesting piece by Chicago attorney Steve Sanders.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Demystifying the SSRN process
I'm pleased to promote a blog post and a PowerPoint presentation by my colleague, Susan Hanley Duncan:
Demystifying the SSRN Process is being presented this week at the biennial conference of the Legal Writing Institute.SSRN is one of the key places scholars post academic papers. My presentation will introduce participants to SSRN, explain the benefits of SSRN, and provide step-by-step instructions for using SSRN. This presentation seeks to demystify the SSRN process and help participants become comfortable with the submission process including how to write effective abstracts.
LSA: Alumni Network National Reach
I'll begin here by talking about my work on alumni networks, for several reasons: 1) The data that I assembled for the Alumni Network National Reach (ANNR) study is not, as far as I know, available elsewhere; 2) This topic seems generally overlooked by most rankings and by many prospective law school students; and 3) A deep and broad alumni network seems to me one of the most important assets of a law school for those who will one day be its graduates.
I should point out now that I began all of the work featured on Law School Almanac as an uninformed amateur, and I did not set out to produce anything approaching proper scholarship. I have read what law review articles, blogs, and other materials I happened to find during my research. But I never undertook a comprehensive survey of the literature on law school rankings (nor have I even started law school, as I write this). I will therefore apologize now for any point on which by accident I have duplicated prior art without proper credit, or any aspect in which as a novice I have reinvented some wheels or repeated work done better and before by someone else.
Like many people who set out to attend law school today, I noticed several things soon after I began: 1) Our profession is gripped like no other with a strange fetish for scoring, sorting, and ranking, and this fetish dominates almost every aspect of the legal education and hiring markets; 2) The information we use to feed this fetish is often vague, unreliable, and corrupt; and 3) The methods used for scoring, sorting, and ranking are in the worst cases obviously invalid and unreliable and even in the best cases often irrelevant to the goals of those who rely on their results.
I am sure that I don't need to mention the many faults with the US News & World Report rankings, as others on this forum and in the literature have done a far better job of that. When I set out to look beyond these rankings, I had three goals in mind: 1) Cut through the hype that pervades popular opinions on legal education; 2) Test anecdotes with data; and 3) Decide where to attend. I wanted to find information that related to my concepts of value in legal education, verify or refute anecdotal judgments that I heard from others, and find some rational basis for choosing schools that I would apply to and eventually attend.
I think that the posts on LSA cover the method for the ANNR study well enough that I won't need to say much on that topic here. Instead, I will address some problems with the data which readers and users should consider. And I'll do that by looking at the numbers for two schools: Notre Dame and Thomas M. Cooley. I chose these because they have similar numbers of alumni included in the data from the survey; they have about as huge a gap in reputation and USN&WR ranking as any two schools we might pick; they follow very different models for admitting students; and yet they somehow wind up both ranked in the Top 20 by ANNR score.
Click here to read the rest of this post . . . .The Thomas M. Cooley School of Law attracts a certain type of attention from prospective law students, in part due to their notorious Judging the Law Schools rankings, which also happen to place Cooley within the Top 20 among all schools. I won't try to explain the reasons behind Cooley's position in their own rankings, but I think we can find some likely factors that will account for their success on the ANNR measure. We'll start by looking at a few numbers that describe the student bodies of these schools in the current ABA Official Guide to Law Schools:
Three things about these numbers stand out right away: 1) Cooley admits more students than even apply to Notre Dame; 2) Cooley enrolls ten times more students each year; and 3) Notre Dame graduates more or less the same number of students they enroll, but Cooley has a harrowing total attrition rate of around 50%. Another thing worth noting is that we cannot fully reconcile the bar exam numbers with enrollment and graduation numbers, because schools report to the ABA the results of graduates taking the bar exam in only one or two jurisdictions. This issue will come up again when we look at some problems with the Legal Education Value Added Rankings.
The numbers above make clear the radically different models on which these two schools operate. Notre Dame, like most law schools today, is relatively selective and admits less than 1 in 5 applicants each year. But of those admitted and who attend, nearly all will graduate. And of those who sat for the bar exam in Illinois and New York, 9 in 10 passed on their first try.
Cooley, on the other hand, operates the closest thing to an open admissions program that we have left in the world of American legal education. Their application requires no personal statement, no letters of reference, and no submission fee. If a candidate can score at least 143 (20th percentile) on the LSAT and has a 3.0 GPA, then they're in. If they score 149 or higher (40th percentile), then that alone will suffice. If they hit 163 (89th percentile), then they can attend for free. Cooley even has a process for admitting candidates who never finished a college degree but who have completed 60 hours of college level work. The hardest part of the whole application for most candidates will be detailing any criminal history they may have.
Once admitted to Cooley, students must face the much harder problem of graduating -- the school appears to grant only about half as many JD degrees as the number of students that enroll each year. But of those who graduated and who attempted the bar exam in Michigan, 8 in 10 passed on their first try. In fact the number of Cooley alumni who passed the bar exam in Michigan was about the same as the total number who graduated from Notre Dame. As noted above, we can't really tell how many students from either school took or passed the bar in jurisdictions besides those reported. And there may be no good source today for finding those numbers. Some states such as California report bar exam statistics by school, but not all may disclose the detail needed to compile full results for all schools.
Looking at the 4,254 Notre Dame alumni listed by Martindale, and dividing by the number of JD degrees awarded in the most recent year, it appears that there may be about 23 years worth of graduating classes represented. If we assume that the Martindale directory includes about the same number of graduating classes for Cooley, and if the school graduated as many lawyers per year in the past as it does now, then we might expect them to have something like 18,500 alumni listed. This is close to the total number for other large schools such as Harvard and more than four times as many as the 4,287 that actually appear in the Martindale directory. Even if classes at Cooley were smaller two decades ago, there might still be as many as 16,000 matriculants just from the past ten years, and maybe 8,000 alumni.
In the case of Cooley then, the huge gap between the number of students entering and the number listed in the Martindale directory (those who apparently graduate, pass the bar exam, and find work as lawyers) suggests caution in drawing certain conclusions based on the ANNR data. At the least, for some schools the survey of alumni listed in the Martindale directory must suffer from extreme extinction bias relative to the population of students who enroll. This extinction bias results if many enrolled students fail to graduate, fail to pass the bar exam, or cannot find work as attorneys after passing. And further, selection bias may result if many graduates choose not to take the bar exam or decide not to seek work as lawyers.
For these reasons, it seems unwise to rely on the results of the ANNR study as predicting anything about the prospects of entering students at any given school, without looking carefully at how the entering and "surviving" populations relate. At best, the ANNR statistics describe outcomes or behaviors for those from each school who succeed in becoming licensed attorneys and who choose to appear in the Martindale directory. That may include most students who enroll at some schools, and very few at others. We can assume as a general rule that the survey will include mainly the results of the most successful graduates. So the results may overstate outcomes or rates of success for all schools to some degree, and for some schools to an extreme degree, at least in relation to the population of entering students.
On the other hand, if we consider only the population of "survivors," then the examples of Notre Dame and Cooley may suggest that schools can achieve similar results with very different models. The selective admissions / high success model at Notre Dame may produce about the same number of licensed attorneys overall as the open admissions / heavy attrition program at Cooley. Given the great weight of LSAT scores in admissions decisions at more selective schools, and the modest correlation of those scores with law school grades (0.36 - 0.44), we might even argue that the selective admissions model excludes some candidates who would otherwise succeed under an open admissions / high attrition program. Of course we cannot judge the quality of jobs attained by graduates of either school by the distribution of alumni alone. But the fact that significant numbers of Cooley survivors land in regions other than the Midwest suggests that they find work in many different settings, and that alumni can expect to find modest numbers of their fellows in many areas.
Finally, the ANNR survey may also include significant selection bias for all schools if many successful graduates decline to register with Martindale. But the population of about 772,000 alumni found in the survey matches well with the Department of Labor's estimate that there were 761,000 lawyers working in America in 2006. So it seems reasonable to assume that the results of the study include most active licensed attorneys in the country today, even though they may cover only a small portion of those who attended or graduated from any given school.
I should point out now that I began all of the work featured on Law School Almanac as an uninformed amateur, and I did not set out to produce anything approaching proper scholarship. I have read what law review articles, blogs, and other materials I happened to find during my research. But I never undertook a comprehensive survey of the literature on law school rankings (nor have I even started law school, as I write this). I will therefore apologize now for any point on which by accident I have duplicated prior art without proper credit, or any aspect in which as a novice I have reinvented some wheels or repeated work done better and before by someone else.
Like many people who set out to attend law school today, I noticed several things soon after I began: 1) Our profession is gripped like no other with a strange fetish for scoring, sorting, and ranking, and this fetish dominates almost every aspect of the legal education and hiring markets; 2) The information we use to feed this fetish is often vague, unreliable, and corrupt; and 3) The methods used for scoring, sorting, and ranking are in the worst cases obviously invalid and unreliable and even in the best cases often irrelevant to the goals of those who rely on their results.
I am sure that I don't need to mention the many faults with the US News & World Report rankings, as others on this forum and in the literature have done a far better job of that. When I set out to look beyond these rankings, I had three goals in mind: 1) Cut through the hype that pervades popular opinions on legal education; 2) Test anecdotes with data; and 3) Decide where to attend. I wanted to find information that related to my concepts of value in legal education, verify or refute anecdotal judgments that I heard from others, and find some rational basis for choosing schools that I would apply to and eventually attend.
I think that the posts on LSA cover the method for the ANNR study well enough that I won't need to say much on that topic here. Instead, I will address some problems with the data which readers and users should consider. And I'll do that by looking at the numbers for two schools: Notre Dame and Thomas M. Cooley. I chose these because they have similar numbers of alumni included in the data from the survey; they have about as huge a gap in reputation and USN&WR ranking as any two schools we might pick; they follow very different models for admitting students; and yet they somehow wind up both ranked in the Top 20 by ANNR score.
Click here to read the rest of this post . . . .The Thomas M. Cooley School of Law attracts a certain type of attention from prospective law students, in part due to their notorious Judging the Law Schools rankings, which also happen to place Cooley within the Top 20 among all schools. I won't try to explain the reasons behind Cooley's position in their own rankings, but I think we can find some likely factors that will account for their success on the ANNR measure. We'll start by looking at a few numbers that describe the student bodies of these schools in the current ABA Official Guide to Law Schools:
NUMBER OF STUDENTS ND TC
------------------------------------
Applied: 3,499 4,978
Admitted: 651 3,699
Enrolled: 176 1,580
------------------------------------
NUMBER OF GRADUATES ND TC
------------------------------------
Awarded JD degree: 184 805
Sitting for bar exam: 69 229
Passing bar exam: 62 183
Bar passage rate: 0.90 0.80
------------------------------------
Three things about these numbers stand out right away: 1) Cooley admits more students than even apply to Notre Dame; 2) Cooley enrolls ten times more students each year; and 3) Notre Dame graduates more or less the same number of students they enroll, but Cooley has a harrowing total attrition rate of around 50%. Another thing worth noting is that we cannot fully reconcile the bar exam numbers with enrollment and graduation numbers, because schools report to the ABA the results of graduates taking the bar exam in only one or two jurisdictions. This issue will come up again when we look at some problems with the Legal Education Value Added Rankings.
The numbers above make clear the radically different models on which these two schools operate. Notre Dame, like most law schools today, is relatively selective and admits less than 1 in 5 applicants each year. But of those admitted and who attend, nearly all will graduate. And of those who sat for the bar exam in Illinois and New York, 9 in 10 passed on their first try.
Cooley, on the other hand, operates the closest thing to an open admissions program that we have left in the world of American legal education. Their application requires no personal statement, no letters of reference, and no submission fee. If a candidate can score at least 143 (20th percentile) on the LSAT and has a 3.0 GPA, then they're in. If they score 149 or higher (40th percentile), then that alone will suffice. If they hit 163 (89th percentile), then they can attend for free. Cooley even has a process for admitting candidates who never finished a college degree but who have completed 60 hours of college level work. The hardest part of the whole application for most candidates will be detailing any criminal history they may have.
Once admitted to Cooley, students must face the much harder problem of graduating -- the school appears to grant only about half as many JD degrees as the number of students that enroll each year. But of those who graduated and who attempted the bar exam in Michigan, 8 in 10 passed on their first try. In fact the number of Cooley alumni who passed the bar exam in Michigan was about the same as the total number who graduated from Notre Dame. As noted above, we can't really tell how many students from either school took or passed the bar in jurisdictions besides those reported. And there may be no good source today for finding those numbers. Some states such as California report bar exam statistics by school, but not all may disclose the detail needed to compile full results for all schools.
Looking at the 4,254 Notre Dame alumni listed by Martindale, and dividing by the number of JD degrees awarded in the most recent year, it appears that there may be about 23 years worth of graduating classes represented. If we assume that the Martindale directory includes about the same number of graduating classes for Cooley, and if the school graduated as many lawyers per year in the past as it does now, then we might expect them to have something like 18,500 alumni listed. This is close to the total number for other large schools such as Harvard and more than four times as many as the 4,287 that actually appear in the Martindale directory. Even if classes at Cooley were smaller two decades ago, there might still be as many as 16,000 matriculants just from the past ten years, and maybe 8,000 alumni.
In the case of Cooley then, the huge gap between the number of students entering and the number listed in the Martindale directory (those who apparently graduate, pass the bar exam, and find work as lawyers) suggests caution in drawing certain conclusions based on the ANNR data. At the least, for some schools the survey of alumni listed in the Martindale directory must suffer from extreme extinction bias relative to the population of students who enroll. This extinction bias results if many enrolled students fail to graduate, fail to pass the bar exam, or cannot find work as attorneys after passing. And further, selection bias may result if many graduates choose not to take the bar exam or decide not to seek work as lawyers.
For these reasons, it seems unwise to rely on the results of the ANNR study as predicting anything about the prospects of entering students at any given school, without looking carefully at how the entering and "surviving" populations relate. At best, the ANNR statistics describe outcomes or behaviors for those from each school who succeed in becoming licensed attorneys and who choose to appear in the Martindale directory. That may include most students who enroll at some schools, and very few at others. We can assume as a general rule that the survey will include mainly the results of the most successful graduates. So the results may overstate outcomes or rates of success for all schools to some degree, and for some schools to an extreme degree, at least in relation to the population of entering students.
On the other hand, if we consider only the population of "survivors," then the examples of Notre Dame and Cooley may suggest that schools can achieve similar results with very different models. The selective admissions / high success model at Notre Dame may produce about the same number of licensed attorneys overall as the open admissions / heavy attrition program at Cooley. Given the great weight of LSAT scores in admissions decisions at more selective schools, and the modest correlation of those scores with law school grades (0.36 - 0.44), we might even argue that the selective admissions model excludes some candidates who would otherwise succeed under an open admissions / high attrition program. Of course we cannot judge the quality of jobs attained by graduates of either school by the distribution of alumni alone. But the fact that significant numbers of Cooley survivors land in regions other than the Midwest suggests that they find work in many different settings, and that alumni can expect to find modest numbers of their fellows in many areas.
Finally, the ANNR survey may also include significant selection bias for all schools if many successful graduates decline to register with Martindale. But the population of about 772,000 alumni found in the survey matches well with the Department of Labor's estimate that there were 761,000 lawyers working in America in 2006. So it seems reasonable to assume that the results of the study include most active licensed attorneys in the country today, even though they may cover only a small portion of those who attended or graduated from any given school.
Painless Budget Cuts
Jim's post immediate beneath this one (in position only) made me realize that many people may equate budget cuts with belt tightening. This is not the case in higher education or in the context of public utilities generally. All it means is that the state itself (or ratepayers) are not forking over the money. If funding can be generated from other sources, there is little self-interest-based reason to cut spending or tighten your belt.This is clearest when you consider one Law School's plan to deal with decreases in state funding -- eliminate students. How does that make sense? The funding is tied to number of students and all the State seems to care about is money it spends, not the number educated or the quality of that education. It all works, depending on the elasticity of demand and raising tuition for the remaining students. In public utility terms this is simply passing on the costs. The managers of the utility (administration and faculty) don't feel a thing (except for possible decreased future pay raises) while the cost is shifted from the state to admitted students and, in a sense, to those who will not be admitted who otherwise would be.
As I have often written, publicly subsidized legal education -- especially in some fields -- puzzles me. What is the public good rationale for asking taxpayers to pay for the legal education of others? (How about more special ed. teachers instead or at least a required year or two of post graduate public service oriented practice?) And, even if that subsidy does take place, why is it related to GPAs and LSAT scores as opposed to need. Given those doubts, this turn to privatization should please me.
But something seems to be missing in the equation. Jim Chen's blog made me realize what it is. Budget cuts can result in one of two reactions or a combination. One is belt tightening. In that sense those who tighten are part of the broader community of those generally affected by the economy. Or it can result in scrambling to avoid feeling the squeeze. In this is the path taken, at the very least a Law School planning to apply the same level of funding to far fewer students should have a plan to enrich the lives of the remaining students. If this does not happen, ironically, the result of a budget cut may be even greater waste.
Supreme Judicial Court Refuses to Permit Retroactive Same-Sex Marital Benefits
In No Pre-Marriage Benefits for Same-Sex Couples Massachusetts Law Updates blog has reported on the latest Massachusetts Supreme Judicial Court case, Charron v. Amaral issued this past Thursday, in which the court put a very sensible limit on the reach of the Goodridge same-sex marriage case, in deciding that its prior constitutional holding in that case would not justify now ordering pre-marriage benefits (in this case, loss of consortium benefits in a medical malpractice case) to be applied retroactively for the benefit of a lesbian couple, for a cause of action that accrued before the couple was actually permitted to get married.
Although there were no dissents, it is interesting to see that Chief Justice Margaret Marshall, and two others, set out a different rationale in a separate concurrence, and thereby delineated some apparent differences on the court regarding the meaning of the Goodridge decision.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
Although there were no dissents, it is interesting to see that Chief Justice Margaret Marshall, and two others, set out a different rationale in a separate concurrence, and thereby delineated some apparent differences on the court regarding the meaning of the Goodridge decision.
For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.
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